Disagreeing to Agree

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This & That ― Vignettes of a Professional Journey
a column by Ines Bojlesen

That will never happen to me” is a concept that has no place in our reality as translators, especially when we are asked to sign a service or a confidentiality agreement. Please bear in mind that I am not an attorney and my comments here are based simply on my experience as a freelance translator.

I have faced quite a few dilemmas involving agreements with new and existing clients during my career. I thought discussing some of them would be a good subject for this post. I am sure you have also had similar experiences.

A new client contacted me offering an on-going project that would require transcription from handwritten notes and the subsequent translation of the text. When I asked for a sample of the work to assess whether I was qualified and what rate I would charge, I was told I had to sign their service agreement attached to the email before they could send any samples.

By refusing to sign the agreement before knowing whether I could, would or should translate the project, I lost a potential client. However, I found it wrong to sign an adhesion contract that had the potential of never being used and would certainly join many others archived by the agency. I understand the need for confidentiality, but there are ways in which a sample text can be redacted so that names and identifiers are removed. I was being asked to sign a document that would require me not to solicit a client’s clients and would bind me and my successors to many pages of clauses that would survive termination or expiration. All this, just to find out I might not even work for them.

In another instance, I had an existing client who decided to require that translators sign a confidentiality agreement that was attached to the email. It was the most comprehensive and unrealistic agreement I have ever encountered. It involved a 28-clause document that did all but demand my head on a platter. It was extremely well-drafted, no doubt by the expert hands of corporate lawyers. However, it was not commensurate with the work of a “freelance” translator. Fortunately, this client welcomed suggestions and input. Instead of crossing out and amending the proposed agreement, I explained the main points for my not accepting it and forwarded a copy of the ATA’s agreement guide. I added a clearer explanation of what “work for hire” involves. The client and I willingly signed it a couple of days later.

A third case concerned an agreement I signed with a long-standing client. For the prior two years, the annually renewed agreement specified that all materials, including CAT tool memories, belonged to the client and were to be provided to this client upon request.

This was a bitter experience. I had worked for this client for over thirteen years. Back then, CAT tools were not required, but I used them on my own. Two years ago the client decided to adopt a CAT tool and requested that I work with their tool. By then, my CAT tool memory was extensive and reflected all the years of research I had devoted to translations for that client. And because for the last two years I signed the agreement with the clause providing that the memory was part of a work-for-hire arrangement, my 13+ years of building the translation memory had to be relinquished. I should have been more attentive and specified that the only portion of the TM that belonged to the client was the part I built up as of the date the client started requiring use of its CAT Tool.

I was preparing to end this post when another puzzling contract landed in my inbox. This time, the client used electronic signature technology for signing their contract renewal. Despite trying, I could not figure out how to download the package unless I signed it―a document more than 30 pages long. The email mentioned that, if I had any questions about the documents, I should contact the agency. This electronic signature format did not allow me to get a PDF copy in which I could insert comments or delete any part I did not agree with.

I stopped short of even considering signing it when I read a clause that said that, if the agency’s client failed or refused to pay the agency for reasons other than the quality of the translation provided, the agency would have the right to require the translator to return all or part of the fees that had been paid.

How can we agree to return fees to an agency if its client fails to pay them? We have no control over who its clients are. We are hired by the agency, and our work is to be compensated by that agency as the party that hired us.

The need for information security is higher than ever, but we cannot agree to be responsible for a translation after it leaves our computer or desk. When hackers succeed in carrying out malicious intrusion against government agencies, how can we, mere freelancers, defend ourselves if we are accused of a breach of confidentiality?

How can we commit to not soliciting a client of the client if we are not provided with a list of such clients? Furthermore, as freelancers, we often work for the same end-client through different agencies.

How can we sign a contract binding us to so many clauses if we are not even allowed to see what we will be asked to translate?

Please be aware of how important it is to read every word―and between the lines―of every contract you are asked to sign. You need to be firm and resolute in suggesting changes or amendments, and  explaining to the client why the document does not apply to the services we render.

A contract is a binding agreement between parties. Negotiate, negotiate, negotiate. When no agreement is feasible, remember: losing a client is better than losing your business!

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