Have you ever wondered about those terms you are being asked to sign? Ever seen something that sent you running for the hills? I don’t know about you, but I have. Łukasz Gos-Furmankiewicz calls these “zombie contracts”, and he seems to know a bit about them. So I invited him for an interview to tell us all about them.
You’re a highly respected English <> Polish legal translator with a way with words many native English-speakers would be proud of. On top of this, you’re a highly trained lawyer. I know you’re especially interested what you call “zombie contracts”, and I’d be delighted if you could tell us all a little more about them.
First off, I hope I gave you a satisfactory introduction, but perhaps you’d like to tell us a little about yourself and your background in your own words.
Thank you, Rose, you did me too much favour with your flattering introduction. I’ve been interested in zombie contracts for a while, though it’d be hard to give an exact explanation as to why. Since I don’t actually practice the law these days, I guess I need an outlet. Besides, they’re also interesting on an intellectual level. Plus, I take issue with these things. I wish they would just go away. I know translators don’t always understand them but are asked to, and frequently do, sign them. I want to level the field by bringing these issues into daylight. Talk about them. Explain them.
By the way, this isn’t a war on translation agencies, just in case anyone gets this sort of an idea. Agencies get asked to sign contracts too, and some of these contain really ugly stuff like you wouldn’t believe. This is intended for them, too.
I see. So what sort of issues are you seeing in these translation contracts?
My own personal pet peeve is the rudeness with which those contracts speak to or about the translator. More interesting to our readers, though, is probably the worrying tendency to heap all sorts of stuff on the translator, sometimes without really talking about it first. Sometimes these are things that don’t make much sense to make your responsibility rather than theirs.
Can you give me some examples? What sort of wording should translators be looking out for?
Other than just two or three that we’ll cover in a minute, I would specifically avoid giving you any specific catch words to hang on to. On the contrary, I want you – and this is really important – to read contracts with an open mind, realising that – to quote Ashley Cowles‘s slogan – it’s not about the text, it’s about the message. You’re looking for the sort of message about your rights and obligations that you don’t want to be read and heeded by the legal system. The message is the real danger, the words are just a tool, and various words can be used to convey the same idea.
Still, do look out for ‘satisfaction’, you can even CTRL+F it. When a job is supposed to be done to the client’s unqualified satisfaction, it means the job isn’t complete – and the deadline clock still runs – unless and until the client is happy. ‘Reasonable satisfaction’ was invented by English-speaking lawyers to alleviate the problems associated with this, so you at least want that satisfaction to be ‘reasonable’. And you probably want a very clear provision to the effect that you’re going to be paid for any additional work which does not result from a real error or some other real failure you can reasonably be blamed for, as opposed to whether the end client or someone else likes your style or not. Please note I’m not talking about a situation when you actually want to offer free rewrites until your client is subjectively happy with the text as part of your standard service,. All these things connect with your business idea, your tolerance levels and your comfort zones. Mileage may vary from one translator to the next.
Next, anything including ‘hold harmless’ (another CTRL+F candidate) and ‘indemnify’ calls for a close inspection, although it is not automatically unacceptable, in keeping with what I’ve just said about ‘satisfaction’ and rewrites. You just need to be aware of what you’re dealing with, and you’d better not have any second thoughts later.
Also, be wary of absolutes. ‘Wholly’, ‘totally’, ‘fully’, ‘entirely‘, ‘free of’, ‘none whatsoever’, ‘sole discretion’, ‘only if’, ‘solely’ and such like. Emphasised negations with inversion and similar strong forms of expression, such as: ‘no payment shall be made unless and until’ should attract your careful scrutiny. Also consider the frequency of phrasing which makes you sound like you’re a potential criminal looking to cheat the agency or client in all sorts of ways. Apart from the legal significance of wide, blanket statements (where no exceptions are stated separately, at least), do you really want to work with – or for, let’s be realistic – people who talk to you in that manner?
I want to emphasise that there isn’t really any part of a translation contract which you could just skim through, though. You need to apply the same degree of care and inquisitiveness as when you proofread a high-profile specialised translation where mistakes can cost a lot. You need to have a clear understanding of what your job is supposed to entail, what’s included in the rates you’re agreeing to receive, what the complaints procedure is if the client doesn’t like something, and what the payment terms (or even payment conditions) are. Then liability, any contractual penalties, confidentiality, laws and courts. If you think I’ve basically listed all sections there are in a translation contract, then you’re spot on.
We’re basically treading on a minefield here, and even definitions of stuff like a business day can blow up a bomb, typically in the form of a handful of weasel words that may cost you dearly. However, it can also be something which is stated quite openly and in clear terms, but people just don’t bother to read it.
Above all else, don’t be pressured into quickly signing any terms unilaterally dictated to you by your agency or client just because they say that without it they can’t pay you for work already done (which is not true, and illegal), or they won’t be able to give you any work, or they’re going to be late on something important, so can you pretty please just sign it. Don’t sign anything you haven’t carefully read and understood.
What kind of consequences can this have?
If you manage to put your signature under a clause which says you’re responsible for something, then you’re most probably going to end up being very much responsible for that thing, even if that’s unfair, unheard of or doesn’t make any sense. The willingness to strike down offending clauses may different from country to country, court to court and judge to judge. But you don’t want to depend on the discretion of a judge for the livelihood of you and your family. Be careful what you sign.
For example, signing a suspiciously broad intellectual property clause (or sometimes simply ‘copyrights’) can make you the sponsor of licence fees owed by the publisher to the author of the original work (book, film, article, etc.) or some other copyright holder (like a recording studio, or a larger or foreign publisher).
You could also encounter a clause requiring you to accept all complaints (valid or not), implement all corrections required by the client or a reviewer (justified or not), or resolve every complaint within a specific number of days regardless of how many words you’d need to edit. Or you could become the default handler of complaints received by your agency, even though someone else may have edited (and destroyed!) your work after you. Or sometimes sloppy corporate clients will blame the translator for errors introduced by their own staff (such accusations of errors are notably hard to defend yourself against when you’ve been required to hand over or destroy all of your files and correspondence). Speaking of which, TEP (as in: ‘should the client dispute the TEP’) means, ‘translation plus editing plus proofreading’. You probably know this already, but DTP is, of course, desktop publishing, like graphical editing and highly advanced formatting, which you don’t want to wake up being legally required to do on your own, unless you happen to actually like it and don’t mind it being included in your standard rates.
Remember that just because they didn’t bring something up on the phone or by e-mail, that doesn’t mean it isn’t there in your written contract. Or even the purchase order for an individual job. Yes, read purchase orders very carefully, too. I mean it. Every word. Twice if you need to. Purchase orders are particularly tricky because agencies expect you to adhere to them, but they sometimes also include a provision in the main contract saying that the conditions of the main contract can’t be changed by POs, or can’t be changed except in traditional writing (and POs are e-mail communication, not proper writing with signatures and so on).
Some people might think this won’t ever happen or it will be thrown out of any court.
Because it generally won’t happen, which is comforting, but once in a blue moon it does happen to someone, and then it hits that someone really hard. You don’t want to be that someone. You’d be surprised to see what sorts of things actually don’t get thrown out of court.
Have translators really been caught out like this?
As one translation blogger noted, a couple of years ago there was a Polish case where the translator had signed a guarantee saying that the client would be able to use the translated work (a book) free of any third-party claims. Turns out the publisher failed to secure a licence to have that book translated. What did those guys do? They sued the translator. And they won. After all, the translator did put his signature under, ‘free of any claims.’ So learn from that, and don’t follow in his footsteps.
Another case was when some business executives allegedly modified or updated the translation received from the translator without talking to him about it. For some reason the court apparently didn’t require the client to prove that the version containing errors, which was shown to the court, really was the version received from the translator.
I don’t know the details, but if the court really took the client’s word on that (which means anybody could bring any translation and an invoice from you mentioning the same quantity of text and claim it was your work), then, of course, the judge was way out of bounds. But there are courts which don’t delve into matters deeply. Some courts are pretty arbitrary. Some are undereducated. Some have bad days. Some just don’t understand your business.
Still, there are things that won’t fly. For example I know of a case where the client skimped on the proofreading when offered as a paid option with a translation which was going to be published and handed out to people, a leaflet or brochure. Turned out there was a typo on that leaflet, and the client sued the agency to make it pay for another round with the printers. The court did not agree.
This last case could have ended very differently if the agency hadn’t informed the client that it was a good idea to proofread and a bad idea to skimp on it. It would be safer still to inform the client that you categorically are not going to be shouldering the risks generated by the savings and low budgets, or risks which can easily be avoided by applying some reasonable precautions that are not too expensive in the grand scheme of things. What’s the cost of a reviser compared to the thousands or millions the translated transaction is worth? This is particularly important with rush jobs or jobs involving serious overtime, which carry an inherent risk resulting from the human factor – such as tiredness, loss of focus, lack of objective distance to your work, etc. In some people’s minds, by accepting a translation job from someone you should also be insuring them against all risks connected with problems they generated, not you. Such as rush jobs or poor quality sources.
(Poor quality sources are another favourite and another frequent problem, at least where English is the source language. You should generally make sure that you aren’t expected to make flawless texts out of low-quality sources, such as machine translation from another language or human translation by someone who can’t write well or barely knows the language. Non-native sources can be a real pain.)
Make sure you aren’t the person carrying the burdens and unpleasant consequences of the savings someone else while someone else reaps the rewards. It’s a bad business partnership where they take the profit and you take the risk.
Lastly, the ‘fun’ part is that probably the majority of existing standard contracts I see make at least the copyright scam possible. The typical confidentiality clause tends to expose the translator to the same risk as in the case with the (supposedly) DIY translation updates by the client’s own staff. Provisions about processing complaints are usually written in a way which makes them very prone to abuse in the hands of someone who’s determined to make your life unpleasant or just in a malicious mood.
Can liability insurance help in these cases?
Yeah, but there are limits. Above the insurance pay-out limit (total or aggregate, or per event), you’re on your own. And insurers aren’t exactly looking forward to having to pay, either. Also, insurance policies can sometimes impose very high requirements of diligence, which you may be required to prove that you observed at all times, and this may be impractical. For example, lawyers could start looking for negligence in all of your tiny decisions – such as the choice of specific dictionaries, for example, whether they are authoritative enough or not, all with the benefit of the hindsight which you didn’t have when you were translating.
That’s bad news.
Yes, which is why you should generally avoid unlimited, open-ended liability. That will not always be agreeable to your client, and for understandable reasons, but you can suggest taking out an insurance policy if the ability to sue for money is of such critical importance. A professional client in particular really shouldn’t be looking to you for risk coverage. That’s not exactly professional. And it’s not professional, either, to expect a solo translator to have the sort of deep pockets to reimburse the losses if there is a typo in a multi-million-dollar PR campaign or a large government procurement fails. That’s what insurers are for.
I’m mentioning this specifically because right now translation agencies’ budgets are so tight and the clients’ appetite for savings is so large, that there is no room for revisers, editors and proofreaders. Think of it: a whole team of high-octane lawyers pouring over a contract and inspecting every preposition, article or comma in it, each billing anywhere from €100 to €500 per hour, and then there is one translator expected to cover all bases single-handedly when that same contract needs to be translated into another language. Actually, it’s fortunate if a qualified translator is chosen at all, as opposed to the lowest bidder.
Let’s get back to your liability, though. Look for some reasonable limitations, such as stating that that the price agreed and paid for any specific job is the limit of your total, aggregate liability for that particular job, be it in contract, tort, product liability, criminal damages etc., be it direct or consequential or incidental or punitive or any other sort of damages. Under some jurisdictions and legislation you really need to list all this and much more than I listed here. Consult a lawyer if possible. Why not have such a lawyer prepare your own terms and conditions for you while at it? Choose a lawyer who is also your client, if possible. That’d be good business sense.
In case you are wondering about this, it isn’t unfair to tell your client, in advance, that you are not accepting liability above the limits of your insurance, for example. Then it is up to them to decide whether or not to proceed with the job.
Okay, can you wrap up by giving us some basic points to watch out for next time we sign a contract?
In short – and in keeping with what we’ve said so far – everything. We’ve supposedly got a crisis going on, there is a lot of cutthroat competition between agencies in the bulk market and their mark-ups are allowing them less and less wiggle room. Some clients are feeling desperate, others feel a sense of entitlement. People are ‘inventive’ in the methods they use to make some savings and push the burdens and risks onto someone else. So you should expect the unexpected. But avoid dozing off when you read through the standard-looking stuff, as well, as the darkest spot is sometimes right under the lighthouse. Don’t be rushed or strong-armed into signing something you’re unsure of. Be vigilant, be safe.
Wow. Thank you, Łukasz. Thank you so much for sharing your valuable insights with us all, and thank you for letting me publish such valuable content on my blog! Let me speak for all my readers and say you’ve been a great help.
Readers: Did that give you some food for thought? Was there anything there that reminded you of something you’ve read in a contract or are unsure about? Post questions below and Łukasz and I will do our best to answer!