The ATA Chronicle - May/June 2017 - 12

Unraveling Translation Service Contracts continued

PROBLEM CLAUSES
If translation is such a specialized
professional service, where so much is
at stake for the end client, why are so
many translators operating without the
protection of a solid contract? One possible
explanation based on the responses of the
group I surveyed is that many translators
refuse to enter into binding agreements
that contain "problem clauses."
When asked specifically about clauses
that have stopped translators from signing
with clients,6 the following were cited as
being either the most problematic clauses
or absolute deal breakers from the point
of view of translators:

Without a contract, you're
unprotected, and if the relationship
goes south, it's your word against
that of the non-compliant party.

Spy Clauses: By "spy clauses," I mean
any clause in which clients reserve the
right to inspect their translator's computer.
While such clauses may not necessarily
be illegal, they should be reasonable
and limited to situations that justify the
intrusion, such as government contracts
involving national security or other highstakes translation jobs. Before agreeing
to such clauses, translators need to make
sure that doing so doesn't conflict with or
otherwise breach existing agreements with
other clients who could potentially be
affected by such inspections. If translators
agree and authorize the inspections,
they'll need to take necessary measures
to protect all private or confidential
information and documents belonging to
all their other clients.
Indemnity/Limited Liability: Though
not illegal, this is yet another clause
that should be limited. When it comes
to such clauses, a point that often gets
overlooked is that clients, brokers
(when applicable), and translators are
all equally responsible for ensuring that
the translator is actually right for the job.
Therefore, placing all the burden on a
single party may not pass a fairness test.
12

The ATA Chronicle | May/June 2017

Yes-48.7%
No-51.3%

Figure 1: Survey Respondents Operating
with Contracts

Yes-35.9%
No-64.1%

Figure 2: Survey Respondents Operating
with their Own Terms of Service
Notification of Potential Opportunities:
This is the clause by which brokers
expect their freelance translators to
notify them of potential new leads or
market opportunities, as opposed to
trying to take advantage of the lead or
opportunity themselves. Though not
illegal, translators must exercise caution
in judgment before agreeing to such a
clause and make a thorough cost-benefit
analysis of the situation.
Non-compete/Non-solicitation/Nondealing: These clauses are commonly
found in agency contracts. Non-compete
clauses are legal in the majority, though
not all, U.S. states. (They are also illegal in
many countries.) In translation contracts,
they are basically clauses designed to
stop translators from competing with their
agency client. Non-solicitation clauses,

on the other hand, stop translators
from approaching the agency's clients or
prospective clients. The problem with
this clause is, of course, the difficulty of
knowing who the agency's "prospective
clients" are. Meanwhile, non-dealing
clauses are far more restrictive than noncompete and non-solicitation clauses,
and are designed to stop translators
from dealing with clients or prospective
clients, even if the client approaches the
translator and not the other way around.
All three clauses are only enforceable in
jurisdictions where they are legal and
when they are for a set period of time,
normally up to one year, though some
contracts stipulate up to three.
Payment of Translation Contingent
Upon End-client Approval of the
Translation/End-client Payment of
the Translation: Though also common
in agency contracts, such clauses walk
a dangerously thin line. A translator's
contract with an agency client is a
separate contract from that of the
agency with the end client. Unless both
contracts are legally interrelated because
of the complexity of the business
transaction at hand, it's very likely that
the clause is unjustified. Interrelated
contracts involve specific types of
transactions. Contracts don't become
interrelated by the mere desire of one
party to transfer risk to another.
Copyright: If a translation is intended as
a work for hire, then the contract should
either read "work for hire" or make it
otherwise very clear that the translation
is intended as a work for hire. Under
U.S. law (as well as the law of many
other countries), if there is any ambiguity
in wording, then the translator owns
the copyright, which can then be sold,
transferred, or licensed out.

TERMS OF SERVICE
When asked "Do you have your own
terms of service," an astounding 64.1%
of translators surveyed answered "No."
When asked why, reasons varied from
expecting clients to be the ones doing the
drafting to being afraid of scaring clients
away. Some respondents claimed email is
enough for proof of contract, which is a
claim that is only true in some countries.
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Table of Contents for the Digital Edition of The ATA Chronicle - May/June 2017
