24 Jul Contract Language
© 2012 Giovanna Lester
[This article was first published on May 18, 2012]
One of the issues most discussed at interpreters’ and translators’ meetings and forums is contracts. What should and should not be in a contract, the details we did not cover, how to ensure payment, how much ambiguity, if any, should be allowed, etc.
So, what are contracts good for?
- Establishing the relationship between the parties. It is important to identify who is who in the contract (Client and Service Provider) and in the process define who has authority to bind the Parties to the contract. That can be clarified by proper language when identifying the Party who will sign: XYZ Corp. herein represented by __________, its legal representative for the purposes of this contract – for example. This is especially important when dealing with indirect clients. Who has not heard of agencies and lawyers withholding payment claiming their clients have not paid yet?
- Establishing the responsibilities and liabilities of each of the Parties. Make sure your contract properly defines confidential information, Service Provider’s liability, what is gross negligence, what the Client is supposed to provide the Service Provider, as well as deadlines and file formats for delivery of material by Client and by Service Provider.
- Defining the work to be performed and a time frame. Identify the nature of the work being performed (translation, transcription, interpreting -and style) and what will be translated (personal document, financial prospectus, etc.), transcribed (tape recordings of focus group interview, tapes from wire tapping, etc.) or interpreted (conference, focus group meeting, deposition, IME, PSI, etc.); as well as when the work is expected to and will be considered finished. You must indicate how much time the Client will have to effect changes to the product you delivered as part of the same project.
- Determining how the work will be compensated. In the case of international assignments, your determination will also include the currency in which payment will be made and the foreign exchange rate (if applicable), mode of payment (wire transfer, payment facility such as PayPal, check, cash, money order, etc.), the rate for compensation and the basis for calculating the total (per hour, word, day, half-day, overtime), and how long after delivery payment is due. Additionally, you must set out the terms for compensation: full payment, partial payment and when payment is due. This will depend on the length of the project. Service Provider may choose to receive full payment at delivery of final project or partial payment as portions of the project are delivered.
- Demonstrating that there is an agreement between the parties as to the terms and as to jurisdiction should any dispute arise. The last portion of your contract will state that by signing (executing) the document the parties agree to the terms, and identify the court with jurisdiction to resolve any disputes.
After all is said and done – or agreed to and signed – we still can not guarantee that clients will fulfill their part of the contract. I have only had problems collecting once – even though there was a contract in place. So, although contracts are not a complete safeguard, they establish intent, document a promise and if you find yourself in a dispute, your contract is an ally.
Translators may be faced with the issue of who owns the final TM (some agencies claim it belongs to them, some translators argue it is their intellectual property); and interpreters might have a video shown by surprise during a conference (no script, no direct sound feed). These are details that need to be discussed before hand and included in your contract.
The above is a general overview and it is important to note that beyond the obvious differences between contracts used by translators and interpreters, there are also industry standard differences and details to be dealt with. There is no one-size-fits-all solution: I often revise my contract to fit the job at hand. Also, where the client has prepared the contract, I will let him or her know of a clause that I have problems with, and after discussion, I will either reject the job –I have done so a few times– or have the contract changed. My rate of success on this latter approach is higher.
And when you do not have time to wait for a contract to be signed? Many times I have to discuss terms and rates over the phone and ask my client for an email address. I will send an email which details our exchanges (dates, times, rates, deadlines, etc.) ending with something like “Please confirm your acceptance of the terms above by responding to this email.” It gives me peace of mind, and together with the phone records it establishes a pattern should a dispute ensue.
Contracts are important and should be negotiated, but they no longer offer the high level of security professionals attach to them. Still, contracts are an important tool for the freelance professional.
3 thoughts on “Contract Language”
Again, great points to think about. I do so little freelance work, but I believe there was a sample contract making rounds when I first became a NAJIT member years ago. Thankfully, no payment issues to date.
Lucky you, Kevin. I can’t complain either. In 35 years I may have encountered at most 5 payment related issues. At most.
Last week I negotiated a contract. The company has offices around the world, but HQ is up in Europe. They wanted to use that European country as the forum for disputes. I rejected the contract and suggested a colleague who lives in their generic area and might be more receptive to the venue. Mind you, we had already agreed on all the other terms and I had suggested using their US-offices to administer the contract to avoid the venue issue. Once I rejected the contract, they found a way to get the US office involved.
It is all a matter of (1) knowing how far you can bend; (2) keeping the client’s interest in your cross-hairs (hence the referral); and being flexible.