Contract clauses have their importance as they govern the relationship between client and translator, and affect the manner by which disputes thereof are resolved by the parties to a contract.
Here are the clauses commonly found in a Translation Agreement:
1. Description of services.
2. Fee for services.
3. Cancellation or withdrawal by Client.
4. Additional fees.
5. Additional costs.
6. Client's review of translation.
7. Confidentiality.
8. Translation is property of client, copyright.
9. Indemnification and hold-harmless by Client.
10. Changes made to the text by others.
11. Governing law.
12. Additional provisions.
13. Complete agreement.
As we can see, there are many clauses in an Agreement, and each and every one of them has their importance in ensuring the performance of the agreement, setting the consideration, the liabilities of the parties, the payment terms, penalties, and other provisions.
Out of the many clauses above, I would like to commet on some of them in particular, essential to keeping the relationship between client and translator healthy and honest.
Force Majeure Clause, not listed above, would establish that the translator cannot be held liable for breach of contract in the event of, for example, a disaster that prevents him/her to deliver the service. To hold the translator liable for something that was beyond his/her control is unfair and unjust. The agreement should therefore expressly set what is regarded as force majeure.
Clause 2 provides on the Consideration, or that which motivates the Translator to perform the service as he/she is not in the market for free. They must be paid, and such a clause should set the conditions to ensure they earn for services rendered. Pro bono services should also include such clause as its absence could leave a door open for future claims related to payment for services rendered.
Clause 3 sets Liquidated Damages should the client withdraw the job after the translator has started it. The Translator would be at loss as he/she may have turned down other jobs in order to attend to the client. Also, by the client withdrawing the job, it means that the client would no longer need it, and thus not use it in an operation that would have justified its expense, thereby having no motivation to pay the translator. However, the translator should still be paid consideration proportional to his efforts.
Clause 11 establishes the Governing Law, also very important, especially in my condition, as I serve companies in São Paulo despite being resident and domiciled in the State of Ceará. Therefore, the Governing Law, as both states are part of Brazil, is one presumably i.e. the Brazilian Law. However, the Venue, or Jurisdiction i.e. the court of law to resolve any issues arising from the agreement must be determined based on one of the domiciles of the parties, which must be agreed when entering into any agreement.
Clause 13 is most interesting as it is an Integration or Complete Agreement Clause that provides on what is agreed between the parties precisely in relation to the service. I often receive translation requests by phone, or by email, and even messenger service. Based on pre-agreed specifications applicable to peculiarities of each job or client, I begin my work, and as it progresses, may be requested to make changes in the text or apply certain terminology, again by informal manner – telephone, email, or msn, and by different people handling the project – coordinator, project manager, sales department - which due to the urgency the project may have, may be forced to disregard the proper communication channels. Therefore, no written specifications are formalized, and should there be any problems arising from the mixed flow of instructions, the translator should not be held accountable.
Clause 6 is also important as it sets the rules on Warranty. The translator must ensure that any errors committed on his part are rectified in able time in order not to represent prejudice for the client. However, as indicated in Clause 10, the translator is held liable only for his/her job, and not for any issues arising out of any alterations or reviews by other professionals, such as editors and quality assurance personnel, before final submission to the end client.
Clause 7, equally important, provides on Confidentiality. I have participated in translation projects that have included top-secret military information e.g. Sistema de Vigilância da Amazônia (SIVAM). Information on radar “blind zones” and flaws, interception response times, and others have passed through my computer.
It would be a crime for me to disclose such information, which would be put to use by smugglers and drug dealers operating small planes across the border.
Despite the assumption that disclosure would be illicit, the agreement should not leave it to me to imply the rule of conduct and must therefore provide clearly on what is confidential information and what is not, and when the translator can disclose such information e.g. when it is already of public domain, or by court order.
Thus, the agreement must also provide on how the translator should proceed prior to disclosing such information e.g. notify the client as soon as possible in order to give it able time to prepare or engage its legal department to prevent the disclosure.
But there are some many others that could be added to an agreement to assist in regulating the relationship between client and service provider based on the peculiarities of each job, perhaps, or the client.
That being said, what clauses would you add to your agreement, and would one standard agreement serve all your clients accordingly?
Brazilia