To What Clauses of Contracts Should a Freelance Translator Pay Special Attention?

Many clients will ask their freelance translators to sign contracts or work for hire agreements before beginning work. While these are often quite harmless in nature and not something to be concerned about, it's important to read what you're signing and to make sure that you're not agreeing to a clause that you will later regret.

These contract clauses are mostly applicable if you work through translation agencies. For example, you should carefully consider, possibly with the advice of a lawyer, whether you will agree to terms such as:

- Agreeing not to get paid until the end client pays the agency. Of all the terms that translators are asked to accept, this is probably the most difficult. In one sense, it's understandable that an agency doesn't want to take the risk of having to pay tens of thousands of dollars to translators for a project that the agency itself is never paid for. In addition, if a translator returns poor quality work, the agency doesn't want to be responsible in the event that the end client refuses to pay. On the other hand, the agency's role as a middleman between the translator and the end client involves some financial risks, such as non-payment on the part of the end client. If you agree to this type of clause, it is important to realize that you are accepting some risk of non-payment yourself.

- Agreeing to indemnify (hold harmless) the client against lawsuits and/or claims resulting from your translation. If you sign a contract with this type of clause, make sure that you carry your own professional liability or errors and omissions (E&O) insurance in case one of your clients is sued because of an error in your translation. The client should have a quality control system in place so that an error by one translator doesn't have a disastrous effect on the final project, but not every client will have this. This type of contract clause is more of a concern if you work for direct clients, who may be less likely to have your work edited or proofread before distributing it.

- Agreeing not to accept or solicit work from the agency's clients. Most intermediaries between end clients and freelancers, not just translation agencies, require this type of non-compete agreement. It's perfectly reasonable to ask that you not go behind the agency's back and ask the end client to hire you to translate for them directly. However unless you and the agency compare your client lists (something the agency will probably be unwilling to do) you can't really know that you're not working for one of them.

- Agreeing not to subcontract work to another translator. This is another fairly common and reasonable clause, just make sure you read it before signing, and if you commit to doing all the work yourself, don't share it with someone else.

- Agreeing to abide by confidentiality standards. Especially if you work in legal, financial or patent translation, you will probably come into contact with trade secrets, confidential financial information, patent applications, etc. If you sign this type of document, again it is important to read and abide by its provisions. For example, financial translators might be required to agree not to engage in insider trading as a result of their knowledge of a company's financial information before it is released to the public. This type of document is often referred to as a non-disclosure agreement or NDA.

- Agreeing to submit to a credit check, criminal background check or financial review in order to be bonded. Like the confidentiality agreement described above, there are good reasons why some translators have to be bonded (insured against stealing because of information that they have access to).

For example if you work with a bank's clients' financial information, or translate information about a mutual fund's identity verification procedures, you have access to information that would allow you to steal money from the company or its clients. In order to be bonded, most insurance or bonding companies will investigate your financial records and/or criminal background. Just make sure you are clear on what you're agreeing to when you sign this clause, and that you understand what information about you the company is going to collect or ask for. If you have a past criminal background, make sure you understand what types of charges, arrests or convictions must be reported.

If you find a clause in a contract that you don't want to sign, you have a few options. You could cross out the clause in question, modify it, or refuse to sign the contract completely. Whether or not this is successful depends on the client. Some agencies will agree to a change, others will refuse to work with you if you don't sign their contract. The most important thing is to realize that if you sign a contract, its terms are legally enforceable, even if your client tells you, "I can't imagine we would ever really enforce that..."

If the client wouldn't enforce the clause, it shouldn't be in their contract. Remember that although it is intimidating to be presented with a contract as a prerequisite for a certain job, you are an equal party to the contract and are entitled to object to terms that are unfair to you. Also, although contracts don't appear to be negotiable most of the time, they often are negotiable, and in any event you are highly unlikely to lose a client simply because you have questioned one of their contract's clauses.