The difficult part for most translators isn’t finding an affordable attorney to draft their terms and conditions, it’s actually working with an attorney to get it right.
Afew years ago, I decided to conduct a little survey to see how many translators had their own terms and conditions of service. It wasn’t a capricious question. I was generally interested in measuring whether or not my colleagues were aware of the importance of protecting their businesses with ironclad contracts. And, if not, why.
I found that 51.3% of respondents didn’t operate with their own terms and conditions, even though 82.1% of the group worked with direct clients. When asked why not, the number one answer was fear of losing the client. Somehow in the social imaginary of this small sample group, the feeling was that clients would be put off by contracts.
As a lawyer, this logic is hard for me to understand. From the buyer’s side, I can’t imagine working with a professional who doesn’t put their promise in writing. From the translator’s side, I can’t imagine doing business without protecting my interests. A well-drafted contract is such a win for both sides in any line of business that the thought of doing business without one is, to me, simply inconceivable.
Yet, I can still see how having your terms and conditions drafted for you can be a daunting task. And I understand why so many translators are put off by the idea of having to hire a lawyer to do that. They say talk is cheap unless you’re talking to a lawyer, and they’re right. But it doesn’t have to be. There are plenty of professional contract drafting services available at an affordable cost, so having your terms and conditions drafted for you doesn’t have to cost you an arm and a leg. But even if you can’t find an affordable service in your area, you can still think of the money you’re spending as an investment in future-proofing your business and protecting your interests in the long-term.
The difficult part for most translators isn’t finding an affordable attorney to draft their terms and conditions, it’s actually working with an attorney to get it right. That’s why you need to be very clear about what it is you do and what your business model looks like so you can give your attorney the necessary information to draft your terms and conditions well. In addition, there are some specific considerations you and your attorney need to keep in mind, some of which are summarized here in alphabetical order and not order of importance (read: they all matter!).
Boilerplates: Boilerplate clauses typically include force majeure, governing law, jurisdiction, and similar clauses. Lawyers often think of them as standard clauses that don’t require too much thought. But this outlook on boilerplate clauses is misguided. While they may be standard in the sense that you’ll find them in almost every contract with very little variation, a significant part of the time spent in court when contracts are breached actually revolves around boilerplates. We sometimes spend more time fighting applicable law and jurisdiction than we do more substantive matters. And all that translates into high costs and wasted time for you. This means your boilterplates have to be well thought out and, more importantly, if you and your clients are in different countries, they should be drafted by an attorney who is familiar enough with international contracts to do a good job. So, when choosing the right lawyer for you, ask if they’ve drafted international contracts before.
Changes to the Translation: If your name is going on the translation, this is a particularly important one. You want to make sure that changes are submitted to you for review. After all, it’s your reputation at stake!
Client’s Responsibilities: Because your terms and conditions are aimed at protecting you, you might want to hold the client accountable for helping you help them. Perhaps explicitly state that it’s up to them to mention and make available any reference materials they want you to follow, or that they’re responsible for reviewing your work and submitting changes or questions for your consideration within a certain period of time so they don’t come back a year later challenging your translation and expecting you to respond overnight. There’s no right or wrong answer here. What you and your drafting attorney put into this clause will depend on your business model. But take your time to think about it. Brainstorm possible scenarios and mention them to your lawyer.
Confidentiality, Privacy, and Non-Disclosure: These terms are not exactly interchangeable and one thing that’s often unclear in translation contracts is what constitutes confidential or private information and what may or may not be disclosed and how. Make sure you and your lawyer get this right. You want your client to rest assured that their important documents are in good hands.
Copyright: Who owns your translation? In many parts of the world, the law determines that for you. In others, it’s up to the parties. Either way, ask your lawyer what the law is in your jurisdiction. Depending on your area of specialization, owning your translation may be in your best interest. In other areas, it doesn’t really matter, but it may be an incentive to make sure you’re paid.
Early Cancelation By the Client: What if the client engages your service and backs out after you started translating? You want to make sure you’re paid for the work performed before they canceled. And that’s what this clause is for.
Incentives: Instead of late payment penalties, some lawyers may recommend you use your payment clause as an incentive to secure payment by offering a discount for full upfront payment. That might work for you. Or you might want to do both. Either way, don’t be afraid to discuss those options with your lawyer.
Late Payment: Are you expecting a late penalty fee? If so, what constitutes late payment? As of what date? How high is that fee? How do you plan to enforce it? These are all questions you need to ask yourself to get this clause right.
Method for Handling Complaints: You may very well be the world’s best translator, but even the world’s best translator can come across an impossibly difficult client demanding unreasonable explanations of your word choices or wasting your time with frivolous complaints. That’s why it’s not a bad idea to add a small charge or other disincentive to keep the difficult ones at bay.
Outsourcing: Will you be outsourcing the work? The client may have a right to know. In addition, the client may even get a say in some cases. If you’re outsourcing, make sure to include that in your terms and conditions. In addition, provide a thorough explanation to the client of how private and confidential information will be handled when outsourcing.
Payment: You want to make sure you get paid on time and keep the transaction costs to a minimum. For that, your payment clause should clearly indicate when (e.g., upon delivery, upon invoicing, 10 days after invoicing, etc.) and how (e.g., check, PayPal, or bank transfer) you expect to be paid. But one thing translators often overlook is who is going to cover the transaction cost. By that I mean whatever charges are attached to your preferred payment method. This is especially important when you and your client are in different countries, where transaction costs can get pretty steep.
Translation Credits: If you’ve negotiated translation credits, where and how should they appear? If it’s a book, the credits might be on the cover page. If you’ve translated a report, they might be on the back cover. Maybe you’ve translated a poem. It doesn’t matter what you translated. What matters is where and how you’re to be credited for your work.
Translator’s Responsibilities: Contracts should be drafted fairly and in good faith. While your terms and conditions are there to protect you, that doesn’t mean you can’t explicitly assume certain responsibilities to ease your client’s mind, and to prevent them from demanding more than you originally agreed to.
Quality Guarantee: Are you willing to put your money where your mouth is? If so, you might want to consider a quality guarantee. If you do, make sure you clearly outline what parameters you’ll use to measure quality. Remember, translation is subjective by nature. What you understand by quality might not be the same thing the client understands.
Of course this is not, nor purports to be, an exhaustive list of every clause you should consider including in your terms and conditions. These are just the ones that in my experience translators often overlook. So, think of this as a cheat sheet to help guide your conversation with your attorney. The best way to future-proof and protect your business isn’t with terms and conditions alone. It’s with a well-crafted business plan that’s properly outlined in your terms and conditions and having those terms and conditions drafted by a competent attorney in your area.
Paula Arturo is a lawyer, translator, and law professor with nearly two decades of experience in the language profession. She is a linguistic consultant at Marval, O’Farrell & Mairal and directs Translating Lawyers Academy, an online academy that helps legal translators hone their translation skills. She is administrator of ATA’s Law Division and co-head of legal affairs at the International Association of Professional Translators and Interpreters. Her bragging rights include translating the works of several Nobel Prize laureates and world-renowned jurists. paula@translatinglawyers.com