I have just received an update of your terms and conditions and took the opportunity to look at the full version.
Gengo, as well as some agencies expect translators to accept unlimited liability, so we could potentially be sued for unlimited direct and indirect damages, this could be millions - enough to destroy anybody's business and life?! On the other hand, Gengo, most companies, agencies (including myself) limit their liability or don't accept any.
When I started translating I was unaware of this, but I cannot accept that, neither should any translator, especially people who just earn a few bob on the side.
I would be very interested in why Gengo puts such a clause in their contract.
Indeed. Additionally, here's what clients have to accept:
"Gengo’s liability will be limited to correcting the errors or providing refund.
Disclaimer. You agree to review any Translated Works before making such content public, and you expressly agree that Gengo will not have any liability or indemnity obligations to you based on the Translated Works if you fail to do so." - https://gengo.com/legal/
While here's the liability provision now in the Translator Agreement:
"10. You agree to indemnify Gengo
You agree to indemnify and hold harmless Gengo and its affiliates and their directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) Your negligent, reckless or intentionally wrongful acts, (ii) a determination by a court or agency that You are not an independent contractor, (iii) Your breach of any of the covenants contained in this Agreement and corresponding Gengo Translator NDA, (iv) Your failure to perform the duties of Translator in accordance with all applicable laws, rules and regulations, or (v) any violation or claimed violation of a third party’s rights resulting in whole or in part from the Gengo’s use of any of Your deliverables under this Agreement." - https://gengo.com/legal/translator-agreement/
So, basically, Gengo only accepts a limited liability (up to the value of a project), while service providers are supposed to be directly liable toward Gengo's own clients for basically anything and everything, without limitation, even though they aren't actually working for those clients and their identities are kept "top secret". In other words, we translators are basically anonymous and "transparent" to the end client (except we have to deal with them directly, but still anonymously, in case of questions/issues...) and we "sell" our work to Gengo, so the first provision I mentioned above should already cover this, since Gengo is reselling something they bought. If not, that clause should be amended to expressly include "Gengo's translators" (or "Gengo's language service providers", etc.).
The indemnification clause added to the Translator Agreement is unfair, unreasonable and totally disproportionate.
Wow. Just wow. Come on, Gengo!
So far I have only been partly able to negotiate a removal of such clauses, they tend to insist, telling me that I should have insurance and that in all their years experience no more than the invoice amount has been charged...
It is not just Gengo, but these are very abusive practices, usually from fairly large corporate organisations with legal departments who throw their weight around. Smaller agencies don't tend to do that I find.
@Gabriele - Yes, I've already heard similar arguments from agencies. Like "This is our standard agreement and every translator signs it without problems", as if that was a justification for anything and you were just being unreasonable AND wasting their time for raising the issue... or the one you mentioned "Yes, those clauses are there, but we never really used them": so why are they there in the first place?
As for the insurance, that's not a valid argument either, as I doubt you can buy an insurance at an affordable price that covers the kind of damages that might be awarded for, say, the (unwitting) violation of a multinational copyright. And in any case, AFAIK, such insurances kick in after a trial and a verdict (only God knows where and under what laws), so that would still be an extremely taxing ordeal for a small freelancer or an "amateur" translator...
Furthermore, let's not forget that most agencies offer translation+proofreading as a "basic" service, and that lowers the chance of mishaps, while Gengo does not.
This is sad.
For instance, recently I translated a job in which there was a literal quote from a movie. I decided not to translate the quote (since the customer said that the translation should not use Spanish from Spain but generic Spanish instead, and the translation is different in each Spanish-speaking country). Well, the ST that reviewed my job said that I should have seen the movie and, if not, "investigate and look for it" to write the quote as it was translated in Spain.
The point is: in many cases it won't be possible to find a movie scene quickly and legally. Should I have tried to download the movie illegally? And accept full responsibility for that?
This is only one example. I've translated many jobs with quotes from movies or series. I've translated many obvious Internet scams and clickbaits. I've translated descriptions of products that are obvious copies of other existing products of other brands. In short, I've translated contents that can be illegal in some places, and at least unethical in many others. And I did that because I was sure, and I read several times on these forums, that the responsibility of the content is not mine.
For the first time in almost three years, having translated more than 580,000 units and more than 60,000 jobs for Gengo, I'm seriously thinking about stopping working here.
It would be certainly a good thing to have Gengo comment on this here. On the other hand, I don't think this liability clause does actually affect our translations themselves. If you look at the things where Gengo seeks indemnification, this is mainly about the relation between Gengo and us, and not about the relation between the client and us.
The client has a contract with Gengo, not with us. As Mirko pointed out, Gengo has excluded any kind of liabilty for translations beyond a textual correction or a refund. This means that any kind of liability for any sort of subsequent damage simply cannot happen, even if the client tries. And since Gengo cannot suffer any kind of serious liability here, Gengo can also not be "indemnified" by us for such liability.
The real fears behind this indemnification clause are not that any sort of damages have to be paid to clients because of bad translations. The fears are that we, the freelancers, could be deemed employees of Gengo, with the right to regular pay, benefits, or whatnot. This seems to be the constant fear of many outsourcers. And Gengo tries to rule out this possibility by unloading this risk back on us. The other fears listed in the clause are breaches of confidentiality, violations of copyrights, and similar unlawful behavior.
In any case, there is no kind of insurance that would cover this stuff and would be affordable at the rates we have here, and I believe that here in Europe, insurances for translators rule out any liabilities against US claimants because the sums for damages in the US can be ridiculously high. It might be interesting to know what advice Gengo has for its translators how to cover this risk.
Thanks for this thread and for taking the time to voice your concerns.
As @kvstegemann has pointed out, the purpose of the clause at hand (Section 10 of the Translator Agreement) is to clarify the relation between Gengo and translators, and to state that Gengo can hold you directly responsible for breaking our rules, which are laid out in 5 general categories.
This is a very common type of clause in businesses that have a community like ours, and it has been added to protect Gengo as a business, as we currently work with 21,000+ translators.
That said, as long as you follow common sense rules, of which you’ll find examples for the 5 general categories mentioned below, you have nothing to worry about.
Please note that these are just examples to illustrate the 5 types of scenarios in which Section 10 of the Translator Agreement would apply:
(i) Your negligent, reckless or intentionally wrongful acts
(ii) a determination by a court or agency that You are not an independent contractor
(iii) Your breach of any of the covenants contained in this Agreement and corresponding Gengo Translator NDA
(iv) Your failure to perform the duties of Translator in accordance with all applicable laws, rules and regulations
(v) any violation or claimed violation of a third party’s rights resulting in whole or in part from the Gengo’s use of any of Your deliverables under this Agreement.
In short, as long as your behavior is ethical and professional, this clause cannot affect you in a negative way. You could argue that, as has been mentioned, what’s the point of having it there if it doesn’t affect you. However, as I mentioned above, our community includes 21,000+ translators located all over the world, and it continues to grow, so we saw it reasonable to include it to protect Gengo as a business in the event that someone out there does try to cheat, abuse the system, or breach our agreement in a serious manner.
We hope that the clause makes better sense to you now. Ultimately, it is your choice to agree to it or not, but we sure do hope that you understand now where we are coming from, and that this particular section is only there to protect the business in the case of an extraordinary event. It is because we value each and every one of you all so much as our translator community that we feel the need to ensure that we can continue to provide the right environment for you to work in.
Thanks for your understanding, and keep up the great work!
@Lara, thank your for these clarifications. But there could be indeed cases where the translator gets into trouble here without having done anything wrong. When you look at subsentence (ii), this does not indicate that the translator has to seek treatment as an employee themselves, it says that a court and such decides so. This can happen, for example, when any public authority strives to change our status as freelancers to a status as employee, even against our own intentions. In Germany, for example, the authorities try to crack down on pseudo-self-employment which is rampant in some fields (like construction or transport) and courts have decided to change those contracts to permanent employment with social security and all, even though no one except the authorities have asked them to.
For example, any translator who receives all their income from only one outsourcer like Gengo could easily be deemed a pseudo-freelancer by German authorities and be forced to change their status. So the risk is quite real here. I have not heard of a case where it happened to a freelance translator but the day will come. The easiest way to avoid this for a translator is to do substantial work for more than one outsourcer/client and to make it clear all the time that we as translators are free to take or refuse work and are not bound by directives of Gengo, since Gengo is not our employer.
@kvstegemann, thanks for getting back to me! :)
I definitely see your point. However, after a quick research on Google, I do see that translators can actually work as freelancers in Germany (http://www.expatica.com/de/finance/Tax-and-freelancers-in-Germany_100950.html - not sure how reliable but I believe we could find more with more hours of research). In that case, then, wouldn't it have been in the best interest of the translator to make sure they take the necessary legal steps to be classified as freelancers when they decide to work exclusively as such? i.e. wouldn't "pseudo" self-employment would indeed be negligent from the translator as it would mean they were working as freelancers without the legal permission to do so? And if such government resolution results from a translator choosing not to legalize their work situation, then whose fault would it be?
I am not trying to blame anybody, of course, but just looking for the root of the problem that you mention in your example :)
As you say in your closing line, the easiest way to avoid such a situation would be for said translator to work for more than one outsourcer or, if working only on Gengo, to take the necessary legal steps to establish themselves as freelancers within the German legal system.
@kvstegemann - Not sure about that... True, point (ii) clearly refers to the type of relationship existing between us and Gengo (as to avoid paying taxes, social contributions, benefits, etc. connected to an employer-employee relationship), and I'm perfectly fine with that, but the others? I'm sure you'll be familiar with a provision that is basically always present in Privacy Policies, that goes a bit like "Your data is strictly confidential and we won't disclose it to third parties, except:", and one of those exceptions is when they are asked by a judge or similar authority. What would happen if a client tried to sue Gengo because of, say, a supposed copyright violation arising from their use of a "deliverable" Gengo sold them? Sure, Gengo will try to claim they're not liable, based on the first provision I quoted above, but that *does not* cover us (translators), as *we are not* Gengo's employees (as clearly stated by the aforementioned (ii) among others). (v) clearly says we should be held liable for "any violation or claimed violation of a third party’s rights resulting in whole or in part from the Gengo’s use of any of Your deliverables under this Agreement", which is precisely the case in the example I was making.
Also, even if a court should rule that Gengo's limited liability clause is not valid, and fine them accordingly, based on this agreement, Gengo in its turn could sue *us* for damages...
@Lara - If that's how Gengo interprets that clause, then your post should be added as an annex to the Translator Agreement, as an official and binding "translation" from Legalese into English (or you could just amend it to read the way you presented us with).
A couple notes:
1) About (i), I'm no lawyer, but the way I see it, "negligence" as used here, and interpreted as "professional negligence" (as we're talking about translation, that is to say, a specialized profession) can, and usually goes, well beyond having "your little brother translate on your behalf"...
A definition of "professional negligence" is "the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services." - https://definitions.uslegal.com/p/professional-negligence/
2) About (v), let's say I translate a text for a client and unknowingly use copyrighted words/slogans. Gengo's end-client, who used that text, gets sued and has to pay damages to the copyright holder, OR has to recall printed material where that text was used, and print new ones, thus incurring expenses. In that case Gengo will still claim a maximum responsibility up to the value of that order (and paradoxically, it could very well be something like $0.7 for a 20 words slogan...), while the translator who earned that princely sum would risk ending up on the street, plain and simple.
3) Just for comparison, here's the relevant indemnification clause from ATA's translation agreement template: "Notwithstanding anything to the contrary, <b>except in case of willful misconduct or gross negligence</b>, Contractor's entire liability to Company for damages or other amounts arising out of or in connection with the Services provided by Contractor hereunder shall not exceed the total amount of payments made by Company to Contractor under this Agreement." - https://www.atanet.org/business_practices/translation_agreement_guide.pdf
So, Lara, unless your clarification actually and formally represents the full extent of that provision, I believe it could very well apply to a number of other scenarios (like those I presented in the examples above at 1 and 2).
In closing, one question: if Gengo can lawfully limit its own liability "to correcting the errors or providing refund" (IF the client reviews the translations before using them), why don't you use the same yardstick with us?
As for point (ii), that's an entirely different kettle of fish, and, as I said, it's not such a big issue for me, but it's not like you can "choose your clients"... If you just start out, you take what you can, and it can take a lot of time to establish a good customer base (both in size and rates).
Also, I bet most of Gengo's 21k+ "translators" (how many of those are actually active BTW? 10% maybe?) aren't legally established as self-employed individuals either...
@Lara, of course translators can work as freelancers in Germany. All you have to do in order to establish yourself as a freelance translator in Germany is to announce this to your local tax authority. You do not need a registration with the local trade office, since translating is not considered a trade (Gewerbe) in Germany.
But it could happen that some other authority in Germany, one of those that collect social security contributions or fight illegal employment, disputes your status as a freelancer. As I said, such a thing happens mostly in the construction and transport sector. But it could happen to us too. These authorities try to stop people who avoid social security contributions and they can be a nuisance for any sort of self-employed person even if the business is perfectly legit. If, in theory, a German freelance translator receives, say, 90% of his income from one outsourcer only all the time, the authorities could say that this constitutes a permanent employment, even if the translator has done everything right. This might go to court then, with the outcome open. I am not sure if German courts could force a US or Japanese company into such a forced employment contract, but who knows.
@mirko, you are probably right that there might be more situations that could become a risk here. But I think that for example, your note 2) does not really apply. As long as Gengo can successfully limit its own liability to the aforementioned value of the order, the translator is safe, because the client has no claim against the translator. The client can only have a claim against Gengo, because the client has only a contract with Gengo, and it was Gengo who delivered something to the client. Only if Gengo themselves are suffering damage, they might in turn sue the translator on the grounds of the agreement we have with Gengo. Of course, there could be cases where Gengos damage limitation might be dismissed by a court and then they might turn to the translator.
Thanks for the interesting discussion everyone.
As kvstegemann said, I think this particular section of the agreement seems more directed at preventing cases similar to what is happening with Uber, i.e.- authorities in some places ruling that their drivers are employees, not contractors. I dislike the Uber model (services at cheaper prices by axing worker's rights and benefits), but I don't know to what extent translators can be considered the same. Unless they were working on staff for some company, historically translators have usually worked independently as far as I know (I am afraid I know very little though.)
Now, even if I agree that that is what Gengo is aiming for with that clause, I would like for someone from the legal department to clarify that it cannot be taken advantage as a loophole by some customer to bypass Gengo and sue an individual translator for whatever reason.
I have come across a couple of contracts that include clauses that prevent translators from claiming that they are employees, and I have no problem with that as my rates cover tax, insurance, holiday..., but indemnity is different.
Pretty much every trader and service provider has some kind of indemnity clause that limits their liability to a manageable amount, e.g. the invoice amount, and it always expressly excludes liability for third parties and so on.
Sample contract for translators from the ITI and ATA (I believe) are limiting liability in a similar way for translators - unfortunately, agencies are very quick in sending their own contracts and some are very one sided, in favour of the organisation.
And, sorry Lara, Gengo is already protecting itself with their indemnity clauses - there is really no need to ask translators to accept such an unreasonable and exploitative clause.
I do not work with organisations or agencies who have such clauses, this is too risky for me. One never knows, what damages a client thinks they suffered and is looking for someone to take it out on - this is always an unknown, no matter how good one is.
Well, I think this is really not clear. I'll stop translating until I can be sure that I have no accountability whatsoever for any harm or loss or whatever a customer can suffer because of something I delivered.
Hi everyone, Matt here. First of all, thank you for sharing your thoughts and opinions on this topic. When I first founded Gengo, I never imagined the size and breadth that an engaged, strong-knit and caring community Gengo would become! Thank you for believing in the Gengo platform and helping us — and users around the world — pursue our vision of helping the world communicate.
Allow me to respond to concerns raised regarding the new Translator Agreement. I’ve read through the above comments and feel there’s a misunderstanding I want to take this opportunity to clarify.
First and foremost, be assured that nothing in the updated agreement is there to allow any Gengo customer, or any other third party of any kind, to take advantage of you. As long as your behavior complies with the points mentioned in the Translator Agreement, there is nothing to be concerned about. Personally, I want nothing more than for Gengo to continue to operate as a service that provides fair work opportunities to passionate and professional translators like yourselves. In order to do that, these amendments are necessary to protect Gengo and our well-intentioned translators against the irresponsible actions of a few.
Of course, we also consulted with industry professionals to create a Translator Agreement in line with business best practices. These past few years have seen a rise in community platforms across many industries, and our research guided us to incorporate language similar to that articulated by successful businesses leading their industry. It would not be in our interests to abuse or take advantage of the Gengo community, and we have no intention of doing so.
I hope this clears the air and puts perspective on the recent amendments. If you’re ever unsure as to how to proceed in any situation on the Gengo platform, whether during a translation or in communicating with a customer, our Support team is always available.
— Matt, CEO
Thank you for taking the time to reply to this. My concern was not in regard to the amendment introduced, but to the liability clause which was there before.
As said before, any other translation agency or business of any kind take steps to protect themselves by limiting their liability to a reasonable amount that their business can afford to lose. It is by no means standard or fair practice to basically threaten others with unlimited damages/lawsuits should they not follow the rules?! Besides, problems can occur unintentionally.
I work and run my business to the best of my ability and knowledge and to moral and ethical standards, however, I cannot predict, foresee or assume that everyone else I come into contact with is doing the same. For that reason, I need to protect myself and my business just as you do, therefore, in my terms and conditions I limit my liability to the invoice amount and don't accept third party liability - but I never asked you to sign my terms and conditions, which is fine, but I would ask that you do respect other people's wish to protect themselves as you do and don't ask translators to accept unlimited and third party liability. Some, but not many translation agencies have that clause, but I can't work with them under such conditions.
@mromaine: Thank you, Matt, for your comments. I think we all believe that your intentions are fine. But like with every legal text, when things get tough, the letter of the contract will probably count more than the intention. That's why lawyers put so much effort into it.
But since you, as Mirko pointed out, limited Gengo's liabilities towards the clients, why not simply add a similar clause to paragraph 10 of the translator agreement? Like this:
Any liability of a translator arising out of a particular translating project will be limited to the compensation received for this project.
This sentence would simply make it clear that such a thing as feared by many in this discussion cannot happen. And since you covered yourself in the same way, the actual case should never occur anyway. What do you think?
I have no formal education as a translator. Does my sincere intention to behave in a professional way make me a professional translator?
I would welcome the clause kvstegemann suggests, just in case someone deems my work unprofessional.
This is from the ITI model contract for translators and as far as I am aware, the ATA has a similar clause:
"... the liability of the Translator under or in respect of this Agreement, whether in tort, contract or otherwise, shall be limited to the cost of the Translation Task being undertaken when the liability arises.
Neither Party shall be liable to the other in respect of any consequential or indirect loss."
The above is, how most companies limit their liability, in one way or another, including yourselves. The following is what you expect translators to accept:
"You agree to indemnify and hold harmless Gengo and its affiliates and their directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with..."
Sorry, to ask translators or anyone to accept such clauses, no matter what follows, is inappropriate in my book.
Matt, I am sure you acted with best intentions and the advise of your lawyers, but I feel bullied by such a clause.
Also, I act with best intentions and within ethical standards, however, others could see that differently. We are all human and make mistakes, but how this might be perceived by other people and in other cultures, or laid out by lawyers is completely out of our control.
... within my set of ethical standards asking someone to accept unlimited liability is inappropriate and unethical - it seems, you see that differently! :)
Thank you for your reply Matt.
I do not mean to sound confrontational about this, but I am honestly sad to hear that you felt the need to depart from the plain (and understandable) language Gengo always used to adopt a corporate/legal lingo with your service providers. That is one of the things I really liked about Gengo... Also, if you consulted with industry professionals about these changes, I'm sure you will also have come across agreements such as the one I linked above, from ATA (which should be quite an authoritative source in the industry), or the one from ITI ( http://www.iti.org.uk/attachments/article/155/Model%20Terms%20of%20Business%20-%20Translator.pdf ). There are huge and substantial differences between those and the clause we are discussing in this thread, in terms of *qualitative, quantitative and temporal scope of the liability "service providers" are asked to bear. The one you devised is pretty much one sided (and I don't really feel very "protected" by it, truth be told...).
This is not a matter of someone "taking advantage" of someone else. It is all about risk management and (apparently) very different standards concerning what is to be considered an "acceptable" risk. As I wrote earlier, you decided to set very clear and narrow limits for your own liability, while unfortunately the same cannot be said about the ones translators are being asked to accept.
You wrote that the reason for these changes was "to protect Gengo and our well-intentioned translators against the irresponsible actions of a few", but I fail to see how adding ex-post measures that extend every single translator's liability is going to protect those "well-intentioned translators" that have always behaved correctly (and I do consider myself one of them). On the contrary, that feels more like a(n unwarranted) punitive measure (kind of a sword of Damocles), as it places additional burdens and risks on every single translator working here. We are all human beings, so, every now and then, we are bound to make mistakes (of varying degree and nature...), despite our best intentions and professionalism. Furthermore, we are operating on a platform where proofreading and QA *are not* part of the work procedure (as is usually the case with translation agencies), thing which further (strongly) increases the chance of those mistakes and oversights reaching the end client unnoticed.
In my opinion, a much better way to achieve your stated goal would be to weed out the "irresponsible few" *before* they have a chance to cause trouble, or right after they behaved in an "irresponsible" way for the first time.
Lastly, something that hasn't been brought up yet, but which I believe is strongly linked to this topic, is the fact that Gengo basically accepts anyone in their ranks (hence the 20+k registered — not active — "translators"). The only screening is an initial test, but that says nothing about an individual's reliability, professionalism, ethics, etc. One of the results of this approach is that you end up having both untrained and sometimes unscrupulous "translators" (submitting for instance machine translations) working alongside professionals with several years of experience and a proven track record.
*I put that in bold because one of the unreasonable things about this clause is that there are no limits concerning the maximum amount a translator can be held liable for (e.g. a $500,000 lawsuit for copyright violation on a $200 translation), the party toward which he can be held liable (i.e. "any violation or claimed violation of a third party’s rights"), and the duration of such liability (i.e. if I deliver a translation, should I be held forever liable for it?).
Any news regarding this?
Thank you all for the thoughts and opinions.
We've discussed with our legal team and for the time being, we don't plan to make any amendments to our legal agreements. Please understand that, by continuing to work with Gengo, you are agreeing to our updated terms and conditions.
We'd be sad to see you go, but we understand that the decision is ultimately yours.
This is what I expected, as few agencies with such clauses seem to be prepared to remove them.
Well, I am glad you have a legal team to consult, most of us don't have the privilege - I am sure they act in YOUR best interest! If I had a legal team, I am sure they would tell me that this is unacceptable and outrageous.
As every organisation does protect itself by limiting their liability, so should translators! And especially translators as they often are not limited companies of any sort and therefore basically risking the T-shirt they are wearing.
Never mind, you seem to find enough people who probably overlook that or don't think it's a problem, but for me it is utterly immoral and I don't work with clients who expect me to act as their dogsbody should the sh*t hit the fan.
Well, I'm sad to say that I'll stop working with Gengo too. I'll keep reading the forums and participating here.
I'm very disappointed, to say the least.
It looks like more people are worried than only those active on this forum. On the Open Data page it says the number of qualified translators has dropped in February (from 21252 to 21240), whereas it used to increase every month by some 50 or more. (The number of active translators has dropped as well, but that's in line with the pattern of the past few months.)