General Terms & Conditions for Commissioned Translation/Transcreation
Please kindly note these General Terms & Conditions are based on:
- definition of translation according to Jacques Flamand, available here (in French);
- Dorothy Kenny’s paper “The translator and the machine”, featured in The Linguist, Vol/55 No 6 2016, pp. 10-13 (available here).
- T&C recommended by the ITI (Institute of Translation and Interpreting, UK) and the SFT (Syndicat national des traducteurs professionnels, France);
- guides “Translation – Getting it Right” and “Translation – Buying a non-commodity”;
- structured specifications (version 6.0) available on the BYU Translation Research Group website;
- European standard ISO 17100:2015; and
- common issues I have encountered in my practice, which above recommendations do not cover as of January 2017. With a view to maintain the highest quality standards in our profession, fellow translators/transcreators are free to copy and reuse/amend my General Terms & Conditions, as well as to share any issue they may encounter which is not yet covered herein and suggestions for improvement by sending a message to firstname.lastname@example.org.
Terms & Conditions below may be downloaded here
Following General Terms & Conditions shall govern any provision of services commissioned by any natural or moral person (hereafter, the Client) and agreed on a case-by-case basis between the latter and ......................., freelance translator/transcreator and voice-over artist (hereafter, the Linguist), having office ........................, registered with ........................ under number ........................ as of ........................ and a member of the Chartered Institute of Linguists (London) as of August 2008 (hereafter, the Agreement).
According to Services Specifications, these General Terms & Conditions may be supplemented, as need be, by Special Conditions to be clarified and agreed on a case-by-case basis.
Unless otherwise specified herein or in Special Conditions, or required by context, the following definitions apply.
• ‘Services Specifications’ means the full and accurate description of services to be provided. For translation/transcreation and related services, full description means exhaustive information per form downloadable here
or any equivalent.
• ‘Agreement’ means the mutual understanding of and commitment to:
- information given in the Project Management Pre-check form downloadable here
- final Services Specifications per form downloadable here
or any equivalent;
- all Terms & Conditions set forth herein;
- all Special Conditions, if any, that govern a particular set of Services commissioned by the Client; and
- any additional information that complements the above and is necessary to fully specify commissioned Services.
• ‘Translation’ means (a) the rendering of an author’s original message in all its nuances in another language, (b) while ensuring that translated material reads like a native original.
Quality in translation requires accuracy and nativeness, which means target text shouldn’t be cumbersome to read nor awkward for natives.
• ‘Transcreation’ is a term mostly used in marketing and advertising, to emphasize that original material needs to be entirely and creatively rewritten/reworked so as to adapt perfectly and natively to the target culture/audience.
• 'Linguist’s role and responsibility': when providing Translation, Transcreation, Proofreading, Review or Editing services, the Linguist’s role is threefold: a) as reader, s/he forms a general and direct impression of the text (which requires thorough knowledge of source language, subject matter and context) ; b) as critic of original copy, s/he analyses the text to ensure proper understanding of all its nuances, so as to render its full meaning ; and c) as writer or at least copywriter, s/he renders original message in the target language as an author or co-author would.
"Linguist must thoroughly master her/his mother tongue as well as its nuances and possibilities – in short, Linguist must be a good writer […]."
• ‘Translation Memory’, or TM, refers to software used by professional translators since the 1990’s. Put very simply, translation memories are databases that store translations for reuse. When a given sentence appears again in a subsequent translation job, “the tool simply retrieves the existing translation for that sentence.”
Today, TMs are used in very different ways.
Professional Linguists namely use them:
- For visual comfort: TMs display originals clearly, separating each sentence from the next (this is called segmentation) and providing an input space for translation.
- To ease control of lexical consistency (thanks to concordance search), within one given document and/or across documents coming from the same end-client and dealing with the same subject. Very often, a given concept or idea may be expressed in many different ways and end-clients may each have their own preferences, even if both work in the same industry. This is why a TM created for end-client A may not be usable for end-client B.
When a previously translated sentence is returned by a TM, the Linguist can choose to accept, reject or edit it, according to its new context, purpose, etc. but also because:
- Quality of Translation Memories content is just as diverse and varied as end-clients, “translators” and writing skills. Anyone can create a TM, with just about any bilingual content, and the Internet has become a largely accessible and endless resource – of very uneven quality – to do that. Hence having content stored in a TM is no warranty of quality: it all depends on how said TM was created and based on which resources.
- Text repeated in originals is not necessarily repeated in target material, especially when (a) translating from non-agglutinative and/or rarely inflected languages (for example, English) to agglutinative and/or highly inflected languages (for example, French, Spanish, Italian, German or Romanian) or (b) originals are poorly designed, drafted and/or reviewed, and need significant rephrasing/adaptation in the target.
• ‘Machine Translation’, or MT, refers to a specific use of Translation Memories that does not involve any control by a Linguist, with a view to automate translation. The most common example of a machine translation tool is Google Translate.
To put it simply, Machine Translation is the blind use of very large TMs. It is the XXIst century equivalent of expecting a professional, native and perfectly clear translation from any randomly selected person just because you gave them a dictionary. Today, the "dictionaries" have turned into huge online databases: they are still, however, dictionaries.
• ‘Post-Editing of Machine Translation’, or PEMT, is a service required by some clients to correct mistakes made in such automatically (blindly) translated texts, with a view to reduce the price of translation services. However, as all professional linguists know, reviewing a bad translation is more time-consuming than performing the translation from scratch. For this reason, Linguist DOES NOT provide PEMT.
According to a “sector-wide survey conducted by Common Sense Advisory in 2014, PEMT accounted for around US$1.1 billion, which is a considerable amount but represents only 3% of the language services market that year, with the vast bulk of revenues coming from traditional translation.”7
• ‘Revision’: definitions vary among Linguists, translation agencies and Clients. According to European standard ISO 17100:2015, it is herein defined as bilingual examination of target language content against source language content for its suitability for the agreed purpose.
The term bilingual editing is sometimes used as a synonym for revision.
• ‘Review’: definitions vary among Linguists, translation agencies and Clients. According to European standard ISO 17100:2015, it is herein defined as monolingual examination of target language content for its suitability for the agreed purpose.
The term monolingual editing is sometimes used as a synonym for review.
• ‘Proofreading’: definition varies among Linguists, translation agencies and Clients. According to European standard ISO 17100:2015, it is herein defined as the examination of the revised target language content and applying corrections before printing.
• ‘Collaboration’ means any period during which Linguist performs work commissioned by a Client according to a specific Agreement. Linguist is under no obligation towards Client, except for performance to professional and satisfactory standards of commissioned services according to Agreement. Each collaboration starts on the date of an Agreement and ends with delivery of material according to Agreement. Linguist is free to enter Agreements with any other party of her choice.
• ‘Client’ means any party commissioning services to Linguist.
• ‘End client’ means any party commissioning services to an intermediary, who in turn commissions said services to Linguist. According to circumstances, Linguist’s Client will thus either be the End Client or not.
• ‘Confidential Material’ means any sensitive or private information with regard to End client or their business.
• ‘Source Material’ means any text or other medium provided by the Client to Linguist and which contains a communication which has to be translated, and may comprise text, sound and/or images.
• ‘Third Party’ means any party who is not a party to this Agreement.
2. Copyright in Source Material and Translation Rights
2.1 Linguist may agree to Services Specifications on the understanding that performance of said services will not infringe any Third Party rights. Accordingly the Client warrants to Linguist that:
1) the Client has full right and authority to enter into this Agreement, having acquired the right and licence to translate and publish the Source Material; and
2) the Source Material does not infringe the copyright or any other right of any person.
2.2 The Client shall indemnify Linguist against any loss, injury or damage (including legal costs and expenses and compensation paid by Linguist to compromise or settle any claim) which Linguist suffers as a consequence of any breach or alleged breach of any of the above warranties or as a consequence of any claim that the Source Material contains anything objectionable, libellous, blasphemous or obscene or which constitutes an infringement of copyright or of any other rights of any Third Party.
3. Fees: tentative and final Services Specifications
3.1 The fee to be charged shall be determined by Linguist on a case-by-case basis according to exhaustive information provided by the Client.
3.2 Services Specifications are not final unless Linguist explicitly said so in writing and has seen and/or heard all the Source Material and has received clear and complete instructions in writing from the Client.
3.3 Where VAT is chargeable, it will be charged in addition to the quoted fee if Linguist is VAT registered.
3.4 Any fee quoted, estimated or agreed by Linguist on the basis of the Client’s description of Services Specifications may be subject to amendment by agreement between the Parties if, in Linguist’s opinion on having seen or heard the Source Material, that description is materially inadequate or inaccurate.
3.5 Any fee agreed for services which are found to present latent special difficulties of which neither party could be reasonably aware at the time of offer and acceptance shall be renegotiated, always provided that the circumstances are made known to the other Party as soon as reasonably practical after they become apparent.
3.6 Estimates and tentative Services Specifications shall not be considered contractually binding, but given for guidance or information only.
3.7 Subject to clause 3.2 above, final Services Specifications, once agreed after Linguist has seen and/or heard all the Source Material, shall remain valid for a period of thirty (30) days from the date on which they were agreed, after which time it may be subject to revision. This clause does not apply when any negligence on the Client’s side prevents Linguist from starting work on the date agreed in Services Specifications.
3.8 Costs of delivery of the translated material shall normally be borne by Linguist. Where delivery requested by the Client involves expenditure greater than the cost normally incurred for delivery (for example, courier and/or recorded or special delivery), the additional cost shall be chargeable to the Client. If the additional cost is incurred as a result of action or inaction by Linguist, it shall not be borne by the Client, unless otherwise agreed.
3.9 Additional charges may also apply for:
- discontinuous text, complicated layout or other forms of layout or presentation requiring additional time or resources;
- poorly legible copy or poorly audible sound media;
- poorly written and/or structured material;
- terminological research;
- certification; and/or
- priority work or work outside Normal office hours in order to meet the Client’s deadline or other requirements.
The nature of such charges shall be agreed in advance.
3.10 If any changes are made in the text or the Client’s requirements at any time while the Services are being performed, Linguist’s fee, any applicable additional charges and the terms of delivery shall be adjusted in respect of the additional work.
4.1 Any delivery date(s) agreed between Linguist and Client shall become binding only after Linguist has seen and/or heard all of the Source Material to be translated, has received complete instructions in writing from the Client and has agreed to Services Specifications in writing.
4.2 The date of delivery shall not be of the essence unless specifically agreed in writing.
4.3 Unless otherwise agreed, Linguist shall dispatch the translated material in such a way that the Client can reasonably expect to receive it not later than the normal close of business at the Client’s premises on the date of delivery.
5.1 Payment in full to Linguist shall be effected no later than thirty (30) days from the date of invoice by the method of payment specified.
5.2 For long Collaborations or texts, Linguist may request an initial payment and periodic partial payments on terms to be agreed.
5.3 Settlement of any invoice, part-invoice or other payment shall be made by the due date agreed between the Parties or in the absence of such agreement within the period stipulated in clause 5.1.
5.4 Where delivery is in instalments and notice has been given that an interim payment is overdue, Linguist shall have the right to suspend work at hand per Services Specifications until the outstanding payment is made or other terms agreed.
5.5 Any payment that is not made before the due date shall bear interest at the rate of eight per cent (8%) calculated on a daily basis from the date when such payment fell due until the date of payment.
5.6 This action shall be without prejudice to any sums due and without any liability whatsoever to the Client or any Third Party.
6. Copyright in Translations
6.1 In the absence of a specific written agreement to the contrary, copyright in the translated material remains the property of Linguist.
6.2 Where Linguist retains the copyright, unless otherwise agreed in writing, any publication of the translated material shall carry the following statement: "© (English or other) text (Translator’s name) (Year date)" as appropriate to the particular case.
6.3 Where Linguist assigns the copyright to the translated material and the latter is subsequently printed for distribution, the Client shall acknowledge Linguist’s work in the same weight and style of type as used for acknowledgement of the printer and/or others involved in production of the finished document, by the following statement: "(English or other) Translation by (Translator’s name)", as appropriate to the particular case.
6.4 If provided translated material is in any way amended or altered without the written permission of Linguist, s/he shall not be in any way liable for amendments made or their consequences.
6.5 If Linguist retains the copyright in translated material, or if translated material is to be used for legal purposes, no amendment or alteration may be made without Linguist’s written permission. The right of integrity may be specifically waived in advance by Linguist in writing.
7.1 Linguist deems all originals are to be treated as confidential and does not use any cloud services, including no cloud-based machine translation services, which require uploading originals on the cloud for translation.
8. Cancellation and Frustration
8.1 If Services Specifications are agreed and commissioned, and subsequently cancelled, reduced in scope or frustrated by an act or omission on the part of the Client or any Third Party, the Client shall except in the circumstances described in clause 8.4 pay Linguist the full fee unless otherwise agreed in advance.
8.2 The work completed shall be made available to the Client.
8.3 If a Client goes into liquidation (other than voluntary liquidation for the purposes of reconstruction), or has a receiver appointed or becomes insolvent, bankrupt or enters into any arrangement with creditors, Linguist shall have the right to terminate performance of work in progress.
8.4 Neither Linguist nor Client shall be liable to the other or any Third Party for consequences which are the result of circumstances wholly beyond the control of either Party.
8.5 Linguist shall notify the Client as soon as is reasonably practical of any circumstances likely to prejudice Linguist’s ability to comply with the terms of the Client’s order.
9. Complaints and Disputes
9.1 Failure by Linguist to meet agreed Services Specifications or to provide translated material which is fit for its stated purpose shall entitle the Client to:
1) reduce, with Linguist’s consent, the fee payable for work done by a sum equal to the reasonable cost necessary to remedy the deficiencies; and/or
2) cancel any further instalments of work being undertaken by Linguist. Such entitlement shall only apply after Linguist has been given one opportunity to bring the work up to the required standard.
9.2 The entitlement referred to in clause 9.1, shall not apply unless Linguist has been notified in writing of all alleged defects.
9.3 Any complaint in connection with Services Specifications shall be notified to Linguist by the Client (or vice-versa) within one month of the date of delivery of the translated material. If the Parties are unable to resolve the complaint, the matter may be referred by either Party to the Chartered Institute of Arbitrators. Such referral shall be made no later than two months from the date on which the original complaint was made.
9.4 If a dispute cannot be resolved amicably between the Parties, or if either Party refuses to accept arbitration, the Parties shall be subject to the exclusive jurisdiction of the Courts of Belgium. In any event, this Agreement shall be construed in accordance with Belgian law.
10 Responsibility and Liability
10.1 Work per Services Specifications shall be carried out by Linguist using reasonable skill and care and in accordance with the provisions and spirit of the Code of Professional Conduct of the Institute of Translation and Interpreting.
10.2 Time and expense permitting, Linguist shall use his or her reasonable commercial endeavours to do the work to the best of his or her ability, knowledge and belief, and consulting such authorities as are reasonably available to him/her at the time.
10.3 Subject to clause 10.4, a translation shall be fit for its stated purpose and target readership, and the level of quality specified.
10.4 Nothing herein shall be construed as seeking to restrict a Party’s liability for personal injury or death arising from its own negligence.
10.5 Subject to clause 10.4, the liability of Linguist under or in respect of Agreement shall be limited to the cost of the work being undertaken per Services Specifications when the liability arises.
11. Unfair Competition
11.1 Subject to clause 11.2, where Client is an intermediary and introduces Linguist to a Third Party work-provider, Linguist shall not knowingly, for a period of 6 months from return of the last translated material, approach said Third Party for the purpose of soliciting work, nor work for the Third Party in any capacity involving translation, without the Client’s written consent.
11.2 The restrictions in clause 11.1 shall not apply where:
- the Third Party work-provider has had previous dealings with Linguist;
- Linguist acts on the basis of information in the public domain;
- the approach from the Third Party is independent of the relationship with the intermediary;
- the approach to the Third Party arises as the result of advertising;
- the Third Party is seeking suppliers on the open market; or
- the intermediary only makes isolated use of Linguist’s services.
12.1 Each Agreement shall come into effect upon mutual and written acceptance of Services Specifications by the Parties.
12.2 This Agreement should be read in conjunction with the Code of Professional Conduct of the Institute of Translation and Interpreting.