| Pages in topic: [1 2 3] > | Is it advisable to contact the end client in case Thread poster: Gudrun Wolfrath
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the outsourcer (agency) doesn't pay?
I have never done this before and woud like to hear your opinion. Thanks.
Gudrun
| | | | Samuel Murray 
Netherlands
Local time: 17:03
Member (2006)
English to Afrikaans
+ ...
| It is advisable to not | Nov 23, 2012 |
Gudrun Wolfrath wrote:
the outsourcer (agency) doesn't pay?
use the subject line for the first part of the sentence and the body of the post for the second half of it.
With regard to your question, I think that you are within your rights to contact the end-client if you have exhausted the usual payment defaulting procedure and the agency refuses to acknowledge that there is a payment problem or neglects to pay as agreed. What this means in practice is that you can't contact the end-client within less than 2-3 months after payment was due, because that's how long it takes to issue all the warnings of non-payment to the agency.
Contacting the end-client if you have an agreement not to do so is a serious breach of the agreement between the agency and you, and you should only do so when you have exhausted other reasonable avenues of getting the agency to fulfil their part of the agreement.
That's my opinion.
| | | | Gudrun Wolfrath
Germany
Local time: 17:03
English to German
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TOPIC STARTER | Thank you, Samuel, | Nov 23, 2012 |
for your advice.
The subject line, by the way, does show the "main issue".
Gudrun
| | | | | Do not contact the end-client | Nov 23, 2012 |
I think that you have no right to contact the end-client, as you are in no relationship with them. You have done business with the agency and it is not the end-client's problem, if the agency does not pay you.
You can contact the agency, you can contact your lawyer, you can contact debt-collecting agency, but do not expect the end-client to intervene. It is not their problem and they have no responsibility for actions of the agency.
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Phil Hand
China
Local time: 00:03
Chinese to English
| Not sure what good it would do | Nov 23, 2012 |
I don't think I would contact the end client in a case of non-payment.
Firstly, it's not their problem. It's not their fault the agency is dodgy; nor do they have any standing to help you in a court case. I'm not sure what they could do to the agency on your behalf.
Second, it's the sort of thing that could do serious damage to your reputation. It's kind of a nuclear option, and if the agency decides to go nuclear back, you could be in trouble. I wouldn't want any agenc... See more I don't think I would contact the end client in a case of non-payment.
Firstly, it's not their problem. It's not their fault the agency is dodgy; nor do they have any standing to help you in a court case. I'm not sure what they could do to the agency on your behalf.
Second, it's the sort of thing that could do serious damage to your reputation. It's kind of a nuclear option, and if the agency decides to go nuclear back, you could be in trouble. I wouldn't want any agency to think that I have ever breached any kind of NDA - that could be disastrous.
So I don't see how it can really work out well. The only time I've ever considered contacting an end client was when I had worries about the safety of a document that I knew had been translated badly. And even then I didn't - the safety issue was the end client's responsibility, not mine. I do still wonder about that case, though. ▲ Collapse
| | | | Gudrun Wolfrath
Germany
Local time: 17:03
English to German
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TOPIC STARTER | Thank you, Pavel. | Nov 23, 2012 |
The end client will launch the German part of their website sooner or later, in which case they will publish material that still belongs to me as long as I have not been paid.
Tricky.
Gudrun
| | | | | I have never been in such situation, | Nov 23, 2012 |
but lately there were good advises on the forum:
fist of all try to contact different persons in the translation agency (like CEO).
Why not trying to tell them that you WILL inform the end client about the problem (and the firm for collecting the money too).
This what I would try to do before contacting the end client.
| | | | | Question for lawyer | Nov 23, 2012 |
Gudrun Wolfrath wrote:
The end client will launch the German part of their website sooner or later, in which case they will publish material that still belongs to me as long as I have not been paid.
Tricky.
Gudrun
Well, this is question for lawyer. It depends on your contract and on contract between the agency and the end-custormer. Anyway, material breach would be in this case on agency's side. The end-client can (and probably will) successfully defend themselves that they have acted "in good faith". Surely the agency is bound to deliver only work without any outstanding license issues, otherwise they should pay any fees and fines arising from this breach. So if you sue them, it will again end by suing the agency. That is why you should elliminate the middle-man and act directly against the agency.
Do not expect the end-client to pay you instead of agency, and do not expect the end-client to push hard on agency so they pay you. Unfortunatelly, the world does not work this way.
Be quick. Be hard. Be firm. Do not threaten by lawyers and debt-collecting agencies - DO IT. Let the agency know that they have one week to settle this issue before you act, and then really act... It worked for me
[Edited at 2012-11-23 11:03 GMT]
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Gudrun Wolfrath
Germany
Local time: 17:03
English to German
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TOPIC STARTER | Thank you, Phil and Jelena. | Nov 23, 2012 |
There is no NDA in this case, probably because they were in a hurry.
And I contacted my lawyer meanwhile.
Gudrun
| | | | David Wright
Austria
Local time: 17:03
German to English
+ ...
| I would certainly threaten to do so | Nov 23, 2012 |
I have often suggested that one way of getting a reluctant agency to pay is to threaten to contact the client to warn them that they are/may be using matieral in which they have no copyright. Unless you have signed an agreement to the contrary, there is a good case for arguing that you do not transfer copyright in your translation til you get paid, in which case the agency does not hold a copyright that it can transfer to its client. You can in theory bring an action against the client for breac... See more I have often suggested that one way of getting a reluctant agency to pay is to threaten to contact the client to warn them that they are/may be using matieral in which they have no copyright. Unless you have signed an agreement to the contrary, there is a good case for arguing that you do not transfer copyright in your translation til you get paid, in which case the agency does not hold a copyright that it can transfer to its client. You can in theory bring an action against the client for breach of copyright in such a case. The fact that the client has paid the agency is actually irrelevant, since the agency would be in breach of (implied) contract to provide a result free of all third party rights.
Informing the agency that you will do this can be enough to persuade them, They certainly will not want a (possibly regular) client having an action brought against them, and possibly citing the agency as co-defendant.
Hopefully, you won't have to contact the client, but if you do, just warn them that they do not hold copyright and that you are considering taking matters further. This should cause the client to play merry hell with the agency, which again might do the trick. Unfortunately, actually taking the client to court would be expensive (unless you have legal insurance) and quite a risk (there are always lawyers who would argue a different point of view)..
As to "The end-client can (and probably will) successfully defend themselves that they have acted "in good faith" .. good faith is irrelevant in copyright.
[Edited at 2012-11-23 11:18 GMT] ▲ Collapse
| | | | Gudrun Wolfrath
Germany
Local time: 17:03
English to German
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TOPIC STARTER | Thank you very much, David. | Nov 23, 2012 |
Sounds very reasonable to me.
Gudrun
| | | | Samuel Murray
Netherlands
Local time: 17:03
Member (2006)
English to Afrikaans
+ ...
| Nice loophole (I think) | Nov 23, 2012 |
Gudrun Wolfrath wrote:
The end client will launch the German part of their website sooner or later, in which case they will publish material that still belongs to me as long as I have not been paid.
Well, copyright (or the right to use) is not separate from payment. If the translation is not paid for, then whoever commissioned the translation does not have the right to use it [yet]. So I guess you could see this as a loophole in the do-not-contact-end-client principle -- if the end-client uses your translation and you haven't been paid for it, then his use of it is illegal, and then you have the right to contact him about it.
Exact details about your relationship with the agency is still confidential and may not be shared with the end-client, except in as much as it pertains to your copyright claim. So be careful about what you tell the end-client.
I suppose it would be okay to write: "The text used on web site XYZ is a translation that was done by me, which was commissioned by a translation agency. The agreement with that agency was that I would grant permission to use the translation if payment is made for the translation. The agency has not paid for the translation by the due date and has refused to pay the due amount, which means that the agency does not have the right to use the translation or to transfer such a right to your company."
Would that be okay? What is your opinion?
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Gudrun Wolfrath
Germany
Local time: 17:03
English to German
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TOPIC STARTER | Thank you, Samuel. | Nov 23, 2012 |
This sounds very good to me.
I will copy (and paste) it for future use.
Gudrun
| | | | 564354352 (X)
Denmark
Local time: 17:03
Danish to English
+ ...
| No, it is not | Nov 23, 2012 |
In my opinion, your business relationship is with YOUR client, not with the end client, so you have to resolve matters directly with YOUR client. It is not the end client's problem that their supplier is shifty in their dealings with sub-suppliers.
Business can be tough, and at times money will be lost due to unprofessional relationships, but it is your responsibility to resolve your own conflicts.
What good will it do you anyway if you manage to stop the end client fro... See more In my opinion, your business relationship is with YOUR client, not with the end client, so you have to resolve matters directly with YOUR client. It is not the end client's problem that their supplier is shifty in their dealings with sub-suppliers.
Business can be tough, and at times money will be lost due to unprofessional relationships, but it is your responsibility to resolve your own conflicts.
What good will it do you anyway if you manage to stop the end client from using your translation on their website and you still don't get paid? Just a lot of aggravation.
This may be a controversial view, but that's how I see it. ▲ Collapse
| | | | Vladimír Hoffman
Slovakia
Local time: 17:03
Member (2009)
English to Slovak
+ ...
| What if an agency claims that it can't pay, because | Nov 23, 2012 |
end client failed to pay to it?
Does not the end client deserves to be informed about such asserions (which, if false, spoils its reputation)? Moreover, the end client also deserves to know if the agency has long-term payment problems as it could affect quality or even delivery of translations it orders from the agency.
In my opinion, if an agency refuses to pay all mutual obligations are void and nullified.
Phil Hand wrote:
I don't think I would contact the end client in a case of non-payment.
Firstly, it's not their problem. It's not their fault the agency is dodgy; nor do they have any standing to help you in a court case. I'm not sure what they could do to the agency on your behalf.
Second, it's the sort of thing that could do serious damage to your reputation. It's kind of a nuclear option, and if the agency decides to go nuclear back, you could be in trouble. I wouldn't want any agency to think that I have ever breached any kind of NDA - that could be disastrous.
So I don't see how it can really work out well. The only time I've ever considered contacting an end client was when I had worries about the safety of a document that I knew had been translated badly. And even then I didn't - the safety issue was the end client's responsibility, not mine. I do still wonder about that case, though.
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