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Agencies' NDAs and "Terms and Conditions"
Thread poster: Jrome
Jrome
Jrome
France
Local time: 21:08
English to French
Dec 13, 2020

Hey there, everyone!

I've recently succeeded in a translation test for an agency, and they want me to sign their NDA and "Terms and Conditions". I've signed a few NDAs in the past when working with direct clients, they were relatively direct and straightforward, but I'm not sure about these ones. I'm not too good at reading contracts and Terms, admittedly, and the mentions of "at the Service Provider's expenses", and of my "potential liabilities" in general, are a little too frequen
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Hey there, everyone!

I've recently succeeded in a translation test for an agency, and they want me to sign their NDA and "Terms and Conditions". I've signed a few NDAs in the past when working with direct clients, they were relatively direct and straightforward, but I'm not sure about these ones. I'm not too good at reading contracts and Terms, admittedly, and the mentions of "at the Service Provider's expenses", and of my "potential liabilities" in general, are a little too frequent for my liking. Not that I intend to breach anything, but it's written in what I'd personaly consider to be typical "legalese", and I don't want them getting back at me with ludicrous liabilities for breaches of clauses I didn't understand in the first place.

That, and the way I understand it, I'm apparently forbidden to work directly with their clients even after the end of our contract, with no time limitation, unless they explicitely tell me I can in writing. But again, I might be misinterpreting it. They also have a section on Data Privacy in which they apparently expect me to do a lot of record keeping, I think, and autorizing audits in my work place, which is my house. Not sure I'm comfortable with that. All in all, it's a complicated mess, to me at least, going for 27 pages.

I suppose I can't share the documents in question, I'm not even sure I can say the name of the agency in case anyone has encountered them in the past, and I've seen some topics in which it was advised to only sign the parts I agreed with, but the whole thing seems pretty shady to me. It's pretty hard agreeing on anything when I have trouble understanding the content. That being said, pretty much anything seems shady to me, especially when it comes to contracts, so I've no real way to tell the difference between what's actually abusive and what's just me being paranoid. Does anyone have a good and fairly comprehensive resource regarding contracts and NDAs, so that I could at least have a decent idea of what I'm actually getting into?

Thanks in advance for your answers!

[Edited at 2020-12-13 18:34 GMT]

[Edited at 2020-12-13 18:36 GMT]
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Said AGANI
 
Maria Teresa Borges de Almeida
Maria Teresa Borges de Almeida  Identity Verified
Portugal
Local time: 20:08
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@Julien Dec 13, 2020

Maybe I can help you, but let’s first establish some basis:

1. I’ve been around for a while (36 years as a professional translator + a few years more doing something else) so I’ve seen a lot of NDAs and the like mostly in this last decade; when I started translating full-time in 1985 everything was based on good faith and I’ve been working with my long-standing customers without any NDA to sign or form to fill out. Different times…
2. I don’t work the same languag
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Maybe I can help you, but let’s first establish some basis:

1. I’ve been around for a while (36 years as a professional translator + a few years more doing something else) so I’ve seen a lot of NDAs and the like mostly in this last decade; when I started translating full-time in 1985 everything was based on good faith and I’ve been working with my long-standing customers without any NDA to sign or form to fill out. Different times…
2. I don’t work the same language combination as you, I have been fortunate enough to have built a solid client’s base and I’m not looking for new clients (nevertheless if a potential client contacts me directly I often say yes).

This being said, if you want to email me ([email protected]) your NDA I’ll have a look at it and I’ll tell you what I think. I may be wrong but I’m under the impression that most of these NDAs are written by lawyers who don’t know much about translation…
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Christopher Schröder
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Sadek_A
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Let's put it in a simple example Dec 13, 2020

Let's say a POORLY-PAID tile worker signed a similar contract with a construction company where none of the hourly fee, allocated working hours per day/week/month, paid sick leave, paid annual vacation, etc., are mentioned! And, with the whole contract going in just one direction, in favor of the construction company!

Do you think any judge with integrity would enable that construction company to keep that worker from earning a living by doing the only thing he/she knows which is ti
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Let's say a POORLY-PAID tile worker signed a similar contract with a construction company where none of the hourly fee, allocated working hours per day/week/month, paid sick leave, paid annual vacation, etc., are mentioned! And, with the whole contract going in just one direction, in favor of the construction company!

Do you think any judge with integrity would enable that construction company to keep that worker from earning a living by doing the only thing he/she knows which is tiling, for whomever client, after that worker severed ties with that company?

There is a saying that translates into "what could the wind pick from a tile?". Dust at best; that's the unspoken completion of the saying!

On the other hand, if that person was, say, a project manager getting $350K+ a year and entrusted with the company's portfolios, then the situation would become different, but there would still be several ways out for that person depending on the case.

And, worth noting that a company trying to destroy a freelancer is in for a wild PR ride.

So, they would be told to kiss the ROUND ONE.


https://www.fitzgeraldhr.co.uk/zero-hours-contracts/

zero hours contracts are where an employer is under no obligation to offer casual staff work and can call them to work such hours as required by their business needs

any terms in contracts of employment that seek to prohibit workers on zero hours terms from carrying out work for another employer are UNENFORCEABLE


https://www.citizensadvice.org.uk/work/leaving-a-job/resigning/if-your-employer-says-you-cant-work-for-a-competitor/

If your employer wants you to follow the restriction but you ignore it, they can only stop you taking a new job by taking you to court. This might sound worrying, but it’s time-consuming and can be expensive, so they might not do it - especially if the restriction is TOO WIDE.
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Kevin Fulton
Kevin Fulton  Identity Verified
United States
Local time: 16:08
German to English
Abusive NDAs Dec 13, 2020

Nothing, apart from confidentiality, should be stipulated in perpetuity.

It stands to reason that an agency should expect you not to poach the end client for a certain amount of time after terminating the relationship with that agency, but a permanent prohibition is ridiculous. (Personally, I'm too lazy to steal a client).

Data retention is often subject to national regulations which have precedence over the whims and desires of the client.

The translator
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Nothing, apart from confidentiality, should be stipulated in perpetuity.

It stands to reason that an agency should expect you not to poach the end client for a certain amount of time after terminating the relationship with that agency, but a permanent prohibition is ridiculous. (Personally, I'm too lazy to steal a client).

Data retention is often subject to national regulations which have precedence over the whims and desires of the client.

The translator's liability should be limited to the cost of preparation of the translation; any agreement shifting total liability to the translator is nonsense and shouldn't be signed.

A reasonable NDA shouldn't be more than a few pages in length (allowing for the usual legal excess verbiage – attorneys like to show that they've earned their outrageous fees).

Like Teresa Borges, I've been at this for a while, and when I started out most business was done with a handshake – or its verbal equivalent.
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Christopher Schröder
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Christopher Schröder
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There’s advice and then there’s reality Dec 14, 2020

For the most part, these agreements aim to stop you doing things you wouldn’t do anyway, and would never be enforced even if you did. So there is a case for just not worrying about it.

P.L.F. Persio
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Kay Denney
Kay Denney  Identity Verified
France
Local time: 21:08
French to English
. Dec 14, 2020

As per never working with their clients even when they are no longer their clients:
Sometimes I'm not even sure who the agency's end client is, making a true mockery of that clause. If you are to enforce this correctly, you'll need them to send you the full, updated list of all companies that have ever worked with them in the past, present and, of course, future, including past, present and, of course, future staff members. With full contact details so you can call and check otherwise how
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As per never working with their clients even when they are no longer their clients:
Sometimes I'm not even sure who the agency's end client is, making a true mockery of that clause. If you are to enforce this correctly, you'll need them to send you the full, updated list of all companies that have ever worked with them in the past, present and, of course, future, including past, present and, of course, future staff members. With full contact details so you can call and check otherwise how can you be sure?

As per audits:
Auditing your computer would violate any other NDAs you might have in place. You'd have to contact the agencies you have NDAs with, and ask for permission to let this new agency audit your equipment. They would probably only agree to this if you allow them to audit your equipment too (which would mean they would have access to the new agency's files).

Good luck with all that!

Otherwise, just cross out or delete whatever clauses you're not sure of and sign it like that. You should point out that you've deleted certain parts when sending the signed document back to them.
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Tom in London
Tom in London
United Kingdom
Local time: 20:08
Member (2008)
Italian to English
It can't happen here Dec 14, 2020

Chris S wrote:

So there is a case for just not worrying about it.


Of course there is. Just as there is a case for assuming that the tax authorities will never come to check your accounts, or that you will never be run over by a bus. It just isn't going to happen. Or is it?

Personally I would never sign an NDA like that. Worst of all, it creates a climate of mistrust and suspicion right at the outset by imposing this requirement on the translator - which is no basis for a proficuous long-term working relationship. And in any case, Julien, they probably won't ever send you any work anyway.

[Edited at 2020-12-14 14:41 GMT]


Christopher Schröder
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Christopher Schröder
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Reality again Dec 14, 2020

The reality with the largest agencies is that you either click “accept” to agree to their terms or you don’t get to work for them at all. They’re not open to negotiation.

Of course, you can say no. But tens of thousands of others have already said yes and are working with these agencies quite fruitfully, and my experience suggests that a high proportion of these translators consistently deliver substandard work, so the bar for getting sued is clearly sky-high.

B
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The reality with the largest agencies is that you either click “accept” to agree to their terms or you don’t get to work for them at all. They’re not open to negotiation.

Of course, you can say no. But tens of thousands of others have already said yes and are working with these agencies quite fruitfully, and my experience suggests that a high proportion of these translators consistently deliver substandard work, so the bar for getting sued is clearly sky-high.

Bear in mind, too, that a lot of this legalese is just box ticking to keep the end-client happy. Don’t get me started on all the hoops drug-related stuff has to go through (unless there’s a pandemic on).

Have you ever read the full T&C for using software or your phone or doing pretty much anything in life? Taken at face value it’s scary stuff. But would or could they enforce any of it?

It’s just a risk assessment at the end of the day. At some point the benefits will outweigh the risks. Where you draw that line is individual.
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Dan Lucas
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United Kingdom
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That depends. On what? That too depends. Dec 14, 2020

Chris S wrote:
Have you ever read the full T&C for using software or your phone or doing pretty much anything in life? Taken at face value it’s scary stuff. But would or could they enforce any of it?

Not all clauses are equal. I'm not worried about restraint-of-trade clauses beyond a few months - no UK court would uphold them. I would certainly be worried about ceding authorisation in advance for remote audits, given that (in the absence of any qualifying conditions, and as you note these large LSPs seldom "do" negotiation) it would allow them to see pretty much anything in my files or systems.

That would in itself break a bunch of NDAs that I have already signed, and which mandate that I do not disclose to others the names of my clients or the material I use in translations. I had to stop working for one end client because they wanted the freedom to root around in my hard disks to check for "inappropriate software".

How could I not have notified my other clients before/after an event like that?
How would those clients - who are no less security-conscious than the client demanding the right to audit my systems - have responded?

At some point the benefits will outweigh the risks. Where you draw that line is individual.

Oh, I agree, but everybody's blasé about their house burning down until their house burns down. And by then it's too late.

Dan


Christopher Schröder
Kuochoe Nikoi-Kotei
 
Tom in London
Tom in London
United Kingdom
Local time: 20:08
Member (2008)
Italian to English
Fire Dec 14, 2020

Dan Lucas wrote:

...everybody's blasé about their house burning down until their house burns down. And by then it's too late.

Dan


Exactly. A few years ago some idiot threw a firework into the outside basement area of the home of some neighbours of mine, who live just along the street. They were away on holiday at the time, so nobody saw the firework. Until it was too late.

Two teams of London Fire Brigade, one working from the front and one from the back, were there all night fighting the fire. The house was completely burned out, leaving only the walls standing. The family lost all their belongings including a collection of rare books.

It had never crossed their mind that something like this could happen.

I imagine most people who have suffered disasters always thought it could never happen to them.




[Edited at 2020-12-14 16:28 GMT]


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Deleted Dec 14, 2020

Deleted



[Edited at 2020-12-14 17:02 GMT]

[Edited at 2020-12-14 17:03 GMT]

[Edited at 2020-12-14 17:33 GMT]

[Edited at 2020-12-14 18:05 GMT]


Christopher Schröder
Wilsonn Perez Reyes
 
Christopher Schröder
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United Kingdom
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Fire safety Dec 14, 2020

OK, so I’ve cancelled my holiday, but what if someone burns down the house when I go shopping?

Bearing in mind that, as previously established, I live next door to Tom Jones.

Where do I draw the line?


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Jrome
Jrome
France
Local time: 21:08
English to French
TOPIC STARTER
Thanks a lot! Dec 14, 2020

Thanks a lot for your answers, everyone! I've taken another look at the documents, reading them as thoroughly as I could, and highlighted a few points which seemed a bit strange or vague to me. I'll post them there, and maybe you could give me your opinion about them? I haven't read anything in there that prevented me from sharing their content, I think, so that should be fine. Back in a bit!

EDIT: Okay, so far here's what I noted:

- They want me to be insured at all ti
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Thanks a lot for your answers, everyone! I've taken another look at the documents, reading them as thoroughly as I could, and highlighted a few points which seemed a bit strange or vague to me. I'll post them there, and maybe you could give me your opinion about them? I haven't read anything in there that prevented me from sharing their content, I think, so that should be fine. Back in a bit!

EDIT: Okay, so far here's what I noted:

- They want me to be insured at all time. They specifically mention public liability insurance and professional indemnity insurance. Is that standard? Sounds a bit intimidating to me.

- They want me to ensure all electronic confidential data is properly deleted after it's not needed anymore, and to destroy the media storage if I can't ensure it's not accessible. I doubt I'll ever be in a situation where I can't erase files from my computer, but I'm a bit squeamish on principle at the idea of giving anyone the right to have my computer destroyed.

- In case of termination, they want me to remove all traces of confidential information (okay, sure), which apparently include business contacts in my professional and social networks (Really?).

There'll be more later, it's getting a bit late here. But again, thanks everyone for your answers!

[Edited at 2020-12-14 20:59 GMT]
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Christopher Schröder
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Matthias Brombach
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Ask them ... Dec 15, 2020

Julp wrote:

- They want me to be insured at all time. They specifically mention public liability insurance and professional indemnity insurance. Is that standard?


... why they aren´t covered by those insurances: Mostly they are anyway (I once asked, because I dared to wonder why I should have to pay these costs on their behalves), but they do not want to make use of it in an event of damage, because they apparently may have chosen the cheapest insurance version with the highest copayment, to save insurance charges.

[Bearbeitet am 2020-12-15 09:23 GMT]


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Matthias Brombach
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Rule of thumb: Dec 15, 2020

Tom in London wrote:

And in any case, Julien, they probably won't ever send you any work anyway.


The more forms you have to sign, the less the chance they'll send you work. Mostly accompanied by low rates and by starting their emails with "Greetings!" and ending it with "Have a nice day!".


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Agencies' NDAs and "Terms and Conditions"







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