Frame Work contracts - non competition Thread poster: Joseann Freyer-Lindner
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Hello, I have been approached by different companies about participating in a tender. I wanted to ask, whether these conditions are common practice?
"The subcontractor will abstain from executing any interpreting, translation, proofreading, editing jobs or any activity included in the xxx company purpose or the services that it offers to customers
of the xxxx company...or to take part in invitations to tender organised by current or potential customers with which he or she may... See more Hello, I have been approached by different companies about participating in a tender. I wanted to ask, whether these conditions are common practice?
"The subcontractor will abstain from executing any interpreting, translation, proofreading, editing jobs or any activity included in the xxx company purpose or the services that it offers to customers
of the xxxx company...or to take part in invitations to tender organised by current or potential customers with which he or she may have had contact through xxx company."
I can understand "current customers", but "potential" customers? How do I know?
Also:
"The non-competition agreement shall be binding during the term of this Framework Agreement and for two years after termination thereof for any cause, and is equally applicable when the work is done through another company or group other than xxxxx."
2 Years?
At the same time it says: " The conclusion of this Framework Agreement between the Parties does not imply that xxxx is obligated to provide projects to the Subcontractor during the term of this agreement".
I feel inclined to decline. Any wise suggestions from more experienced translators?
Thank you. Joseann ▲ Collapse
| | | | Tom in London
United Kingdom
Local time: 05:56
Member (2008)
Italian to English
Yo'll be doing the right thing if you walk away.
[Edited at 2015-04-29 19:02 GMT]
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Hi, Tom, thanks for the reassurance. Saves me a lot of reading of legal text, even though it might build my vocabulary . BR Joseann
| | | | Sheila Wilson 
Spain
Local time: 05:56
Member (2007)
English
+ ...
| You can't walk away from every non-compete clause :) | Apr 29, 2015 |
It seems perfectly normal to me in most respects - mind you, I'm not a lawyer.
The "potential" just refers to customers who pop up in the future. The only change I'd make is an addition: "may knowingly/consciously... have had contact". After all, we don't always know who the end client is, even if we have our suspicions.
The two year period will start from the last time you have any dealings with them (i.e. when they last paid an invoice, perhaps when they last ordered ... See more It seems perfectly normal to me in most respects - mind you, I'm not a lawyer.
The "potential" just refers to customers who pop up in the future. The only change I'd make is an addition: "may knowingly/consciously... have had contact". After all, we don't always know who the end client is, even if we have our suspicions.
The two year period will start from the last time you have any dealings with them (i.e. when they last paid an invoice, perhaps when they last ordered a translation (open to debate)), even if there was never an official end to the collaboration.
[Edited at 2015-04-29 22:40 GMT] ▲ Collapse
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Phil Hand
China
Local time: 12:56
Chinese to English
| I always ask for changes to clauses of this type | Apr 30, 2015 |
I've done a little work recently for an agency which sent an agreement with a similar clause. Fortunately, they just sent it as part of their PO, and never actually asked me to sign it, but I raised the issue with them anyway.
I think the idea is that it's meant to stop us both stealing the end client ourselves and stealing it through the proxy of another agency. Reasonable enough, but as Joseann says, often we wouldn't know whether a document is for a particular end client or not.... See more I've done a little work recently for an agency which sent an agreement with a similar clause. Fortunately, they just sent it as part of their PO, and never actually asked me to sign it, but I raised the issue with them anyway.
I think the idea is that it's meant to stop us both stealing the end client ourselves and stealing it through the proxy of another agency. Reasonable enough, but as Joseann says, often we wouldn't know whether a document is for a particular end client or not.
As I say, I always flag it up to agencies, but if push comes to shove, I would still sign an agreement with this clause in, and then cheerfully break it if another agency happened to give me docs from the same client. The original agency would never know, would they? ▲ Collapse
| | | | David Wright
Austria
Local time: 06:56
German to English
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The imposition of two years after termination is probably unenforceable in law. Most European countries are pretty strict on restraint of trade clauses and given that you are an individual, not a company, and what could be described as the partner of "less influence" who is probably not in a position to bargain (this is not a deal between two equal partners, but rather a take it or leave it situation), I can't see a court upholding it in the event of a claim.
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Joseann F-L wrote:
Hello, I have been approached by different companies about participating in a tender. I wanted to ask, whether these conditions are common practice?
Yes.
"The subcontractor will abstain from executing any interpreting, translation, proofreading, editing jobs or any activity included in the xxx company purpose or the services that it offers to customers
of the xxxx company...or to take part in invitations to tender organised by current or potential customers with which he or she may have had contact through xxx company."
I can understand "current customers", but "potential" customers? How do I know?
Sounds a bit non-native to either English or legalese. 'Potential' can mean future clients, which by definition means potential. However, potential clients can also mean prospective clients targeted by the company now or in the future, and that would basically make you concede by default whenever you and that agency are eyeing up the same target, which means subordination of your interests to the agency's.
... Which would be okay for major suppliers of work but obviously not for every freaking last translation agency that wants something from you. Unfortunately, many have not yet learned this.
"The non-competition agreement shall be binding during the term of this Framework Agreement and for two years after termination thereof for any cause, and is equally applicable when the work is done through another company or group other than xxxxx."
Run away. The standard consensus is that translators shouldn't be poaching on agencies' clients by direct solicitation, but accepting jobs offered by other agencies for the same end client is okay. Besides, sometimes you can't even tell who the end client is. The provision you quoted — when viewed in the light of due diligence — could be interpreted as imposing on you an obligation to actually make sure that accidental violations of that clause aren't taking place, i.e. that none of the end clients you work for elsewhere are clients of that agency. Which is ridiculous.
2 Years?
Standard period.
At the same time it says: " The conclusion of this Framework Agreement between the Parties does not imply that xxxx is obligated to provide projects to the Subcontractor during the term of this agreement".
Yes, of course, a one-sided agreement. They don't even need to provide work for you but still get to exclude you from certain clients. Normally, non-competition should actually entail proportional additional compensation, it's not enough to simply offer work and require non-competition as a condition of giving that work. Here, they go even farther and avoid any obligation for themselves while imposing every obligation on you.
I feel inclined to decline. Any wise suggestions from more experienced translators?
Unless that crap somehow happens to be legal in the jurisdiction for which it was intended, tell their lawyer to read up on competition law or look for a different career.
| | | | | non-competition | Apr 30, 2015 |
Hi everybody,
thank you so much for taking the time to answer to my question.
@ Sheila: of course I can not run away from non-competition clauses completely. I guess I just wanted to know what is "good and acceptable" practice from the translators point of view and which is not.
@Thanks Lukasz, your post gave valuable insights into the business side. I will probably not sign it or, @Phil, think about whether I will ask for changes.
I am wondering: is ther... See more Hi everybody,
thank you so much for taking the time to answer to my question.
@ Sheila: of course I can not run away from non-competition clauses completely. I guess I just wanted to know what is "good and acceptable" practice from the translators point of view and which is not.
@Thanks Lukasz, your post gave valuable insights into the business side. I will probably not sign it or, @Phil, think about whether I will ask for changes.
I am wondering: is there an article on ProZ about the intricacies of the contract-business side of translating and if not, might it be a good addition to Wiki?
Thanks and have a nice weekend or 1st of May celebration. ▲ Collapse
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