| Pages in topic: < [1 2 3] > | NDA with a non-compete clause: 30,000 euro indemnity Thread poster: toasty
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William Tierney 
United States
Local time: 10:19
Member (2002)
Arabic to English
| Toasty with the Red Pen | Oct 29, 2018 |
Dear Toasty,
Whether you want to work with an agency that imposes punitive damages is up to you, but in general, I cross out any no-compete clause and put "Article 26 of the ITI Model General Terms of Busines applies." This is a very well-thought-out compromise between the interests o... See more Dear Toasty,
Whether you want to work with an agency that imposes punitive damages is up to you, but in general, I cross out any no-compete clause and put "Article 26 of the ITI Model General Terms of Busines applies." This is a very well-thought-out compromise between the interests of the agency and those of the translator. https://www.iti.org.uk/attachments/article/155/19FH_model_terms_translator.pdf
I do not allow ANY indemnity statements in contracts with agencies. The agency's job is to perform due diligence on choosing a translator. These clauses allow the agency to be slipshod in choosing a translator. As they say, it privatizes the profit and socializes the loss. Also, you have no control over the translation once it leaves your hands.
I quietly line out these and any other offending phrases and send it back, no commentary necessary. Occasionally, especially for large companies that threat their translators like serfs, they come back and say no negotiation is possible. No self-respecting translator should work with such a company. In the vast majority of cases, the agency takes my changes and we all move along happily. Remember, they need you just as badly as you need them. ▲ Collapse
| | | | toasty
Italy
Local time: 16:19
Member (2013)
Italian to English
TOPIC STARTER | Invaluable advice | Oct 29, 2018 |
Invaluable advice William. I will refer to the recommended terms from now on!
I've emailed the agency with my red pen changes and they said that's fine. That was much easier than expected, thank goodness.
| | | | Daniel Frisano
Italy
Local time: 16:19
Member (2008)
English to Italian
+ ...
Tell them that you take your commitments very seriously and that in order to comply with this clause you need the agency to provide:
1) A complete list of their clients, to be updated weekly, so you know which entities not to contact.
2) Since you are also prohibited from INDIRECT contact, for each of their clients the agency will need to obtain a complete list of all entities that contacted that end client for sales purposes, again to be updated weekly.
Pe... See more Tell them that you take your commitments very seriously and that in order to comply with this clause you need the agency to provide:
1) A complete list of their clients, to be updated weekly, so you know which entities not to contact.
2) Since you are also prohibited from INDIRECT contact, for each of their clients the agency will need to obtain a complete list of all entities that contacted that end client for sales purposes, again to be updated weekly.
Perhaps this will make them think about the actual meaning of what they are trying to enforce. ▲ Collapse
| | | | Jo Macdonald
Spain
Local time: 16:19
Italian to English
+ ...
| Abusive NDAs | Oct 29, 2018 |
More and more agencies are including this type of clause in their NDA.
I wouldn't sign that contract and imo such a clause has nothing to do with the purpose of an NDA.
I reckon laws will be passed to limit this abusive use of NDAs, which in principle and when used fairly are a good thing. Pretty sure I read something along the lines of legislation being passed to make lawyers accountable for NDAs that deny people their civil rights, in sexual abuse cases in particular.
... See more More and more agencies are including this type of clause in their NDA.
I wouldn't sign that contract and imo such a clause has nothing to do with the purpose of an NDA.
I reckon laws will be passed to limit this abusive use of NDAs, which in principle and when used fairly are a good thing. Pretty sure I read something along the lines of legislation being passed to make lawyers accountable for NDAs that deny people their civil rights, in sexual abuse cases in particular.
If a lawyer can lose their license for trying to get someone to sign away their civil rights they'll start thinking seriously about the abuse they're writing into NDAs and other contracts.
Until then it’s just a case of some agencies not caring whether they work in a fair relationship with a professional translator or not, and preferring to have a way to make a killing off people who don’t read contracts or care about their rights.
[Edited at 2018-10-29 15:32 GMT] ▲ Collapse
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Samuel Murray
Netherlands
Local time: 16:19
Member (2006)
English to Afrikaans
+ ...
toasty wrote: Samuel Murray wrote:
The agency is saying that they will pay for all amounts above €30 000 themselves, which is very kind of them, but it's still too much. Well... not really. They are saying even if the damages are only €5 000 that I still have to pay €30 000... it's a simple penalty for the breach of the clause, not a compensation for damages.
Well, as Tom said, their English is terrible, so maybe you're right and they do mean "penalty" even though they say "indemnity".
In the normal English usage, indemnification is not a penalty. Indemnification is a promise to pay another person's debt, particularly if the debt is the result of some kind of loss suffered. Most indemnifications are unlimited, i.e. you promise to pay all debt, no matter how high the amount. But sometimes indemnity is limited to a certain amount (e.g. €30 000), a certain time (e.g. ten years), etc.
The problem with most indemnification clauses is that you can be held liable for payment even if you didn't break the agreement.
The curious thing about the contract in this case is the you do not indemnify them yet -- you only indemnify them as soon as you break the agreement, which is a silly way of putting it. I wonder what they think that they mean by it. Perhaps English is simply not their thing.
[Edited at 2018-10-29 15:29 GMT]
| | | | William Tierney
United States
Local time: 10:19
Member (2002)
Arabic to English
| Time to Buck Up | Oct 29, 2018 |
toasty wrote:
Invaluable advice William. I will refer to the recommended terms from now on!
I've emailed the agency with my red pen changes and they said that's fine. That was much easier than expected, thank goodness.
I am very happy that this worked out for you - another win for our side.
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I would not work for any agency that cares so little about the quality of the language used in their own contractual documentation. Quite apart from the legality of the clause, the English has not been written or proofread by a native speaker of English and/or familiar with fairly basic legalese.
It is highly likely that it would stand up in court, but can you imagine the hassle with this bunch? Not the type of client anyone needs.
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I don't know if this is the case in the US, but in the UK, basic contract law provides that if you modify a contract and return it to the other party, unless the other party signs and returns the modified version, then the contract is not agreed to on those terms.
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William Tierney
United States
Local time: 10:19
Member (2002)
Arabic to English
| How it really works | Oct 29, 2018 |
Nikki Scott-Despaigne wrote:
I don't know if this is the case in the US, but in the UK, basic contract law provides that if you modify a contract and return it to the other party, unless the other party signs and returns the modified version, then the contract is not agreed to on those terms.
It normally happens that the agency just sends me the job and they don't have anything that says I acquiesce to their terms. Over fifteen years and none of this has been an issue, for what it's worth.
| | | | William Tierney
United States
Local time: 10:19
Member (2002)
Arabic to English
Steffen Walter wrote:
This non-compete clause is completely unreasonable because the outsourcer is trying to impose a business restriction on you for three years after the end of any contractual dealings with them, so it needs to be either deleted or substantially reworded. On a related note, the AEPD mentioned in the provision seems to point to a Spanish outsourcer.
[Edited at 2018-10-29 09:38 GMT]
AEPD points to Spain, you say.
High grades on the blue board, you say.
I have been contacted a number of times by an agency in Madrid starts with "S."
Very low rates - no thank you.
They won the contract for WIPO.
A client asked me to translate a law. I let them know it was freely available at WIPO.
They said "We know. When can you get it back to us?"
| | | | Samuel Murray
Netherlands
Local time: 16:19
Member (2006)
English to Afrikaans
+ ...
Nikki Scott-Despaigne wrote:
In the UK, basic contract law provides that if you modify a contract and return it to the other party, [and the other party does not sign and return] the modified version, the contract is not agreed to on those terms.
I suspect it's the same in most places, but: if you did not sign the original version either, and the agency still sends you work, then it means that they accept your service on common principles, which is often the best kind of agreement.
| | | | Eliza Hall
United States
Local time: 10:19
French to English
+ ...
| We should boycott such terms | Oct 31, 2018 |
Steffen Walter wrote:
I would even go so far as to say that any non-compete period in excess of your contractual relationship with the outsourcer might be considered unreasonable for a freelancer as opposed to a salaried employee.
This, a hundred times over. I'm a lawyer and I've worked on noncompete cases (both sides, but usually enforcing them). Some jurisdictions won't even enforce them at all (California, for instance -- home to 1/9 of the US population and most of its tech companies), and I find it completely outrageous to ask freelancers to sign them, since the very definition of a freelancer is that they have other clients.
It's simple: if you're a translation agency, then BY DEFINITION a freelance translator is in competition with you for at least some of your business (the part of your business that includes that translator's language pair(s)). If you want the translator to "belong" exclusively to you, and not to be out there in the market looking for the same work you're looking for, then hire them as an employee, with full-time pay and benefits.
Now, nondisclosure clauses make perfect sense regardless of whether the translator is freelance. Of course we shouldn't be revealing confidential business information to outsiders. And noncompete clauses that prohibit unfair competition, such as clauses under which the freelancer agrees not to poach the client's customers or employees for a brief period of time, also make sense. In other words, agreeing that for a period of X months (not years) after working on a translation for XYZ customer, you will not directly communicate with that customer to solicit business from them... and for that same short period of time, you will not attempt to lure your client's employees away to form your own business concern with them... that might make sense.
But this noncompete is absolutely outrageous. It's much too long (3-6 months might make sense but certainly not three years). It's much too broad ("indirectly," that's ridiculous). And 30,000 Euros, are they INSANE?!
We should all boycott this. If any of us get a contract from this company, we should request that provision be deleted, and decline the job if they won't delete it. That's the best way to teach them that it's unacceptable.
[Edited at 2018-10-31 08:53 GMT]
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What's always bothered me about non-compete clauses in this world of NDAs is how they could possibly prove it if you transgress.
| | | | Eliza Hall
United States
Local time: 10:19
French to English
+ ...
| Easy to prove breach | Nov 1, 2018 |
Chris S wrote:
What's always bothered me about non-compete clauses in this world of NDAs is how they could possibly prove it if you transgress.
It's not hard to prove you breached a noncompete. Any source of information showing that you worked for a competitor, poached a customer or lured away an employee during the covered time period can work as evidence. But the main use of noncompetes is not taking people to court for damages -- it's persuading them to stop, or persuading the third parties involved with them (poached customers or employees) to stop being involved with them, by merely threatening a lawsuit.
And that's why overbroad noncompetes are so dangerous. 98% of freelancers and their customers do NOT want to invest the money to fight such a lawsuit, even if they had that much money to spare, which they often don't. So the typical way it works is: A employee signs a noncompete with B company; A then goes to work for C, a competitor of B; B sends C a letter saying that A is subject to a noncompete that would be violated if A works for C; and therefore C fires A in order to avoid being sued for interfering with A's noncompete.
The broader your noncompete, the more likely B is to send a letter to C in the above example, and the more likely C is to take it seriously and fire A as a result. If it's narrower -- if C can see right off the bat that the noncompete ended last month, for instance, or doesn't cover the geographic location where C is -- the harder it is for B to abuse it.
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Eliza Hall wrote:
It's not hard to prove you breached a noncompete. Any source of information showing that you worked for a competitor...
Not in the freelance world, surely?
How could an agency know for certain that I’m working directly for their customer? They might have their suspicions, but neither I nor the customer would exactly be shouting about it. So how could they prove it?
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