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contractual clause - does this sound ok to you?
Thread poster: Elvira Stoianov

Elvira Stoianov  Identity Verified
Luxembourg
Local time: 23:02
German to Romanian
+ ...
Jan 31, 2005

The provider [i.e. translator] agrees that, under no circumstances, shall he/she ever
contact X's customers directly for any purposes whatsoever, and that
he/she will address all queries or concerns to the appropriate Projects
Managers at X as well as not to compete with X.

Well, the first part sounds ok, but I am not sure about the "as well as not to compete with X".

It sounds normal that you should not contact the agency's customers. However, it seems to me that the last part is written in a way that does not allow you to compete with X any under circumstances, not just where their customers are concenrned. Maybe I just don't master the English language well enough to understand the nuances. BUT, if it can be read as I see it (never compete with X), I would practically be signing my way out of business.
I am not very good at explaining myself, but I hopw somebody understands where my concern lies. Can I sign this? Thanks for all your input.


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Ralf Lemster  Identity Verified
Germany
Local time: 23:02
English to German
+ ...
No, it doesn't... Jan 31, 2005

Hi Eli,
However, it seems to me that the last part is written in a way that does not allow you to compete with X any under circumstances, not just where their customers are concenrned.

Exactly - this appears to be badly drafted, or deliberately vague (not sure which one would be worse).

Maybe I just don't master the English language well enough to understand the nuances. BUT, if it can be read as I see it (never compete with X), I would practically be signing my way out of business.

Precisely. Taken literally, you would need to ask "X" every time you're taking on a new customer - taking this to an extreme, you might have to terminate an existing relationship if "X" decided to have a go...

I wouldn't sign this unless the concept of 'competition' was described in detail.

HTH, Ralf


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xxxAdrian MM.
Local time: 23:02
French to English
+ ...
Ask to redraft or consult a lawyer Jan 31, 2005

I agree with Ralf.

Find out, first, if the agency/client is willing to renegotiate. Second, if not and it's 'take it or leave it' - you can leave it. Third, if negotiable, rewrite on these lines or instruct a lawyer to - expenses payable by the client!

*as well as not #knowingly# to compete with X on #any project it becomes aware that the translator is also soliciting or tendering for - in which event it is to compensate the translator within 4 weeks for the FULL value of the lost job, project or contract#.

That will teach them to slap on an unlawful restraint of trade!

[Edited at 2005-02-01 15:04]


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Elvira Stoianov  Identity Verified
Luxembourg
Local time: 23:02
German to Romanian
+ ...
TOPIC STARTER
Thank you both for your input Jan 31, 2005

The problem is I have already asked the customer about this before posting here, but my contact somehow started explaining the first part, even though I told them I was worried about the second part. Now I have written an email explicitly asking them to remove that last part.

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María Eugenia García
Local time: 19:02
English to Spanish
+ ...
Too vague Jan 31, 2005

Hi,

I am a translator and also an attorney-at-law and would not sign that clause. It is obscure. You may refraft it and send you suggestion to the client or tell them about your concerns and suggest that they should redraft it.

Eugenia


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Laura Vinti  Identity Verified
United States
Local time: 17:02
German to Italian
+ ...
I don't like the first part either Feb 1, 2005

Elvira Stoianov wrote:

The provider [i.e. translator] agrees that, under no circumstances, shall he/she ever
contact X's customers directly for any purposes whatsoever...


Wouldn't this mean that, even several years after you are finished working for this agency, you are not allowed to contact any customer who has ever worked with this agency?
To me this sounds unacceptable.

Similar clauses I was shown in the past mentioned - if they did at all - something like "6 months / 1 year".


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Sara Freitas
France
Local time: 23:02
French to English
I had a similar clause in France on each purchase order from the agency... Feb 1, 2005

As it was very vague like yours (no specific timeline, etc) I took it to a lawyer, and he said that the agency would have to prove that I "stole" their customer(s) and caused them substantial business losses in order to get into any serious trouble, but that the risk was real (if minimal) and if he were me, he wouldn't touch it.

That was good enough for me, and I dropped them like a hot potato.

Trust is important in business relationships, and if the agency is putting in clauses like that, maybe trust is an issue for them. (Or maybe they just need to have someone draft a better contract for them).

I have great relationships with my repeat agency customers and we don't need restrictive contracts to behave ethically toward each other.

I think a very wise Prozian once said in response to a similar question: If you have to ask...follow your instinct and don't do it!

I agree. Listen to your inner voice. It will tell you if this is the right business relationship for you!

Good luck!

Sara


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