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Am I being unreasonable?
Thread poster: Konstantin Kisin

Konstantin Kisin  Identity Verified
United Kingdom
Local time: 07:59
Member (2004)
Russian to English
+ ...
Sep 16, 2008

OK, fairly long post coming up. You've been warned

An existing non-regular client of mine (about 1 job a year in the last 2 years) recently sent me an e-mail explaining that as they are "growing rapidly" it's important that we "make clear agreements". In this connection, they attached a sizeable Collaboration Agreement, which has the following articles in it:

Article 4

Clause 1.
The translator undertakes to maintain the complete confidentiality of all data and information that concerns or bears any relation to the Company as a company.
Clause 2.
The translator is not permitted to contact one of the Company’s clients directly without first obtaining written permission to do so from The Company.
Clause 3.
The translator undertakes not to use the Company’s name for any kind of advertising purposes without first obtaining written permission to do so from The Company.

Article 5

Failure to comply with the obligations set out in article 4 will mean that the translator is obliged to pay the Company an immediately payable penalty of €500.00 for each violation and for each day that the violation continues without prejudice to the Company’s right to claim full compensation for losses incurred as a result.


Given that this client is not important to me, I didn't feel the need to commit myself to an agreement I don't feel comfortable with or show too much flexibility on this matter. While I always do my best to ensure absolutely confidentiality of my relations with my clients and
I am not against being liable for actual losses caused to a client by my negligence (and even if I were against it, there are laws that don't care whether I am for or against), I don't want to sign something that stipulates draconian penalties for things that could occur accidentally and cause no damage to my business partner whatsoever. For example, if I accidentally send an invoice for work done for this company to another company (never happened to me as yet, but I know that it's possible), is that breach of clause 1? Is that worth 500 euros?

I wrote back to this client to let them know that I am only prepared to sign this agreement if Article 5 is removed. Our subsequent correspondence can be found below (spelling and grammar retained):

"Hi Kanstantin,

Are you intend to do these things. Beceause when you're not, i don't see what the problem is."

"Hi X,

Heh, it's a funny argument, don't you think?

I have no intention of breaching any sort of confidentiality with you but why not insert another article like this?

Article X
The Company undertakes to pay the translator within 30 days of receiving his/her invoice.

Article Y
Failure to comply with the obligations set out in article X will mean that the Company is obliged to pay the translator an immediately payable penalty of €500.00 for each violation and for each day that the violation continues without prejudice to the translator's right to claim full compensation for losses incurred as a result.

Do you mean to pay me on time? I think you do. Do you want to put an article like this in our contract? Probably not.

Konstantin"

"Hi Konstatin,

We can deliver you work. In other words, we pay you if we ask you to translate for us. (Actualy we pay in less then ten days after recieving the invoice) *not true*
It is normal to make some agreements with so much free lancers.

But if you're not okay with the Agreement, then don't sign.


Kind regards"


"Hi X,

I am happy to sign the Agreement without that article as I have said.

I am sure you do pay within 10 days but would you accept an article that said if you don't pay me within 10 days then you owe me 500 euros? If you wouldn't why do you ask me to do the same?

Konstantin"

What do you think about my position? Am I being unreasonable?


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Samuel Murray  Identity Verified
Netherlands
Local time: 08:59
Member (2006)
English to Afrikaans
+ ...
You're not unreasonable, but you are wasting time Sep 16, 2008

Konstantin Kisin wrote:
In this connection, they attached a sizeable Collaboration Agreement, which has the following articles in it...


I have tried a number of times to change the agreements sent to me by clients. On one or two occasions I have succeeded in letting the agreement go through with certain clauses struck out (in other words, the client doesn't send a new agreement with those clauses removed -- I simply strike them out and sign next to them).

You can't blame a client for not accepting your changes. The process of drawing up an agreement is a long, expensive one, and the project manager don't always have the authority to make changes to it.

I wrote back to this client to let them know that I am only prepared to sign this agreement if Article 5 is removed.


You're wasting your own valuable time (and your client's time as well). If you don't want article 5 in the agreement, remove it yourself, and see if the client accepts it. If he doesn't, then that is obviously the end of it.


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Edward Vreeburg  Identity Verified
Netherlands
Local time: 08:59
Member (2008)
English to Dutch
+ ...
well, it depends Sep 16, 2008

Of course you are not going to contact their clients directly.
Which means for any client they supply you with from the moment you sign the contract.
So company X (from last year)... is technically OK, since it's barred by the statue of limitation and you have not signed the contract. (although it might not actually be advisable because of your relation with the supplier, and I guess it's against the proper translation practices of Proz)..

If they add something like "up to 1 year after we send you a job for them" it all sounds a lot better, right?...

For any new (end) client they provide you jobs on, I'd say this is business as usual - you will not contact them for at least 1 year (if at all), to ask them for work, because you already worked on their documents. - they want to protect their business, but I'm pretty sure they are not actively monitoring what goes on between their clients and the translators they hire...

And you can always NOT sign it and tell them to let you see the contract again when they have a new (sizable) job for you. You are simply not going to sign anything upfront.

Ed Vreeburg
Translate.ED


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Samuel Murray  Identity Verified
Netherlands
Local time: 08:59
Member (2006)
English to Afrikaans
+ ...
Apples and oranges Sep 16, 2008

I post this reply separately because it is a different issue.

Konstantin Kisin wrote:
Article X
The Company undertakes to pay the translator within 30 days of receiving his/her invoice.

Article Y
Failure to comply with the obligations set out in article X will mean that the Company is obliged to pay the translator an immediately payable penalty of €500.00 for each violation and for each day that the violation continues without prejudice to the translator's right to claim full compensation for losses incurred as a result.


Not quite the same, though.

On the one hand, you can breach confidentiality deliberately or through negligence, but in both cases the breach is entirely in your control. On the other hand, not paying a service provider can be the result of circumstances beyond a client's control (eg unexpected cashflow problems), so not paying is not necessarily deliberate or because of negligence.


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Tomás Cano Binder, CT  Identity Verified
Spain
Local time: 08:59
Member (2005)
English to Spanish
+ ...
My opinion... Sep 16, 2008

...is that any proven breach of confidentiality and the reasonable damages should be analysed by a judge or an arbitrator.

I don't think an immediate payment of Eur 500 is really enforceable, considering that the size of the damage caused by such a breach must be determined professionally.


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Marie-Hélène Hayles  Identity Verified
Local time: 08:59
Italian to English
+ ...
You're definitely not being unreasonable Sep 16, 2008

I certainly wouldn't sign it. Either do what Samuel suggests, or just let them go.

Don't entirely agree with Samuel's second post though - or specifically, the example he gives. Unexpected cash flow problems may be beyond the agency's control but they shouldn't be my problem! If he'd said a "bank error", I'd be more inclined to accept the point, but even so, the two cases are comparable (IMO) simply because they're both entirely unreasonable clauses.


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Konstantin Kisin  Identity Verified
United Kingdom
Local time: 07:59
Member (2004)
Russian to English
+ ...
TOPIC STARTER
... Sep 16, 2008

Samuel Murray wrote:
You can't blame a client for not accepting your changes. The process of drawing up an agreement is a long, expensive one, and the project manager don't always have the authority to make changes to it.


I am not blaming them for not accepting my changes. I am merely standing my ground. Just because they spent lots of time and money devising an agreement that is, in my view, unreasonable, doesn't mean to say that I should just blindly sign it. I can refuse to, as I have, but I also wanted to see if a compromise could be reached.

You're wasting your own valuable time (and your client's time as well). If you don't want article 5 in the agreement, remove it yourself, and see if the client accepts it. If he doesn't, then that is obviously the end of it.


This may have been the way to do it. My thinking was that simply hacking through their agreement, "the process of drawing up which is a long, expensive one", with a red pen might have been taken as an act of aggression. With hindsight, it doesn't seem likely that the way I chose to approach it was taken as anything different.


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Konstantin Kisin  Identity Verified
United Kingdom
Local time: 07:59
Member (2004)
Russian to English
+ ...
TOPIC STARTER
apples and apples Sep 16, 2008

Marie-Hélène Hayles wrote:
Don't entirely agree with Samuel's second post though - or specifically, the example he gives. Unexpected cash flow problems may be beyond the agency's control but they shouldn't be my problem! If he'd said a "bank error", I'd be more inclined to accept the point, but even so, the two cases are comparable (IMO) simply because they're both entirely unreasonable clauses.


Yes, I entirely disagree with Samuel's second post myself. I think he's allowed himself to become influenced by the idea that a client is somehow more important than you and is therefore able to dictate the terms of the agreement.

An unexpected cash flow problem is none of my business whatsoever, and also negligence on behalf of the agency. When a client asks me to do a job for them, they undertake obligations to pay me for that work within an agreed period of time in the same way as I agree to abide by the other terms of our agreement. Failure to make adequate provisions to discharge your obligations is negligence which leads to breach of contract. Why should clients insist on penalising me for delivering work late or breaching confidentiality, when they don't agree to any penalties that I may wish to subject them to for non-performance of their obligations?


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Konstantin Kisin  Identity Verified
United Kingdom
Local time: 07:59
Member (2004)
Russian to English
+ ...
TOPIC STARTER
... Sep 16, 2008

Tomás Cano Binder wrote:

...is that any proven breach of confidentiality and the reasonable damages should be analysed by a judge or an arbitrator.

I don't think an immediate payment of Eur 500 is really enforceable, considering that the size of the damage caused by such a breach must be determined professionally.


Yes, exactly. However, I was under the impression that by signing this agreement I would be making this "immediate payment" enforceable. Is this wrong?


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Tomás Cano Binder, CT  Identity Verified
Spain
Local time: 08:59
Member (2005)
English to Spanish
+ ...
A lawyer... Sep 16, 2008

Konstantin Kisin wrote:
Tomás Cano Binder wrote:
I don't think an immediate payment of Eur 500 is really enforceable, considering that the size of the damage caused by such a breach must be determined professionally.

Yes, exactly. However, I was under the impression that by signing this agreement I would be making this "immediate payment" enforceable. Is this wrong?


Hm... That is a good question. I reckon it will very much depend on the laws of the country your customer operates in. Maybe a lawyer can answer that question. In any case, a private agreement between you and a company is not a law that can establish immediately administrative fines. That's why I said it might not be enforceable.


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Sheila Wilson  Identity Verified
Spain
Local time: 07:59
Member (2007)
English
+ ...
signing a contract doesn't necessarily make the clauses enforceable Sep 16, 2008

Konstantin Kisin wrote:
I was under the impression that by signing this agreement I would be making this "immediate payment" enforceable. Is this wrong?


I'm not a legal expert but I am pursuing a debt through the courts at the moment, and they ruled that the clause in the contract that I signed was unfair and that I should have been paid for the work I did. It related to a training course, payment to be made on completion - the student didn't want to continue after 12 out of 38 hours and the agency tried not to pay me a penny.


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Giovanni Guarnieri MITI, MIL  Identity Verified
United Kingdom
Local time: 07:59
English to Italian
not unreasonable... Sep 16, 2008

you are asking them to change a part of the contract you don't deem fair. They can accept or refuse. If they refuse, just turn them down. They are not one of your regular contacts, so you won't lose very much.

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Charlie Bavington  Identity Verified
Local time: 07:59
French to English
Don't muddy the waters Sep 16, 2008

What exactly is the issue here?

It seems to be that you are worried about the consequences of accidentally disclosing confidential information. Is that it? If so, why not just say so? Why not just ask for the word "deliberate" to be added somewhere? (simplistic view, may need some legal work )
Why obfuscate the issue by drawing up imaginary clauses imposing an obligation on them that they are never going to agree to, not least because they are related to an entirely different aspect of the legal relationship? All you do then is provide a distraction for your opposite number to focus on, to the detriment of resolving the matter at issue.

Incidentally, you may want to take a look at the Unfair Contract Terms Act. I'm not saying it applies here (I haven't looked). But even if your contract is not governed by English law, if could add weight to your argument if you are able to say to them "you know, if this was an English contract, that clause wouldn't be allowed". If that is the case.

Anyway - focus, that was the main point


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Samuel Murray  Identity Verified
Netherlands
Local time: 08:59
Member (2006)
English to Afrikaans
+ ...
My point is... Sep 16, 2008

Marie-Hélène Hayles wrote:
Unexpected cash flow problems may be beyond the agency's control but they shouldn't be my problem! If he'd said a "bank error", I'd be more inclined to accept the point...


The point of my post is not whose problem something is. The question whose problem something is has little to do with the amount of the penalty, I'm sure you'll agree.

My point was that an act of negligience (eg breach of confidentiality) which may result in irrepairable damage to the party should carry a much heavier penalty than a situation of delayed delivery (eg delayed payment, for whatever reason), which is unlikely to cause damage to the party.

Konstantin Kisin wrote:
Yes, I entirely disagree with Samuel's second post myself. I think he's allowed himself to become influenced by the idea that a client is somehow more important than you and is therefore able to dictate the terms of the agreement.


My point is equally relevant regardless of who the parties are. To my mind, making confidential information public through negligience or a deliberate malicious act is a far bigger sin than getting slightly behind on your payments. Don't you agree? It doesn't matter to my argument who is behind on payments, and who is in breach of confidentiality.


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Samuel Murray  Identity Verified
Netherlands
Local time: 08:59
Member (2006)
English to Afrikaans
+ ...
I'm of the same mind here Sep 16, 2008

Tomás Cano Binder wrote:
Konstantin Kisin wrote:
I was under the impression that by signing this agreement I would be making this "immediate payment" enforceable. Is this wrong?

In any case, a private agreement between you and a company is not a law that can establish immediately administrative fines.


I think that even if they claim that you have breached confidentiality and that you need to pay the fine, you only need to pay it if (a) you admit your guilt or (b) they can prove your guilt in a court. But IANAL.


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