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Who is that elusive client?
Thread poster: Samuel Murray

Samuel Murray  Identity Verified
Netherlands
Local time: 07:01
Member (2006)
English to Afrikaans
+ ...
Oct 21, 2008

G'day everyone

I'm sure you have all seen those clauses in contracts prohibiting the translator from doing direct work for any of the agent's clients. I suspect the clause is often phrased in a way that also prohibits working for the same client via another agency. But who is the client?

Allow me to sketch a scenario which I don't think is so rare, and you tell me what you think.

You are an English to Lower Slobovian translator living in Lower Slobovia. You have a freelancer's contract with LBS Translation Inc in Lower Slobovia, with a clause that you are not allowed to work for any of LBS's clients directly.

The company Alpha Widgets in some other country wants to promote their latest widget. They commission Beta Designs to design and print the brochures. Beta Designs realise that they need localisation work done, so they contact Gamma Consulting for it. Gamma Consulting has a standing arrangement with Delta Translations to supply them with their translation needs. Delta Translations contacts LBS Translations Inc in Lower Slobovia for the translation. LBS contacts you.

The text is clearly going to be used by Alpha Widgets (it is clearly not simply about Alpha Widgets but will actually be used by them). LBS has no contact with Gamma Consulting, Beta Design or Alpha Widgets. Are any of them clients of LBS in terms of the agreement with LBS?

Next, it is a public holiday in Lower Slobovia and Delta Translations urgently need another translation for Alpha Widgets. They can't get hold of LBS, so they contact UBS Translations, who happen to have your name on their files. So UBS contacts you. UBS's client is also LBS's client. Are you allowed to work on the translation for UBS? I asssume not.

On the next public holiday, an electric storm in Upper Slobovia knocks out communications between Upper and Lower Slobovia. UBS can't get hold of you. So UBS outsources the translation to Epsilon Language Service in another country, who happen to have you on their books. Epsilon contacts you. Now Epsilon's client is not LBS's client, although Epsilon's client's client is LBS's client. Are you allowed to work on the translation for Epsilon?

The above may sound very hypothetical to anyone who hasn't been in our industry for long, but I believe it not that rare at all. I look forward to your responses.


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Heinrich Pesch  Identity Verified
Finland
Local time: 08:01
Member (2003)
Finnish to German
+ ...
Very hypothetical scenario Oct 21, 2008

In fact I never know who is the end-client unless the text in the translation mentions it. And I would not sign any agreement that would stop me from doing work for anyone that wants to pay for my services. But I never reveal my business partners to anyone.
Regards
Heinrich


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Samuel Murray  Identity Verified
Netherlands
Local time: 07:01
Member (2006)
English to Afrikaans
+ ...
TOPIC STARTER
But you do... Oct 21, 2008

Heinrich Pesch wrote:
And I would not sign any agreement that would stop me from doing work for anyone that wants to pay for my services.


But you do agree by default not to have contact with the client's client, do you not? For I see in your profile that you have endorsed ProZ.com's guidelines, in particular the one saying "do not directly contact end clients, or subcontractors, without permission".

Anyway, I forgot to mention that in my example above the name of Alpha Widgets occur in the text. The type of text is clearly not simply about Alpha Widgets, but for Alpha Widgets.


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Marie-Hélène Hayles  Identity Verified
Local time: 07:01
Italian to English
+ ...
Direct Oct 21, 2008

I agree that it's not such a hypothetical situation - and in fact with multinational companies, it's perfectly possible to be contacted by two agencies in two different countries to perform translations for the same end client. I think the key point here is "direct" - I haven't contacted the end client directly and I am not working for the end client directly.

If the end client contacted me directly, I would be obliged to inform them that I could not work for them.

But I don't see that I am obliged to tell Agency A that I can't perform translations for client X because I already translate for X through another agency - in fact, I think I'm obliged not to say so, because it might be construed as the client's confidential information (even if I don't mention the other agency's name).

The only time I did mention something of the sort (because of course I am talking about my own experience) was when Agency B asked me to revise something that I'd translated through Agency A. In that case, I was of course obliged to turn the job down, and I did tell them why.

[Edited at 2008-10-21 10:51]


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Charlie Bavington  Identity Verified
Local time: 06:01
French to English
Slow morning, is it Samuel? Oct 21, 2008

Cripes, I haven't got time to work all that out.
If I had that kind of head, I'd be running General Electric

Surely the "agency's clients" are simply those entities that have entered into a contractual agreement with the agency by which the agency provides them with services. If there is a contract of some kind, they are a client. If there ain't, they ain't.

I think the tricky bit is not necessarily awareness of the complex web of corporate relationships as outlined by yourself (but which I stopped reading when the public holidays appeared!) but simply knowing who the end customer is at all.

I receive a substantial proportion of documents where "Alpha Widgets" is blanked out, for example. So if Epsilon (was it?) contact me, I wouldn't even know who the hell Alpha Widgets are - might be the first time I'd heard of them.

Complex relationships are not the issue. Just knowing the identity of the end customer, in order to be able to comply with such a term, is the issue.

Now, Mr Murray, since you must be having a slow morning to have invented that scenario, why not give your public what they actually want, which is the thread about specific terms in the Guidelines we don't like

[Edited, twice, for typos]

[Edited at 2008-10-21 10:57]


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Kaiya J. Diannen  Identity Verified
Australia
Member (2008)
German to English
There's contact and then there's contact Oct 21, 2008

Samuel Murray wrote:...
ProZ.com's guidelines, in particular the one saying "do not directly contact end clients, or subcontractors, without permission".


Marie-Helene's point about "direct" aside, we have in English (in this particular case, may not be apropos to contracts in other languages) a wonderful differentiation between active voice and passive voice.

"To contact" (as in "do not contact") means the contractor undertakes some sort of effort to reach the other party.

"To be contacted by", however, means the contractor plays no active role in being reached.

I believe this differentiation is a valid one in this scenario. Note that the Proz.com professional practices guidelines do not state anything about whether a service provider ends up working for or with said end clients and/or subcontactors...

(interessant, non?)


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Lori Cirefice  Identity Verified
France
Local time: 07:01
French to English
who does the contacting? Oct 21, 2008

Samuel Murray wrote:

Heinrich Pesch wrote:
And I would not sign any agreement that would stop me from doing work for anyone that wants to pay for my services.


But you do agree by default not to have contact with the client's client, do you not? For I see in your profile that you have endorsed ProZ.com's guidelines, in particular the one saying "do not directly contact end clients, or subcontractors, without permission".

Anyway, I forgot to mention that in my example above the name of Alpha Widgets occur in the text. The type of text is clearly not simply about Alpha Widgets, but for Alpha Widgets.


I think the key here is the word "directly". In all of the hypothetical examples, the translator is contacted by the outsourcer, not the other way around. The translator has no way of knowing who the agency's client is, unless that was specified (and that never happens in my experience). So as long as the translator was not the instigator of the contact - I see no problem.


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amurati
Local time: 07:01
English to Albanian
+ ...
Well based on my experience Oct 21, 2008

The translations that I am getting through the ProZ.com the end user usually is now shown om the translations. But about the translations that I do here in where I do live the end users come to me so I can't avoid to know the end user.

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Samuel Murray  Identity Verified
Netherlands
Local time: 07:01
Member (2006)
English to Afrikaans
+ ...
TOPIC STARTER
Here... Oct 21, 2008

Charlie Bavington wrote:
Now, Mr Murray, since you must be having a slow morning to have invented that scenario, why not give your public what they actually want, which is the thread about specific terms in the Guidelines we don't like


Here: http://www.proz.com/post/972781


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Anita Cassidy  Identity Verified
United Kingdom
Member (2005)
English to German
Isn't it really about "stealing" clients? Oct 21, 2008

When an agency requires me to sign a clause preventing me from working directly for their own end-clients, I always amend the clause to the effect that I will refrain from contacting any of their clients, provided that they are NOT ALREADY my own clients. Nothing more, nothing less.
A lot of agencies, of course, are not willing to accept that we are business partners and thus do not want to have their standard terms altered, but hey, I've got bigger fish to fry.


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sophos76  Identity Verified
Germany
Local time: 07:01
German to Dutch
+ ...
List of end clients Oct 21, 2008

I should think the sentence about not contacting/working for any of my client's clients can be ignored because my clients never tell me who their client is. I've never gotten a complete list of all their clients = ; )

Even if I translate a text for a certain car manufacturer... how should I know if the car manufacturer is the client or if there are 1 or 2 more agencies inbetween?

If it comes to it, I don't think a translation agency could get this point through in court, so I don't take it too seriously.



[Edited at 2008-10-21 14:30]


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Kaiya J. Diannen  Identity Verified
Australia
Member (2008)
German to English
Ditto Oct 21, 2008

Sonja Willems wrote:
...my clients never tell me who their client is.


Well, maybe in my case I'd have to say "rarely".

I was just telling someone today that I often get documents assigned to me by an agency with no information about the client - the documents might be from a lawsuit, a fund prospectus, even magazine and newspaper articles, but *who* is actually paying for the translation is often not disclosed.

So in these particular cases, "who is that elusive client" takes on a whole new meaning - one that as Sonja implies, hardly seems relevant to the "poaching" issue.

Or perhaps it would be more accurate to say that relevance would be difficult to assert.


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Alexey Ivanov  Identity Verified
Russian Federation
Local time: 09:01
Member (2004)
English to Russian
All this is purely hypothetical Oct 21, 2008

All this is purely hypothetical and relevant to everyday life (forgive me, Samuel !) like the question about from which end an egg must be broken. Putting myself in the shoes of a corporate manager in charge of localization of the company products, I would never deal with an individual translator for 3 reasons:
1. However brilliant any individual translator may be, you cannot trust him unless you can check the quality yourself. Which usually you can’t.
2. A good agency at least ensures a two-stage quality assurance process by testing the translator before entrusting him with the job, and proofreading of the translation by another, possibly more experienced translator, after the translation is done.
3. A corporation usually needs localization of its products for several countries at once, or in sequence one after another, then usually there are updates, information bulletins, service bulletins, and it would be a waste of time and money to do the work which an agency does better and more efficiently.
The above is just common sense. So, any translator, who is in his right mind, should trust such corporate manager in charge of localization at least with enough common sense to realize the above, and should never approach a big or even medium size corporation soliciting work. If not for ethical reasons, but at least out of common business sense.
So, I don’t have problems either with the relevant clause in the NDA, or the wording of the ProZ Code of Ethics, as I don’t intend to approach the end client. But if the end client approaches me neither of the two prevents me from accepting work from such end client. But that is probably as hypothetical as the suppositions made by Samuel.


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Marie-Hélène Hayles  Identity Verified
Local time: 07:01
Italian to English
+ ...
Going a little off-topic... Oct 21, 2008

Alexey Ivanov wrote:

All this is purely hypothetical and relevant to everyday life (forgive me, Samuel !) like the question about from which end an egg must be broken. Putting myself in the shoes of a corporate manager in charge of localization of the company products, I would never deal with an individual translator for 3 reasons:
1. However brilliant any individual translator may be, you cannot trust him unless you can check the quality yourself. Which usually you can’t.
2. A good agency at least ensures a two-stage quality assurance process by testing the translator before entrusting him with the job, and proofreading of the translation by another, possibly more experienced translator, after the translation is done.
3. A corporation usually needs localization of its products for several countries at once, or in sequence one after another, then usually there are updates, information bulletins, service bulletins, and it would be a waste of time and money to do the work which an agency does better and more efficiently.
The above is just common sense. So, any translator, who is in his right mind, should trust such corporate manager in charge of localization at least with enough common sense to realize the above, and should never approach a big or even medium size corporation soliciting work. If not for ethical reasons, but at least out of common business sense.
So, I don’t have problems either with the relevant clause in the NDA, or the wording of the ProZ Code of Ethics, as I don’t intend to approach the end client. But if the end client approaches me neither of the two prevents me from accepting work from such end client. But that is probably as hypothetical as the suppositions made by Samuel.


There's a lot of truth in that as far as the corporate world goes, but what about my field - medicine? I work directly with several professors at various universities and a number of pharmaceutical companies. They are perfectly able to judge the quality of my work (perhaps not the finer grammatical points, but certainly the technical aspects of it, which are of course extremely important) and they prefer working with a translator directly because it makes communication on the trickier points that much easier. I also do translations for several medical institutes indirectly, through agencies. It's never happened yet, but it's not unthinkable that someone from one of these institutes might approach me directly without knowing that her colleagues in the lab down the corridor (or more probably in another site) were using an agency for their translations, which were also ending up on my desktop.


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KSL Berlin  Identity Verified
Portugal
Local time: 06:01
Member (2003)
German to English
+ ...
Oh, bullshit! Oct 21, 2008

Alexey Ivanov wrote:
So, any translator, who is in his right mind, should trust such corporate manager in charge of localization at least with enough common sense to realize the above, and should never approach a big or even medium size corporation soliciting work.


Alexey, basically I agree with you about the value added by a good agency and the greater efficiency of working with one in most cases. A good agency also provides a useful buffer against some rather trying demands by end clients, which is why I have chosen a business model that uses about 70 to 80 percent agency business for years.

However, it is perfect nonsense that a translator should not approach large or medium-sized corporations (or other organizations) directly to offer services. There are many types of services required by these companies, and often the fit is rather good. One must simply be clear about the limits of capacity and draw the line where necessary. I have no hesitation whatsoever in telling my large direct corporate or banking clients when I think it is in their interest to work with an agency on a project, and I usually try to provide a list of recommendations. Almost inevitably I hear reports that things worked but on the whole they prefer the direct relationship with the translator.

Numerous companies also have translation departments which are perfectly able to perform many or all QA functions and outsource for capacity reasons. These are often wonderful working relationships. A number of direct clients, including the biggest in an industry which many people seem insanely eager to work in, have come knocking on their own after the internal translation department has dug up my contact information from somewhere (usually ProZ or my web site). I couldn't handle their full capacity for a month in three lifetimes probably, but with the filter of their internal department, things work like a charm.

P.S. Getting back to the topic, I only concern myself with those clauses in that I do not contact the end clients directly, and if they call me as a result of work I have done for a specific agency (which happens from time to time, because my court stamp for Bavaria is required to have my contact info), I send them back to that agency. If work comes from the same end customer through another agency, I don't worry about it. Heck, I've even had the same text in the same week from two different agencies. The end customer was playing games, trying to "test" the translators at both places and compare. That's fine, but it's often rather pointless in a field where there are only a very few people working. And if the "end customer" honestly contacts me directly without deliberately doing an end-run around the agency, I will also not flinch at taking the job if I have time and interest. Here I put "end customer" in quotes, because when dealing with modern corporate hydras, there are often so many different business units which are incorporated separately that one would not be technically violating the agency agreement anyway, and also even within a given business unit different departments may insist on managing their translation processes separately. If I do localization for the development department of company X via agency Y, and the CEO calls me up to translate his speech for the shareholders' meeting because his buddy on the supervisory board recommended me for my work with another company, I am under no obligation to refuse his business in many cases. If the scope of cooperation between his company and the agency is broad, yes I will tell him we need to run it through the agency. We recently discovered that the CEO of a company who is a major client of an agency we work with is an old college friend. Would we accept his business directly? Not on your life. In this case I would refuse the business even if it were offered after a suitable legal "cooling off" period, because taking it would just feel wrong. But if someone from Siemens calls me up tomorrow regarding a job, unless it is obviously related to projects or departments where I have a long-term involvement through specific agencies, I'm not going to give two minutes of consideration to any silly general contractual restrictions that may or may not apply. In that specific case the company reorganizes itself so often that I don't think the top people in the company even remember last year's organizational structures any more, and I get jobs for that "end client" from so many sources that it would probably take me weeks of research to figure out WHICH agency to insist that the end client contact. My approach to this whole can of worms is, to put it briefly, to act in good faith and never deliberately poach. Beyond that I have neither the time nor the energy to worry about the issue.

[Edited at 2008-10-21 18:00]


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