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Agency requiring me not to take jobs for the same end client from other agencies
Thread poster: jmadsen

jmadsen  Identity Verified
Local time: 08:52
Dec 10, 2010

An agency is me not to take jobs for the same end client from other agencies.
Is that ok? Is it at all legal? Thanks!


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Annamaria Amik  Identity Verified
Local time: 09:52
Romanian to English
+ ...
Outrageous Dec 10, 2010

Jørgen Madsen wrote:

An agency is me not to take jobs for the same end client from other agencies.
Is that ok? Is it at all legal? Thanks!


I am not sure about all the legal aspects in other countries, but I find this outrageous!

You are not obliged to make sure their clients respect their exclusivity contracts with this agency (if any). I would definitely not sign such a clause. Besides, unless their end client has an exclusivity contract with them, the end client is free to choose any other agency/vendor anytime. And even if the agency is the end client's exclusive provider, it is NOT YOUR obligation to enforce that contract. Just think about the other way: would the agency accept not to ever assign jobs from that client to another (cheaper, better etc.) translator? Most likely not.

Plus, there is no way you could check the source of all the documents.

And what does "end client" mean? I was translating regularly for an end client through Agency 1 located in X country, and then I was contacted by Agency 2 from another country, asking me to do a job for the end client's parent company located in that second country. The jobs were totally unrelated.

[Edited at 2010-12-10 10:26 GMT]


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jmadsen  Identity Verified
Local time: 08:52
TOPIC STARTER
Confidentiality Dec 10, 2010

Besides, as an authorised translator registered in Denmark, I am actually by law bound by confidentiality, so if I reveal any details about my work for other clients, I would be breaking the law.

[Edited at 2010-12-10 10:26 GMT]


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Laurent KRAULAND  Identity Verified
France
Local time: 08:52
French to German
+ ...
It has already been discussed here... Dec 10, 2010

but I cannot find the relevant threads for the moment.

From what I remember, and while such clauses are not entirely illegal, they are not 100% legal either.

Agencies try to protect their hunting grounds, and this can be understood to a certain degree. However, would they agree not to contact your direct clients?


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Attila Piróth  Identity Verified
France
Local time: 08:52
Member
English to Hungarian
+ ...
Non-competition clauses Dec 10, 2010

It is a standard non-competition clause that the translator should not actively seek cooperation with the end client whose identity has been revealed by the client. In other words, you should not try to leapfrog the agency and contact the end client. Such a clause is reasonable.

Anything beyond that is not reasonable. If the end client contacts you directly or through another agency, you should be completely free to work with them.

I have seen this exaggerated clause in several service agreements – but in practically all cases the outsourcer understood that it was unacceptable, and agreed to delete it or modify it (to "actively seek"). So I would give negotiation a try.

Best,
Attila


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Teresa Borges
Portugal
Local time: 07:52
Member (2007)
English to Portuguese
+ ...
Why? Dec 10, 2010

What is the reason behind that? Did they loose the client? Does the client work with more than one agency?

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jmadsen  Identity Verified
Local time: 08:52
TOPIC STARTER
Important distinction! Dec 10, 2010

[quote]Attila Piróth wrote:
It is a standard non-competition clause that the translator should not actively seek cooperation with the end client whose identity has been revealed by the client.

Thanks, Attila!


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jmadsen  Identity Verified
Local time: 08:52
TOPIC STARTER
Thanks for all your input! Dec 10, 2010

When I got the email, I was a little amazed, but it is important to hear the opinion of other freelancers, to calibrate your own position

Btw, Annamaria, sorry about the handball game yesterday... if you're into handball, at all

[Edited at 2010-12-10 10:57 GMT]


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Laurent KRAULAND  Identity Verified
France
Local time: 08:52
French to German
+ ...
No exclusivity anymore Dec 10, 2010

Teresa Borges wrote:

What is the reason behind that? Did they loose the client? Does the client work with more than one agency?


End clients are perfectly entitled to work with more than one agency. An agency owner I personally know told me that there was no way to have their clients signing an exclusivity contract - why would they anyway?


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FarkasAndras
Local time: 08:52
English to Hungarian
+ ...
Pretty sure it is legal Dec 10, 2010

Jørgen Madsen wrote:

An agency is me not to take jobs for the same end client from other agencies.
Is that ok? Is it at all legal? Thanks!

Noncompete agreements are standard at large corporations for full-time employees with technical expertise and pretty much everyone from middle management up. Applying this to freelancers is odd to say the least... I would definitely require extra compensation for it, especially if this "idea" only came up after you've been working for them for a while.
Professional ethics dictate that you shouldn't approach the end cilent directly, cutting out the agency, but if jobs for the end client land in your lap by chance, directly or through an agency, there is no reason not to accept them. If the first agency wants exclusivity, they should pay.


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Teresa Borges
Portugal
Local time: 07:52
Member (2007)
English to Portuguese
+ ...
Of course they are! It was just a question... Dec 10, 2010

Laurent KRAULAND wrote:

Teresa Borges wrote:

What is the reason behind that? Did they loose the client? Does the client work with more than one agency?


End clients are perfectly entitled to work with more than one agency. An agency owner I personally know told me that there was no way to have their clients signing an exclusivity contract - why would they anyway?


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Schtroumpf
Local time: 08:52
German to French
+ ...
Interesting clause - how will they check? Dec 10, 2010

And how will agency 1 actually know that Freelance XY has been working for customer 999 via agency 2?

Will they check the 999 accountancy...? Or XY's mailbox? It really sounds like they were trying to impress the freelancer but I don't see how they could ever enforce such a clause.

Even though, legal or not, I find it recommendable not to sign such stuff. I suppose it will give even more value to our signature if we really discuss contracts line by line.


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Kevin Fulton  Identity Verified
United States
Local time: 02:52
German to English
Silly restriction: end client sometimes unknown Dec 10, 2010

I translate a lot of automotive-related documents for agencies and only sometimes know the identity of the end client. Even though a specification, for example, may have been issued by a "Major Automaker", the request for a translation may come from a supplier or some other intermediary. On a few fortunate occasions, I've had requests from two different agencies for the translation of the same specification. Obviously two different end clients were involved.

The other side of the coin is that major buyers of translation often rely upon several language service providers. They don't provide exclusivity to their suppliers, so there's no reason to the language service provider to expect exclusivity from its translators.

Direct solicitation of an agency's client is a no-no, however.


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Stanislav Pokorny  Identity Verified
Czech Republic
Local time: 08:52
English to Czech
+ ...
Exactly Dec 10, 2010

Attila Piróth wrote:

It is a standard non-competition clause that the translator should not actively seek cooperation with the end client whose identity has been revealed by the client. In other words, you should not try to leapfrog the agency and contact the end client. Such a clause is reasonable.

Anything beyond that is not reasonable.


Nothing more to add...


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Samuel Murray  Identity Verified
Netherlands
Local time: 08:52
Member (2006)
English to Afrikaans
+ ...
Very usual, and usually unenforceable Dec 10, 2010

Jørgen Madsen wrote:
An agency is [asking?] me not to take jobs for the same end client from other agencies. Is that ok? Is it at all legal? Thanks!


Whether it is legal depends on the Danish law (and whether Danish law allows you to place yourself under the jurisdiction of the laws of the client's country). It is, however, fairly standard.

There are variations of the clause, and most of them are unenforceable. For example, agencies often require that you don't work for *any* of their existing clients directly or via another agency, but to do that you would need to see a list of the agency's clients... and they're not going to give it to you. It is interesting that the agency is willing to accept your word for it that you won't do it, but not willing to accept your word for it that you won't abuse the list if they do send you the list.

I find it an impractical rule. In fact, there has been times when I had to turn down a job at a very late stage in the negotiations when it turned out that the new agency's client is the client of one of my existing agencies. Sometimes I have a suspicion that that may be so, but I may not ask either agency about it because doing so would break confidentiality with both of them.


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