NDA from a new client: return of information clause
Thread poster: Svetlana Beloshapkina

Svetlana Beloshapkina  Identity Verified
United States
Local time: 08:33
English to Russian
+ ...
Jan 18, 2011

Hello colleagues,

I received a Non-Disclosure Agreement from a new client - so far, so good. One of the clauses, however, states that I must return or destroy all confidential information and any copies of it in whatever medium. This basically implies that I have to get rid of all the files, glossaries, etc. created in the work process. Disclosing confidential information is one thing, but destroying my work??? If nothing else, I use my previous work for reference.

Have you ever encountered similar terms and conditions? I'll be grateful for any ideas on the matter. If this has been discussed previously, could you kindly refer me to the posts?

Thank you so much,
Svetlana


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xxxSima Dalens

Local time: 16:33
same issue Jan 19, 2011

Dear Svetlana,

I work for an agency that has the same requirements. You can simply ask for those 'reference' files if you receive an assignment from the client that requires you to use terms, consistency etc. from previous translations.


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Laurent KRAULAND  Identity Verified
France
Local time: 17:33
French to German
+ ...
Already discussed Jan 19, 2011

Hi Svetlana,
this topic has indeed already been discussed (at least three or four times) but I was not able to find posts about it.

However, what I can tell you is that such a requirement contradicts some legal obligations. And: how will you be able to "defend" your translation when you don't have the files anymore?

A known US agency also has a similar NDA. Curiously enough, it also has some low BB ratings due to its alleged abuse of "proofreading" to reduce the fees owed to translators.

I therefore would not be as comfortable as Samera-D with this clause. Please consider all the possible implications.


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Samuel Murray  Identity Verified
Netherlands
Local time: 17:33
Member (2006)
English to Afrikaans
+ ...
Can your legal obligations override the clause? Jan 19, 2011

Svetlana Beloshapkina wrote:
One of the clauses, however, states that I must return or destroy all confidential information and any copies of it in whatever medium.


1. In my current country (NL) the law states that I must keep copies of all business-related documents for 7 years. It is my understanding that the law of the country overrides any agreement that you may make with a client, so to me that clause would be interpreted to mean "return it after 7 years" or after my country's tax department releases me from the 7-year obligation. Does your country (the US) have a similar law?

2. Usually you should return the files only when the relationship between you and the client ends, and unless the client specifically ends it in writing (i.e. we hereby end the relationship with you), it never ends because by itself the contract just continues on an as-and-when basis.

3. Unless you've signed a hold-harmless clause, I would think that it is the responsibility of the party who ends the relationship to pay for the costs of returning the files (but IANAL). And you would never end the contract yourself, now would you? Remember, saying "no" to a job offer made under the contract is not a cancellation of the contract -- you are free to say "no" to jobs under a freelancer contract and the contract will still be in place.


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Jenny Forbes  Identity Verified
Local time: 16:33
Member (2006)
French to English
+ ...
Returning / destroying translated material, etc. Jan 19, 2011

Hello Svetlana,
I have a good and reliable client who surprised me a few months ago by suddenly requiring me to sign an NDA agreement stipulating that I had to return and/or destroy all work-related files within one month of completing the job. How they would prove that I had done so I've no idea.
Now, I normally keep all my translated files for at least two years, for reference and as proof of what I actually wrote. I protested to the client, who said they needed this agreement in order to comply with a new quality standard they were hoping to achieve. I didn't sign the agreement but they still send me lots of work and I've heard nothing further about it.
Meanwhile, another good client requires me to keep all translated files for at least SIX years! And HM Revenue & Customs (the UK's income tax authority) also requires all income-related records to be kept for at least six years.
Que faire?
Best wishes,
Jenny


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Laurent KRAULAND  Identity Verified
France
Local time: 17:33
French to German
+ ...
Extremely curious Jan 19, 2011

Jenny Forbes wrote:

(.../...)
Now, I normally keep all my translated files for at least two years, for reference and as proof of what I actually wrote. I protested to the client, who said they needed this agreement in order to comply with a new quality standard they were hoping to achieve. I didn't sign the agreement but they still send me lots of work and I've heard nothing further about it.
(.../...)


Extremely curious - is anybody aware of such a standard?


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Simone Linke  Identity Verified
Germany
Local time: 17:33
Member (2009)
English to German
+ ...
Standard Jan 19, 2011

This clause has been part of each and every NDA I have signed so far. If you'd ask me, there's a free template website somewhere, where agencies can download templates for their legal documents, because most of the docs I receive look almost identical!

But seriously, I think in many cases (not all of them), agencies really don't know what they're doing here and it often sounds to me as if they'd gotten their documents from someone who wasn't familiar with the translation process (i.e. who doesn't know what a glossary is etc.).

The way these NDA docs are formulated leaves a lot of room for interpretation. First of all, the definition of "Confidential Information" is often very blurry and no one can argue that the translation of certain terms or even single words is confidential information.

For example, the NDA normally also includes a clause that states that information is *not* considered confidential any longer if the translator can prove that s/he has gained access to the information via a different source or prior to the translation. Hence, since you can look up words and their translations in dictionaries, that basically eliminates glossaries etc. from being confidential information.

However, what (imho) the agencies really want to achieve with this clause is that you don't keep client-specific data, specifications etc.
For example, if you're translating a financial report giving many details about the profit or loss of a company, about the salary for individual employees, etc. - then that's clearly confidential information and it seems reasonable that you're not supposed to keep these data forever.

So, in practical terms, this would imply that you remove all sensitive information from the translations (if you want to keep them), but that's basically it.

Also, sometimes the NDA has another clause (but not in the same section where you find the clause about confidential information) that allows you to keep one copy for your records if required by law. Maybe there is such a small sentence hidden somewhere else in your NDA?


So, long story short: this clause you have quoted is a standard clause and so far I haven't had any problems with it.

(Note: I'm not a lawyer and this is not legal advice, just my own opinion.)


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xxxNMR
France
Local time: 17:33
French to Dutch
+ ...
Agree entirely with Simone Jan 19, 2011

Simone Linke wrote:

However, what (imho) the agencies really want to achieve with this clause is that you don't keep client-specific data, specifications etc.
For example, if you're translating a financial report giving many details about the profit or loss of a company, about the salary for individual employees, etc. - then that's clearly confidential information and it seems reasonable that you're not supposed to keep these data forever.



I am not a lawyer too, but this is also my opinion. One of my cllients explained to me that, among other things such as information on my laptop (she asked me to have reasonable data protection software), se didn't want me to throw printed copies in a recognizable way into the wastepaper bin and then have the dustbin in the street, clearly accessible to anyone. This was about cosmetics - bear in mind that information on a perfume, for instance, might be very interesting for the competitors. And also, if you are translating a game, for instance, you should not keep it on your computer as a game for your children and their friends.

So keep copyrights and sensitive information protected. If a company asks you to delete all files, you should be able to keep them until you have been paid. If you want to keep them longer, just ask your client.


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Laurent KRAULAND  Identity Verified
France
Local time: 17:33
French to German
+ ...
Contradictions... Jan 19, 2011

As some colleagues wrote it elsewhere, e-mail traffic is not secure without encryption - which happens to be a thing many agencies decline for (not so) good and (probably) bad reasons.

Quite in the same way, they usually refuse to deal with some possible minor problems linked to authentication systems (like incoming authenticated e-mails landing in the Spam folder instead of arriving in the Inbox).

I am failing to see why information of any kind should be less protected on a freelancer's desktop HD (given the fact that data protection software - as NMR put it - is available, even at no cost) than it is when circulating between two mailboxes all around the World-Wide Web.

Furthermore, most FTP servers operated by agencies are neither encrypted, nor secured while sensitive information comes in and goes out every day.

There are some more contradictions related to these, but that will do for the moment.


[Modifié le 2011-01-19 15:10 GMT]


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David Wigtil  Identity Verified
United States
Local time: 11:33
German to English
+ ...
The meaning of "any medium"--risking your computers Jan 19, 2011

I've worked many years on info.-tech. contracts supporting U.S. Federal civilian computer systems. They ALWAYS interpret contractural and statutory phrases like "data stored on any medium" to mean computer hard disks, floppies, magnetic/optical tape, thumb-drives (memory sticks), other magnetic-memory storage, etc.

This means you are risking the complete surrender or destruction of your own computer equipment, legally.

If you consent to destroy all media (all items of storage media) for Uncle Sam, you are actually consenting to removal and total destruction (burning or mechanical shredding) of your own hard disks, etc. Yes. If pushed, you could be forced to surrender any parts of your computer that can store data while the power is off. (That's why we call those parts "storage media.")

I would recommend against unthinking agreement to any such clauses. In cases of working directly for governmental entitles, in particular, you might be putting your equipment at extreme risk if you accept such conditions.
--Loquamur


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Svetlana Beloshapkina  Identity Verified
United States
Local time: 08:33
English to Russian
+ ...
TOPIC STARTER
Thank you everyone Jan 20, 2011

For your interesting opinions and extensive advice.

Some of the aspects you point out haven't even occurred to me. For instance, as for Samuel's point, I'm not familiar with any requirements of keeping business-related documents in the US (doesn't mean they don't exist, but it seems unlikely). As for the destruction of my equipment, David, I realize I can be sued by a private company for a breach of contract, but I sure hope it won't come to the physical destruction of my property.

I guess the best would be plain ask the client how serious they are about this clause.

Again, thanks for all your input.


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xxxSima Dalens

Local time: 16:33
What is a business-related document? Jan 21, 2011


1. In my current country (NL) the law states that I must keep copies of all business-related documents for 7 years. It is my understanding that the law of the country overrides any agreement that you may make with a client, so to me that clause would be interpreted to mean "return it after 7 years" or after my country's tax department releases me from the 7-year obligation. Does your country (the US) have a similar law?


What is the definition of 'business-related documents'. How do you save all your work for 7 years? I could be wrong but IMO it is everything that has to do with your taxable income (PO, bankstatement and maybe contact details for verification?).
I don't think it's right or legal, even without an agreement, to keep a client's copyrighted work (especially when it is only used for internal purposes) for longer than a set amount of time. Copyright is transfered to the client as soon as you have been paid for your work.


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Samuel Murray  Identity Verified
Netherlands
Local time: 17:33
Member (2006)
English to Afrikaans
+ ...
@Samerad Jan 21, 2011

Samera-D wrote:
What is the definition of 'business-related documents'. How do you save all your work for 7 years? I could be wrong but IMO it is everything that has to do with your taxable income (PO, bankstatement and maybe contact details for verification?).


With a plumber it is easy -- it's all his paper work. But with translators it is a bit more blurry, since *all* of our work consist of paper work. You're quite right that the 7-year requirement would not apply to all of our paper work, but where does one draw the line? The OP can decide for himself.

I was merely illustrating the fact that the law of the translator's country may have rules that supercede the contract requirements of the client.

I don't think it's right or legal, even without an agreement, to keep a client's copyrighted work (especially when it is only used for internal purposes) for longer than a set amount of time.


Why would it not be legal to keep it (unless there is an agreement that you do return them)?

If someone sends you a letter by post, then the letter (and everything included in the envelope) belongs to you, except if you have an agreement with the sender that you would return some of the material to him. The copyright of the letter (and possibly also the other materials in the envelope) belongs to the sender, yes, but the letter itself belongs to you.

Copyright is transfered to the client as soon as you have been paid for your work.


I don't know enough about Dutch copyright law. I was under the impression that it would be very similar to South African copyright law, in terms of which copyright of a translation does not transfer to the client merely because the client had paid for it... but perhaps you know of a few URLs about Dutch copyright law that I may find enlightening?


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 17:33
Member (2005)
English to Spanish
+ ...
Indeed, a pretty standard thing Jan 21, 2011

Most NDAs contain that clause of destruction of the materials. The outsourcer assumes (and so do you if you sign the agreement) that "your work" is not "your work" but "their work". And in a way I agree, since today it is very rare to be awarded the copyright of the translation, which is usually retained by the client or agency.

Now, although most NDAs contain this clause, in 15 years nobody has ever asked me to delete anything. They prefer to think of me as some kind of safe where they always have a backup of their stuff. Additionally, in the case of agencies, I often remember --or can check-- the end customer's requirements better than their rotating PM staff, which also helps them.


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