Accepted / acceptable practice?
Thread poster: Václav Pinkava

Václav Pinkava  Identity Verified
Czech Republic
Local time: 21:14
Member (2013)
Czech to English
+ ...
Nov 21, 2013

An innovative and interesting proposition from a collaborative working agency led me to read their terms and conditions, for becoming one of their translators.

Among the conditions in their legal agreement, it states:

While you are free to perform similar services for other firms, you agree not to solicit work from any individual or company of whom you became aware through your work with XYZ, unless you had a prior business relationship with this individual or company. You also agree not to accept work from any client who, having obtained your name and/or contact information through a previous XYZ assignment (including, but not limited to on‐site assignments and voiceover sessions), solicits your services directly. (....) This clause shall remain in effect for 3 years from the date on which this Agreement is terminated. Failure to comply with this clause may subject you to injunctive relief and/or monetary damages.


I would like to offer this up for discussion here, to form a balanced view.

What do you think?


 

neilmac  Identity Verified
Spain
Local time: 21:14
Spanish to English
+ ...
Nothing to worry about Nov 21, 2013

How would they enforce the clause? It just sounds like "dire threats" to me. You could also argue the finer points of "solicit" vs "accept".

 

Terry Richards
France
Local time: 21:14
French to English
+ ...
Not that bad Nov 21, 2013

It's a fairly standard non-compete clause and I've seen worse.

I do have a couple of minor reservations:

- 3 years seems a little excessive. Try & get it reduced to 1 year, settle for 2 if you have to.

- ...having obtained your name and/or contact information through a previous XYZ assignment... I would add "directly" before "obtained". As it stands, it could include anybody you talked to in the audience that is completely unrelated to XYZ's assignment or customer.

However, that is just my opinion.

At the end of the day, it's a contract clause and, like any contract clause, is open to negotiation up to and including striking the whole thing. The question is, how much do you care about it, how willing are they to negotiate and how badly do you want to work with them?


 

Tatty  Identity Verified
Local time: 21:14
Spanish to English
+ ...
Thorough Nov 21, 2013

I think that it is a very thorough clause and at a guess a valid one. I reckon that the only way round it is if you appear on a list of translators, that is, if you are on an official list or belong to an association - the better known the association, the stronger your position would be.

I had a similar clause in an NDA with one of the agencies that I used to work with. I got rid of them partly because I never did like that clause, it just didn't sit well with me. Agencies often seem to think that they take care of all translating needs of a certain company, when it just isn't true. Most big companies use several agencies. And I could see this situation as potentially bothersome.


 

Terry Richards
France
Local time: 21:14
French to English
+ ...
Other agencies not an issue Nov 21, 2013

It's not a problem if the end customer uses several agencies as you are accepting work from the agency and not from the end customer. As long as XYZ didn't introduce you to this second agency (an unlikely situation!), there should be no problem.

Also, quite often the agency doesn't tell you who the end customer is and you can't tell from the documents. In this case, you did not become "aware" of the customer through the XYZ assignment and they have no grounds to enforce this clause.


 

Sheila Wilson  Identity Verified
Spain
Local time: 20:14
Member (2007)
English
+ ...
Seems fair enough to me Nov 21, 2013

I personally would have no trouble signing up to that one, although I think 3 years is rather excessive. I can see the point of non-compete clauses that are clearly intended to avoid the parties at the ends of the chain cutting out the middle-man. As an EFL trainer, I've had several cases of students wanting to do just that and I've always refused, even without having signed such a clause. It's when agency clients seem to want to stop me doing my job as a freelancer that I get annoyed. Several agencies seem to think they own us, but I don't get those vibes from this one.

But I hasten to add that I know next to nothing about legal wording, which is why I never accept legal translations.icon_wink.gif


 

Tim Friese  Identity Verified
United States
Local time: 14:14
Member (2013)
Arabic to English
+ ...
Pretty standard Nov 21, 2013

I think there's a lot of good about this non-solicit - many agencies try and get you to sign something saying you will never accept any work from any of their clients, which is an extremely broad proposition! Like Sheila said, this one is more finely tailored to keeping you and the end client from cutting out the middleman, which is an eventuality that is reasonable to prevent.

 

Tatty  Identity Verified
Local time: 21:14
Spanish to English
+ ...
The general thrust of restraint of trade clauses Nov 21, 2013

The thrust of non-compete clauses is to protect legitimate interests. This means that must offer some kind of unique services (not likely) or have created some kind of insider knowledge (maybe), the freelancer however must be free to use their general skills. This means that its purpose cannot be purely to prevent competition. Three years is probably a reasonable period. However, this will vary depending on the jurisdiction and relevant case law.

As others have said, it depends on how much you want the work...


 

Václav Pinkava  Identity Verified
Czech Republic
Local time: 21:14
Member (2013)
Czech to English
+ ...
TOPIC STARTER
supplementary info Nov 21, 2013

The 3 years' period after ending the agreement kicks in irrespective of the reason for ending the agreement. Does that affect your views?

 

Phil Hand  Identity Verified
China
Local time: 03:14
Chinese to English
I wouldn't have a problem with it Nov 22, 2013

Don't poach clients, don't accept the poaching of clients. It's a fairly solid principle to work by. The three years is neither here nor there for me.

Vaclav, I'm not sure what you mean about the reasons for terminating the contract - are you thinking of a situation in which the agency breaches its obligation to the translator (doesn't pay, for example)? In that case I would do whatever necessary to obtain payment (possibly contacting the client as a very last resort, though probably not). If, following such an incident, I ended up in contact with the client, and worked for them, then that's not covered, because the client and I became known to each other during a legal proceedings, not through work for the agency.


 

Tom in London
United Kingdom
Local time: 20:14
Member (2008)
Italian to English
Don't sign Nov 22, 2013

While you are free to perform similar services for other firms, you agree not to solicit work from any individual or company of whom you became aware through your work with XYZ, unless you had a prior business relationship with this individual or company. You also agree not to accept work from any client who, having obtained your name and/or contact information through a previous XYZ assignment (including, but not limited to on‐site assignments and voiceover sessions), solicits your services directly. (....) This clause shall remain in effect for 3 years from the date on which this Agreement is terminated. Failure to comply with this clause may subject you to injunctive relief and/or monetary damages.


I would never sign anything like that.

First, because it establishes an unpleasant relationship right from the start, based on legalistic considerations rather than on quality and collaboration.

Second, because it places the onus on you to prove **that you have not done something** of which you could be accused at any time. And as we all know, it is impossible to prove that you have **NOT** done something.

Run away from this as fast as you can !

[Edited at 2013-11-22 09:58 GMT]


 

Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 21:14
Member (2005)
English to Spanish
+ ...
3 years is too long a time Nov 22, 2013

I would say that staying loyal to the firm for a year is more than enough. They cannot reasonably expect you to remain loyal for 3 years.

 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 21:14
English to Polish
+ ...
Fairly standard but Nov 22, 2013

You also agree not to accept work from any client who, having obtained your name and/or contact information through a previous XYZ assignment (including, but not limited to on‐site assignments and voiceover sessions), solicits your services directly. (....)


Technically, the above means you have to turn down anybody for whose knowledge of you that XYZ assignment was a necessary nexus. That's too extensive, you need to trim it down to just their clients but not anybody whom their clients referred to you rather than to XYZ.

Moreover, I agree with Tom's sentiments. It sounds unpleasant, perhaps largely due to the 'you' thing. I generally consider the 'you' drafting to be a horrible, horrible thing.

You also agree not to accept work from any XYZ client who, having obtained your name and/or contact information through a previous XYZ assignment (including, but not limited to on‐site assignments and voiceover sessions), solicits your services directly. (....)


There is a chance that by 'client' they actually really meant 'XYZ client'.


 

Marius Reika  Identity Verified
English to Lithuanian
+ ...
Standard? Nov 23, 2013

You must be joking guys? Unless this agency is guaranteeing you jobs worth no less than 100 000 euros per year, forget it. I can't believe how much we are ready to put up with some times!

All these red tape loving agencies do nothing else than send these stupid agreements. Then I get a job of 50 euros and it is over.

The best clients I had never sent me agreements, the worst ones asked for diploma copies and NDA before my starting to work on their FREE test translation...


 

Václav Pinkava  Identity Verified
Czech Republic
Local time: 21:14
Member (2013)
Czech to English
+ ...
TOPIC STARTER
Mixed views Nov 24, 2013

I must say I am fascinated by this broad spectrum of opinion. Reminds me of the Wisdom of Crowds. Not a broad enough sample, yet.

Still, perhaps it is time I expressed a view, to stir the debate:

I wonder if there is a case for clients to chose their suppliers on the basis of "show us your translator agreement smallprint, and we'll make our decision whether to commission some work from you (based on our estimation how likely your translators are to be good enough / smart enough / experienced enough / savvy enough / meticulous enough )"

I think a clause like that speaks volumes about the agency's translators' judgement. Either they are blasé and heedless and have not even read the smallprint (and what else do they overlook)? Or are they cavalier and daring, with a touch of hubris (and how often do they slip their deadlines, for all sorts of truly amazing force majeure reasons)? Or, did they sign up with such an agency because they had no better options (which, in a free market, might say something about their abilities)?

So, not only should translators keep away from agencies with such conditions, so should clients.

If it walks like a lame duck...


 


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