A Non-Compete clause without expiration date.
Thread poster: Hengky Chiok

Hengky Chiok  Identity Verified
United States
Local time: 06:49
Member (2008)
English to Indonesian
+ ...
Dec 6, 2008

One of the potential clients sent me an NDA agreement that has the following provision:
"The skills gained through XYZ training are intended be used for XYZ and may not be used in any other context."

In order to do the job they are going to assign me, I have to undergo certain training to comply with their standard. The training will take days and I am going to be paid to attend the training.

Now before the training I already have some skills and had certain experience to perform a similar service, although the training may probably improve my skills in performing that particular service. The keyword is may.

My problem with that provision is if I sign it, it will effectively bar me from performing such a service for other clients in the future even though the company who train me in the first place has not requested my service for years or do no longer need my service.

What I am thinking is to request the company to put a time limit/expiration (like other NCAs), whether a year or 10 years.

What do you think?

TIA.

Sola Gratia, Soli DEO Gloria,
Hengky

[Edited at 2008-12-06 02:04 GMT]


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Your skill is yours Dec 6, 2008

Why do you worry?
How they can enforce from you take other similar jobs?
Do I need to be obliged to my graduate school who trained me for certain skills?

What you signed is a piece of paper, and that is one thing. Its legal validity is quite another.
In other words, only way they can prohibit you from taking similar job is to sue you and win in the court.
That is quite impractical and cost-prohibiting for them, and chance of they win is slim.

Well this is not a legal advise and I am not a lawyer.
I am speaking only from common sense and everuday feasibility.


[Edited at 2008-12-06 02:12 GMT]


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Chris Lovelace  Identity Verified
Argentina
Local time: 10:49
Russian to English
+ ...
Depends on how much you stand to gain Dec 6, 2008

First, I agree that it is unlikely that the company can really enforce this contract, since it would be hard for the company to define where the skills they impart to you end, and your skills acquired in other venues begin.

Second, it depends on how much this company is worth to you. For instance, even if this is for a one-time assignment, it COULD be worth it if you stand to gain thousands of dollars (ie, a substantial part of your annual income).

Actually, if this company wants you to sign an agreement that severely limits your ability to get jobs with others, and makes you beholden to them alone - then I think that in itself should be worth a premium. Perhaps you could (gently) leverage this to get the company to contract with you for steady assignments.


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Tim Drayton  Identity Verified
Cyprus
Local time: 16:49
Turkish to English
+ ...
I reject all non-competition clauses Dec 6, 2008

As a freelancer, I refuse to sign any agreement that includes a non-competition clause. Full stop. If others choose to accept them, that's their business.

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Kaiya J. Diannen  Identity Verified
Australia
Member (2008)
German to English
RE what Tim said Dec 6, 2008

Tim Drayton wrote: As a freelancer, I refuse to sign any agreement that includes a non-competition clause.


I respect this decision, but by the same token I believe you are very lucky and/or working in a niche market that is completely set apart from my own experience.

I cannot think of a single agency that has not presented me with a contract (required for work) containing such a clause, and every time I insert my own changes I meet with resistance. I know for a fact that none of these agencies would work with me if I tried to strike the clause altogether.

My hat's off to you, but some of us have to follow a different modus operandi in order to obtain work.

---

To the OP: Not knowing what type of "skills" this company or their providers intend to impart and what "service" you are referring to that you may be called on to perform for other clients, it's difficult to say what an appropriate response would be (and whether, as some point out, such a prohibition is actually enforceable).

However, it does sound to me that some discussion is in order - it certainly couldn't hurt to ask them how exactly they envision this prohibition working, and you should mention your concerns. Some companies are quite reasonable in allowing modifications to their agreements based on concrete and credible concerns by the other party.

The key (IMHO) is that you should not sign anything you are uncomfortable with. I believe such feelings are a good indicator that something is wrong. If you can get an explanation or modification that eases your concerns, then by all means sign, train, and work. On the other hand, if such attempts fail, you may simply want to look for work elsewhere.

[Edited at 2008-12-06 10:12 GMT]


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Marijke Singer  Identity Verified
United Kingdom
Local time: 14:49
Dutch to English
+ ...
Sign and forget about it Dec 6, 2008

I don't think it can be enforced either.

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Charlie Bavington  Identity Verified
Local time: 14:49
French to English
I'm in the "sign it and forget it" gang (more or less) Dec 6, 2008

"Enforceability" was the very first word that sprang to my mind as I read the OP.

I'm not suggesting we completely disregard everything we sign on the grounds that "you gotta catch me first". But there is also a question of being reasonable.

I can't really think what possible form this "service" and "training" could possibly take that makes it feasible for XYZ to insist that you are able to somehow partition this skills-set and never use it for anyone else. But I would guess that if you keep your head down, and don't e.g. tell a competitor, if you ever work for one, that "XYZ do it this way and it works very well", you should be OK. As you said yourself, it's "non compete". Avoid revealing anything to competitors, and Bob's yer uncle.


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Mónica Algazi  Identity Verified
Uruguay
Local time: 10:49
Member (2005)
English to Spanish
BEWARE Dec 6, 2008

Sorry to bring in a note of alarm. I went through a practically identical experience with a US company based in California. I still hope the situation will change for the better over the next few days. However, I must say I am truly concerned as the senior project manager appears to have vanished just when it was time to pay for the medical translation services provided more than a month ago. Make sure these people are honest, Hengky.

By the way, if things continue this way, I'll make sure to post a comment on the Blue Board to warn everyone.


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Tim Drayton  Identity Verified
Cyprus
Local time: 16:49
Turkish to English
+ ...
Clarification Dec 8, 2008

Tim Drayton wrote:

As a freelancer, I refuse to sign any agreement that includes a non-competition clause. Full stop. If others choose to accept them, that's their business.


Just to clarify matters, I also fully support the clause in Proz's list of professional guidelines reading:

"do not directly contact end clients, or subcontractors, without permission"

I think there is a world of difference between actively soliciting work from end clients, and being unable to accept work from an end client who later contacts you independently, unaware that you have previously worked for them via an agency.

Apart from anything else, agencies don't tell you who the end client is, so how am I supposed to even know who I am barred from working for?


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FarkasAndras
Local time: 15:49
English to Hungarian
+ ...
training Dec 8, 2008

What training is it? If it is designed to teach you their in-house terminology and style guide, sign it and forget it. If it is some even more general BS translation training about how to remove double spaces and how to use the CAT tool they prefer, forget it even faster.

If they are teaching you, say, the use of a highly specialized software localization system which only they and one of their competitors use, they have more of a leg to stand on. Even then, I would only sign and take seriously such an agreement if I got guarantee of huge and well-paid assignments.


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Hengky Chiok  Identity Verified
United States
Local time: 06:49
Member (2008)
English to Indonesian
+ ...
TOPIC STARTER
I will ask for a revision. Dec 8, 2008

FarkasAndras wrote:

What training is it? If it is designed to teach you their in-house terminology and style guide, sign it and forget it. If it is some even more general BS translation training about how to remove double spaces and how to use the CAT tool they prefer, forget it even faster.

If they are teaching you, say, the use of a highly specialized software localization system which only they and one of their competitors use, they have more of a leg to stand on. Even then, I would only sign and take seriously such an agreement if I got guarantee of huge and well-paid assignments.


Thank you all for your responses.

I am in the process of asking the company to revise the provision and will incorporate some of your inputs in my arguments. I do not feel comfortable signing such a provision as it is; and also I can't sign and then forget/not complying with it. The former will not be fair to me, the latter to them.

Thank you again for the inputs.

Sola Gratia, Soli DEO Gloria,
Hengky


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Deborah Hoffman  Identity Verified

Local time: 09:49
Russian to English
+ ...
they can ask for anything... Jan 13, 2009

However where I live non-compete agreements aren't enforceable after one year. Results may vary.

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Emma Gledhill
Local time: 15:49
German to English
+ ...
Agreed Jan 19, 2009

Tim Drayton wrote:

Tim Drayton wrote:

As a freelancer, I refuse to sign any agreement that includes a non-competition clause. Full stop. If others choose to accept them, that's their business.


Just to clarify matters, I also fully support the clause in Proz's list of professional guidelines reading:

"do not directly contact end clients, or subcontractors, without permission"

I think there is a world of difference between actively soliciting work from end clients, and being unable to accept work from an end client who later contacts you independently, unaware that you have previously worked for them via an agency.


Agreed. I also think an indefinite non-competition clause w/could be regarded by a court as an unreasonable restraint of trade and therefore unenforceable - under English law at any rate


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