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Onerous confidentiality clause that agency wants me to sign
Thread poster: Comunican

Comunican
United Kingdom
Local time: 20:42
Catalan to English
+ ...
Jun 21, 2009

I have been sent a confidentiality agreement by an agency, which includes a number of clauses that I am uncomfortable about. But there is one in particular that I feel is asking too much.

It says: "The translator guarantees that he/she will ensure that neither the original or translated copies shall through error or theft fall into the hands of third parties. The translator will be responsible for any damages arising from such a loss."

To my mind that is overly onerous. I have good anti-virus protection (Kaspersky), all my Microsoft Updates are in place and my computer is password protected. But how can I "guarantee" that a third party could not physically or virtually break into my computer and steal the information? And, if they did, the consequences could be massive - supposing I had translated a proposal by a company to take over another, or a patent application, and someone hacked into my computer and stole the copìes....? the damages ccould be massive...

I'd appreciate other people's comments.

Many thanks


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Philippe Etienne  Identity Verified
Spain
Local time: 21:42
Member
English to French
use every reasonable means to ensure Jun 21, 2009

If somebody steals your laptop at knifepoint in the street, you reasonably cannot guarantee that you will risk being killed for what's inside.

You can amend the contract and add that you use every reasonable means to ensure that data loss/theft does not occur. This may include physically destroying hard drives or fill it with ones and zeros when decommissioning a computer.

If such theft/loss occurs, then the translator must inform the customer as promptly as feasibly possible.

I don't think you could go much further than that in terms of security and damage mitigation without working at the customer's premises.

What the agency requires here is simply too much.
Note that data loss/theft is very unlikely in any reasonably protected environment. We're not sensitive targets.

Kind regards,
Philippe


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Laurent KRAULAND  Identity Verified
France
Local time: 21:42
French to German
+ ...
Worst-case scenarios Jun 21, 2009

All of the NDA's/confidentiality agreements I have seen as per today were derived from worst-case scenarios and written by lawyers, of course for the sole benefit of their clients.

As I have a rather short fuse, such red tape goes directly to the dustbin. I know they are serious about it - so am I.

Laurent K.

Edit: have those folks ever heard about the practice of professional translators and about quality standards? I doubt it.

[Edited at 2009-06-21 15:40 GMT]


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Aniello Scognamiglio  Identity Verified
Germany
Local time: 21:42
English to German
+ ...
Change it or leave it. Jun 21, 2009

Comunican wrote:

The translator will be responsible for any damages arising from such a loss."


"Any damages" is very vague. $1.000, $5.000 or $20.000 or...?


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xxxPeter Manda
Local time: 15:42
German to English
+ ...
depends on the price Jun 21, 2009

The only thing onerous about the clause is if it is not reflected in the price that you are being paid. If you are being paid an ordinary price for the translation, then the term is likely not enforceable. The imposition of the extra burden must be clearly reflected in the price somehow.

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José Henrique Lamensdorf  Identity Verified
Brazil
Local time: 18:42
English to Portuguese
+ ...
It doesn't state disclosure by whom Jun 21, 2009

Imagine for a moment that this agency is run by crooks. They go in cahoots with their buddies, the end-client, and make information leak from their computer to whoever shouldn't have access to it. Then they sue you for $ 100 grand and yes, according to that clause, you are liable.

What the clause says is that the translator is actually responsible for e-guarding all computers and networks that information will go through, including the agency's.

I am no lawyer anywhere, but if their lawyer can't write a proper, enforceable agreement, chances are that you are dealing with either incompetent or mischievous people.

[Edited at 2009-06-22 12:45 GMT]


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Laurent KRAULAND  Identity Verified
France
Local time: 21:42
French to German
+ ...
Good point, José! Jun 21, 2009

José Henrique Lamensdorf wrote:

What the clause says is that the translator is actually responsible for e-guarding all computers and networks that information will go through, including the agency's.



Which IMHO makes it a causa audita (and therefore illegal) clause, whether the parties involved are crooks, honest people or anything else.

Laurent K.

[Edited at 2009-06-21 16:25 GMT]


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Comunican
United Kingdom
Local time: 20:42
Catalan to English
+ ...
TOPIC STARTER
Thanks for the comments so far Jun 21, 2009

Thanks everyone for your comments thus far - I'm very glad I checked with you.

I now have to decide whether simply to ignore the e-mail and just carry on working with them as normal (I have worked for this agency for a while already) or tackle it and make an issue.

I'll probably just ignore it and see if they chase me...!


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Lesley Clarke  Identity Verified
Mexico
Local time: 14:42
Spanish to English
My two-cents Jun 21, 2009

In view of the excellent comments you have had so far, why don't you suggest to the agency how this clause could be reworded in an acceptable manner?

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Laurent KRAULAND  Identity Verified
France
Local time: 21:42
French to German
+ ...
Alas... Jun 21, 2009

Lesley Clarke wrote:

In view of the excellent comments you have had so far, why don't you suggest to the agency how this clause could be reworded in an acceptable manner?


Such contracts / agreements etc. are usually drafted and written once for all, otherwise it would be too difficult for the agencies to do any kind of follow-up.

I guess a set of particular clauses would do the trick - it is a matter of negotiation - but, from my experience, most agencies having their potential outsourcers signing such agreements send out the message "My way or the highway" at the same time.

Laurent K.


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Comunican
United Kingdom
Local time: 20:42
Catalan to English
+ ...
TOPIC STARTER
Update: agency says if I don't sign I can't work with them again Jun 22, 2009

In view of everyone's comments, I went back to the agency, saying that I thought the clause was onerous, unreasonable and possibly unenforceable... and that I couldn't sign it as it is.

They replied saying I was the first person to refuse and that if I didn't sign it, I wouldn't be able to work with them again.

Surely, this is against some European "fair-working" regulation...?

[By the way, I have worked with them for about 8 or 9 months - not a lot of work, but more projects coming through this year than last, so presumably they are happy with my work]


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Charlie Bavington  Identity Verified
Local time: 20:42
French to English
Not what you say.... etc Jun 22, 2009

Comunican wrote:
In view of everyone's comments, I went back to the agency, saying that I thought the clause was onerous, unreasonable and possibly unenforceable... and that I couldn't sign it as it is.


Hmmmm. Interesting how everyone gets their knickers in a twist if a client queries our use of the subjunctive, yet we all feel quite entitled to re-draft contracts and decide whether clauses are enforceable or not

FWIW, I do think it is sloppy, and that there should probably be a reference in there, as Philippe said, to making reasonable efforts, and it should probably be limited to computer equipment you own or have control over. I think that it is utterly fine to raise the point.

However, unless I had chapter and verse (legislation, cases), I would not dream of expressing an opinion about whether something is enforceable or not. I just think it is a step too far, sounds a little bit confrontational, with a hint of "bah, whatever, you'll never be able to sue me for it (so I'll just ignore it)".

I stress I fully support your view that it won't do as it is, although personally I think it is probably carelessly vague rather than deliberately onerous. It's all about how we go about expressing reservations, and of course we are all different.


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Laurent KRAULAND  Identity Verified
France
Local time: 21:42
French to German
+ ...
No difference at all Jun 22, 2009

Charlie Bavington wrote:

I stress I fully support your view that it won't do as it is, although personally I think it is probably carelessly vague rather than deliberately onerous. It's all about how we go about expressing reservations, and of course we are all different.


Which does not make the slightest difference should a "problem" occur and speaks books for the agency itself...

But as I said before, that kind of documents lands in the place to which it belongs - the WPB. A contract / agreement etc. which fails to protect both parties and is basically non-negotiable is not a contract or an agreement in the modern sense of the term. It is a charter in the medieval sense of the term.

Laurent K.

[Edited at 2009-06-22 10:43 GMT]


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Aniello Scognamiglio  Identity Verified
Germany
Local time: 21:42
English to German
+ ...
That is a clear answer. Jun 22, 2009

Comunican wrote:

They replied saying I was the first person to refuse and that if I didn't sign it, I wouldn't be able to work with them again.


Now you know what to do. Think about it.


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Comunican
United Kingdom
Local time: 20:42
Catalan to English
+ ...
TOPIC STARTER
you're right I dont know if it's unenforceable, but I do know that it is potentially dangerous Jun 22, 2009

Charlie Bavington wrote:

However, unless I had chapter and verse (legislation, cases), I would not dream of expressing an opinion about whether something is enforceable or not. I just think it is a step too far, sounds a little bit confrontational, with a hint of "bah, whatever, you'll never be able to sue me for it (so I'll just ignore it)".


Hi Charlie
Thanks for your comments and support.
I didnt mean "bah, whatever you'll never be able to sue me anyway..."; I meant more that I didnt want to sign something that I didn't actually mean. And that is so onerous and unfair.

I take your point though that saying it is "unenforceable" may have seemed too aggressive; I didn't mean it to sound that way.

What I don't feel capable of doing is re-writing it, esp as the contract is in Spanish.

Overall, I think it's interesting how people react differently. I mentioned it to another translation friend and she said "oh, I don't even read them, I just sign them and send them back!" I am a bit old school and read what I sign.

And in this case, I don't think that something as potentially unreasonable as this should be used to exclude me from their pool of translators.. that way lies slavery! And, as I said above, surely it must be against some EU directive on working with freelancers...?


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