Good agency, bad contract...?
Thread poster: Pablo Bouvier

Pablo Bouvier  Identity Verified
Local time: 04:31
German to Spanish
+ ...
Aug 8, 2010

A few months ago, I sent a CV to a translation agency in Austria who has a very good BB. The agency sent me a contract back containing penalties of greater amount related to the break of confidentiality, as well as a total renunciation of the translation intellectual property rights, even in a shorter period than the payment one, saying that once I had signed the contract they will send me a translation test. Personally, I do not understand why should I sign a contract before a translation test, as I still may be or not a suitable candidate.

I sent the contract to my lawyer in Spain who understands German and English perfectly (it is German, but lives in Spain) and has an office in both countries. It advised me not to sign the contract under any circumstances because the penalty clauses were unfair and disproportionate and I would be legally unprotected if I decided sign it. So, I informed the agency about what the lawyer had told to me, and as it is seems quite normal to me I did not hear anything more of them. However, in the BB I have seen that many translators work for them without problems, are satisfied with his professional and payments behaviour, and therefore I suppose they will have signed the contract.

What would you advise me to do in this case?



[Edited at 2010-08-09 19:41 GMT]


 

Henry Hinds  Identity Verified
United States
Local time: 20:31
English to Spanish
+ ...
No Aug 8, 2010

No firmes el contrato.

 

Soonthon LUPKITARO(Ph.D.)  Identity Verified
Thailand
Local time: 09:31
Member (2004)
English to Thai
+ ...
I did sign the contract Aug 9, 2010

Pablo Bouvier wrote:
------------------------
However, in the BB I have seen that many translators work for them without problems, are satisfied with his professional and payments behaviour, and therefore I suppose they will have signed the contract.

I signed in a number of contracts even for trial translation. I am sure I will never break the confidentiality clauses under my own intention. That is, I will not be liable for penalty under laws of my country or other countries. However, some agencies stopped contact with me without reason upon receiving my NDA document. Those agencies are mostly large ones in UK or USA.

Best regards,
Soonthon L.


 

Pablo Bouvier  Identity Verified
Local time: 04:31
German to Spanish
+ ...
TOPIC STARTER
Good agency, bad contract...? Aug 9, 2010

Soonthon LUPKITARO(Ph.D.) wrote:

Pablo Bouvier wrote:
------------------------
However, in the BB I have seen that many translators work for them without problems, are satisfied with his professional and payments behaviour, and therefore I suppose they will have signed the contract.


I signed in a number of contracts even for trial translation. I am sure I will never break the confidentiality clauses under my own intention. That is, I will not be liable for penalty under laws of my country or other countries. However, some agencies stopped contact with me without reason upon receiving my NDA document. Those agencies are mostly large ones in UK or USA.

Best regards,
Soonthon L.




Thanks for share your experience. I would neither break confidentiality in any way, but what the lawyer said to me is that if I resigned to my intellectual property rights, I could not argue the ownership of my translations in case of dispute and less if they were not paid. The issue of confidentiality extends to the non-attendance of agency's clients for an indefinite period, even after the end of the relationship

Under Spanish law (and I believe under the shared European laws too), the exclusivity rights must be settled by an economical compensation for the damage it causes to you, and on the other hand I would not know neither who is or is not a client of the agency. So it's a bit absurd. I could understand if they were indirect customers I had worked for through the agency, but that's not what the contract said.


[Edited at 2010-08-09 01:37 GMT]


 

Soonthon LUPKITARO(Ph.D.)  Identity Verified
Thailand
Local time: 09:31
Member (2004)
English to Thai
+ ...
Indirect client Aug 9, 2010

Pablo Bouvier wrote:
Under Spanish law (and I believe under the shared European laws too), the exclusivity rights must be settled by an economical compensation for the damage it causes to you, and on the other hand I would not know neither who is or is not a client of the agency. So it's a bit absurd. I could understand if they were indirect customers I had worked for through the agency, but that's not what the contract said.

I absolutely agree with Pablo. In my translation job last year, I delivered the documents and I had payment dispute with the agency. I was partially paid and I had a NDA with that agency. A year later, a Canadian agency's lawyer contacted me on confidentiality to sign another NDA for payment of extra amount for my job. I declined. Two months later another USA agency's lawyer contacted me for another NDA and confidentiality again. I declined on reason that I never had direct legal contacts and contracts with both lawyers. They stopped annoying me.

I am not good at laws but I insist many frightening lawyer's notices: In my country, legal statements are partially invalid due to contradiction with laws and treaty.
Why not we share annoying legal clauses among translators?

Best regards,
Soonthon L.


 

Stanislav Pokorny  Identity Verified
Czech Republic
Local time: 04:31
English to Czech
+ ...
Yep Aug 9, 2010

Pablo Bouvier wrote:
Under Spanish law (and I believe under the shared European laws too), the exclusivity rights must be settled by an economical compensation for the damage it causes to you, and on the other hand I would not know neither who is or is not a client of the agency. So it's a bit absurd.


Exactly. If your lawyer says that the contract is one-sided and does not provide sufficient space to enforce your own rights, I would simply live on without that agency.


 

Pablo Bouvier  Identity Verified
Local time: 04:31
German to Spanish
+ ...
TOPIC STARTER
Good agency, bad contract...? Aug 9, 2010

Henry Hinds wrote:

No firmes el contrato.


Thanks Henry. I did not sign it. What bothers me a bit is that it has a good reputation as agency and seems to fulfill their commitments.


 

Pablo Bouvier  Identity Verified
Local time: 04:31
German to Spanish
+ ...
TOPIC STARTER
Yep... Aug 9, 2010

Stanislav Pokorny wrote:

Pablo Bouvier wrote:
Under Spanish law (and I believe under the shared European laws too), the exclusivity rights must be settled by an economical compensation for the damage it causes to you, and on the other hand I would not know neither who is or is not a client of the agency. So it's a bit absurd.


Exactly. If your lawyer says that the contract is one-sided and does not provide sufficient space to enforce your own rights, I would simply live on without that agency.


Thanks for sharing your opinion. It is what I think too.


 

Aude Sylvain  Identity Verified
France
Local time: 04:31
English to French
+ ...
crossing out the clause? Aug 9, 2010

What about signing the contract but with the abusive clause crossed out (and providing an alternative reasonable provision)?

This was discussed in another thread recently, and I think that's a fair solution.

If the agency refuses to work on the basis of this amended contract... well you won't have any regret!

Edit: I found back the earlier thread... You were totally right IMO! http://ben.proz.com/forum/being_independent/177041-clause_in_an_agreement_please_read_and_comment-page2.html#1556557

[Edited at 2010-08-09 20:40 GMT]


 

Aude Sylvain  Identity Verified
France
Local time: 04:31
English to French
+ ...
- Aug 9, 2010

sorry - posted twice by mistake

[Edited at 2010-08-09 21:38 GMT]


 

Stuart Dowell  Identity Verified
Poland
Local time: 04:31
Member (2007)
Polish to English
+ ...
Has an agency ever taken up its rights under such an agreement? Aug 10, 2010

I hope the moderator considers my addition to this thread to be on-topic - apologies if it is not.

The issue here of course is whether it is worth working for an agency that has disproportionate penalties for breaking confidentiality.

I would like to ask if anyone knows of a case in which an agency has taken up its rights under such a contract against a translator. I'm not even asking whether the agency won or not - just whether anyone knows of a case ever going to court.

The answer to this might be relevant when considering whether it's worth signing that type of NDA.






[Edited at 2010-08-10 09:04 GMT]


 

Samuel Murray  Identity Verified
Netherlands
Local time: 04:31
Member (2006)
English to Afrikaans
+ ...
[duplicate] Aug 10, 2010

[duplicate -- if you accidently press ENTER while your cursor is still in the subject field, ProZ.com thinks that you are finished with your reply, and it posts the thing.]

[Edited at 2010-08-10 10:15 GMT]


 

Samuel Murray  Identity Verified
Netherlands
Local time: 04:31
Member (2006)
English to Afrikaans
+ ...
What else did your lawyer say? Aug 10, 2010

Pablo Bouvier wrote:
I sent the contract to my lawyer in Spain who understands German and English perfectly (it is German, but lives in Spain) and has an office in both countries. It advised me not to sign the contract under any circumstances because the penalty clauses were unfair and disproportionate and I would be legally unprotected if I decided sign it.


Yes, but did the lawyer tell you which clauses to delete in order to make the contract acceptable? Remember, your lawyer's job not to provide a neutral, objective information service... instead, your lawyer's job is to protect you. So if your lawyer said "don't sign this contract" he is probably right, but if you want to work for that agency, the prudent thing to do would be to change the contract into something that is good for you.

What is bad for you is the contract as a whole, but that doesn't mean that every single clause in it is bad for you.



[Edited at 2010-08-10 10:14 GMT]


 

Pablo Bouvier  Identity Verified
Local time: 04:31
German to Spanish
+ ...
TOPIC STARTER
Good agency, bad contract...?" Aug 10, 2010

Samuel Murray wrote:

Pablo Bouvier wrote:
I sent the contract to my lawyer in Spain who understands German and English perfectly (it is German, but lives in Spain) and has an office in both countries. It advised me not to sign the contract under any circumstances because the penalty clauses were unfair and disproportionate and I would be legally unprotected if I decided sign it.


Yes, but did the lawyer tell you which clauses to delete in order to make the contract acceptable? Remember, your lawyer's job not to provide a neutral, objective information service... instead, your lawyer's job is to protect you. So if your lawyer said "don't sign this contract" he is probably right, but if you want to work for that agency, the prudent thing to do would be to change the contract into something that is good for you.

What is bad for you is the contract as a whole, but that doesn't mean that every single clause in it is bad for you.



[Edited at 2010-08-10 10:14 GMT]


I agree with you Samuel. I sent him the scanned contract as he is on vacancies now and he called me back saying not to sign the contract. So, I did not spoke in depth with him and I am waiting his return.

But, he told me briefly by phone not to accept penalties of greater amount, no to resign to the translation rights until all translations jobs were full paid and above all not to accept the clause of non-attendance of agency's clients for an indefinite period, even after the end of the relationship with the agency. The other clauses of the contract almost reinforces these three points.

IMHO, all this together may be considered as near to the whole contract. This is why I am waiting his return too. If they were only a couple of clauses in a contract I had crossed them out, and send the modified contract signed back.



[Edited at 2010-08-10 12:41 GMT]


 

Laurent KRAULAND (X)  Identity Verified
France
Local time: 04:31
French to German
+ ...
This is a matter... Aug 10, 2010

to be discussed between whoever drafted this clearly one-sided contract for the agency (probably a lawyer who does not know much about the translation sector) and your own lawyer.

Furthermore, agreeing on penalties before any kind of damage has been clearly estimated means that you renounce to the protection of your professional liability insurance.



[Edited at 2010-08-10 16:49 GMT]


 


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