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Harsh non-compete contract clause
Thread poster: Milos Prudek

Milos Prudek  Identity Verified
Czech Republic
Local time: 01:09
English to Czech
+ ...
Jul 3, 2011

I just read a new service agreeement from a major agency and the following seems to me unjust:

UNLESS OTHERWISE AGREED BY US YOU SHALL NOT KNOWINGLY, DURING THE TERM OF THIS AGREEMENT AND FOR A PERIOD OF TWO YEARS AFTER TERMINATION OF A CONTRACT, EITHER DIRECTLY OR INDIRECTLY, ON YOUR OWN ACCOUNT OR FOR ANY OTHER PERSON, FIRM OR COMPANY (...) IF YOU ARE A TRANSLATOR, LOCALISTATION TESTER, DESKTOP PUBLISHER, OR ENGINEER APPROACH OUR CLIENTS FOR THE PURPOSE OF SOLICITING WORK, NOR WORK FOR THE CLIENT IN ANY CAPACITY. IF YOU ARE APPROACHED BY OUR CLIENT DIRECTLY YOU SHALL ALERT US BOTH ORALLY AND CONFIRM THE APPROACH IN WRITING WITHOUT DELAY.

I would not approach an agency's client, but why should I refuse work if a client approaches me? Besides it is actually impossible to keep track of clients of each agency... and the end client's name is often not disclosed by the agency.

Does this clause seem fair and common to you?


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Rolf Kern  Identity Verified
Switzerland
Local time: 01:09
English to German
+ ...
It is common Jul 3, 2011

But does not mean a thing in practice.

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Angus Stewart  Identity Verified
United Kingdom
Local time: 00:09
Member (2011)
French to English
+ ...
It's harsh Jul 3, 2011

I agree that this seems quite harsh, particularly the part about not working for the client if they approach you through other channels. In so far as such provisions go further than is necessary to protect the agency's position, then depending upon the applicable law, there is the possibility that they could be regarded as covenants in restraint of trade and struck down on the basis that they unduly restrict competition.

In practical terms, it has little impact if you don't know who the agencies end client is, as is often the case.


[Edited at 2011-07-03 20:26 GMT]


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Tom in London
United Kingdom
Local time: 00:09
Member (2008)
Italian to English
Just say you didn't know Jul 3, 2011

It's fair enough for an outsourcer to try and protect themselves from unscrupulous translators who go over their head and steal their clients.

But trying to impose this as a contractual stipulation on everyone, from Day 1, not only seems like using a sledgehammer to crack a nut; more importantly, its unpleasantly punitive tone creates a very bad impression and is very off-putting.

Even though (as Rolf has already said) it doesn't mean anything in practice (mainly because of the word "knowingly") it sounds so unfriendly and untrusting that all kinds of questions immediately arise as to the past experience of this outsourcer and its attitudes to those who work for it.

Personally speaking, I would trash this agreement and move on to something more pleasant.

[Edited at 2011-07-03 20:40 GMT]


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 01:09
Member (2005)
English to Spanish
+ ...
Very common Jul 3, 2011

Actually I think it is fair that you tell your customer about the end customer approaching you (and I mean the actual exact customer whose jobs you do, not another department/business unit/country division/subsidiary of a company).

However, I think that it is not appropriate that you have to tell the agency AFTER your contract with them has been terminated, and to add insult to injury, for a period of two years. It creates a conflict because to honour the survived clause you would be violating your privacy duty towards your then prospect. The agency does not need to act as a busybody and get to know who you deal with after your contract with them has expired. I really doubt that is legal.

Personally I would tell the agency that you can only work for them if they remove the two-year survival of the clause. I would only sign a contract I am willing to honour, so if you feel you will not honour this clause, it's best not to sign the contract and have full peace of mind.


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Laurent KRAULAND  Identity Verified
France
Local time: 01:09
French to German
+ ...
I had the same problem... Jul 3, 2011

but the timeframe was not 2 years, only 'at least one year' (a very vague formulation).

I asked for clarifications and never received an answer. As there were other points in the contract/agreement which did not meet my full approval, I didn't find necessary to pursue the matter any further.

If I cannot communicate with an agency at a peer-to-peer level, chances are I won't be able to work with them either. It is Psychology 101.


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Teresa Borges
Portugal
Local time: 00:09
Member (2007)
English to Portuguese
+ ...
The first part is very common Jul 3, 2011

as it is considered unethical to contact directly any agency's clients. This being said the two year period seems too harsh!

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gad
United States
Local time: 19:09
Member
French to English
The word "knowingly" is key Jul 4, 2011

Milos Prudek wrote:

I just read a new service agreeement from a major agency and the following seems to me unjust:

UNLESS OTHERWISE AGREED BY US YOU SHALL NOT KNOWINGLY, DURING THE TERM OF THIS AGREEMENT AND FOR A PERIOD OF TWO YEARS AFTER TERMINATION OF A CONTRACT, EITHER DIRECTLY OR INDIRECTLY, ON YOUR OWN ACCOUNT OR FOR ANY OTHER PERSON, FIRM OR COMPANY (...) IF YOU ARE A TRANSLATOR, LOCALISTATION TESTER, DESKTOP PUBLISHER, OR ENGINEER APPROACH OUR CLIENTS FOR THE PURPOSE OF SOLICITING WORK, NOR WORK FOR THE CLIENT IN ANY CAPACITY. IF YOU ARE APPROACHED BY OUR CLIENT DIRECTLY YOU SHALL ALERT US BOTH ORALLY AND CONFIRM THE APPROACH IN WRITING WITHOUT DELAY.

I would not approach an agency's client, but why should I refuse work if a client approaches me? Besides it is actually impossible to keep track of clients of each agency... and the end client's name is often not disclosed by the agency.

Does this clause seem fair and common to you?


It seems fair to me because of the word "knowingly". If the end client's name is not disclosed but that client happens to approach you separately, you are not knowingly working with their client.

[Edited at 2011-07-04 04:59 GMT]


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esperantisto  Identity Verified
Local time: 03:09
Member (2006)
English to Russian
+ ...
Still ambiguous Jul 4, 2011

gad wrote:
It seems fair to me because of the word "knowingly". If the end client's name is not disclosed but that client happens to approach you separately, you are not knowingly working with their client.


Yet, this word still does not sound crisp clear. If the name was not disclosed to me, but I have certain reasons to suppose that this is the client, does it fall into “knowingly” or not?


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Jenny Forbes  Identity Verified
Local time: 00:09
Member (2006)
French to English
+ ...
If you really want to sign this agreement ... Jul 4, 2011

Hello Milos,
If you really want to acquire this agency as a client/sign its agreement, then I suggest that you negotiate on the following basis:
You'll sign the agreement about not KNOWINGLY contacting their clients if they will, in exchange, inform you of the IDENTITY of the clients concerned. You can point out that otherwise you cannot know who those clients are and cannot honour the agreement.
Perhaps that will make the agency see sense?
Otherwise, I wouldn't myself feel happy about signing it.
Best wishes,
Jenny


[Edited at 2011-07-04 08:12 GMT]


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nordiste  Identity Verified
France
Local time: 01:09
English to French
+ ...
ask for the list of their clients ;-) Jul 4, 2011

Tell them that you will be happy to comply as soon as you have a written, up-dated list of their clients

I did it once, the agency answered that in fact the clause was only applicable to their former PM ... and they made an amendment to the contract. At the end I did not sign and did not work for them due to low rates but that is another story.

You cannot just sign and ignore it - in France there are no forbidden or excessive clauses in agreements between freelancesr and companies - the only issue is to refer the case to the court.


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Neil Coffey  Identity Verified
United Kingdom
Local time: 00:09
French to English
+ ...
See if they're negotiable over the term Jul 4, 2011

In principle, they're just trying to protect themselves against unscrupulous people rather than anything malicious. Although it does seem slightly unfair that there is a burden on you to police clients, rather than on the client not to approach one of the agency's translators.

What I think is slightly unreasonable is the period of 2 years and I would probably see if they will reduce this. If a period of 6-12 months goes by and the agency hasn't offered you work from a given client, then it seems to me a bit unreasonable to still deem that you still have a working relationship with that client through the agency.

A longer period might make sense where, e.g. the end client and the agency had trade secrets from one another that they wanted to protect. But for a freelancer-agency relationship, a 2 year curfew seems unreasonable. (On the other hand, a court may also decide it unreasonable and just declare the contract void to begin with, so maybe it suits you...)


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nekonote  Identity Verified
Japan
Local time: 09:09
Member (2009)
English to Japanese
+ ...
common, but weird... Jul 4, 2011

It's normal for any agency to claim that we shouldn't contact directly in the future for another job, because it means agencies lose their customer, accordingly the commission/margin they could receive. And also it clearly says "knowingly", so fair enough.

I actually had already concluded the contract with a client without letting the agancy know. For one reason, I haven't got actual contract with this agency in writings to be signed and sealed. Also, it was possible because the job I got from this agancy was not translation, but verbal translation (interpretation). I still have good relationship with this agency. When I had another interpret job, the company asked me if they should contact me directly or through the agency. They couldn't simply because I'm freelancer, and as company policy, they had to invoice to a firm. So I suggested them to name me.

If it's translation work, then how can we find client?

Now, I'm not a native speaker of English, but I dealt with and saw many contracts like that. It seems kinda "unprofessional" (usage of punctuation, the way they write "if you are a ...." which usually be specified the first time they mention about you; "I,__________ (Translator here in after)...." and I'm sure you know much better such things than I do).

If you're uncomfortable, like nordiste suggested, ask a list of client (which I think they'd refuse) or go for Jenny Forbes's suggestion. Best of luck


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 01:09
Member (2005)
English to Spanish
+ ...
Yes! Jul 4, 2011

nordiste wrote:
Tell them that you will be happy to comply as soon as you have a written, up-dated list of their clients

Indeed this makes total sense! By asking for a full list of clients and their contact people, you have something to check against when a new prospect comes around.


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Krzysztof Kajetanowicz  Identity Verified
Poland
Local time: 01:09
English to Polish
+ ...
terrible, terrible idea Jul 4, 2011

Tomás Cano Binder, CT wrote:

nordiste wrote:
Tell them that you will be happy to comply as soon as you have a written, up-dated list of their clients

Indeed this makes total sense! By asking for a full list of clients and their contact people, you have something to check against when a new prospect comes around.


I'd really think twice before becoming the turkey as Thanksgiving is fast approaching. I guess nordiste meant it to be a joke.

You want to be free to provide services to the broadest possible group. You do not want a long list of clients that you are prohibited from working for. You do not want to know because as soon as you know you can't have a relationship with the client! The word KNOWINGLY is key.

And I do think it's harsh to include clients who approach you, especially if they "approach" you through an agency. I wouldn't sign this, unless I knew it's either invalid or unenforceable.

[Edited at 2011-07-04 09:59 GMT]


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