NDA with premises access/audit clause
Thread poster: Alison High

Alison High  Identity Verified
Switzerland
Local time: 11:46
Member (2003)
French to English
+ ...
Sep 30, 2011

Hi all, this is a thing that has bugged me for a long time....

It seems "standard" to put a clause in a non-disclosure agreement saying the company can come and check out your premises (i.e. your computer) at any time (supposedly to ensure you have deleted what was theirs and needs deleting...) but as soon as you've signed one contract with this clause in it, that would void any other non-disclosure agreement you have signed or would sign because you've given a third-party access rights to your private computer and therefore potentially to any files that belong to other agencies/clients that may be on it at that time.

How can this be OK?

The answers I always get back is

"this is standard"
.... well if it really is standard, then are we all being made into liars?.... yes we'll look after your confidential information, no we won't allow anyone to look at what you've given us for the work you want us to do.... apart from all those agencies with whom I've signed NDAs that stipulate they have access to my computer, that is

or

"we would never do it anyway"
... well if you'd never do it, don't make me sign a dodgy clause, take it out!

Am I the only one to see the conflict here?


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Annamaria Amik  Identity Verified
Local time: 12:46
Romanian to English
+ ...
Unacceptable Sep 30, 2011

Alison High wrote:

Hi all, this is a thing that has bugged me for a long time....

It seems "standard" to put a clause in a non-disclosure agreement saying the company can come and check out your premises (i.e. your computer) at any time (supposedly to ensure you have deleted what was theirs and needs deleting...) but as soon as you've signed one contract with this clause in it, that would void any other non-disclosure agreement you have signed or would sign because you've given a third-party access rights to your private computer and therefore potentially to any files that belong to other agencies/clients that may be on it at that time.

How can this be OK?

The answers I always get back is

"this is standard"
.... well if it really is standard, then are we all being made into liars?.... yes we'll look after your confidential information, no we won't allow anyone to look at what you've given us for the work you want us to do.... apart from all those agencies with whom I've signed NDAs that stipulate they have access to my computer, that is

or

"we would never do it anyway"
... well if you'd never do it, don't make me sign a dodgy clause, take it out!

Am I the only one to see the conflict here?



For the same reasons, I don't think it's legal to access someone else's computer just like that. Maybe with a court order - but that's a completely different situation, first you'd have to be under investigation etc etc.

I find the "delete everything" clause unacceptable too, for two reasons:
1. If I delete everything, how can I prove what I actually translated if later they come back with complaints? (If they insist, ask them to include that your entire liability ceases once you deleted the files - I bet they wouldn't like such an addition!) 2. In my country, you are obliged by law to keep everything for a certain amount of years. I assume similar provisions apply in other countries too.

Nothing is "standard" in a contract, a contract is an agreement between TWO parties. Both parties have to agree and neither of them should act under duress of any kind (I believe that's illegal too).


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 11:46
Member (2005)
English to Spanish
+ ...
Unacceptable Sep 30, 2011

I have NDA's signed with about 20 companies, and none of them wanted that. I would not sign such a clause. Clearly you cannot give anyone access to your computers since that violates other customers' privacy.

The only approach I would probably approve is to that the clause is edited so that it is an independent third-party who is allowed to check your computers, always in your presence, and that the only information they receive is a certificate issued by the independent verifier, with no other information given. Before verification, the independent party would have to sign an NDA issued by you, with similar privacy requirements as those you may have from this potential customers and any other customers, so that this person is never allowed to share any information about whatever other information you may have in your systems.

Unless they change their "standard" (standard for them, that is) clause, I would not sign the agreement. Always make sure you never sign something you cannot/don't want to honour, even if that means losing a potential customer. Better safe than sorry.


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JL01  Identity Verified
United States
Local time: 05:46
English to French
+ ...
A European cmause? Sep 30, 2011

I have read (but not necessarily signed) dozen of NDAs from US translation agencies and never encountered anything like this.

I would never enter any such sort of restriction. If a company wants confidentiality, I'll go work in their facilities, on their equipment. And let them sort things out with the NY State Labor Dept.


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Charlie Bavington  Identity Verified
Local time: 10:46
French to English
I have seen it before, FWIW Sep 30, 2011

I haven't seen it in an NDA for translation work, but FWIW, I have translated contracts where the confidentiality clause includes such provision.

I'm not saying that makes it standard, but is, perhaps, not unheard of. I've often wondered exactly what the real point is, given how impossible it is to prove that you don't possess something or haven't done something, and that the point of checking is to prove that you haven't disclosed/kept something you shouldn't. It's the kind of thing that can only be proved in the breach, really, it seems to me.


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Parrot  Identity Verified
Spain
Local time: 11:46
Member (2002)
Spanish to English
+ ...
That's because... Oct 1, 2011

Charlie Bavington wrote:

FWIW, I have translated contracts where the confidentiality clause includes such provision.


manufacturing may be outsourced, and that's a risk. Some of those contracts include exclusivity as clients, so would they pay a translator's retainer?

And I agree with Annamaria about deleting. To the extent that I revise, I always keep the translator's original.


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Laurent KRAULAND  Identity Verified
France
Local time: 11:46
French to German
+ ...
Please delete Oct 1, 2011

...

[Edited at 2011-10-01 17:03 GMT]


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Alison High  Identity Verified
Switzerland
Local time: 11:46
Member (2003)
French to English
+ ...
TOPIC STARTER
Thanks! Oct 20, 2011

Thanks for your input, everyone!

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NDA with premises access/audit clause

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