Pages in topic:   [1 2] >
Is this contractual clause too draconian?
Thread poster: Robert Dunn

Robert Dunn  Identity Verified
Panama
Local time: 00:24
Member (2013)
German to English
+ ...
Dec 14, 2013

I recently "turned down" a translation agency from Europe that had the following clause related to TM use in their translator agreement (to be signed by me):

1. If the Contractor applies a “CAT program” (computer aided translation software) for implementation of ordered Services using a Translation Memory (such as TRADOS etc.) then the created or modified translation memory shall be delivered to the Client as an integral part of the implemented Services. The translation memory created or modified by the Contractor for the purpose of services ordered by the Client may not be used by the Contractor for his/her own benefit or provided by the Contractor to any third party. In the case of violation of this provision the Contractor commits a criminal act generating the right of the Client to impose a contractual penalty in the amount of EUR 36341.


This basically stated that any TM that I made for that particular job is to be given to the Client (no issue with that) but I interpreted "may not be used...for his/her own benefit" as meaning that I may not even use it for other jobs I may receive (including ones from the same client) and that I could get a penalty of 34,341 EUR for that?!

What do you guys think about this? I am interested in your opinions/perspectives.

[Edited at 2013-12-14 00:31 GMT]


Direct link Reply with quote
 

Ricardy Ricot  Identity Verified
Local time: 01:24
French to English
+ ...
Patent troll? Dec 14, 2013

This strongly reminds me of the patent trolls cases in the tech/software industry

Direct link Reply with quote
 

Sarah McDowell  Identity Verified
Canada
Local time: 00:24
Member (2012)
Russian to English
+ ...
I agree Dec 14, 2013

I would not necessarily turn down projects with them. Instead, I would strike out the words "for his own benefit" but the part about not passing the TM on to third parties is reasonable.

I think they mean 363.41. There should be a decimal point somewhere in there. How they arrived at such an odd amount is beyond me.


Direct link Reply with quote
 

bohy  Identity Verified
France
Local time: 07:24
English to French
+ ...
I agree with Sarah Dec 14, 2013

Many agencies will agree that you strike out whichever options you don't feel comfortable with, provided that you explain why... and they will sometimes admit that their agreement is outdated and unrealistic.
In this particular case, it may be a confidentiality issue with some customers, but it looks like the person who wrote the agreement didn't fully understand what a TM is, and how it is used.
Why don't you ask this agency how they can prove that a TM created "for the purpose of services ordered by the Client " has been reused "for the benefit of the contractor"?
This would mean that the same text (or similar text) has been submitted by another customer, and why wouldn't you translate the same text the same way? Come on...


Direct link Reply with quote
 

dianaft  Identity Verified
United Kingdom
Local time: 06:24
Member (2013)
German to English
+ ...
not a good basis for collaboration Dec 14, 2013

There are certain phrases in each speciality field that are used quite frequently. Therefore, they can barely fail to find something you have used again.
If they genuinely wanted to safeguard against unskilled MT providers, then they would get projects set up on a remote server or similar.

Then again, I work with a few clients for whom I have to delete the project TMs and any files associated with the translation immediately after delivery, or where I am not allowed to use any CAT tools in the first place. In those cases, it is a security measure, as the information is confidential. But there are better ways of communicating that. Threatening fines is not one of them.

I know that contractual penalties are commonly set out in other industries and it may well be that the agency owner/ the lawyer writing up the contract comes from that background. But that would imply that they are not too familiar with the translation business themselves, in which case you might find a lot of issues along the way.

I think you're right just to let them go - it doesn't set a basis for a positive working relationship, even if there is no evil intent.


[Edited at 2013-12-14 03:02 GMT]


Direct link Reply with quote
 

Sheila Wilson  Identity Verified
Spain
Local time: 06:24
Member (2007)
English
+ ...
What do they propose paying? Dec 14, 2013

They are demanding full and exclusive use for all time of something which is essentially your intellectual property.

What will their payment be?

Once you have that information you will be in a better condition to decide whether it will be a profitable partnership.


Direct link Reply with quote
 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 07:24
English to Polish
+ ...
TM contains confidential info Dec 14, 2013

TM's contain confidential and proprietary information that belongs to your clients. You don't really have an automatic right to use it in your other jobs, so the clause changes little.

However, I'm worried about why they saw the need to include that, the 'criminal act', the novelty of attaching a contractual penalty to TM issues alone. Basically, innovation always worries me in such contracts.


Direct link Reply with quote
 
Theo Bernards  Identity Verified
France
Local time: 07:24
English to Dutch
+ ...
Up to a point I agree Dec 14, 2013

...
TM's contain confidential and proprietary information that belongs to your clients. You don't really have an automatic right to use it in your other jobs, so the clause changes little.
...


... but if you have, for example, translated user manuals of quinzepretzloskis for AbFab Quinzeprtzlotskis GmbH and the terminology used is deemed typical in the industry of quinzepretzlotskis, then no amount of red tape or confidentiality clauses can forbid you the use of that general quinzepretzlotski terminology for a new contract with OsoCheap Quinzepretzlotski Ltd Pvt, regardless of the TM in which that quinzepretzlotski terminology is found. The problem only becomes a reality when a translator is sloppy enough to forget omitting names and confidential information from AbFab in the translations he hands in to OsoCheap (I use the fictional example of quinzepretzlotskis because I translated many user manuals for power tools and I don't want my clients to think that I willy-nilly laced their competitors' translation memories with their confidential information ☺).

A job-specific translation memory may of course never be handed to third parties, but short of installing spyware or having someone looking over your shoulder to see what you are doing, how can you enforce non-usage of such translation memories by their creators? The clause seems as unpractical as it seems over the top. Some translation agencies and companies regard way too much information as privileged, confidential and off-limits, in my opinion. A bit more common sense and a little less red tape would - perhaps - be better.,,


Direct link Reply with quote
 

Robert Dunn  Identity Verified
Panama
Local time: 00:24
Member (2013)
German to English
+ ...
TOPIC STARTER
Replies Dec 14, 2013

@Sheila Wilson: Their pay wasn't anything great either.

@Łukasz: I understand that TMs contain proprietary, private client information and I do my best to make sure it does not fall into the wrong hands/become exposed, but then again, unless I were doing another job from the client that had the EXACT same wording (which was the case for this service agreement I did for a client once, from which I built-up a nice TM), I do not see how any proprietary information may be revealed from a TM if I were, for instance, working on a service agreement from another company.

Even if proprietary information in that case would somehow be "automatically inserted" by Trados, I would catch it and delete it, which is what any responsible translator ought to be doing anyway as part of a careful proofreading of the project.


In this instance, having the same TM helped me complete a 7K word job from this same client in about 1/3 of the time it would normally take to do so thanks to the TM's matches (gotta love how service agreements mostly have consistent wording throughout different revisions), which would arguably count as "benefiting" from the translation as per those draconian contract terms that I ultimately declined.

[Edited at 2013-12-14 15:28 GMT]


Direct link Reply with quote
 

Tim Friese  Identity Verified
United States
Local time: 00:24
Member (2013)
Arabic to English
+ ...
Very draconian Dec 14, 2013

Robert Dunn wrote:

I recently "turned down" a translation agency from Europe that had the following clause related to TM use in their translator agreement (to be signed by me):

1. If the Contractor applies a “CAT program” (computer aided translation software) for implementation of ordered Services using a Translation Memory (such as TRADOS etc.) then the created or modified translation memory shall be delivered to the Client as an integral part of the implemented Services. The translation memory created or modified by the Contractor for the purpose of services ordered by the Client may not be used by the Contractor for his/her own benefit or provided by the Contractor to any third party. In the case of violation of this provision the Contractor commits a criminal act generating the right of the Client to impose a contractual penalty in the amount of EUR 36341.


This basically stated that any TM that I made for that particular job is to be given to the Client (no issue with that) but I interpreted "may not be used...for his/her own benefit" as meaning that I may not even use it for other jobs I may receive (including ones from the same client) and that I could get a penalty of 34,341 EUR for that?!

What do you guys think about this? I am interested in your opinions/perspectives.

[Edited at 2013-12-14 00:31 GMT]


I would not be willing to sign an agreement with such a clause. I likewise agree that not handing your TM over to a third party is a perfectly reasonable condition.


Direct link Reply with quote
 

Katalin Horváth McClure  Identity Verified
United States
Local time: 01:24
Member (2002)
English to Hungarian
+ ...
It does not prevent you from using the TM for the same client Dec 14, 2013

In my reading, this clause does not prevent you from using the TM for the same client.
Here it goes:
"The translation memory created or modified by the Contractor for the purpose of services ordered by the Client"
Note the "services" is in plural, so it refers to not only the first job, but all subsequent ones. If you create a TM or modify one (either the one you created at the first job for them, or the one they gave you) you are doing that for the purpose of services ordered by the client. You are using it for their benefit, to provide consistent translations within each job, and across all jobs for them.
You are providing services for them for a negotiated price, there is no extra "benefit" for you aside from receiving compensation for the services you provide for them.

The clause is to prevent you from using that TM for other clients' jobs or selling it to someone else. I think that is a fair request. Others already have explained the technical reasons for that. If you, during the course of working for this client, create a separate TM or a termbase with general terms that don't have any client-specific information neither in the terms or TUs themselves, nor in the other parameter fields, that is OK, that is your IP, and it is noone else's business. It is like a plumber learning a new way to apply grease to a pipe joint.

This is how I read that clause.
The awkward Euro figure comes from converting USD 50,000 to Euros, so it is possible that this clause was copied from a US contract.

Katalin


Direct link Reply with quote
 
Texte Style
Local time: 07:24
French to English
It says "If" Dec 14, 2013

It says "If the Contractor applies a “CAT program”

How can they even tell that you use one in the first place?
What's to stop you from saying that you don't use any?
How can they prove anything about how you work?


Direct link Reply with quote
 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 07:24
English to Polish
+ ...
... Dec 14, 2013

Robert Dunn wrote:

@Sheila Wilson: Their pay wasn't anything great either.

@Łukasz: I understand that TMs contain proprietary, private client information and I do my best to make sure it does not fall into the wrong hands/become exposed, but then again, unless I were doing another job from the client that had the EXACT same wording (which was the case for this service agreement I did for a client once, from which I built-up a nice TM), I do not see how any proprietary information may be revealed from a TM if I were, for instance, working on a service agreement from another company.

Even if proprietary information in that case would somehow be "automatically inserted" by Trados, I would catch it and delete it, which is what any responsible translator ought to be doing anyway as part of a careful proofreading of the project.


In this instance, having the same TM helped me complete a 7K word job from this same client in about 1/3 of the time it would normally take to do so thanks to the TM's matches (gotta love how service agreements mostly have consistent wording throughout different revisions), which would arguably count as "benefiting" from the translation as per those draconian contract terms that I ultimately declined.

[Edited at 2013-12-14 15:28 GMT]


Robert, it's not about the possibility information coming out but rather the question whether you have the right to use that proprietary information in the first place (even as a learning aid, should you wish to keep it as reference materials). This problem is often ignored by the language 'industry' these days. However, proprietors have the right to permit or forbid such use. (Regardless what we think about the justice or expediency of the current state of regulations protecting intellectual property.)


Direct link Reply with quote
 
Joakim Braun  Identity Verified
Sweden
Local time: 07:24
German to Swedish
+ ...
As expected Dec 14, 2013

Robert Dunn wrote:
@Sheila Wilson: Their pay wasn't anything great either.


How entirely unsurprising.

Agency pay is usually inversely correlated to the number of back-covering, responsibility-shirking and indemnification clauses in contracts.


Direct link Reply with quote
 

Wolf Kux  Identity Verified
Brazil
Local time: 02:24
Member (2006)
German to Portuguese
+ ...
A TM may contain phrases .... Dec 14, 2013

that others of your clients may used on their translations, correct ? On the other hand, nobody, no company is owner of any phrases nor any word on any language. OK, exceptions may be registered slogans or product / company names.

So, what may happen if you mix this TM with other TMs, for example, TMs that could be obtained after aligning a translated text from European Union?

Maybe that this is a new TM, composed by 2 different TMs and it could be not easy to proof that this union happened.

As a freelancer you could work for this client and for their competitors, provided, of course, you do not tell confidential issues from client A to client B.

If your client do not want that you work with competitors, then ask this client to pay you for not doing such tasks.


Direct link Reply with quote
 
Pages in topic:   [1 2] >


To report site rules violations or get help, contact a site moderator:


You can also contact site staff by submitting a support request »

Is this contractual clause too draconian?

Advanced search







Anycount & Translation Office 3000
Translation Office 3000

Translation Office 3000 is an advanced accounting tool for freelance translators and small agencies. TO3000 easily and seamlessly integrates with the business life of professional freelance translators.

More info »
Déjà Vu X3
Try it, Love it

Find out why Déjà Vu is today the most flexible, customizable and user-friendly tool on the market. See the brand new features in action: *Completely redesigned user interface *Live Preview *Inline spell checking *Inline

More info »



Forums
  • All of ProZ.com
  • Term search
  • Jobs
  • Forums
  • Multiple search