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Does non-payment void NDA?
Thread poster: Michelle Kusuda

Michelle Kusuda  Identity Verified
United States
Local time: 22:56
English to Spanish
+ ...
Dec 22, 2014

Dear colleagues,

I have a question. Let's say you have a client that uses your translation but fails to pay you. Would that void the NDA and allow you to exercise your copyright by contacting final client?

Thank you very much in advance for your input!

[Edited at 2014-12-22 15:48 GMT]

[Edited at 2014-12-22 15:48 GMT]


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Lorraine Dubuc  Identity Verified
Canada
Local time: 22:56
Member (2013)
French to English
+ ...
Not sure Dec 22, 2014

But letting your outsourcer know that you intend to let the end client know would be a source of motivation to pay you, I am quite sure

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Sheila Wilson  Identity Verified
Spain
Local time: 03:56
Member (2007)
English
+ ...
I doubt it Dec 22, 2014

But then does the NDA forbid you to contact the end client, or to acknowledge that you've performed a certain translation? It quite often simply covers the content only. It's certainly considered bad business practice to contact the end client without permission from your own client. But once that client has itself committed the ultimate sin of non-payment, I'd say that you could consider all bets off.

It's a difficult call, that's for sure. I did once contact an end client to alert them to my impending copyright abuse action against them. I did get paid by my own client the very next day, so it had the desired effect. But I'm not sure I'd want to do it again as it really wasn't a nice feeling. I suppose it depends on how much is at stake and what the alternatives are.


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 04:56
English to Polish
+ ...
NDA mees confidentiality Dec 22, 2014

Michelle Kusuda wrote:

Dear colleagues,

I have a question. Let's say you have a client that uses your translation but fails to pay you. Would that void the NDA and allow you to exercise your copyright by contacting final client?

Thank you very much in advance for your input!

[Edited at 2014-12-22 15:48 GMT]

[Edited at 2014-12-22 15:48 GMT]


NDA correctly means confidentiality only. It should not be used in reference to other clauses that agencies insert into their contracts.

Confidentiality is unlikely to be waived by nonpayment, but you probably have the right to rescind the contract, voiding the licence or transfer of copyright or even non-competition clauses. If you prohibit the client from using the translation, you are unlikely to recover much money, notably the payment for something the client will no longer be getting.


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Michelle Kusuda  Identity Verified
United States
Local time: 22:56
English to Spanish
+ ...
TOPIC STARTER
I have to check. Dec 22, 2014

I contacted their financial officer whom I informed that since my work was used but not paid for, I am still the copyright owner and would contact end client. Financial officer said: "You cannot do that, it would be a breach of the NDA and I will sue you, I am going to send you an email about it right now. Good bye."

She hung up the phone and although I am still waiting for the email, I thought I would ask the question.

Never had anything like this happen before.

Thank you all for your replies.


[Edited at 2014-12-22 21:36 GMT]


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John Fossey  Identity Verified
Canada
Local time: 22:56
Member (2008)
French to English
Very important point Dec 22, 2014

A very important question. When a contract for consideration is formed - i.e., I agree to do something (translate, not-disclose) in return for which you agree to do something else (pay me) - does failure on the part of one party void the entire agreement? Certainly if I failed to deliver you won't pay me.

I believe the copyright issue is a different issue, because it's covered by intellectual property laws. In many jurisdictions these laws override whatever an agreement might say.

Could some legal readers weigh in?


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Diana Coada  Identity Verified
United Kingdom
Local time: 03:56
Portuguese to English
+ ...
If that is the case... Dec 22, 2014

Łukasz Gos-Furmankiewicz wrote:

Confidentiality is unlikely to be waived by nonpayment, ...


...isn't confidentiality broken on Blue Board and other lists everyday?

I'm not sure what the law says about this, but from a moral point of view, in such cases all bets are off.


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Katalin Horváth McClure  Identity Verified
United States
Local time: 22:56
Member (2002)
English to Hungarian
+ ...
What does your contract say? Dec 22, 2014

Does your contract that describes the services and the payment INCLUDE the NDA clause, or is it a separate agreement?
If it is included, does the contract have a severability clause?
What does your contract say about copyright?
What does the NDA say exactly? Does it forbid you to disclose your business relationship with the agency?

AND - what does the agency say about the payment? Why don't they pay?
Katalin


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Joakim Braun  Identity Verified
Sweden
Local time: 04:56
German to Swedish
+ ...
Why would you need to contact the end client? Dec 22, 2014

Get a payment order or take the agency to small claims court.
That's the way it works in every other business.


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María Soledad Di Fulvio  Identity Verified
Argentina
Local time: 23:56
Member (2013)
English to Spanish
+ ...
Debt collector? Dec 22, 2014

Hi, it was very helpful for me reading what happened to you. I am in the same situation with a translation agency and do not know what else to do. I have written many emails claiming pending payments and the owner, Beverly Wall, does not reply to me. My idea is to call an debt collector. It might be helpful. Do any of you know if this works? thank you!

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The Misha
Local time: 22:56
Russian to English
+ ...
This discussion is absolutely pointless Dec 22, 2014

without knowing what your contract says (if you even have one), why they refuse to pay you and what the governing law is. Any threats to sue you on the part of your non-payer are a laughable bluff and you can rest assured no one in the right mind will sue you, especially if you sit in different countries. Litigation is expensive and unless you are independently wealthy they cannot reasonably expect to even recover their costs. We are still to see, all of us, a case of a translator being sued for anything, anywhere. Feel free to correct me if I am wrong.

Personally, I am of the opinion that all is fair if you've been wronged for no fault of yours. If you've been ripped off, well, rip them you know what yourself if you pardon my French, and for that particular purpose anything goes. I know that's what I'd do.


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Paul Lambert  Identity Verified
Sweden
Local time: 04:56
Member (2006)
Swedish to English
+ ...
Debt collectors are a last but effective resort Dec 22, 2014

soledifulvio wrote:

Hi, it was very helpful for me reading what happened to you. I am in the same situation with a translation agency and do not know what else to do. I have written many emails claiming pending payments and the owner, Beverly Wall, does not reply to me. My idea is to call an debt collector. It might be helpful. Do any of you know if this works? thank you!


On two occasions in the past eight years, I did enlist a debt collector to collect on a delinquent payment. Both occasions involved clients and collectors located outside of my own country. On both occasions, an agreement was made that I only had to pay the collector if and when he succeeded in recovering the debt. On both occasions, the clients paid up very quickly once they saw that I meant business and that a debt collection agency was involved.

The potential downside was the enormous commissions taken by the debt collector (20%!). However, on the second occasion I was able to have the debt collector charge his fees to the client and so I recovered 100%. The first time, I took a big hit, but it was better than getting nothing.

In my case, it seemed that 20% was a bit steep since the clients paid up promptly after getting the notices from the debt collectors; however, that 20% has to cover the costs of cases that are more difficult to collect, up to and including those cases that go to court. The debt collectors generally are very courteous but serious. They begin by amicably approaching the debtors and trying to work out payment plans for those clients who are legitimately struggling, all while looking after my interests.

So, yes, to answer your question, albeit a digression from the main topic, I do suggest debt collectors once your own patience has been tried beyond all reasonable limit.

[Edited at 2014-12-22 20:03 GMT]


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Lorraine Dubuc  Identity Verified
Canada
Local time: 22:56
Member (2013)
French to English
+ ...
BB Dec 22, 2014

Sometimes a poor '1' on the blueboard with a straight forward comment does the job. Nobody likes having a bad reputation. Especially not those who need translators.

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Fiona Grace Peterson  Identity Verified
Italy
Local time: 04:56
Member
Italian to English
Professional integrity Dec 22, 2014

Sheila Wilson wrote:

I suppose it depends on how much is at stake and what the alternatives are.


Sheila makes a good point. I do not know how much you are owed by the agency, however you signed a contract agreeing not to disclose information. The financial side is a separate matter. I understand your frustration, but at the end of the day you are a professional, and as professionals - in my opinion at least - we owe it to ourselves to act with integrity.

Should you decide to go ahead and break the NDA based on non-payment, what would drive you to do so in the future? I think it sets a dangerous precedent. The translation world is not so big after all, and if other clients were to learn of your actions, it may reflect negatively on you in future.

Of course only you know your specific circumstances, and it is difficult for others to comment.

I wish you the best of luck.


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Triston Goodwin  Identity Verified
United States
Local time: 20:56
Spanish to English
+ ...
I wonder Dec 22, 2014

Is there a way to bypass the NDA and simply advise that you still hold the rights to the translation? Normally transfer of ownership takes place upon payment, NDA or no. The agency tried to give away something that it doesn't actually have. When in doubt, call a lawyer

[Edited at 2014-12-22 23:28 GMT]


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