| Pages in topic: < [1 2 3] > | Non-Disclosure Agreement: Is this typical? Thread poster: Rebecca Lyne
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| This one looks normal to me | Jul 17, 2015 |
The last bit could have been written better, but I can't see any outrageous clauses in this even if I absolutely agree with Tom that I hate this lawyer-led approach, and for the same reasons. What some of them seek to establish is a sort of modern master-slave relationship, not an equal relationship between independent businesses.
Some of the terms in such agreements are very aggressive against the translator whom some agency lawyers clearly want to tie on hands and feet while takin... See more The last bit could have been written better, but I can't see any outrageous clauses in this even if I absolutely agree with Tom that I hate this lawyer-led approach, and for the same reasons. What some of them seek to establish is a sort of modern master-slave relationship, not an equal relationship between independent businesses.
Some of the terms in such agreements are very aggressive against the translator whom some agency lawyers clearly want to tie on hands and feet while taking all the rights themselves. Examples:
- right not to pay anything in case of late delivery (even 5 seconds late would enable them to do that), and with no force-majeure exceptions,
- right to cancel a job (implied: not pay anything) if their client cancels with no clause stipulating that you'll be paid for already completed work,
- not excluding public-domain information and other information you have legitimately obtained from other sources from the non-disclosure principle (so if the client's document says the Earth is round, they can sue you for writing that on Facebook),
- not limiting the length of time of the non-competition clause (during which you may not contact their clients),
- not limiting the non-competition clause to those of their clients they have introduced you to,
- having penalty clauses of for example €20,000 or €30,000 you have to pay them in case of breach of a list of clauses,
- leaving it open to the agency to define what insufficient quality is, and giving them the right not to pay anything at all if they alone deem the quality is insufficient.
Needless to say, none of those agreements mentions anything about penalties for late payment.
The more reasonable agencies sometimes accept to fix the problems in these agreements, but you are never paid for the time needed to check bad agreements and suggest improvements.
I have found that the more aggressive the terms, the less willing the agencies are to change them, and in that case, the only thing you can do is to walk away even if their Blue Board is full of 5's. That type of agency will sometimes argue that they already have X hundred translators working for them, to which the only answer is that it's not because X hundred translators have jumped off a legal cliff that it makes sense for anyone else to do so, and those other translators will not cover any or your loss due to the aggressive clauses.
Once, an agency required an NDA signed. It was fairly short, and there was no problem in it. Two weeks later, they wanted another NDA signed. That was also fairly short, but it referred to a security document the translator should confirm had been read and accepted. They had not attached that document, and it took nearly three weeks to get it. When I finally received it, it was nothing more than a management-speak document outlining their high-level principles for their security organisation, and there was not a single, concrete rule in it. ▲ Collapse
| | | | | Trust or risk management? | Jul 17, 2015 |
Sheila Wilson wrote:
I've always expected IT maintenance people to keep my data confidential, and I'm sure they always have done. But we seem to be entering an age where the idea of mutual trust is distrusted. So perhaps we should all be requesting our IT guys to sign an NDA
Only the LL.M. thesis defence presently separates me from being a fully-fledged lawyer in my country, so I may appear to be one of them in the eyes of some, but having all the necessary paperwork in place is, among other things, an effective way of risk management, especially in the corporate world. A properly drafted contract is a tool that predicts and preventively solves disputes and other unwelcome issues. Extensive documentation and strict adherence to prescribed procedures are often required by extremely risk-averse parties with whom the client in question has a financial relationship, such as banks, insurers, etc. Even if there were few people who were unwilling to deal with others in good faith, it would not change the fact that it is still easier to prove one's case by referring to a contractual clause (which will almost always be cheaper to prepare beforehand) or a legal norm than to notions such as "unwritten principles" and "mutual trust" which are inherently more vague than any legalese.
This is merely a general observation on my part. I am saying nothing about abusive clauses - I am well aware of their prevalence, have been offered such clauses by clients, have negotiated over some and rejected some others as unacceptable. I see nothing unreasonable about assuming that the person who drafts a contract has done so primarily to the best of their interest, nor about being prepared to evaluate the extent to which such offer corresponds to translator's own interests. That is precisely what happens in an "equal relationship between independent businesses". More often, though, one party will have more bargaining power than the other. I am not sure whether the translators will ever be in that position re:translation agencies and other clients, but I don't hold out much hope for that, at least until complete, legally recognized professionalization of translation has taken place.
| | | | | A few things | Jul 17, 2015 |
Viesturs Lacis wrote:
having all the necessary paperwork in place is, among other things, an effective way of risk management, especially in the corporate world.
Indeed. However, there is such a thing as making the level of legal complication proportional to the risk at hand. A 50-page contract may be appropriate between two banks but not between a translation agency and a translator. Nobody would ever get started doing business if that were the case. You have to remember that all the legalese is in itself unproductive and a drain on resources on both sides, so it should not be overdone.
It is furthermore not because a contract stipulates anything that the outsourcer will obtain compensation, as there are many more factors to take into account, such as a court's view on it, the solvency of the translator, the cover of his or her liability insurance, the complications and costs of legal action and enforcing judgements in another country etc.
The purpose of the agreement should be to prevent any breach, but by making the more intelligent translators (those who refuse to sign abusive clauses or excessive, legal yada-yada) walk away, the outsourcer could end up with the not-so-smart translators who may also be more likely not to respect the contract clauses. The risk of breach of contract has thereby been increased because of the contract. But I guess they don't teach psychology at lawyer school .
When you look at "risk management", I guess it is natural to expect that a lawyer will not consider any collateral damage from an overly legalistic approach, such as souring the relations from day one with ten pages of legalese to a translator.
Viesturs Lacis wrote:
it is still easier to prove one's case by referring to a contractual clause (which will almost always be cheaper to prepare beforehand) or a legal norm than to notions such as "unwritten principles" and "mutual trust" which are inherently more vague than any legalese.
You forget the law. There is such a thing as national and international law, treaties, conventions etc. in several layers. There is no problem referring to that, and you will find that a lot of the stuff in NDAs and other agreements is already covered by the law, such as for example confidentiality, data protection and civil liability. When those agreements go on and on about the same things already covered by the law, it is nothing less than a waste of resources of the outsourcer and the translator, and only the lawyers editing that yada-yada gain anything. Yes, you will say, by writing your own clauses, you can fine-tune the legal aspects, but don't forget the cost to the outsourcer and the translator of it all.
Viesturs Lacis wrote:
I see nothing unreasonable about assuming that the person who drafts a contract has done so primarily to the best of their interest, nor about being prepared to evaluate the extent to which such offer corresponds to translator's own interests.
From a theoretical, legal aspect, I don't see any problem either. But business is not about legal theory but about obtaining financial gain from a mutually satisfactory collaboration, so when you start out by souring the relations by demanding that the translator sign a completely one-sided agreement, then you start tearing down these relations from day one. One of the consequences is that the outsourcer cuts itself off from those of the translators who are smart enough not to sign their abusive clauses.
| | | | RobinB 
United States
Local time: 20:02
German to English
Rebecca,
This is really clean, no hidden traps, perfectly standard (and, I have to say, admirable) business practice. In fact, many NDAs prescribe an unlimited time period for the confidentiality of unpublished information, as well as a whole load of unnecessary and often unworkable restrictions.
The final clause also isn't a problem, because to be honest, you should have entered into a blanket NDA with any IT service providers you use anyway. We've done this with our T... See more Rebecca,
This is really clean, no hidden traps, perfectly standard (and, I have to say, admirable) business practice. In fact, many NDAs prescribe an unlimited time period for the confidentiality of unpublished information, as well as a whole load of unnecessary and often unworkable restrictions.
The final clause also isn't a problem, because to be honest, you should have entered into a blanket NDA with any IT service providers you use anyway. We've done this with our TM provider for example because of the support contract we have with them (as well as with other IT service providers), though we don't ever give them access to currently confidential information for tech support purposes unless we've obtained the prior consent of the client concerned.
I would have no concerns signing this NDA, and I've signed dozens of them (for direct clients) over the years. I wish they were all as straightforward and transparent as this one!
For the record: most direct clients nowadays will require their translation providers to furnish evidence (either up-front or on demand) that they have entered into NDAs like this with their freelancers. Absolutely nothing to object to there.
Robin ▲ Collapse
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RobinB wrote:
Rebecca,
This is really clean, no hidden traps, perfectly standard (and, I have to say, admirable)
The final clause also isn't a problem, because to be honest, you should have entered into a blanket NDA with any IT service providers you use anyway.
Robin
Do you mean as a sort of default agreement found somewhere in the service agreement?
Thanks!
Rebecca
| | | | | Only one minor quibble | Jul 17, 2015 |
Rebecca Lyne wrote:
for a period of 10 (ten) years after the last service provided for XX and from the date on which I receive the documents for translation and/or the date of the interpreting mission, that all confidential information sent to me by XX or obtained during my mission:
It's not clear to me exactly when the 10-year period starts to run. "Ten years after an event X and from an event Y or an event Z" - no particular problem with the final bit, although a "whichever is the latest" might be nice, but I'm not sure how you measure the 10 years from the combination of last service provided/date documents received.
Minor detail, the gap will not be large, and presumably you have no intention of disclosing anything to anyone anyway, so it's not as if you'll be wondering when to set the timer running
As others have said, I think the last clause is intended to encompass the use of cloud services, as well as "IT guys". Anything that draws attention to the potential perils of cloud services and makes people think about what they are doing when using them has to be a good thing AFAIAC. Of course, it could also encompass other services, e.g. email. But maybe that's not a bad thing, either.
I might ask them to clarify when the 10 years starts, just "for the avoidance of doubt", but on balance, I'd sign it.
[Edited at 2015-07-17 11:04 GMT]
| | | | | another good clause | Jul 17, 2015 |
Rebecca Lyne wrote:
authorise XX to forward my written translation to their client for publication, full or partial reproduction, adaptation or subsequent translation
I don't know what it's doing in an NDA, but this clause actually also caught my attention as displaying admirable foresight and doing an excellent job of exactly what a contract is supposed to do (that is, make everyone's life easier and less uncertain).
This agency seems to have become aware that some or many translations are likely to be attributed intellectual property status by some or many courts in some or many countries. What this clause does is to insure that every involved really is contractually entitled to do all the things that they automatically consider themselves entitled to do (probably often in blissful ignorance of the real state of affairs).
If a given translation is not IP, then the agency and client can do whatever they want with it anyway. If a given translation is IP, then the translator has explicitly agreed to transfer the right to do all of the things with it that the agency and client would (legitimately) like and expect to be able to do with it.
| | | | | It does not look right. | Jul 17, 2015 |
I think you need a lawyer to draft it because too much is at stake. Ten years, why ten years? Certain things are confidential forever.
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| And yet devious translators do exist | Jul 17, 2015 |
Tom in London wrote: Rebecca Lyne wrote:
Thanks for your feedback!
I hate this lawyer-led approach to doing business. It holds everything up and poisons working relationships. This particular non-disclosure agreement assumes at the outset that the translator is a devious, unreliable person who has to be put on a leash. I would walk away from this.
I recently had two passengers in my car from blablacar (Proz loves a car-based anecdote). When I stopped to go into a shop, one of them stayed behind and said, without any sense of irony, "you can leave your keys in the car, I don't mind". She didn't seem particularly devious but I'm not stupid enough to leave myself open to that sort of risk.
I for one think this NDA looks OK. As others have said, the last clause looks a bit strange but really just means don't use Google Translate or any other service which makes no commitment to keep any information you provide confidential.
(And one for all.)
| | | | RobinB
United States
Local time: 20:02
German to English
| NDA with IT service providers | Jul 17, 2015 |
Rebecca Lyne wrote: Do you mean as a sort of default agreement found somewhere in the service agreement?
Thanks!
Rebecca
All our NDAs with IT service providers (including our TM provider) have been separate NDAs that we wrote ourselves. The service agrements did include more general confidentiality clauses, but we felt they didn't go far enough when it came to protecting the confidential information of our (corporate) clients (and in the case of our TM provider, things like the identity of our clients).
My feeling is that you can adapt the excellent NDA you have been provided by your own client for use with your own service providers/TM providers.
As far as the ten-year limit on protecting confidential information is concerned, it certainly doesn't disadvantage you at all. Some of our own clients require unlimited confidentiality, others have something like this ten-year limit. On this sort of issue, it's the client's call, and you have nothing to lose whatever the limit is.
And like I wrote earlier, I wish all NDAs were as simple, straightforward and thoroughly acceptable as this one. It really is quite exemplary. You can sign it and sleep easily.
Robin
| | | | | Can't imagine | Jul 17, 2015 |
RobinB wrote: Rebecca Lyne wrote: Do you mean as a sort of default agreement found somewhere in the service agreement?
Thanks!
Rebecca My feeling is that you can adapt the excellent NDA you have been provided by your own client for use with your own service providers/TM providers. Robin
As a small freelancer, I don't have the motivation quite frankly to go to this extent. Moreover, I can't imagine companies even signing something like this if I approached them on it.
Thanks!
| | | | RobinB
United States
Local time: 20:02
German to English
Rebecca Lyne wrote: As a small freelancer, I don't have the motivation quite frankly to go to this extent. Moreover, I can't imagine companies even signing something like this if I approached them on it.
Thanks!
If you have a support agreement with e.g. a TM provider, they shouldn't object to an NDA of this kind. Alternatively, they may offer you one off-the-shelf that provides equivalent protection.
Otherwise, if you have an IT service provider who may have access to the data on your hard disks, NASs, etc., you should certainly require them to sign an NDA like this.
And of course you should only use a cloud storage provider (if at all) that guarantees that all of its physical storage systems (server farms) are located in the EU and that is certified to the strictest EU information security and data protection standards. There is now quite a market for "NSA-proof" cloud solutions!
Robin
[Edited at 2015-07-17 12:47 GMT]
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Lincoln Hui
Hong Kong
Local time: 09:02
Member
Chinese to English
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| I would have told you to go back and read it again, but | Jul 17, 2015 |
Yasutomo Kanazawa wrote:
I stopped reading at "for a period of 10 (ten) years after the last service provided for XX".
Why should I be legally bound for this client, agency or whoever this could be, for a few hundred or maximum few thousand Euros or US dollars? If we're talking about multi-million dollar project, I might reconsider.
Yes, to stop reading in the middle of a sentence is a very good way to look like an idiot.
| | | | John Fossey
Canada
Local time: 21:02
Member (2008)
French to English
+ ...
I don't think I would have any problem with this.
I think the 10 years is put there because some lawyer thought it would be more reasonable then a "forever" clause. A "forever" clause could be shot down in court because the judge would say it was unreasonable, so 10 years is more likely to survive a challenge. But such a challenge is unlikely to ever happen.
IMO, compared with some of the ridiculous NDAs you see, this one sounds like the realities of the business ha... See more I don't think I would have any problem with this.
I think the 10 years is put there because some lawyer thought it would be more reasonable then a "forever" clause. A "forever" clause could be shot down in court because the judge would say it was unreasonable, so 10 years is more likely to survive a challenge. But such a challenge is unlikely to ever happen.
IMO, compared with some of the ridiculous NDAs you see, this one sounds like the realities of the business have been taken into account. ▲ Collapse
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This looks fine to me as well.
In fact, I've rarely found NDAs to be a problem. They exist to tell you that documents must be kept confidential and that you're liable if the documents are leaked, which is entirely reasonable.
Master/General/Service Agreements are a different story, and these are where agencies seem to put most of their truly devious clauses.
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