Non-disclosure Agreement and General Terms of business proposed by a translation agency
Thread poster: Luca Morganti

Luca Morganti  Identity Verified
Belgium
Local time: 11:05
Spanish to Italian
+ ...
Feb 21, 2016

Hello all, I would like to ask your kind opinion on the conditions that a translation agency has proposed me in order to be included in their database, since the contract is within the English Law - a context I have never worked in up to now.

Firstly, I have been sent a non-disclosure agreement, which doesn’t start by indicating the names and dates of birth of the parties and other significant data, but only their names. Isn’t that uncommon?

Secondly, the same agreement reads: “This agreement shall be binding upon me and my personal representatives and successors in interest, and shall inure to the benefit of the Company, its successors and assigns.” Is it normal that my personal representatives and successors are involved?

Thirdly, I have also received the General Terms of Business, where it’s not clearly expressed that the translator is free to accept or refuse a translation task, even though a clause reads:
“Any delivery date or dates agreed between the translator and the Client shall become binding only after the translator has seen or heard all of the source material to be translated and has received complete instructions from the Client. The date of delivery shall not be of the essence unless specifically agreed in writing.”
…therefore, I suppose that the translator is not obliged to carry out a translation assignment unless (s)he accepts the deadline.

Finally, in the same General Terms there is another clause, which reads:
“Where in the course of business the translator’s Client is an intermediary and introduces the translator to a third-party work-provider, the translator shall not knowingly, for a period of 2 years from return of the last translation task arising from the introduction, approach the said third party for the purpose of soliciting work, nor work for the third party in any capacity involving translation, without the Client’s written consent. However, this shall not apply where:
the third-party work-provider has had previous dealings with the translator, or
the translator acts on the basis of information in the public domain.”
To be honest, I remember a colleague telling me that some companies impose such a condition, but I ask you just to make it sure.

Thank you in advance for your cooperation!


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philgoddard
United States
Member (2009)
German to English
+ ...
Nothing to worry about Feb 21, 2016

These are all perfectly reasonable provisions. I don't think it's worth poring over the minutiae of agreements like this - unless there's anything that's blatantly unfair or ridiculous, I'd sign it.

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Soonthon LUPKITARO(Ph.D.)  Identity Verified
Thailand
Local time: 17:05
Member (2004)
English to Thai
+ ...
Support Feb 22, 2016

philgoddard wrote:

These are all perfectly reasonable provisions. I don't think it's worth poring over the minutiae of agreements like this - unless there's anything that's blatantly unfair or ridiculous, I'd sign it.


I support this movement.
The NDA and terms are now quality standard based translation transaction.

Soonthon L.


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Stephen Rifkind  Identity Verified
Israel
Local time: 12:05
Member (2004)
French to English
+ ...
Bugaboos Feb 22, 2016

The two conditions I refuse to accept involve no time limit to the restriction on working with the agency's customers - 2 years is fine and reasonable - and unlimited liability for errors in translation, including indemnification. That latter could get you into bankruptcy court. I insist that my liability is limited to the size of the invoice, period. I may lose an occasional client but it saves me much more in the liability insurance I would have to purchase to allow for the worst case scenario. I should add that I am a legal translator while my wife is a medical translator, both "hazardous" professions.

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Luca Morganti  Identity Verified
Belgium
Local time: 11:05
Spanish to Italian
+ ...
TOPIC STARTER
Liability Feb 22, 2016

Stephen Rifkind wrote:

The two conditions I refuse to accept involve no time limit to the restriction on working with the agency's customers - 2 years is fine and reasonable - and unlimited liability for errors in translation, including indemnification. That latter could get you into bankruptcy court. I insist that my liability is limited to the size of the invoice, period. I may lose an occasional client but it saves me much more in the liability insurance I would have to purchase to allow for the worst case scenario. I should add that I am a legal translator while my wife is a medical translator, both "hazardous" professions.


Thank you for your feedback. As for liability, the General Terms read:
"The liability of the translator is restricted to an agreed limit of cover under the professional indemnity insurance available to translators."
Therefore, I think it is a good proposal.


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 11:05
Member (2005)
English to Spanish
+ ...
Exactly what I do Feb 22, 2016

Stephen Rifkind wrote:
The two conditions I refuse to accept involve no time limit to the restriction on working with the agency's customers - 2 years is fine and reasonable - and unlimited liability for errors in translation, including indemnification. That latter could get you into bankruptcy court. I insist that my liability is limited to the size of the invoice, period. I may lose an occasional client but it saves me much more in the liability insurance I would have to purchase to allow for the worst case scenario. I should add that I am a legal translator while my wife is a medical translator, both "hazardous" professions.

Indeed these are the two clauses I have had to reject more often in the past. In some cases, the agency refused to give me any work without accepting those clauses... and I was happy to wish them luck and wave them good bye. My peace of mind is most valuable for me.


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David Wright  Identity Verified
Austria
Local time: 11:05
German to English
+ ...
Insurance cover Feb 22, 2016

"The liability of the translator is restricted to an agreed limit of cover under the professional indemnity insurance available to translators."

Careful though - if you don't actually have this insurance you can still be liable up to the cover limit, which will be a lot more than the amount of the invoice. Check back with them if they can recommend an insurer and what it would cost (I have insurance and it provides complete peace of mind for not much money - and it's tax-deductible, of course).


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Michael Wetzel  Identity Verified
Germany
Local time: 11:05
German to English
With David Feb 22, 2016

If you do not have insurance, the clause about indemnity insurance actually seems to say the exact opposite of what you presumably want it to say.

And the question of what country's laws and courts govern the contract may also be an issue worth worrying about, although I can't imagine any agency offering any flexibility regarding this point.


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Luca Morganti  Identity Verified
Belgium
Local time: 11:05
Spanish to Italian
+ ...
TOPIC STARTER
Thank you! Feb 23, 2016

Thank you all for your kind feedback! I will look into the insurance matter.
Have a nice day!


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Samuel Murray  Identity Verified
Netherlands
Local time: 11:05
Member (2006)
English to Afrikaans
+ ...
@Luca Feb 23, 2016

Luca Morganti wrote:
Firstly, I have been sent a non-disclosure agreement, which doesn’t start by indicating the names and dates of birth of the parties and other significant data, but only their names. Isn’t that uncommon?


I have never been asked for my date of birth or identifying information other than my name and sometimes also my address, in an NDA or agreement.

“This agreement shall be binding upon me and my personal representatives and successors in interest, and shall inure to the benefit of the Company, its successors and assigns.”


I usually delete the word "successors" from this clause. I do not wish my wife and children to be bound by the agreement after I'm dead.

“Where in the course of business the translator’s Client is an intermediary and introduces the translator to a third-party work-provider, the translator shall not knowingly...”


Actually, this is not bad -- contracts usually omit the "knowingly", which you then have to pencil in.


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Samuel Murray  Identity Verified
Netherlands
Local time: 11:05
Member (2006)
English to Afrikaans
+ ...
No, not good Feb 23, 2016

Luca Morganti wrote:
"The liability of the translator is restricted to an agreed limit of cover under the professional indemnity insurance available to translators." ... Therefore, I think it is a good proposal.


No, this is no good. Read it carefully. Your insurance isn't always going to pay out the maximum limit of your cover. In fact, under certain circumstances the insurer might decide to pay very little. So, if your cover is for e.g. $1 million, but the insurer decides that he's only going to pay $500k, then if you agree to the clause that you mention above, you are liable for the other $500k.


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 11:05
English to Polish
+ ...
... Mar 29, 2016

Luca Morganti wrote:

Hello all, I would like to ask your kind opinion on the conditions that a translation agency has proposed me in order to be included in their database, since the contract is within the English Law - a context I have never worked in up to now.

Firstly, I have been sent a non-disclosure agreement, which doesn’t start by indicating the names and dates of birth of the parties and other significant data, but only their names. Isn’t that uncommon?

Secondly, the same agreement reads: “This agreement shall be binding upon me and my personal representatives and successors in interest, and shall inure to the benefit of the Company, its successors and assigns.” Is it normal that my personal representatives and successors are involved?


Usual village-shaman routine of American lawyers, they just need to show off a bit.

If you're feeling particularly evil, initiate a dead-serious discussion about the merits of a 'hereof' afterward instead of an 'its' beforehand.

Any delivery date or dates agreed between the translator and the Client shall become binding only after the translator has seen or heard all of the source material to be translated and has received complete instructions from the Client. The date of delivery shall not be of the essence unless specifically agreed in writing.


Where did you find those saints? I've never heard a more reasonable and compassionate clause in an agency's contract, ever. Its only goal is protect your rights and remove ambiguity by spelling out a job is binding only after you've really sealed it — and that deadlines are ETAs rather than something that obliges you to jump off the cliff if you miss it by a minute, as is the usual fare.

…therefore, I suppose that the translator is not obliged to carry out a translation assignment unless (s)he accepts the deadline.


More like accepts everything after being told and shown everything.

Finally, in the same General Terms there is another clause, which reads:
“Where in the course of business the translator’s Client is an intermediary and introduces the translator to a third-party work-provider, the translator shall not knowingly, for a period of 2 years from return of the last translation task arising from the introduction, approach the said third party for the purpose of soliciting work, nor work for the third party in any capacity involving translation, without the Client’s written consent. However, this shall not apply where:
the third-party work-provider has had previous dealings with the translator, or
the translator acts on the basis of information in the public domain.”
To be honest, I remember a colleague telling me that some companies impose such a condition, but I ask you just to make it sure.


They're being very reasonable, but they forgot to include an exception for working for the same end clients but through different agencies, which normally nobody minds or tries to prohibit (which would produce more hassle than it's worth and could even be detrimental to the agency whose interests it's supposed to protect).

Seems you've found a really nice agency. Keep it and treasure it.

Re: what others mentioned, you don't want to sign anything to do with 'hold harmless' (an alternative wording is 'indemnify') or time-unlimited non-competes. When they ask why, you can always just say you're a translator, not an insurance company; insurance coverage can be purchased separately.

[Edited at 2016-03-29 16:12 GMT]


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Soonthon LUPKITARO(Ph.D.)  Identity Verified
Thailand
Local time: 17:05
Member (2004)
English to Thai
+ ...
Will we not discuss about abuse by the translation agency ? May 7, 2016

Luca Morganti wrote:

Finally, in the same General Terms there is another clause, which reads:
“Where in the course of business the translator’s Client is an intermediary and introduces the translator to a third-party work-provider, the translator shall not knowingly, for a period of 2 years from return of the last translation task arising from the introduction, approach the said third party for the purpose of soliciting work, nor work for the third party in any capacity involving translation, without the Client’s written consent. However, this shall not apply where:
the third-party work-provider has had previous dealings with the translator, or
the translator acts on the basis of information in the public domain.”
To be honest, I remember a colleague telling me that some companies impose such a condition, but I ask you just to make it sure.

Thank you in advance for your cooperation!


I met with some translation agencies that prefer not to pay after delivery of translations. They seek minor provisions or subjective judgment and never pay e.g. "If we find that translation quality is poor, we can cancel the payment."

I think such subjective judgment of the agencies automatically destroy careers of Internet-based translators since the agencies have powers above translators regarding evaluation of the job output as well as payment for the services.

Soonthon L.


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Gabriele Demuth  Identity Verified
United Kingdom
Local time: 10:05
Member (2014)
English to German
May 7, 2016



[Edited at 2016-05-07 04:15 GMT]


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