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Contract with non-disparagement clause
Thread poster: John Fossey

John Fossey  Identity Verified
Canada
Local time: 07:44
Member (2008)
French to English
Nov 15, 2018

I have just been asked to sign an agency's contract which includes the sentence: "The Subcontractor must not write any negative remark(s) about **company** on any forum or resource, whether publicly accessible or not."

Is this legal? What if the company pays after its agreed date? Would there be any protection for reporting that fact?

The company has generally good reviews on the BB, although this clause makes you wonder how much the BB reviews can be relied on, if the
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I have just been asked to sign an agency's contract which includes the sentence: "The Subcontractor must not write any negative remark(s) about **company** on any forum or resource, whether publicly accessible or not."

Is this legal? What if the company pays after its agreed date? Would there be any protection for reporting that fact?

The company has generally good reviews on the BB, although this clause makes you wonder how much the BB reviews can be relied on, if the company prohibits negative reviews.

[Edited at 2018-11-15 15:01 GMT]
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Mirko Mainardi
 

William Tierney  Identity Verified
United States
Local time: 07:44
Member (2002)
Arabic to English
Yes, it is. Nov 15, 2018

It is legal if you sign it, since a contract is a law unto itself. DON'T SIGN IT. If you otherwise would like to work with this agency, cross out the offending passage and initial in the margin, then send it back. If you receive a response like, "These forms may not be altered," or "Our legal department won't allow this," etc. then you know that you should steer clear. A non-disparagement clause by itself is a red flag. It is basically saying "We are going to treat you like a serf and ther... See more
It is legal if you sign it, since a contract is a law unto itself. DON'T SIGN IT. If you otherwise would like to work with this agency, cross out the offending passage and initial in the margin, then send it back. If you receive a response like, "These forms may not be altered," or "Our legal department won't allow this," etc. then you know that you should steer clear. A non-disparagement clause by itself is a red flag. It is basically saying "We are going to treat you like a serf and there is nothing you can do about it." Let's make the translation industry great again.Collapse


Thomas T. Frost
Mirko Mainardi
Jean Lachaud
Josephine Cassar
Teresa Borges
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Andriy Yasharov
 

Catherine De Crignis  Identity Verified
France
Local time: 13:44
Member (2012)
English to French
+ ...
Sure, let’s do just that! Nov 15, 2018

William Tierney wrote:
Let's make the translation industry great again.




 

Sheila Wilson  Identity Verified
Spain
Local time: 12:44
Member (2007)
English
+ ...
a contract is not a law Nov 15, 2018

William Tierney wrote:
It is legal if you sign it, since a contract is a law unto itself.

I have to disagree with that. A court will examine a contract and will throw out any abusive clauses as not being legally defensible. I know because I was once paid in full even though the contract I very stupidly signed (I was much younger and naïve) said that in those exact circumstances I wouldn't be paid. The judge didn't hesitate before declaring it abusive! The client was so sure of himself that he didn't pay after the judgement. He paid when the bailiff turned up with the police to seize his property, but by then the amount owed in court costs had brought the amount to over double my invoice amount .

DON'T SIGN IT. If you otherwise would like to work with this agency, cross out the offending passage and initial in the margin, then send it back. If you receive a response like, "These forms may not be altered," or "Our legal department won't allow this," etc. then you know that you should steer clear.

But I definitely agree with you there.

I really don't see that it can be legal. It certainly isn't ethical. Employees have the right to strike and to picket in some cases. We must have certain rights too. Maybe it isn't close enough to be used as an example, but I'm active on TripAdvisor and one local accommodation provider made holidaymakers sign that type of clause. They were immediately banned from TA. I would hope that ProZ.com would do the same.


Mirko Mainardi
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Maria Eriksson
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Daryo
 

Tom in London
United Kingdom
Local time: 12:44
Member (2008)
Italian to English
Obviously Nov 15, 2018

John Fossey wrote:

....the company has generally good reviews on the BB, although this clause makes you wonder how much the BB reviews can be relied on....


Obviously! I would never agree to sign anything like that - although if someone doesn't pay you and you say so, that is not disparaging. It's a statement of fact.

[Edited at 2018-11-15 15:22 GMT]


Teresa Borges
Chris S
Michele Fauble
Darius Sciuka
 

Tom in London
United Kingdom
Local time: 12:44
Member (2008)
Italian to English
Obviously Nov 15, 2018

John Fossey wrote:

....the company has generally good reviews on the BB, although this clause makes you wonder how much the BB reviews can be relied on....


Obviously! I would never agree to sign anything like that. Although if someone doesn't pay you and you say so, that is not disparaging. It's a statement of fact.


Thomas T. Frost
 

John Fossey  Identity Verified
Canada
Local time: 07:44
Member (2008)
French to English
TOPIC STARTER
Negative remark Nov 15, 2018

Tom in London wrote:

John Fossey wrote:

....the company has generally good reviews on the BB, although this clause makes you wonder how much the BB reviews can be relied on....


Obviously! I would never agree to sign anything like that. Although if someone doesn't pay you and you say so, that is not disparaging. It's a statement of fact.


Well, the statement said "any negative remark(s)" - I only used the term "disparaging" as a title. If they pay late, stating that fact would obviously be a negative remark.


 

Mirko Mainardi  Identity Verified
Italy
Local time: 13:44
Member
English to Italian
"A contract is a law unto itself" - Really? Nov 15, 2018

William Tierney wrote:

It is legal if you sign it, since a contract is a law unto itself. DON'T SIGN IT. If you otherwise would like to work with this agency, cross out the offending passage and initial in the margin, then send it back. If you receive a response like, "These forms may not be altered," or "Our legal department won't allow this," etc. then you know that you should steer clear. A non-disparagement clause by itself is a red flag. It is basically saying "We are going to treat you like a serf and there is nothing you can do about it." Let's make the translation industry great again.


While I do agree with the general sentiment of William's post (hence the agree), I'm not so sure about the first sentence... What if a contract says you have to sacrifice your first born on an altar if the company CEO asks for it... Would it stand in court? I think not, under either common or civil law systems.

I know this is just Wikipedia, but still: http://en.wikipedia.org/wiki/Standard_form_contract

At any rate, that was more on the "It is legal if you sign it, since a contract is a law unto itself" statement in general. More specifically, about "non disparagement", I found this quite interesting and informative: http://www.jaburgwilk.com/news-publications/what-is-a-non-disparagement-clause-and-why-you-may-not-want-to-sign-one

However, I must say that once again, as with many agreements I have been sent from agencies (which I refused to sign), I have the distinct feeling similar clauses belonged to boilerplate contracts originally meant for employees, slightly modified to apply to external service providers...

I wholeheartedly agree with William that we should refuse one-sided boilerplate agreements to try and stem the tide (although the expression he used has a... uh... let's say "weird" ring to it, for some reason...), but the problem is that there's no "we"...


 

John Fossey  Identity Verified
Canada
Local time: 07:44
Member (2008)
French to English
TOPIC STARTER
Action by Proz.com? Nov 15, 2018

Sheila Wilson wrote:

...I'm active on TripAdvisor and one local accommodation provider made holidaymakers sign that type of clause. They were immediately banned from TA. I would hope that ProZ.com would do the same.


Unfortunately I doubt that will happen, because there's not much scope to complain to Proz.com about a company you have not done work for.


 

William Tierney  Identity Verified
United States
Local time: 07:44
Member (2002)
Arabic to English
Got me! Nov 15, 2018

I was wondering if anyone was going to call me on the overbroad description of contract obligations. Consider me busted! So anyone considering selling heroin via contract, fugettaboutit. The point was to show that legitimate obligations become binding, just as a law is binding.

On whether something is abusive or "adhesive" (Thank you Sheila), abusive agencies bank on the translator's unwillingness to challenge abusive clauses (like no-competition, indemnity, etc.). The best solut
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I was wondering if anyone was going to call me on the overbroad description of contract obligations. Consider me busted! So anyone considering selling heroin via contract, fugettaboutit. The point was to show that legitimate obligations become binding, just as a law is binding.

On whether something is abusive or "adhesive" (Thank you Sheila), abusive agencies bank on the translator's unwillingness to challenge abusive clauses (like no-competition, indemnity, etc.). The best solution is to buck up and negotiate better terms and skip court solutions completely.

For the new translators on this blog, I know you want to take whatever job you can, but please develop the ability to say "no" to agencies. This helps you and helps us all.

I have a question for Mr. Fossey. Have you contacted ProZ and asked them to insert a banner on the blueboard report for this agency to alert translators that this agency requires vendors to sign a non-disparagement clause? This is important information for translators to know.


Mirko Mainardi wrote:

William Tierney wrote:

It is legal if you sign it, since a contract is a law unto itself. DON'T SIGN IT. If you otherwise would like to work with this agency, cross out the offending passage and initial in the margin, then send it back. If you receive a response like, "These forms may not be altered," or "Our legal department won't allow this," etc. then you know that you should steer clear. A non-disparagement clause by itself is a red flag. It is basically saying "We are going to treat you like a serf and there is nothing you can do about it." Let's make the translation industry great again.


While I do agree with the general sentiment of William's post (hence the agree), I'm not so sure about the first sentence... What if a contract says you have to sacrifice your first born on an altar if the company CEO asks for it... Would it stand in court? I think not, under either common or civil law systems.

I know this is just Wikipedia, but still: http://en.wikipedia.org/wiki/Standard_form_contract

At any rate, that was more on the "It is legal if you sign it, since a contract is a law unto itself" statement in general. More specifically, about "non disparagement", I found this quite interesting and informative: http://www.jaburgwilk.com/news-publications/what-is-a-non-disparagement-clause-and-why-you-may-not-want-to-sign-one

However, I must say that once again, as with many agreements I have been sent from agencies (which I refused to sign), I have the distinct feeling similar clauses belonged to boilerplate contracts originally meant for employees, slightly modified to apply to external service providers...

I wholeheartedly agree with William that we should refuse one-sided boilerplate agreements to try and stem the tide (although the expression he used has a... uh... let's say "weird" ring to it, for some reason...), but the problem is that there's no "we"...


[Edited at 2018-11-15 16:19 GMT]
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Sheila Wilson  Identity Verified
Spain
Local time: 12:44
Member (2007)
English
+ ...
Support ticket? Nov 15, 2018

John Fossey wrote:

Sheila Wilson wrote:

...I'm active on TripAdvisor and one local accommodation provider made holidaymakers sign that type of clause. They were immediately banned from TA. I would hope that ProZ.com would do the same.


Unfortunately I doubt that will happen, because there's not much scope to complain to Proz.com about a company you have not done work for.

The very first time it happens to me I'll be sending a support ticket to ProZ.com staff with a copy of the contract. And I'll be expecting them to take some sort of action. The Blue Board is going to totally lose touch with reality if that sort of practice becomes widespread. I very much hope you'll be reporting this company, John.


Jennifer Forbes
Elif Baykara Narbay
John Fossey
 

Chris S  Identity Verified
United Kingdom
Swedish to English
+ ...
I wouldn't sign it but... Nov 15, 2018

... I suspect the purpose of the clause is not to obtain a license to abuse their suppliers, but to stop their suppliers from abusing them.

Even the most rational people tend to turn into arseholes online.

I often wonder whether abusive agencies or bad translators are the real problem.


 

Anton Konashenok  Identity Verified
Czech Republic
Local time: 13:44
English to Russian
+ ...
No way! Nov 15, 2018

Regardless of legality of this provision (which I'm sure may vary from country to country), it is so utterly unethical that I wouldn't even consider working with a client writing such things into their contract.

 

John Fossey  Identity Verified
Canada
Local time: 07:44
Member (2008)
French to English
TOPIC STARTER
Done that Nov 15, 2018

Sheila Wilson wrote:

The very first time it happens to me I'll be sending a support ticket to ProZ.com staff with a copy of the contract. And I'll be expecting them to take some sort of action. The Blue Board is going to totally lose touch with reality if that sort of practice becomes widespread. I very much hope you'll be reporting this company, John.


I have submitted a ticket and the contract, and a reference to this discussion, so we'll see what happens.

[Edited at 2018-11-15 17:06 GMT]


 

Robert Forstag  Identity Verified
United States
Local time: 07:44
Member (2003)
Spanish to English
+ ...
Should be banned from proz.com (with a listing noted said ban) Nov 15, 2018

Sheila Wilson wrote:

John Fossey wrote:

Sheila Wilson wrote:

...I'm active on TripAdvisor and one local accommodation provider made holidaymakers sign that type of clause. They were immediately banned from TA. I would hope that ProZ.com would do the same.


Unfortunately I doubt that will happen, because there's not much scope to complain to Proz.com about a company you have not done work for.

The very first time it happens to me I'll be sending a support ticket to ProZ.com staff with a copy of the contract. And I'll be expecting them to take some sort of action. The Blue Board is going to totally lose touch with reality if that sort of practice becomes widespread. I very much hope you'll be reporting this company, John.


I would most certainly hope that this site would would ban any agency including such a clause in its contracts with vendors (while retaining a listing that mentions the ban, as it seems to generally do).

I could hardly understand a justification for not banning an agency which a priori prohibits a negative Blue Board entry.


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