Problematic clauses?
Thread poster: Faustine Roux

Faustine Roux  Identity Verified
United Kingdom
Local time: 05:25
English to French
Nov 16, 2018

Hi everyone,

I've been seeing more and more contracts that contains clauses such as this :

"You will keep strictly confidential all matters relating to the Contract including any materials, information, specifications, documents or other materials that We provide to You and every aspect of the Services and the relationship between Us and You."

Now, I understand that we should not disclose the work we're doing, etc. But what about this "every aspect of the S
... See more
Hi everyone,

I've been seeing more and more contracts that contains clauses such as this :

"You will keep strictly confidential all matters relating to the Contract including any materials, information, specifications, documents or other materials that We provide to You and every aspect of the Services and the relationship between Us and You."

Now, I understand that we should not disclose the work we're doing, etc. But what about this "every aspect of the Services and the relationship between Us and You"?

This sounds to me like these companies want to limit our rights to warn our colleagues about their business practices, preventing us to use the BlueBoard for example, or discussing the terms of a contract.

What do you think? Am I just being paranoid?
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Teresa Borges
Portugal
Local time: 05:25
Member (2007)
English to Portuguese
+ ...
What do I think? Nov 16, 2018

I think that you only want to warn your colleagues about their business practices (through BB or any other means) AFTER they have breached their part of the contract, so I’ll have no problem with that clause…

Christophe Delaunay
José Henrique Lamensdorf
Nikki Scott-Despaigne
 

Thomas T. Frost  Identity Verified
Member (2014)
Danish to English
+ ...
'Every aspect of the Services and the relationship between Us and You' Nov 16, 2018

I don't accept such clauses, as they wouldn't even allow me to use an accountant to file my tax returns, and in case of late payment, they wouldn't allow me to use a debt collection company or solicitor. In case of a dispute, such a clause wouldn't allow me to use a liability insurance to defend myself. And it wouldn't allow me to use the Blue Board in relation to the outsourcer. When I check the client's VAT number (if in the EU), I will need to disclose information about the company to the pub... See more
I don't accept such clauses, as they wouldn't even allow me to use an accountant to file my tax returns, and in case of late payment, they wouldn't allow me to use a debt collection company or solicitor. In case of a dispute, such a clause wouldn't allow me to use a liability insurance to defend myself. And it wouldn't allow me to use the Blue Board in relation to the outsourcer. When I check the client's VAT number (if in the EU), I will need to disclose information about the company to the public entity running the VAT checking interface and thus breach the contract.

I ask for such reasonable exceptions and walk away if I don't obtain them.

As for only breaching such a clause after a client has breached a clause, contract law doesn't work like that. That one contracting party breaches a clause does not entitle another contracting party to breach other clauses.

I only sign a contract if I intend to fully abide by its provisions.

As Faustine says, many contracts are full of unreasonable and one-sided clauses apparently written by people who only take the outsourcer's rights and needs into consideration, often at the expense of the supplier. I just don't accept that. I'm not a slave.
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Mirko Mainardi
Jennifer Forbes
Tom in London
Nikki Scott-Despaigne
Christine Andersen
 

Faustine Roux  Identity Verified
United Kingdom
Local time: 05:25
English to French
TOPIC STARTER
Thank you Nov 16, 2018

Thank you Thomas for confirming that I am not paranoid.

I've added some exceptions to this clause, I bet they will be refused, but we'll see.


 

Mirko Mainardi  Identity Verified
Italy
Local time: 06:25
Member
English to Italian
Severability/Survivability and type of breach Nov 16, 2018

Teresa Borges wrote:

I think that you only want to warn your colleagues about their business practices (through BB or any other means) AFTER they have breached their part of the contract, so I’ll have no problem with that clause…


I'm not a lawyer, but most agreements I've been sent also include severability/survivability clauses that state that even if some part of the contract is deemed void or inapplicable, the rest will remain in force. Besides, a lot of agreements also expressly state that some specific obligations, such as confidentiality, will survive even after termination of the agreement itself...

Additionally, I think not every type of breach (minor, material...) will render the whole contract invalid, and, at any rate, I really doubt that happens "automatically" and you still have to go to court for that... (with everything it entails)

All of that without considering the simple matter of recognition for one's work. Accepting to work as "ghostwriters" we're basically accepting not to use even just our own clients' names in our résumés/portfolios, and that's pretty "ironic", as often these companies so obsessed with CIA-like secrecy ask us to name clients/projects we've worked for/on or even for references... I find all of this totally absurd.


Emma Page
Dmytro Nehrii
 

Philip Lees  Identity Verified
Greece
Local time: 07:25
Member (2008)
Greek to English
No positive statement Nov 17, 2018

Teresa Borges wrote:

I think that you only want to warn your colleagues about their business practices (through BB or any other means) AFTER they have breached their part of the contract, so I’ll have no problem with that clause…


The clause would, however, prevent a translator from making a positive entry for the company on the BB.


 

DZiW
Ukraine
English to Russian
+ ...
a contract Nov 17, 2018

A contract is an agreement between equal parties with the right to refuse, it's not an ultimatum.

So far, any contracting party can add, remove, and amend the terms for consideration, negotiation, and final approval or rejection.

While some conditions are blindly copypasted to play safe, pretending to be more solid and trustworthy, I wouldn't sign any similar clauses. Perhaps, I would try to delete or paraphrase the wording--or demand an official explanati
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A contract is an agreement between equal parties with the right to refuse, it's not an ultimatum.

So far, any contracting party can add, remove, and amend the terms for consideration, negotiation, and final approval or rejection.

While some conditions are blindly copypasted to play safe, pretending to be more solid and trustworthy, I wouldn't sign any similar clauses. Perhaps, I would try to delete or paraphrase the wording--or demand an official explanation in writing
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Samuel Murray  Identity Verified
Netherlands
Local time: 06:25
Member (2006)
English to Afrikaans
+ ...
@Faustine Nov 17, 2018

Faustine Roux wrote:
Now, I understand that we should not disclose the work we're doing, etc. But what about this "every aspect of the Services and the relationship between Us and You"?


A similar issue was recently discussed:
https://www.proz.com/forum/business_issues/330463-contract_with_non_disparagement_clause.html

On the one hand, it is sad that clients feel that they have to put things in contracts that professional translators should already know and do, but on the other hand you'll be surprised at what some professional translators believe about the rights and privileges of clients and translators, so I can understand why a client would prefer to be safe better than sorry.

This sounds to me like these companies want to limit our rights to warn our colleagues about their business practices, preventing us to use the BlueBoard for example, or discussing the terms of a contract.


I know you're not in the USA, but: according to one web site, disparagement clauses are not permitted in consumer contracts in several states of the USA, and there is a law in the USA called the "Consumer Review Fairness Act of 2016" that apparently allows negative reviews despite any "strict confidence" wording in a consumer contract. As far as I can tell, there is no such law in the UK. Keep in mind, though, that we are not "consumers" and that rules protecting consumer rights do not always apply to business-to-business relationships.

That said, I suppose there must come a point in time in the breakdown of any business relationship when peers' right to know will start to weigh more than the client's right to confidentiality, at least with regard to matters that might directly affect colleagues.

Also, you can still discuss certain things with colleagues, as long as you don't reveal directly or indirectly who the client is. We do that all the time when we post term questions.

Philip Lees wrote:
The clause would, however, prevent a translator from making a positive entry for the company on the BB.


True, but that's their loss, not ours. And: you are still allowed to post a positive review if you have the client's permission, so just ask.


[Edited at 2018-11-17 08:42 GMT]


 

Mirko Mainardi  Identity Verified
Italy
Local time: 06:25
Member
English to Italian
Safe? Nov 17, 2018

Samuel Murray wrote:

On the one hand, it is sad that clients feel that they have to put things in contracts that professional translators should already know and do, but on the other hand you'll be surprised at what some professional translators believe about the rights and privileges of clients and translators, so I can understand why a client would prefer to be safe better than sorry.


Safe? And what risk are they "protecting" themselves from, exactly? What harm would befall them if a translator simply mentioned their name as clients, for work they did do?

For me it is also surprising whenever I read translators going at lengths to defend any client's request or position against their own and their peers', especially in a market where the balance of power is already vastly tipped in clients' favor and if such request or position has very little to do with ethics (professional or otherwise).

P.S. The cases mentioned here and in the thread you linked evidently concern companies or translation agencies, not individuals.


 

Thomas T. Frost  Identity Verified
Member (2014)
Danish to English
+ ...
How Proz views such clauses Nov 24, 2018

I had asked Proz support if they consider clauses like the one below (slightly edited) to be in violation of Blue Board rule number 8.


The supplier shall not publish or divulge the existence of any relationship with Acme Translation Corporation Unlimited* without the prior written consent of Acme Translation Corporation Unlimited*, which consent may be withheld at the sole discretion of Acme Translation Corporation Unlimited*.


Here is the reply (with identifying information removed):


Please note that due to the reason that similar clause is not uncommon nowadays it is not necessary to be in violation of the rule #8, unless you have been directly forced by the company to take some actions related with your LWA entry. In such case, you may report this and ProZ.com Staff will have this checked.

However, as a service provider would have to agree to the contract before working with the company and such clause may restrict service providers' ability to provide negative feedback the following note has been added to a Blue Board record “{outsourcer name}”:


“Please note that this company may require its service providers to agree to a non-disparagement clause in its terms and conditions.”


This would allow Blue Board visitors evaluating the company before working with them to take that into account.

Therefore, you may report such cases to have Blue Board visitors informed.


The note is quite discreet. One has to click on the link shown below. As far as I remember, such notes were more prominently displayed in the old Blue Board.

Capture

*) Fictional name.


 


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