Confidentiality agreements help
Thread poster: Ninon Dion

Ninon Dion  Identity Verified
Canada
Local time: 06:13
Member (2013)
English to French
+ ...
Aug 23, 2013

So I'm quite new to dealing with agencies, and I have a question regarding NDAs.

One particular agency required me to sign a NDA, which included a clause requiring me to not divulge the fact that they were hiring me as a freelancer. Now, I have worked on some big projects with this agency, and would have liked to be able to put my work experience with them on my Resume. I guess I won't ever be able to do that?

Now another agency is asking me to sign a NDA, where they are forbidding me to do freelance work with any of their clients; now, how can I know which clients they have under contract? They have a couple of other clauses that makes me wonder if I should sign, namely:

1) Contractor will work strictly under ***** (name of agency) supervision unless otherwise authorized by *****(name of agency)
Does that mean I cannot work with other agencies, or is that just a way to inforce their "no freelancing with our clients" rule?

2) Contractor will introduce and present himself always as a ***** (name of agency) contractor. Contractor agrees on never using or disclosing his own company, brand or commercial contact information. Contractor’s e-mail, phone messages and other communication means shall not carry any commercial message as well.
What does that entails exactly?

I just want to be sure that when I sign this NDA I know what I'm doing......

Any help would be appreciated, thank you so much.

- Ninon


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Sheila Wilson  Identity Verified
Spain
Local time: 11:13
Member (2007)
English
+ ...
Some thoughts Aug 23, 2013

Firstly, welcome to ProZ.com, Ninon.

NinonD wrote:
One particular agency required me to sign a NDA, which included a clause requiring me to not divulge the fact that they were hiring me as a freelancer. Now, I have worked on some big projects with this agency, and would have liked to be able to put my work experience with them on my Resume. I guess I won't ever be able to do that?

Well, no, you can't name them as your client. But that doesn't stop you saying you've translated texts on x,y,z subjects. The end client can be referred to as "a leading company in the X sector", " specialist in Y" or whatever, and if the agency is an important one then you can refer to them in the same way. You can also say the length of time you've collaborated with them, or the number of words, etc. Just avoid names.

Now another agency is asking me to sign a NDA, where they are forbidding me to do freelance work with any of their clients; now, how can I know which clients they have under contract?

That's a normal clause, but it depends how it's worded. There should be a "knowingly" in there or something to that effect (I don't do contract-speak). You cannot be held at fault if you work for another agency who also do work for that client, although if the end client becomes clear then I guess you should mention to the second agency that you can't work for them for that client. But it's really to prevent you cutting the agency out of the loop - and that's a very valid limitation. Still, there should be a restriction on the time e.g. for 2 years after last working for (agency).

They have a couple of other clauses that makes me wonder if I should sign, namely:

1) Contractor will work strictly under ***** (name of agency) supervision unless otherwise authorized by *****(name of agency)
Does that mean I cannot work with other agencies, or is that just a way to inforce their "no freelancing with our clients" rule?

It isn't prefixed with "when working on (agency's) projects," or similar? Not sure what they mean by that.

2) Contractor will introduce and present himself always as a ***** (name of agency) contractor. Contractor agrees on never using or disclosing his own company, brand or commercial contact information. Contractor’s e-mail, phone messages and other communication means shall not carry any commercial message as well.

The first part is clearly intended for interpreters who meet their clients - that's normal - but the second part is totally unenforceable and unfair, IMHO. We are FREElancers. One client cannot be allowed to dictate how we market our services. You've signed to say you won't cut them out of the loop - that's enough!

It sounds to me as though they are trying to pass off their translators (or at least, their interpreters) as salaried employees, rather than telling their own clients the truth. You don't need to get yourself mixed up in their deception!

Remember, you don't just have the choice of accepting/rejecting their terms. You can return the contract with some parts crossed through or amendments made. It's an AGREEMENT, so sometimes there needs to be some negotiation. OTOH, if you're totally at odds with most of what they say then it's probably a waste of time.


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Marie-Helene Dubois  Identity Verified
Spain
Local time: 12:13
Member (2011)
Spanish to English
+ ...
I agree with Sheila's comments Aug 23, 2013

This is what I would do.

Point 1) No. You can't mention the client on your CV if you've signed this.

Point 2) I would adapt this clause to insert "directly" "intentionally" and "knowingly" in the right places to make you exempt from unknowingly breaching this clause by working through other agencies on work for the same end client. You really can't always know who the end client is when you're working on a text. Equally, some large companies have different business units so one agency may work say with Renault trucks in France and another agency may work for a Renault factory in Spain, which would arguably be different clients and should not in any way preclude your working for both agencies. You may think you're translating a document for Renault and have no knowledge of which particular business unit is involved. The idea with this type of clause is to prevent you from spotting a client's name on a document from an agency and then contacting this client direct to say that you've translated their documents and offering to cut out the agency and work with them direct. What it shouldn't do is restrict your right to carry on business and earn money in any way you see fit as long as you don't engage in underhand practices.

Point 3) I would adapt this to "When working on (name of agency)'s projects, Contractor will work strictly under ***** (name of agency) supervision unless otherwise authorized by *****(name of agency)". This would be fine. The phrase was badly drafted. You can't possibly be expected to work under this agency's supervision on tasks for other agencies, or indeed to ask this agency's permission to work under the supervision of another client on another client's work. I kind of object to the word "supervision" because really you are freelance and only working under your own supervision. However, this slight nuance would be enough to satisfy both parties in my mind.

Point 4) I would adapt this to "Where it is necessary for the Contractor to meet (name of agency)'s clients or in any other way deal with these clients directly when working on (name of agency)'s projects, the Contractor will introduce and present himself/herself always as a ***** (name of agency) contractor. Contractor agrees on never using or disclosing his/her own company, brand or commercial contact information in these situations and on not using any commercial message in dealings with this client that could in any way identify the Contractor to the client."

I would cross this out: "Contractor’s e-mail, phone messages and other communication means shall not carry any commercial message as well."
They cannot possibly exert any authority over your e-mail, phone messages and other communication means outside of those used with their clients.

Again, as Sheila said, when an agency sends an agreement, the terms of this agreement are to be seen as negotiable. Both parties contribute to what will finally be an agreement suitable for both parties.
It's always best to offer the solution along with the problem by crossing out and amending whatever you don't agree with than simply expressing your distaste for certain terminology.


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Ninon Dion  Identity Verified
Canada
Local time: 06:13
Member (2013)
English to French
+ ...
TOPIC STARTER
Thank you Sheila - more infos Aug 23, 2013

Sheila Wilson wrote:
Firstly, welcome to ProZ.com, Ninon.


Thank you so much Sheila!


That's a normal clause, but it depends how it's worded. There should be a "knowingly" in there or something to that effect (I don't do contract-speak). You cannot be held at fault if you work for another agency who also do work for that client, although if the end client becomes clear then I guess you should mention to the second agency that you can't work for them for that client. But it's really to prevent you cutting the agency out of the loop - and that's a very valid limitation. Still, there should be a restriction on the time e.g. for 2 years after last working for (agency).


Well there was no "knowingly" in the NDA, but there was a restriction on time, which is 5 years....

It isn't prefixed with "when working on (agency's) projects," or similar? Not sure what they mean by that.


You have the total extent of that clause right there. I do not understand either.

The first part is clearly intended for interpreters who meet their clients - that's normal - but the second part is totally unenforceable and unfair, IMHO. We are FREElancers. One client cannot be allowed to dictate how we market our services. You've signed to say you won't cut them out of the loop - that's enough!


That was my understanding as well, but I kind of needed another point of view since that clause sounded so ridiculous to me. Of course I won't agree to sign a NDA that will prevent me from working with other clients/agencies!

It sounds to me as though they are trying to pass off their translators (or at least, their interpreters) as salaried employees, rather than telling their own clients the truth. You don't need to get yourself mixed up in their deception!


Isn't that amazing?

Remember, you don't just have the choice of accepting/rejecting their terms. You can return the contract with some parts crossed through or amendments made. It's an AGREEMENT, so sometimes there needs to be some negotiation. OTOH, if you're totally at odds with most of what they say then it's probably a waste of time.


So many words of wisdom, thank you so much for taking the time to help me Sheila!

[Edited at 2013-08-23 09:32 GMT]


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Marie-Helene Dubois  Identity Verified
Spain
Local time: 12:13
Member (2011)
Spanish to English
+ ...
Facetious Aug 23, 2013

I also sometimes feel like being facetious with agencies that send me contracts only contemplating a male party to the contract (himself, him, his).
I often wonder whether to just send the contract back and say that this clearly doesn't apply to me as I am not a "he".
It does amaze me sometimes not only how badly drafted agencies' own contracts are but how badly translated their documents are.


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Ninon Dion  Identity Verified
Canada
Local time: 06:13
Member (2013)
English to French
+ ...
TOPIC STARTER
Yes, I agree. Aug 23, 2013

Marie-Helene Dubois wrote:

I also sometimes feel like being facetious with agencies that send me contracts only contemplating a male party to the contract (himself, him, his).
I often wonder whether to just send the contract back and say that this clearly doesn't apply to me as I am not a "he".
It does amaze me sometimes not only how badly drafted agencies' own contracts are but how badly translated their documents are.


I keep getting amazed at how badly some critical documents are written... I can't count on one hand how many times I was asked to provide a sample translation from source texts that didn't make any sense.

Marie-Hélène, your advice is priceless as well; thank you so very much for your help.

I apologize for editing, it's almost 6 am here and I haven't been to bed yet.

[Edited at 2013-08-23 09:41 GMT]


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neilmac  Identity Verified
Spain
Local time: 12:13
Spanish to English
+ ...
Crapspeak Aug 23, 2013

NinonD wrote:

They have a couple of other clauses that makes me wonder if I should sign, namely:

... Contractor’s e-mail, phone messages and other communication means shall not carry any commercial message as well.




If the rest of their legalese is as clumsy and after-thought-ish as that last attempt at a sentence, I'd find it too embarrassing to work for them. Sounds like a right bunch of grasping chancers.


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 12:13
English to Polish
+ ...
... Aug 23, 2013

NinonD wrote:

So I'm quite new to dealing with agencies, and I have a question regarding NDAs.

One particular agency required me to sign a NDA, which included a clause requiring me to not divulge the fact that they were hiring me as a freelancer.


They are basically forcing a disadvantageous clause on you to protect their interests, as they want to keep either their clients (who can't be trusted not to approach a translator whose name they know) or you (and so you should be chained by the leg to them and kept in the closet). Or they have a silly drafter.

Now, I have worked on some big projects with this agency, and would have liked to be able to put my work experience with them on my Resume. I guess I won't ever be able to do that?


Yup.

Now another agency is asking me to sign a NDA, where they are forbidding me to do freelance work with any of their clients; now, how can I know which clients they have under contract?


That's a standard dumb clause resulting from the loss of rationality by agencies overzealous to protect themselves. You can't stay away from people you don't know you should stay away from. The agency actually benefits more from simply not telling you the client's identity, but it still wants you to undertake not to work for any of their clients directly.

Again, non-competition clauses are used not only to prevent client theft by a translator who actually works for that particular client for and through the agency, but also to put individual translators out of competition wholesale, which is pathetic.

1) Contractor will work strictly under ***** (name of agency) supervision unless otherwise authorized by *****(name of agency)


1. That is a vague clause, not really good drafting. Translators don't work under strict supervision, not even in-house ones. Mostly people who perform technical or physical work work under strict supervision, but you can't have strict supervision in your situation, at least not in a literal sense. A PM over your shoulder is an impossibility, and the agency will not even seriously attempt that.

2. Those guys sound like they like control and tough talk, I'd stay away.

3. Still, it seems to refer to clients for whom you actually work through and for that agency.

Does that mean I cannot work with other agencies, or is that just a way to inforce their "no freelancing with our clients" rule?


I don't know what it's supposed to mean, it looks like a piece of poor drafting.

2) Contractor will introduce and present himself always as a ***** (name of agency) contractor.


Literally, that would seem to apply to all your work, but the reasonable interpretation would be that it only applies to your work actually done for that agency, not precluding you from working on your own with direct clients and other agencies.

However, the whole thing with 'introducing and presenting' (stay away from legalese-happy drafters who lack clarity in their drafting) works only for interpreters, unless you're expected to liaise with the end client to explain the source or ascertain the client's wishes.

Contractor agrees on never using or disclosing his own company, brand or commercial contact information.


Likely just to their own clients unless they are trying to hire you on an exclusive basis.

Contractor’s e-mail, phone messages and other communication means shall not carry any commercial message as well.


Same.

What does that entails exactly?


As long as it refers strictly to the agency's own, existing clients for whom you actually do translate and with whom you actually do talk or correspond, then those terms are reasonable. Agencies acquire their clients and deserve to keep them.

I just want to be sure that when I sign this NDA I know what I'm doing......

Any help would be appreciated, thank you so much.

- Ninon


It seems the agency has a standard contract that's vague and not really applicable to individual situations, and it's also an all ur base is belongs to us kind of contract that sounds adversarial. That may not necessarily even be the agency's attitude in collaboration with you but just a piece of clumsy drafting. Either way, you should talk to them about and see where it takes you.

If the agency isn't prepared to talk to you but reacts with cool hostility or superiority or anything passive-aggressive, then you'll know to avoid it.

This said, don't sign anything just because they're asking you kindly. Don't sign anything the asker claims doesn't matter. If it didn't matter or didn't apply to you, then the asker wouldn't need to ask you to sign it.


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 12:13
English to Polish
+ ...
Or an attitude problem + more Aug 23, 2013

neilmac wrote:

If the rest of their legalese is as clumsy and after-thought-ish as that last attempt at a sentence, I'd find it too embarrassing to work for them. Sounds like a right bunch of grasping chancers.


... like with adversarial negotiators and people who enjoy acting like a sweatshop foreman when 'managing' highly educated and cultured professionals.

Marie-Helene Dubois wrote:

I also sometimes feel like being facetious with agencies that send me contracts only contemplating a male party to the contract (himself, him, his).
I often wonder whether to just send the contract back and say that this clearly doesn't apply to me as I am not a "he".
It does amaze me sometimes not only how badly drafted agencies' own contracts are but how badly translated their documents are.


I sometimes play the gentleman card and just refuse to be addressed in the type of language their drafting prefers. If they escalate, then I become somewhat direct too.

[Edited at 2013-08-23 14:31 GMT]


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Ninon Dion  Identity Verified
Canada
Local time: 06:13
Member (2013)
English to French
+ ...
TOPIC STARTER
Luckasz + update Aug 23, 2013

Łukasz Gos-Furmankiewicz wrote:

NinonD wrote:

So I'm quite new to dealing with agencies, and I have a question regarding NDAs.

One particular agency required me to sign a NDA, which included a clause requiring me to not divulge the fact that they were hiring me as a freelancer.


They are basically forcing a disadvantageous clause on you to protect their interests, as they want to keep either their clients (who can't be trusted not to approach a translator whose name they know) or you (and so you should be chained by the leg to them and kept in the closet). Or they have a silly drafter.


Here is an excerpt of their clause regarding this issue, under "Definition of Confidentiality":

Also to be kept confidential and not to be disclosed is the fact that Company is established, in existence, and in business, and that Recipient is now working for and with Company. Recipient is not to disclose Company’s name. Recipient herein agrees not to disclose to anyone at, working for, working with, or associated with any companies or individuals previously associated with the Company’s employees or that Company is in existence. And, Recipient agrees not to disclose the names, identities, or contact information of anyone employed by, contracted by, or associated in any way with Company. Any disclosure of this information may result in immediate termination of any and all projects, and may absolve Recipient of right to fees for Recipient’s work performed for Company.

This company has great big website, and seems everything but clandestine. Wish I understood what good they get from enforcing such a clause on their providers.

It seems the agency has a standard contract that's vague and not really applicable to individual situations, and it's also an all ur base is belongs to us kind of contract that sounds adversarial. That may not necessarily even be the agency's attitude in collaboration with you but just a piece of clumsy drafting. Either way, you should talk to them about and see where it takes you.

If the agency isn't prepared to talk to you but reacts with cool hostility or superiority or anything passive-aggressive, then you'll know to avoid it.

This said, don't sign anything just because they're asking you kindly. Don't sign anything the asker claims doesn't matter. If it didn't matter or didn't apply to you, then the asker wouldn't need to ask you to sign it.


Well, I emailed the agency asking for clarification.
Basically they told me what you suspected; this is a "standard" NDA, and it doesn't prevent me from working with other agencies, and the other issues were related to clients I would work with through the agency. A poorly written paper overall.

I greatly appreciate your input, thank you so much.

[Edited at 2013-08-23 21:04 GMT]


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 12:13
English to Polish
+ ...
... Aug 23, 2013

Hello, Ninon. I'm sorry to see what you need to waste your time and energy dealing with. On behalf of reasonably sane and smart men and women of the law, please accept my apologies and expressions of embarrassment. Now:

NinonD wrote:

Here is an excerpt of their clause regarding this issue, under "Definition of Confidentiality":

Also to be kept confidential and not to be disclosed is the fact that Company is established, in existence, and in business,


To put it juridically: LOL

Any disclosure of this information may result in immediate termination of any and all projects, and may absolve Recipient of right to fees for Recipient’s work performed for Company.


Laying a claim to your compensation without a relevant, connected reason, is a red flag.

This company has great big website, and seems everything but clandestine. Wish I understood what good they get from enforcing such a clause on their providers.


Well, their contract drafting is certainly ludicrous. This said, the whole 'disclose that the company is in existence' nonsese may actually be a vehicle to achieve a different result from what the phrase means on the face. It may perhaps be intended to catch any sort of even the most vague reference to the company on your part, basically. (Which would obviously require all of that particular drafter's drafting to be dissected ten times over.)

But, obliging you contractually to keep secret the fact that a large company with a high-octane website is in existence is still ludicrous.

Basically they told me what you suspected; this is a "standard" NDA, and it doesn't prevent me from working with other agencies, and the other issues were related to clients I would work with through the agency. A poorly written paper overall.


Tell them they need to hire a more competent lawyer (or a lawyer, actually) and revise the whole thing or rewrite it from scratch.

I greatly appreciate your input, thank you so much.


Pleasure to be of help.


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Gerard de Noord  Identity Verified
France
Local time: 12:13
Member (2003)
German to Dutch
+ ...
It works both ways after a while Aug 25, 2013

I've added a tab to my ProZ profile to explain why I can’t be discreet and give references too. I won't divulge anything about my direct and indirect clients, also because after more than ten years in this business I've lost track of the agreements I've signed.

It's hard in the beginning, when you've just become the preferred into Dutch translator for a huge company. But later on, when the simple fact that you're still in business after all those years starts to work in your favour, it's quite soothing to say that you won't divulge anything about your clients.

The best clients love it.

Good luck,
Gerard


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 12:13
English to Polish
+ ...
The problem Aug 25, 2013

The problem, Gerard, is that so many outsourcers expect you to 1) provide references but 2) keep the strictest confidentiality too. Once everybody requires that, it won't be possible to please anybody. Well, not any-more-than-one-body, at least.

[Edited at 2013-08-25 23:30 GMT]


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Christine Andersen  Identity Verified
Denmark
Local time: 12:13
Member (2003)
Danish to English
+ ...
Working for the same end client through different agencies Aug 26, 2013

I raised this question some time back, when a particular end client apparently changed agencies.

http://www.proz.com/forum/business_issues/64300-same_end_client_different_agency_should_i_tell_the_agency.html

Since then I have worked for the same end client through different agencies a number of times, probably more than I am aware of!

One big agency I worked for is no longer in business, but their end clients certainly are! Others have merged or reorganised, and that clouds the issue too.

End clients merge and reorganise...

It is a free market, and over the years clients have moved between agencies for reasons I know nothing about. I can't always remember anyway, whether I did a small job for a particular end client ten years ago. Like Gerard de Noord, I simply do not give details about my end clients to anyone. I do the best I can on the job, deliver on time and move on to the next.

A freelancer must respect professional secrecy, but after that, if clients or agencies want to bind you and restrict who you work for, then they should pay compensation.

I know someone who asks for an updated list of clients she is not allowed to work for - it never comes, but then you add 'knowingly' to the clause in the NDA...

I do not ask for references or pass them on, but some of my clients have been so kind as to give WWA references. Only one was by request - in exchange for a comment on a LinkedIn profile.


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 12:13
English to Polish
+ ...
'Knowingly' Aug 26, 2013

You definitely need the 'knowingly' or a list or something like that, but since agencies never need me to contact the client, and since they don't mention my name, either, I just remind them sometimes that simply anonymising the text also works. Or just not telling me who it is for.

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