Labour poaching prohibition & Customer protection obligation (Translator Agreement)
Thread poster: Hughito

Hughito  Identity Verified
France
Local time: 07:45
Member (2013)
Chinese to French
+ ...
May 10, 2014

Hi,

A translation Agency asked me to sign up a Translator's Agreement but I have doubts concerning some parts of it.
It says that in the case of violation of the customer protection obligation, excluding the defence of continuation, the translator will pay the Agency a contractual penalty amounting to EUR 20,000. And for each breach of the labour poaching prohibition clause, the translator pays a contractual fine amounting EUR 5,050.

The agency seems a very serious one, with a lot of good comments on Proz, but I don't feel secure with this labour poaching prohibition clause. I asked the Agency manager if I had to check with every new customer to be sure they were not already working with them ; the manager told me that it was very unlikely to happen that one of their customers look for freelancers. However, with this EUR 5050 fine in the contract, I don't feel comfortable with "unlikeness". I don't want to ask each of my new clients if they are working with that agency either.

What would you suggest ? I thought it might be a good idea to ask for a modification of the clause, somethign like "And for each breach -despite the agent knowledge of the collaboration between the agency and its client-".

As for the customer protection obligation, the EUR 20 000 fine is appalling as well ; what if my data were stolen by a pirate ? Am I legally responsible ? The contract does not define what a "sensitive information" is (it actually says "sensible information" which is a mistake in my opinion).

Thank you for your time and advices !


 

Henry Hinds  Identity Verified
United States
Local time: 23:45
English to Spanish
+ ...
Reject May 10, 2014

If I were you, I would reject this contract as totally unacceptable.

 

Maxi Schwarz
Local time: 00:45
German to English
+ ...
No way May 10, 2014

Absolutely not.

 

Joakim Braun  Identity Verified
Sweden
Local time: 07:45
German to Swedish
+ ...
Both ways May 10, 2014

You could propose that it cut both ways: They may not poach any of your customers (past or future), under a €20,000 penalty. And in case of late payment, the agency should pay a contractual fine of €5,050.

Since they are fair and square, and believe that these terms are reasonable, and the penalty is extremely unlikely to ever apply, they should have no problem with this.

(Seriously, though, if a contract sounds wrong to you, it probably is.)

[Edited at 2014-05-10 20:43 GMT]


 

Woodstock  Identity Verified
Germany
Local time: 07:45
Member (2005)
German to English
+ ...
Not enforceable May 11, 2014

Some very large companies work with several agencies for different areas of their business, like Siemens. In many cases the departments are not bound to any one agency, but free to choose their own. I know this because I did all the translation and teaching for one small Siemens (shared service) company, and I also do translations for a completely different Siemens business through an agency. Same with corporations like Volkswagen, etc. As I see it, there's just no way that it is a realistic demand. Where do you draw the line? It seems they have had bad experiences in the past, but that isn't your problem. There's risk in every business.

I wouldn't sign a contract with such ambiguous, unreasonable demands, either. Or they have to reciprocate by guaranteeing me first right of refusal to all their translation work in my language pair(s)...icon_biggrin.gif

Edited to add: This is the type of clause that could possibly apply to a higher-level EMPLOYEE, and board members of companies might have to agree to these types of clauses, but a freelancer??? No. It may not even be legal in some countries.

[Edited at 2014-05-11 08:21 GMT]


 

Maya Gorgoshidze  Identity Verified
Georgia
Local time: 09:45
Member (2004)
English to Georgian
+ ...

MODERATOR
Hi all, May 12, 2014

I moved this thread to the Legal matters forum, because I think this forum is more suitable for this discussion.

Best regards,
Maya


 

Hughito  Identity Verified
France
Local time: 07:45
Member (2013)
Chinese to French
+ ...
TOPIC STARTER
Proposed some modifications, Agency said goodbye. May 12, 2014

Thank you all for your answers and advices. I finally asked them to modify the contract for something more general, protecting them from mistake I could be responsible of, but without mentioning any sum. As for the labour poaching part, I asked for a list of their clients, or for the permission to ask them everytime I had a new client to check if she/ he was one of their customers.

They simply answered : "Thank you for your feedback anyway!". Which is fine.

Now another freelancer contacted me because she was facing the same issue (probably with the same agency), and I advised her to do the same as I did ; offer a modification of the confidentiality agreement. Not just refusing it. Of course they are unlikely to accept any change, but we might get something if they face repeated (motivated) refusal.

I guess some agencies are trying to protect themselves with guarantees they can rely upon, because with internet and the globalization of the market, it has become quite troubled waters. Still, some demands should not be met. I still wonder why more than a hundred translators signed such an agreement...

Thanks for your time again.


 


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Labour poaching prohibition & Customer protection obligation (Translator Agreement)

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