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Audit clause in freelance contracts - a breach of the other clients' NDAs
Thread poster: Reea-Silvia Podeanu

Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 19:09
Member (2011)
English to Romanian
+ ...
Oct 23

Hi. I have received from clients this year and even recently a few contracts that had an audit clause, meaning that they or their representative can come and check my office and my computer for security reasons.

Of course, I have rejected those contracts and didn't sign them.

One of the clients with the audit clause said that it is required by ISO Certification (although I have clients that are ISO certified and don't have this clause) and I consider this not only an invasion of privacy and a breach of my rights as an INDEPENDENT contractor, but also a breach of the NDAs I signed with my other clients.

The agencies that have this audit clause specify clearly that they don't give me anything, except for payment for the work done, and in most of the contracts it is clearly stated that I am not a part of their company or one of their employees, and I cannot ask anything from them, except the respective payment for the work done, therefore why should I allow them to check my office, my business, and my computer? Why would I give them this power over my business?

Even if they say that those audit clauses are never put into practice I consider this very dangerous. How do I know that one day they will not want to hold me to that clause?

Let's think about it and create a scenario: one of their representatives comes and starts checking my computer. How do I know that he is not planting any bugs in my office or in my computer (I am not translating secret documents, but still - I don't want to let anybody see me working half naked in the PRIVACY of my office, in the very hot summer days, if you know what I mean) and how do I know that he is not planting a keylogger or a piece of hidden software that the normal antiviruses, firewalls etc. and I, as a non-expert in hacking and stuff, cannot ever discover thus they getting access to the information other clients send me...

So simply put one day we receive the visit of a rep (fake or not) of a translation agency that has us bound with an audit clause and we get something in our computers or offices that allows them to spy from the distance (not that God knows who may have already done that - you may have heard about Snowden's leaks, and this is why I don't accept secret things to translate). There are companies that work with our clients that have awfully strict systems exactly to ensure no prying takes place. And a translator's computer can be a vulnerable place exactly if somebody we don't know comes and forces us to let them „audit” our computers and offices. I think this audit clause can create serious conflicts of interests.

If I would be their only provider maybe this would be reasonable, although I would still not accept my rights to freedom as a FREElancer to be broken... this clause feels so controlling.

And you can imagine also other scenarios.

I know that the today hacking capabilities are huge, but I am even more worried with this clause. The simple fact that a company to whom I don't owe anything can get the right to force me to allow a stranger to pry into my computer and office to „check” my „security” is dangerous. Especially that they use my need to earn a living to force me to accept it. I cannot agree with that. This sounds so much like Big Brother or even 1984.

Among the best security methods I use is to let NO stranger in my office and to use my computer.

This is why I wanted to share this with you. It looks like very few people realize that this... conflict of interests does exist.

Have a wonderful evening.


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Thomas T. Frost  Identity Verified
Member (2014)
French to Danish
+ ...
I couldn't agree more Oct 23

I rejected such an agreement just a couple of weeks ago for much the same reasons. If the outsourcer refuses to remove it, there is no other option than declining collaboration.

There is just no way we can allow outsourcers access to our computers, and they have nothing to do in our homes. Client names can be seen in folder names and many other places, and their confidential data is there – data we are legally and contractually obliged not to disclose to any third parties (except in case of court orders, etc.).


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Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 19:09
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
You are perfectly right... Oct 23

Exactly my point, Thomas, thank you!

I have written this now because we have to signal to the companies that it is not acceptable to force us to accept such a clause and that it should be immediately removed from all the contracts. I was even thinking about writing a petition.

But maybe if we ALL start rejecting such contracts this will stop becoming or being a problem. When I receive a contract, the first thing I do is look for the audit clause and then read the contract.

If the clause does exist, I tell them immediately I cannot accept the contract.

If you agree, you can do the same thing. Be very careful what you sign.

All the best to all.


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William Tierney  Identity Verified
Local time: 12:09
Member (2002)
Arabic to English
Push Back Oct 24

Thanks Reea,

I also cross out any provision that allows someone to enter my home. For any new translators on this blog, we have to push back against oppressive contract terms like this (and indemnification, blanket no-compete clauses, etc.). If they say "It will never come up," then answer "then there is no reason to have it, is there?"


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inesec  Identity Verified
Latvia
Member (2014)
German to English
+ ...
It seems Oct 24

William Tierney wrote:

Thanks Reea,

I also cross out any provision that allows someone to enter my home. For any new translators on this blog, we have to push back against oppressive contract terms like this (and indemnification, blanket no-compete clauses, etc.). If they say "It will never come up," then answer "then there is no reason to have it, is there?"


that this outrageous clause stems from the so-called "Data security provisions" introduced by super clever ProZ staff. If I received an agreement with such a clause, I would contact local data safety agency (such agencies are in all EU countries, I don't know about USA) or police. A fully fledged data stealing attempt.

[Edited at 2017-10-24 07:20 GMT]

[Edited at 2017-10-24 07:21 GMT]


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Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 19:09
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
As far as I know... Oct 24

The data security cards are pretty new here on ProZ and I have received the first contract like this last year. You have the choice to not choose that audit option in your security card.

My problem is and this is why I started this topic that lately, actually in the last few months, more and more agencies introduced this abusive clause. I won't give any names, of course, but I was seriously thinking that if this will continue I will be forced either to start accepting such clauses or to change my profession... which I love very much.

It is awfully alarming and dangerous what is going on in today's world. If we just shut up and accept, we will end up like in 1984.

There are many things that happen for the so-called OUR sake... things we have never asked for and will never ask for. The rope is getting tighter and tighter and, really, I don't see the need of this weird clause.

Generations and generations of freelance translators worked without it. The hackers today can break into a company easier than a mouse in a brick of cheese and they are worried about us? Hackers don't have to mess with translators. They can go directly to the company that is their target and take anything they want. I didn't hear much of hackers being arrested... If they do arrest them, police & all use them for their own purposes so...

The way this clause is formulated is very very grave. I am very worried about my occupation. If this will continue, I will have to change my profession or even retire.

[Edited at 2017-10-24 08:18 GMT]

[Edited at 2017-10-24 08:20 GMT]


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Mirko Mainardi  Identity Verified
Italy
Local time: 18:09
Member
English to Italian
+ ...
Laziness and power inequality Oct 24

I've seen such clauses too (more than once) and in one instance, after refusing to sign and being asked why, I too was told not to worry, because such clauses are never really enforced, and I too replied by saying that, if that was the case, then there was no reason for them to be there in the first place... It really seems surreal (and idiotic).

At any rate, also considering other "agreements" I've been sent, it seems to me that in some cases the agency/client is using slightly modified versions of employee agreements where they just replace every instance of 'employee' with 'contractor' (or similar) and add a couple more clauses where they spell out the fact the 'contractor' IS NOT an employee and is therefore not entitled to any form of employee benefits, and bears liability for a lot of things, ranging from copyright infringement to damages caused to third parties, to damages caused by alien invasions, etc.

If those are their "standard" agreements, I'm sure they always find someone willing to blindly sign them, otherwise they would've ditched them by now...


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Nikki Scott-Despaigne  Identity Verified
Local time: 18:09
French to English
Wow! Oct 24

I have not come across anything of this nature... yet. If I do, it's a flat no. It's not because I have anything to hide as such but my private an professional life are my own business. And, as many have pointed out, it would immediately put me in breach of NDA agreements signed with a couple of agencies, and with contractual and common-sense confidentiality requirements with other clients. So no.

Client confidentiailty yes, of course. Giving in to one potential client's paranoia, and jeopardizing normal confidentiality undertakings of existing clients, no.

[Edited at 2017-10-24 10:40 GMT]


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Teresa Borges
Portugal
Local time: 17:09
Member (2007)
English to Portuguese
+ ...
Wow, wow and wow! Oct 24

I haven’t come across such a requirement until now, but I wonder who will pay for the audit and all the expenses incurred (travel, hotel, insurance…)?

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Peter Leeflang  Identity Verified
United States
Local time: 12:09
Member (2014)
French to English
+ ...
principles help deal with this audit clause Oct 24

Have seen such clauses. NDA's that are stretching the meaning of NDA (like with an audit clause) I reject outright. I do not even bother to ask them to modify it. Too many also include other unacceptable clauses. I do not need that kind of adversarial customer nor do I need agencies who in other ways also push down their liability onto my plate. It is true that ISO standard agencies are the worst in that game, so I never accept such an agency. Translating is quite an enjoyable relaxed activity then. I'm looking for (positive) partners, not people with a dark sense of life who look at me as a potential threat. Pursuing the blacklisting of such agencies is not worth my time and bad for one's psyche. They will eventually run out of translators through their own actions and see their business shrink then. Also, in general they often work for government or for end customers working for government. That frequently ends up in overly high demands, high costs, low pay and very late pay. Why try work for them at all then? For me 'ISO' is a red flag in many ways. By the way, if such a clause concerns you, in the sense of becoming a threat for your business, maybe it is worth considering if you're targeting the right market then. Not all customers are like that but certain segments are (like government).

[Edited at 2017-10-24 21:58 GMT]


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Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 19:09
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
Thank you all for your comments... Oct 24

Thank you all very much for answering.

Peter, the problem is that apparently they will always find translators willing to sign such contracts just to get work. Maybe your pairs are in high demand, but for less demanded languages (Romanian may be one of them) it is not that easy and it can become quite stressful when you have to rejects clients. Out of 4 new clients who wanted to work with me in the last few months, 2 of them had this clause.

Just one example. I have started talking to a client who sent me contracts in May and then I got very ill and could not work for several months, and didn't get to sign and send the contract. This month when I finally sent it, I was told that the company already changed their NDA and now that contract had the audit clause. In May they didn't have it. Of course, I had to reject the collaboration. And it was a big client who could have given me consistent jobs.

I have also answered to requests to register on agencies websites (posted here, on ProZ), but when I checked their contracts, guess what?... So I had to give up.

This is why I am so worried.


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Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 19:09
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
I don't know... Oct 24

Teresa, I don't know who would pay for such an audit and I don't think I care. Most probably that company would assign this job to a local company who would take care of that. What I want is that clause to stop existing.

William, you are right and I told them the same thing. I even said: „OK. Then if that clause is never applied, just in case your company would want to enforce that clause, will I be able to terminate the contract before the audit would take place?” And the answer was: „No!”

Mirko, I think you are right. It is possible that those contracts are for other purposes. Some of the clauses were really weird. I have noticed that reasonable agencies have short contracts and usually they say that we have to take reasonable measures to ensure security.

Peter, I don't work with government or secret stuff. But bigger agencies become more and more paranoid. In order to attract bigger clients, they have to make a lot of compromises on the expense of the translator usually.

Nikki, be happy you didn't have to deal with something like this.

[Edited at 2017-10-24 23:14 GMT]


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Christine Andersen  Identity Verified
Denmark
Local time: 18:09
Member (2003)
Danish to English
+ ...
Out of the question Oct 24

It is true that some ISO schemes allow manufacturers to audit their subcontractors, but this does not mean auditors can come into private homes or check computers etc.
They are supposed to check that the products are environment friendly and that employees have suitable working conditions etc.
I do not think they are compulsory. I have just translated one that went quite a long way to ensure that the customer could justifiably claim that their products had the least possible environmental impact, did not involve child labour and generally lived up to principles of social responsibility. So far, so good.

As others have said, there is no way we can accept audits that invade privacy and compromise NDAs signed with other clients.

One sensible solution is for translators to prepare their own terms and conditions, and declarations that they have signed codes of conduct and are committed to treating clients' information as confidential, protecting the security of their computers, and so on. Check with professional associations - the CIoL, ATA, or any other whether they have a template for T&Cs.

State also what insurance cover you have, and most importantly, its limits. Agencies cannot realistically expect freelance translators to comply with some of the open-ended 'hold harmless' clauses they try to impose on us. They also have a duty of due diligence, to check the translation when it is delivered. And again, if it is never going to happen, there is no reason to include a clause in the agreement.

Sensible terms and conditions show that we have taken action to protect security and whatever else the client wants to check with an audit. That should be quite sufficient for any ISO purposes.


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Reea-Silvia Podeanu  Identity Verified
Romania
Local time: 19:09
Member (2011)
English to Romanian
+ ...
TOPIC STARTER
I am afraid this clause IS compulsory Oct 24

At least this is what they told me when I told them that I cannot sign the contract with that clause in it.

And this clause specified clearly in all the contracts where I saw it, that we agree to let the agency or any representative of their choosing to come in my office (which is, of course, at home for any freelancer) and check the premises and the computer for security threats.

And those agencies seemed to be normal agencies. I didn't look for agencies who work with the government, army etc. On the contrary.


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Texte Style
Local time: 18:09
French to English
how can they make that compulsory? Oct 25

If it has the potential to violate other NDAs you've signed then of course you can't possibly sign it.

I understand that firms want to be sure that they are not out-sourcing to firms employing child labour and the such like. Outsourcing has typically been a way for huge corporations to turn a blind eye: they themselves are pure, it's just their sub-contractors. These are crocodile tears of course because if the huge corporation paid decent prices nobody would need to resort to illegal exploitation of minors. Some corporations are trying now to show that no, they are not passing the buck, they do truly want to avoid exploiting minors. It's the same with green-washing: companies are desperate to prove that they are genuinely trying to green up.

With ISO certification in services, nothing is set in stone for agencies. I remember my former boss saying that you simply have to prove that you follow the rules you set up yourself. So if you put that all documents to be translated into Hungarian must go in a blue folder, and auditors see that in fact the folder is green, that's a black mark for you. So the rules to check that outsourcers are as ethical as the company itself are in place only because they drew them up.


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Audit clause in freelance contracts - a breach of the other clients' NDAs

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