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Terms of a Confidentiality Agreement
Thread poster: Marina Steinbach

Marina Steinbach  Identity Verified
United States
Local time: 18:07
Member
English to German
+ ...
Dec 22, 2011

Dear Colleagues,

I have received a job offer today, asking me to fill out an application form and sign a confidentiality agreement. Unfortunately, I do not understand parts of the agreement.

Can you help me?

I do not understand the following paragraphs:

a) You understand and agree that if you are in breach of this Agreement, you will indemnify, protect and hold harmless our company for any and all costs and expenses arising out of that breach, including, without limitation, any reasonable attorneys fees.

Come what may, even if I'm not guilty, I will pay the attorney fees?

b) With respect to any translation assignments you further authorize COMPANY XYZ and any of its subsidiaries to enter into and execute and sign translation certifications on your behalf and the form of such certifications shall be as per attached.

Why would I authorize somebody to sign a translation certification on my behalf?

The parties hereto agree that COMPANY XYZ and its related subsidiaries would suffer irreparable harm from a breach by you of any of the foregoing covenants herein. Therefore, in the event of an actual or threatened breach by you of any of the above provisions, COMPANY XYZ may, in addition and supplementary to other rights and remedies existing in its favor, apply to any court of competent jurisdiction for injunctive or other relief in order to enforce compliance with, or to any violation of, any of the provisions of this Agreement.

What does this mean? I have no clue.

I really would have liked to include the full text of the agreement, but unfortunately it is protected and I'm not in the mood to type it all into this posting.

As I have just recently become the victim of an overpayment scam (my invoice was 555 US $) and have done several no-cost test translations (3 times approximately for one hour), I really wouldn’t want to experience a new type of fraud again.

This is making me kind of paranoid.
Every person who contacts me now, is per se a crook!

I would therefore very much appreaciate your opinion!

Cheers,

Marina


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xxxMariyaN  Identity Verified
United States
Japanese to Russian
+ ...
Dec 22, 2011



[Edited at 2011-12-22 05:48 GMT]


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 00:07
Member (2005)
English to Spanish
+ ...
My two cents Dec 22, 2011

Marina Steinbach wrote:
a) You understand and agree that if you are in breach of this Agreement, you will indemnify, protect and hold harmless our company for any and all costs and expenses arising out of that breach, including, without limitation, any reasonable attorneys fees.

Come what may, even if I'm not guilty, I will pay the attorney fees?

Yep!

Marina Steinbach wrote:
b) With respect to any translation assignments you further authorize COMPANY XYZ and any of its subsidiaries to enter into and execute and sign translation certifications on your behalf and the form of such certifications shall be as per attached.

Why would I authorize somebody to sign a translation certification on my behalf?

I agree. I would strike that out.

Marina Steinbach wrote:
The parties hereto agree that COMPANY XYZ and its related subsidiaries would suffer irreparable harm from a breach by you of any of the foregoing covenants herein. Therefore, in the event of an actual or threatened breach by you of any of the above provisions, COMPANY XYZ may, in addition and supplementary to other rights and remedies existing in its favor, apply to any court of competent jurisdiction for injunctive or other relief in order to enforce compliance with, or to any violation of, any of the provisions of this Agreement.

What does this mean? I have no clue.

This simply means that you accept that the company may request injunctive relief at a court, i.e. a ruling in which you are requested to cease in some way of breach of the agreement, to protect the company from the consequences of such breach.

I think you are not paranoid and are acting like a sensible professional who honours her agreements. If these clauses are things you cannot accept, it is best that you send them back a copy of the agreement with your ammendments and let them decide whether they agree.

If they do not agree with you ammendments, then it is best to let them go to someone else, just for your long-term peace of mind.


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Per Magnus  Identity Verified
Local time: 00:07
English to Norwegian
I would not sign it. Dec 22, 2011

Marina Steinbach wrote:
What does this mean? I have no clue.


Never sign anything if you are not absolutely sure what means. And this clause seems like something I would not sign even if I understood its full meaning.


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Samuel Murray  Identity Verified
Netherlands
Local time: 00:07
Member (2006)
English to Afrikaans
+ ...
IANAL Dec 22, 2011

Marina Steinbach wrote:
a) You understand and agree that if you are in breach of this Agreement, you will indemnify, protect and hold harmless our company for any and all costs and expenses arising out of that breach, including, without limitation, any reasonable attorneys fees.
Come what may, even if I'm not guilty, I will pay the attorney fees?


Let's assume the company suspects that you may be in breach. They have no proof yet, but to be on the safe side, they call in a lawyer. Who pays for the lawyer? You do. That is what "hold harmless" means. Note that IANAL.

b) With respect to any translation assignments you further authorize COMPANY XYZ and any of its subsidiaries to enter into and execute and sign translation certifications on your behalf and the form of such certifications shall be as per attached.
Why would I authorize somebody to sign a translation certification on my behalf?


Not even my bank asks for that. If they want to sign a certification on your behalf, they can request authorisation from you on a case by case basis.

...apply to any court of competent jurisdiction for injunctive or other relief in order to enforce compliance with, or to any violation of, any of the provisions of this Agreement.
What does this mean? I have no clue.


I have a vague suspicion that this isn't something to be concerned about, but much googling hasn't convinced me entirely. The worst thing is that your client probably doesn't know what injunctive relief is either.


[Edited at 2011-12-22 08:11 GMT]


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Ty Kendall  Identity Verified
United Kingdom
Local time: 23:07
Hebrew to English
Injunctive relief Dec 22, 2011

This is simply taking an injunction out against you to prevent you from doing/not doing something.
A good definition is here:

http://definitions.uslegal.com/i/injunctive-relief/http://definitions.uslegal.com/i/injunctive-relief/

Basically that paragraph is saying that...in addition to other things....blah blah blah, the company can take out an injunction requiring you to do or not do something....basically forcing you to comply with the provisions of the Agreement.

I wouldn't sign any of it. It's all rather draconian.


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Ty Kendall  Identity Verified
United Kingdom
Local time: 23:07
Hebrew to English
Also..... Dec 22, 2011

It's yet another example of a NDA extending far beyond its remit. Surely a NDA should just be that, a non-disclosure agreement - basically telling the translator to keep it schtum, not that plus everything and the kitchen sink.

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Samuel Murray  Identity Verified
Netherlands
Local time: 00:07
Member (2006)
English to Afrikaans
+ ...
Yes, but why? Dec 22, 2011

Ty Kendall wrote:
Basically that paragraph is saying that...in addition to other things....blah blah blah, the company can take out an injunction requiring you to do or not do something....basically forcing you to comply with the provisions of the Agreement.


Would they not be able to do that without this clause being present anyway? See, that is what I don't understand -- why put something in a contract that is that obvious? Unless it means something else...


[Edited at 2011-12-22 09:35 GMT]


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Charlie Bavington  Identity Verified
Local time: 23:07
French to English
IF you are in breach... Dec 22, 2011



a) You understand and agree that if you are in breach of this Agreement, you will indemnify, protect and hold harmless our company for any and all costs and expenses arising out of that breach, including, without limitation, any reasonable attorneys fees.

Come what may, even if I'm not guilty, I will pay the attorney fees?


Seems unlikely; it starts with "if you are in breach". If you are not guilty, as you put it, you are not in breach. While it doesn't explicitly say as much, in general, if a sentence starts with "if you...", then it shouldn't be interpreted as applying to you if you are not, I would contend. Furthermore, your liability explicitly arises out of "that breach". If there is no breach, there is no liability.

The issue is, given the potential magnitude of the repercussions (they appear not be just talking about withholding payment, for instance), who decides whether or not you are in breach....?

The parties hereto agree that COMPANY XYZ and its related subsidiaries would suffer irreparable harm from a breach by you of any of the foregoing covenants herein.


Irreparable harm? Really? Why, in the name of all that's holy, are they then attempting to make good any damage in the subsequent clause? Irreparable things are usually written off, aren't they? Sloppy drafting at best; nonsense at worst.

What does this mean? I have no clue.

If you don't understand, don't sign, is the golden rule, as Per said.


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Charlie Bavington  Identity Verified
Local time: 23:07
French to English
Remedy and enforceability Dec 22, 2011

Ty Kendall wrote:

It's yet another example of a NDA extending far beyond its remit. Surely a NDA should just be that, a non-disclosure agreement - basically telling the translator to keep it schtum, not that plus everything and the kitchen sink.


Yes and no. The name suggests what you say. However, common sense tells us there's no point having people sign things if you're just going to shrug and walk away if a party fails to comply.

A very quick google on remedy for breach of confidentiality is highly instructive. Damages can be awarded in the UK for breach.

For the US, see
http://www.extension.iastate.edu/agdm/wholefarm/html/c5-80.html
and
http://www.medlawplus.com/library/legal/confidentiality.htm
where, interestingly (to me!), the same comment is made about "irreparable", and it explains what injunctive relief is in the context of confidentiality.


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Phil Hand  Identity Verified
China
Local time: 07:07
Chinese to English
Not necessarily unreasonable Dec 22, 2011

1) "Come what may, even if I'm not guilty, I will pay the attorney fees?"
As Charlie points out, you only pay if you're guilty.

2) "Why would I authorize somebody to sign a translation certification on my behalf?"
Without seeing the attachment it's difficult to be sure, but I'd understand this to mean something like, if a representative of the company goes to a judge/embassy/government organ saying this is a sworn translation by Ms M. Steinbach, they can accept it; whereas under normal circumstances you'd have to go and be present yourself. It could be a way to be more efficient.

3) "What does this mean? I have no clue."
As Charlie's link says, this creates the possibility of them proactively stopping you leaking, rather than just having to hope that suing you will make it alright. This is good sense: you're a freelancer, so you don't have lots of assets to take away. If you leaked some sexy IP and lost a client a million dollars, they'd never get that money back from you. In fact, once you'd leaked more than your net worth, there would be nothing to stop you leaking more - you're already facing bankruptcy! But if they have this "irreparable" word in there, they at least have a legal way of stopping you - a judge can tell you to stop, then put you in jail if you don't.


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Samuel Murray  Identity Verified
Netherlands
Local time: 00:07
Member (2006)
English to Afrikaans
+ ...
Why pay at all? Dec 22, 2011

Phil Hand wrote:
As Charlie points out, you only pay if you're guilty.


Why pay at all? There seems to be this idea with some people that it is okay to pay lawyer's fees if you turn out to be guilty, but I say: why pay at all? Let the court decide whether you should pay the lawyer's fees. When there is a dispute with a client, I want the client's chosen avenue of dispute resolution to be contact with me directly, not his lawyer.


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Marina Steinbach  Identity Verified
United States
Local time: 18:07
Member
English to German
+ ...
TOPIC STARTER
Thanks for pointing to the fact that ... Dec 22, 2011

Phil Hand wrote:

Without seeing the attachment it's difficult to be sure, but I'd understand this to mean something like, if a representative of the company goes to a judge/embassy/government organ saying this is a sworn translation by Ms M. Steinbach, they can accept it; whereas under normal circumstances you'd have to go and be present yourself. It could be a way to be more efficient.


... the "attached" is missing! That's a good discussion starter. Perhaps I'll be able to at least strike this paragraph out of the agreement.


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Marina Steinbach  Identity Verified
United States
Local time: 18:07
Member
English to German
+ ...
TOPIC STARTER
Draconian... Dec 22, 2011

Ty Kendall wrote:

I wouldn't sign any of it. It's all rather draconian.


It's apparently a rather big translation company in New York dealing with patents. They probably have a lot of lawyers scurrying around.


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Nathaniel2
Local time: 00:07
Slovak to English
certification Dec 22, 2011

I see a potentially huge problem here, theoretically of course. What if you translate a document and send it off and go merrily about your way, only to find out much later that modifications were made to your translation and THEN sent for certification? A document that you had in effect translated and was then modified without your knowledge (this happens more often than you think) is now certified and what if the "modified" translation turns out to be horrific? Or worse, cause for action?
I'd certainly have at least this clause explained to me quite well.


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