| Pages in topic: < [1 2] | Agency requiring me not to take jobs for the same end client from other agencies Thread poster: Jørgen Madsen
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Laurent KRAULAND (X) 
France
Local time: 16:59
French to German
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| An alternative... | Dec 10, 2010 |
would be to identify the client towards the translator and vice versa. This would simplify matters greatly and reinforce, rather than weaken, existing NDA's.
Sadly, that's not the way most agencies see it.
| | | | pcovs
Denmark
Local time: 16:59
English to Danish
| Don't sign and ask them to revise | Dec 10, 2010 |
A ridiculous clause, which is unenforceable AND impossible for you to adhere to.
In many cases you wouldn't have a clue who the end client is anyway, and if - by chance - midway through an assignment you should become aware that this particular end client is one of such mentionned clients in the agreement, should you then immediately cancel the job?
No question about this - this clause does not work in our line of business.
| | | | | Perfectly legal | Dec 11, 2010 |
Jørgen Madsen wrote:
An agency is me not to take jobs for the same end client from other agencies.
Is that ok? Is it at all legal? Thanks!
Yes, it is perfectly legal if you accept that condition. An agency could also require you to always wear pink underwear with laces every time you work on their translations. Is it legal? Yes. Is it legitimate? Well, depends on what you think is reasonable. You can always reject, question, or ask for a reword of the stipulation if you feel it is unreasonable (or if you don't own any pink underwear with laces).
Let me ask you this: if you have a non-disclosure agreement with the other agencies stating that you cannot reveal the existence of your work for a particular end customer (which is a very normal stipulation in NDAs), how can you explain that you cease working for another agency and the end customer without violating your NDA with the first agency, or even worse, lying?
If you tell the other agency that you started working/are working for the first agency and their end customer, you are violating your confidentiality duty with the first agency, or are forced to lie saying that that you are no longer interested in the work. So there is quite a deadlock here I reckon.
My solution: I had a similar situation with a contract presented to me by an agency I work for. Since the wording was not quite obvious on this matter, I asked them to explain that stipulation in writing and include a clarification in the contract so that the confidentiality of all my customers was ensured. They did, I signed, and everybody is happy! Maybe you can do the same.
| | | | | Not relevant | Dec 11, 2010 |
W Schoeniger wrote:
Interesting clause - how will they check?
Personally I find that entering this region is not quite the approach. When signing contracts and NDAs, we must be ready to comply with whatever we sign. The chances of being caught in a violation should not matter at all.
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Paul VALET (X)
France
Local time: 16:59
| Just not workable clause | Dec 11, 2010 |
Jørgen Madsen wrote:
An agency is me not to take jobs for the same end client from other agencies.
Is that ok? Is it at all legal? Thanks!
This clause seems just not workable.
How would you know that you work for the same client from another agency? The text from that company could come to you through the second agency for translation for industrial espionage purpose, for instance.
How the same end client of two different agencies could know that its translations are done by a same contractor of these two agencies?
Besides, you could even have been translating for this end client by yourself for a long time before having had that agency as your client.
In any case, as long as you don't cheat anyone, none of these companies could argue that you would harm it.
What is necessary is to secure the confidentiality concerning the various relationships you may have with your various clients. If any of these companies breaches the confidentiality it owes you, it could harmful to you, but from its part only and under its liability.
| | | | Schtroumpf
Local time: 16:59
German to French
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| @Tomás Cano Binder | Dec 11, 2010 |
Hi Tomás, maybe I was not clear enough about it, or maybe you did not read until the last paragraph.
If a clause can't be checked (by either of both sides, as colleagues pointed out) nor enforced, this does not mean that we don't need to care if we signed it! It means that the clause is ridiculous, and therefore should not be signed.
I suppose that almost all of us agree upon that, anyway.
Have a nice week-end everybody!
Tomás Cano Binder, CT wrote: W Schoeniger wrote:
Interesting clause - how will they check? Personally I find that entering this region is not quite the approach. When signing contracts and NDAs, we must be ready to comply with whatever we sign. The chances of being caught in a violation should not matter at all.
The full quote reads in fact:
... Will they check the 999 accountancy...? Or XY's mailbox? It really sounds like they were trying to impress the freelancer but I don't see how they could ever enforce such a clause.
***Even though, legal or not, I find it recommendable not to sign such stuff. I suppose it will give even more value to our signature if we really discuss contracts line by line.***
| | | | Samuel Murray
Netherlands
Local time: 16:59
Member (2006)
English to Afrikaans
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| Agree with Tomás | Dec 11, 2010 |
Tomás Cano Binder, CT wrote:
When signing contracts and NDAs, we must be ready to comply with whatever we sign. The chances of being caught in a violation should not matter at all.
Agree completely. However, some agencies don't seem to get this, and they might encourage you to sign something because "it is a standard contract that our lawyers require, but don't worry, we'll never do the horrible things threatened in it, because it is just standard legal language".
| | | | Paul VALET (X)
France
Local time: 16:59
| It looks contrary to the EU competition law | Dec 11, 2010 |
Jørgen,
Being a citizen of the European Union, you have to comply with the EU law (as well as the agency if it is located in the EU). I don’t have enough time to document on the following, but I am fairly sure that the clause considered would be found infringing the EU competition law which is one the most important foundations of the EU. For at least two reasons:
- First; this clause would be an obstacle to competition between the first agency, you, the second agency and t... See more Jørgen,
Being a citizen of the European Union, you have to comply with the EU law (as well as the agency if it is located in the EU). I don’t have enough time to document on the following, but I am fairly sure that the clause considered would be found infringing the EU competition law which is one the most important foundations of the EU. For at least two reasons:
- First; this clause would be an obstacle to competition between the first agency, you, the second agency and the “end client”. Exercising competition freely implies that the end client might contact directly for contracting the two agencies and you.
- Second; preventing you from working for another agency about a same end-client of the two agencies would probably be considered as an obstacle to competition set up by the first agency towards the second agency, for it would deprive the latter of resources of the market only with a view to limiting competition.
In the event of the second agency discovering the arrangement between the first agency and you, the second agency could probably sue the first agency and you for infringement to the competition law and for the damage caused to it by this infringement.
Besides, preventing you from working freely for another agency, whatever the reason, would be considered as interference in the management of your business by the first agency. In those conditions, you would be considered more or less like an employee of that agency, not as its contractor. But would you accept that, it would be your responsibility, and thus it would be your interest to ask for an important and regular compensation for that deprivation of potential business.
I doubt this agency would accept to pay you such a compensation, but it could be a good way of entering into negotiations on the subject with the intention of abandoning that clause with one accord.
[Modifié le 2010-12-12 16:07 GMT] ▲ Collapse
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Schtroumpf
Local time: 16:59
German to French
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| Paul is perfectly right | Dec 15, 2010 |
Paul VALET wrote:
(...)
Besides, preventing you from working freely for another agency, whatever the reason, would be considered as interference in the management of your business by the first agency. In those conditions, you would be considered more or less like an employee of that agency, not as its contractor. (...)
[Modifié le 2010-12-12 16:07 GMT]
At first sight I had a nearly emotional reaction regarding the clause Jörgen is talking about. But my second glance (in fact, my thoughts about the matter during the week-end) makes it look quite different.
What I feel is exactly the point of Paul above. We are selling an intellectual service under independant status. Nobody should be able to prevent us from doing this freely unless he wishes to be our employer (obviously, agencies and final customers trie to avoid any employment of course).
Besides, your are NOT free, at least in France, to edict unjustified clauses upon your contractors (see the pink underpant discussion above). See for instance www.industrie.gouv.fr/guides/guide-relations-clients-fournisseurs.pdf
Well, keep your heads upright everybody, and let's defend our independant status with much more proudness and vigour.
| | | | Paul VALET (X)
France
Local time: 16:59
| Applicable EU Law | Jan 11, 2011 |
Paul VALET wrote:
(...)Being a citizen of the European Union, you have to comply with the EU law (as well as the agency if it is located in the EU). I don’t have enough time to document on the following, but I am fairly sure that the clause considered would be found infringing the EU competition law which is one the most important foundations of the EU. (...)
You would find the basis of the EU law concerning that matter in the articles 81 and 82 of the Treaty establishing the European Community, which read as follow:
"COMMON RULES ON COMPETITION, TAXATION AND APPROXIMATION OF LAWS
CHAPTER 1
RULES ON COMPETITION
SECTION 1
RULES APPLYING TO UNDERTAKINGS
Article 81
1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this article shall be automatically void.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
- any agreement or category of agreements between undertakings,
- any decision or category of decisions by associations of undertakings,
- any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
Article 82
Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.
Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts."
Regards,
Paul Valet
[Modifié le 2011-01-11 14:02 GMT]
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