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NDAs - can you just sign them?
Thread poster: Inez Ulrich
Inez Ulrich
Inez Ulrich  Identity Verified
Germany
Local time: 10:22
Member (2016)
English to German
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Sep 25, 2020

Hi,

signing NDAs is normal, of course, but now I wonder if I should maybe take a little closer look before I sign them (wow! quite genius, right?), as so far I didn#t bother reading them. Today's NDA states some penalties I have to pay if I should breach any of the obligations (€ 10.000 for each obligation). Is it worth discussing this with the agencies at all? I mean, I'm not planning to breach any of those obligations (and they are really nothing extraordinary). Any toughts?


 
Samuel Murray
Samuel Murray  Identity Verified
Netherlands
Local time: 10:22
Member (2006)
English to Afrikaans
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@Inez Sep 25, 2020

Inez Ulrich wrote:
Is it worth discussing this with the agencies at all?


9 out of 10 times the agency will tell you that their lawyers drafted the NDA and that there is nothing they can do about it, and that you have to accept it, but that they don't really intend to apply those penalties. My first tactic is to cross out the offending sentences and not tell the PM about it. If they do notice it, I try to explain why I can't sign it, but usually there is no choice: you either have to trust the PM when he says that you have nothing to worry about or wave the client goodbye.

I mean, I'm not planning to breach any of those obligations...


You have to decide if you want to take the risk. Eventually, I think you might learn (or decide) not to read too closely.


Inez Ulrich
 
Thomas T. Frost
Thomas T. Frost  Identity Verified
Portugal
Local time: 09:22
Danish to English
+ ...
Be cautious Sep 25, 2020

We are not consumers and thus not protected by consumer laws, so I always read everything.

I always give such penalty clauses a wide berth; if the outsourcer declines to remove them, I don't sign.

Often a bit of compromise is necessary, but the key is to mitigate the risk.

I may lose a client by declining certain types of clauses that I find abusive or unreasonably one-sided, but on the other hand, a potential client insisting on unreasonable clauses may we
... See more
We are not consumers and thus not protected by consumer laws, so I always read everything.

I always give such penalty clauses a wide berth; if the outsourcer declines to remove them, I don't sign.

Often a bit of compromise is necessary, but the key is to mitigate the risk.

I may lose a client by declining certain types of clauses that I find abusive or unreasonably one-sided, but on the other hand, a potential client insisting on unreasonable clauses may well be a bad omen with respect to other aspects of their future conduct.
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Maria Teresa Borges de Almeida
Philip Lees
Mr. Satan (X)
Zibow Retailleau
Sheila Wilson
Philippe Etienne
Tina Vonhof (X)
 
Inez Ulrich
Inez Ulrich  Identity Verified
Germany
Local time: 10:22
Member (2016)
English to German
+ ...
TOPIC STARTER
Thank you! Sep 25, 2020

Thomas T. Frost wrote:

We are not consumers and thus not protected by consumer laws, so I always read everything.

I always give such penalty clauses a wide berth; if the outsourcer declines to remove them, I don't sign.

Often a bit of compromise is necessary, but the key is to mitigate the risk.

I may lose a client by declining certain types of clauses that I find abusive or unreasonably one-sided, but on the other hand, a potential client insisting on unreasonable clauses may well be a bad omen with respect to other aspects of their future conduct.


Thanks, Thomas, that is surely sth to consider. I really never cared that much, and I might just have had luck so far (and no breaches whatsoever), but you are right, nobody protects us, so we have to take care of ourselves.

BTW: what could a compromise look like, in this case (with the penalties)?

[Edited at 2020-09-25 17:43 GMT]


 
Philip Lees
Philip Lees  Identity Verified
Greece
Local time: 11:22
Greek to English
Always read Sep 26, 2020

I always read NDAs before signing and won't sign anything I consider unreasonable. I've found that clients may be willing to allow changes if I give them a good reason. For example, more than once I've had to point out that the restrictions in an NDA would prevent me from giving the client a positive review on the Blue Board (naturally, I don't mention the possibility of a negative review). I also provide suggestions as to how the text might be rephrased to eliminate the problem(s).

... See more
I always read NDAs before signing and won't sign anything I consider unreasonable. I've found that clients may be willing to allow changes if I give them a good reason. For example, more than once I've had to point out that the restrictions in an NDA would prevent me from giving the client a positive review on the Blue Board (naturally, I don't mention the possibility of a negative review). I also provide suggestions as to how the text might be rephrased to eliminate the problem(s).

If they won't budge, then I'll take my business elsewhere.
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Dan Lucas
Mr. Satan (X)
Zibow Retailleau
Sheila Wilson
Maria Teresa Borges de Almeida
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Inez Ulrich
Inez Ulrich  Identity Verified
Germany
Local time: 10:22
Member (2016)
English to German
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TOPIC STARTER
suggestions Feb 24, 2021

Can someone give me an example of how you would suggest the text can be modified? I am in the same situation again and would like to have some alternative wording available. Thank you!

 
Inez Ulrich
Inez Ulrich  Identity Verified
Germany
Local time: 10:22
Member (2016)
English to German
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TOPIC STARTER
... Feb 24, 2021

I just told that new client that I won't sign the NDA. He said that this was a common clause and that I simply have to keep confidential about the texts, so there will be no fine.
I told them that there is protection whatsoever for me, no fine if they decide not to pay me after the job. Also, if sth unexpected should happen, like my computer gets hacked or sth like that, they wouldn't care about me never having done anythi
... See more
I just told that new client that I won't sign the NDA. He said that this was a common clause and that I simply have to keep confidential about the texts, so there will be no fine.
I told them that there is protection whatsoever for me, no fine if they decide not to pay me after the job. Also, if sth unexpected should happen, like my computer gets hacked or sth like that, they wouldn't care about me never having done anything wrong - I just would have to pay. You just can never be sure, and therefore I cannot take the risk of signing sth like that. AND: I also told him that most of my other clients, large companies, don't have any such clauses in their NDAs, so if they can do withouth, he should be able to do without, too.
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Marina Taffetani
Marina Taffetani  Identity Verified
Italy
Local time: 10:22
Member (2013)
German to Italian
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Read them Feb 26, 2021

I think you (we) should always read NDAs carefully. I quoted on a translation project a few weeks ago. I'd never worked with that agency before, but they had great ratings on the Blue Board and were willing to accept my rates. They obviously asked me to sign an NDA, and... luckily I read it very carefully. There was a clause stating that I agreed to inspections at my workplace from a third party representative. Wait, what?! I won't open my door to any representative, third party or otherwise. My... See more
I think you (we) should always read NDAs carefully. I quoted on a translation project a few weeks ago. I'd never worked with that agency before, but they had great ratings on the Blue Board and were willing to accept my rates. They obviously asked me to sign an NDA, and... luckily I read it very carefully. There was a clause stating that I agreed to inspections at my workplace from a third party representative. Wait, what?! I won't open my door to any representative, third party or otherwise. My workplace is in my house, and although my office is in a separate room, I definitely don't want anyone entering my house and inspecting my computer or premises. I asked them to delete that clause. I never heard of them again.Collapse


 
Christine Andersen
Christine Andersen  Identity Verified
Denmark
Local time: 10:22
Member (2003)
Danish to English
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I have actually persuaded agencies to agree to changes Feb 26, 2021

I cannot remember the precise details, and must not name agencies here in any case, but I have persuaded a few agencies to amend their NDAs.

One refused at first to agree to changes, but came back a month or so later and said they had reviewed their NDA because so many freelancers refused to sign it! I did then do at least one job for them, but they never became a regular client. They cut down from 30 different agreements, they said, and tried to make a single one for all their subc
... See more
I cannot remember the precise details, and must not name agencies here in any case, but I have persuaded a few agencies to amend their NDAs.

One refused at first to agree to changes, but came back a month or so later and said they had reviewed their NDA because so many freelancers refused to sign it! I did then do at least one job for them, but they never became a regular client. They cut down from 30 different agreements, they said, and tried to make a single one for all their subcontractors and business partners. I doubt if I was the only person to point out that it was impossible, but they might be able to manage a small handful of agreements, recognising the differences between different types of business relatiohships.

Over the years I have signed a lot of NDAs, and it is possible to set out the necessary points on two or three pages! But I read them all, and never sign anything I cannot be legally bound by.

Some of the twenty-page so-called NDAs cover far more than non-declaration.

Many discuss quality issues which you hope will never arise, with insurance liability and penalties etc. etc. They really have nothing to do with professional secrecy or non-declaration. Beware of 'hold harmless' clauses that do not define liabilities precisely. I have translated contracts for far bigger companies, limiting liability to direct consequences and capping the damage and compensation payable. A freelancer has neither the assets nor the insurance to cover some of the claims mentioned in NDAs.

I do not accept the argument 'don't worry, it will never happen'. If it will never happen, then there is no reason to sign a contract about it. Your signature is binding, and even if it will not stand up in court, it can cause you a lot of problems and waste a lot of time if anyone tries to take you to court.

Another frequent problem is that hopeful clients insist on references, but bind you by their NDA so that you can never ask them for a reference if another client should ask for one.

Clients may also ask for access to your computer to 'audit' your security procedures, and that means they can see which other clients you work for. I never agree to allowing that kind of audit in my private home and my computer.
I have asked what their response would be, if another of my clients made a similar request.

They can mention ISO certificates and what they like, but no way will I sign a clause like that.
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Korana Lasić
Korana Lasić  Identity Verified
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Serbian to English
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Speaking of NDAs Feb 26, 2021

Who thinks it be worth my time to write to an LSP and ask for termination of the NDA because it was signed expecting work from then and they've had no work for me three months later?

I wouldn't ordinarily bother but theirs is a particularly irritating NDA that I only signed 'cos (you win some and you lose some and) they accepted my rates. I refuse loads of work offered for half of the lowest rate I'd work for. I'm also on my own and a freelancer for only a year, so I weighed it all
... See more
Who thinks it be worth my time to write to an LSP and ask for termination of the NDA because it was signed expecting work from then and they've had no work for me three months later?

I wouldn't ordinarily bother but theirs is a particularly irritating NDA that I only signed 'cos (you win some and you lose some and) they accepted my rates. I refuse loads of work offered for half of the lowest rate I'd work for. I'm also on my own and a freelancer for only a year, so I weighed it all out and thought: Well, OK, I hate the non-compete clause but, like I said, you pick your battles.

Now then, I am not going to go after direct clients yet but this particular NDA does have a "long" non-compete clause and since I am not getting any work from them, there is really nothing for me in staying in the contract. If it were a more general one I'd let it go, but the non-compete clause and the whole,..., how it's written is beginning to bug me. Any thoughts?

You know the usual, I shall not go after their clients and there is no way for me to know all their clients deal...etc

Please understand that I already know I shouldn't have signed any NDAs containing such a clause in the first place. But, I'm also a translator with a 0.10 cent minimum competing with people who will work for 0.05 cents and even less, so I made a judgment call based on the LSP accepting my rates and under the assumption there will be work coming in the very immediate future.

Edit: Just grammar.

[Edited at 2021-02-26 13:43 GMT]
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Thomas Pfann
Thomas Pfann  Identity Verified
United Kingdom
Local time: 09:22
Member (2006)
English to German
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@Korana: No work - no NDA Feb 26, 2021

Korana Lasić wrote:

Who thinks it be worth my time to write to an LSP and ask for termination of the NDA because it was signed expecting work from then and they've had no work for me three months later?


If you have never worked for them, there is nothing to disclose and there are no clients for you to go after. Effectively, there is no NDA between you and the LSP.


Korana Lasić
 
Korana Lasić
Korana Lasić  Identity Verified
Member
Serbian to English
+ ...
Thanks a bunch, Thomas. Feb 26, 2021

Thomas Pfann wrote:

Korana Lasić wrote:

Who thinks it be worth my time to write to an LSP and ask for termination of the NDA because it was signed expecting work from then and they've had no work for me three months later?


If you have never worked for them, there is nothing to disclose and there are no clients for you to go after. Effectively, there is no NDA between you and the LSP.


Yah, I see your point. I suppose I just needed some reassurance. They didn't enforce the part of the contract that benefited me (send any work) so they shan't be able to enforce the non-compete clause either.

I think I just need to push back on non-compete clauses from now on. I've realised that when it comes to contracts I'm still thinking like an employee and need to start thinking like the sole trader that I am now. Thank you for replying.


 
Inez Ulrich
Inez Ulrich  Identity Verified
Germany
Local time: 10:22
Member (2016)
English to German
+ ...
TOPIC STARTER
no way Feb 26, 2021

Marina Taffetani wrote:

I think you (we) should always read NDAs carefully. I quoted on a translation project a few weeks ago. I'd never worked with that agency before, but they had great ratings on the Blue Board and were willing to accept my rates. They obviously asked me to sign an NDA, and... luckily I read it very carefully. There was a clause stating that I agreed to inspections at my workplace from a third party representative. Wait, what?! I won't open my door to any representative, third party or otherwise. My workplace is in my house, and although my office is in a separate room, I definitely don't want anyone entering my house and inspecting my computer or premises. I asked them to delete that clause. I never heard of them again.


I'd surely never allow anybody to inspect my computer - no way! it's ridiculous what some clients ask for...


Marina Taffetani
Christine Andersen
 
Inez Ulrich
Inez Ulrich  Identity Verified
Germany
Local time: 10:22
Member (2016)
English to German
+ ...
TOPIC STARTER
... Feb 26, 2021

Christine Andersen wrote:

I cannot remember the precise details, and must not name agencies here in any case, but I have persuaded a few agencies to amend their NDAs.

...


I never asked a client to change their NDAs, but that was before I got that advice here, in this thread.
With this client I talked about a few days ago, they changed that particular clause in the NDA. They added that the clause is not applicable if some third party gains unauthorized access to my computer, e.g. if the computer is being hacked.

So, it is up to me not to disclose any info, which I won't do, of course. I'm not sure if it is fine now the way it is, but I felt better with that added part and signed it. At first they didn't understadn what my problem was, but they were at least kind enough to listen and then understood, and changed that clause. I really hope all will be fine because it is a great job.


 
Anton Konashenok
Anton Konashenok  Identity Verified
Czech Republic
Local time: 10:22
French to English
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An NDA can also tell you something about the agency Feb 26, 2021

Both a vendor agreement and an NDA can tell you what kind of client an agency is. When the agency is imposing upon you a huge, menacingly worded agreement obviously skewed in their favour, you know you are unlikely to get any meaningful work from them even if you sign it. The very best clients have agreements as small as one page. Conversely, sometimes you see a heap of legal mumbo-jumbo that may not even be enforceable or relevant in the given jurisdiction. One European agency recently sent me ... See more
Both a vendor agreement and an NDA can tell you what kind of client an agency is. When the agency is imposing upon you a huge, menacingly worded agreement obviously skewed in their favour, you know you are unlikely to get any meaningful work from them even if you sign it. The very best clients have agreements as small as one page. Conversely, sometimes you see a heap of legal mumbo-jumbo that may not even be enforceable or relevant in the given jurisdiction. One European agency recently sent me an NDA obviously written in the US. When I confronted them on that, they had the audacity to claim it was written by a licensed European lawyer. I had to point out that "federal and state legislation", "injunctive relief" and "remedies in equity" don't belong in the continental European law. Apart from that, they stipulated a confidentiality period of twenty years, and in the vendor agreement they explicitly refused to pay invoices submitted more than six months after the job delivery.Collapse


Korana Lasić
Philip Lees
Christine Andersen
 
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NDAs - can you just sign them?







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