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Agency insists on NDA just because I'm in database, while I do not wish to work on that project
Thread poster: Annamaria Amik

Annamaria Amik  Identity Verified
Local time: 02:17
Romanian to English
+ ...
May 10

Dear colleagues,

I've thought I've seen it all in nearly twenty years of work as a freelancer, but apparently agencies can still surprise me.

In a mass e-mail, an agency client of mine recently announced me they won a tender and sent an NDA for translators to sign. I replied I did not wish to work on that project. Later they contacted me again, telling me this meant no obligation to be available or to accept any work, they simply needed to prove to their client that all
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Dear colleagues,

I've thought I've seen it all in nearly twenty years of work as a freelancer, but apparently agencies can still surprise me.

In a mass e-mail, an agency client of mine recently announced me they won a tender and sent an NDA for translators to sign. I replied I did not wish to work on that project. Later they contacted me again, telling me this meant no obligation to be available or to accept any work, they simply needed to prove to their client that all translators to whom they send those job inquiries are bound by a NDA. The NDA stipulates unlimited liability for NDA violations. Considering that I, as a freelancer, only have the usual and reasonable virus and firewall protection, but not the technical or legal resources that guarantee that major client's expected level of security, I would never sign anything like that even if I were willing to work on that specific project.

Am I being impossible to work with, or can the agency reasonably expect me to undertake obligations, just because their modus operandi is to send their job inquiries by mass e-mail, and not, let's say, to a certain project team, i.e. a group of translators who are interested in those specific jobs? The agency and I do have a general NDA in place, but this behemoth direct client wants a tripartite NDA with the agency and the individual translators.

Thanks in advance for your thoughts.

Annamaria
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Samuel Murray  Identity Verified
Netherlands
Local time: 01:17
Member (2006)
English to Afrikaans
+ ...
Reply with your own worded NDA, to make them happy May 10

Annamaria Amik wrote:
Later they contacted me again, telling me this meant no obligation to be available or to accept any work, they simply needed to prove to their client that all translators to whom they send those job inquiries are bound by a NDA.


They should have send you the NDA first, and then, if you hadn't signed it, they should not have sent you the confidential information. They should not send their translators confidential information without knowing whether these translators will accept the terms of the NDA that follows. One should not reveal private information to someone, and then, as an afterthought, ask them to keep it a secret (and expect them to agree to all kinds of penalties).

Here's what it looks like to me: they made a mistake, and they're trying to fix it. What I suggest you do to help them out is to write your own NDA which basically says that you will respect the confidential nature of the information that they sent to you, sign it, and send it to them. There is no need to sign their draconian NDA.

The agency and I do have a general NDA in place, but this behemoth direct client wants a tripartite NDA with the agency and the individual translators.


I think you should insist that the NDA you have with them should suffice. As a gesture of good faith, you can write a separate, short NDA that addresses their client's specific concerns, and sign and send it.


Kay-Viktor Stegemann
Josephine Cassar
Philip Lees
 

Annamaria Amik  Identity Verified
Local time: 02:17
Romanian to English
+ ...
TOPIC STARTER
Clarification: no confidential info has been sent yet, this is just their contracting phase May 10

Samuel Murray wrote:

Here's what it looks like to me: they made a mistake, and they're trying to fix it. What I suggest you do to help them out is to write your own NDA which basically says that you will respect the confidential nature of the information that they sent to you, sign it, and send it to them. There is no need to sign their draconian NDA.


Thanks, Samuel.

To clarify: they haven't sent me any confidential information, just announced me they won the tender and that they wanted to list me as a subcontractor. I told them I did not want to be a subcontractor in that project.

Annamaria


 

Nikki Scott-Despaigne  Identity Verified
Local time: 01:17
French to English
Peronsal information on an agency database May 10

Perhaps the agency should not reveal information about you unless you have agreed to that. Maybe you did agree to your details being used in that way without having really realised that.
Maybe you should check what you signed when you registered with that agency. Maybe you will discover that in signing the NDA, you also authorised the agency to put your name forward in any bids they consider fit, etc. Is that legal? Maybe, maybe not. I don't know. It may also depend where the agency is lo
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Perhaps the agency should not reveal information about you unless you have agreed to that. Maybe you did agree to your details being used in that way without having really realised that.
Maybe you should check what you signed when you registered with that agency. Maybe you will discover that in signing the NDA, you also authorised the agency to put your name forward in any bids they consider fit, etc. Is that legal? Maybe, maybe not. I don't know. It may also depend where the agency is located. However, as you are now aware of this facet of the agency's modus operandi, you may wish that they clarify the situation with you, or simply decide to leave and ask them to remove any information about you from their files.

[Edited at 2019-05-10 08:26 GMT]
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Kay Denney
IrinaN
 

Annamaria Amik  Identity Verified
Local time: 02:17
Romanian to English
+ ...
TOPIC STARTER
Subcontracting in tenders May 10

Nikki Scott-Despaigne wrote:

Maybe you will discover that in signing the NDA, you also authorised the agency to put your name forward in any bids they consider fit, etc. Is that legal? Maybe, maybe not. I don't know..


Thanks, Nikki. That's a very important point. And yes, there is such a clause in the contract with the agency, but it stipulates that my approval is required before they list me (by name) as a subcontractor. I specifically told them I did not want to be a subcontractor in this project.

Annamaria


IrinaN
 

DZiW
Ukraine
English to Russian
+ ...
Law: Contract(s) May 10

1. In your contract it reads they should ask you before assigning.
2. Now they want to force you, because... of their breaching the contract.

Annamaria, as far as you seem to specialize in legal double Dutch, how about (i) sorting it out of the court, (ii) in trial, (iii) making them answerable, (iv) considering a joint responsibility, (v) just cease and desist and so on?

No extra obligations, no extra papers; if they want you to sign something,th
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1. In your contract it reads they should ask you before assigning.
2. Now they want to force you, because... of their breaching the contract.

Annamaria, as far as you seem to specialize in legal double Dutch, how about (i) sorting it out of the court, (ii) in trial, (iii) making them answerable, (iv) considering a joint responsibility, (v) just cease and desist and so on?

No extra obligations, no extra papers; if they want you to sign something,they need it badly. Meanwhile, did you review how the contract weds matter and manner, perhaps making the agency eligible, say, to espouse their* 'database entries', yep?

[Edited at 2019-05-10 11:48 GMT]
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Samuel Murray  Identity Verified
Netherlands
Local time: 01:17
Member (2006)
English to Afrikaans
+ ...
@Annamaria May 10

Annamaria Amik wrote:
They haven't sent me any confidential information, just announced that they won the tender...


The fact that an agency has won a tender is confidential information. Also the fact that the end-client has a project that involves translation into your target language is confidential information (unless the tender was public).


 

Annamaria Amik  Identity Verified
Local time: 02:17
Romanian to English
+ ...
TOPIC STARTER
General NDA May 10

Samuel Murray wrote:

Annamaria Amik wrote:
They haven't sent me any confidential information, just announced that they won the tender...


The fact that an agency has won a tender is confidential information. Also the fact that the end-client has a project that involves translation into your target language is confidential information (unless the tender was public).


Samuel, of course; I meant they were not sending any translation inquiries yet. Their inquiry about whether or not I wished to be listed as a subcontractor was covered by our general NDA, in my opinion. If this specific piece of information required a stricter confidentiality agreement than that, it was their duty to phrase the inquiry in such way as no confidential information is revealed before they procure those NDAs from their vendors. But this is not the case here, this whole issue has to do with their less than ideal project management, i.e. the fact that they intend to send the individual jobs by mass e-mail and assign the task on a first come first served basis.


 

Katalin Horváth McClure  Identity Verified
United States
Local time: 19:17
Member (2002)
English to Hungarian
+ ...
What if you just ignore it? May 10

If you don’t want to participate in that project, why don’t you just ignore the request for the special NDA?

Dominique Durand
Annamaria Amik
Dan Lucas
Tina Vonhof
Liviu-Lee Roth
 

Annamaria Amik  Identity Verified
Local time: 02:17
Romanian to English
+ ...
TOPIC STARTER
Agency's insistence May 10

Katalin Horváth McClure wrote:

If you don’t want to participate in that project, why don’t you just ignore the request for the special NDA?


That's what I was trying to do, but then they called and asked me specifically. I said no, specifically, by e-mail. Then they told me, literally: it was an administrative burden for them to remember not to send me any mass job inquiries from that end client in the future. I was just wondering if I was the unreasonable one for not seeing that as my problem and not their project managers'. In my opinion, in a situation such as this a team should be created and managed according to the requirements of the specific long-term project.


 

Samuel Murray  Identity Verified
Netherlands
Local time: 01:17
Member (2006)
English to Afrikaans
+ ...
No, you're not unreasonable May 10

Annamaria Amik wrote:
It was an administrative burden for them to remember not to send me any mass job inquiries from that end client in the future.


I understand their position, but unfortunately, if an agency is going to deal with confidential information all the time, they're going to have to adopt an e-mail strategy and system that allows them to maintain confidentiality without requiring everyone in the system to agree to the highest level of confidentiality. Yes, it's an administrative burden if you do it manually.

I was just wondering if I was the unreasonable one for not seeing that as my problem and not their project managers'.


You're not being unreasonable. I understand the situation from the agency's point of view, and I do not believe that they're trying to be unreasonable, but you should not sign something that you don't want to sign.


Annamaria Amik
Katalin Horváth McClure
Dan Lucas
Rachel Waddington
Jennifer Forbes
IanDhu
 

IrinaN
United States
Local time: 18:17
English to Russian
+ ...
Nikki must be right May 10

Their persistence is a pretty good indirect indicator that your name is already there - they just used all the best resumes they have in the database to win the bid. Now on the hook, they are trying to weasel out of the situation and bug you. Especially if it is a government contract or even a contract with a private government subcontractor.

With all kinds of enhanced security requirements all over the world, our world including, this old and most of the time pretty harmless practi
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Their persistence is a pretty good indirect indicator that your name is already there - they just used all the best resumes they have in the database to win the bid. Now on the hook, they are trying to weasel out of the situation and bug you. Especially if it is a government contract or even a contract with a private government subcontractor.

With all kinds of enhanced security requirements all over the world, our world including, this old and most of the time pretty harmless practice (for as long as you know the agency really well - in my case I was always getting my fair share of every project with my resume on the bid) now can backfire. Not only the clients are getting more and more cautious and actually follow through on every bit of every rule, but big brothers are suffocating them with all kinds of new and toughened demands, stating "do or die" in the not so fine print.

If this is the case with your agency, then with your resume on the bid and your refusal to work on the project and supply the required paperwork those guys have little something to worry about.




[Edited at 2019-05-10 13:30 GMT]
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Fatine777
 

Nikki Scott-Despaigne  Identity Verified
Local time: 01:17
French to English
As I understand it... May 10

Annamaria Amik wrote:
And yes, there is such a clause in the contract with the agency, but it stipulates that my approval is required before they list me (by name) as a subcontractor. I specifically told them I did not want to be a subcontractor in this project.
Annamaria


As I understand it, the agency requires your express authority. On this occasion, you have not given your permission and the agency should respect that.

As has already been pointed out, it may not be realistic for the agency to take the necessary steps. If the agency expects its freelancers to comply with the terms of what has been agreed but is unable and/or unwilling to do so itself - and even takes steps to coerce, however politely, freelancers into accepting terms that are expressly voluntary - I would have to think about how important that is to me and whether I wish to continue working with them.


DZiW
Rachel Waddington
Kevin Fulton
Dan Lucas
Fatine777
IanDhu
 

Annamaria Amik  Identity Verified
Local time: 02:17
Romanian to English
+ ...
TOPIC STARTER
Tenders May 11

IrinaN wrote:
Their persistence is a pretty good indirect indicator that your name is already there - they just used all the best resumes they have in the database to win the bid.


Nikki Scott-Despaigne wrote:
As I understand it, the agency requires your express authority. On this occasion, you have not given your permission and the agency should respect that.


Exactly. Although they are nice and always pay on time, I rarely work for them because they supply poor TMs and it makes me feel I'm the arrogant one for pointing it out that I could not give a discount for the TM hits.

I did knowingly agree in the general NDA to their use of my resume, I don't mind that, since we do collaborate occasionally; but now I wonder what's the point of such a clause if it leads to insane exchanges of permission asked and denied and then these moral constraints citing the administrative burden my refusal causes.

Thank you all for your thoughts.


Fatine777
 

Phil Hand  Identity Verified
China
Local time: 07:17
Chinese to English
"Administrative burden" is literally what the agency's cut is for... May 11

I can understand almost everyone's position in this: Some clients have work which is so secret that even the knowledge of its existence might give their competitors information they shouldn't have. You don't want to take on unnecessary liability.

The one position I can't understand is the agency's. The whole point of an agency is to match up customers' various demands with translators' various skills/interests. If they really have no way of separating out different sets of translat
... See more
I can understand almost everyone's position in this: Some clients have work which is so secret that even the knowledge of its existence might give their competitors information they shouldn't have. You don't want to take on unnecessary liability.

The one position I can't understand is the agency's. The whole point of an agency is to match up customers' various demands with translators' various skills/interests. If they really have no way of separating out different sets of translators for different jobs, then they're apparently little more than an email forwarding mechanism. They could be replaced by an AOL account with a few clever settings.
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Annamaria Amik
Nikki Scott-Despaigne
Vanda Nissen
IanDhu
 
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