How the So-Called Translation Industry Turned “Confidentiality Agreements” into Declarations of Acceptance of Servitude

Most translators probably noticed that the length and the character of agreements between freelance translators and many of so-called LSPs (Languages Service Providers, also known as translation agencies), which used to be known as Confidentiality Agreements and these days are mostly called NDAs (Non-Disclosure Agreements), have changed considerably within the last decade or so.

Twenty or even ten years ago, these agreements were legitimate confidentiality agreements aimed at what they were originally designed to do: protecting confidential information of clients whose documents are being translated by freelance translators.

They were usually only two or three hundred words long, and all a translator had to do was to sign an agreement acknowledging that confidentiality of such documents will be protected by the translator.

But within the last decade or so, quite a few translation agencies have changed the style and content of these agreements.

These days, the so-called NDAs read more like a declaration of undying loyalty and obedience of a grateful servant to a hopefully merciful, but potentially merciless feudal lord and master. In other words, these are declarations of acceptance of servitude, not seen on such a scale since feudal time. Any day now, these agreements will probably include (in addition to the 2,600 words of a typical NDA sample attached below) also the following clauses:

1. Ius Primae Noctis Clause (also known as droit du Seigneur in French), or legal right allowing a medieval lord and master to take the virginity of his serfs’ maiden daughters.

2. Sacrificing the firstborn son (of serfs who for some reason have no maiden daughters) for any perceived transgression against the translation agency, the natural lord and master of so-called translators.

Once these two new clauses are included, they will complete the cycle of history repeating itself (first, as a tragedy, next time, as a farce) and take us back a couple of centuries back to feudal times, or a couple of thousand years back to biblical times.

The NDAs already have a clause stating that should the lords and masters of serfs also known as translators decide to sue in their infinite wisdom a hapless translator for any reason at all, the translator must pay any “reasonable attorney’s fees” of the natural lord and master of all translators.

It should be noted that since “reasonable attorney’s fees” are generally calculated at 400 dollars an hour, the term itself is clearly an oxymoron. There is no such thing, just like there is no such thing as “being a little bit pregnant”.

It is amazing how many clauses that have nothing to do with confidentiality of clients’ documents the XYZ translation agency managed to cram into what is dressed up as a confidentiality agreement. These extraneous clauses include (but are not limited to, as they like to say in these contracts):

1. Non-competition.

Huh??? Don’t they know that it is illegal to try to prevent another businesses from competing with their own business? Competition is what the capitalist system, such as it is, is based on. Without competition, it cannot work.

It is one thing to ask your subcontractors not to abuse information obtained while they were working for you to steal your customers. That would be a legal clause enforceable in an employment contract, for example, and employees are often asked to sign a non-competing agreement. But even though a blanket clause preventing translators from competing with brokers is blatantly illegal, most NDA agreements are drafted to at least imply that translators may not work for direct customers who, unbeknownst to the translator, may be agency’s customers, although many clients obviously send translations to several agencies and several freelance translators.

2. Ownership of copyright translator’s work product.

Huh??? Why should a broker own the copyright to your translation? Once it is sold to a client, is it not the  client who will own your translation, if anyone, rather than a broker? How can this requirement be possibly legal?

3. Having one’s home office “audited from time to time” by the translation agency.

WTF??? Are we talking about regulations in Cuba or North Korea, or about “freelance contractors” who live and work in the so-called “free world”? This is actually as close to Ius Primae Noctis as it gets. Make sure your maiden daughters are away from your house during these raids on your home! The people who put this contract together are certifiable lunatics and there is not telling what they might do to people who sign on the dotted line.

4. All kinds of other things that have nothing to do with translating, including (but not limited to):

a) agreeing to undergo background checks (we’ve got to make sure that the translator is not a libertarian or liberal who is voting for the wrong party),

b) agreeing to undergo drug testing (what about alcohol consumption and smoking, is it legal for translators to drink and smoke? …. shouldn’t that be in the contract too?),

c) agreeing to undergo training (would that be based on obedience training for dogs by  Cesar Milan, the Dog Whisperer?),

d) many other seemingly random and completely nonsensical items are also thrown in for good measure, such as Health Insurance Act and other assorted acts (is that the Private Health Insurance and Big Pharma Bailout Act, the greatest accomplishment of Obama so far, or is it something else?), and something called “ARRA” and “GLB” (I have no idea what these things are, but what the hell do they have to do with  translating?).

Nothing, obviously. So why are they included?

You can read the Non-Disclosure, Non-Compete [sic] contract and judge for yourself whether this is something that a freelance worker living in “the free world” should sign, although it may be better just to scan it because it is so long (2,600 words). It should be noted that the sample below is a medium-sized “NDA”, many run to 4 or 5 thousand words.

I only changed the name of the company to XYZ corporation and added bolding to what I consider the juiciest parts, nothing else was changed in it.

I would like to emphasize that I did not ask to be sent this contract. It was sent to me when I asked to be sent a sample of documents for translation when an agency asked about my availability for a rush job, even before I had a chance to find out whether the agency is willing to pay my rate (almost certainly not, given what’s in the agreement) and what are the payment terms.

Although the contract is unsolicited e-mail, and therefore junk mail, I removed the name of the company from it. In any case, since quite a few basically identical contracts were sent to me in this manner by several translation agencies, this is really just a boiler plate representative of the garbage contracts that translation agencies are now asking translators to sign, even before any discussion of rates and payment terms takes place.

Even the most arrogant agencies probably understand that most translators must hate it when they are asked to sign this kind of garbage.

But why should they care about being hated by lowly peons hungry for work? They know that a translator who signs this kind of contract is somebody who is desperate for work, and who will be eager to work at low rates (they call low rates “best rates”) with crazy deadlines, through weekends and holidays.

Because that is exactly the kind of translator that these agencies are looking for. As Caligula used to say “Oderint, dum metuant” (let them hate us, as long as they fear us).

Whether somebody calling himself or herself a translator can in fact translate is much less important than whether this person is ready to sign on the dotted line a declaration of acceptance of servitude.

 

XYZ Corporation

Non-Disclosure, Non-Compete Agreement

This agreement is made between

herein referred to as Contractor, located at

and XYZ, Inc. referred here in as Company, located at 1234 Any Street, Any State, USA.

This Agreement shall govern the conditions of disclosure by Company to Contractor of certain “Confidential Information”, as defined in this Agreement under Section 1.

With regard to the Confidential Information, Contractor hereby agrees to the following provisions:

1. Confidentiality and Nondisclosure of Company Confidential Information. Under this Agreement, Company shall furnish Contractor non-public and commercially valuable information relating to Company (hereinafter referred to as “Confidential Information”. Contractor agrees to hold such Confidential Information, including but not limited to the identities and contact information of Company customers, the vendors Services delivery process, Company internal processes and procedures, Company pricing and Contractor rates, communications between Company and Contractor, and Company reference materials, in trust and confidence, and agrees that such Company Confidential Information shall be used only as directed to provide Services for Company and shall not be disclosed in whole or part to any third parties or used for any other purpose. At any time, on demand by Company, Contractor shall deliver to Company all Company Confidential Information, including all reference materials and other documents, whether in print, electronic or other form created or given by Company to the Contractor.

Contractor shall not make or retain any copies of any documents or electronic records of any kind in any medium containing Company Confidential Information without the express written permission of Company. All communications conducted between Company employees and Contractor on Company premises and/or Company employees and Contractor on remote locations must be recorded for future reference. Contractor acknowledges that all Company Confidential Information shall be owned exclusively by Company and/or its Customers and that no information furnished by Company under this Agreement or in contemplation of this Agreement shall be owned by or deemed confidential or proprietary to Contractor.

2. Confidentiality and Nondisclosure of Information of Customers and Third Parties; Privacy and Information Security.

In the course of performing Services under this Agreement, Contractor may be exposed to or become aware of proprietary and/or confidential information of Company’s customers and third parties (including Company customer’s clients), including but not limited to medical, financial, insurance, and other private matters and Personally Identifiable Information such as social security numbers, addresses, phone numbers and credit card numbers (“PII”). All information of every kind provided by Company Customers, including all documents, and the information contained therein, is confidential and proprietary information of Company’s customers (all such information hereinafter referred to as “Customer Confidential Information”). Company is contractually responsible for safeguarding the confidentiality of such Customer Confidential Information, subject to the possible disclosure thereof pursuant to legal process. Much of the information exposed to Contractor, in addition to being proprietary and/or confidential, is subject to government regulations. That includes but not limited to Health Insurance Portability and Accountability Act (“HIPAA”), the American Recovery and Reinvestment Act of 2009 (“ARRA”), Safe Harbor provisions established by the U.S. Department of Commerce, Section 605 of the Communications Act of 1934, 47 U.S.C. Section 605 and Gramm-Leach Bliley Act (“GLB”). Pursuant to those government regulations and similar agreements, Contractor is obligated to maintain the confidentiality of all of this information and not use it for any purpose other than for providing Services to the Company customer that provided the information.

Because of the importance of protecting Customer provided and government regulated information, and because Company is by law or contractual obligation required to keep confidential all Personally Identifiable Information and Customer Confidential Information, it is Company’s policy that all of the information and documents Contractor receives, creates or observes during the course of providing Services or otherwise in communicating with a Customer, or which Contractor otherwise receives in the course of working for Company, will and must be treated as Customer Confidential Information. Contractor must respect and keep the confidence of all Customer Confidential Information.

Accordingly, Contractor agrees that Contractor shall not:

(a) communicate, publish, transmit, distribute, display or otherwise divulge or disclose for any reason any Customer Confidential Information to any organization or person other than the organization or person engaging the Services of Company and that is providing the Customer Confidential Information during the translation project; or (b) use any Customer Confidential Information for any purpose other than for the delivery of Services on behalf of Company and only for the organization or person providing the Customer Confidential Information; or (c) make any copies of documents or other media containing any Customer Confidential Information or otherwise retain any Customer Confidential Information obtained by or disclosed to Contractor in the course of providing Services or (d) accept remuneration, directly or indirectly, in exchange for any Customer Confidential Information. Electronic

devices (computers, smart phones, PDAs, iPads, etc.) may be used to assist in completing a project. If Contractor uses electronic devices to complete a project, any files, including without limitation documents, spreadsheets, PowerPoint presentations, and temporary files must be saved to a file folder or hardware drive which is kept separate from all other files on Contractor’s electronic device, and to which only Contractor has access. The separate file folder or hardware drive must be password-protected, and Contractor must safeguard the secrecy of that password. Upon successful completion of the project, and confirmation of receipt of the completed project from the Customer, Contractor must delete from Contractor’s electronic devices all electronic and hardcopy files created in the course of completing the Assignment. This includes, without limitation, all temporary files. Company reserves the right to audit from time to time each Contractor’s workplace, including home offices, to ensure that this policy is being followed. In addition, when working remotely, Contractor must have up to date anti-virus and spyware software installed on its computers. Any deviation from the foregoing requires the prior written consent of the Chief Compliance Officer of Company.

Should Contractor disclose any Customer Confidential Information, inadvertently or otherwise, or discover a potential risk that Confidential Information may be or has been disclosed, Contractor must inform Company’s Chief Compliance Officer of this disclosure immediately, and in no case later than twenty-four (24) hours after discovering the disclosure or risk of disclosure. Contractor must disclose to Company’s Chief Compliance Officer the name of the customer for which the Assignment was being done, the identity of the individual whose protected information has been disclosed (if PII has been disclosed) and, if known, any contact information that Contractor has for that individual. Additionally, Contractor must provide a brief description of what happened, including the date when the disclosure or risk of disclosure occurred, and a description of the types of Customer Confidential Information that were involved (such as Social Security Number, date of birth, home address, account number, disability code, credit card information, etc.). Failure to report any disclosure of Customer Confidential Information may result in disciplinary action.

Contractor agrees:

that Company may take steps to ensure that Contractor is in compliance with its obligations under Sections 1 and 2 of this Agreement, and may terminate Contractor immediately for any violation of Sections 1 or 2. Contractor acknowledges that in addition to such termination, Company (directly or through an insurance company), and/or Company Customers or their customers may seek legal remedies against Contractor for any such violation.

3. Non-Compete/Non-Solicitation. Contractor agrees to the following provisions: (a) the identity of Company customers and customer contacts, unless publicly available, is Company Confidential Information and may not otherwise be used by Contractor except as permitted in this Agreement, and (b) for 24 months upon termination of the engagement with Company, Contractor shall not directly or indirectly solicit any service assignments, including but not limited to linguistic Services, accept employment or provide Services from said customer unless otherwise agreed to in writing by Company, (c) further, Contractor shall not, for a period of 24 months following termination of the engagement with Company, directly or indirectly, contact or solicit any of Company’s service providers, clients or employees either on behalf of self or for another entity.

Contractor acknowledges and agrees that a breach of any of the agreements contained in this paragraph will result in irreparable and continuing damage to Company for which there will be no adequate remedy at law and, in the event of such breach, Company will be entitled to injunctive relief and/or a decree for specific performance, in addition to and without limiting any other remedy or right Company may have (including monetary damages, if appropriate).

4. Ownership of Work Product. To the extent the work product delivered to Company hereunder includes material subject to copyright, Contractor agrees that Company or its Customers shall own all copyrights in the work product. Contractor hereby assigns and agrees to assign to Company, its successors and assigns, all right, title and interest in and to the work product, including all copyrights, patents, trade secrets, and other proprietary rights therein (including renewals thereof). Contractor shall execute and deliver such instruments and take such other action as may be required and requested by Company to carry out the assignment contemplated by this paragraph. Any documents, magnetically or optically encoded media, or other materials created by Contractor pursuant to this Agreement shall be owned by Company and be subject to the terms of this paragraph.

5. Return of Materials. On conclusion of any particular Assignment, upon Termination or as requested by Company, Contractor will return to Company all materials or documents produced or provided in connection with the Services.

6. Restriction on Assignments. This Agreement is personal, and is being entered into based upon the singular skill, qualifications and experience of Contractor. Contractor shall not assign any of its rights, or delegate any of its duties or obligations, under this Agreement without the prior written consent of Company, and not before such other person or firm enters into a Nondisclosure/Confidentiality Agreement with Company.

7. Relationship Between the Parties. Contractor is retained only for the purposes and to the extent set forth in this Agreement and Contractor’s relationship to XYZ Corporation shall be that of an independent contractor and

not as an employee. As such, Contractor represents and warrants to XYZ Corporation:

1. No Benefits. XYZ Corporation has no obligation to withhold or pay any amount due from Contractor by

way of income or employment taxes, and Contractor is not entitled to any pension, stock, bonus, profit-sharing, health, or similar benefits which may be available to employees of XYZ Corporation;

2. No Authority to Bind XYZ Corporation. Contractor has no authority, either expressed or implied, to assume or create any obligation or responsibility on behalf of or in the name of XYZ Corporation or to bind XYZ Corporation in any manner. Contractor will not hold itself out as a representative of XYZ Corporation or imply that Contractor has any authority to act on behalf of XYZ Corporation;

3. No Right to Control. XYZ Corporation has no right to control or direct the manner or measures by which Contractor performs its duties hereunder. Contractor is free from direction and control over the means

and manner of providing the Services, subject only to the right of XYZ Corporation to specify the desired results;

4. Permits and Licenses. Contractor shall be responsible for obtaining all assumed business registrations or professional occupation licenses required by state law or local government ordinances for Contractor to conduct its business;

5. Equipment. Contractor shall provide the tools or equipment necessary for performance of the Services unless provided otherwise in a Work Order;

6. Public Representations. Contractor represents to the public that its services are provided by an independently established business;

7. Other Activities. Subject to Contractor’s obligation to perform the duties specified in this Agreement, Contractor shall be free to devote its time and attention to such other activities so long as such activities do not materially interfere with duties required under this Agreement;

8. Background Check. Contractor may be required by a Customer to undergo a background check, drug testing or other security procedure as a condition for working on that Customer’s project. Contractor understands that its failure to agree to undergo such testing or comply with such procedures will disqualify Contractor from working either on that Customer project or for that Customer; and

9. Training. Contractor may be required by a Customer to undergo special training and agrees to undergo such training if required by an Assignment

10. 8 .Miscellaneous Provisions

11. Binding Effect. This Agreement shall be binding on the parties and their respective directors, officers, partners, providers, agents, affiliates and successors.

1. No Third-Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended to confer on any person, other than the parties to this Agreement, any right or remedy of any nature whatsoever.

2. Amendment and Waiver. This Agreement may be amended, supplemented or modified only by an instrument in writing executed by both parties. A provision of this Agreement may be waived only by a written instrument executed by the party waiving compliance. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision.

3. Severability. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, the remaining provisions will continue in full force and effect as if the Agreement had been executed without the invalid provision.

4. Attorney Fees. If any suit or action is filed or arbitration commenced by any party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees incurred in preparation, prosecution and defense of such suit or action as fixed by the court or arbitrator.

5. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State, where Company located. Any suit, action or arbitration filed or commenced by any party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement shall be filed or commenced in Court District of Company location. Each party hereby irrevocably submits to the jurisdiction of such courts for the purpose of such suit or action and hereby expressly and irrevocably waives, to the fullest extent permitted by law, any objection it may now or hereafter have to the venue of any such suit or action in any such court and any claim that any such suit or action has been brought in an inconvenient forum.

6. Injunction. A breach of any of the agreements contained in this Agreement will result in irreparable and continuing damage to Company for which there will be no adequate remedy at law and, in the event of such breach, Company will be entitled to injunctive relief and/or a decree for specific performance, in addition to and without limiting any and all other applicable remedies at law or equity, including the recovery of damages.

9. Entire Agreement. This Agreement and all Work Orders issued under it, constitute the entire, final and complete agreement and understanding of the parties with respect to the subject matter hereof, and supersedes and replaces all written and oral agreements and understandings heretofore made or existing by and between the parties or their representatives with respect thereto.

AGREED TO AND ACCEPTED:

CONTRACTOR NAME (Printed) COMPANY (Printed)

CONTRACTOR NAME (Signed/Date) COMPANY (Signed/Date)