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Big problem with NON-COMPETE term, increasingly common
Thread poster: JW Narins
Daniel Frisano
Daniel Frisano  Identity Verified
Italy
Local time: 16:08
Member (2008)
English to Italian
+ ...
No worries either side Jun 29, 2018

This is a non-issue.

If a provider tries to steal an end client from an agency, sooner or later (most likely very soon) everybody will know exactly what's going on and the provider will lose both the agency and the end client.

Then again, lack of ethics and/or commons sense and/or experience is certainly not a rare occurrence.


 
DZiW (X)
DZiW (X)
Ukraine
English to Russian
+ ...
Agree Jun 30, 2018

Daniel, it's not a mere provider stealing end clients, not even goals vs means, but rather agencies trying to secure their position between clients and translators (and other middlemen) by imposing their rules in the dark room. As John noted, innocent remarks and clauses like that actually may go badly wrong, when such an agency just claims violation of terms, enforcing the punishment.

I see it as a sequel to old logical fallacy pitches, when con artists made bad offers by stating boldly "This is a rule [for true gentlemen] [in Europe] !" or pleading ignorance. I do read the contracts and never agree to payment in 30+ days and other weird clauses I don't like or understand--including non-compete term, let alone for some time after the project.

Indeed, even in the supposedly 'privacy' era one should tell freelancers from employers. However it's no excuse for signing restricting and harmful BS.

[Edited at 2018-06-30 10:08 GMT]
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Dan Lucas
Dan Lucas  Identity Verified
United Kingdom
Local time: 15:08
Member (2014)
Japanese to English
Decline to sign, and say why you decline to sign Jun 30, 2018

JW Narins wrote:
We need to start objecting to these terms.

It's good to see topics such as this one appearing, because they allow diligent newcomers to educate themselves about what is and isn't acceptable in a contract, but such agreements are at least easy to deal with: don't sign. This has, as several have already noted, always been an effective approach to such clauses.

Incidentally, we don't need a mass uprising of freelancers objecting to these clauses. All we need individual freelancers to pluck up the courage to say no. I do sort of agree with DZiW's comment about letting the careless and inattentive stew in their own juice, but let's at least put the information out there so that the careful and attentive can consider it.

Dan


Christine Andersen
Tina Vonhof (X)
 
DZiW (X)
DZiW (X)
Ukraine
English to Russian
+ ...
what goes around comes around Jun 30, 2018

Dan, if a person--both as a translator and a businessman--can't see what exactly stands behind stated or omitted numbers and phrases, then a relatively exotic non-compete term (a priori impossible to fully comply with) is but a minor issue, not to mention signing without reading and understanding a contract properly.

Frankly, it makes me smile sadly, when freelancers work without a contract/PO or sing additional terms, let alone check
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Dan, if a person--both as a translator and a businessman--can't see what exactly stands behind stated or omitted numbers and phrases, then a relatively exotic non-compete term (a priori impossible to fully comply with) is but a minor issue, not to mention signing without reading and understanding a contract properly.

Frankly, it makes me smile sadly, when freelancers work without a contract/PO or sing additional terms, let alone checking both copies. They say it's a tuition fee, so let it serve them right.

Business == Risks
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IrinaN
IrinaN
United States
Local time: 10:08
English to Russian
+ ...
I second Daniel Jul 1, 2018

Daniel Frisano wrote:

This is a non-issue.

If a provider tries to steal an end client from an agency, sooner or later (most likely very soon) everybody will know exactly what's going on and the provider will lose both the agency and the end client.

Then again, lack of ethics and/or commons sense and/or experience is certainly not a rare occurrence.


 
Christine Andersen
Christine Andersen  Identity Verified
Denmark
Local time: 16:08
Member (2003)
Danish to English
+ ...
Jul 1, 2018



[Edited at 2018-07-01 22:13 GMT]


 
Christine Andersen
Christine Andersen  Identity Verified
Denmark
Local time: 16:08
Member (2003)
Danish to English
+ ...
If I don't mean it, I don't sign it Jul 1, 2018

JW Narins wrote:
...

But no one wins when we're all signing contracts we don't mean. The value of this is not mutual deceit and possible subsequent conflict, but mutual agreement avoiding subsequent conflict.


I couldn't agree more.
Contracts should be clear - with no vague, open-ended clauses, whether they are about indemnity or non-competition or anything else. The parties to the contract should not be deceiving each other, and the purpose of a contract is to agree on how to avoid conflicts or solve those that arise nevertheless 'while the parties are still friends', as my law lecturer put it.

I regard clients as business partners and working with them has to be profitable for both of us. In practice I would never poach clients, because I am not interested in working as an agency or outsourcer, which is what most of my clients do. So maybe I can sign the non-competition clause a little more lightly than colleagues who do look for direct clients. But I have thought about it, and I take it seriously.

If I can see that I will not be able to comply with a clause in a contract, I tell the client why and refuse to sign, as Dan Lucas says. I have actually succeeded occasionally in getting clients to change the terms, so that I could comply if the situation arose, and could sign with a clear conscience. So it is not always a useless protest.


 
Christopher Schröder
Christopher Schröder
United Kingdom
Member (2011)
Swedish to English
+ ...
Ethics and reality Jul 2, 2018

I must say I blithely sign these things under the assumption that they will never be applied, and even if they were then they would be applied fairly.

In life and business, I attach more importance to what I consider to be reasonable than to what the law/contract actually says.

So I would never solicit work from an agency’s end-customer even if we have never signed any kind of agreement.

On the other hand, even if I might have signed to say I will not wor
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I must say I blithely sign these things under the assumption that they will never be applied, and even if they were then they would be applied fairly.

In life and business, I attach more importance to what I consider to be reasonable than to what the law/contract actually says.

So I would never solicit work from an agency’s end-customer even if we have never signed any kind of agreement.

On the other hand, even if I might have signed to say I will not work directly for an agency’s customers within X years, I would not hesitate to do so under circumstances where I consider this reasonable.

Imagine a situation where you’ve been working with an end-customer for 20 years and the agency gets taken over yet again and your work is given to a cheaper translator, quality falls and the end-customer contacts you directly.

Or how about when the project manager switches agencies and takes this end-customer with them?
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Michele Fauble
 
Dan Lucas
Dan Lucas  Identity Verified
United Kingdom
Local time: 15:08
Member (2014)
Japanese to English
There's a place for common sense Jul 2, 2018

Chris S wrote:
On the other hand, even if I might have signed to say I will not work directly for an agency’s customers within X years, I would not hesitate to do so under circumstances where I consider this reasonable.

I would probably do the same. And as a practical matter, UK courts have traditionally taken a very dim view of such "restraint of trade" clauses, except in very limited cases, so you would probably be fine in a legal sense.

Dan


 
Jennifer Forbes
Jennifer Forbes  Identity Verified
Local time: 15:08
French to English
+ ...
In memoriam
But who IS the end client? Jul 3, 2018

I work mainly for agencies. I can't think of a case in over 30 years in which I knew for certain who the end client was. I'm not told and I don't ask. It could be any number of the parties named in the document I'm translating (or their lawyers, accountants, employees, competitors, an entity aiming to take them over, etc.), or none of those parties.
While I would never deliberately try to poach the agency's clients, I suppose it could happen in all innoncence, because I simply don't know w
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I work mainly for agencies. I can't think of a case in over 30 years in which I knew for certain who the end client was. I'm not told and I don't ask. It could be any number of the parties named in the document I'm translating (or their lawyers, accountants, employees, competitors, an entity aiming to take them over, etc.), or none of those parties.
While I would never deliberately try to poach the agency's clients, I suppose it could happen in all innoncence, because I simply don't know who they are.
Surely I can't be the only freelancer in this situation?


[Edited at 2018-07-03 08:16 GMT]
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Christine Andersen
 
Christine Andersen
Christine Andersen  Identity Verified
Denmark
Local time: 16:08
Member (2003)
Danish to English
+ ...
That is what this whole discussion is all about Jul 3, 2018

Jennifer Forbes wrote:

I work mainly for agencies. I can't think of a case in over 30 years in which I knew for certain who the end client was. I'm not told and I don't ask. It could be any number of the parties named in the document I'm translating (or their lawyers, accountants, employees, competitors, an entity aiming to take them over, etc.), or none of those parties.
While I would never deliberately try to poach the agency's clients, I suppose it could happen in all innoncence, because I simply don't know who they are.
Surely I can't be the only freelancer in this situation?


[Edited at 2018-07-03 08:16 GMT]


I work for agencies, and do a fair amount of marketing, product descriptions and other jobs where it is fairly obvious who the end client is. On other occasions the agency may actually tell me, if it has a bearing on who the target readers will be, or they suggest I can look at the client's website for terminology, house style or anything else I can use. I have even been given a contact person with the end client, whom I could ask for help on occasions.

In practice many of these end clients want multi-language translations, DTP and a whole lot of other things that I do not offer, so they need an agency to coordinate it all. In that case I am not tempted to approach them as a competitor to my client.

Some agencies mention a few of their clients as references or cases on their websites, so it is worth checking there too, but that would be the limit of my 'due diligence'. After that, I would regard potential clients as fair game!

Indeed, I have seen end clients move from one agency to another, and seriously considered approaching clients from one agency after it went bankrupt. If clients approached me, I would probably not turn them down, though I might mention, if I was aware of the fact, that I had worked for the agency they were not satisfied with. I would certainly want to know why they were suddenly approaching a freelancer instead of an agency, and take it from there.

The situation is different, of course, for freelancers who work with direct clients, but in Europe at least, it would probably be up to the agency to prove that a freelancer was knowingly approaching their clients, and not just looking for work on a free market.


 
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Big problem with NON-COMPETE term, increasingly common







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