| Pages in topic: < [1 2 3] > | Posting nonpayment at BB violates NDA? Thread poster: Dahsom Hamilton, Ph.D.
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| This is absolutely true! | Sep 30, 2009 |
Russell Jones wrote:
Remember that the Blue Board is about expressing Willingness to Work Again.
The rules discourage anything else.
A score of 1 with no further comment tells us all we need to know!
Great advice indeed.
| | | | | Misunderstanding about the Blue Board | Sep 30, 2009 |
Stuart Dowell wrote:
If this company already has a BB listing, they must therefore accept the BB rules as they apply to agencies.
They would then have to decide if they want to continue being a member of Proz or enforcing their NDA.
Stuart, I'm afraid you're mistaken. Anyone can enter any company in the Blue Board - the company itself does not have to be a member (or even aware of the existence) of Proz. All you need to know to add an entry is some basic information, including the company's name and address, a contact number and a contact name.
You can enter a company because you want to give them a rating, or because you want to find out the experiences of anyone else who's ever worked for them (in which case you enter the agency and then click on "call for ratings").
[Edited at 2009-09-30 08:20 GMT]
| | | | | Never said that | Sep 30, 2009 |
Charlie Bavington wrote:
Why do we bother responding to all the "should I sign this?" threads if the ultimate wisdom of the Proz forum is that anything you sign is only so much toilet paper?
Never said that my friend. Please Charlie. You don't know me! Thanks.
| | | | nordiste 
France
Local time: 13:26
English to French
+ ...
| the law, nothing but the law | Sep 30, 2009 |
Dahsom Hamilton, Ph.D. wrote:
They just called me and said that posting at BB regarding their company is a violation of NDA that I signed. I'm not an attorney and I don't want to break any law. Is it true?
[Edited at 2009-09-29 21:17 GMT]
Only Dahsom can check his NDA and see if it prevents him to post about the very existence of his collaboration with the agency.
But no NDA can prevent Dahsom to hire a lawyer, or to lodge a complaint against this agency.
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| Exaggeration for effect | Sep 30, 2009 |
Tomás Cano Binder, CT wrote:
Charlie Bavington wrote:
Why do we bother responding to all the "should I sign this?" threads if the ultimate wisdom of the Proz forum is that anything you sign is only so much toilet paper?
Never said that my friend. Please Charlie. You don't know me! Thanks.
Not as such, no. But you did advise the OP to disregard the terms of an NDA that you have not read. As one cannot cherry pick the terms of an agreement that suit and disregard the rest, it is "all or nothing", the logical conclusion is that you view the NDA, which you have never seen, as worthless. I merely used a metaphor for worthless pieces of paper.
One further point on the 2 breaches in question. The agency's breach is easily remedied, by payment. The OP's proposed breach is not - once you have disclosed confidential information, it stays disclosed. You cannot put the cat back in the bag, as it were.
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Charlie Bavington wrote:
But you did advise the OP to disregard the terms of an NDA that you have not read.
I clearly did not. Please read my words again:
Tomás wrote:
I really wonder whether we are all bananas or what. Does it really matter whether the NDA states that the relationship with the agency cannot be disclosed? Even if the NDA was so strange that it said that, isn't it also true that the agency is forgetting the main commitment with the translator, which is duly paying for the services requested?
It sounds to me that being picky about whether the NDA says "You may not complain about us in translator portals" or not is completely out of the question. This whole situation would not exist if the agency did a very simple thing: honouring their payment commitment.
I don't see any advice to the poster or to anyone. This is just an expression how puzzling is that we get picky about the exact wording of an NDA if what matters in any agreement in court is the spirit of it. (This is just my opinion; I am not a lawyer.)
| | | | Laurent KRAULAND (X)
France
Local time: 13:26
French to German
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| 2nd time: illegal clauses | Sep 30, 2009 |
At the risk of repeating my previous post, illegal clauses are not enforceable. A clause that would prevent me from making my business relationship with an outsourcer public would also prevent me to seek arbitration by a third party and/or from suing the outsourcer. It therefore would be illegal, as it would open the doors to any kind of kangaroo court in which the strongest signatory would be party and judge at the same time. Or am I missing something here?
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Laurent KRAULAND wrote:
At the risk of repeating my previous post, illegal clauses are not enforceable. A clause that would prevent me from making my business relationship with an outsourcer public would also prevent me to seek arbitration by a third party and/or from suing the outsourcer. It therefore would be illegal, as it would open the doors to any kind of kangaroo court in which the strongest signatory would be party and judge at the same time. Or am I missing something here?
I completely agree with all this.
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Arnaud HERVE
France
Local time: 13:26
English to French
+ ...
| Illegal clause | Sep 30, 2009 |
Laurent KRAULAND wrote:
At the risk of repeating my previous post, illegal clauses are not enforceable. A clause that would prevent me from making my business relationship with an outsourcer public would also prevent me to seek arbitration by a third party and/or from suing the outsourcer. It therefore would be illegal, as it would open the doors to any kind of kangaroo court in which the strongest signatory would be party and judge at the same time. Or am I missing something here?
I agree with Laurent. A clause forbidding the translator to inform other parties about non-payment would be abusive, illegal, and not enforceable.
Non-payment is not part of a job.
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Tomás Cano Binder, CT wrote:
I don't see any advice to the poster or to anyone. This is just an expression how puzzling is that we get picky about the exact wording of an NDA if what matters in any agreement in court is the spirit of it. (This is just my opinion; I am not a lawyer.)
You (and I) have posted in a thread that specifically asks ("Is it true?") whether a particular interpretation or understanding of a situation is true.
If I am asked whether something is true and I respond, it seems probable that my response will be interpreted as advice as to the veracity or otherwise of the hypothesis as stated. In a nutshell, you gave advice, as did I. I'll repeat mine - always err on the side of caution where the law is concerned. It is true that courts will sometimes consider the spirit or unstated presumed intention of a clause. It is also true that they will sometimes enforce it to the letter (or indeed comma, as a case in Canada highlighted on this very website not long ago demonstrated).
| | | | | Some true, some not true | Sep 30, 2009 |
Laurent KRAULAND wrote:
At the risk of repeating my previous post, illegal clauses are not enforceable.
True, broadly
[/quote] A clause that would prevent me from making my business relationship with an outsourcer public would also prevent me to seek arbitration by a third party and/or from suing the outsourcer. It therefore would be illegal, as it would open the doors to any kind of kangaroo court in which the strongest signatory would be party and judge at the same time. Or am I missing something here? [/quote]
Not true. The precise arrangement and terminology varies from place to place, but you have statutory rights and duties which override any contract (it is in fact a similar principle to the one which makes contracts that involve illegal acts broadly unenforceable or indeed void). So if you need to seek legal redress, or indeed if you are questioned by the police, say, about a case, then the fact you have signed an NDA becomes irrelevant, because you have a duty to disclose (it may be little more complicated, they may need warrants etc., but ultimately, you will be obliged to disclose what you know). In the same way that under some circumstances you have a duty to disclose, under others, you have a right to disclose.
Sadly those circumstances do not include unofficial websites.
| | | | | Just for kicks and giggles... | Sep 30, 2009 |
Would you mind posting the exact wording of the NDA (obviously excluding any references to the company) just for kicks and giggles?
Many systems of law protect consumers from surprising clauses, since most lawmakers do not think consumers are "business savvy" enough to fend for themselves—this is often not the case for business persons, who are thought to be experience... See more Would you mind posting the exact wording of the NDA (obviously excluding any references to the company) just for kicks and giggles?
Many systems of law protect consumers from surprising clauses, since most lawmakers do not think consumers are "business savvy" enough to fend for themselves—this is often not the case for business persons, who are thought to be experienced enough in the game to know what they are getting themselves into. I think most systems of law would consider professional translators, i.e., those who are (usually ) paid for their work, to be business persons.
But, to be honest, broad non-disclosure agreements are really not all that rare. I have done many translations for companies that have demanded I not disclose having had anything to do with them, e.g., defense contractors, because the subject matter was sensitive.
Without even going into the details of your particular situation, it seems to me that the "A" in "WWA" implies having already worked for the company in question. It seems at least arguable that such an implication could be construed as a disclosure of having had previous dealings, which in turn could be deemed a breach of a particularly broad NDA.
Your best bet would probably be to contact an attorney you trust, since every case is unique. Still, it would be interesting to see the actual wording of the NDA.
Good luck!
P.S. Discussing your case with an attorney and pursuing your claims in court would surely not breach an NDA.
ADDED: Also see http://www.proz.com/translation-articles/articles/554/1/Contracts-I:-Would-you-sign-this?
[Edited at 2009-09-30 15:20 GMT] ▲ Collapse
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Laurent KRAULAND (X)
France
Local time: 13:26
French to German
+ ...
| Good point, indeed | Sep 30, 2009 |
Charlie Bavington wrote:
Sadly those circumstances do not include unofficial websites.
In France, even closed fora or directories such as the BB are illegal to my knowledge, simply because giving information and negative feedback about a natural/legal person is considered to be libel as long as a court has not ruled in the case.
So obviously (and according to this "French point of view") the next step the OP should take would be to get in touch with a lawyer so the outsourcer can be sued...
But is (and that, IMO, is the main point) giving a low WWA to an outsourcer "disclosing a business relationship"? IOW is the mere mention of an existing business relationship a breach of the NDA - which content we don't even know by now?
Russell Jones wrote:
Remember that the Blue Board is about expressing Willingness to Work Again.
The rules discourage anything else.
A score of 1 with no further comment tells us all we need to know!
Exactly - what lies behind this uncommented "1" is another matter and could even belong to the points covered by the NDA. We are reaching once again the limits of what can be done within the BB.
[Edited at 2009-09-30 13:47 GMT]
| | | | John Rawlins
Spain
Local time: 13:26
Spanish to English
+ ...
| I agree with Tomás | Sep 30, 2009 |
Even if I had signed an NDA to the effect that the relationship was secret - I wouldn't hestitate to blow the whistle (give a bad Blueboard rating) if the client didn't pay. To hell with the lawyers!
[Edited at 2009-09-30 13:48 GMT]
[Edited at 2009-09-30 13:48 GMT]
| | | | Brightman
Local time: 06:26
Japanese to English
+ ...
| So, forgetting what the NDA says for now... | Sep 30, 2009 |
what documentation does the poster have, in terms of "work estimate or quote --> customer purchase order --> delivery confirmation (acceptance) --> proper invoice" are concerned?
Is there any document enforceable by court, that clearly demonstrates both parties' desire to provide service and to pay for the service, agreed at a rate?
Without their purchase commitment, I'm afraid you may have provided your service prematurely, as NDA would not constitute their agreement t... See more what documentation does the poster have, in terms of "work estimate or quote --> customer purchase order --> delivery confirmation (acceptance) --> proper invoice" are concerned?
Is there any document enforceable by court, that clearly demonstrates both parties' desire to provide service and to pay for the service, agreed at a rate?
Without their purchase commitment, I'm afraid you may have provided your service prematurely, as NDA would not constitute their agreement to purchase. Take all the communication records you have exchanged with the client and seek advice from a lawyer. ▲ Collapse
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