Guest post – NDA checklist

guest bookThis guest post is the second time (see here for the first) I have had the pleasure of welcoming Danaë Hosek-Ugolini, a legal, business & shipping translator and experienced English solicitor who holds a diploma in legal studies from Oxford University and a Master’s in private law from the equally august University of Paris II. Her language pairs are French & Greek into English and Greek & English into French.

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You may be interested to know that an adaptation of this article is due to appear in the next ITI Bulletin.¹

My first real encounter with Confidentiality Agreements or Non-Disclosure Agreements (“NDAs“) was as a secondee in the legal team of a European bank aumspecializing in asset finance. This was the one document most of the bankers needed my help with in order to discuss specific business opportunities with their clients. I noticed the same points being raised over and over again during negotiations and before returning back to my law firm at the end of my secondment, I drew up a very useful table to help them negotiate their NDAs.

After becoming a legal translator, NDAs reappeared in my life. Offering to sign one is actually a good selling point for legal translators as confidentiality is very important to many clients, whether the documents are for litigation purposes or for new transactions. The very first document almost all the translation agencies (“TA“) I have worked for have sent me is an NDA, or, should I say, an adaptation of the traditional NDA (more on this later).

So I adapted my table to the translation sector and I thought I would share parts of it with you to help you in your negotiations. But before doing that, let us remind ourselves what an NDA is and what its limitations are.

What is an NDA?

nda-synonymsAn NDA is a confidentiality agreement that requires one party to keep certain information that is disclosed in the course of a transaction confidential and to use that information only for the particular purpose for which it has been disclosed. It creates a contractual right as well as helping to establish a relationship of confidence on which an action under general law can be based.

An expressed NDA will usually take precedence over any implied position under the law, unless the law imposes a higher standard (e.g. information relating to trade secrets or personal data) or the NDA conflicts with public policy. Depending on which country you live in or deal with, you may also be under an independent duty of confidence if you know the information you receive is confidential (like in the UK) or a duty to act in good faith (like in the US, and in many continental European jurisdictions such as Germany, France, Italy or Spain).

What is all the fuss about anyway?

Many translators may not be very concerned about NDAs because:

  • they are difficult to enforce;
  • they are restrictive and will be construed against the party seeking to rely on them; and
  • most jurisdictions will not enforce agreements in so far as they try to make public information confidential.

However, a client or a translation agency may still attempt to sue you for damages for wrongful use or for disclosure and you may need to invest time and money in dealing with their claim. So why not do everything you can to avoid this from the start?

Translation agencies and NDAs

signMany translation agencies will ask you to sign an NDA before discussing potential work. However, my experience is that this NDA is in fact trying to include other provisions. This article does not purport to look into these additional provisions but here are two that you need to watch out for:

  • clauses excluding payment if the standard of the translation is not satisfactory (in this case, I send them a link to the procedure on ITI website and ask for a similar process); and
  • non-competition clauses (I only agree not to contact the TA’s end-clients for whom I have done some work through that agency if (i) I had not worked for them before and (ii) I have been told their identity by the TA).

THE Table

raise-questionLet’s now turn to my table. I have used this with translation agencies and direct clients and have rarely seen my requests rejected. You may be worried about losing a potential new client by raising some points but, in my experience, as long as you provide a reasonable explanation, they rarely try to argue. The exact wording will need to be adapted to the original draft NDA you have received and some entries may not be applicable.

For the purpose of this table the “Discloser” is the Client/Translation Agency, the “Receiver” is the translator and the “Project” is the translation project to which the information relates.

Note from W2D: You can click to enlarge the table below. 🙂

danae

Last word from Danae: I hope this article was useful. Do not hesitate to contact me if you have come across any difficult negotiations or if you have stories of successful ones.

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 ¹ ITI Bulletin is a magazine published by one of the UK professional bodies for translators and interpreters.

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