The Linguist

@Linguist_CIOL DECEMBER/JANUARY The Linguist 11 FEATURES EARLY TERMINATION How easy is it to get out of an NDA before the expiry date? We may wish to exit an NDA early because the information concerned is now in the public domain or because the NDA undermines our future working practices. An example would be a clause preventing an interpreter from working with any other organisation or individual linked to wind farms in France where this is their specialist area, or restricting a translator from working with companies with subsidiaries in Malta when that country provides the bulk of their work. It may be possible to take advantage of an early termination clause (if there is one), such as "Either party can terminate the NDA at any time by providing written notice of their intention to terminate to the other party." Of course, the other party has to agree. This may occur where the relationship with this client is unlikely to continue, perhaps because they will not be able to offer us this sort of work again. NDAs are legally enforceable contracts, so if they are breached the non-defaulting party may be able to sue for breach of contract and damages (financial compensation), and/or apply for a court order to prevent any further disclosure. But why might we want to disclose confidential information? We may want to share it with a proofreader or subcontractor translator. If so, we should first seek the client's permission, and the third party should sign an NDA, whether with us or through the client. So can confidential information be disclosed without such penalties being invoked? Yes, where the court orders disclosure or, more commonly, where the information is already in the public domain. Also where the receiving party already knew about the information via a source that is not a party to the contract, for example through working for multiple clients in the same subject area – which is, of course, what many of us do. With regard to non-compete clauses, many corporate clients place assignments across a range of LSPs at any given time. This increases the possibility that we will come across the same confidential information over and over, without necessarily knowing the identity of the end client. Thus it is almost impossible for us not to breach clauses of this nature. CHECKING THE 'SMALL PRINT' Prior to signing an NDA, freelancers should check the provisions in the disputes clause as to how any disputes are to be dealt with – in particular, which country has jurisdiction: ours or the client's? This is important, as legal systems can differ widely and it is possible that your professional indemnity insurance (PII) may only cover work carried out for the source language country. If the policy holder is based in the UK, work carried out in the USA, for example, will often incur a higher PII premium. NDAs can run to 20 pages or more, so if you are unable to unpick every single line of every single page, you should at least: • Pay attention to clauses which define what is considered to be 'confidential information' – e.g. definitions of 'financial information', 'software materials' and so on. For example the disclosing party should be very clear if 'financial information' includes details just about their bank accounts or also about staff wages. Equally, it is important to know whether or not 'software materials' include materials owned by any subsidiaries. • Clarify any permitted disclosure and exclude liability for breach due to a party already known to be working in the relevant subject area, e.g. where the client is aware of the translator's reputation as an expert in this particular field. • Restrict use of the information other than for the use stipulated in the NDA. • Require the receiving party to ensure compliance by their subcontractors and proofreaders (and clarify how this should be done). • Require the receiving party to use their "best efforts" to protect the information "in the same way" as they protect their own information (and clarify how this should be done). • Clarify the type (and amount if relevant) of any penalty for breach, e.g. a fine of €1,000. SEEKING LEGAL ADVICE Where can you get advice if you find yourself on the receiving end of an NDA you don't like the look of? The obvious first port of call is your lawyer, who may or may not be au fait with NDAs as they relate to language professionals, but who will no doubt charge a hefty fee. A better source may be your PII legal department – ask if you're covered in the event of a dispute with a client whose NDA requires you to destroy all of their 'materials' upon delivery. This would involve destroying any evidence that could vindicate you if your work was ever called into question. It is worth outlining such concerns to clients, and better still asking your PII to put their advice in writing so you can share it with the client. In my experience, many project managers are unaware of the issues – often because they haven't read their own NDAs and have never thought through the implications of a destruction of materials clause! In addition, seek help from experienced colleagues and/or mentors, and make use of your professional organisation's free legal advice.* Where there appear to be only one or two dodgy-looking clauses in an otherwise seemingly innocuous NDA, why not ask the client to delete them? Alternatively you could provide your own draft NDA, or at least suggest amendments to the offending clauses. The bottom line is that you and your client are business partners, and in the event of a dispute reaching court, any unreasonable clauses may be struck out. Where the entire NDA is causing you 'to sign or not to sign?' anxiety and/or the client is unwilling to make amendments, this is definitely a bad sign. * CIOL members can access a free legal helpline by logging in to CIOL Advantage: ciol.org.uk/benefits/ciol-advantage. A team of legal advisors can discuss legal queries and offer straightforward legal advice to help find practical solutions to implement yourself. Should you decide to pay for a lawyer, they can put you in touch with a specialist team. Project managers are unaware of issues like this, often because they haven't read their own NDAs

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