Non-disclosure agreement terms
Thread poster: B D Finch

B D Finch  Identity Verified
France
Local time: 16:40
Member (2006)
French to English
+ ...
Dec 20, 2011

I recently was approached by a German agency, with a very good Blue Board record, to do a job that was in a field I don't cover. I politely refused the offer and told them that I would be happy to work with them in the future on other projects that were within my fields of competence. They replied thanking me for my "application" and attaching a questionnaire and a non-disclosure agreement. The non-disclosure agreement was brief and, unlike many, didn't try to stop me working for their (un-named... See more
I recently was approached by a German agency, with a very good Blue Board record, to do a job that was in a field I don't cover. I politely refused the offer and told them that I would be happy to work with them in the future on other projects that were within my fields of competence. They replied thanking me for my "application" and attaching a questionnaire and a non-disclosure agreement. The non-disclosure agreement was brief and, unlike many, didn't try to stop me working for their (un-named clients). The only item that I took exception to was the following clause:

"I agree to pay a penalty of € 5,000.00 in the event of any violation of the undertakings given above. Each violation shall be treated as an individual act.
This shall not affect Agency XX's right to claim further damages pursuant to § 340 BGB."

There was no explanation of what "§ 340 BGB" was.


I replied that while I am happy to fill in the questionnaire, as a rule I only sign non-disclosure agreements with agencies that I actually work for, not in anticipation of possible work. I noted that, while theirs was generally a reasonable one, covering information and documents actually received from them, I did not agree to the fixed penalty clause. I told them that in my view, were the agency to claim that such an agreement had been violated, this question should be resolved and any penalty set either by mutual agreement between the parties or, failing that, by the courts.

The agency replied with a brief note to say that in that case we could not work together, which is fine by me. However, I would be interested to know what other people think about the above clause.

I have no knowledge of German law and have never worked for German agencies, so do not know whether such a pre-set penalty is usual. I am concerned that such a clause could result in the agency, on the pretext of a breach, failing to pay for work done and the translator would then need to appeal to a German court to get paid. Whereas, it is my understanding that in France, unless there is mutual agreement to do otherwise, work duly ordered and completed must be paid for and any dispute taken to court.
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Samuel Murray  Identity Verified
Netherlands
Local time: 16:40
Member (2006)
English to Afrikaans
+ ...
SITE LOCALIZER
A bit of googling... Dec 20, 2011

B D Finch wrote:
"This shall not affect Agency XX's right to claim further damages pursuant to § 340 BGB."
There was no explanation of what "§ 340 BGB" was.


It is some or other regulation that us mere mortals don't quite get:
http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p1178

I have no knowledge of German law and have never worked for German agencies, so do not know whether such a pre-set penalty is usual.


I have seen this in the Netherlands in various places, i.e. a user agrees in the contract that he will pay a certain penalty if some event occurs that he should be able to avoid. Of course, it is up to a court to decide whether that event had occurred, but if the court rules that it had, then the user is liable for the penalty that he himself had agreed to at the start of the relationship.

If I had a choice, I would not agree to it. Sometimes you don't have a choice, though -- but in your case, you do have a choice.


 

David Wright  Identity Verified
Austria
Local time: 16:40
German to English
+ ...
Not very complicated Dec 20, 2011

Sec. 340 simply says that if a fixed penalty (known as a contractual penalty) has been agreed as the minimum payable, the agency - in this case - can claim more if it actually suffers a greater loss. These clauses are very typical in contracts in the German-speaking world. I wouldn't be worried about signing it because I don't disclose client information (though it would depend on what obligations are being iimposed) and an accidental disclosure (you never know!) would be covered by my insurance... See more
Sec. 340 simply says that if a fixed penalty (known as a contractual penalty) has been agreed as the minimum payable, the agency - in this case - can claim more if it actually suffers a greater loss. These clauses are very typical in contracts in the German-speaking world. I wouldn't be worried about signing it because I don't disclose client information (though it would depend on what obligations are being iimposed) and an accidental disclosure (you never know!) would be covered by my insurance. However, I have never actually signed or been asked to sign such an agreement.Collapse


 

Bernhard Sulzer  Identity Verified
United States
Local time: 10:40
Member (2006)
English to German
+ ...
opens door to abuse Dec 20, 2011

I would never sign it or work with a company that asks me to sign it. It opens the door to abuse. And you can't really trust anyone who makes such a demand.
I have worked for many honest German clients and was never asked to sign such a penalty clause.
If an agency claims that there were problems with the translation, there are other ways to deal with it, on your terms, not theirs.
And a non-disclosure agreement should be just that, a non-disclosure agreement, not more, not les
... See more
I would never sign it or work with a company that asks me to sign it. It opens the door to abuse. And you can't really trust anyone who makes such a demand.
I have worked for many honest German clients and was never asked to sign such a penalty clause.
If an agency claims that there were problems with the translation, there are other ways to deal with it, on your terms, not theirs.
And a non-disclosure agreement should be just that, a non-disclosure agreement, not more, not less.

HTH

Bernhard
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Thayenga  Identity Verified
Germany
Local time: 16:40
Member (2009)
English to German
+ ...
Abuse it might well lead to Dec 20, 2011

Bernhard Sulzer wrote:

I would never sign it or work with a company that asks me to sign it. It opens the door to abuse. And you can't really trust anyone who makes such a demand.
I have worked for many honest German clients and was never asked to sign such a penalty clause.
If an agency claims that there were problems with the translation, there are other ways to deal with it, on your terms, not theirs.
And a non-disclosure agreement should be just that, a non-disclosure agreement, not more, not less.

HTH

Bernhard




I agree with Bernard.

Such a clause shouldn't even be included in any NDA simply because no translator in good standing would voluntarily disclose any confidential information. Personally, I wouldn't sign such an agreement.


 

Phil Hand  Identity Verified
China
Local time: 23:40
Chinese to English
Liquidated damages common in other contract types Dec 20, 2011

I've done quite a lot of engineering contracts in which there are liquidated damages like this. I think I've even seen liquidated damages covering the NDA part of an engineering contract, though I wouldn't swear to it.
I've never seen them in a translator's NDA, but I wouldn't be too put off by it. It's just one form of penalty that can be applied - the goal being to prevent a disclosure from happening in the first place, rather than rely on compensation to make it whole afterwards.


 

John Fossey  Identity Verified
Canada
Local time: 10:40
Member (2008)
French to English
+ ...
Uncomfortable = don't sign Dec 20, 2011

I've had this sort of clause presented to me and have refused to sign it. My own terms limit my liability to the amount of the invoice and most companies have no difficulty with that. For the few cases where I have been presented with such a clause, about half of them would not do business with me and the other half agreed to strike it out.

Personally, I can't see signing a clause that I would not be comfortable with if it were activated. It's not so much a question of whether a c
... See more
I've had this sort of clause presented to me and have refused to sign it. My own terms limit my liability to the amount of the invoice and most companies have no difficulty with that. For the few cases where I have been presented with such a clause, about half of them would not do business with me and the other half agreed to strike it out.

Personally, I can't see signing a clause that I would not be comfortable with if it were activated. It's not so much a question of whether a claim would stand up in court but whether it might have to be defended against.

There are enough clients out there that don't require such a clause that I haven't seen any reason to accept it.
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