NDA with penalty amount and need to prove non-violation

Федор Хатламаджиев wrote:
If the receiving party violates the provisions of this agreement, it shall owe the Disclosing Party a contractual penalty irrespective of the damage and/or fault, in the amount of EUR 20 000 – for each violation. It shall rest with the receiving party to submit evidence that no violation of the obligation to confidentiality exists.

Daryo wrote:

You are in Russia they are in Austria - if they don't want to pay 100% in advance, just ditch them!

Dragging them to court if necessary is at best a huge waste of time, and in your case it is simply not a realistic option with you being in Russia - they can use any excuse or even none to simply not pay you, even without this utterly ridiculous clause.

Why should you take any risks with people you can dream up such abusive clauses?

Leaving aside the legal aspects of it (like innocent until proven guilty etc), from the purely practical point of view, while it is possible to some extent to prove who did leak some information it is simply impossible for anyone to prove that he/she didn't! IOW, such an abusive clause is a handy way to always have a ready excuse not to pay, whenever they fancy it! Not the kind of people worth working with!

If they are such a big agency and have an office in Russia, request a contract with their Russian branch, subject to Russian law, after removing this ridiculous clause, if you think it's worth at all working with people with that kind of attitude!

Федор Хатламаджиев wrote:

Dear colleagues,

I got into contact with a very big and serious company from Austria for provision of translation services.
One of their requirements was signing of NDA, which is an obligatory condition and text of which is an absolutely standard for all contractors.

I was to sign the NDA very quickly before signing contract, because I have already worked with this company at a different project (so it is proven and reliable, at least as contractor), but there was a condition which made me ask for your help: "If the receiving party violates the provisions of this agreement, it shall owe the Disclosing Party a contractual penalty irrespective of the damage and/or fault, in the amount of EUR 20 000 – for each violation. It shall rest with the receiving party to submit evidence that no violation of the obligation to confidentiality exists".

Amount of penalty is quite strange, but even stranger is that I will have to prove that I did not violate the terms.
In my understanding this is something impossible, but I may be wrong, so please, I would be very grateful if you could comment on this.

Thanks in advance.

Daryo wrote:

Dragging them to court if necessary is at best a huge waste of time, and in your case it is simply not a realistic option with you being in Russia - they can use any excuse or even none to simply not pay you, even without this utterly ridiculous clause.

Why should you take any risks with people you can dream up such abusive clauses?

If they are such a big agency and have an office in Russia, request a contract with their Russian branch, subject to Russian law, after removing this ridiculous clause, if you think it's worth at all working with people with that kind of attitude!

Nikki Scott-Despaigne wrote:
Striking it out makes no difference as you are then in effect returning a signed contract which is not the same as the one sent to you. It would require the other party's signature to be considered as accepted.

I think the main point is as already said: this clause is so unreasonable as to (probably, in most jurisdictions) not even be worth the paper it's written on.