Another ridiculous contract

[Abraham]

On going through the contract again, I see all the conditions have been written in a negative way, many conditions giving the agency excuses not to pay. The termination clauses again are written almost like how they could terminate without any reason. Only a crooked mind could have drafted such conditions, which treat contractor like number one enemy and never to be trusted.

By the way, this is a big agency, seems to have international presence, and seems to have some big clients. I will name and shame them if they ever invoke any of the unreasonable conditions to harass me or avoid paying me.

The agency and contractor both have to work together, and often each dependent other for business. Why one party (Agency) should put one-sided conditions and dictate that to be accepted? The problem is - often unsuspecting contractors are tricked into accepting these unreasonable conditions. Why not contractor group come with a standard contract and insist that format, with slight change for each given circumstance?

[ASB]

The only losses the agency would incurred are:
1. Losing their margin
2. The costs of finding another contractor

These costs would not add up to 4 weeks money. Also if the client removes the contract totally e.g. cans the project their losses are zero.

One of the reasons I said if the client did terminate, phone up the agency and ask them why (making sure you got a recording to transcribe), and then take the agency to court for the money.

In terms of the 4 weeks it might not be that far off. If they had a 20% gross margin then this would equate to 3.25 weeks of net pay. 0.75 weeks for interview/advertising etc.

but that is probably only potentially reasonable if the contractor were simply to walk offsite or otherwise commit a deliberate repudiatary breach.

if the client cans or decides the placee is unsuitable that only indicates fault in the client end of the relationship and is therefore where any recourse should lie.

[SueEllen]

On going through the contract again, I see all the conditions have been written in a negative way, many conditions giving the agency excuses not to pay. The termination clauses again are written almost like how they could terminate without any reason. Only a crooked mind could have drafted such conditions, which treat contractor like number one enemy and never to be trusted.

By the way, this is a big agency, seems to have international presence, and seems to have some big clients. I will name and shame them if they ever invoke any of the unreasonable conditions to harass me or avoid paying me.

The agency and contractor both have to work together, and often each dependent other for business. Why one party (Agency) should put one-sided conditions and dictate that to be accepted? The problem is - often unsuspecting contractors are tricked into accepting these unreasonable conditions. Why not contractor group come with a standard contract and insist that format, with slight change for each given circumstance?

Loads of agencies both big and small write contracts in this way.

It is your job to get the contract reviewed and get the reviewer to advise amendments to the unreasonable clauses.

IPSE has a standard contract that can be used by members but an agency will not agree to the contract.

[SueEllen]

In terms of the 4 weeks it might not be that far off. If they had a 20% gross margin then this would equate to 3.25 weeks of net pay. 0.75 weeks for interview/advertising etc.

but that is probably only potentially reasonable if the contractor were simply to walk offsite or otherwise commit a deliberate repudiatary breach.

if the client cans or decides the placee is unsuitable that only indicates fault in the client end of the relationship and is therefore where any recourse should lie.

But do you think it's a good idea to let the agency decide when this is applicable and also without showing their costings?

If it's a breach of contract situation then showing the cost and demanding the money back from the contractor is reasonable, however if the client cans the contractor as they gave pulled the project it's not reasonable.

[ASB]

But do you think it's a good idea to let the agency decide when this is applicable and also without showing their costings?

If it's a breach of contract situation then showing the cost and demanding the money back from the contractor is reasonable, however if the client cans the contractor as they gave pulled the project it's not reasonable.

No I dont. I was only pointing out that that kind of level might not be inapproprite in the case of breach by the contractor.

I also agree that transfer of penalty to the contractor as a result of client action is obviously unreasonable.

In terms of the clause in the contract it may well be an unenforceable penalty; though the drafter would no doubt consider it a specific remedy.

[Abraham]

Loads of agencies both big and small write contracts in this way.

It is your job to get the contract reviewed and get the reviewer to advise amendments to the unreasonable clauses.

IPSE has a standard contract that can be used by members but an agency will not agree to the contract.

It is sad that the agencies seem to have upper hand, while it is the contractors who earn all the money for them.

[Contreras]

They won't sign until you have not in case you make any amendments. If they signed, you amended, signed and sent back they are going to have a hard time arguing in court that they didn't accept the changes.

Not at all. You can expect whichever party signs first to retain a copy of what they agreed to. The amendments wouldn't be valid. Bringing a case on false arguments and lying to a judge is not going to go down well.

I know one chap who received the contract via pdf, edited the pdf directly to remove some spectacularly dumb clauses ("You agree not to work in this country for anyone else for a period of 12 months"). He then printed off the amended pdf, signed and dated it and sent it back. Never heard a word about it. An interesting approach, and I'm not sure of the legality.

I'm sure that wouldn't stick. And potentially is fraud - "deception with the intent to gain financially".

I seem to recall there was a case where somebody amended their credit card T&C similarly and it didn't turn out well for them.

[ASB]

Not at all. You can expect whichever party signs first to retain a copy of what they agreed to. The amendments wouldn't be valid. Bringing a case on false arguments and lying to a judge is not going to go down well.



I'm sure that wouldn't stick. And potentially is fraud - "deception with the intent to gain financially".

I seem to recall there was a case where somebody amended their credit card T&C similarly and it didn't turn out well for them.

I dont see any attempted deception there.

if the agency had signed then they are suggesting changes. By not following up they are invalid; or at least not in place. By undertaking the works there is strong indication of accepting the original terms.

if the agency had not signed then it is a suggested amendment which might be held if receipt and review can he established.

[Contreras]

I dont see any attempted deception there.

That was in response to NAT's anecdote about editing the pdf and (my inference) offering it back in such a way that it would go unnoticed. If the amendments were highlighted then that would be different.

[ASB]

That was in response to NAT's anecdote about editing the pdf and (my inference) offering it back in such a way that it would go unnoticed. If the amendments were highlighted then that would be different.

It hadn't registered that they were possibly trying to represent it as the original unchanged version. As you say, that would be bad if it is what happened.