How common/fair are these agency T&Cs

[PTP]

My contract with Agency A is soon coming to an end. It had a reasonable sounding term in it:

The Supplier shall:
2.1(a) throughout the term of the Assignment supply the Services in accordance with Good Industry Practice at all times taking responsibility for the way in which the Services are performed;

2.1(b) at the Company's or the Client's request remedy in the Supplier/Consultant's own time and at the Supplier's own expense any Substandard Outcome of the Services and where necessary, this shall include re-performing the Services. "Substandard Outcome" shall mean any result, element, stage or product of the Services that the Client or the Company reasonably deems as not meeting the standard required under clause 2.1(a) or and/or any Service specifications set out in the Assignment Schedule

2.1(k) indemnify the Company against all Losses incurred by the Company arising out of any negligent, wrongful or fraudulent act or omission of the Supplier and/or the Consultant



The contract Agency B are trying to get me to sign for the next gig has these terms instead:

The Intermediary shall perform the Services with all due skill and care. In the event that the Company or the Client is dissatisfied with the Services, the Intermediary shall at its own expense remedy the dissatisfaction to the Company or the Client’s satisfaction as soon as reasonably practicable

The Intermediary shall be liable for any loss, damage or injury to the Company and/or the Client resulting from the acts or omissions of the Contractor


I'm thinking Agency A's terms are fair and saying that I need to have breached good industry practice or done something negligent, wrongful or fraudulent to be liable to remedy anything.
Whereas I'm thinking Agency B's terms are saying that I would be liable for something just because the client is in a bad mood or has changed their calculation specifications/preferences mid-project.

Are Agency B's terms common / do they sound reasonable to you?

[mudskipper]

Don't try and do this yourself - get a proper contract review from one of the specialists - Abbey Tax, QDOS and B&C all provide this service.

[PTP]

Don't try and do this yourself - get a proper contract review from one of the specialists - Abbey Tax, QDOS and B&C all provide this service.

I have done and Agency B are refusing to make the changes that they are suggesting (for this term and any other terms)

[ShandyDrinker]

Don't try and do this yourself - get a proper contract review from one of the specialists - Abbey Tax, QDOS and B&C all provide this service.

^^WMS said. While the above tend to undertake IR35 reviews I'm not sure they will tell you which clauses look bad from a business perspective.

The Supplier shall:
2.1(a) throughout the term of the Assignment supply the Services in accordance with Good Industry Practice at all times taking responsibility for the way in which the Services are performed;

2.1(b) at the Company's or the Client's request remedy in the Supplier/Consultant's own time and at the Supplier's own expense any Substandard Outcome of the Services and where necessary, this shall include re-performing the Services. "Substandard Outcome" shall mean any result, element, stage or product of the Services that the Client or the Company reasonably deems as not meeting the standard required under clause 2.1(a) or and/or any Service specifications set out in the Assignment Schedule

2.1(k) indemnify the Company against all Losses incurred by the Company arising out of any negligent, wrongful or fraudulent act or omission of the Supplier and/or the Consultant

I would not have signed a contract with 2.1 (k).

Regarding the Agency B contract if the agency refuses to change you have to make the decision as to whether to walk away.

As a minor point isn't the Intermediary the Agency and not the Contractor? That would be my reading of it although I'd ask QDOS et al to clarify.

[LondonManc]

^^WMS said. While the above tend to undertake IR35 reviews I'm not sure they will tell you which clauses look bad from a business perspective.



I would not have signed a contract with 2.1 (k).

Regarding the Agency B contract if the agency refuses to change you have to make the decision as to whether to walk away.

As a minor point isn't the Intermediary the Agency and not the Contractor? That would be my reading of it although I'd ask QDOS et al to clarify.

Surely 2.1 k is what your insurance is for, but that's not what the OP has a problem with, is it?

OP, how have you expressed your concerns?

Have you articulated this to them in the same way that you have to us, i.e.:

Whereas I'm thinking Agency B's terms are saying that I would be liable for something just because the client is in a bad mood or has changed their calculation specifications/preferences mid-project.

While it's not an unreasonable term, I think you're correct about the wording. Have you offered a replacement clause and explained why you want it phrased as it is - that is, to make it clearer and that you're not restricted by the whim of a manager?

[SueEllen]

I have done and Agency B are refusing to make the changes that they are suggesting (for this term and any other terms)

Get the reviewer to either just talk to the agency or even verbally negotiate with them. The former lots of reviewers will do for free.

Sometimes agencies don't believe you have used someone with legal expertise to review the contract, but once they do they are generally more agreeable to contract changes especially when the clauses are explained to them.

Also if you don't understand why clause 2.1(k) is as bad as the second paragraph you need to get your reviewer to explain it to you.

[missinggreenfields]

Don't try and do this yourself - get a proper contract review from one of the specialists - Abbey Tax, QDOS and B&C all provide this service.

Make sure they do a full contract review rather than just an IR35 check, though - not all providers do that.

[SueEllen]

Surely 2.1 k is what your insurance is for, but that's not what the OP has a problem with, is it?

Insurance doesn't cover you for fraud or other criminal acts.

[LondonManc]

Insurance doesn't cover you for fraud or other criminal acts.

Yeah, I know that.