Clause in contract between Agent and my LTD Co

[fckvwls]

I'd appreciate anyone's thoughts on the following clause I have in a contract between me and the agency:

"the Supplier shall and shall procure that its employees, representatives or partners shall not pass information relating to possible resource or project needs of the Client or Client’s customer to any other party other than the Agent"

Given that I am in a position where I can bring on anyone to the project I identify as required on behalf of my end client, this seems rather dictatorial of the agency who want to try and shape the clients procurement process Anyone come across this before? Any thoughts on how enforceable this is?

[SueEllen]

It would be up to the agency to prove:
1. You introduced someone to the client who later supplied services and didn't use the agency, and,
2. They lost money due to this.

Proving the first part of one is tricky.

[fckvwls]

It would be up to the agency to prove:
1. You introduced someone to the client who later supplied services and didn't use the agency, and,
2. They lost money due to this.

Proving the first part of one is tricky.

But what if I create a PSL, introduce 2 other agencies to the client and pick and choose where I select my resurce from?

[northernladuk]

It would be up to the agency to prove:
1. You introduced someone to the client who later supplied services and didn't use the agency, and,
2. They lost money due to this.

Proving the first part of one is tricky.

Either way it isn't the legalities you want to worry about as it never goes legal. It is the handbags and threats that will screw any plans up. You are much more likely to have the agent complaining to the client and them washing their hands of you once they point out the clause to the client (if it isn't already in the upper contract).

If you are in a position to do this why not just follow the clients policies and use the agent they have a contract with? I presume you are looking at supplying them yourself and getting a cut?

[fckvwls]

? I presume you are looking at supplying them yourself and getting a cut?

Not quite supplying them myself but perhaps through another agency who I could invoice for business development.

[northernladuk]

Not quite supplying them myself but perhaps through another agency who I could invoice for business development.

I would think that nearly every contractor has thought about doing this at some point with a huge majority not being able to get it through for one reason or another, usually by not being able to get themselves on the PSL and clients not being happy with another resourcing model when they already have one in place and it is fairly obvious you are just trying to make some free cash with little or no responsibility. All of the above and a load not already mentioned it makes it a pretty poor and risk model for your client.

[fckvwls]

I would think that nearly every contractor has thought about doing this at some point with a huge majority not being able to get it through for one reason or another, usually by not being able to get themselves on the PSL and clients not being happy with another resourcing model when they already have one in place and it is fairly obvious you are just trying to make some free cash with little or no responsibility. All of the above and a load not already mentioned it makes it a pretty poor and risk model for your client.

I have a friendly agent ready and waiting to split the margin with.

I am in charge of creating the PSL as the client is moving into a new area of tech and have no capability in this area, hence why I have been brought in to build a team and deliver a program of work.

The challenge is the agent I got the gig through and their " restrictive clause" and working through any potential repercussions.

[northernladuk]

Well the wording seems pretty straightforward and wouldn't be unreasonable to protect their revenue stream. If you got someone in to a position that could arguably have come in under the agent would affect his revenue stream so he would have a case.

Can you get to see the upper contract with the client to see what that says? I would say you are going to need professional advice on this one. I don't think just ignoring it would be a good idea.

[Wanderer]

I have a friendly agent ready and waiting to split the margin with.

I would tread very carefully on that one. In particular, take legal advice to understand if this breaches the Bribery Act where you may commit an offence if "good faith or impartiality has been breached, or when the function has been performed in a way not expected of a person in a position of trust".

That said, I wouldn't give this one to the existing agent on a plate either. If the agent stands to make a significant amount of money on this job then you are going to want a piece of that action one way or another....

You may have to spin in it such a way that someone at the client is steered into choosing which agent to use rather than you and you can tell your agent that the decision was out of your hands if it ever comes to anything. Be aware that agents are very hard nosed business people not bed wetters like the majority of the contractors on this forum and they will start a huge fight over this if you don't manage it very carefully.

[Taita]

Not quite supplying them myself but perhaps through another agency who I could invoice for business development.

{I would tread very carefully on that one. In particular, take legal advice to understand if this breaches the Bribery Act where you may commit an offence if "good faith or impartiality has been breached, or when the function has been performed in a way not expected of a person in a position of trust".}

I agree wholeheartedly with Wanderer on this. On the one hand it is simply business on the other hand there are rules of play.