advice needed on "services not provided" clause

[luki]

Hello all and Happy New Year, I'd be grateful if someone could share their expert opinion on this clause in my new contract I haven't signed yet. I've been supplying services to this client for 7 months already and the new HR person has come up with a completely new version of the contract (which fails ir35 review from my insurer) however I am concerned about this clause:

7. Services not provided in accordance with this agreement

7.1 if the Supplier does not provide the Services (or any part of them) in accordance with this Agreement, including by reason of the Consultants’s absence, whether due to sickness or holidays, The Client may choose (at its sole discretion and without prejudice to any other remedies it may have):
(a) not to pay any fee in respect of such Services (if they are not completed to the satisfaction of The Client within agreed timescale); or
(b) not to pay any fee in respect of the period when the Consultant was not providing the Services; or
(c) to require the Supplier to remedy matters at its own expenses

7.2 If The Client chooses to require the Supplier to remedy matters, then (without prejudice to any other rights or remedies it may have):
(a) no fee will be due from The Client in respect of the Services in question until matters have been remedied; and
(b) the fee due once matters have been remedied will not exceed the fee that would have been payable had the Services in question been provided initially in accordance with the Agreement

As there is no SLA in place, it all sound way too vague and in their favour. I'm wondering if it is reasonable to request for the entire clause to be dropped, or what a better version would be?

[northernladuk]

Did you ask your insurer their opinion on it?

Which bit exactly concerns you and why?

[luki]

Did you ask your insurer their opinion on it?

Which bit exactly concerns you and why?

I've sent the contract for review with QDOS Consulting (my insurer) but there was no feedback on that clause - only other parts that fail with regards to ir35.

I'm mostly concerned by 7.1 as it sounds to me that if we don't hit a deadline it might be easy for them to blame it on me for any possible sickness / holiday I've taken:

"If the Supplier does not provide the Services (or any part of them) in accordance with this Agreement, including by reason of the Consultants’s absence, whether due to sickness or holidays [...] at [the Client] sole discretion" <- Their discretion, not an agreed SLA
"(a) not to pay any fee in respect of such Services (if they are not completed to the satisfaction of The Client within agreed timescale)" together with 7.2

To me it all sounds they could have me remedy at my own cost to something that is purely at their own discretion, or pay nothing at all for my services. Happy to be corrected if I'm wrong Just very suspicious as in 10 years I haven't seen such a clause in any contracts

[Lance]

You remedying your mistakes at your own cost is not an unreasonable clause.
It says hey are to be delivered in ‘accordance with this agreement’, so it all hinges on how well they are described in the rest of the contract.
You probably ought to worry about the qdos review though and forget about this.

[northernladuk]

Only you know the exact details of your contract but I assume you are on a day rate to work on something rather than having agreed a set piece of work for x period or y deliverables? If that's the case they I'd say (b) is more suitable to your engagement, they don't pay you when you aren't delivering because you are away from the office... which is normal for us.

If you are on paid on a delivery schedule then you need to put some work in to documenting the exact deliverables so there can be no argument at time of delivery.

Rectifying stuff in your own time is standard for us and a good IR35 pointer.

For peace of mind I'd mail QDOS back and ask them what they think of those clauses in particular just be absolutely sure they've not skipped it. I've a feeling it will be pretty standard.

[luki]

thanks both, all valid points!

I'm indeed "on a day rate to work on something rather than having agreed a set piece of work"
- (b) not being paid for my time off I am obviously fine with it, but because there is not clear definition of deliverables - (a) seemed to be too vague.

I'll get back to them about the ir35 feedback, I'm sure they will be fine with it - will double-check with Qdos and eventually ask the client to either set deliverables if they want the infamous (a) clause in, before I agree to sign anything. A bit of pain as it might mean a day or two not working/invoicing but better safe than sorry!!

[jamesbrown]

I've sent the contract for review with QDOS Consulting (my insurer) but there was no feedback on that clause - only other parts that fail with regards to ir35.

One thing you'll generally find with IR35 reviews is that they do what they say on the tin - review for IR35, and not commercial expedience. You could continue to have a bunch of clauses that are commercially undesirable. Best to get a legal review if you have concerns about the commercial merit (or otherwise) of a contract. Some reviewers will consider clauses for IR35 and commercial expedience too (e.g. Egos), but they don't necessarily know your intentions w/r to the commercial aspects.