New contract with the same end client

[Wtt]

Hi I'm a bit of a newbie and thought I'd get some thoughts on a situation I've come across.

Last year I worked for company C1 through agent A1, on a project for company K, finishing in October. (Through my own limited company, as a contractor).

I've recently been talking to a different agent A2, about work with a different company C2, but again working on a project for company K. The role is on a different brand for company K, at a different site.

Looking back at my contract with A1, I noticed these clauses

10.2 If before, during or within 12 months of an Assignment Term, the Service Provider or the
Consultant(s) becomes aware that the Client during such Assignment Term wishes to employ or
engage the Service Provider or Consultant(s) directly or through any other intermediary, the Service
Provider warrants that it will notify the Company of this in writing with a request for approval and a
release from the obligation in clause 10.3 of this Agreement.
10.3 With respect to each Assignment, the Service Provider and its directors undertake that they shall not,
and they shall procure that the Consultant(s) shall not, without the Company’s prior written approval,
directly or indirectly provide services of a similar nature to those Services provided during an
Assignment to a Client (or to a subsidiary or associated company of such Client or to such Client's
clients), other than through the Company, for a period of 12 months following the termination of such
Assignment.

Am I right in thinking that due to the term "Client's clients", I need written permission to take this role? Who do I need permission from? I signed the contract with A1, but the concern is that I'd be working for one of C1's clients indirectly.

Thanks in advance!

[HPsauce]

Is there a section in there for breach of contract or any wording if 10.2 and/or 10.3 are NOT adhered then these are the consequences? It'd be good to look at that statement to understand your "risk / outlay"

[northernladuk]

How long ago did you finish? 12 months clauses are unenforceable as they are too long and deemed unfair. If it said 6 months what situation would you be in?

Is your old agency advertising or has anything to do with the role? If they've been binned off or aren't allowed to resource for this you are fine. Handcuffs are there to protect agency A's revenue. Just to stop other poaching you for more money etc (a bit simplistic you get me). If agency A has no chance of making any money out of the situation then the handcuff can't stand. They can't stop you working just for the hell of it.

[WordIsBond]

In the contract, is "Client" identified as K, or C1? If C1, you have no issue.

If K, then NLUK's questions kick in.

For instance, if the prior gig ended 1 October, and the new one starts 2 April, you are outside 6 months and it may be unenforceable. It's a little tougher if it really is within six months from contract end to contract start.

And again, if prior agency isn't in the running for this gig, they aren't losing anything by you taking the job. Again, it probably becomes unenforceable at that point. If they are in the running for it, why not just go through them and solve the whole thing?

[Wtt]

I've seen nothing that specifies what happens in the breach of the sections, just that I agree not to.

I'll have to check the exact dates but I would be looking to start in April, so it would be around the 6 month mark - I could certainly postpone to ensure it doesn't meet the 6 month mark.

I was very unimpressed with that agency, who never answered my correspondence and were often late in ensuring their timesheet system was updated when my contract was extended, it is only that I want to cut ties with the agency that I am not in contact with the client for more work, as they were very good - I will likely return to them next year.

The agency A1 is not in the running for the role, they haven't contacted me about it, not have they advertised it. I'm sure they would, my work is niche and there aren't many people who know the software. It's with a client that I do not believe they work with.

As I say, my only concern is the "client's clients" clause. I imagine that if the end client is someone massive (e.g. NHS) that would become unenforceable and since this company has many brands in multiple countries, I would assume it wouldn't be a problem.

That said, should I still be contacting agency A1? They are, after all, the people I signed the contract with.

[northernladuk]

I'd you are ose to 6 months then no I wouldn't. If you do and they haven't heard about the gig they'll certainly do their best to upset the apple cart just to get something from it. Get the gig and if they didn't see it it's too late.

[Lance]

If the clause says 12 months then waiting for 6 months is utterly immaterial. The clause is either enforceable or not.
I agree with WIB though. You’re probably ok as the agency has no direct involvement with the end client.
As for NHS. That’s not one organisation so your reasoning doesn’t stand, although if your client is a large supplier (like DXC, IBM etc) then restrcting you from working with ANY of their clients is also far too restrictive.

[northernladuk]

If the clause says 12 months then waiting for 6 months is utterly immaterial. The clause is either enforceable or not..

Where that may be true it's not going to help the tulip storm that is likely to happen. The OP having a sizeable gap and submitting evidence that the 12 months is unlikely to stand up should be plenty for the agent to back down. This won't be a legal battle, it never goes legal. It's more about dealing with the problems agency A cause before the client decides to walk away from it all. The more evidence the OP has the quicker he can put agency A back in his box.

So yes it might be immaterial if it got to court but it's his joker to get a troublesome agency to back off.