Contracts & IR35 etc

[thunderlizard]

I don't think that contract actually needs a substitution clause because "the Consultant" is the company, and there's nothing contracted about who the company assigns to carry out the services, so it should be the company's free choice.

(but to then find the company called "he" in 6.1.3 and "he/she" in 8.1 is a bit iffy)

[peterc2609]

Thats probably because it looks like they have just removed my name instead of amended everything!

[peterc2609]

Ok, so I've amended the contract, and added and removed a few bits.

Is there anything glaringly obvious that I'm missing etc?

Thanks for this, I've always been through an agency and the contracts have been pretty much 'as safe as they can be' but this is a bit mad!

Recitals:

(A) The Company wishes to benefit from the skills and experience of the Consultancy.

(B) The Consultancy is independent and willing and able to provide its services to the Company for the period contemplated by this Agreement.

OPERATIVE PROVISIONS:

1 Consultancy services

1.1 The Client engages the Consultancy to provide the independent advisory and consulting services specified in the Schedule (“the Services”) to the Client and the Consultancy agrees to provide such Services upon the terms and conditions set out below.

2 Duration

2.1 This Agreement shall commence on 20th May 2010 and shall continue until the parties terminate this agreement:

2.1.1 by the Client paying to the Consultancy an amount equal to any fees outstanding under clause 4.1.1.

3.1.2 in accordance with clause 5 below

3 Consultancy’s services

3.1 As an independent professional, the Consultancy will not be subject to direction or control, and itself accepts the responsibility for the proper provision of Services. It is the Consultancy's responsibility to maintain adequate Professional Indemnity, Employer's Liability, and Public Liability insurance.

3.2 Throughout the term of this Agreement, the Consultancy may accept and perform engagements from other companies, firms or persons which do not impinge on its ability to provide the Services at such times and in such manner as may (in the reasonable opinion of the Client) be convenient to the Client.

3.3 Throughout the term of this Agreement, the Consultancy shall, when required, give to the Client such written or oral advice or information regarding any of the Services at it may require.

3.4 The Consultancy will undertake the Services to the best of its ability and in an expert and diligent manner at all times.

3.5 It is the Client’s responsibility to afford the Consultancy with such access, information and staff cooperation as the Consultancy may reasonably require for the proper performance of any Services, and for ensuring that all relevant Health and Safety policies, risks, information and relevant statutory compliance measures are disclosed to the Consultancy.


4 Fee

4.1 The Client shall pay to the Consultancy a fee as follows subject to performance and delivery;

4.1.1 £250 per day (inclusive of all expenses)


5 Termination

5.1 Without limitation the Client may by notice in writing immediately terminate this Agreement if:

6.1.1 the Consultancy shall have been in breach of any of the terms of this Agreement which, in the case of a breach capable of remedy, shall not have been remedied by the Consultancy within 7 days of receipt by the Consultancy of a notice from the Client specifying the breach and requiring its remedy; or

6.1.2 the Consultancy shall have failed or refused within a reasonable time to provide any one or more of the Services after being instructed in writing by the Company to do so; or

6.1.3 the Consultancy shall have conducted itself in any manner which, in the reasonable opinion of the Client, has brought or is likely to bring either the Consultancy or the Client into disrepute or has or is likely to impair the Consultancy’s ability to provide any of the Services to the Client or to do so in any manner or at any time which the Client shall have reasonably required.

6. Confidentiality

6.1 The Consultancy agrees to treat as secret and confidential and not at any time for any reason to disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any unpublished information relating to the Client’s technology, or other know-how business plans or finances or any such information relating to a subsidiary, supplier, customer or client of the Client where the information was received during the period of this Agreement and upon termination of this Agreement for whatever reason the Consultancy shall deliver up to the Client all working papers, computer disks and memory sticks or other material and copies provided to or prepared by it pursuant either to this Agreement or to any previous obligation owed to the Client.

7. Indemnity

7.1 In consideration of the Client entering into this Agreement the Consultancy shall indemnify and shall hold the Client harmless against any claims, costs or legal expenses that the Client may incur as a result of or arising from the provision of the Services.

8. Status and tax liabilities

8.1 The Consultancy warrants and represents to the Client that as of (date) it is an independent contractor and, as such, bears sole responsibility for the payment of tax and national insurance contributions which may be found due from it in relation to any payments or arrangements made under this Agreement and, further, agrees to indemnify the Client in respect of all and any income tax which may be found due from the Client on any payments or arrangements made under this Agreement together with any interest, penalties or gross-up thereon.

9. Notice

9.1 Standard notice will be one week’s notice from either party within the first month. Any notice required by this Agreement to be given by either party to the other shall be in writing and shall be served by sending the same by registered post or recorded delivery to the last known address of the other party and any receipt issued by the postal authorities shall be conclusive evidence of the fact and date of posting of any such notice.

10. Governing Law

10.1 This Agreement shall be governed by and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English Courts.

[SueEllen]

Instead of p*ssing around with the contract get a lawyer to look at it. Yes you will have to pay but once you inform the client that your lawyer is looking at it they will take you seriously as a business.

It's surprising how many clients and agents will back down once they realise a lawyer is looking at it.

In this case rather than telling the client to remove clauses and why, you will have to give the client the lawyers edited notes due to the contract being a mess. You can start work but you can't invoice until the contract is sorted.

Use the search function of the board to find lawyers recommended by other contractors.

[peterc2609]

"You can start work but you can't invoice until the contract is sorted."

I was under the impression that if I started work, then I effectively accepted the last contract that was sent to myself?

[blacjac]

"You can start work but you can't invoice until the contract is sorted."

I was under the impression that if I started work, then I effectively accepted the last contract that was sent to myself?

Only if you started without saying anything.

If you knock up an email along the lines of "I will start work while we continue contract negotioations" then you will be OK.
As long as you agree terms before you send your first invoice.

[thunderlizard]

Best not to start work until the contract is signed. If they know you're not going to start until then, it focuses their mind on getting it sorted out. If you don't mind starting before it's signed, clients have a habit of letting things pootle on until you're several weeks down the line and deemed to have accepted their terms anyway.

[malvolio]

Thanks, the contract I probably need is:

A05-10 Direct service provider-client agreement - Draft contract between contractor business and client, with explanatory notes

But I'm not a member of PCG.

So join! £120 for a fully authenticated legaly bombproof contract isn't worth the money? Get real, please...

[Weltchy]

So join! £120 for a fully authenticated legaly bombproof contract isn't worth the money? Get real, please...

OK, so I've just joined PCG.

Now to sorting the contract out... all 10 pages of it!

[Wanderer]

Best not to start work until the contract is signed. If they know you're not going to start until then, it focuses their mind on getting it sorted out. If you don't mind starting before it's signed, clients have a habit of letting things pootle on until you're several weeks down the line and deemed to have accepted their terms anyway.

Absolutely right!

If they have offered you a contract and then you start work then you have tacitly accepted the contract (signed or not). NEVER, EVER start work without a contract that you are happy with. Once you have started, you are in a really weak position to negotiate.

As thunderlizard says, getting the contract sorted first focuses them on the task otherwise it will be put on the never-never. Start Friday? Sure, that would be great but it's subject to contract. Once we have that done we're good to go. No contract, no start. It's the friendliest way to do business otherwise there are unpleasant misunderstandings later on.