Contracting Direct, whose T&C should be used?

[Amar]

Hi guys,

Quick question, I am still negotiating the contract terms with the client. It will be my first time contracting direct with a client so I dont know what the full process is.
Originally I was offered Fixed Term contract however now they want to just do the time and materials contract for 6 months period.

They have their own procurement T&C which they want me to agree (subject to negotiation). My question is, do I have to do my own T&C's if their document covers pretty much what I need? I have downloaded the "Master Consultancy Services Agreement" template from PCG but I don't know whether two T&C's are required.

oh and another question is, do I still provide a warranty of work (Software dev for 6 months)? This is your normal contracting where I will be charging a hourly rate, so how does the warranty work.

Any help and advice would be really appreciated.

Thanks.
Amar

[TykeMerc]

Contract terms and conditions are what both parties agree, if you're comfortable with what the client suggests then go with those, but be sure you read and understand them. It's up to you to negotiate what's in your commercial interest.

Warranty will be a matter for negotiation and agreement, as a PM it's pretty much a non issue to me, as a developer it could be rather complex and make a dramatic difference in commercial terms. There are many potential variables, without knowing an awful lot of detail it's not sensible to generalise.

[PSK]

Some people/organisations place an emphasis on using their own contract. If you use the clients' contract as a starting basis for the final agreement then as the above poster says, you should ensure you understand what each Clause means and understand the commercial implications. If you have a more contractor-friendly model contract then it may be worth taking the time to compare and read across the two contracts to understand what Clauses favour the client and what contractor protection is omitted from their contract.

If you use your contract, there's a principle of 'battle of the forms' which can lead to the client's contract deliberately or accidentally superseding yours if it's included on purchase orders, invoices and so on.

There's so many different different issues that might arise (payment/credit terms - best be clear as many firms are still lengthening supplier payment terms to manage cashflow, IPR ownership, ongoing manitenance, quality, acceptance ...). Putting IR35 aside, for a one man band, it might be commercially sensible to be as far from a fixed fee as you can which seems to be the case for you here so well done. To avoid costly rework and other liabilities, I'd try and avoid giving any warranties and explain to the client it's part and parcel of them avoiding the overheads of a larger firm. You might want to proactively think about what happens if you fall ill, die or have other unexpected problems. This all doesn't have to be hostile and if you have a good relationship with the client then it might be more about creating the common understanding of the significant issues and contingencies which the agreement captures.

Good luck.