Are these clauses standard?

[pimpmycode]

Hi

I have been offered a contract by a consulting company through an agency. Some of the clauses seem extremely restrictive and Im wondering if this is just my perception or not.

For example there is a one year cooling off period where after the end of the contract I would be unable to do any other work for other companies that do work similar to the said consultancy or its client (Basically all other consultancies from my understanding). In this one year period my Ltd would be open to audit to ensure I am not breaching this.

Also, any inventions, patents etc that I am involved in individually or jointly during my contract period would belong to the consultancy.

I raised these with the agent and they say these clauses are normal and were requested by their client, the consultancy.

[SueEllen]

How are we suppose to know we can't see the full contract.

The advice is to get your contract reviewed by a IR35 reviewer like Bauer and Cottrell who are use to dealing with agencies, or get a commercial solicitor like Roger of Egros to look at all clauses.

Yes it costs you money now but it's better than being screwed over by the agency if your contract goes wrong.

Edited to say: the solicitors I've used (and yes I've used more than one) are very good with the opt-out business.

[rambaugh]

Stay calm, and invoice on.

[northernladuk]

Have a search on the forums using the google method for 'Handcuff'. There are some detailed posts explaining exactly what is enforceable and what isn't. The bottom line is they have to prove a loss of some kind, be it IP or cash. If they can't the handcuff probably won't stand up. They can however threaten future clients over it who are unlikely to go ahead because they cannot be arsed with the hassle. I don't think I have seen a case on the forums that anything like this has gone legal but plenty of handbags between agents, clients and contractors which are much more likely to lose you the gig.

[DimPrawn]

So they expect you to sit on the bench unpaid for a year because they might deem any contract you take during the handcuff period as being in conflict?

There's no way personally I'd entertain such a thing myself.

They would either have to pay me to sit on the bench or the rate would have to be so good I could take a year off and be no worse off.

[pimpmycode]

Thanks for the replies so far. I have sent the contract to a solicitor for review as well.
The exact clause is below.
This clause, in addition to the fact that "permanent" work has already been discussed makes me think their intention is to try and lock me in at a later date.

The Company agrees that it shall operate a “cooling-off period” policy for all Consultants who are allocated to work for the Client. Such “cooling-off period” policy shall mean that no Consultant who is providing Services to the Client under this Agreement shall be allocated for a period of at least one (1) year after the end of such Consultant’s involvement in this Agreement, to any other company or entity where such company or entity has a business which may be competing with or similar to that of the Client. In the event Company requires clarification on whether an entity is a competitor or similar to the Client, the Company may request and the Client will be obliged to provide such clarification. The Client and "Agency" reserves the right to audit the Company at any time during and for a period of one (1) year after expiry or termination of this Agreement to ensure that the “cooling-off period” policy is active and being applied to the allocation of Consultant. The Company acknowledges and agrees that the Client will be irreparably harmed should the Company not comply with the provisions of this Clause. The Company therefore agrees to the entry of an injunction against it in the event of actual or threatened breach of its obligations hereunder, and acknowledges such relief shall be in addition to such other and further relief as may be available to the Client at law or in equity.

[northernladuk]

The consensus is that 12 months is pretty unenforceable anyway due to your right to work rights or summat but that aside...

The company would also have to prove loss or harm to business to enforce that as well I would expect. A rather extreme example... If you worked for Vodafone putting in a billing system and then you got a gig at O2 on reception duty that clause could be invoked... but wouldn't stand up. There is no basis for it at all.

However, if you put Vodfone's billing system in and then O2 want you to implement a billing system for them you would be screwed. Wouldn't be too hard for VF to argue loss of IP or something.

Forgetting all that, question is, are you happy with the clauses? I very much doubt they will take that out so you have a decision to make. Accept and take contract or walk. Personally I would take the gig and deal with the handcuff clause if and when I get offered a gig that may be an issue.

Does seem strangely worded though, not seen one like that in any of my contracts or what has been discussed on here.

[Taita]

Thanks for the replies so far. I have sent the contract to a solicitor for review as well.
The exact clause is below.
This clause, in addition to the fact that "permanent" work has already been discussed makes me think their intention is to try and lock me in at a later date.

"The Company agrees that it shall operate a “cooling-off period” policy for all Consultants who are allocated to work for the Client. Such “cooling-off period” policy shall mean that no Consultant who is providing Services to the Client under this Agreement shall be allocated for a period of at least one (1) year after the end of such Consultant’s involvement in this Agreement, to any other company or entity where such company or entity has a business which may be competing with or similar to that of the Client. In the event Company requires clarification on whether an entity is a competitor or similar to the Client, the Company may request and the Client will be obliged to provide such clarification. The Client and "Agency" reserves the right to audit the Company at any time during and for a period of one (1) year after expiry or termination of this Agreement to ensure that the “cooling-off period” policy is active and being applied to the allocation of Consultant. The Company acknowledges and agrees that the Client will be irreparably harmed should the Company not comply with the provisions of this Clause. The Company therefore agrees to the entry of an injunction against it in the event of actual or threatened breach of its obligations hereunder, and acknowledges such relief shall be in addition to such other and further relief as may be available to the Client at law or in equity"
Wow!
First thought is that the contract is between your company and the agency. Can the client really have any legal rights over you or would it just be the agency? Whatever the case, the clause seems designed to prevent you using your knowledge or skills to earn a living in your legitimate arena of work.

If a barrister leaves his chambers and joins other chambers must he give up being a barrister on the grounds that the work he takes up could have been done by the former chambers?

[pimpmycode]

NLUK thanks for the clarification. This is the only clause i am wary of as the work i will do on the contract is quite niche so i could see how after this i may get offered something similar at another consultancy and i would not want to be in breach.
That said, after a word with the pimp it now seems some of this clause is actually from the agency as opposed to the consulting company.
I have asked for a change so lets see if i get it. The work is really interesting so i would not want to turn it down.

[TheFaQQer]

If a barrister leaves his chambers and joins other chambers must he give up being a barrister on the grounds that the work he takes up could have been done by the former chambers?

Typically, he cannot poach customers of the previous practice for a given period.

Deliberately taking the customer list and their code is breach, but you can't be made to forget everything that you know or learned in that role.

I had an agent ring me out of the blue once to explain that the reason he'd gone quiet was because for the past 6 months he'd been forbidden to contact any of his previous contractors when he changed company. Literally 6 months to the day after he left, he was on the phone to tell me where he was now working.