Contract clauses

[TheFaQQer]

1 Acme reserves the right to refuse or withhold payment if it has not recovered the fee from the Client or if the Intermediary terminates this Agreement without completing the agreed services Services to Acme or the Client’s satisfaction.

2 NON-SOLICITATION
For the duration of this Agreement and for 12 months after its termination, the Intermediary shall not and shall ensure that the Worker shall not:
a. solicit, interfere with or endeavour to entice from the Client any person, firm, employee or company who was at any time during the period of this
Agreement an employee, client or customer of the Client; and
b.solicit additional or further work from the Client with the intention of performing services for the Client otherwise than directly through Acme.

Might as well leave them in - if there is a dispute and you have not opted out, then these would be struck out by any court. Trying to get them removed may alert the agency to you being in rather than out, which can lead to a completely different contract arriving...

3 The Intermediary will have the right to substitute the Worker providing the
Services on its behalf. Acme or the Client will have the right to refuse to accept any substitue they deem in their reasonable opinion to be unsuitable owing to a lack of qualifications or experience.

Fine - they can refuse someone who can't do the job, but only on those grounds.

4 In the event of a claim being made which relates to the Services, Acme will seek to recover from the Intermediary all of the amounts paid to third parties in relation to such claim to the extent that it relates to the Services.

Sounds like they would be looking to recover legal fees if they are sued by the client. Not sure though.

5 The Intermediary accepts unlimited liability for any loss to Acme and the Client arising from fraud or dishonesty on the part of its directors, Worker or staff during the performance of the Services.

Fine - just don't be dishonest or commit fraud

6 The Intermediary shall perform the Services with due skill and care. In the event that Acme or the Client is dissatisfied with the Services, the Intermediary shall at its own expense remedy the dissatisfaction to Acme or the Client’s satisfaction when reasonably possible.

Not so sure about this one - you might need to have something that says "Any dissatisfaction must be raised in writing within 5 working days of contract termination. Remedy by the Intermediary shall not exceed 10 working days". You need to be careful that they don't just say "we're not happy - fix this for us, for free" and it takes you a year to resolve.

[NotAllThere]

The unlimited liability is only with reference to losses "arising from fraud or dishonesty "

So what's the worry?

[tim123]

5 i would want out. It just has me admitting liablility with no reference to what or who gets to decide. If they have a case for claiming comp from me they don't need a clause like this in the contract.

It seems OK to me. It just says that you accept your liability is "unlimited", it doesn't mean that in any one particular (not yet ocurred) instance you accept liability. They would still have to sue to prove liability in any one case, it is just that you are pre-agreeing that you don't have a cap on damages if they win.

tim

[Diver]

Goodnight

[Keldin]

1. As far as I understand it (and it is quite possible that I don't understand it) I think this clause is unenforceable if you haven't opted out of section whatever it is of whatever regs it is (you know what I mean).

2. Same as 1. It could potentially save some aggro in the future though if you explain that and get them to take the two clauses out.

3. I am not an expert here but I think it looks OK, it does have the words "reasonable opinion". MyCo's current contract states something along the lines of MyCo has the right to assign or subcontract to any third party with the agreement of the pimp (which will not be unreasonably withheld) provided the third party is demonstrated to be suitably qualified, competent and experienced.

4. Current one says something similar but specifically refers to a "breach of the agreement", that could be an important distinction.

5. No similar clause in MyCo's current contract.

6. I think that this is useful from an IR35 point of view, although current contract refers to fixing defects rather than satisfaction. It is never safe to assume semantics with contracts.

I think I will be asking for 1 and 2 to go as they make no sense in teh light of me not opting out.
3 should be ok because as you say it has reasonable opinion. Just wanted to check that was a standard type wording
4 I think I will be asking for clarification on but since it just says they will seek to recover and not i will agree to fork over that doesn't mean much.
5 i would want out. It just has me admitting liablility with no reference to what or who gets to decide. If they have a case for claiming comp from me they don't need a clause like this in the contract.
6 would not work with defects as this is not a create a program or software solution type job but it does have the possibility that it can't be done as I have not seen the current setup so it is entriely possible though unlikely that what they want will not be achievable. As long as the Services refers to my work rather than the end result it would be ok. You can't make a silk purse from a sow's ear.

Ta for the comments

[Keldin]

Is it Reed?

No, no, no, no, doh!

It's Acme - the client is Wile E Coyote

[Gonzo]

I'm about to sign a contract for a short gig. Tehre will most likely be some more work coming fromthe same client after this one so I would like to get the contract right for this one at the start.
Theres a few clauses that I'm either not happy with at all and am going to ask them to remove altogether but there's a couple I would like some advice on. Don't want to ask for clauses that seem pretty standard to be removed as well and end up asking too much.

This is not the whole contract - I've pasted and renumbered:
And no the agency's real name is not Acme

1 Acme reserves the right to refuse or withhold payment if it has not recovered the fee from the Client or if the Intermediary terminates this Agreement without completing the agreed services Services to Acme or the Client’s satisfaction.

2 NON-SOLICITATION
For the duration of this Agreement and for 12 months after its termination, the Intermediary shall not and shall ensure that the Worker shall not:
a. solicit, interfere with or endeavour to entice from the Client any person, firm, employee or company who was at any time during the period of this
Agreement an employee, client or customer of the Client; and
b.solicit additional or further work from the Client with the intention of performing services for the Client otherwise than directly through Acme.

3 The Intermediary will have the right to substitute the Worker providing the
Services on its behalf. Acme or the Client will have the right to refuse to accept any substitue they deem in their reasonable opinion to be unsuitable owing to a lack of qualifications or experience.

4 In the event of a claim being made which relates to the Services, Acme will seek to recover from the Intermediary all of the amounts paid to third parties in relation to such claim to the extent that it relates to the Services.

5 The Intermediary accepts unlimited liability for any loss to Acme and the Client arising from fraud or dishonesty on the part of its directors, Worker or staff during the performance of the Services.

6 The Intermediary shall perform the Services with due skill and care. In the
event that Acme or the Client is dissatisfied with the Services, the Intermediary shall at its own expense remedy the dissatisfaction to <ER YOU LEFT A CLUE HERE> or the Client’s satisfaction when reasonably possible.


1 I am not happy with. It's no concern of mine if they haven't received payment from the client (I'm not opting out) so that part must go but I'm also not happy about them withholding payment if they deem the work not completed to their satisfaction.

2 is ok except that as I'm not opting out it's not valid. Do I point that out or just leave it in and ignore it?

Is 3 a standard substitution clause? Is it normal for the client to have a veto on who I send?
What if they just veto anyone other than me? Will that leave me open to be a deemed employee?

4 is just vague. What claim are they referring to and who are these 3rd parties?

5 I just don't like because of the unlimited liability but since it's against my Ltd Co that won't amount to much.

6 I don't like as it leave me open to working continuously to fix something that could caused by the client or be no fault of mine.



Any comments or suggestions?

Oh and the agency very kindly attached a detailed opt out form for me to sign even though that is not possible for reasons you well know *sigh*


K

1. As far as I understand it (and it is quite possible that I don't understand it) I think this clause is unenforceable if you haven't opted out of section whatever it is of whatever regs it is (you know what I mean).

2. Same as 1. It could potentially save some aggro in the future though if you explain that and get them to take the two clauses out.

3. I am not an expert here but I think it looks OK, it does have the words "reasonable opinion". MyCo's current contract states something along the lines of MyCo has the right to assign or subcontract to any third party with the agreement of the pimp (which will not be unreasonably withheld) provided the third party is demonstrated to be suitably qualified, competent and experienced.

4. Current one says something similar but specifically refers to a "breach of the agreement", that could be an important distinction.

5. No similar clause in MyCo's current contract.

6. I think that this is useful from an IR35 point of view, although current contract refers to fixing defects rather than satisfaction. It is never safe to assume semantics with contracts.

[oracleslave]

And no the agency's real name is not Acme


6 The Intermediary shall perform the Services with due skill and care. In the
event that Acme or the Client is dissatisfied with the Services, the Intermediary shall at its own expense remedy the dissatisfaction to Reed or the Client’s satisfaction when reasonably possible.

Is it Reed?

[Keldin]

I'm about to sign a contract for a short gig. Tehre will most likely be some more work coming fromthe same client after this one so I would like to get the contract right for this one at the start.
Theres a few clauses that I'm either not happy with at all and am going to ask them to remove altogether but there's a couple I would like some advice on. Don't want to ask for clauses that seem pretty standard to be removed as well and end up asking too much.

This is not the whole contract - I've pasted and renumbered:
And no the agency's real name is not Acme

1 Acme reserves the right to refuse or withhold payment if it has not recovered the fee from the Client or if the Intermediary terminates this Agreement without completing the agreed services Services to Acme or the Client’s satisfaction.

2 NON-SOLICITATION
For the duration of this Agreement and for 12 months after its termination, the Intermediary shall not and shall ensure that the Worker shall not:
a. solicit, interfere with or endeavour to entice from the Client any person, firm, employee or company who was at any time during the period of this
Agreement an employee, client or customer of the Client; and
b.solicit additional or further work from the Client with the intention of performing services for the Client otherwise than directly through Acme.

3 The Intermediary will have the right to substitute the Worker providing the
Services on its behalf. Acme or the Client will have the right to refuse to accept any substitue they deem in their reasonable opinion to be unsuitable owing to a lack of qualifications or experience.

4 In the event of a claim being made which relates to the Services, Acme will seek to recover from the Intermediary all of the amounts paid to third parties in relation to such claim to the extent that it relates to the Services.

5 The Intermediary accepts unlimited liability for any loss to Acme and the Client arising from fraud or dishonesty on the part of its directors, Worker or staff during the performance of the Services.

6 The Intermediary shall perform the Services with due skill and care. In the
event that Acme or the Client is dissatisfied with the Services, the Intermediary shall at its own expense remedy the dissatisfaction to Acme or the Client’s satisfaction when reasonably possible.


1 I am not happy with. It's no concern of mine if they haven't received payment from the client (I'm not opting out) so that part must go but I'm also not happy about them withholding payment if they deem the work not completed to their satisfaction.

2 is ok except that as I'm not opting out it's not valid. Do I point that out or just leave it in and ignore it?

Is 3 a standard substitution clause? Is it normal for the client to have a veto on who I send?
What if they just veto anyone other than me? Will that leave me open to be a deemed employee?

4 is just vague. What claim are they referring to and who are these 3rd parties?

5 I just don't like because of the unlimited liability but since it's against my Ltd Co that won't amount to much.

6 I don't like as it leave me open to working continuously to fix something that could caused by the client or be no fault of mine.



Any comments or suggestions?

Oh and the agency very kindly attached a detailed opt out form for me to sign even though that is not possible for reasons you well know *sigh*


K