Clause Enforceable?

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tim123 replied

9 January 2009, 14:11
Originally posted by TheFaQQer View Post

Even if the 12 month clause was found to be unenforceable, I think that the court might be able to insert something that was more reasonable.
.

No, it definitely doesn't work that way.

A court will consider whether a clause stands or falls, in its entirety. It will never amend it from something which is un-enforceable to something that is.

tim
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tim123 replied

9 January 2009, 14:08
Originally posted by mashetti View Post

As far as I know the agency doesn't know yet (as was nearly 2 years ago) but there is a good chance they will put 2 and 2 together when I apply for a contract with them as my updated marketing blurb will show which compaies I have been servicing. Should I be worried or should I wait for the contract to be adverstised by another agency (currently only 1 agency has it) or will they just see me as a walking £ sign and not care/check?

Personally, I doubt very much that the reccon handling the new client will notice, he'll only be interested in getting his personal commission on placing you.

tim
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TheFaQQer replied

9 January 2009, 14:01
Even if the 12 month clause was found to be unenforceable, I think that the court might be able to insert something that was more reasonable.

So, the question becomes "is 4 months unreasonable" since the OP returned there after 4 months. Personally, I don't think that 4 months is unreasonable, but others might.
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rootsnall replied

9 January 2009, 13:44
Nobody will give you a cast iron legal opinion on this one. I personally would abide by the 12 months exclusion if you've signed a contract to that effect. I've been there and seen others jumping every time the phone rings and also worrying everytime you send out your CV, it's not worth it. It's wrong and it riles me that the PCG negotiated the Opt Out to the 2003 agency regs as otherwise they could only have an 8 week exclusion clause, which I think is a lot more reasonable.
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TheFaQQer replied

9 January 2009, 12:32
Ring the PCG legal helpline and ask a lawyer what they think.

Someone will be along in a minute and tell you that it's enforceable and you should have gone back.

Someone will then tell that person that they haven't got a clue, and it's not enforceable. This will be backed up with the standard "it's never happened to me in 5/10/15/20/200 years of contracting" message.

Someone will counter this with a "just because it's happened to you, doesn't mean that you are right - you may just be lucky", and then someone else will suggest speaking to a lawyer.

FWIW, I think it's unlikely that they would win in court, if it came to that. If they really wanted to, they might try to hassle you into paying something, just to try it on - if they have no gigs to fill, they need to get money from somewhere. That said, chances of them actually being able to find the original signed contract to check what the wording was could be slim.

IANAL.
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mashetti started a topic Clause Enforceable?

9 January 2009, 12:18
Clause Enforceable?

I did some work for a Client and the contract between my co and the agency states:

"The Company agrees that for the duration of this Agreement and for a period of twelve (12) months following the termination of this Agreement, it shall not:

(a) enter into any arrangement with either the Client or any company which is part of the corporate group of the Client or any customer of the Client or any person or company which the Consultant and other personnel connected with this project has made contact with through the provision of Services to the Client if any such arrangement was gained as a result of the performance of Services under this Agreement;"

It was a 3 month contract. After this contract I then worked elsewhere for about 4 months. I then went back to the original client but did not use the original agency. Am I a bad person?

I remember people talking about the above clause (or similar) and saying that it's only enforceable for the period of the contract (so 3 months instead of 12) as 12 is too restrictive and wouldn't stand up (even if on viagra) in court.

As far as I know the agency doesn't know yet (as was nearly 2 years ago) but there is a good chance they will put 2 and 2 together when I apply for a contract with them as my updated marketing blurb will show which compaies I have been servicing. Should I be worried or should I wait for the contract to be adverstised by another agency (currently only 1 agency has it) or will they just see me as a walking £ sign and not care/check?
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