"Terms of Engagement" vs "Contract" ?

[SueEllen]

There is no "main contract", that is, there issues no other contract between my ltd company and the agency. There is only ToE and Schedule, the ToE itself has clause saying that ToE and Schedule constitutes agreement between the supplier and the agency. So ToE IS the contract, and they do not want to sign it.

It just makes me uneasy because of their refusal - if it IS a contract and the signature does not make a difference, why not just sign and the end of story.... so not wanting to sign is strange.

I hope the client will sort it out. Thank you on all your replies.

A few agencies actually refuse to sign contracts believing if they don't sign a physical document they cannot be held by an English court as agreeing to it.

However once they have paid the first invoice or show other ways of agreeing to the agreement, they can clearly be held to the last contract document that was negotiated.

So as long as I'm happy with the contract terms and have proof that the agency would have highly likely received the contract I don't stress about them not signing it.

Write on the document that it has been sent back by registered delivery then send the documents back by registered delivery and keep the slip attached to your copy of the document. An email trail and the slip is enough to argue in a court what's are final contract terms agreed.

Also some agents like people are stupid and simply don't understand what is considered a contract in law. So they may actually believe the documents aren't a legally binding contract on their side.

[Ticktock]

I managed to negotiate these changes because I am currently contracting directly for the client who has decided to use the Agent for Managed Services for all contractors so on this renewal I have to sign via this particular Agency.

I do also wonder if the ToE is their way to get you to implicitly agree to be "opted out". Will they still accept it if you strike out those terms?

As Jane has already been introduced to the client, and they have merely changed their business model to insist on an agency intervening, surely their attempt is useless?

[Contreras]

There is no "main contract", that is, there is no other contract between my ltd company and the agency. There is only ToE and Schedule, the ToE itself has clause saying that ToE and Schedule constitutes agreement between the supplier and the agency. So ToE IS the contract, and they do not want to sign it.

It just makes me uneasy because of their refusal - if it IS a contract and the signature does not make a difference, why not just sign and the end of story.... so not wanting to sign is strange.

I hope the client will sort it out. Thank you on all your replies.

I have used a ToE for client direct work where I didn't want/need the hassle of negotiating a full contract. However in this case it has been MyCo ToE (and ToB) presented to the client and even though it is only signed by me I would expect a PO from the client which is effectively their acceptance of my terms.

In theory there is nothing wrong with the agent using a ToE but I have not heard of any agent doing this before and I would be wary of why they were departing from the industry norm, even though that industry norm (treating us as agency temps on their payroll) isn't exactly my ideal!

Regarding signing - always write "For and on behalf of Your Co. Ltd" against any signature, and be really concerned about are the wording of any terms that could imply a personal liability.

The PCG have contract templates (both contractor-agency and agency-client) available for free download, even for non-members. If you are unhappy with what the agency are presenting then you can offer to use the PCG template instead of just refusing to sign. Perhaps check with the client first and if they are happy then tell the agency to do it your way or lose the contract. I suspect however if the agent is managing services on the client site then this approach is not going to wash.

I do also wonder if the ToE is their way to get you to implicitly agree to be "opted out". Will they still accept it if you strike out those terms?

[Jane]

Looks like they are talking tulip. A solicitor will give you an answer specific to what you tell them.

I doubt the agency told the solicitor that the TOE was specifically mentioned in the main contract document.

In theory there is nothing wrong in them not signing the TOE if it is recognised as part of the contract and your signature is to acknowledge you received it however as it's not get the client to sort them out.

There is no "main contract", that is, there is no other contract between my ltd company and the agency. There is only ToE and Schedule, the ToE itself has clause saying that ToE and Schedule constitutes agreement between the supplier and the agency. So ToE IS the contract, and they do not want to sign it.

It just makes me uneasy because of their refusal - if it IS a contract and the signature does not make a difference, why not just sign and the end of story.... so not wanting to sign is strange.

I hope the client will sort it out. Thank you on all your replies.

[SueEllen]

Looks like they are talking tulip. A solicitor will give you an answer specific to what you tell them.

I doubt the agency told the solicitor that the TOE was specifically mentioned in the main contract document.

In theory there is nothing wrong in them not signing the TOE if it is recognised as part of the contract and your signature is to acknowledge you received it however as it's not get the client to sort them out.

[Jane]

You are having the paperwork reviewed by someone like Bauer & Cottrell arent you?

Yes, I have purchased a review from QDOS yesterday, but I guess it won't be ready until the end of the next week.

My concern is exactly this - "the good faith" - if it does not make a difference whether to sign or not, then why not sign it?

Further, I have heard on the grapewine concerns about this Agent (they are managing services on client site) where they are now been put in between Agencies that have contractors with the client and the client and the stories are that they squeezed existing agents' commission down to single digit percentage, then built their own comission on top. Existing agencies are in breach of contract if they talk directly to the client and if they breach it, the managed services Agent can take all existing agencies contractors directly with them with no buy-out and no penalties. For existing agencies that refused to sign the contract with managed services, then as the contract of each of contractor expires, it cannot be renewed.

Of course, these are all unconfirmed stories, but coupled with the fact that they do not want to countersign the contract, then I do have concern.

Just to clarify, my contract would be directly with the management services Agent, and not with the end agent. I wanted to go with end agent as I knew one of them who introduced me to the client many years ago (been there, left then back direct) but the management services Agency objected and asked to sign directly with them.

Fortunately for me, I have been direct with the client for few years so they know me and my work and they do want me to stay. I have talked with the departmental management and said I cannot take up the contract that is not countersigned by the Agency and I think that they will talk to management services next week to try to understand where is the problem with the management services agency signing the contract - they also cannot understand why they just don't sign.

On top of this, I have in writing (in email) from the management services saying that they talked to their lawyers and that the paperwork is not contract, and is instead ToE that does not require their signature... yet one of clauses within this ToE says that ToE together with the schedule constitutes the contract between the management services agency and the supplier.

[Jessica@WhiteFieldTax]

Ah, sorry, as I read it, I thought the client had produced this and was shutting the agent out.

I hadn't realised this was an agency issued document.

My immediate thoughts:

~ normally both parties would sign, it makes me wonder what they are hiding

~ a signature isn't essential for a contract if its clear that contractual relations are intended.

~ a contract can be written, oral or implied by actions, and just because a document isn't called "contract" doesn't mean it isn't one. The document you are referring to is clearly a contract.

~ bringing this together, their reluctance to sign seems odd. It's almost as if they are anticipating a dispute and not wanting to honour the agreement.

~ I'm not a lawyer, and if you are concerned you ought to run this past one, but my feeling is the absence of their signature won't effect your enforceability greatly, but it does raise questions about their good faith.

I wonder whether escalating this in the agency may be the next step?

[BolshieBastard]

For my new contract my company has been given to sign "Terms of Engagement for Limited Company Supplier". Whilst the wording and clauses within the document is more or less the same as in contracts I had in the past, the difference is that it requires only my signature, but not the signature of the Agency.

When questioning this, I was told that there is no Agency countersign required on the terms - the reason being that these are Terms of Engagement rather than a contract.

There is no other document that would be a "Contract".

During the 14 years of contracting this is the first time that I have been presented with a document where only my Ltd company would sign, but not the Agency.

Does anybody know any difference between "Terms of Engagements" and "Contract"? Should I be concerned that only my Ltd signature is required?

You are having the paperwork reviewed by someone like Bauer & Cottrell arent you?

[Jane]

Thank you on your response. The ToE has "Conduct of Employment Agencies and Employment Businesses Regulations 2003" opt out which has to be signed as a part of the ToE, as well as a clause that the suplier confirms it is in business on its own account and as such is outside AWR. The opt out of Working Time Regulation for "supplier staff" is also included.

It also includes wording: "This Agreement, together with any Schedules, constitutes the entire agreement between the Employment Business and the Supplier which foverns the Assignment undertaken by the Supplier with the Client."

As I said, what worries me is that only Supplier is required to sign, but not the Agency. Having read various posts on this forum, it seems that in the case of any future dispute it would be easier and less costly if the agreement is signed by the Agency - in case they claimed they have not signed it?

The agreement itself is a protected word document with few fields left to fill in such as Supplier LTD company name, company registration number and trading address, as well as one line of "Service description" and then in the Schedule (part of the same document) is client name, fee, invoicing terms, start/end dates, liability insurance covers and Assignment Projects listed.

The Agency only wants my signature but is actually refusing to put theirs on the ToE so I cannot understand what is such a big deal for someone to sign on behalf of the Agency hence I am warry.

I would like to add that the contract has been changed specificaly for my Ltd Company. Whilst it is based on the Agency standard contract, I have managed to get them to change some clauses and wording and the footer of the contract has wording "xxx Ltd ONLY" so it is clear it is only for my Ltd company.

I managed to negotiate these changes because I am currently contracting directly for the client who has decided to use the Agent for Managed Services for all contractors so on this renewal I have to sign via this particular Agency.

But the last change (having the Agency signature) is now the obstacle and I am wondering is it perhaps because their "upper contract" is now not aligned with my "lower contract" hence they do not want to put their signature on it.

Or am I just being silly and should I just sign?

[Jessica@WhiteFieldTax]

The devil will be in the detail - what is in the document you are signing - but in principle this creates no issues, pre supposing you would have opted out from the Agency Reglstions.

HTH

[Jane]

For my new contract my company has been given to sign "Terms of Engagement for Limited Company Supplier". Whilst the wording and clauses within the document is more or less the same as in contracts I had in the past, the difference is that it requires only my signature, but not the signature of the Agency.

When questioning this, I was told that there is no Agency countersign required on the terms - the reason being that these are Terms of Engagement rather than a contract.

There is no other document that would be a "Contract".

During the 14 years of contracting this is the first time that I have been presented with a document where only my Ltd company would sign, but not the Agency.

Does anybody know any difference between "Terms of Engagements" and "Contract"? Should I be concerned that only my Ltd signature is required?