unfair business contract terms

[TheFaQQer]

Isn't it true that in a B2B case you are assumed to have sought legal advice?

It's presumed that you have the opportunity to get the professional advice that you need. Whereas a B2C contract can try to be unfair, but those clauses may be struck out by a court because the consumer doesn't have the same chance to negotiate the terms.

[BrilloPad]

I think the court will look at the reality that you didn't read the contract properly when signing it and ask why that happened. Then they will ask why you think it's unfair just because you don't like the clause. Then they will point out that you had the opportunity to negotiate the clause away because it's a B2B arrangement not an employer-employee one.

And then you'll almost certainly lose.

Isn't it true that in a B2B case you are assumed to have sought legal advice?

[TheFaQQer]

My mistake was I signed this contract 6 months ago without going into details on the terms!!! Trying to come out of it without paying the claw-backs and need to backup myself in case they take me to court. I think the court could also be more compassionate to me since I'm a small self-employed individual and they are a big company which most likely has all sorts of insurances in place...

I think the court will look at the reality that you didn't read the contract properly when signing it and ask why that happened. Then they will ask why you think it's unfair just because you don't like the clause. Then they will point out that you had the opportunity to negotiate the clause away because it's a B2B arrangement not an employer-employee one.

And then you'll almost certainly lose.

[ASB]

It is irrelevant what most contractors are in this forum... whether IT or sales, the Law is the same!

Not really. Since folk tend not to be commission based and thus dont generally come across the issue.

I am not a lawyer, but that clause does not look in any way unfair - in isolation. But that depends on how commission is structured. You could make a case that it is unfair because the company has received revenue but it is thin.

I also think you need to consider the higher barriers that apply in a b2b contract. It is assumed that a business knows what it is doing.

It will be difficult to test unfortunately. Either you need to agree something with them or sue them when they withhold from your payments. If they seek to recover from you refuse and let them sue you.

[WTFH]

It is irrelevant what most contractors are in this forum... whether IT or sales, the Law is the same!

And the advice is the same - you need a lawyer, not a contractor, to help you out here.

We might offer you some sympathy or guesses, but we're not legally qualified, nor do we have full copies of your contract, etc.
Seek legal advice from a specialist contract lawyer.

[Cirrus]

I wouldn't even imagine an arrangement that didn't have this provision. It is blindingly obvious if a sale falls through you have to give some or all of the commission back.

It happens with recruitment agencies for example.

I'm gobsmacked you didn't notice this in the contract you signed.

[MaKaVeLi]

Most contractors on this forum work as IT contractors.

Even if we weren't, only a lawyer would be able to advise you properly - most will offer your first consultation for free.

It is irrelevant what most contractors are in this forum... whether IT or sales, the Law is the same!

[MaKaVeLi]

I think what you should do is decline and move on to something else.

I don't think there would be any mileage in agreeing to such a contract in the hope you resolve the inevitable claw back dispute in a court case.

My mistake was I signed this contract 6 months ago without going into details on the terms!!! Trying to come out of it without paying the claw-backs and need to backup myself in case they take me to court. I think the court could also be more compassionate to me since I'm a small self-employed individual and they are a big company which most likely has all sorts of insurances in place...

[MaKaVeLi]

UCTA imposes a statutory limit on the avoidance of civil liability through exclusion clauses in business contracts for breaches of contract, negligence, or other breaches of duty.

I'm not sure how that would help you here.

Thanks for the tips .. will go through the Act in detail.

[BlasterBates]

I think what you should do is decline and move on to something else.

I don't think there would be any mileage in agreeing to such a contract in the hope you resolve the inevitable claw back dispute in a court case.

[TheFaQQer]

I believe this clause is unfair under the Unfair Contract Terms Act 1977. Every few months some merchants are defaulting and the list gets bigger, so the more customers I sign up the bigger my liability becomes. I need some advise please.

UCTA imposes a statutory limit on the avoidance of civil liability through exclusion clauses in business contracts for breaches of contract, negligence, or other breaches of duty.

I'm not sure how that would help you here.

[northernladuk]

+1 the only person who can give you advise will be a lawyer - but I don't believe that term is actually unfair - its standard across a few other contracts a quick google search returns and allows them to pay commission earlier than would otherwise be the case (in your case I suspect you would otherwise have to wait a year to receive it)....

You did that on purpose cause the OP did it didn't you?

[eek]

Most contractors on this forum work as IT contractors.

Even if we weren't, only a lawyer would be able to advise you properly - most will offer your first consultation for free.

+1 the only person who can give you advise will be a lawyer - but I don't believe that term is actually unfair - its standard across a few other contracts a quick google search returns and allows them to pay commission earlier than would otherwise be the case (in your case I suspect you would otherwise have to wait a year to receive it)....

[Scratch It]

Most contractors on this forum work as IT contractors.

Even if we weren't, only a lawyer would be able to advise you properly - most will offer your first consultation for free.

[MaKaVeLi]

I work as a self-employed agent for a merchant services company that provides card machines for business to accept card payments from their customers. Typical contract term is 48 months.

When I sign up a customer (merchant), this company pays me commission. Typically I have no previous relations with these business as sometimes I have to called call or arrange a meeting with the business owner and then pitch my sale.

Finding customers and pitching the sale is very hard work. Few of my signed up customers have defaulted on their monthly payments (monthly card machine rentals) and now this company is asking me to pay back the commission they paid me based on the following clause in the contract I signed for when I agreed to work with them:

"In the event of a Sale Reversing within the first year, [company] reserves the right to claw back any Commissions paid to the Agent (in full). [company] reserves the right to determine whether such amounts are to be deducted from any current or future amounts owed to the Agent or whether they are to be repaid in full without offset. In the event that [company] determines that the amounts are to be repaid in full without offset, such amounts are to be repaid to [company] within seven days of [company] issuing an invoice to the Agent".

I believe this clause is unfair under the Unfair Contract Terms Act 1977. Every few months some merchants are defaulting and the list gets bigger, so the more customers I sign up the bigger my liability becomes. I need some advise please.