Contract Clauses

[thunderlizard]

(1) - I agree with the agent. If I had to e.g. pay my gas bill every week it would be rather annoying. And I would be wary about taking on a supplier whose cash flow was so dicey he needed paying every week.

(2) - what insurance company in its right mind would backdate a PI policy? Just go ahead and get one. You can probably arrange one over the phone to start tomorrow. I use Caunce O'Hara (because they are the only ones I've ever heard of actually paying out) - give them a call.

(3) "[Aren't the first statement "one week's written notice during the first month.." and later "..immediate termination no later than 30 days after the commencement.." conflicting each other????? ]"
-yes, and as I've hinted before that clause is very badly written. I think the no notice part would apply, a fortiori.

(4) I think that's an improvement. Best also to agree the process for this "agreement in writing" beforehand to make sure there is actually some intention of honouring it.

(5) nice one.

(6) Either keep pushing, or don't opt in to the agency regs, in which case you don't have to worrk because they can't make it conditional.

[explorer]

So guys, here are the latest updates:
[]: My thoughts..
1. Invoicing/Payment frequency (I wanted it to be weekly, the contract says monthly):
"We cann't do it."
[I know. You cann't do anything right, you good-for-nothing t**s].
"It would cost us a fortune to maintain a weekly payment system".
[Why not make it more cost-effective then, paying once every leap year].
"BTW, what do you need the money early for"?

2. Professional Idemnity Insurance cover (I don't have one, and haven't got the time to get one before the start date. As a matter of fact, I'm not sure if I want it, at this stage):
"We are happy if you can organise the insurance with your accountant and ask them to backdate it. There aren’t any problems with this as long as you agree to get the insurance in place."
[2.1 First, would it be legal to backdate?
2.2. Would I not be in breach of contract at the time of signing, if I do it without an insurance policy in place? (Note that at the time if signing, I haven't got such a cover).]

3. The termination clause modified as follows:
"XXX shall be entitled to terminate this Agreement on giving to the other not less than one week's written notice during the first month of this Agreement and thereafter not less than one month's written notice.
The Supplier does not have the right to terminate this agreement.
XXX shall have the right to terminate this agreement immediately by written notice to The Supplier served by XXX no later than 30 days after the commencement date of this agreement if, in thereasonable opinion of XXX, The Supplier and/or any of their representatives (The Consultant(s)) fail to
provide The Services to a satisfactory standard. The Supplier is unable to give notice to terminate this agreement."
[Aren't the first statement "one week's written notice during the first month.." and later "..immediate termination no later than 30 days after the commencement.." conflicting each other????? ]

4. The clause specifying that the supplier (myco) has identified the personnel for the job, remains, but the first page of the contract modified to: "consultant's name: explorer, or any other consultant as agreed in writing by XXX", on my insistence.

5. Twelve month hand-cuff clause modified to six months, with a verbal warning that you WILL need to go through us, even after the six-month period. .

6. Nothing much has been changed on the two clauses specifying "XXX‘s liability to pay The Supplier is conditional on XXX receiving and being
entitled to receive full payment for the relevant period from The Client", even after a 36 min long conversation on the issue, at different levels, and a verbal confirmation by them to modify it. One of these clauses has been left untouched, and the other one has been modified slightly, only to sound more stupid, as I read it.

What da ya say, guys? And thanks, once again, for all your opinions

[malvolio]

Get Egos or Accountax to check it, they are qualified to give this type of advice.

Ermmm... That actually is Accountax's advice, in answer to exactly that question on the PCG fora a while back. I don't just make this stuff up, you know...

[thunderlizard]

no-termination clauses come in 2 kinds:
(1) The kind that the client doesn't especially want, and probably doesn't even know about and would be surprised to find out about, but is just there to save the agent the work of replacing you if you quit;
(2) The kind that the client does want, for continuity reasons.

(1) is easy to get changed; (2) you can charge extra for.

[Pacciae]

Just to be clear, it's no use getting worked up about zero notice clausess from the client side. For one thing, it is good for IR35, if only in a small way. For another, they can drop you immediately on any one of a dozen pretexts anyway, and finally they are under no obligation to pay you if there is no work they want you to do.

Accountax's view is that they are not the best idea in the world, and the best compromise is assymetric notice periods, say a week from them and a month from you. But if it's the difference between getting the gig and not getting it, it's really not worth worrying about.

Get Egos or Accountax to check it, they are qualified to give this type of advice.

[malvolio]

Just to be clear, it's no use getting worked up about zero notice clausess from the client side. For one thing, it is good for IR35, if only in a small way. For another, they can drop you immediately on any one of a dozen pretexts anyway, and finally they are under no obligation to pay you if there is no work they want you to do.

Accountax's view is that they are not the best idea in the world, and the best compromise is assymetric notice periods, say a week from them and a month from you. But if it's the difference between getting the gig and not getting it, it's really not worth worrying about.

[thunderlizard]

Do you mean it's normal for an agency to reserve the right to terminate the contract any time by giving a written notice to that effect?

It is, but the odd thing is that they haven't done that in your case. Their right to terminate stops after 30 days, unless it's mentioned elsewhere that you haven't quoted.

[SueEllen]

Thanks Malvolio.
Do you mean it's normal for an agency to reserve the right to terminate the contract any time by giving a written notice to that effect, whereas I cannot do so by any means. Meaning zero notice period from the agency's side, and infite at my end?

Yep you can have business contracts like that.

I have not, until now, specifically choosen to opt-out. My understanding is that I'm opted in by default, and can't opt out now, even if I wish to..Is that correct?

If you have been introduced to the client then you are opted in.

However I suggest you try and negotiate better business terms.

Lawyers aren't cheap and that's what you may need to convince the agency that they have to pay you. If you settle out of court the other side doesn't have to pay any of your expenses.

[RichardCranium]

Some of the clauses in a new contract that has been offered to me are making me a little uncomfortable.

You read the contract!

You thought about it!

You've decided to seek advice.

I like you. You're special.

The Supplier does not have the right to terminate this agreement.

I HATE non-termination clauses. Twice they have made my life a misery. There is mixed advice re IR35 as to whether they are good or bad. In my experience, try to get some sort of notice period in there, even if it is a month. Your life can go wrong.

xxx shall have the right to terminate this agreement immediately

Personally, I have no problem with this. Others will disagree.

The Supplier has to maintain a professional indemnity insurance policy for that (fully indemnify xxx against any loss claim or damages including all costs arising from any breach of this agreement or any negligent or unlawful act or omission by The Supplier)

Fine. Not uncommon in some sectors. Add the cost of the premium (only a few hundred quid) to your daily rate.

Does that mean I necessarily have to maintain an insurance policy?

It would be a stupid way to be in breach of contract; it is cheap.

xxx shall be entitled to deduct or reduce monies entitled to The Supplier at their discretion in the event that The Client withholds monies for any reason.

STOP! Now you need an expert.

egos is expensive, but very, very good. He is an IT contracts law specialist. I have used him and was happy with the advice.

If you are in any professional bodies, most can provide free legal advice. I think you needs some.

The Supplier Warrants that it has identified to xxx the person to be engaged by the Supplier for the purposes of performing this contract on its behalf as The Consultant and that The Consultant has been so engaged for a period of not less than the Contract term and shall undertake the work required using the required specialist technological skills and expertise by this agreement;
Ques: Inside IR35 pointer??

I am not an expert, but it sounds like it to me. Get advice from an IR35 specialist.

[explorer]

The rest of it is pretty much OK

Thanks Malvolio.
Do you mean it's normal for an agency to reserve the right to terminate the contract any time by giving a written notice to that effect, whereas I cannot do so by any means. Meaning zero notice period from the agency's side, and infite at my end?

I have not, until now, specifically choosen to opt-out. My understanding is that I'm opted in by default, and can't opt out now, even if I wish to..Is that correct?

[malvolio]

xxx‘s liability to pay The Supplier is conditional on xxx receiving and being entitled to receive full payment for the relevant period from The Client.

is unenforceable if you are opted in, and very bad business if you are not, and...

xxx shall be entitled to deduct or reduce monies entitled to The Supplier at their discretion in the event that The Client withholds monies for any reason.

is simply unacceptable. You get paid for work done at the agreed rate at the agreed timescale. Both these clauses should be deleted.

The Supplier Warrants that it has identified to xxx the person or persons to be engaged by the Supplier for the purposes of performing this contract on its behalf

will avoid the element of personal service.

The rest of it is pretty much OK, IMHO, but you could always get it professionally reviewed.

[explorer]

Some of the clauses in a new contract that has been offered to me are making me a little uncomfortable. Thought of checking board's opinion on them, and whether it's a norm to have them in a typical contract.

XXX: Agency
Supplier: MyCo

The Supplier does not have the right to terminate this agreement.
xxx shall have the right to terminate this agreement immediately by written notice to The Supplier served by xxx no later than 30 days after the commencement date of this agreement if, in the reasonable opinion of xxx, The Supplier and/or any of their representatives (The Consultant(s)) fail to provide The Services to a satisfactory standard. The Supplier is unable to give notice to terminate this agreement.

The Supplier has to maintain a professional indemnity insurance policy for that (fully indemnify xxx against any loss claim or damages including all costs arising from any breach of this agreement or any negligent or unlawful act or omission by The Supplier) purpose;
Ques: Does that mean I necessarily have to maintain an insurance policy?

without charge correct any defective works carried out by The Supplier provided that such works are notified to The Supplier by xxx on or before The Contract Term End Date.

xxx‘s liability to pay The Supplier is conditional on xxx receiving and being entitled to receive full payment for the relevant period from The Client.

xxx shall be entitled to deduct or reduce monies entitled to The Supplier at their discretion in the event that The Client withholds monies for any reason.

The Supplier Warrants that it has identified to xxx the person to be engaged by the Supplier for the purposes of performing this contract on its behalf as The Consultant and that The Consultant has been so engaged for a period of not less than the Contract term and shall undertake the work required using the required specialist technological skills and expertise by this agreement;
Ques: Inside IR35 pointer??

Thanks in advance..