Reply to: Amended contract

[NotAllThere]

I just cross out or amend the clauses I don't like (including a no variation clause). Initial the amendments, sign the contract, make a copy for my file, send it back.

[BlueElise]

Unless I missed it somewhere, would you be willing to name the agency?

[TheFaQQer]

To add a further dimenstion of complication - the client has been putting huge amounts of pressure on the agency to get me to renew (I declined the renewal three weeks ago on the basis of changes the agency had tried to make at that time - which I believed took them outside the contract terms).

...And at the end of all this - the bloody agency will claim that *I* was being unreasonable and refused to renew.

Then get your side of the story in first - explain to the client how you want to renew, but the agency have changed the contract and are refusing to be reasonable about it. Explain that the contract is putting all the risk on your business, which really makes you question what the agency is doing - in this case, absolutely nothing.

Work the client, and get them to help resolve the problem.

[rootsnall]

Unfortunately, this type of underhand manoeuvre (i.e. I'm sure they were hoping you didn't notice) has become standard industry practice by many agencies these days. Contractor beware.

Nomadd

It has certainly increased. On my last but one gig I was offered a shocker of a contract, direct to a small consultancy. I tried to negotiate but was told take it or leave it. Stuff all work around so I took it. I was sure that the other half dozen contractors on site couldn't of all signed it and they must be on some other deal. Not one of them had even read it, and they were on the same terms and No wonder the agents try to take the pee !

The use of 12 month restriction clauses/covenants have always annoyed me ! If the agency then start tinkering with other terms from the original contract ( to your detriment ) then I would of thought it would be hard for them to enforce the restriction clause if it went before a judge. But, I'm only guessing, and as with all these matters it is probably not worth the risk and worry to ditch the agency.

If the client wants you, and you are genuinely prepared to walk, then play hard ball and in my experience the agency will back down.

[Paddy]

4. You could phone a friendly agency (that you have dealt with before) and ask them to represent you for a 4% margin (I have an agency that have offered to do that for me if I ever find a gig by myself). Then tell your agent to "F*** off and sue me if you don't like it." Just make sure your insurance payments are up to date first!

.

This I have done a couple of times and ended up with more dosh as well.

[RichardCranium]

To add a further dimenstion of complication - the client has been putting huge amounts of pressure on the agency to get me to renew

That's not a complication. It is an opportunity. Tell the client you want to renew but they are trying to shaft you.

And at the end of all this - the bloody agency will claim that *I* was being unreasonable and refused to renew.

Work WITH the client. Explain to them what is going on. What is the worst that could happen? There is no way it could make things worse.

If the client want you that much they have all sorts of powers including threatening to never use that agency again.

Ah well - jobserve here i come.

Yes. Do that anyway. But upload your CV before checking for gigs: more gigs are currently being filled from agents reviewing online CVs than uploaded responses to adverts. (Don't tell anyone else I told you that.)

[ogreboy]

Thanks for the support and comments, both of you.

Richard - I realise the contract can be negotiated - I meant that the no variations clause states that any variation must be made in writing and signed by both parties.

To add a further dimenstion of complication - the client has been putting huge amounts of pressure on the agency to get me to renew (I declined the renewal three weeks ago on the basis of changes the agency had tried to make at that time - which I believed took them outside the contract terms).

The agency have verbally offered me different payment terms - but I am yet to see these terms added to the contract.

I'll put some pressure on the agency to document the verbal payment terms but I can foresee that they will not do so and I will end up leaving the client's site. And at the end of all this - the bloody agency will claim that *I* was being unreasonable and refused to renew.

Ah well - jobserve here i come.

[Monster Munch]

Cheers ogreboy - no offence intended. I just think this issue is endemic within the IT contractor community.
Agents clearly have the resources available to exploit us at every opportunity. It sound like your contract is heavily weighted against you. This is a topic that can fill its own thread.
No other type of business owner would leave themselves as exposed as us folk. Sometimes we really do take silly risks.
Over the past few years I've been a bit more 'commercially wise' and tried to re-negotiate unfavourable terms. Sometimes it works. Sometimes it doesn't, so I politely decline the contract.
If your ircumstances permit, and the agent is unable to be a bit more amicable, I think your contract is not commercially viable and perhaps you should decline the renewal. The terms are simply unacceptable.
My views are a very simplistic take on this issue. There are many other variables with regards to contract negotiation and I am aware that I am not in possession of all the facts in your case.

[RichardCranium]

I don't think that'll wash - the agency contract has a "no variation" clause

A "No variation" clause is just bollocks: any part of any contract can be negotiated at any time. And as from COP Monday, that contract ends anyway.

1. You could shop around to get an idea of the cost of factoring services and tell the agent you will only sign if they pay the factoring costs.

2. You could tell the agent if they have not paid you within 28 days (or whatever) you will stop attending and you won't sign unless that goes in the contract.

3. You could tell the client on Monday that you won't be in on Tuesday because the agency thinks the client is too dodgy to do business with and the agent wants you to take all the risk. (You should do this anyway.)

4. You could phone a friendly agency (that you have dealt with before) and ask them to represent you for a 4% margin (I have an agency that have offered to do that for me if I ever find a gig by myself). Then tell your agent to "F*** off and sue me if you don't like it." Just make sure your insurance payments are up to date first!

5. Tell you agent you will do number 4 unless they remove their changes.

Whatever happens, keep sweet with the client. Be very apologetic and explain how it is not your fault, nor theirs. And get your CV uploaded to all the main job sites tomorrow (i.e. Sunday) - you never know whether that may make the 'phone ring with a gig to run to.

Whatever happens, do not turn up on Tuesday without getting this sorted. You WILL end up losing money; probably 2 month's worth at the very end of the contract.

[ogreboy]

Monster - thanks for a more constructive reply.

I don't think that'll wash - the agency contract has a "no variation" clause - so unless the agency SIGN and return a statement agreeing to my payment terms...

[ogreboy]

Well, thanks for the insight into your personal issues "Monster Munch".

As it happens - I wasn't offering my thoughts since I wanted independant views but since it has been assumed I'm some kind of idiot...

As some members may be aware, I posted about my issues negating the restrictive covenant and continuing with the same client through an alternate agency. This is important to me since I work in a HIGHLY specialised IT role which limits the number of potential clients/projects I can work on.

I am currently of the opinion that now that the agency has added details to clauses in the supplier agreement and stated that accepting the terms of the new agreement is mandatory if the extension is to be made.... that the agency cannot now use the restrictive covenant.

It would be unreasonable for the agency to amend the terms such that the contract becomes unworkable and still insist that the ltd company cannot continue to supply services through a 3rd party - it seems to me the agency couldn't possible show a legitimate protectable interest.

Still, what do I know? I'm just a thinly-disguised permie, clearly!

[Monster Munch]

Sorry if it seemed like a rant. It's more of a frustration.
At the end of the day if any of the business terms are not fully understood or clearly defined, one has to make a commercial decision to proceed with the contract or not. We as contractors seem to work in a reactive way when dealing with agents. An option for the OP is to, in the absence of a payment schedule, submit his own payment schedule/terms. It is then down to the agent to reject them otherwise they wil be in force by way of deemed acceptance.

[RichardCranium]

This is just the type of post that demonstrates that there are contractors out ther that are simply disguised employees and possess very little business sense. Since when has it been ok for businesses to enter into contracts for the supply of services, or anyhting else for that matter, without knowing the payment terms?

The OP knew the terms and has - sensibly - read the renewed contract and seen they have changed.

I can assure you that the agency will have their payment terms boldly identified in their contract with the end client.

You overestimate the competence of agencies.

Come on guys, if contractors want to be treated as legitimate businesses in their own right, they have to start thinking and acting like a real buisness, and that means being brave enough to turn away work if the terms of business cannot be agreed.

The OP was asking for advice. The implication is the OP is considering walking away but researching alternatives too.

I've worked a many contractors who simply won't do this. Buisness is tough. If you can't take tough dicisions, including turning away work, then I would start thinking about your career as a business owner.

There are indeed stupid people who sign contracts without reading them then come on here and whinge. They get flamed and quite rightly too.

But here the OP is having terms imposed at very short notice and is sensibly asking their peers for suggestions to deal with it.

[Monster Munch]

This is just the type of post that demonstrates that there are contractors out ther that are simply disguised employees and possess very little business sense. Since when has it been ok for businesses to enter into contracts for the supply of services, or anyhting else for that matter, without knowing the payment terms? I can assure you that the agency will have their payment terms boldly identified in their contract with the end client. Come on guys, if contractors want to be treated as legitimate businesses in their own right, they have to start thinking and acting like a real buisness, and that means being brave enough to turn away work if the terms of business cannot be agreed. I've worked a many contractors who simply won't do this. Buisness is tough. If you can't take tough dicisions, including turning away work, then I would start thinking about your career as a business owner.

[TheFaQQer]

Turn the tables - if they say anything, tell them that your legal department has said that you can't change the contract because it will impact your IR35 status.

They're so keen on telling us any old crap and blame it on IR35, so get your revenge in first.