New Contract

[Wanderer]

-- The Company shall use its best endeavours to ensure payment of these invoices within thirty days following receipt

Try to negotiate that down to 14 days.

If they won't then you have to invoice weekly. When they start moaning about it, start talking about lines of credit that your company is extending to their company. On 30 day terms with monthly invoicing you are extending up to 60 days credit to them! At very least you should accept weekly invoicing and 30 day terms (up to 37 days credit).

-- Should the Company serve notice upon the Service Provider but not require the Service Provider to perform any further Services during the notice period, the Company shall only make payments once such payment is received from the Client

You know that opt out they are desperate for you to sign? Don't sign it and this clause is unenforceable. If you did sign it then send them a note withdrawing the opt out if you haven't signed the contract or started work for the client.

[malvolio]

Yeah that is what I understood also, however I will try to negotiate my notice period to 5 days then, since I have no notice period from their side.

Which is a good thing...<snip>'s have a read of this for why

[farout117]

If you talk to a solicitor or review service ask them to negotiate the clauses you have highlighted.

I also suggest you get the invoice payment terms changed to 14 days or less, or get them to agree to weekly invoicing. Do not in this climate - however big the client or agency - is give them a credit line as long as this.

In regards to the timetable clause if you know it's not a realistic one or don't have enough detailed information on the project/piece of work from the client to know whether it is get the clause altered/removed. Otherwise they can and will use it against you if someone more senior on the team has caused a f*** up.

BTW big agencies and big companies are often big because they know how to screw people/suppliers.

Hi Sue, I will put that clause (14days) however I think it will be quite hard to negotiate on that.

On the timetable clause, as you said, its quite vague. Giving a reasonable deadline is ok but I do not know what they have in mind, and its something I have to decide with the client and I do not think the agency has to be involved in. So I will want that clause to be removed too.

Thanks for your valuable opinion

[farout117]

That last paragraph, BTW, is harking back to a pointI made awhile back. You can have a notice period, but if the client has no work for you and so doesn't pay the agency for it (and hence doesn't sign your timesheets), you won't get paid for it. Which is good for MOO, and hence IR35, of course. Up to you whether or not you make a fuss about, but I wouldn't.

Yeah that is what I understood also, however I will try to negotiate my notice period to 5 days then, since I have no notice period from their side.

[farout117]

The important word you should be highlighting is BEST in that sentence. In UK law I believe this term places a higher burden on them and effectively means 'leave no stone unturned' so they have really shot themselves in the foot and is in your interest to have that in. The thing you need to worry about is them not understanding what they have signed up to which is much more likely. They are thinking they have gone for 'reasonable endeavours' which is a different level of commitment.

Granted this only makes a difference when it goes legal but still it is in your favour in it's current forum if you do.

Thanks northernladuk for your reply! Yeah I beleive its in my favour that is why I asked because normally the contract is always targetted towards their interest So Im safe as far as this clause is concerned. I am still having the contract reviewed by a legal person, and still waiting for his view.

[SueEllen]

Hi All,

I have received a new contract for the new year, however there are some points which I have not seen in any other contract I have signed before and would like to know the opinion of you experienced contractors in here.

If you talk to a solicitor or review service ask them to negotiate the clauses you have highlighted.

I also suggest you get the invoice payment terms changed to 14 days or less, or get them to agree to weekly invoicing. Do not in this climate - however big the client or agency - is give them a credit line as long as this.

In regards to the timetable clause if you know it's not a realistic one or don't have enough detailed information on the project/piece of work from the client to know whether it is get the clause altered/removed. Otherwise they can and will use it against you if someone more senior on the team has caused a f*** up.

BTW big agencies and big companies are often big because they know how to screw people/suppliers.

[centurian]

Dunno why they don't just make it a zero notice period on their part and be done with it. They've made it pretty clear that they won't pay you for the notice period anway.

And Malvolio is right about MOO. One of the IR35 wins over the past few years was because the contractor was able to demonstrate that he was told not to come in (for no pay) when work was light, so stuff like this is a big help - as long as you can demonstrate that there is a realistic possibility that it could actually happen in practice - and not just contract window dressing.

[malvolio]

That last paragraph, BTW, is harking back to a pointI made awhile back. You can have a notice period, but if the client has no work for you and so doesn't pay the agency for it (and hence doesn't sign your timesheets), you won't get paid for it. Which is good for MOO, and hence IR35, of course. Up to you whether or not you make a fuss about, but I wouldn't.

[northernladuk]

The important word you should be highlighting is BEST in that sentence. In UK law I believe this term places a higher burden on them and effectively means 'leave no stone unturned' so they have really shot themselves in the foot and is in your interest to have that in. The thing you need to worry about is them not understanding what they have signed up to which is much more likely. They are thinking they have gone for 'reasonable endeavours' which is a different level of commitment.

Granted this only makes a difference when it goes legal but still it is in your favour in it's current forum if you do.

[BolshieBastard]

Hi All,

I have received a new contract for the new year, however there are some points which I have not seen in any other contract I have signed before and would like to know the opinion of you experienced contractors in here.

-- In the case the Service Provider sees itself unable to perform the Services within the time set out in the timetable, the Company shall agree with the Client which actions in this respect can be taken.

-- The Company shall use its best endeavours to ensure payment of these invoices within thirty days following receipt

-- the Service Provider is obliged to subscribe a liability insurance covering damages and losses which can occur in connection with the Services for a minimum amount of xxx,xxx.

-- Should the Company serve notice upon the Service Provider but not require the Service Provider to perform any further
Services during the notice period, the Company shall only make payments once such payment is received from the Client.

Thanks for your time and opinions

Get your contract reviewed by Danny at Bauer & Cottrill. They'll also handle negotiations with the agent to get the crap removed and strengthen you position.

I could offer an opinion on the clauses you have highlighted but really, you need these looking at properly.

[farout117]

Hi!


IMO this is just an ambigious throw away comment which doesn't imply any effect on the Supplier/Agent agreement. I'd be interested to hear what a legal professional could say about this type of clause.

I've had one recently that said, "if the services are not completed within the contract period, the parties may agree to extend the contract." In addition I also had the exclusion of any mutual obligation to offer or accept extensions, so wasn't bothered for that reason.


I've not had this before either. You've higlighted endeavours, but I believe the complete term "best endeavours" is what is important here. I'm not a legal person so you'll need to do your own research, but this differs from "reasonable endeavours" in commercial contracts.
I think that best endeavours means that the Agent must do everything possible to pay you, short of an action that would result in their financial ruin. Basically, this isn't an excuse to be lazy with payments, and they could still find themselves in court over late payments unless they could prove they were about to go bust.


Poor wording. They should really be talking about Professional Indemnity and/or Public liability with separate amounts insured for each.



Very weird. Don't like this at all as it could effectively leave you stuck in a notice period, but without promise of payment.
Sounds like the Agent wants it both ways - the lock-in of a notice period, and the option to terminate immediately without notice pay.
Alternatively they may not have an agreement with the client that mirrors the terms of the supplier agreement regarding notice periods and pay.

Is this a big name Agency? Might be worth a check on Companies House Webcheck for years operated, returns submitted, etc.

Hi CheeseSlice,

Thanks for your opinion. To reply to your post, yes this is one of the big agencies around, and it has a big rep so i do not think they could go bust anytime soon, but you never know. I will still get a legal opinion on this contract, however wanted some of your opinions on this.

[CheeseSlice]

Hi!

-- In the case the Service Provider sees itself unable to perform the Services within the time set out in the timetable, the Company shall agree with the Client which actions in this respect can be taken.

IMO this is just an ambigious throw away comment which doesn't imply any effect on the Supplier/Agent agreement. I'd be interested to hear what a legal professional could say about this type of clause.

I've had one recently that said, "if the services are not completed within the contract period, the parties may agree to extend the contract." In addition I also had the exclusion of any mutual obligation to offer or accept extensions, so wasn't bothered for that reason.

-- The Company shall use its best endeavours to ensure payment of these invoices within thirty days following receipt

I've not had this before either. You've higlighted endeavours, but I believe the complete term "best endeavours" is what is important here. I'm not a legal person so you'll need to do your own research, but this differs from "reasonable endeavours" in commercial contracts.
I think that best endeavours means that the Agent must do everything possible to pay you, short of an action that would result in their financial ruin. Basically, this isn't an excuse to be lazy with payments, and they could still find themselves in court over late payments unless they could prove they were about to go bust.

-- the Service Provider is obliged to subscribe a liability insurance covering damages and losses which can occur in connection with the Services for a minimum amount of xxx,xxx.

Poor wording. They should really be talking about Professional Indemnity and/or Public liability with separate amounts insured for each.

-- Should the Company serve notice upon the Service Provider but not require the Service Provider to perform any further
Services during the notice period, the Company shall only make payments once such payment is received from the Client.

Very weird. Don't like this at all as it could effectively leave you stuck in a notice period, but without promise of payment.
Sounds like the Agent wants it both ways - the lock-in of a notice period, and the option to terminate immediately without notice pay.
Alternatively they may not have an agreement with the client that mirrors the terms of the supplier agreement regarding notice periods and pay.

Is this a big name Agency? Might be worth a check on Companies House Webcheck for years operated, returns submitted, etc.

[farout117]

Hi All,

I have received a new contract for the new year, however there are some points which I have not seen in any other contract I have signed before and would like to know the opinion of you experienced contractors in here.

-- In the case the Service Provider sees itself unable to perform the Services within the time set out in the timetable, the Company shall agree with the Client which actions in this respect can be taken.

-- The Company shall use its best endeavours to ensure payment of these invoices within thirty days following receipt

-- the Service Provider is obliged to subscribe a liability insurance covering damages and losses which can occur in connection with the Services for a minimum amount of xxx,xxx.

-- Should the Company serve notice upon the Service Provider but not require the Service Provider to perform any further
Services during the notice period, the Company shall only make payments once such payment is received from the Client.

Thanks for your time and opinions