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un-usual clauses

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    un-usual clauses

    Hi
    been offered some short term work through a new client who use their own inhouse contract. There are 3 terms which concern me, which they wont really change, welcome some advice.
    =========
    4.1.****** Should the CONSULTANCY SERVICES carried out by the CONSULTANT during the CONTRACT, or within a period of twelve (12) months from the date of completion, be defective or otherwise unacceptable, the CONSULTANT is liable to take corrective action at its own cost to the value of re-performing the CONSULTANCY SERVICES which have been performed defectively.
    *
    ==================
    *
    12.***** INDEMNITY
    *
    The CONSULTANT shall indemnify and keep indemnified the COMPANY against any LOSSES suffered or incurred by the COMPANY by reason of any proceedings, claims or demands by any third party (including specifically, but without limitation, Her Majesty’s Revenue and Customs and any successor, equivalent or related body pursuant to the IR35 Legislation and/or any of the provisions of Chapter 9 and/or section 688A of the Income Tax (Earnings and Pensions) Act 2003 and/or any supporting or consequential secondary legislation relating thereto).
    *
    The COMPANY shall have no liability and the CONSULTANT agrees to defend, indemnify and hold harmless the COMPANY, its parents, affiliates and subsidiaries, its customers of any tier and its and their respective consultants, substitutes, subcontractors or assignees (hereinafter called the “Indemnitees”), from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities arising out of:
    *
    -injury to, sickness of, or death of the CONSULTANT’s STAFF or assignees arising out of or in connection with any appointment hereunder; and
    *
    - loss of, damage to, or loss of use of the CONSULTANT’s equipment or property (whether owned, hired, used by or in the custody of the CONSULTANT), including any personal belongings of the CONSULTANT’s STAFF.
    *
    - regardless of the cause or reason therefore and regardless of the negligence or breach of duty (statutory or otherwise) of the Indemnitees.
    *****************************
    - any claims, demands, legal costs, causes of action relating to damages for breach of CONTRACT.
    *
    Notwithstanding any provision to the contrary, neither party shall be liable to the other under contract, in tort or otherwise at law, in respect of any indirect or consequential loss or damage, including but not limited to loss of profit, loss of revenue, loss of production, loss of use, loss of rights from untimely completion, and business interruption arising or alleged to arise out of either party’s failure to properly carry out its obligations under this CONTRACT.
    =========
    *
    15.***** AUDIT
    *
    During the course of this CONTRACT and for a period ending three (3) years thereafter the representatives of the COMPANY shall be granted access at all times to any premises of the CONSULTANT and shall have the right to audit at all reasonable times and, upon request, take copies of all the CONSULTANT's records (including data stored on computers), books, personnel records, accounts, correspondence and similar data relating to all invoiced charges made by the CONSULTANT to the COMPANY and any provision of this CONSULTANCY SERVICES under which the CONSULTANT has obligations, the performance of which is capable of being verified by audit.* The CONSULTANT shall co-operate fully with the COMPANY.
    *
    ================

    Never seen these clauses in all my years of contracting with various other clients. Welcome any feedback please.

    Thanks

    #2
    Get a solicitor to look the contract over or turn it down.
    "You’re just a bad memory who doesn’t know when to go away" JR

    Comment


      #3
      Get a lawyer and ask them to check it - its not an IR35 review you want here but a "is this legal or sane check"..
      merely at clientco for the entertainment

      Comment


        #4
        Originally posted by diesel View Post
        Hi
        been offered some short term work through a new client who use their own inhouse contract. There are 3 terms which concern me, which they wont really change, welcome some advice.
        =========
        4.1.****** Should the CONSULTANCY SERVICES carried out by the CONSULTANT during the CONTRACT, or within a period of twelve (12) months from the date of completion, be defective or otherwise unacceptable, the CONSULTANT is liable to take corrective action at its own cost to the value of re-performing the CONSULTANCY SERVICES which have been performed defectively.
        *
        ==================
        *
        12.***** INDEMNITY
        *
        The CONSULTANT shall indemnify and keep indemnified the COMPANY against any LOSSES suffered or incurred by the COMPANY by reason of any proceedings, claims or demands by any third party (including specifically, but without limitation, Her Majesty’s Revenue and Customs and any successor, equivalent or related body pursuant to the IR35 Legislation and/or any of the provisions of Chapter 9 and/or section 688A of the Income Tax (Earnings and Pensions) Act 2003 and/or any supporting or consequential secondary legislation relating thereto).
        *
        The COMPANY shall have no liability and the CONSULTANT agrees to defend, indemnify and hold harmless the COMPANY, its parents, affiliates and subsidiaries, its customers of any tier and its and their respective consultants, substitutes, subcontractors or assignees (hereinafter called the “Indemnitees”), from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities arising out of:
        *
        -injury to, sickness of, or death of the CONSULTANT’s STAFF or assignees arising out of or in connection with any appointment hereunder; and
        *
        - loss of, damage to, or loss of use of the CONSULTANT’s equipment or property (whether owned, hired, used by or in the custody of the CONSULTANT), including any personal belongings of the CONSULTANT’s STAFF.
        *
        - regardless of the cause or reason therefore and regardless of the negligence or breach of duty (statutory or otherwise) of the Indemnitees.
        *****************************
        - any claims, demands, legal costs, causes of action relating to damages for breach of CONTRACT.
        *
        Notwithstanding any provision to the contrary, neither party shall be liable to the other under contract, in tort or otherwise at law, in respect of any indirect or consequential loss or damage, including but not limited to loss of profit, loss of revenue, loss of production, loss of use, loss of rights from untimely completion, and business interruption arising or alleged to arise out of either party’s failure to properly carry out its obligations under this CONTRACT.
        =========
        *
        15.***** AUDIT
        *
        During the course of this CONTRACT and for a period ending three (3) years thereafter the representatives of the COMPANY shall be granted access at all times to any premises of the CONSULTANT and shall have the right to audit at all reasonable times and, upon request, take copies of all the CONSULTANT's records (including data stored on computers), books, personnel records, accounts, correspondence and similar data relating to all invoiced charges made by the CONSULTANT to the COMPANY and any provision of this CONSULTANCY SERVICES under which the CONSULTANT has obligations, the performance of which is capable of being verified by audit.* The CONSULTANT shall co-operate fully with the COMPANY.
        *
        ================

        Never seen these clauses in all my years of contracting with various other clients. Welcome any feedback please.

        Thanks
        The references to consultant do not read like a b2b contract. And the terms do seen onerous. The audit terms look off putting.

        How much do you want the work?

        Comment


          #5
          I'm only in odd part time work right now, so it would be a good boost for a few months.

          Where is best to get a contract reviewed I terms of legal aspects? (I'm an IPSE member but they want £145 for 5 days or £345 +VAT - latter I cannot pay).

          Also the same client wont pay full 20% VAT on expenses if I incur any cost where VAT has been paid!

          Comment


            #6
            Originally posted by diesel View Post
            I'm only in odd part time work right now, so it would be a good boost for a few months.

            Where is best to get a contract reviewed I terms of legal aspects? (I'm an IPSE member but they want £145 for 5 days or £345 +VAT - latter I cannot pay).

            Also the same client wont pay full 20% VAT on expenses if I incur any cost where VAT has been paid!
            The last point is the least of your worries.

            They want you as a self employed person but under the cloak of your company.
            "You’re just a bad memory who doesn’t know when to go away" JR

            Comment


              #7
              Originally posted by SueEllen View Post
              The last point is the least of your worries.

              They want you as a self employed person but under the cloak of your company.
              Agree, unlikely I will incurring any business travel expenses with this client, unless it moved to a longer term contract.

              any recommendations where one can get a contract reviewed for Legality aspects?

              Comment


                #8
                Sounds like the first point potentially leaves you on the hook for any required bug-fixes for a year after leaving, and the third means that you are to let their auditors pop into your house (err, I mean business premises) at any point they fancy in the next three years?

                I doubt either would ever come to pass, but personally I'd steer well clear of it.

                Comment


                  #9
                  £145 for a sensible review is probably not a bad outlay if it secures you a multi-thousand pound contract (against which you can reclaim the cost anyway). And with solicitors' fees being what they are I doubt you will find anything cheaper.

                  The VAT is largely irrelevant if YourCo does all the paying directly, i.e. not by you paying and reclaiming it, since it all works out level in due course.
                  Blog? What blog...?

                  Comment


                    #10
                    With respect to fixing bugs. I spend a lot of my time investigating problems. It is easy to distinguish a bug caused by you as opposed to a customer's own problem or obvious new requirement which you can then charge out for. I would therefore try and get something in there to that effect, i.e. you'll sort out bugs but you will be paid for unnecessary call outs.
                    I'm alright Jack

                    Comment

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