Unusual Clause on Contract Unusual Clause on Contract
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  1. #1

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    Default Unusual Clause on Contract

    Hi,

    Has anyone experienced unusual clause on your contract with the agency, the first one was about the fees where they are stating it includes the VAT and expenses/disbursements authorised by the client.

    "means the fees payable to the Contractor for the provision of the Contractor Services as set out in the Schedule. For the avoidance of doubt, the Contractor Fees include the agreed fees for the Contractor Services, any expenses or disbursements authorised by the Client and VAT charged at the applicable rate;"

    As far as I know it should be daily rate + VAT (exclusive) and expenses. (Seems like they're trying to pull a fast one?)

    The other one is regarding Intellectual property rights, where looks like for work developing even out of working hours belongs to the client.

    "means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared during the Assignment by the Contractor and/or the Contractor Staff any third party to whom the provision of the Contractor Services is assigned or sub-contracted, whether or not made, originated or developed during normal working hours."

    And last one is the agency may terminate without notice if:

    "The Contractor is unable to perform the Contractor Services for 5 days or more; or"

    I will have a chat with the agency about these and try have them change.

    Any advice on this or anyone has experience arguing contract clauses would be great (its my first time contracting). And also if there is another "tricks" I should watch out for in contracts etc from your experiences?

    Also I have not signed the contract

  2. #2

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    Quote Originally Posted by eds12 View Post
    "means the fees payable to the Contractor for the provision of the Contractor Services as set out in the Schedule. For the avoidance of doubt, the Contractor Fees include the agreed fees for the Contractor Services, any expenses or disbursements authorised by the Client and VAT charged at the applicable rate;"

    As far as I know it should be daily rate + VAT (exclusive) and expenses. (Seems like they're trying to pull a fast one?)
    That's what the clause is saying. You can charge expenses if the Client approves them.

    Quote Originally Posted by eds12 View Post
    The other one is regarding Intellectual property rights, where looks like for work developing even out of working hours belongs to the client.

    "means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared during the Assignment by the Contractor and/or the Contractor Staff any third party to whom the provision of the Contractor Services is assigned or sub-contracted, whether or not made, originated or developed during normal working hours."
    This is normal. Whatever you create for the Client, belongs to the Client. It is not yours.


    Quote Originally Posted by eds12 View Post
    And last one is the agency may terminate without notice if:

    "The Contractor is unable to perform the Contractor Services for 5 days or more; or"
    Odd without context but I suspect that you could take a couple of weeks off for a holiday if you inform the Client of the days you will be unavailable.

    Quote Originally Posted by eds12 View Post
    Any advice on this or anyone has experience arguing contract clauses would be great (its my first time contracting). And also if there is another "tricks" I should watch out for in contracts etc from your experiences?
    Yes, I pay a solicitor to review all contracts. Free advice from an internet forum is worth exactly what you pay for it.

  3. #3

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    Quote Originally Posted by ladymuck View Post
    That's what the clause is saying. You can charge expenses if the Client approves them.

    This is normal. Whatever you create for the Client, belongs to the Client. It is not yours.

    Odd without context but I suspect that you could take a couple of weeks off for a holiday if you inform the Client of the days you will be unavailable.

    Yes, I pay a solicitor to review all contracts. Free advice from an internet forum is worth exactly what you pay for it.

    Thanks for the reply. Just to clarify the contract has the definition:

    Contractor Fees - means the fees payable to the Contractor for the provision of the Contractor Services as set out in the Schedule. For the avoidance of doubt, the Contractor Fees include the agreed fees for the Contractor Services, any expenses or disbursements authorised by the Client and VAT charged at the applicable rate;

    Where the contractor fee they have noted later on the value of the daily rate as we agreed. However my concern is that the definition suggests that it includes the VAT (inclusive), rather than daily rate + VAT.

    Regarding the Intellectual property rights, so it is common for the rights to go to the clients regardless of whether it was during the working hours or outside?

    To provide more context on the last one:

    "9.2. Notwithstanding clauses 9.1 and 9.3 of this Agreement, the Employment Business may without notice and without liability instruct the Contractor to cease work on the Assignment at any time, where:"

    - "9.2.11. the Contractor is unable to perform the Contractor Services for 5 days or more; or"

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    What do clauses 9.1 and 9.3 say? You can't cherry pick that clause without reading it in context of the two it refers to. It's most likely saying you can't just not turn up, you have to communicate any absences. Just need to be mindful of the wording to avoid any accusations of being under SD&C.

    Regarding IP, it's essentially saying that it doesn't matter when you do work for the client, any work you do for the client belongs to them. Just don't work unpaid overtime for them if you're concerned about it.

    The contractor fees part is a defining term that is a roll up of the list of items they mention. Re-read the sentence again.

    Get QDOS, or B&C to review the terms that might actually cost you money (i.e. protections for IR35).

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    - "9.2.11. the Contractor is unable to perform the Contractor Services for 5 days or more; or"
    So if you break something/go off with stress/long term sickness and you aren't going to be able to work for over a week they can bin you.

    It doesn't mean holidays. These are agreed with both parties. It's unforeseen stuff where the client is left in the lurch.
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    Quote Originally Posted by eds12 View Post
    Hi,

    Has anyone experienced unusual clause on your contract with the agency, the first one was about the fees where they are stating it includes the VAT and expenses/disbursements authorised by the client.

    "means the fees payable to the Contractor for the provision of the Contractor Services as set out in the Schedule. For the avoidance of doubt, the Contractor Fees include the agreed fees for the Contractor Services, any expenses or disbursements authorised by the Client and VAT charged at the applicable rate;"

    As far as I know it should be daily rate + VAT (exclusive) and expenses. (Seems like they're trying to pull a fast one?)
    They're not trying to pull a fast one.
    Although lumping disbursements and expenses together like that is misleading as they have different VAT treatment. A good rule of thumb is to forget disbursements as you're almost certainly not going to be doing them.

    Just make sure you add VAT on your expenses (even train fares and other non-VAT items).

    https://www.gov.uk/guidance/vat-cost...omers#overview
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    RE@: the 5 days absence.

    Had the same clause in mine. Had it reworded to add "where notification in advance has not been provided under <section related to holidays>"

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    Quote Originally Posted by eds12 View Post
    Contractor Fees - means the fees payable to the Contractor for the provision of the Contractor Services as set out in the Schedule. For the avoidance of doubt, the Contractor Fees include the agreed fees for the Contractor Services, any expenses or disbursements authorised by the Client and VAT charged at the applicable rate;

    Where the contractor fee they have noted later on the value of the daily rate as we agreed. However my concern is that the definition suggests that it includes the VAT (inclusive), rather than daily rate + VAT.
    It says that fees includes fees for providing the services, any authorised expenses, any authorised disbursements and any applicable VAT.

    It does not suggest anywhere that your fees are a day rate including VAT.
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