Tech & Work

Would you sign this consulting agreement?

Read an Exclusive Right to Represent agreement that an IT consultant received from a recruiting firm. He did not sign it. Would you have signed this agreement if you needed work?

TechRepublic member James Huffman emailed me about a recruiting firm that he was considering engaging for their services. He had told them the rate he expected for work in the Dallas, Texas area. The recruiter came back to him with a rate $5 per hour lower than what he had stated for 1099 work, or $10 lower for W-2 — and they attached an agreement for Jim to sign: an Exclusive Right to Represent. He did not sign the agreement, which read as follows (the recruiting firm's name has been removed and replaced with xxxx):

This Agreement is dated ______________________ .  The undersigned (also known as "Consultant") including Third Party Provider (also known as "Third Party Vendor"), hereby appoint xxxx, ("Company") as the Third Party Vendor and Consultant's Recruiter and grants Recruiter the exclusive right to represent the Third Party Vendor  and Consultant in order to facilitate and coordinate efforts to locate job placement opportunities. This Exclusive Authorization shall commence on the date of this Agreement and terminates at midnight, _____________________________ .

Recruiter agrees to use its best efforts to locate a position satisfactory to the Consultant and Third Party Vendor. Recruiter's service will include solicitation, screening, and analysis of job opportunities and, if Recruiter deems necessary, the solicitation of other Recruitment firms with relevant job placement opportunities available. Recruiter will use its best efforts to obtain complete details on all contemplated, and/or available placements which, in Recruiter's opinion, will be the most suitable for the undersigned's skills.

The Consultant and Third Party Vendor, will, in turn, refer all inquiries and offerings received by the Consultant or Third Party Vendor, whether from principles, other Recruiters, agents, or any other person to Recruiter. All negotiations shall be conducted solely by Recruiter and under Recruiter's direction unless agreed otherwise. The final job selection is subject to approval by the Consultant and Third Party Vendor.

It is agreed that Consultant and Third Party Vendor, during the course of Recruiters placement efforts, may come to develop certain relationships with Recruiter's clients and/or vendors which may lead to an awareness of other services desired by Recruiter's clients and/or vendors. Consultant and Third Party Vendor acknowledge that but for the exposure provided by Recruiter, Consultant and Third Party Vendor would not be aware of Recruiter's clients and/or vendors. Therefore, during the period of time in which Consultant and Third Party Vendor are being marketed for job opportunities by Recruiter and for a period of one year thereafter, Consultant and Third Party Vendor hereby agree and covenant not to approach, communicate or engage Recruiter's clients and/or vendors directly or indirectly through any third-party in an effort to provide Recruiter's clients and/or vendors like services. Consultant and Third Party Vendor further agree that during the term of this Agreement and for a period of one year after placement, Consultant and Third Party Vendor will not solicit, enter into any agreement with, or otherwise assign personnel to Company's clients and/or vendors.

Consultant and Third Party Vendor further agree that they will not approach the Recruiter's clients and/or vendors directly or indirectly for any employment opportunities, negotiations, or subsequent communications for twelve months (12) following the above period of representation by xxxx.

The Consultant and Third Party Vendor hereby acknowledge receipt of a copy of this Agreement.   By signing this Agreement Consultant and Third Party Vendor understand and agree to the terms of this Agreement.  Consultant and Third Party Vendor also acknowledge that this agreement does not confer any duty owed to Consultant or Third Party Vendor by Recruiter and is in no way a guarantee of employment.

The intent of the agreement is to insure that our consultant James doesn't make contact with a prospect, kill the deal, and then resurrect it behind the recruiter's back in order to avoid their fees. That's reasonable enough, but in my opinion the language is far too broad. This agreement not only bars the consultant from seeking work with the company to which the recruiting firm has introduced them, but also any other company that has been a client or vendor to the recruiter. That could conceivably include every potential customer in the area.

Some people might say that the recruiting firm is just protecting its interests. Maybe they wouldn't go after people who didn't intentionally try to pull an end-around on them. No doubt their lawyers were trying to make the language as broad as possible so they wouldn't have trouble going after the egregious offenders. But are you willing to trust them on that?

The terms are so broad that they might not hold up in court — the court could consider them an unreasonable restriction on the consultant's ability to earn a living. Personally, I wouldn't want to be the one to find out.

The only way I would sign this agreement would be if the recruiter appeared to be my only hope. Is that what enables recruiters to get these kinds of agreements with their clients? Are people that bad off? Or is it rather a case of signing without reading — of assuming that the terms must be reasonable or they wouldn't ask for them? How do you spell naive?

On second thought, there is no way that I'd sign this agreement. I can do well enough on my own without tying my career to that ship's anchor, and I bet most anyone else could, too.

How about you?


Chip Camden has been programming since 1978, and he's still not done. An independent consultant since 1991, Chip specializes in software development tools, languages, and migration to new technology. Besides writing for TechRepublic's IT Consultant b...

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