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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3695
Experience:  Solicitors 2 years plus PQE
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I have a draft contract which seems fine (as fine as any

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Hi, I have a draft contract which seems fine (as fine as any contract can be), but there is one phrase in it which has me worried, wish to query, as it never appeared in previous contract from the same person (limited company).
Basically phrase I am querying says... "The Sub-Consultant shall use its best endeavours to be available after the 6 month period if XXX requires further services, for the avoidance of doubt a new contract will be entered into for any work after the initial 6 month period covered by this Agreement."
XXX would be my client (defined earlier in contract) and Sub-Consultant is defined earlier as my own company.
To myself with no legal background it reads like an enforcement that I need (with no regards ***** ***** after the current 6 month contract ended) to enter into a new contract, regardless of what any new contract would say, with no duration limit on how long I would have to wait for any such contract. Given past track record of waiting months on end for the client of my client (client chain) to get their act together and award his current contract, I don't want to get into a situation again of waiting months on end earning very little (aswell as skills going a bit rusty) for another possible contract if I should accept the current contract been offered for 6 months (potentially too much 'dead time'). Also of course if I read that phrase correctly, and if it is basically saying that I have to enter into a new contract, I would be mad to do so, as of course any new contract could state anything or would have to spend weeks on end neg. a new contract I might not want to enter into. I wonder if such a term/phrase is even legal.
My basic question is am I right to be worried about this phrase in the contract, is my assessment correct, and if not, what does the above phrase actually legally mean.
Thanks.
Submitted: 2 years ago.
Category: Law
Expert:  Alex J. replied 2 years ago.
Hi. Thank you for your question and welcome. My name is ***** ***** I will assist you. This clause basically says you will do everything you can to enter into a further agreement with this person for a further six months. The key issue is use of the word "best" endeavours. A best endeavours obligation is onerous and means you could potentially have to cancel other commitments to enter into this further agreement or spend time and money that is outside the commercial sense of the arrangement. If this clause is to remain I would insist that the word "best" is replaced with "reasonable" endeavours. Both best and reasonable endeavour obligations are subject of case law defining what is required - reasonable means you would not have to drop absolutely everything to make the 6 month contract happen. Kind regards AJ
Customer: replied 2 years ago.

Thanks Alex for replying so just to confirm that if I accepted this term, I legally would have to potentially wait months (if ever) after the 6 months contract, also to me it reads like I would have to accept ANY contract that he then subsequently offered regardless of what the new contract said. I think I will try to get this phrase removed or seriously reworded, maybe having a time limit added to it.

It was my and his understanding that the reference to 6 month period was the period of the existing contract.

I was wondering if this sounds like a good alternative ?

The Sub-Consultant shall use reasonable endeavours to be available after the 6 month period if XXX requires further services, for up to 2 months after successful completion of the contract. For the avoidance of doubt a new contract will be offered for any work after the initial 6 month period covered by this Agreement."

But I think I will press for the whole phrase to be removed first.

Expert:  Alex J. replied 2 years ago.
Hi, Thank you. Essentially it means you have to be on hold for that period and will have to try all avenues necessary to agree an additional six month contract.The alternative seems sensible - I have amended it slightly below: The Sub-Consultant shall use reasonable endeavours to make her/himself available after the 6 month period if XXX requires further services, for a period of up to 2 months after successful completion of the contract. For the avoidance of doubt a new contract will be mutually agreed between the parties for any additional work or services supplied after the initial 6 month period covered by this Agreement."Just try and avoid best endeavour obligations, they are onerous and are the subject of much debt as to when your best endeavour actually ceases.Kind regards AJ
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