Two years ago, a placement company found a position for me. I signed a contract with this company. This contract is based on a version of NACCB contract agreement (1998, 1995) with only changes of related people names and company names. The beginning of this contract is:
The terms of this Agreement are based upon an Agreement Prepared by The National Association of Computer Consultant Businesses and are subject to the copyright of that Association. Any use of any language in this agreement by anyone who is not a member in good standing of that Association is prohibited and will subject the user to damages as well as other civil penalties.
This placement company is NOT a member of NACCB and is bad. Both the client I work for and I do not like this company and the client wants to do a direct contract with me.
I would like to know whether the contract between me and the placement company is legal and can be used as a basis against me for a finder fee to the placement company.
Please note that the placement company is NOT a member of NACCB.
From what you say, the placement company violated NACCB's copyright on the contract language and may owe NACCB damages. That issue doesn't concern you and doesn't affect your obligations under the contract.
However, I'm not a lawyer, so I suggest you see one.
At worst the company that wants to offer you a contract of their own will have to pay your placement company a fee to free you of your contractual obligation to not seek employment with one of their customers, at best all such clauses are illegal and you can just cancel your contract and sign one with the company you work at. It's even possible that the illegal use of a contract from another company as a template (thus violating intellectual property law) makes your entire contract with the placement company null and void.
Indeed, check a lawyer with relevant experience (or better yet, let the company do it and pay the fees ) to see what your options are.
Sometimes contracts also state that "if any part of this contract is found to be invalid, the rest is still binding".
In other words, one (or even several) bogus clauses do not neccesarily invalidate the rest of it.
Your best bet is to have a lawyer review it. And get an idea how much it would cost to fight it. If the fee is $1k, but your lawyer will bill you 10 hours at $200/hour... it might be cheaper to pay them off.
it's not fair, but that's how it works quite often.
There are only two hard things in computer science: cache invalidation, naming things, and off-by-one errors
Joined: Mar 13, 2004
It's even possible that the illegal use of a contract from another company as a template (thus violating intellectual property law) makes your entire contract with the placement company null and void.
I think that's a long shot.
The reuse of copyrighted contract language is so common among lawyers that a rule like that would create chaos. If I sell my house using a Xerox copy of a copyrighted legal form, will any court undo the closing for that reason?
If the contract at issue does not contain a liquidated damages clause specifying the penalty for leaving, the determination of the amount of damages is a matter for negotiations or, if necessary, the courts.
No Western court will order you stay stay on the job unless you are unique, like a name entertainer or artist. I don't know about the courts in other parts of the world. These are reasons you need to consult with a lawyer.
... check a lawyer with relevant experience (or better yet, let the company do it and pay the fees ) to see what your options are.
I think it's best to get your own lawyer to protect your own interests. You may get your new employer to reimburse you for the fees as a sign-on bonus.