Non-Solicitation Agreements: What You Need to Know

Understanding Non-Solicitation Agreements

Non-solicitation agreements, also known as non-solicit or non-interference agreements, are legally binding contracts that establish specific restrictions on individuals or entities regarding solicitation activities involving a business’s clients, customers, or employees. Such agreements may be drafted as a stand-alone contract, or they may be part of a larger employment contract, partnership agreement, or other agreement that addresses various aspects of a business relationship.

Non-solicitation agreements are versatile tools appropriate for a range of industries and business contexts, but they tend to be more common in sales or service-oriented businesses, especially those dependent on a limited customer base. In most cases, they prevent former employees, independent contractors, or partners from selling a company’s clients or customers after leaving the company or ending their association with the business. However, they can also be used to prevent these individuals from luring away key vendors or suppliers.

While not as common, non-solicitations may also be leveraged to prevent the use of client information or client lists shared during negotiations for a sale, acquisition or merger, to prevent a vendor or customer from poaching key employees, or to limit suppliers from selling to a company’s competitors.

Although they share some commonalities with non-compete and confidentiality agreements, non-solicitations have a unique focus. Non-compete agreements primarily restrict an individual's ability to work for competitors in a specified geographic area or industry, while confidentiality agreements emphasize the protection of sensitive company information. Non-solicitation agreements, on the other hand, primarily focus on preventing the poaching of employees, customers, or clients.

Types of Non-Solicitation Agreements

Employee Non-Solicitation Agreements

Employee non-solicitation agreements are specifically crafted to protect a company's investment in its employees. These agreements aim to prevent former employees from soliciting current employees, which can disrupt business operations and revenue. This is particularly critical in industries where employee expertise is pivotal.

An effective employee non-solicitation agreement should include the duration of the restriction, the geographical scope, and the potential consequences for violations. For instance, a software company may include a solicitation clause prohibiting a former employee from soliciting current engineers for a competing firm within a 100-mile radius for one year.

Employee non-solicitation agreements have enforceable restrictions that are generally precise and specific. They may prohibit former employees from directly recruiting current employees, reaching out to current clients, or even indirectly soliciting through a third party.

Customer and Client Non-Solicitation Agreements

Customer and client non-solicitation agreements serve to safeguard a company's valuable relationships with its clientele. Such professional relationships often take years to establish, and losing a client or customer to a former employee or business partner can be detrimental to the overall health of the company. For example, a marketing agency may utilize this type of agreement to prevent former employees from approaching clients they had serviced during their tenure.

Provisions in a customer or client non-solicitation agreement should clearly stipulate the conditions under which solicitation is prohibited. They may include clauses that restrict former employees from engaging with or approaching clients they previously served during their employment.

Vendor and Supplier Non-Solicitation Agreements

In industries dependent on reliable vendors and suppliers, companies utilize these agreements to ensure the continuity of these relationships. Losing a key supplier to a former employee's new venture can disrupt operations and profitability.

These agreements may contain clauses that prevent former employees from trying to divert suppliers with whom they had contact during their employment. In supplier-dependent industries, the use of such non-solicitation agreements ensures suppliers will continue to engage with the company and maintain consistent service, thus maintaining the stability of the business’s crucial supply chain.

Key Provisions of a Non-Solicitation Agreement

When drafting a non-solicitation agreement, it’s essential that its key provisions are carefully structured to define the terms and conditions of the agreement, ensuring clarity and enforceability while safeguarding the company's interests.

Parties to the Agreement
A non-solicitation agreement should clearly identify the parties subject to its terms. This section should include the names and contact information of both the party imposing the restriction (often the company) and the party subject to the restriction.
Definition of Non-Solicitation
The agreement should clearly specify what constitutes solicitation, which may include direct or indirect recruitment, enticement, or any action that aims to persuade the restricted party's clients, customers, employees, or business partners to terminate their relationship.
Duration of the Agreement
The agreement should establish a specific timeframe during which the non-solicitation agreement remains in effect. The duration should be reasonable and proportionate to the legitimate business interests it seeks to protect. Common durations range from one to three years, but this can vary based on industry, position, and other factors.
Geographic Scope
A non-solicitation agreement should also define the geographical area or scope where the non-solicitation restrictions apply. This section should be clear and relevant to the company's business operations. Striking a balance between protecting the company's interests and allowing the restricted party to seek employment or clients outside the specified area is crucial.
Covered Parties
The agreement should specify which individuals or categories of individuals are protected by the non-solicitation provision. Commonly, this includes all current employees, clients, or business partners. It may also extend to former employees who worked for the company within a specified time frame.
Permissible Exceptions
The agreement may outline specific exceptions to the non-solicitation restrictions. These exceptions could include situations where the restricted party's solicitation is authorized by the company, or when the solicitation results from general job postings or public job advertisements.
Remedies and Consequences for Breach
The potential consequences and remedies in the event of a breach should be clearly spelled out in the non-solicitation agreement. Remedies may include injunctive relief, monetary damages, or a combination of both. This section should specify how damages will be calculated in the event of a breach.
Notice Requirement
In some cases, the agreement may include a provision requiring the restricted party to provide notice to the enforcing party before accepting employment or entering into a business relationship with a new organization. The notice period allows the company to assess the potential solicitation risks associated with the new role.
Severability Clause
A severability clause is essential to ensure that if any part of the agreement is deemed unenforceable, the remaining provisions remain valid and in effect. This clause helps protect the overall integrity of the agreement.
Governing Law and Venue
The agreement should specify the jurisdiction whose laws will govern the agreement and the appropriate venue for legal disputes, should any arise. This ensures that both parties understand the legal framework governing the agreement.
Acknowledgment and Acceptance
The agreement should include a section where the restricted party acknowledges their understanding of the agreement and their commitment to abide by its terms. This section often includes space for the restricted party's signature, the date of acceptance, and may require a witness or notary.
Confidentiality and Non-Disclosure
In some cases, a non-solicitation agreement may include clauses related to confidentiality and non-disclosure to protect sensitive information, trade secrets, or intellectual property, especially if the solicitation could involve sharing proprietary information.

Critical Legal Considerations for Companies

Companies using non-solicitation agreements must carefully navigate various legal considerations to ensure these contracts are enforceable and compliant with applicable laws. Some of these key legal considerations include:

Legality and Enforceability
Non-solicitation agreements must be legal and enforceable in the relevant jurisdiction. Laws governing these agreements can vary depending on the state, so it's crucial to consult with legal counsel to ensure compliance with federal, state, and local laws.
Reasonableness of Restrictions
Courts often assess the reasonableness of non-solicitation agreements. This includes evaluating the agreement's scope, duration, and geographic limitations. The restrictions should be no broader than necessary to protect the company's legitimate interests, such as client relationships or trade secrets.
Consideration
For an agreement to be legally binding, both parties must receive something of value (consideration) in exchange for their commitments. For example, when implementing non-solicitation agreements with existing employees, offering continued employment or additional compensation can serve as valid consideration.
Public Policy
Non-solicitation agreements that infringe on public policy or unreasonably restrict an individual's ability to pursue their chosen career are less likely to be enforceable. For instance, courts may scrutinize agreements that impose indefinite non-solicitation obligations.
Specificity and Clarity
The language used in the agreement should be specific and clear. It should define the prohibited activities, the parties subject to the restriction, and the circumstances under which the restrictions apply. Ambiguities can lead to disputes and hinder enforceability.
Not Overly Broad
The agreement should not be overly broad in its prohibitions. For example, a non-solicitation agreement should not prevent an individual from engaging in any form of competition or seeking employment outside the geographic area and time frame specified.
Informed Consent
It's essential that the restricted party gives their informed and voluntary consent to the non-solicitation agreement. They should understand the terms and implications of the agreement before signing. This is particularly crucial when implementing agreements with employees.
Review by Legal Counsel
Companies should seek the expertise of legal counsel when drafting, reviewing, and implementing non-solicitation agreements. Legal professionals can help ensure that the agreement is compliant with applicable laws and effectively protects the company's interests.
Consistency with Other Agreements
It’s essential to ensure that the non-solicitation agreement does not conflict with other existing contracts, such as non-compete or confidentiality agreements. Consistency and clarity across all agreements are important for legal compliance.
Record-Keeping
Companies should maintain records of all signed non-solicitation agreements, including acknowledgment and acceptance by the restricted parties. Proper record-keeping can be crucial if disputes arise.
Periodic Review
Periodically reviewing and updating non-solicitation agreements will ensure they remain compliant with changing laws and business needs.

When leveraged thoughtfully, non-disclosure agreements can prove invaluable to safeguarding a company’s competitive edge.

If you need assistance drafting, reviewing, or enforcing a non-disclosure agreement, Axiom offers access to the world's deepest bench of on-demand legal talent. We have hundreds of contract lawyers, labor and employment lawyers, and paralegals with extensive experience in a broad range of industries and sectors that can help save you time and money.

Explore our network of attorneys or contact us to find experienced contracts lawyers and L&E lawyers.

Axiom is not a law firm and does not provide legal advice. Our clients' legal teams supervise the legal work of the Axiom lawyer.

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