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What are some effective ways to include a non-solicitation clause in your contract?

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A non-solicitation clause is a contract provision that prevents one party from soliciting or hiring the employees or customers of another party for a certain period of time. It can be useful to protect your business interests, especially if you have a valuable workforce or client base that you want to retain. However, drafting and enforcing a non-solicitation clause can be tricky, as you need to balance your rights with the other party's freedoms and the legal standards of your jurisdiction. Here are some effective ways to include a non-solicitation clause in your contract.

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Clearly define the scope:

Specifying who and what is covered by your non-solicitation clause helps avoid ambiguity. For instance, include which employees or clients are off-limits and for how long, making the clause more enforceable.
Include a severability clause:

Inserting a severability clause means if one part of your contract is invalid, the rest still stands. This can save your agreement from falling apart if the non-solicitation clause is ever legally challenged.

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1 Define the scope clearly

The first step to include a non-solicitation clause in your contract is to define the scope of the restriction clearly and reasonably. You need to specify who is covered by the clause, what activities are prohibited, and for how long the clause will apply. For example, you can limit the clause to employees or customers who have a direct relationship with the other party, who have access to confidential information, or who have specialized skills or knowledge. You also need to state what constitutes solicitation, such as direct or indirect contact, communication, or inducement. Finally, you need to set a reasonable duration for the clause, such as six months or one year, depending on the nature of your business and the market.

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Hiruni Perera

Attorney-at-Law | Corporate Counsel | Contract Specialist
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A non-solicitation clause, commonly found in employment agreements, prevents employees from poaching clients, customers etc of their employer for personal gain after the employment comes to an end. Similarly, in arrangements where a company engages employees from third-party service providers, a clause can be included to say that neither party can solicit the other’s employees during the agreement and for a specified post-term. An exception could state that if an employee applies via a publicly advertised position, the clause doesn’t apply. Such exception will help prevent unwarranted breach claims, promoting a balanced approach.

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Noemi A.

Head of Legal by day. Legal community builder and moderator by night.
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Consider of you really need this clause and the advantages of having it in are higher than the costs of compliance with a non solicitation clause. After this, think and define narrowly who should the non solicitation clause apply to. Very narrow definition would be for key personnel defined in the agreement.

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2 Consider the geographic area

Another factor to consider when including a non-solicitation clause in your contract is the geographic area where the clause will apply. Depending on your industry and the location of your employees or customers, you may want to restrict the other party from soliciting or hiring them within a certain region, state, or country. However, you need to be careful not to make the clause too broad or vague, as it may be considered unenforceable by a court. You need to justify the geographic scope based on the legitimate interest of your business and the potential harm of the other party's actions.

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Noemi A.

Head of Legal by day. Legal community builder and moderator by night.
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In some jurisdictions adding a non-solicitation clause is not legal or it requires you to comply with strict rules to balance out the rights of the employees affected. Check with a lawyer in the jurisdiction that agreement applies to.

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3 Include a severability clause

A severability clause is a contract provision that states that if any part of the contract is found to be invalid or unenforceable by a court, the rest of the contract will remain in effect. This can be helpful to include a non-solicitation clause in your contract, as it can prevent the entire contract from being voided if the non-solicitation clause is challenged or invalidated. A severability clause can also allow the court to modify or limit the non-solicitation clause to make it more reasonable and enforceable, rather than striking it out completely.

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Jay Monga

Full Stack Engineering Manager at Accenture.
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Non-solicitation clauses prevent employees or contractors from poaching clients or team members. However, broad restrictions may face legal scrutiny. A severability clause allows the overall contract to survive should a specific clause like non-solicitation be disputed. The questionable clause can be narrowly revised rather than nullifying the entire agreement. For non-solicitation clauses specifically, a severability clause permits the court to reasonably modify restrictions instead of wholesale removal. This maintains critical protections for the business while demonstrating good faith flexibility.

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4 Negotiate in good faith

The final step to include a non-solicitation clause in your contract is to negotiate in good faith with the other party. You need to explain the rationale and the benefits of the clause, and address any concerns or objections that the other party may have. You also need to be flexible and willing to compromise on some aspects of the clause, such as the scope, the duration, or the geographic area. By negotiating in good faith, you can increase the chances of reaching a mutually acceptable agreement that respects both parties' interests and rights.

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5 Here’s what else to consider

This is a space to share examples, stories, or insights that don’t fit into any of the previous sections. What else would you like to add?

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What are some effective ways to include a non-solicitation clause in your contract?

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2

3

4

5

1 Define the scope clearly

2 Consider the geographic area

3 Include a severability clause

4 Negotiate in good faith

5 Here’s what else to consider

Contract Negotiation

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What are some effective ways to include a non-solicitation clause in your contract?

1

2

3

4

5

1 Define the scope clearly

2 Consider the geographic area

3 Include a severability clause

4 Negotiate in good faith

5 Here’s what else to consider

Contract Negotiation

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