Friday, March 18, 2011

March 19, 2011 - NON-COMPETITION AGREEMENT (example)



THIS AGREEMENT is entered into this _____ day of ____________, ________, by and between *, an Idaho corporation, hereinafter referred to as “Employer,” and ____________________________________, hereinafter referred to as “Employee.”


1.1 * is a duly organized and existing Idaho corporation authorized to do business in the State of Idaho.

1.2 Employee is currently employed by the Employer.

1.3 Employee acknowledges and agrees that, during Employee’s employment with Employer, Employee will learn certain information and techniques regarding Employer and Employer’s business and business relationships.

1.4 The parties desire to reduce to writing their understanding and agreement regarding Employee’s non-competition with Employer both during Employee’s employment with Employer and upon Employee’s cessation of employment with Employer in order to protect and maintain Employer’s business, goodwill, and long term confidential relationships with accounts, clients, customers and referral sources of Employer’s business.

NOW, THEREFORE, in consideration of the promises and the premises and agreements set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both parties, the Employer and Employee agree to the following terms and conditions:

2. INCORPORATION OF RECITALS: The above recitals are contractual and binding and are incorporated herein as if set forth in full.


3.1 During Employment. Employee agrees that during Employee’s employment by Employer, Employee will not engage in any other business or practice, duties or pursuits whatsoever, directly or indirectly, which would compete with the business of the Employer. Furthermore, Employee will not, directly or indirectly, be interested in any business or practice competing with or similar in nature to that of Employer and will not own or hold to any substantial degree, any securities in any business competing with Employer.

3.2 Cessation of Employment. For a period of _______ years, commencing with the last day Employee worked for Employer, Employee will not, within a _____ mile radius of Employer’s present place of business, own, manage, operate, control or be employed by any business similar to that conducted by Employer. Employee agrees to these restrictions within the specified period and the specified area and on a full time or part time basis, as an individual, associate, employee or partner.

3.3 Non-Solicitation. Employee shall not, at any time during the ____-year period commencing with the last day Employee worked for Employer, either personally or through any entity, solicit or induce (or attempt to solicit or induce), directly or indirectly, in any manner whatsoever (i) any past or present account, client or customer of Employer to refrain from seeking work on behalf of Employer; or (ii) any account, client or customer of Employer to refrain from referring any business to the Employer.

3.4 Non-Disclosure. Employee acknowledges that a list of the accounts, clients, customers and referral sources of Employer, as it may from time to time exist, is a valuable, special and unique asset and Employee shall not, at any time during or after termination of this Agreement, directly or indirectly, inadvertently or otherwise, disclose such list, or any part thereof, to any person, association, partnership, corporation or other entity for any reason or purpose whatsoever.

3.5 The restrictions described herein are each deemed to be independent of each other and any other provisions of this Agreement, and the existence of any claim or cause of action by Employee against Employer, whether predicated upon this Agreement or otherwise, shall not constitute a defense to their enforcement.

3.6 Employee acknowledges and agrees to the fairness and applicability of the above-mentioned scope and nature of said restrictions and that said covenants specify the fair, appropriate, minimum and reasonable time, scope of employment, distance and areas necessary to protect the reasonable needs of Employer.

3.7 Employee further agrees that damages alone cannot adequately compensate in the event of a violation of the foregoing restrictions, and thereby consents to Employer (in case of violation of any of the foregoing restrictions) having injunctive relief, without bond but upon due notice, in addition to such other relief as may be appropriate. Such injunctive relief is expressly agreed to be reasonable as against the Employee, Employer and the general public; that it is not against public policy and that any detriment to the public interest is more than offset by the public benefit arising out of preservation of freedom of contract. No waiver of any violation hereof shall be implied by Employer’s forbearance or failure to take action hereon. Employee acknowledges that her breach of any of these restrictive covenants would result in irreparable damages to Employer but that the precise extent of such damages would be difficult, if not impossible, to ascertain. Therefore, if Employee violates any portion of the herein described restrictions, Employee shall pay to Employer as liquidated damages, and not as a penalty, a per diem sum equal to the salary or income of the breaching party for the preceding twelve (12) months, divided by 365, until judgment is entered. In addition, Employee shall be responsible for the payment of all of Employer’s expenses, including reasonable attorney fees incurred in the enforcement of such covenants. Said remedies shall be in addition to Employer’s right to seek and obtain injunctive relief, as well as any other relief that a court deems appropriate.

3.8 Employee agrees to be bound by this Agreement, whether it is terminated by one of the parties or expires at the end of its term. This Agreement shall be operative during Employee’s employment with Employer as well as whenever and regardless of however and under whatever conditions exist that terminate Employee’s employment relationship with Employer, and regardless of whether the termination of Employee’s employment is voluntary or involuntary.

3.9 To the extent that any provision of the herein described restrictions is deemed unenforceable by virtue of its restrictiveness in terms of time, scope, distance or area, Employee and Employer agree that such reductions or limitations shall be made so that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies of the state of Idaho. Further, if any particular portion of the herein described restrictions is adjudicated invalid or unenforceable, such portion(s) shall be deleted without affecting the validity or enforceability of the liquidated damage provision and any other portions or provisions of this paragraph.

4. CONSIDERATION: The consideration for this Agreement shall be the sum of $______________, payable by Employer to Employee with the execution of this Agreement. Employee acknowledges that the consideration is sufficient and adequate.

5. NOTICES: All notices hereunder shall be in writing and shall be deemed to have been given at the time when mailed in any general or branch United States Post Office, enclosed in a registered or certified post-paid envelope addressed to the then current address of the respective parties to this Agreement.

6. WAIVER: No waiver or modification of this Agreement or of any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding, arbitration or litigation between the parties hereto arising out of or affecting this Agreement, or the rights or obligations of any parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid. The parties further agree that the provisions of this paragraph may not be waived except as herein set forth.

7. REMEDY FOR BREACH: In the event of a breach by either party hereto of the terms and conditions of this Agreement, the non-defaulting party shall be entitled, if it so elects, to institute legal proceedings in any court of competent jurisdiction, either in law or in equity, and to obtain damages for any breach of this Agreement. Unless otherwise restricted under the terms of this Agreement, nothing herein contained shall be construed to prevent such remedy in the courts, in case of any breach of the provisions of this Agreement by Employee, as the non-defaulting party may elect to invoke.

The failure of either party at any time to require performance by the other party of any provisions expressed herein shall in no way affect that party’s right thereafter to enforce such provision, nor shall waiver by a party of any breach of any provision expressed herein be taken or held to be a waiver of any succeeding breach of any such provisions or as a waiver of a provision itself.

8. SEVERABILITY: It is intended and agreed that each covenant contained in this Agreement shall be a separate and distinct covenant. If any covenant and condition of this Agreement and/or the application thereof shall to any extent be declared invalid or unenforceable, the remainder of this Agreement or the application of the other covenants or conditions shall not be affected thereby. Each covenant and condition of this Agreement shall separately be valid and enforceable to the fullest extent permitted by law.

9. AGREEMENT: Any and all prior correspondence, conversations or memoranda are merged herein and replaced hereby and being without effect hereon; and no change, alteration or modification hereof may be made except in writing, signed by both parties hereto.

10. BENEFIT: This Agreement is personal in its nature and neither of the parties hereto shall, without the consent of the other, assign or transfer this Agreement or any rights or obligations hereunder, except that Employer may assign or transfer this Agreement to a successor in the event of a transfer or sale of all or substantially all of either its patient charts and records or the assets of the business.

11. GOVERNING LAW: This Agreement is entered into in the State of Idaho and shall be governed by the laws of the State of Idaho.

12. ATTORNEY FEES: In the event it is necessary for either party to this Agreement to initiate legal action to enforce or interpret any of the provisions of this Agreement, the prevailing party in any such action shall be entitled to recover from the losing party all costs and reasonable attorney fees incurred, in addition to such other relief as may be granted.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

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