For the below non-solicitation clause, if a customer contacts the former employee to perform services for them, is the former employee allowed to perform the work for that customer without breach of contract?
For a period of five (5) years after the Separation Date,
Employee will not directly and or indirectly, in any way for his own benefit or for the benefit of
any other person, venture, firm, business, corporation, or enterprise contact, employ, solicit or
attempt to persuade any employee, agent, independent contractor, or customer of Company to
terminate his, her, or its relationship with Company or do any act that may result in the impairment
of the relationship between Company on the one hand and the employees, agents, independent
contractors, or customers of Company on the other hand. For purposes of this Agreement,
'"Customer" is any person or entity that has done business with Company during the twelve (12)
months prior to the Separation Date.
Employee agrees that the type and period of restrictions imposed in this Agreement are
fair and reasonable, and that such restrictions are intended solely to protect the legitimate
interests of Company and not to prevent him from earning a livelihood. Employee recognizes that
his key position and his access to Confidential Information make it necessary for Company to
restrict his post-employment activities as stated above.
This covenant is given by Employee as part of the consideration of this Agreement and
shall be construed as an agreement independent of any other provision in this Agreement. The
existence of any claim or cause of action of Employee against Company, whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of this
1 Answer from Attorneys
If the employee was honestly independently contacted directly by customer and not solicited by employee this could be OK and not a breach. Just be mindful that this might be disputed by employer and litigation may be initiated alleging breach. Both employee and customer should be made aware of this possibility and be prepared to defend claim for breach, if raised.
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