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starting a business with a non solliciting agreement

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bmerine

Junior Member
What is the name of your state (only U.S. law)? New York

I am employee at will and do not have any contract. I would like to start my own business but my network is the same as the company network and I know my current employer will create problems.

I worked with those clients before I worked with my current company and I even brought some of those clients in. In fact I worked doing the same thing in another company with my boss, he took the clients (with the approval of the formar compnay partners at the time and created another company which I am currently working for. I helped with everything when promised shares and partnership.

I signed a non solliciting agreement (attached at the end of the message) because I had a company linked visa at the time and was threatened to be fire if I did not. I now have a green card.

Can I do anything, will I get into trouble if I contact anybody and try to do business with them ?

non soliciting
-----------------------------------------------------
This Employee Non-Solicitation Agreement (the “Agreement”) is made effective as of _________________________, by and between XXX (the “Employer”) and _______________________________________ (the “Employee”) (collectively referred to as the “Parties”).
WHEREAS, Employer has offered to employ Employee; and
WHEREAS, Employer will or may grant Employee access to Employer’s confidential and proprietary information, which may include, but is not limited to: customer lists, pricing lists, trade secrets, business forecasts and other proprietary information.
NOW THEREFORE, the Parties agree as follows:
1. NON-SOLICITATION OF CUSTOMERS: For a period of one year following the termination of employment with Employer for any reason, Employee agrees not to directly or indirectly induce, recruit or solicit any of Employer’s clients or customers, whether potential or otherwise, with whom Employee had dealings with on behalf of Employer during his/her employment with Employer.
2. NON-SOLICITATION OF EMPLOYEES: Employee agrees that for a period of one year following the termination of his/her employment with Employer, Employee will not induce, recruit or solicit any of the Employer’s employees to terminate their employment or enter into another employment arrangement with Employee or a third party.
3. CONFIDENTIALITY: Employee acknowledges that Employer shall or may, in reliance upon this Agreement, grant Employee access to Employer’s confidential and proprietary information. Employee agrees to not disclose to any other person (unless required by law) or use for personal gain any such confidential or proprietary information at any time during or after the termination of employment, unless Employer grants express, written consent of such a disclosure.
4. CONTINUING OBLIGATIONS: Notwithstanding the termination of Employee for any reason, Sections 1, 2 and 3 of this Agreement will continue in full force and effect following such termination.
5. BINDING EFFECT: The covenants and conditions contained in the Agreement shall apply to and bind the Parties and the heirs, legal representatives, successors and permitted assigns of the Parties.
6. WAIVER: The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
7. SEVERABILITY: If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
8. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing and must be signed by both Employee and Employer.
9. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written.
 


mlane58

Senior Member
New York courts tend to disfavor non-compete clauses in employment agreements. They will fairly readily enforce non-competes that are part of the sale of a business, but employees usually win the cases involving employment non-competes. The reason employment non-competes are disfavored is because they tend to deny people the ability to make a living and advance in the field they are best qualified to work.


There are excepts to this general tendency of New York courts. A court might enforce an employment non-compete to the extent needed to protect the employer's proprietary information, such as trade secrets, or very difficult to construct customer lists. Courts might enforce employment non-competes in which the employee is compensated for the time the employee is out of the market.

So with that being said, you really need to see a local attorney well versed in contract and employment law and show them your document.
 

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