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I have received an NDA so that I can become part of a software project as a developer. Most of the clauses seems reasonable except for two parts that I'm slightly worried about. Could you give an example of something that would breach each clause? I have no idea what these clauses mean, practically speaking.

1. Non-Solicitation

The Recipient, its affiliates, subsidiaries and representatives will not, from the date of this agreement until day of, December 31, 2025, directly or indirectly solicit for employment or employ any person who is now employed or retained by the Information Provider or any affiliate of the Information Provider without the prior written consent of the Information Provider.

2025 seems like a long time, is this a standard practice in these kinds of agreements? It seems that a lot of the clauses of a similar nature are expressed in months, not years (nearly 10 in this case).

2. Non-Competition

  • Other than with the express written consent of the Information Provider, which consent may not be unreasonably withheld, the Recipient will not, from the date of this Agreement until day of ____ be directly or indirectly involved with a business which is in direct competition with the business lines of the Information Provider that are the subject of this Agreement.

  • From the date of this Agreement until day of ____ the Recipient will not divert or attempt to divert from the Information Provider any business the Information Provider had enjoyed, solicited, or attempted to solicit, from their customers, at the time the parties entered into this Agreement.

It worries me to be signing a contract which doesn't have dates explicitly outlined. Is this a valid concern in this case? If it is, how should I respond in terms of possible modifications?

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Eight years is long and honestly makes it somewhat likely that it would not be upheld, although states differ wildly in how strongly and under what circumstances they enforce non-compete agreements. Where they are allowed 2-5 years is more typical. A date certain which doesn't change even if you stay with the company a long time is also unusual.

The omitted dates in the non-compete section are clearly a problem, although the failure to anyone to fill them in might be interpreted to invalidate them entirely for failure to reach of meeting of the minds on this key term, which might help you in litigation.

  • this should probably be a new question, but...when the NDA says "who is now employed" and "at the time the parties entered", do those phrases leave out people employed and/or new customers acquired after the agreement is signed? – mkennedy Aug 2 '17 at 2:35
  • Yes, it does appear to say this, which is also very weird. I suppose this NDA is contemplating a one time exchange of information that will be superseded by later agreements if the exchange of information results in a deal or employment. – ohwilleke Aug 2 '17 at 2:51
  • Thank you. I was hoping that contract (law) wasn't even stranger than I thought it was! – mkennedy Aug 2 '17 at 2:52

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