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Exclusivity and Confidentiality Agreement

Discussion in 'Employment Contracts & Work Policies' started by garret331, Sep 1, 2020.

  1. garret331

    garret331 Law Topic Starter New Member

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    Jurisdiction:
    Florida
    I am wondering if this contract is enforceable. When signing on with this company a few years ago, I didn't think much about signing their paperwork, little did I know they had this in it.

    Basically, they had me sign an agreement that says I can't work or consult in the same industry within 2 counties of Florida for 15 months after I leave. How is this fair? What if this industry is all I know how to do?

    Heres what the agreement says:

    "Company" and Contractor agree that during the time Contractor works for "Company" as an employee, consultant, freelancer, Independent Contractor or in any other capacity, Contractor will not work for or consult with any other written or electronic publications, including but not limited to newsletters email marketing, social media management, email marketing, Google places management or combination of which service the counties in which the Contractor will perform their primary work.

    The Contractor further agrees to hold confidential all information derived from this association and not to divulge such information to any other party, except that information normally disseminated as part of his/her/its duties.

    In consideration for Contractor's exclusive service, "Company" agrees to compensate Contractor as agreed separately.

    This agreement will remain in full force and effect until Contractor no longer works for or on behalf of "Company", however exclusivity will be limited to and within the counties of Miami Dade County and Broward County which shall remain in force for fifteen (15) months beginning the time the Contractor no longer works on behalf of "Company".

    It is agreed that Contractor will not contact any of "Company" customers for any business purpose during the fifteen month exclusivity period in which this agreement is in force.

    Where it can be difficult to calculate actual damages for breach of this agreement, it is agreed that a breach of this agreement will result in liquidated damages of no less than $15,000 dollars for failure to maintain exclusivity and no less than $25,000 for failure to maintain confidentiality.

    It is hereby agreed and acknowledged that it will be impossible to measure in money the damage that would be suffered if the parties fail to comply with any of the obligations herein imposed on them and that in the event of any such failure, an aggrieved Person will be irreparably damaged and will not have an adequate remedy at law. Any such Person shall, therefore, be entitled (in addition to any other remedy to which it may be entitled in law or in equity) to injunctive relief. The parties hereto may seek injunctive relief in arbitration; provided, however, that as an exception to the arbitration agreement, the parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other equitable relief.

    If any portion of this agreement is found to be invalid, the remain provisions or parts shall continue in full force and effect.
     
  2. Zigner

    Zigner Well-Known Member

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    Is it legal? Nobody here can opine on it specifically. However, generally, such a contract could be found to be enforceable. You should run it by a local attorney for an actual review and legal opinion.

    "How is this fair?" Assuming it's enforceable, it's "fair" because you agreed to do something in return for something.
     
  3. garret331

    garret331 Law Topic Starter New Member

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    What type of attorney would I even look for?

     
  4. army judge

    army judge Super Moderator

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    No, "they" requested that you sign.
    You had the ability to say, "No, thanks."
    You CHOSE to sign, however.

    I can't say if it was FAIR for you.
    I can say, it was LEGAL.



    Based upon Florida law, non-compete agreements may be enforced by the employer so long as the agreement is "reasonable" with regard to time and geographical area, PLUS the agreement protects a "legitimate business interest" of the employer as defined by Florida statute.

    Usually restrictions of up to two years and covering areas where the employer actually does business have been considered "reasonable" by Florida courts.

    IF the restrictions in the agreement are found to be unreasonably broad, the court has the authority to modify the agreement so as to impose MORE reasonable restrictions.

    Enforcement of a non-compete will come down to whether the employer has a statutorily defined, legitimate business interest that can be protected, and if so; whether the employee or former employee has used that business interest in such a way as to result in unfair competition.

    Bottom line, your fate will be up to a court, should you choose to defy the agreement you CHOSE to sign.

    Should you desire more information regarding employment agreements, including restrictive agreements, you can take the agreement and consult with a couple local attorneys.

    Most attorneys provide the initial consultation free of charge and/or further obligation.


    Usually a general practitioner or an attorney who understands contract issues.
     
  5. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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  6. garret331

    garret331 Law Topic Starter New Member

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    So one thing I noticed in the agreement that I signed is that it is limited to "written or electronic publications, including but not limited to newsletters email marketing, social media management, email marketing, Google places management or combination of which service the counties in which the Contractor will perform their primary work."

    So since I am only performing web design work for my clients, does this exclude me?
     
  7. Zigner

    Zigner Well-Known Member

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    That's a great question for the attorney(s) that you speak with.
     
  8. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    While I agree with Zigner on you needing to see a lawyer.

    It would be very easy to argue that a web page is an "electronic publication".
     
    hrforme, eerelations and Zigner like this.
  9. garret331

    garret331 Law Topic Starter New Member

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    I mean this company used to be a publication and is why they added that verbiage. If you do a quick Google search for electronic publication, it is actually defined as:
    "Electronic publishing (also referred to as e-publishing or digital publishing or online publishing) includes the digital publication of e-books, digital magazines, and the development of digital libraries and catalogues."

    So the verbiage limits work with any written or electronic publication, neither of which I am.
     
  10. army judge

    army judge Super Moderator

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    It would be foolish to do anything based solely on information derived from strangers.
     
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  11. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Google searches are not law nor case law.
     
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  12. Zigner

    Zigner Well-Known Member

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    People "publish" web pages all the time.

    Take your contract to an attorney. Really.
     
  13. garret331

    garret331 Law Topic Starter New Member

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    Will do, thanks for your help, and everyone else's for that matter!
     
    Zigner likes this.

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