EMPLOYEE CONFIDENTIALITY & NON-COMPETITION AGREEMENT
(Montana – Comprehensive Template)
[// GUIDANCE: This template is intentionally expansive. Delete any bracketed provisions that are not needed and complete all placeholders before use. Verify all state-specific requirements at the time of execution.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
- Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
1. DOCUMENT HEADER
1.1 Title; Parties
This Employee Confidentiality & Non-Competition Agreement (the “Agreement”) is entered into by and between [EMPLOYER LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE] with principal place of business at [ADDRESS] (“Employer”), and [EMPLOYEE NAME], an individual residing at [ADDRESS] (“Employee,” and together with Employer, the “Parties,” each a “Party”).
1.2 Effective Date
This Agreement is effective as of [DATE] (the “Effective Date”).
1.3 Recitals
A. Employer provides [DESCRIPTION OF BUSINESS] throughout [GEOGRAPHIC AREA] and has developed substantial goodwill, confidential information, and customer relationships.
B. Employee will be employed in a position of trust and will obtain access to proprietary information and goodwill.
C. Employer requires, and Employee desires, to set forth reasonable post-employment restrictions to protect Employer’s legitimate business interests, in accordance with Montana public policy and governing law.
D. Employee acknowledges that the consideration described in Section 3.2 is adequate and sufficient to support this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:
2. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings set forth below. Defined terms may be used in singular or plural form, as the context requires.
2.1 “Affiliate” – Any entity that directly or indirectly controls, is controlled by, or is under common control with Employer.
2.2 “Business” – The business activities of Employer as conducted or actively contemplated during Employee’s employment, including [BRIEF BUSINESS DESCRIPTION].
2.3 “Cause” – [DEFINE].
2.4 “Competing Business” – Any business or person that engages in activities that are the same as or substantially similar to the Business.
2.5 “Confidential Information” – All non-public information disclosed to or learned by Employee relating to Employer or its Affiliates, including trade secrets, customer lists, financial data, marketing plans, formulas, processes, inventions, software, and personnel information.
2.6 “Customer” – Any person or entity that has purchased products or services from Employer within the [12/18/24] months preceding the Termination Date.
2.7 “Restricted Period” – The period of [12–24] months following the Termination Date.
2.8 “Restricted Territory” – The counties in which (a) Employee performed services or (b) Employer conducted the Business during the [12/18/24] months prior to the Termination Date, specifically [LIST OF COUNTIES/RADIUS, e.g., “a 50-mile radius of any Employer location in Montana”].
2.9 “Termination Date” – The last day of Employee’s employment with Employer for any reason.
[// GUIDANCE: Montana courts will not enforce overly broad restrictions. Define the Restricted Territory narrowly—tie it to actual locations or clientele.]
3. OPERATIVE PROVISIONS
3.1 Employment Relationship
Employee’s employment remains [AT-WILL / CONTRACTUAL] and may be terminated by either Party in accordance with [EMPLOYMENT AGREEMENT / HANDBOOK].
3.2 Consideration
(a) New Hire – Employee acknowledges that initial employment constitutes adequate consideration.
(b) Existing Employee – In addition to continued employment, Employer shall provide [SIGN-ON BONUS / STOCK OPTIONS / RAISE / PROMOTION] (collectively, the “Additional Consideration”).
[// GUIDANCE: Under Montana law, continued at-will employment alone may be insufficient for existing employees. Provide separate, tangible consideration.]
3.3 Condition Precedent
Execution and delivery of this Agreement is a condition precedent to Employee’s commencement or continuation of employment.
4. REPRESENTATIONS & WARRANTIES
4.1 Mutual Authority
Each Party represents that it has full power and authority to enter into and perform this Agreement.
4.2 Employee Specific
(a) No Conflict. Employee represents that Employee is not party to any agreement that would conflict with Employee’s obligations hereunder.
(b) Skills and Experience. Employee represents that the restrictions herein will not unreasonably hinder Employee’s ability to earn a livelihood in Employee’s chosen field.
4.3 Survival
The representations and warranties in this Section survive termination of Employee’s employment and this Agreement.
5. COVENANTS & RESTRICTIONS
5.1 Confidentiality
Employee shall hold all Confidential Information in strict confidence and not disclose, use, or allow access except as required in the ordinary course of employment.
5.2 Non-Competition
During employment and the Restricted Period, Employee shall not, within the Restricted Territory, directly or indirectly:
(a) own, manage, operate, join, control, or participate in any Competing Business;
(b) provide services to, or accept employment with, a Competing Business in a capacity that is the same as or substantially similar to the position held with Employer; or
(c) assist others in any of the foregoing.
5.3 Non-Solicitation
During employment and the Restricted Period, Employee shall not, directly or indirectly:
(a) solicit or divert any Customer for the purpose of providing products or services that are competitive with the Business;
(b) induce or attempt to induce any employee, contractor, or vendor of Employer to terminate or reduce its relationship with Employer.
5.4 Non-Disparagement
Employee agrees not to make any statement, written or oral, that could reasonably be expected to disparage Employer or its Affiliates.
5.5 Protective Covenants Reasonableness
Employee agrees that the duration, geographic scope, and scope of restricted activities are reasonable and necessary to protect Employer’s legitimate business interests and do not impose an undue hardship on Employee or the public.
6. DEFAULT & REMEDIES
6.1 Events of Default
Any breach of Sections 5.1–5.4 constitutes a default.
6.2 Notice & Cure
Employer may provide written notice describing the default. If capable of cure, Employee has [5–10] business days to cure. Breach of confidentiality or misappropriation of trade secrets is deemed incapable of cure.
6.3 Injunctive Relief
Employee acknowledges that monetary damages would be inadequate and agrees that Employer is entitled to temporary, preliminary, and permanent injunctive relief, specific performance, and any other equitable remedies without the necessity of posting bond or proving actual damages.
6.4 Monetary Damages
Employer may recover all actual, consequential, and incidental damages, including lost profits, and reasonable attorneys’ fees and costs.
6.5 Tolling
The Restricted Period will be tolled and extended by the period of any breach.
7. RISK ALLOCATION
7.1 Indemnification by Employee
Employee shall indemnify, defend, and hold harmless Employer and its Affiliates, and their respective directors, officers, employees, and agents from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to Employee’s breach of this Agreement.
7.2 No Liability Cap
The Parties expressly agree that no limitation of liability applies to Employee’s obligations under this Agreement.
7.3 Insurance
[OPTIONAL] Employer may require Employee to maintain professional liability insurance with minimum coverage of [$ AMOUNT] naming Employer as additional insured.
7.4 Force Majeure
Neither Party shall be liable for failure or delay in performance (other than payment or confidentiality obligations) due to causes beyond its reasonable control.
8. DISPUTE RESOLUTION
8.1 Governing Law
This Agreement and any dispute hereunder shall be governed by and construed in accordance with the laws of the State of Montana, without regard to its conflict-of-laws rules.
8.2 Forum Selection
The Parties submit to the exclusive jurisdiction of the state courts located in [COUNTY], Montana.
8.3 Arbitration (Optional)
[ALTERNATIVE A – Omit if not elected]
Any dispute arising out of or relating to this Agreement shall be finally resolved by binding arbitration administered by [ARBITRATION PROVIDER] pursuant to its [RULES] in [CITY], Montana. Judgment on the award may be entered in any court of competent jurisdiction.
[ALTERNATIVE B – Reserve for court litigation; delete this subsection.]
8.4 Jury Trial Waiver (Optional)
[INCLUDE IF ELECTED] EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT.
8.5 Attorneys’ Fees
The prevailing Party in any dispute is entitled to recover reasonable attorneys’ fees and costs.
8.6 Equitable Relief Preservation
Nothing in this Section 8 limits Employer’s right to seek or obtain injunctive or other equitable relief in accordance with Section 6.3.
9. GENERAL PROVISIONS
9.1 Amendment; Waiver
This Agreement may be amended only by a writing signed by both Parties. No waiver is effective unless in writing and signed by the waiving Party.
9.2 Assignment
Employee may not assign or delegate any rights or obligations under this Agreement. Employer may assign to an Affiliate or a successor in connection with a merger, acquisition, or sale of substantially all assets.
9.3 Successors & Assigns
This Agreement binds and benefits the Parties and their respective successors and permitted assigns.
9.4 Severability & Reformation
If any provision is held unenforceable, the court shall modify the provision to the minimum extent necessary to render it enforceable, and the remaining provisions shall remain in full force.
[// GUIDANCE: Montana courts commonly “blue-pencil” overbroad restraints. Including an express reformation clause increases the likelihood that a court will enforce reasonable limitations.]
9.5 Entire Agreement
This Agreement constitutes the entire understanding of the Parties with respect to the subject matter and supersedes all prior or contemporaneous agreements, oral or written.
9.6 Counterparts; Electronic Signatures
This Agreement may be executed in counterparts, each of which is deemed an original, and all of which together constitute one instrument. Electronic signatures and facsimile signatures are valid and binding.
9.7 Notices
All notices under this Agreement must be in writing and delivered (a) by hand, (b) by certified mail, return receipt requested, (c) by reputable overnight courier, or (d) by email with confirmation of receipt, in each case to the addresses set forth below or to such other address as a Party may designate in writing.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
EMPLOYER:
[EMPLOYER LEGAL NAME]
By: ____
Name: [PRINTED NAME]
Title: [TITLE]
Date: ________
EMPLOYEE:
Signature
Name: [EMPLOYEE NAME]
Date: _____
[OPTIONAL NOTARY BLOCK – use if notarization is preferred or required]
[// GUIDANCE: After completion, attach any disclosure schedules (if applicable) and provide Employee with a copy. Retain the signed original in Employer’s personnel file.]