EMPLOYEE CONFIDENTIALITY, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
(the “Agreement”)
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
This Employee Confidentiality, Non-Competition, and Non-Solicitation Agreement (the “Agreement”) is entered into and made effective as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
- [EMPLOYER LEGAL NAME], a [STATE OF INCORPORATION] [corporation/limited liability company/etc.] with its principal place of business at [ADDRESS] (“Employer”); and
- [EMPLOYEE LEGAL NAME], an individual residing at [ADDRESS] (“Employee”).
1.1 Recitals
A. Employer is engaged in the business of [DESCRIBE BUSINESS/INDUSTRY] and possesses substantial goodwill and Confidential Information (as defined below).
B. Employer desires to protect its legitimate business interests, including its Confidential Information, customer relationships, and goodwill, against unfair competition.
C. Employee acknowledges that (i) employment [has been offered/is currently ongoing], and (ii) [INITIAL EMPLOYMENT/ADDITIONAL CONSIDERATION—e.g., promotion, bonus of $____, equity grant, etc.] constitutes valuable consideration supporting Employee’s obligations herein.
D. The parties enter into this Agreement to set forth their respective rights and obligations.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
2. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings set forth below. Terms used in the singular include the plural and vice-versa.
“Business” means [SPECIFIC DESCRIPTION OF EMPLOYER’S PRODUCTS/SERVICES/INDUSTRY SEGMENT] as conducted by Employer as of the Effective Date or during Employee’s employment.
“Confidential Information” means all non-public information, regardless of form, relating to Employer’s business, including but not limited to trade secrets, technical data, know-how, research, product plans, customer lists, pricing, marketing strategies, finances, software, formulas, inventions, processes, and any other information that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure.
“Customer” means any individual or entity that has purchased Employer’s products or services or with whom Employer has engaged in material sales or service discussions during the twelve (12) months preceding the termination of Employee’s employment.
“Restricted Period” means [NUMBER] months following the date Employee’s employment with Employer terminates for any reason. [// GUIDANCE: North Carolina courts frequently uphold Restricted Periods up to two (2) years when supported by legitimate business interests.]
“Restricted Territory” means [GEOGRAPHIC AREA] in which (i) Employee worked, (ii) Employee had material business contact, or (iii) Employer conducts business during the twelve (12) months preceding termination. The Restricted Territory shall not exceed [e.g., the counties within North Carolina where Employer actively conducts business]. [// GUIDANCE: NC law requires geographic scope to be no broader than necessary. Tie the territory to Employee’s actual work footprint.]
“Services” means duties identical or substantially similar to those Employee performed for Employer during the twelve (12) months preceding termination, including [LIST KEY FUNCTIONS].
3. OPERATIVE PROVISIONS
3.1 Employment At-Will
Nothing herein alters Employee’s at-will status. Either party may terminate employment at any time for any lawful reason, subject to any separate written employment agreement.
3.2 Consideration
Employee acknowledges that the consideration identified in Recital C is adequate and sufficient to support the promises herein, including the non-competition obligations, under North Carolina law.
3.3 Confidentiality
Employee shall hold Confidential Information in strict confidence, shall not disclose it to any third party without Employer’s prior written consent, and shall use it solely for the benefit of Employer.
3.4 Return of Property
Upon termination of employment, Employee shall return all property and Confidential Information (including electronically stored information) belonging to Employer.
4. REPRESENTATIONS & WARRANTIES
4.1 Employee represents that:
a. Employee is not subject to any agreement that would conflict with or prevent full performance under this Agreement;
b. Employee will comply with all applicable laws and professional obligations in performing Services; and
c. Employee has had the opportunity to seek independent legal advice regarding this Agreement.
4.2 Employer represents that it has full authority to enter into and perform its obligations under this Agreement.
4.3 Survival. The representations, warranties, and covenants in Sections 3 through 7 shall survive termination of employment for the duration of the Restricted Period and any longer period expressly stated herein.
5. COVENANTS & RESTRICTIONS
5.1 Non-Competition
During employment and throughout the Restricted Period, Employee shall not, directly or indirectly, within the Restricted Territory, engage in or assist any business that competes with the Business by performing Services.
5.2 Non-Solicitation of Customers
Employee shall not, during employment and for the Restricted Period, solicit or attempt to solicit any Customer for purposes of providing goods or services competitive with the Business.
5.3 Non-Solicitation of Employees
Employee shall not, during employment and for the Restricted Period, solicit or induce any employee, consultant, or independent contractor of Employer to terminate or diminish their relationship with Employer.
5.4 Reasonableness
Employee agrees that the scope, duration, and geography of the restrictions are reasonable and necessary to protect Employer’s legitimate interests, and that Employee’s experience and capabilities are sufficient to enable Employee to earn a livelihood without violating this Agreement.
6. DEFAULT & REMEDIES
6.1 Events of Default
Any breach of Sections 3.3, 5.1, 5.2, or 5.3 constitutes a default.
6.2 Notice and Cure
Upon default, Employer shall provide written notice to Employee identifying the breach. If the breach is capable of cure, Employee shall have [NUMBER OF DAYS, e.g., 5] days to cure. No cure period applies to misappropriation of Confidential Information or violation of the Non-Competition covenant.
6.3 Injunctive Relief
Employee acknowledges that monetary damages would be inadequate and consents to the issuance of temporary, preliminary, and permanent injunctive relief to enforce this Agreement without the necessity of posting bond, in addition to any other remedies.
6.4 Attorneys’ Fees and Costs
In any action to enforce this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs. [// GUIDANCE: NC Gen. Stat. § 6-21.6 allows fee-shifting if the contract so provides and is signed by the parties.]
7. RISK ALLOCATION
7.1 Indemnification by Employee
Employee shall indemnify, defend, and hold harmless Employer and its affiliates, and their respective officers, directors, employees, and agents, from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to Employee’s breach of this Agreement.
7.2 Limitation of Liability
No limitation of liability applies to Employee under this Agreement. [// GUIDANCE: “Liability Caps: no_cap” per user metadata.]
7.3 Insurance
Employer may, at its option, maintain insurance covering losses resulting from Employee’s wrongful acts; such insurance does not limit Employee’s liability hereunder.
7.4 Force Majeure
Neither party shall be liable for non-performance caused by events beyond its reasonable control (e.g., natural disasters, war, acts of governmental authority), except with respect to payment obligations and restrictive covenants.
8. DISPUTE RESOLUTION
8.1 Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of the State of North Carolina, without regard to its conflict-of-law principles.
8.2 Forum Selection
The parties consent to exclusive jurisdiction of the state courts located in [COUNTY], North Carolina, and waive any objection to venue in such courts.
8.3 Arbitration (Optional)
[OPTIONAL—STRIKE IF NOT APPLICABLE] Any dispute, claim, or controversy arising out of or relating to this Agreement shall, at Employer’s election, be resolved by binding arbitration administered by [ADMINISTRATOR] under its rules, held in [CITY], North Carolina. Judgment on the award may be entered in any court of competent jurisdiction.
8.4 Jury Waiver (Optional)
[OPTIONAL—STRIKE IF NOT APPLICABLE] The parties knowingly and voluntarily waive their right to a trial by jury in any action arising out of or related to this Agreement.
8.5 Injunctive Relief Carve-Out
Notwithstanding Section 8.3, Employer may seek injunctive relief in a court of competent jurisdiction to enforce Sections 3.3, 5.1, 5.2, or 5.3.
9. GENERAL PROVISIONS
9.1 Amendment and Waiver
This Agreement may be amended only by a written instrument signed by both parties. No waiver shall be 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 this Agreement to any successor or affiliate.
9.3 Successors and Assigns
This Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
9.4 Severability; Blue-Pencil
If any provision is held unenforceable, the court shall enforce the remaining enforceable portion and strike the unenforceable portion, but shall not rewrite or add to the provision, consistent with North Carolina’s “strict blue-pencil” doctrine. The balance of the Agreement shall remain in full force and effect.
9.5 Reformation
If a court declines to enforce any covenant as written, the parties agree to negotiate in good faith to modify the covenant to the minimum extent necessary for enforceability consistent with NC law.
9.6 Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding restrictive covenants and supersedes all prior or contemporaneous oral or written understandings on that subject.
9.7 Counterparts; Electronic Signatures
This Agreement may be executed in counterparts, each of which shall be deemed an original. Signatures delivered via electronic means shall be deemed originals.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
[EMPLOYER LEGAL NAME]
By: ____
Name: [AUTHORIZED SIGNATORY]
Title: [TITLE]
Date: _________
[EMPLOYEE LEGAL NAME]
Signature: ____
Print Name: ___
Date: ______
[// GUIDANCE:
1. Replace bracketed placeholders with client-specific information.
2. Confirm that the Restricted Territory and Restricted Period are tailored to the employee’s role and legitimate business interests to maximize enforceability in NC.
3. For existing employees, ensure the additional consideration is real, identifiable, and not illusory; a mere continuation of employment is insufficient under NC law.
4. If optional arbitration and/or jury waiver are retained, verify compliance with the Federal Arbitration Act and any applicable state statutes.
5. Provide Employee at least the minimum review period required by any applicable federal or state statute (e.g., Older Workers Benefit Protection Act, if relevant).]