EMPLOYEE CONFIDENTIALITY, NON-SOLICITATION, AND LIMITED NON-COMPETITION AGREEMENT

(North Dakota)

[// GUIDANCE: This template is deliberately styled as a “limited” non-competition agreement because North Dakota generally voids employee non-competes under N.D. Cent. Code § 9-08-06, except in narrow sale-of-business or partnership-dissolution contexts. The non-competition covenant below is therefore highly restricted and expressly conditional on statutory compliance. Practitioners should evaluate whether an alternative protective covenant (e.g., confidentiality, non-solicitation) alone is preferable.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block

I. DOCUMENT HEADER

1. Parties
   This Employee Confidentiality, Non-Solicitation, and Limited Non-Competition Agreement (this “Agreement”) is entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
   a. [EMPLOYER LEGAL NAME], a [STATE OF INCORP.] [ENTITY TYPE] with its principal place of business at [ADDRESS] (“Employer”); and
   b. [EMPLOYEE LEGAL NAME], an individual residing at [ADDRESS] (“Employee”).
   Employer and Employee are sometimes referred to individually as a “Party” and collectively as the “Parties.”

2. Recitals
   a. Employer is engaged in the business of [DESCRIPTION OF BUSINESS] (the “Business”).
   b. Employee will serve as [JOB TITLE] and, in that capacity, will be entrusted with Confidential Information (as defined below) and goodwill.
   c. As a condition of employment, and in consideration of the mutual promises set forth herein, the Parties desire to protect Employer’s Confidential Information, customer relationships, and other legitimate business interests through this Agreement.

3. Consideration
   As specific consideration for Employee’s obligations herein, Employee shall receive:
   • A one-time payment of $[AMOUNT]; and/or
   • Eligibility for [BONUS, EQUITY, PROMOTION, ETC.]; and
   • Continued at-will employment on and after the Effective Date.
   [// GUIDANCE: ND courts require independent consideration when an existing employee signs restrictive covenants. Insert monetary or other tangible consideration beyond “continued employment” where feasible.]

II. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below (alphabetical order):

1. “Affiliate” means any entity controlling, controlled by, or under common control with Employer.
2. “Cause” means [DEFINE CAUSE].
3. “Competitive Services” means products or services that are the same as or substantially similar to the Business as conducted by Employer during the 12-month period preceding Employee’s Separation Date.
4. “Confidential Information” has the meaning assigned in Section III.1.
5. “Customer” means any person or entity that purchased goods or services from Employer within the 18-month period preceding the Separation Date.
6. “Restricted Period” means the period commencing on the Effective Date and ending [NUMBER] months following the Separation Date; provided, however, that the Restricted Period applicable to Section V.3 (Limited Non-Competition) shall not exceed the maximum period, if any, permissible under N.D. Cent. Code § 9-08-06.
7. “Restricted Territory” means the geographic area in which Employee (i) performed work, (ii) had supervisory authority, or (iii) had material business contacts on Employer’s behalf during the 12-month period preceding the Separation Date, but in no event shall the Restricted Territory extend beyond the borders of any state in which Employer conducts the Business.
8. “Separation Date” means the last day of Employee’s employment with Employer, regardless of the reason for termination.

III. OPERATIVE PROVISIONS

1. Confidentiality
   a. Non-Disclosure. Employee shall not, during or after employment, directly or indirectly disclose or use Confidential Information except as required in the course of employment.
   b. Confidential Information Defined. “Confidential Information” includes trade secrets, proprietary data, financial information, customer lists, marketing plans, inventions, and any information designated as confidential, whether in written, oral, or electronic form. Confidential Information shall not include information that (i) becomes publicly available through no breach of this Agreement, (ii) is lawfully obtained from a third party without restriction, or (iii) is independently developed without reference to Employer’s Confidential Information.
   c. Mandatory Disclosure. If Employee is compelled by law to disclose Confidential Information, Employee shall, to the extent legally permissible, provide Employer with prompt written notice to allow Employer to seek protective relief.

2. Return of Property
   Upon the Separation Date or upon Employer’s request, Employee shall return all documents, media, and property belonging to Employer.

3. Consideration Timing
   Employer shall deliver the consideration described in Section I.3 within [NUMBER] days after Employee’s execution (and, if applicable, non-revocation) of this Agreement.

IV. REPRESENTATIONS & WARRANTIES

1. Mutual Authority
   Each Party represents that it has full authority to enter into and perform under this Agreement.

2. Employee’s Compliance
   Employee represents that execution of this Agreement and performance of Employee’s duties will not violate any other agreement or legal obligation.

3. Survival
   The representations and warranties set forth in this Section IV shall survive termination of this Agreement for the duration of any applicable statute of limitations.

V. COVENANTS & RESTRICTIONS

1. Non-Solicitation of Customers
   During the Restricted Period, Employee shall not, directly or indirectly, solicit, divert, or take away any Customer for the purpose of providing Competitive Services.

2. Non-Solicitation of Employees
   During the Restricted Period, Employee shall not induce or encourage any employee or independent contractor of Employer to terminate or alter his or her relationship with Employer.

3. Limited Non-Competition
   a. Statutory Compliance. The Parties acknowledge that, pursuant to N.D. Cent. Code § 9-08-06, covenants restraining an employee from exercising a lawful profession, trade, or business are generally void in North Dakota, except in connection with (i) the sale of goodwill of a business or (ii) the dissolution of a partnership.
   b. Conditional Covenant. To the extent (and only to the extent) legally permissible, Employee agrees that during the Restricted Period and within the Restricted Territory, Employee shall not engage in Competitive Services on behalf of a Competitor.
   c. Automatic Modification. If a court of competent jurisdiction determines that this Section V.3 exceeds the bounds permitted by N.D. Cent. Code § 9-08-06, the Parties authorize the court to modify or sever this Section V.3 to the limited extent necessary to render it enforceable, or, if such modification is not permissible, to strike this Section V.3 in its entirety, leaving the remainder of the Agreement in full force.
   [// GUIDANCE: ND courts historically do not blue-pencil over-broad covenants; this automatic-modification clause may not be given effect. Include for other-state enforcement and risk allocation but advise clients accordingly.]

4. Tolling
   The Restricted Period shall be tolled for any period during which Employee is in breach of Sections V.1–V.3.

VI. DEFAULT & REMEDIES

1. Events of Default
   Any breach of Sections III.1 (Confidentiality), V.1–V.3 (Covenants & Restrictions), or VII.1 (Indemnification) constitutes an “Event of Default.”

2. Notice and Cure
   Employer shall provide written notice of any alleged Event of Default. Where the breach is curable, Employee shall have five (5) business days to cure; provided, however, that misappropriation of trade secrets or violation of Section V.3 is deemed incapable of cure.

3. Primary Remedy – Injunctive Relief
   Employee acknowledges that monetary damages may be inadequate and consents to the issuance of temporary, preliminary, and permanent injunctive relief without the necessity of posting bond, in addition to any other remedies available at law or in equity.

4. Attorney Fees and Costs
   In any action arising out of or relating to this Agreement, the prevailing Party shall recover its reasonable attorney fees and costs.

VII. RISK ALLOCATION

1. Indemnification by Employee
   Employee shall indemnify, defend, and hold harmless Employer and its Affiliates, and their respective officers, directors, employees, and agents (collectively, “Indemnitees”) from and against any and all losses, damages, liabilities, claims, judgments, settlements, and expenses (including reasonable attorney fees) arising out of or related to Employee’s breach of this Agreement.

2. Limitation of Liability
   No contractual limitation of liability shall apply to Employee’s indemnification obligations or breaches of Sections III.1 or V.1–V.3. [// GUIDANCE: “no_cap” per metadata.]

3. Force Majeure
   Neither Party shall be liable for failure to perform due to causes beyond its reasonable control, including acts of God, war, terrorism, or governmental action, provided that the affected Party gives prompt notice and resumes performance as soon as feasible.

VIII. DISPUTE RESOLUTION

1. Governing Law
   This Agreement and any dispute hereunder shall be governed by the laws of the State of North Dakota, without regard to its conflict-of-laws rules.

2. Forum Selection
   The state courts of Burleigh County, North Dakota (and, if applicable, the United States District Court for the District of North Dakota) shall have exclusive jurisdiction. Each Party irrevocably submits to such courts and waives objections to venue.

3. Arbitration (Optional)
   If the Parties select arbitration by checking the box below, any dispute shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Employment Arbitration Rules. Judgment on the award may be entered in any court of competent jurisdiction.
   ☐ Arbitration Selected ☐ Arbitration Not Selected

4. Jury Waiver (Optional)
   TO THE EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY.
   ☐ Jury Waiver Included ☐ Jury Waiver Omitted

5. Preservation of Injunctive Relief
   Notwithstanding Section VIII.3, Employer may seek emergency or injunctive relief in a court of competent jurisdiction to enforce Sections III.1 and V.1–V.3.

IX. GENERAL PROVISIONS

1. Amendment and Waiver
   No amendment or waiver shall be effective unless in writing and signed by both Parties. A waiver of any breach shall not constitute a waiver of any subsequent breach.

2. Assignment
   Employee may not assign or delegate any rights or obligations hereunder. Employer may assign this Agreement to a successor in interest to the Business upon written notice to Employee.

3. Successors and Assigns
   This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

4. Severability and Reformation
   If any provision of this Agreement is held unenforceable, such provision shall be reformed or severed to the minimum extent necessary, and the remainder shall remain in full force, except as otherwise provided in Section V.3(c).

5. Integration
   This Agreement constitutes the entire understanding between the Parties regarding the subject matter hereof and supersedes all prior agreements, oral or written.

6. Counterparts; Electronic Signatures
   This Agreement may be executed in counterparts, each of which shall be deemed an original. Signatures delivered electronically (e.g., via PDF or DocuSign) shall be deemed original and binding.

X. EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

Employer:
[EMPLOYER LEGAL NAME]
By: _____
Name: [AUTHORIZED SIGNATORY]
Title: [TITLE]
Date: __________

Employee:

[EMPLOYEE LEGAL NAME]
Date: __________

[Notary Acknowledgment, if desired under corporate policy.]

[// GUIDANCE:
1. Review statutory developments annually; North Dakota’s restrictive-covenant landscape is static but could change.
2. Confirm that the employee’s role and the employer’s business justify each covenant under a legitimate-interest analysis.
3. If enforcement outside ND is contemplated (e.g., remote workforce), adjust governing-law and forum-selection clauses accordingly, mindful of ND public-policy overrides.
4. Provide Employee with adequate time to review the Agreement (best practice: at least 14 days) and advise of the right to consult counsel to reduce procedural-unconscionability risk.]