In the previous article, I discussed what clauses one should include in an NDA and whether one can add a non-compete in that NDA and an earlier blog covered What is an NDA?

In this article, I will discuss whether one can also add a non-solicitation, a non-circumvention and/or a non-disparagement clause in that NDA as well.

Are such clauses enforceable in the United Kingdom (UK)?

Let’s find out.

1. What are Non-Solicitation, Non-Circumvention and Non-Disparagement Clauses?

First of all, let’s briefly discuss what these clauses are.

Non-solicitation clauses are used to prevent other people or businesses from soliciting (getting in touch and approaching) the clients or employees from another individual or business. Thus, if you don’t want your subcontractor contacting your client behind your back and giving them a better deal, a non-solicitation can be right for you.

In addition, a non-circumvention clause can be added to prevent the other party from circumventing (bypassing) you and again, giving a better deal to your client behind your back. A non-circumvention clause is usually added when there is a middleman involved who is looking to obtain a commission on a transaction. Without a non-circumvention clause, the two parties in a transaction may wish to circumvent and hence, bypass the middleman from the transaction to avoid paying the middleman a commission.

Non-disparagement clauses are added to prevent an individual or business from disparaging (defaming) another individual or business. Let’s say an employer terminates an employee and then the employee starts defaming the employer’s business. Of course, a bad situation to be in. Non-disparagement clauses are usually drafted to prevent such unfortunate occasions.

2. Are such clauses enforceable?

Similar to the answer about whether a non-compete can be added in an NDA, this answer also varies depending on the country and jurisdiction.

Nevertheless, in the UK, non-solicitation, non-circumvention and non-disparagement clauses can be enforceable – but must be drafted properly. Clauses must be deemed as necessary, fair, not too lengthy and not too wide or broad.

For instance, a legal contract that states “This non-solicitation clause will survive the termination or expiration of this Agreement and continue in effect in perpetuity”, will, most likely, be considered unenforceable, unlawful and void in the eyes of a Court of Law with competent jurisdiction in the UK because its terms is too long

There is an art to drafting restrictive covenants like this, and so I do recommend you take expert legal advice whether you are seeking to draft such terms into contracts or whether you’re reading contract and arent sure what your position is.

Conclusion

To conclude, non-solicitation, non-circumvention and non-disparagement clauses can be very important in legal agreements. They can prevent unfortunate situations from coming to fruition.

But, it’s quite tricky to make them enforceable.

Accordingly, since it can be difficult to meet the criteria required by the English Courts, it is advisable to instruct a solicitor to determine the enforceability of such clauses.

If you are interested in drafting a non-solicitation, non-circumvention or non-disparagement clause, get in touch today!