[asterisk-biz] Fascinating conversation with a prospective customer

[Trixter aka Bret McDanel]

On 1/7/07, Paul <ast2005 at 9ux.com> wrote:
>
> I was thinking more about unreasonable restrictions placed on the future
> livelihood of the worker. Let's assume he does nothing unfair or
> underhanded. He has proper respect and regard for IP rights. The
> customer wants a non-compete clause that prevents him from doing any
> development work for competitors of the customer.


if you enter into a contract without intent on upholding all clauses, then
that is considered by some to be underhanded.  If the customer wants a
non-compete clause, then its on you to not agree to that, and either get it
removed, amended or walk away from the deal.


Lawyers have told me that the courts will not enforce such non-compete
> clauses if they do not see proper consideration(compensation). If you
> want to prevent the contractor from doing anything in the car wash
> industry for the next 5 years, you are expected to pay for that
> privilege. More than one lawyer has told me this. The broadness of scope
> and duration of a non-compete clause should line up with the
> consideration offered. If you are putting the guy in a position where it
> takes a year to transfer his skills to another market area then you
> should be compensating him for the income reduction during that time.


*generally* that is true, if such a clause prevents you from a livelyhood
courts wont  enforce it, with some exceptions (you sell your business,
generally you cant compete in that industry for a period of time and that is
generally enforcable for example - generally if you agree to this you ask
for more for the company, but that is on the seller to demand that money).

I have seen clauses in contracts say that if you learn some skill as a
contractor you cant use that skill anywhere else.  While this was stated to
not include *everything* and instead only what was proprietary to that
company, it was worded in a overly generic way.  I talked to the company
about my concerns and they gladly clarified in writing what the intent was
and that it didnt cover making rpms for example (or some other trivially
generic thing).

I tend to believe these lawyers because the courts continue to go more
> in the "big brother" direction. They will take the attitude that the
> clause is overly oppressive and tantamount to slavery(If I quit what
> will I do for the next 5 years?).


Well I wouldnt say its because the courts are going in a big brother
attitude, but, yes I do agree that *generally* it does count.

However, works for hire are normally the owner of the person paying unless
specifically agreed to otherwise.  This is why when you work at a company,
they own your work by default, they paid for it afterall.



> My understanding is that the courts apply this policy to people, not
> companies. You can contract with a corporation and impose all kinds of
> one-sided non-compete restrictions. The owners, officers and employees
> of that corporation could wind up ignoring those restrictions. You can
> go after the corporation for breach of contract if it still exists and
> has assets.


There are other things that can affect a contracts validity as well.  In
some countries indefinite contracts are not legally valid, there must be
some way to terminate the contract at some point.  Either by saying 'no
more' (with or without notice depending on the contract) or whatever.  This
can allow for a company to opt out in some cases, although generally a
non-compete is 'for X years after termination of this agreement'.  That way
if there is a breech for any reason the non-compete or whatever clause still
holds.  Microsoft for example is currently under a non-compete clause with
citrus or whomever and the most they can do is remote desktop, although that
is about to expire.  NT4 was delayed for a similar clause.



-- 
Trixter http://www.0xdecafbad.com     Bret McDanel
Belfast +44 28 9099 6461        US +1 516 687 5200
http://www.trxtel.com the VoIP provider that pays you!
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