What is the difference between a non-solicitation and a non-compete clause?

A non-compete bars a competing activity altogether. A non-solicitation clause leaves the activity free but bars poaching the other party's staff or approaching its customers. It is therefore less restrictive, but must still be proportionate.

Can a client hire a supplier's consultant?

Yes, unless the contract contains a non-solicitation clause forbidding it. In that case, hiring during the restricted period may require the client to pay the agreed sum. The employee is not a party to that clause.

Does a non-solicitation clause require compensation?

Between two businesses, compensation is generally not required, because the clause does not stop anyone from working. If it is imposed on an employee and in practice prevents them from working, a court may treat it as a non-compete and require compensation.

Clause templatesProtection

Non-solicitation clause

A non-solicitation clause bars a party from recruiting the other's staff, or approaching its customers, during the contract and for a period afterwards. It is less restrictive than a non-compete: the person may carry on their business, but without trying to lure away your team or your customers. It is still subject to a proportionality test.

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Clause template

1. During the term of this agreement and for [PERIOD: e.g. 12 months] after it ends, neither party shall, directly or indirectly, solicit with a view to employing or engaging any employee or contractor of the other party who took part in performing this agreement. 2. During the same period, [NAME OF RESTRICTED PARTY] shall not approach, with a view to offering competing services, any customer of [NAME OF PROTECTED PARTY] with whom it dealt in performing this agreement. 3. Responding to an unsolicited application or to a job advertisement published to the general public does not amount to solicitation. 4. In the event of breach, the party in breach shall pay the other an agreed sum of [AMOUNT, e.g. X months of the gross salary of the person concerned], without prejudice to compensation for any greater proven loss.

Replace the bracketed items before use.

Variants

Staff-only version

During the term of the agreement and for [PERIOD] after it ends, the Client shall not employ or engage, directly or through another entity, any member of the Supplier's staff assigned to the services, without the Supplier's prior written consent. That consent may be conditional on payment of a fee of [AMOUNT].

When to use it

You place your developers or consultants with a client who might want to hire them directly.
You use a subcontractor who will deal directly with your customers.
A partner or senior employee leaves the company knowing your key accounts.
You enter a commercial partnership where both companies' teams work side by side.

Mistakes to avoid

Covering all of the other party's employees and customers instead of those actually involved in the contract.
Setting a long period unrelated to the real risk of poaching.
Failing to exclude unsolicited applications and public job advertisements, which makes the clause hard to apply.
Drafting what is really a disguised non-compete, which will then be judged under stricter rules.

Country-specific notes

France
In a ruling of 27 May 2021, the Commercial Chamber of the French Supreme Court held that a non-solicitation clause that restricts freedom of work and of enterprise is lawful only if it is proportionate to the legitimate interests to be protected, having regard to the purpose of the contract.
Source: CMS Francis Lefebvre, « Clause de non-sollicitation portant atteinte à la liberté d'entreprendre »

Contracts that use this clause

Frequently asked questions

A non-compete bars a competing activity altogether. A non-solicitation clause leaves the activity free but bars poaching the other party's staff or approaching its customers. It is therefore less restrictive, but must still be proportionate.

Other Protection clauses

Sources

CMS Francis Lefebvre, « Clause de non-sollicitation portant atteinte à la liberté d'entreprendre »

Indicative template, to adapt to your situation. It does not replace legal advice.

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Non-solicitation clause

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Variants

Staff-only version

When to use it

You place your developers or consultants with a client who might want to hire them directly.

You use a subcontractor who will deal directly with your customers.

A partner or senior employee leaves the company knowing your key accounts.

You enter a commercial partnership where both companies' teams work side by side.

Mistakes to avoid

Covering all of the other party's employees and customers instead of those actually involved in the contract.

Setting a long period unrelated to the real risk of poaching.

Failing to exclude unsolicited applications and public job advertisements, which makes the clause hard to apply.

Drafting what is really a disguised non-compete, which will then be judged under stricter rules.

Country-specific notes

France

In a ruling of 27 May 2021, the Commercial Chamber of the French Supreme Court held that a non-solicitation clause that restricts freedom of work and of enterprise is lawful only if it is proportionate to the legitimate interests to be protected, having regard to the purpose of the contract.

CMS Francis Lefebvre, « Clause de non-sollicitation portant atteinte à la liberté d'entreprendre »