Most unenforceable restrictive clause ever?

[Normie]

I often see posts in here regarding restrictive clauses in contracts. I think mine must be one of the most badly formed restrictive clauses ever? My comments added in [] :-

8.1 The Contractor [MyCo] agrees that for a period of 6 months after termination of this Agreement, howsoever arising, the Contractor shall not, and the Contractor shall procure that the Consultant [Me] does not, provide services the same or similar to the Services provided under this Agreement whether directly or indirectly to the Client [End Client] or any customer or client of the Client for whose benefit the Services are to be performed.

So according to this clause, I can't provide "same or similar" services to the client, "customer of the client" or "client of the client" for a period of 6 months?

The client is a large British Telecoms company - I wonder if there are many potential clients out there in the UK who are not customers or clients of the Big Telecom company? Does anyone disagree with my feeling that this would be totally unenforceable? I've got no worries about it actually being invoked, just somewhat amused that the clause as it stands is even in the contract.

[rd409]

The Supplier undertakes and shall procure that it and the Consultant shall not, during the Term or within a period of 12 months from the expiry or termination of this Agreement alone or jointly with any other person directly or indirectly supply services the same as or similar to the Services to the Client, any member of the Client's group of companies in the UK, or any other person or company who the Supplier or the Consultant had material contact with in the course of the supply of Services, apart from through ****** under the terms of an agreement similar to this Agreement.

This one beats your clause then. I have not opted out, and am not going to opt out as well. The client is a well known brand, and I am not sure, if there will be any business/residence who does not have or had material contact with the said client. This one goes out of the window straight away then.

[northernladuk]

I only scanned it but it looks like a pretty standard clause.

You have to use a bit of common sense though and think about it logically and understand why it exists.

If you start working for the people that clean and look after their coffee machine, the knowledge you have gained is of no use and cannot be copied, passed on etc. They would not enforce it in this situation.

If you worked for BT on their new super fast broadband system they would be very unhappy if you went to work for Virgin on their brand new super fast broadband system. They would be worried you would pass on their secrets, solution etc to the competitors. They would want to enforce it in this situation.

Got to always remember as well what is in a contract is nothing but words on the paper unless they are willing to take it legal. To do this they have to find out you are working for client etc, find out if what you are doing involves a risk to them and then go legal... How often does this happen? I am sure you can guess the answer to that.

[Wanderer]

I often see posts in here regarding restrictive clauses in contracts. I think mine must be one of the most badly formed restrictive clauses ever?

So broad that it would be a restraint of trade and probably overturned if you ever challenged it in court. Doesn't mean that the agency won't use it to try and bully you and/or the client though.

Did you opt-out? If you didn't then this clause is invalid, so there's a lesson learned.

[SueEllen]

The clause can't be enforced because it's too wide.

Someone tried to do that on me. I spoke to a barister about it and he laughted before telling me that.

You cannot restrict someone from working with a client's clients or customers like that.

Simply as there is no way for you to know who they all are (I doubt the agent knows themselves) , and if the client is massive then it's basically stating you cannot work at all.

If there is an issue with trade secrets and confidentiality like in the example northernladuk gave, then this should be tackled in a confidentiality clause not a restriction of trade clause.

[wim121]

I often see posts in here regarding restrictive clauses in contracts. I think mine must be one of the most badly formed restrictive clauses ever?

Not at all.

I have known contractors/companies to try pulling a fast one. Instead of paying the agency a buyout fee, they cancel the contract and hire them. Ive known companies to get sued for such behaviour.

I only scanned it but it looks like a pretty standard clause.

You have to use a bit of common sense though and think about it logically and understand why it exists.

Exacly .... Most agencies I work for have this clause ... Perfectly understandable ...

[cojak]

So you're an agent then wim121?

[MarillionFan]

So you're an agent then wim121?

Well he doesn't seem too bright, so it's a possibility.

[Old Greg]

Well he doesn't seem too bright, so it's a possibility.

I didn't know you were an agent, MF.

@ OP - 'large British Telecosms company' - priceless.

[Wanderer]

The clause can't be enforced because it's too wide.
Someone tried to do that on me. I spoke to a barister about it and he laughted before telling me that.
You cannot restrict someone from working with a client's clients or customers like that.

Yeah, but some contractors (and clients) will pay up when threatened by the agencies bluff and bluster over things like this. As usual, agents are trying it on because they have nothing to lose and who knows, sometimes they might even a bit of money out of it.