Intellectual and non compete agreement ..................urgent
SIA...............
(Querist) 26 July 2013
This query is : Resolved
Hi Experts ,
My last employment was a fashion designer in an export house and i was handling international clients accounts and was also send abroad to meet them .
However at time of my appointment i was not asked to sign any non-compete or intellectual agreement , but later when i was asked to travel I had to sign the documents .
the agreement is made on company letter head and not on a stamp paper .
also it does not have any sign of witness and also it states that this agreement will be come into affect from 2008 that was my joining date but was signed in 2011 that when i was asked to travel .
In this agreement , it states that i cannot open my own business ever nor i can contact the same client ever in my life .
It also bounds me to take up new job for six months .
I want to know if can i open my own company and if the ex employee can file a case against me on breaching the contract .
Also as my research most of these contract are time bound but my contract does not mention any time period for opening my own company , it only says i can take up new job only after six months from official notice and can never ever open my own biz .
Also the contract say its bounded on my heirs and legal assignes too .
Pls advice .
many thanks in advacne .
S
Kumar Doab
(Expert) 26 July 2013
It shall be appropriate to arrange and show the job advertisement, interview call letter, offer letter, appointment letter, Employment book, product range as on date (and its description) of both current and prospective employer, inputs on confidential information/trade secrets/database shared by employer with employees, ………………..etc to a competent and experienced labor consultant/service lawyer/law firm, specializing in such matters, spend quality time with your lawyer, understand the merits, and proceed under expert advise of your lawyer………………………..after full understanding of the nuances of the matter posted by you.
The lawyer that has seen all documents and has analyzed the merits can advise you the best.
It is not clear from your post that you have signed ‘Non Compete’ agreement or ‘intellectual agreement’ or both or even more agreements………………..
If you have the copy in your record you may show it your lawyer.
What is the date on agreement and did you put date of signing it below your signatures?
The points to ponder are:
Can the employer construct claim, evidence from the matter you have posted and claim legal injury, injunction, damages…………………………….etc
The company has spent considerable amounts on you in arranging foreign travel to meet its international clients.
Article 21 of the Constitution of India guarantees the live to livelihood and since it is a fundamental right it is held to be inviolable. This makes the enforcing of non compete clauses in Indiaeven more of a difficult task.
Employee can not be restrained to join any other employer after separation and non compete clause amounts to restraint of lawful profession.
An agreement, which restrains anyone from carrying on a lawful profession, trade or business, is void to that extent. Under section 27 of the Indian Contract Act, 1872 agreements in restraint of trade are void.
Indian courts have consistently refused to enforce post-termination non-compete clauses in employment contracts, viewing them as "restraint of trade" impermissible under Section 27 of the Indian Contract Act, 1872, and as void and against public policy because of their potential to deprive an individual of his or her fundamental right to earn a livelihood.
Post term restrictive covenants have been held invalid …………………an employer is not entitled to protect himself against competition on the part of an employee after the employment has ceased.
The ‘Non Disclosure’, ‘Confidential Information’ may stand as an exception and, its validity may be upheld in post employment period.
Company may claim copyright in its ‘Database’ and it to be considered as ‘Confidential Information’.
The restraint sought to be achieved for the period of entire life time of the employee seems to be unreasonable.
Although you are citing defects let your lawyer’s opinion, that has seen all documents, be final.
If in your trade all employers would enforce such agreements it shall be appropriate to retain permanent access to a lawyer specializing in such matters and seek his counsel before you sign on the dotted line.
R.K Nanda
(Expert) 26 July 2013
repeated query.
Rajendra K Goyal
(Expert) 26 July 2013
Repeated query:
http://www.lawyersclubindia.com/experts/Intellectual-and-non-compete-agreement--410411.asp
Kumar Doab
(Expert) 26 July 2013
@ Sufera,
Your query has already been resolved by the learned experts and seniors.
What exactly is the benefit of initiating more than one thread with similar query.
SIA...............
(Querist) 26 July 2013
Dear Kumar ,
the query was posted today itself n was posted tiwce at the same,time by an technical error .
regards
s
SIA...............
(Querist) 26 July 2013
If u see it was exaclty a min later the second time it repeated n under diff category. .
