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In 1999 a court in the Southern District of New York held that a non-compete clause prohibiting an employee from working for a competitor for one year was unreasonably long and therefore unenforceable given the dynamic nature of the Internet industry. Earth Web Inc. v. Schlack, 71 F. Supp. 2d 299 (S.D.N.Y. Oct. 27, 1999). This decision appears to represent a trend, particularly in New York and California. The following language added to the restrictive covenants section of an agreement may ensure the enforceability of a non-compete clause. Reasonableness.Consultant acknowledges that based on Consultant’s unique skills, position and exposure to Confidential Information, the breach, or threatened breach, by Consultant of the provisions of this Section___will cause irreparable harm to Company, which harm cannot be fully redressed by the payment of damages to Company. Consultant further acknowledges that: (i) in the event Consultant’s employment with Company terminates for any reason, Consultant will be able to earn a livelihood without violating the foregoing restrictions and (ii) this ability to earn a livelihood without violating such restrictions is a material condition to Consultant’s employment with Company. Consultant further agrees and acknowledges that due to Consultant’s unique skills, position and exposure to Confidential Information and in light of Consultant’s substantial contact with customers and access to Confidential Information, the time period of twelve (12) months of this Section __ is reasonable under the circumstances. Randy Monkarsh is an associate in the New York office of Brown, Raysman, Millstein, Felder & Steiner LLP. This sample clause is intended to serve solely as an exemplar and may need to be modified to conform to the legal requirements of your jurisdiction. It in no way constitutes legal advice.

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