What is a non-solicitation clause?
A non-solicitation clause is a contractual provision that restricts one party from actively approaching, encouraging or inducing certain persons or entities to end, limit or change their relationship with another party. In practice, it is most often used to protect business relationships with employees, managers, contractors, customers, suppliers, business partners or key clients from being targeted after cooperation, employment or a transaction ends.
The purpose of a non-solicitation clause is not to prohibit all market activity. Its role is usually narrower: to prevent a party from using access to confidential information, business relationships, pricing data, customer lists or internal knowledge to take over people or clients connected with the other party. This makes it different from a non-compete clause, which may restrict competing activity more broadly.
Under Polish law, a non-solicitation clause does not have one comprehensive statutory definition. Its validity and enforceability are generally assessed under the principles of contract law, including freedom of contract, good faith, the nature of the legal relationship and mandatory rules protecting employees, competition and fair market practices. In employment relationships, additional care is required because restrictions imposed on employees must not unlawfully limit their statutory rights or professional freedom.
What does a non-solicitation clause cover?
A non-solicitation clause may apply to different categories of relationships, depending on the business purpose of the agreement. In employment and management contracts, it may restrict the solicitation of employees, co-workers or consultants. In commercial contracts, it may protect customers, suppliers, subcontractors or strategic partners. In M&A transactions, it may help preserve the value of the acquired business by preventing the seller from immediately approaching transferred clients or personnel.
The clause should define precisely what conduct is restricted. Typical examples include directly contacting a protected client with an offer to move business, encouraging an employee to resign and join another entity, using internal customer data to redirect orders, or assisting a third party in such activities. A well-drafted clause should also clarify whether it covers only active solicitation or also indirect conduct, such as acting through affiliates, recruiters, intermediaries or newly established companies.
The scope of the clause should be proportionate. Important elements include the duration of the restriction, the group of protected persons or entities, the territory, the type of prohibited conduct and the consequences of breach. Excessively broad clauses may be challenged, especially if they prevent ordinary competition, restrict professional mobility without justification or operate in a way similar to a non-compete clause without meeting the legal requirements applicable to such restrictions.
When is it worth using a non-solicitation clause?
A non-solicitation clause is particularly useful where one party receives access to sensitive commercial information or develops close relationships with the other party’s employees, customers or business partners. It may be relevant in employment contracts, B2B cooperation agreements, outsourcing contracts, distribution agreements, service agreements, joint ventures, investment agreements, settlement agreements and business acquisition documentation.
For employers, such a clause may reduce the risk of losing key team members as a result of targeted recruitment by a former manager, contractor or business partner. For companies working with external consultants or agencies, it may protect against the transfer of clients or staff after the project ends. For buyers in business transactions, it may be an important mechanism protecting goodwill, customer relationships and the operational continuity of the acquired enterprise.
For individuals and managers, legal review of a non-solicitation clause is equally important. A clause may affect future professional activity, cooperation with former colleagues or the ability to work with clients known from a previous role. Before signing, it is advisable to verify whether the clause is clear, limited in time and scope, and whether it creates financial exposure through contractual penalties, damages or injunctive claims.
A quick consultation with a lawyer can help avoid drafting errors, disputes over interpretation, invalid or excessive restrictions, liability for breach of contract and financial losses. It can also help distinguish between lawful protection of business relationships and provisions that may be disproportionate, unclear or difficult to enforce.
Legal risks connected with non-solicitation clauses
The main risk in non-solicitation clauses is lack of precision. If the clause does not identify who is protected, what conduct is prohibited and for how long, enforcement may become difficult. Another risk is excessive scope. A clause that covers all potential customers, all employees of a corporate group or an unlimited period may be considered disproportionate in light of the nature of the relationship and the legitimate interest being protected.
Non-solicitation clauses should also be assessed together with confidentiality obligations, non-compete restrictions, intellectual property provisions, personal data rules and unfair competition regulations. In some cases, the same conduct may involve breach of contract, misuse of trade secrets, unlawful use of personal data or acts of unfair competition. In other cases, the issue may be primarily evidentiary, for example proving whether a former contractor actively solicited a client or whether the client acted independently.
Law firm support in relation to non-solicitation clauses
Support in relation to non-solicitation clauses may include in particular:
- drafting non-solicitation clauses for employment, management, B2B and commercial agreements,
- reviewing the validity, proportionality and enforceability of existing clauses,
- advising on the difference between non-solicitation, non-compete and confidentiality obligations,
- preparing contractual penalty, damages and enforcement mechanisms where legally permissible,
- assessing risks before signing employment or cooperation agreements,
- supporting employers and companies in disputes concerning solicitation of employees or clients,
- advising on non-solicitation obligations in business acquisitions, mergers and shareholder arrangements,
- representing clients in negotiations, pre-litigation correspondence and court proceedings.
Need assistance with a non-solicitation clause? Contact us.
See also
- Employment Contract
- Business acquisition
- Commercial Law
- Business dispute