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Thank you for the response. Please find below the details:
a) Our firm (in the state of GA) and her firm (in the state of WI) has a Master
Services Agreement in place. It says: ES and the undersigned Supplier agree as
• This agreement shall continue for a term of one (1) year after the date first
entered above, unless terminated sooner as set forth herein, and will be
automatically renewed for like terms unless either party servers written notice
of its intent to terminate this agreement.
3. Covenant not to compete
A. By soliciting any Client of ES with whom the Supplier had dealings with or on
behalf of ES as part of this agreement B. By soliciting business at the same location at which Supplier is providing
services on ES's behalf C. By soliciting, hiring, assisting in soliciting or hiring, or offering employment to
any employee of ES or client, or by including any personnel of ES or Client to
leave the services of ES or the Client, as the cause may be.
b) Timeline & Events: 1. Work Order Start Date: 06/29/2009 2. Work Order End Date: 12/31/2010 3. As per the non-compete clause in the agreement, not to offer services (direclty
or indirectly) until 1/1/2012 4. She has worked on our contarct until 12/31/2010 5. However on 12/27/2010 she chose to represent another firm (our competitor)
and let them submit her profile to our Client. Our Client has confirmed it. 6. We have not yet contacted the consultant about the possible breach. Waiting
on legal advise 7. One of her invoice (for services offered in Nov 2010) is due for payment on
Thank you for the reply. You have not mentioned about releasing her pending payments. One invoice for services offered in Nov 2010 is due for payment on 1/8/2011 and the last invoice for services offered in Dec 2010 is due on 2/8/2011.
1. As of today, the client has not completed the hiring process of the consultant thru
the competition firm. The approximate value of this extension contract is $175,000.
Whether the Consultant gets engaged or not thru the competition firm, can we still
claim breach of non-compete as she chose to represent another firm while being
on our contract on 12/27/2010?
2. If we can claim breach of contract, can we put a hold on the above mentioned
invoice payments, until this issue is resolved?.
3. If we can hold the payments, how do we address it properly to her?
4. In case if we cannot hold the payments, is there a time limit and/or any restrictions
in pursuing this issue with her.
Thank you for your follow-up.
You cannot withhold the funds because they are not directly related to the possible breach. . Those funds you must return or you yourself will be liable for breach.
From reading the section of the non compete you posted, there is enough to file simply for attempting to breach the terms. It is just that you injuries (and hence, damages) would be limited.
Thank you. As you said, we will send her payments. This week or next week she should be hired by the comeptition firm. After she gets hired should we proceed with your advice as mentioned earlier by following the two step (1st step: reach out to the consultant directly on non-compete and 2nd step: Hire a Business attorney and fire off "cease and desist" letter) process?
Please confirm and I will accept your answer. On another note, during next few weeks if I post a new question here, will you be able to answer? Thank you again for your quick response!.
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