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Is the below paragraph enforceable in Florida Courts Its

 

Customer Question

Is the below paragraph enforceable in Florida Courts? It's part on the non-compete claus in my Termination agrement.

I understand that Herzog possesses confidential proprietary information which is important to its business. For purposes of this Agreement, "Proprietary Information" is information that was and/or is hereafter developed, created, or discovered by Herzog, or which became known by or was conveyed to Herzog which has commercial value in Herzog's business, including but not limited to, trade secrets, ideas, techniques, and any other information of any type relating to Herzog's business. I agree not to disclose or use Herzog's Proprietary Information or other confidential information relating to any of the Released Parties, without first obtaining the prior written consent of Herzog. I further agree not to make any disparaging remarks about Herzog or any of the Released Parties. In addition, I will not interfere with, disrupt or attempt to disrupt relationships between Herzog and its customers, vendors, employees or others who are in any way related to Herzog's business. Except as otherwise provided in this Agreement, for a period of three (3) years commencing upon the execution of this Agreement (the "Restricted Period"), Kelly shall not directly or indirectly engage in (as a principal, shareholder, partner, director, officer, agent, employee, consultant
or otherwise) or be financially interested in any business operating within the geographic areas where Herzog now or in the future engages in its business (the "Restricted Area") which is involved in business activities which are the same as, similar to or in competition with business activities carried on by Herzog, or being planned by Herzog, at the time of the date of this Agreement; provided, however, nothing contained in this paragraph 5 shall prevent Kelly holding for investment not more than one percent (1%) of any class of equity securities of a company whose securities are publicly traded on a national securities
exchange or any national market system. I agree that in the event of a breach or a threatened breach of this Agreement, Herzog shall be entitled to obtain an injunction to prevent the violation of the provisions hereof. In addition, Herzog shall have the right to pursue all other available remedies, including, payment of its legal expenses. Notwithstanding anything to the contrary herein contained, if and only if, any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid or unenforceable, then the parties agree that such invalid provision shall be retroactively replaced to the date of this
Agreement by replacement language which comes as close as possible to the intent of the stricken or invalid or otherwise unenforceable provisions, and which is enforceable as rewritten. Under such circumstances, the court or arbitrator may request the parties to each submit their respective proposal to the court or arbitrator and the court or arbitrator, in such event, shall select the most reasonable proposed replacement language for this Agreement.

Regards,
Rhone Kelly

 

Optional Information:
State/Country relating to question: Florida

Submitted: 664 days and 1 hours ago.
Category: Employment Law
Value: $30
Status: CLOSED
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Expert:  MDLaw replied 664 days and 1 hours ago.

Hello and thank you for using the JA website. Please remember that this site is intended to provide general legal information only.

That appears to be standard language used in a severance agreement. Florida courts will enforce non-competes if they are considered reasonable in terms of area and time. Terms of longer than 2 years are generally considered unreasonable unless the longer time period has to do with protection of a company's trade secrets.

Please let me know if you need any clarification.

Customer replied 664 days ago.

Relist: Answer quality.

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Expert:  MDLaw replied 664 days ago.

What issue did you have with my answer. I mentioned to let me know if you needed any clarification and you have not asked for any.

Customer replied 664 days ago.

Relist: Answer quality.

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Expert:  MDLaw replied 664 days ago.

Is there a reason you keep hitting the relist button instead of responding to me?

Customer replied 664 days ago.

Is this part enforceable in Florida?

 

Kelly shall not directly or indirectly engage in (as a principal, shareholder, partner, director, officer, agent, employee, consultant
or otherwise) or be financially interested in any business operating within the geographic areas where Herzog now or in the future engages in its business (the "Restricted Area") which is involved in business activities which are the same as, similar to or in competition with business activities carried on by Herzog, or being planned by Herzog, at the time of the date of this Agreement; provided, however, nothing contained in this paragraph 5 shall prevent Kelly holding for investment not more than one percent (1%) of any class of equity securities of a company whose securities are publicly traded on a national securities
exchange or any national market system.

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Expert:  MDLaw replied 664 days ago.

That is considered a non-compete agreement and as I stated in my previous answer, Florida courts will enforce non-competes if they are considered reasonable in terms of area and time. Terms of longer than 2 years are generally considered unreasonable unless the longer time period has to do with protection of a company's trade secrets.

Please let me know if you need any clarification. Otherwise, please remember to hit the green ACCEPT button as that is the only way that we experts get compensated for our time, expertise, and research. We do not get paid by the website and so we rely on customers to honor the honor system and accept our responses so that we can continue to provide this service to people such as yourself. When leaving feedback, please also remember that we experts do not make the laws. We only report what the laws are and so please do not shoot the messenger.

Customer replied 664 days ago.

But it is saying that I cannot work anywhere in the world for a period of three years in the only business (construction) I have been doing for 20 years. Is that enforceable?

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Expert:  MDLaw replied 664 days ago.

As I stated, Florida courts will only enforce non-competes if they are reasonable in terms of geographic area and time. If the company can show that the 3 years is necessary to protect trade secrets, then it would be enforced. Otherwise, FL courts will find any time length over 2 years to be unreasonable. The geographic area, according to the language you have cited is limited to the areas in which the company conducts business.

Please remember that, per site rules, we can only provide legal information and we cannot give you a legal opinion.

 
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