Non-Solicitation Clause: Meaning, Sample & Drafting Tips (India)
A non-solicitation clause stops a party from actively approaching the other party's employees or customers to lure them away, usually during the contract and for a period after it ends. In India its enforceability after termination is uncertain because of section 27 of the Indian Contract Act, so it should be narrow and tied to genuine interests.
How it works under Indian law
Section 27 of the Indian Contract Act, 1872 voids agreements in restraint of trade. Indian courts have not taken a single consistent view on post-termination non-solicitation: some decisions treat a restriction on soliciting the former employer's customers as a restraint of trade and therefore void, while others have been more willing to restrain the use of confidential customer information to solicit.
A restriction on poaching the other party's employees is generally viewed more favourably in commercial (business-to-business) contracts than a customer non-solicit, because it is narrower and protects a legitimate interest. However, it can still be challenged if it effectively prevents individuals from finding work.
The safest drafting targets active solicitation (not merely dealing with someone who approaches you), limits the restriction to people the party actually worked with, keeps the duration short, and is backed by a confidentiality clause — misuse of confidential customer lists is actionable independently of section 27.
Drafting checklist
- Separate employee non-solicit from customer non-solicit — they carry different enforceability risk.
- Target active solicitation, not dealing or hiring generally.
- Limit to people the party actually dealt with, over a defined look-back period.
- Keep any post-termination period short.
- Add the general-advertisement carve-out.
- Anchor customer protection in confidentiality of customer information.
Sample non-solicitation clause
Two versions: a standard position and an alternative you can offer in negotiation. Replace every [placeholder] before use.
Standard mutual employee non-solicitation
Standard positionDuring the term of this Agreement and for [12] months after its termination or expiry, neither Party shall, directly or indirectly, solicit or entice away from the other Party any employee of that Party with whom it had material contact in connection with this Agreement during the preceding [12] months. This Clause shall not prevent either Party from hiring any person who responds to a general advertisement or recruitment campaign not specifically targeted at the other Party's employees, or who approaches it on their own initiative.
Customer-protection version (confidential information based)
Protecting party-favourable — anchors customer protection in confidentialityDuring the term of this Agreement, [Party A] shall not solicit any customer of [Party B] introduced to it under this Agreement for the purpose of supplying [competing services]. After termination, [Party A] shall not use [Party B]'s Confidential Information, including its customer lists, pricing and customer requirements, to solicit or deal with any such customer. The Parties acknowledge that this Clause is intended to protect Confidential Information and is not intended to restrain either Party from carrying on any lawful business.
Who pushes for what
Typical negotiating positions on each side of the table.
Customer of an outsourcing or staffing supplier
Wants the right to hire supplier staff on exit, or a fee-based release.
Supplier
Wants a mutual employee non-solicit with a placement fee if the customer hires its staff.
Common middle ground
12-month mutual non-solicit of key personnel, general-advertisement carve-out, agreed placement fee as an alternative.
Common mistakes
- Prohibiting "dealing with" any customer for years after termination — likely to be treated as a restraint of trade.
- Covering all employees of the group worldwide, not just those involved in the deal.
- No general-advertisement carve-out, which makes ordinary hiring a breach.
- Relying on the clause alone without confidentiality protection for customer data.
Frequently asked questions
Is a non-solicitation clause valid in India?
During the contract term it is generally enforceable. After termination the position is uncertain under section 27; narrow employee non-solicits in B2B contracts stand a better chance than broad customer non-solicits.
What is the difference between non-compete and non-solicitation?
A non-compete stops a party from competing at all. A non-solicitation clause only stops it from actively approaching the other party's employees or customers. Non-solicitation is narrower but still faces section 27 scrutiny after termination.
Can I hire an employee who approaches me on their own?
Most clauses allow it through a carve-out for unsolicited approaches and responses to general advertisements. Check the exact wording of your clause.
Related tools, formats and guides
Build a clause library with approved fallbacks in CaseDocker
Store your approved clause language and pre-agreed fallback positions in CaseDocker's Contract Management module, and use Playbooks to route any deviation to the right approver before the contract goes out for signature.