How to Review an Employee Non-Solicit in a Vendor MSA

Sales says it is a standard non-solicit. That heading does not tell you how to review employee non-solicit in a vendor msa. The sentence can lock your hiring desk: every employee worldwide, solicit or hire, twenty-four months after exit, no inbound carve-out. Write who is covered, split solicit from hire, lock months after exit, price a hire-away fee or strike the ban, then keep, narrow, or walk.

On 3 September 2026, Cole — Ops, 17-person UK agency — has Finance’s yes on a design vendor. Clause 14 bans solicit or hire of any employee of Vendor or Affiliates worldwide for twenty-four months after exit, plus twelve months’ fees as liquidated damages. Typical mistake under Monday pressure: treating the heading as cover while the hidden risk sits in “or hire.”

In the UK a vendor MSA non-solicit is not automatically a cartel — and it is not automatically fine. The CMA Competing for talent guide (9 September 2025) treats a no-poach as a Competition Act 1998 Chapter I risk even if it is not mutual. A commercial clause might sit inside that proviso only if it is necessary, proportionate, and no wider than reasonably required. Cole’s draft fails that test. Tillman v Egon Zehnder [2019] UKSC 32: an England-and-Wales court will not rewrite an unreasonable covenant.

Disclaimer: Checkory provides AI support, not legal advice. Consult a qualified lawyer for binding decisions.

This is not an NDA residual or a hidden non-compete

Freeze the packet — the exact file set that will be signed: MSA, SOW, and any staffing exhibit — the attached schedule. Search non-solicit, non-hire, conversion, hire-away, affiliates, worldwide. Write the artefact: this clause locks hiring, not confidentiality leftovers.

Residuals and a hidden non-compete in an NDA — a non-disclosure agreement — are a different hunt — one sentence, then the NDA review checklist. A non-compete stops market work; a non-solicit limits poaching (Sprintlaw UK, 2025, structure-only). Cole’s Clause 14 is a hiring lock. One sentence on the freeze: the contract packet checklist.

• Do: name the artefact — MSA employee non-solicit — before you argue duration.
• Do not: treat “we have a non-solicit” as an NDA residual walk.

Who is covered — named team or every employee worldwide?

The High sentence is “any employee of Vendor or its Affiliates, anywhere in the world, whether or not they worked on the Services.” That is a census, not a covenant. For example, a 17-person UK agency does not need a Manila lock.

Buyer ask: people who performed under this agreement or with whom Cole’s team had material contact, plus a look-back. PactDraft (December 2025), structure-only, limits the class to people on the engagement. Ookulli (July 2026): England and Wales treats every employee you never met as a red flag.

• Do: write a named / material-contact list, not a global headcount.
• Do not: accept “whether or not they worked on the Services.”

How do you split solicit vs hire, and what does a general-ads carve-out do?

Split the verbs. Solicit means Cole’s team initiates targeted outreach — a cold-call, “we have a role,” a headhunter pointed at Vendor. Hire or non-dealing means the person is still forbidden even if they applied on LinkedIn or a public board.

Write three carve-outs: general advertising not aimed at Vendor; unsolicited applications; an agency not instructed to target Vendor. Terms.law, structure-only: reject “this applies regardless of general advertising.” Direcstaff (2026) flags “indirect” language that bites when the person independently applies. Document who initiated contact.

• Do: keep a general-ads + inbound + undirected-agency carve-out.
• Do not: accept “solicit or hire” with no inbound exception.

What does a 12-month tail do that a 24-month tail does not?

Cole’s paper runs during the Term and twenty-four months thereafter. Two years after exit is a hiring freeze on a 17-person agency. Forever, or no end date, is worse. Clock from the End Date or last material contact, towards twelve months.

Buyer colour, not a UK statute: MC Law calls twelve months common. Ookulli: 6–12 months, people you had real dealings with; 24 months is the red-flag column. HR News 2026, structure-only: beyond twelve months is increasingly hard. No UK statutory 12-month cap.

• Do: write months from last material contact or End Date, towards 12.
• Do not: accept 24 months worldwide as “normal,” or a clock with no end.

How do you price a hire-away fee instead of a ban?

A ban plus liquidated damages equal to twelve months’ fees is a penalty-shaped invoice, not a hiring path. A hire-away fee lets Cole hire the person and pays the vendor’s recruiting cost. Prefer a stated percentage that decays over a worldwide no-hire.

Market colour — not a Checkory or statutory percentage. PactDraft cites 15–30% of first-year compensation as an alternative to a ban. Direcstaff cites 15–25% or a flat fee, disclosed in the MSA. Push: the fee decays with tenure and hits zero. A fee plus a worldwide hire ban is two restraints.

• Do: price a disclosed conversion % that decays, as the exclusive path.
• Do not: keep a ban and twelve months’ fees with no hire-away route.

Checklist: make it mutual or strike it

Cole’s draft binds Client only. The vendor can still hire his 17 people. Buyer ask: a mutual non-solicitation service agreement — same class, months, and ads/inbound carve-outs. Mutuality does not wash a no-poach.

Success bar: a one-page log and one sentence that pauses before you sign. “We have a non-solicit” is not that sentence if the class is worldwide and 24 months with no inbound carve-out. Workflow: packet → not B01 residual/non-compete → who is covered → solicit vs hire + ads/inbound → months after exit → fee vs ban → mutual or strike. GOV.UK employers advice (2023): do not agree with another business not to hire each other’s staff. Checkory can run a first-pass — a first machine pass — on the same MSA PDF at document analysis.

• Do: take mutual + carve-outs + ≤12 months + a priced fee, or walk.
• Do not: keep a one-way Client-only lock because sales called it standard.