law

Non-competition Agreements

Are your covenants not to compete enforceable? Many factors go into whether or not a court will enforce a non-compete agreement. Courts will not only consider, among other things, the scope, territorial limitation, and duration of the agreement, but also whether there was adequate consideration.

Georgia and South Carolina differ as to what constitutes adequate consideration.

For example, if an employer asked an at-will employee to sign an agreement as a condition of his continued employment, the courts in each state differ as to whether this alone constitutes adequate consideration.

Non-competition agreements may also be valuable tools in other situations such as partnerships, franchises, and settlement agreements. However, a non-compete agreement is only a benefit if it is enforceable.

Below I have linked two opinions discussing the issue of adequate consideration, one from the Supreme Court of South Carolina and one from the Supreme Court of Georgia.

Supreme Court of South Carolina

Supreme Court of Georgia

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Terms and Conditions

Today I came across this article revealing that researchers have found it would take 15 work weeks for the average internet user to read all of the privacy policies he or she encounters in a year. That is an amazing figure but not overly surprising considering how many websites the average internet user access or subscribes to in a given year.

For example, I am sure that I agreed to a lengthy privacy policy when I bought this domain and when I downloaded the website’s theme.

The article got me thinking, though, about how long it would take the average internet user to read all of the terms and conditions, not just the privacy policies, of all the websites the user visits in a year.

Has anybody ever read the terms and conditions for a website, program, or application? LinkedIn’s user agreement, for example, is over 7,800 words (the privacy policy is about the same length). The terms and conditions on a website are just the latest versions of adhesion contracts – contracts where the consumer becomes bound by the terms if the consumer accepts the product (a/k/a shrink wrap contracts – the consumer becomes bound by the terms after opening the software package).

What has become known as browse wrap agreements – agreements binding upon the person accessing a website without deliberately consenting to the terms (you don’t have to hit “I AGREE”) – have become the norm. Many of these browse wrap agreements contain exclusive an jurisdiction provision and/or arbitration provisions. These provisions end or limit the judicial relief that would otherwise be available to the internet browser.

Because it is nearly unviversally accepted that these type of contract are enforceable, there are few local reported cases.

One that I found, from 2010 in the U.S. District Court for the Northern District of Georgia enforced the forum selection clause in Facebook’s agreement after a Facebook user brought a suit alleging copyright and patent infringement. The Court declined to address the case on the merits citing the user’s agreement to litigate only in Santa Clara County, California. In other words, the Facebook user couldn’t have his day in court in Georgia.

Given how much we surf the internet, we have likely unknowingly submitted ourselves to a plethora of terms and conditions and our only remedy for any wrong is likely in a far away locale.

 

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