Marketing businesses—agencies, consultancies, in-house teams, and freelance marketers—live and die by relationships, creativity, and confidential know-how. When employees, contractors, or partners jump ship, they can — intentionally or not — take clients, talent, playbooks, and business momentum with them. Non-compete and non-solicit clauses are two of the most commonly used contractual tools to reduce that risk. This post explains what they do, how they differ, when they help (and when they don’t), drafting tips tuned to marketing businesses, practical alternatives, and a short checklist you can use when drafting or reviewing agreements.

1. What they are — simple definitions

• Non-compete clause: A promise by an employee/contractor not to work for, start, or assist a competing business for a specified period and in a defined territory after their engagement ends.

• Non-solicit clause: A promise not to solicit (i.e., actively approach or attempt to contract with) the employer’s clients, customers, or employees for a set time after the relationship ends. It can target clients, prospective clients, or personnel.

• Related tools: Confidentiality (NDA), non-disclosure of trade secrets, assignment of IP, garden-leave provisions, and non-dealing clauses (more restrictive than non-solicit).

2. Why marketing businesses use them

• Protect client relationships: Key account managers or creative leads often own direct ties to clients. Non-solicits prevent immediate poaching.

• Safeguard sensitive strategy and creative IP: Campaign strategies, media buys, pricing models, audience insights and templates are valuable business assets.

• Retain talent and team stability: Prevent departing employees from recruiting your best people to a competitor.

• Protect business value: Potential acquirers often look for clean client and employee retention; restrictive covenants can stabilize valuation.

• Deter opportunistic behavior: Even if not always fully enforceable, a well-crafted covenant can discourage immediate poaching or competition.

3. A reality check: enforceability and limits

• Jurisdiction matters — laws differ dramatically. Some places (certain U.S. states, EU countries) restrict or invalidate non-competes; others enforce them if reasonable. Always check local law.

• Reasonableness test — courts typically ask whether the restriction is reasonable in:

  • Scope (what activity is restricted),

  • Geography (where it applies),

  • Duration (how long it lasts),

  • Legitimate business interest protected (trade secrets, customer relationships, training investment).

• Overbroad clauses fail — vague or excessive restrictions are often struck down. A court may either void the whole clause or rewrite (blue-pencil) it — jurisdiction dependent.

• Public policy — courts balance employer protection with employee mobility and competition. Marketing roles often involve general skills courts view as freely usable; that reduces enforceability for sweeping non-competes.

4. Practical differences and when to use each

• Use non-solicit when: You need to protect client lists, current client relationships, and employee teams. Non-solicits are usually narrower and more likely to be upheld.

• Use non-compete when: An employee has access to trade secrets, key proprietary processes, or has a strategic role where direct competition would cause irreparable harm (senior partners, founders, directors).

• Consider role-specificity: For junior marketers, a non-compete is often unnecessary and risky to enforce. For senior account directors, business development heads, or founders, a tailored non-compete may be justified.

5. Drafting tips tailored to marketing businesses

1. Identify the legitimate business interest

   • Client lists, active campaigns, pricing strategies, proprietary algorithms, confidential media plans, and long-term strategic roadmaps.

2. Be narrow on activity

   • Instead of “not engage in marketing,” specify prohibited activities: e.g., “owning, managing, or being employed in a marketing agency that provides full-service digital marketing to X industry clients in Y territory.”

3. Tailor the geographic scope

   • Limit to territories where the employee actually worked or where the employer has clients. Global bans are rarely reasonable for most marketers.

4. Limit duration

   • Typical durations for marketing roles are 6–12 months; senior strategic roles might justify up to 18–24 months in some jurisdictions — but always check local law.

5. Distinguish clients and prospects

   • Define “Clients” to include active and recently served clients (e.g., those the employee directly serviced in the prior 12 months). For “Prospects,” narrowly define what counts (e.g., those on which the employee worked or received confidential info).

6. Include carve-outs

   • Allow the employee to work with clients of a certain size or in unrelated industries, or to accept roles that don’t materially compete (e.g., in-house marketing for a non-competing vertical).

7. Consider garden leave

   • Instead of a strict non-compete, place the employee on paid garden leave for the duration of the restriction, keeping them on payroll but away from clients. This strengthens enforceability and reduces temptation to breach.

8. Make obligations clear and measurable

   • Use objective language (who, what, where, when). Avoid “reasonably engaged” or other vague terms.

9. Consider remedies and mitigation

   • Stipulate injunctive relief for breaches, but also include liquidated damages carefully — courts may scrutinize penalties.

10. Address contractors and freelancers explicitly

    • Many marketing teams rely on freelancers. Specify whether the clause applies to independent contractors (they often need their own tailored covenants).

11. Obtain fresh consideration

    • In some jurisdictions (e.g., certain U.S. states), non-competes signed after employment begins require additional consideration (promotion, bonus, notice) to be enforceable.

12. Include a severability clause

    • So that if part of the covenant is struck down, other parts survive; but beware courts that refuse to rewrite an overbroad clause.

6. Sample clause snippets (illustrative — adapt to jurisdiction)

Non-Solicit (clients)

For a period of 12 months following termination, the Employee shall not, directly or indirectly, solicit or attempt to solicit any Client of the Company with whom the Employee had material contact during the 12 months prior to termination for the purpose of providing marketing services substantially similar to those provided by the Company.

Non-Solicit (employees)

For a period of 12 months following termination, the Employee shall not, directly or indirectly, solicit, recruit, or induce any Person who is employed by the Company at the time of such solicitation to leave their employment and accept employment with any business that competes with the Company.

Limited Non-Compete

For 12 months following termination, the Employee shall not be employed by, consult for, or own more than 5% of the outstanding securities of any business that provides comprehensive digital marketing services to the Company’s Clients within the metropolitan area(s) where the Employee serviced Clients on behalf of the Company during the 12 months prior to termination.

(Important: these are examples. Local law may require different terms or make such clauses unenforceable. Don’t copy verbatim without legal review.)

7. Alternatives and complementary approaches

• Stronger NDAs and IP assignment — make sure all creative work, templates, and campaign assets are assigned to the company and covered by a robust confidentiality clause.

• Client-relationship agreements — direct contracts with key clients that contain notice periods or penalty clauses for early termination to reduce immediate poaching risk.

• Non-dealing clauses — a broader ban on doing business with clients (more likely to be scrutinized).

• Notice periods and handover obligations — require departing employees to provide transition assistance to clients to reduce friction and limit harm.

• Retention bonuses and incentives — tie rewards to client retention or time-based vesting of commissions/bonuses.

• Proactive client management — minimize single-point dependencies by institutionalizing account ownership (multiple contacts, cross-trained teams).

• Knowledge management — centralize processes, playbooks, and campaign documentation so knowledge isn’t siloed.

8. Enforcement considerations (practical realities)

• Litigation is expensive and slow — balance the cost of enforcement against the harm. Often, seeking injunctive relief to stop immediate solicitation is the goal.

• Evidence matters — preserve communications, non-solicit breaches, offer letters from new employer, or evidence of client outreach.

• Reputational and commercial remedies — a threatened injunction may push parties toward negotiation (non-compete buyout, carve-out, or settlement).

• Mitigation — if a client leaves, demonstrate efforts made to retain them (emails, transition notes) to strengthen your position.

9. Industry-specific considerations for marketing businesses

• Client churn and short contracts — many marketing engagements are project-based or time-limited. Tailor the “clients” definition to recent/warm relationships, not every historical client.

• Freelancers and gig economy — independent contractors are mobile. Use short-term non-solicits, NDAs, and IP assignment for freelancers.

• Digital deliverables and data — media plans, audiences, analytics, and proprietary algorithms are high-value; protect these with NDAs and access controls.

• Creative work vs. general skill — courts often allow people to use general marketing skills. Focus restrictions on confidential strategies and direct solicitation, not general practice.

• Cross-border clients — for agencies with international clients, consider narrow geographic definitions and client-based restrictions rather than global non-competes.

10. Drafting checklist for marketing businesses

Use this as a quick review when creating or auditing a restrictive covenant.

1. Who is covered? (employee, contractor, consultant)

2. What activity is restricted? (clear, specific activities)

3. Which clients are included? (active clients, served clients in last X months)

4. What geographic area? (only where business or client relationships exist)

5. What duration? (commercially justified and jurisdictionally reasonable)

6. Are carve-outs/white lists defined? (e.g., verticals, companies)

7. Is there sufficient consideration? (especially for post-hire agreements)

8. Are confidentiality and IP assignment clauses present and robust?

9. Is garden leave or payment during restriction considered?

10. Is there a severability clause and choice of law/venue?

11. Do remedies align with jurisdictional norms (injunctive relief, liquidated damages)?

12. Does the clause balance enforceability with employee mobility?

11. Practical drafting examples (scenarios)

• Junior social media manager — prefer NDA + IP assignment + narrow non-solicit for clients directly handled in last 6 months. Avoid non-compete.

• Senior head of growth — consider NDA, IP assignment, non-solicit for clients and employees for 12 months, and a narrowly tailored non-compete limited to activities directly competing with the employer in the same city/vertical for 12 months.

• Freelancer producing creative assets — short-term non-solicit for clients they directly contact during engagement + strong IP assignment + NDA.

12. Final thoughts — balancing protection and mobility

Non-competes and non-solicits are powerful tools—when used thoughtfully. For marketing businesses, the most defensible and practical protections focus on client non-solicits, NDAs, IP assignment, and role-based limitations rather than broad, sweeping non-competes that restrict ordinary marketing skills. A tailored, well-justified, jurisdictionally compliant covenant paired with operational measures (documentation, cross-training, client contracts) will usually do more to preserve value than overbroad legal text that courts may refuse to enforce.

13. Closing checklist & next steps

If you’re drafting or reviewing an agreement for your marketing business today:

• Start by mapping the role’s access to clients, confidential materials, and strategic plans.

• Choose the narrowest form of restriction that protects that interest (non-solicit > non-compete where possible).

• Limit duration and geography to what’s commercially necessary.

• Pair contractual protections with garden leave, NDAs, IP assignment, and operational safeguards.

• Run the draft past counsel familiar with the relevant jurisdiction before rolling it out.