Concluding agreements with foreign customers, many IT specialists have repeatedly come across a contract clause prohibiting the conclusion of similar contracts in the IT sphere within the duration of the contract or some period after its termination.
This, of course, poses the question: How shall I work hereafter? After all, the customer does not provide a list of IT companies in which it is prohibited to work, but in fact, prohibits working in general in the IT market as a whole.
You need to understand that such restrictions are more inherent to the American market, although European companies are willing to use them in contracts for IT services. In this article, we will consider the features of such clauses on restrictions in Ukraine, since the legislative framework and judicial practice in the United States or EU countries require individual detailed attention.
According to the provisions of the Constitution of Ukraine and a number of legislative acts of Ukraine, each person has the right to freely choose the object and type of his/her activity, freely get employed or choose the customers to perform tasks (for example, in software development). This position is also supported by some Ukrainian courts in their decisions.
Therefore, any restrictions in contracts that prohibit the conclusion of other contracts for the software development, either with Ukrainian or foreign IT enterprises, are, in fact, those that limit the constitutional rights a person. Consequently, they cannot be implemented through legal proceedings. In other words, an IT company will simply not be able to justify its requirements to the developer by such contract clauses.
However, legal professionals interpret the contractual clauses on restrictions in such a way that makes them legally applicable. This path has been also followed by the judicial practice, according to which the conclusion of a contract or work for another IT company is considered through the prism of confidentiality clauses.
In particular, if an IT company can prove in court that a developer’s work for another company violates the confidentiality rules, then such a developer may be subject to penalties. The following court decision can regarded as an example of such a decision.
At the same time, judicial practice on issues of “non-competition” in the IT sphere is at the development stage, and the opinion of the Supreme Court of Ukraine is yet to be obtained; however, some courts are already directly applying the restrictive clauses of contracts without any references to confidentiality.
Therefore, a general recommendation to all Ukrainian developers who change their customer or create their own start-up is not to violate the intellectual property rights and confidentiality rules of your previous customers, and in such case you will have good chances of defending yourself in court. Under this condition, you can change the IT companies for which you work.
To obtain the legal advice on working in the IT field, to check the contract for development or to obtain professional defense by a lawyer in courts, you can contact the Law Firm «Zilver»: + 38 050 140 95 60 or info@zilver.com.ua.
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