This Agreement Prohibiting Solicitation and Direct Hire of Patients (”Agreement”) is entered into by and between (the “Agency”), on behalf of itself, its subsidiaries, owners and any affiliates (collectively referred to herein as the “Agency Group”), and , a recipient of home care services with the Agency and/or Agency Group (the “Patient”). In consideration of the Patient receiving services from the Agency or Agency Group, which the Patient hereby acknowledges to be good, valuable, and sufficient consideration for the Patient’s obligations hereunder, the Agency and the Patient hereby agree as follows:
Non-Solicitation. The Patient agrees and covenants that, during the Restricted Period, Patient will not, directly or indirectly:
1. solicit, contact, or attempt to solicit or contact, any individual who is, or that was, an employee or contractor of the Agency or of any of its Affiliates at any time during the twenty-four (24) months immediately preceding the termination of the Patient’s relationship with the Agency Group, where the purpose of such communication is to offer employment to the employee and where the employer would be the Patient and/or the Patient’s family or representative;
2. ask any employee of the Agency or Agency Group to accept employment with and/or by the Patient or any representative of the Patient during the Restricted Period, if such employee provided services to the Patient at any point in time during the 12-month period preceding the end of the employee’s employment with the Agency or Agency Group;
3. hire or employ any employee of the Agency, Agency Group, or any of its Affiliates, where the employment of the employee is for purposes of having the employee perform any services that are the same or similar to the services performed by the employee for the Patient while the employee was employed by the Agency, Agency Group, or any of its Affiliates; or
4. solicit, induce or attempt to solicit and induce any employee of the Agency or Affiliate to leave employment with the Agency in order to accept employment with another entity, where the premise of employment with another entity would be to provide the same or similar services as those that the employee performed while working for the Agency or the Agency Group.
For purposes of this Non-Solicitation Section, the “Restricted Period” begins on the day that the Patient executes this Agreement and continues through the date that is twelve (12) months following the date of the Patient’s termination from services with the Agency, regardless of the circumstance(s) of or reason(s) for such termination.
“Affiliate” means any other entity which directly or indirectly controls, is controlled by, or is under common control with the Agency, as applicable, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of the applicable entity whether through the ownership of voting securities or otherwise.
The restrictions in sections one (1) through four (4) above will apply regardless of whether the Patient hires or seeks to hire the employee directly, through a third-party agency, through the Patient’s family, or through another home care agency (“Patient Representative”).
Acknowledgments. The parties acknowledge that the purpose of these restrictions is to inhibit and prohibit the poaching of the Agency’s employees by patients and/or the patients’ families. The Patient acknowledges and agrees that: (a) the nature of the Patient’s services with the Agency will give the Patient access to the Agency’s employees and the opportunity to develop close relationships with employees; (b) the services to be rendered by employees of the Agency are special and unique character; (c) the Agency and its Affiliates have invested substantial time, money, and resources in recruiting, training, and developing its employees, providing them with gainful employment and benefits in order to promote employee loyalty and services; (d) the Agency and its Affiliates are highly dependent on skilled and experienced caregivers to provide services, and there is a shortage of home care workers generally; (e) the restrictive covenants contained in this Agreement are reasonable in scope and content, and are no broader than necessary to protect the legitimate business interests of the Agency and/or its Affiliates; and (f) the Patient will not be subject to undue hardship by reason of the Patient’s full compliance with the terms and conditions of this Agreement or the Agency’s enforcement thereof.
Relief. The Patient acknowledges and agrees that any violation of any of the Patient’s obligations under this Agreement would result in irreparable injury to the Agency and/or its Affiliates, as applicable, for which there would be no adequate remedy at law and, therefore, in the event of a breach or threatened breach by the Patient of any of the provisions of this Agreement, the Patient hereby consents and agrees that the Agency and/or its applicable Affiliates shall be entitled to a temporary or permanent injunction, and/or other equitable relief, against such breach or threatened breach from any court of competent jurisdiction, without the necessity of proving any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief. The Patient further acknowledges that each Affiliate is an intended third-party beneficiary of this Agreement. Any breach by the Patient of this Agreement will entitle the Agency (and/or any Agency Group that is aggrieved by the Patient’s breach) to $10,000 in liquidated damages per Agency employee that is improperly solicited or hired by the Patient or any Patient Representative, and such relief shall be in addition to and not in lieu of any injunctive relief.
Reformation. If a restrictive covenant provided for in this Agreement is found by a court of competent jurisdiction to be unenforceable as written, the court must revise the restriction, to the minimum extent necessary, so as to make it enforceable and to protect the Agency’s and its Affiliates’ legitimate business interests. In this regard, the Parties expressly agree that such court may create or modify any time, scope, or geographic restriction contained in this Agreement to render it enforceable.
Governing Law; Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of the State of New York without regard to conflicts-of-law principles. Any action or proceeding by either Party to enforce this Agreement shall be brought only in any state or federal court located in the State of New York, County of . The Parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
Entire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and representations between the Patient and the Agency pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is in a writing signed by the Patient and by a duly authorized officer of the Agency (other than the Patient). No waiver by either of the Parties of any breach by the other Party of any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the Parties in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the Parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The Parties further agree that any such court is expressly authorized to, and shall, modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement, or making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.
Survival. All of the Patient’s obligations under this Agreement will survive the termination of the Patient’s relationship with the Agency, regardless of the circumstance(s) of or reason(s) for such termination.
In witness whereof, the Parties have executed this Agreement to be effective as of the Effective Date.
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