Non-solicitation Clauses for Creative Agencies in New Zealand

A non-solicitation clause for creative agency work can look harmless in a contract, right up until it blocks you from hiring a freelancer, speaking to a client contact, or pitching for follow-on work you thought was fair game. This is where agency owners and founders often get caught. They sign broad restrictions without checking who is protected, how long the restraint lasts, or whether the wording goes beyond legitimate business protection into something that may be hard to enforce.

Common mistakes are easy to make. One is treating non-solicitation wording as standard boilerplate. Another is confusing it with a non-compete clause, even though the risks are different. A third is relying on a verbal assurance that “we’d never enforce that” instead of fixing the draft before you sign.

If your agency works with brand strategy, design, media, digital marketing, production, or creative freelancers, this guide explains what a non-solicitation clause usually covers in New Zealand, what to check before you sign, where agencies get into trouble, and how to make the clause more practical and enforceable.

Overview

A non-solicitation clause aims to stop one party from poaching clients, staff, contractors, or business opportunities from the other party for a set period. In the creative sector, it is usually used to protect relationships that have taken time and money to build, but the wording must still be reasonable and tailored to the deal.

• Who the clause protects, such as clients, prospective clients, staff, freelancers, contractors, or referral partners
• What conduct is actually restricted, including direct approaches, indirect approaches, introductions, tendering, and accepting work that results from a solicitation
• How long the restraint lasts and whether the duration is realistic for the project and relationship
• Which geography or market segment the clause applies to, if any
• Whether the clause is mutual or only protects one side
• How the clause interacts with confidentiality, intellectual property, and employment restraints
• What carve-outs are needed for pre-existing clients, public tenders, inbound enquiries, and general advertising

What Non-solicitation Clause for Creative Agency Means For New Zealand Businesses

A non-solicitation clause for creative agency arrangements is usually about relationship protection, not a blanket ban on doing business. The practical question is whether the restriction is narrowly drafted to protect genuine commercial interests without unfairly stopping ordinary trade.

Creative agencies sit in a relationship-heavy market. A client account manager may become the trusted contact for a brand team. A strategist may work closely with a production partner. A freelancer may move between agencies. Because these relationships are mobile, businesses often include non-solicitation wording in service agreements, contractor agreements, partnership deals, collaboration agreements, and sale of business documents.

What the clause usually covers

In plain English, a non-solicitation clause says one party will not actively approach certain people or businesses to pull them away from the other party. In agency contracts, that may extend to several groups.

• Clients or customers introduced during the engagement
• Prospective clients the parties pitched together
• Employees, contractors, or key freelancers
• Suppliers, production partners, or referral sources
• Named contacts at a client business

The wording matters. “Solicit” can mean anything from a direct pitch to a targeted LinkedIn message, a recruitment approach, a private meeting, or an indirect introduction through another person. If the definition is vague, arguments start later about whether the conduct was active solicitation or simply normal market activity.

How it differs from a non-compete clause

A non-solicitation clause is narrower than a non-compete clause. A non-compete tries to stop a business or person from competing at all, or from working in a certain area. A non-solicitation clause is more targeted. It usually accepts that you can still trade, but it limits how you approach protected relationships.

That distinction matters in New Zealand because broader restraints are generally harder to justify. If an agency contract says you cannot provide creative services to anyone in a whole sector, that is a much bigger restraint than saying you cannot directly approach a list of clients you met through the deal for six months after it ends.

Why agencies use these clauses

The business reason is usually legitimate. Agencies invest time in winning accounts, nurturing contacts, training account leads, and building delivery teams. If a contractor or collaborator can use that access to take the client or recruit key people as soon as the project ends, the commercial damage can be real.

Still, the law does not automatically enforce every restraint just because the business concern is understandable. The clause generally needs to protect a legitimate business interest and be reasonable in scope. That is why the contract drafting should match the real risk.

Where these clauses show up in practice

Founders often see a non-solicitation clause before they accept the provider's standard terms, sign a referral arrangement, or bring in a senior contractor with close client access. The most common documents include:

• Master services agreements between an agency and a client
• Subcontractor and freelancer agreements
• Collaboration agreements between agencies
• Employment agreements for senior staff
• Share sale or business sale agreements
• Referral and commission arrangements

The same phrase can mean different things depending on the contract. A client may ask the agency not to solicit its staff. An agency may ask a freelancer not to solicit the agency’s clients. Two agencies teaming up on a pitch may each want mutual protection.

How New Zealand businesses should think about enforceability

New Zealand businesses should treat these clauses as potentially enforceable, but only to the extent they are reasonable and properly targeted. Courts generally look closely at restraint clauses. A term that is wider than necessary may be vulnerable, especially if it appears to punish competition rather than protect a real business interest.

That means context matters. A six-month restraint over a named client list may be easier to defend than a two-year ban covering every potential client in New Zealand. A restriction on soliciting employees you worked with closely may be more justifiable than a ban on contacting anyone connected with the other party in any capacity.

Legal Issues To Check Before You Sign

Before you sign a contract with a non-solicitation clause, the real job is to test whether the scope matches the commercial risk. If the wording is too broad, too vague, or inconsistent with how your agency actually works, fix it before you sign rather than hoping it will never matter.

1. Who is protected

The first issue is the protected group. A clause may cover clients, prospective clients, employees, contractors, freelancers, suppliers, and anyone “connected with” the other party. That last phrase is often too broad.

You should ask for more precision. The clause may be easier to manage if it is limited to:

• Clients you actually worked with or were introduced to during the contract
• Prospects involved in a specific pitch or proposal
• Staff or contractors you had material contact with
• Named strategic partners or referral contacts

If your agency serves a large corporate, check whether the clause protects the entire group of related companies or only the contracting entity. That difference can be significant.

2. What counts as solicitation

Not every future dealing should be captured. Directly pitching to move an account is one thing. Receiving an unsolicited inbound call months later is another.

Ask whether the contract distinguishes between:

• Direct active approaches
• Indirect approaches through a third party
• General advertising to the market
• Responses to public tenders or requests for proposal
• Accepting work after an inbound enquiry with no prior targeting

This is where founders often get caught. A broad clause can accidentally stop normal marketing activity or prevent you from answering a public procurement process. If that is not the commercial intention, say so in the drafting.

3. How long the restraint lasts

Duration is one of the biggest enforceability issues. The longer the period, the harder it may be to justify. For many agency and contractor arrangements, a shorter period is more realistic than a long lockout.

There is no universal safe period. A reasonable duration depends on the relationship, the value of the account, the sales cycle, and the sensitivity of the contacts involved. Before you sign, ask what actual business interest needs protection for that length of time.

4. Whether the scope is mutual

If the relationship is collaborative, a one-way restraint may not be fair. Two agencies working together on a campaign, for example, may both be exposed to poaching risk.

A mutual clause can be more balanced where each side is sharing client access, staff, or confidential pitch material. If only one side gets protection, make sure that matches the commercial reality.

5. Carve-outs for pre-existing relationships

Your agency should not accidentally sign away existing business. If you already work with a brand, affiliate, supplier, or contractor independently of the deal, the written terms should preserve that relationship.

Useful carve-outs often include:

• Clients or contacts already known to your agency before the agreement
• Work already underway under a separate contract
• Relationships established without use of the other party’s confidential information
• General market advertising not specifically targeted at protected persons
• Responses to genuine unsolicited approaches

Without these carve-outs, the other side may later claim your ordinary business development breached the restraint.

6. How it links with confidentiality and intellectual property

Non-solicitation clauses rarely stand alone. They often sit next to confidentiality and intellectual property clauses, and the three work together. If a person uses confidential pricing, campaign strategy, contact data, or creative plans to win away a client, more than one contractual issue may arise.

Check that the clauses are consistent. For example, if confidential information is broadly defined, but solicitation is too vaguely defined, the contract may create uncertainty about what conduct is actually banned.

7. Employment law and contractor distinctions

If you are restricting recruitment of staff or contractors, make sure the wording fits the relationship. Employee restraints and contractor restraints raise different practical issues. A founder should not assume one template works for all situations.

For agencies with mixed teams, check whether the clause refers clearly to employees, casual staff, independent contractors, and freelancers. If not, gaps or unintended overreach can appear later.

8. Remedies and dispute clauses

The practical pressure point is often the remedy. Some contracts say a breach may justify urgent court orders, indemnities, or payment of costs. Others set out a simpler dispute process.

Before you rely on a verbal promise that enforcement will be light-touch, read the remedies clause. If the potential downside is serious, negotiate the restraint and the enforcement wording together.

Common Mistakes With Non-solicitation Clause for Creative Agency

The most common mistake is signing broad wording because the deal feels urgent. In creative work, deadlines move quickly, but a loose restraint can affect your agency for months or years after the project ends.

Treating every clause as standard boilerplate

Founders often assume non-solicitation clauses are standard and non-negotiable. They are common, but that does not mean every version is appropriate. A clause written for a software reseller, recruiter, or business sale may be unsuitable for a design or media engagement.

If the draft was copied from another deal type, the restrictions may be far wider than needed for an agency relationship.

Confusing non-solicitation with non-compete wording

A contract may say “non-solicitation” in the heading but use language that effectively stops you from working in a whole market. That is a warning sign.

Check whether the clause prevents active poaching only, or whether it also blocks you from providing services to broad categories of businesses regardless of who made the first approach. If it does the latter, it may be operating more like a non-compete.

Ignoring vague definitions

Words like “client”, “prospective client”, “contact”, “associated entity”, and “solicit” can cause real disputes if they are not defined properly. A founder may think the clause only protects clients on the current project, while the other side thinks it covers every business in their CRM.

Where the contract uses broad labels, ask for a narrower definition or a named schedule.

Forgetting inbound enquiries and public tenders

Creative agencies often win work through referrals, public tenders, procurement processes, and inbound approaches. A poorly drafted restraint may stop you from responding even where you did nothing to target the opportunity.

If your agency works with government bodies, larger corporates, or public procurement pipelines in New Zealand, this carve-out matters even more.

Not aligning the clause with the actual relationship

A senior strategic partner with direct access to key accounts presents a different risk from a short-term production freelancer with limited exposure. Using the same restriction for both can create unfairness and weaken the commercial logic.

The drafting should reflect the real level of access, trust, and business exposure.

Relying on verbal assurances

Many founders hear some version of, “Don’t worry, we only use that if someone behaves badly.” That statement may be genuine, but it does not change the written contract.

Before you sign, ask for the wording to be amended. If the other side agrees that the clause should only apply in limited circumstances, the contract should say so clearly.

Overlooking post-termination workflow

Agencies often focus on winning the project, not on what happens when it ends. But post-termination obligations are exactly where non-solicitation clauses bite.

Think about your offboarding process. You may need internal rules around:

• Who can contact the client after the contract ends
• How team members record inbound enquiries
• What freelancer communications are allowed
• What CRM notes or account restrictions need to be set
• How confidential information is returned or deleted

Good internal process reduces accidental breaches.

FAQs

Is a non-solicitation clause automatically enforceable in New Zealand?

No. A restraint is more likely to be enforceable if it protects a legitimate business interest and is reasonable in scope, duration, and operation. Clauses that are too broad or unclear can be difficult to enforce.

Can a creative agency still accept work if a client approaches them first?

Sometimes yes, sometimes no. It depends on the wording. A well-drafted clause often distinguishes between active solicitation and genuine unsolicited inbound work, but many standard terms do not, so this should be checked before you sign.

Should the clause cover freelancers and contractors as well as employees?

It can, especially in the creative sector where agencies rely heavily on contractors and specialist freelancers. The wording should be clear about which categories of people are protected and should not overreach.

How long should a non-solicitation period last?

There is no fixed rule. The period should reflect the commercial relationship and the interest being protected. Shorter, more targeted periods are generally easier to justify than long blanket restraints.

What should an agency ask to change in a standard contract?

Common negotiation points include narrowing the protected group, defining solicitation more clearly, adding carve-outs for pre-existing relationships and inbound enquiries, reducing the duration, and making the clause mutual where both sides share exposure.

Key Takeaways

• A non-solicitation clause for creative agency contracts is meant to protect relationships, not automatically block all future work.
• The key issues are who is protected, what conduct is restricted, how long the restraint lasts, and whether the wording is reasonable in the New Zealand context.
• Creative agencies should look closely at carve-outs for pre-existing clients, public tenders, general advertising, and genuine inbound enquiries.
• Non-solicitation wording should line up with confidentiality, intellectual property, contractor, and employment terms so the contract works as a whole.
• The main risk is signing vague or overly broad wording in a hurry, then discovering it affects staff recruitment, freelancer engagement, or client opportunities after the project ends.
• It is usually easier and cheaper to negotiate the clause before you sign than to argue about meaning after a relationship breaks down.

If you want help with contract drafting, restraint clause negotiations, confidentiality terms, and contractor agreements, you can reach us on 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.