Position of the week: the placement fee

A software house sells capacity, and the capacity has names. Put a strong developer on a client project for two quarters and the client’s engineering manager will eventually have the thought. Most enterprise MSAs say nothing about it, which means nothing stops it.

The position

Mutual non-solicitation during the term and for twelve months after, limited to personnel who actually performed services for that client, with an exception for hires resulting from a general public advertisement. First ask: a placement fee of twenty to twenty-five per cent of the individual’s first-year total remuneration, payable if the client hires them inside the restricted period without written consent.

Why open with the fee

Two reasons. It prices the loss in a way a procurement team understands, because it is the same number a recruiter would charge them. And it gives you something to trade: a clause you can concede later without losing the protection you actually need.

Where we move

Large German, Nordic and public-sector-adjacent buyers refuse the fee routinely, and usually on policy rather than on the merits — a works council objection, or a purchasing rule against contractual penalties. When that happens, drop the fee and keep the twelve-month restriction with the written-consent exception. The restriction is what protects the team; the fee only monetises a departure you did not want.

What we do not concede: silence. An MSA with no non-solicitation clause at all is the version where three people leave mid-delivery and the contract has nothing to say about it.

The exception that keeps it reasonable

Always concede the public-advertisement carve-out. Nobody can police a developer answering a job ad, a clause that tries to looks unreasonable in front of a court, and conceding it early buys credibility for the parts of the clause you are holding.