Indeed, it was ruled (in the Saar case, atparagraph 33( that if the relationship with the customers did not arise for solicitation on behalf of the retiring employee, unless they responded, for example, to the publication, this does not constitute a breach of the non-competition clause (see also Amit, at p. 436).
Indeed, if we had before us a valid non-competition clause, the situation would have been more complex (Amit, at p. 437). Mr. Zaruk then had to establish the legitimacy of his relationship with the company's existing customers, or his ability to compete with it by associating with new customers, while providing the services that Bonus provided them, and in which he dealt with it. However, as we have seen, the competition clause that was established is invalid, and hence the room for maneuver that Mr. Zaruk had in the matter of contracting with customers, who received service from a bonus company, and certainly with new customers, increased.
- In addition, when we come to examine the dispute in our case, we face several difficulties before the argument of the Bonus Company:
- There is a certain duality in her arguments. This is an argument (in paragraph 136 of its summaries in the main claim( that Mr. Zaruk "acted to solicit the clients of [a bonus company] and at least did not refrain from engaging with them despite the aforementioned confidentiality and non-competition clauses [emphasis added]".
However, the first part of the argument and the second part express separate planes, which are important to distinguish between them. Where there is no valid non-compete clause, there is no restriction on refraining from engagement. And this argument constitutes a preliminary admission by the Bonus Company that the evidentiary foundation that was laid will have difficulty establishing improper solicitation of clients on the part of Mr. Zaruk.
- In addition, it should be taken into account that the Bonus Company did not claim, and in any case did not prove, that it entered into exclusivity agreements of one kind or another with the local authorities and the water corporations to which it provided services. Thus, Adv. Golan, Mr. Zaruk's successor in the company, confirmed in his interrogation that he was not familiar with the exclusivity agreements that the company had with its clients (p. 234, S. 30-34). And that in various cases, a number of winners won tenders by authorities for the provision of billing services (p. 235, Q. 10-18). Chen, who also replaced Mr. Zaruk at Bonus Company, also testified in his interrogation that he was not familiar with the exclusivity agreements that the company had with its clients (p. 260, S. 22-19).
- It should also be remembered that we are interested in administrative authorities and public corporations. The engagement with them is done through a tender as a rule. An application to an authority that published a tender does not, of course, constitute an improper solicitation, where there is no valid non-competition clause.
- Finally, there is the question of entitlement to monetary relief. Even if an improper solicitation was performed, in order to receive monetary relief, it must be shown that it was successful, and that as a result the solicitors earned an improper consideration that could establish the remedy claimed by a bonus company.
- Against this background, we turn to examine the specific claims raised by the Bonus Company in its summaries with respect to customers who were alleged to have been improperly coaxed (in paragraphs 122.17-122.32(:
- the municipality of a civil case and its water corporation "Mei Avivim"; The requests, which were allegedly contacted by Mr. Zaruk , were of no use, even according to the Bonus Company, since they were rejected (paragraph 44 of Mr. Goldian's second affidavit).
- Holon Municipality; Here, too, a bonus company claimed the existence of solicitation, but not that it succeeded (paragraph 56 of the statement of counterclaim; and at paragraph 122.18 of the summaries in the counterclaim). Bertenthal testified that the Holon Municipality was a long-standing client of the firm, and in any event, the activity directed by the Bonus Company did not succeed (p. 648 Q.7). His testimony was not concealed.
- the Municipality of Or-Yehuda and the Southern Sharon Local Council; Mr. Goldian admitted in his interrogation that it was not a client of a bonus company regarding the initiation of levies (p. 489, 13-12). The same is true with respect to the Southern Sharon Local Council (p. 491, s. 32).
- Mei-Yavne Corporation; In this regard, Bonus claims in its summaries in the main lawsuit (paragraphs 117 and 123( that Mr. Zarrouk stole from it some of the files belonging to the corporation, and in particular the "Argaman 4" customer file.
The only evidence brought in order to substantiate the argument (apart from Mr. Goldian's first affidavit (at paragraphs 74-76 and 79( was a single short letter sent by the corporation's CEO to Mr. Goldian and to Adv. Shimi Golan, Mr. Zaruk's replacement at the Bonus Company (Appendix 5 to the counterclaim). However, this letter does not prove the theft of the Yavne files, nor the theft of the bag of the "Argaman 4" customer.