You brought on an advisor three months ago. Smart person, great network, exactly the right experience for where you’re headed.
You used a template you found online, maybe tweaked a few names and dates, and called it done.
Here’s what most founders don’t realize until it’s too late: advisor and consultant agreements are one of the most consistently under-built documents in a growing company’s legal stack. Not because the templates are wrong exactly – but because they’re incomplete in ways that only matter when something goes sideways.
These are the seven provisions that show up broken or missing most often.
1. IP Assignment Scope
This is the one that creates the most expensive problems.
Standard templates say something like “all work product created under this agreement belongs to the company.” Sounds fine. But “work product” is doing a lot of heavy lifting there, and courts interpret it narrowly.
What you actually need: an explicit assignment covering inventions, discoveries, improvements, and derivative works – whether or not they’re patentable, whether or not they were created during work hours, and whether or not they used your company’s resources. You also want a present-tense assignment (“Advisor hereby assigns…”) rather than a future promise to assign. That distinction matters in IP disputes.
If your advisor is helping you build something, you need to own what they build.
2. Confidentiality Survival
Most templates include a confidentiality clause. Almost none of them specify how long it survives after the agreement ends.
Without a defined survival period, you’re in a gray zone. The agreement terminates, and suddenly it’s unclear whether your advisor is still bound by anything.
For most growing companies, a two-to-three-year post-termination confidentiality period is appropriate for general business information. For trade secrets, you want indefinite protection – trade secret law supports this, and your agreement should mirror it.
3. Non-Solicitation
This one gets missed entirely in roughly half the templates I review.
Your advisor has access to your team, your customers, and your pipeline. A non-solicitation clause prevents them from hiring your employees or approaching your customers after the relationship ends.
Scope matters here. “Employees” should be defined broadly enough to include contractors and consultants. “Customers” should include active prospects, not just closed accounts. And the restriction period needs to be reasonable – twelve to twenty-four months is defensible in most jurisdictions.
4. Competitive Restrictions
This is different from non-solicitation, and the distinction matters.
Non-solicitation covers who they can approach. A competitive restriction (sometimes called a non-compete) covers what work they can do.
For advisors, a full non-compete is often unenforceable and unnecessary. What you actually need is a narrower restriction: the advisor can’t provide the same services to a direct competitor during the term of the agreement. That’s it. Trying to extend it post-termination for advisors – as opposed to employees – creates enforceability problems in most states.
Know what you’re trying to protect and draft to that, not to a worst-case scenario.
5. Termination Mechanics
Most templates have a termination clause. Almost none of them specify what happens in the first thirty days after termination.
Does the advisor return materials? Which materials? By when? What happens to work in progress? Who owns it if the agreement terminates mid-deliverable?
Add a transition obligations section that covers: return or destruction of company materials, handoff of in-progress work, and a brief cooperation period (typically thirty days) to ensure continuity. This costs nothing to include upfront and prevents real friction later.
6. Equity Vesting Acceleration
If your advisor has equity – even a small grant – the vesting schedule needs explicit termination mechanics.
The default in most templates: unvested shares are forfeited on termination. That’s often fine. But it creates a perverse incentive when you’re the one terminating the relationship for reasons unrelated to performance.
Consider whether single-trigger acceleration makes sense for your situation (equity vests immediately on certain termination events), and make sure the agreement specifies exactly what happens to unvested shares under each scenario: voluntary resignation, company termination, company acquisition. Ambiguity here becomes negotiation leverage at the worst possible moment.
7. Post-Termination Cooperation
This is the provision nobody thinks about until they need it.
Your former advisor may hold information critical to a patent application, a litigation matter, or an investor due diligence process – months or years after your relationship ends. Without a post-termination cooperation clause, you have no contractual basis to require their participation.
A simple clause requiring reasonable cooperation for a defined period (typically two years) in connection with legal proceedings, IP filings, or regulatory matters costs your advisor nothing if everything goes well. It protects you significantly if it doesn’t.
Advisor agreements look simple on the surface. They’re not. The gaps above are exactly where disputes start – and where acquirers and investors find problems during due diligence.
If you’ve brought on advisors using templates, it’s worth a quick review before those relationships deepen.
What’s been your experience with advisor agreements? Have you run into any of these gaps – or other provisions that caused friction? Drop a comment below.
About Garcia-Zamor: We’re the fractional general counsel for innovators-protecting both your business operations and your intellectual property. Ruy Garcia-Zamor leads business growth strategy, Elliott Alderman (former Copyright Office attorney, 40+ years IP expertise) handles intellectual property, and Claudia Castillo specializes in employment law. Contact us at garcia-zamor.com or (410) 531-9853.
