In any commercial arrangement, the relationship between the parties can be the defining feature of the success or failure of your arrangement. A non-circumvention clause attempts to draw the boundaries of exactly who is in this relationship. This article explores what a non-circumvention clause is and some key legal considerations.

What is a Non-Circumvention Clause?

Broadly, a non-circumvention clause is a restraint on trade. It aims to limit the other party from bypassing you, engaging directly with your suppliers or clients, and removing your chance to enter profitable business dealings. 

They are a valuable clause to include in your commercial contracts to protect your business transaction. Likewise, they are particularly helpful when engaging with new businesses where you have not yet established a strong business relationship.

A non-circumvention clause can look like the following: 

“You agree not to contact, initiate contact, or attempt to do business with, our customers or our customers' companies for the purpose of circumventing this Agreement or preventing us from receiving commercial benefit, without our specific written approval.”

Key Elements of the Clause

A non-circumvention clause will cover key elements, such as: 

  • time: how long will the limitation be in place? 
  • parties: who are the parties, and who is being limited?
  • scope: what conduct is specifically being limited?
  • exclusions: under what circumstances will this clause not apply?

Where Would I See a Non-Circumvention Clause?

Non-Disclosure Agreements

It is common to see this type of clause in a non-disclosure agreement (NDA). An NDA is a typical first step between parties looking to engage with one another. It marks the first stage of a commercial relationship. If you are meeting with a new party and disclosing confidential information, such as your client list, this clause can be pivotal to protecting your business interests. 

Most well-drafted NDAs can legally protect and restrict the sharing of confidential information. However, when it comes to the internal use of confidential information, businesses tend to implicitly rather than explicitly address this point. When engaging with a business for the first time, it is best practice to take a more protective approach. Asking your lawyer to add a clause like this can provide peace of mind as you progress with a new business arrangement. 

Other Agreements

Other commercial contracts could benefit from a non-circumvention clause. The table below lists other commercial agreements.  

Type of Commercial Contract

Why add a non-circumvention clause?

Collaboration or joint venture agreement

  • protects one party from not being cut out of the discussions or venture

Supply agreement

  • to ensure the client does not engage directly with a wholesaler

Distribution agreement

  • to ensure the distributor does not engage directly with a manufacturer

Referral agreement

  • if you are referring clients to another party for a fee, a non-circumvention provision ensures that the other party does not enter separate arrangements with the clients without paying you the appropriate fee. 

Legal Considerations

Restraints on trade (of which non-circumvention clauses are a type of restraint) can be an important protective mechanism for your business. However, these clauses can be quite onerous on a party if they extend for long periods or over large areas. Courts view these clauses as anti-competitive and can strike these out from your contract. 

It is critical to strike a balance between a clause that protects your business and the integrity of your business arrangement, as well as one that is reasonable for the interests of the public. If a consumer wants to engage with the other party, your business cannot unreasonably stop them. However, non-circumvention clauses do their best to stop the solicitation or sidestepping of your business in pursuit of profit.

Key Takeaways

A non-circumvention clause can be a helpful restrictive clause to protect your business and its place within a business relationship. It cements your place in the dealings and means that the other party cannot skip over you in search of a similar arrangement. Notably, be aware of how this clause acts as a restriction on the other side. Accordingly, ensure you only enforce this clause where it is necessary for your business.