Non-Circumvention Agreement: What is It, Pros and Cons
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A non-circumvention agreement is a US legal contract that protects parties in a business deal by prohibiting unauthorized direct interactions. So, it prevents the parties from getting deprived of the compensation associated with their respective involvements in the business. Let us delve deeper and learn more about a non-circumvention agreement below.
What is a Non-Circumvention Agreement?
A non-circumvention agreement is a contract put into place to protect parties participating in a business deal. Non-circumvention agreements are signed to prevent a business from bypassing, or ‘circumventing’, another business and to guarantee full compensation will be received by the business doing work for or with another.
In many business deals, one party may introduce another party to its customers, vendors, or another high-value party during a transaction. By giving a party this exposure, a business may worry they will be ‘cut out’ of a deal. This is exactly why the non-circumvention agreement was created.
This agreement is often used in partner arrangements where one party may not show signs of trustworthiness or possibly it is just a precaution taken when someone new or unknown is being worked with.
Related Agreements
There are agreements that are similar to a non-circumvention agreement which are listed below:
- Confidentiality Agreement: This agreement, also known as a non-disclosure agreement, is used when business partners agree that they will not share confidential information they learn during a transaction with anyone else.
- Non-compete Agreement: Non-compete agreements are useful when a business wants to make sure an employee or partner does not partner with a competitor and use proprietary information they learned to compete against their own business.
How to Engage a Lawyer for Non-Circumvention Agreements
All parties must know their requirements when approaching a lawyer for a non-circumvention agreement. Here are a few more things that they should keep in mind before going for a legal professional to work on the legal document:
- Identify Specific Protection Needs. Clearly define the exact nature of the protection required through the agreement. Specify the parties, relationships, or confidential information to safeguard.
- Select an Attorney with Expertise. Choose a legal professional with specialized experience crafting Non-Circumvention Agreements and well-versed in contract law, particularly tailored to your industry or situation.
- Commence with an Initial Consultation. Initiate an initial consultation with the attorney to elucidate the precise objectives of the agreement. Provide comprehensive context about the parties involved and the circumstances necessitating the agreement.
- Discuss Disclosure of Pertinent Information. Share pertinent data or documentation with the lawyer, including existing contracts, communication records, or any crucial background information regarding the parties subject to the agreement.
- Initiate Thorough Discussion of Terms and Scope. Engage in a detailed discussion with the lawyer to ascertain the exact terms and scope of the Non-Circumvention Agreement. Define the parties bound by the agreement and precisely delineate the prohibited activities.
- Seek Customized Agreement Language. Collaborate closely with the attorney to ensure the drafted agreement employs precise, legally sound language tailored to the unique requirements. Guarantee full compliance with relevant laws and regulations.
- Communicate the Consideration for Confidentiality. If the agreement involves safeguarding confidential information or trade secrets, explore the inclusion of comprehensive confidentiality clauses aimed at safeguarding sensitive data.
- Perform Comprehensive Agreement Review. Conduct a thorough, joint review of the drafted agreement with the attorney to confirm it accurately mirrors the intended protections and offers the requisite level of safeguarding. Address any necessary amendments.
- Facilitate Negotiations if Necessary. In instances where disputes or concerns over the terms arise, rely on the attorney's expertise to facilitate negotiations with the involved parties, working towards a mutually satisfactory resolution.
- Oversee Signing and Execution. Entrust the attorney responsible for overseeing the signing and formal execution of the Non-Circumvention Agreement, thereby rendering it legally binding.
- Collaborate in Appropriate Filing and Record-Keeping. Seek the attorney's counsel regarding the proper filing and meticulous record-keeping procedures, ensuring the agreement remains easily accessible and enforceable when required.
- Ensure Effective Compliance Management. If the agreement entails ongoing compliance monitoring, consult the attorney for guidance on proficiently managing this process to safeguard interests.
- Guide in Enforcement and Dispute Resolution. In case of a breach, rely on the attorney's expertise to guide the process of enforcing the agreement and adeptly navigate dispute resolution procedures.
- Provide Proactive Updates and Revisions. Regularly communicate with the attorney to ensure the agreement remains current. Whenever circumstances change, or new parties become involved, proactively consider and implement revisions as needed.
- Uphold Continual Legal Counsel Beyond the Agreement. Foster an enduring attorney-client relationship for ongoing legal advice. Seek guidance on any emerging issues or concerns related to the Non-Circumvention Agreement and other legal matters that may arise.
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What’s Included in a Non-Circumvention Agreement
When writing a non-circumvention agreement, you will want to include the essential sections below:
- Involved Parties: Each party of the agreement should be included in the contract. If businesses, the party’s legal business name should be used.
- Compliance: A compliance section should be added to detail what rules and procedures each party needs to comply with and what will happen if they do not.
- Duration: Clearly state the beginning and end dates of the agreement along with notes indicating what will happen when the contract ends. If any gaps are expected during the timeframe of the agreement, then that should be expressed.
- Confidentiality: This section should be detailed with the type of information that is to be kept confidential and out of reach from third parties. You will be able to refer to this later and use it to your advantage if confidential information is disclosed to a person or business outside of the agreement.
- Payments: All fees, commissions, or other forms of payment are to be listed in this section. It should be stated whether there is a standard set fee or if payments will vary depending on the time spent or work done.
- Liquidated Damages: You can use this section to describe what will be expected from the wrongful party if terms of the agreement are violated at any point. It is typical for these types of damages to be paid in the form of money at an amount agreed to based on the specific breach that was done.
- Non-Disclosure: This section almost mirrors the confidentiality part but it goes into further detail as to what information, secrets, contact information, and other private data cannot be shared with anybody not involved in the current business. If there is a specific timeframe for which this applies and the disclosure of some information will be permitted at some point in time then that should be added.
- Termination: A termination section should be included to describe what actions may justify the early termination of the agreement. If a termination will result in a reduction or total loss of payments then that also needs to be laid out.
- Applicable Laws: This part of the agreement should list the local, state, federal, and industry specific laws that apply to the business being conducted as well as the location. This will allow parties to understand what exact legal action can and will be taken if violations happen.
- Attorney Costs: If a legal action is taken then lawyer fees will need to be paid. This section should clearly state who will be responsible for attorney payments and if there is a specific cap on the amount.
Pros and Cons of a Non-Circumvention Agreement
Non-circumvention agreements are great tools to have when working with partners outside of your direct company or circle of partners. As with any contract though these agreements have good sides and potential bad sides. See below for details:
Pros of Non-Circumvention Agreements
It is guaranteed that personal or confidential information cannot be released outside of or used against the business.
There is legal assurance that if a violation occurs the party that broke the agreement can be sued and may be demanded to pay money for damages.
Promised payments per the agreement are required to be made to each party who performed work responsibly even if there is some sort of minor dispute.
Cons of Non-Circumvention Agreements
The party being restricted may be subject to a long-time constraint that might prevent the ability to work in similar areas of business even when the agreement ends.
Although there are sections in the agreement requiring parties to keep information confidential and not to trade secrets, it can be difficult to control their business actions once the assignment is complete and even while it is still active.
An excellently drafted non-circumvention agreement is required to ensure all necessary sections and details are included and useful for the future. This can ultimately take up a lot of time and money to get it done right by a legal professional.
Are Non-Circumvention Agreements Legally Binding?
Yes, a non-circumvention contract is a legally binding agreement. This type of agreement guarantees that a party who has been wronged by a breach can sue another business partner.
There are several sections in these agreements that represent legal requirements and what as well as where legal action will be taken if it comes down to that.
Brokers and Non-Circumvention Agreements
Brokers act on behalf of their clients and may be perceived to not do much in certain business deals. For this reason, they are susceptible to instances of circumvention. Due to the small role agents may play in a business transaction they safeguard themselves and their clients by putting a non-circumvention agreement into place.
A partnership becomes a joint venture when three or more parties come together to carry out business. When brokers enter into a joint venture it is done with the intention of being paid commissions or some other form of award for services performed. A non-circumvention agreement will benefit you as a broker in this scenario by guaranteeing your payment is received once your work is done.
Read this article on non-circumvention agreements and brokers.
Final Thoughts on Non-Circumvention Agreements
A non-circumvention agreement is paramount for parties often associated with various business deals. It is because the legal document helps protect each party's respective rights and obligations without depriving them of any requirements or benefits. However, everyone must be careful while signing such an agreement and check the terms without fail. The parties may also consider approaching a professional attorney with experience working on non-circumvention agreements earlier.
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Meet some of our Non-Circumvention Agreement Lawyers
Zachary J.
I am a solo-practitioner with a practice mostly consisting of serving as a fractional general counsel to growth stage companies. With a practical business background, I aim to bring real-world, economically driven solutions to my client's legal problems and pride myself on efficient yet effective work.
"Thanks Zach - I'll just grind out the 14 months left in the 2 year clause - thank you!"
Kenneth G.
Kenneth E. Gray, Jr. is a business and tax attorney who advises entrepreneurs, investors, and closely held companies on transactions, tax planning, disputes, and long-term wealth structuring. He focuses on helping clients make legally sound decisions that also make business sense. Ken’s practice includes business formation and restructuring, mergers and acquisitions, private investments and fundraising transactions, contract drafting and negotiation, and cross-border matters. He also maintains a significant tax practice, advising on federal and state structuring, specialty filings (including partnership, corporate, and non-resident matters), and representing clients in disputes before the U.S. Tax Court and other federal and state tribunals. In addition to his transactional work, Ken handles commercial and business litigation, including tax controversies, financial disputes, and partnership matters. His litigation experience informs how he structures deals and governance documents, with an eye toward preventing disputes before they arise. Ken also advises individuals and families on estate planning, trust formation, tax-efficient wealth transfer strategies, and probate administration, including planning involving closely held businesses and foreign assets. Before practicing law, Ken worked in banking and private equity, including managing a $5 billion emerging markets fund-of-funds portfolio at the U.S. Overseas Private Investment Corporation (OPIC) and serving in equity research at ABN AMRO. That financial background allows him to understand transactions from both the legal and capital perspective. He holds a J.D. from Georgetown University Law Center and an MBA from Yale University. He practices before the U.S. Tax Court, various state courts, and other federal courts.
"It is not easy to find a lawyer that knows Offshore Asset Protection Trusts, which own a foreign LLC, which owns a USA LLC. Fines could reach $100K if the tax forms are incorrect, or not filed. He was able to review my draft returns and provide memos with required changes (many, many changes), after 1 follow-up everything was basically done other than a few tiny edits. I really appreciated how he worked me in, right in the busiest time of tax season, to ensure there were no errors. Would definitely hire again."
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Daehoon P.
Corporate, M&A & Securities Lawyer | Managing Attorney, DP Counsel PLLC Practice Areas: Business Formation | Commercial Contracts | Contract Drafting & Review | Mergers & Acquisitions | Venture Capital | Securities Offerings | Franchise Law | Employment & Equity Compensation | Intellectual Property | Cross-Border Transactions About/Bio: I represent companies, investors, and fund sponsors in corporate transactions, commercial contracting, and private securities matters, from entity formation and early-stage financings to acquisitions, exits, and ongoing strategic counsel. As Managing Attorney of DP Counsel PLLC, I help clients structure transactions clearly, allocate risk thoughtfully, and move deals forward with documentation that is practical, enforceable, and aligned with business objectives. My practice includes both day-to-day commercial matters and more complex transactional work, including venture financings, private offerings, M&A deals, fund-related documents, and cross-border structuring. What I Do: Corporate & Commercial • Entity formation and structuring for corporations, LLCs, and limited partnerships • Operating agreements, shareholder agreements, and governance documents • Commercial contract drafting, review, and negotiation • Vendor, distribution, manufacturing, SaaS, and licensing agreements • Employment, consulting, confidentiality, and equity compensation agreements • Outside general counsel support for growing companies Securities & Private Capital • Private offerings under Regulation D and Regulation S • Private placement memoranda, subscription agreements, and investor documents • SAFE, convertible note, and priced equity financings • Venture capital and private fund formation matters • Fund governing documents and offering document packages • Securities law analysis for private capital raising transactions Mergers & Acquisitions • Letters of intent and term sheets • Stock purchase, asset purchase, and merger agreements • Due diligence coordination and transaction support • Disclosure schedules, closing documents, and post-closing matters • Earnouts, rollover equity, indemnity structures, and related deal terms • HSR, CFIUS, and related regulatory issue spotting for qualifying transactions Digital Assets & Emerging Technologies • Federal-law digital asset and token securities analysis • Entity structuring for blockchain and Web3 ventures • Digital asset fund and operating structures • AML/KYC documentation support and regulatory issue spotting Franchising • Franchise Disclosure Documents (FDDs) • Franchise agreements • Master franchise and area development agreements • Franchise structuring and registration coordination Real Estate Transactions • Commercial real estate acquisitions and dispositions • Real estate joint ventures and syndications • Commercial lease drafting and negotiation • Real estate investment structures and related offering documents Cross-Border & International • U.S. market entry and entity structuring for international clients • Delaware and multi-entity holding structures • Cross-border transaction planning and documentation • Coordination with foreign counsel and tax advisors on cross-border matters Why Clients Hire Me: • Big-law-level drafting with boutique responsiveness • Practical, business-focused advice grounded in execution reality • Clear scoping and transparent fee arrangements • Experience across financings, acquisitions, fund formations, and cross-border transactions Typical Projects: • Contract drafting and negotiation • Entity formation and governance packages • Private offering document suites • Venture financing documentation • M&A transactions from LOI through closing • Fractional or outside general counsel support Industries Technology | SaaS | FinTech | Digital Assets | E-commerce | Healthcare | Real Estate | Food & Beverage | Professional Services
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Faryal A.
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As an entrepreneur at heart, I enjoy working with business owners and executives on a variety of corporate matters, including mergers and acquisitions, corporate financing, corporate governance, public and private securities offerings, privacy regulation and early-stage corporate matters including formation. As a lawyer and business professional, I understand the value of providing personal service and focused legal answers to clients navigating a rapidly changing regulatory environment. Whether in Aerospace, Consumer Goods, or Technology, I find great success in work collaboratively with clients to strategical structure their business or implementing strategic growth-oriented financing opportunities.
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