Non-Circumvention Email Templates - NDA Clause Library

Request Removal of Non-Circumvention

Receiving Party Remove Clause

When to use: The NDA includes a broad non-circumvention clause that is inappropriate for the relationship. Use this when the NDA is for general business discussions, not a deal or referral arrangement where non-circumvention is customary.

Subject: Re: NDA Review - Non-Circumvention Provision

[Name], Thank you for the draft NDA. We have completed our review and need to discuss Section [X] regarding non-circumvention. We request that this provision be deleted in its entirety. Our concerns are as follows: 1. Scope Mismatch: The purpose of this NDA is to facilitate [describe: preliminary business discussions / a potential vendor relationship / due diligence]. Non-circumvention clauses are typically appropriate for broker, referral, or intermediary relationships where one party is introducing specific contacts or opportunities. That is not the nature of our discussions. 2. Overbroad Restrictions: As currently drafted, the non-circumvention provision would prohibit us from doing business with any "contacts, customers, clients, or business opportunities" you disclose. This is far too broad - it could restrict our ability to do business with parties we may already know or encounter through other channels. 3. Operating Constraints: We have existing [sales / business development / partnership] efforts in [relevant industry/market]. A broad non-circumvention obligation could conflict with these activities and create ongoing compliance uncertainty. If there are specific concerns about protecting particular introductions or opportunities, we are open to discussing a narrowly tailored provision. However, a blanket non-circumvention clause is not appropriate for this type of NDA. Please confirm you can remove Section [X]. Best regards, [Your Name]

Justify Need for Non-Circumvention

Disclosing Party Defend Clause

When to use: The other party wants to remove the non-circumvention clause, but you have legitimate reasons to include it. Use this to explain the business rationale and propose modifications if needed.

Subject: Re: NDA - Non-Circumvention Discussion

[Name], Thank you for your comments on the non-circumvention provision. I understand your concerns about broad restrictions, but let me explain why this provision is important and how we can make it work for both parties. WHY WE NEED NON-CIRCUMVENTION: Our discussions will involve sharing [describe]: - Specific customer relationships we have developed over [X] years - Pending deal opportunities with identified prospects - Strategic partner contacts and introduction commitments - Supplier relationships with negotiated terms The value of this information lies in the relationships themselves. Without non-circumvention protection, we risk having you approach these contacts directly, cutting us out of opportunities we have developed or would develop through our collaboration. WHAT WE ARE TRYING TO PREVENT: - You contacting our customers/prospects directly after learning about them through our discussions - You pursuing deals or partnerships that we introduced without including us - You using our relationship information to compete for the same opportunities WHAT WE ARE NOT TRYING TO DO: - Restrict your existing relationships - Prevent you from doing business with parties you already know - Create blanket market restrictions PROPOSED MODIFICATIONS: To address your concerns, we propose narrowing the non-circumvention as follows: 1. Apply only to contacts specifically identified in writing as "Protected Contacts" 2. Carve out any contacts you can demonstrate a pre-existing relationship with 3. Limit the duration to [18/24] months from the date of introduction 4. Apply only to the specific opportunity or transaction discussed Would this narrower approach address your concerns? Best regards, [Your Name]

Request Reasonable Time Limitation

Receiving Party Add Time Limit

When to use: The non-circumvention clause has no time limit or an unreasonably long duration. Use this to negotiate a reasonable expiration period.

Subject: Re: NDA - Non-Circumvention Duration

[Name], Following up on the non-circumvention provision, we have a specific concern about the duration of the restriction. As currently drafted, the non-circumvention obligation [has no stated end date / continues for X years / survives indefinitely]. This is not reasonable for several reasons: 1. Business Relationships Change: Over time, contacts introduced today may become public knowledge, change companies, or develop relationships through independent channels. An indefinite restriction ignores this reality. 2. Enforceability Concerns: Courts look skeptically at perpetual business restrictions. A reasonable time limit makes the provision more likely to be enforceable. 3. Market Dynamics: In [our industry], business relationships typically have a lifecycle of [describe]. A restriction extending far beyond this period is disproportionate. We propose adding a reasonable time limitation: OPTION A - Fixed Period: "The non-circumvention obligations under this Section shall terminate [18/24] months from the date of disclosure of the relevant contact or opportunity." OPTION B - Deal-Based: "The non-circumvention obligations shall terminate upon the earlier of: (a) [24] months from disclosure; (b) closing of any transaction involving the protected contact; or (c) written confirmation from Disclosing Party that it is no longer pursuing the opportunity." OPTION C - Tiered Approach: "Non-circumvention shall apply for [12] months from disclosure. Thereafter, the Receiving Party may pursue the contact upon [30] days' written notice and the opportunity for Disclosing Party to participate." Please confirm which approach works for your team. Best regards, [Your Name]

Accept Time Limit with Renewal Option

Disclosing Party Compromise

When to use: The other party requested a time limit on non-circumvention. Use this to agree while preserving the option to extend for active deals.

Subject: Re: NDA - Non-Circumvention Time Limit

[Name], Thank you for your comments on the non-circumvention duration. We agree that a perpetual restriction is not appropriate, and we are prepared to add a time limit with one important condition. ACCEPTED TIME LIMIT: Non-circumvention obligations shall expire [24] months from the date of disclosure of the relevant Protected Contact, subject to the extension provisions below. EXTENSION FOR ACTIVE OPPORTUNITIES: If, at the time of expiration, there is an active transaction, negotiation, or business development process involving a Protected Contact, the non-circumvention period for that specific contact shall automatically extend until [6] months after the conclusion of such process (whether by closing, termination, or abandonment). "Active" shall mean: - Written proposal or term sheet has been submitted - Due diligence is ongoing - Contract negotiations are in progress - Exclusivity period is in effect NOTIFICATION: We will provide notice at least [30] days before the original expiration if we intend to invoke the extension, and will identify the basis for extension. If we do not provide such notice, the obligation expires as scheduled. This approach gives you certainty about the duration while protecting us from the scenario where you wait out the clock on a deal we are actively pursuing. Is this acceptable? Best regards, [Your Name]

Request Narrower Scope Definition

Receiving Party Narrow Scope

When to use: The non-circumvention clause covers an overly broad category of contacts or opportunities. Use this to narrow it to specifically identified relationships.

Subject: Re: NDA - Non-Circumvention Scope

[Name], We need to discuss the scope of the non-circumvention provision, which is currently too broad for us to accept. CURRENT LANGUAGE CONCERNS: The draft applies non-circumvention to "any contacts, customers, clients, suppliers, partners, or business opportunities disclosed" during our discussions. This language is problematic because: 1. It is not limited to contacts actually introduced by you 2. It could apply to parties mentioned in passing during discussions 3. It creates uncertainty about which relationships are covered 4. It could restrict access to parties we may discover independently WHAT WE NEED: Non-circumvention should apply only to contacts that are specifically identified and that you are actually introducing to us. General market information, industry participants, or contacts mentioned incidentally should not be covered. PROPOSED SCOPE LANGUAGE: "Non-circumvention obligations shall apply only to 'Protected Contacts,' which shall mean specific individuals or entities that: (a) Are identified in writing (including email) as Protected Contacts at the time of introduction; (b) Are introduced to Receiving Party specifically by Disclosing Party; and (c) The Receiving Party did not have a pre-existing business relationship with prior to such introduction. For the avoidance of doubt, the following shall NOT be Protected Contacts: - Parties mentioned incidentally or as general market information - Parties that Receiving Party independently identifies or contacts - Parties that approach Receiving Party unsolicited - Publicly known industry participants unless specifically introduced" This approach protects actual introductions while preserving our ability to operate in the market. Please confirm this scope is acceptable. Best regards, [Your Name]

Propose Protected Contact Schedule

Disclosing Party Define Scope

When to use: You want clear, documented protection for specific contacts. Use this to propose a scheduled list of protected contacts that can be updated during the relationship.

Subject: Re: NDA - Protected Contact List Approach

[Name], Based on our discussion about non-circumvention scope, I propose we use a scheduled approach that provides clarity for both parties. PROPOSED STRUCTURE: 1. Schedule of Protected Contacts: We will attach Schedule A listing the specific contacts, customers, and opportunities covered by non-circumvention. This list will include names, company affiliations, and a brief description of the relationship or opportunity. 2. Pre-Existing Relationship Disclosure: Before we finalize Schedule A, you will have [10] business days to identify any contacts on the list with whom you have a pre-existing relationship. We will exclude those contacts or discuss appropriate carve-outs. 3. Updating the Schedule: During the term of our discussions, we may add contacts to Schedule A by written notice. You will have [5] business days to object based on a pre-existing relationship. Absent objection, the contact is added. 4. Cap on Protected Contacts: To address your concern about scope creep, we will limit Schedule A to [25/50] Protected Contacts at any time. If we want to add contacts beyond this cap, we must remove existing contacts. 5. Description Requirement: Each Protected Contact entry must include sufficient detail to identify the specific opportunity or relationship protected. General descriptions like "all customers in [industry]" are not permitted. SAMPLE SCHEDULE A FORMAT: | Contact Name | Company | Relationship/Opportunity | Date Added | Expiration | | [Name] | [Company] | [Description] | [Date] | [Date] | This approach gives you certainty about what is covered while protecting our legitimate interests. Shall I prepare an initial draft of Schedule A? Best regards, [Your Name]

Request Existing Relationship Carve-Out

Receiving Party Add Carve-Out

When to use: You need to ensure the non-circumvention clause does not restrict relationships you already have. Use this to add clear carve-out language for pre-existing contacts.

Subject: Re: NDA - Existing Relationship Carve-Out

[Name], Before we can finalize the non-circumvention provision, we need to add explicit protection for our existing business relationships. THE ISSUE: We have existing relationships with various parties in [industry/market]. It is possible - even likely - that some contacts you may reference in our discussions are parties we already know. Without a clear carve-out, we could inadvertently become restricted from continuing or expanding relationships that predate this NDA. PROPOSED CARVE-OUT LANGUAGE: "Notwithstanding the foregoing, the non-circumvention obligations shall not apply to any contact, customer, client, or business opportunity with respect to which the Receiving Party can demonstrate: (a) Pre-Existing Relationship: The Receiving Party had an existing business relationship prior to the date of this Agreement, as evidenced by contracts, correspondence, meeting records, or other documentation; (b) Independent Discovery: The Receiving Party independently identified or was approached by the contact without use of any Confidential Information from the Disclosing Party; (c) Public Solicitation: The opportunity arose from a public RFP, bid request, or other publicly available solicitation; or (d) Prior Introduction: The contact was introduced to the Receiving Party by a third party unrelated to the Disclosing Party, prior to any introduction by the Disclosing Party. The Receiving Party shall bear the burden of demonstrating applicability of these carve-outs by a preponderance of the evidence." This language protects our existing business while still giving you meaningful non-circumvention protection for genuinely new introductions. The burden of proof remains on us. Please confirm this carve-out is acceptable. Best regards, [Your Name]

Confirm Final Non-Circumvention Terms

Disclosing Party Final Terms

When to use: You have negotiated the key terms of the non-circumvention clause. Use this to confirm the final language and move toward execution.

Subject: Re: NDA - Final Non-Circumvention Language

[Name], Thank you for the productive negotiation on the non-circumvention provision. I want to confirm the agreed terms before we finalize the NDA. CONFIRMED NON-CIRCUMVENTION TERMS: 1. SCOPE: Non-circumvention applies only to "Protected Contacts" - specific contacts identified in writing at the time of introduction or added to Schedule A. 2. DURATION: [24] months from the date each Protected Contact is identified, with automatic extension for active deals as defined. 3. EXISTING RELATIONSHIP CARVE-OUT: Does not apply to contacts with whom you had a pre-existing relationship, with the burden on you to demonstrate such relationship. 4. INDEPENDENT DISCOVERY CARVE-OUT: Does not apply to contacts you identify or who approach you independently, without use of our Confidential Information. 5. NOTIFICATION: We will provide written notice when designating Protected Contacts. You will have [10] business days to assert a pre-existing relationship. 6. CAP: Maximum of [50] Protected Contacts at any time. 7. REMEDY: Breach of non-circumvention shall entitle us to: (a) injunctive relief; (b) a finder's fee equal to [X%] of any transaction value with the Protected Contact; and (c) recovery of attorneys' fees incurred in enforcement. 8. MUTUAL APPLICATION: Non-circumvention applies mutually - we are also bound not to circumvent contacts you designate as protected. Please confirm these terms are correctly stated, and I will circulate the final NDA for signature. Best regards, [Your Name]