PerformanceININside Performance Marketing
JOIN THE PERFORMANCEIN Join the PerformanceIN Partner Network
Saying Goodbye to the “Non Circumvent” Clause

Saying Goodbye to the “Non Circumvent” Clause

PerformanceIN

Requests for exclusivity, or legislating exclusivity, is a challenge to trust. It’s requested as a way to protect the vendor’s interests, compel client commitment and give the partnership the best opportunity to achieve the higher-level objective. Yet, it isn’t the answer.

On its face, drawing parallels between dating and affiliate providers may seem contrived. Yet the very nature of dating is steeped in creating a healthy, mutually beneficial and lasting relationship. Affiliate marketing, if nothing else, is fundamentally rooted in forging lasting, profitable, partner relationships. When it comes to affiliate providers—and in the practice of dating—finding the “one” that makes you look past all others is the goal of every marketer with responsibility for the channel. 

If failed relationships can teach us anything, the lesson should be that the highest probability of success depends upon both parties entering with a good-faith goal of achieving a long-term, mutually rewarding, and sustainable partnership. If that occurs, and the relationship fails to last, you will move on to the next relationship with key learning’s to be applied the next time around. Here comes the parallel again: the same holds true in the quest for the right affiliate technology platform and service partners.   

Legislated exclusivity vs voluntary monogamy

Much like dating, things could get complicated here, too. Remember success hinging on both parties entering with good faith? Well, when a relationship seems to offer all the ingredients necessary for success, eventually—whether you’re ready for it not—the question of exclusivity looms heavy around the corner. Both parties should have seen it coming. The difference is that standard affiliate network agreements require exclusivity from day one in the form of a non-circumvent clause. A prenuptial of sorts, designed to acknowledge the value of the assets the network brought into the relationship. 

For the past two decades, this was a reasonable premise, as the legacy network model was built on a value proposition that featured exclusive access to publishers that the network had invested significantly in building and preventing clients from taking those publisher relationships with them if they migrated their program was both reasonable and necessary to protect the network’s core business model. The downside of this dynamic was that most advertisers (and their agencies) were compelled to have active relationships with multiple “networks” to get the diversified scale required to deliver on performance targets. The result was inefficiencies in program management, missed opportunity, and confusion in the supply chain. 

Times they are a-changing 

However, the affiliate marketing category is in the latter stages of a desperately needed and fundamental transition—rapidly moving away from the legacy network model in favor of innovation underpinned by a software license model where access to partner opportunities is universal and the solution provider value proposition centers on delivering the technology platform required to help you find, recruit and manage the partners most likely to deliver your target outcomes. As this shift moves closer to completion, it will fully relegate the concept of publisher exclusivity to the scrap heap of a bygone era and make the “non-circumvent” clause typically found in affiliate network agreements obsolete, replaced by the software license structure that will govern this new generation of affiliate marketing. 

The keys to success in the new affiliate world

Along with this new structure, there are a select group of best practices that all parties should embrace to provide the best foundation for a mutually rewarding partnership. Starting with alignment on a definition of success and a corresponding commitment to do their respective parts in achieving it, marketers and their solution providers need to collaborate from their first interaction to determine whether they are aligned philosophically and operationally. Communication should be transparent and honest, and ultimately reinforced by a commercial agreement that documents what is expected of each party, the timelines to deliver, and providing reasonable remedies to insure accountability thereto.

While the contractual clauses that are emblematic of the “old way” of doing things in affiliate may need a bit longer to take their final bow, the industry is finally saying goodbye to the practices that have characterised it for so long – and not a moment too soon.

Continue the conversation

Have something to say about this article? Comment above or directly on Facebook, Twitter or our LinkedIn Group.

Marty Bickford

Marty Bickford

    Marty Bickford is Senior Vice President of Customer Success at Pepperjam. Bickford is accountable for the success of both customers and publishers on Pepperjam's Ascend affiliate marketing lifecycle technology platform. He has over a decade of experience in the affiliate industry and more than 25 years’ experience in internet technology.

    Read more from Marty

    You may also like…