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Need help with a Distribution Agreement?
What is a Distribution Agreement?
Distribution agreements, also called wholesale distribution agreements, are contracts between a distributor and manufacturer. They allow the distributor to sell, market, and profit from the sales of a manufacturer’s or wholesaler’s product in bulk. A distribution agreement typically uses the terms and conditions that address territories, exclusivity rights, reporting requirements, and more.
If you need a distribution agreement, you should consider the essential parts, how they work, types of distribution agreements, when to use one, and how to get help drafting one.
Parts of a Distribution Agreement
Parts of a distribution agreement vary according to the transaction type. Both parties must determine if they want to enter into an exclusive or non-exclusive deal first. You should also consider the type of distribution strategy including selective and intensive strategies.
Below is a basic distribution agreement checklist to help you get started:
- Names and addresses of both parties
- Sale terms and conditions
- Contract effective dates
- Marketing and intellectual property rights
- Defects and returns provisions
- Severance terms
- Returned goods credits and costs
- Exclusivity from competing products
- Ownership of product provisions
There may be other parts of a distribution agreement to include in your contract that isn’t listed here. Business lawyers are able to understand your objectives and translate them into a legally binding and enforceable distribution agreement.
How Distribution Agreements Work
The distributor directly sells products to retailers and consumers on behalf of the manufacturer. Instead of the manufacturer paying for the cost of sales, this responsibility falls on the shoulders of a distributor. Profitability from already recognizable and developed products and services is what the distributor is after from the transaction.
The following steps outline how finding and negotiating a distribution agreement works:
- Step 1. Set an appointment with the manufacturer
- Step 2. Negotiate the distribution terms
- Step 3. Review specifics, such as promotional literature
- Step 3. Hire a business lawyer to help you draft the terms
- Step 4. Sign or renegotiate the contract
- Step 5. Begin executing the agreement as contained within provisions
You should also decide which type of distribution agreement you want your company to use. The decision you make will affect critical marketing and legal aspects, which means the decision should be made carefully. Business attorneys are licensed to offer legal advice at every crucial point in the negotiation and contract drafting process.
Here is another article about how distribution agreements work.
Types of Distribution Agreements
The type of distribution agreement to select depends upon the type of transaction in which you are engaging. It’s vital to choose the proper agreement so that it can perform its contractual purpose of protecting both party’s rights.
There are four distribution agreement types including:
- Type 1. Exclusive distribution agreements
- Type 2. Wholesale distribution agreements
- Type 3. Distribution agreements for commissions
- Type 4. Developer distribution agreements
Let’s look closer at each type of distribution agreement below:
Exclusive Distribution Agreement
Exclusive distribution agreements are distribution rights granted between a distributor and supplier company. Both parties agree that the distributor will give exclusivity rights to the supplier to sell certain products or services instead of non-exclusive rights. This strategy creates competitive barriers to participation.
Provisions to consider when drafting distribution agreements include:
- Provision 1. Minimum purchase requirements
- Provision 2. Purchase order cancellations
- Provision 3. Defined geographic locations
- Provision 4. Handling purchase orders and deliveries
- Provision 5. Representations of warranties and guarantees
- Provision 6. Dispute resolution requirements
- Provision 7. Force majeure clauses
Wholesale Distribution Agreement
Wholesale distribution agreements are between a distributor and manufacturer. They define the terms and conditions surrounding distribution within a specific territory. The distributor must sell goods and services as outlined within the wholesale distribution agreement.
Provisions to include in a wholesale distribution agreement include:
- Provision 1. Applicable geographic territory
- Provision 2. Information about the products to be sold
- Provision 3. Prices at which the distributor must sell the products
- Provision 4. Minimum number of sales and purchases
- Provision 5. Non-competition agreements
- Provision 6. Payable royalties and commissions
- Provision 7. How to terminate the agreement
- Provision 8. Responsibilities of handling specific costs and fees
Distribution Agreement for Commissions
Distribution agreements for commissions define a distributor’s compensation from meeting or exceeding manufacturer sales goals. Commissions will vary according to the particulars and value of products sold. These types of agreements provide an excellent way to encourage growth and sales while rewarding channel partners commensurately for their efforts.
Provisions contained with commission distribution agreements include:
- Provision 1. Sales goals that trigger commissions
- Provision 2. Details on commission tiers
- Provision 3. How to facilitate payouts
- Provision 4. Percentage of commissions
- Provision 5. Agreement termination requirements
- Provision 6. Handling disputes and disagreements
- Provision 7. Guarantees and warranties
Image via Pexels by Norma Mortenson
Developer Distribution Agreement
Developer distribution agreements let distributors know how software and application developers want them to distribute the product. They also define the overall relationship between the distributor and developer. It’s essential to draft the formal agreement the first time around to avoid the chance of facing a future dispute.
Examples of developer distributors include:
- Example 1. Google Play Store
- Example 2. Apple Store
- Example 3. Microsoft Store
- Example 4. Oculus Store
- Example 5. Channel Partners
Ensure that you consider the terms and considerations of a developer distribution agreement carefully since they can affect your company’s performance and future. Here’s a page containing an example of a distribution agreement.
Who Needs a Distribution Agreement?
Anyone engaging in the distribution of another company’s product or services needs a distribution agreement. Businesses must use distribution agreements to facilitate clear guidelines among the parties while providing a legal record of the formalized agreement.
The following business types may need distribution agreements:
- Type 1. Wholesalers
- Type 2. Manufacturers
- Type 3. Retailers
- Type 4. Software companies
- Type 5. Beauty products
- Type 6. Clothing and accessories
- Type 7. Electronics
- Type 8. Brands
Ultimately, you can determine if you need a distribution agreement by speaking with lawyers directly. They can also help you establish whether you should have other contracts in place.
Here’s the website for the National Association of Wholesale Distributors for more information.
Drafting or Reviewing Distribution Agreements
Drafting or reviewing distribution agreements is another aspect of the contract writing process. From some parties, it is challenging to determine if the proposed contract is fair, whether you are the author or signer. The most practical way to overcome any doubt is by hiring contract lawyers to help you through the process.
Contract lawyers can help with the following:
- Negotiation of the terms and conditions
- Providing legal advice and professional insight
- Sending emails and letters to both parties
- Acting as a communication hub for all parties
- Explaining the legal terms of the contract
- Drafting and revising the agreement
- Settling disputes between you and your channel partners
- Adding amendments and restatements to your contract
- Representing your contract agreement in arbitration or court if a dispute arises
A distribution agreement is only as good as the language contained within it. If your agreement is unenforceable or illegal in some capacity, these legal mistakes can result in unintended consequences. Instead of leaving your business deal to chance, hire contract lawyers to ensure that your and your company’s rights are protected throughout the process.
Meet some of our Distribution Agreement Lawyers
I joined Enterprise Law Group, LLP as an Associate in March 2020. My practice has involved a wide range of legal matters from commercial real estate, finance and international business transactions to litigation matters including commercial disputes, personal injury and medical malpractice. Proficient in Spanish, I graduated from the University of Kentucky College of Law, the Patterson School of Diplomacy and International Commerce, and the University of Southern California. Prior to my legal career, I sought diverse professional experiences. After graduating from college, I orchestrated my own volunteering experience in southern Peru with a small non-profit organization. Later I gained valuable professional experience as part of a U.S. Senate campaign, and after that I joined the public policy team at Greater Louisville, Inc., Louisville's Chamber of Commerce affiliate. Prior to law school, I embarked on a month long excursion with the Northern Outdoor Leadership School in Alaska, which gave me a new found appreciation for sustainability.
Agnes Mombrun Geter is the Founder and Managing Attorney of Mombrun Law, PLLC. She is an experienced attorney and is a member of the Florida Bar, New Jersey Bar, and the Pennsylvania Bar. The firm's practice focuses on Estate Planning, Business Law, and Debt Settlement including IRS Debt Relief. The firm's goal is to simplify the law and provide clients with the confidence and information necessary to make their decisions. The firm also provides project-based legal services to other attorneys and law firms, along with assisting as personal counsel and local counsel on legal matters.
Have over 40+ years of corporate and commercial law experience.
I am a business attorney with years of experience advising individual entrepreneurs and small businesses on issues ranging from entity selection/formation to employment law compliance, to intellectual property protection and exploitation. I often act as General Counsel for my clients fulfilling the legal function as part of a team of managers. I look forward to learning more about your business and how I may be of assistance.
Corporate and transactional attorney in sixth year of practice. Focus areas include general corporate counsel, labor and employment law, business partnership matters, securities matters related to privately-held companies, and regulatory compliance in securities and finance matters.
Forest is a general practice lawyer. He provides legal advice regarding small business law, contracts, estates and trusts, administrative law, corporate governance and compliance. Forest practiced complex commercial litigation in Florida for eight years, representing clients such as Host Marriott, Kellogg School of Business, and Toyota. Since moving to Nashville in 2005, he has provided legal advice to clients forming new businesses, planning for the future, and seeking funding through the use of equity and/or debt in their businesses. This advice has included the selection of business type, assistance in drafting and editing their business plans and offering material, reviewing proposed term sheets, and conducting due diligence. Forest is a member of the Florida, Tennessee, and Texas Bars; in addition. Forest has held a Series 7, General Securities Representative Exam, Series 24, General Securities Principal, and Series 63, Uniform Securities Agent State Law.
FL & NY licensed attorney with nearly a decade of experience in intellectual property, commercial contracts, employment, and data privacy and security. Basically, everything your business needs!