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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
David H. Charlip, the principal of Charlip Law Group, LC, is one of only 101 Board Certified Civil Trial Lawyers in Miami-Dade, with over 40 years of litigation experience. Mr. Charlip is also one of only 136 Florida Civil Law Notaries. He is also a Florida Supreme Court Certified Circuit Civil Mediator and a Florida Supreme Court Approved Arbitrator. He has managed and litigated cases across the country. Mr. Charlip has advised businesses, drafted business formation and purchase and sale documents and litigated business disputes for over 40 years and is very familiar with all aspects of contractual relations.
Trusted business and intellectual property attorney for small to midsize businesses. Helping businesses start, grow, scale and protect.
With over 16 years of experience in the area of estate planning, trademarks, copyrights and contracts, I am currently licensed in Florida and NJ. My expertise includes: counseling clients on intellectual property availability, use and registration; oversee all procedural details of registration and responses with the USPTO/US Copyright Office; negotiate, draft and review corporate contracts and licensing; counsel clients on personal protection, planning and drafting comprehensive estate plans.
Melissa Taylor, the President and founding partner of Maurer Taylor Law, specializes in business contract review and drafting and is a second-generation attorney with private firm, in-house counsel, governmental, entrepreneurial, and solo practitioner experience. Melissa has a strong legal background, a dedication to customer service, is friendly, warm and communicative, and is particularly skilled at explaining complex legal matters in a way that's easy to understand. Melissa personally handles all client matters from start to finish to ensure client satisfaction.
Lawrence A. “Larry” Saichek is an AV rated attorney and a CPA focusing on business and real estate transactions, corporate law and alternative dispute resolution. With a background including five years of public accounting and six years as “in house” counsel to a national real estate investment company, Larry brings a unique perspective to his clients – as attorney, accountant and businessman. Many clients think of Larry as their outside “in house” counsel and a valued member of their team. Larry is also a Florida Supreme Court Certified Mediator and a qualified arbitrator with over 25 years of ADR experience.
Entertainment Attorney with 30+ years of experience, representing all aspects of the TV, Film, Music and Publishing Industries
Aaron focuses his practice on entrepreneurs and emerging growth companies, providing general counsel services for companies from formation through exit. Aaron frequently advises clients in connection with routine and unique legal, business, and strategic decisions, including corporate, business and technology transactions, angel and venture financings, mergers and acquisitions, protection of intellectual property, and information privacy and data security.