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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
Pura Rodriguez, JD, MBA is the President and Managing Partner of A Physician’s Firm, based in Miami. She represents healthcare providers from different specialties in a broad range of issues, including contract review, business planning and transactions, mergers and acquisitions, vendor and contract disputes, risk management, fraud and abuse compliance (Anti-Kickback Statute and Stark), HIPAA compliance, medical staff credentialing, employment law, and federal and state regulations. She also assists providers in planning their estates, protecting their assets, and work visa requirements.
Jaclyn is an experienced intellectual property and transactional attorney residing and working in NYC, and serving clients throughout the United States and internationally. She brings a targeted breadth of knowledge in intellectual property law, having years of experience working within the media, theater, PR and communications industries, and having represented clients in the music, entertainment, fashion, event production, digital media, tech, food/beverage, consumer goods, and beauty industries. She is an expert in trademark, copyright, and complex media and entertainment law matters. Jaclyn also taught as an Adjunct Professor at Cardozo School of Law, having developed and instructed the school’s first Trademark Practicum course for international students. In her spare time, Jaclyn’s passion for theater and love for NYC keeps her exploring the boundless creativity in the world’s greatest city!
A bilingual attorney graduated from J.D. with a C.P.A. license, an M.B.A. degree, and nearly ten years of experience in the cross-border tax field.
Experienced and business-oriented attorney with a great depth of contract experience including vendor contracts, service contracts, employment, licenses, operating agreements and other corporate compliance documents.
With over 21 years of practice, Chet uses his vast experiences to assist his clients in the most efficient manner possible. Chet is a magna cum laude graduate of University of Miami School of Law with an extensive background in Business Law, Commercial Real Estate, Corporate Law, Leasing Law and Telecommunications Law. Chet's prior experience includes 5 years at two of the top law firms in Georgia and 16 years of operating his own private practice.
Steve Clark has been practicing law in DFW since 1980. He is licensed in both Texas and Louisiana state and federal courts. He concentrates his practice on business clients and their needs. He has been a SuperLawyer in Texas since 2011, and is Lead Counsel rated in Business Law. He is also a Bet the Company litigator in Texas.
I am a top-performing bi-lingual legal services professional with a proven record of success. Reputation of assessing and evaluating client’s needs and providing individualized solutions in line with those needs while efficiently handling multiple tasks simultaneously. Able to create a collaborative work environment ensuring business objectives are consistently met. Seeking an attorney role within a legal setting to apply skills in critical thinking, executive communications, and client advocacy.