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Need help with a Manufacturing Contract?
What Is a Manufacturing Contract?
As an entrepreneur, you don't have to deal with manufacturing a product you develop. Instead, you can create a contract with another company to manufacture your product so that you can start selling it on the market. This process is typically referred to as contract manufacturing. A manufacturing contract sets the terms for this kind of agreement.
A contract manufacturer is a company that produces goods for another business. The contract manufacturer is responsible for sourcing the raw materials needed for production. They also provide manufacturing processes to meet certain requirements, such as:
- Delivery dates
By signing an agreement with an outside firm, you can get the assistance you need to produce and sell your products. This allows you to create a product without investing in equipment, machinery, or specialized product knowledge. For example, you can use a manufacturing contract to arrange for a local or overseas manufacturer to make all or a part of the product your company produces and then sells.
The hiring company typically provides the formula or design for a contract manufacturer to replicate or even improve upon. Then, the hiring firm deals with the marketing and selling of the product.
Key Elements of a Manufacturing Contract
Manufacturing contracts can have considerable variation. You might sign a contract for one specific product line, or you could sign a few different agreements with various providers in a specific region. No matter your specific needs, you will want to create a manufacturing contract that outlines the exact terms of the relationship between your company and one or more other organizations.
Any agreement should include aspects such as:
- Intellectual property ( here is some further reading on this topic)
- Project costs
- Responsibilities of all parties
- Liabilities of all parties
- Turnaround time
Manufacturing contracts must also cover certain elements to make the agreement legally binding. Make sure your contract includes these elements so that all parties are protected in case of a disagreement or a failure to deliver on promises. Important legal elements include:
- An offer of work
- Acceptance by all parties
- Intent to create a legal relationship
- Consideration , which is the transaction of currency and/or goods
Additionally, most manufacturing contracts will include some or all of the following components, depending on the company's specific situation and the products they want to create:
Your manufacturing contract should define terms for key processes. Outlining this in the contract will help ensure that all parties are on the same page and satisfied with the end result. Key processes can include:
- Lead times
- Licensing agreements: This aspect of an agreement is essential if an organization expects its contract manufacturer to use trademarked intellectual property. A third party cannot legally manufacture a product without this, so they need this agreement to avoid lawsuits for trademark infringement.
- Non-disclosure agreements: A nondisclosure agreement, or NDA, is important if you are dealing with proprietary services or products. This is particularly common in the technology sector. For instance, Apple would include an NDA in any contract with a third-party manufacturer to ensure they can surprise consumers when they reveal their latest products.
- Purchase orders: These documents establish the terms of a transaction between an organization and its contract manufacturers.
- Quality standards: If you are contracting out your organization's manufacturing, you need to make sure you receive high-quality services and products. As a result, most manufacturing contracts have various stipulations that detail quality standards. In the long run, this not only saves you effort and time, but it will also cut down on the possibility that the customer receives a sub-par product.
- Supply chain agreements: Your organization's products are probably not beginning and ending in the same place. To improve efficiency and communication throughout the entire production process, you can establish a product's supply chain in a manufacturing contract. For example, you may need to involve skills and services from various business partners in order to design, market, package, and produce your products.
- Termination clauses: The manufacturing contract will end at some point. The initial contract should address what happens to things such as intellectual property and patents to ensure that the relationship between your business and its manufacturers does not come to a contentious end. It's also useful to outline the circumstances in which the contract can be terminated, such as insolvency or a breach of the contract.
Image via Unsplash by clayton_cardinalli
Benefits of Using a Manufacturing Contract
Companies may choose to create a manufacturing contract for a few main reasons. In general, these contracts make it less expensive, more efficient, and simply easier to bring new products into a market and then achieve broad distribution. The main benefits of using a manufacturing contract include:
Your company can save a lot of money if you contract with a manufacturer that has already invested in the right equipment and knows the manufacturing process. You might do this with a manufacturer that produces similar but noncompeting products. Depending on the manufacturer's location, you could also enjoy savings in terms of:
- Energy costs
- Labor costs
- Raw materials
- Taxation benefits
- Distribution: Contract manufacturers can sometimes drop-ship a product to customers in a specified geographic area, or they may even ship your product to all of your customers. Some manufacturers handle individual customer shipments. Others may deliver the product to a central warehouse, and then you will need to take care of shipments as the hiring company.
- Easier market entry: It may be difficult to enter the market where you produce your goods, but you can still make them at low prices and export them to nearby countries that would be harder to reach if you manufactured your products elsewhere.
- Focus on core competencies: By using a manufacturing contract, you can free up people at your own company so that they can focus on their true strengths, such as marketing or selling. Otherwise, your firm may not have the capability to make your product in a country or factory setup that saves you money.
Risks of Using a Manufacturing Contract
Manufacturing contracts can come with some risks as well. For example:
- Cultural differences, such as language barriers, can create complications for contract manufacturing.
- You will not have complete control over the quality of the product produced.
- You likely will not be the only company working with the manufacturer you choose, which may raise questions about delivery timelines and the potential to share proprietary information.
- You will give your product ideas to someone else to make, so you might feel like you are giving your best ideas to a possible future competitor. Some unethical manufactures do give away product ideas from one client to another.
This is why it's so important to get a legal contract in place if you plan to work with a contract manufacturer. A legal contract will protect you against any fraudulent behavior. Without a good contract, the manufacturer could simply tweak your product and sell it if they see the demand your product has in the market. A contract details your legal rights as well as recourse if the manufacturer breaches the contract. You will want to make sure that you know which country governs your contract if you negotiate with overseas manufacturers.
Having a solid contract in place will help protect you and your business from these potential problems, so you should work with an experienced lawyer when creating your manufacturing contract.
Meet some of our Manufacturing Contract 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 38 years of litigation experience. Mr. Charlip is also one of only 136 Florida Civil Law Notaries. 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 30 years and is very familiar with all aspects of contractual relations.
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 startups 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.
I enjoy helping businesses of all sizes succeed, from start-ups to existing small and medium sized businesses. I regularly advise corporate clients on a variety of legal issues including formation, day to day governance, reviewing and drafting business contracts and other agreements, business acquisitions and sales, as well as commercial and residential real estate issues, including sales, purchases and leases. As an attorney licensed in both Michigan and Florida, I also advise clients on real estate issues affecting businesses and individuals owning real property in either state, whether commercial, residential or vacation/investment property. I also regularly assist nonprofit organizations in obtaining and maintaining tax exempt status, and provide general legal counsel on all matters affecting public charities, private foundations and other nonprofit organizations.