Distribution
A carefully selected and well organized distribution system is essential to effectively sell your products. This applies in particular if you, as the manufacturer of the products, do not take over sales yourself, but involve sales intermediaries in sales, such as franchisees, commercial agents or authorised dealers.
We give advise on the selection of the optimal distribution system for your company and draft the necessary contracts.
Our consulting services:
- Drafting of distribution agreements, in particular franchise agreements, commercial agents and authorised dealer agreements
- General Terms and Conditions
- Advice on setting up selective distribution systems
- License agreements (trademarks, designs, copyright)
- IT-specific contracts
- E-commerce
- Advice on price indication obligations
- Advice on data protection law
Drafting of distribution agreements, in particular franchise agreements, commercial agents and authorised dealer agreements
The drafting and checking of sales contracts is of decisive importance for the economic success of your distribution system. It is therefore worth investing in this area.
With franchise contracts, the franchisee participates in an already successful business concept of the franchisor, but acts as a completely independent entrepreneur. This type of contract, which is not regulated by law, is a bundle of various performance obligations. Thus the franchisee receives the right to use the brand, the know-how and regularly also the goods or services of the franchisor. For example, the franchisor is provided with business equipment or advertising material or is supported by the franchisor with training courses. In return, the franchisor receives a regular franchise fee and usually also a one-off fee for entry into the franchise system.
A commercial agent is someone who, as an independent trader, is permanently entrusted with mediating business for another entrepreneur or concluding business transactions on his behalf (§ 84 (1) of the German Commercial Code). The commercial agent is therefore also self-employed and bears his own entrepreneurial risk. However, he does not act in his own name, but as a representative of the entrepreneur. The commercial agent is subject to a multitude of legal obligations, in particular the obligation to safeguard the interests of the company he represents, to endeavour to broker or conclude transactions (§ 86 (1) of the German Commercial Code), to report to the company (§ 86 (2) of the German Commercial Code) and to prohibit activities for a competitor. In return the represented enterprise commits itself to the commission payment (§ 87 (1) of the German Commercial Code) as well as to the provision of necessary documents, as for instance samples, price lists or trading conditions. Frequently, however, the legal regulations are contractually modified. In this case, an examination of the compatibility with General terms and conditions law is particularly necessary.
The authorised dealer is integrated into the manufacturer's sales organisation in such a way that he buys goods from the manufacturer on his own account and then resells them to customers in his own name and on his own account. In contrast to a commercial agent, an authorised dealer contract is not regulated by law. Depending on the form of the contract, however, the statutory regulations on commercial agents can be applied accordingly. This applies in particular to the claim for compensation after termination of the contractual relationship (analogous to § 89b of the German Commercial Code). Important provisions in the dealer agreement are in particular the contract territory, minimum purchase obligations, (post-contractual) non-compete obligations and take-back clauses.
General terms and conditions
General terms and conditions can be found in almost all areas of business life. They simplify the legal structuring of regularly recurring transactions as well as transactions in mass transport and are used both in business transactions (B2B) and in legal transactions with consumers (B2C). In order to protect the contractual partner from disadvantageous regulations in general terms and conditions, the law specifies a whole catalogue of regulations which can be ineffective in general terms and conditions. Accordingly, clauses in general terms and conditions which discriminate against the contractual partner inappropriately are invalid. This applies, for example, to liability clauses, contract terms or short-term price increases. When such an unreasonable disadvantage exists it is defined and substantiated by case law.
If an GTC clause is ineffective, it does not become part of the contract and is replaced by the statutory regulation. This means that an ineffective GTC clause cannot be reinterpreted or reduced to an effective part (prohibition of reduction to maintain validity). Therefore the careful legal organization and examination of your general trading conditions is necessary in order to prevent that ineffective clauses are contained. We will be pleased to support you in this.
Advice on setting up selective distribution systems
Selective distribution systems are distribution systems in which the supplier undertakes to sell, directly or indirectly, the contract goods or services only to distributors selected on the basis of defined characteristics and in which these distributors undertake not to sell the goods or services concerned to distributors who are not authorised to distribute within the territory designated by the supplier to operate that system. Such distribution systems lead to restrictions of competition and must therefore be subject to antitrust control. A distinction is made between the type of selective distribution system - simple and qualified specialised trade links and quantitative selective distribution systems.
Each of these distribution systems is subject to certain antitrust compatibility requirements. We provide you advise on the selective distribution system to choose with regard to economic and legal issues and how to implement it best.
License agreements (tademarks, designs, copyright)
Intellectual property rights, such as trademarks, designs or copyrights, grant their holders exclusive rights. This means that the holder alone may benefit from the protection and may prohibit third parties from benefiting theirselves. In many cases, however, the right holder does not want to use the object of protection himself but wants to license it to a third party.
The core of the licence agreement is the description of the subject matter of the licence as well as the scope of the rights granted. This includes, in particular, the type of licence (simple or exclusive) as well as the scope in terms of territory, content and time. The regulation of the license fees to be paid is also an important component of a license agreement. Common models are, for example, a flat-rate license, a sales license or a per-piece license.
We counsel on the drafting of such license agreements, both on behalf of the licensor as well as on behalf of the licensee.
E-Commerce
Online shops must meet a number of legal requirements, in particular a legally compliant ordering process, transparent product descriptions, imprint obligations or revocation instructions. The design of order processing, payment options and general terms and conditions should also be taken into account when designing an online shop. In addition, legal problems often arise with regard to newsletter advertising and discount or voucher campaigns.
Not only classical online shops, but also other online offers, such as service offers, must take legal framework conditions into account. This applies even to simple websites that offer neither goods nor services.
We advise you comprehensively with regard to the legal design requirements and explain to you how these can be implemented best in practice.
Advice on price indication obligations
When prices are quoted to consumers, the total price must always be stated - this sounds simple at first, but in practice small details are often overlooked. The total price refers to the price that must be paid, including VAT and other price components. If, for example, a mobile device can be purchased at a price of 99.00 € but only in connection with a 24-month mobile contract at a monthly price of 29.00 € the monthly price of the contract must be clearly indicated. This is usually done by an asterisk associated with the eye-catching highlighted offer.
For certain goods, a basic price must be indicated in addition to the total price. The basic price is the price per unit of quantity, for example per litre or kilogram.
In addition, online merchants must state that the price already includes sales tax and other price components and whether additional freight, delivery or shipping costs are incurred and, if so, to what extent.
Violations of these price indication obligations constitute a violation of competition and can be prosecuted by competitors, for example.
Advice on data protection
In today's information society, personal data has an enormous economic value. At the same time, after various data protection scandals, the sensitivity of the population for the protection of this data is increasing. Topics such as the "Safe Harbor Agreement", "Big Data" or the "Internet of Things" are being discussed publicly.
Dealing with data protection regulations can therefore also shape the reputation of a company. In this tense environment, we provide you with comprehensive advice on the subject of data protection.
What we can do for you:
Appointment of data protection officers
Order data processing agreements
Design of data protection corporate guidelines
Privacy policy for websites