A distribution agreement is a contractual arrangement in which a distributor purchases goods from a supplier and sells them on to third parties in his own name. A distinction is often made with commercial agency agreements, in which an agent acts as an intermediary for a principal, when selling the goods in question.
Distribution agreements are a valuable strategy for businesses planning on entering new markets, particularly those reaching beyond national boundaries. As distribution agreements can amass a great deal of complexity, it is advisable to acquire legal advice when pursuing and entering into this type of contract.
Distribution agreements are not specifically addressed under Dutch law, and instead, are covered under the umbrella of contract law. The most important principles in constructing these agreements is reasonableness and fairness, both of which serve as an influence in how a distribution agreement is formed and the resulting obligations of the parties. For example, in creating an agreement, a party must take reasonable care to ensure that the other is not induced into entering the agreement through false pretences or an incorrect understanding of the circumstances.
The parties to a distribution agreement must be sufficiently competent to enter into the contract. This is assessed from a legal perspective, for example, in relation to mental capacity and age. Further, an agreement must not be to the detriment of public order, or contravene the mandatory laws or business ethics (mainly competition law) within the industry in question. These rules are limited, in line with emphasising the contractual freedom of a supplier and distributor. However, the Issues outlined above can easily arise without undertaking any legal consultation and the contract can be deemed void by the courts as a result.
Under Dutch law a distribution agreement need not be in written form, but it is always advised to do so, particularly if such agreements are of substantial financial value or duration. It is also imperative that Companies in The Netherlands register their business with the Trade Register in their relevant local Chamber of Commerce.
Generally, there are considered to be four main types of distribution agreements. These are:
What are the obligations and rights under distribution agreements under Dutch law?
The rights and obligations under a distribution agreement in the Netherlands must be clearly identifiable, or at a minimum, the criteria to fulfil them should be present. The essential elements of distribution agreements under Dutch law are:
How do you terminate a distribution agreement under Dutch law?
The procedure to follow in terminating a distribution agreement is normally contained in a provision of the contract itself. This is mainly achieved by simply outlining the duration of the agreement, in which a termination period for notice is included.
When an agreement has been left open-ended by the parties in terms of duration, then termination of that agreement can be sought on the basis of Dutch case law. A notice period for the termination will still need to be respected and reasonable compensation should be granted in line with the financial value and duration of the contract.
Termination may also occur as a result of a repudiatory breach of the contract, where one party has been substantially deprived of their expected benefit from the contract, due to the failure of the other in carrying out their obligations. This termination can be immediately effective without the need for a notice period, due to the seriousness of the breach.