In some distribution agreements, the distributor may come into contact with manufacturing processes, trade secrets, know-how, customer lists, etc., which are essential to the supplier`s activities. It is therefore absolutely necessary to include a confidentiality clause in the distribution agreement in order to prevent the distributor from abusing or revealing confidential information. This article briefly describes the basic contractual protection to which a distributor in the United States should endeavour to negotiate a new distribution report. Manufacturers naturally have their own criteria and should consult the separate article on this site in order to obtain information on the contract they should create. This agreement and the attached statement (which is expressly included in this reference) contain the full and comprehensive agreement between the parties regarding the purpose of this agreement. It replaces all previous negotiations, submissions and proposals, in writing or any other means, relating to its purpose. Changes, amendments or amendments to this agreement must be established by a text signed by the authorized representatives of both parties. The distributor recognizes and accepts that any failure of the supplier to impose at any time or for a certain period of time is not considered or interpreted as a waiver of these provisions or as the supplier`s right to apply each of these provisions. This agreement can be concluded in several counter-pieces, each being considered original.
The provisions of this contract, which are not fully met by the express terms of this agreement for the duration of the agreement, remain beyond the termination of that agreement, to the extent that this is applicable. It is shared among foreign producers that the law governing a distribution agreement with a U.S. trading partner should be that of their country. However, the prosecution of a U.S. accused in the supplier`s home country does not make much legal and practical sense. There are many reasons for this. Exclusive provisions – under which the distributor undertakes not to market competing products in the territory – are very common in distribution agreements. While it is not an easy one for an applicant to argue, such a provision can be challenged as an unlawful restriction of competition under federal and state rules on cartels and abuse of dominance, generally under federal cartel laws: (i) Section 1 of the Sherman Act, which prohibits “commercially restricted” contracts; (ii) Section 2 of the Sherman Act, which prohibits “attempts at monopolization” and monopolization; (iii) Section 3 of the Clayton Antitrust Act of 1914, which prohibits exclusivity agreements that “significantly affect competition” or tend to create a monopoly; and (iv) Section 5 of the Federal Trade Commissions Act […], which prohibits “competition methods,” To rule on these cases, courts generally apply the “rules analysis” where that exclusive trade agreements are analyzed taking into account a large number of factors, including: (a) the defendant`s market power; (b) the degree of expulsion and barriers to entry; (c) the length of the contracts; (d) whether exclusivity has the potential to increase competitors` costs; (e) the existence of actual or probable anti-competitive effects; and (f) legitimate business justifications. The price of products, the method of payment and other payment terms are of course part of the main elements of the distribution contract in the United States.
The supplier will reserve the right to change prices after notification to the distributor. At least the merchant should look for a “three and three.” That is, a guaranteed, non-resilient three-year contract, which will be extended by three years if the criteria are met.