Cooperation, sale, distribution

Our many years of practice for clients in various sectors of the economy have enabled us to develop solutions that reflect the specific realities of each industry.

See also Corporate law & Public companies

The law firm has extensive experience in drafting and negotiating the wide variety of agreements necessary to formalise different models of economic cooperation and operational solutions.

Joint venture

Our law firm has a wealth of experience assisting joint ventures. We draft cooperation agreements between business partners, corporate articles of association and shareholder agreements tailored to the needs of the specific commercial venture. We represent clients in negotiations to establish and implement joint venture projects. When joint ventures are carried out through special-purpose vehicles, our legal advice also includes all issues related to purchase of existing SPVs or establishing and registering new companies to meet the needs of our business clients. We are experienced in drafting specific contractual clauses to suit the client’s needs, such as call, put, tag-along and drag-along options for shares in the joint venture company, and other conditions protecting the interests of the business partners involved in the company.

 

Distribution

We develop and update distribution agreements, precisely defining the mutual rights and responsibilities of producers and distributors. Reflecting the nature of the goods and the business model, we recommend solutions for exclusive supply or exclusive purchasing, selective distribution or franchising, as well as online sales by the distributor (competition law). We advise on how to counteract violations of the selective distribution model by third parties, e.g. through parallel imports (IP). With appropriate clauses, the distributor may be involved in helping uncover and combat trading in counterfeit goods.

We address the parties’ obligations with respect to promotion of products (with agreed marketing campaigns and budgets), rules for use of the producer’s trademark, support for the distributor with respect to specific knowhow (e.g. through training), and cooperation between the parties in order to deal with warranty claims by end users.

We review whether rebate systems are in compliance with competition law (competition law).

When drafting distribution agreements, we eliminate any doubts concerning the conditions for amending the agreement as well as for changes in product pricing. We address in detail the consequences of termination with respect to such issues as the procedure to be followed for the producer’s goods held in the distributor’s inventory (buyout clause), compensation for the distributor for termination of the distribution agreement, loss of income from the market the distributor has developed, or failure to recoup investments made in the distribution business, as well as assignment of customers to the new distributor.

 

Agency

We draft agency agreements for our clients with particular attention to such issues as the agent’s territorial exclusivity, restrictions on the agent’s acting for specific competitors, the agent’s authority to enter into contracts on behalf of the principal, conditions for the agent to guarantee performance by customers, rules for calculating fees and commissions, and rules for settlement between the agent and the principal (e.g. the agent’s assignment of payments received from the customer). We review the permissibility of using anti-competition clauses in agency agreements, such as territorial exclusivity or a prohibition on competitive activity by the agent during or after the term of the agreement (competition law).

When drafting agency agreements, we address the consequences of termination: settlement of commissions for contracts with customers recruited by the agent, rules for calculating the paying compensation under the Commercial Agents Directive, and settlement of other claims by the agent for early termination, loss of clientele or failure to recoup investments made in the agency.

 

Franchise

We assist our clients in precisely defining the franchise package as a recipe for success, including the range of goods and services, the operation of the business, know how, use of trademarks and other image-related elements, customer service standards, joint advertising and marketing for the franchise, and benefits from participation in group purchasing.

We draft franchising agreements with attention to the type of goods or services offered. We define the rules for payment of fees to the franchisor. We specify the franchisor’s obligations for delivery of the franchise package and support in implementing the package, as well as the franchisor’s rights to monitor the franchisee’s business for compliance with the franchise concept. We review the permissibility of clauses restricting competitive activity by the franchisee during and after the term of the franchise agreement (competition law).

In franchise agreements, we address rules for early termination and the related consequences, particularly such issues as claims by the franchisee for loss of clientele and failure to recoup investments in the franchise business. We also propose solutions for continuing the franchise business in the event of insolvency of the franchisor.

Framework agreements

We draft framework agreements defining the rules for cooperation in the sale of goods or services and other types of business cooperation. We define the rights and obligations of the parties with particular attention to the operational details and principles of the parties’ liability for failure to perform the agreement properly.

 

Sale and supply agreements

We negotiate and draft sale and supply agreements, with particular attention to such issues as the procedure to be followed in the case of changes in products or pricing, withdrawal of specific products and the seller’s liability for any loss resulting from product withdrawal, retention of title to goods pending payment of the purchase price, and procedures for termination of the agreement as a whole or specific terms. We recommend solutions with respect to warranty liability for product defects, as well as principles governing the parties’ liability for failure to perform the agreement properly.

 

General conditions for sale of goods and services, standard commercial documents

In addition to framework agreements and sale/supply agreements, we draw up documents our clients need in order to standardise their commercial operations. Typically these include general conditions for sale of goods and services, defining the procedures for forecasting needs, rules for submission and approval of orders, rules for delivery of goods, the content of shipping documents, quality control and service levels.

We also draft and review agreements necessary for streamlining the dealings between companies at different levels in the distribution chain (such as agreements covering logistics and electronic exchange of documents).

 

Marketing agreements

We draft agreements for optimising the economic cooperation between the parties, including agreements under which a retailer provides marketing services for the producer in order to promote the producer’s goods. We also review the permissibility of adopting such solutions under competition law. We create agreements that serve as the basis for multiple businesses to conduct joint marketing actions.

 

Rental and finance leasing agreements

We draft and review finance leasing agreements and rental agreements for movables, with particular attention to the need to assure the user’s uninterrupted operations. We advise on optimal solutions in the event of early termination and the consequences for the parties, as well as the parties’ responsibilities in the event of failure to perform the agreement properly. We also draft related agreements, such as agreements for management of the fleet of leased vehicles or for operation of leased equipment, technical service agreements, insurance for leased assets, and agreements for purchase of goods and services in conjunction with the use of leased assets (e.g. fuel card agreements). We advise on service level agreements.

 

Contract manufacturing agreements

We draft and review third-party manufacturing agreements for contract production using designs and technology supplied by the customer, or under the customer’s brand using the technology and specifications of the contract manufacturer. We address such issues as purchasing requirements in the context of setting aside production capacity (take or pay) and the consequences of failure to comply with purchasing requirements. We also define the effects of unauthorised use of production technology by the contract manufacturer. We propose solutions with respect to claims by the contract manufacturer in the event of early termination or failure to recoup investments made in the project.

 

Trust agreements

We provide legal assistance in negotiating and concluding trust agreements, particularly involving acquisition in trust of shares or real estate. We advise on compliance with Polish law to assure that the specific trust agreement is not intended to circumvent legal requirements, particularly in the context of prohibitions against acquisition of assets by specific entities or requirements to disclose direct or indirect control exercised by a dominant entity.

For our clients operating within distribution networks (producers, wholesalers and retailers), we recommend the use of the appropriate set of agreements for precisely defining the rights and obligations in dealings with other entities as well as formalising and standardising procedures in numerous additional and auxiliary aspects beyond the basic activity. Packages of agreements may include framework agreements for cooperation or sale of goods and services, general conditions of sale, quality control procedures, complaint procedures, cooperation procedures to be followed when counterfeit or pirated goods are discovered or when products must be withdrawn from the market, shipping and logistics agreements, and agreements covering packaging, warehousing and labelling services.

Security against risks

We propose optimal instruments under the specific agreement to secure against risks related to failure to comply with the agreement, such as reservation of title to goods pending payment, authorisation to cover at the defaulting party’s expense, contractual penalties, and financial security (such as promissory notes, bank guarantees, letters of credit, parent company guarantees, or pledges of movables or receivables). In order to minimise the negative effects of breach of contract, we draft the appropriate terms enabling early termination and address the effects of termination in order to limit the client’s potential losses.

 

Regulatory requirements

We review any regulatory requirements (such as licensing or registration) that must be met by the other party in order to perform the agreement.

 

Anti-competition clauses

We assess the permissibility of using specific types of clauses restricting competition: supply or purchasing exclusivity, territorial exclusivity, non-competition, limits on sales outside the assigned territory, limits on online sales, price terms, and rebate systems for specific groups of customers.

 

Intellectual property protection

We advise on how to structure clauses enabling other businesses to use trademarks and other identifying designations of our clients or their products. We stress the importance of prior approval of every use of such designations by the owner, as well as the owner’s right to withdraw authorisation to use designations when such use may be harmful to the interests of the owner or is made in a context not approved by the owner. We recommend that the user be required to report to the owner on any such use and to notify the owner of any observed violations of the owner’s rights by third parties (IP).

 

Consumer protection

We review agreements to be concluded by our clients to assure compliance with consumer rights, particularly with respect to information that must be provided upon sale, cancellation of agreements concluded at a distance, and failure of the goods to comply with the consumer agreement. We assess whether the agreements or general conditions used in dealings with consumers contain impermissible clauses.