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   Agreements (Reseller)

 

  • Drafting and negotiating many types of diverse reseller agreements in many diverse industries (including advertising, agriculture, business processing, construction, consumer products, cyber, ecommerce, education, energy, fashion, finance, food, franchising, fundraising, hardware, information technology (IT); manufacturing, pharmaceuticals, promotions, real estate, retail, software, transportation), such as: Authorized; Business Partner; Cloud; Dealer; Deployment Services; End User License Agreement (EULA); Managed Services; Master; Master Services; Non-exclusive; Non-exclusive Software; One-time; Online; Partner; Partner Connection; Partner Program; Private Label; Product; Product (Pro-reseller); Product (Pro-supplier); Services; Support Services; Single-Purchase; Single-Transaction; Software; Software-as-a-Service (SaaS); Subscription; Value-Added; White Label; and the like.

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  • A reseller agreement defines the framework for a transaction in which a reseller (a legal entity which is independent of the entity which has developed a product) purchases from a developer, manufacturer, wholesaler or the like, the right to resell a product to third-parties, such as actual consumers directly or (more often) to distributing entities which may resell the product again, either to actual consumers directly or (more often) to retail outlets dealing directly with actual consumers.

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  • A reseller agreement for manufactured products may often the reseller entity the right to re-brand the product and choose the prices the reseller will charge to consumers or distributors.

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  • However, reseller agreements for software products are generally more-restrictive about key limitations on the key provisions of any reselling arrangement, such as (if applicable to the particular product): acceptance protocol; applicable law (including both domestic and international); appointment as an authorized reseller; assignment; brand protection; compliance with all applicable laws; compliance with United States (US) government procurement protocols; confidentiality; delays; delivery method; dispute resolution protocol; end user license agreement (EULA); export liabilities; geographic territory; grant of license; indemnification; intellectual property (IP) rights (such as authorship, copyright, design, invention, logo, patent, service mark, trade secrets, trademark, and the like); inspection and rejection; inventory availability; limitation of liability (LOL); manufacturer’s suggested retail price policy (MSRP); marketing; minimum advertised prices (MAP) policy; minimum order requirements; non-competition; non-disclosure; non-interference; non-solicitation; ordering protocol; ownership restrictions and rights (such as exclusive or non-exclusive usage); packaging; payment methods and terms; prices restrictions to third-parties; procurement liabilities; proprietary rights; reporting protocol; resale permit requirement; reseller obligations; returns; risk of loss (ROL); sales incentives; sales targets; services included with the sale (if any); shipment protocol; term duration; termination; tax responsibilities; Uniform Commercial Code (UCC) warranties (such as disclaimers of any warranties, express warranties, implied warranties – such as, fitness for a particular purpose and merchantability – and the like); and the like.

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  • Reseller agreements in the software industry may generally be in either a “bottom up” format (in which the reseller dictates to the software developer the terms and conditions under which the reseller will sell the software to a third party – generally used only in situations in which the reseller has much more clout in the transaction than the vendor), or a “top-down” format (in which the software developer dictates to the reseller the terms and conditions under which the reseller may sell the software to a third-party – generally the more-common arrangement).

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  • Unlike distributors (which generally purchase actual inventory from the actual developer, manufacturer or wholesaler with which the distributor has either an exclusive or non-exclusive agreement, and which generally may have a closer relationship to the actual developer, manufacturer or wholesaler, to the point where the distributor may actually undertake some services – such as advertising, marketing, warehousing, and the like – on behalf of the actual developer, manufacturer or wholesaler than would a reseller), resellers generally do not necessarily purchase any actual inventory of a product from a developer, manufacturer or wholesaler, but rather act as a middleman, taking orders for the product from third-parties, and then arranging for shipment of that product to the third-party purchaser from either a distributor or from the actual developer, manufacturer or wholesaler.

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  • A reseller agreement is not an agency agreement, since the reseller is considered to be an entity independent of the actual developer, manufacturer or wholesaler, and is thus not considered to have any authority to contractually bind the actual developer, manufacturer or wholesaler to any agreement the reseller may make with any third-party.

 

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