A supply contract is a contract for the sale of goods from one party (supplier) to another party (buyer). A few daily examples are a supplier that offers the following: An exclusivity agreement may contain a variety of details, depending on the requirements of each party. However, most will follow a similar pattern. Indicate the first and last name of each party concerned, as well as the date of preparation of the contract. Make it clear that both parties have chosen to enter into the agreement on the basis of their interests and free will. Next, describe the conditions on which both parties agree. There are many examples of exclusive store types. The following applies to a supplier who refuses to supply goods or services unless you, as a buyer, agree not to do the following: It is important to carefully review supply agreements and verify that there are no agreements that actually raise “hidden” competition law issues. For example, illegal pricing in the retail sector cannot take place on the basis of a specific resale price clause, but because of the pressure exerted by suppliers on retailers to deter discounts by threatening or removing discounters from the list. Intellectual property agreements should also be carefully examined. While some restrictions are necessary to protect intellectual property rights, some restrictions may raise competition concerns. While joint representation and effective contracting maximize the common surplus of companies in this vertical structure, the retailer`s profit may be greater if the company refrains from negotiations that lead to effective contracts with both manufacturers and instead pursues an exclusive supply contract with a single manufacturer.
Q: I am a small manufacturer of high quality flat panel displays. I`d like to bring my products to a big box retailer, but the company says they have a deal to only sell flat panel displays made by my competitor. Isn`t that illegal? In exchange for an exclusivity agreement, the company should aim for the following: Whether you are defending or challenging an exclusive agreement, the following factors are likely to be important: Tortious interference in the contract – what does it need to prove? A: Exclusive distribution agreements like this are generally allowed. Although the retailer is prevented from selling competing flat panels, it may be the type of product that requires a certain level of knowledge and service to be sold. For example, if the manufacturer invests in training the retailer`s sales staff on the operation and attributes of the product, it can reasonably require the retailer to commit to selling only its brand of monitors. This level of service benefits buyers of sophisticated electronic products. As long as there are enough outlets for consumers to buy your products elsewhere, antitrust laws are unlikely to interfere with these types of exclusive agreements. Exclusive purchase agreements that require a distributor to sell the products of a single manufacturer can have a similar effect on a new manufacturer and prevent it from bringing its products to enough outlets for consumers to compare its new products with those of the leading manufacturer. Exclusive purchase agreements can violate antitrust law if they prevent new entrants from competing for sales. For example, the FTC found that a pipe fittings manufacturer was unlawfully maintaining its monopoly on locally produced pipe fittings by requiring its distributors to purchase household fittings exclusively from it and not from its competitors attempting to enter the domestic market.
The FTC concluded that this manufacturer`s policy prevented a competitor from making the sales necessary for effective competition. In another case, the Department of Justice challenged exclusive distribution agreements used by a manufacturer of artificial teeth with a market share of at least 75%. These exclusive contracts with large distributors effectively prevented small competitors from selling their teeth to dental laboratories and possibly using them by dental patients. In similar situations, newcomers may face significant additional costs and delays in getting merchants to abandon exclusive agreements with the leading company or create another way to present their product to consumers. The harm to consumers in these cases is that the monopolist`s actions prevent the market from becoming more competitive, which could lead to lower prices, better products or services, or new choices. If an investment broker or investment banker represents one of the parties, the exclusivity clause would refer to the exclusive cooperation between the banker/broker and the seller. However, if the broker no longer represents the seller and the company is sold within a certain period of time, this may violate the terms of the exclusivity agreement. For more information about exclusive licensing agreements related to intellectual property rights, see Antitrust Guidelines for Intellectual Property Licensing. Exclusive contracts can benefit competition in the market by guaranteeing sources of supply or points of sale, reducing contractual costs or retaining dealers. As noted in the supply chain transaction fact sheets, exclusivity contracts between manufacturers and suppliers or between manufacturers and distributors are generally legal as they improve competition between brands of different manufacturers (inter-brand competition). However, if the company that uses exclusive contracts is a monopolist, the focus is on whether these contracts hinder the efforts of new companies to enter the market or existing small companies to expand their presence.
The monopolist could try to impede the entry or expansion of new competitors because this competition would undermine its market position. Antitrust laws condemn certain actions of a monopolist that prevent competitors from entering the market or prevent new products from reaching consumers. The risk of deterioration of competition through exclusivity contracts increases with: (1) the duration of the contract; (2) the greatest number of points of sale or sources covered; and (3) the least number of alternative outlets or sources that are not covered. .