Licence to distribute software in Ireland and the UK

Bishop22

Good afternoon,

I am about to start marketing online CRM software (web and mobile interfaces) however before I get started I really need a license/contract in place between myself and the owner (a Canadian company) so that if they sell the business I am still entitled to distribution rights including ongoing/routine software updates for the geographies stated, and for a fixed period of time, preferably with rolling or conversion options at the end of the initial term. Part of the agreement would state I pay them €x per month (thus ensuring there is a 'consideration'). Ideally it would be effective under Irish law.

There must be something off the shelf that I can use to get me started? Can anyone help with this please. Being a startup I can't really afford to engage legal help, however I can't afford to get it wrong either !

Many thanks.

pedroeibar1

Seems odd. Why do they not have one? It would be usual for them to insist that you as their distributor sign a contract that covers the relationship.

Bishop22

pedroeibar1 wrote: »

Seems odd. Why do they not have one? It would be usual for them to insist that you as their distributor sign a contract that covers the relationship.

It's not odd. Nothing odd about trying to ensure ones time and money investment is protected into the future. The company have written and developed the solution and approached me to expand their product into Europe. We have agreed commercials, price card and localisation, now I need to protect my investment.

dbran

They should also be wanting to ensure that their agreement with you is protected. If they are not, then I would be worried that they do not see it as an exclusive agreement with you.

Have you asked them if they have a standard agreement that they wish you to sign?

dbran

pedroeibar1

Just back to this thread. +1 on dbran’s comments above, I expected that OP would have understood what I implied.

OP, you do need professional help if you are not conversant with stuff like the following:-

What territory is covered and for what duration?

Where is the credit risk concerning purchase and sale of the goods? (For what, when and to whom do you pay? Are there retention rights?)

You write “Part of the agreement would state I pay them €x per month (thus ensuring there is a 'consideration')”. This IMO is not correct legally, there is no need for a monthly payment to guarantee consideration (not legal advice, just my opinion).They want YOU to pay THEM?? (Sounds a bit scammy to me!)

Who actually owns the intellectual property rights? i.e. do they own them and license them to you or to the end user? When and how does title pass? Does it pass? Is there a licensing agreement? What does it say?

What is the selection process for distributor appointment? (i.e. Why you? Why not some company with a complimentary product and an existing customer network?)

What is the geographic region covered?

What controls are there on the appointment of other distributors in the region?

How exclusive is ‘exclusive’?

What training support is there?

What financial support is there for marketing (tradeshows/travel/media)?

The list goes on……..

Bishop22

Hi dbran, thanks for your response. I have considered exclusivity, however under the circumstances that's not necessarily a clause I require, but I may change this position as I get the agreement fleshed out.

In general I really should have specified in my original post that I am looking for advice from someone who has already done this or helped set up a similar arrangement. I've worked with this software company for years (at a corporate to corporate level) and now there is an opportunity to do some business for myself. I am reasonably experienced setting up contacts and commercial terms when establishing new business, very experienced in software marketing, trade shows etc however in the past I enjoyed the backing of our legal counsel, access to development and marketing teams etc.

So in summary - looking for a suitable software distribution license for x term, in IRL/UK jurisdiction, and preferably from someone experienced/who has already done this. Appreciate its a Business forum so there will be a bunch of general advice which I'll filter through. Thank you.

Bishop22

Bishop22 wrote: »

Hi dbran, thanks for your response. I have considered exclusivity, however under the circumstances that's not necessarily a clause I require, but I may change this position as I get the agreement fleshed out.

In general I really should have specified in my original post that I am looking for advice from someone who has already done this or helped set up a similar arrangement. I've worked with this software company for years (at a corporate to corporate level) and now there is an opportunity to do some business for myself. I am reasonably experienced setting up contacts and commercial terms when establishing new business, very experienced in software marketing, trade shows etc however in the past I enjoyed the backing of our legal counsel, access to development and marketing teams etc.

So in summary - looking for a suitable software distribution license for x term, in IRL/UK jurisdiction, and preferably from someone experienced/who has already done this. Appreciate its a Business forum so there will be a bunch of general advice which I'll filter through. Thank you.

Ive done a lot of distribution agreements, nothing in software though.

It wouldn't be that hard to come up with the clauses you are looking for there, the problem is your talking about Irish Law, but I dont think thats going to help you if you have a problem. You really want to have your agreement under Canadian law, and then you need to be sure what you've drafted up is effective under Canadian law, and only a Canadian lawyer is going to know that for sure, whatever common sense you apply.
So my suggestion would be to go draft up the contract, write out the clauses the way you want them and then find yourself a local lawyer in their state and pay them to give it the once over and make sure its ok

pedroeibar1

Deleted User wrote: »

........ the problem is your talking about Irish Law, but I dont think thats going to help you if you have a problem. You really want to have your agreement under Canadian law,

I disagree El Rifle. Why would it be appropriate for an Irish business i.e. assets and liabilities in Ireland to base a contract on any law other than Irish Law? There is no real upside, only a downside. Canadian Law is highly complex to say the least, it is both Federal and by Province, it is based on both Civil and common law principles and has two official languages. Can you imagine the cost (not to mention the stress) of having to find lawyers and issue proceedings in Canada? A judgement obtained in Ireland is IMO enforceable in Canada.

In Ireland I would not sign any contract unless it was governed by Irish Law and I would also have a strong & binding arbitration clause. (I have signed some, but they were offshore deals with 100% US investment so subject to either Delaware or NY law.)

All this however is the least of the OP's worries, methinks he likes only advice that suits.

pedroeibar1

pedroeibar1 wrote: »

I disagree El Rifle. Why would it be appropriate for an Irish business i.e. assets and liabilities in Ireland to base a contract on any law other than Irish Law? There is no real upside, only a downside. Canadian Law is highly complex to say the least, it is both Federal and by Province, it is based on both Civil and common law principles and has two official languages. Can you imagine the cost (not to mention the stress) of having to find lawyers and issue proceedings in Canada? A judgement obtained in Ireland is IMO enforceable in Canada.

In Ireland I would not sign any contract unless it was governed by Irish Law and I would also have a strong & binding arbitration clause. (I have signed some, but they were offshore deals with 100% US investment so subject to either Delaware or NY law.)

All this however is the least of the OP's worries, methinks he likes only advice that suits.

Well he's signing the contract with a Canadian company, so for me the contract needs to be in that companies jurisdiction. I mean if they default on the contract and its in Irish jurisdiction, how can any decisions made by an Irish court be enforced in Canada?

pedroeibar1

Deleted User wrote: »

Well he's signing the contract with a Canadian company, so for me the contract needs to be in that companies jurisdiction. I mean if they default on the contract and its in Irish jurisdiction, how can any decisions made by an Irish court be enforced in Canada?

That works both ways – how can Canadian judgements be enforced from Ireland? However, were his contract based on Irish law he could, should the Canadians sign up another dozen Irish vendors, take out and enforce injunctive proceedings here if necessary .He is the customer, he should have choice of jurisdiction.

We are going down a legal debate road and while your point is valid because the Hague Judgments Convention has not been ratified by Canada, its Supreme Court has already agreed most clauses and has moved away from a rigid stance on the ‘competency criteria’ it used in the past and has become more flexible.

The real issue here in my view is that the OP has ignored the question posed by dbran and myself as to why all of this detail is not covered in the agency agreement he should have with the Canadian principal.

pedroeibar1

pedroeibar1 wrote: »

That works both ways – how can Canadian judgements be enforced from Ireland? However, were his contract based on Irish law he could, should the Canadians sign up another dozen Irish vendors, take out and enforce injunctive proceedings here if necessary .He is the customer, he should have choice of jurisdiction.

We are going down a legal debate road and while your point is valid because the Hague Judgments Convention has not been ratified by Canada, its Supreme Court has already agreed most clauses and has moved away from a rigid stance on the ‘competency criteria’ it used in the past and has become more flexible.

The real issue here in my view is that the OP has ignored the question posed by dbran and myself as to why all of this detail is not covered in the agency agreement he should have with the Canadian principal.

Fair point about shutting down other Irish operators, Im more thinking along the lines of claiming damages and so on. Perhaps covering both eventualities is the better strategy.

In terms of your question posed to the OP, who knows what kind of company the one in Canada is, they may have no international distribution yet, and the OP could be seeing an opportunity there.
If so its probably to his advantage to be able to create the terms of the agreement. I always find using your own paperwork is better if you can.
A comprehensive template that covers local law adapted to your own needs.

OP needs to explain more though about Canadian companies existing setup.

And by the way OP exclusivity should be the first thing you ask for unless its not possible.