1. How to Market your products in the US?
Zara Law Offices
111 John Street Suite 510, New York, NY 10038
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2. The US Market
Enormous in size
Demanding
Competitive

3. World Economic Forum’s Survey of Global Competitiveness 2007-2008*
1. US 2. Switzerland
3. Denmark
4. Sweden
5. Germany
6. Finland
9. UK 10. Netherlands
13. Canada
17. Israel 18. France
26. Chile
29. Spain
40. Portugal
46. Italy
53. Turkey
72. Brazil
85. Argentina *

4. The US confirms its position as the world’s most competitive economy
The United States is the world’s most competitive economy. According to the Report, the efficiency of its markets, the sophistication of its business community, and its impressive capacity for technological innovation contributed to the re-emergence of the US as the world’s most competitive economy

5. Success in the US Market is not assured
Successfully entering the US market and remaining there permanently is a difficult undertaking
Factors to be considered:
Competitiveness of your products
Ability of your company to endure the market risks
Cost, time and energy

6. Entering the US market 1. Direct Sale
Selling your products directly through your company’s export department
Incorporating your own company in the US
Establishing a Joint Venture with a US company
2. Indirect Sale
Selling your products in the US through
An agent* or
A distributor
* All parties mentioned herein including Agent, Distributor, Consignee, Guarantor may be any juridical person including an individual

7. Selling through your company’s Export Department:
Finding a Buyer, checking the credibility of the Buyer and actually selling the goods are your export department's responsibility
You negotiate with your customers directly
You sell your products to the Buyers directly
You determine any services to be provided post-sale

8. Agent or Distributor?

9. Agent or Distributor?
You need to stock products in the U.S. (choose Distributor) vs. You will have time to ship from your own country (Agent OK)
You need someone entirely dedicated just to your product (choose Agent) vs. You need your product to be shown alongside your competitors’ (choose Distributor)
You need frequent feedback on your U.S. sales/projects (choose Agent)
You need someone to call on prospective clients and do the legwork (choose Agent)
You need someone with an established reputation in the industry (choose Distributor)

10. Issues you need to decide regarding the Agent’s authority
Do you want to authorize your Agent to
Negotiate sales?
Offer prices for your products?
Accept purchase orders from customers?
Sign sales contracts?
Collect your receivables?
Carry out all necessary commercial transactions?
Divulge information to customers about your company, your business activities, your personnel, your product capacity etc.?

11. You will need an Agency Agreement which will cover:
Agent’s duties and responsibilities
Scope of your Agent’s authority
Whether your Agent will have the right to sell competitors’ products
The commercial information you do not want to be divulged to the customer during sales negotiations
Whether your approval will be necessary to any sales agreement or only to those that exceed a certain amount
Whether your Agent has authority to hire sub-agents
That you have the right to end the Agency Agreement unilaterally subject to 15 days’ prior written notice

12. You will need an Agency Agreement which will cover:
The responsibility of the Agent to give your weekly or monthly progress reports, including:
Customers’ contact numbers
Meeting details
Orders received
Advance payments received
Debts collected
Suggestions and complaints from customers
The amount or percentage of Agency fee, and method of payment
If you had previous sales to the US, you must indicate that no fee will be paid for those or that a lower amount will be paid as commission

13. Real Authority vs. Apparent Authority
Real authority (power of attorney)
Any power transferred willingly by the principal (i.e. you), by making a statement to that effect by way of the Agency Agreement and/or a written Power of Attorney to the Agent giving him the authority to act on the principal’s behalf
Apparent authority
When a third person relies on the Agent’s authority to act on your behalf where in fact the Agent does not possess such authority. However the Agent’s actions can bind the principal under certain circumstances

14. Informing the customers about the Agent’s authority
You may ask your Agent to distribute to clients a document indicating the scope of his/her authority. Or you can obtain the client's information from the Agent and it to them yourself

15. Working with an exclusive Agent
Exclusive Agent for your products
The Agency Agreement should set forth whether or not your Agent may sell other companies’ products along with yours
Your prior written approval may be required so the Agent may sell other companies’ products
Exclusive Agency in a specific geographical area
To indicate the specific geographical area of representation in the Agency Agreement
To grant Agency in 2-3 states, as opposed
To grant Agency in all states of the US

16. Factors to consider before appointing someone as your Agent:
Experience
Services that the agent can provide
Financial situation
References

17. Agent’s Experience For how long has it been providing Agency services?
Agent’s Principals, for whom has the Agent been working?
Which products is it currently marketing?
Ask for references
Was Agent ever sued before? For what?
Is there a clause in Agent’s previously signed contracts that restricts it from being the agent of another company? Is it necessary for the Agent to get permission from other companies to be your Agent?

18. Services Agent can provide
Extent of Agent’s specialty (is Agent specialized in the products you wish to sell in the USA?)
Agent’s geographical reach (extent of geographical area within which Agent can work for you)

19. The Agent’s financial situation
Credit score
How is Agent’s credit report?
Who are the Agent’s references?
(You should definitely call and check)
Social security number
Resume/ CV
Agent’s reputation in the market

20. Suggestions
Trial period: Indicate in the Agency Agreement that if a certain amount of sales is not realized within a certain time (e.g. 3 months), it may be terminated unilaterally
Indicate in the Agency Agreement, the transactions that require your prior written consent
Do not appoint the Agent as an Exclusive Agent for the entire US. Initially restrict its authority to a couple of states
Only divulge the confidential information that is absolutely necessary for the Agent to operate; indicate clearly in the Agency Agreement any type of information that may not be given to third parties without your prior written consent
Unless absolutely necessary, do not authorize the Agent to collect any payments on your behalf

21. Distributor
Buys products from your company and is accountable for paying the purchase price
Generally provides post-sales service for the products
Generally sells other companies’ products too

22. When should you work with a Distributor?
In case it is necessary to keep a very large amount of products in the US and you do not want to deal with operating a warehouse nor with distribution issues yourself
In case it is necessary for the merchandise to be distributed quickly and it takes a long time to transport them from your country to the US
If you do not plan to have your own company in the US
If it is not important for you to be known and recognized in the U.S. as a producing or importing company
If your priority is to make a quick profit
If you do not want to spend money on financing production without knowing whether or not your products will be sold in the US

23. Things to consider when choosing a distributor
To whom is Distributor presently selling? Distributor’s experience
Sales record and size of sales force
Competing products Distributor is carrying and pricing thereof
Location of Distributor’s premises
Distributor’s present contractual commitments
You also need to consider:
Services that the Distributor can provide
Financial situation – same considerations as the Agent (see page 18 above)
References

24. Distributor’s Experience
For how long has Distributor been providing Distributorship services?
Distributor’s Clients, for whom has the Distributor been working?
Which products is Distributor currently servicing?
Ask for references
Was Distributor ever sued before? For what?
Is there a clause in Distributor’s previously signed contracts that restricts him/her from being the Distributor of another company? Is it necessary for it to get permission from other companies to be your Distributor?

25. The Distributor’s services
If you are planning to provide post-sales service, consider whether your Distributor will be able to do so
Do not appoint an Exclusive Distributor for the entire US; until you are certain of the Distributor’s suitability, restrict the distributorship to a couple of states only

26. Protect your inventory from Distributor’s creditors-UCC filings
Whenever entrusting product to a distributor - or for that matter to anybody else in the US - without prior payment it is essential that you obtain and perfect a security interest by entering into a Security Agreement and filing the requisite UCC financing statements

27. Clauses that should be included in the Distributorship Agreement - 1
Minimum amount of sales that should be realized by the Distributor
Terms of payment
If it is an Exclusive Distributorship, set forth the conditions Distributor should meet to maintain status
Duration of the Agreement
Whether the Distributor has the right to sell your products under its own name
Whether it has the right to register your trademarks and patents in the US

28. Clauses that should be included in the Distributorship Agreement - 2
Distributor’s authorized sales price range for your products
Minimum marketing support
Warranties you allow your Distributor to offer buyers for your products, on your behalf
That you have the right to unilaterally end the Distributorship Agreement in case of a delayed payment following a shipment
The obligation to inform you about the market reaction to your products, and any other matters pertaining to your products
The obligation to support and assist you free of charge in case of litigation

29. Manufacturer's liability under US law
According to US Product Liability Laws, manufacturing companies and distributors that market a product commercially in the US are both liable for damage that a consumer may incur regardless of whether they have provided a warranty
Suggestion:
Buy product liability insurance

30. Distributor’s Indemnity to you
If the Distributor provides a service for the assembly or technical maintenance of the products, and if later a damage arises from such services, the consumer may decide to sue you as the Manufacturer
Therefore you must indicate in the Distributorship Agreement that the Distributor agrees to indemnify you – including reasonable legal fees - for any liability you incur to a buyer by reason of Distributor’s defective assembly and/or maintenance of your products

31. Conclusion
Ascertain whether there could be a market for your products in the US
Think and rethink about distribution channels
Test the market
Make sure you know who you are doing business with
Document your agreements in writing