CHECKLIST :

MANU FACTURING AGREEMEN T

1. P a rt i es 2. P r o d u ct 3. P r ot ot y p i n g 4. I nt e lle ct u a l P r o p e rt y Who are the parties to this agreement? (individual, company or trust) Contact details What is the product being manufactured? What are the specifications? Who designed the product? If prototypes are to be produced prior to commercial manufacture When will it be produced; Who will test it; Who pays the costs of the prototype? Is there a limit on the number of revisions? Has a non-disclosure agreement been executed with the manufacturer? What intellectual property rights exist in the product? Who owns intellectual property created during prototyping (if any)? Who owns the intellectual property in the finished product? Who owns the moral rights? Is there a patent or design application in progress? What quality control matter should the manufacturer adhere to? Are there any legislative requirements that must be complied with, for example, health standards? Manufacturer to warrant that product is of merchantable quality and fit for purpose? Can the manufacturers rights/obligations be assigned?

5.

M a n u f a ctu r e r s wa r r a nt i es / Q u a l it y C o nt r o l

Created by Peter English, Surry Partners Lawyers, for the Australian Design Unit www.surrypartners.com.au Surry Partners Lawyers 2009

6.

C o nf i d e nt i a l it y

Will confidential information be disclosed? What degree of confidentiality is required (for example: if there is a design application pending, disclosure of the design may be considered as publishing which would invalidate the application) Have non-disclosure agreements been executed? What happens to the confidential information if the manufacturing agreement is terminated? What indemnities are to be provided by the parties? For example injury resulting from use of the product. What are the payment terms for the product? Is set-off and deduction available? How will orders be placed for the product? Is there any minimum quantity requirements? Will the manufacturer deliver the finished product to a specific location? Who is responsible for labeling, packaging, freight and delivery? For what period is pricing locked in? What notice periods are required if raw material costs increase? When does title/risk pass to the distributor? Does the supplier retain ownership of the goods until sold by the distributor allowing for recovery in cases of default by the distributor? Is the distributor suitably insured for loss or damage? Do the parties want an option for renewal? What criteria must be present before an option

7. I n d e m n it y

8.

P a y m e nt Te r m s

9.

Or d e r P r o c e d u r e

1 0. Ow n e r sh i p / T itle a n d R isk

1 1. O pt i o n f o r r e n ew a l
Created by Peter English, Surry Partners Lawyers, for the Australian Design Unit www.surrypartners.com.au Surry Partners Lawyers 2009

can be exercised? 1 2. Disp ut es How are disputes to be handled? Is an arbitrator to be appointed? Who is to appoint the arbitrator? What jurisdiction (country/state) are disputes to be heard in? How will the manufacturing agreement end? Can a party terminate without giving a reason? What happens if there is breach by either party? Will the parties be given an opportunity to remedy a breach? What happens to stock, work in progress, moulds, templates etc?

13.

Ter m i n at i o n

Disc la i m e r: This c he c k list c o nt a ins ge n e r a l inf o r m at i o n o n l y. It is n ot a n ex ha ustiv e c he c k list a n d is p r o p o se d as a g u id e o n l y. I t is n ot inte n d e d t o b e g iv e n as a d v ic e a n d sho u ld n ot b e r e lie d u p o n as suc h. S u r r y P a rt n e rs Lawye rs r e c o m m e n d s t hat pa rt ies t o a M a n uf a ctur in g Ag r e e m e nt o bt a in spe c if ic a d v ic e f r o m a n e x pe r ie n c e d lawye r.

Created by Peter English, Surry Partners Lawyers, for the Australian Design Unit www.surrypartners.com.au Surry Partners Lawyers 2009