Distributor, commercial agent or reseller: choosing the right sales model in Poland

Start with the end-customer contract

The first question is whether the supplier or the local partner will be the party to the end-customer agreement.

Where the supplier contracts with and invoices the customer, bears the credit risk and determines the sales terms, while the local partner primarily identifies opportunities and assists negotiations, the model may be commercial agency or another form of intermediation. The parties must also decide whether the partner only introduces prospects or has authority to make binding statements on the supplier’s behalf.

Where the partner purchases the product or licence and resells it to the customer in its own name, it will generally operate as a distributor or reseller on its own account. The partner establishes the customer relationship, issues the invoice and normally carries the credit risk. The supplier earns revenue from its sale to the partner rather than paying commission on the customer transaction.

A hybrid can work, but it requires clear routing rules. A partner may resell standard subscriptions while acting only as an intermediary for strategic customers contracting directly with the producer. The agreement should define when each route applies and prevent disputes over customer ownership and remuneration.

How does a distributor differ from a commercial agent?

Commercial agency is a named contract under the Polish Civil Code. In the course of its business, the agent undertakes to act on a continuing basis as an intermediary in concluding contracts for the principal or to conclude them in the principal’s name. The principal pays remuneration, usually commission.

A distributor normally acts as an independent buyer and seller. It purchases goods or rights to offer a product and resells them to customers. A distribution agreement is generally an innominate contract under Polish law. Its content relies on freedom of contract and may combine sale, supply, licensing and service elements according to the product.

The difference affects the commercial risk profile. If the parties intend a genuine agency model also for EU competition-law purposes, the agent should not carry risks typical of an independent distributor. The European Commission looks, among other matters, at stock financing, transaction-specific investments, customer liability and market-specific investments.

Is a reseller a third statutory model?

No. “Reseller” is a commercial label often used for partners reselling software, subscriptions, cloud services or hardware. It does not explain whether the partner buys and resells on its own account or only brings about a contract between the producer and the customer.

In a software model, the agreement must also identify what is being transferred. The partner may receive a licence with a sublicensing right, purchase a pool of seats, act as merchant of record or only deliver leads. These structures allocate VAT, payments, end-user liability, support and data protection differently.

A document titled “Reseller Agreement” should therefore describe the contract and payment flows from the outset rather than assume that the label has one settled meaning.

How should commission or margin be structured?

An agency agreement should define the transactions that generate commission, when the right arises, what happens if the customer does not perform and how the agent can verify statements. Direct sales in the territory, customers previously introduced and transactions completed after termination also matter. These points require a separate assessment of the particular agency agreement.

In distribution, partner remuneration normally derives from a wholesale price or discount. The agreement should cover the price list, currency, taxes, payment terms, price changes, minimum orders and the effect of producer promotions on the partner’s economics. A supplier’s unilateral right to change prices without a transition period can leave the distributor with customer commitments that no longer preserve the expected margin.

For SaaS, the parties should also address renewals, user increases, additional services, migration and refunds. A headline “partner discount” does not govern the complete customer lifecycle.

How should exclusivity, territory and targets be designed?

Exclusivity should identify the product, territory or customer group, duration, performance conditions and carve-outs. The supplier may reserve strategic accounts, sales through its own website or specified channels. The partner should know whether other distributors can operate in its territory and how cross-border demand is handled.

Territorial restrictions are subject to competition law. Regulation (EU) 2022/720 provides a safe harbour for certain vertical agreements where the supplier’s and buyer’s market shares generally do not exceed 30% and the contract contains no hardcore restriction. This is not permission for every prohibition. Broad restrictions on passive sales to customers approaching the partner on their own initiative, or measures preventing effective internet use, can create material risk.

May the supplier determine the resale price?

Where the supplier contracts with the customer, it may set the price of its own sale and the agent operates within the authorised process. The position changes when an independent distributor purchases and resells the product.

Imposing a fixed or minimum resale price on the distributor is generally a hardcore competition restriction. The risk can arise not only from a written price clause but also from punishing discounts, withdrawing rebates, threatening to stop supply or using monitoring combined with pressure.

A supplier may generally recommend a resale price or set a maximum price, provided that it does not become fixed or minimum in practice. Promotions, marketplaces, bundling and discount systems require a review of the complete arrangement, not only one clause.

Who is responsible to the customer and for product compliance?

In agency, the customer contracts with the supplier, so the supplier is normally responsible for performance of the sale. The agent may still be liable for acting outside its authority, making inaccurate statements, offering unauthorised commitments or committing its own infringements.

In distribution, the customer purchases from the partner. The agreement should allocate product compliance, documentation, complaints, warranties, support, servicing and returns. The partner should not promise features or service levels that the producer does not support, while the producer should identify the approved marketing claims and materials.

Digital products also require licensing, updates, security, customer data, trade mark use and access termination provisions. In a cross-border arrangement, governing law, courts, language and enforceability should be aligned, as explained in the guide to international contracts with Polish businesses.

What happens when the relationship ends?

Agency requires attention to statutory notice periods, commission on pipeline transactions and a possible goodwill indemnity. Under the Polish rules, this may arise where the agent brought new customers or substantially increased business, the principal continues to derive substantial benefits and payment is equitable. The claim must be notified within one year after termination and is subject to a statutory cap.

The absence of an identical statutory distribution indemnity does not make exit planning optional. The contract should address the notice period, sell-off or repurchase of stock, pending orders and warranties, removal of branding, return of data, settlement of rebates and customer communications.

The more the partner invests in the market, personnel or warehouse, the more important the transition period and immediate-termination triggers become. Poor drafting often produces disputes over stock, customers and continued sales after termination.