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Our September, 2003
newsletter is entitled "Buying A Franchise." Our newsletters
feature articles on various aspects of preparing a business plan
and over time should lead you through the entire business planning
process.
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Buying
A Franchise
Courtesy of Ralph Brown, Sequus
Inc.
What Is
Franchising?
Statistics Canada defines franchising
as "A system of distribution in which one enterprise (the
franchisor) grants to another (the franchisee) the right or privilege
to merchandise a product or service."
The International Franchise Association
defines it as "A continuing relationship in which the franchisor
provides a licensed privilege to do business, plus assistance
in organizing training, merchandising, and management in return
for consideration from the franchisee."
There are two basic types of franchise
arrangements:
- A product or trade name arrangement
in which the franchisor sells the right to use a product or
logo. Automobile dealers, gasoline service stations and soft
drink bottlers are examples of this arrangement.
- A business arrangement in which
the franchisor sells the right to operate an entire business.
Examples of this type would be restaurants and real estate companies.
The franchisee, either an individual
or company, may operate just one establishment or obtain the rights
to entire areas, which could be part of a city, a state or province
or even a whole country. By banding together under one franchise
banner, a group of franchisees have an advantage over individual
store owners or independent businesses. If one considers the size
of a large country like Canada or the United States, with all
its geographic diversity, franchising has made the process of
developing a national corporate identity much easier. Unless blessed
with large size, it is difficult for independent businesses to
compete in the national economy.
Advantages
of Franchising
The major advantage for the franchisee
is being part of a larger system. Quality of goods and services
not withstanding, it is the quality of the relationship between
the franchisor and franchisee that is all important. It is a very
unusual relationship that needs to be carefully developed and
nurtured. It must be strong, mutually beneficial, and be able
to adapt to changes in the marketplace.
Once the agreement is in place,
the following advantages accrue to the franchisee:
- Assistance in obtaining financing and credit
- Help with site selection and building construction
- Training and ongoing support
- National advertising
- Promotions and public relations
- Centrally negotiated buying contracts, which usually result
in much lower costs of inventory
- Oftentimes complete turn-key businesses and no concept development
costs
Disadvantages
of Franchising
Sometimes the relationship between the franchisor and franchisee
does not work out. The fault is often with the franchisee who
should not have become a part of the franchise system in the first
place. Those who want independence and freedom will not realize
these goals within a franchise system. If you have a need to be
a true entrepreneur, then franchising may not be for you. The
franchisor is likely to be very protective of the franchise system.
Those who try to change it will face resistance and the rivalry
between franchisor and franchisee will inevitably begin. If you
have a need for independence, don't buy a franchise - plain and
simple.
There are other disadvantages besides
the loss of freedom or independence:
- Required adherence to all the
standards set out by the franchisor
- Announced and unannounced head
office visits and inspections by the franchisor
- Possible charges levied by the
franchisor where shortcomings are identified
- Potential loss of the franchise
where disagreements with the franchisor cannot be resolved and
the franchise agreement is invoked
- Substantial joining fees and royalties,
usually on gross sales
The often untold disadvantage is
the fact there is no real elimination of business risk. Even if
you look at the most successful franchise system, there are winners
and losers within it. For every hugely successful franchisee,
there is likely to be one who is struggling. There is nothing
worse than being part of a successful franchise system when you
are a marginal operator within it. And you are unlikely to be
able to use legal means such as incorporation to protect yourself
because most franchise agreements obligate you personally.
Types of
Franchises
Some of the types of franchises
available are:
- Automotive products and services
- Beauty salons
- Business services
- Car rentals
- Children's stores
- Clothing stores
- Computer services
- Cosmetics
- Drug stores
- Educational & training systems
- Fast food chains
- Food Retail/coffee/candy
- Hardware stores
- Health aids/services
- Home restoration
- Hotels/motels
- Lawn care/landscaping services
- Maid and janitorial services
- Pet stores & supplies
- Photography
- Printing
- Real estate
- Recreation & sports
- Retail
- Travel agencies
- Vending, and
- Video stores
While the opportunities are widespread
and numerous, it should be noted that franchise systems often
fail and there are no guarantees. Remember that a mature system
offers greater support and stability. An early stage franchise
system, on the other hand, offers more excitement and the opportunity
to be more entrepreneurial. In an early stage system, there is
more of an opportunity to participate in the development and growth,
not only of your own business, but of the franchise system as
a whole. It involves more risk, however, and you must consider
your tolerance for risk.
The Franchise
Agreement
Franchise agreements are written by lawyers at great expense
to their franchisor clients. As one would expect, most franchise
agreements are drafted in favour of franchisors. They are very
demanding, overbearing and are designed to manage every important
aspect of the business relationship. From your own point of view,
examine the ramifications of the clauses in a typical franchise
agreement:
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Clause
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Considerations
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Parties
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- Is this a two party agreement
or a three-party agreement with a regional franchisee
also included?
- What tax treaties are in
effect if it is a foreign based franchisor?
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Grants of Rights
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- What is actually being granted
i.e., name, trade-marks?
- When does the grant expire?
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Terms
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- What is the length of time?
- Is the agreement renewable
at the franchisee’s option?
- Is the agreement co-terminus
with the lease?
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Protected or Exclusive Territory
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- Is the exclusivity absolute
or is there simply a right of first refusal if
the franchisor wishes to operate another outlet in the
territory?
- Does the franchisor have
the right to distribute product through another channel
in the territory?
|
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Renewal
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- Is the right to renew subject
to "substantial compliance" with the franchise
agreement in effect?
- What accompanies renewal
i.e., remodel premises with then current image?
- Is there a renewal fee in
effect? What is it?
|
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Premises
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- If the franchisor holds
the head lease, does he have the right of takeover to
cure defaults to the lease?
- If premises are not yet
developed is there a solid understanding about the development
costs?
|
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Training
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- Who is responsible for costs
of training?
- Is there an adequate training
program? Training materials?
- What is the basis of ongoing
assistance and at whose cost?
|
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Franchisee’s obligations
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- Are there restrictions on
the franchisees other business interests?
- Is there an obligation to
upgrade systems, etc. whenever the franchisor upgrades
his own?
|
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Authorized products and services
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- Is there a substantial savings
from contracted or bulk buying? Is it enough?
|
|
Initial franchise fee
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- How big is the fee? Is it
strictly a payment? For a newer franchise system, is this
justified?
- Few financial institutions
allow such fees as collateral.
|
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Royalties
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- How is it determined? If
on gross sales it must be paid even if the franchisee
has a loss.
|
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Reporting
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- What are the reporting revisions?
- Does the franchisor require
audited financial statements?
|
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Advertising fund
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- Is a contribution required
in addition to the royalty? The answer is usually "Yes".
- Do local costs have to be
paid as well? The answer is usually "Yes" if
a mall is involved.
|
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Trade-marks
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- Are there any opposition
or infringement actions which might affect the franchisee’s
use of the trade-mark?
|
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Assignment
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- Are there restrictions on
the sale or transfer of the franchise? Franchisor’s consent
to a transfer is normal.
- Is there any remaining obligation
for the outgoing franchisee even after the transfer is
affected?
- How is the franchise dealt
with on the death of the franchisee?
|
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The entire agreement clause
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- Does this exclude every
other agreement made between the parties if it is not
dealt with in the franchise agreement?
|
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Default
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- Are the curable defaults
clearly set out from the non-curable default?
|
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Restrictive covenant
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- How long and within what
area is the franchisee restricted from operating a similar
business after the agreement expires?
|
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Choice of law jurisdiction
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- Does this mean that the
franchisee must start or defend a law suit in a different
province from his or her own?
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What To
Look For When Buying a Franchise
When you buy a franchise, always look for one that is well managed
and properly capitalized. A strong track record will at least
give you some assurance that it is likely to continue this way
in the future. Reputable franchisors will be willing to meet with
a prospective franchisee and to provide information on the important
issues face to face. There may be a cost involved in carrying
the investigation to this stage, but it is a step that both parties
should insist upon. From your own point of view, consider the
following:
|
Factor
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Points to Consider
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Is it right for you?
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- Do you mind giving up a
large measure of independence?
- Are you comfortable with
risk?
- Does owning a franchise
measure up to your personal goals?
|
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Assessing the franchisor
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- What is the franchisor’s
history?
- What public profile does
the franchisor have?
- What kind of corporate culture
exists?
- Is the franchisor financially
sound?
- Who advertises and who pays
for what? You or the franchisor?
|
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Product or service
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- Have you completely researched
the product or service, i.e., acceptance, sales growth,
competition, superior quality, public profile, etc.?
- How realistic is the marketing
plan?
|
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Location
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- Have you looked at location
from all angles, i.e., good traffic area, close to target
customers, highly visible and attractive, etc.?
- What zoning changes may
be planned?
- Are you familiar with all
aspects of the lease?
|
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The franchise agreement
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- Are you comfortable with
the clauses and considerations set out in the previous
section?
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Above all, develop a comprehensive
business plan for the project before you enter into serious negotiations.
Be aware that it usually costs money to investigate a franchise
opportunity. Before they are willing to provide you with information
about their franchise system, many franchisors require a refundable
deposit and require you to visit their head office very early
in the process.
_________________________________________________________
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