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Franchisee Advice

The Perils Of The Franchise Agreement

Here are three critical components to identifying and mitigating the legal risks.

Monisha Prem

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Many entrepreneurs choose a franchise as an alternative to starting their own business due to the attraction of foregoing ‘school-fees’. The franchise business model promises established product or service, brand-name recognition, pre-sold customer base, ongoing support and training, increasing your chances of business success.

However, the allure of tried-and-tested business models and the promise of financial success are often inadequately executed in legal agreements, leaving the franchisee with little or no recourse in the event of failure of delivery by the franchisor.

Here’s what you should know before signing on the dotted line.

Three must-dos

1. Do your due diligence

Before entering into any agreement with a franchisor, conduct a due diligence to better position yourself to make an informed decision about the franchise opportunity. Focus on the franchisor’s system size and growth, ongoing support, training, and competitive edge.

Furthermore, analyse the franchisor’s financial information to ascertain break-even. In this regard, it’s critical to closely examine the disclosure document, which the franchisor is obliged to provide, containing, for example, written projections in respect of levels of potential sales, income, gross or net profits or other financial projections for the franchised business.

Related: Passing a Due Dilligence Test

2. Know the law

There are many pieces of legislation that impact franchising.

  • The Consumer Protection Act 68 of 2008 (CPA): The CPA and its regulations entitle consumers, including franchisees, to certain rights such as the right to obtain a disclosure document from the franchisor 14 days prior to signing the franchise agreement, and the right to cancel the agreement with no penalty within ten business days of signing it (cooling-off period).
  • Laws governing intellectual property: The Trademarks Act 94 of 1993 is of particular importance as the licensing of intellectual property to the franchisee is the core of the franchise agreement. The franchisee operates under a common trademark, format or procedure, and the franchisor offers or is obliged to maintain a continuing interest in relation to know-how and training. Therefore, trademarks, copyright and know-how are the three most important areas of intellectual property in most franchise systems.
  • The Competition Act 89 of 1989: This act states that there must be a balance between the protection of the franchise system and the interest of the franchisees and the public in ensuring adequate competition. When reviewing the franchise agreement, franchisees must look out for clauses relating to resale price maintenance, territorial restrictions, exclusivity, tying and intellectual property.

3. Obtain legal advice

Franchise agreements often contain comprehensive legal provisions that may intimidate franchisees. It’s good practice in business to have all important contracts reviewed by an attorney in order to have a clear understanding of all the terms and associated risks.

Franchise-failure-in-agreeements

Three don’ts

1. Don’t act too hastily

Do not read the contract hurriedly and be tempted to sign without close consideration. It’s important to read and understand the franchise agreement thoroughly. Failure to do so presents risks of future conflict or breakdown in relationships — questions or concerns for clarification are to be raised in writing with the franchisor.

Related: The Danger Of Being Franchisee No. 1

2. Don’t assume the franchisor will not amend the agreement

Occasionally franchisors utilise bully tactics, presenting the franchise agreement ‘as is’. The franchisee certainly has the option to negotiate less biased and mutually favourable terms. It’s however noteworthy to consider the intention of the franchisor who presents an unalterable franchise agreement.

The franchisor may use a uniform franchise agreement to protect the entire franchise system, including the brand, operating system and franchised business as a whole.

If a franchisor is not willing to negotiate on important issues, it could be an indication of potential problems within that franchise system as the franchisor lacks confidence and certainty concerning the validity of its brand and operating system.

3. Don’t sign if uncertainties persist

Bias provisions, unresolved risks identified or general reservations may result in discomfort when executing the franchise agreement. Persevere in negotiations or consider an alternate franchisor if discussion results in deadlock. Do not enter into an agreement with uncertainties still looming or terms that are difficult to abide by.

Monisha is a corporate advisor, admitted attorney at M. Prem Inc, and author with over 14 years deal-making experience. Monisha litigated for several years before joining an investment banking firm specialising in mergers and acquisitions. Monisha has owned and operated several businesses, is passionate about business development, commercial and corporate law.

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Franchisee Advice

Factors To Consider Before Signing Up As A Franchisee

Franchising is a brilliant way to get into business with not many entrepreneurial skills as it comes with a roadmap to follow for success.

Diana Albertyn

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You’ve been considering entrepreneurship for a while, and now that you’ve finally raised some money and been approved for a loan, you’re ready to quit your 9-5 job to run your own business. You may even already have your eye on a particular franchise, but while franchising is considered an easier and more low risk way to get into business, are you suited to being a franchisee?

“The question is not ‘is franchising right for you’, but rather, are you right for franchising? Because if you don’t have the right attitude and skill set, it can be a very expensive mistake,” says small business expert and author Steve Strauss.

Franchising may seem like an easy way into entrepreneurship, but along with an established name and proven systems, come rules, regulations and little room for creativity. If you’re not ready to become a franchisee, but want to go into business for yourself, you may find yourself struggling to operate within the system’s blueprint.

Ask yourself these three questions before proceeding with the process of franchising:

1. Will you be able to follow the directions of the franchisor?

You’re buying into an existing and proven concept so it’s safe to assume that the franchisor knows best, and so you have to be open to learning and following guidelines for business success. If, for example, you have experience in advertising and think you have an improved technique of marketing the franchise, you may want to change the advertising material provided by the franchisor – don’t.

Related: 3 Ways You Can Innovate And Improve As A Franchisee

“Being a franchisee means following the directions of the franchisor, even when you think you know a better way,” advise experts from strategic and tactical advisory firm MSA Worldwide.

“In addition to initial training, you need to be prepared to accept coaching and advice from the franchisor on how you operate or market your location.”

2. Do you have the need to experiment?

Lou Groen may have had success in launching a new menu item that McDonald’s approved of in 1962, but not all franchisees are that lucky. Stick to the plan and limit deviations to the menu or anything that involves the customer experience.

If the franchisor’s concept doesn’t involve deliveries, offering them to your customers may cause issues for others within the franchise system. “If it’s not part of the franchisor’s concept, you’re deviating from the concept and therefore, no longer running your store as a franchise,” according to MSA. Franchising arguably limits innovation opportunities, so if you’re prone to implementing creative ideas and evolving business offerings based on said ideas, rather start your own independent business.

Related: 3 Pricing Tactics To Recession-Proof Your Franchise

3. Are you a team player?

These first two questions you address should already lead to the realisation that everything you do affects everyone in the franchise chain. One bad experience at your establishment and suddenly, all the stores are affected by bad press or unsavoury social media attention.

“Other franchisees are relying upon you to offer to the consumer a consistent level of service, product quality, and brand message. You are going to have to work with others in the system in making decisions,” advise experts.

Remember that as part of a chain of other business owners, you may have to accept that majority rules when it comes to decisions where franchises do have a say.

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Franchisee Advice

3 Ways You Can Innovate And Improve As A Franchisee

Although your role as a franchisee isn’t really to innovate, there’s room for creativity if you go about it the right way.

Diana Albertyn

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When you signed on the dotted line after reading and agreeing with the franchise agreement, you knew that you were buying into a proven system where everything has already been thought out for you, and all you have to do is follow the formula for success.

But you’re a franchisee longing to put your own imprint on your business, and it may be frustrating to feel boxed in by a formula, while you’re bursting with new ideas.

“Franchising, by its nature, discourages innovation on the part of franchisees, who are required by their franchisors to follow very specific policies and procedures on exactly what they will sell, how they will make or deliver it,” notes Randy Myers, contributing editor for CFO and Corporate Board Member magazines.

Related: Types Of Funding Available For Franchisees

This doesn’t mean your ideas will never see the light of day though. But before you approach your franchisor with your brilliant insight, consider the following steps that may well lead you down an innovative path:

1. Get the basics right first

Franchisors know that customers like consistency as it makes them comfortable and trust every location of their franchise they choose to visit. But, even the strictest franchisors get hungry for new ideas. It’s the timing that’s vital for your idea to even be considered.

“Most good systems don’t want new franchisees to even think about innovations until they learn the existing system inside out and prove that they can execute it like a star,” said Jeff Elgin, CEO of FranChoice, a network of franchise referral consultants. “At that point, they have become successful, their base is secure, and they have earned the right to consider innovations.”

It’s wise to ensure you’ve learned your franchisor’s existing business model before you suggest any improvements.

2. Do your homework

So, you’re doing well and you’re sure your idea will be welcomed as a crucial innovation to the franchise system – but research your proposal, suggests Kim Stevens, VP of Regional Development and Director of Franchise Awarding at Woodhouse Day Spas. “Especially if you’re suggesting something that would impact all franchisees, create a business plan before approaching your franchisor,’ she says.

Related: To Buy Into A Franchise Or Purchase A Licence? 3 Factors To Consider

It’s also good to have another look at the franchisor’s policy for accepting new ideas to ensure you’re prepared for tough questions before you propose your idea.

3. Speak to the right people

Elgin recommends you first identify the person at the franchisor’s head office who’s responsible for receiving new ideas. “Many of the ideas a franchisee comes up with will already have been proposed by another franchisee,” notes Elgin.

To avoid wasting your time, no matter how great you think the idea is, present it as early as possible before spending anything developing the idea.

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Franchisee Advice

3 Pricing Tactics To Recession-Proof Your Franchise

As consumers tighten their belts, how can you ensure your franchise is their first choice in the midst of strict budgeting and curbing of spending?

Diana Albertyn

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Whether or not there is a dip in the economy, you have stock on shelf you need to sell. But, if consumers are cash-strapped, you have to make every effort to ensure that your franchisees aren’t running at a loss.

“There’s no doubt that shoppers are more discerning about what they need and how they shop. However, quality remains significant and brands that continue to delight their customers will reap the benefit of being chosen,” says Ailsa Wingfield, executive director marketing and communications: Africa, at Nielsen.

Why not give customers the best of both – value for money at a competitive price – by applying one or more of the following pricing tactics in tough economic times:

1. Consider a greater focus on your house brand

“The days of in-house retail brands being treated with a fair amount of disdain by South African consumers have come to an end,” says Wingfield.

Related: What Makes Franchises Recession Proof?

The global performance management company’s research has found that R38.4 billion of the amount consumers spend at hypermarket and supermarket tills – or R10 out of every R50 – is spent on private label products. South African consumers are beginning to feel that the quality of these house brand products is as good as that of established name brands.

Since research indicates consumers are further likely to shift between branded products and retailer private label offerings, it would be of benefit to your franchise if your in-house products are perceived as viable value alternatives of similar or better quality.

2. Sell products in bundles

This the method combining various products and selling them together as one bundle for a lot less than if they were being sold separately. This method is great for moving items that might be selling slower but also great for achieving a higher value perception in the minds of consumers.

CEO of GuruShots, Gilon Miller, says there are several bundling techniques you could apply, including:

  • Pure bundling, where you offer a group of products that are only available as a bundle and aren’t sold separately.
  • Mixed bundling, where you offer products that are sold both as bundles and as individual units.
  • New- or lesser-product bundle, where you bundle a successful product with a newer or less successful product – the stronger product will help the other product find its way into a new market.

Bundling results in cost efficiency, more competitive pricing and might also encourage customers to regard a single store as a source for several solutions.

Related: How To Recession-Proof Your Business

3. Add even more value

When you price your product in alignment with the value your customer sees in it, you’re preventing both you and your customer from the possibility of losing out on value.

Calculating your optimum price, involves asking yourself these questions:

  • Will your customers save money or time by using your product or service?
  • Is your product or service is unique?
  • Will your product or service help customers gain a competitive advantage?
  • What does the competition charges?

“Value-based pricing ensures that your customers feel happy paying your price for the value they’re getting,” says Patrick Campbell, co-founder and CEO of Price Intelligently. “Pricing according to the value your customer sees in your product prevents you from short-changing yourself while creating an experience for customers that’s most aligned.”

The more value your customers see in your product, the more they will be willing to pay for it, ultimately improving your bottom line. When your pricing is reasonable, they won’t need much convincing to make the purchase at your franchise instead of your competitor’s.

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