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Franchisee Advice

What Constitutes a Fair and Balanced Franchise Agreement?

Unless you have a legal background, you will be shocked when your prospective franchisor hands you a copy of the franchise agreement.

Mark Rose

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It will typically consist of 70 or more pages packed with legal clauses and you might be tempted to just sign it. Our advice: “Don’t!” Unless you read the franchise agreement properly, understand every clause it contains and are willing to abide by it, your venture into the world of franchising could turn into an unmitigated disaster. In this article, we’ll explain why complexity is unavoidable when it comes to franchise agreements, and how to deal with it.

  • Introduction

The franchise agreement governs the relationship between franchisor and franchisee. Its complexity stems from the fact that unlike most other agreements, it deals with the consequences of a long-term business relationship entered into for mutual benefit. It is also worth noting that no matter what has been said “off the record”, unless it’s written into the franchise agreement, it is meaningless.

The good news is that while before the introduction of the Consumer Protection Act (CPA), franchise agreements could contain almost any provisions the parties agreed to, this has now changed. The CPA sets out in detail what information a franchise agreement must contain and states it must be drafted in plain language. Best of all, franchisees are granted the right to cancel the agreement without cost or penalty within 10 business days after signing it; all it takes is a written notification to the franchisor, no reasons need to be given.

This “cooling-off period” is granted in addition to the provision that the franchisor must provide qualified prospects with a disclosure document at least 14 days before the franchise agreement can be signed. This means that prospective franchisees have in effect 4 weeks within which to make up their minds. This makes them the best protected prospects in the world.

  • Prescribed content

The content of the franchise agreement is governed by the Regulations to the CPA. These Regulations list a host of issues that need to be covered, including details of:

  • The franchisor’s full corporate registration and contact information as well as that of its office bearers.
  • The business system and related intellectual property and how the franchisee is expected to apply both.
  • Territorial rights and/or restrictions as well as the franchisor’s involvement in site selection.
  • The range of products or services the franchisee is permitted to trade in.
  • Financial obligations throughout the lifetime of the franchise agreement. In addition to amounts payable it includes payment terms and funding options. The agreement must also state how any deposits paid by the prospective franchisee will be administered.
  • Duration of the initial agreement, option to renew and the consequences of termination of the franchise agreement. These will include post-agreement provisions, for example restrictions on the former franchisee’s right to trade in the same sector.
  • The nature and extent of the initial and ongoing assistance the franchisor will provide.
  • Restrictions to the franchisee’s right to delegate management of the business to a third party, transfer it to his/her heirs or sell it.
  • The general rights and obligations of the franchisor.
  • The general rights and obligations of the franchisee.
  • Recommended process

The above is merely an overview intended to provide a sense of the consequences of signing a franchise agreement. It is not comprehensive and does not purport to constitute legal advice. Investing in a franchise is a serious undertaking. Should you consider this step, we strongly advise you to consult with an attorney versed in franchise matters before you sign a franchise agreement or make any payments.

  • Conclusion

To ensure consistency throughout a network, franchisors will usually have a standard franchise agreement. And although it should be balanced and fair, it is inevitable that the balance of power will be shifted in favour of the franchisor. After all, the franchisor is responsible for protecting the brand and the interests of all other franchisees in the network.

If you can’t live with a clause the agreement contains, insist on it to be removed. The franchisor will probably refuse. At that point, it will be better for you to walk away while you still can, rather than to sign an agreement you consider too onerous to abide by.

One more thing: As soon as you have signed the franchise agreement, file it away in a safe place and get on with the business of real business.

In the next article in this series, we will examine the role of the operations manual in a franchise. Should you wish to find out more about franchising and especially franchise finance in the meantime, contact the Business Manager at the Nedbank Area Office nearest to you. For contact details visit www.nedbank.co.za or your nearest Nedbank branch.

Written by Mark Rose of Nedbank and Eric Parker of Franchising Plus.
Copyright rests with the authors.

Mark Rose is the Head of New Business Development at Nedbank Business Banking. He holds a Masters in Business Administration (MBA) from the Oxford Brooks University, as well as various business qualifications from the Gordon Institute of Business Science (GIBS), the University of Stellenbosch Graduate School of Business, and the University of South Africa Graduate School of Business. Nedbank’s New Business Development unit develops customised industry specialised offerings to the medium sized business market, including Franchising, Agriculture, Professional – including Financial and Legal Practices, and the Medical Fraternity. This unit has also developed a unique Enterprise Development proposition. For specialist advice and more information on the Nedbank Franchising proposition visit the website or send an email to franchising@nedbank.co.za

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Franchisee Advice

Types Of Funding Available For Franchisees

If you’re interested in investing in a franchise, there are a number of funding routes available to you.

Darlene Menzies

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In South Africa, a franchise is considered a separate, specialised field of business and from a financing perspective is viewed differently to an existing business. It’s typically easier to get funding for a franchise as franchises have a proven product and they vet potential franchisees and offer support to new business owners. This support can include extensive training on running the franchise, branding and marketing, operational policies and procedures and a highly-tuned supplier network.

The reputation of the franchise will, to a large extent, dictate which finance options you choose and how easy it will be to raise the required funds.

It’s important to understand the cost of purchasing the business and the expected operating costs to work out how much finance you’ll need until the business starts to generate profits. Be clear about the upfront costs, including access to the brand, the market structure, start-up support and the set-up fee, which usually includes construction, equipment, stock and other necessary resources.

Related: 6 Great Tips For A Successful Shark Tank Pitch

Consider the operating costs, which must include management service fees and franchise marketing and advertising levies. The franchisor will advise you on the time it should take for the franchise to start generating profits. Upfront costs plus operating costs are the total amount of finance required to purchase, set up and run the franchise.

What’s available for prospective franchisees?

Franchisor Funding

Many of the large franchisors have their own funding mechanisms. These can range from their own established finance arm to funding assistance through partnerships with external lenders. Franchisors seldom fund 100% of the purchase costs; the amount of funding varies according to the size and reputation of the franchise and usually ranges from 25% to 75% of the costs.

Once a franchisor approves you as a franchisee, your chances of being approved for funding are significantly stronger. Some franchisors go a step further and suggest a business partnership with another potential franchisee who has good financial resources but less experience. Pairing experience with finance can be a useful option, but needs to be explored properly as it is a long-term partnership that must work for both parties.

Tandem Funding and Specialised Franchise Funders

South Africa’s B-BBEE legislation has led to a new option for franchise funding. It’s a particularly innovative way of quickly upskilling inexperienced potential franchisees. The franchisor funds the new franchise and retains ownership of the majority of shares in the business.

The franchisee initially purchases a small number of shares and is then mentored by the franchisor to set up and run the franchise. Profits are used to buy more shares until the franchisee has purchased all the franchise’s shares.

Specialist franchise funders are also a useful option. They typically consider a wider variety of franchises than banks and have in-depth knowledge of the industry. However, like other funders, their primary concern is to be sure that the loan will be repaid within the required period.

Related: Expansion Funding Options For Your Growing Business

Franchise Funding from Banks

franchise-funding-from-banksAll of the large banks have specialised franchise funding departments. Their approval rate for funding franchises is generally higher than for independent businesses.

Banks will expect you to provide a sizable contribution toward the purchase of the franchise and funding is dependent on proof that the business will be able to repay the loan.

Other factors they consider are the location of the business and its proximity to competitors and catchment markets, your level of business experience, your credit record and the amount and type of support offered by the franchisor. The higher the level of support, the less the risk to the funder of the business under-performing.

If the franchisor is willing to enter into a joint venture with you to partially fund the purchase, the bank will consider this positively as it means the franchisor has a vested interest in helping you to succeed.

Government Franchise Funding

All of the government funding agencies offer franchise funding primarily to encourage black entrepreneurs to enter into the franchise business. For example, the National Empowerment Fund considers funding based on a minimum of 50,1% black shareholding, provided that the black shareholders are actively involved in managing the business.

They prefer to fund well-established franchises, fund up to R10 million and expect to exit within seven years, so you’ll need detailed projections to show that the loan can be repaid within that period. Ithala Bank considers funding for KZN-based approved franchisees who do not have collateral.

Related: Should You Purchase An Existing Franchise?

What funders expect from you

Lenders expect you to provide detailed information that will enable them to assess the risks of lending to the franchise. This means they require a detailed business plan, comprehensive and well- substantiated financial projections and full details of the franchise, its agreement terms and the levels of support they will provide. They will also need details of start-up costs; for example, construction, set-up costs, equipment and other resources required to establish the franchise.

Franchise lenders expect you to have concluded discussions with the franchisor and want to know that you have been approved. This pre-approval means that there is less risk to them. You’ll also be expected to provide feasibility studies from the franchisor.

The purchase of a franchise requires an injection of your own cash and if you are borrowing money, you’ll probably need to provide collateral. You’ll need a statement of personal assets and liabilities for each of the directors, a good credit record and detailed CVs of the owners to show the required business experience.

Choose wisely

The more well-known the franchise, the higher the price, so do your homework before applying for finance. Understand the full cost of starting and running the business to make sure you aren’t in for future surprises. In particular, work out your current liquidity status.

Keep a small contingency fund available for unexpected expenses, so don’t invest all available capital in the venture.

Shop around. Compare finance institutions’ offerings to make sure you get the best deal. In the case of less expensive franchises, consider working with a couple of lenders; for example, an asset funder to fund equipment needs and a franchise funder for the start-up and working capital costs.

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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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