Elements of Franchise Agreement
Elements of Franchise Agreement
The franchise agreement is a legal document between a franchisor and franchisee to open and operate a franchise unit. Franchise agreements are usually entered into one unit. In case the franchisee wishes to open additional units, separate agreements were executed. Franchise agreements greatly vary based on the franchisor. However, this article highlights the most common elements found in franchise agreements.
Franchisor & Franchisee Details
Before entering into the franchise agreement, the details of the franchisor and franchisee are entered. In most cases, the franchise agreement executes between two companies or legal entities. In such a case, a Director or Officer of the duly authorized by a Board Resolution signs on behalf of the franchisor and franchisee.
Franchise Fee & Consideration
Terms of the franchise fee, deposit, royalties, advertising fees, and other charges are discussed in length in a separate section. The mode of payment and due dates for payment of franchise fee and other considerations are also discussed in length. It is important to ensure that the terms of franchisee fee mentioned in the agreement are as per the understanding between the franchisor and franchisee, prior to the signing of the agreement.
The biggest benefit of a franchise is that the franchisor would help with the operation of the franchise unit based on their past experience and expertise. Hence, all franchise agreements contain detailed information about the level of support provided by the franchisor and responsibilities of the franchisee. Some of the major areas covered in a franchise agreement with respect to franchise operation are:
- Details of goods or services that can be offered by the franchisee.
- The requirement to exclusively purchase products or services from the franchisor, if any.
- The requirement to operate the franchisee unit as per the standards of operations fixed by the franchisor.
- Requirement to maintain accounts and other details as per the franchisors requirement.
- Right of the franchisor to inspect the unit at regular intervals.
- The requirement for the franchisor to abide by applicable laws and maintain the required licenses or business registrations.
Advertising and Brand Promotion
Franchisors typically spend significant resources on the promotion of the brand. Hence, the responsibility of the franchisor towards promotional spending for franchisees and the requirement of the franchisee to contribute to brand building activities is mentioned clearly in the franchise agreement.
Training, Supervision, and Support
Franchisors provide the necessary training, supervision, and support to franchisee units for a certain amount of time or on a regular basis. The responsibility of the franchisor with respect to training, supervision, and support are mentioned in detail along with the requirement for the franchisee to provide support for the franchisor for conducting such activities.
Use of Trademark & Intellectual Property
One of the most important elements in a franchise agreement is the right to use of trademarks of the franchisor. The franchisor must have registered the trademark and have exclusive rights for use of a trademark. The franchisor in the agreement must state the word or marks or symbols for which trademark has been registered or applied.
Most franchise agreements also have clauses that require the franchisee to notify the franchisor in case of trademark infringement and/or avoid damage of trademark during usage. Finally, the franchise agreement clearly mentions the ownership of the trademark with provisions prohibiting the usage of the trademark by franchisee post-termination of the franchise agreement.
Term of Agreement
The franchise agreement must clearly state the terms of the agreement, length of the agreement, provision for renewal and the effect of termination of the franchise agreement.
Transfer or Assignment of FranchiseDescription
Most franchise agreements explicitly require the franchisee to obtain the approval of the franchisor for transfer or assignment of interest in the franchise unit. In addition, there can also be clauses providing the franchisor with rights of first refusal to take ver the franchise in case the franchisor wants to transfer ownership.
Termination of Franchise Agreement
Franchise agreement contains detailed provisions for termination of the agreement in case of failure of either party in the agreement to perform as per the agreement. Further, the termination clause must also contain penalties or fines applicable for early termination and the liabilities of the parties after termination of the franchise agreement.
Governing Law and Dispute Resolution
It is a good practice to mention the governing laws and jurisdiction for the operation of the franchise agreement. In case of a franchise agreement between an Indian entity and foreign entity, the parties to the agreement can designate the law of a foreign country as the governing law and submit to the exclusive or non-exclusive jurisdiction of a foreign court, provided such foreign court has inherent jurisdiction over the dispute.
It is however best to agree on alternate dispute resolution mechanisms like arbitration, conciliation or mediation, in case of dispute to ensure speedy and cost-effective resolution of any dispute.