Category Archives: Franchise Info

Understanding Alternative Dispute Resolution: Weighing your options

By Peter Snell

There is a wide range of opinions regarding the value and appropriateness of each form of alternative dispute resolution. And while many franchise agreements contain these methods, many others feature no such provisions at all.

Indeed, there is no single right or wrong answer as to which dispute resolution methods should go into the franchise agreement. It is very important, in any case, for the parties to consider various alternatives before deciding which method will work best to solve problems that may arise in the future.

Read the full article: Understanding Alternative Dispute Resolution

Q & A with Frank Zaid: Proceeding with caution on rescission notices

By Frank Zaid

The right of rescission is a very powerful remedy, perhaps the most powerful in franchise legislation around the world. As it is a remedy created by statute, however, the statutory rules must be followed closely.

Also, if a notice of rescission is given and then the franchisor disputes the right of the franchisee to rescind, the franchisee will be required to pursue its remedy in a regular court action. This will result in the franchisee having to incur legal fees, which cannot be recovered unless the franchisee is successful.

A court proceeding may drag on over several years until conclusively determined. And if the franchisee is ultimately not successful, the court will likely order that legal fees incurred by the franchisor be paid by the franchisee.

While rescission is a very valuable tool to a franchisee who either did not receive a disclosure document or received a defective disclosure document, the statutory right is complicated and not always a certainty. It should be exercised with caution and with the view of arriving at a settlement, if possible, rather than having to engage in a potentially long, divisive and costly court battle.

Read the full article: Q&A with Frank Zaid

Defining Franchising: The advantages of franchising

By David Gray and Lauren Kenley

Franchising has a number of advantages over other forms of business, not the least of which is how it allows wider expansion of an enterprise while using far fewer resources than would be the case otherwise. It supports expansion into smaller communities, for example, by combining broadly recognized branding with the knowledge of local businesspeople, who already have close connections to their communities.

As the franchisor’s trademarks gain broader recognition, this success usually translates into both higher franchise fees and a greater ability to generate additional franchise sales.

For the franchisee, meanwhile, the opportunity to buy into an existing, well-established concept significantly reduces the risk of business failure. Statistics show small businesses opened by independent entrepreneurs stand a 70 to 80 per cent chance of not surviving the first few years. This is in direct contrast to the franchise sector, where statistics instead point to an 80 per cent chance of success.

The franchise model provides benefits by permitting an entrepreneur to work with a proven, successful business model and to gain increased marketing leverage through brand recognition. Customers’ familiarity with a well-recognized trademark usually allows franchisees to start their enterprises quickly, without the growing pains associated with a start-up.

Franchisees receive ongoing assistance and support from their franchisors, who can hire specialists in areas like research and development (R&D), cost control, sales and marketing. And lower prices for inventory and supplies are realized in many cases, due to aggregated system purchasing power.

Also, franchisees are often well-positioned to pool their resources together with the franchisor for advertising and promotional purposes, effectively using individual contributions to reach a greater number of potential customers for each particular location.

Franchisees also have access to credit that they may not find otherwise. Chartered banks and similar lending institutions are usually more willing to lend money to an entrepreneur who has the backing of a successful franchisor than they are to the completely independent businessperson.

The franchise concept has long become a vehicle for many ambitious individuals to venture into the business world as entrepreneurs, but with the expertise and groundwork for their enterprise already developed for them. Most franchise operations come with fully developed products, services, marketing, training and brand value.

The concept of franchising has stood the test of time. With committed ownership, it will remain a valuable contributor to the economic fabric of modern commerce.

Read the full article: Defining Franchising

Ask the Experts: What are some reasons to contact a franchise consultant?

By Jeff Young

Almost every prospect is taking his/her first step into franchising and, thus, is entering uncharted waters. Since the service of a franchise consultant is free, it only makes sense to find one to help you navigate the process. Many consultants have worked for or owned a franchise business, so they bring real-world experience.

Often, potential franchisees do not think to engage the services of a consultant, but instead focus on a particular product or service, rather than on franchise business models and their characteristics. Your neighbourhood might be well-served by a new sandwich shop, for example, but that matters little if the required investment is beyond your reach or you would not be comfortable working the long hours demanded by a food-service franchise.

Franchise consultants are being used more frequently today because they can help navigate the search process. They can also help educate you about the legal nuances of franchising and recommend a franchise lawyer as needed.

Read the full article: Ask the Experts: How to Use Franchise Consultants

Insuring Your Franchise: Coverage extensions

By Lucy Sousa

In addition to general insurance, your broker can provided more detailed information about many other extensions, including those provided in package policies and those that can be added depending on specific exposures in your operations. Examples may include equipment breakdown coverage, transit coverage and exhibition floater insurance, to name a few.

Another key aspect of protecting your business is coverage through life insurance, disability coverage and other benefits for you and your employees.

Not all policies are created equal, so it is important to be well-informed about what you are buying.

Read the full article: Toughest Part of Your Job: Insuring Your Franchise

Insuring Your Franchise: Getting competitive premiums

By Lucy Sousa

Insurance premiums will vary, depending on your operations and the limits of coverage you choose to purchase. The minimum annual premium for a commercial policy will be between $750 and $1,000. In some cases, however, premiums can reach thousands of dollars. Most insurance providers will offer monthly payment plans with a small service charge, which will help you budget for this expense.

One of the keys to maintaining competitive insurance premiums is reducing the likelihood of claims, through risk management. This can take a number of forms, including the following recommendations.

Alarm systems
You should install a monitored burglar and fire alarm system. If your franchise’s stock is sensitive to changes in temperature—e.g. food or flowers—then you should have a monitored temperature alarm, as well.

Hiring contractors and subcontractors
When any contractors or subcontractors are hired to do work on your behalf, you should request a certificate of insurance confirming they have coverage in place, with a minimum limit of $2 million in commercial general liability. You can also ask to add your company to the certificate as ‘additional insured’ with respect to the contractor or subcontractor’s operations.

Snow removal
If you are responsible for snow removal at your premises, it is important to ensure it is conducted as soon as possible. Timely sanding or salting of sidewalks, walkways and parking areas is also key. And of course, if you hire a snow removal contractor, it is imperative to request a certificate of insurance.

You should keep a detailed log of your dates and times for salting, sanding and snow clearance, going back at least two years. This way, if you are sued after someone slips and falls, the log will help show you have been diligent about ensuring your property is as safe as possible.

Disaster recovery/business continuity plan
Every business should have a continuity plan, laying out how to respond if an interruption in that business may occur. There are templates available, ranging from basic to very detailed.
The plan should explain who needs to be contacted in the event of a loss, e.g. authorities, insurance brokers, suppliers and customers. The plan should be revised periodically to ensure all contact information, such as after-hours claims phone numbers, is up-to-date.

Read the full article: Toughest Part of Your Job: Insuring Your Franchise

Understanding Alternative Dispute Resolution: Arbitration

By Peter Snell

With arbitration, proceedings are much more formal than in mediation. In fact, they are similar to court proceedings in many ways.

The procedure of arbitration, after all, is still adversarial in nature. The matter of the dispute is to be resolved through an award by the arbitrator. There will be a winner and a loser.

Given this adversarial procedure, some parties may not favour arbitration as an appropriate alternative method for resolving disputes, especially in cases where those parties intend to continue their business relationship and therefore need to work together in a non-adversarial manner.

So, the parties may well choose mediation instead—or another informal dispute resolution process where the final decision is not ‘forced’ upon them—because the procedure is not mandatory and the results must be agreeable to both sides.

Also, while arbitration is often considered a good way to resolve disputes on the assumption it will be faster and less expensive than going to court, that is not always the case. There are lots of examples of disputes where arbitration has proven extremely complex, to the point where it probably consumed no less cost and time than if the cases had gone to court.

Read the full article: Understanding Alternative Dispute Resolution

Q & A with Frank Zaid: The franchisor’s rescission responsibilities

By Frank Zaid

The franchisor, in turn, carries obligations as a consequence of the franchisee’s notice of rescission. Specifically, within 60 days of the effective date of the rescission, the franchisor must:

● refund any money received from or on behalf of the franchisee—other than money for inventory, supplies or equipment—back to the franchisee.
● purchase back any inventory remaining at the effective date of rescission, supplies and equipment the franchisee had purchased pursuant to the franchise agreement, at a price equal to that paid by the franchisee;
● compensate the franchisee for any losses he/she incurred in acquiring, setting up and operating the franchise, less the amounts set out in the previous clauses.

These remedies can be very severe. They often amount to significant six-figure awards.
The following are the types of awards courts have granted in the past or are considering granting in current cases:

● Lost salary or wages.
● Future lease expenses.
● Amounts paid to the franchisor as initial and ongoing franchise fees.
● Amounts paid to the franchisor as rental and ancillary payments under a lease or sublease.
● Legal fees.
● Lost profits in operating the franchise.

Franchisor liabilities
If a franchisee suffers a loss as a result of the franchisor’s failure to comply in any way with its disclosure document obligations, the franchisee has a right of action for damages against:

● the franchisor;
● the franchisor’s agent;
● the franchisor’s associate;
● the franchisor’s broker (i.e. a person other than the franchisor, the franchisor’s associate, the franchisor’s agent or the franchisee, who grants, markets or otherwise offers to grant a franchise or who arranges for the grant of a franchise); and
● every person who signed the disclosure document or statement of material change.

Each of these persons is jointly and severally liable. So, the franchisee has recourse against a number of people, which may be very key if the franchisor becomes insolvent or goes bankrupt.

Read the full article: Q&A with Frank Zaid

Ask the Experts: When should a franchisee hire his/her children or other relatives as employees?

By Roger Noble

There should be a legitimate business reason, rather than just hiring your relatives because they are easily accessible, but you may also be in a position to help them out in specific ways. For example, if your child or another young relative is going to school, your franchise may allow the necessary flexibility in their hours of employment.

For your other employees to accept your decision without resentment, however, your child or relative is going to have to show his/her value and ability, particularly if given a position of authority over other staff. Therefore, it may be beneficial for any relatives to start at the bottom and earn their way up.

There needs to be a realistic vision of the business and family relationship. You should see strong potential in the individual, but also retain the ability to fire him/her if necessary.

Read the full article: Ask the Experts: Working with Family Members

Defining Franchising: Single-unit, multi-unit, master or area franchising?

By David Gray and Lauren Kenley

There are many opportunities in franchising to own single or multiple locations, either existing or new. A franchisee may even become an area developer, with an arrangement that grants geographical exclusivity. Each franchise ownership opportunity has unique challenges and responsibilities.

Single-unit franchising is usually the starting point for new entrepreneurs who are looking at a given franchise as their initial foray into the business world. As such, single-unit franchising is the most common form of participation in the business model.

In this scenario, of course, the franchisee is only responsible for running one unit, which could be an independent location or a home-based or mobile business. The franchisee is usually on-site and is fully involved with all of the daily operations of the business.

With multi-unit franchising, the franchisee may acquire locations in different territories—chosen through mutual agreement between franchisor and franchisee—and usually at a reduced price per unit. In this scenario, the franchisee oversees the business in a general sense, but hires managers to run the day-to-day operations of each individual enterprise. Also, sound business practices usually dictate operating each unit as a separate corporate entity.

With area development, the franchisor grants an exclusive territory to the franchisee for the establishment of multiple units. This geographical area may be as narrow as an urban centre or as broad as an entire country. The franchisee agrees to a development schedule for opening and operating a number of units and then will hire managers for each franchise. With this level of commitment, there is typically a significant reduction in franchise fees and a reduced royalty arrangement. Area franchisees can open as many corporate locations in an area as they wish, but do not have the rights to sub-franchise the business to others.

Another option is master franchising. Sometimes referred to as a regional or master developer, a master franchisee acquires exclusive rights in his/her area, acting as a business development partner to the franchisor in that territory or region. In addition to opening franchises and sub-franchising (i.e. selling single- and multi-unit franchises to other owners), the master franchisee keeps a significant portion of the franchise fee and receives ongoing royalties from the franchisees within the area. Essentially, he/she becomes a franchisor for that region, but without having to incur the costs of product or service development, process refinement and brand awareness.

Read the full article: Defining Franchising

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