Contratos de franquicia para expandir negocios
Mauricio Becerra de la Roca Donoso
publicado en periódico El Deber 12/06/2016 06:00
If there is a contract for entrepreneurs, one of the most used in recent decades, it is the franchise contract. This business development model experienced a boom, with very different investment requirements and in very varied sectors.
For all this we are going to evaluate the main characteristics of it; In short, we are going to have a first overview of what for many is the main option to start a business, by providing people with a brand and know-how.
The franchise contract is not specifically regulated in Bolivia and therefore it is considered an atypical contract left to the autonomy of the parties, legally it is a consensual, bilateral, principal, business cooperation, uniform, nameless and tract contract. successive.
To be considered a franchise and differentiate yourself from other types of business collaboration contracts, you must understand three requirements:
1.- The use of a common denomination or label or other intellectual or industrial property rights and a presentation of the premises or means of transport that are the object of the contract.
2.- The communication of technical knowledge or know-how, which must be proper, substantial and unique.
3.- The continuous provision of commercial or technical assistance or both during the term of the agreement, without prejudice to the supervisory powers that may be contractually established.
These requirements are what will differentiate this contractual modality from other similar ones, such as concession or exclusive distribution contracts, brand assignments, technology transfers, etc.
A variant of the franchise contract is the master franchise contract, the one by which the right to commercially develop the franchise in an area is granted, authorizing franchise contracts with third parties.
Among the essential elements of the franchise agreement, we can mention:
• The granting of a right or license to operate a business, associated with the use of a trademark or distinctive sign.
• Control by the franchisor of the product or service over the operations, having to provide training assistance in all fields of operation.
• Payment of the canon or royalty (royalty) by the franchisee, by means of percentages on the invoicing made by the grantor, while the contract lasts
• Transfer to the franchisee of the technical knowledge, property of the grantor and the commercial know-how or technology, devised and experienced by the grantor.
• Regulations aimed at protecting the prestige of the brand, quality and quality of the product and its market.
Whether you have a consolidated business in which you want to expand it through the concession of franchises or you want to start a business as a franchisee, it is important to have specialized legal advice, since these types of contracts are complex and It is important to clearly stipulate the obligations of the parties in order to avoid future contingencies.
Clauses to take into account
Some specific clauses of this type of contract:
• Exclusivity: with special reference to the geographical area and the technological field
• Production and Marketing Control: it is established with a view to preserving the prestige, quality and quality of the product and / or service in the granted territory.
• Determination of the price or royalty to be taxed: it can be included in the final sale price to the public.
• Advertising aspects: when determining who will be responsible for the expenditure demanded by this item in attention to the placement and exclusive provision of products or services, the aspects related to the image and presence in the consumer market are important.
• Guarantees: they are set on minimum production and / or commercialization limits.
• Collaboration: compliance by the franchisee with the legal precautions aimed at enabling the use of the franchise within the agreed territory.
• Confidentiality: this relationship creates an obligation that seeks to defend the operating methods and technological contributions of the franchisor.
Finally, in order to safeguard the execution, it is advisable to register the franchise contract in the commercial registry, Senapi and other public registries, taking into account and depending on the nature of the rights granted.