1. Definitions.
When used in this section, unless the context otherwise requires: a. “Affiliate” means a person controlling, controlled by, or under common control with another person, every officer or director of such
a person, and every person occupying a similar status or performing similar functions.
b. “Business day” means a day other than a Saturday, Sunday, or federal holiday.
c. (1) “Franchise” means either of the following: (a) An oral or written agreement, either express or implied, which provides all of the following: (i) Grants the right to distribute goods or provide services under a marketing plan prescribed or suggested in substantial part
by the franchisor.
(ii) Requires payment of a franchise fee to a franchisor or its affiliate.
(iii) Allows the franchise business to be substantially associated with a trademark, service mark, trade name, logotype, advertisement,
or other commercial symbol of or designating the franchisor or its affiliate.
(b) A master franchise.
(2) “Franchise” does not include any business that is operated under a lease or license on the premises of the lessor or licensor as long
as such business is incidental to the business conducted by the lessor or licensor on such premises, including, without limitation,
leased departments, licensed departments, and concessions and the leased or licensed department operates only under the trademark,
trade name, service mark, or other commercial symbol designating the lessor or licensor.
(3) “Franchise” also does not include any contract under which a petroleum retailer or petroleum distributor is authorized or permitted to
occupy leased marketing premises, which premises are to be employed in connection with the sale, consignment, or distribution
of motor fuel under a trademark which is owned or controlled by a refiner which is regulated by the federal Petroleum Marketing
Practices Act, 15 U.S.C. §2801 et seq. The term “refiner” means any person engaged in the refining of crude oil to produce motor fuel, and includes any affiliate of such person. “Franchise” also does not include a contract entered into by any person regulated under chapter 103A, subchapter IV, or chapter 123, 322, 322A, 322C, 322D, 322F, 522B, or 543B, or a contract establishing a franchise relationship with respect to the sale of construction equipment, lawn or garden equipment,
or real estate.
d. “Franchise fee” means a direct or indirect payment to purchase or operate a franchise. Franchise fee does not include any of the following: (1) Payment of a reasonable service charge to the issuer of a credit card by an establishment accepting the credit card.
(2) Payment to a trading stamp company by a person issuing trading stamps in connection with a retail sale.
(3) An agreement to purchase at a bona fide wholesale price a reasonable quantity of tangible goods for resale.
(4) The purchase or agreement to purchase, at a fair market value, any fixtures, equipment, leasehold improvements, real property,
supplies, or other materials reasonably necessary to enter into or continue a business.
(5) Payments by a purchaser pursuant to a bona fide loan from a seller to the purchaser.
(6) Payment of rent which reflects payment for the economic value of leased real or personal property.
(7) The purchase or agreement to purchase promotional or demonstration supplies, materials, or equipment furnished at fair market
value and not intended for resale.
e. “Franchisee” means a person to whom a franchise is granted. Franchisee includes the following: (1) A subfranchisor with regard to its relationship with a franchisor.
(2) A subfranchisee with regard to its relationship with a subfranchisor.
f. “Franchisor” means a person who grants a franchise or master franchise, or an affiliate of such a person. Franchisor includes a subfranchisor
with regard to its relationship with a franchisee, unless stated otherwise in this section.
g. “Marketing plan” means a plan or system concerning a material aspect of conducting business. Indicia of a marketing plan include any of the
following: (1) Price specification, special pricing systems, or discount plans.
(2) Sales or display equipment or merchandising devices.
(3) Sales techniques.
(4) Promotional or advertising materials or cooperative advertising.
(5) Training regarding the promotion, operation, or management of the business.
(6) Operational, managerial, technical, or financial guidelines or assistance.
h. “Master franchise” means an agreement by which a person pays a franchisor for the right to sell or negotiate the sale of franchises.
i. “Offer” or “offer to sell” means every attempt to offer or to dispose of, or solicitation of an offer to buy, a franchise or interest in a franchise
for value.
k. “Sale” or “sell” means every contract or agreement of sale of, contract to sell or disposition of, a franchise or interest in a franchise
for value.
l. “Subfranchise” means an agreement by which a person pays a franchisor for the right to sell or negotiate the sale of franchises.
m. “Subfranchisee” means a person who is granted a franchise from a subfranchisor.
n. “Subfranchisor” means a person who is granted a master franchise.
5. Transfer of franchise.
a. A franchisee may transfer the franchised business and franchise to a transferee, provided that the transferee satisfies the
reasonable current qualifications of the franchisor for new franchisees. For the purposes of this subsection, a reasonable current qualification for a new franchisee is a qualification based upon a legitimate business reason. If the
proposed transferee does not meet the reasonable current qualifications of the franchisor, the franchisor may refuse to permit
the transfer, provided that the refusal of the franchisor to consent to the transfer is not arbitrary or capricious.
b. (1) A franchisee may transfer less than a controlling interest in the franchise to an employee stock ownership plan, or employee
incentive plan provided that more than fifty percent of the entire franchise is held by those who meet the franchisor’s reasonable
current qualifications for franchisees, and such transfer is approved by the franchisor. Approval of such transfer shall not
be unreasonably withheld. (2) If pursuant to such a transfer fifty percent or less of the entire franchise would be owned by persons who meet the franchisor’s
reasonable current qualifications, the franchisor may refuse to authorize the transfer, provided that enforcement of the reasonable
current qualifications is not arbitrary or capricious.
(3) Participation by an employee in an employee stock ownership plan or employee incentive plan established pursuant to this subsection does not confer upon such employee any right to access trade secrets protected under the franchise agreement, which access
the employee would not otherwise have if the employee did not participate in such plan.
c. A franchisor may require as a condition of a transfer any of the following: (1) That the transferee successfully complete a training program.
(2) That a transfer fee be paid to reimburse the franchisor for the franchisor’s actual expenses directly attributable to the
transfer.
(3) That the franchisee pay or make provision acceptable to the franchisor to pay any amount due the franchisor or the franchisor’s
affiliate.
(4) That the financial terms of the transfer comply at the time of the transfer with the franchisor’s current financial requirements
for franchisees.
d. A franchisee shall give the franchisor no less than sixty days’ written notice of a transfer which is subject to this subsection, and on request from the franchisor shall provide in writing the ownership interests of all persons holding or claiming an
equitable or beneficial interest in the franchise subsequent to the transfer or the franchisee, as appropriate. A franchisee
shall not circumvent the intended effect of a contractual provision governing the transfer of the franchise or an interest
in the franchise by means of a management agreement, lease, profit-sharing agreement, conditional assignment, or other similar
device.
e. A transfer by a franchisee is deemed to be approved sixty days after the franchisee submits the request for consent to the
transfer unless the franchisor withholds consent to the transfer as evidenced in writing, specifying the reason or reasons
for withholding the consent. The written notice must be delivered to the franchisee prior to the expiration of the sixty-day
period. Any such notice is privileged and is not actionable based upon a claim of defamation.
f. A franchisor shall not discriminate against a proposed transferee of a franchise on the basis of race, color, national origin,
religion, sex, or disability.
g. A transfer of less than a controlling interest in the franchise to the franchisee’s spouse or child or children shall be permitted
if following the transfer more than fifty percent of the interest in the entire franchise is held by those who meet the franchisor’s
reasonable current qualifications. If following such a transfer fifty percent or less of the interest in the franchise would
be owned by persons who meet the franchisor’s reasonable current qualifications, the franchisor may refuse to authorize the
transfer, provided that enforcement of the reasonable current qualifications is not arbitrary or capricious.
h. A franchisor shall not deny the surviving spouse or a child or children of a deceased or permanently disabled franchisee the
opportunity to participate in the ownership of a franchise under a valid franchise agreement for a reasonable period, which
need not exceed one year, after the death or disability of the franchisee. During such reasonable period, the surviving spouse
or the child or children of the franchisee shall either meet all of the qualifications which the franchisee was subject to
at the time of the death or disability of the franchisee, or sell, transfer, or assign the franchise to a person who meets
the franchisor’s current qualifications for a new franchisee. The rights granted pursuant to this subsection are subject to the surviving spouse or the child or children of the franchisee maintaining all standards and obligations
of the franchise.
i. Incorporation of a proprietorship franchise shall be permitted upon sixty days’ prior written notice to the franchisor. Such
incorporation does not prohibit a franchisor from requiring a personal guaranty by the franchisee of obligations related to
the franchise, and the owners of the corporation must meet the franchisor’s reasonable current qualifications for franchisees.
j. A transfer within an existing ownership group of a franchise shall be permitted provided that the transferee meets the franchisor’s
reasonable current qualifications for franchisees, and written notice is submitted to the franchisor sixty days prior to such
a transfer. If less than fifty percent of the franchise would be owned by persons who meet the franchisor’s reasonable current
qualifications, the franchisor may refuse to authorize the transfer, provided that enforcement of the reasonable current qualifications
is not arbitrary or capricious.
6. Encroachment.
a. If a franchisor develops, or grants to a franchisee the right to develop, a new outlet or location which sells essentially
the same goods or services under the same trademark, service mark, trade name, logotype, or other commercial symbol as an
existing franchisee and the new outlet or location is in unreasonable proximity to the existing franchisee’s outlet or location
and has an adverse effect on the gross sales of the existing franchisee’s outlet or location, the existing adversely affected
franchisee has a cause of action for monetary damages in an amount calculated pursuant to paragraph “d”, unless any of the following apply: (1) The franchisor has first offered the new outlet or location to the existing franchisee on the same basic terms and conditions
available to the other potential franchisee and such existing franchisee meets the reasonable current qualifications of the
franchisor including any financial requirements, or, if the new outlet or location is to be owned by the franchisor, on the
terms and conditions that would ordinarily be offered to a franchisee for a similarly situated outlet or location.
(2) The adverse impact on the existing franchisee’s annual gross sales, based on a comparison to the annual gross sales from the
existing outlet or location during the twelve-month period immediately preceding the opening of the new outlet or location,
is determined to have been less than six percent during the first twelve months of operation of the new outlet or location.
(3) The existing franchisee, at the time the franchisor develops, or grants to a franchisee the right to develop, a new outlet
or location, is not in compliance with the franchisor’s then current reasonable criteria for eligibility for a new franchise,
not including any financial requirements.
(4) The existing franchisee has been granted reasonable territorial rights and the new outlet or location does not violate those
territorial rights.
b. (1) The franchisor, with respect to claims made under paragraph “a”, shall establish both of the following: (a) A formal procedure for hearing and acting upon claims by an existing franchisee with regard to a decision by the franchisor
to develop, or grant to a franchisee the right to develop, a new outlet or location, prior to the opening of the new outlet
or location.
(b) A reasonable formal procedure for mediating a dispute resulting in an award of compensation or other form of consideration
to a franchisee to offset all or a portion of the franchisee’s lost profits caused by the establishment of the new outlet
or location. The procedure shall involve a neutral third-party mediator. The procedure shall be deemed reasonable if approved
by a majority of the franchisor’s franchisees in the United States.
(2) A dispute submitted to a formal procedure under subparagraph (1) does not diminish the rights of a franchisor or franchisee
to bring a cause of action for a violation of this subsection if no settlement results from such procedure.
c. A franchisor shall establish and make available to its franchisees a written policy setting forth its reasonable criteria
to be used by the franchisor to determine whether an existing franchisee is eligible for a franchise for an additional outlet
or location.
d. (1) In establishing damages under a cause of action brought pursuant to this subsection, the franchisee has the burden of proving the amount of lost profits attributable to the compensable sales. In any action
brought under this subsection, the damages payable shall be limited to no more than three years of the proven lost profits. For purposes of this paragraph,
“compensable sales” means the annual gross sales from the existing outlet or location during the twelve-month period immediately preceding the
opening of the new outlet or location less both of the following: (a) Six percent of the annual gross sales for that twelve-month period immediately preceding the opening of the new outlet or
location.
(b) The actual gross sales from the operation of the existing outlet or location for the twelve-month period immediately following
the opening of the new outlet or location.
(2) Compensable sales shall exclude any amount attributable to factors other than the opening and operation of the new outlet
or location.
e. Any cause of action brought under this subsection must be filed within eighteen months of the opening of the new outlet or location or within thirty days after the completion
of the procedure under paragraph “b”, subparagraph (1), whichever is later.
7. Termination.
a. Except as otherwise provided by this section, a franchisor shall not terminate a franchise prior to the expiration of its term except for good cause. For purposes of
this subsection, “good cause” is cause based upon a legitimate business reason. “Good cause” includes the failure of the franchisee to comply with any material lawful requirement of the franchise agreement, provided
that the termination by the franchisor is not arbitrary or capricious. The burden of proof of showing that the action of the
franchisor is arbitrary or capricious shall rest with the franchisee.
b. Prior to termination of a franchise for good cause, a franchisor shall provide a franchisee with written notice stating the
basis for the proposed termination. After service of written notice, the franchisee shall have a reasonable period of time
to cure the default, which in no event shall be less than thirty days or more than ninety days. In the event of nonpayment
of moneys due under the franchise agreement, the period to cure need not exceed thirty days.
c. Notwithstanding paragraph “b”, a franchisor may terminate a franchise upon written notice and without an opportunity to cure if any of the following apply: (1) The franchisee or the business to which the franchise relates is declared bankrupt or judicially determined to be insolvent.
(2) All or a substantial part of the assets of the franchise or the business to which the franchisee relates are assigned to or
for the benefit of any creditor which is subject to chapter 681. An assignment for the benefit of any creditor pursuant to this subparagraph does not include the granting of a security
interest in the normal course of business.
(3) The franchisee voluntarily abandons the franchise by failing to operate the business for five consecutive business days during
which the franchisee is required to operate the business under the terms of the franchise, or any shorter period after which
it is not unreasonable under the facts and circumstances for the franchisor to conclude that the franchisee does not intend
to continue to operate the franchise, unless the failure to operate is due to circumstances beyond the control of the franchisee.
(4) The franchisor and franchisee agree in writing to terminate the franchise.
(5) The franchisee knowingly makes any material misrepresentations or knowingly omits to state any material facts relating to
the acquisition or ownership or operation of the franchise business.
(6) The franchisee repeatedly fails to comply with one or more material provisions of the franchise agreement, when the enforcement
of such material provisions is not arbitrary or capricious, whether or not the franchisee complies after receiving notice
of the failure to comply.
(7) The franchised business or business premises of the franchisee are lawfully seized, taken over, or foreclosed by a government
authority or official.
(8) The franchisee is convicted of a felony or any other criminal misconduct which materially and adversely affects the operation,
maintenance, or goodwill of the franchise in the relevant market.
(9) The franchisee operates the franchised business in a manner that imminently endangers the public health and safety.
9. Sources of goods or services.
a. A franchisor shall not require that a franchisee purchase goods, supplies, inventories, or services exclusively from the franchisor
or from a source or sources of supply specifically designated by the franchisor where such goods, supplies, inventories, or
services of comparable quality are available from sources other than those designated by the franchisor.
b. However, the publication by the franchisor of a list of approved suppliers of goods, supplies, inventories, or services, or
the requirement that such goods, supplies, inventories, or services comply with specifications and standards prescribed by
the franchisor, does not constitute designation of a source. Additionally, the reasonable right of a franchisor to disapprove
a supplier does not constitute a designation of source. This subsection does not apply to the principal goods, supplies, inventories, or services manufactured by the franchisor, or such goods,
supplies, inventories, or services entitled to protection as a trade secret.