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MenuWhat are the best practices for partnering up with people and other companies for brand awareness and marketing each other?
Have a fitness training company which has built quite a reputation due to name clients. I would like to branch off and allow people I know to use the brand and market as being affiliated with us. In return they would pay a monthly fee. What do I need to do legally? What needs to be done to protect myself and the company? Would I be able to do this with just a contract agreement and a waiver that their clients would sign protecting us? What about tax implications? Could this just be counted as ordinary income?
Answers
I am not a lawyer or an attorney and this is not "professional advice."
Hire an accountant who is familiar with licensing.
Stay away from the franchising route if you can: it's expensive, the lawyers are expensive, and you are open to attack from inside and out (franchisees and customers). I was a senior executive at an Inc. Top 1000 franchise firm and saw this from the inside--though we didn't have an issue with our franchisees, I saw plenty of franchisors who did.
Learn about licensing. Figure out how to write the contract so you have control over some measurable variables, eg. customer count, revenues, # of complaints, etc. As long as the licensee remains in tolerance, they're fine, but if they go outside you drop them.
You are going to have to invest in an attorney to create the boilerplate contract, and an accountant to manage the process (which you should probably do first.) Don't cheap out. You're protecting yourself here.
BTW looks like Jeff Retchman in this thread could help you as well: https://clarity.fm/questions/1258/how-to-license-with-a-revenue-based-model
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Hello - I work as an in-house transactional attorney for a US-based website with 20 million monthly unique visitors around the world, and I've worked on several licensing and ad-rep deals for several countries in Europe, South America, Australia, etc. There are several ways to protect yourself, but at the end of the day you have to trust your partner that you they will want to be honest so you can continue doing business together. That said, you should give yourself an audit right. Not sure what the software is and if it directly correlates to sales, but if so see if you can track yourself or use a third party's tracking software so you can compare numbers with theirs. Also consider including in the agreement a dispute clause, something to the effect that if you dispute their report for a quarter they will have x days to provide you with sufficient evidence to reconcile the dispute to your satisfaction - if not, you can terminate the agreement. Another way to protect yourself would be to ask for a minimum guarantee, but depending on the deal that may be difficult to work in. As far as working internationally, I think the hardest part there is ensuring collections and that you are paid in US dollars. Stand strong on keeping venue and choice of law in the jurisdiction in which you reside, not in theirs. If you'd like to schedule a call to further discuss, I'm happy to chat, let me know! Best, JeffJR
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