The Restrictive Trade Practices (Non-notifiable Agreements) (Sale and Purchase, Share Subscription and Franchise Agreements) Order 1997

Interpretation

2.  In this Order—

“the Act” means the Restrictive Trade Practices Act 1976;

“acquired enterprise” means a company in which shares are acquired or an unincorporated business an interest in which is acquired;

“business” means any undertaking which is, or any part of an undertaking which part is—

(a)

carried on as a going concern for gain or reward; or

(b)

carried on as a going concern in the course of which goods or services are supplied otherwise than free of charge;

“company” means a company as defined in section 735 of the Companies Act 1985(1) and an oversea company as defined in section 744 of that Act;

“contract of employment” means a contract of service whether it is express or implied and (if it is express) whether it is oral or in writing;

“development agreement” means an agreement whereby a person (“the franchisor”) grants to another, for consideration, the right to enter into an agreed number of franchise agreements with the franchisor within a specified area;

“franchise” means a package of industrial or intellectual property rights relating to trade marks, trade names, shop signs, utility models, designs, copyrights, know-how or patents, to be exploited for the sale of goods or the provision of services in which—

(a)

franchisees other than master franchisees, generate their revenue from the sale of the goods or services or goods and services which are the subject of the franchise, or

(b)

master franchisees generate their revenue predominantly from the continuing provision of services to sub-franchisees as well as from the sale of sub-franchises;

“franchise agreement” means an agreement whereby a person (“the franchisor”) grants to another, the franchisee, for consideration, the right to exploit a franchise for the purposes of the sale of specified types of goods or services or goods and services and which includes obligations relating to:

(a)

the use of a common trademark or service mark, trading name and—

(i)

trading premises which are fitted out and equipped to a certain standard and specification providing an appearance uniform with those of other franchisees of the franchisor (including the range of stock available for sale or services available to be provided); or

(ii)

a vehicle from which the franchisee conducts his business and which is fitted out and equipped to a standard and specification common to the franchisee and other franchisees of the franchisor providing a uniform appearance (including the range of stock available for sale or services available to be provided);

(b)

the communication by the franchisor or master franchisor to the franchisee of know-how; and,

(c)

the continuing provision by the franchisor or master franchisor to the franchisee of commercial or technical assistance during the term of the agreement;

“group” means a group of interconnected bodies corporate within the meaning of section 43(1) of the Act;

“identified” means described in a sufficiently comprehensive manner so as to make it possible to verify that it is secret and substantial;

“know-how” means a package of non-patented practical information, resulting from experience and testing by the franchisor, which is secret, substantial and identified;

“master franchise agreement” means an agreement whereby one person (“the master franchisor”) grants another for consideration, the right to exploit a franchise and the right to enter into sub-franchise agreements with other persons;

“secret” means that the know-how, as a body or in the precise configuration and assembly of its components, is not generally known or easily accessible;

“substantial” means that the know-how includes information which is of importance for the sale of goods or the provision of services to consumers and, without prejudice to the generality of the foregoing, in particular for the presentation of goods for sale, the processing of goods in connection with the provision of services, methods of dealing with consumers, and administration and financial management;

“unincorporated business” means the business of a sole trader or a partnership or the assets of a company.

(1)

1985 c. 6.