As used in this chapter, “franchise” means a contract or agreement, either expressed or implied, whether oral or written, between two or more persons by which:
(a) A franchisee is granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system prescribed in substantial part by a franchisor; and
(b) The operation of the franchisee’s business pursuant to that plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logotype, advertising, or other commercial symbol designating the franchisor or its affiliate; and
(c) The franchisee is required to pay, directly or indirectly, a franchise fee.
(d) “Franchise” does not include any of the following:
(1) Any franchise governed by the Petroleum Marketing Practices Act (P.L. 95-297).
(2) Lease departments, licenses, or concessions at or with a general merchandise retail establishment where the lease department, licensee, or concessionaire is incidental and ancillary to the general commercial operation of the retail establishment. Sales of a leased department, license, or concessionaire are incidental and ancillary to the general commercial operation of the retail establishment if they amount to less than 10 percent of the establishment’s sales.
(3) A nonprofit organization operated on a cooperative basis by and for independent retailers which wholesales goods and services primarily to its member retailers and in which all of the following is applicable:
(A) Control and ownership of each member is substantially equal.
(B) Membership is limited to those who will use the services furnished by the organization.
(C) Transfer of ownership is prohibited or limited.
(D) Capital investment receives no return.
(E) Substantially equal benefits pass to the members on the basis of patronage of the organization.
(F) Members are not personally liable for obligations of the organization in the absence of a direct undertaking or authorization by them.
(G) Services of the organization are furnished primarily for the use of the members.
(H) Each member and prospective member is provided with an offering circular which complies with the specifications of Section 31111 of the Corporations Code.
(I) No part of the receipts, income, or profit of the organization are paid to any profitmaking entity, except for arms-length payments for necessary goods and services and members are not required to purchase goods or services from any designated profitmaking entity.
(J) The nonprofit organization is subject to an action for rescission or damages under Section 3343.7 of the Civil Code if the organization fraudulently induced the plaintiff to join the organization.
(Amended by Stats. 1989, Ch. 1380, Sec. 1.)