Reversed commissions, policy changed, expert help please!!!

[Qui Gon Jinn]

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Circle the Wagons !

[kier]

[Wardy]

I actually think in this instance Ambski shoudl actualyl receive his commission. They have clearly changed the T&C's AFTER what he originally signed up and agreed too. I think in an instance like this where to be honest it is that the T&C's were not that clear (they can't have been otherwise they would not have since been changed) that an reputable merchant/network would have approached Ambski and have achnowledged that he has made sales like this but the T&Cs are changing because the merchant does not want this to take place any more. Had they done this then there would be no arguments I don't imagine and Ambski may well have continued to work with them and tried sending sales there way still, I very much doubt he will even look at using them again now!

As for trying to stop Ambski get otehrs views and opinions on the matter I think is out of order. It's an issue that other affiliates have in the past and will in the future experience and in this case it looks like the network are trying to shut Ambski up so he does not get any help to resolve his situation.

Cheers
Wardy

[Frostie]

Have you thought about legal advice against the merchant? Remember, when you commissions are reversed, CJ gets paid nothing too, but yeah I think its wrong to silence affiliates especially if you have proof to back your argument up.

For sure, blog about it, take screen shots and such like, but I would seriously consider speaking to a legal adviser on this matter if you are talking about a fair chunk of money.

[nim-b]

I agree, I think changing the policy but allowing Ambski to keep commissions would have been the best way to deal with this.

I've always allowed affiliates to keep commission if our rules have been ambiguous.

At the very least, they could have let him keep at least some of the commission to show willing.

Knee-jerk reactions just seem to alienate affiliates and aren't really productive long term.

[tbp]

I`ve spoken to Ambski about this privately, but I too think he should keep the commissions.

At the least, I think they should pay his PPC bill. That way they don't pay the full commission, they`ve benefited from all the traffic, and Ambski isn't out of pocket. Seems like a good compromise to me!

[Spreader]

Hello folks,

Here's my two penneths. I work for a merchant so hopefully I can see this from a merchants perspective. I'd also have to say that I know nothing about the merchant in question (I'd never heard of them till this thread) so I can't really comment on what they've done and the reasons why.

However what I would say is that I'm always a little puzzled when merchants do this sort of thing without (apparently) appreciating the bigger picture and the longevity of their actions.

The Affiliate, has sent traffic to the merchant using keywords which at the time were valid keywords - i.e. mis-spellings. To make matters worse for the Affiliate they've done this through PPC. So, they've had to spend their hard earned money generating sales for no gain whatsoever. They are therefore understandably hacked off...

I feel however this could have so easily been avoided. If I was the merchant in this situation I would have done the following...

1) Called the Affiliate in question and explained our situation, asking them not to promote any derivatives of our name futuristically as this is "against our brand bidding policy".
2) Changed the terms and conditions so their was absolutely no ambiguity
3) Paid the Affiliate the commission up until the date I had spoken to them
4) Notified ALL affiliates of the change in our terms and conditions

Easy peasy - everybody's happy. However, now we have a situation whereby the Affiliate is annoyed, the merchant is getting bad press and the network is burying its head in the sand! Not good.

As an aside, I think some merchants get a little confused about PPC and especially brand bidding. There are soooooo many differing viewpoints on what to do with regards to brand name bidding, that sometimes it is difficult to know whether you are doing the right thing or not - especially if you are not an expert in PPC.

Zak.

[John Jupp]

I am assuming the reversed commission was considerable. If you can legally demonstrate that the retrospective act was retrospective and that you did not transgress the previous terms and conditions, then take the matter to Court.

Don't mess about as you only have 90 days to lodge legal action. If it was me and if it was a significant sum of money I'd sue their ass and also demand pecuniary damages for injury to feelings plus costs for administrative action to address this issue.

I should think a demand for £200,000 injury to feelings plus all other expenditure would be reasonable. They only changed their t's & c's after contacting you and their abrupt manner hasn't been very conducive has it. Sod it. Sue them.

You are effectively looking at a Breach of Contract first and foremost. The act was taken retrospectively.

[hpops]

Nice to see a gathering of the old school on this thread - seems we don't often operate like this anymore.
Zac, a perfect description of what to do to avoid these problems
If the sum is significant follow Johns advice.
As an aside, the merchants loss of goodwill is significant, but their potential gain in goodwill by publically addressing on this thread and resolving would be significant.
Resolving sticky situations transparently has been the making of many a good affiliate manager.

[Ambski]

Latest communcations from CJ & AM are now on my Blog here:
Boxing Man: Ashley Madison & CJ...Round 2

Also QJG has been contacted and the attitude now is that 'I'm not communicating'.
It's hard to communicate with 'we've taken your money and we are right'!

Opinions?

Please let me know.
Anthony

[John Jupp]

The general directive not to use any form of the merchant name is then clarified in respect of keywords. The keywords used were not specified. In law although initial primacy would be given to the instruction not to use any form of the merchant name, that primacy is superceded by the specific clarification in respect of prohibited keywords. This effectively requires that only keywords mentioned may not be used.

I'd talk to a Solicitor who can then contact a Barrister. I'd also contact both the merchant and CJ direct again after you have taken legal advice to see whether this may be amicably resolved.

[DavidCartlidge]

Just read the posts in your blog [god my eyes hurt now!!] - I would do as John says.

Keep it simple. Tell CJ that unless you get your commission paid you will take them to the small claims court. Give them a deadline. If they fail to hand it over, carry your claim through.

To say that '..any form of..' covers miss-spellings is nonsense. By any form of then meant ashley madison with words either side of or inbetween.

I would also go through the PPC rules of other CJ merchants. If you can demonstrate that those merchants with restrictions on miss-spellings always state that, and ashley madison did not, you case is doubly sound.

[sgpratley]

Good to see some solid support on this. There was another thread about misspelt domains earlier in the week that overlaps a lot of the same ground.

Seems a lot of merchants are wising up to tactics they don't agree with and changing their T&C's to match, and that's all fine, but applying the rules retrospectively, and with no notice is not on.

John, you seem exceptionally well clued up on the legals of all this. Where'd you pick this stuff up from? Looks like you've done a lot more than stay awake in the lecture about Carlill vs Carbolic Smokeball Co.

[John Jupp]

I was actually thinking of County Court followed by Court of Appeal if needed, not a small claims option. It would then set a legal precedent which would become Case Law for which all other claimants may then refer to.

Between running a company and running affiliate schemes for merchants and running retail sites and running my own affiliate sites and also running a software company, I also have a full time job with TfL. On top of that I am a member of the Southern & eastern Regional TUC for a Trades Union. On top of that I am also preparing to take a 4 year degree course in Economics, Industrial relations and Labour Law. Contract Law is something I have already covered as part of my Access Certificate prior to Birkbeck.

[John Jupp]

Now if you were solely looking at recovering the money (plus application for costs) and nothing else....did you know that you are an employee of that merchant???????????

Yes you the affiliate....you are classed as an employee ..case law again.

Airfix Footwear Ltd v Cope

Case Law: Airfix Footwear Ltd v Cope

Mutuality of obligation and control are the irreducible minimum legal requirements for the existence of a contract of employment (Selwyn's Law Of Employment 14th Edition 2.33).

However it can be argued under the entrepreneurial test "Is he in business on his own" to claim you are not an employee.

The issue is not clear cut but the Institute of Employment Rights would be able to advise you.

If you are deemed an employee and merely wish to recover monies owed then an Employment Tribunal (3 months less 1 day) is the way forward. This is because you were one of two parties (three with the network) in a binding Contract. The Breach of Contract is such that you may be deemed to be a self employed "employee" of the merchant as you are carrying out activity on their behalf to promote them.

Again for all this you must get appropriate advice.