LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

Online Betting Affiliate Marketing Contract - Fight Commission Changes?

Discussion in 'Commercial Law Forum' started by Reel thing, 1 July 2014.

  1. Reel thing

    Reel thing Active Member

    Joined:
    30 June 2014
    Messages:
    6
    Likes Received:
    0
    Hi,
    I had an affiliate marketing agreement with an Australian online betting company. The agreement was for 3 years and I was told that this agreement was in place so that if either party did not perform or supply what they said then both parties could part ways. If both parties were happy, then it would flow on for life. All the companies' advertising states sales commission for life in fact. This is how they lured me in by giving me examples of some people who where able to get 1 customer and earn hundreds of thousands in commission from this customer whilst the customer stayed a member of there site.

    I entered into this early when it was hard to get people to join online but I worked hard and after some years started seeing the rewards with over 300 customers joining from my efforts. They paid me for four years after the initial agreement then 2 years after, they sold the business to another company. They then said they could cancel my agreement at any time and they had changed their terms and conditions. They then removed all advertising saying commission for life from their site and from google, but I copied these ads from google. They say the new terms said you must bring in an amount of new members in a certain term to have the commission for life. This is not how it was sold to me.

    Is this worth fighting under contract law? My finances were planned around this money and now I am struggling to make ends meet. Any help would be appreciated.
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

    Joined:
    19 June 2014
    Messages:
    204
    Likes Received:
    44
    Hi Reel thing

    What is confusing is the 3 year term of the agreement, the ability to terminate at anytime for non-performance, together with the advertised statements "commission for life"!!

    How does this work? What is the trigger or condition that needs to be met for commissions to continue for life?

    Have you met this trigger or condition during your 3 + 4 + 2 years of delivering customers to the site? or was it always a condition of the payment of commissions that the agreement continue to be in force?

    Have you continued to meet your performance requirements under the agreement? Are your customers still active members on the site?

    Due to the conflicting nature of the above, I would need to review the agreement before being able to provide any detailed advice. Please let me know if you want to provide you with a quote.

    Has the company sent you any written correspondence regarding the changes they were making to the agreement?

    Depending upon the facts and the amount of $$$ owed to you, there could be a claim for damages for breach of contract, or "misrepresentation" against the company.

    Kind regards,

    James.
     
  3. John R

    John R Well-Known Member

    Joined:
    14 April 2014
    Messages:
    637
    Likes Received:
    165
    Hi @Reel thing,
    1. Was the affiliate agreement a direct agreement between you and the betting company or managed through an affiliate manager?
    2. Have you kept a copy of each version of the affiliate agreement/s with their terms in relation to AdWords/PPC advertising, etc.
     
  4. Reel thing

    Reel thing Active Member

    Joined:
    30 June 2014
    Messages:
    6
    Likes Received:
    0
    I have kept all the relevant information regarding agreements and there advertising. The customers I bought on board are still with them. The agreement was direct with them not a third party. I only received one version of the agreement and I was advised 12 months before they stopped paying that I was required to attract a percentage of new customers within a certain term, I advised them that this was the first I heard of it and I believed this was never what I agreed to, I asked them to respond they emailed me back saying the bosses would be back the next week and they would let me know, I never received an email back regarding the matter until 12 months after cancelling my affiliation with them. They advised me that they needed no reason at all to cancel as the agreement allows them to cancel at any time for no reason. I contacted the small business commissioner and they told me they believed the agreement to be unfair, they then proceeded to ask the company to mediate, the company agreed to but then when it got closer to mediation they said they changed their mind and did not want to mediate. The commissioner was very disappointed but he told me he had no power to force them to the table and they had just wasted everyone's time. Over the years the commission had grown to a six figure sum pa. I have noticed that there are other people on forums that have suffered the same fate and that this company is black listed on the affiliate watchdog website. I also know of another person who they did the same thing to but then I know another person who they are still paying and he hasn't bought any new customers there in years.
     
  5. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

    Joined:
    19 June 2014
    Messages:
    204
    Likes Received:
    44
    Hi @Real thing

    Thanks for the additional background information.

    I assume that your relationship with the online betting business is that of an "independent contractor", please let me know if you agree.

    Pursuant to the Independent Contractors Act 2006 (Comm.)...

    "The Federal Court will have jurisdiction to review a services contract if that contract is alleged to be unfair or harsh. When determining whether a contract is unfair or harsh, the Court may have regard to:
    • the terms of the contract when it was made;
    • the relative strengths of the parties to the contract;
    • whether any undue influence or pressure was exerted upon, or any unfair tactics were used against, a party to the contract;
    • whether the contract provides total remuneration; and
    • any other matters the Court considers relevant.
    The Court may make an order setting aside in whole or in part the contract or may make orders varying the contract. An order may only be made for the purpose of placing the parties as nearly as practicable on such footing that the ground on which the Court’s opinion is based no longer applies. The Court may make interim orders to preserve the positions of the parties while the matter is being determined."

    Next Steps

    You need to decide whether your claim of an "unfair contract" is strong enough to commence proceedings. Based on what you have advised (without seeing the contract) it sounds unfair, and that was the opinion of the small business commissioner as well.

    [Removed by Moderator per Community Guidelines]

    Kind regards, James.
     
    #5 James D. Ford - Solicitor, 3 July 2014
    Last edited by a moderator: 3 July 2014
  6. Reel thing

    Reel thing Active Member

    Joined:
    30 June 2014
    Messages:
    6
    Likes Received:
    0
    Thank you for the information, I don't want to waste your time asking for a quote as I have exhausted my funds surviving so I could not commit to something I could not pay. Once again thank you for your time and the information.
     
  7. John R

    John R Well-Known Member

    Joined:
    14 April 2014
    Messages:
    637
    Likes Received:
    165
    Hi @Reel thing,
    All the best in finding new (and lucrative) affiliate opportunities.
     
  8. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

    Joined:
    19 June 2014
    Messages:
    204
    Likes Received:
    44
    Hi @Reel thing

    [Removed by Moderator - Breach of Community Guidelines]

    With regard to the option above, you need to be aware that a time limits applies.

    Independent Contractors Regulations 2007 (Comm.)

    Regulation 5 – Time limit on applications for review of services contracts

    Regulation 5 provides that a person can only make an application for review of a services contract within 12 months after the date on which the services contract ends. However, this time period would not apply if the person can satisfy a court that there are exceptional circumstances that justify the application being made outside this time.

    In this regulation, the reference to the end of the services contract includes a contract that has ended because it has been unilaterally terminated as well as a contract where the contract period has expired.

    Kind regards, James.
     
  9. Reel thing

    Reel thing Active Member

    Joined:
    30 June 2014
    Messages:
    6
    Likes Received:
    0
    Hi James, that is very generous of you, I will forward a copy of the contract to you.
     
  10. Reel thing

    Reel thing Active Member

    Joined:
    30 June 2014
    Messages:
    6
    Likes Received:
    0
    Hi James, The company says it is not the agreement they are cancelling, it is apparently the affiliate agreement that continues after the original agreement. I know nothing of this agreement. Can you please forward your email address to me so I can forward you the information I have.
     

Share This Page

Loading...