Amazon imposed a new agreement upon sellers and there are significant changes (and loopholes) to that agreement that sellers need to be aware of. Amazon Terms of Service, otherwise called their Business Solutions Agreement, contains the terms and conditions that govern your access to and the use of seller services on the Amazon.com platform. It is an agreement between you (or the business you represent) and Amazon.

Amazon’s New Terms of Service Explained: New Contract with Sellers

In the new Terms of Service that Amazon imposed on all Amazon sellers, Amazon promised sellers that they would give a 30 day notice before an account suspension or listing suspension would occur. Find out what these loopholes are by watching our videos below.

Amazon's New Business Solutions Agreement

If you have any questions / concerns about the new Amazon Business Solutions Agreement,
call us for a free consultation: 1-877-9-SELLER.

GET HELP NOW: The law firm of Rosenbaum Famularo, PC is required by law to assure you 100% confidentiality. We protect your privacy under the Attorney-Client Privilege.

Amazon Terms of Service Explained: General Terms for Plans of Action

Amazon sellers around the world need to know that Amazon instituted a new contract on sellers. There are significant changes to the new agreement that they are imposing on you. Some provisions are really helpful and good for sellers. While others are absolutely awful. Some will help us write better Plans of Action and appeals for suspended sellers who need help getting their listings and accounts back. If you are writing a Plan of Action yourself or you are having someone else write a Plan of Action for you, they should know this new contract inside and out. They should be able to interpret it. They must understand the legal terms or you are paying for expertise that you are not getting. Whoever writes your appeal should understand the legal terminologies and the effects of the new contractual provisions.

Amazon Terms of Service Explained: Paragraph 1: Business Verification

Amazon’s New Terms of Service for Sellers: Paragraph 1: Business Verification

Amazon seller suspensions, Plans of Action, and appeals for business verification suspensions have changed under Amazon’s new contract.

The issue for suspended sellers in this paragraph is business verification. Amazon business verification is where Amazon suspends your account because of Amazon’s inability to verify your information, your credit cards, your identification, or your utility bills. We start with the new provision in the business solutions agreement and what Amz sellers need to know about in terms of winning POAs and appeals when you are suspended.

When it comes to business verification, specifically this new BSA agreement, Amazon can ask for additional information and it lists information Amazon may request. Amazon’s new contract with sellers is vague and could present problems. An example would be not having a utility bill, and we feel this may actually be enforced more by Amazon going forward. When it comes to business verification issues, it used to be that we could get around the need for utility bills by providing Amazon with reasons why suspended sellers don’t have a utility bill (shared living space with a spouse or parents or working out of someplace else that provides lights and electricity). Fortunately, we are winning these suspensions for sellers. But with the language in the new BSA that says, “any information” there is a concern that Amazon could ask you for things that you don’t have.

What this means is that we’ve got to come up with better, creative arguments. There’s more that is vital about the changes to this particular paragraph, starting with the fact that Amazon also states in this new agreement with sellers that any personal data the seller provides will be handled in accordance with Amazon’s privacy notice.

In other words, this is just another way for Amazon to avoid liability for data breaches. Amazon essentially wipes away any responsibility.

As time has shown, Amazon is an incredible company when it comes to data, but also an incredible company when it comes to covering their own behind. All Amazon sellers are going to be asked to give Amazon more and more information. Amazon is retaining for itself that Amazon can do whatever they want to sellers at its sole discretion.

Here’s what Amazon sellers need to know about Amazon trying to retain sole discretion:

We think this will definitely go back to arbitration, which is the end process when POAs, appeals and Bezos Escalations have failed. Specifically, we think that our efforts can deem Amazon’s contracts unenforceable, which is probably why they’re now insinuating that this needs to be put into play.

If you’ve been suspended on Amazon, call for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph 2: Service Fee Payments

Amazon’s Terms of Service for Sellers: Paragraph 2: Service Fee Payments

TOS Explained: the 2nd paragraph in the new business solutions agreement -which most sellers don’t realize is their contract with AMZ.

When it comes to the second paragraph in the business solutions agreement, what is ‘velocity limits’ and what is your concern with this new contract?

The second paragraph of the BSA basically allows Amazon to hold your money for any reason at all (without explanation). Now, this has always been the case. Some of the reasons that Amazon will require you to verify your information are if you just are successful too quickly, if you didn’t have many sales and then you suddenly got an influx of sales.

It’s absurd that Amazon is strengthening the business solutions agreement strikes in the contract. It doesn’t take into account Amazon advertising. It doesn’t take into account things that you’re specifically allowed to do. It just gives Amazon the ability to ding you. If you launch a promotion, suddenly they’ll suspect that you’re gaming the system in some way.

These have been big issues for plans of action when we win an appeal. Sometimes you have to go to escalations, but we win these things.. I think what sellers need to know is that the new BSA is leading the door even more open for Amazon to come down on you simply for being successful.

Other ways Amazon shuts sellers down without having to explain why.

One thing we see commonly is a violation of seller code of conduct, which basically means that the seller is somehow gaming the system just like with velocity, but they give no explanation why and they don’t even give an option to appeal.

What I like about the changes in this paragraph is that it creates, I think, more ambiguity and therefore, it gives us a lot more creative ways of crafting winning arguments to get sellers reinstated.

Amazon and your credit card, bank account & all the things AMZ is asking for in terms of identification.

They basically require a certain amount of information. They require you to demonstrate that it’s valid at any point in time. As long as you’re authorized to use that information and it matches, you have documentation to prove it, it shouldn’t be a problem.

We commonly see sellers who are authorized to use another brand name / company’s name and operate as that company on Amazon because they’re an authorized representative. Maintaining multiple accounts and things like that. You’ve got to really be able to prove that you’re authorized.

This might be really good for people who are operating related accounts / multiple accounts. Later on in the BSA, it says you can only have one account. I think that if you get caught with related accounts, you can argue what’s in paragraph two of the business solutions agreement. And again, many people, companies, consultants, and sellers don’t even know what this document is. This is the backbone of every plan of action in every appeal. So if a seller gets caught having more than one account, I think some persuasive arguments could be made that they’re following the new business solutions agreement. Paragraph two specifically says that you can operate accounts that you’ve been authorized to by other people and entities.

Amazon is reserving the right to get updated credit reports.

So in other businesses like banking and finance, if you’re a broker and your credit tanked because of a divorce or a death in the family, you know, your job is at risk. I’m a little concerned that Amazon may do this to sellers as a weeding out process.

We see a lot of new sellers who try to sell on Amazon and they just shut them. They just say no and they don’t say why. Amazon will say that they want more utility bills and stuff. After reviewing the new BSA in paragraph two, maybe it’s because your credit just took a nose dive after a life event. In this paragraph, Amazon has reinforced again, it’s sole discretion, to take action. When Amazon keeps so much power to itself, it’s better at the arbitration level because we can say that the contract is unfair / unenforceable because Amazon reserves the right to hold money.

Paragraph two now says that the breach has to be substantial or material – how can we use that in a plan of action?

We have to argue that the seller has followed the policies specifically to the seller code of conduct and the policies that they’re accused of violating. You can demonstrate that your history is good, or that you haven’t been manipulating the sales rank or the system at all. They should have to give some proof that you’ve made a material violation.

Also, in a great persuasive plan of action, you can argue that if there was some violation, such as the picture was slightly off, not exactly a white background, the keywords were slightly off, a misspelling, or the listing wasn’t perfect, you can argue, “Hey Amazon, look at paragraph two of the new BSA. If there was any issue, it was not material, and it was not substantial. I think that’s what makes the difference in us writing the plan of action versus somebody else writing a plan of action – we can legally identify what is material, what is substantial, and what is not.

Use paragraph two of the new BSA to help sellers get reinstated.

You cannot write a great plan of action these days unless you can read Amazon’s contract. It’s certainly not the most complex contract in the world, but it helps having lawyers on board to explain.

Screenshots of Amazon’s own language in the plan of action. Here is your language, here are how we comply, here’s your language, here’s why the issue was insignificant. I think that this particular paragraph is just absolutely great for sellers because it gives you so many arguments to make that if you did have a problem, it was insignificant, not substantial, and not material.

Keep on watching these videos. You need to know what your contract with Amazon says. If anyone is creating a plan of action for you and they cannot read and interpret a contract, do not use them. If you need any more assistance, give us a call 1-877-9-SELLER. Contact us.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Terms of Service: Paragraph 3A: 30 Day Notices & Suspensions

Amazon’s New TOS Terms of Service & 30 Day Suspension Notice. The TOS is contained in the contract Amazon imposes on all Sellers which is called the Business Solutions Agreement. The 30 Day Notice Provision…and its HUGE Loopholes are contained in Paragraph 3. Amazon’s Latest Language in the Amazon Sellers Terms of Service / TOS / Participation Agreement (which is actually called the Business Solutions Agreement). What is the agreement called between Amazon Sellers and Amazon? Terms of Service? TOS? Participation Agreement? Many Amazon Sellers and Amazon consultants do not seem to know what the actual contract between Amazon and Amazon Sellers is called. The contract between Amazon and Amazon Third-Party Sellers is often referred to as the TOS, the Terms of Service and/or the Participation Agreement. The actual contract is called the Business Solutions Agreement. The Business Solutions Agreement (BSA) is the controlling contract between every Amazon Seller and Amazon. There are many people and companies that charge suspended Amazon Sellers to write Amazon Plans of Action (POA) without knowing what the governing agreement is or what the terms of the contract mean. Paragraph Three of the Amazon Terms of Service / BSA is all about the Terms and Conditions as it pertains to Amazon Sellers and obtaining suspended Sellers’ reinstatement through the writing of a Plan of Action or POA or Amazon Appeal. The prior Amazon TOS stated that any Amazon Seller Account could be suspended for any reason at any time. Now, Paragraph Three has changed that….or has it? CJ Rosenbaum breaks down the new TOS. Subsection A Amazon is supposed to give 30 days’ notice before it suspends an Amazon Seller or an Amazon Seller’s listing. Subsection A of Paragraph 3 of the new Terms of Service TOS contains a huge exception to Amazon’s new 30-day rule. Amazon created loopholes to allow it to avoid giving suspended Amazon Sellers 30-day notice. In many ways, the exceptions to the 30-day rule are bigger than the 30-day rule itself. There are also many good aspects of this subsection that we can use in writing Amazon Plans of Action (POA). Material Breach The first huge exception in the new Terms of Service TOS is that Amazon can immediately suspend an Amazon Seller or his or her Amazon listing if Amazon thinks there has been a Material Breach of the TOS. There is specific law on what is “material” and what is “immaterial.” Identifying and arguing in your Plan of Action POA what is material or significant versus what is immaterial or insignificant will be vital for suspended Amazon Sellers. Amazon fails to define what it means in terms of the Amazon Plan of Action (POA). If suspended, you can argue & use Amazon’s new TOS to your advantage. Amazon’s New TOS provides time to “Cure” The word “cure” is a legal term. Cure means to make it right. It does not mean turning back the clock and removing conduct. It is remedying it. Time to “cure” is the ability to fix the problem. That is what the legal term “cure” means. If you were in material breach and cured as soon as you found out about it, you should be in compliance with the new TOS. The ambiguity in Amazon’s new TOS provides arguments for suspended Amazon Sellers to assert in a Plan of Action. Subsection A states that Amazon will use “reasonable discretion” in making decisions. “Reasonable discretion” is legalese. If you had an intellectual property complaint asserted against your Amazon Sellers’ account, a Rights Owner complaint, and your Amazon Seller Account was suspended for a product you never sold, it seems “unreasonable” for Amazon to suspend. The new TOS creates gray areas and judgment calls on what is reasonable and what is not. You can argue suspensions are unreasonable when Amazon’s FBA team put a product back into your inventory after a return. It is unreasonable to harm a Seller for an FBA error.

Terms of Service: Paragraph 3B: Suspended Accounts & Listings

Amazon’s New Terms of Service for Sellers: Paragraph 3: Amazon Account Suspensions

The third paragraph of the new Participation Agreement discusses how Amazon account suspensions will now be handled moving forward.

As far as the language goes, it seems better than it actually is. Some significant improvements have been laid out by Amazon for their sellers.

30 Day Suspension Notices

In the new Amazon Terms of Service (TOS), sellers are given a convenient 30 day advance notice before any account suspension is handed down. It sounds all well and good. You are given a month to resolve any issue before your seller account becomes suspended.

However, Amazon laid out 3 key points which they can use to justify a suspension without notification:

You have materially breached the Agreement and failed to cure within 7 days of a cure notice unless your breach exposes us to liability toward a third party, in which case we are entitled to reduce, or waive, the aforementioned cure period at our reasonable discretion.

Your Amazon seller account will be suspended if you have materially breached the Participation Agreement and failed to resolve it within 7 days after the receipt of a Cure Notice from Amazon. However, Amazon reserves the right to suspend you immediately, without the Cure Notice, if the breach exposed them to liability toward a third party. For example, if they are at risk of being sued because of the violation, then they can render the suspension right away.

Your account has been, or our controls identify that it may be used for deceptive or fraudulent, or illegal activity.

If you have been doing anything deceptive, fraudulent or illegal with your account, or Amazon believes you have, Amazon has the authority to suspend your seller account without the 30 day notice. However, if you are abiding by the rules, then there is no reason why you should be affected by the first two key points.

Your use of the Services has harmed, or our controls identify that it might harm other sellers, customers, or Amazon’s legitimate interests.

Amazon may suspend or terminate your use of any services immediately if they believe you may inflict harm on any of their sellers, customers or their legitimate interests. If you do anything they do not like, Amazon can simply revert to that provision and render the account suspension, without the 30 day notice.

Sending out a 30 day notice is a good step forward for a lot of sellers. Now, they do not have to worry about their accounts being frozen or their money not being transferred into their account. Sellers can no longer be arbitrarily suspended for an unknown reason without notification. Amazon is taking the right steps in the right direction. However, the 30 day notice does not apply to everyone. Amazon (at any time) may refer back to the third key point and tell you your products are harmful. Again, if this happens, they can automatically render a suspension, without the 30 day notice.

The best thing to do if you’re suspended is to send us a message.

Find out how we can help you effectively and efficiently. Send us all the information we need for us to write a decisive Plan of Action (POA). We may not be able to get your account reinstated right off the bat, but we can execute strategies that we have used in previous attempts to ensure that your seller account has the best chance of being reinstated.

Paragraph 3 Loopholes in the New TOS:

Amazon’s latest language in the Terms of Service / Participation Agreement / Business Solutions Agreement

The Business Solutions Agreement (BSA) is the controlling contract between every Amazon seller and Amazon. There are many people and companies that charge suspended sellers to write Plans of Action (POA) without knowing what the governing agreement is or what the terms of the contract mean.

Paragraph 3 of the Amazon Terms of Service is all about the Terms and Conditions as it pertains to Amazon sellers and obtaining suspended sellers’ reinstatement through the writing of a Plan of Action or Amazon Appeal. The prior Amazon TOS stated that any Amazon seller account could be suspended for any reason, at any time. Now, Paragraph 3 has changed that…. or has it? CJ Rosenbaum breaks down the new TOS.

Subsection A of Paragraph 3 contains a huge exception to Amazon’s new 30 day rule.

Subsection A states that Amazon will use “reasonable discretion” in making decisions. “Reasonable discretion” is legalese. If you had an intellectual property complaint asserted against your seller account and your account was suspended for a product you never sold, it seems “unreasonable” for Amazon to suspend. The new TOS creates gray areas and judgment calls on what is reasonable and what is not. You can argue suspensions are unreasonable when Amazon’s FBA team put a product back into your inventory after a return. It is unreasonable to harm a seller for an FBA error.

Material Breach: The first huge exception in the new Terms of Service is that Amazon can immediately suspend a seller or listing if Amazon thinks there has been a Material Breach of the TOS. There is specific law on what is “material” and what is “immaterial.” Identifying and arguing in your Plan of Action what is material or significant versus what is immaterial or insignificant will be vital for suspended Amazon sellers. Amazon fails to define what it means in terms of a Plan of Action. If suspended, you can argue and use Amazon’s new TOS to your advantage. Amazon’s New TOS provides time to “Cure.” Cure means to make it right. It does not mean turning back the clock and removing conduct. It is remedying it. Time to “cure” is the ability to fix the problem. If you were in material breach and cured as soon as you found out about it, you should be in compliance with the new TOS. The ambiguity in Amazon’s new TOS provides arguments for suspended sellers to assert in a Plan of Action.

Deceptive, fraudulent or illegal activity:  In the second section of paragraph 3 of the new Amazon Terms of Service, Amazon retained a huge loophole where it will not provide advance notice to sellers. Here, if Amazon claims that you have been using your account for “deceptive, fraudulent or illegal activity,” Amazon will suspend you without 30 days notice.

This will then require a Plan of Action. Amazon does not clearly define what it means by “deceptive, fraudulent or illegal” activity. This failure to identify what “deceptive, fraudulent or illegal activity” refers to leaves the door wide open for Amazon to suspend without notice and also leaves the door wide open for creative arguments in Plans of Action and Amazon appeals if a seller is suspended.

For example, if a seller is accused of infringing on someone’s intellectual property rights, that is arguably illegal activity. Amazon may suspend the seller immediately. On the other hand, if there is no violation of any criminal law, then the seller did not, arguably, engage in any illegal activity. “Fraud” is a legal term and has legal significance. We can use the legal definition in Plans of Action to help get sellers reinstated. Amazon’s failure to identify who determines whether an activity is fraudulent, deceptive, or illegal is also both good and bad for sellers. It is bad because Amazon will suspend people / companies without any significant determination. Amazon’s failure to be clear is good for sellers because it leaves open many arguments to be made in POAs and appeals.

Amazon Claiming Harm:  In the new Business Solutions Agreement, Amazon is getting around this well-publicized 30 day notice. We don’t know what “harm” means. Does that mean the $4.99 that people bought the toy with, is that the harm, or is it some type of physical harm? We have been successful in showing that Amazon cannot demonstrate any actual harm at all in arbitration. And we need to work that into our POAs because Amazon claimed in one case, they lost $2 million. How much did Amazon make the week before this occurred? I don’t have that number. How much has Amazon made the next week? Has Amazon made more money, week over week, quarter after quarter, for the last 10 years? The answer is consistently yes. So they can’t show any harm. So if Amazon’s claiming harm to it, I think that opens the door to a lot of persuasive arguments by using their own contract issues in your Plans of Action, which I think is a really good idea.

As a law firm, we can analyze the heck out of this contract and then find things that Amazon didn’t do on your account and use that in a POA to get you reinstated. Amazon is also reserving the ability to not tell sellers why they’re suspended. If we see Amazon telling sellers what the problem is in 20% of the suspensions, I think that’d be a great thing. I think it’s more unlikely that that will be, I think it’s more likely it’ll be very similar to the way it is now. It just sounds a little bit better the way it’s worded here. I think by them spelling out when you get notice and when you don’t, we can use that against Amazon in a persuasive way. Not like in a negative way, but in a really persuasive, positive plan of action that you should’ve been given notice because it was not a material breach. Amazon was not at risk of suffering any harm, so therefore you should have received notice. A lack of notice would mean that you got reinstated.

Please make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Terms of Service: Paragraph 3C: 30 Day Notice Before Suspension

In the new Terms of Service that Amazon imposed on all Amazon sellers, Amazon promised their sellers that it would give a 30 day notice before an account suspension or Amazon listing suspension would occur. However, Amazon created three huge loopholes that are so broad that we broke this portion of our videos on the new terms of service into three separate sections: loophole A, loophole B, and loophole C.

In the new terms of service which is also called the Business Solutions Agreement, Amazon is getting around this well-publicized 30 day notice. We don’t know what that harm means. Does that mean just the $4.99 that people bought the toy with, is that the harm ,or is it some type of physical harm? We have been successful in showing that Amazon cannot demonstrate any actual harm at all in the arbitration. And we need to work that into our plans of action because Amazon claimed in one case, they lost $2 million. How much did Amazon make the week before this occurred? I don’t have that number. How much has Amazon made the next week? Has Amazon made more money week over week, quarter after quarter for the last 10 years? The answer is consistently yes. So they can’t show any harm. So if Amazon’s claiming harm to it, I think that opens the door to a lot of persuasive arguments by using their own contract issues in your plans of action, which I think is a really good idea.

Also, I thought in this subparagraph C that they have, a notice is going to get sent to seller’s, email, seller central, right? As a law firm is that we can analyze the heck out of this contract and then find things that Amazon didn’t do on your account and use that in a plan of action to get you reinstated. Also, Amazon is also reserving in C the ability, again, not to tell sellers why they’re suspended. Okay? Which also, it’s not a really major change, but just that it’s back in here and this whole premise that we’re going to give sellers notice and tell you what’s going on. We hope it happens a bit. If we see Amazon telling sellers what the problem is in 20% of the suspensions, I think that’d be a great thing for sellers. Oh, I think that’d be fantastic. I think it’s more unlikely that that will be, I think it’s more likely it’ll be very similar to the way it is now. It just sounds a little bit better the way it’s worded here. And I think by them spelling out when you get notice and when you don’t, when you get an explanation, when you don’t, we can use that against Amazon in a persuasive way. Not like in a negative way, but in a really persuasive, positive plan of action that you should’ve been given notice because it was not a material breach. Amazon was not at risk of suffering any harm, so therefore you should have received notice. A lack of notice would mean that you got reinstated. That’s the information for this loophole, and please make sure you watch all three videos regarding the loopholes Amazon created where it will not give you a 30 days notice or the seven days to cure.

Amazon Terms of Service Explained: Paragraph 4: Private Label Sellers

Amazon’s New Terms of Service for Sellers: Paragraph 4: License

You grant us a royalty-free, non-exclusive, worldwide right and license for the duration of your original and derivative intellectual property rights to use any and all of Your Materials for the Services or other Amazon product or service, and to sublicense the foregoing rights to our Affiliates and operators of Amazon Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Materials (provided you are unable to do so using standard functionality made available to you via the applicable Amazon Site or Service); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).

The Business Solutions Agreement (BSA) is your contract with Amazon as an Amz seller.

Many sellers do not even know it exists. It used to be hidden in the definition section when you signed up for Amazon. It states that you should be responsible for learning and understanding whatever changes Amazon imposes upon you.

Paragraph 4 of the new BSA talks about licenses and intellectual property rights. It reads:

You grant us a royalty-free, non-exclusive, worldwide right…

It used to say, “perpetual and irrevocable,” which means forever and you can never retract it. The words “perpetual” and “irrevocable” have been omitted. What has been added instead is that you are waiving your rights to Amazon. Here is the quote:

For the duration of your original and derivative intellectual property rights.

It is basically the same thing. However, it does not seem to include your heirs. If you die and it has been passed on to your children or grandchildren, then they will own it instead of Amazon. It should have been “irrevocable and perpetual,” but the language has changed a little bit in favor of sellers, but not really because you are waiving absolutely everything for as long as you own it.

It does not also indicate what happens if you sell it, at least not yet. Amazon crossed out a lot of parts, including the right to reproduce, perform, display, etc., to take back more than what they gave you, they removed the phrase “Your Trademark” and changed it to, “Your Materials.” It is frightening that “Your Materials” will include not just your trademark and logo, but other things that you would not normally transfer to anybody else, your copyright material. There are many written materials with copyright protection which other companies cannot sell. However, if that is part of “Your Materials,” then, you are giving that to Amazon as well.

Also, included in, “Your Materials,” are your licenses. If you remember the days when you used to buy software on compact discs (CDs), you were not actually buying the CD, you were buying a license to use that software. If that license is part of “Your Materials” that differentiates you from what a hijacker may deliver. You are giving Amazon the contractual ability to be a hijacker on your product. We are not sure if this provision will rule, but we will definitely challenge it at arbitrations. You have to understand what your contract is with Amazon. This major change from “Your Rights” to “Your Materials” just broadens what Amazon can do with the information.

It also allows Amazon to rightfully (because you are signing over the rights to it):

  • Go around you and buy your products from your manufacturer or authorized retailers.
  • Use Amazon vendors to get your products, which may be real or counterfeit.
  • Take over your listing indefinitely.

As long as you own the rights, you are allowing Amazon to sell your products and use “Your Materials.” It also has certain contradictions in it. In the same portion of the paragraph, it says that Amazon will comply with your removal requests as to specific uses of your “Materials” because of your intellectual property rights. However, it again replaced “Trademarks” with the word “Materials.” Later on, in that same paragraph and sentence, it says, “Nothing in this agreement will prevent or impair our right to use your materials without your consent.” This paragraph is what we call “internally inconsistent.” It says you can pull out, but then it says Amazon can use your “materials” forever.

This paragraph also includes something that is interesting. It mentions “referential use under trademark law.” This pertains to using your Amazon trademark in a commentary, news program, or how-to guide.” For example, a guide on how to use a Sony camera, anybody can come up with instructions and use “Sony” in it. That is considered a “referential use.” Another example of “referential use” is writing an article reviewing the Sony camera. Amazon is not a beast, it is a retailer. In this paragraph, they are emphasizing their ability to act like a review company or a news article in using your Amazon trademarks without your permission.

The changes in this paragraph are significant. It allows Amazon to use all of your Marks, Licenses, and Copyright on all of Amazon-associated properties. It uses the word “Affiliates.” In any contract, you need to go back and look at the definitions. Amazon defines the term “Affiliate” as “any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.” Hence, Amazon Affiliates may refer to all of the different businesses that Amazon is involved in or may go into, in the future.

It is also reinforced by the definition of the term “Amazon-associated properties.” Amazon says:

That means any website or other online points of presence, mobile application, service, or feature, other than an Amazon site, through which any Amazon site, products, or services are available on any of them are syndicated, offered, merchandised, advertised, or described.

This is really a broad definition of how Amazon can use your intellectual property and anything included with your materials. It encompasses all of the Amazon sites around the world, including any other businesses that Amazon buys or owns. It also includes any place elsewhere where Amazon advertises.

This is a big change. This is broadening Amazon’s rights against you: to take what is yours.

This provision will not stand. You need to know about this provision, most especially, if Amazon has hijacked your listing or if they have allowed others to sell Amazon counterfeit products of yours. You need to know how to fight it, what your leverage is, and where the discrepancies are. You need to know what portions of the contract can be used to your advantage, should you have a problem with infringement in the future.

Please make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

ToS: Paragraph 5 & 6: Representations & Indemnification

Amazon’s New Terms of Service for Sellers: Paragraph 5 & 6: Representations & Indemnification

It is really important that sellers realize that the change in the language of section 5 expands and broadens the scope of a seller.

It originally used to use language such as “You” to specifically identify you, the third party seller. Now it’s referring to you and the entity that you’re associated with as a whole. Now, it’s not just about the representations you make to Amazon, but it’s about the representations the entity makes as a whole. Prior, it only pertained to the individual seller. Now, the entity is liable.

How that comes into play and how it affects sellers, there’s no more putting the blame off, putting the responsibility on maybe an employer or somebody else. The entity is held to that standard that the information they represent is truthful. I think this kind of places a duty on the president or the CEO of a company to make sure that they know they inform their employees as to who is specifically authorized to act on behalf of the corporation when they’re transacting business with Amazon.

In section 6, on a very basic level, indemnification is the process of a party having another party indemnify it from its liability.

So one party will come in and pay the other party the expenses that it incurred in liability in legal action. So, to make it easier for sellers to understand, Amazon will let you sell any product you want for the most part, as long as it’s compliant with their policies. Amazon doesn’t want to be responsible, and they’re not paying if somebody gets hurt. Do you want to sell something that’s inherently dangerous? It’s on you to represent them, you to hire the attorney, and you to make sure Amazon pays nothing.

I’d like to dig a little bit deeper into the changes in the indemnification language in the BSA agreement. Under the old BSA agreement, a third party seller was solely responsible for representing both themselves and Amazon as well. The way it would work under the old agreement was that if a person screwed up in representation, then Amazon would just sue that third party seller after the fact. Amazon’s only recourse was to sue the seller for the amount of money they had to pay, which they should not have by the BSA agreement. The new change, what it adds in is that Amazon, their counsel needs to sign off and consent to any settlement agreement or judgment entered into. Rather, if that case happens, at least they’ve done their due diligence and made sure that their attorney realized this is a fair judgment. This is good. Everything worked out in the settlement. It’s essentially they trust you can go out and hire a lawyer, but they’re going to put their sharks on it as well (like a big brother) and oversee the case to make sure it’s being settled properly.

I think that’s one of the key things that this paragraph was added to. Again, I think a lot of these changes come from our cases against Amazon and a particular one when they said that they didn’t actually indemnify hold harmless, I think Amazon just didn’t like the language in the settlement agreement. So I think what Amazon’s lawyers are going to do is that they’re going to want to try and get admissions that Amazon had no role, that Amazon was not the retailer, that Amazon is going to use this to cover their behind even more than they do now. But that’s not bad for sellers. It’s really not bad to have Amazon’s lawyers look over the agreement. It’s not going to cost the seller anything, at least we hope not, and they’re pretty smart people. Also, the fact that they want to look at it and sign off on it is a good thing. I don’t think they have to put the kibosh on resolutions and settlements. Certainly if it’s done well and they have no liability, I think that they’re going to give it a once over as well. I think that’s where it’s going with this.

If you’ve been suspended on Amazon or have any questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph 7A: Disclaimer & General Release

Amazon’s New Terms of Service for Sellers: Paragraph 7A: Disclaimer & General Release

Amazon is an ecommerce giant. They have dominated the industry for so many years. This made them realize that they are exposed to more claims and liabilities as their company grows. Thus, they made sure all measures are in place to protect their interests.

Just recently, they have made changes to their TOS. However, it can be noted that Paragraph 7 remains unchanged. This paragraph focuses on their Disclaimer and General Release Statement:

THE AMAZON SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.”

The first sentence in the same paragraph emphasizes that when you accept to use the service, and participate in using it, you should take it as-is.

No later claims are allowed. You can never tell Amazon, “Oh, I thought this service would include a specific feature,” or, “I am dissatisfied. I want to invalidate this contract because I thought it included another portion of a selling feature that I wanted.” You are contractually required to accept it as-is. There are no extra guarantees that Amazon is providing in this provision.

In general, this is Amazon’s way of protecting itself from sellers who claim they do not know anything about the Terms of Service. In this paragraph, Amazon makes it clear that as a seller, you should take full responsibility to know what is in the Participation Agreement and abide by it.

AS A USER OF THE SERVICES, YOU USE THE AMAZON SITES, THE SERVICES, AND SELLER CENTRAL AT YOUR OWN RISK.

The next sentence releases Amazon from any future claims or liability that may arise from the use of their services. Using Amazon at your own risk means that you are solely responsible for any disputes that may be filed against you by another seller or company.

It can be concluded that Paragraph 7 was unchanged to further release Amazon from all forms of claims, even ones caused by their negligence. In the end, Amazon is not liable for anything even if they are at fault. This sounds unfair, but this is what Paragraph 7A clearly states.

WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.

The last portion of Paragraph 7A makes it clear that Amazon is not liable if there is a flaw or error in their system. If for whatever reason Amazon’s selling platform goes down, has a server crash, and leaves you unable to process any sale, it is not their problem.

By entering into the new Participation Agreement, you are aware that errors in the software can occur. And, if they do, Amazon is not liable for the damages that follow. This provision is obviously not great for sellers. However, this is what you agreed to when you signed up to sell on Amazon.

Call for a free consultation: 1-877-9-SELLER.

Please make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph 7B: IP Rights Owner Complaint Dispute

Amazon’s New Terms of Service for Sellers: Paragraph 7B: Disputes

Amazon is one of the biggest online selling platforms. They deal with millions of transactions daily. Thus, disputes among parties involved in these transactions can never really be prevented.

This section basically states that if any sort of dispute arises between more than one participant (Seller A vs. Seller B, or Seller vs. Buyer), each participant releases Amazon of all liability.

Paragraph 7B of the new Terms of Service (TOS) releases Amazon from these disputes:

BECAUSE AMAZON IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES AMAZON (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

As per this provision, if any sort of dispute arises between more than one participant, each one releases Amazon of all liability. That includes any claims, demands, and damages of every kind, known and unknown, suspected and unsuspected.

In general, Paragraph 7B makes it clear that Amazon is not involved in any of the transactions. They only serve as a platform to make the transactions possible. If there is any sort of dispute among the involved parties, it will remain only between them. Amazon will never be held liable for those disputes.

There are various types of disputes that may arise depending on the transaction. Some of these disputes include copyright infringement, product liability, etc. For example, if one of your buyers were injured while using your product and they decide to file a lawsuit for personal injuries, Amazon will not be held liable. By agreeing to the Amazon Terms of Service (TOS), you are required to release Amazon from any such claim.

Call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph 8: Amazon Placing Liability on Third Party Sellers

Amazon’s Terms of Service for Sellers: Paragraph 8: Limitation of Liability – Amz Placing Liability on 3rd Party Sellers

In the Business Solutions Agreement, section eight, titled Limitation of Liability, was not changed in the slightest. Amazon kept this section entirely the same as it was in the previous BSA.

Essentially, what it says is that they will not be liable whether in contract, warranty, tort, to you or any other person for pretty much any reason they bring up in contract, warranty, tort, negligence, or product liability.

If you buy a product on Amazon and you get injured from it, you cannot go after Amazon. Amazon is limiting their liability. Now, that doesn’t mean that you can never retain any sort of compensation from Amazon. We find that a lot of our clients that go to arbitration – if you have a strong enough case, they will usually settle the case for a certain amount of damages depending on the specific circumstances, but it’s almost like a catch-all. It almost serves as something that Amazon wants to have in there just in case.

There’s even a part in here that says,

“Even if Amazon has been advised of the possibility of those costs or damages,”

they’re still not liable. It also brings up aggregate liability arising out of, or in connection with this agreement. Again, Amazon is really just trying to limit any potential liability they have. They’re such a massive platform. There are thousands and thousands and thousands of transactions each day. There’s bound to be some problems. Someone’s going to get injured, someone may be negligent.. There could be all sorts of issues. In short, Amazon is limiting their liability. That is what this section is all about.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph 11&14: Transaction Info Confidentiality Anti Trust

Amazon’s Terms of Service for Sellers: Paragraph 11 & 14: Disclosing Amz Transaction Info. & Confidentiality

Amazon is very adept at changing their contracts constantly in a way that protects Amazon from liability.

So, as we’re going through it paragraph by paragraph in the agreement, as a whole, we saw the entire thing was deleted – and there’s no way Amazon was giving up an entire paragraph of anything. Instead, they seem to have consolidated it. So let’s start with what was crossed out in 14 and then we’ll go back to how it’s been beefed up in paragraph 11.

Paragraph 14: Sellers will not disclose any Amazon transaction information.

I don’t see here where it says what transaction information means. To me, that can mean pretty much anything from making a sale to any sort confidential information. So it’s a wide range for what that could mean. We’ve seen this issue come up at arbitrations where you have a seller who Amazon’s not paying or they’ve suspended, they released that information to somebody else like to an employee, a staff member, or a consultant who doesn’t have attorney-client confidentiality. Then Amazon uses that later on to justify their conduct that says, “Hey, you weren’t supposed to reveal how we do business and you did. You gave it to a consultant. The agreement says that you cannot do that.” They’ll look for the correspondence because further down in paragraph 14, it talks about disparaging communications. So, these are some of the ways Amazon will often fish for reasons to have you suspended or to have kept your money. They’ll talk about the provisions in paragraph 14 to use it to harm a seller after they’ve already taken away your inventory, withheld your money, kicked you off the platform, and all sorts of things like that. So that’s the substance of paragraph 14.

Paragraph 11: How Amazon has rebuilt in its own protections.

So for paragraph 11, it’s all about confidentiality and they add personal data into the subject line. They also again remove Amazon transaction information. Some are good for sellers, some give us a lot more wiggle room in terms of plans of action. They are also tightening up loopholes that we’ve been using for years against Amazon. So, they’ve taken the transaction confidentiality out of 14 and stuck it into paragraph 11 where you’re still not supposed to reveal what goes on between you and Amazon because Amazon cannot prevent you from talking to your accountant about it. They can’t prevent you from talking to people within your entity which is a great reason to use corporations for Amazon accounts. And they certainly cannot come down on you for revealing it to your lawyer. Also that you can’t reveal it to the government which I don’t think was in the last one. So they made sure to include that as well. We think this is part of the whole antitrust issue that Amazon faced a few months ago and where Amazon voluntarily released sellers that obligation that you can’t sell your products any place else cheaper than you sell on Amazon, which is antitrust.

The reality is, sellers don’t have much information from Amazon. If you’re an Amazon vendor, you don’t find out about the intellectual property complaints, the counterfeit complaints that Amazon receives and keeps track of. You don’t find out about a lot of the complaints that Amazon receives. In paragraph three of the new business solutions agreement, as a seller, you should keep fulfilling orders even though Amazon may not release your money, and in this paragraph, it conflicts with paragraph three because it says that obligations continue five years out.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph 12: Force Majeure

Amazon’s Terms of Service for Sellers: Paragraph 12: Force Majeure

Today I want to talk about one of the shorter provisions which are found in paragraph 12 which is referred to as the force majeure clause.

Force majeure is just a fancy way of saying superior or intervening force and it’s actually a contract term that refers to events that are outside of the control of the party.

Paragraph 12 force majeure states,

We (as in the Amazon) will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events, or other matters beyond our reasonable control.

So basically what this means is that if there’s something like a strike or a riot or more commonly, an act of God, which legally refers to things like hurricanes or tornadoes or other natural disasters, that Amazon cannot be found liable for their failure to perform in those situations.

This is a pretty standard clause in contracts, but what’s interesting is that the right usually extends to both parties, but here, Amazon specifically states that the right applies only to them. Now this is interesting and again seems one-sided, but on a positive note, our firm has seen that Amazon will work with sellers if they are affected by something like a snowstorm or a natural disaster. Typically, for example, if a fulfilled by merchant seller has an issue with shipping products out as expeditiously as they should during a blizzard, a well-written plan of action will usually work to get Amazon to resolve the issue with the seller.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph 13: Relationship of Parties

Amazon’s Terms of Service for Sellers: Paragraph 13: Relationship of Parties

Section 13 goes to define the relationship between parties. There were no changes made to this segment. However, I’m still going to go ahead and define what it means for sellers.

So essentially, by entering into this service agreement, you are now engaging as an independent contractor.

You’re not employed by Amazon, you’re responsible for your own taxes, and you’re simply providing a service under a contract. This segment explicitly states that there is no partnership created by the signing of this agreement, hence, two or more people entering into owning a company with the intention to share profits and authority.

It’s explicit you will have no authority to act on behalf of Amazon.

And finally it states it is non-exclusive. So the relationship you enter into with Amazon is one as an independent contractor, and that is the purpose of the clarification made in Section 13 of the BSA agreement.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Terms of Service: Paragraph 14: Suggestions & Other Information

Section 14 is suggestions and other information. There were no changes in the preexisting BSA from then to now, but I will go ahead and define what this section means. This section essentially states if you or your affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to use in connection with Amazon services, Amazon has the right to do whatever they want with it. They can go ahead and use it, they can market it, they can disclose it to another individual. So any potential improvements or suggestions or ideas you present to Amazon, things you might think might make them make their system more fluid, they have the right to do whatever they want with that information. So sellers should be aware of this before giving them any such advice or suggestions on services. In addition, Amazon states that in cooperation with any governmental agency, potential lawsuits, they have the right to disclose such information as well as the information contained by the sellers in their system. Essentially, that’s all that encumbers section 14.

ToS: Paragraph 14: How Sellers Should Be Wary What They Post

Amazon’s Terms of Service for Sellers: Paragraph 14: Suggestions & Other Information

There were no changes to the BSA in this section. This section essentially states if you or your affiliates elect to provide or make available suggestions, comments, ideas, improvements, feedback or materials to use in connection with Amazon services, Amazon has the right to do whatever they want with it.

They can go ahead and use the information, they can market it, they can disclose it to another individual.

So any potential improvements, suggestions or ideas you present to Amazon, things you think might make their system more fluid, or anything else, they have the right to do whatever they want with that information. Sellers should be aware of this before giving them any such advice / suggestions on services.

In addition, Amazon states that in cooperation with any governmental agency or potential lawsuit, they have the right to disclose such information as well as the information contained by the sellers in their system.

What Amazon is implying is that any information that you put out on the platform is ultimately theirs and they own those rights. We always want to inform our clients and any sellers in general, to always be wary of this and whatever information they post. This is just another thing to look out for when you are selling on such a big online platform like Amazon. All that information that you post is not safe.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

ToS: Paragraph 16: How Related Account Suspensions Can Occur

Amazon’s Terms of Service for Sellers: Paragraph 16: How Related Account Suspensions Occur

What this section is saying is that the seller is always responsible for their password to their account.

You are only allowed to give out your password if a third party is authorized, and you are solely responsible for any action taken under your account. So pretty much, Amazon won’t be taking the blame if someone gains access to your account – if it’s accidental or intentional.

It’s always important that you don’t give this information out, even to employees. You could run into issues. I know Dana recently had a case she was working on where this specific scenario occurred to one of her clients. It was a related account suspension. What happened was our client have access to a third-party service, who was their business manager. Unfortunately, the business manager ended up signing onto their account with their password but was also doing the same thing with other clients. So everybody was flagged for related accounts. Although we had to appeal to Amazon for this, and it did take a few tries for Amazon to respond, them saying that you are allowed to give it out to a third party that’s authorized… It’s a little confusing because if the third party accidentally signs on from the same IP address as another client, then they’re flagged for related accounts. That’s a really hard suspension to come back from. We do have trouble winning those. We also have some success, but when it’s issues like this, sometimes it takes a while for Amazon just to understand specifically what happened.

This paragraph is definitely important for sellers to know how Amazon treats security issues because as part of the arbitration team, I’ve seen several sellers who are unfortunately victims of hacked accounts. We’ve seen how Amazon treats these situations.

So once again, Amazon is excusing itself from any liability. This is interesting because even though Amazon is limiting their liability, we once again on a positive note, see that in situations where an account is hacked, that Amazon will act responsibly.

Now, what do I mean by that? We filed several arbitrations against Amazon specifically for this reason, that they allowed a seller’s account to get hacked, and that when a seller tried to act pursuant to the contract and change their password because they knew their account was hacked, Amazon was unable to resolve the issue for our client. When we file these arbitrations, we find that although the contract limits Amazon’s liability, Amazon is willing to amicably resolve the issue. I don’t think we’ve ever had a hacking case that actually went to a hearing. Anytime a seller has come to our firm stating that their account has been hacked, we’ve been nearly 100% successful in getting those sellers back to business.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph 16: Password Security

This paragraph has not changed substantially at all, but it is definitely important for sellers to know how Amazon treats security issues because as part of the arbitration team, I’ve seen several sellers who are unfortunately victims of hacked accounts, and we’ve seen how Amazon treats these situations. However, the new contract where the contract states that sellers are the ones solely responsible for maintaining their password security. So once again, Amazon is excusing itself from any liability to protect sellers. In this case in terms of the security of their accounts. This is interesting because even though Amazon is limiting their liability, we do once again on a positive note, see that in situations where an account is hacked, that Amazon will act responsibly. Now, what do I mean by that? We filed several arbitrations against Amazon specifically for this reason, that they allowed a seller’s account to get hacked and that when a seller tried to act pursuant to the contract and change their password because they knew their account was hacked, Amazon was unable to resolve the issue for our client. When we do file these arbitrations, we find that although the contract limits Amazon’s liability, that Amazon is willing to amicably resolve. And I don’t think we’ve ever had a hacking case that actually went to a hearing. Anytime a seller has come to our firm stating that their account has been hacked, we’ve been nearly or, I think, always 100% successful in getting those sellers back to business.

Terms of Service: Paragraph 17: Importance of Abiding by the Law

Amazon’s Terms of Service for Sellers: Paragraph 17: Importance of Abiding by the Law

This section of the agreement hasn’t changed, but we do want to give sellers some tips to better understand this specific agreement section, and to ensure that they don’t run into similar problems. This is probably a section that will not really ever be updated.

What it’s saying is that as a seller, you cannot violate United States embargoes.

For those of you that don’t know what that is, it’s just a ban on exporting goods to certain countries. So make sure to always look out for the law. That is definitely something that you can get in trouble for if you violate. You always want to abide by the laws, especially if you’re selling in the United States on that platform. But sellers can also run into issues on any other platforms or exporting goods to certain countries that are either banned by Amazon, or that have different laws than the United States.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Terms of Service: Paragraph 18: Changes to Expedited Arbitration

Amazon’s Terms of Service for Sellers: Paragraph 18: Changes to Expedited Arbitration

One of the most important features of the arbitration process is that it’s supposed to be fast and efficient.

Both cost-wise and time-wise for sellers. Amazon’s new contract is trying to take that away from the arbitration process. What I mean by that is there’s something called expedited arbitration. Not only is the arbitration generally supposed to be faster and cheaper under the rules with the American arbitration association, which is the company that Amazon chose, but they also created this thing for an expedited process. We’re going to be talking about how Amazon is trying to change the rules of the company that Amazon chose.

The first is that all claims for less than $75000 under the AAA’s actual rules are supposed to be adjudicated under the expedited procedures, which normally means that you’re entitled to a hearing within 30 days of the arbitrator appointment. It also saves sellers a boatload of money because the arbitrators are stuck at a flat fee, which is $600 per side rather than billing the sellers and Amazon by the hour. Amazon’s limiting those two features of the expedited rules in two ways.

One is that instead of having claims up to $75,000 per the expedited procedures, Amazon is limiting that claim amount to $50,000. It’s going to drive up the costs tremendously where it may or may not be worthwhile to seek between $50 and $75,000, you might as well go higher than that. Amazon’s new contract takes away the feature of the rule and makes it so that hearings are within 90 days of the arbitrator appointment, which literally makes the process three times as long.

Our prior experience indicates that Amazon didn’t permit sellers to sell or change ownership of their account, but the new assignment provision has a very loose definition of the word “affiliate” and says that Amazon will allow, if you get their written consent, sellers to assign the agreement to any of their affiliates. It says,

“With respect to any entity, any other entity that directly or indirectly controls or is controlled by or is under common control with that entity.”

So the assignment provision we think is actually very good for sellers. However, Amazon still has very strong unilateral provisions in its contract where you can sell the business and that the buyer can get shut down the next day. Paragraph 18 is the choice of law, dispute resolution, and the assignment provisions. It also has an interesting language that was in the prior BSA that’s been omitted from this new drafted version. The provision that’s been left out says,

“Amazon’s failure to enforce strict performance of any provision will not constitute a waiver of our right to enforce such provision or any other provision subsequently.”

What that means is if Amazon doesn’t give you notice that you’re doing something wrong under the old BSA, that means they could still suspend you without notice. The newest BSA took this language out, which kind of goes with the new termination paragraph that says that Amazon’s going to give sellers a right to appeal within 7 days of notice of an issue with their account.

Amazon does say they’re going to give you 30 days’ notice. That was the big splash in the news. There are 3 huge loopholes that Amazon has reserved for itself. Amazon has all the rights, sellers have practically nothing, and we use that one-sidedness to argue to arbitrators that portions of the contract should not be enforced against the seller because it’s so terribly unfair.

What is the new term of interest that Amazon has put in? It says,

“Amazon retains the right to immediately halt any of your transactions, prevent or restrict access to the services, or take any other action to restrict access to or availability of any listing in inappropriate categories, any unlawful items, or any other items prohibited by applicable program policies.”

So to me, Amazon made a new termination paragraph and then in paragraph 18 all the way down at the bottom, they had this language saying, “Oh, by the way, we can do whatever we want to you.”

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: Paragraph F4: Compensation & Moving Inventory

Amazon’s Terms of Service for Sellers: Paragraph F4: Compensation & Moving Inventory

Moving forward, Amazon will not reimburse you if you are an FBA user and your products are damaged or your inventory is lost.

They will, however, compensate you. When you think of compensation, that could be anything. Amazon has changed the language. If we know anything, Amazon changes the language to protect itself. Reimbursement always seemed to be the cost of it. There was a whole provision in place that you would get reimbursed the sale price, less FBA fees. But now it’s saying ‘compensate’. We don’t know exactly how Amazon’s going to play this out. Compensate could be like giving you a gift card, or maybe lowering fees, or doing some type of an offset. We really don’t know how that’s going to play out, but it’s certainly a provision that’s important for Amazon sellers to be aware of.

Amazon has kept a sentence that says they may move units among facilities, which to me makes it really difficult for sellers to opt-out of commingling. Also, Amazon shipping it from New Jersey to New York, Connecticut, Massachusetts, and all of a sudden your products are getting banged around, they’re getting damaged, and you’re going to get dinged with a used sold as new or other complaint. That’s still in the paragraph. Well, it’s still on this reimbursement compensation. Amazon used to take liability for any reimbursements. At this point, now that they’ve gotten rid of that completely, they might compensate you.

What’s going to be the factors for Amazon’s decision, whether they’re going to compensate you or just kind of screw sellers out of the value of their products? We don’t know exactly how this is going to play out, but these are some of the issues that Amazon sellers face. I see it from our perspective of writing plans of action for sellers that we are going to need to argue that they should compensate or they’re required to compensate for whatever reasons and argue the provisions of F-4 when they owe sellers money. That’s definitely something that we have to figure out.

I think we can win these arguments. I see the more broad Amazon makes these paragraphs, the better it is for us to come up with creative arguments and appeals. I noticed that Amazon changed its reservation of rights in terms of limiting inventory on its shelves as stepping back a bit and making it even harder for sellers to interpret when Amazon will or will not refuse inventory. It also flies in the face of the main news that came out of this change that Amazon was going to start giving sellers more notice of issues and more opportunities to be heard and more opportunities to appeal. But the language change in F-4 regarding storage is taking away from that. Is it going to cover wholesale costs? Is it going to cover retail, less FBA? Is it just going to be something else that’s not liquid? I mean, we just don’t know yet.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

Amazon Terms of Service Explained: S6: How Gaining Control of Listings is Problematic

Amazon’s Terms of Service for Sellers: Paragraph S6: How Gaining Control of Listings is Problematic

So originally, this section was about control of Amazon’s sites, but it has recently been changed to Amazon’s website and services. So we do think some sellers will run into issues with this portion of the document being a little bit too vague and open to interpretation. It could be very misunderstood. It’s not really clear what Amazon is requesting. It almost seems like Amazon is going to give sellers more control over the listing page. So the way that it’s worded makes Amazon insinuate that they will be giving sellers more control, but it also looks like they will be able to remove and suspend any access. They’re pretty much wording it in a way where they’re saying they won’t remove any access or privileges, but they have the right to do it. So this could definitely run Amz sellers into issues.

We do see a lot of listing suspensions or even IP complaints occurring as a result of the changes in this specific agreement. Also, this agreement mentions that Amazon will be assigned rights and responsibilities for anything that’s on their website, which still is a way of Amazon saying they will have control over the listing pages.

If you’re trying to create a listing or join a pre-existing listing, we do think sellers will run into issues with this.

So all in all, I personally think that sellers are still going to have an issue gaining control of listings, even if they are the rights owner. They might even need prior approval from Amazon. So we do see it causing listing suspensions or IP suspensions.

If you’ve been suspended on Amazon or have questions about the new TOS, call us for a free consultation: 1-877-9-SELLER.

Make sure you watch all of our videos regarding the loopholes Amazon created in the new TOS.

If you’ve been suspended on Amazon, contact us for a free consultation: 1-877-9-SELLER.

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