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