By Lauren B. Aronson 

Subscription services for everything from food delivery to beauty products to exercise gear have grown exponentially in the past five years. Such services require consumers to enroll in a program to purchase goods on a consistent basis. They typically automatically renew, often on a monthly basis, and require customers wishing to cancel to take affirmative steps to avoid being charged. Marketers know that consumers often fail to take steps to cancel timely, which only benefits the marketers’ bottom lines.

With the explosion of subscription business models, consumer complaints have skyrocketed as well, with consumers complaining that the terms of the negative option offer – an offer that interprets a consumer’s failure to take an affirmative action as an agreement to be charged – were not clearly explained. For example, consumers have complained that were not told they would be charged each month, were not adequately reminded of how to “skip” being charged each month, that prepaid credits expire without notice, and that it can be difficult to cancel. Thus, subscription businesses have faced increasing regulatory scrutiny and all advertisers that offer products or services that automatically renew should pay close attention.

Read full article and learn more about ROSCA here.

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance trainer in the World, for a one-of-kind, completely free online compliance workshop. Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

Online Resellers

By Chip Cooper, ESQ

Recent case law confirms once again: if online agreements are presented properly to end-users, they're  legally enforceable.

This continuing trend is good news for websites that contract with registered users though SaaS Agreements, Membership Agreements, Subscription Agreements, Terms of Sale, Content License Agreements, and the like.

Why?  Among other things, this means that important legal disclaimers and limitations of liability are legally enforceable.

But what about liability exposure arising out of customer contracts entered into by your resellers?  Are you liable for actions of your resellers?

The Direct Revenue Case

In the case of People v. Direct Revenue, the New York Attorney General in 2008 attempted to nail Direct Revenue for its distribution of software that served pop-up advertising software on consumers' computers.

Direct Revenue is in the advertising business. Its software client serves pop-up advertisements to consumer's computer screens through the Internet. Direct Revenue does not charge fees to consumers. Instead, it charges fees to the companies whose products it advertises.

It's interesting to note that one line of attack by the New York Attorney General focused on Direct Revenue's “click-wrapped” (where the user clicks on “I ACCEPT”) end user license agreement (EULA) and Direct Revenue's alleged deceptive and illegal practices. The court granted Direct Revenue's motion to dismiss the claims noting that sufficient disclosure was given in the EULA, and the required elements for an enforceable agreement were followed.

Having failed with its first line of attack, New York's additional line of attack focused on the customer agreements of Direct Revenue's resellers in an attempt to hold Direct Revenue liable. The result was the same as with the EULA — Direct Revenue was held not liable.

New York conceded that Direct Revenue's resellers were independent contractors rather than agents. Generally, a principal is not liable for acts of an independent contractor due to the lack of control over how the contractor's work is performed. In addition, the court noted that Direct Revenue's software distribution agreement required its distributors to obtain consent of consumers consistent with the EULA and prohibited distributors from holding themselves out as agents of Direct Revenue.

New York argued that Direct Revenue should be liable because   its servers  interacted  with the  consumers' computers in the software installation process. The court pointed out that participation in installation was not enough for liability in the absence of participation in deceptive conduct that induced the installation.

Finally, New York argued that Direct Revenue should be held liable for the actions of its resellers on the ground that Direct Revenue ratified the conduct of its resellers. The court ruled that mere knowledge of consumer complaints was insufficient to impose liability on Direct Revenue, especially in light of the fact that when Direct Revenue had actual knowledge of a reseller misconduct, it took steps to remedy the problem.

Conclusion – 3 Tips To Avoid Liability For Actions of Resellers

Potential liability for acts of online resellers is a major concern of ecommerce businesses which use reseller networks.

The Direct Revenue case teaches us that ecommerce sites may not be held liable for actions of their resellers if these 3 tips are followed:

• if you transfer anything to a user's computer, require your resellers to obtain consent of end-users consistent with your EULA – this means consent in clear and easy-to-understand (not deceptive) terms,
• prohibit your resellers from holding themselves out as your agents, and
• if a reseller does engage in misconduct, take affirmative steps to deal with the situation, including termination, if warranted (particularly if the reseller's actions tend to indicate an agency relationship).

These 3 tips won't guarantee that you have no exposure, but they'll go a long way to protecting you from liability for actions of your resellers.

Here’s How To Make Sure You, Your Business & Website Is FTC

Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance trainer in the World, for a one-of-kind, completely free online compliance workshop. Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

By Chip Cooper, Esq.

Your membership site can land you in the FTC’s cross-hairs. Even if the FTC doesn’t breathe down your neck, continuity programs can run afoul of various state laws. And the penalties for non-compliance are steep. Warning: If you have automatically renewed offers or continuous subscriptions, your business is now highly regulated. This includes website memberships, online content with fees for access and newsletters. This is especially true if anyone on the membership list lives in California. 

Continuity or Negative Option Plans 

Continuity plans are those that have continuous subscriptions or automatically renewed payment for services. Continuity plans are also called negative option plans. The term negative option plan is used because you remain on the plan and billed for the products and services until you specifically opt out. This can be a problem if you don’t inform them that you don’t want their Elvis special or continue to get billed while waiting for them to process the cancellation. 
Continuity plans started to receive heavy FTC oversight when people began complaining about ten CDs for a dollar deals that turned into a $20 a month plan that they could not cancel. This is in addition to the ongoing complaints that people were forced to pay for something they did not want or only received refunds after they mailed back the item. 

The key feature of continuity plans is that the charges are either automatically renewed indefinitely or continue for a specified, predetermined time. 

You might think you aren’t subject to these rules because you aren’t selling CDs for a penny now to overcharge someone for CDs for the next three years. However, continuity programs take many forms, including several models used by internet marketers and online entrepreneurs. 

Common types of continuity plans used by online businesses include: 

• Membership sites

Membership sites may charge for membership or be free. Many manufacturers have free membership sites while marketing to members and increasing their sales by promoting special offers to members. Membership sites may charge an annual fee to remain a member or charge for a premium level of membership or services. For example, the basic access to LinkedIn is free, but the premium version popular with jobseekers requires payment. Many gaming sites are membership sites. A few games may be free, but paid membership is required to access most of the games. One definition of a membership website is that the website is the destination and product. Mistakes those setting up memberships make include lacking content, charging too much for the limited content and not having a plan to make money off their marketing to members. 

• Subscription sites

Subscription sites may offer content only to those who sign up. However, subscription sites tend to offer more than the online content. They may be able to download PDFs not available on the website or receive print newsletters in addition to online content. Subscription based sites are commerce based, specifically designed to increase product sales and provide a service to subscribers. 

• Software as a service

Software as a service is any software for which the consumer must make regular payments to continue using the software. Adobe triggered an uproar when it switched to the Software as a Service or SaaS model. No longer could someone buy an Adobe CD and install the software, owning it forever. Now they had to pay an annual or bi-annual fee to Adobe to use software they’d always used. IT firms like SaaS because it generates a continual income stream. They also say it makes new software rollouts simple because only the software app on the cloud has to be updated. 

Continuity Plans and ROSCA 

ROSCA or the Restore Online Shopper’s Confidence Act of 2010 was passed in response to consumer complaints of internet scams in the form of continuity plans. ROSCA contains three main rules for continuity plans: 

1. Continuity plans must clearly and conspicuously disclose the terms of the program before they can bill for it.
2. They must obtain express informed consent before they charge the consumer.
3. Cancelling the plan must be simple.

The FTC enforces the provisions of ROSCA, and violations of the act are treated like unfair or deceptive marketing practices. 

Nominal Fee to Pay Offers

The FTC has been busy enforcing ROSCA. In one case, the FTC settled for $359 million dollars, while the other was litigated with a penalty of $18 million. Both of these ROSCA cases involved nominal fee to pay offers. Consumers in both cases signed up in response to an offer with a low cost item, usually only the cost of shipping and handling for the first item. However, paying for shipping and handling gave the company the customer’s credit card information. 

After the free trial or free with shipping item sent, the initial offer was followed by an upsell. And when the free trial was over, the consumer’s credit card was regularly charged until the customer cancelled the offer. 

Lesson: If you are going to set up a nominal fee to pay offer, then your nominal fee offer as well as the upsell must have the required ROSCA disclosures. 

The Federal Trade Commission has clearly stated that even if the consumer is informed later or if the consumer accepts the nominal fee offer, it is considered a deceptive marketing practice if ROSCA disclosures are not provided with the call to action. 

California SB 340 – California False Advertising Act 

SB 340 amends the California False Advertising Act, addition new requirements to that state’s laws on continuity plans. 

• A clear and conspicuous display of written terms must be shown near the request for consent. A check box next to a link to the terms isn’t good enough.

• An acknowledgement of renewal terms, the cancellation policy and instructions how to cancel must be shown.

• A clear and conspicuous notice of material changes to the plan and how to cancel if the consumer doesn’t like the changes must be given.

California’s SB 340 is similar to ROSCA, but there are a few differences. The challenge for online entrepreneurs and internet marketers is how to comply with both laws. 

Note: If you offer a continuity plan and accept customers from California, you must meet both ROSCA and SB340. 

Recommendations to Avoid Being Creamed by Continuity Programs 

• Offer terms in written form, clearly separate by size, type and/or color of the surrounding text. Place it above the call to action.

• Place the terms in written form either above the place where consumers enter billing information or on a prior page. Make sure they have to read it before they sign up.

• Collect express, informed consent. This can be done with a required checkbox for “I agree to these terms” or an “I agree button” before someone can submit their billing information.

• Send an email acknowledgement after the consumer has given consent. Send an acknowledgement of the consent to the customer, as well as a copy of the offer’s terms, your cancellation policy and information on how to cancel it.

• Retain copies of these sent messages. It is legal protection in case someone says they were never given the terms of the agreement.

• Have a simple and easy to use cancellation mechanism.

• Process cancellations promptly. Never let them sit in an inbox while the customer gets billed for one more month.

• Send notice to all consumers when there is a modification to the terms. Send them clear and simple explanations of the terms and information on how to cancel if they don’t like the terms.

• If someone must spend at least a minimum amount before they can cancel the membership, state such up front.

What Happens if You Violate ROSCA or SB 340? 

What are the penalties if you violate ROSCA or California’s SB 340? 

• FTC penalties for ROSCA violations are up to $16,000 per violation. 
• California’s penalties can reach $2,500 per. 

Summary 

Membership websites are popular because they provide a continual source of income from members. Unfortunately, this revenue stream has been so badly abused by scammers that the Restore Online Shopper’s Confidence Act and California’s SB 340 were passed. Continuity plans are now a highly regulated industry, and the price for non-compliance is high. 

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance trainer in the World, for a one-of-kind, completely free online compliance workshop. Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.