What You Should Know About Commission Agreements

Many new businesses and start-ups find themselves discussing the legalities of a commission agreement but what exactly is it? What should you know before signing and how can you make a commission agreement work in your favour?

A Commission Agreement is a legal agreement between two parties where an Introducer brings clients to a business. The relationship benefits both parties because the Introducer is paid a Commission for introducing clients and the business (supplier) has the opportunity to increase sales. The agreement sets out how both parties will benefit from this arrangement.

A Commission Agreement is in some ways an agency agreement, where the Introducer is independent but acts on behalf of the Supplier. The Introducer cannot sign contracts on the Supplier’s behalf and does not sell their products or services. The relationship is purely about making the introduction and once this has happened the Supplier takes over the client relationship and makes the sale.

It basically sets out the nature of the relationship between the Introducer and Supplier and clearly states the rights and obligations of both parties. Under this Commission Agreement the Introducer is only paid once the new client enters into a contract with the Supplier. It is favoured as it allows flexibility in how Commission will be calculated, which is generally based on the income that the Supplier receives from the new client during a specified period of time, known as the Introduction Period.

It will cover introductions made when the agreement was in force even if the contract is later terminated. This means that Commission cannot be reneged on, which protects the Introducer. The Agreement also ensures that payments are only made to the Introducer on income that is actually received by the Supplier, which protects the Supplier in the event that they do not receive any or all of money due.

When written in plain English, it provides for a complete statement of the limits of the Introducer’s authority and sets a boundary between the two parties so that the Supplier avoids any unexpected obligations under the arrangements. It also makes clear what the Introducer’s authority will be when marketing to potential clients, e.g. within a certain sector or geographical area. This avoids situations where the Introducer oversteps their authority and also prevents competition with the Supplier’s own sales or marketing initiatives.

Many legal firms will supply a template for Commission Agreements, when choosing this avenue for your own ensure that it complies with the latest legislation. This includes the Bribery Act of 2010.

Short Sales: Can A Bank Make A Realtor Cut His Commission?

Can a bank force a real estate agent to reduce his commission on a short sale? When you talk to a bank negotiator reviewing a short sale package, one of the first things you’re likely to hear is “you’re going to have to cut your commission or closing fee”. This is to be expected from professional negotiators trained to use scare tactics in an attempt to minimize a bank’s losses. As of March 1, 2009, Fannie Mae loan servicers cannot require real estate brokers to reduce commissions below 6 percent as a condition for a short sale approval. Even without this recent rule change (which banks often ignore anyway), banks have no authority to alter the terms of a listing agreement, which is a binding legal contract.

Nobody can force an agent to lower his commission, but a bank rep can try to bully an agent or broker into lowering it voluntarily. Here are some of the phony reasons and intimidation tactics bank reps often cite or use to get an agent to lower his commission:

1. “The investor guidelines don’t allow us to pay more than X% for a commission.” Investor guidelines have no bearing on the legal contract a broker signs with a seller. The bank can’t cut your commission, but they have a huge incentive to try to scare you into doing it yourself.

2. “We’re not or our investor is not going to pay for that.” The reality is that in a short sale, the seller’s lender is not paying for anything. The seller’s lender actually receives a check at closing-the buyer or the buyer’s lender actually pays for everything.

3. “If you won’t lower your commission, then the seller will need to get another agent.” It’s up to the seller not the bank to choose an agent to represent them. If someone says this to you, turn the conversation around and ask the bank rep “Are you suggesting that the seller break the legally binding listing contract they signed?” They usually back off real fast.

Real estate is a people business and Realtors are accustomed to trying to make everyone happy. For this reason, agents frequently give in too quickly to unreasonable demands and banks know and exploit this tendency. When you stand up to the bank and calmly explain that under no circumstances are you going to lower your commission, the bank will normally give in. If the bank does not give in, tell them that they can continue paying the taxes and insurance on the property for a few more months or they can get this bad mortgage loan off their books by honoring the terms of your listing agreement.

Why should you accept a lower commission for doing more work? As soon as you start reducing the commission you are contractually owed, the bank is likely to ask you for a bigger concession later on. If the bank believes that they can take advantage of you, they will! Take your stand at the beginning of the negotiation. Banks usually back down-sometimes immediately, in other cases it may take some time. Regardless, as long as you have a good working relationship with your client, you can wait for the bank to come to its senses. Miraculously, banks tend to be much more cooperative and less likely to try to cut commissions the closer a property gets to a foreclosure sale, so stand your ground and get paid the amount that you have earned and are entitled to receive.

Website Legal Compliance – FTC Accelerates Crackdown On Fake News Sites

We’ve all seen headlines in search results like this one – “XYZ Exposed: Miracle Diet or Scam”. And perhaps we actually believed there was objective reporting or unbiased commentary behind the headline. But after reading the web page, it was clear that the headline was just a clever way to catch your attention and lure you to a sales page with an aggressive sales pitch.

The Federal Trade Commission (FTC) has seen these headlines too, and the FTC doesn’t think they’re clever at all. In fact, the FTC believes they constitute deceptive and unfair trade practices, as indicated by the FTC’s accelerated crackdown on affiliates of a popular diet drink with aggressive weight loss claims.

Modus Operandi

The modus operandi of these sites was to start with attention grabbing headlines such as the one listed above and these additional ones – “News 6 News Alerts,” “Health News Health Alerts,” or “Health 5 Beat Health News.”

The sites presented what appeared to be a skeptical commentator who raises the question of whether the diet drink is really effective. The commentator appeared to be objective; however, after a few paragraphs the commentator would conclude that use of the diet drink would result in a 25-pound weight loss in 4 weeks – all this without changing diet or exercise according to the FTC.

The prices for the supplement ranged between $70 and $100.

The FTC’s Claims

When the FTC originally initiated law suits against these sites, Charles Harwood, Deputy Director of the FTC’s Bureau of Consumer Protection stated: “We are alleging that nearly everything about these Web sites is false and deceptive”. In addition, the FTC pointed out that the defendants aggressively promoted the deceptive ads by spending millions of dollars for placement on high volume websites resulting in millions of views by consumers and substantial sales.

Specifically, the FTC contended that the offending sites –

* failed to disclose their material relationships involving the payment of affiliate commissions with the merchants of the products;

* failed to produce independent tests to support the claims made prior to public dissemination;

* included a section of “consumer comments” that were completely fabricated;

* used infringing logos of reputable media outlets such as ABC, Fox News, CNN and Consumer Reports to give the false impression of credibility; and

* misappropriated the image of a French reporter for use on the sites.

The Settlements

The cases brought by the FTC were against six affiliates of the merchant that manufactured and supplied the weight loss supplement.

In the settlements, the defendants agreed that they will permanently cease their allegedly deceptive practice of using fake news websites. In addition, the settlements require that the defendants cease making deceptive claims about their other products, including work-at-home schemes and penny auctions which most of them promoted.

The big hammer in the settlements included fines in an aggregate amount which represented the affiliate commissions the defendants received through their fake news sites.

These settlement results clearly indicate that the FTC aggressively pursued every dollar they could under the circumstances (the final amounts left most of them with few real assets, if any):

* one defendant’s $2.5 million judgment was suspended when he pays $280,000 and records a $39,500 lien on his home;

* another defendant’s fine of $204,000 was suspended pending the payment of $13,000 plus the proceeds from the sale of a BMW automobile, and

* still another defendant was suspended pending the payment of almost $80,000 over a 3 year period.

Conclusion

The take-aways from these cases include –

* fake news sites are virtually guaranteed to get you sued by the FTC,

* ditto for fake testimonials or user comments,

* diet supplements of any kind are high on the FTC’s radar screen for regulatory scrutiny,

* the FTC is serious about enforcing its guidelines that affiliates are required to conspicuously disclose the fact that they are paid commissions for endorsements, and

* consistent with the FTC’s long-standing policy, advertising claims should be substantiated prior to public dissemination.

The FTC continues to make it absolutely clear that the days of the “Wild, Wild West” on the Internet, when it was open season on deceptive marketing practices, is clearly over for good.

This article is provided for educational and informative purposes only. This information does not constitute legal advice, and should not be construed as such.