Amazon - breach of contract

[Pacer41]

What is the name of your state
OHIO
(only U.S. law)?

I am a self-published author and sell my e-books through Amazon's KDP Select Program. The agreement from Amazon for authors who put their books into this program is that they cannot sell them on any other ebook venue. Through this program, readers can "borrow" these books and the authors are paid by "pages read" which Amazon tracks and makes visible on the author's dashboard. Back in July, Amazon released a new "Page Flip" feature on their ebook reading devices which doesn't have the ability to track the number of pages read. Amazon has been wishy-washy about admitting the flaws in this feature, but I among many other authors have documented and even video-recorded proof to substantiate our claim. The problem is that I personally am losing anywhere from 60 up to 90% of my "pages read" royalties, depending upon geographic locations. MY question: What government agency is the appropriate overseer for this type of complaint and might help with resolution?

 

[Zigner]

What is the name of your state
OHIO
(only U.S. law)?

I am a self-published author and sell my e-books through Amazon's KDP Select Program. The agreement from Amazon for authors who put their books into this program is that they cannot sell them on any other ebook venue. Through this program, readers can "borrow" these books and the authors are paid by "pages read" which Amazon tracks and makes visible on the author's dashboard. Back in July, Amazon released a new "Page Flip" feature on their ebook reading devices which doesn't have the ability to track the number of pages read. Amazon has been wishy-washy about admitting the flaws in this feature, but I among many other authors have documented and even video-recorded proof to substantiate our claim. The problem is that I personally am losing anywhere from 60 up to 90% of my "pages read" royalties, depending upon geographic locations. MY question: What government agency is the appropriate overseer for this type of complaint and might help with resolution?

From: http://amzn.to/2alQbta (a link to the Terms & Conditions)

8 Limitation of Liability. THE PROGRAM IS PROVIDED "AS IS." WE WILL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN NO EVENT WILL OUR LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES DUE AND PAYABLE BY AMAZON UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. WE SPECIFICALLY DISCLAIM, WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUBLISHER ACKNOWLEDGES AND AGREES THAT AMAZON CANNOT ENSURE THAT DIGITAL BOOKS SUBMITTED BY OR ON BEHALF OF PUBLISHER WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT CUSTOMERS WILL COMPLY WITH ANY CONTENT USAGE RULES AMAZON MAY MAKE APPLICABLE IN CONNECTION WITH USE OF DIGITAL BOOKS, AND AMAZON WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY SYSTEM OR PROCEDURE OR OF ANY CUSTOMER TO COMPLY WITH ANY CONTENT USAGE RULES. KDP RELIES ON COMPLEX SYSTEMS AND PROCESSES. WE STRIVE TO MAKE OUR SYSTEMS AND PROCESSES ERROR-FREE AND EFFICIENT, BUT WE CANNOT GUARANTEE THAT THEY WILL BE, AND WE WILL HAVE NO LIABILITY ARISING FROM SYSTEM OR PROCESS FAILURES, INTERRUPTIONS, INACCURACIES, ERRORS OR LATENCIES.

And

10 General Legal Provisions.

10.1 Disputes. Any dispute or claim relating in any way to this Agreement or KDP will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The United States Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98051, USA. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879 (in the United States). Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Amazon will not to seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the United States county where you live or at another mutually agreed location. You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration you and we each waive any right to a jury trial. You or we may bring suit in court on an individual basis only, and not in a class, consolidated or representative action, to apply for injunctive remedies. You may bring any such suit for injunctive remedies only in the courts of the State of Washington, USA.

10.2 Applicable Law. The United States Federal Arbitration Act, applicable United States federal law, and the laws of the state of Washington, USA, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Amazon relating to this Agreement or the Program.

 

[adjusterjack]

What government agency is the appropriate overseer for this type of complaint and might help with resolution?

Probably none.

As an author you are essentially a business doing business with another business. While the government likes to protect consumers from businesses it figures that business people are astute enough in their business dealings with other businesses that they can take care of themselves.

You have a contract with Amazon and Zigner has posted parts of it, which you should already have read.

If Amazon has breached the contract your remedies (that you agreed on) are specified in the contract.

Exactly how many dollars have you lost since July because of this new feature?

And what, specifically, do people at Amazon tell you when you ask for that money?

Wishy washy is not an answer.

They are either paying you for the pages read, or not.

If not, and you cannot resolve the issue with talk, you may go to arbitration or, apparently, sue in small claims court which you can probably do locally.

 

[Pacer41]

Thank you. It's difficult to know exactly how much is owed since I have no clue of the "pages read". What I CAN prove is that the new feature fails to record the pages read, and that Amazon has admitted on a post that the "Page Flip" feature was added to help readers navigate and does not incorporate a page counter to track the number of pages read. This goes beyond small claims for me personally as I'm affected by lost royalties using an average monthly figure for the past 6 months for pages read of approximately $3K per month. Since we are going on Month 3 as of Dec 1st, that would be a total loss of $9000. Again, I'm using an average figure. Could be more, could be less. Several authors who also have a huge following of Kindle Unlimited readers have lost more than I. Maybe a Class Action suit would be the way to go.

Thanks, again. I can look for no help from the government, and that's what I needed to know.

Probably none.

As an author you are essentially a business doing business with another business. While the government likes to protect consumers from businesses it figures that business people are astute enough in their business dealings with other businesses that they can take care of themselves.

You have a contract with Amazon and Zigner has posted parts of it, which you should already have read.

If Amazon has breached the contract your remedies (that you agreed on) are specified in the contract.

Exactly how many dollars have you lost since July because of this new feature?

And what, specifically, do people at Amazon tell you when you ask for that money?

Wishy washy is not an answer.

They are either paying you for the pages read, or not.

If not, and you cannot resolve the issue with talk, you may go to arbitration or, apparently, sue in small claims court which you can probably do locally.

 

[Zigner]

Thank you. It's difficult to know exactly how much is owed since I have no clue of the "pages read". What I CAN prove is that the new feature fails to record the pages read, and that Amazon has admitted on a post that the "Page Flip" feature was added to help readers navigate and does not incorporate a page counter to track the number of pages read. This goes beyond small claims for me personally as I'm affected by lost royalties using an average monthly figure for the past 6 months for pages read of approximately $3K per month. Since we are going on Month 3 as of Dec 1st, that would be a total loss of $9000. Again, I'm using an average figure. Could be more, could be less. Several authors who also have a huge following of Kindle Unlimited readers have lost more than I. Maybe a Class Action suit would be the way to go.

Thanks, again. I can look for no help from the government, and that's what I needed to know.

You have agreed to specific provisions...I don't think you're going to be in court over this, and definitely not as a class-action.

 

[adjusterjack]

Maybe a Class Action suit would be the way to go.

Didn't you just read the terms that were posted. You waived class action lawsuits by agreeing to the terms.

At best you can invoke arbitration for yourself and others will have to take care of their own business.

 

[Zigner]

Didn't you just read the terms that were posted. You waived class action lawsuits by agreeing to the terms.

At best you can invoke arbitration for yourself and others will have to take care of their own business.

Even worse is that the OP has agreed that the software might not work the way it's intended...

 

[adjusterjack]

Even worse is that the OP has agreed that the software might not work the way it's intended...

True.

But a modification of the software that bolluxes it up might (or might not) get that agreement shot down.

Waivers and disclaimers sometimes don't shield a party from his own acts.

No guarantees, of course, but it could be an issue for an arbitrator to examine.

 

[Pacer41]

True.

But a modification of the software that bolluxes it up might (or might not) get that agreement shot down.

Waivers and disclaimers sometimes don't shield a party from his own acts.

No guarantees, of course, but it could be an issue for an arbitrator to examine.

Again, I thank you.

Boilerplate T's & C's have never stopped a party from bringing litigation (REF: Zigner's Comments) in particular, when one of the parties involved changes the terms mid-stream without initiating an addendum to the original contract. The offending party must prove there was a good faith effort to execute the terms of payment - in this case, Amazon's revised payment terms for "pages read" which was only initiated a year ago - after my books were already entered into the KDP Select program under the older payment terms. Blanket liability statements don't hold much water when Tort Law is unleashed.

My question was whether or not the Dept. of Commerce, or another Federal Agency might have some jurisdiction over this matter, and Adjusterjack answered that quite nicely for me. There is a reason I have "Zigner" on my ignore list. This is one of those times I realize just how prudent it was.

 

[Zigner]

Strangely enough, my post was responded to, even though Pacer41 claims to have me on his/her "ignore list."

I'm sure you'll do great, Pacer41. Enjoy your arbitration.