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breach of contract?

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J

jscallstar

Guest
What is the name of your state? Georgia but contract is valid in CO.

Without getting too deep in to my situation(due to the restraints of my contract), I'd like to ask for some assistance from all of you.

Within my contract it states "Residuals on an account will discontinue if the account has been disconnected for any reason." This was dated around the last week of 02.

Then on 12.18.03, I received an email "memo"(this is something that we receive at least once, if not more, per month and it informs us of upcoming changes, promotions and economics) that, in part, stated this:

"60 Month Maximum Payment Period for Monthly Incentives:

Subject to and in accordance with the terms and conditions otherwise applicable to the payment of Monthly Incentives:

o For new Subscriber Accounts activated on and after January 1, 2004, Monthly Incentives will be paid for a maximum period of sixty (60) months from initial activation of the new Subscriber Account, after which the new Subscriber Account shall no longer qualify for the payment of Monthly Incentives but will continue to count towards the original activating retailer’s active customer base.

o For Subscriber Accounts activated prior to January 1, 2004, Monthly Incentives will be paid for a maximum period of sixty (60) months from January 1, 2004, after which the Subscriber Account shall no longer qualify for the payment of Monthly Incentives but will continue to count towards the original activating retailer’s active customer base. "

The contract that I originally signed also states this:

"Modifications; Retailer acknowledges that XXX competes in the multi-channel video distribution market, which is highly competitive, fluid and volatile and that XXX must make changes to its marketing, promotion and sales of products from time to time to stay competitive. Therefore, Retailer agrees that XXX may, at any time and for any reason in its sole discretion, change or modify Incentives, Incentive schedules, Incentive structures, Promotional Programs, Business Rules, payment terms, or the chargeback rules associated therewith, upon notice to Retailer, without the need for any further consent, written or otherwise, from Retailer. IF ANY SUCH MODIFICATION OR CHANGE IS UNACCEPTABLE TO RETAILER, RETAILER’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. RETAILER’S CONTINUED PERFORMANCE UNDER THIS AGREEMENT FOLLOWING RECEIPT OF NOTICE OF A CHANGE OR MODIFICATION WILL CONSTITUTE RETAILER’S BINDING ACCEPTANCE OF THE CHANGE OR MODIFICATION. Except for such changes, and any other changes identified in this Agreement, any Promotional Program, Business Rules, or Other Agreement (as defined in Section 6.8) which may be made by either party in its sole discretion, any modification to this Agreement must be in writing and signed by both parties."

Ok, here's my stance on this. As of 01.01.04, any and all subscribers that were signed up under the original contract and residual(monthly incentive) rule would make each of the subscribers a contract in and of itself, correct? If I am correct in this assumption and from the research that I've done, then this is a direct violation of contract law.

By them changing the rule, it seems ok, by the contract that I signed, for them to do so moving foward, but not backwards.

If I am wrong, then so be it but that's what I'm after. Am I wrong or right?

Thanks in advance, jeff.carter@dumpcable.com
 


JETX

Senior Member
Wrong. They have the right to modify the terms... as provided by the original agreement that you signed.

What EXACTLY are you challenging and why??
 
J

jscallstar

Guest
My challenge is this.

They are taking residual payments from customers that were activated prior to 1/1/04 to a maximum payout of 60 months wereas before, they were "until the account was discontinued"

My thought process is that they changed the contract to reflect backwards as well as fowards.
 

JETX

Senior Member
And since the DTV contract allows them to alter or amend the contract "at any time and for any reason in its sole discretion, change or modify.... without the need for any further consent, written or otherwise, from Retailer.", it is allowed.

Granted, you MIGHT be able to try to challenge their contract as being voidable or over-reaching..... but I believe that DirecTV has far deeper pockets to afford litigation than you. So, at best, you win a 'hidden victory'..... and they win the war.
 
J

jscallstar

Guest
Thank you so much for offering your advice!

Here's another bit of information regarding me not agreeing with something they do

15.1 Claims for Breach or Default. IN THE EVENT OF AN OCCURRENCE THAT RENDERS, OR MIGHT
RENDER, XXXXXX LIABLE TO RETAILER FOR ANY DAMAGES OR INJUNCTIVE RELIEF AS A RESULT OF ANY ALLEGED BREACH OR DEFAULT OF THIS AGREEMENT, RETAILER SHALL GIVE WRITTEN NOTICE OF SUCH OCCURRENCE AS SOON AS PRACTICABLE TO XXXXXXX (A "NOTICE OF CLAIM"). IN NO EVENT SHALL ANY NOTICE OF CLAIM BE PROVIDED LATER THAN NINETY (90) DAYS AFTER THE DATE OF THE RELEVANT OCCURRENCE, OR THE SHORTEST PERIOD PERMITTED UNDER APPLICABLE LAW (IN THE EVENT THAT SUCH PERIOD IS IN EXCESS OF THE APPLICABLE PERIOD SET FORTH ABOVE). THE NOTICE OF CLAIM SHALL STATE: (A) THE DATE, TIME AND NATURE OF THE OCCURRENCE; (B) THE TOTAL AMOUNT CLAIMED BY RETAILER, IF ANY, IN CONNECTION WITH
SUCH OCCURRENCE AND THE BASIS FOR ANY AMOUNT CLAIMED, AND (C) IDENTIFICATION OF ALL DOCUMENTS AND OTHER INFORMATION IN RETAILER'S CONTROL OR POSSESSION RELATING TO SUCH OCCURRENCE. RETAILER MAY SUBMIT A NOTICE OF CLAIM CONCERNING INCENTIVE PAYMENTS THROUGH XXXXXXX'S RETAILER WEBSITE (https://retailer.XXXXX.com) IN ACCORDANCE WITH THE NOTICE OF CLAIM BUSINESS RULES. RETAILER MAY SUBMIT A NOTICE OF CLAIM CONCERNING ANY OTHER OCCURRENCE VIA ELECTRONIC MAIL TO executiveresolution@XXXXXXX.com WITH THE SUBJECT LINE “NOTICE OF CLAIM.” AFTER SUBMITING A NOTICE OF CLAIM, RETAILER SHALL PROVIDE XXXXXXXX WITH ANY AND ALL ADDITIONAL INFORMATION REQUESTED BY
XXXXXX WITHIN THIRTY (30) DAYS AFTER RECEIPT OF XXXXXXX'S REQUEST. XXXXXXX SHALL BE ENTITLED TO HAVE ACCESS TO RETAILER'S BOOKS AND RECORDS DURING ITS INVESTIGATION OF RETAILER'S CLAIM. FAILURE TO STRICTLY COMPLY WITH THE PROVISIONS OF THIS SECTION 15.1 WITH RESPECT TO A PARTICULAR OCCURRENCE THAT RENDERS, OR MIGHT RENDER, XXXXXXXX IN BREACH OR DEFAULT OF THIS AGREEMENT AND LIABLE TO RETAILER FOR DAMAGES, SHALL CONSTITUTE A WAIVER BY RETAILER WITH RESPECT TO THE
RELEVANT OCCURRENCE, INCLUDING ANY DAMAGES RELATED THERETO.

15.2 Mediation. The parties agree to submit any and all disputes, controversies or claims not otherwise barred or
resolved under Section 15.1 or exempted under Section 15.4, which may arise between Retailer and/or any of its Affiliates, on the one hand, and XXXXXXXX and/or any of its Affiliates, on the other hand, including but not limited to any and all disputes, controversies, and claims arising in connection with this Agreement including, without limitation, all disputes, controversies or claims related to: (i) the execution of this Agreement; (ii) the interpretation of this Agreement; (iii) a party’s performance or failure to perform hereunder; (iv) the termination of this Agreement; and (v) any rights Retailer may have under dealer termination or non-renewal laws (collectively “Disputes”), to mandatory non-binding mediation (the “Mediation”) in front of a single mediator. Either party may initiate a mediation by giving written notice to the other party describing the Dispute (a “Notice of Mediation). The Notice of Mediation shall include (1) a Page 14 of 20 I:\cmm\Retailer Agreements\retailer final 111102.doc statement of the initiating party’s position and a summary of arguments supporting that position, and (2) the name and title of the executive who will represent that party and of any other persons who will accompany the executive. The Mediation must be initiated within one (1) year of the event(s) giving rise to the Dispute. The Mediation shall take place in the city and County of XXXXXXX
at a mutually agreeable time and location before a mediator chosen by mutual agreement of the parties. Each party shall participate through a representative with full settlement authority and shall bear its own costs and expenses and one-half of the costs and expenses of the mediator. Any such Mediation must be concluded within 60 days of the Notice of Mediation. Nothing contained herein shall limit or restrict the rights of either party and/or its Affiliates to file a Notice of Arbitration and/or bring a request for injunctive relief against the other party and/or its Affiliates for either party’s and/or its Affiliates’ violations of Sections 3.2, 3.6, 3.7, 3.8, 5, 6.9, 7.2, 7.3, 9.1, 9.2, 9.3, 9.4, 11, and 14 or any provisions of any Other Agreement (as defined in Section 6.8).
I really appreciate your offering me your advice. It has the potential to save me thousands, but I must also admit, this is not about the money as much as it is about principle.
 

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