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C & G Innovations / Deceit, Bait and Switch, Discrimination

1 1428 Stapler PlaceWilmington, DE, United States
Contact information:

For about six months, our company, New Day Massage, a licensed, certified and registered therapeutic massage therapy service, has been affiliated with SpaEmergency.com for our gift card program. Further, we are an approved Merchant for MasterCard & VISA.

This late June 2008, received an unsolicited email offer to move our gift card shopping business to TheGiftCardCafe.com, a domain of the Complainee. We did not solicit this information, and we believe the Complainee farmed the information from a search Spider on SpaEmergency.com in violation of their site Terms of Use. We did not solicit the email, nor did the email comply with the Can-Spam Act (missing an option to be removed, even if a one-time mailing).

As an owner of a separate company, Blessings Labor LLC, I as a Managing Member submitted an affiliate application that was accepted by the Complainee without question. New Day Massage is not affiliated with Blessings Labor in any way or by way of entity ownership. As the husband of a prominent massage therapist in the Southeast Denver Metro, I am in a unique position as a former web developer to offer the Complainee�s shopping carts along with website development templates of my design, to the nearly 400 massage therapists I am familiar with by association. My intent was to market to this demographic. The affiliate agreement contains no provision that a minimum amount of volume or sign-ups are required to be paid for each contract/sale at ½% each, for the life of the contract per purchase.

We responded to the email, after weighing our options, with an application to the Complainee's "No Risk" Shopping Cart Service, in September of this year. We reviewed the Terms and Conditions and saw that as a massage therapy company, we were eligible for the program. The program charges 8% per transaction for a 'per value' gift card, through their merchant account. They offer one other 'pay monthly for service' gift card program, which we express no interest in - but the Terms & Conditions posted on the Complainee's website are identical.

Our application response was approved and will be set up �in no more than two business days.� At no time in the future, did we receive a similar response or offer.

On the third business day, I received a disturbing email from Carl Tuinstra, whom at that time based on his email signature I assumed was in Web Support. The emails content was that they would NOT approve New Day Massage�s application because �I can not sign [New Day] up under my own affiliate ID� and to �let him know it is okay to proceed without the affiliate agreement.�

I was quick to be honest with Carl that:

1) I knew many, many massage therapists that I wanted to market their program to

2) That Blessings was not legally tied to New Day, meaning it was not proper for him to deny an application based on such a tie

3) And that we want to use their program to sell New Day Gift Cards

At no future time did he offer me to process the New Day cart without the affiliate pay.

I would like it to be clear that there are two separate contracts here:

1) Blessings as an affiliate

2) New Day as a customer (potential paying)

Neither have anything to do with each other, legally � and the Complainee is not entitled to relief on one entity for another�s misgivings.

Carl responded that in order to clear it up, Blessings had to sign up three accounts (therapists, spas, etc) for the programs, which was NOT in the affiliate contract. My response was, again, this is not appropriate, but I would comply by contacting my vast network of candidates. However, New Day would not cease using its current Gift Card provider until I had qualified for the affiliate agreement that they legally owed under.

Carl�s response was both vague and inquisitive. It did not become clear until later in the series of emails (and lack thereof) that Carl has a personal problem with me, the companies [in our family], and a his concern that I am deceiving him. The latter is certainly not only untrue, and I will show that giving him the whole picture in clear honesty was probably what got me into trouble � since he clearly didn�t like the responses.

Carl began not to go over the Terms I had agreed to, but tell me that to make clear I had no grounds to point out his legal obligations. He implied I was trying to cut out of his 8% margin on New Day with an affiliate agreement. I pointed out I was a valid candidate, and that I felt withholding Blessings� affiliate payments were in violation of contract, so to compromise a correction I would set up the cart after the first three other affiliate activations. As you will see, Carl is only interested in the money he can make, not what he legally agrees to do on his website www.thegiftcardcafe.com

Without asking me any further questions, Carl asked if I was just trying to get a free listing (listings are free with any Shopping Cart Service), in response to a missing BUY button on our website. I told him that is not the case, and that we would need to make a parallel conversion to test the new cart, due to some problems we were having with SpaEmergency.com (existing vendor). I reminded him that he, under his own contract, does not have any exclusivity. I advised him that we currently do not have a BUY button on the public website due to some provider problems (later defined) and that some real �freaks� trying to buy sex acts instead of massage therapy had purchased online. So, it is on a sub-domain (SUB???.masssageincolorado.com) I even volunteered the information that I cannot promise to install the cart within two days, to be fair, because of workload.

Mr. Tuinstra did not respond within normal time frames. In retrospect, it is clear he was avoiding me and did NOT want to honor his legal commitments to fair customer approval. I sent an email twice, with no response. My wife Kristen (owns New Day) sent him an email. No response.

Finally, 10/7/2008 we sent a �final request� if not approved state your reasons, period. Every communication from us here on asks for a reply, politely; and, what we need to correct to qualify. The same day, we got a note saying we were not approved, and not sure why you were not getting your messages [from us]. We can�t work with you at this time. So, denial with no reason: Clear avoidance, very unprofessional in response!

After two more emails, one from me and one from Kristen, including an explanation that we are ready to go RIGHT NOW because SpaEmergency.com requires PayPalPro (more cost in $), and with no responses, we applied again without the complication of an Affiliate ID so that this reason may not be used against us. (This was clearly done in protest.)

Carl finally gave some reasons for denial, but was vague. I remind the Complainee and the reader(s) of this complaint, that we meet all Terms for his No-Risk services. He told us that we could not �use a sub-domain� (newday.fpgr.org our direct hosting link) for security reasons; he also �reviewed our applications with his Risk Management Team and found us to be a risk.� He stated that he is a merchant clearer by trade, and such �risks� were unacceptable.

I replied stating that we were not getting any response or reasons for denial, and nothing to work with to fix the problems that �we don�t even know exist.� I explained I used the sub-domain to avoid red-flag to get another individual on our project, so we could have a real resolution � he left us little choice. I also stated that he and his company knew very well who we were and that we had a valid domain name, and that we even had a bona fid true VISA/MC merchant account (lack of the risks he described). In this email, I started guessing and addressing every potential problem I see. The only problem I did not anticipate is Mr. Tuinstra deciding he would do anything in his power to refuse our application, regardless of legality, ethics or the truth of the matters at hand.

Carl stated �this would be their last response� and all other emails will be ignored. This was clearly a way to �get off the hook� for a real customer dispute. He feels he has always responded without vaguer and clearly. By the book reasons we are declined in this email:

1. Flagged security risk because I tried to �sign myself up as an affiliate to get an undeserved discount on transaction fees.� (Proven and responded as false.)

Other affiliates have no problem following our affiliate rules. (Such rules as he required are NOT published and part of his Affiliates Agreement.)

I was argumentative and threatened legal action (I argued our legal rights, as is my right to negotiate a contract by law unless Carl wants this to be a contract of adhesion; I did not threaten legal action, I stated he may want to be concerned because others may take it, given as ADVICE not threats.)

�These type of actions show that you may be dishonest and may be a business risk.� (This is a direct accusation on my ethics � unprofessional; our explanations and �true� merchant account prove we are not a financial risk. If Carl wants to never get a lawsuit, he can follow common law found on his contracts, or stop being in business for himself.)

2. We stated we would be showing the BUY button on a private sub-domain, unacceptable. (We were never given another email to explain this and correct the situation.)

This is not acceptable for our No Risk Plan and you never responded to further questions on that topic. (Again, we never were given the chance, which is Carl�s omission.)

Suggested we use the Upgrade Plan at $34.95/month and a setup charge. (Obvious unfair steering of low-volume clients to a paid plan, bait and switch, clear and simple. If #1 preceding was actually true, he would not make any such offer, which is why we question Carl believes we are truly dishonest; he just wants to make a buck at our expense.)

3. Submitted two applications for the same business. (Yes, because you would not respond to our inquiries or provide valid reasons for denial. Further, there was a substantial difference in them � our concession not to use the Affiliate referral ID, which makes the second application HIGHLY legitimate!)

These actions set off flags on our end. (This is obviously more reflective of Carl�s ego in being obliged to give us what we feel is legitimate, against his will)

We do not have to explain our process. (Then New Day assumes this is your personal opinion, since it is clear you do not have any real Risk Management Team.)

Security is our top priority. (I question this statement since we were offered an Upgrade Plan when New Day and its ownership is �so dishonest� per his statements.)

Also, Carl stated: Customers to us are partners, and we give suggestions to improve site, search engine ranking, and use of the system. You are not a good match because you are combative, argumentative, and threatened legal action. (None of these are true, except questioning his legal authority on contracts Mr. Tuinstra already agreed to in prior applications via Terms & Conditions. It appears by the phrasing Carl is more concerned about our site marketing his on search engines by links on our site, than providing the service we contracted him to provide � which is the real motivation: We must change our business model to fit him as a vendor. This is unacceptable for any business!)

I realize that Carl�s perception based on events and communication is different, but it is factually false. He has no intention of following rules that he creates, even if the Terms and Conditions he publishes on his website differ or omit such nonsense. What the real problem is: Carl doesn�t want to be anything but our only vendor, his way or the highway, even if such rambling requirements are neither ethical nor legally binding!

Finally, Carl insulted my intelligence on a personal level: �Anyone who understands business would see that does not make a good partnership.� (Very unprofessional.)

The last response we used, which has never been replied to, stated we feel we have every right to treat Carl as a vendor, and not change our business model to his whim. We feel a response is in order from us, since you question our ethics. We have every right to question contractual issues we feel are not in our best interest, as this is how contractual negotiations work. We restated all our explanations, and how we will adjust to meet his demands. We offered to compromise to eliminate Blessings Labor LLC�s affiliate agreement with his company in the utmost good faith, even though we have no legal reason to do so. We also stated that his accusations of ethics are unprofessional at best. We offered telephone communication (he has never called us). I offered advise on how to handle the types of examples I set as an objection to handle, not treat them like a thief. I appealed to his sense as person not a business drone. I stated a response is expected. None ever came.

Carl�s website shows several if not all of our competitors. We do not believe they paid a fee (as listed on his site) to list, and were added to have �content� on his fledgling site. We feel that we were ultimately unfairly discriminated against since:

1) Other equally situated therapists and spas are listed at no charge, even when they refuse to accept his Gift Certificate program, as we desire to; and,

2) We were steered by a sheer profit motivation to a pay for service, monthly program, against our will, because of a non-substantiated personal dispute by the owner.

Ultimately, Mr. Tuinstra�s company fails to provide in its advertising, per its Terms and Conditions, what they promise applicants.

In the process of investigating Mr. Tuinstra, his Internet company e2eTech Inc, and his parent conglomerate the Complainee, I found out that Mr. Tuinstra is not in the Web Support area at this company, but a Principle in his ventures; therefore, a likely one-man show. This shows his direct deceit when advising me �he had his Risk Management Team investigate.� I charge he did nothing of the source, and this bad business decision on his part is not only discriminatory in nature, in violation of ethical standards and his own Terms & Conditions as published, but also his personal �mojo feeling� about me and our companies. He intentionally steered us into a �pay for service� program when we clearly were acceptable (legally) into his No Risk service, as retribution for my �difficulty.� This is a poor way to handle a customer, and treat a paying customer.

The Complainee had a chance to impress me and comply with ethical standards, and they failed beyond comparison. This individual and his company, based on our experiences of spamming, deceit, unfair discrimination, unprofessional conduct, steering of clientele, and an evasive attitude, should not qualify them for any Better Business Bureau program or membership. I remind the Complainee and the BBB that I can back up my allegations with the emails sent by Tuinstra.

We as Complainants define "Good Faith Effort to Resolve" as our application for the No-Risk program receiving a list of matters that need to be and CAN BE corrected, along with how to correct them, for us to be approved; and, no contact whatsoever from the Complainee until such response is prepared and sent.

We define "Successful Resolution" as our application being approved, per the discussion over email and our last offer in compromise, immediately for the No-Risk program as well as activation within two business days of reception of this complaint; and, no contact whatsoever directly from the Complainee until the activation is complete.

We have no interest in communicating directly with the Complainee until a contract has been ratified successfully, due to his pattern of avoidance and deceit.

This comment will be posted for public view, for the public good, as a public service. This complaint was filed with the Better Business Bureau, and will potentially be filed with the Attorney Generals for mediation in Colorado and Delaware. To anyone reading this, if a reply is not given my Carl Tuinstra to the contrary, I propose he is a �one man show� and due to his temperamental behavior, should be avoided as a �micro-business� that cannot properly serve the needs of a small business. This is my personal opinion and not necessarily a business fact, but the trends do suggest it.

Va

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