[Witzer]

Did you read it before joining the program? Did it say anything about affiliates that were excluded or included because of the tax nexus laws?

Does/should the merchant check an affiliates location before approving the affiliate into the program (not talking about and auto-approve)?

I discovered that a merchant that I recently applied to and was approved (again not auto approved) had specific language forbidding NC. NY, RI & CO affiliates. Clicks had been recorded but no sales.

I sent an e-mail to the merchant, pulled all links and resigned my affiliate relationship with this merchant at the network level. The merchant quickly replied with a "Thank You Note".

This lead me to check some more TOS and what I found is that most do not say anything about nexus status. Shouldn't there be at least some mention?

[Herb ԿԬ]

being in NY and being bounced early-on, I've read every TOS before applying.

some merchants get it -- some don't.

but ya know, some day the merchants will run out of affiliates in too many states . . .

[Witzer]

I am guilty of not reading this one, but I am also the one who caught it. If I did not catch it, it leaves the merchant in a precarious position.


My concern is, can I trust the merchant to tell me about it's nexus status in my state and does the merchants lack of statement concerning this put me in some jeaprody.

[markwelch]

On your first question: I never read the TOS before applying to join a program, and I rarely read the complete TOS even when posting links. (If I notice some weird signal about the advertiser, such as receiving a confrontational email sent by the advertiser to all publishers, I sometimes take the time to read the TOS, but more often I just make a mental note not to include the merchant in any future projects.)

When I did direct-to-merchant PPC (ending in early 2008), I always checked the TOS and PPC terms very carefully, and if the advertiser didn't have a specific policy, I would contact the advertiser directly to ask about this. (Usually, even if the advertiser had a specific policy, I would sent the advertiser a description of any planned DTM-PPC campaign, to make sure they were aware and didn't have any specific objections.)

If I lived in an advertising-nexus state, I'd probably request an unambiguous statement from each advertiser (if they don't collect sales tax for my state) before I included that merchant's advertising. (I'm in California, so this activity might be in my immediate future.)

But there are lots of reasons why advertisers might not include any language about the advertising-nexus issue: small merchants may not expect to reach the revenue threshold in nexus states; other merchants may have made a deliberate (if not explicit) decision to ignore unconstitutional laws, or may not be aware of the issue at all, or may have consciously decided not to deal with the issue; some merchants may already collect sales tax in some or all of the impacted states.

Also keep in mind that some merchants are not subject to some states' advertising-nexus laws, if they don't sell tangible goods (in most states, services and downloadable products aren't subject to sales tax).

Finally, remember that no matter what an advertiser says (or doesn't say) about the advertising-nexus issue, if they sell products subject to sales tax in your state, and if they don't collect sales tax for your state, then if your state enacts a nexus law, the advertiser is very likely to terminate their advertising relationships with you (probably with little or no advance notice). Thus far, I'm not aware of any advertisers promising to maintain relationships in a nexus state and then reversing policy, but I expect that some will do so after discussing the issue with their lawyers or accountants.

IANAL