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  1. #1
    notary sojac Herb ԿԬ's Avatar
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    Lightbulb better interpretation . . .
    "I hope you are doing well and your marketing efforts are succeeding. You might have heard talk about the newly-enacted New York Tax Law, and because you have a physical or billing address in the state of New York, I wanted to give you an update on some changes at Sierra Trading Post. We are going to revise our terms and conditions in a way that will probably not affect the majority of our New York based affiliates, but we need you to take a look at them and make sure that you're ok with them. In general terms, if the only way that you are promoting Sierra Trading Post is via link(s) on your website, then you are ok. The types of marketing activities that we have to restrict are very limited - they only include marketing that is directed to New York state residents via paid search marketing, e-mail marketing (newsletters or direct email), lead generation, mobile marketing or telemarketing. A list that defines all of the different types of restricted marketing activities is not available therefore we are requesting that you only market us through website links. We greatly value your partnership, and hope that these new terms and conditions do not affect any current practices you are engaged in on behalf of Sierra Trading Post. Please let me know if you have any questions and thank you for your understanding and help!

    Bert Adam

    Affiliate Manager"

    makes sense -- did a lot of merchants just panic?

  2. #2
    Member DougNY's Avatar
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    I think panic is the perfect term for what many merchants have done. It's nice to see that Sierra Trading Post has at least read the law and trying to work with NY affiliates. If some of these other merchants would just calm down and take a few deep breaths some solutions could be found.

    These state agencies thrive on fear - I know my stomach goes to my throat every time I get an unexpected letter from NYS Dept of Taxation and Finance.

  3. #3
    Newbie MNSandy's Avatar
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    Thumbs up for STP!

    p.s. I wonder how would NY tax guys will find out that you are doing email/mobile marketing that is profitable? I mean - seriously? You might be sending traffic to your site but thats it. End of question. On the site there's links - but links are fine

  4. #4
    Advocate mellie's Avatar
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    I came to post about this too. I think it's wonderful that they put forth the time and energy to come up with an educated, agreeable and fair solution.
    Melanie
    President - Affiliate Advocacy 2008 ShareaSale Performance Industry Advocate Award, 2009 Affiliate Summit Pinnacle Award - Affiliate Advocate
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  5. #5
    Analytics Dude Kevin's Avatar
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    Herb: The law is still wide open to interpretation. The Technical Services Bulletin, which STP is in a way making reference to here is only a guiding document, and may be revoked, revised, or used as kindling (not in PDF format of course) at any time.

    I believe STP is right. In my heart of hearts.

    Unfortunately, because of the idiotic way in which New York has enacted this legislation, by pushing it through while the state was panicking over the Spitzer situation, no one has any idea what it really means.

    I've read 3 different interpretations by twice as many attorneys.

    I'd like to see New York be drawn into court by an affiliate with deep pockets. It's always a shame to see a state's citizens put in a position where they have to in essence sue themselves (since we are the State of New York by living here), but I think it needs to happen.

    Other States need to understand that disrupting business through a cock-eyed effort to bypass the Constitution will NOT be tolerated. And there should be significant repercussions.
    Kevin Webster
    twitter: levelanalytics

    Kayak Fishing
    Web Analytics and Affiliate Marketing

  6. #6
    notary sojac Herb ԿԬ's Avatar
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    yes, I should have said "nicer interpretation."


    When does the amazon.com vs. NY case go to court? anyone know?

  7. #7
    Moderator MichaelColey's Avatar
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    Bravo to STP! As far as I know, they are the first to take this middle ground recommended by the DMA.
    Michael Coley
    Amazing-Bargains.com
     Affiliate Tips | Merchant Best Practices | Affiliate Friendly? | Couponing | CPA Networks? | ABW Tips | Activating Affiliates
    "Education is the most powerful weapon which you can use to change the world." Nelson Mandela

  8. #8
    Analytics Dude Kevin's Avatar
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    Ah yes, I should have also added my deepest thanks to STP for doing what I believe is right for everyone:

    Not charging tax.
    Not dropping New York affiliates.
    Kevin Webster
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  9. #9
    Member
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    I am really incensed at how this law is a) rushed through so that merchants are practically forced to panic, having almost no time to form an educated opinion on what this means before the NY deadline passes b) punitive, with drastic consequences to those who guess wrong.

    My hope is these things (plus the whole "Amazon tax" reference) will help kill it. But I really hope that as Kevin(?) said, there are also major repercussions. NYS paying Amazon's legal bills, for one. I am so grateful to them for not just rolling over.

    I mourned when Spitzer threw away his post. Now I feel pretty dumb about that.

  10. #10
    Advocate mellie's Avatar
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    Looks like this is the common intrepretation of the law. Quite a few merchants are updating their terms to similar wording, I received an email from Homevisions about updated terms and they include a similar paragraph. I do think they have confused the terms "merchant" and "partner" a couple times in this paragraph.

    4.4. If Merchant is based in New York State or has office(s) located within
    New York State, Partner will only allow Merchant to promote Partner brand(s)
    and/or web site(s) via Partners web site. Partner may not promote Merchant
    through any other marketing channel including, but not limited to: paid search
    marketing, e-mail marketing, lead generation, mobile marketing or telemarketing.
    I again acklnowledge and appreciate that another merchant, HomeVisions values all affiliates.
    Melanie
    President - Affiliate Advocacy 2008 ShareaSale Performance Industry Advocate Award, 2009 Affiliate Summit Pinnacle Award - Affiliate Advocate
    Affiliate Advocacy
    NYAffiliateVoice Seery Writing

  11. #11
    Analytics Dude Kevin's Avatar
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    Hmmm. Paid search? That's a new reading. I likie the rest of it.
    Kevin Webster
    twitter: levelanalytics

    Kayak Fishing
    Web Analytics and Affiliate Marketing

  12. #12
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    I believe the question regarding paid search was asked on the Linkshare conference call. The answer was paid search was not considered a "nexus presumption".

  13. #13
    Member shopsat24seven's Avatar
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    I remember the same about PPC, it was ok. Also I though e-mail was ok so as long as it didn't mention the merchant.

    What about posting coupon codes?

  14. #14
    Analytics Dude Kevin's Avatar
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    It all depends on your interpretation (doesn't it always?)

    If we assume for a moment that the DMA was right, email marketing without mentioning a merchants name is ok. As was PPC.

    But we're seeing merchant reactions from every possible approach, so I've really lost sight of what's ok and not ok. It's a bad scenario.
    Kevin Webster
    twitter: levelanalytics

    Kayak Fishing
    Web Analytics and Affiliate Marketing

  15. #15
    ABW Ambassador
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    What Some Merchants Are Doing, Not Dropping But Adding Additional Terms
    Wish more merchants would go the route of what some merchants are doing (copy and paste from the emails below) where they're not dropping NY affiliates but just adding terms and clarifying how you can promote them. I've seen some people post who listened to the Linkshare call in discussing the tax issues basically saying what they took from the call is some of what you see below. So if that's the case and if more merchants understand it, then it's a possibility. I think at this point there might be some overreaction from merchants since they don't completely understand it like most people. Hopefully it becomes more clear next few weeks.

    Montgomery Ward's from yesterday -

    "Good Afternoon,

    You may have noticed we sent out a program update concerning our Terms & Conditions over the interface today.

    The amendment to pay close attention to is 4.4:

    4.4. If Merchant is based in New York State or has office(s) located within
    New York State, Partner will only allow Merchant to promote Partner brand(s) and/or web site(s) via Partner's web site. Partner may not promote Merchant through any other marketing channel including, but not limited to: paid search marketing, e-mail marketing, lead generation, mobile marketing or telemarketing.

    This amendment was instated following New York State passing a sales tax law requiring online retailers with affiliates located in New York to collect sales taxes on shipments to New York state residents. Note this law takes affect June 1st, 2008.

    We value our relationships with our new York affiliates and rather than discontinuing business with them, we added the above amendment to our T&C's.

    We look foward to continuing our relationship with you in the future and working together as we understand this tax law will affect your business as well."

    Today Favor Affair -


    "Favor Affair Affiliate,

    The following policies only apply to New York state residents.

    As you probably know the latest buzz in the affiliate marketing community has been the law regarding NY state affiliates. We have revised our terms and conditions in a way that will probably not affect the majority of our New York based affiliates, but we need you to take a look at them and make sure that you're ok with them. In general terms, if the only way that you are promoting Favor Affair is via link(s) on your website, then you are ok. See below the line item we added to our terms and conditions.

    The types of marketing activities that we have to prohibit include the following:
    • PPC marketing
    • E-mail marketing (newsletter or promotion e-mails)
    • Print advertising (flyers, business cards)
    • Lead generation
    • Mobile marketing
    • Telemarketing
    The state of New York has not yet provided a clear list so we are requesting that you only market us through website links. We greatly value your partnership, and hope that these new policies do not affect any current practices you are engaged in on behalf of Favor Affair. Please let me know if you have any questions and thank you for your understanding and cooperation.

    This is line item we added to our terms and conditions.

    2.4 Starting June 1st, 2008, if Partner is based in New York State or has office(s) located within New York State, Favor Affair (The Shops at 24Seven) will only allow Partner to promote Favor Affair (The Shops at 24Seven) brand(s) and/or web site(s) via Partner's web site. Partner may not promote Merchant through any other marketing channel including, but not limited to: paid search marketing, e-mail marketing, lead generation, mobile marketing or telemarketing."

  16. #16
    ABW Ambassador
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    Add in CornerStorkBabyGifts.com to the list.

  17. #17
    Influencer Marketing GravityFed's Avatar
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    CornerStorkBabyGifts, TooCuteBabyGifts and MyWeddingFavors all sent out notices through AvantLink today.. that they were just making some changes to their TOS.

  18. #18
    ABW Ambassador Ron Bechdolt's Avatar
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    What I am not understanding is this, if a merchant did not have $10,000 in sales over the last year, but say ends up doing over $10,000 come this December and did not collect taxes because the previous year they only did, say,$1000 in sales in NY, what should they be doing? I read the law and it is not clear to me at all. Should any merchant selling via NY affiliates be collecting tax?
    Ron Bechdolt | Affiliate Program Management Consultant
    7 Days A Week Marketing

  19. #19
    ABW Ambassador
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    I just merged these threads since it's about the same thing.

  20. #20
    ABW Ambassador
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    Relax The Back, same thing -

    "For all New York State affiliates in our program, please read the addendum below. Starting today, New York affiliates are only able to promote our company and our products via links on your website. New York affiliates are no longer able to solicit New York residents on behalf of Relax The Back in email, regular mail, postcards, newsletters, brochures, leaflets or flyers. Any New York affiliate who we determine is including Relax The Back's links in emails or any of the above solicitation methods will be immediately removed from the Relax The Back affiliate program."

    So we have:

    CornerStorkBabyGifts
    TooCuteBabyGifts
    MyWeddingFavors
    Sierra Trading Post
    Montgomery Ward
    Relax The Back

    Could be some others, taking a different route instead.

  21. #21
    Moderator MichaelColey's Avatar
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    Quote Originally Posted by 7-days
    What I am not understanding is this, if a merchant did not have $10,000 in sales over the last year, but say ends up doing over $10,000 come this December and did not collect taxes because the previous year they only did, say,$1000 in sales in NY, what should they be doing? I read the law and it is not clear to me at all. Should any merchant selling via NY affiliates be collecting tax?
    There are two (and perhaps three) different aspects of the law:

    1) Do you meet the $10k threshold? If you have $10k in sales shipped into NY attributed to NY affiliates in the previous 4 NY quarters (which run Dec-Feb, Mar-May, Jun-Aug, and Sep-Nov), NY now "presumes" that you have a nexus. (You may not - see point 3.)

    2) If you do have a nexus, you are required to collect and pay sales tax for all sales shipped to NY. For instance, if you exceeded $10k in NY cust / NY affil sales from 6/1/07 - 5/31/08, you would be required to collect sales tax on orders shipped to NY from 6/1/08 - 8/31/08. If you continued to have $10k in sales in the previous four rolling quarters, it would continue beyond that.

    3) If you are presumed to have a nexus, it's your obligation to disprove it. The documentation from NY seems to imply that if your NY affiliates only promote the merchant through their web site and do not do offline, PPC, email, newsletters, flyers, etc. promoting the merchant, the presumption will be defeated. That's why you have some merchants adding requirements that NY affiliates only promote through their web site.
    Michael Coley
    Amazing-Bargains.com
     Affiliate Tips | Merchant Best Practices | Affiliate Friendly? | Couponing | CPA Networks? | ABW Tips | Activating Affiliates
    "Education is the most powerful weapon which you can use to change the world." Nelson Mandela

  22. #22
    Life is Supposed to be Fun! Rexanne's Avatar
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    Quote Originally Posted by mellie
    I think it's wonderful that they put forth the time and energy to come up with an educated, agreeable and fair solution.
    Well said. Ditto!
    Peace,

    Rexanne

    Rexanne.com
    Loving Everyone's Child Creates Magic


  23. #23
    ABW Ambassador Ron Bechdolt's Avatar
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    Quote Originally Posted by MichaelColey
    There are two (and perhaps three) different aspects of the law:

    1) Do you meet the $10k threshold? If you have $10k in sales shipped into NY attributed to NY affiliates in the previous 4 NY quarters (which run Dec-Feb, Mar-May, Jun-Aug, and Sep-Nov), NY now "presumes" that you have a nexus. (You may not - see point 3.)

    2) If you do have a nexus, you are required to collect and pay sales tax for all sales shipped to NY. For instance, if you exceeded $10k in NY cust / NY affil sales from 6/1/07 - 5/31/08, you would be required to collect sales tax on orders shipped to NY from 6/1/08 - 8/31/08. If you continued to have $10k in sales in the previous four rolling quarters, it would continue beyond that.

    3) If you are presumed to have a nexus, it's your obligation to disprove it. The documentation from NY seems to imply that if your NY affiliates only promote the merchant through their web site and do not do offline, PPC, email, newsletters, flyers, etc. promoting the merchant, the presumption will be defeated. That's why you have some merchants adding requirements that NY affiliates only promote through their web site.
    So at what point in the future does the merchant who currently does not have a "nexus" but may well, say just in the last quarter of this year, start collecting taxes? I have a new merchant we will be launching at SAS very soon that will very likely to over $10,000 in sales in NY via affiliates and maybe even in the last quarter of this year.

    There in lies my question I guess.
    Ron Bechdolt | Affiliate Program Management Consultant
    7 Days A Week Marketing

  24. #24
    Moderator MichaelColey's Avatar
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    Read the three points again (and the example in point 2). It's all there, and it's about as simple as it can be explained. Keep in mind that the $10k is sales shipped to NY attributed to NY affiliates.

    It's based on the previous 4 rolling quarters, so if the sales from 6/1/07 - 5/31/08 put you over the threshold, you have a presumption of having a nexus.

    If you have the presumption, keep in mind point 3. If your NY affiliates don't promote the merchant in other ways besides their website, the presumption can be rebutted. This is why many of the more astute merchants are adding restrictions so that NY affiliates are not allowed to promote the merchant in flyers, emails, newsletters, PPC, etc.

    Read through what some of the others are doing. Read through the TSB. Read through the explanations here. It's all there.
    Michael Coley
    Amazing-Bargains.com
     Affiliate Tips | Merchant Best Practices | Affiliate Friendly? | Couponing | CPA Networks? | ABW Tips | Activating Affiliates
    "Education is the most powerful weapon which you can use to change the world." Nelson Mandela

  25. #25
    What's the word? Rhia7's Avatar
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    HomeVisions is adding additional terms/stipulations

    [I made the post in another thread. A mod may want to move the post here]


    http://forum.abestweb.com/showpost.p...0&postcount=51
    ~Rhia7 -- Remember the 7
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