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Thread: New "Terms of Servce" Your Input Appreciated

  1. #1
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    We are working in new TOS sections to cover all aspects of Parasitic marketing, your thoights and input is highly appreciated on the below draft exerts.

    ( Point 4 Drafted from Linda's original listing )

    Two Parts. Responsibilities / Definitions.

    Responsibilities
    1/ Consumers who link to Merchant’s site through a Qualifying Link on Affiliate’s site shall
    experience Merchant’s site exactly as if they had accessed it directly from their browsers.
    Additionally, Affiliate shall not transmit any so-called “interstitials”, "ParasiteWare™", "Shopping Assistance Software", "Shopping Wallets" or “pop ups/unders” to Consumers from the time the Consumer clicks on a Qualifying Link until such time as the Consumer has fully exited Merchant’s site (i.e., no page from Merchant’s site or any Merchant content or branding is visible on the Consumer’s screen).

    2/ Affiliate shall not cause the creation or over writing of a tracking cookie on a Consumers computer unless it is the direct result of a click, on a Qualifying Mark, to the Merchant’s site from a web site or e-mail. Affiliate will also not cause the creation of a tracking cookie on a Consumers
    computer through means of automatically popping up the Merchant’s site, nor through the use of Iframes or any other means that a direct Consumer initiated click on a Qualifying Mark, to the Merchant’s site.

    3/ Under no circumstances shall Affiliate send commercial electronic mail messages as defined in the new Federal spam law, the CAN-SPAM Act of 2003 [the "Act"], with respect to Merchant’s Program. For clarification, this does not prohibit Affiliate from sending transactional or relationship messages as defined in the Act. Merchant reserves the right to collect, withhold, or cancel any and all compensation related to the content Affiliate sends via commercial electronic mail messages that violate the CAN-SPAM Act of 2003.

    4. Affiliate agrees not to automatically set tracking cookies on the Consumer's computer in any way. i.e. Only direct clicks on a Qualifying Link by a site visitor may be used as a way to initiate the creation or overwriting of a tracking cookie. Automatic setting of tracking cookies or causing forced clicks by way of the automatic creation of new browser sessions feature the Merchant, off screen browser sessions, application pop ups, multimedia fly bys, site framing techniques, web page redirects, hidden links or any other means shall result in the immediate termination of all Engagements and this Agreement along with loss of all outstanding revenue earned from the Offer.

    Definitions
    Parasiteware / Parasitic Marketing:
    a. A software that through accidental or direct intent causes the overwriting of affiliate and non affiliate tracking cookies through any other means than a customer initiated click on a Qualifying Link on a web page or email.
    b. A software that intercepts natural searches to redirect traffic through an installed software, thereby causing, pop ups, tracking cookies to be put in place or other tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the natural search. (Natural search engines being, but not limited to, Google, MSN, Yahoo, Overture, AlataVista, Hotbot, LookSmart and similar search or directory engines)
    c. The setting of tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open the Merchant site.

    Qualifying Link
    A “Qualifying Link” is a link from Affiliate’s web site or email to Merchant’s using one of the Required URLs or any other URL provided by Merchant for use in The LinkShare Network™ if the Consumer completes a Qualifying Transaction during a Session; however, if a Consumer links from another Affiliate during a Session, the Qualifying Link shall be considered to be from the last Affiliate site the Consumer visited prior to completing a Qualifying Transaction, that does not violate any of the terms laid out in this agreement

    TERMINATION
    Any breach of any of the provisions of this Section shall be deemed a material breach by
    Affiliate of its Engagement and this Agreement and Merchant reserves the right to immediately terminate all Engagements and this Agreement along with loss of all outstanding revenue earned from the Offer.


    Thanks

    Chris


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  2. #2
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    I'd choose #4 or just copy backcountrystores TOS and add in the CAB-SPAM bit and your penality clause.


    No sane person could understand the meaning or intent of #1.

    Mike & Charlie ...

    If they won't adopt and feed a bird ..flip them one! BBQ some Gator and remember to flush WhenU..

  3. #3
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>No sane person could understand the meaning or intent of #1. <HR></BLOCKQUOTE>

    Wait until the lawyers get hold of it all !

  4. #4
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    LOL Chris. I thought they aready did and were on a drunk at the local pub with you picking up the tab. I see where your coming from...

    No commission unless the physical click comes from your own viewable web page. No violations of the CAN-SPAM act or misuse of our trademarks in the SE's or your pages. No terminology that would confuse the shopper into thinking you anything other then an affiliate of the merchant on your pages or in SE listings.

    Mike & Charlie ...

    If they won't adopt and feed a bird ..flip them one! BBQ some Gator and remember to flush WhenU..

  5. #5
    Content $ Queen Ebudae's Avatar
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    I'm not a lawyer or expert but it looks good to me.

    I might want to say - instead of software, any application

    But then again, that might be the same - just trying to think like the bads guys will - looking for loopholes.

    Thanks!


    Ebudae

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  6. #6
    ABW Ambassador Radegast's Avatar
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    I may have this wrong, but don't 'tracking' cookies of various kinds get set (legitimately) automatically...?

    As distinct from commissionable cookies which should only be set when the visitor performs an action?

  7. #7
    Resident Genius and Staunch Capitalist Leader's Avatar
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    In #2 you use the term Qualifying Mark. This should be changed to Qualifying Link, for clarity and uniformity with the rest of the document. (The "clarity" part is needed because a Mark is usually a Trademark, which would be either your name or logo. But I'm sure you don't mean to disqualify legitimate links that simply say CLICK HERE or otherwise don't incorporate a trademark!)

    This part makes #1 a bit confusing "(i.e., no page from Merchant’s site or any Merchant content or branding is visible on the Consumer’s screen)." I understand it, but there's got to be an easier way to communicate this part.

    Also, what Radegast said. *Impression*-tracking cookies are supposed to be set for each link/ad/banner/etc shown (even if not clicked). You need to make it clear that the auto-setting of COMMISSION-tracking cookies is what's prohibited, as opposed to being generic as to the type of tracking cookie. The Click Through Rate stat will break without automatic imp tracking.

    ~Cheapskate merchants need not apply

  8. #8
    ABW Ambassador Radegast's Avatar
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    "however, if a Consumer links from another Affiliate during a Session, the Qualifying Link shall be considered to be from the last Affiliate site the Consumer visited prior to completing a Qualifying Transaction"

    Is this accurate? Doesn't it apply during the lifetime of the commission-tracking cookie, rather than just during the 'session'?

  9. #9
    Moderator MichaelColey's Avatar
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    In addition to forced and/or hidden clicks, you might want to address deceptive clicks.

    I'm not sure if I'm understanding #1, particularly the restriction of popups. When someone clicks through on a coupon link on my site, I do a popup with details about the coupon. From the sounds of things, that would be in violation, although I doubt that is your intention. What are you trying to prohibit?

    Michael Coley
    Amazing-Bargains.com

  10. #10
    ABW Ambassador Radegast's Avatar
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    Yes, that point needs to be nailed down - I assume the intention isn't to ban all pop ups/unders, but to prevent the merchant site being popped up?

    (I don't use pop-ups but I would resent any merchant or network telling me how to manage my own website..)

    "Additionally, Affiliate shall not transmit any so-called “interstitials”, "ParasiteWare™", "Shopping Assistance Software", "Shopping Wallets" or “pop ups/unders” to Consumers from the time the Consumer clicks on a Qualifying Link until such time as the Consumer has fully exited Merchant’s site (i.e., no page from Merchant’s site or any Merchant content or branding is visible on the Consumer’s screen).
    "

    That doesn't make sense - it says no page from the merchant's website should be visible until the consumer has fully exited the merchant's site...

    Also it's possible to delay pops, so 'until such time as the Consumer has fully exited Merchant’s site' may not be sufficient to cover all cases.

  11. #11
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    Excellent thank you for this feedback , I'll get to work on the next draft of this and have it posted later today, in essence it is aimed at

    - not allowing pops from other sites appearing on the merchants site (of any kind)
    - Automatic 'commission' cookies
    - Popping the merchant site other than from a Qualified Link
    - Stopping applications that pop up on the merchant site for any reason, delayed pop ups, multimedia or applications..anything!
    - Stopping interception of natural searches, as this is where nCase and others kill merchants on brand name redirects


    i.e User searches "Mondera" in IE task bar and instead of the MSN search coming up with Mondera at the top, nCase redirects to the nCase results.... which should also violate most companies regulations on brand name protection... interesting angle for the next law suit against the usual suspects would think

    Perhaps the term "natural click" is what is needed, defined as '.......' ideas?

    Cheers

    Chris


    <font size="1"> Web Studio-1 Solutions.
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    <FONT COLOR=red size="1"> A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again. Alexander Pope </font></font>

  12. #12
    Moderator MichaelColey's Avatar
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    One difficulty that a fellow ABW member pointed out to me...

    On my site (as on most other coupon/bargain sites), I have a redirect script. Instead of linking directly to a merchant site, all of my links are stored in a database and I link to a page like "http://www.amazing-bargains.com/j/overstock-10450.html", which then redirects to the merchant site. This gives me several benefits, including the ability to track clicks, hide the linking code, and simplify links. One problem, however, is that search engines sometimes pick up those redirect pages and index them. (I've even seen search engines index plain affiliate links.) If someone finds one of those pages in a search engine and clicks on it, it goes to the merchant's site (setting a cookie). I don't see any way to avoid this.

    Michael Coley
    Amazing-Bargains.com

  13. #13
    Merchant Linda's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by MichaelColey:
    One difficulty that a fellow ABW member pointed out to me...

    On my site (as on most other coupon/bargain sites), I have a redirect script. Instead of linking directly to a merchant site, all of my links are stored in a database and I link to a page like "http://www.amazing-bargains.com/j/overstock-10450.html", which then redirects to the merchant site. This gives me several benefits, including the ability to track clicks, hide the linking code, and simplify links. One problem, however, is that search engines sometimes pick up those redirect pages and index them. (I've even seen search engines index plain affiliate links.) If someone finds one of those pages in a search engine and clicks on it, it goes to the merchant's site (setting a cookie). I don't see any way to avoid this.

    Michael Coley
    http://www.amazing-bargains.com<HR></BLOCKQUOTE>

    I've seen this too because we also use the same type of set up. MSN search does it quite often (sends the person straight to the merchant site) and I also started seeing it on Yahoo searches in my logger file yesterday. It's nothing we've done and personally I don't like it being done even on our links because I'd prefer the visitor coming to my pages first.

  14. #14
    Content $ Queen Ebudae's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> Chris:
    Stopping interception of natural searches, as this is where nCase and others kill merchants on brand name redirects <HR></BLOCKQUOTE>

    Chris, could you also add that they are not allowed to overwrite / replace our banners.

    I am just thinking how that driveby install of NCase and their cronies was replacing my banners with theirs.

    Thanks!

    Ebudae

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    if you do not understand, things are just as they are.

  15. #15
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    Okay...Draft 2....

    Michael please review point 8 especially, let me know your thoughts. I'm not sure it works, and may have to be reviewed case by case, on sites that create pops to aid in the shopping but do not provide deceptive marketing links.

    Ebudea added about banners in two places, please review.

    Software changed to application, Tracking cookie to commission tracking cookie, redid part 1 as it made no sense even to me when I read it again

    Three Parts. Responsibilities / Definitions / Termination
    -----------------------------------------------
    RESPONSIBILITIES.
    <UL TYPE=SQUARE>
    <LI> 1/ Consumers who click through to Merchant’s site through a Qualifying Link on an Affiliate’s web site or email shall experience Merchant’s site exactly as presented by Merchant. Therefore, Affiliate shall not transmit any so-called “interstitials”, "ParasiteWare™", “Shopping Assistance Application”, “Toolbar Installations/Add ons”, “Shopping Wallets” or “deceptive pop ups/unders” to Consumers at any time from the moment the Consumer clicks the Qualifying Link to the moment they have fully exited Merchant’s site.

    <LI> 2/ Affiliate shall not cause the creation or over writing of a commission tracking cookie on a Consumers computer unless it is the direct result of a click, on a Qualifying Link, to Merchant’s site from a web site or e-mail. Affiliate will also not cause the creation of a commission tracking cookie on a Consumers computer through the means of automatically popping up the Merchant’s site, through the use of Iframes nor through any other method, other than through a direct Consumer initiated click, on a Qualifying Link, to Merchant’s site. Further more, such commission tracking cookie setting is in violation of this agreement and not permitted in any way.

    <LI> 3/ Under no circumstances shall Affiliate send commercial electronic mail messages as defined in the new Federal Spam law, the CAN-SPAM Act of 2003 [the "Act"], with respect to Merchant’s Program. For clarification, this does not prohibit Affiliate from sending transactional or relationship messages as defined in the Act. Merchant reserves the right to collect, withhold, or cancel any and all compensation related to the content Affiliate sends via commercial electronic mail messages that violate the CAN-SPAM Act of 2003.

    <LI> 4/ Affiliate agrees not to automatically set commission tracking cookies on the Consumer's computer in any way. i.e. Only direct clicks on a Qualifying Link by a site visitor may be used as a way to initiate the creation or overwriting of a commission tracking cookie. Automatic setting of commission tracking cookies or causing non-Consumer initiated clicks, by way of the automatic creation of new browser sessions featuring Merchant, off screen browser sessions, application pop ups, multimedia fly bys, site framing techniques, web page redirects, hidden/deceptive links are in violation of this agreement and not permitted in any way.

    <LI> 5/ Affiliate agrees not to intercept searches on Merchant Trademarks on natural search engines, through the use of applications or any other means, for the purpose of redirecting them to a new search results page or redirecting them to Merchant site with a commission tracking cookie placed on the Consumers computer. Links on such a results page (whether on a web page, application or otherwise) are not considered Qualifying Links and any sales generated from such links will not be commissionable. Further more, such links are in violation of this agreement and not permitted in any way.

    <LI> 6/ Affiliate agrees not to target sites other than those 100% owned by them for the purpose of contextual advertising. Links created through the targeting of other affiliates’ sites or Merchant’s site by any kind of contextual advertising are not considered Qualifying Links and any sales generated from such links will not be commissionable. Further more, such links are in violation of this agreement and not permitted in any way.

    <LI> 7/ Affiliate agrees not to target Affiliate or Merchant site with banner replacement or blocking software. Links created through the targeting of other affiliates’ sites or Merchant’s site by any kind of banner exchanging, replacing, overlaying or blocking systems are not considered Qualifying Links and any sales generated from such links will not be commissionable. Further more, such links are in violation of this agreement and not permitted in any way.

    <LI> 8/ Sites that use Pop Up/Unders for the purpose of aiding in the promotion of coupons must clearly state on the link that will generate them, what they will do, and that the link creating them will create a “pop up/under”. Pop Up/Unders may not be used for setting tracking.
    [/list]


    DEFINITIONS.
    ParasiteWare™ / Parasitic Marketing.
    a. An application that through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a Qualifying Link on a web page or email.

    b. An application that intercepts natural searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the natural search. (Natural search engines being, but not limited to, Google, MSN, Yahoo, Overture, AlataVista, Hotbot, LookSmart and similar search or directory engines)

    c. The setting of commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open the Merchant site.

    d. An application that targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing.

    e. An application that removes or replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application

    Qualifying Link
    A “Qualifying Link” is a link from Affiliate’s web site or email to Merchant’s using one of the Required URLs or any other URL provided by Merchant for use in The LinkShare Network™ if the Consumer completes a Qualifying Transaction during a Session; however, if a Consumer links from another Affiliate during a Session, the Qualifying Link shall be considered to be from the last Affiliate site the Consumer visited prior to completing a Qualifying Transaction, that does not violate any of the terms laid out in this agreement

    TERMINATION
    Any violation of any of the provisions of this Section shall be deemed a material breach by Affiliate of its Engagement and this Agreement and Merchant reserves the right to immediately terminate all Engagements and this Agreement along with loss of all outstanding revenue earned from the Offer.
    -----------------------------------------------
    Your feedback again very much appreciated. My aim is to have this live on Monday.

    Thanks

    Chris


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  16. #16
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Damn shame the only need for this great TOS addendum is to protect an honest merchant from his own dishonest affiliate eCashregister preditors. Is this the reason for ABW having 11,000 members? They come here to pick up converting merchants for their tricks for clicks games.

    Where do I click Chris to accept these terms?

    Mike & Charlie ...

    If they won't adopt and feed a bird ..flip them one! BBQ some Gator and remember to flush WhenU..

  17. #17
    Moderator MichaelColey's Avatar
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    Looks pretty comprehensive to me. You might want to generalize some of the sections a little to cover all your bases.

    For instance in section 3, you might want to require that they comply with all laws regarding emails, and just mention CAN-SPAM as an example. It wasn't the first law about SPAM and it certainly won't be the last. Also, the wording of the first sentence seems to imply that NO commercial emails are allowed, which I think you're just wanting to restrict ones non-compliant commerical emails.

    For section 8, I think I would just say that popups cannot set tracking cookies and cannot be deceptive. There are lots of legitimate uses of popups.

    Michael Coley
    Amazing-Bargains.com

  18. #18
    Resident Genius and Staunch Capitalist Leader's Avatar
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    Seems fine at first read, except:

    I agree with Michael Coley about the legitimate use of popups. You seem to want a lot of disclaimers for them! Although that may be okay if it gets people to turn off their popup blockers in order to see the info. But what I really imagine happening is people who use Micheal's method being stuck adding a bunch of anti-conversionary legalese next to every link.

    Second, this line is kind of redundant: "Further more, such links are in violation of this agreement and not permitted in any way." Just work the use of the word "prohibited" into the main paragraph instead of having that as a seperate line. Once something's contractually prohibited, that automatically makes "doing it anyway" a violation.

    ~Cheapskate merchants need not apply

  19. #19
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    Okay all fixed bar this one...still giving me a headache

    8. Sites that use Pop Up/Unders for the purpose of aiding shoppers may not use such pop ups to set commission cookie tracking, deceive the shopper or redirect the shopper from Merchant site at anytime for any purpose. Pop Up must be free of any kind of link.

    Have to be careful, WhenU for example could claim that their pop ups aid shoppers.... hence the 'no links in pop up' bit.... thoughts?

    Cheers

    Chris

  20. #20
    Moderator MichaelColey's Avatar
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    What exactly is it that WhenU does? Do they set a tracking cookie with their popup? Or do they deface sites by covering up ads with their own ads? Or something different?

    Michael Coley
    Amazing-Bargains.com

  21. #21
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    They pop up during check out saying "you could be saving on this purchase click here to learn more" , user clicks, then may or may not ever end up back where they started, all tracking is overwritten anyway and in the case where you are not a WhenU partner in unethical redirection of customers then the sale is 100%stolen and sent to one of the scum merchant partners. Hence the need for "no links in a pop up" .........bleaugh.... it's just a big bag of worms this is


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  22. #22
    Moderator MichaelColey's Avatar
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    Okay, I see. Sorry for the ignorance about what specific scumware does. Why not just restrict any sort of interception of customers or cookie-setting activites after the customer is already at the merchant's site?

    Michael Coley
    Amazing-Bargains.com

  23. #23
    Content $ Queen Ebudae's Avatar
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    Chris - just have to say - this is one of many reasons you are one of my favorite affiliate managers.

    If only all the networks and merchants were as diligent and cared about the affiliates, no matter how big or small!!!

    Thanks so much for ALL you do!!



    Ebudae

    If you understand, things are just as they are...
    if you do not understand, things are just as they are.

  24. #24
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    Thanks Edudae

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Why not just restrict any sort of interception of customers or cookie-setting activites after the customer is already at the merchant's site? <HR></BLOCKQUOTE>

    Sections 1 to 7 cover that pretty well I believe, but I was trying to build in something to cover people who have pop ups that ADD value without messing with tracking, the alternative is to have no clause 8 and do it case by case?

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