Reversed commissions, policy changed, expert help please!!!

[gadget]

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John, is this where IR35 comes in?

[gadget]

I was actually thinking of County Court followed by Court of Appeal if needed, not a small claims option. It would then set a legal precedent which would become Case Law for which all other claimants may then refer to.

Is there a case for this community as a whole to take action?

We are not just discussing this case here, we are talking about the fundamental principles behind the actions of the Merchant and the Network. To be fair, we are also recognising the responsibilities of the Affiliates too, although I don't believe this is applicable in this particular case.

One possible solution is for selected members of our community holding round table discussions with the Networks.

[John Jupp]

No. Class action is not relevant here. It would require an individual case to argue a specific point of the laws governing Breach of Contract which if successful would result in a precedent or Case law being enacted, which in turn may be referred to in future legal cases.

As for the fact that you are "working" through an Agency as hinted at by IR 35 I am not sufficiently competent in that aspect to quantify. It would be best to consult a Solicitor who specialises in Contract Law. I'm a few years away from my BA(hons).

[KieronD]

Here's my thoughts:

If I looked at a merchants T's and C's and they said this: "Note: Cannot use any form of Ashley Madison or slogans, descriptions etc associated with Ashley Madison."

I would assume that includes mis-spellings so I wouldn't bid on mis-spellings. So to be brutually honest I think the merchant has every right to reverse your commissions.

But...in the spirit of building a relationships I would also admit (as a merchant) that the t's and c's aren't as clear as they could have been and I would therefore allow the commissions but warn the affiliate that mis-spells are a no-no from now on.

Thats my point of view.

[John Jupp]

I agree with your interpretation Kieron. The stumbling block is the t's & c's then went on to specify specific keywords which would effectively act as a clarifier and replace the original specification.

The whole thing can be easily and amicably resolved. It would take agreement for the merchant to pay up on this occasion. It's only if there's a digging in of heels that what could be amicably addressed turns into a lawyer's free lunch.

[Ambski]

As crazy as it may sound but I completely see both sides of this.

My only complaint is the 'closing the door after the horse has bolted' and rough-housing 'that's what we meant' attitude they have displayed.

I have directly responded to Jeremy @ AM to hopefully resolve this situation ammicably.

Will let you know...

[Frostie]

"Note: Cannot use any form of Ashley Madison or slogans, descriptions etc associated with Ashley Madison."

I would assume that includes mis-spellings so I wouldn't bid on mis-spellings. So to be brutually honest I think the merchant has every right to reverse your commissions.

WOW No way dude!

A merchant can't just say that and expect that they have covered off every possible eventuality and then jump on an affiliate and reverse everything. They are simply taking money away from an affiliate and are to blame for producing what is basically a useless set of T&C's that are openended and ambiuous. Thats not the affiliates fault.

I've just been speaking to another merchant who plan on changing their PPC guidelines in the near future. I've suggested if they want to cover mis-spellings then they should provide examples. After all, what they consider a mis-spell I may not, so the best way is to give examples of the levels;
TRADEMARK - Brand (BANNED)
TRADEMAKR - Mis-spell (BANNED)
T4ADEMARK - Typing error (BANNED)
TADEMARK - Missing characters (BANNED)
TRADE-MARK - Spaces or hyphens (BANNED)
TRADEMARK REGISTERING - Brand + Generic (BANNED)
TRADEMARK WIDGET - Brand + Product (BANNED)

It would be best that if a merchant decides to go down this route, to provide an example of worst case scenario of what they class as a mis-spell.

It is essential to be clear cut when issuing T&C's and Guidelines and not to use generic big fluffly cloudy words that can be ambiguous, open and mis-interpreted and then think you have the right to come back on. It simply doesn't (or shouldn't) work this way, after all it doesn't in any other business contract so why should Affiliate Marketing be any different?

[gadget]

This thread has given me an idea. Rather than hijack this thread, I've started another one at - Good Idea or Bad Idea?.

I'd welcome the contributors to this thread to consider responding to the new thread.

Finally, ambski .. you'd be very welcome if this idea gets started!

[Ambski]

Hi all,
I bring glad tidings. This has now been resolved. See below for latest message from Jeremy Evans @ Ashley Madison:
"HI Anthony,
I would agree with you that the terms left room for interpretation and they were not clear enough in this instance regarding the miss-spells.
As I stated, I would love to have you continue as one of our affiliates
We try to resolve any disputes with our affiliates to a mutual satisfaction, as the relationship is far more important to us than any financial gain that may be had.
I will have our terms and conditions adjusted on the Commission Junction to highlight the conditions regarding miss-spells.
In the future, if you have any questions regarding our affiliate program, please contact me directly and I can give you an answer on the spot.
If you would like, we would also extend to you a ??% lifetime commission rate on our own affiliate program. I know that the response that you received from Commission Junction was less than helpful, so I would like to get you into our program directly so that we can manage our relationship better going forward.
I will re-institute your commissions today and wish you all the best.

Sincerely,
Jeremy Evans"

The commission has now been re-instated and Ashley Madison have (eventually) come out of this matter in high regard. As for CJ...

A big thanks to all that, by making a stand, brought this matter to a higher attention than I alone could have. I salute all that posted their messages on this thread regardless of which side of the fence they sat.

So what have we learnt?
Perhaps we should be more active in guiding Merchants in how to write their terms, instead of abiding by and getting caught in 'grey areas' by them?

I would love to see some good come from my stand which can help all parties.

Finally, thank you again. You know who you are...

[drivetowin]

John

I think where the employee argument falls down is that as an affiliate (except with one network which is not CJ) there is no contract between the affiliate and the merchant. The affiliate has a contract with the network and the merchant has a contract with the network, but there is no legal contract between the affiliate and the merchant.

[John Jupp]

Keith you are definitely right in part. the problem is that this is such a grey area as it isn't a simple Contract betwen two parties but rather between three. Don't you just love affiliate marketing.

On the main note of the thread. Well done for getting this issue resolved and all credit to the merchant for not only listening to this issue but taking on board the entire situation and resolving this in an amicable manner.

I am delighted that you'll be reimbursed. Suggest you edit the reply though so as not to reveal commission rates as that's confidential between the two of you. Well done though for sticking to your guns.

[Hero]

the best way is to give examples of the levels;
TRADEMARK - Brand (BANNED)
TRADEMAKR - Mis-spell (BANNED)
T4ADEMARK - Typing error (BANNED)
TADEMARK - Missing characters (BANNED)
TRADE-MARK - Spaces or hyphens (BANNED)
TRADEMARK REGISTERING - Brand + Generic (BANNED)
TRADEMARK WIDGET - Brand + Product (BANNED)

In my view, this would open up another gray area, where the affiliates would say "oh, but you didn't specify this in your examples". If a merchant says "no use of brand, variations and misspellings", that includes it all - no room for interpretations and gray areas. I think this is what the particular merchant wanted in place, but went for a more vague wording which allowed for the confusion.

Good to see it all sorted out in the end though

[KieronD]

In my view, this would open up another gray area, where the affiliates would say "oh, but you didn't specify this in your examples". If a merchant says "no use of brand, variations and misspellings", that includes it all - no room for interpretations and gray areas.

Exactly. There will always be people who are pedantic and if something isn't specifically quoted in black and white in the terms and condititons, will exploit it. We need to be mature enough to interpret the t's and c's in a responsible and professional way.

Great to see that Ashley Maddison have re-instated the commissions and are acting with grace in this matter.

[DavidCartlidge]

We need to be mature enough to interpret the t's and c's in a responsible and professional way.

yeah - but they at least need to mention 'miss-spellings' if they don't want to allow them!

It one thing to say that you would interpret them in a given way, but that is not going to be the case with many others.

The best option is surely to say that "miss-spellings of a,b,c are not allowed for example [and this is not an exhaustive list] blah blah..."

[Qui Gon Jinn]

I would also like to simply reiterate on hearing the good news.

The merchant has come out favourably, and in a way is postive PR for them is resolving amicably creating an awareness of the program, which may not have been there before.

It really highlights that with the CJ network quality, it is much better the merchant & affiliate liase with each other than CJNQ needlessly embroiling the situation.

Yes , "we need to be mature enough to interpret the t's and c's in a responsible and professional way", but with any contract you need to dot the i's & cross the t's whether it be in business or even sport. This particular case, is fairly typical, but shows that mediation is often better without the third party as well as illustrating that affiliates can pull togther in support if they have the inclination by even communicating with the merchant or each other.