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

[tbp]

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Congratulations Anthony!

And well done to Ashley Madison, what they have done is common sense, especially with this thread in the public domain, however they could have stuck to their guns and refused to pay the commissions.

I think they have come out of this in a positive light now, and I think it serves as a reminder to all merchants to check their own terms and conditions and make sure everything is totally crystal clear as to what is and isn't allowed, which should be a good thing for both merchants and affiliates.

[KieronD]

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

I guess that all comes down to the individuals interpretation. For example, I read the original terms and interpreted them to mean "no mis-spelling". Simple.

But the original poster and obviously you didn't read them that way.

What I'm saying is that there is no right or wrong here, people can interpret things in many different ways. The merchant obviously wrote the original terms and thought they were covered by all eventualities. Obviously this was not the case.

I take this thread as really positive as any new merchant looking to write some terms and conditions can look at the contributions here and come up with some bullet proof t's and c's all courtesy of the affiliate community right here. No charge or consultancy fees!

[Qui Gon Jinn]

lol

No charge or consultancy fees!

.. but someone will copy & paste and charge a nice few quid on consultancy fees

[John Jupp]

lol .. but someone will copy & paste and charge a nice few quid on consultancy fees

Now THAT'S an idea.

You're all right on this from every point of view. The t's & c's can be read in different ways and yes it HAS come from the affiliate community how best to address this and yes merchants CAN learn from this thread to ensure they have a viable policy in place.

It also highlights concerns expressed by many affiliates that networks need to do more to nurture affiliates and not just take the side of the merchant. Not all networks are so blatantly one sided (many go out of their way to help both affiliates and merchants) but I am concerned at how CJ has approached this issue.

[ChrisBishop]

John, you seem exceptionally well clued up on the legals of all this. Where'd you pick this stuff up from? Looks like you've done a lot more than stay awake in the lecture about Carlill vs Carbolic Smokeball Co.

Carlill vs Carbolic Smokeball Co!! ha ha

I take it everybody did that in business law then! I can nearly quote that case word for word!

[hpops]

lol .. but someone will copy & paste and charge a nice few quid on consultancy fees

Well at least I'll have the decency to change the font!

Kudos to Ashley Madison - the right thing done and a PR win (which is almost a bigger lesson than the getting the terms right thing)

Kudos to the forum for collectively applying (polite) pressure - all too rare these days.

And Kudos to John for being knowledgeable in an area I know nowhere near enough about.

All in all, a heart-warming thread

[drivetowin]

Personally, and maybe I'm being pedantic here, I think merchants SHOULD be obliged to specify all of the misspellings which are unacceptable.

Just to say "misspellings or similar words" is to my mind not acceptable - it's too vague - what counts as a misspelling, one letter different, two letters different, three letters different, different punctuation, what?

If it's a contract term it should be clear and precise and not open to interpretation.

It's not like terms and conditions (if they are written correctly) need to be written over and over again so why not spend an hour on day one specifying the misspellings and similar words which are unacceptable - then it's all there in black and white and there can be no 'interpretation' - surely ultimately that would make life much easier all around.

[John Jupp]

Well at least I'll have the decency to change the font!

Kudos to Ashley Madison - the right thing done and a PR win (which is almost a bigger lesson than the getting the terms right thing)

Kudos to the forum for collectively applying (polite) pressure - all too rare these days.

And Kudos to John for being knowledgeable in an area I know nowhere near enough about.

All in all, a heart-warming thread

Ooh! Does that mean some kind souls will add more reputation points.

[Qui Gon Jinn]

Just to say "misspellings or similar words" is to my mind not acceptable - it's too vague - what counts as a misspelling, one letter different, two letters different, three letters different, different punctuation, what?

Yep, a different word is a misspelling .. very loosely .. each misspelling should be specified as I reckon in most instances they don't know them all anyhow & they certainly don't own the trademarks to all of them.

[Gavinio]

Personally, and maybe I'm being pedantic here, I think merchants SHOULD be obliged to specify all of the misspellings which are unacceptable.

Not if you're dealing with honourable people. That would be like parents specifying to children exactly what forms of violence are unacceptable.
1. "Don't hit anyone"
2. "Don't hit anyone with (not limited to but including) your fists, head, feet, knees, cricket bat(whether yours or some-one else's), table, tree branches, sisters' Barbie doll (and any other dolls)..."
T's and C's need only be reasonable, and shouldn't be unnecessarily verbose. Courts look favourably upon companies that have reasonable yet clear conditions.

Chances are, if you think it's a mis-spelling, it probably is.

[hpops]

Not if you're dealing with honourable people. That would be like parents specifying to children exactly what forms of violence are unacceptable.
1. "Don't hit anyone"
2. "Don't hit anyone with (not limited to but including) your fists, head, feet, knees, cricket bat(whether yours or some-one else's), table, tree branches, sisters' Barbie doll (and any other dolls)..."
T's and C's need only be reasonable, and shouldn't be unnecessarily verbose. Courts look favourably upon companies that have reasonable yet clear conditions.

Chances are, if you think it's a mis-spelling, it probably is.

But affiliates aren't children?
The verbosity of the terms isn't the question, the detail is.
I do think it should just say misspellings amd that should cover it - but if it doesn't say misspellings - then its fair game

[drivetowin]

I don't think it's got anything to do with 'honourable' people - it's to do with making life clear cut and simple.

Why have terms which are ambiguous (and simply saying 'misspellings and similar words' is ambiguous) when you can have terms that are crystal clear - I suspect the only reason merchants don't want to do it is because they don't want to find there is an obvious one they have missed out.

Turning your "chances are, if you think it's a mis-speling, it probably is" argument on it's head, does that mean then that if I don't think it's a mis-spelling, it probably isn't - ok then - I don't think Tesko is a misspelling of Tesco - so it probably isn't!!

I know I'm deliberately being argumentative but it is time across the board that affiliates, agencies, networks and merchants started to have contracts that held water rather than a contract that a first year law student could ride a cart and horses through.

[kier]

I don't think it's got anything to do with 'honourable' people - it's to do with making life clear cut and simple.

Why have terms which are ambiguous (and simply saying 'misspellings and similar words' is ambiguous) when you can have terms that are crystal clear - I suspect the only reason merchants don't want to do it is because they don't want to find there is an obvious one they have missed out.

I agree that merchants should always try and be as clear as possible in their contracts to avoid these kind of situations. However asking for an exact list is very tough because as we all know, affiliates are great at finding things you haven't thought of. If a contract says "any misspellings or variations" that should clear enough for most people. If it isn't clear enough and you aren't sure what is acceptable my advice is very simple, speak to the merchant or network before you commit any time and money to it! A quick phone call or email could have prevented the situation in this thread from happening just as easily as clearer terms could have.

I recently had a similar incident occur with an affiliate on a program, they were appearing for a combination of keywords which weren't explicity listed but which it was pretty obvious, to my mind at least, from the rest of the policy should not have been part of their campaign. However I was convinced after talking to the affiliate that the mistake was genuine and as such the decision was made not to cancel their commissions. Sure enough they then complied with the T&Cs from then on. Most importantly though as they were new to the industry I gave them the advice above: if in any doubt then ask! Life would be easier if everything you could and couldn't do was explicity written down with no ambiguities, given however that this won't always be the case then its far easier to ask a question when you are in doubt and get an answer rather than do something, get punished for it and have to write a thread on a public forum to try and get a positive resolution. More importantly than that getting in touch with the network or the merchant in these situations is a great way to start building a trusting relationship and thus to be offered a lot more advice, help and opportunities in the future.

[drivetowin]

Kier

I would agree with you on the 'if you're not sure - ask' point and with Webgains this would definitely be the answer as a) all of your staff are knowledgable and b) yourself, Hero and Ryan never seem to sleep and one of you is always available to ask and will answer in a timely fashion.

Sadly for some other networks the same is not true - it still astonishes me that with the money most networks and agencies now make, they still are unable to resource to provide support outside of standard Monday-Friday 9-5 (and with at least one network even support Mon-Fri 9-5 is hit and miss). Surely support 6am-midnight 7 days a week ought to be possible these days, even if outside office hours that support is via email or dare I say it sms.

[kier]

Yeah, good point!

I must say I find amusing the juxtaposition of some of the views in this thread concerning contracts being made clearer with the views in the thread on negative keywords where people seem to be opposing just such clarification.