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CJ's New Publisher Service Agreement
October 11, 2005
Commission Junction recently released a new PSA, and there's a very interesting thread going on right now at ABestWeb, with affiliates pointing out several terms which, from the affiliate point of view, are questionable or require further clarification. If you have the time (the thread is currently five pages long), click over and give it a read - there's interesting stuff on every page of the thread, right to the end (and it's not ended yet, that's for sure).
As a summary, here are some of the sections of the PSA that are raising the most eyebrows among affiliates (emphasis added):
Privacy policy:
2(e) (e) Privacy. You must conspicuously post Your privacy policy on Your Web site and otherwise make it available to all Visitors. Your privacy policy must comply with all laws and regulations regarding the privacy of Visitor information, be commercially reasonable, and fully and accurately disclose Your collection and use of Visitor information. You must fully and accurately disclose Your use of third party technology, including CJ's tracking technology, use of cookies and options for discontinuing use of such cookies.
Obviously, affiliates don't really want to tell site visitors how to dismantle cookies, since sales and commissions are tracked using those cookies.
There's also the issue of why affiliates have to explain CJ's tracking technology to visitors, since a typical privacy clause, when talking about links to third parties, usually just includes something to the effect that the site links out to third party sites and has no responsibility for things that might happen on those third party sites.
Charge-Backs
3(b) Charge-backs. An Advertiser may apply, or CJ may apply, a debit to Your Account in an amount equal to a Payout previously credited to Your Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or (v) Publisher failure to comply with Advertiser's Program terms or other agreement with Advertiser ("Charge-back"). Charge-backs may be applied to Your Account at any time, including previous payment cycles.
The previous PSA gave CJ an unlimited right of reversal only in cases where the affiliate failed to comply with the terms of the PSA, while advertisers had the right to reverse payments for a 60 day period. Under the new terms, both CJ and advertisers are provided with non-time-limited reversal rights that are not contingent on non-compliance with the terms of the PSA. According to the thread, advertisers currently do not have to provide proof of reasons for charge-backs.
Indemnity Clause
8. Publisher's Indemnification Obligations. Publisher shall defend, indemnify and hold CJ and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher's breach of or non-compliance with this Agreement, (b) Publisher's violation of any law, or an alleged violation of law by CJ, that is a direct or indirect result of Publisher's use of the Network Service ...
You are therefore required to indemnify or hold CJ harmless for any claims arising as a result of an alleged violation of the law by CJ.
What This All Means to Affiliates
The main concern expressed at ABestWeb has been with the non-time-limited right to reverse commissions.
As one poster noted, courts today look to industry standards in determining whether contractual terms are enforceable. Others pointed out, what affiliate wants to go to court over this? Some expressed doubt that CJ would let a merchant decide to do something like reverse two years of commissions, on grounds of "product returns".
It appears that several affiliates see the new PSA terms as triggering a moment of decision. Some have already started pulling CJ links off their sites, with succinct emails to the merchants involved explaining why.
As an aside: Uproars like this one are one of the best arguments for placing your affiliate links in include files - if you decide it's time to drop a merchant, it's just a matter of replacing the links in your include files, rather than having to go through all of your pages.
I'm currently using only two CJ merchants myself, since the bulk of the affiliate programs I've joined are with ShareASale (a network I highly recommend) or are independents.
This whole thing is definitely food for thought.
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Posted by BJ at 09:27 PM in Affiliate Marketing | Permalink
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Comments
Yikes, I have to be honest and admit I haven't yet read it all through. I use several affiliates thru them at this point -across a wide variety of topics...
I will be rethinking everything and checking out new affiliate programs, joy.
Posted by: Chrissie | Oct 12, 2005 6:18:09 PM
This certaily poses a dilemma.
Posted by: Cy | Oct 17, 2005 6:45:45 PM
