FANTASYLAND, World of Hurt – A friend of mine forwarded me a link to the terms and conditions agreement for an affiliate program. She was considering signing up for the program, but a specific paragraph put her off. So, she asked a fairly simple question: “Does this sound kosher to you?”
As it turned out, the bit of tortured legalese pretty obviously wasn’t written by or for a company that operates adult entertainment websites. How could I tell? It includes a term effectively prohibiting adult entertainment websites from sending traffic.
Brilliant, right? What’s next — launching an affiliate program promoting a site that sells books, but that also prohibits its advertising affiliates sending traffic from their book-review sites?
You might assume I’m stretching to make a point here, but I’m not.
The verbiage in this particular T&C specifies, on the one hand, that the program will “make available to you…graphic and textual links to the Program Web Site and/or other creative materials…which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, ‘Media’).”
That’s all pretty standard so far, but on the other, highly-confused hand, this same affiliate program requires its affiliates to avow that “all materials posted on your Media” will not “contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that [Program] informs you that it considers objectionable.”
I added emphasis above to highlight a few of the more problematic specifics, but I suspect I don’t have to explain to the YNOT reading audience why it might be something of an issue for an adult webmaster to be unable to have anything “sexually explicit” anywhere on his or her “Media” when the definition of “Media” includes “web sites owned or controlled” by that adult webmaster — so I’m not going to dwell on that point.
What I am going to dwell on is the assumption that these terms and conditions were copied and pasted from another website — a website that may have been another adult affiliate program with “cut and paste” terms — sadly enough, considering how widely copied and pasted some mainstream T&C have become within the adult industry.
Copying and pasting terms and conditions from another site might seem like a cost-saving maneuver, but the truth is since you probably have next to no idea what you’re doing, it’s going to end badly.
The people who pasted these particular terms together definitely didn’t know what they were doing, even if most of the text they snagged arguably is sufficient for the purpose it is designed to serve. Among other things, the T&C doesn’t include a severability clause stating that if any of the agreements’ terms are found to be unenforceable or contrary to state, federal or local law (etc.), the rest of the terms remain in force.
While not including such a clause doesn’t necessarily or automatically make all of the terms of the agreement unenforceable or anything drastic like that, if anyone were to challenge the terms as a result of a dispute with the affiliate program, the program might find itself unnecessarily arguing in favor of the severability of its terms, because it didn’t make severability explicit.
Another thing that makes these terms and conditions a little hard to take seriously is the fact they are displayed on a page that includes, in the page’s header, content to which 2257 applies but there’s no 2257 statement on the page — or anywhere else on the affiliate program’s site that I could find, for that matter.
Assuming the affiliate program is a non-U.S. operation, you might figure it simply don’t have to worry about 2257. That point actually is arguable, but what isn’t arguable is that as an American affiliate of theirs, you do have to comply with 2257.
As such, how confident would you be that any content a program like this provides, including sexually-explicit advertising creatives (which, according to the terms, you wouldn’t be allowed to use, anyway) are, in fact, 2257-compliant? If the company doesn’t post the required disclaimer and labeling on its site, what makes you think it is paying any attention to the rest of the requirements, including those affecting your ability to comply with the regulations?
The bottom line is, even if you don’t hire an attorney to write your terms, before you publish those terms, you damn well better hire an attorney to read and approve them. Sure, there’s no reason a layman can’t write effective, enforceable terms, but the odds are stacked against that possibility. Contract law is complicated, even when the contracts at issue are not.
The thrust of the lesson here? Don’t be a cheap motherfucker when it comes to things that really matter. In case you’re wondering, yes, the particulars and details of your affiliate program’s terms and conditions do matter.
This is your business we’re talking about here, after all, not an entry in the frog-racing competition at your local state fair. If it’s not worth investing the money required to hire an attorney to help with your terms and conditions, then it’s probably not a business worth having in the first place.
If you insist on writing your own terms — and you insist on not having them reviewed by an attorney before they are enacted — then let me save you some time and effort by giving you a single line of text to copy and paste that you can use as the signup receipt returned after a new affiliate has registered, and in so doing, acknowledged your Terms and Conditions:
“Welcome to Our Affiliate Program: Your Account Has Been Terminated.”
(Important note: Remember to delete the quotation marks!)
