Read The Fine PrintIn the last week, I’ve had a series of unrelated discussions that all seem to go back to the topic of an affiliate program’s TOS, or Terms of Service. These interactions have hammered home the importance of actually reading and understanding these documents and not just clicking the box at the bottom of the wall of text. One series of discussions was with an affiliate program in the making, and wanted my input on their TOS. The other was in relation to a very well established affiliate program that I had recently joined.

TL;DR version – read your TOS, and even if you get the OK from a program to go against the TOS, don’t. You’ll be screwed. 

We all are aware of the selective enforcement of these documents at times (as the case with WordPress’s freehosted blog service and their view on adult materials). While a program may be “unofficially” allowing a TOS to be broken by not enforcing it, there usually does come a point where that document is enforced, resulting in anything from a minor annoyance to the full fledged shutting down of your web site. This was the issue I was faced when joining this already established program, taken to another level.

As I’m not going to name the product, or the program, for the sake of ease of discussion, let’s call the product the “Goodnighter”.

I had read some rather negative things about this program over time – specifically, selective enforcement of their TOS. Webmasters had set up web sites with the name of their product in their domain name. This is a pretty standard part of a TOS when it comes to web marketing. So when webmasters set up sites like GoodnighterReviews.com, ILoveGoodnighers.net, and GoodnighterBabes,org I would assume they did so without reading the TOS. It came to light that these webmasters actually contacted the program ahead of time, OKed these domain names, and were promoting them for a number of years with no issue what so ever. Then came the day when “Goodnighter”, under the advise of their lawyers, started enforcing this section of the TOS to protect their copyright over the product name. Some of the webmasters were forced to hand over their domains to Goodnighter. Some of the webmasters got their outstanding affiliate earnings, while others didn’t (as their TOS explains that if you get terminated, any unpaid earnings go back to the program). Needless to say this left a rather nasty taste in the mouths of the webmasters, and took to the adult webmaster forums to complain. Cue PR nightmare, screenshots of the emails OKing the domain names, and a whole lot of people out money.

But, this happened years ago. Staff had changed and this program was starting to get back into the general good graces of the webmaster population. I signed up with a bit of reservation, but never actually got around to using any of their materials or pushing their products. Just this week another hiccup came with Goodnighter, when another webmaster got canned for promoting their goods on forums. As this was a bit strange, I decided to really go through their TOS with a fine-tooth comb and came across this section (bolded by me for emphasis):

“Your participating websites may not and may not be one-click away from any content or technology that would: […] (xii) use or promote the use of bulk email or spam, news group, IRC, forum, social media, including, but not limited to, Myspace, Facebook, Twitter and blog postings, all forms of cookie stuffing (ie iframes, obfuscation via a redirect, misleading JavaScript comments, CLICK loading in IMG tags, etc), or spyware advertising techniques…”

There were a few things about this section that got me worried. The majority of my promotional web sites are blogs – which are listed as a technology that may not participate. Seriously? I can’t blog about a product? Isn’t that pretty standard? The other issue was the “one-click away” line. Most of my blogs autopost to social media accounts like Twitter, making the material one click away. Sure, linking directly to a sales page via twitter cuts out a lot of potential traffic, but I can deal with that. But, most of my potential promotional techniques go against this company’s TOS. I emailed my affiliate manager to discuss. After a series of back and forths, I got this as a reply:

I discussed this with a co-worker and it is perfectly fine even if it is only “one click away” and since we are the only ones who can disable an account it will not be an issue. There are some blogs that we do not allow for instance any free hosting blogs. Basically promoting directly from any free service is not allowed. 

For me, this was a huge red flag in a couple of areas. First, they aren’t disputing that I’m reading the TOS incorrectly. Technically, I’d be breaking the TOS with their OK. This sounds very familiar to the domain name issue that has been a stickler with them in the past – they are OKing my promotional methods now, even though they go against the TOS. Secondly, what happens when this aff manager no longer is in that position and the next person decides not to interpret the TOS in the same way? I use freehosts as part of my whole promotional method, all being either directly linked or “one click away”. That sounds like it would be a no-go as well.

This is a pretty damn big affiliate program. I know hundreds of webmasters who promote their goods on blogs. Did all of them discuss this with their aff manager ahead of time? Somehow I doubt that, but all of them could be subject to termination right this minute.

I went with my initial instincts to stay away from this program and replied back.

Thanks for getting back to me.

I do appreciate that you and your colleague can “ok” my promo practices even if they technically go against TOS, my problem is seeing what’s happened in the past to other webmasters in this situation.

If the [Goodnghter] TOS was updated to be clearer about freehosted blogs versus paid-for blogs, and removed the social media portions of that clause from the “one click away” text, I’d feel much more confident promoting the program. Who is to say the next person to hold your role interprets this differently?

I’d appreciate it if you could cancel my account and remove me from the program. Thanks for your time is discussing this matter.

If I hadn’t had read the TOS as closely as I did, I could have potentially been out hundreds of dollars and could lose my domains altogether. As I don’t stick with the one-site-one-sponsor method of affiliate promotion, it would have screwed up my other earnings as well – all because I could have gone with the “well others are doing it this way so I’ll be OK” way of thinking. Maybe I could have got away with it for years as the other webmasters had with their exact match domain names, or maybe I’d be fine forever. This wasn’t something I was going to potentially gamble with.

I’d love to hear what would you do in this situation? Do you trust the word of a single affiliate manager over a legal TOS? Do you read the TOSs for all programs you sign up to? Do you think that this portion of Goodnighter’s TOS has a valid reason to be there? I’d love to hear from you.

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