If you write your TOS, can't you break it?

[Jace]

I always see the same old tired argument on the forum

Company A had "this is not allowed" in their TOS, yet management did "that which is not allowed"

so, Company A says you can't promote on tube sites, but a lot of Company A's revenue is FROM promoting on tube sites

does Company A have every right to do whatever promotions they want with THEIR OWN company? isn't a TOS just for those promoting the program?

I just hate seeing people look like idiots telling a company "their broke their own TOS!!!!"....

[TheEnforcer]

Yup. They mot certainly can. TOS define the terms of business between the webmaster and the company only. Outside of that the company can do as it pleases.

[Toby]

Yup. They mot certainly can. TOS define the terms of business between the webmaster and the company only. Outside of that the company can do as it pleases.

Agreed, they can do whatever they want. BUT.....

Depending on exactly what it is, doing something that would violate their own TOS can make a program appear rather hypocritical.

[TheEnforcer]

Agreed, they can do whatever they want. BUT.....

Depending on exactly what it is, doing something that would violate their own TOS can make a program appear rather hypocritical.

I agree with you 100% on that. It might be a bad business move on their part depending on the situation but they certainly have the right to do it.

[Jace]

Agreed, they can do whatever they want. BUT.....

Depending on exactly what it is, doing something that would violate their own TOS can make a program appear rather hypocritical.

well, unless they wanted complete control over a form of promotion, such as tube and warez sites....I know if I was a program owner, I wouldn't want affiliates posting 30 minute videos and linking from warez sites, but I would want the option so that I could monitor it closely

[EmporerEJ]

Control, control, control......

Everybody wants control over things that aren't controllable.

If your business model doesn't inculde promotion in just about any way reasonable, it's just a bad business model.

[Hell Puppy]

Part of the advantage of running your own program is being able to decide what your own tolerances are for generating your own traffic. The rules you apply for action you accept from outsiders is a totally different animal.

You're not allowed to walk into the back of Mickey D's and build your own Big Mac either, but an employee certainly can.

[2MuchMark]

Hi Jace,

A Company should always write in to their TOS that "The terms of this agreement may change at any time" or similar.

It may at first seem like this is a slap in the face to customers, but in reality the company providing the service probably has more experience or insight as to what is required to run their buisniess effectively. Every once in a while, a customer who may be upset for any reason can try to take advantage of what they perceive to be a flaw in a tos agreement, or an imagined weakness. Regardless, the company has to modify the current or future toss to prevent that issue from happening again. In my opinion, its simply a part of the natural growth of any honest business.

Regards,

[pornlaw]

Companies have to be very careful not to violate their own TOS or Privacy Policies. Its rather hard to enforce a contract that the owner of the site doesn't follow. And if its a breach of the Privacy Policy, that could lead to direct litigation against the company, especially if a company sells off information and the Privacy Policy doesn't allow for such.

TOU or TOS, DMCA and Privacy Policy are all extremely important.

Michael

www.AdultBizLaw.com

[Hell Puppy]

Companies have to be very careful not to violate their own TOS or Privacy Policies. Its rather hard to enforce a contract that the owner of the site doesn't follow. And if its a breach of the Privacy Policy, that could lead to direct litigation against the company, especially if a company sells off information and the Privacy Policy doesn't allow for such.

TOU or TOS, DMCA and Privacy Policy are all extremely important.

Michael

www.AdultBizLaw.com (http://www.AdultBizLaw.com)

Can you elaborate on what is legally different here from direct versus indirect marketing and sales for any other type of business?

Most common example I can think of is cellphones. Go to any mall, you'll typically find a company owned store for all of the major carriers inside the mall. That is direct.

You will also find a seemingly infinite number of small stands which may carry just one carrier or may carry multiple. Ditto for other stores like big box retailers. And you can bet that the company store can offer certain plans and services that the indirect dealer cannot. In some cases, you may also have plans specifically for the indirect that the company store doesn't have. Bottom line they're adhering to different marketing policies and rules.

Another example, Wal-Mart. If you think you can deal with wal-mart to sell ANYTHING, the same way you deal with every other retailer you are SADLY mistaken. I would just about guarantee wal-mart has a unique contract with every manufacturer or wholesaler that they deal with directly. And that is essentially what I would think the TOS for affiliates is....a contract between them and the program.

Help me understand what's different?

[Hell Puppy]

Didn't think he'd have an answer for that one...

[pornlaw]

Can you elaborate on what is legally different here from direct versus indirect marketing and sales for any other type of business?

Most common example I can think of is cellphones. Go to any mall, you'll typically find a company owned store for all of the major carriers inside the mall. That is direct.

You will also find a seemingly infinite number of small stands which may carry just one carrier or may carry multiple. Ditto for other stores like big box retailers. And you can bet that the company store can offer certain plans and services that the indirect dealer cannot. In some cases, you may also have plans specifically for the indirect that the company store doesn't have. Bottom line they're adhering to different marketing policies and rules.

Another example, Wal-Mart. If you think you can deal with wal-mart to sell ANYTHING, the same way you deal with every other retailer you are SADLY mistaken. I would just about guarantee wal-mart has a unique contract with every manufacturer or wholesaler that they deal with directly. And that is essentially what I would think the TOS for affiliates is....a contract between them and the program.

Help me understand what's different?

A TOU is a contract you are placing on your website, that depending on the type of site, will define what someone can do and cannot do with your intellectual property when they visit your site. On a side note, it must be a click-thru contract, though.

You can certainly define what is permissible and you can give different rights to different classes of people in a separate contract. However, if you have a general TOU on your site that defines your general terms.

For example, in your TOU, your may restrict visitors from downloading your content and posting it on Tube sites, however you may and can allow a reseller to use certain content on Tube sites to promote your content. I would have a separate contract for resellers. You may want to take an approach like this so that an affiliate that can produce strong sales has all the tools available to him/her to drive traffic. In that instance, in your TOU you should reserve all rights to place content on Tubes, but it has to be reserved and noted.

Just reserve certain rights that you may want to give to others or keep for yourself.

Not sure if that answers your question, but sorry I missed it originally.

Michael

www.AdultBizLaw.com

[Hell Puppy]

A TOU is a contract you are placing on your website, that depending on the type of site, will define what someone can do and cannot do with your intellectual property when they visit your site. On a side note, it must be a click-thru contract, though.

You can certainly define what is permissible and you can give different rights to different classes of people in a separate contract. However, if you have a general TOU on your site that defines your general terms.

For example, in your TOU, your may restrict visitors from downloading your content and posting it on Tube sites, however you may and can allow a reseller to use certain content on Tube sites to promote your content. I would have a separate contract for resellers. You may want to take an approach like this so that an affiliate that can produce strong sales has all the tools available to him/her to drive traffic. In that instance, in your TOU you should reserve all rights to place content on Tubes, but it has to be reserved and noted.

Just reserve certain rights that you may want to give to others or keep for yourself.

Not sure if that answers your question, but sorry I missed it originally.

Michael

www.AdultBizLaw.com (http://www.AdultBizLaw.com)

The question at hand was owners who do something different from their TOU for their affiliates. In other words, an affiliate is expressly forbidden from posting to a tube site. But guess what? The owner owns a tube site and puts his own stuff up there.

In my eyes, the owner and his in-house traffic generation is a totally different class of user. Heck, he never had to even signup for the affiliate program and agree to the TOU.

[Jace]

In my eyes, the owner and his in-house traffic generation is a totally different class of user. Heck, he never had to even signup for the affiliate program and agree to the TOU.

exactly

[Mediaguy]

What you have to do is put in the Terms of Service that you can change the terms of service without warning and that they are bound to the terms of service pre/post change.

Just like paypal did.

:D

[RawAlex]

Most companies wouldn't let a little thing like a ToS get in the way of making money.