A common problem of affiliate programs disclosed by a survey and reported elsewhere is that most affiliate programs (51%) do not have a Terms of Service (TOS) agreement. If they have, they use an extremely generic TOS (36%). Only 13%, according to the report, had full affiliate program agreements in place.
The reason given for those without any affiliate program agreements is that their programs are ‘professionally managed by a trusted third party’ which according to the report could only indicate that those running the affiliate programs have “no clue what they are doing.” And the report concluded that with no agreements in place, affiliate programs leave the door open to “unethical affiliate practices.”
I agree that affiliate programs should have agreements in place. No question about that. It is good business practice. But the conclusion making the affiliate programs without any TOS vulnerable to “unethical affiliate practices” is only one side of the story.
The other side (to me, the real issue) is how equitable, and ethical for that matter, is the affiliate program TOS agreement?
Consider these cases:
1. An affiliate program has a TOS but does not specify the manner of payment of commissions. In its sign-up form or affiliate profile, it does not even have information about the affiliate’s address or PayPal account.
2. An affiliate program has a TOS which specifies the manner of payment (by cheque, bank transfer or PayPal) but the minimum amount is set so unreasonably high that it would take ages for an average publisher to achieve.
3. An affiliate program has a TOS which specifies that inactive affiliate accounts will be removed from program system outright if it has no outstanding credit, and if there is a balance of unpaid commissions, this will be reduced by a certain amount periodically until the affiliate account balance reaches zero.
Here is a real-life TOS agreement provision of this kind:
Affiliate accounts that are left inactive will be removed from our system if their balance is equal to or less than $25. If an abandoned affiliate account has a balance between $25 and $50, a $25 fee will be assesed once per calendar month, until the balance is equal to zero dollars – and is closed.
No matter how you look at it, this provision is grossly inequitable. If the affiliate program owner or manager honestly believes that the inactive account with unpaid commission is causing a drain on its system, then why can’t it just be removed outright *** after *** paying or sending the cheque to the affiliate?
4. An affiliate program has a TOS but somewhere in midstream it changes some parts of the agreement – usually without consent of affiliates.
Here is part of another real-life TOS agreement changes:
Effective today, we are introducing a change to our program that affects how commissions are earned and paid. Please review the information below.
These changes are being introduced as part of an effort to simplify our internal operations. The net result of these changes will be to reduce our operations requirements with respect to inactive affiliates. The benefits to our active affiliates will include improved reporting and a greater ability to respond to your needs.
Q: What is being changed?
A: We are implementing a minimum annual sales requirement. For any given program year, no commission will be earned or paid unless and until you have achieved at least 20 commission credits. And, for affiliates that do not generate at least 20 commission credits in a program year, any commission credits existing in their account will be deleted from their account.
When one is presented with this kind of changes in unilaterally decided agreements, cynicism starts to set in. Why not first pay the affiliates their earned commissions before implementing the changes? Is it right to cancel their commissions simply because the TOS agreement has changed which in the first place was initiated by the affiliate program owner?
There could only be one answer: Avoiding payment of affiliate commissions.
Given these unsatisfactory practices, if you are a publisher or blogger planning to join an affiliate program, you should first make inquiries before signing up. Make sure you read the affiliate program agreement particularly on those provisions which will affect your prospective commissions. If you think you cannot achieve the minimum amount before commissions are paid out, then don’t sign up. You are just going to waste your time. And at the end, you would be promoting an affiliate program for free!
If you sign up, be vigilant. In most TOS, the discretion to change the agreement is in favour of the affiliate program owner. Remember, changes can be made without the consent of affiliates.
There are ethical and unethical affiliates. There are also affiliate programs with no business ethics.
*** I have intentionally not disclosed the sources of these real-life examples for obvious reasons. Contact me if you need more information.
