New Advaliant T&C - $10'000 Liquidated Damages

phrench

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Mar 10, 2008
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To be honest I can't remember the old terms, but I'm pretty sure this must be new:

Remedy
Publisher agrees that should they commit a breach of this Agreement, including but not limited to violation of any of the warrants outlined in Section 9 of this Agreement, Company may, in addition to other legal remedies: (i) terminate Publisher's membership in the Network immediately; (ii) withhold any Bounty due; and, (iii) assess liquidated damages of up to $10,000.00 ("Liquidated Damages") for each violation of the terms of this Agreement. Publisher further agrees that such Liquidated Damages are reasonable.
Here are the full terms: MediaTrust Publisher Terms & Conditions

Since english isn't my mother tongue I don't understand everything in the terms, but I get the impression Advaliant is going a bit too far here, at least from an affiliate perspective!
 


Just because they say can do it in the TOS doesn't mean they can actually do it in real life. I imagine any affiliate they tried to pull this on would end up in court.
 
Well I'm not working with Advaliant right now, and have not seen those terms because I haven't logged in for awhile. But my initial reaction to that is fuck Advaliant and fuck those terms. I definitely would not agree to that. I read the terms on contracts, but sometimes miss things, so thanks for pointing that out.
 
Just because they say can do it in the TOS doesn't mean they can actually do it in real life. I imagine any affiliate they tried to pull this on would end up in court.
Well, they could withhold payments. And ending up in court is not how I want to work with my networks ;-)
 
I agree that's scary but bottom line is, if any network knows who you are, knows you're for real, knows you never send fraudulent traffic, and arent doing shady shit, they want you on their team, they don't want to fine you.

If you're legit I wouldn't worry about it... no major network is gonna slap you for 10K unless you deserve to be slapped.
 
I got this today too: No more sub $100 payments! That's really gonna help the newbs.

I agree, C2M for the win. Geoff is awesome, but I've had some negative experiences with the bizdev team/AR office that's let me go elsewhere!

  • Publishers may not post any Ads to newsgroups, chat rooms, bulletin boards, message boards, blog comments, within any mechanism that utilizes a social media platform's (e.g. Facebook, Craigslist or MySpace), internal email systems, or any similar places unless expressly approved in writing from Company.
  • Publishers may not use Sub-Publishers unless approved in writing by MediaTrust. Sub-Publishers must agree to be bound to these Ts & Cs.
  • Publishers may not modify any Ads unless approved in writing by MediaTrust.
  • No checks will be issued to Publishers for any amount less than $100 U.S.D. All un-issued Bounty will rollover to the next pay period.
 
I got this today too: No more sub $100 payments! That's really gonna help the newbs.

I agree, C2M for the win. Geoff is awesome, but I've had some negative experiences with the bizdev team/AR office that's let me go elsewhere!

  • Publishers may not post any Ads to newsgroups, chat rooms, bulletin boards, message boards, blog comments, within any mechanism that utilizes a social media platform's (e.g. Facebook, Craigslist or MySpace), internal email systems, or any similar places unless expressly approved in writing from Company.
  • Publishers may not use Sub-Publishers unless approved in writing by MediaTrust. Sub-Publishers must agree to be bound to these Ts & Cs.
  • Publishers may not modify any Ads unless approved in writing by MediaTrust.
  • No checks will be issued to Publishers for any amount less than $100 U.S.D. All un-issued Bounty will rollover to the next pay period.
What's so special about those terms? That's standard affiliate legal crap that's been around for years with many networks.
 
... if any network knows who you are, knows you're for real, knows you never send fraudulent traffic, and arent doing shady shit...
Who defines what's shady and what's not? Majority of people in US would describe many of the offers Advaliant (and all other CPA networks) is running as shady. Come on, any review style LP or flog/farticle is shady.

So who's gonna draw the line?
 
Publishers may not modify any Ads unless approved in writing by MediaTrust.


This is always a big problem for mailers like myself. You just can't use the ad copy provided by the Advertiser as they love to use spam filter words like "free", etc. These guys have no fucking clue. So am I supposed to contact my AM for 50 offers I run that I make minor changes to? Of course not.

I've found the bottom line is Networks like to play the game as much we do. Do what you have to do to make money, keep clean, and if the Advertiser bitches, either make the change to keep them happy, or drop them (or they drop you). World turnin'.
 
Whoa.

Let's take the time and review this thoroughly before jumping to anything drastic.

Publisher agrees that should they commit a breach of this Agreement, including but not limited to violation of any of the warrants outlined in Section 9 of this Agreement, Company may, in addition to other legal remedies: (i) terminate Publisher's membership in the Network immediately; (ii) withhold any Bounty due; and, (iii) assess liquidated damages of up to $10,000.00 ("Liquidated Damages") for each violation of the terms of this Agreement. Publisher further agrees that such Liquidated Damages are reasonable.
This actually looks like its drafted and been sent to legal counsel. I'm not a lawyer but I've had my fair share of court dealings and this looks to be legitimate. Whether it is or not, is vital to everyone, I'm hoping it is.

I'll share a small story because honestly it relates very much to the jargon used in the quoted statement. A publisher whom I have known for about 3 years came to me months back. This publisher is a member here as well as other forums I frequent as well as one of our own IRC Chatroom members. This publisher was known for radical methods of promotion. We talked a bit over the years, never messed me over and never gave any indication of messing me over.

In walks this publisher after 3 years of knowing him. I at the time, was ecstatic he was going to start working with us because from talking to other networks in the industry, I was aware that when he was on a roll, he could produce substantial revenue. I never saw it coming so I immediately placed him on weekly wires.

One week of traffic went by and I initiated a wire to him. All was fine. The next monday hit and I get a call from eAdvertising whom I was working with at the time on the exclusive offer that the advertiser was going apeshit because they had customers wanting their gift cards. Knowing I had this offer specifically at the request of this pub, I went searching. This publisher nailed me for a substantial amount. I immediately issued eAdvertising that we would wire them or take it out of our next payment. Either way, I wanted the issue resolved on that side.

Long story short, eAds took it out of our next wire and it took me a couple of weeks of to get this publisher to wire us back. Unfortunately for him, he's known widely so a simple threat to his reputation made him give up the dough.

If that is not enough, I recently dealt with a federal subpoena issued by the FTC regarding certain keywords that in our system were not allowed to be bid on yet the publisher bid on the anyway. Over 11 fucking leads I was subpoenad.

I call this publisher up and inform him that I have to terminate his account. The FTC was chasing the money trail and were using this publisher to get with the networks involved. 3 of the largest networks online were involved as well. He asked about his $100 and I said I couldnt pay it. Paying out that $100 was an audit trail mistake they were waiting for me to make. I would have flown to give this $100 myself to the publisher under the table until the next part got to me.

This publisher pretty much turned the networks in and tried to pawn the problem off onto us. I had strict terms within the offer that explicitly explained not to bid on such terms, yet he did anyway. Knowing he was just a publisher and probably knowing the networks were at the forefront of where the most revenue was it quickly escalated into a headhunt.

Moral of the story is that when you read something like this as a publisher, it may not fully be made aware to you why someone or a company drafts such a policy. I have nothing but respect for Advaliant and Mediatrust. Our companies due not do any reciprocal business but we have. We do however share information regarding fraudulent publishers. Almost all networks have started coming on board with that and I believe even stanley is creating a database.

To jump on them so quickly is a little irrational. Phrench quickly points out something very important. In an industry such as ours, who has the right to point fingers and say which is right, which is wrong?

The answer to that is simple. While this may be generic forum talk regarding the situation, NOBODY has control of their business in this industry EXCEPT THEMSELVES.

Like it or not, Advaliant is trying to protect their ass. A Multi million dollar a month affiliate network who almost everyone from this very community has been raving about, and just made the inc500 list at #9 (I think, correct if wrong). Advaliant is not out to harm or disrupt legitimate affiliates. If you could just see it from our side for a month, you would understand some of the shit we are going thru.

There is no reason to dislike such a policy. The situation is more likely intended to keep the bad element out which on the other hand was failed to see by many. This policy was drafted to keep shitheads out. Keeping the wrong element out results in more offers, exclusives, pay terms, and overall service from them. This is in their best interest as well as keeping you in mind.

From an affiliates perspective I can see mis-interpretation. What would be really great is if feedback was supplied to them so that can amend and clarify anything that may be misread and understood.

Just trying to offer some advice and suggestions. A lot of threads like these can quickly turn into illegitimate lynchings.
 
Who defines what's shady and what's not? Majority of people in US would describe many of the offers Advaliant (and all other CPA networks) is running as shady. Come on, any review style LP or flog/farticle is shady. So who's gonna draw the line?

There's a line there Phrench. If there's any doubt as to your lander, get it approved by your AM. But I hear your concern. But ask yourself this, if you're making good money with your network, why would they want 10K from you when they can get that every month (and then some) from you each month? I don't think the clause is there as a money maker, it's a deterrent for the shady ass who is debating running their blackhat crap there.
 
Advaliant is really good people. I doubt they're doing this to fuck w/ people. Definitely legal ass covering.

Also, quit breaking the fucking terms and you won't get dinged for 10 grand. I really don't see the problem here. If you don't like the terms, don't run w/ Advaliant. But don't agree to terms and then complain when they're enforced.
 
If that is not enough, I recently dealt with a federal subpoena issued by the FTC regarding certain keywords that in our system were not allowed to be bid on yet the publisher bid on the anyway. Over 11 fucking leads I was subpoenad.

is this why offers say do not run on "annual credit report"? I can imagine them getting uppity bout promoting on their keyword.
 
There are a lot of "terms" and legally fucked up things from out point of view you can pull from any network TOS. The reasons they are there are not to fuck you over but to protect the network in the situations that the legal agreement applies.

I doubt that Ad Valiant has any intention of exercising this right on a legit publisher. It is in case someone does something shady and they are covering their ass legally.
 
Affiliates that fuck up, incent, or fraud an offer can cause huge splash damages to a network. Think about it - there are 20 people running 1 offer then some asshat comes in and ruins the relationship. These things could happen:

1) Advertiser refuses to pay for all leads (20x++ the loss, long term damage)
2) Advertiser pays, but cuts connection with you (HUGE long term damage)
3) Advertiser is accepting, pays for all, keeps relationship (take a loss on potentially paid comission?)

Fun things. Thats why fraud / BH can ruin an industry. Thankfully most advertisers are understanding and just cut the affiliate out. I pay weekly to all, and usually get paid monthly - so I've taken a loss before because of making payments early.

It happened to me the first time awhile ago, since then I tightened up security DRASTICALLY and hired an additional person to put in a couple hours a week reviewing logs, ip address, cross referencing, etc.
 
Ruck - nice post

RE: Advaliant- I bitched in a thread along with the rest of you regarding a Acai Burn payout decrease that wasn't well communicated many months ago. I will note that I immediately (within minutes) received a PM here from someone at AV looking for more info and genuinely concerned, I applaud them for this (even though I didn't respond). TURNS OUT my AM HAD notified me, it had just gone into the spam folder - yup 100% my fault, I'll admit it, I got notice.

I also sat at a poker table with one of their executives for hours in vegas at ASW and will say that I haven't had too many people hand me a biz card and say "If you're not getting taken care of call me directly" and actually felt they meant it.

I'd work with them in a heartbeat, even after seeing this. I'm completely above board, try and play games due to legalese and we'll simply end up in court- however as Ruck and others point out this is due to trying to CYA from shady affiliates. I'm not shady = I don't care.