I am in the process of building a web site that will mainly be affiliate links for various products. My attorney feels that it is critical to get explicit agreement from (even casual) users to my terms of use, and that simply having a link on pages to the Terms of Use is not sufficient nor enforcible. However, I have not seen this on any Affiliate Marketing site - presumably because it will turn off a lot of traffic. How do people deal/address this ? Thanks - Jackie
What was their stated reason for saying this? Your description of your site is a touch light to know how high risk your activities are as "affiliate marketing site" can be anything from blogs and reviews that happen to contain affiliate links to sites that almost appear to be ecommerce stores and many things in between
My site will be much closer to appearing to be an ecommerce site. It will be mainly pages of links to online stores.
Your attorney is correct. You can't compel someone to agree to your Terms of Use simply because you have a link to them on your site that says "Terms of Use." The user has to actually indicate their agreement to those terms, and receive some consideration from you in exchange for agreeing. Btw, why ask strangers on DigitalPoint these questions if you have an attorney at your disposal?
RE: Btw, why ask strangers on DigitalPoint these questions if you have an attorney at your disposal? I just don't understand why noone else cares/addresses this (affiliate marketing sites).
What terms of service does your attorney think people need to agree to? The notion of some "TOS" means nothing without the terms and obviously he thinks something is important enough to require. I'm not really sure what it is since most affiliate type sites seem to use a disclosure policy and do not require each user to explicitly agree to terms of service as your attorney seems to suggest you do on your website. In fact, when shopping at thefind.com, dealtime.com, shopping.com, buzzillions.com and virtually every affiliate based ecommerce site I do not seem to recall being asked to agree to anything before clicking on their affiliate links. Sounds to me like your attorney is either being overly cautious or has some reason which he has not told you for some odd reason. I would find out which.