Zyra TV //// Zyra.org.uk front page //// Buy.at //// Clauses in Contracts to Beware of //// Abandonment of Buy.at //// Site Index

The Buy.at Contract 2009 - and why we don't agree with it!


This is history now. It's an episode of history that ended in March 2010 when Buy.at was bought out by Digital Window. The following is historical...

Without Prejudice, a long while ago, Buy.at was a reasonable company, and it was run reasonably well, and Zyra's website did quite well there, promoting many merchants in the affiliate marketing business. The website Zyra.org.uk has been in business for many years, having started in July 2000. It's built up a reputation for Good Affiliate Marketing, and although it is a bit odd, to say the least, this is a site that can be trusted to do the right thing. You can see the idea with the Site Policies, which include such things as No PPC, no voucher code nonsense, no incentivised leads, etc. The reason Zyra's site does so well is because there are pages of real content which can cheer you up. Zyra has a set of principles, a code of honour, by which the site is run. There isn't really any need for an affiliate marketing company to have a contract, as things aren't done by law, but by what amounts to an internal code of chivalry. Besides, we live on The Internet, where law doesn't really work, it being an international anarchy. You'd think companies would have sussed this by now: You can't run things by forcing people to sign up to unfair contracts against their will. For one thing, it won't do any good versus the rogues and ratbags out there, and for another, it will alienate the honest people (especially if a company's contract goes against a person's own principles). Anyway, everything was OK with Buy.at while they were a reasonable company run from Up North in the UK, with sensible ideas about the way The Internet works.

In my opinion, things started to go wrong when Buy.at was taken over by AOL. Now admittedly not everyone likes AOL, but I was quick to defend the new taken-over variant of Buy.at and I said "Let's not be too hasty about it". After all, they hadn't done anything bad at the time. However, I did send a deepest condolences and sympathies message to the people at Buy.at , as I felt it was awfully sad that their company had been taken over by AOL.

In a way it's a bit like when China took control of Hong Kong. People wondered if China would impose Chinese Communism upon Hong Kong and the place would fall into ruin under the slavery and austerity of Maoist dogma. However, to the credit of the gradually reforming new Capitalist China, they wisely maintained Hong Kong as a prosperous capitalist place, and it continued to be on the world map.

With Buy.at it seemed at first as if AOL would not be a problem, and Buy.at would survive like Hong Kong rather than being oppressed like Tibet. Things were going well until the new variant Buy.at imposed a new contract. All Buy.at affiliates were commanded to sign it, upon pain of being chucked off if they didn't. However, after I had read it I could see it was absurd, and I told them not to be so silly (or words to that effect). This type of thing has happened before, and I won't sign things don't agree to! What generally happens then is that the company in question changes the contract such that it's FAIR (rather than Not Fair). The new, fair, contract, is then more agreeable to ALL AFFILIATES. It's a matter of Good Practice in Affiliate Marketing. However, Buy.at didn't change the global contract, even though I had pointed out things which were plainly ridiculous about it.

In the interests of the Public Good, here is the Buy.at original contract, complete with the silly bits. The original Buy.at contract is NOT CONFIDENTIAL (despite some people's efforts to keep it under the table), and I have not signed it, and it has been accessible to the public for many months online, if you know where to look. One of the ways to see the Buy.at contract in the PUBLIC DOMAIN was to go to TicketMaster (web address given) and then follow their link to "affiliates" (in small print), then go to "join", and then there was a link off that to the Buy.at contact as well as it being shown in a window. With the secret out, it's like the John Lewis List about the expenses of Members of Parliament, no longer able to be hushed-up or suppressed. Here is the original contract quoted from TicketMaster quoted from Buy.at:

buy.at Terms and Conditions

These Terms are entered into between Perfiliate Technologies Limited, trading as buy.at (“buy.at”) and you (“Affiliate”). By ticking the box below, Affiliate agrees and undertakes:

(1). that it has the capacity and authority to enter into these Terms and bind the company or organisation it represents to them; and
(2). that the company or organisation Affiliate represents agrees to be bound by these Terms.

1. Affiliate Sign-Up.

1.1 Affiliate’s application to become an Affiliate on the buy.at Network via this sign-up process located at www.buy.at/affiliates may be approved in buy.at’s sole discretion (“Approved”).
1.2 If Approved, buy.at will set up an Affiliate Management Area for Affiliate.
1.3 buy.at will communicate the availability of Programmes to Affiliate from time to time by e-mail and by posting new Programmes in the Affiliate Management Area.
1.4 If Affiliate wishes to participate in a Programme, Affiliate may apply to buy.at by supplying the requested information and following such other instructions as are stated in the Affiliate Management Area.
1.5 Affiliate’s participation in a Programme is at the discretion of both buy.at and the Merchant who operates the Programme.
1.6 If both buy.at and Merchant approve Affiliate’s participation, Affiliate further agrees to be bound by any specific conditions which Merchant may impose from time to time, and which will be communicated to Affiliate via the Affiliate Management Area.

2. User and Order Tracking.

2.1 buy.at shall create Links and supply these to Affiliate, which allow buy.at and buy.at’s partners (including Merchants) to track Users referred by Affiliate, and in respect of which Programme.
2.2 Affiliate must implement the Links in Affiliate’s Site in accordance with buy.at’s instructions, maintain them at all times as fully operational, and ensure they are updated in accordance with buy.at’s instructions.
2.3 Affiliate expressly acknowledges and agrees that Affiliate’s delay in, or failure to, implement, operate and maintain Links correctly may cause Referrals not to be identified, and no Commission shall be payable to Affiliate in respect of such unidentifiable Referrals.

3. IP Licences, Branding and Ownership.

3.1 Each Party grants the other a non-exclusive, revocable, sub-licensable, royalty-free licence, to use, reproduce and display its respective Intellectual Property for the purposes of providing the Service and operating the Programmes in which Affiliate participates.
3.2 Nothing in these Terms shall operate to transfer any interest or ownership in the Intellectual Property Rights of one Party to the other.

4. Commission.

4.1 Commission is due in respect of Referrals which result in Approved Transactions.
4.2 An “Approved Transaction” is the sale of goods or supply of services, or sign-up or other User-initiated action as specified in a Programme Description which has been confirmed by Merchant as approved;

5. Payment

5.1. buy.at shall pay Affiliate all Commission due at the end of the month following the month in which the Commission was approved for payment by the Merchant in the currency in which the Approved Transactions are recorded in.
5.2. Affiliate expressly acknowledges and agrees that if Affiliate does not clear their funds or provide sufficient information for buy.at to electronically transfer funds to Affiliate within 18 months of the date on which it is remitted to Affiliate, buy.at shall be entitled to retain such unclaimed Commission for buy.at’s own account, and Affiliate shall forfeit any claim in respect of it.
5.3. buy.at reserves the right to claim back un-cleared funds if transactions later turn out to be as a result of Unethical Activities.
5.4. buy.at has the authority of HMRC to raise VAT invoices on Affiliate’s behalf. Affiliate is required to keep buy.at updated with information relating to Affiliate’s VAT status (including but not limited to VAT registration status, VAT number (if applicable), address and organisation name), and to ensure the payment details in Affiliate’s Management Area are correct,
5.5. buy.at shall contact Affiliate by e-mail to renew such authority every twelve months of this Agreement, which shall be deemed renewed unless Affiliate gives notice to buy.at in writing to indicate otherwise.
5.6. For the avoidance of doubt Affiliate shall be liable for any bank charges incurred by buy.at in respect of the presentation of cancelled cheques.

6. Affiliate Warranties.

6.1. Affiliate represents, warrants and undertakes to buy.at that:
6.1.1 it has the full corporate right, power and authority to enter into these Terms and to perform the acts required under them;
6.1.2 its acceptance of these Terms, and its performance of its obligations and duties under them, do not and will not breach any agreement to which Affiliate is party or by which it is otherwise bound;
6.1.3 all information and data Affiliate supplies to buy.at, Merchant, Users and any other party through or in connection with these Terms is correct, accurate and not misleading;
6.1.4 Affiliate’s Site and Affiliate’s activities through and in connection with the buy.at Network, and any data processing in relation to Users shall comply with any and all applicable laws, regulations, codes of conduct in force from time to time as amended, re-enacted, extended or consolidated;
6.1.5 it shall adhere to the Affiliate Guidelines at all times, as well as industry best practice in promoting the Programme. Promotion that is unacceptable includes but is not limited to, promotion by unsolicited email;
6.1.6 its Site and its activities through and in connection with the buy.at Network shall not contain any ‘spyware’ or other equivalent or similar code or material, intended to defraud or unlawfully obtain data from Users;
6.1.7 it shall provide a clear and conspicuous link to its privacy policy from each page on its Site and it further agrees not to pass any User’s personally identifiable information to buy.at;
6.1.8 it shall include a statement in its privacy policy that buy.at, Merchant (or another third party, where applicable) may use code or cookies on Affiliate’s website to track the performance of Merchant’s marketing efforts, and that no personally identifiable information is collected in such process;
6.1.9 any Intellectual Property it uses does not and will not infringe any third-party right (including without limitation by being obscene, defamatory or infringing any copyright, trade mark or other proprietary right).

7. Affiliate Indemnity

7.1 Affiliate hereby undertakes to keep buy.at, buy.at’s Associated Companies and buy.at’s Merchants (together with their directors, employees and agents) fully and effectively indemnified against any and all costs, claims, expenses and liabilities (including reasonable legal fees) arising from a result of:
7.1.1 any breach of the warranties set out in clause 6; and
7.1.2 any contaminated file, virus, worm or trojan horse originating from Affiliate’s Site (any matter within the scope of this indemnity being a “Claim”).
7.2 buy.at shall notify Affiliate of any Claim and take reasonable account of Affiliate’s directions with regard to that Claim.
7.3 Clause 11 of these Terms shall not apply to this clause 7.

8. buy.at Warranties

8.1 buy.at represents, warrants and undertakes to Affiliate that:
8.1.1 it has the full corporate right, power and authority to enter into these Terms and to perform the acts required of it under them;
8.1.2 its execution of these Terms and the performance of its obligations and duties under them, do not and will not breach any agreement to which it is a party or by which it is otherwise bound;
8.1.3 it shall use reasonable endeavours to provide account support services to Affiliate in accordance with good industry practice; and
8.1.4 Affiliate’s use of buy.at’s Intellectual Property shall not infringe the intellectual property or other rights of any third party.

9. Limited Warranty.

9.1 Affiliate acknowledges and agrees that the Services are provided on an ‘as is’ basis, and that buy.at does not make any warranty in relation to Service availability or uptime, nor that the Service is suitable for Affiliate’s particular requirements, or will result in any particular level of income or business to Affiliate.

10. Term, Termination and Suspension

10.1 These Terms commence on the Effective Date and shall remain in force until terminated in accordance with its provisions.
10.2 Either Party may terminate these Terms at any time on written notice to the other Party in the event of:
10.2.1. a material breach of these Terms by the other Party; or
10.2.2. the other Party passing a resolution, or a court of competent jurisdiction making an order, that the other Party be wound up, a receiver, administrative receiver, administrator or manager is appointed over any part of the business or assets of the other Party; the other Party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any similar event occurs in any other jurisdiction in respect of the other Party.
10.3 Further, buy.at may terminate these Terms:
10.3.1 immediately and without notice if Affiliate engages in Unethical Activities or breaches clause 6 or 13 of these Terms; and
10.3.2 on immediate notice without cause.
10.4 Affiliate may terminate these Terms on immediate notice without cause.
10.5 buy.at may suspend its provision of Services or Affiliate’s participation in any Programme, or disable Links, where buy.at believes it is necessary to avoid damage, loss or liability to buy.at, buy.at’s Associated Companies or Merchants, including, without limitation, if buy.at believes Affiliate is engaged in any Unethical Activities.
10.6 If buy.at exercises its rights of suspension under clause 10.5, it shall notify Affiliate as soon as practicable and resume provision of Services and/or the Programme as soon as it is satisfied the reason for suspension no longer applies.
10.7 Except for buy.at’s obligations in clause 13, buy.at shall be relieved of all liability, duty and obligation to Affiliate (including, without limitation, any payment obligation) during the period of such suspension. For avoidance of doubt, Affiliate shall not be entitled to any Commission, compensation or any other form of payment in respect of any period of suspension, whether or not the suspension is lifted and Affiliate is subsequently re-granted access to the Network.

11. Limitation of Liability.

11.1 Nothing in these Terms shall limit or exclude the liability of either Party for loss or damage due to or arising from death, personal injury or fraudulent misrepresentation.
11.2 Save in relation to clause 7 above, neither Party shall be liable to the other for loss of profits, or indirect, incidental or consequential damages, even if such Party has been advised of the possibility of such damages, incurred as a result of or in connection with these Terms, whether arising out of breach of contract, negligence or howsoever.
11.3 buy.at’s maximum liability to Affiliate in relation to Affiliate’s direct losses arising from buy.at’s breach of any provision of these Terms shall not exceed the Commission received or due to Affiliate in the 3 months prior to the event which gave rise to liability.

12. Disputes and Notices.
12.1 Both Parties shall use all reasonable endeavours to resolve bona fide disputes, in the first instance, with the account managers for the Programme or other appropriate officer nominated from time to time.
12.2 If no such resolution occurs within 30 days of commencement, either Party may escalate such dispute to a superior within buy.at, with both parties agreeing to attempt to resolve such dispute within a further 30 day period.
12.3 Any notice given under these Terms shall be in writing and shall be considered given or made: where sent by hand or courier, upon receipt; where sent by first class pre-paid post, on the second working day following the date of posting; or where given by fax (subject to retention by the sending Party of confirmation of successful transmission), four hours after the time of successful transmission; or where given by e-mail immediately on transmission; or where posted on the buy.at website immediately the posting is made .
12.4 Notices shall be delivered or posted to the addresses of the Parties given above or to any other address notified in substitution.

13. Confidentiality

13.1 Both Parties shall take reasonable steps during the Term, and for two years thereafter, to prevent disclosure of Confidential Information of the other Party other than to its employees or agents who must have access to such Confidential Information to perform such Party's obligations hereunder and who have each agreed to comply with this provision.
13.2 Notwithstanding the foregoing, either Party may disclose Confidential Information without the consent of the other Party to the extent such disclosure is required by law. Both Parties may publicise the relationship, subject to the other Party’s approval of any publicity materials, such approval not to be unreasonably withheld or delayed.

14. Force Majeure

14.1 Neither Party shall be liable for, or be considered in breach of these Terms on account of any delay or failure to perform as required by these Terms as a result of any causes or conditions which are beyond such Party's reasonable control, including but not limited to such as acts of God, acts of government, strikes or war, and which such Party is unable to overcome by the exercise of reasonable diligence.

15. General Provisions

15.1 Failure of either Party to insist upon or enforce strict performance by the other Party of any provision of these Terms or to exercise any right under these Terms shall not be construed as a waiver of such Party’s right to assert or rely upon any such provision or right in that or any other instance.
15.2 These Terms comprise the entire agreement between the Parties, and supersedes all prior agreements, statements, and representations whether negligent or otherwise (other than fraudulent misrepresentations) by either Party in relation to its subject matter.
15.3 Other than expressly provided for in these Terms, a person (natural or legal) who is not a Party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms, but that does not affect any right or remedy of a third party which exists or is available apart from that Act.
15.4 Affiliate shall not assign these Terms or any right, interest or obligation under them without buy.at’s prior written consent. buy.at may assign these Terms or any of its rights, interests or obligations under them to any third party including without limitation any Associated Company without restriction or to any successor of buy.at’s by way of merger, consolidation or the acquisition of all or substantially all of buy.at’s business and assets relating to these Terms.
15.5 Solely to the extent there is any inconsistency between the Programme Description and these Terms, these Terms shall prevail.
15.6 If any provision of these Terms is or becomes invalid or illegal in any respect, that provision shall be deemed severed from these Terms but the validity, legality and enforceability of the remaining provisions shall not be affected.
15.7 The clause headings in these Terms are included for convenience only and shall not affect their construction.
15.8 Neither Party shall have the right to bind the other to any agreement with a third party nor to represent itself as an agent, partner or joint venture of the other, nor to incur any obligation or liability on behalf of the other.
15.9 The expiry or termination of these Terms (for whatever reason) shall not terminate any provision or obligation which is expressly or by implication provided to come into or continue in force after such termination and shall be without prejudice to the accrued rights and liabilities and other remedies of the Parties.
15.10 These Terms shall be governed by English law and the Parties irrevocably submit to the exclusive jurisdiction of the English Courts.

16. Updates

16.1 buy.at may update these Terms from time to time by publishing a new version on the buy.at website.
16.2 buy.at will notify Affiliate of updates of these Terms via email, the Affiliate Management Area or other suitable method.
16.3 Affiliate’s continued use of the Services and/or participation in a Programme after the date of any such update constitutes Affiliate’s acceptance to be bound by the updated terms.
16.4 If Affiliate does not agree with any proposed update to these terms, Affiliate must notify buy.at and, in accordance with buy.at’s direction:
16.4.1 cease further participation in any then-active Programmes;
16.4.2 agree to continue any then-active Programmes in accordance with buy.at’s reasonable directions.

17. Definitions.

In these Terms, the following words have the following meanings:

“Affiliate Guidelines”
means the guidelines attached to these Terms in Schedule 1;

“Affiliate Management Area”
means the buy.at reporting interface located at URL www.buy.at/ma;

“Terms”
means these terms and conditions, as updated from time to time;

“Approved Transaction”
means a Transaction that has been approved in accordance with the process set out in clause 4;

“Associated Company”
means a member of buy.at’s group (including, without limitation, Platform-A Inc, or AOL LLC), and any entity that controls, is controlled by or is under common control with any of the foregoing entities;

“buy.at Network”
means the proprietary buy.at affiliate network through which Affiliate may advertise and market Merchants and their products and services to Users via Affiliate’s Site;

“Commission”
means the fee due to Affiliate in respect of Approved Transactions;

“Confidential Information”
means these Terms and all communications and information, whether written, visual, or oral, and all other material supplied to or obtained, whether electronic or not, by either Party from the other during the Term and all information, reports, drawings, recommendations, data or advice given by either Party to the other in pursuance of its obligations under these Terms, and shall (without limitation of the foregoing) include any information from whatever source supplied to or obtained by either Party concerning the trade secrets, customers, business associations, technical or commercial affairs of the other Party or in the case of buy.at any Associated Company, partners, joint ventures or any Merchant or business associate of buy.at;

“Effective Date”
means the date of execution of these Terms (or the later of different dates), as evidenced by the records indicating the date the Affiliate signed up to the network;

“Intellectual Property Rights”
means patents, rights in designs, trade marks, trading business or domain names, email addresses, copyrights (including any such rights in typographical arrangements, web sites or software), whether registered or not and any applications to register or rights to apply for registration of any of the foregoing rights in inventions, know how, trade secrets and other Confidential Information, rights in databases and all other intellectual property rights of a similar or corresponding character, which subsist now or in the future in any part of the world;

“Link”
means the link buy.at supplies to Affiliate for inclusion on Affiliate’s Site, which when clicked on by a User, identifies:
1. that the User has been referred by Affiliate; and
2. the Programme in which the User is participating;

“Merchant”
means a third party whose goods or services Affiliate promotes to Users as part of a Programme;

“Parties”
shall mean the Affiliate and buy.at, and “Party” shall mean either one of them;

“Programme”
means a commercial offer or set of offers of Merchant’s products and services specified in a Programme Description;

“Programme Description”
means the key parameters of a Programme, which may include, without limitation, a description of the Merchant’s company, commission rates, cookie period, specific Affiliate terms and conditions and other similar information;

“Referrals”
means the Affiliate’s referral or introduction of a User to a Merchant as part of a Programme, which may result in an Approved Transaction.

“Services”
means the provision of the buy.at Network and operation of the Programmes;

“Site”
means Affiliate’s site, blog, forum, voucher code, email list or other mechanic designed or intended to refer Users to Merchants;

“Term”
means the duration of these Terms, beginning on the Effective Date and continuing until the date of termination by either Party, or expiration;

“Territory”
means the territory specified in the Management Area;

“Transaction”
means the sale or supply of any Merchant’s goods or services to Users, or introductions, referrals or other User interactions in respect of Merchant’s goods or services as defined in the applicable Programme;

“Unethical Activities”
has the meaning ascribed to it in Schedule 1, Paragraph 2;

“User”
means an individual consumer who purchases, applies for, enquires about or otherwise takes action in respect of Merchant’s products and services.

SCHEDULE 1
Affiliate Guidelines

1. Each Affiliate undertakes to buy.at that it shall not engage in any fraudulent, unethical or unlawful activity, or any activity which is not transparent to, nor in the best interests of, buy.at, Merchants and Users (“Unethical Activities)”. Examples of Unethical Activities include, but are not limited to:
1.1 use of inappropriate software (whether third party or otherwise) in order to create financial gain for Affiliate
1.2 bidding on disallowed key terms within paid search, or any other third party advertising system based on keywords, without buy.at’s and/or Merchant’s prior approval
1.3 implementing links, where there is an incentive to click on them without a User’s full knowledge of the consequences of their actions - for example, activating a cookie which may later mean a conversion of sale to the owner of the Affiliate link (‘forced clicks’)
1.4 mimicking the action of an Affiliate link click which results in a cookie being stored on a User’s machine which could later lead to the conversion of a sale to said Affiliate

2. The provisions of this paragraph apply to Affiliates whose Site comprises an email list (“Email Affiliates”). buy.at shall indicate whether each Email Affiliate must:
2.1 obtain buy.at’s written approval before sending email promotions on behalf of Merchants to Users;
2.2 promptly supply examples of email promotions which Email Affiliate proposes to use;
2.3 promptly provide full disclosure as to the origin and source of its list or database of email addresses, including supplying satisfactory evidence that these have been properly purchased or licensed; details of the party from whom they have been purchased or licensed; and details which demonstrate that they have been created, supplied and operated in accordance with data protection and other applicable laws.

3. It is each Affiliate’s responsibility to protect and maintain the confidentiality of their logins, Links and other data used to manage access to the Affiliate Management Area and Programmes, to ensure that a third party may not change Affiliate’s details without Affiliate’s knowledge.

4. The buy.at Network is an online network and Transactions within a particular Programme must be conducted online, not offline, unless otherwise agreed between the Parties. Offline Transactions will be ignored and not count towards Commission unless specifically agreed otherwise by buy.at.

5. Each Affiliate must specify the URLs it will use to track Transactions as part of the sign up process via the Affiliate Management Area (“Authorised URLs”). buy.at may ignore transactions entered into via URLs other than Authorised URLs and/or withhold Commission in respect of them. An Affiliate may add additional or substitute URLs from time to time via the Affiliate Management Area, but such URLs will only become operational once confirmed as such by Affiliate’s account manager.

6. From time to time, buy.at may request information from Affiliate to evidence how and where Affiliate is promoting its Site, and Affiliate shall supply such information promptly to buy.at.

7. If any Affiliate or User has configured its system in order to disable any technology for confirming the means of referral, buy.at will treat the User as not having been referred by any Affiliate.

8. All information in the Affiliate’s Management Area must be complete and accurate at all times. buy.at reserves the right to request proof of Affiliate’s identity at any time. If Affiliate does not provide this within time period specified by buy.at then buy.at may terminate these Terms on immediate notice.

9. Affiliate hereby undertakes to comply with the IAB’s code of best practice on the use of Voucher Codes as set out at: http://www.iabuk.net/en/1/iabsaffiliatemarketingcouncillaunchescodeofbestpractice110808.mxs .

Well of course I wouldn't sign it. It's ridiculous! ... "Oh, why?" ... Well for a start it's ludicrous to have 6.1.7 saying the affiliate shall link every one of its pages to the privacy policy. (Note: I have over five thousand pages, and I refuse to patch them all up to the privacy policy page which would be of no relevance to most of the pages). Upon discussion with Buy.at , it turned out that they didn't really intend it to mean that. It's supposed to mean "shall link any pages which gather customer information... to the privacy policy page". Well, I do have a Privacy Policy page, and I don't mind connecting the page for signing up to the newsletter to the privacy policy page, so that's settled, isn't it? It should have been, but oddly, they would not alter the contract which everyone else was supposed to sign. It's a bit like Nelson Mandela going to all that trouble in South Africa and then the government tries to come to terms with the matter by granting Nelson Mandela a special permit to not be subject to the apartheid laws which still applied to everyone else.

Anyway, what else is wrong with the Buy.at contract? I asked if they were genuinely interested and would take notice of what I said, and they confirmed this. (It takes a lot of work for me to write a critique of a contract, so I didn't want to waste the work if they weren't going to heed it). So, I proceeded to put the work in, and carefully pointed out the things I could see that were wrong with the contract. Now bearing in mind that now the original contract is in the public domain, and I am allowed to write my own words about it, the following should be allowed to be published in the Public Good. Note that I have removed Buy.at's lawyers' comments in this public version as I felt these could only have been received by the recipient of the e-mail. Instead I have annotated the version where appropriate. Initial critique comments are in pink, and follow-up summaries are in green...

buy.at network
Action Required: buy.at Terms and Conditions
Deadline: Friday 6th of February 2009
Terms & Conditions

These Terms are entered into between Perfiliate Technologies Limited, trading as buy.at (“buy.at”) and you (“Affiliate”). By ticking the box below, Affiliate agrees and undertakes:

    * (1). that it has the capacity and authority to enter into these Terms and bind the company or organisation it represents to them; and
    * (2). that the company or organisation Affiliate represents agrees to be bound by these Terms.
- I'm not sure that's grammatical, but it's agreeable as far as I know.

   1. Affiliate Sign-Up.
         1. Affiliate’s application to become an Affiliate on the buy.at Network via this sign-up process located at
www.buy.at/affiliates may be approved in buy.at’s sole discretion (“Approved”).
         2. If Approved, buy.at will set up an Affiliate Management Area for Affiliate.
         3. buy.at will communicate the availability of Programmes to Affiliate from time to time by e-mail and by posting new Programmes in the Affiliate Management Area.
         4. If Affiliate wishes to participate in a Programme, Affiliate may apply to buy.at by supplying the requested information and following such other instructions as are stated in the Affiliate Management Area.
         5. Affiliate’s participation in a Programme is at the discretion of both buy.at and the Merchant who operates the Programme.
         6. If both buy.at and Merchant approve Affiliate’s participation, Affiliate further agrees to be bound by any specific conditions which Merchant may impose from time to time, and which will be communicated to Affiliate via the Affiliate Management Area.
- Actually the affiliate doesn't agree in advance to any such thing. The affiliate should be informed of any such conditions and is then given a chance to agree and remain on the program, or not. - This later got changed in the special agreement, but only after I had rewritten the clause. Note that there is a big difference between "You agree to do anything we say" in comparison to "You can do what you like, but if we don't like what you do, we can chuck you off". Some lawyers don't understand the difference, but it's a bit like the way weddings are legal if they are properly conducted weddings, and yet the exact wording IS important, and some brides will quite rightly refuse to agree to the "OBEY" clause.
   2. User and Order Tracking.
         1. buy.at shall create Links and supply these to Affiliate, which allow buy.at and buy.at’s partners (including Merchants) to track Users referred by Affiliate, and in respect of which Programme.
         2. Affiliate must implement the Links in Affiliate’s Site in accordance with buy.at’s instructions, maintain them at all times as fully operational, and ensure they are updated in accordance with buy.at’s instructions.
- I'm afraid that's a "you must do anything we tell you to" type of clause. I know that's not what was intended, but, do you see what I mean? Surely it's up to the affiliate to implement the links anyhow they choose, provided they don't do any of a set of specifically bad things? - apparently we are informed there's a legal reason for this, but I think it could have been worded better. My rewritten version became part of the special contract.
         3. Affiliate expressly acknowledges and agrees that Affiliate’s delay in, or failure to, implement, operate and maintain Links correctly may cause Referrals not to be identified, and no Commission shall be payable to Affiliate in respect of such unidentifiable Referrals.
   3. IP Licences, Branding and Ownership.
         1. Each Party grants the other a non-exclusive, revocable, sub-licensable, royalty-free licence, to use, reproduce and display its respective Intellectual Property for the purposes of providing the Service and operating the Programmes in which Affiliate participates.
         2. Nothing in these Terms shall operate to transfer any interest or ownership in the Intellectual Property Rights of one Party to the other.
   4. Commission.
         1. Commission is due in respect of Referrals which result in Approved Transactions.
         2. An “Approved Transaction” is the sale of goods or supply of services, or sign-up or other User-initiated action as specified in a Programme Description which has been confirmed by Merchant as approved;
   5. Payment
         1. buy.at shall pay Affiliate all Commission due at the end of the month following the month in which the Commission was approved for payment by the Merchant in the currency in which the Approved Transactions are recorded in.
- OK, that sounds good. I have bank accounts in different currencies, so will the payments arrive in the appropriate currencies? - it turns out that we are allowed to choose what currency, but only ONE currency is allowed, which is a bit inflexible. Some other companies have this figured out much better!
         2. Affiliate expressly acknowledges and agrees that if Affiliate does not clear their funds or provide sufficient information for buy.at to electronically transfer funds to Affiliate within 18 months of the date on which it is remitted to Affiliate, buy.at shall be entitled to retain such unclaimed Commission for buy.at’s own account, and Affiliate shall forfeit any claim in respect of it.
- Yes, I can see why, and it is perfectly understandable. By the way, what happens in terms of reminders if a cheque falls behind the furniture? Unlikely, I know, but it may have happened to some affiliates. - a reason was given, and I agree. It's understandable.
         3. buy.at reserves the right to claim back un-cleared funds if transactions later turn out to be as a result of Unethical Activities.
         4. buy.at has the authority of HMRC to raise VAT invoices on Affiliate’s behalf. Affiliate is required to keep buy.at updated with information relating to Affiliate’s VAT status (including but not limited to VAT registration status, VAT number (if applicable), address and organisation name), and to ensure the payment details in Affiliate’s Management Area are correct,
         5. buy.at shall contact Affiliate by e-mail to renew such authority every twelve months of this Agreement, which shall be deemed renewed unless Affiliate gives notice to buy.at in writing to indicate otherwise.
         6. For the avoidance of doubt Affiliate shall be liable for any bank charges incurred by buy.at in respect of the presentation of cancelled cheques.
- Curious. How could that happen? - apparently this is JUST A CATCH-ALL CLAUSE.
   6. Affiliate Warranties.
         1. Affiliate represents, warrants and undertakes to buy.at that:
               1. it has the full corporate right, power and authority to enter into these Terms and to perform the acts required under them;
               2. its acceptance of these Terms, and its performance of its obligations and duties under them, do not and will not breach any agreement to which Affiliate is party or by which it is otherwise bound;
               3. all information and data Affiliate supplies to buy.at, Merchant, Users and any other party through or in connection with these Terms is correct, accurate and not misleading;
               4. Affiliate’s Site and Affiliate’s activities through and in connection with the buy.at Network, and any data processing in relation to Users shall comply with any and all applicable laws, regulations, codes of conduct in force from time to time as amended, re-enacted, extended or consolidated;
               5. it shall adhere to the Affiliate Guidelines at all times, as well as industry best practice in promoting the Programme. Promotion that is unacceptable includes but is not limited to, promotion by unsolicited email;
- I have my own Affiliate Guidelines (site policies) at www.zyra.org.uk/policy.htm but I would be interested in seeing yours, and then I might be able to say whether I agree to them. - Yes, I agree, they are in Schedule 1
               6. its Site and its activities through and in connection with the buy.at Network shall not contain any ‘spyware’ or other equivalent or similar code or material, intended to defraud or unlawfully obtain data from Users;
               7. it shall provide a clear and conspicuous link to its privacy policy from each page on its Site and it further agrees not to pass any User’s personally identifiable information to buy.at;
- We have been in touch about this, and as discussed, the five thousand pages at my site aren't going to all have a link to the privacy policy page. However, I'm willing to link www.zyra.org.uk/form.htm to www.zyra.org.uk/privacy.htm and that link has actually been made while we were on the phone, a change which will be manifested online after the publishing of Issue125. - This was amended in the special agreement.
               8. it shall include a statement in its privacy policy that buy.at, Merchant (or another third party, where applicable) may use code or cookies on Affiliate’s website to track the performance of Merchant’s marketing efforts, and that no personally identifiable information is collected in such process;
- a good point, actually. I'll see about adding such a point in my privacy policy page, (although I would have thought that it was generally known about cookies on the Internet generally).
               9. any Intellectual Property it uses does not and will not infringe any third-party right (including without limitation by being obscene, defamatory or infringing any copyright, trade mark or other proprietary right).
   7. Affiliate Indemnity
         1. Affiliate hereby undertakes to keep buy.at, buy.at’s Associated Companies and buy.at’s Merchants (together with their directors, employees and agents) fully and effectively indemnified against any and all costs, claims, expenses and liabilities (including reasonable legal fees) arising from a result of:
               1. any breach of the warranties set out in clause 6; and
               2. any contaminated file, virus, worm or trojan horse originating from Affiliate’s Site (any matter within the scope of this indemnity being a “Claim”).
         2. buy.at shall notify Affiliate of any Claim and take reasonable account of Affiliate’s directions with regard to that Claim.
         3. Clause 11 of these Terms shall not apply to this clause 7.
- I'm not a lawyer, but I have my doubts on whether this exclusion is legal. Not that the affiliate is likely to kill someone accidentally by happening to have the misfortune to have their site hacked and infected with a trojan which then somehow results in someone's unfortunate demise. - apparently it's just a legal clause which AOL's lawyers felt had to be in there.
   8. buy.at Warranties
         1. buy.at represents, warrants and undertakes to Affiliate that:
               1. it has the full corporate right, power and authority to enter into these Terms and to perform the acts required of it under them;
               2. its execution of these Terms and the performance of its obligations and duties under them, do not and will not breach any agreement to which it is a party or by which it is otherwise bound;
               3. it shall use reasonable endeavours to provide account support services to Affiliate in accordance with good industry practice; and
               4. Affiliate’s use of buy.at’s Intellectual Property shall not infringe the intellectual property or other rights of any third party.
- Shouldn't that be the other way round in this context? - I still think this is a bit odd, but apparently there is a reason for it.
   9. Limited Warranty.
         1. Affiliate acknowledges and agrees that the Services are provided on an ‘as is’ basis, and that buy.at does not make any warranty in relation to Service availability or uptime, nor that the Service is suitable for Affiliate’s particular requirements, or will result in any particular level of income or business to Affiliate.
- Don't worry, I didn't expect Buy.at to indemnify the affiliate against catching a virus or trojan. However there have been cases of affiliate email lists going missing and ending up being compromised and sent viruses. This has happened at several networks.
  10. Term, Termination and Suspension
         1. These Terms commence on the Effective Date and shall remain in force until terminated in accordance with its provisions.
         2. Either Party may terminate these Terms at any time on written notice to the other Party in the event of:
               1. a material breach of these Terms by the other Party; or
               2. the other Party passing a resolution, or a court of competent jurisdiction making an order, that the other Party be wound up, a receiver, administrative receiver, administrator or manager is appointed over any part of the business or assets of the other Party; the other Party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any similar event occurs in any other jurisdiction in respect of the other Party.
         3. Further, buy.at may terminate these Terms:
               1. immediately and without notice if Affiliate engages in Unethical Activities or breaches clause 6 or 13 of these Terms; and
               2. on immediate notice without cause.
- Well, I suppose so, but that does obviate part 1, and besides, it's a bit open-ended. - oh well, fair enough.
         4. Affiliate may terminate these Terms on immediate notice without cause.
         5. buy.at may suspend its provision of Services or Affiliate’s participation in any Programme, or disable Links, where buy.at believes it is necessary to avoid damage, loss or liability to buy.at, buy.at’s Associated Companies or Merchants, including, without limitation, if buy.at believes Affiliate is engaged in any Unethical Activities.
         6. If buy.at exercises its rights of suspension under clause 10.5, it shall notify Affiliate as soon as practicable and resume provision of Services and/or the Programme as soon as it is satisfied the reason for suspension no longer applies.
         7. Except for buy.at’s obligations in clause 13, buy.at shall be relieved of all liability, duty and obligation to Affiliate (including, without limitation, any payment obligation) during the period of such suspension. For avoidance of doubt, Affiliate shall not be entitled to any Commission, compensation or any other form of payment in respect of any period of suspension, whether or not the suspension is lifted and Affiliate is subsequently re-granted access to the Network.
  11. Limitation of Liability.
         1. Nothing in these Terms shall limit or exclude the liability of either Party for loss or damage due to or arising from death, personal injury or fraudulent misrepresentation.
         2. Save in relation to clause 7 above, neither Party shall be liable to the other for loss of profits, or indirect, incidental or consequential damages, even if such Party has been advised of the possibility of such damages, incurred as a result of or in connection with these Terms, whether arising out of breach of contract, negligence or howsoever.
         3. buy.at’s maximum liability to Affiliate in relation to Affiliate’s direct losses arising from buy.at’s breach of any provision of these Terms shall not exceed the Commission received or due to Affiliate in the 3 months prior to the event which gave rise to liability.
  12. Disputes and Notices.
         1. Both Parties shall use all reasonable endeavours to resolve bona fide disputes, in the first instance, with the account managers for the Programme or other appropriate officer nominated from time to time.
         2. If no such resolution occurs within 30 days of commencement, either Party may escalate such dispute to a superior within buy.at, with both parties agreeing to attempt to resolve such dispute within a further 30 day period.
         3. Any notice given under these Terms shall be in writing and shall be considered given or made: where sent by hand or courier, upon receipt; where sent by first class pre-paid post, on the second working day following the date of posting; or where given by fax (subject to retention by the sending Party of confirmation of successful transmission), four hours after the time of successful transmission; or where given by e-mail immediately on transmission; or where posted on the buy.at website immediately the posting is made .
By hand or by courier or by post, OK. By fax, yes, a shorter time is reasonable, provided it's been verified to be successfully sent. e-mail, that should also have a similarly longer time, as we don't all read e-mails immediately. The last option "publishing on the buy.at site", no, that isn't acceptable on its own, as we can not be expected to keep checking it just to see if anything has changed. To be fair, a notice has to be served, by sending some sort of transmitting and verifying it has been received. - upon mentioning it, this has been substantiated by the unwritten notion that any changes WILL be communicated to affiliates by e-mail as well as being published on the website.
         4. Notices shall be delivered or posted to the addresses of the Parties given above or to any other address notified in substitution.
  13. Confidentiality
         1. Both Parties shall take reasonable steps during the Term, and for two years thereafter, to prevent disclosure of Confidential Information of the other Party other than to its employees or agents who must have access to such Confidential Information to perform such Party's obligations hereunder and who have each agreed to comply with this provision.
         2. Notwithstanding the foregoing, either Party may disclose Confidential Information without the consent of the other Party to the extent such disclosure is required by law. Both Parties may publicise the relationship, subject to the other Party’s approval of any publicity materials, such approval not to be unreasonably withheld or delayed.
  14. Force Majeure
         1. Neither Party shall be liable for, or be considered in breach of these Terms on account of any delay or failure to perform as required by these Terms as a result of any causes or conditions which are beyond such Party's reasonable control, including but not limited to such as acts of God, acts of government, strikes or war, and which such Party is unable to overcome by the exercise of reasonable diligence.
  - that's OK. We can't blame each other for things someone else has done. Where appropriate, we'll blame God, or the government, and hold them liable for things for which they are to blame!
  15. General Provisions
         1. Failure of either Party to insist upon or enforce strict performance by the other Party of any provision of these Terms or to exercise any right under these Terms shall not be construed as a waiver of such Party’s right to assert or rely upon any such provision or right in that or any other instance.
         2. These Terms comprise the entire agreement between the Parties, and supersedes all prior agreements, statements, and representations whether negligent or otherwise (other than fraudulent misrepresentations) by either Party in relation to its subject matter.
- This should be changed, as we discussed, to read something like "This is the entire agreement, except where a special agreement has been reached and signed by both parties". // On a minor point, surely it is odd that fraudulent misrepresentations are allowed to supersede the agreement?! - this was adjusted.
         3. Other than expressly provided for in these Terms, a person (natural or legal) who is not a Party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms, but that does not affect any right or remedy of a third party which exists or is available apart from that Act.
         4. Affiliate shall not assign these Terms or any right, interest or obligation under them without buy.at’s prior written consent. buy.at may assign these Terms or any of its rights, interests or obligations under them to any third party including without limitation any Associated Company without restriction or to any successor of buy.at’s by way of merger, consolidation or the acquisition of all or substantially all of buy.at’s business and assets relating to these Terms.
- see my comment about unbalanced "assign" rules, at the paragraph at www.zyra.org.uk/clauses.htm - . Adjusted, and "third party" removed.
         5. Solely to the extent there is any inconsistency between the Programme Description and these Terms, these Terms shall prevail.
         6. If any provision of these Terms is or becomes invalid or illegal in any respect, that provision shall be deemed severed from these Terms but the validity, legality and enforceability of the remaining provisions shall not be affected.
         7. The clause headings in these Terms are included for convenience only and shall not affect their construction.
         8. Neither Party shall have the right to bind the other to any agreement with a third party nor to represent itself as an agent, partner or joint venture of the other, nor to incur any obligation or liability on behalf of the other.
         9. The expiry or termination of these Terms (for whatever reason) shall not terminate any provision or obligation which is expressly or by implication provided to come into or continue in force after such termination and shall be without prejudice to the accrued rights and liabilities and other remedies of the Parties.
        10. These Terms shall be governed by English law and the Parties irrevocably submit to the exclusive jurisdiction of the English Courts.
  16. Updates.
         1. buy.at may update these Terms from time to time by publishing a new version on the buy.at website.
- Actually, we need to be informed of any changes.
         2. buy.at will notify Affiliate of updates of these Terms via email, the Affiliate Management Area or other suitable method.
- Good!
         3. Affiliate’s continued use of the Services and/or participation in a Programme after the date of any such update constitutes Affiliate’s acceptance to be bound by the updated terms.
         4. If Affiliate does not agree with any proposed update to these terms, Affiliate must notify buy.at and, in accordance with buy.at’s direction:
               1. cease further participation in any then-active Programmes;
               2. agree to continue any then-active Programmes in accordance with buy.at’s reasonable directions.
- No, you can't have it both ways. - subsequently adjusted so it's with the agreement of both parties rather than solely at Buy.at's discretion.
  17. Definitions.
      In these Terms, the following words have the following meanings:

      “Affiliate Guidelines”
          means the guidelines attached to these Terms in Schedule 1;
- May we see that, please? - OK
      “Affiliate Management Area”
          means the buy.at reporting interface located at URL
www.buy.at/ma; - is that a valid page address? - apparently it isn't, but all 404 error links just redirect to their front page. Hardly ideal.
      “Terms”
          means these terms and conditions, as updated from time to time;
      “Approved Transaction”
          means a Transaction that has been approved in accordance with the process set out in clause 4;
      “Associated Company”
          means a member of buy.at’s group (including, without limitation, Platform-A Inc, or AOL LLC), and any entity that controls, is controlled by or is under common control with any of the foregoing entities;
      “buy.at Network”
          means the proprietary buy.at affiliate network through which Affiliate may advertise and market Merchants and their products and services to Users via Affiliate’s Site;
      “Commission”
          means the fee due to Affiliate in respect of Approved Transactions;
      “Confidential Information”
          means these Terms
- no, surely the contract should be in all honesty public, and not a clandestine agreement, and all communications and information, whether written, visual, or oral, and all other material supplied to or obtained, whether electronic or not, by either Party from the other during the Term and all information, reports, drawings, recommendations, data or advice given by either Party to the other in pursuance of its obligations under these Terms, and shall (without limitation of the foregoing) include any information from whatever source supplied to or obtained by either Party concerning the trade secrets, customers, business associations, technical or commercial affairs of the other Party or in the case of buy.at any Associated Company, partners, joint ventures or any Merchant or business associate of buy.at; - yes, the rest of that is OK. We're quite good on keeping confidentiality in business. It's just the terms and conditions of the contract which by ethics shouldn't be "cloak and dagger". - This proved to be a sticking point, which I'll explain later.
      “Effective Date”
          means the date of execution of these Terms (or the later of different dates), as evidenced by the records indicating the date the Affiliate signed up to the network;
      “Intellectual Property Rights”
          means patents, rights in designs, trade marks, trading business or domain names, email addresses, copyrights (including any such rights in typographical arrangements, web sites or software), whether registered or not and any applications to register or rights to apply for registration of any of the foregoing rights in inventions, know how, trade secrets and other Confidential Information, rights in databases and all other intellectual property rights of a similar or corresponding character, which subsist now or in the future in any part of the world;
      “Link”
          means the link buy.at supplies to Affiliate for inclusion on Affiliate’s Site, which when clicked on by a User, identifies:
          1. that the User has been referred by Affiliate; and
          2. the Programme in which the User is participating;
      “Merchant”
          means a third party whose goods or services Affiliate promotes to Users as part of a Programme;
      “Parties”
          shall mean the Affiliate and buy.at, and “Party” shall mean either one of them;
      “Programme”
          means a commercial offer or set of offers of Merchant’s products and services specified in a Programme Description;
      “Programme Description”
          means the key parameters of a Programme, which may include, without limitation, a description of the Merchant’s company, commission rates, cookie period, specific Affiliate terms and conditions and other similar information;
      “Referrals”
          means the Affiliate’s referral or introduction of a User to a Merchant as part of a Programme, which may result in an Approved Transaction.
      “Services”
          means the provision of the buy.at Network and operation of the Programmes;
      “Site”
          means Affiliate’s site, blog, forum, voucher code, email list or other mechanic designed or intended to refer Users to Merchants;
      “Term”
          means the duration of these Terms, beginning on the Effective Date and continuing until the date of termination by either Party, or expiration;
      “Territory”
          means the territory specified in the Management Area;
      “Transaction”
          means the sale or supply of any Merchant’s goods or services to Users, or introductions, referrals or other User interactions in respect of Merchant’s goods or services as defined in the applicable Programme;
      “Unethical Activities”
          has the meaning ascribed to it in Schedule 1, Paragraph 2;
      “User”
          means an individual consumer who purchases, applies for, enquires about or otherwise takes action in respect of Merchant’s products and services.

SCHEDULE 1
Affiliate Guidelines

   1. Each Affiliate undertakes to buy.at that it shall not engage in any fraudulent, unethical or unlawful activity, or any activity which is not transparent to, nor in the best interests of, buy.at, Merchants and Users (“Unethical Activities)”. Examples of Unethical Activities include, but are not limited to:
         1. use of inappropriate software (whether third party or otherwise) in order to create financial gain for Affiliate
         2. bidding on disallowed key terms within paid search, or any other third party advertising system based on keywords, without buy.at’s and/or Merchant’s prior approval
         3. implementing links, where there is an incentive to click on them without a User’s full knowledge of the consequences of their actions - for example, activating a cookie which may later mean a conversion of sale to the owner of the Affiliate link (‘forced clicks’)
         4. mimicking the action of an Affiliate link click which results in a cookie being stored on a User’s machine which could later lead to the conversion of a sale to said Affiliate
- All those specifics are very naughty things, and obviously we don't do any of that. However, where it's "not limited to", I worry about how wide a scope that might involve, and how "not transparent to" might be applied.
   2. The provisions of this paragraph apply to Affiliates whose Site comprises an email list (“Email Affiliates”). buy.at shall indicate whether each Email Affiliate must:
         1. obtain buy.at’s written approval before sending email promotions on behalf of Merchants to Users;
         2. promptly supply examples of email promotions which Email Affiliate proposes to use;
         3. promptly provide full disclosure as to the origin and source of its list or database of email addresses, including supplying satisfactory evidence that these have been properly purchased or licensed; details of the party from whom they have been purchased or licensed; and details which demonstrate that they have been created, supplied and operated in accordance with data protection and other applicable laws.
- What happens here is that Zyra's Circular goes out to various people who've asked to be included, and the messages often mention merchants, but the messages are never "on behalf of" merchants. You can see an example at www.zyra.eu/circ106.htm
   3. It is each Affiliate’s responsibility to protect and maintain the confidentiality of their logins, Links and other data used to manage access to the Affiliate Management Area and Programmes, to ensure that a third party may not change Affiliate’s details without Affiliate’s knowledge.
   4. The buy.at Network is an online network and Transactions within a particular Programme must be conducted online, not offline, unless otherwise agreed between the Parties. Offline Transactions will be ignored and not count towards Commission unless specifically agreed otherwise by buy.at.
- Yes, that's exactly the right way to phrase it!
   5. Each Affiliate must specify the URLs it will use to track Transactions as part of the sign up process via the Affiliate Management Area (“Authorised URLs”). buy.at may ignore transactions entered into via URLs other than Authorised URLs and/or withhold Commission in respect of them. An Affiliate may add additional or substitute URLs from time to time via the Affiliate Management Area, but such URLs will only become operational once confirmed as such by Affiliate’s account manager.
- That's slightly worrying, and I need clarification on this. As you may know, my site includes the primary site www.zyra.org.uk but is also spread across a few other domains, which are listed at www.zyra.org.uk/zsites.htm . So please tell me, are those all included at present? Also, if they were, would it look confusing for the merchant? - there was some idea that even if just the primary site was specified, we would be ok with all of the sites, but that doesn't cover the "tracking" issue, although it's probably OK.
   6. From time to time, buy.at may request information from Affiliate to evidence how and where Affiliate is promoting its Site, and Affiliate shall supply such information promptly to buy.at.
- You're welcome to know.
   7. If any Affiliate or User has configured its system in order to disable any technology for confirming the means of referral, buy.at will treat the User as not having been referred by any Affiliate.
   8. All information in the Affiliate’s Management Area must be complete and accurate at all times. buy.at reserves the right to request proof of Affiliate’s identity at any time. If Affiliate does not provide this within time period specified by buy.at then buy.at may terminate these Terms on immediate notice.
- Will Buy.at please specify the time period up front, so we know? - apparently they would be agreeable to specify the period at the time of requesting the proof of identity. Does that make us feel better about it?
   9. Affiliate hereby undertakes to comply with the IAB’s code of best practice on the use of Voucher Codes as set out at:
http://www.iabuk.net/en/1/iabsaffiliatemarketingcouncillaunchescodeofbestpractice110808.mxs. - Voucher codes? eek - we try to avoid them. See www.zyra.info/ouchers.htm

Confirm I accept these conditions. / I do not accept these conditions.

Other things which could have been included: In the section on keeping sacred each-other's intellectual property rights etc, how about banishing the evil of cybersquatting?

What happened next? Well there wasn't much at first, until some of the Buy.at merchants started getting a bit upset that all of the links had been taken down and that they were now losing a lot of business. Now although Buy.at didn't want to change the main contract which they expected everyone else to sign, even though I pointed out it was silly, they did at least negotiate, for a while, about a special contract here. In the end, almost all of the problems were ironed out. It took a lot of doing by both sides.

There was one sticking point, however. The special contract was something they insisted was confidential. Well, that's not good, because I consider it's bad form to have a "cloak and dagger" contract. However, I agreed in the end that provided there was an expiry on the secrecy, it would be OK. Buy.at said it should be two years after termination of the contract, which I considered was not ideal, but was at least reasonable, and not a FOREVER contract. The only detail was that I insisted on being able to state publically that there was a special agreement. It would have been bad enough having a special agreement, but to keep the very existence of it secret, oh no! I mean, come on: People would read the pages here saying "I refuse to sign the original agreement", and then I'd have signed a special agreement and people would say "Did you sign the agreement?" and I would want to tell the TRUTH which would have been: "I refused to sign the original agreement, but Buy.at and myself have come to a special agreement which we have signed", and then if they asked the details I would say "Sorry, I can't tell you, because it's a confidential agreement". Unfortunately, Buy.at would not agree to that, and insisted that the very existence of the special contract remain secret.

So, let's get this summarised here:

1. Buy.at still had their original contract which I considered unfair and which they were still expecting other affiliates to sign.

2. Between us, Buy.at and myself had at great length hammered out a special agreement.

3. I had agreed to keep the DETAILS of the special contract confidential, but I insisted on being able to disclose the existence of the agreement.

4. Buy.at refused to accept that, and insisted that the existence of the special agreement remain secret.

5. Therefore, I could potentially be made into a stoolpigeon, as Buy.at could theoretically make a big announcement saying to all affiliates "Look, our contract is fair. Even ZYRA has signed it!", and they would be able to convey the false impression that I had agreed to the original (unfair) agreement, and now other people would be lured into signing it. Of course there is no evidence to suggest this is what would actually happen. However I considered that in such a situation it would be a BETRAYAL OF TRUTH, as I would have in effect given my word that I would be party to a LIE!

I got the impression they were just hoping to put it through on the nod, in the hopes I hadn't noticed this. However I DID notice it, and I would not sign. So, no agreement.

Well, if they're going to chuck it all up in the air just because of that, and it's got this vitally important secrecy to the very existence of the secret contract whose contents were secret, then in my opinion, it stinks. I consider the possibility that in such situations there's something even more sinister going on. It's like The Devil going around getting people to sign something that seems at first fairly innocent. You must read the smallprint!

The consequence of the lack of agreement between Buy.at and myself is that all of the merchants at Buy.at , or at least all of those who are stuck with a stupid exclusive agreement , are missing out. I am missing out on about 36,000 per year of affiliate income (my freedom and honourable principles are worth rather more than that), but the merchants are missing out on millions of pounds per year of sales. I feel sorry for them, and in some cases I have written such. Remember: It's not the merchants' fault. They went into having an agreement with Buy.at when it was still a reasonable company, and there was no way they could reasonably have guessed in advance that it would be "assigned", ie taken over, swallowed up, by a huge corporate, and which would then try to impose ridiculous onerous terms on affiliates, some of whom would take exception to such. Don't blame the merchants; it's not their fault!

I'm by far not the only affiliate who refuses to sign such a thing. For example, look at Xyroth's page The Trouble With Buy.at, and a few others. Or to put it another way, as I said on another page about Buy.at: There is some update on the situation, which I'll explain here. First though, you must understand that the "Buy.at Problem" has upset MANY people. There are many affiliates who have problems with the new Buy.at contract, and yet, if any affiliate speaks to Buy.at about it, they are generally told "You are the only one who has a problem. Everyone else is happy about it". I intend to expose this matter, as I know several affiliates who have a problem and who have told me themselves! Plus, even some agencies are upset about the problem. At one notable agency, someone in an important job described Buy.at as "A PAIN IN THE NECK", which I think is an especially polite way to express a feeling which some other people might have put using sightly different words.

Admittedly there are people who don't read the smallprint in a contract. Either that, or they cross their fingers behind them when signing, in the hopes they'll never be called on it. However, they should beware, because sooner or later some company or other will set a trap and will have them, by means of something approximating to a legal SCAM! Look what happened about Europa Club Search Engine

I suggest that you beware of things in contracts, and only sign things if you agree to them. That way, good practice will win out over bad, and truth will win out over inexactitude.

It's a shame that Buy.at have been lost, here. However, there are plenty of other affiliate marketing companies, and some of them have shown considerable chuffedness at the failure of Buy.at to reach an amicable agreement. Buy.at's loss is their gain! Merchants have seen what has happened here with the abandonment of Buy.at , and some have already moved, migrated, set up another affiliate program elsewhere. There's a parallel with leaving the UK, where the country has got into such a bad condition with the credit crunch, and then the government imposed ludicrous tax, and so approximately anyone who could afford to leave will be leaving. A shame about the sinking ship, but we don't need to go down with it.


Notes about this page:

* This page does not breach any confidentiality, and fits with our own Privacy Policy. All of the stuff on this page is either by myself, or is quoted from public sources. (Or to put it another way, none of it has been got by publishing items which were confidential). I have not published the entire correspondence between myself and the lawyers at Buy.at , and I have even kept the special agreement confidential, even though I have not specifically agreed to keep it confidential!

* No individual person has been publically humiliated on this page. The names of people at Buy.at have not been included in this page, as I believe they have a right to distance themselves from all the corporate stuff if they so desire.

* I have not blamed any person in particular for the fouling-up of the Buy.at agreement. I consider it's a corporate problem where people somehow fail to understand other people's principles.

* If at some time Buy.at were to come up with a reasonable, amicable, and mutually acceptable agreement, I would consider signing it. Although what's happened so far is quite bad, it's not unforgivable, and I believe it could be rectified. I also think that the UK can be saved from bankruptcy, and that eventually some politicians could be brought to justice and tried for war crimes, and that the Earth's climate has not gone so far into overload (yet) that it will lead to the extinction of humanity. The way is still open for the repair of these and other problems.


Since the time of imposition of this ridiculous contract, at least one affiliate has lost tens of thousands of pounds of commission, Buy.at have lost probably even more, and some of the merchants may even have lost millions of pounds of sales. Some of the merchants have voted with their feet and have left Buy.at ! Meanwhile, there are plenty of other affiliate marketing companies, and they are laughing in their socks at Buy.at's folly.


Update: Buy.at were Bought.out , and the buyers Affiliate Window soon established some reforms which resolved the problems. As a result, a new page was created for The New Buy.at . Therefore, please note that this problem has all been SOLVED now!


This is all very old now.