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Change of Allegiance

As I've mentioned over at En Banc, I'm a bit wary about have associates links on this site anyway. However, one visitor to the site pointed out a bit of Amazon.com's Operating Agreement that I hadn't noticed:

You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement.

Now, I have two problems with this:
1: Amazon doesn't list this in its Associate's FAQ, but only in the Operating Agreement. This is the 'review and click here' form agreement that no one (including, it seems, this law student) reads carefully.
2: Amazon's policy isn't 'we won't credit you for items purchased through your logon or sent to your address.' I'd have no great problem with that. But this puts the burden on the associate to make sure he doesn't make a purchase. This isn't easy to do: if you test any of the links that Moveabletype makes for you, Amazon sets a cookie. Make a purchase within 24 hours, and it's likely that you're going to make a purchase through your website, whether you meant to do so or not. Bingo, possible breach of contract. Nor is there a way for you to disclaim such a purchase manually. The suggestions I've seen for avoiding this range from 'type the URL in the browser' (which doesn't always work) to 'disable cookies on Amazon.com' (for which they've got to be kidding).

So, the next step of the New Year's redesign will be a nice suggested books column in the top navigation bar, and it will use Barnes & Noble's affiliate scheme. They don't seem half so picky.

That being said, one course in contracts and one course in civil procedure leave me in awe of Amazon's associate scheme. The agreement has it all: a mandatory arbitration agreement (as with Itoh v. Jordan); an agreement to forego any kind of class-action or class-arbitration lawsuit; a venue provision (a la Carnival Cruise Lines v. Shute)... in short, everything you'd need to make certain that some small fry would never be able to challenge your big corporate badness over any decision you happen to make. My hat's off, really. I've been reading a lot of form contracts lately (though not this one--I joined before law school), and this one is the most obviously evil.

Of course, now I'm interested enough to go research whether the Operating Agreement, since it functions as a contract between a major corporation and private individuals, might be considered a contract of adhesion, and if any of these terms are actually enforceable. I can't imagine a suit would be worthwhile if it weren't a class-action, and to get there you'd have to get past two clauses of the arbitration provision and get some of the contract declared void for unconscionability. I'd imagine it would be quite tough, if not impossible.

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» Switching from Crescat Sententia
Anthony Rickey has recently learned that he has inadvertently been violating the Operating Agreement for Amazon's Associates program (which this blog also uses), and will therefore be switching to Barnes and Noble. Now I've always ordered my books onli... [Read More]

» Switching from Crescat Sententia
Anthony Rickey has recently learned that he has inadvertently been violating the Operating Agreement for Amazon's Associates program (which this blog also uses), and will therefore be switching to Barnes and Noble. Now I've always ordered my books onli... [Read More]

» Linking to Amazon.com: just say no from Glorfindel of Gondolin
One of the first decisions I made as a novice blogger was not to link to Amazon.com or to Barnes&Noble. Although I expected to be in the minority of bloggers who chose to link to independent booksellers instead of the... [Read More]

» Linking to Amazon.com: just say no from Glorfindel of Gondolin
One of the first decisions I made as a novice blogger was not to link to Amazon.com or to Barnes&Noble. Although I expected to be in the minority of bloggers who chose to link to independent booksellers instead of the... [Read More]

Comments

I haven't gathered closely enough from your post how and when the terms are exposed to the Associates, but a recent case Specht v. Netscape (second circuit) sort of bears on this.
I spotted the clause you refer to. Can I be a lawyer now please? Have a great 2004 Tony. M
Remember, just because it might be a contract of adhesion, it is probably still enforceable. Because of the amount of competition on the internet, and because there are obviously other sites (i.e. B&N) that don't also include that clause, my guess is it will probably be enforceable. OTOH... If you can make a good case that this is a material term, and you could not have discovered it with reasonable dilligence BEFORE you signed-up, you might be able to make a deceit claim and thereby avoid the clause or the whole contract. I could be wrong, I'm not a lawyer yet either. Later,
That first sentence was worded poorly. I meant to say that just because a contract is one of adhesion does not mean that it will not also be enforceable... Boy, does that double-negative sentence sound like lawyer-ese, or what? Later,
That's what I was looking through, Bronson. I'm not particularly serious about it, but since adhesion was one of the topics that caught my interest in Contracts, I figured it's worth looking at.
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