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Can you elaborate on what is legally different here from direct versus indirect marketing and sales for any other type of business?
Most common example I can think of is cellphones. Go to any mall, you'll typically find a company owned store for all of the major carriers inside the mall. That is direct.
You will also find a seemingly infinite number of small stands which may carry just one carrier or may carry multiple. Ditto for other stores like big box retailers. And you can bet that the company store can offer certain plans and services that the indirect dealer cannot. In some cases, you may also have plans specifically for the indirect that the company store doesn't have. Bottom line they're adhering to different marketing policies and rules.
Another example, Wal-Mart. If you think you can deal with wal-mart to sell ANYTHING, the same way you deal with every other retailer you are SADLY mistaken. I would just about guarantee wal-mart has a unique contract with every manufacturer or wholesaler that they deal with directly. And that is essentially what I would think the TOS for affiliates is....a contract between them and the program.
Help me understand what's different?
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A TOU is a contract you are placing on your website, that depending on the type of site, will define what someone can do and cannot do with your intellectual property when they visit your site. On a side note, it must be a click-thru contract, though.
You can certainly define what is permissible and you can give different rights to different classes of people in a separate contract. However, if you have a general TOU on your site that defines your general terms.
For example, in your TOU, your may restrict visitors from downloading your content and posting it on Tube sites, however you may and can allow a reseller to use certain content on Tube sites to promote your content. I would have a separate contract for resellers. You may want to take an approach like this so that an affiliate that can produce strong sales has all the tools available to him/her to drive traffic. In that instance, in your TOU you should reserve all rights to place content on Tubes, but it has to be reserved and noted.
Just reserve certain rights that you may want to give to others or keep for yourself.
Not sure if that answers your question, but sorry I missed it originally.
Michael
www.AdultBizLaw.com