Comparison of CJ's new and prior Publisher Service Agreements

On October 5th, 2005, Commission Junction announced a new Publisher Service Agreement. The email notifying publishers of this change didn't provide any details of what changed, but called them "slight".

The new CJ PSA can be accessed on their website and I found the old PSA on the Internet Archive.

New Publisher Service Agreement
Old Publisher Service Agreement

As I compared the documents, I quickly realized that the new agreement is a complete rewrite. The only way to reconcile the differences was to map the new sections to the old. Whether the material changes are slight, that's for you to decide.

I have documented the mappings and added my own observations. This is not a thorough analysis of the differences in each section, though the most notable changes that I found are as follows:

The new PSA is a good deal shorter. There are a few sections that didn't make it to the new PSA, and otherwise, it looks like they removed some redundant text.
There is new language around "special" promotional methods, giving CJ more hand in dealing with publishers engaging in creative methods for driving traffic and transactions.
There also appears to be a new requirement that Publishers include a Privacy Policy on websites, including disclosure of tracking performed by Commission Junction on their behalf.
CJ has added language allowing them to use publishers' names and trademarks in marketing material, naming publishers as being clients of theirs.
The timeframe for "inactivity" (no transactions or logging in to the account) which allows CJ to deactivate has been reduced from 90 to 30 days.

NB: I am not a lawyer, and the comments in this document do not constitute legal advice or opinion. These comments have been added as I have gone through this document for my own understanding of the changes and are provided to aid other publishers in understanding the changes. You should consult an attorney for interpretation of any of the terms in this agreement.

Feedback is welcome. If you find any errors, ommissions, corrections, please contact me: scott at jangro dot com.

New Agreement	Old Agreement	Comments
Introduction	Introduction	Besides the address change, there are some basic changes in this introductory paragraph. Old language that talked specifically about methods like email subscription lists, etc., have been changed to be more generic.
1. Participation in Programs
(a)Acceptance by Advertiser	2.1 Linking to Advertisers
(b) Program Terms	2.2 Use of Links to Advertisers 2.3 Termination from Advertiser's Program/Campaign
(c) Additional Terms	2.2 Use of Links to Advertisers
(d) Prohibited Uses of Links.
(i) Locations.	2.2 Use of Links to Advertisers
(ii) Non-Bona Fide Transactions.	2.2 Use of Links to Advertisers
(iii) Infringement.	2.3 Termination from Advertiser's Program/Campaign 4.2 No Challenge to Intellectual Property 4.3 Terminating Licenses
2. Publisher Obligations to CJ.
(a) Accurate, Up-to-Date Information.	NEW	This paragraph appears to be new. It introduces the concept of "special" promotional methods which gives CJ an easier time dealing with publisher methods that are seen as counter to the goals of the network. It also allows CJ to add any new methods that have not yet surfaced to this "special" classification.
(b) Use of Links.	1 Relationship ... (b) operate or utilize a Web site or email Links(s)...	The language about designating a publisher account as "special" is new, as is the policy of maintaining a privacy policy.
(c) Promotional Methods.	1 Relationship ... (c) engage in spamming...	Maps to section 1c of the old PSA. There is a good amount of new language in this paragraph, specifically compliance with the CAN SPAM Act of 2003, specific mention of the Publisher Code of Conduct, explicit mention of downloadable software applications, pop-ups and pop-unders, etc.
(d) Personally Identifiable Information of Visitors.	5.2 Collection and Use of Transaction Data	Most of section 5.2 seems to have been removed, except for the publisher's use of the Tracking Code to collect personally identifiable information
(e) Privacy.	NEW	Like in section 2b above, the requirement of a privacy policy seems to be new. This entire paragraph is concerned with every publisher having a privacy policy on web sites.
(f) Applicable Codes and Code Maintenance.	3.1 Applicable Codes and Code Maintenance
(g) Usage and Security of Account.	5.1 Privacy and Confidentiality
3. CJ's Services.
(a) Tracking Transactions and Payouts.	3.1 Applicable Codes and Code Maintenance
(b) Charge-backs.	3.5 Charge-backs	This section has changed from being limited to a "chargeback period of 60 days" to being possible for chargebacks to be applied on any previous payment.
(c) Access to Tracking and Reporting Tools.	3.2 Network Service
(d) Support.	3.2 Network Service	The new agreement is much less specific about things like hours of support, etc.
(e) Facilitating Payment of Payouts.	3.4 Payment
(f) Dormant Accounts.	3.4 Payment
(g) Negative Accounts.	3.4 Payment
4. Proprietary Rights.
(a) Linking to Advertisers.	4.1 Property Rights and Licenses
(b) CJ's Use of Your Marks.	NEW	This paragraph appears to be new, granting CJ rights to use Publishers' trademarks, service marks and copyrighted material provided to CJ through the publisher account. They can use this to promote that a publisher is active in their network.
(c) Your Use of CJ's Proprietary Rights.	4.2 No Challenge to Intellectual Property	Roughly maps to section 4.2 Paragraph 1 of the old PSA, but newly refers to the cj.com "Terms of Use".
(d) Retention of Rights.	4.2 No Challenge to Intellectual Property
(e) No Challenge to CJ's/Advertiser's Proprietary Rights.	4.2 No Challenge to Intellectual Property
5. Confidentiality.
(a) Obligations.	5.1 Privacy and Confidentiality
(b) Provision of Info to Advertisers/Third Parties.	5.1 Privacy and Confidentiality	The language, "The information that You supply to establish and maintain Your Account shall be Your Confidential Information" has been removed.
6. Term, Termination, Deactivation and Notices.
(a) Term.	6.1 Term and Notices
(b) Termination by Advertiser.	2.3 Termination from Advertiser's Program/Campaign 4.3 Terminating Licenses
(c) Termination or Deactivation by CJ.	1 Relationship 6.1 Terms and Notices 6.2 Temporary Deactivation and Termination	This paragraph doesn't map directly to any in the old PSA, but seems to combine several old sections. An important change is that they have reduced the number of days of inactivity (account not logged into and no transactions) that warrants deactivation from 90 to 30 days.
(d) Termination of Programs and Offers.	2.3 Termination from Advertiser's Program/Campaign
(e) Notices.	6.1 Term and Notices
(f) Post-termination.	6.2 Temporary Deactivation and Termination 6.3 Survival
7. Representations, Warranties, Disclaimers and Limitations.
(a) Business Operations.	9.1 Business Operations
(b) Authority.	9.2 Authority and Compliance with Laws
(c) Non-infringement Warranties.	NEW	This paragraph appears to be new. I couldn't find anything in the old agreement that matches this language. The last sentence is from section 1 Paragraph 2.
(d) Compliance with Laws.	9.2 Authority and Compliance with Laws
(e) Limitation of Liabilities.	9.3 Limitation of Liabilities
(f) Disclaimer of Warranties.	9.4 Disclaimer of Warranties
(g) Remedies.	8.1 Remedies
(h) Benefit of the Bargain.	9.5 Benefit of the Bargain
8. Publisher's Indemnification Obligations.	10.2 Publisher's Indemnification Obligations	The old section 10.1, the CJ and Advertiser Indemnification Obligations has been omitted.
9. Miscellaneous.
(a) Headings and References.	11.1 Headings and References
(b) Third Party Disputes.	8.2 Third Party Disputes
(c) Relationships of Parties/Third Party Rights.	11.2 Relationships of Parties/Third Party Rights
(d) Choice of Law/Attorneys' Fees.	11.4 Choice of Law / Attorneys' Fees
(e) Force Majeure.	11.5 Force Majeure
(f) Severability/Waiver.	11.6 Severability/Waiver
(g) Assignment and Acknowledgement.	11.7 Assignment and Acknowledgement
(h) Marketing.	NEW	Again, new language about CJ using Publisher name and logo for marketing purposes and identifying publisher as a client.
(i) Entire Agreement, Assignment and Amendment.	11.7 Assignment and Acknowledgement 7 Changes to the Network Service
OMITTED	3.4 Payment, last paragraph re: electing to receive payment in any of the currencies CJ supports
OMITTED	5.2 Collection and Use of Transaction Data	While the publisher portion of this did make the new agreement, CJ's collection and use of Transaction Data is not mentioned. Perhaps this is sufficiently covered in the Privacy Policy.
OMITTED	5.3 Collection and Confidentiality of Visitors' Personal Data	Again, perhaps covered in the CJ Privacy Policy.
OMITTED	10.1 CJ's Indemnification Obligations
OMITTED	11.3 Dispute Resolution