Intro and welcome
from Mike Grehan.
Hi, and welcome to e-marketing-news.
Spelling and idiom. There's a place to
start! An e-marketing newsletter, based in the UK, delivered
internationally, using words, phrases and spelling which have
to cut across all borders. Who'll ever understand it! And
will they get the jokes? We had to think long and hard about
that! It's not too much about the jokes of course. Working
with this team, I soon discovered that we couldn't print most
of them anyway. I took advice from a great Barrister I know.
Anyway, it was mainly her jokes we couldn't print.
It's not often that you get free advice
and thoughts from Barristers and University marketing experts
in a newsletter. More than that, it's not often you get free
stuff from the online marketing practitioners who are already
succeeding and really happy to give their time, which is most
precious to them.
However, there is a much more important
partner on this team whose contributions outweigh the rest:
and that's YOU!
We can have our "wobbly" start
here, but the way forward depends on how much you take advantage
of the resources which we can try to make available, in terms
of our time and assistance, to provide useful, practical articles
and answers to commonly asked questions.
No, none of us can provide free, personal
consultancy. But, jointly, we can take some of the most burning
questions and issues, try and work out the best answers and
resolutions, and feed them back.
I've done a little "dipstick"
research into the subscriber base of this newsletter by contacting
a number by e-mail and trying to get a bit of profile. It
was extremely interesting to note the very varying differences.
Many people are new to the web and just starting their online
ventures. And many are "seasoned" online ventures.
With this in mind, we'll be touching on all aspects from the
academic side, to the hands on practical side.
So, let's get started. Ralph Tegtmeier,
AKA fantomaster is the featured 'practitioner' for this issue.
He gives his own personal insight into the subject of "Cloaking"
at search engines and gives an overview of the speakers and
events at a major SEO conference coming soon to Amsterdam.
Rita Esen tracks-back contracting in the
IT industry and explains how "shrink-wrap" agreements
became "click-wrap" agreements on the web. This
prompts the question: Do you always click the "I agree"
box at a website, without reading the terms?
Richard Gay has sent many a graduate marketer
into the world of real commerce and seen them succeed. With
his expert background he's able to provide us with his own
"thinking aloud" observations of both offline and
online marketing techniques.
I've developed a simple model for online
marketing under the "3 P's" banner. It stands for:
Positioning; Permission; Partnership. Fundamentally, the three
most important ingredients in your online marketing mix. Each
will become self explanatory as we carry on.
Personally, for this issue, I've chosen
'P' for positioning to begin with. What a surprise I hear
you say!
It's a bumper issue, so why don't you
print it out and then find somewhere to relax and read it.
BUYERS GUIDE
TO SEARCH ENGINE OPTIMISATION FIRMS:
2nd Edition. MarketingSherpa. A review
by Mike Grehan.
Back in 1997, Danny Sullivan, largely
regarded as the leading expert in the field of search engine
optimisation (SEO), published what was then known as: A webmasters
guide to search engines. It grew to become Search Engine Watch
and is, without doubt, the most visible online resource focused
on search engines. During that same year, software developer
Brent Winters, launched a product called WebPosition Agent.
The product grew to become WebPosition Gold, the leading software
package of its kind in the SEO industry.
Coincidentally, at the same time, Frederick
Marckini "teamed-up" with Brent Winters to help
promote the new software product, and also formed his SEO
firm Response Direct. This grew to become iprospect, one of
the most highly respected firms in the SEO industry. All three
have been major influencers in what is now a burgeoning and
credible industry sector. Initially, the art/science of SEO
as an online marketing tactic was viewed by many as the "dark
side" and much associated with some kind of technical
"Voodoo" or "smoke and mirrors" trickery.
These days, you'll find Danny Sullivan
presenting highly respected international industry conferences
(with participation from the search engines themselves). Brent
Winters is CEO of an award winning software company, and recently
launched WebPosition Gold 2 with plaudits from leading industry
players. And as CEO with iprospect, Frederick Marckini has
set professional standards which attract world leading companies
as clients.
From "cottage industry" to credible
industry sector, SEO has become a vital component in the online
marketing mix. Yet, it's an industry sector which lacks the
cohesion of many others. No real governing body exists. Standards
and practices belong to the integrity (or lack of it in some
cases) of the individual practitioners. And as for pricing
structures: "how long is a piece of string" really
is an understatement.
In September of last year, MarketingSherpa
produced a long overdue, first of its kind, with their buyers
guide to search engine optimisation firms. The new second
edition has just recently been published, and boy: was I glad
to see it. Not that I'm in the market for an SEO firm (I kind
of have that base covered already), but because so little
marketing intelligence exists relating to the pricing and
practices of SEO firms. Just run a search through any of the
major search engines on "search engine optimisation"
or "search engine marketing" as it's more currently
referred to, and you'll have SEO firms "coming out of
your ears." Then try to do some comparative research
on services, methodology, pricing, etc. Not only are you less
than likely to be able to find some close matches: you're
less than likely to find such detailed information. Most of
the larger SEO firms only give a broad outline of services
and very rarely actually give an indication of how much they
charge for their services.
For the uninitiated marketing executive,
who understands that better visibility at search engines is
important, he's still largely left with the dilemma of who
should do it, how will they do it and how much should it cost.
This is where the MarketingSherpa guide
comes into its own. Sure, there are many websites and newsletters
and "how-to" guides (including my own), but for
a busy executive, the simple notion of having to learn "all
that stuff" and then actually put it into practice is
a distant one. As Alexis Gutzman, Managing Editor of the guide
puts it: "SEO is like plumbing. You could learn how to
do it yourself, and do it fairly well. But not everyone has
the time, money or interest to do so." Thanks Alexis
- I spend the first part of this article explaining how SEO
has become respectable in online marketing terms and next
thing we're plumbers! Seriously though, Alexis makes a very
valid point. If it wasn't a fact, then I would very likely
be in the ranks of the unemployed.
So, to the "nuts and bolts"
what's in the guide and what can you expect from it? If you're
new to the whole issue of SEO, it's easy to get lost in the
industry jargon, so the guide provides a useful glossary of
terms to begin with. The first part of the guide then focuses
on information received by direct contact with some of the
major search engines and directories, including Google and
Yahoo! (transcripts of the interviews are included in the
appendices). This is very much an overview of the search engine
standpoint relating to the practice of SEO, and what are deemed
as acceptable practices and those which are more likely to
be frowned upon. Not surprisingly, the general consensus is
that marketers should find credible, reliable, non-spam-generating
firms to work with.
The next section is a "Business Backgrounder"
covering the benefits of SEO and explaining the difference
between pure SEO and marketing services which can be paid
for and provided by third parties, such as Pay Per Click.
This "dovetails" perfectly with the section on how
to pick the right SEO firm for your company. Now this is extremely
valuable information and advice for any company which needs
to know what questions they should be asking a potential SEO
supplier; what kind of answers to expect and the risks involved
if you do select the wrong firm. Just going back to something
I mentioned earlier, when talking about pricing structures
within SEO firms, Alexis Gutzman sums it up quite nicely again
when she simply states: "SEO pricing is all over the
map."
The real "meat" in the report
comes in the main section which profiles 55 search engine
optimisation firms in the US and Canada (in a later edition
firms from the UK/Ireland/Australia/New Zealand will be able
to nominate themselves for inclusion). There's no charge for
inclusion but firms do have to fall within the qualification
criteria:
The firm must be an SEO firm not a technology
company.
The firm must have at least one full time
employee who focuses 75% on SEO services, and who has at least
3 full-time years of SEO experience.
The firm must derive a significant proportion
of its revenue from SEO services.
The firm must be in the US, Canada, UK,
Ireland, Australia or New Zealand (the rest of the world is
not featured as yet).
Each of the firms nominated and eventually
featured in the guide were required to complete a 92-point
questionnaire carried out by phone. The questionnaire covers
areas of specialisation, tactics used and general philosophy.
Of course, when it comes to the very important aspect of budgeting
for SEO, as has already been mentioned, it's almost impossible
to compare one firm to another because of the variation in
services provided, and the size of the actual firms themselves.
However, the guide is able to determine a number of things,
such as:
What the least expensive package costs.
What the most expensive package includes.
Whether the least expensive package includes
any number of keyword phrases, and if so, how many.
What services are available in a larger
package.
Information relating to maintenance, contracts,
ownership, page creation and reporting is also included. The
firms included were given scores based on several different
criteria. The most important criterion was the effectiveness
of the techniques the SEO firms used to achieve high rankings.
Each of the firms was able to include comments from their
existing clients, who also had to carry out a short survey
relating to the services provided by their chosen supplier.
The report has proved to be a major success
for MarketingSherpa, which is testimony itself to the requirement
for such a guide. Trying to set industry standards within
the field of SEO is much of a fruitless task at this time,
as many would-be "self regulating" organisations
appear and then disappear just as quickly. Certainly, the
buyers guide doesn't appear to set out to establish standards,
it's more a case of observing if they do exist and in what
form. Perhaps the most important and valuable aspect of the
guide is that, it's not just a list of firms who do SEO and
an overview of what SEO actually is. It's an eminently useful
reference tool for professional marketers who need to make
informed decisions.
Who should buy it? Both sides. Marketers
who need to put together a sensible and realistic brief to
provide to potential suppliers. And those potential suppliers
(the SEO firms) who are usually starved of marketing intelligence
and competitor analysis data.
If you'd like to nominate your firm for
inclusion in the buyers guide, you can do it here:
< http://www.e-marketing-news.co.uk/survey
>
If you're in the market for an SEO supplier
and need the relevant reference material, you can purchase
the guide here:
< http://www.e-marketing-news.co.uk/sherpa
>
REFERENCE:
Danny Sullivan: Search Engine Watch.
< http://www.e-marketing-news.co.uk/sullivan
>
Brent Winters: WebPosition Gold 2
< http://www.e-marketing-news.co.uk/webposition
>
Frederick Marckini: iProspect.
MEET RALPH.
Each issue of e-marketing-news carries
a feature article written by a specialist from the various
online marketing disciplines. Whether it's SEO, e-mail marketing,
affiliate marketing, copywriting or web metrics, we'll have
a "real" practitioner to give us an insight into
their work and pass on any useful tips and information.
Ralph Tegtmeier is the co-founder and
principal of fantomaster.com GmbH (Belgium), a company specialising
in webmasters software development, industrial-strength cloaking
and search engine positioning services. He has been a web
marketer since 1994 and is editor-in-chief of fantomNews,
a free newsletter focusing on search engine optimisation.
Ralph, AKA fantomaster, is very high profile
in SEO circles and is regarded as an expert in the field.
His use of cloaking as his main SEO tactic "raises eyebrows"
in certain quarters. In this issue, Ralph speaks openly and
frankly to put his side, and address the "general consensus"
towards cloaking within the industry. He also has news of
a major SEO conference taking place soon in Holland. We're
very grateful for this contribution.
SEARCH ENGINE OPTIMISATION AS A BLACK
ART - BEYOND THE MYSTIQUE. BY RALPH TEGTMEIER.
There's a prevalent dichotomy on the Internet,
when it comes to search engine marketing in general and search
engine optimisation (SEO) in particular. "Content is
king" and "common sense rules", scream the
amateurs, and, shame upon them, not too few SEO agencies.
A blatantly naïve approach, suggesting everything will
work out just fine, once you heed a few simple rules: nice,
relevant and non-spammy (or, in American's 'favourite usage:
"ethical") content on the site; tend to your meta
tags; and hand submit your pages to the search engines - bingo!
It's a classical case of "the good guys will always win
in the end". But will they really?
And then you have the hardnosed techie
crowd. They subscribe to a rationalistic, empirical and very
often statistical approach, fundamentally attempting to reverse-engineer
and exploit the search engines' ever changing ranking algorithms.
Here you will discover a lot of highly esoteric tips and tricks,
many if not most of which will stultify the average punter.
In other words: it's the pro crowd talking shop, squabbling
amongst themselves, speculating, testing, demolishing or endorsing
each others' findings, just as peer groups of experts are
always wont to.
None of this is particularly surprising
and neither would it be detrimental per se to the craft of
search engine optimisation. However, you can't well overlook
how incomplete, dated and downright false information regarding
the complex SEO process abounds. One characteristic example
is the ubiquity of admonitions and warnings catering to the
time-worn technique of fear, uncertainty and doubt: "Don't
do this", "never try that", "cloaking
is evil and will get you banned", "only hand submission
works", "avoid products X, Y and Z", "adhere
studiously to what the search engines themselves tell you
to do on their web sites", and so on.
All this attitude achieves, however, is
to promote search engine optimisation to a black art of sorts.
This distorts the picture and causes a whole lot of (incidentally:
very easily avoidable) grief amongst those who rely on this
type of erroneous if well meant advice in their attempt at
actually making a living off their Web presence.
Certainly the time has come to do something
about it! That's why my partners and I decided to organise
a conference on these issues - with the declared agenda of
focusing only on hands-on, practical information. This should
be presented by people who have researched the matter not
only in theory but in actual practice for many years. Rather
than waste attendees' time on mere theorising or vague, sanctimonious
"ethics" fluff of no import to real life successful
search engine marketing, this conference should offer true
insights into what the insiders are really doing, which tactics
and techniques actually work and which don't.
So, now it's on: Search Engine Marketing
Tactics 2002 (Amsterdam) will take place on September 23 and
24 in (you guessed it!) the Netherlands.
However, allow me to discuss some of the
scheduled speeches and their speakers by way of an overview
of the true complexities involved in search engine marketing
these days.
For one, we are extremely happy and, yes,
proud, to have mustered the support of Mike Grehan. His recently
published second edition of "Search Engine Marketing",
a best-selling e-book is a true blockbuster of relevant, well
researched and immensely usable information. It's no exaggeration
that it sets new standards in the field. His speech on "How
search engines really work: Crawler to search results"
is expected to debunk many fond myths abounding in the SEO
industry.
Dirk Brockhausen, my partner and CTO at,
will speak on "SEO and log file analysis: your hidden
marketing goldmine". Logfiles, when viewed from this
perspective, are a veritable eye opener for anyone targeting
Web audiences. Among other things they can reveal the discrepancy
between what webmasters may believe people will search for
and what they actually enter in the search boxes.
Personally, I have chosen the topic "Cloaking
with Shadow Domains - all tricks revealed" in which I
will hopefully dispense with the common myth that cloaking
or IP delivery is something to be avoided at all cost: quite
the contrary, in fact, as IP delivery is the only chance very
many web sites stand to get indexed, not to mention well ranked,
at all. Obviously, some safeguards have to be put in place
before employing this technology effectively. All this will
be covered in detail.
In another workshop I will cover the tricky
issue of cloaking for Google - something all SEO artists should
know about if they don't want to lose their clients' sites
before they can say "index run".
Well known SEO expert Jill Whalen (US)
will contribute her workshop on "Submitting to Directories:
How to get your listing accepted and ranked well". Paying
up is simply not enough: while an all-important directory
like Yahoo! will happily take your money for a review of your
site, actually getting included and, preferably, in a good
position at that, is quite another story. And Jill will tell
it all.
Other highlights include speakers such
as Ammon Johns, Jim Banks and Graham Eden, all from the UK,
covering a variety of issues ranging from what to do about
Google's PageRankalgorithm to Pay-Per-Click (PPC) options
as an SEO testing ground, and doorways as hosted domains:
a new, highly efficient technique you won't have read about
elsewhere yet.
Covering the whole wide spectrum of efficient search engine
marketing, further workshops will tackle: typical SEO mistakes
to avoid; the real life cost-per- click; PPC and reasonable
ROI expectations, and content as a major SEO factor. There
will also be a slot on "Writing search engine friendly
content with your human audience in mind" with no less
than SEO legend Robin Nobles (US) from the Academy of Web
Specialists.
And of course the search engines themselves
shall have their say as well: on the Search Engine Panel which
will close the conference, you can listen to what they are
doing to combat spam and what PPC strategies to pursue. What's
more, you can ask them all those tricky, controversial questions
you may have wanted to air for years in vain. Here, you will
get it all straight from the horse's mouth.
There's yet more, but take a look at the
full conference agenda for yourself. This event, finally,
goes way beyond the mystique still surrounding much of search
engine optimisation and marketing, making the process transparent
and - most important - workable.
SPECIAL BONUS OFFER:
If you sign up for the conference at:
< http://www.e-marketing-news.co.uk/register
>
Be sure to enter promo code "SEM015"
for an exclusive 15% discount, reserved to subscribers of
e-marketing-news.
Subscribe to fantomnews here:
< http://www.e-marketing-news.co.uk/fantomnews
>
(c)copyright 2002 by fantomaster.com -
All rights reserved.
MEET RITA.
There is no doubt that, marketing your
business on the web provides opportunities and benefits which
simply never existed before. The overheads can be very, very
low and the ROI very, very high. With so many advantages it's
easy to rush ahead, launch your website, start trading and
forget about the many legal implications which need to be
considered.
Everything from the simple "terms
of use of your website" to the "terms and conditions"
of trading need to be carefully considered. Many of the legal
aspects of e-business are still being established and many
are subject to change. Once you start promoting and trading
online, you're actually entering a "minefield" of
issues relating to copyright, intellectual property, data
protection and most importantly, contracting.
Dr Rita Esen (LLB,LLM,PhD, Barrister)
an experienced Cyber Law Consultant is the director of CYBERLAW
SERVICES and has a great deal of experience and insight into
this new and growing area of law. She is the Chair of a European
Standardisation Working Group on Promoting e-Trust through
Legal Compliance, and is one of two experts appointed by a
European Standardisation Committee to prepare an Electronic
Signature Guide for SMEs in Europe.
Rita is also friend, colleague and part
of the e-marketing- news team. With such a high profile, Rita
spends her time between the UK and Italy carrying out her
European responsibilities, as well as running her law practice.
We're delighted that we were able to catch her between airports
for this first in a series of articles which fly under the
banner of: "Where marketing meets the law".
Contracting online can be a very complicated
issue. Rita takes a look at how contracts have evolved in
the IT industry and on to the web: do you always just check
the "I agree" box or do you read the terms?
*WHERE MARKETING MEETS THE LAW - RITA ESEN*
- Creating certainty through contract
terms. -
Online terms of contract fall within the
classification of express terms. An express term is a clear
stipulation in a contract which the parties intend to be binding
on them. If there is doubt as to the meaning of an express
term, the court will construe or interpret the meaning.
Contracts of Adhesion.
Although it is possible to negotiate in
some kinds of contract, there are certain categories of contract
where such negotiation is difficult to achieve. In such situations
the seller would simply impose the terms of the contract on
the purchaser. A contract of adhesion is, therefore, a contract
drafted by one party and offered on a take-it-or-leave-it
basis, therefore giving the offeree very little opportunity
to bargain and contribute to the terms of the contract. Online
contracts fall into this category.
Typical examples are contracts of insurance
and loan agreements. With such contracts the consumer does
not normally bargain over the terms of the contract and such
contracts are legally enforceable. In the area of electronic
contracts, especially in the IT industry, suppliers normally
attempt to contract on their own standard terms. In such cases
the customer's bargaining power will determine the extent
to which the supplier is ready to deviate from those standard
terms. The importance of bargaining for terms that are better
than the standard terms of a supplier was highlighted in Mackenzie
Patten v. British Olivetti (1984) ICL & P 92, 95.
In this case, a law firm bought an Olivetti
computer system to run its accounts. They indicated the purpose
for which the computer was intended to be used and without
any negotiation signed up on Olivetti's standard terms. Those
terms only related to the technical performance of the computer.
The computer was unsuitable for the stated purpose, the law
firm ended up expending time and money to litigate the matter.
Shrink-wrap Agreements.
In today's information age the information
industry has coined a licensing contract to meet the needs
of its participants. It is now common for the software industry
to use a standard form contract in the form of a shrink-wrap
licensing agreement. Shrink-wrap agreements are the terms
and conditions of use that accompany software that are sold
or distributed in computer stores. Normally such terms and
conditions are inserted in an plastic envelope that holds
the disk with the software in a box.
Such an agreement construes a customer
who has opened the plastic shrink-wrap as assenting to the
terms and conditions of the licence. By including a shrink-wrap
licence provision on the software product, the supplier's
objectives are:
To prohibit infringement of intellectual
property rights
To limit liability and disclaim warranties
Normally, a shrink-wrap licence agreement
will deny the user the right to make backup copies, modify
or resell the software to anyone. A typical shrink-wrap agreement
will state that:
"By opening this parcel or envelope,
you are bound by the terms and conditions of the licence"
Legalities.
The shrink-wrap agreement raises two main
legal issues in relation to contract law:
Formation of contract
Assent of parties to contract terms
A contract is normally formed between
two parties after the terms have been negotiated and there
is a clear understanding between the parties as to the issues
involved. The goods are only transferred from the seller to
the buyer after such mutual negotiation and understanding.
In a shrink-wrap agreement the question is when is the contract
formed? Is it at the time of purchase or later at home when
the buyer reads the terms of the contract and proceeds to
use the product. The enforceability of such a contract may
be questionable as the buyer has not given his assent to the
stipulated terms.
Initially the courts were sceptical whether
such contracts were legally binding and enforceable. The main
reason for this was the belief that a contract may not be
imposed on a party as this was upheld as a well-established
principle of the law of contract universally. The courts,
therefore, objected to the idea of first paying out money
and then later finding out what the arrangement or agreement
was.
In the American case of Step-Saver data
Systems, Inc. v.Wyse Tech., 939 F2d 91 (3d Cir. 1991), Step-Saver,
the appellant, was a reseller of software for physicians and
lawyers. Step-Saver selected an operating system from software
producer The Software Link, Inc (TSL). According to Step-Saver,
TSL salesmen made certain verbal representations regarding
the capabilities of the licensed program. Based in part on
these representations, Step-Saver submitted purchase orders
for the licensed program. When the actual licensed programs
arrived, the packaging contained some terms in an envelope
which, among other things, disclaimed all express and implied
warranties (with the exception of a warranty that the disks
would be defect-free) and limited TSL's liability to replacing
a defective disk.
Step-Saver resold the licensed program
to more than one hundred of its own customers before terminating
sales because of the numerous customer complaints regarding
the capabilities of the licensed program. The customer complaints
eventually developed into law suits against Step-Saver. Step-Saver,
in turn, sought indemnification from TSL for its costs in
defending and resolving such suits. In defence, TSL pointed
to the warranty disclaimer and limitation of liability contained
in the license. The court, however, held that a contract had
been formed when Step-Saver submitted a purchase order and
TSL shipped the licensed program to Step-Saver, not as TSL
argued, when Step-Saver read the license and effectively consented
to it by not returning the licensed programs. The court concluded
that the terms in the envelope amounted to additional terms
that were not incorporated into the contract.
In more recent times the courts have taken
a different stand where shrink-wrap agreements are concerned.
In ProCD Inc. v Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996),
ProCD compiled information from 3,000 telephone directories
into a computer database program called SelectPhone. The program
enabled the users to search various telephone and address
listings and to incorporate their search results into documents.
ProCD offered the database for sale to both consumers and
commercial users but consumers paid less for the program than
commercial users. To justify the lower price, ProCD packaged
the retail software with a licence which limited it to non-commercial
purposes.
The defendant bought a retail copy of
SelectPhone, and his company proceeded to resell the SelectPhone
information over the Internet, in violation of the shrink-wrap
agreement and was sued by ProCD. Zeidenberg argued that he
was not bound by a contract whose terms he could not examine
until after purchase since the license was inside the box.
The court held that ProCD had made an
offer to license its product and by using the program, Zeidenberg
accepted the offer and bound himself to the terms of the license
accompanying the program. The court insisted that unless the
terms of the license accompanying the software are objectionable
on grounds applicable to contracts in general such shrink-wrap
agreements are enforceable.
Click-wrap agreements.
It is now common for companies to sell
products and services directly to the public over the Internet.
Most software companies now offer their products online to
those who electronically agree to their online license terms
in the form of click-wrap agreements. A click-wrap agreement
is a contract for the purchase or sale of products or services
offered through an online seller. The online purchaser is
expected to agree to the terms of the contract by clicking
the "I ACCEPT" icon.
Click-wrap agreements are an improvement
on the shrink-wrap as the user is normally required to view
the terms and conditions of the contract before affirmatively
assenting to the terms of the software to be downloaded. They
can be described as a standard-form agreement which is available
to the end-user in an online environment.
Typically, a click-wrap agreement appears
as a pop-up window from the original page viewed by the user.
Alternatively, it will pop-up when a user attempts to download
software or order goods and services online. The pop-up window
normally contains the terms and conditions of the contract
governing the sale or license of the goods or services and
the user is instructed, in plain language, to review the contract's
terms before assenting to them by clicking a button at the
bottom of the agreement.
The main difference between the online
click-wrap and the offline shrink-wrap type is that the vendor
is assured that the user's assent is obtained prior to the
formation of the contract. By reviewing and accepting the
license agreement the user will subsequently be bound by the
contract. This will make the terms of the agreement an integral
part of the transaction which work to incorporate those terms
into the contract.
An online order system should contain
the following to make any click-wrap agreement between the
parties legally binding.
The purchase price of the product A clear
indication that no contract will be entered into unless the
purchaser agrees to the terms. Facility for the purchaser
to reject the terms and, therefore, not be bound by them.
The main question with these type of agreements
is whether the click on the relevant button satisfies the
requirement of acceptance thus creating an enforceable contract
between the parties.
In Steven J. Caspi, et al v. The Microsoft
Network, L. L. C., et al, 1999 WL 462175, 323 N.J. Super.
118 (N. J. App. Div., July 2, 1999), the plaintiff had entered
into a binding contract by agreeing online via the click of
a mouse to be bound by the terms of the Microsoft Network's
subscriber agreement. The terms of this agreement appeared
in a scrollable window next to blocks containing the words
"I agree" or "I disagree". The user could
not commence use of the Microsoft Network unless she clicks
the "I agree" button. Each of the plaintiffs clicked
the "I agree" button, thereby indicating their assent
to be bound by the terms of the subscriber agreement. Both
the trial and appellate courts held that this created an enforceable
contract between the defendant and their subscribers.
In Groff v. America Online, Inc. ( File
No. C.A. No. PC 97- 0331, 1998 W L 307001 ( R.I. Superior
Ct., May 27, 1998 ), the plaintiff entered into a click-wrap
agreement with America Online Inc. (AOL) which contained a
jurisdiction clause. That clause stated that legal actions
were to be taken to appropriate courts in Virginia, where
the defendant's base of operation was located.
The court dismissed the plaintiff's action
for improper venue, holding that the parties' contract entered
into online by the click of "I agree" button was
enforceable. The court insisted that a party who signs an
instrument manifests his assent to it and cannot later complain
that he had not read the instrument or that he did not understand
its contents.
Key Recommendations.
Online terms and conditions of contract
should be displayed in full and positioned in a way that the
makes them clearly visible and unmistakable.
There should be a clear statement to the
effect that the terms and conditions are an integral part
of the contract.
Wherever there is reference to the terms
and conditions of contract there should be a direct link to
the page where they can be retrieved electronically.
The terms and conditions of contract should
be presented in a way that customers can easily print out
or download.
I'll be back next issue with more: Marketing
meets the law. Until then, take care of yourself.
RITA ESEN
Meet Richard.
In the early days of marketing, when it
was really beginning to be taken seriously as an essential,
integrated business function and not just ad-hoc or novelty
factor, the great debate began: is it an art or a science?
And just as the debate was starting to "simmer in the
background" for a while, along came the web to fire the
whole thing back up again.
Getting the balance right between applied
Internet science/technology and the required 'creative juice'
can be the deciding factor over whether your online campaigns
work or fail. But this is not a new scenario, similar challenges
have always been faced by marketers using what we now refer
to as "conventional marketing". Whether it's telemarketing,
direct mail or above the line TV, radio and press, the combination
of science/technology and creativity in the techniques we
use to deliver our marketing messages is vitally important.
Many techniques/methods used in conventional marketing easily
adapt to online marketing: some though, you couldn't squeeze
in with a shoehorn.
Richard Gay is senior lecturer in marketing
at Northumbria University in the UK. He holds so many qualifications,
there isn't enough room in this short intro to list them all.
He also holds a golf club very well.
In a reflective series of articles called
"A round with Richard Gay", he looks at online marketing
strategies and tactics (as both marketer and consumer) which
can easily be tracked back to conventional marketing methods
and how some become even more dynamic because of the medium
and some can fail miserably. As passionate as he is about
marketing: he is about golf also. So I'm delighted we've been
able to drag him off the golf course to pen this article,
before he and the family say "au revoir" and head
off on holiday to France (booked online, of course!).
*A ROUND WITH RICHARD GAY.*
- Looking for customer satisfaction online.
-
It's holiday time, but like football,
the academic close season is getting shorter and shorter (honest!)
and my thoughts are turning to revamping, tweaking and tuning
various electronic and direct marketing programmes for the
coming year. What, I wonder, is the next flavour of the month?
And will we always fall back on our old, tried and tested
models such as the Four P's, Ansoff's Matrix and SERVQUAL
etc., in the rapidly evolving e-marketing landscape?
Who is making the Web connection?
I'll come back to the issues above later,
but I think any business needs to consider how 'connected'
its customers are, and are likely to be, and to what extent
they utilise other channels as well as the Web. A recent Oftel
report indicated that 11 million UK homes are now connected
to the Internet. Connected is one thing, purchasing is another
as cash flow and profitability provide the key measures for
any business.
Let me be a little self-indulgent and provide some observations
from my own family regarding web usage (not that we're either
typical or average!) but it may generate some thoughts for
online marketers to wrestle with.
I mentioned it's holiday time, which got
me thinking back to last year's family jaunt to Spain, booked
via the Web. Everything from flights, accommodation, travel
insurance and car hire was done via the Web, saving approximately
GBP 420 (USD 659)compared to off-line prices. It was a challenge,
it was exciting and it meant that I could bring more Spanish
wine back - but it's a good job that I didn't cost out my
actual "search time". Individual websites, and those
of various Spanish Tourist Boards provided great information,
not to mention Web cams to whet your appetite further. I even
booked my tee times on various golf courses by e-mail, which
can be less stressful than dealing directly with some clubs'
secretaries! Everything went well, it was an achievement,
and we were independent Web travellers. Goodbye high street
travel agent!
A year on, my web purchases have included
a dishwasher (saving GBP 95/USD 145 compared to the sale price
of a leading department store), garden plants (the quality
did not match the online description), yet another Epson Printer
and numerous compatible cartridges to go with it, not to mention
various CDs from those good people at Amazon whose catalogue
expands to satisfy my thirst for nostalgia.
Generally, my Web experiences have been
interesting, often saving me money, sometimes causing mutterings
under the breath at badly designed sites as I give up yet
again before completing a transaction. Despite that, one pleasant
aspect has been the fast and reliable delivery provided by
online services. Don't get me wrong, there is a lot of good
practice out on the web, but still many online operations
don't get the customer "experience" quite right.
Let me just give you a couple more examples
which may help you to think a little more about buyer behaviour
influences and the need for integrating other channels and
services.
It's old hat now!
The holiday this year is a compromise
(I'm the only male in the household!), so France here we come.
Google did the business with relevant results following our
search and one travel company was selected for its overall
package. But far from getting excited about Internet bookings,
I found it quite a toil this year. Where had last year's fun
and excitement gone? Yes it was a decent website with standard
information, a couple of nice features and links but I wanted
specific information relevant to me which the FAQ's couldn't
answer. Sadly, the only way to source it was through a premium
rate help line, which takes an eternity to get through and
then "stings" you for 60p (98c) per minute technology
and customer satisfaction in action really?
My second example highlights another web-phobia
over making major purchases. I was looking for a good deal
on a new car. I scoured many online car dealers and got some
decent quotes - if I was willing to wait for three to six
months. I'm ready to purchase - so when do I want it? I want
it NOW! Offline prices for the car I drive have come down
and the local dealer was within GBP 800 (USD 1,250) of the
online traders. Consequently, my key criteria of personal
service, easy test drive arrangements, local back-up and warranty
won the day. I know online car traders are improving their
operations by the day, but I was still slightly cautious,
and the traditional buying model still seemed to be a safer
and more personalised way to make a major purchase.
Are multi-channels the answer?
A number of recent marketing texts have
referred to the idea of "convergence marketing"
where consumers may vary the channels that they use depending
upon the product or service being purchased. For example,
in financial services they may be happy to use the web for
current account transactions, but will still seek personal
advice when making savings and investment decisions. Think
about it: do your customers still prefer the security of knowing
there is some form of real personal service behind your web
pages? And how do you reassure them about it?
So, how receptive are other members of
my family to the web? My wife is a hard working nurse. In
her words she "hates shopping" and is "time
starved". Tesco, Asda, Next online [UK based retailers]
really were made for her. Unfortunately, I'm married to a
techno-laggard who will simply not entertain the benefits
of the web. My seven-year-old daughter is being brought up
with the technology, as she's completed two school projects
using the web and researched information on a regional attraction
for her school trip. It's not hard to tell that the web is
going to be second nature to her by the time she has her first
credit card!
So does this mean the new "web savvy"
generation are the high volume, regular web users to start
chasing? Not in my recent experience. Having surveyed 72 final
year marketing students, only seven claimed to be regular
(once per week) web purchasers and these tended to be low
value items (e.g. CDs). Eleven had never purchased anything
on the web. The remainder had mostly purchased only travel
tickets online. Compare this with 100 percent adoption of
mobile phones! Perhaps their first career steps may change
this - or marriage and a few children! Joking apart, it is
clear that not all consumers are using the "new medium"
to purchase products, but the adoption trend is certainly
upwards.
Something old, something new
Teaching direct-marketing in the mid-nineties,
we talked about the failure of mass advertising, better targeting
and use of databases, greater measurability and accountability,
the ability to test, less wastage and wider geographic coverage
etc. It seems to me that we are simply saying similar things
about the web and digital marketing now.
If you consider a lot of the promotional
activities employed on the web, many are merely old, tried
and trusted techniques applied to the medium. Obviously the
technology means that we can do it better and faster. Online
redeemable coupons, e-mail newsletters, access to special
incentives, events or discounts for instance, all have their
origins in sales promotion or direct, but it's just quicker
and more economical for the sponsor. However, reducing costs
has led many to go for quantity not quality and spamming simply
damages the brand. By driving "profiled" traffic
to our web sites we're in an excellent position for true,
precision target marketing.
Similarly, the traditional skills of campaign
planners, headline and copywriters are needed more than ever
on the web to grab the attention of the passing, potential
customer. Think of how many e-mail newsletters you receive
yourself each week - which ones stand out and which ones have
you clicking delete? Being more succinct than ever to encapsulate
the product and its key benefits to the customer, in a few
words is critical. As someone famous once said: "you
never get a second chance to make a first impression"
and the Web is no different. Site usability studies are essential
also. Get some mystery shoppers to visit your web site and
you may have to "brace yourself" for their comments.
As marketers, we endure accountants questioning
and measuring activities, but direct marketing with its ability
to measure every campaign element has helped answer the critics.
And the web has a hatful of measurement metrics to provide
us with key performance indicators regarding online operations.
By the time the next issue comes around I'll have had a chance
to read the new Web Metrics text from leading US online marketer
Jim Sterne, and give an overview of his own research into
the subject. In the meantime, don't throw the old marketing
tools out of the window just yet, the bulk of conventional
marketing principles still apply: don't forget the customer,
they're individuals and they're still King!
Well, that's it for my part in this issue,
I have to get the bags packed for France, with the latest
Pete McCarthy book as my essential companion this time, as
well as the odd bottle of Muscadet and not forgetting my wife
and daughter, of course.
Editor: Mike Grehan. Search
engine marketing consultant, speaker and author.
http://www.search-engine-book.co.uk
Associate Editor: Christine
Churchill. KeyRelevance.com
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