Which Affiliate Agreement?

Affiliate marketing is a very popular way of promoting websites and internet-based businesses. An affiliate agreement is a kind of referral agreement, under which the affiliate receives payments from the company running the affiliate scheme if web users visit a website, register with a website, make a purchase on a website or take some other action.

Our standard affiliate agreement is a simplied version of our premium affiliate agreement. The key additions in the premium template are as follows: (i) the premium template includes provision for multi-level affiliate schemes (sub-affiliates); (ii) the premium template includes an optional right for the merchant to request alterations to affiliate sites on the grounds that an affiliate site may compromise the branding of the merchant; (iii) the premium template includes various optional obligations on the affiliate to ensure that the quality of the affiliate site does not deteriorate during the term of the agreement; and (iv) the premium template includes an alternative "self-billing" based payments clause.

Generally, the templates have been drafted to favour the interests of the person operating the affiliate programme.

Affiliate Agreements: Key Provisions

The affiliate agreement templates must be agreed by both parties if they are to form part of the contract between the parties. The typical affiliate programme includes an online sign-up procedure, and one common way to get the affiliate's consent to the agreement is to include a check box for indicating consent as part of that sign-up procedure.

Each of the agreements includes provisions designed to help compliance with the online contracting requirements of the The Electronic Commerce (EC Directive) Regulations 2002 These regulations require that businesses contracting online disclose certain information to contractual counter-parties. They also require that certain procedures be followed when contracting online.

Affiliate Programme

In this section of the affiliate agreement, the merchant can specify whether affiliates will have an obligation to maintain affiliate links on the affiliate's website.

The merchant may also want to reserve the right to request changes to the affiliate links (and indeed the website content related to the affiliate links), for example to ensure consistency and quality in the use of the merchant's branding.

The affiliate on the other hand may want a contractual right to access the affiliate control panel. Typically, a control panel will allow the affiliate to keep the affiliate's account details up to date, monitor the performance of the affiliate links, check on the commission due, and get HTML code for links.

Affiliate obligations

Under the premium affiliate T&Cs, the affiliate may be obliged under this section of the agreement to keep the relevant affiliate website up to date and in good working order, to ensure that the website design, content and functionality remain of an acceptable standard, and ensure that the marketing of the affiliate website is in accordance with applicable law, any applicable codes of practice, and good industry practice generally.

This section also include a number of prohibitions relating to the behaviour of the affiliate. The suggested prohibitions include the following:

• the affiliate must not include any illegal or unlawful or otherwise prohibited content on the affiliate website;
• the affiliate must not market the website using spam or unsolicited emails or other unsolicited communications;
• the affiliate must not market the website using any form of spyware, parasiteware, adware or similar software, or using any other antisocial or deceptive methods;
• the affiliate must not increase or seek to increase the number of payment trigger events using any fraudulent or deceptive method.