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Affiliate Agreement

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As a small business owner, you may be wondering if an affiliate agreement is right for your business. Affiliate agreements are a great way for businesses to increase sales and exposure. However, there are some important things that you need to know before entering into an affiliate agreement with another company or individual.

What is an Affiliate Agreement?

An affiliate agreement is a contract between two parties who will work together to generate sales or other transactions. The two parties are referred to as the "affiliate" and the "affiliate network." The affiliate network provides access to its customer base, while the affiliate provides traffic and/or sales leads.

Most affiliate agreements, but not all, are between two parties who are unrelated and have no direct control over each other's business practices. For example, if I sell clothing online using Shopify's software platform and one of my customers wants to refer his friends to my store via social media, he would not be considered an affiliate under this definition. This is because he does not receive compensation from me for any referrals he makes; therefore, we would not have an affiliate agreement between us.

What is the Affiliate Payment Structure?

There are four main payment structures in an affiliate program. These are as follows:

  • Pay-Per-Click

    This is a common type of affiliate payment structure and it's how many affiliates make their money. The advertiser pays the affiliate network when someone clicks on an ad. The amount paid depends on the type of advertising campaign, but typically ranges between $0.50-$2 per click. Most PPC campaigns are based on CPC (cost per click) or CPA (cost per acquisition).

  • Pay-Per-Action

    Pay-Per-Action (PPA) is a payment structure that was originally used by affiliate networks and later adopted by advertisers. PPA means that you only pay your affiliate when they generate revenue for you. You don't have to worry about paying someone just because they send visitors to your site — they are only paid when they generate sales or leads.

  • Pay-Per-Impression

    This is a popular method of payment for affiliates. With this method, you get paid every time your ad is displayed on a website. The amount you get paid per impression depends on how much traffic your site receives and what your website is worth in terms of advertising space.

  • Two-Tier Affiliate

    A two-tiered affiliate program consists of two separate tiers: a first-level tier and a second-level tier. First-level affiliates are rewarded when they refer new customers to a merchant site. Second-level affiliates are rewarded when they refer new customers and those customers make a purchase, either immediately or after the creation of an account on the merchant site.

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Role of a Lawyer in Affiliate Agreement

A lawyer can help you understand the terms of the agreement and ensure that it is fair to you and your business. They can also help you decide whether or not a contract is necessary and what type of contract would be best for your business.

The role of a lawyer in affiliate marketing agreements depends on what kind of agreement you want to draft. For example, some of the things that a lawyer can help with include:

  • Drafting an agreement based on your needs and goals.
  • Helping you understand the law, including any state or federal laws that might apply to your business.
  • Discussing options with you so that you can make informed decisions about what’s best for your business.

One of the most important tasks for a lawyer is to ensure that you have an affiliate agreement in place. It makes sense, because if you don't have one, then it's possible that your affiliate can just walk away with all the money they've earned. A well-written affiliate agreement will prevent that, while also setting out clear expectations and responsibilities.

An affiliate agreement should be designed to protect both parties, which can be achieved by clearly laying out the responsibilities of both parties, including how much commission each party will receive from sales and how long those commissions will last.

The agreement should also include terms and conditions for both parties such as:

  • Termination clause: This clause should include what happens if either party wants to terminate the agreement. Does one party have to give notice or does it automatically terminate after a certain amount of time?
  • Taxes: It's also important to know how taxes will be paid between both parties. Do you pay taxes on your commissions? Do affiliates pay taxes on their commissions? Or do both parties share responsibility for paying taxes?
  • Payment terms: Although you may already have payment terms set up with your merchant processor, it's important to include these terms in your affiliate agreement so there are no misunderstandings later on when it comes time to pay out commissions.

Points to Keep in Mind During the Negotiation of an Affiliate Agreement

Negotiating an affiliate agreement can be a long, tedious process. There are many factors to consider before signing on the dotted line, and you need to be sure that your agreement meets your needs as well as those of your affiliates.

When negotiating an affiliate agreement, there are a few key points to keep in mind. Some may seem obvious, but they're important to address nonetheless:

  • Remuneration Clause

    This clause will state how much will be paid to the affiliate for each sale he/she makes. The payment should be commensurate with the efforts put in by both parties. For example, suppose you have created high-quality content and promoted it extensively using social media channels. In that case, you deserve more commission than someone who simply signed up as an affiliate without making any effort at all.

  • Dispute Resolution

    Dispute resolution is very important because you want to make sure that there are clear rules on how disputes will be resolved. If there is no dispute resolution clause, then the courts will decide which party has the right to enforce the terms of the contract depending on applicable laws and the circumstances of the case.

    If you do not want to take your dispute to court, then you should negotiate for a clause that allows for mediation or arbitration then it may be best for you not to enter into an affiliate agreement at all.

  • Non-Disclosure and Confidentiality Closure

    A confidentiality clause should be included in every affiliate agreement so that both parties agree not to share any information about each other without permission from the other party or unless such disclosure is required by law or by any different legal process (i.e., a subpoena). This will prevent one party from using confidential information against the other party if they break their promise not to disclose information without permission from the other party.

  • Indemnification

    Affiliates should provide you with indemnification if they promote your product and a customer claims that they suffered harm because of the product. Indemnification means that the affiliate will cover all costs associated with any litigation or settlement, including attorney's fees.

    This provision is particularly important if an affiliate promotes your products in their email marketing campaigns. It's not uncommon for customers to send out mass emails advertising products and services, even though they don't have written permission from those companies. If a customer sues you as a result of receiving one of these emails, it can be very expensive for you to defend yourself against allegations of negligence or fraud.

Conclusion

If you are starting your own business, you will need to sign an affiliate agreement. This is a legal document that explains the terms and conditions of your business relationship with another company. It's important to have a lawyer review your affiliate agreement before signing it so that you don't get in trouble down the road.

Our lawyers at ContractsCounsel help you create an affiliate agreement that will protect your interests while encouraging others to promote your product or service.

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