Affiliate marketing networks (as well as internal affiliate marketing programs) present businesses with an effective means of leveraging a large pool of independent marketers (“publishers” or “affiliates”), without the need to expend resources locating and negotiating separate contractual arrangements with each of those publishers. By nature, affiliate marketing involves working with a large volume of publishers. As such, it is essential that businesses advertising through use of affiliate programs (or “advertisers”) ensure that the contractual provisions applicable to participating publishers provide ample legal protections and limitations of liability. Experienced affiliate marketing attorneys can help advertisers ensure that they secure key contractual terms in their agreements with third-party affiliates.
Can an Affiliate Network Contract Protect My Business?
Affiliate Marketing Contracts
Where a prospective advertiser engages with an existing affiliate marketing network, in almost all circumstances, that affiliate network already has a standard contract that publishers are asked to execute. Advertisers should ensure that such publisher agreements adequately protect them and, where necessary, negotiate additional terms via an addendum or a separate and binding campaign terms document. In addition, where a business wants to establish its own affiliate program, a comprehensive publisher agreement will need to be created from scratch.
Below are some of the key provisions that advertisers must ensure are contained in their affiliate marketing agreements with prospective publishers:
- The affiliate marketing agreement should establish, in advance, which marketing methods publishers may employ when promoting advertiser’s products, such as traditional telemarketing, email marketing, social media marketing and SMS text message marketing.
- The affiliate marketing agreement should require publishers to represent that their respective marketing activities comply with applicable laws, rules and regulations including, without limitation, the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”) and the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”).
- The affiliate marketing agreement should require that publishers exclusively use creative material that is either provided or pre-approved by the advertiser.
- The affiliate marketing agreement should require that publishers remain solely responsible for all marketing activities engaged in on the advertiser’s behalf.
Avoiding Affiliate Marketing Risks, Hire an Affiliate Marketing Attorney
Without implementing strict contractual obligations that require publishers to act responsibly, both in accordance with the campaign parameters established by the advertiser and in compliance with all applicable marketing laws, there is an increased likelihood that the advertiser may suffer significant legal liability and/or reputational harm. Given the stakes involved, it is recommended that businesses retain qualified affiliate marketing attorneys to ensure that any contract is drafted, amended and/or revised, as necessary, in order to ensure proper regulatory and legal protection.
Please note that this is only a brief overview of some of the legal issues surrounding publisher-related affiliate marketing contracts.
If you are interested in learning more about this topic or require assistance in connection with preparing an affiliate marketing agreement, please e-mail us at: info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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