Affiliate and referral program agreement

curl -X POST https://dealroom.todo.law/api/v1/agent/contracts \
  -H "Authorization: Bearer drk_YOUR_KEY" \
  -H "Content-Type: application/json" \
  -H "Idempotency-Key: $(uuidgen)" \
  -d '{
    "contractType": "AFFILIATE_PROGRAM",
    "governingLaw": "ENGLAND_WALES",
    "language": "en",
    "party": {
      "legalName": "Your company"
    },
    "counterparty": {
      "legalName": "The other company"
    },
    "terms": {
      "program-name": "<program-name>",
      "base-commission": "10"
    },
    "inline": "md"
  }'

What it is and when it is used

An affiliate or referral program agreement is used when a merchant pays third parties (bloggers, publishers, comparison sites, partners) a commission for sales they refer through a tracking link. The template names the program, sets a base commission rate and the cookie window, and adds standard terms on enrolment, affiliate representations (authentic channels, truthful content, no click fraud or cookie stuffing), merchant obligations, confidentiality, mutual indemnities, a cap on the Merchant's liability equal to the commissions paid in the twelve months before a claim, and the affiliate's status as an independent contractor. The merchant may update the program schedule on thirty days' notice.

Who signs it and in which role

The Merchant (the company running the program) and the Affiliate (an individual or entity that promotes it).

Key clauses

Commission and attribution

A flat commission rate, a tiered rate that rises with monthly volume, or a hybrid of base rate plus performance bonuses. Attribution by last click within the cookie window, or multi-touch attribution that splits commission among all contributing affiliates.

Payment and clawback

Net-30 monthly payment, or net-60 with a validation hold so the Merchant can check refunds and fraud. Both use a minimum payout threshold of USD 100 or its equivalent. Clawback can be full within 90 days or limited and prorated.

Marketing and brand

Content and organic methods only, or broad digital marketing excluding bids on the Merchant's brand keywords. Brand use under strict guidelines with pre-approval, or flexibly using an official brand kit.

Sub-affiliates and disclosure

No sub-affiliates, or sub-affiliates with the Merchant's approval (the Affiliate stays accountable). Standard regulatory disclosure, or enhanced disclosure using prescribed wording.

Term, reporting and exclusivity

Month-to-month with thirty days' notice, or a twelve-month term that renews automatically unless either party gives sixty days' notice, with six months of trailing commissions after it ends. Basic monthly reports or a real-time dashboard. Non-exclusive, or exclusive within a defined product category.

What the two sides usually negotiate

The Merchant prefers net-60 with a validation hold, full clawback, content-only marketing, strict brand approval, no sub-affiliates, month-to-month terms and category exclusivity. The Affiliate prefers tiered commissions, multi-touch attribution, limited clawback, a flexible brand kit, an annual term with trailing commissions, a real-time dashboard and non-exclusivity. The balanced positions are net-30 monthly payment, standard disclosure and broad digital marketing excluding brand search terms; on commission, the flat rate and the hybrid structure sit equally close to the middle. The other clauses have no fully neutral option; the positions nearest the middle are last-click attribution, limited clawback, the flexible brand kit, sub-affiliates with approval, the real-time dashboard and the month-to-month term, while the two exclusivity options are equally far apart. When the parties disagree, Dealroom proposes a compromise weighted by how firmly each side holds its position.

Jurisdictions and languages Dealroom supports for it

Dealroom drafts this agreement under the law of California, England and Wales or Spain, in English or Spanish. For California, the template refers to the FTC Endorsement Guides, the limits on non-competes under section 16600 (which affect exclusivity) and the CCPA and CPRA, with disputes in the courts of San Francisco County. For England and Wales, to the CAP Code, CMA guidance on endorsements, the Consumer Protection from Unfair Trading Regulations 2008, UK GDPR, PECR and the Unfair Contract Terms Act 1977. For Spain, to the LSSI-CE and the Ley General de Publicidad, the LOPDGDD and GDPR (cookie consent under article 22.2 of the LSSI-CE and AEPD guidance), and the possible application of the Commercial Code rules on commission agency if the Affiliate acts in the Merchant's name, with disputes in the courts of Madrid.

Common mistakes

• No disclosure rule. Failure to disclose exposes both parties to regulatory action.
• No restriction on brand keyword bidding. Affiliates bidding on the Merchant's brand terms create channel conflict.
• Ignoring trailing commissions. Post-termination commission is a critical point for affiliates.
• Over-broad exclusivity. It may be unenforceable, particularly in California.
• Flat rates for every case. Simple, but they may not reward growth.
• Unrestricted sub-affiliate networks. They add layers of accountability that must be managed.