The legal side of affiliate management isn’t fun, but it’s a necessary evil when working in direct response.

 

Understanding the basic legal requirements for promoting offers in other countries, CAN-SPAM compliance, SMS laws, etc., is a must-have skill set.

 

You think having Terms and Conditions signed by all your affiliate partners will protect you from potential lawsuits....but it will also help you weed out unqualified traffic.

 

Your Terms and Conditions are nothing other than a legally binding contract in which you clarify the conditions of promoting your service (AKA your offer(s)).

 

It helps in dealing with problems and even preventing them in the first place. It also protects you from potential liabilities and is fundamental in order to mount adequate and proper defense.

 

This is by no means a comprehensive list of what you should include in your T&C’s, but I wanted to touch on some of the most important:

 

You should specify here where your promotions can be advertised (or where they can’t be).

 

For example, we only allow our affiliates to promote via email. We don’t allow SMS marketing. If they’d like to advertise on display/native networks they need specific written permission from us.

 

This is good time to note geographic restrictions. We only allow affiliates to promote to people located in the U.S. and Canada.

 

Additionally, affiliates can only use creatives and copy located in the affiliate portal. If they create their own copy it must be approved by us before sending.

Here you outline the terms of the agreement. 

 

This is aggressive, but we say we can terminate the agreement with the affiliate at any time and for any reason, with or without notice. 

 

Of course, I know this business is all about relationships, so I would never shut down an affiliate without talking to them first.

 

In reality, shutdowns usually occur if an affiliate is sending unapproved copy or promoting in prohibited channels.

 

We also state here that we have the authority to withhold commissions if the affiliate breaches the agreement or engages in fraud.

 

I rarely flex this muscle but it’s nice to have, if needed.

 

We only work with partners who prominently display a privacy policy to their end users. It needs to clearly, conspicuously, and accurately disclose all information collection, use, and sharing practices.

If you have a specific email format you want your affiliates to follow, it needs to be outlined for them here (and over the phone and via email).

 

For us, all third party emails should include a clear and conspicuous identification that the message is an advertisement.

 

We also make affiliates include an opt-out message and link for subscribers to opt-out of our advertising.

 

Affiliates are then required to download our suppression file before mailing. This is to ensure they're not mailing to people who have opt-ed out of our advertising.

 

A lot of folks in our industry work with affiliate networks. Here you should summarize any rules for working with networks.

 

We currently do not work with any networks. So in this section we state that affiliates may not use sub-affiliates (AKA "broker" our offer) without our direct written consent.

 

This is where you state that all affiliates will follow the federal CAN-SPAM Act, all state laws (think California), and regulations concerning email marketing.

 

You’ll also want to outline that the affiliate represents and warrants that the recipients of all emails have been legally obtained and consented to receive commercial emails.

 

What do you consider to be a “qualified action” or “sale?” How often do you pay your affiliates? Do you pay them on refunds and chargebacks? What if the sale was generated by fraud?

 

These are all things to consider when laying out your payment terms to affiliates.

 

We’re all guilty of signing agreements without reading them. And affiliate T&Cs are no different.

 

To help enforce them, I always outline the most important points over the phone and via email (always get everything in writing!). This is to ensure the affiliate fully comprehends our guidelines.

 

If an affiliate breaches the agreement, I outline the grievance in an email and over the phone. Depending on severity, I’ll shut down the affiliate or give them an official warning.

 

If they break the agreement again they get shut down. No amount of traffic is worth the headache of a potential lawsuit!

 

I also use third party tools such as Lashback to ensure all copy is legally approved and our offer isn’t being brokered out.

 

Optizmo is a helpful tool as well. Every morning it sends me an email of affiliates who haven’t downloaded our suppression file within the last 10 days.

 

And finally, most if not all major affiliate platforms allow you to upload your T&Cs. So when an affiliate goes to either create an account or log in for the first time it will prompt them to review and sign it. That digital signature is then housed in the affiliate platform if you ever were to need it!