Affiliate Program Terms

Affiliate Program Terms

Draft the terms and conditions an affiliate accepts when joining a commission-based program. No single canonical "how to draft affiliate terms" framework exists - the Performance Marketing Association's Retailer Affiliate Agreements Guide is the closest thing to an industry checklist, and the clause set itself is highly standardized across real published agreements. The governing drafting principle is Geno Prussakov's: "any practices that you do not explicitly prohibit are, implicitly, permitted" - this document earns its keep by enumerating, never by catch-alls.

These agreements are near-universally non-negotiated clickwrap contracts of adhesion, accepted by conduct and amended under "continued participation equals acceptance". They bind real people from the moment of signup, which is why legal review below is a workflow step, not a footnote.

Legal Review Is a Step, Not a Footnote

The produced document is a draft for legal review - never legal advice, never a finished contract.

1. State before drafting anything: "This will be a draft for review by qualified counsel, not legal advice. Program terms are legally binding."
2. Mark each clause needing specific counsel attention inline with [LEGAL REVIEW: <reason>], placed next to the clause - never pooled in a footer.
3. Always mark these clauses:

• Governing law/arbitration.
• Forfeiture of earned commissions.
• GDPR role allocation.
• Trademark-bidding ban.
• Unilateral amendment.
• Indemnity and liability caps.
• Tax/contractor status.

1. Repeat the disclaimer with the delivered artifact, plus an instruction to keep every inline marker until counsel clears it.

Counsel sign-off, the canonical clause skeleton, and every jurisdiction obligation the interview surfaces - FTC disclosure, P2B notice and statement of reasons, ASA labeling - are gates, not menu items. They are drafted or the document is not deliverable, so they never enter an efficiency ordering and are never traded against effort. Only the genuinely optional policy positions get ranked, and each ranking sits at the point where that position is chosen.

Interview

Ask before drafting, following these rules:

• One question per message.
• Offer multiple-choice answers.
• Skip anything the user already answered.

Ask the first three before anything else - they re-rank every policy position below, and asking them after the user has picked one is too late.

• By what date must the terms be live: a signup page opening on a fixed near date, or a program still being designed? A fixed near date deletes the keyword-whitelist and per-partner-tier brand-bidding positions outright - neither can be adjudicated partner by partner before launch.
• A one-off document, or a maintained one with dated versions and a change record? One-off promotes the strict positions that need no ongoing adjudication; maintained is what makes a whitelist or a chargeback reserve affordable at all.
• Effort ceiling: who drafts and who reviews - in-house counsel, outside counsel, or the program manager alone - and are there already-published terms with live affiliates on them? Published terms only tighten through the amendment cycle (15 days' notice for EU/UK business users, each with a right to leave rather than accept), so every tightening is a negotiation with the affiliates you already have, and reversibility, not hours, is the binding constraint.
• B2B SaaS, B2C ecommerce, or both?
• In-house/SaaS-hosted program, or network-hosted? Network-hosted means the network's master terms are the baseline and this document is only the program-specific layer on top.
• Where are the affiliates, and where are the customers?
• EU/UK business users may trigger P2B procedural rules - whether an in-house program is in scope is a counsel question, so ask and flag it rather than assume either way.
• US triggers FTC disclosure.
• UK adds ASA/CAP and CMA exposure.
• Which commission mechanics are already decided elsewhere - rate, recurring vs one-time, validation window, payout threshold? This document references them; it never designs them.
• Any known abuse concerns?
• Which brand-keyword-bidding position? Offer the four standard ones in this order, ranked by what each buys per unit of drafting, adjudication, and renegotiation:

• efficiency: strict prohibition > trademark-only ban with a modifier allowance > per-partner tiering > keyword whitelist
• effort: keyword whitelist (a standing job - per-keyword requests, adjudication, an audit of live ads) > per-partner tiering (a week to define the tiers, then a negotiation with every partner promoted or refused) > trademark-only ban with a modifier allowance (an hour more than the strict ban, since the permitted modifiers have to be enumerated too) > strict prohibition (near-zero - one enumerated clause plus the brand as a negative keyword)
• value: keyword whitelist == per-partner tiering (both keep the converting trademark-plus traffic of trusted partners while excluding everyone else, by different routes to the same short list) > trademark-only ban with a modifier allowance > strict prohibition (brand-term margin recovered, at the cost of the partners who only convert there)
• compliance cost: per-partner tiering > keyword whitelist > trademark-only ban with a modifier allowance == strict prohibition (tied: each is one uniform rule cleared by counsel once, whatever its width). The first two apply different rules to different affiliates - the shape P2B asks you to state grounds for, and the one inconsistent enforcement destroys - so both need counsel on the discrimination question, and neither loosens or tightens again without an amendment cycle.

Lead with strict prohibition because it wins the ratio; that it is also the least work is unusual here, not the reason. The whitelist is what this order starves - top of the value axis, bottom of the ratio, beaten every round.

Promote it when a named partner already drives brand-term volume you would otherwise cede to unaffiliated arbitrage, and someone owns the adjudication as a standing job. Delete the whitelist and the tiering when nobody owns that job: a position no one enforces is indistinguishable from permission.

• Are coupon/deal sites permitted, restricted, or banned?

• efficiency: restrict > ban == permit fully

• Restricting (only issued codes, no expired or unissued codes, no trademark-plus-coupon terms) costs a week of definition and policing, but it keeps the discovery traffic while removing the code-scraping arbitrage.
• Banning is near-zero to write and keeps the margin, at the cost of the orders.
• Permitting fully is equally near-zero to write and keeps the orders, funding the arbitrage in exchange.

Drafting detail in references/prohibited-tactics.md.

• Are browser extensions permitted or banned? efficiency: ban outright > permit with a stand-down obligation. The ban is one clause; permitting is a standing job, because a stand-down rule is only worth its ink if you can obtain clickstream evidence, and every permitted extension has to keep meeting disclosure and genuine-user-benefit tests you now warrant against. Promote permission when extension partners already drive a material share of tracked revenue and that evidence is available; see the same reference for the wording.
• Approval mode: manual review or auto-approval? Not ranked here - this document writes the eligibility clause, while the trade-off between the two belongs to the sibling fraud-detection skill, which ranks it against program size. Take the answer as given and draft to it.
• Revising existing terms, or starting from a blank page? If revising, request the current document.