Affiliate Agreement - Template, Sample Form to Complete Pro · US-law
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AFFILIATE AGREEMENT
Effective Date: ________
Primary Website: ________
THE AGREEMENT: This Affiliate Agreement (this “Agreement”) is entered into by and between the following organization, hereinafter referred to as the “Company”: ________, a ________ organized under the laws of the State of ________, with its principal place of business located at ________. The Company’s primary website is located at the address listed above. This Agreement is a legal contract between you (the “Affiliate”) and the Company that describes the affiliate relationship the Parties are entering into. This Agreement covers your responsibilities as an affiliate and the Company’s responsibilities to you. Please ensure that you read and understand the entirety of this document, and obtain the assistance of legal counsel if you so desire, because each of the terms of this Agreement is material to the relationship of the Parties.
1) DEFINITIONS
The parties referred to in this Agreement shall be defined as follows:
a) Company, Us, We: As described above, the Company. “Us,” “we,” “our,” “ours” and other first-person pronouns shall refer to the Company, as well as all employees, officers, directors, and legal agents of the Company.
b) You, the Affiliate: You shall be referred to as the “Affiliate.” You shall also be referred to throughout this Agreement with second-person pronouns such as “You,” “Your,” or “Yours.”
c) Parties: Collectively, the parties to this Agreement (the Company and You) shall be referred to as the “Parties” or individually as a “Party.”
d) Affiliate Program: The program established by the Company for its affiliates as described in this Agreement.
e) Affiliate Application: The fully completed form that must be provided to the Company for consideration of your inclusion in the Affiliate Program.
f) Website: The primary website noted above shall be referred to as the “Website.”
2) ASSENT & ACCEPTANCE
By submitting an application to the Affiliate Program, you warrant that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, please leave the Website immediately and do not submit an application to the Affiliate Program. This Agreement specifically incorporates by reference any Terms and Conditions, Privacy Policies, End-User License Agreements, or other legal documents that the Company may post on the Website.
3) AGE RESTRICTION
You must be at least eighteen (18) years of age to join the Affiliate Program or use this Website. By submitting an application to the Affiliate Program, you represent and warrant that you are at least eighteen (18) years of age and may legally enter into this Agreement. The Company assumes no responsibility or liability for any misrepresentation of your age.
4) PROGRAM SIGN-UP
In order to enroll in the Affiliate Program, you will first be asked to submit an Affiliate Application. The Affiliate Application may be found at the following website: ________.
Submitting an Affiliate Application does not guarantee inclusion in the Affiliate Program. The Company evaluates each application and is the sole and exclusive decision-maker regarding Affiliate acceptance. If the Company chooses not to allow your inclusion in the Affiliate Program, it will attempt to notify you in a reasonable manner. If you do not hear from the Company within a reasonable time frame, please consider your application rejected. The Company is not obligated to provide any explanation for a rejection, and may reject applicants for any reason or in any manner, including but not limited to a website or social media page that violates the Company’s Acceptable Use provisions.
If your Affiliate Application is rejected, you may not reapply. If your Affiliate Application is accepted, each of the terms and conditions in this Agreement applies to your participation. The Company may also request additional information to complete your Affiliate Application or require you to undertake additional steps to ensure eligibility in the Affiliate Program.
5) NON-EXCLUSIVITY
This Agreement does not create an exclusive relationship between you and the Company. You are free to work with similar affiliate program providers in any category. This Agreement imposes no restriction on the Company’s ability to work with any individual or company it may choose.
6) AFFILIATE PROGRAM
Following your acceptance into the Affiliate Program, you must ensure that your account is set up completely, including specific payout information and location (such as a bank or online account that the Company may use to post payment).
Please be advised that the following is a general description of the Affiliate Program. Everything contained in this subsection is subject to the specific terms and conditions throughout the remainder of this Agreement.
The Company will provide you with a specific link or links that correspond to certain products offered for sale (collectively, the “Link”). The Link will be keyed to your identity and will direct online users to the Company’s website or websites. You hereby agree to fully cooperate with the Company regarding the Link and to explicitly comply with all terms of this Agreement in connection with the promotion of the Link at all times. The Company may modify the Link and will notify you if it does so. You agree to use only links that are pre-approved by the Company and to display the Link prominently on your website or social media page, as described in your Affiliate Application (collectively, the “Affiliate Site”).
Each time a user clicks through the Link posted on the Affiliate Site and the Company determines it to be a Qualified Click, as described below, you will be eligible to receive the following amount: $________ (________).
7) SPECIFIC TERMS APPLICABLE
The Company will determine whether payout is permissible in its sole and exclusive discretion. The Company reserves the right to reject clicks and/or sales that do not comply with the terms of this Agreement.
Processing and fulfillment of orders shall be the Company’s responsibility. The Company will also provide data regarding your account through the portal on which you log into the Website.
As described above, in order to be eligible for payout, user clicks must be “Qualified Clicks.” Qualified Clicks:
a) Are clicks arriving at the Company’s website or websites through properly formatted links on the Affiliate Site;
b) Are clicks arriving at the Company’s website or websites through the Affiliate’s specifically approved sites only (no other websites or social media pages);
c) Are clicks arriving at the Company’s website that relate to one specific user; and
d) Are not clicks generated by a bot or other automated web program.
8) PAYOUT INFORMATION
Payouts will only be available when the Company has your current address information as well as accounting and tax documentation. You will be asked to submit an IRS Form W-8 or Form W-9, as applicable. You acknowledge that the Company may be required to report payments made to you to the Internal Revenue Service and, where the applicable threshold is met, to issue you an IRS Form 1099-NEC or other applicable information return. Accounting information may include the routing and account number of a bank where you wish to receive a direct deposit, or an email address for an online method of payment.
Currently, the Company employs the following methods of payout:
________
For any changes to your address or accounting information, you must notify the Company immediately, and the Company will endeavor to update your payout information as soon as reasonably possible.
Payouts will be available the period after they accrue. The applicable payout period is: ________. By way of example, if payouts are made every fifteen (15) days, an entire fifteen (15) day period must conclude before the payout for that period becomes available in the following period.
The Company expressly reserves the right to change payout information in its sole and exclusive discretion. If it does so, you will be notified.
Payouts are also subject to the following restriction:
a) Payouts are only available when a threshold of the following amount is met: $________ (________).
For any dispute as to payout, the Company must be notified within thirty (30) days of your receipt of the payout. The Company will review each dispute notification and the underlying payout transaction to which it relates. Disputes filed after thirty (30) days of payout will not be addressed.
9) REPORTS
You may log into your account with the Company to review reports related to your affiliation, such as payout reports and Qualified Click and/or purchase information. Please be advised, however, that not all listed qualifying clicks and/or purchases have been fully reviewed for accuracy in the reports viewable by you in real time, and therefore such information may be subject to change prior to payout.
10) TERM, TERMINATION & SUSPENSION
The term of this Agreement will begin when the Company accepts you into the Affiliate Program and will continue until terminated as provided herein. This Agreement may be terminated by either Party at any time, with or without cause, upon written notice.
You may only earn payouts so long as you are an Affiliate in good standing during the term. If you terminate this Agreement, you will qualify to receive payouts earned prior to the date of termination, subject to the terms of this Agreement.
If you fail to follow the terms of this Agreement or any other legal terms posted by the Company on its website or websites, you forfeit all rights, including the right to any unclaimed payout, to the fullest extent permitted by applicable law.
The Company specifically reserves the right to terminate this Agreement if you violate any of the terms set forth herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
Upon termination of this Agreement, any provisions that by their nature would be expected to survive termination shall remain in full force and effect, including, without limitation, the provisions concerning intellectual property, indemnification, limitation of liability, disclaimer of warranties, and dispute resolution.
11) INTELLECTUAL PROPERTY
You agree that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to the Company (“Company IP”).
Subject to the limitations listed below, the Company hereby grants you a non-exclusive, non-transferable, revocable license to access the Company’s websites in conjunction with the Affiliate Program and to use the Company IP solely and exclusively in connection with identifying the Company and its brand on the Affiliate Site to direct customers to the Links provided. You may not modify the Company IP in any way, and you are only permitted to use the Company IP while you are an Affiliate in good standing.
The Company may revoke this license at any time, and if the Company finds that you are using the Company IP in any manner not contemplated by this Agreement, it reserves the right to terminate this Agreement.
Other than as provided herein, you are not permitted to use any Company IP or any confusingly similar variation thereof without the Company’s express prior written permission. This includes a restriction on using the Company IP in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
Please be advised that your unauthorized use of any Company IP shall constitute unlawful infringement, and the Company reserves all of its rights, including the right to pursue an infringement suit against you in federal court under the Lanham Act, 15 U.S.C. § 1051 et seq., and/or the Copyright Act, 17 U.S.C. § 101 et seq. You may be obligated to pay monetary damages, legal fees, and costs.
You hereby grant the Company a non-exclusive license to use your name, trademarks, and service marks (if applicable) and other business intellectual property to advertise and promote the Affiliate Program.
12) MODIFICATION & VARIATION
The Company may, from time to time and at any time, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website, and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation. If the Company updates or replaces the terms of this Agreement, it will notify you via electronic means, which may include email. If you do not agree to the update or replacement, you may terminate this Agreement as described herein.
a) To the extent any part or subpart of this Agreement is held ineffective or invalid by any court of law, you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent permitted by law.
b) You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear your cache when doing so to avoid accessing a prior version of this Agreement.
13) RELATIONSHIP OF THE PARTIES
Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. You are an independent contractor of the Company and will remain so at all times. You are solely responsible for the payment of all taxes, including self-employment taxes, arising from compensation received under this Agreement, and you are not entitled to any employee benefits.
14) ACCEPTABLE USE
You agree not to use the Affiliate Program or any Company services for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Affiliate Program in any way that could damage the Company’s websites, products, services, or general business.
a) You further agree not to use the Affiliate Program:
I) To harass, abuse, or threaten others or otherwise violate any person’s legal rights;
II) To violate any intellectual property rights of the Company or any third party;
III) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
IV) To perpetrate any fraud;
V) To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
VI) To publish or distribute any obscene or defamatory material;
VII) To publish or distribute any material that incites violence, hate, or discrimination towards any group; or
VIII) To unlawfully gather information about others.
15) AFFILIATE OBLIGATIONS & FTC COMPLIANCE
You are responsible for ensuring the operation and maintenance of the Affiliate Site, including technical operations, written claims, links, and accuracy of materials. You must ensure, as noted above, that the Affiliate Site does not infringe upon the intellectual property rights of any third party or otherwise violate any legal rights.
The Company may monitor your account, as well as clicks and/or purchases coming through your account. If the Company determines that you are not in compliance with any of the terms of this Agreement, it has the right to immediately terminate your participation in the Affiliate Program.
The Company requires all of its Affiliates to comply with all applicable statutes, regulations, and guidelines established by the federal government, including those of the Federal Trade Commission, as well as those of state and local governments. The Federal Trade Commission, through the FTC Act, 15 U.S.C. § 45, and its Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255, requires that affiliate relationships, such as the relationship between you and the Company, be clearly and conspicuously disclosed to consumers.
The Company recommends that you seek independent legal counsel to advise you of your obligations to disclose in this manner.
You are required to post a conspicuous notice on your website regarding the Affiliate Program. The notice need not contain the precise words of the example given below, but should be substantially similar:
We engage in affiliate marketing whereby we receive funds through clicks to our affiliate program through this website, or we receive funds through the sale of goods or services on or through this website. We may also accept advertising and sponsorships from commercial businesses or receive other forms of advertising compensation. This disclosure is intended to comply with the U.S. Federal Trade Commission Rules on marketing and advertising, as well as any other legal requirements that may apply.
If the Company finds that you are not in compliance with any of the requirements of this subpart, it may terminate its relationship with you in its sole and exclusive discretion.
16) REVERSE ENGINEERING & SECURITY
You agree not to undertake any of the following actions:
a) Reverse engineer, or attempt to reverse engineer or disassemble, any code or software from or on any of the Company’s websites or services; or
b) Violate the security of any of the Company’s websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining, or interference with any host, user, or network.
17) DATA LOSS
The Company does not accept responsibility for the security of your account or content. You agree that your participation in the Affiliate Program is at your own risk.
18) INDEMNIFICATION
You agree to defend and indemnify the Company and any of its affiliates and hold them harmless against any and all legal claims and demands, including reasonable attorneys’ fees, that may arise from or relate to your use or misuse of the Affiliate Program, your breach of this Agreement, or your conduct or actions. You agree that the Company shall be entitled to select its own legal counsel and may participate in its own defense, if the Company so wishes.
19) SPAM POLICY
You are strictly prohibited from using the Affiliate Program or any Company services for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails. You agree that any unsolicited communications you send in connection with the Affiliate Program shall comply fully with the CAN-SPAM Act of 2003, 15 U.S.C. § 7701 et seq., the Telephone Consumer Protection Act, where applicable, and any other applicable laws. The Company reserves the right to terminate this Agreement immediately should it find you engaging in any prohibited spam activity.
20) THIRD-PARTY LINKS & CONTENT
The Company may occasionally post links to third-party websites or other services. You agree that the Company is not responsible or liable for any loss or damage caused as a result of your use of any third-party websites or services linked to or from the Affiliate Program or the Website.
21) SERVICE INTERRUPTIONS
The Company may need to interrupt your access to the Affiliate Program to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
22) NO WARRANTIES
23) LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, the Company is not liable for any damages that may arise from your participation in the Affiliate Program. The maximum aggregate liability of the Company arising from or relating to this Agreement is limited to one hundred United States Dollars ($100.00 USD). This section applies to any and all claims by you, including, but not limited to, lost profits or revenues, consequential, incidental, special, exemplary, or punitive damages, negligence, strict liability, fraud, or torts of any kind. Some jurisdictions do not allow the limitation or exclusion of liability for certain damages, so some of the above limitations may not apply to you.
24) GENERAL PROVISIONS:
A) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
B) JURISDICTION, VENUE & CHOICE OF LAW: Through your participation in the Affiliate Program, you agree that the laws of the State of ________ shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the Company, without regard to its conflict of law provisions. In the event any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts located in the following county: ________, State of ________. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or any similar doctrine.
C) ARBITRATION: In the event of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration administered in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall be conducted in the following county: ________, State of ________. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing federal law as well as the law of the State of ________. Each Party shall pay its own costs and fees, except as otherwise required by applicable law. Claims subject to arbitration under this section include, but are not limited to: contract claims, tort claims, and claims based on federal, state, and local laws, ordinances, statutes, or regulations. Intellectual property claims by the Company shall not be subject to arbitration and may, as an exception to this subpart, be litigated. The Parties, in agreement with this subpart, waive any rights they may have to a jury trial with regard to arbitrable claims.
D) ASSIGNMENT: This Agreement, and the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or in part by you. Should this Agreement, or the rights granted hereunder, be assigned, sold, leased, or otherwise transferred by the Company, the rights and liabilities of the Company shall bind and inure to the benefit of any assignees, administrators, successors, and executors.
E) SEVERABILITY: If any part or subpart of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and subparts shall be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force and effect.
F) NO WAIVER: In the event that the Company fails to enforce any provision of this Agreement, such failure shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or subpart of this Agreement shall not constitute a waiver of any other part or subpart.
G) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and subparts under this Agreement are for convenience and organization only. Headings shall not affect the meaning of any provisions of this Agreement.
H) FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, epidemics, pandemics, acts of nature and natural disasters, and other acts that may be due to unforeseen circumstances.
I) ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications are permitted to both Parties under this Agreement, including email or fax, consistent with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq. For any questions or concerns, please contact the Company at the following email address: ________.
J) ENTIRE AGREEMENT: This Agreement, together with any documents expressly incorporated by reference herein, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous understandings, representations, and agreements, whether written or oral.
ACKNOWLEDGMENT & ACCEPTANCE
By submitting an Affiliate Application and/or participating in the Affiliate Program, the Affiliate acknowledges that it has read, understood, and agrees to be bound by this Agreement as of the Effective Date set forth above.
COMPANY:
By: ________
Title: ________
Signature: ________
Date: ________
AFFILIATE:
Name: ________
Business/Entity Name (if applicable): ________
Address: ________
Signature: ________
Date: ________
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