An influencer has agreed to promote your products for a commission, and their manager has just emailed you a copy of their terms and conditions to sign. Or you have decided to start your own affiliate program and a template you found online is sitting in front of you. Either way, you are reading a document that will determine how much the arrangement costs, who owns the content the affiliate creates, and what happens if one of their posts lands you in trouble.
Affiliate marketing terms and conditions are the contract between your business and the person or company that promotes your products or services in exchange for a commission. The document sets out what the affiliate can promote, what they are paid and how, who owns the content they create, and what each side can do if the relationship sours. It replaces any informal understanding reached by email or over coffee, and it operates alongside the platform rules of whichever network or social media service the promotions run on.
Some businesses run their affiliate program through a third-party network, which handles the links, tracking and payments and applies its own terms to everyone in the program. Others engage affiliates directly, generate their own tracking links and negotiate their own terms. If you deal with affiliates directly, this document is the only thing standing between a clear arrangement and a dispute, and it is the document this guide focuses on.
The clauses that do the work
A workable set of affiliate terms covers seven areas. The order below follows the commercial logic of the deal: what the affiliate does, what they are paid, who owns the output, and then the rules and risk around it.
The scope of the affiliate's promotion
Your terms should start by pinning down exactly what the affiliate is engaged to do. That means identifying the products or services they may promote, the platforms they may promote on, and the campaigns or offers they are expected to market. It should also state how long a promotion must stay live, which matters when the affiliate is posting to social media where content can disappear at any time.
The drafting choice that matters most in this clause is approval. Consider whether the affiliate can publish content without checking with you first, or whether every post, story or video needs your sign-off before it goes live.
- Approval rights: the variant the affiliate will push back on is "promote anywhere, publish anything". For a business with a brand to protect, requiring approval before publication is usually worth the friction.
- Removal obligations: spell out that content must be removed or updated when a campaign ends or a product changes, so stale or incorrect promotions do not stay live.
- The trap: an open-ended scope with no approval step leaves the affiliate free to say almost anything about your products, and the regulator that polices advertising claims is watching both sides of that arrangement.
How commission is earned and paid
Commission is the reason the affiliate is working with you, so this clause needs to be precise about how a qualifying sale is defined, how it is tracked, what rate is paid and when. Most arrangements track sales through a unique affiliate link that the affiliate embeds in their posts, so your terms should require the affiliate to use the link you provide and not to work around it.
The scenario that most often causes a dispute is the refund. A customer buys through the affiliate's link, the sale is counted and the commission is paid, and the customer then exercises their rights to a refund. Consumer guarantees under the Australian Consumer Law (Cth) (the ACL) cannot be excluded by contract, so refunds will happen. Decide in advance who carries that cost.
- Net versus gross: the affiliate will push for commission on the full sale price; you may want commission calculated on the amount actually retained after refunds, chargebacks and discounts.
- Clawback: include a right to deduct or recover commission already paid on sales that are later refunded, and set a period after which commission is treated as final.
- Payment terms: state the payment cycle, the minimum balance before payment is due, and whether goods and services tax is added or included.
Who owns the content the affiliate creates
The affiliate will create promotional material: photos, videos, captions, blog posts and other content. The default position under the Copyright Act 1968 (Cth) is that the author, meaning the person who created the work, is the owner of the copyright in it. That means the affiliate, not you, starts out owning the rights in the content they make for your campaign, and the fact that you paid for the work does not change that. The exception for works created by employees under a contract of employment does not apply to an independent affiliate, so you cannot rely on it.
The ownership clause is where the two choices sit: an assignment, which transfers the copyright to you, or a licence, which lets you use the content while the affiliate keeps the rights. If you want an assignment, it must be in writing and signed by the affiliate. Under s 196(3) of the Copyright Act, an assignment of copyright does not take effect otherwise.
- The variant the affiliate pushes for: a licence limited to the campaign, so they keep the content for their portfolio and can reuse it for other clients.
- The trap: a clause that says "all content becomes our property" without a signed assignment gives you nothing in practice, because the writing requirement under the Copyright Act makes the transfer ineffective without the affiliate's signature.
- What you probably need: for most campaigns, an assignment of the content created for you, or a licence broad enough to reuse the content across your own channels, with the choice made deliberately rather than left to inference.
The licence to use your branding
If you provide the affiliate with your trade marks, logos or other brand assets, the terms need to grant them permission to use those assets, and to put limits around that permission. Under the Trade Marks Act 1995 (Cth), use of a trade mark by someone other than the owner is an authorised use only when it happens under the control of the owner, and the Act treats quality control by the owner as evidence of that control. A licence clause that requires the affiliate to follow your branding guidelines and quality standards is therefore not just a housekeeping matter; it is what keeps their use of your trade mark on the right side of the Act.
The licence should say what the affiliate may use, for what purpose, on which platforms and for how long. It should also state that the permission ends when the agreement ends, and that you can require the affiliate to stop using the branding if they breach the terms. A licence without limits is effectively a blank cheque to use your brand in ways you never intended.
- Limits to set: the specific assets covered, the approved formats, the campaigns the branding can be used for and the term of the permission.
- The trap: allowing the affiliate to use your trade mark with no quality control attached puts the control element of authorised use at risk.
- The variant to resist: the affiliate asking for an open-ended right to use your branding in their own marketing materials, which can outlive the relationship.
The affiliate's promises about your brand
The warranties clause is the list of promises the affiliate makes to you about how they will behave. The most important of these, in Australian law, is compliance with the Australian Consumer Law. Section 18 of the ACL prohibits misleading or deceptive conduct in trade or commerce, and s 29 prohibits specific false or misleading representations, including about sponsorship or approval, affiliation, price and the existence of guarantees. An affiliate who posts a misleading review, overstates what your product does or fails to disclose that they are being paid can breach those provisions.
The ACCC is actively looking at this space. In early 2023 it ran an internet sweep of influencer advertising and published a report on its findings in December 2023, and it has said its scrutiny covers both influencers and the businesses that engage them. Your terms should give you the tools to respond: a warranty that the affiliate will comply with the ACL and disclose their commercial relationship, approval rights over content, and a right to require removal of anything misleading.
- Representation warranties: the affiliate should warrant that their statements about your products will be accurate, that they will not make false or misleading claims, and that they will not make claims you have not authorised.
- Behavioural warranties: the affiliate should agree not to disparage you, and not to publish obscene, offensive, illegal or discriminatory content in connection with your brand.
- The trap: a warranties clause is only useful if breach of it gives you a remedy, so tie the warranties to your termination rights and to the liability clause below.
Who carries the risk when things go wrong
Affiliate marketing spreads risk as well as reward. If the affiliate's content infringes someone's copyright, defames a person or makes a misleading claim, you may be the party that ends up in the crosshairs, because the promotion is for your products. A liability and indemnity clause should make the affiliate responsible for harm caused by their own content and conduct.
At the same time, there are limits to how far risk can be pushed around. The consumer guarantees in the ACL apply to the supply of goods and services to consumers, and s 64 of the ACL makes any contract term that excludes or restricts them void. The Federal Court's decision in ACCC v Valve Corporation (No 7) [2016] FCA 1553 is the cautionary tale: Valve's Steam subscriber agreement said its fees were not refundable, the Court found that amounted to false or misleading representations about consumer guarantee rights and imposed a $3 million penalty, and the Full Court dismissed Valve's appeal in 2017. A clause that tries to write consumer obligations out of existence is not just unenforceable; it can itself be a contravention.
- Indemnity: the affiliate should indemnify you for loss arising from their breach of the agreement, including third-party claims for intellectual property infringement, defamation or misleading conduct in their content.
- Limits on your own liability: where you supply services to other businesses, s 64A of the ACL allows liability for a failure to comply with guarantees to be limited to re-supply in some circumstances, but only where the term is fair and reasonable. Blanket exclusions for consumer transactions remain void.
- The practical trap: an indemnity is only worth what the affiliate can pay, so consider whether the affiliate should carry insurance, and remember that your own product liability cannot be contracted away.
How the arrangement ends
Affiliate agreements should have a defined term or a right to terminate on notice, plus a right to terminate immediately for breach. The clauses that get forgotten are the ones dealing with what happens afterwards. When the arrangement ends, the affiliate should be required to remove or disable their promotions, stop using your branding and links, and return or destroy any materials you provided. Decide also whether commission is payable on sales that occur before termination but are only tracked afterwards, and whether any licences you granted survive the termination.
- The trap: content that stays live after the relationship ends, still carrying your branding and links.
- The variant to resist: a clause that lets the affiliate keep earning commission on existing links indefinitely after termination.
- What to check: whether post-termination obligations such as confidentiality survive, and whether the affiliate's outstanding commission is dealt with in the same clause.
Clauses to add when the situation calls for them
Depending on how your program works, a few optional clauses are worth considering.
- Exclusivity: worth including if you do not want the affiliate promoting a competitor's products or services during the term.
- Verification and audit rights: worth including if you anticipate tracking disputes, giving you the right to check clicks, conversions and commission calculations.
- Non-solicitation: worth including if the affiliate has direct contact with your customers and could poach them for a competitor.
- Data handling: worth including if the affiliate collects customer information through their promotions, so it is clear who controls the data and how privacy obligations are met.
- Insurance: worth including if the affiliate's activities carry real risk, requiring them to hold public liability or professional indemnity cover and to name you as an interested party.
Getting an Artificer Legal review of your affiliate terms
An Artificer Legal commercial lawyer would review a set of affiliate terms against the way your program actually operates, rather than against a template. The order of review matters. We would start with the commercial terms, the scope of promotion and the commission mechanics, because those are the clauses most likely to be disputed in practice. We would then turn to the intellectual property provisions, making sure the assignment of content is in writing and signed, and that the branding licence ties the affiliate's use of your trade mark to your control and quality standards. We would finish with the liability and indemnity clauses, checking that they are enforceable under the ACL and that the risk allocation matches who is actually exposed.
There are common patterns we would push back on. A clause that purports to transfer all content to you without a signed assignment, a blanket exclusion of liability that is void under the ACL, or a commission clause that says nothing about refunds are all red flags. We would also check that the document matches your structure, because the terms you need when you run your own affiliate links are different from the network terms that apply when you join a third-party program. If you would like help drafting or reviewing affiliate marketing terms and conditions, contact Artificer Legal for a review of your document.
The clause that decides who keeps the content
Of all the clauses in an affiliate agreement, the ownership clause is the one that most often decides who wins when the relationship ends. The assumption that paying for content means owning it is the most expensive misunderstanding in affiliate marketing. Under the Copyright Act 1968 (Cth), the creator starts out owning the copyright, and a transfer only happens through a signed written assignment or a licence drafted for the purpose. A business that skips this clause can end up paying an affiliate to create content it cannot reuse, while the affiliate walks away free to use that same content however they like.
The rest of the document supports that core choice. The scope clause decides what the affiliate may do, the commission clause decides what they are paid and what happens on refunds, the branding licence controls how your trade marks are used, the warranties keep the affiliate inside the Australian Consumer Law, the liability clause allocates risk, and the termination clause decides what happens to all of it when the arrangement ends. A set of affiliate terms that covers those bases, drafted to match the way your program actually runs, is what turns a handshake deal into an arrangement you can rely on. If you are drafting or reviewing affiliate marketing terms and conditions, Artificer Legal can help you get the clauses right.