Working With Affiliates: What An Affiliate Agreement Means (2026 Updated)

Affiliate marketing can be a great way to grow your sales without hiring an in-house marketing team or paying big upfront ad costs.

But the legal side matters. When you’re paying commissions, giving someone access to your brand, and relying on them to market you properly, you want to be protected from day one.

This 2026 update reflects how affiliate relationships are commonly run now (especially online) and why clear, written terms are still the best way to avoid messy disputes about commission, content, and compliance.

What Is An Affiliate Agreement (And Why Does It Matter)?

An affiliate agreement is a contract between your business (the “merchant” or “brand”) and an affiliate (a person or business that promotes you) setting out:

• what the affiliate is allowed to do when marketing your products or services
• how they earn commission (and when they don’t)
• what rules they must follow (including advertising and privacy rules)
• what happens if something goes wrong
• how either party can end the relationship

In practical terms, it’s the document that turns “we’ll pay you for referrals” into something clear and enforceable.

Without an affiliate agreement, you can run into common (and avoidable) issues like:

• Commission disputes (e.g. “I drove that sale, you owe me money”)
• Brand damage (e.g. an affiliate using aggressive sales tactics, misleading claims, or spam)
• Pricing problems (e.g. affiliates advertising “discounts” you never approved)
• Content ownership confusion (e.g. who owns an affiliate’s photos, videos, or written reviews?)
• Privacy and tracking risks (especially where cookies, pixels, and email lists are involved)

Even if your affiliate program is small, the agreement is your “rules of the road”. It helps you scale confidently, because you can onboard new affiliates under the same consistent framework.

How Does Affiliate Marketing Work In New Zealand (Legally)?

Affiliate marketing usually looks like this:

1. You provide a unique link, discount code, or tracking method.
2. The affiliate promotes your product or service through their website, social media, email list, or paid ads.
3. If a customer buys (or completes another tracked action), you pay commission.

From a New Zealand legal perspective, it’s important to remember that “affiliate marketing” isn’t a special legal category with its own standalone statute. Instead, it touches a few key legal areas at once:

• Contract law (your agreement sets the rules, payment terms, and enforcement mechanisms)
• Consumer and advertising law (what affiliates say about you can create legal risk for your brand)
• Privacy law (tracking and marketing often involve personal information)
• Intellectual property (your name, logo, images, and content are valuable assets)

If you’re building an online program, it’s also common to align your affiliate terms with your website Website Terms and Conditions, so your business has one consistent position on refunds, misuse, and user behaviour across the board.

Are You Responsible For What Affiliates Say?

This is where many businesses get caught off-guard.

An affiliate is usually an independent business (not your employee). But if an affiliate makes misleading claims about your product, your business can still be exposed to complaints, reputational harm, and regulatory issues.

That’s why your affiliate agreement should include strict “marketing rules” and a clear right for you to require changes or remove content.

What Should An Affiliate Agreement Include?

Every affiliate program is a little different, but a strong affiliate agreement in New Zealand usually covers the following key areas.

1. Who The Parties Are And How The Relationship Works

You want the agreement to clearly identify:

• your legal entity name (company, sole trader, partnership, etc.)
• the affiliate’s legal name (and ideally their business number/registered address)
• that the affiliate is an independent contractor (not an employee, agent, or partner)

This matters because “relationship labels” don’t always decide legal outcomes on their own, but clarity helps prevent misunderstandings about authority and obligations. If you actually want the affiliate to be able to act on your behalf, that’s a different structure entirely and may involve something closer to Agency Relationships and Agreements.

2. Commission Structure And Payment Terms

This is usually the most important part (and the part most likely to cause disputes).

Key commission points to define include:

• What counts as a “referral” (click-based, code-based, last-click attribution, etc.)
• When commission is earned (on payment, on shipment, after a cooling-off period, after refund windows close)
• Commission rate (flat fee, percentage, tiered rates)
• Excluded transactions (refunds, chargebacks, fraudulent orders, staff purchases, self-referrals)
• Payment timing (e.g. monthly in arrears, minimum payout thresholds)
• Tax treatment (including whether the affiliate must provide a tax invoice and whether GST applies)

It also helps to explain your tracking approach (cookies, UTM parameters, platform dashboards) and what happens if tracking fails. If you don’t address that upfront, you can end up arguing about “proof” later.

3. Marketing Rules (What Affiliates Can And Can’t Do)

This is where you protect your brand and reduce legal risk.

Common rules cover:

• Brand use (logos, product images, trade marks, and approved wording)
• Discounting (whether affiliates can offer coupons, bundles, giveaways, or “special pricing”)
• Paid ads (whether affiliates can bid on your brand name or run PPC campaigns)
• Email marketing (whether affiliates can promote via email and what consent requirements apply)
• Social media conduct (what’s prohibited, what must be disclosed)
• Prohibited content (misleading claims, “get rich quick” promises, fake scarcity, fake testimonials)

If you collect personal information through affiliate sign-ups or marketing funnels, you’ll also want your affiliate program aligned with your Privacy Policy, particularly where tracking technology, marketing consent, and data sharing are involved.

4. Intellectual Property (Your Brand And Their Content)

Affiliate relationships often involve IP on both sides:

• You may allow the affiliate to use your trade marks, logos, and product images.
• The affiliate may create content (photos, videos, blog posts, reviews, ad copy).

Your agreement should deal with questions like:

• Is the affiliate getting a limited licence to use your brand assets?
• Can they modify your logo or images?
• Do they have to stop using your brand immediately when the agreement ends?
• Can you repost their content on your own channels?
• Who owns the content they create, and what rights are granted to you?

If your brand is a core asset (and for most businesses it is), it can also be worth protecting it properly through trade mark registration. Where appropriate, this ties into Trade Mark protection so you’re not trying to enforce “brand rules” without owning strong legal rights in the name or logo.

5. Liability, Indemnities, And “What If Something Goes Wrong?”

Affiliate arrangements can create real risk. For example:

• An affiliate posts misleading claims about results, safety, or pricing.
• An affiliate uses unlicensed images or music in promotional videos.
• An affiliate sends spam emails and your brand gets complaints.
• An affiliate breaches platform rules and your accounts get restricted or taken down.

This is where well-drafted clauses around liability and indemnities matter. In plain terms, an indemnity is an agreement that one party will cover the other party’s loss if certain things happen.

You don’t want to rely on a generic template here, because the risk profile is different depending on:

• your industry (health products, finance, childcare, online courses, etc.)
• where your affiliates are located
• how affiliates are allowed to advertise
• whether affiliates handle customer data

A tailored agreement can also include practical protections like:

• your right to withhold commission while investigating suspected fraud
• your right to require immediate takedown of non-compliant content
• your ability to terminate for “cause” (serious breach)

6. Term, Termination, And Post-Termination Obligations

Your agreement should be clear about:

• when the affiliate relationship starts
• whether it renews automatically
• how either party can end it (notice periods, written notice requirements)
• what happens to outstanding commission when the relationship ends
• what obligations continue (confidentiality, IP use, non-disparagement, dispute resolution)

It’s also sensible to spell out what happens to affiliate links and promotional materials after termination, so you’re not dealing with outdated promotions months later.

What Laws Do You Need To Comply With When Running An Affiliate Program?

Affiliate programs are marketing programs, so your legal compliance should focus on advertising standards, consumer expectations, and privacy.

Here are the key areas to keep on your radar in New Zealand.

Fair Trading Act 1986 (Misleading Or Deceptive Conduct)

The Fair Trading Act 1986 is one of the big ones for affiliate marketing. In simple terms, it prohibits misleading or deceptive conduct in trade, including false or misleading representations about goods and services.

For affiliate marketing, this can come up if an affiliate:

• overstates what your product can do
• uses before-and-after claims without evidence
• advertises a “discount” that isn’t real
• creates fake urgency (“only 2 left!”) where it’s not true

A good affiliate agreement helps because it sets marketing rules and gives you enforcement tools. But practically, you should also have an onboarding process (approved claim language, required disclosures, and periodic checks).

Consumer Guarantees Act 1993 (If You’re Selling To Consumers)

If you sell products or services to consumers in New Zealand, the Consumer Guarantees Act 1993 can affect your refunds/returns obligations and what customers can expect.

Your affiliates shouldn’t be promising “no refunds” or making up their own return rules.

This is another reason it’s helpful to have consistent public-facing terms (and consistent affiliate terms) so customers aren’t being told different things depending on where they found you.

Privacy Act 2020 (Tracking, Cookies, And Email Lists)

Affiliate marketing often relies on tracking. That can involve personal information, especially where tracking links can be tied to identifiable people (or where you collect emails via affiliate landing pages).

The Privacy Act 2020 generally requires you to be clear about what you collect, why you collect it, how you store it, and who you share it with (where applicable). If your affiliate program uses third-party platforms, pixels, cookies, or shared dashboards, your privacy compliance should be thought through carefully.

This can also overlap with cookie notices and consent practices, depending on how your website is built and where your audience is located.

Spam And Direct Marketing Rules

If affiliates are allowed to market your business by email or SMS, make sure your program rules require lawful consent practices and clear unsubscribe mechanisms.

Even if the affiliate is the one sending the message, your brand can still wear the reputational fallout if people complain.

If email marketing is a key channel for your affiliates, it’s worth ensuring the rules are spelled out in writing rather than assumed.

Affiliate Agreements Vs Other Marketing Contracts: Which One Do You Need?

“Affiliate agreement” is sometimes used as a catch-all term, but not every referral or marketing relationship is truly an affiliate arrangement.

Here’s a simple way to think about it.

Affiliate Agreement

• Usually performance-based (commission per sale/lead)
• Affiliate uses their own channels and audience
• Tracking links/codes are common
• Often non-exclusive and scalable (many affiliates at once)

Influencer Agreement

• Often paid per post/campaign (with or without commission)
• Deliverables are defined (number of posts, content format, deadlines)
• Content approval and usage rights are usually more detailed

Marketing Services Agreement

• You pay a service provider to run marketing (e.g. ads management, SEO, lead gen)
• They may not be using their own audience, but providing a service to you
• More like a supplier relationship than a referral relationship

If you’re not sure which structure fits, it often comes down to what you’re paying for: outcomes (affiliate commission), deliverables (influencer content), or services (marketing agency work).

If you do want a wider contract framework that covers marketing deliverables and payment mechanics, a broader Service Agreement can sometimes be the better fit (or the base document that you then tailor to an affiliate-style commission model).

Practical Tips For Working With Affiliates (Without The Headaches)

Once your agreement is solid, the next step is making the relationship workable day-to-day.

Here are practical ways to reduce risk while still building a program affiliates actually want to join.

Create Clear Onboarding Rules

Don’t just email a link and hope for the best. Give affiliates a short onboarding pack that includes:

• approved product descriptions and “do not say” claims
• brand guidelines (logos, fonts, colours, preferred product images)
• required disclosures (for paid promotions or affiliate links)
• how to contact you for approval questions

Keep Commission Terms Simple (At Least At The Start)

Complicated commission rules can cause confusion, and confusion is where disputes start.

A simple structure with clear exclusions (refunds, fraud, chargebacks) is usually easier to administer and easier to enforce.

Build In Audit And Takedown Rights

Your agreement should allow you to:

• review an affiliate’s promotional activity (within reason)
• require changes if something is misleading or off-brand
• request takedown of content that breaches your rules

This isn’t about policing affiliates for fun. It’s about protecting your business when marketing happens “out in the wild”.

Think About Confidential Information

Many affiliates will ask for early access to launches, pricing, conversion data, or internal materials.

If you’re sharing anything commercially sensitive, make sure your agreement includes confidentiality obligations. In some cases, you might also want a standalone Non-Disclosure Agreement before you share details (especially for high-value affiliates, joint ventures, or strategic partners).

Don’t Rely On DIY Templates

It’s tempting to grab a free affiliate agreement template online, especially when you’re trying to move quickly.

But affiliate terms usually need to be tailored to your business model, your risk profile, and how you actually track and pay commissions. A poorly drafted agreement can be worse than no agreement, because it can create false confidence while leaving big gaps.

If you want something that properly reflects your operations and protects your brand, it’s worth getting it drafted or reviewed by a lawyer.

Key Takeaways

• An affiliate agreement is the contract that sets out how affiliates can promote your business, how commission works, and what happens if there’s a dispute.
• Clear commission terms (when commission is earned, exclusions, payment timing, and tracking rules) are essential to avoid arguments and unexpected payouts.
• Your agreement should include marketing rules to reduce brand damage and legal risk, especially around misleading claims and advertising conduct.
• Affiliate marketing can trigger compliance obligations under the Fair Trading Act 1986, Consumer Guarantees Act 1993, and Privacy Act 2020, so your program rules should support compliance.
• Intellectual property clauses matter because affiliates often use your logos and images, and may create content you’ll want rights to reuse.
• Termination rights and post-termination obligations (like stopping brand use and handling outstanding commission) help you exit cleanly if the relationship isn’t working.
• Affiliate agreements shouldn’t be treated as a one-size-fits-all template-tailoring the terms to your business model is one of the best ways to stay protected from day one.

If you’d like help putting the right affiliate agreement in place (or reviewing the one you’re currently using), you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.