Affiliate Agreement (New Zealand)

An Affiliate Agreement is a contract between a merchant (the business selling products or services) and an affiliate (a website owner, blogger, or influencer who promotes the merchant's products in exchange for a commission on sales or leads). In New Zealand, Affiliate Agreements are governed by the Contract and Commercial Law Act 2017 (CCLA) and general contract law. The typical affiliate marketing arrangement works as follows: the merchant provides the affiliate with unique tracking links; the affiliate publishes these links on their website, social media, or email list; when a consumer clicks the link and makes a purchase, the tracking system records the referral and attributes the sale to the affiliate; the merchant pays the affiliate a commission (a percentage of the sale or a fixed amount per lead). The Fair Trading Act 1986 requires affiliates to disclose their commercial relationship with the merchant when publishing affiliate links — failing to disclose that a recommendation is commercially motivated may constitute misleading conduct under the FTA. The Advertising Standards Authority (ASA) code also requires clear disclosure of commercial relationships in advertising, including affiliate marketing.

Affiliate marketers in New Zealand must disclose their commercial relationship with merchants when publishing affiliate links or endorsements. The disclosure obligation arises from the Fair Trading Act 1986 (FTA), which prohibits misleading conduct in trade, and the Advertising Standards Authority (ASA) code, which requires advertising to be clearly identified. An affiliate who publishes a product review without disclosing that they earn a commission on purchases through their links may be engaging in misleading conduct — consumers may believe the review is independent when it is commercially motivated. Disclosure should be: clear and prominent (not buried in small print or at the bottom of a long article); in plain language (e.g., 'This post contains affiliate links — I may earn a commission if you purchase through these links'); and made at or before the point at which the consumer encounters the affiliate link. The Affiliate Agreement should require the affiliate to include appropriate disclosures on all content featuring affiliate links, and should specify the minimum disclosure language to maintain compliance. Affiliates who operate on multiple platforms (website, Instagram, YouTube) must include disclosures on each platform where affiliate links appear.

Affiliate commissions in New Zealand are calculated based on the tracking data recorded by the affiliate program platform (such as Commission Junction, ShareASale, or a custom tracking solution). Commission structures vary: pay-per-sale (a percentage of the net sale value, typically 5–30% depending on the product category); pay-per-lead (a fixed amount for each qualified lead generated, e.g., a completed form submission or free trial sign-up); pay-per-click (a small amount for each click on the affiliate link, now relatively uncommon). The Affiliate Agreement should specify: the commission rate or structure; the cookie duration (how long after an initial click the affiliate is credited for a sale — commonly 30–90 days); the last-click or first-click attribution model; the payment threshold (minimum commission balance required before payment is triggered, e.g., NZD $50); the payment frequency (monthly); and the payment method (bank transfer). All commissions are subject to GST at 15% if the affiliate is GST-registered. Dispute resolution for commission disputes (e.g., the merchant's tracking data differs from the affiliate's) should be addressed in the agreement.

A New Zealand Affiliate Agreement should clearly list activities that affiliates are prohibited from doing, to protect the merchant's brand and legal compliance. Common prohibited activities include: bidding on the merchant's trademarked terms in paid search (unless specifically permitted); using the merchant's brand name in paid advertising in a way that infringes the merchant's trademark under the Trade Marks Act 2002; publishing misleading or false claims about the merchant's products (which would breach the Fair Trading Act 1986); using spam email to promote the merchant's products (which would breach the Unsolicited Electronic Messages Act 2007); publishing affiliate links on prohibited content (adult content, hate speech, illegal content); creating fake reviews or testimonials; using cookie stuffing or other fraudulent tracking methods to claim commissions for sales the affiliate did not generate; and failing to include required disclosures. The agreement should specify the consequences of prohibited activities, including immediate termination and forfeiture of unpaid commissions. Merchants should monitor affiliate activity to identify prohibited conduct, particularly brand bidding and misleading advertising.

A Affiliate Agreement (New Zealand) does not legally require a lawyer in New Zealand, and individuals and businesses may draft and execute the document independently. The Companies Act 1993 does not mandate legal representation for the creation or signing of this type of document. However, seeking independent legal advice from a qualified New Zealand lawyer is recommended for transactions involving substantial financial value, complex regulatory requirements, or cross-border elements where multiple legal jurisdictions may apply. A lawyer can verify that the document complies with all applicable statutory requirements, identify potential risks specific to the transaction, and confirm that the terms adequately protect the interests of all parties involved. The High Court of New Zealand has jurisdiction over disputes arising from this type of document, and Companies Office may impose additional compliance obligations depending on the nature of the underlying transaction. Professional legal review is particularly advisable where the document will be submitted to government agencies or used as evidence in legal proceedings.