Web marketing contracts

The template documents in this section of the website are designed to help publishers, advertisers, merchants, affiliates and others regulate their online marketing and advertising efforts.

The internet has given rise to new ways of marketing and advertising products and services. At any one time, there are a vast range of different marketing advertising ideas being tried, tested, discarded and evolved. Perhaps the key internet marketing strategies are:

• Search engine optimisation: the battle for higher rankings in the search engine results pages has become a key part of many businesses' marketing strategies
• Pay-per-click advertising has grown from nothing to a multi-billion pound industry in a few short years.
• Email marketing: this has been around since the early days of the internet and, despite the tide of email spam that fills our inboxes, is still going strong.
• Affiliate marketing: this type of marketing involves merchants making payments (very often commission-based payments) to affiliates who send them visitors and customers, and supports many thousands of small (and not so small) businesses.

With a couple of important exceptions, the legal principles that govern internet-related marketing and advertising are much the same as the principles that govern offline marketiing. Issues common to both online and offline worlds include the licensing of copyright materials used in advertising, the potential liabilities for a publisher of advertisements arising from the advertisements themselves and the risks of a taking collateral damage if a marketing partner's reputation is seriously degraded.

Some of the most important legal differences between online and offline marketing and advertising arise (in the UK) out of the provisions of the Ecommerce Regulations. These regulations include special defences that may apply where a web publisher (in the Euro-jargon of the Regulations, an "information society service provider") is merely hosting and transmitting advertising content, but does not have any involvement in the production or approval of the advertisements.

Web marketing agreements

There are stylistic differences between the web marketing agreements on the one hand, and the web marketing terms on other other, but there are no material substantive differences.

You should go for the premium (rather than the standard) version of the relevant document if you need clauses that cover: a minimum contractual term, the non disclosure of confidential information, the issue of publicity materials relating to the contract, or detailed contractual notice provisions. The premium versions of the documents also include clauses providing for additional customer obligations.

Information about some of the more important clauses of these agreement templates is set out below.

Services: These web marketing contracts are designed with maximum flexibility in mind, and accordingly may be suitable for different businesses providing quite different mixes of web marketing services. The services clause in the contracts refers expressly to on-site changes (whether for the purposes of search engine optimisation, conversion rate optimisation, social marketing or otherwise), paid and unpaid directory listings and search engine submissions, link building, PPC and other forms of internet advertising, affiliate marketing, email marketing and "any other website promotion techniques".

Customer responsibilities: All marketing services rely to some extent upon client engagement. The types of assistance that might be needed will vary with the types of service being provided. Examples given in this clause include assistance with keyword research, providing direct access to the web application being marketed, providing analytics data, procuring third party co-operation where necessary, and obtaining any necessary software licences.

Warranties: A web marketing service provider - especially an SEO consultant - will rarely want to give general commitments to achieve results, although sometimes narrow and carefully specified commitments may be given. The warranties clause in the web marketing agreements states that the service provider will perform its obligations under the agreement with reasonable care and skill. However, it goes on to clarify the limitations of the services. I have quoted the relevant clause in full below: "The Customer acknowledges that: (a) search engine algorithms will change from time-to-time, which may affect the Website’s rankings in the search engine results pages, and the Company has no control over such changes; (b) it can take many months for the Services to have any significant effects upon the ranking of a Website in the search engine results pages; (c) web site promotion is an ongoing task and, should the Customer terminate this Agreement and/or stop promoting the Website, that would be likely to have a negative impact upon the effects of the Services; (d) the Company will not be responsible for any alterations to the Website made by the Customer or any third party that reverse or effect changes made to the Website by the Company as part of the Services; (e) the promotion of the Website may lead to higher traffic levels and bandwidth requirements for the Website, and the Customer will be responsible for arranging and paying for such requirements; and (f) notwithstanding the Services, the Website’s search engine results page rankings and traffic levels may decrease as well as increase."

Email marketing agreements

The substantive provisions of the two email marketing contracts available on this website are, for the most part, identical. The only significant substantive difference is that the email marketing terms and conditions template includes optional provisions that should be used where the contract will be entered into online.

There are however significant stylistic differences between the two documents. The agreement should be used where the parties will sign the document and where the terms of the document may be negotiated. The terms and conditions should be used where the parties will sign another document (e.g. an order form, proposal or quotation) that will incorporate the terms and conditions by reference, and where one party will impose its non-negotiable trading terms on the other.

The key provisions of the email marketing contract are as follows.

Email marketing services: There is a basic distinction between the provision of a managed email marketing service and the provision of access to an email marketing platform. Accordingly, the services clause in the agreements comes in two alternative forms. The first is suitable for a managed service. It says that the provider will perform specified services, such as advising on email marketing strategy, designing the marketing collateral to be used in email campaigns, managing email lists, as well as actually running and reporting on campaigns. The second is suitable for a service that consists of access to an email marketing platform. It says that the provider will give the customer access to a platform with defined minimum functionality, such as the facility to create email lists, subscription and unsubscribe systems, and so on. A mixed approach may also be used, whereby the services consists of giving access to a platform and then providing additional supplemental services.

Legality and spam: There are wide ranging prohibitions in the agreements relating to the misuse of the email marketing services. There are also detailed rules relating to both unlawful spam and what might be called "legal spam". These are set out in an anti-spam policy document included as a schedule to the main contract. Spam is defined as email messages that constitute unsolicited bulk email, that constitute unsolicited commercial email and/or that fall foul of anti-spam laws such as the EU's privacy and electronic communications directive. The general rule that spam may not be sent is supplemented by suggested rules designed to ensure that it is not sent. For example, under the suggested rules email addresses should not be used if they were collected more than 6 months (or more than another defined period) before the date of sending if they have not been used in the interim.

Intellectual property rights: The customer licences the provider to use its materials to the extent necessary to enable the provider to fulfil its obligations under the agreement.

Data protection: A standard data processor clause is included in the agreement. This assumes that the service provider will be a data processor, and the customer will be a data controller.

Affiliate agreements

Affiliate marketing is a very popular way of promoting websites and internet-based businesses. An affiliate agreement is a kind of referral agreement, under which the affiliate receives payments from the company running the affiliate scheme if web users visit a website, register with a website, make a purchase on a website or take some other action.

Our standard affiliate agreement is a simplified version of our premium affiliate agreement. The key additions in the premium template are as follows: (i) the premium template includes provision for multi-level affiliate schemes (sub-affiliates); (ii) the premium template includes an optional right for the merchant to request alterations to affiliate sites on the grounds that an affiliate site may compromise the branding of the merchant; (iii) the premium template includes various optional obligations on the affiliate to ensure that the quality of the affiliate site does not deteriorate during the term of the agreement; and (iv) the premium template includes an alternative "self-billing" based payments clause.

Generally, the templates have been drafted to favour the interests of the person operating the affiliate programme.

The affiliate agreement templates must be agreed by both parties if they are to form part of the contract between the parties. The typical affiliate programme includes an online sign-up procedure, and one common way to get the affiliate's consent to the agreement is to include a check box for indicating consent as part of that sign-up procedure.

Each of the agreements includes provisions designed to help compliance with the online contracting requirements of the The Electronic Commerce (EC Directive) Regulations 2002 These regulations require that businesses contracting online disclose certain information to contractual counter-parties. They also require that certain procedures be followed when contracting online.

The principal provisions are as follows:

Affiliate Programme: In this section of the affiliate agreement, the merchant can specify whether affiliates will have an obligation to maintain affiliate links on the affiliate's website. The merchant may also want to reserve the right to request changes to the affiliate links (and indeed the website content related to the affiliate links), for example to ensure consistency and quality in the use of the merchant's branding. The affiliate on the other hand may want a contractual right to access the affiliate control panel. Typically, a control panel will allow the affiliate to keep the affiliate's account details up to date, monitor the performance of the affiliate links, check on the commission due, and get HTML code for links.

Affiliate obligations: Under the premium affiliate T&Cs, the affiliate may be obliged under this section of the agreement to keep the relevant affiliate website up to date and in good working order, to ensure that the website design, content and functionality remain of an acceptable standard, and ensure that the marketing of the affiliate website is in accordance with applicable law, any applicable codes of practice, and good industry practice generally. This section also include a number of prohibitions relating to the behaviour of the affiliate. The suggested prohibitions include the following:

• the affiliate must not include any illegal or unlawful or otherwise prohibited content on the affiliate website;
• the affiliate must not market the website using spam or unsolicited emails or other unsolicited communications;
• the affiliate must not market the website using any form of spyware, parasiteware, adware or similar software, or using any other antisocial or deceptive methods;
• the affiliate must not increase or seek to increase the number of payment trigger events using any fraudulent or deceptive method.

Intellectual Property Rights: The affiliate agreement templates each include a grant by the merchant to the affiliate of a worldwide, non-exclusive, royalty-free licence to reproduce electronically and publish the affiliate links on the affiliate website during the term only.