What should an Affiliate Marketing Agreement include under Thai law?

1. Definitions and Interpretation
2. Appointment and Status
3. Tracking and Qualifying Sales
4. Commission
5. Statements and Payment
6. Promotion Rules
7. Invalid Activity
8. Trademarks and Materials
9. Merchant's Obligations and Personal Data
10. Term and Termination
11. Liability
12. Notices
13. Governing Law, Disputes and General

• An affiliate agreement under which the Affiliate only refers customers, and has no authority to act for the Merchant, is generally not one of the instruments listed in the Stamp Duty Schedule, so no stamp duty is normally payable on it.
• If the Parties add a fixed fee for creating content, or give the Affiliate authority to act on the Merchant's behalf, the agreement may become a hire of work or an appointment of an agent that attracts stamp duty. Check before signing such a change.

• Commission is income from brokerage. A Thai company or juristic person that pays Commission to a Thai company normally withholds 3%, and payments to individuals are withheld under a different method. Ask your accountant which rule applies before the first payment (Clause 5.6).
• If the Affiliate is abroad, withholding tax on payments sent overseas may apply, and a double tax treaty may reduce it; because you ticked gross-up, the Merchant bears that tax on top of the Commission.
• An Affiliate registered for VAT issues a tax invoice and adds VAT to the Commission (Clause 5.3).

• Set the attribution window (… days) and the approval delay (at least … days after delivery) in the Tracking System exactly as stated in this Agreement. Differences between the contract and the system are the most common source of disputes.
• Give the Affiliate its links and codes through the Tracking System, and check that orders using an Affiliate Code are credited even when the customer did not click a link (Clause 3.2(b)).
• A Merchant selling online to consumers may need to register its business under the laws on e-commerce and direct marketing, and must honour consumers' statutory rights. These duties stay with the Merchant (Clause 9.1).

• The Affiliate must say, next to each link or code, that it may earn a commission (Clause 6.2). Hidden affiliate links can mislead consumers and breach platform rules.
• The Merchant should tell the Affiliate in writing which claims are not allowed, especially for food supplements, cosmetics, drugs, medical devices and financial products (Clause 6.3).
• Marketing messages by email, SMS or chat may be sent only to people who agreed to receive them and did not object (Clause 6.4(e)).

• Withhold Commission only for the specific orders you suspect, and notify the Affiliate in writing within 10 Business Days with your reasons (Clause 7.1). Keep the evidence, such as order patterns, IP data from the Tracking System and chargeback notices.
• Commission already paid can be recovered only for fraudulent orders identified within 90 days after payment (Clause 5.4). Ordinary returns for defective products do not reduce Commission that has been paid.

• Either Party may end the Agreement on … days' notice (Clause 10.2). Commission on sales made before the end date remains payable after the Return Period (Clause 10.4(b)), and any balance below the minimum payout is paid in full.
• The Affiliate must remove the Merchant's materials and links within 15 days, except from archived content where that is not reasonably possible.

• A company should sign through the director or directors authorised in its latest company affidavit. Clause 13.5 allows electronic signatures and signed PDF copies.
• Keep monthly statements, Tracking System exports, correspondence about disputed orders, payment slips and withholding tax certificates. A Thai court requires a certified Thai translation of English documents.

Compiled from the notes that accompany the English contract templates on this site, published by Phuwara Krobtaku (ภูวรา ครอบตะคุ), Thai attorney-at-law, licence no. 477/2558. The short answer and summary at the top of this page are put together by the site from the template's clause headings and notes. Statutes are quoted only in the official Thai text: Thai is the only official language of Thai legislation, and an unofficial translation can mislead. Article registry OKC-230AAC. If you reuse this content, please credit the author and link to the original.