Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

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Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information. Affiliate Agreements and the Proposed Internet Sales Tax How Can They Affect You? Presented by: David Bates, Esq. [email protected] and Gaida Zirkelbach, Esq. [email protected] Gunster – Florida’s Lawyers For Business

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Slides from November 20, 2009 presentation by Gunster attorneys Gaida Zirkelbach and David Bates at the South Florida Interactive Marketing Association\'s Affiliate Marketing Workshop - Covers Affiliate Marketing Agreements and Internet Sales Tax

Transcript of Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Page 1: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Affiliate Agreements and the Proposed Internet Sales Tax

How Can They Affect You?Presented by:

David Bates, Esq. [email protected]

andGaida Zirkelbach, Esq.

[email protected]

Gunster – Florida’s Lawyers For Business

Page 2: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

This presentation and related information have been prepared by Gunster, Yoakley & Stewart, P.A. for information purposes only and do not constitute advertising, a solicitation, or legal advice. Such presentation, materials and information contained herein is not intended to create, and receipt thereof does not constitute formation of, and attorney-client relationship. The presentation, materials and information should not be relied upon for any purpose without seeking legal advice from a licensed attorney. The information contained in this presentation and related course materials is provided only as general information and may or may not reflect the most current legal developments; accordingly, this information is not promised or guaranteed to be correct or complete. Gunster, Yoakley & Stewart, P.A. expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this presentation or related course materials and information.

Page 3: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Understanding Affiliate Marketing Terms of Service

Agreements

Affiliate Marketing Agreements

Page 4: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Key Terms

Enrollment in the program Application to become an affiliate Approval criteria Web site’s right to reject in its sole discretion –

sites that promote violence, drugs, nudity, illegal activities, violate IP rights, include company’s name in its IP address

Representation that affiliate will abide by all laws and FTC’s Endorsement Guidelines and spam laws

Page 5: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Key Terms

Types of permitted Links Designated software Right to approve links

Page 6: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Key Terms

Transaction processing Retain right to reject orders in sole discretion

Definition of qualified transaction Amount of referral fees Reports Payment of referral fees Time to object to payments

Page 7: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Key Terms

Policies and pricing Promotion of affiliation Responsibility for affiliate’s site Prohibition on sponsored links

Page 8: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Key Terms

Indemnification Term and termination Forfeiture of all amounts payable upon

termination for breach

Page 9: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Key Terms

Modification of terms of agreement Independent contractor relationship Limitation on liability Disclaimers of all warranties

Page 10: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Key Terms

Governing law Arbitration Jurisdiction and venue Notices Assignment Entire agreement

Page 11: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Proposed InternetSales Tax

Page 12: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Background

1992 – Quill v. North Dakota – Need a “physical presence”

Offices, branches, warehouses, employees, etc.

Customers alone (i.e. economic presence) not enough for a state to impose sales tax

Should interstate businesses have to keep track of thousands of state and local tax codes?

Page 13: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Recent Events

2008 – New York’s “Complex Nexus” and “Amazon Tax”

When does it apply? When seller pays commission to NY resident related to the sale of over $10,000 of goods in 12 months

Page 14: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Recent Events

North Carolina and Rhode Island passed laws similar to New York’s

In 2009, similar laws were either rejected by the legislature or vetoed by the Governor in California, Connecticut, Hawaii, Minnesota, and Tennessee

To avoid the burden of collecting taxes, large networks, such as Amazon.com and Overstock.com do not allow affiliates from some of these states

Page 15: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Is Florida Next?

October 2009 – Senator Nancy Detert (R-Venice) – researching the possibility of requiring merchants to collect sales tax on online sales

Internet sales tax could result in revenue of nearly $2 billion per year for Florida ($20 billion per year by all states)

Page 16: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

From LinkShare, April 2009 (http://blog.linkshare.com/wp-content/uploads/2009/04/flmap.jpg)

Is Florida Next?

Page 17: Affiliate Marketing Agreements and Internet Sales Tax - Affiliate Marketing Workshop

Information in this presentation is based on general principles of law and is intended for information purposes only. Use of this presentation does not create an attorney-client or any other relationship between the speakers and the user. Neither Gunster nor the speakers make any claim as to the comprehensiveness or accuracy of the information.

Effect on Florida Affiliates

“Amazon Tax” “Streamlined Sales Tax”

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