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

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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 ...

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

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

  • Affiliate Agreements and the Proposed Internet Sales Tax How Can They Affect You? Presented by: David Bates, Esq. [email_address] and Gaida Zirkelbach, Esq. [email_address] Gunster – Florida’s Lawyers For Business
    • 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.
  • Understanding Affiliate Marketing Terms of Service Agreements Affiliate Marketing Agreements
  • 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
  • Key Terms
    • Types of permitted Links
    • Designated software
    • Right to approve links
  • 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
  • Key Terms
    • Policies and pricing
    • Promotion of affiliation
    • Responsibility for affiliate’s site
    • Prohibition on sponsored links
  • Key Terms
    • Indemnification
    • Term and termination
    • Forfeiture of all amounts payable upon termination for breach
  • Key Terms
    • Modification of terms of agreement
    • Independent contractor relationship
    • Limitation on liability
    • Disclaimers of all warranties
  • Key Terms
    • Governing law
    • Arbitration
    • Jurisdiction and venue
    • Notices
    • Assignment
    • Entire agreement
  • Proposed Internet Sales Tax
  • 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?
  • 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
  • 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
  • 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)
  • Is Florida Next? From LinkShare, April 2009 ( http://blog.linkshare.com/wp-content/uploads/2009/04/flmap.jpg )
  • Effect on Florida Affiliates
    • “Amazon Tax”
    • “Streamlined Sales Tax”
  • Florida’s lawyers for business. GUNSTER.COM | (800) 749-1980 FORT LAUDERDALE | WEST PALM BEACH | JACKSONVILLE | MIAMI | STUART | TALLAHASSE | VERO BEACH Banking & Financial Services Business Litigation Corporate Environmental & Land Use Immigration International Labor & Employment Leisure & Resorts Real Estate Private Wealth Services Probate, Trust & Guardianship Litigation Securities Tax Technology & Entrepreneurial Companies