Referral / Affiliate Agreement (Massachusetts)

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JURISDICTION: Massachusetts
LAST UPDATED: 2026-03-18
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REFERRAL / AFFILIATE AGREEMENT

COMMONWEALTH OF MASSACHUSETTS

TABLE OF CONTENTS

1. Recitals and Definitions
2. Appointment and Scope of Engagement
3. Referral Process and Qualification Criteria
4. Compensation, Payment Terms, and Clawbacks
5. Exclusions and Conflict Resolution
6. Marketing Conduct, Branding, and FTC Compliance
7. Tax Obligations and Recordkeeping
8. Regulatory Compliance and Anti-Spam
9. Confidentiality and Data Protection
10. Intellectual Property and License Grant
11. Representations and Warranties
12. Indemnification
13. Limitation of Liability
14. Non-Solicitation and Non-Circumvention
15. Term and Termination
16. Effects of Termination
17. Dispute Resolution and Governing Law
18. General Provisions
19. Schedules and Exhibits

PARTIES

This Referral/Affiliate Agreement ("Agreement") is entered into as of [__/__/____] ("Effective Date") by and between:

Company:
Name: [________________________________] ("Company")
Address: [________________________________]
City/State/ZIP: [________________________________]
Massachusetts Secretary of the Commonwealth Entity ID: [________________________________]

AND

Referral Partner / Affiliate:
Name: [________________________________] ("Partner")
Address: [________________________________]
City/State/ZIP: [________________________________]
Tax ID / SSN (last 4): [____]

(Company and Partner are each a "Party" and collectively the "Parties.")

1. RECITALS AND DEFINITIONS

1.1 Recitals.

WHEREAS, Company is engaged in the business of providing [________________________________] ("Products/Services"); and

WHEREAS, Partner desires to refer prospective customers to Company in exchange for referral compensation as set forth herein; and

WHEREAS, the Parties wish to set forth the terms and conditions governing their referral relationship;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.2 Definitions.

(a) "Affiliate Link" means a unique URL, tracking code, or digital identifier assigned to Partner for tracking referral activity.

(b) "Commission" means the referral fee or compensation payable to Partner as described in Section 4.

(c) "Confidential Information" means all non-public information disclosed by one Party to the other, including customer lists, pricing data, business strategies, technical information, and trade secrets as defined under the Massachusetts Trade Secrets Act (M.G.L. c. 93, § 42).

(d) "Personal Information" has the meaning set forth in M.G.L. c. 93H, § 1, and includes a Massachusetts resident's first and last name or first initial and last name in combination with a Social Security number, driver's license number, financial account number, or other identifier.

(e) "Qualified Referral" means a prospective customer who meets the criteria in Section 3 and has been accepted by Company.

(f) "Referral Period" means the period during which a referred prospect is attributed to Partner, as specified in Section 3.4.

(g) "Territory" means [________________________________] or, if blank, the entire United States.

2. APPOINTMENT AND SCOPE OF ENGAGEMENT

2.1 Appointment. Company hereby appoints Partner as a non-exclusive referral partner/affiliate to introduce and refer prospective customers for Company's Products/Services. This appointment is:

☐ Referral Program (introduction-based referrals only)
☐ Affiliate Program (link/tracking-based referrals)
☐ Hybrid Program (combination of referral and affiliate methods)

2.2 Independent Contractor Status. Partner is an independent contractor and not an employee, agent, joint venturer, or legal representative of Company. Nothing in this Agreement shall create an employment relationship, partnership, or agency. Partner shall have no authority to bind Company to any obligation or representation.

2.3 Non-Exclusivity. Unless otherwise agreed in writing, this appointment is non-exclusive. Company reserves the right to appoint additional referral partners or sell directly.

2.4 No Guarantee of Revenue. Company makes no representation or guarantee regarding the volume of referrals, conversions, or Commission amounts that Partner may earn.

3. REFERRAL PROCESS AND QUALIFICATION CRITERIA

3.1 Submission Method. Partner shall submit referrals through:

☐ Company-designated referral portal at [________________________________]
☐ Unique affiliate tracking link(s) provided by Company
☐ Referral submission form (email or written)
☐ Other method: [________________________________]

3.2 Required Information. Each referral submission must include:

(a) Prospect's full legal name or business entity name;
(b) Primary contact name and title;
(c) Email address and telephone number;
(d) Brief description of prospect's need or interest; and
(e) Date of initial contact between Partner and prospect.

3.3 Qualification Criteria. A referral shall be a "Qualified Referral" only if:

(a) The prospect is not an existing customer or currently in Company's active sales pipeline;
(b) The prospect is not the subject of an existing referral from another partner within the preceding [____] days;
(c) The prospect meets Company's ideal customer profile (Schedule 1);
(d) The prospect engages in good-faith evaluation of Products/Services; and
(e) Company accepts the referral in writing within [____] business days.

3.4 Referral Protection Period. Each Qualified Referral is attributed to Partner for [____] days from Company's written acceptance ("Referral Period"). If the prospect does not convert within the Referral Period, the attribution expires.

3.5 Attribution Disputes. Company shall resolve attribution disputes in good faith based on its CRM records. Company's determination is final absent manifest error.

4. COMPENSATION, PAYMENT TERMS, AND CLAWBACKS

4.1 Commission Structure. Company shall pay Partner the following Commission for each Qualified Referral that converts to a paying customer:

☐ Percentage-Based: [____]% of:
☐ First-year annual recurring revenue (ARR)
☐ First order value
☐ First [____] months of invoiced revenue
☐ Lifetime revenue (capped at [____] months)

☐ Flat Fee: $[________________________________] per converted referral

☐ Tiered Structure: Per Schedule 2 attached hereto

4.2 Payment Terms.

(a) Payment Frequency: ☐ Monthly ☐ Quarterly ☐ Other: [________________________________]

(b) Payment Timing: Within [____] days after the end of the applicable payment period, provided Company has received payment from the referred customer.

(c) Minimum Payout Threshold: $[________________________________]. Amounts below the threshold roll over.

(d) Payment Method: ☐ ACH/wire transfer ☐ Check ☐ Electronic payment ☐ Other: [________________________________]

(e) Currency: United States Dollars (USD).

4.3 Reporting. Company shall provide Partner with a written statement within [____] days after each payment period, detailing referrals submitted, accepted, converted, Commissions earned and paid, and any adjustments.

4.4 Late Payments. Undisputed Commission payments not made when due shall accrue interest at the rate of [____]% per annum or the maximum rate permitted under Massachusetts law (currently 12% per annum per M.G.L. c. 231, § 6C for contract claims), whichever is less.

4.5 Clawbacks and Adjustments.

(a) Company may recover or offset Commissions if:
(i) The referred customer cancels, obtains a refund, or issues a chargeback within [____] days;
(ii) The referral was procured through fraud or misrepresentation; or
(iii) The referred customer fails to pay Company within [____] days of invoice.

(b) Clawback amounts may be deducted from future payments or invoiced for direct repayment.

4.6 Audit Rights. Each Party may audit the other Party's records related to this Agreement upon [____] days' notice, no more than once per calendar year, during normal business hours.

5. EXCLUSIONS AND CONFLICT RESOLUTION

5.1 Excluded Referrals. No Commission is payable for:

(a) Prospects already in Company's active sales pipeline;
(b) Self-referrals by Partner or Partner's employees;
(c) Government customers where referral fees are prohibited;
(d) Referrals not meeting Section 3.3 criteria; and
(e) Referrals made after termination (except as provided in Section 16).

5.2 Conflict Resolution. If multiple partners submit the same prospect, Commission is credited to the first valid submitter per Company's records.

6. MARKETING CONDUCT, BRANDING, AND FTC COMPLIANCE

6.1 Approved Materials. Partner shall use only Company-approved marketing materials. No modifications or derivative works without prior written consent.

6.2 Brand Guidelines. Partner shall comply with Company's brand guidelines for all use of Company's name, logo, trademarks, and service marks.

6.3 Prohibited Marketing Activities. Partner shall not:

(a) Engage in paid search advertising using Company's trademarks without prior written consent;
(b) Send unsolicited commercial email in violation of the CAN-SPAM Act (15 U.S.C. § 7701 et seq.);
(c) Make false, misleading, or unsubstantiated claims about Products/Services;
(d) Engage in any unfair or deceptive practice in violation of M.G.L. c. 93A or 940 CMR 3.00;
(e) Use negative or disparaging advertising without Company's prior written approval; or
(f) Market to persons under the age of 18.

6.4 FTC Endorsement Disclosure Requirements. Partner shall comply with 16 CFR Part 255, including:

(a) Clearly and conspicuously disclosing the material connection between Partner and Company in all marketing communications;
(b) Using clear language such as "#ad," "#sponsored," or "paid partner" in social media;
(c) Placing disclosures where they are unavoidable (not buried in fine print); and
(d) Ensuring all testimonials reflect honest opinions and actual experiences.

6.5 Massachusetts Consumer Protection Act. Partner acknowledges that M.G.L. c. 93A prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. The Attorney General's regulations (940 CMR 3.00 et seq.) further define prohibited practices, including false or misleading representations about the quality, characteristics, or benefits of goods or services. Violations of Chapter 93A may result in:

(a) Actual damages or $25 statutory minimum damages per violation;
(b) Treble damages (up to three times actual damages) for willful or knowing violations;
(c) Reasonable attorney's fees and costs; and
(d) Injunctive relief.

7. TAX OBLIGATIONS AND RECORDKEEPING

7.1 Tax Responsibility. Partner is solely responsible for all federal, state, and local taxes, including Massachusetts state income taxes and self-employment taxes.

7.2 Tax Forms. Partner shall provide a completed IRS Form W-9 (or W-8BEN/W-8BEN-E for non-U.S. persons) before receiving payments. Company shall issue IRS Form 1099-NEC annually.

7.3 Massachusetts Sales Tax. To the extent referral services are subject to Massachusetts sales and use tax (M.G.L. c. 64H), the Parties shall cooperate to determine applicability.

7.4 Record Retention. Each Party shall maintain records of referrals, Commissions, and correspondence for [____] years following termination, or longer if required by law.

8. REGULATORY COMPLIANCE AND ANTI-SPAM

8.1 General Compliance. Each Party shall comply with all applicable federal, state, and local laws in performing its obligations.

8.2 CAN-SPAM Compliance. Partner shall comply with the CAN-SPAM Act in all email marketing, including accurate headers, clear commercial message identification, functioning opt-out, and honoring opt-outs within 10 business days.

8.3 Massachusetts Business Opportunity Considerations. Massachusetts does not have a standalone business opportunity registration statute. However, referral arrangements that involve misleading earnings representations, required purchases, or other deceptive practices may violate M.G.L. c. 93A and 940 CMR 3.00. The Parties represent that:

(a) This Agreement does not require Partner to make any initial payment as a condition of participation;
(b) No specific earnings guarantees or projections have been made to Partner; and
(c) The referral arrangement is not structured as a pyramid scheme or unlawful chain marketing program.

8.4 Export Controls and Sanctions. Partner shall not refer customers in embargoed countries or engage with persons on U.S. SDN or Entity Lists.

8.5 Anti-Corruption. Partner shall not offer or pay any bribe, kickback, or corrupt payment to government officials in connection with this Agreement.

9. CONFIDENTIALITY AND DATA PROTECTION

9.1 Confidentiality Obligations. Each Party agrees to maintain in strict confidence all Confidential Information received from the other Party and use it solely for this Agreement's purposes.

9.2 Exceptions. Confidential Information excludes information that: (a) is publicly available through no fault of the receiving Party; (b) was known to the receiving Party prior to disclosure; (c) is independently developed without use of Confidential Information; or (d) must be disclosed by law, with prompt notice and cooperation for a protective order.

9.3 Trade Secrets. Trade secrets are protected under the Massachusetts Trade Secrets Act (M.G.L. c. 93, §§ 42-42A). Remedies include injunctive relief and damages, including unjust enrichment.

9.4 Massachusetts Data Protection Requirements. Partner shall comply with Massachusetts data protection laws, including:

(a) Data Breach Notification (M.G.L. c. 93H): Partner shall notify Company and the Massachusetts Attorney General and the Director of Consumer Affairs and Business Regulation as soon as practicable (and without unreasonable delay) upon discovering a breach of security involving personal information of Massachusetts residents;

(b) Data Security Standards (201 CMR 17.00): Partner shall implement and maintain a comprehensive written information security program (WISP) with appropriate administrative, technical, and physical safeguards for personal information, including encryption of personal information stored on portable devices and transmitted across public networks;

(c) Privacy (M.G.L. c. 214, § 1B): Partner shall respect the right of privacy of Massachusetts residents as protected by statute; and

(d) Data Safeguarding (M.G.L. c. 93I): Partner shall properly dispose of records containing personal information by shredding, erasing, or otherwise destroying them so the information cannot be read or reconstructed.

9.5 Return of Information. Upon termination, each Party shall promptly return or destroy all Confidential Information, except as required by law.

10. INTELLECTUAL PROPERTY AND LICENSE GRANT

10.1 Ownership. Company retains all right, title, and interest in its trademarks, service marks, logos, trade names, copyrights, patents, trade secrets, and other intellectual property ("Company IP").

10.2 Limited License. Company grants Partner a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Company's trademarks and approved materials solely for performing obligations under this Agreement.

10.3 Restrictions. Partner shall not: (a) modify or create derivative works from Company IP; (b) register confusingly similar trademarks or domain names; (c) use Company IP to disparage Company; (d) reverse engineer Company software; or (e) sublicense any rights without consent.

10.4 Partner Content. Partner grants Company a non-exclusive, royalty-free license to use Partner-created content incorporating Company IP for compliance monitoring and internal records.

11. REPRESENTATIONS AND WARRANTIES

11.1 Mutual Representations. Each Party represents and warrants that:

(a) It has legal power and authority to enter into this Agreement;
(b) Execution does not conflict with other agreements;
(c) It shall comply with all applicable laws; and
(d) It is not subject to any investigation or enforcement action that would materially affect performance.

11.2 Partner Representations. Partner additionally represents that:

(a) All referrals are genuine based on actual contacts;
(b) Partner has obtained necessary consents from prospects;
(c) Partner shall not engage in deceptive or unlawful marketing; and
(d) Partner is not subject to restrictive covenants that would prohibit performance.

11.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

12. INDEMNIFICATION

12.1 Partner Indemnification. Partner shall indemnify, defend, and hold harmless Company and its officers, directors, employees, and agents from claims arising from:

(a) Partner's breach of this Agreement;
(b) Partner's violation of any law, including M.G.L. c. 93A;
(c) Partner's unauthorized marketing or misuse of Company IP;
(d) Any data breach or privacy violation caused by Partner; and
(e) Partner's failure to maintain a WISP as required by 201 CMR 17.00.

12.2 Company Indemnification. Company shall indemnify Partner from claims arising from:

(a) Defects in Products/Services causing harm to referred customers;
(b) IP infringement in Company-provided marketing materials; and
(c) Company's breach of this Agreement.

12.3 Procedure. The indemnified Party shall: (a) notify the indemnifying Party promptly; (b) grant sole control of defense and settlement; and (c) cooperate reasonably.

13. LIMITATION OF LIABILITY

13.1 Cap on Liability. EXCEPT FOR OBLIGATIONS UNDER SECTIONS 9, 12, AND CLAIMS ARISING FROM WILLFUL MISCONDUCT, FRAUD, OR VIOLATIONS OF M.G.L. c. 93A, NEITHER PARTY'S TOTAL AGGREGATE LIABILITY SHALL EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13.2 Exclusion of Consequential Damages. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS OR DATA, REGARDLESS OF THEORY OF LIABILITY.

13.3 Essential Purpose. These limitations apply even if any limited remedy fails of its essential purpose.

14. NON-SOLICITATION AND NON-CIRCUMVENTION

14.1 Non-Solicitation. During the term and for [____] months after termination, Partner shall not directly or indirectly solicit or recruit Company employees or contractors with whom Partner had material contact.

14.2 Non-Circumvention. During the term and for [____] months after termination, Partner shall not circumvent Company to deal directly with any Qualified Referral or referred customer to avoid Commission obligations.

14.3 Remedies. Breach of this Section would cause irreparable harm. The non-breaching Party may seek injunctive relief in addition to other remedies.

15. TERM AND TERMINATION

15.1 Initial Term. This Agreement commences on the Effective Date and continues for [____] year(s) ("Initial Term").

15.2 Renewal.

☐ Automatic renewal for successive [____]-year periods unless [____] days' notice of non-renewal.
☐ Terminates at end of Initial Term unless renewed by written agreement.

15.3 Termination for Convenience. Either Party may terminate upon [____] days' written notice.

15.4 Termination for Cause. Either Party may terminate immediately upon written notice if:

(a) Material breach not cured within [____] days of notice;
(b) Fraud, willful misconduct, or illegal activity;
(c) Insolvency, bankruptcy filing, or assignment for benefit of creditors; or
(d) Change in law making performance unlawful.

15.5 Suspension. Company may suspend Partner's referral activities upon reasonable belief of a violation, pending investigation.

16. EFFECTS OF TERMINATION

16.1 Cessation. Partner shall immediately cease all referral activities and marketing upon termination.

16.2 Pending Referrals. Qualified Referrals accepted before termination remain eligible for Commission if conversion occurs within the Referral Period, unless termination was for Partner's breach or fraud.

16.3 Final Payment. Company shall pay accrued Commissions within [____] days of termination.

16.4 Return of Materials. Within [____] days of termination, Partner shall: (a) cease use of Company IP; (b) remove Company references from websites and channels; (c) return or destroy Confidential Information; and (d) provide written certification of compliance.

16.5 Surviving Provisions. Sections 4.5, 5, 9, 10.1, 11.3, 12, 13, 14, 17, and 18 survive termination.

17. DISPUTE RESOLUTION AND GOVERNING LAW

17.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles.

17.2 Informal Resolution. Prior to formal proceedings, the Parties shall attempt good-faith negotiation between senior executives for not less than [____] days.

17.3 Mediation. If unresolved, the Parties shall submit to mediation in [________________________________], Massachusetts, before a single mediator.

17.4 Venue. Legal actions shall be brought exclusively in the state courts of [________________________________] County, Massachusetts, or the United States District Court for the District of Massachusetts. Each Party consents to personal jurisdiction and venue.

17.5 Jury Waiver. TO THE FULLEST EXTENT PERMITTED BY MASSACHUSETTS LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION ARISING OUT OF THIS AGREEMENT.

17.6 Attorney's Fees. In any action arising under this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and costs. Additionally, under M.G.L. c. 93A, § 9(4), a prevailing plaintiff in a consumer protection claim is entitled to attorney's fees and costs.

17.7 Chapter 93A Remedies. The Parties acknowledge that M.G.L. c. 93A provides for actual damages (minimum $25), treble damages for willful or knowing violations, attorney's fees, and injunctive relief. A demand letter under M.G.L. c. 93A, § 9(3) must be sent at least 30 days before filing suit.

18. GENERAL PROVISIONS

18.1 Entire Agreement. This Agreement, with all Schedules and Exhibits, constitutes the entire agreement and supersedes all prior agreements on the subject matter.

18.2 Amendments. Amendments require a written instrument signed by both Parties.

18.3 Assignment. Neither Party may assign without prior written consent, except Company may assign in connection with a merger, acquisition, or asset sale.

18.4 Notices. Notices shall be in writing, deemed given when delivered personally, by certified mail (return receipt), or overnight courier to the addresses above.

18.5 Force Majeure. Neither Party is liable for delays from causes beyond reasonable control (excluding payment obligations).

18.6 Severability. Invalid provisions shall be modified to the minimum extent necessary; remaining provisions continue in full force.

18.7 Waiver. Failure to enforce a right is not a waiver.

18.8 Counterparts. This Agreement may be executed in counterparts, each an original.

18.9 Electronic Signatures. Valid under M.G.L. c. 110G (Massachusetts Uniform Electronic Transactions Act) and the E-SIGN Act (15 U.S.C. § 7001 et seq.).

18.10 Order of Precedence. This Agreement controls over Schedules/Exhibits in case of conflict unless expressly stated otherwise.

19. SCHEDULES AND EXHIBITS

☐ Schedule 1: Ideal Customer Profile and Qualification Criteria
☐ Schedule 2: Commission Fee Table and Tier Structure
☐ Schedule 3: Approved Marketing Channels and Restrictions
☐ Schedule 4: Brand Guidelines and Approved Materials
☐ Exhibit A: Form W-9 / W-8BEN

SIGNATURE BLOCK

☐ Company has reviewed and agrees to all terms and conditions
☐ Partner has reviewed and agrees to all terms and conditions
☐ Legal counsel review completed for Company
☐ Legal counsel review completed for Partner

COMPANY:

Signature: [________________________________]

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

PARTNER:

Signature: [________________________________]

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

SOURCES AND REFERENCES

• Massachusetts Consumer Protection Act: M.G.L. c. 93A
• Attorney General Regulations: 940 CMR 3.00 et seq.
• Massachusetts Trade Secrets Act: M.G.L. c. 93, §§ 42-42A
• Data Breach Notification: M.G.L. c. 93H
• Data Security Standards: 201 CMR 17.00
• Data Safeguarding: M.G.L. c. 93I
• Right of Privacy: M.G.L. c. 214, § 1B
• Noncompetition Agreement Act: M.G.L. c. 149, § 24L
• Uniform Electronic Transactions Act: M.G.L. c. 110G
• Independent Contractor Test: M.G.L. c. 149, § 148B
• Interest on Contract Claims: M.G.L. c. 231, § 6C
• FTC Endorsement Guides: 16 CFR Part 255
• CAN-SPAM Act: 15 U.S.C. § 7701 et seq.