7 Key Clauses That Businesses Should Include in Their Referral Agreement

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Table of Contents

• 1. Nature of the Agreement
• 2. Exclusivity
• 3. Duration of Agreement
• 4. Referral Fees
• 5. Referral Process
• 6. Intellectual Property
• 7. Confidentiality and Privacy
• Key Takeaways

A referral agreement is a formal contract that two businesses sign to enable one party to refer customers or clients to the other party for a reward. Many businesses enter into referral agreements because they consider good referrals as a valuable and reliable source of revenue. If you wish to enter into a referral agreement with another business, you should have a contract that protects your interests. Otherwise, you may risk damaging the reputation of your business through poor referrals or unhappy customers. This article will highlight seven key clauses to include in any referral agreement. 

1. Nature of the Agreement

When creating referral agreements, it is essential to set out the details of the relationship between you and the other business. You should determine who will be the referrer and who will be the referee, as well as how you or the other business pay each other for the referral. For example, if a builder and a painter have a referral agreement, the builder (the referrer) refers his customers to a painter (the referee). The builder gets a fee for every customer they refer to the painter.

Referral agreements are also used to promote other businesses.

2. Exclusivity

You may want to include an exclusivity clause that prevents your referral partner from entering into similar arrangements with other businesses. On the other hand, your referral partner may want to prevent you from entering into other arrangements. An exclusive agreement may restrict future business opportunities for some businesses. However, other businesses may benefit from exclusive referral arrangements.

3. Duration of Agreement

The referral agreement should state the duration of the agreement. You may prefer the agreement to be a:

• short-term arrangement, such as two years; or
• long-term arrangement, such as an ongoing contract that only ends when one party ends the contract for any reason set out under your agreement.

An ongoing referral agreement is unlikely to have an exclusivity clause or a quota for a minimum number of referrals. The arrangement is flexible, especially for businesses that are looking for a reliable source of customer acquisition. On the other hand, a short-term agreement may be suitable if you partner with a business to promote a time-sensitive event. 

4. Referral Fees

You should set out the exact method for calculating referral fees in the agreement. For example, if Party A refers a lead to Party B (which later converts into a customer), then Party A may receive a flat fee from Party B.

Alternatively, you can generate referral fees based on commission.

5. Referral Process

It is critical to document how you would like the referral to occur. It can be as simple as one party providing the other party with details of the referral via email. However, you may want an online referral process where customers opt into the referral.

You may include details on how you will measure the effectiveness of the referral process. When negotiating your referral agreement, ask yourself the following questions:

• will you only accept leads that match your desired customer persona?; and
• how will you measure the return on investment of a customer referral over time?

Establish a minimum performance standard so you do not waste time or money receiving referrals that are not a good fit for your business.

6. Intellectual Property

It is beneficial to have a clause that allows you or the other business to grant the other a licence to use any relevant intellectual property. A license allows you to use the marketing resources of another business to make successful referrals. For example, you may want to promote a special deal from your referral partner on your website. A license will allow you to legally display their logo or other materials related to their business so that your customers can make an informed decision to buy services from your referral partner. The clause should also set out how each party will not disclose or misuse each other’s intellectual property.

7. Confidentiality and Privacy

A referral involves the transfer of personal information, such as the name and date of birth of a customer. The information should be kept confidential and comply with any privacy laws. A detailed confidentiality and privacy clause helps to clarify how you intend to handle personal information according to the law and the agreement.

Businesses that conduct referrals should inform customers that their details can be forwarded to third parties. Ideally, you should alert customers before they enter any personal details into online forms.  These include a checkbox option for customers to acknowledge that their details may be forwarded to third parties.

Furthermore, customers may start a dispute if your business gives their personal information to third parties without their knowledge. To ensure customer satisfaction, always request consent before disclosing personal information under the referral agreement.

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Key Takeaways

Referral agreements can help you formalise a mutually beneficial commercial relationship with other businesses. As a minimum, the key clauses you should include are: 

1. nature of the agreement;
2. exclusivity;
3. duration of the agreement;
4. referral fees;
5. referral process;
6. intellectual property; and
7. confidentiality and privacy.

If you need help drafting or reviewing a referral agreement, our experienced contract lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.