Affiliate Agreement

This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the overstock.com Affiliate Program. As used in this Agreement, "we" means overstock.com, and "you" means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to overstock.com's site located at the URL www.overstock.com, or to the site that you will link to our site (and which you will identify in your affiliate application).

  1. Enrollment in the Affiliate Program
    To begin the enrollment process, you will submit a complete affiliate application via our site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (at our sole discretion) that your site is unsuitable for the Affiliate Program.

    Unsuitable sites include those that:
    • Promote sexually explicit materials
    • Promote violence
    • Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
    • Promote illegal activities
    • Include "overstock" or variations or misspellings thereof in their domain names
    • Otherwise violate intellectual property rights

    If we reject your application, you are welcome to reapply to the Affiliate Program at any time. You should also note that if we accept your application and your site is thereafter determined (at our sole discretion) to be unsuitable for the Affiliate Program, we may terminate this Agreement.
  2. Links on Your Site
    Once you have been notified that your site has been accepted into the Affiliate Program, you may provide on your site one or more of the links available via reporting.net.
  3. Order Processing
    We will process product orders placed by customers who follow special links from your site to our site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms; process payments, cancellations, and returns; and handle customer service. We will track sales made to customers who purchase products using special links from your site to our site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time at our discretion.
  4. Referral Fees
    We will pay you referral fees on certain Product sales to third parties. For a Product sale to be eligible to earn a referral fee, the customer must follow a Special Link from your site to our site, select and purchase the Product using our automated ordering system, accept delivery of the Product at the shipping destination, and remit full payment to us. We will not pay referral fees on any Products that are added to a customer's Shopping Cart after the customer has reentered our site (other than through a Special Link), even if the customer previously followed a link from your site to our site. Gift certificates are not eligible to earn referral fees.
    You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement. Products that are eligible to earn referral fees under the rules set forth above are referred to as "Qualifying Products."
    In addition, you may not directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money or awarding of any benefits) for using Special Links on your site to access our site (e.g., by implementing any "rewards" program for persons or entities who use Special Links on your site to access our site). If we determine, in our sole discretion, that you have offered any person or entity any such consideration or incentive, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement.
  5. Referral Fee Schedule
    You will earn referral fees based on qualifying revenues according to referral fee schedules to be established by us. "qualifying revenues" are revenues derived by us from our sales of qualifying products, excluding costs for discounts, shipping, handling, gift-wrapping, taxes, service charges, credit card processing fees, and bad debt. The current referral fee schedule is:

    • 5% of Qualifying Revenues from all product departments other than Electronics and Computers.
    • 4% of Qualifying Revenues from the Electronics and Computer departments.

  6. Referral Fee Payment
    We will pay you referral fees on a monthly basis. Approximately 30 days following the end of each month, we will send you a check for the referral fees earned on our sales of Qualifying Products that were shipped during that month, less any taxes that we are required by law to withhold. However, if the referral fees payable to you for any month are less than $20.00, we will hold those referral fees until the total amount due is at least $20.00 or (if earlier) until this Agreement is terminated. If a Product that generated a referral fee is returned by the customer, we will deduct the corresponding referral fee from your next monthly payment. If there is no subsequent payment, we will send you a bill for the referral fee.
  7. Policies and Pricing
    Customers who buy products through this Affiliate Program will be deemed to be customers of overstock.com. Accordingly, all overstock.com rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Affiliate Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect products that you already have listed on your site, you may not include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
  8. Identifying Yourself as an Affiliated Site
    We will make available to you a small graphic image that identifies your site as an Affiliate Program participant. You must display this logo or the phrase "In association with overstock.com" somewhere on your site. We may modify the text or graphic image of this notice from time to time. In addition, we encourage (but do not require) you to include a Special Link on your site to the overstock.com home page at http://www.overstock.com. You may not make any press release with respect to this Agreement or your participation in the Affiliate Program without our prior written consent, which may be given or withheld in our sole discretion. Please review our Rules Regarding Affiliate Communications and Promotion. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that overstock.com supports, sponsors, endorses or contributes money to any charity or other cause).
  9. Limited License
    We grant you a nonexclusive, revocable right to use the graphic image and text described in Section 8 and such other images for which we grant express permission, solely for the purpose of identifying your site as a Affiliate Program participant and to assist in generating product sales. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.
  10. Responsibility for Your Site
    You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:

    • The technical operation of your site and all related equipment
    • Creating and posting Product descriptions on your site and linking those descriptions to our catalog
    • The accuracy and appropriateness of materials posted on your site (including, among other things, all Product-related materials)
    • Ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
    • Ensuring that materials posted on your site are not libelous or otherwise illegal
    • We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.

  11. Term of the Agreement
    The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to our site, and all overstock.com trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Affiliate Program. You are only eligible to earn referral fees on our sales of Qualifying Products occurring during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
  12. Modification
    We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
  13. Relationship of Parties
    You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
  14. Limitation of Liability
    We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total referral fees paid or payable to you under this Agreement.
  15. Disclaimers
    We make no express or implied warranties or representations with respect to the Affiliate Program or any products sold through the Affiliate Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
  16. Independent Investigation
    YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
  17. Miscellaneous
    This Agreement will be governed by the laws of the United States and the state of Utah, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Salt Lake City, Utah, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

Amendment to Affiliate Program Agreement

The above referenced Agreement is hereby amended as follows:

1. FlexTrack is an option in the Be Free BFAST system and is designed to help Overstock.com and an Affiliate track the transactions of large numbers of users and manage fee payment information. Depending on how the Affiliate implements it, FlexTrack may allow access to more detailed information about transactions than BFAST's current Affiliate reporting functions provide.

2. In consideration of Overstock.com's agreement to enable FlexTrack tracking and reporting by Overstock.com, AFFILIATE agrees to the following conditions:

a. You agree to continue to comply with all of the conditions of the current Overstock.com Affiliate Program Agreement

b. Overstock.com acknowledges that you may wish to enter into relationships with third parties ("Subaffiliates") in connection with the Overstock.com Affiliate Program. Whether you elect to enter into relationships with Subaffiliates is at your sole discretion. Overstock.com will not be a party to any agreement that you have with a Subaffiliate and you are not authorized to make any commitments on behalf of Overstock.com to such Subaffiliates, including commitments regarding payment of fees to the Subaffiliates by Overstock.com or commitments for licenses to Overstock.com trademarks, trade names or other intellectual property. Subaffiliates are not third party beneficiaries of your Agreement with Overstock.com. In addition, it is your responsibility to (i) request existing and new Subaffiliates post a privacy policy within six months of your request and (ii) ensure that your Subaffiliates not engage in any actions that would be in violation of your agreement with such Subaffiliate to the extent such actions would cause you to violate your Agreement with Overstock.com.

c. You agree to provide to Overstock.com an up-to-date list of your Subaffiliates (site name and url) on a bimonthly basis so that Overstock.com may, in its sole discretion, review the Subaffiliate web sites.

d. You agree to terminate your relationship with a Subaffiliate as it pertains to the Overstock.com Affiliate Program if a Subaffiliate engages in any activity that is prohibited as provided by this Amendment, and if you do not terminate such subaffiliate within ten business days from Overstock.com request, Overstock.com reserves the right to withdraw your site and all of its subaffiliates from the Affiliate Program.

e. You agree not to use any of the information provided via FlexTrack technology to identify unique individual customer activity conducted by Overstock.com, nor to allow others to use the technology to identify such unique customer activity, nor to access such unique customer activity or data. You further agree not to transfer or reuse any data generated by FlexTrack

f. You are solely responsible for technical implementation of the bfinfo parameter and for maintaining proper link syntax.

g. During the process of implementation, You will conduct appropriate testing and verification of bfinfo tracking including link creation, click-thru, ordering, and reporting as necessary to insure correct and dependable operation of the FlexTrack tracking feature

3. All other terms of the above referenced Agreement shall remain the same.

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