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).
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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).
- 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.
- 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
- 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.
- 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.
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.
- 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
- 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.
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.
- 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.
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,
(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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