1. Overview.

1. Overstock.com, Inc., a Delaware corporation, ("Company”), operates the www.overstock.com website. As part of its website, Company offers the Overstock.com Affiliate Program ("Program"), through which approved Publishers providing marketing services through owned or third party websites, subscription services, promotional services, and/or syndicated services are granted a limited, non-exclusive right to: (i) advertise and promote Company’s goods and services and the website in a manner in compliance with this Agreement and the Publisher Service Agreement between Publisher and Commission Junction, Inc. (“CJ”), (ii) post or circulate an approved graphical or textual internet hyper-link (“Link”) to the website, and (iii) direct visitors to the website (the specific URL) designated by the Company (“Destination Site”). Each of Company and Publisher are parties to agreements with CJ and are participants in the CJ Network (the “CJ Program”). This Agreement provides terms and conditions applicable to your membership in the Program that are in addition to or modify any terms and conditions that you have agreed to pursuant to your Publisher Service Agreement with CJ (“Publisher Service Agreement”). Any capitalized term herein that is not defined shall have the same meaning as in the Publisher Service Agreement.

2. Publishers are offered the opportunity to earn a commission for referring visitors to the Destination Site who complete a Transaction required under the Program. The commission rate will be set forth within the Program Terms and may be changed from time to time by Company with 7 days written notice through the Network Service (via the “Replace” option) with effect from the 8th day (or such later date as specified by Company). Payment of commissions earned by Publisher for valid Transactions shall be made by Company through CJ in accordance with the terms of the CJ Program. No long-term commitment is required.

 

2. Approval.

1. Participation in the Program is subject to Company’s approval. Prospective Publishers must first submit an application to Company through CJ in order to become an “approved” Publisher eligible to post Links to the Destination Site and earn commissions. After the application has been submitted, Company will have the option of approving or declining the application for any reason or no reason.

2. If approved, the Publisher will have already acknowledged its acceptance of the these Terms and Conditions by having clicked through the “Apply To Program” button, having checked the box stating “Yes, I have read and accepted” the terms and conditions and having clicked the button to “Continue”, thereby assenting to the Special Terms and Conditions of the Program between Company and Publisher (also referred to as this “Agreement”). This Agreement shall apply only to approved Publishers who accept the Special Terms and Conditions of the Program and only Publishers who accept this Agreement may participate in the Program.

3. Other than the payment of the commission, Publisher shall have no claims to any additional compensation, commissions or business derived by or through a Destination Site.

4. Participation in Program does not constitute an employment, broker or agency relationship between Publisher and Company nor does it create any partnership, joint venture, franchise, or sales representative relationship between the parties.

5. Publisher agrees that CJ may share with Company, Publisher’s contact information provided by Publisher during registration in the CJ Network. This information includes, but is not limited to, Publisher’s name, address, phone number and email. Company will take reasonable steps to maintain the confidentiality of such information.

 

3. Restrictions.

1. Publisher may post any number of Links to the Destination Site on Publisher’s website. The position, location, prominence and nature of such Link on Publisher’s website shall comply with any requirements specified in this Agreement, but shall otherwise be at Publisher’s discretion.

2. Publisher shall not make any representation, warranty or other statement concerning Company, the Destination Site, Company’s products or Company’s services, except as expressly authorized by this Agreement.

3. Publisher shall not advertise or promote advertisements that are misleading and/or which claim inflated discounts, in Company’s sole discretion. Publisher may only advertise or promote advertisements which state the actual discount that a visitor may derive by clicking on a Link. Publisher shall not advertise Company’s products by taking into account a coupon price without prominently noting that a coupon is being applied to achieve a lower product price. For example, if Company has a product for sale of the Destination Site for $100, but there is an active Company 10% off coupon for such product, Publisher may only advertise the product for $90 by stating in the advertisement that the $90 price is only available when the coupon is applied – i.e., “get this [product] when you use this 10% off coupon.”

4. Publisher shall not send any email or other form of electronic message or advertisement containing Company’s name, product, website address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from Publisher or unless Publisher has a pre-existing business relationship with the recipient. In addition, Publisher shall provide all recipients of any such communication with the ability to “opt out” of further communications from Publisher by permitting such recipient to call a toll free number or permitting such recipient to send an “unsubscribe” email to Publisher. Publisher agrees that Company may, upon reasonable prior written notice, audit Publisher to ensure compliance with this section.

5. In the process of performing the advertising services herein, Publisher shall not install or cause to be installed spyware on any person’s computer. In the process of performing the advertising services herein, Publisher shall not install or cause any program, device or mechanism to display an advertisement that partially or wholly covers or obscures the content of any website.

6. Publisher shall not use “www.overstock.com” or any variation thereof as the domain name or URL in any search engine or like marketing campaign without Company’s prior written consent.

7. Publisher shall not bid on any word, keyword or term in Pay-Per-Click Search Engines (PPCSEs) that contains Company’s registered or unregistered trademark; any word, keyword or term which is a variation of such registered or unregistered trademark; or any other word, keyword or term that is likely to cause confusion regarding Publisher’s affiliation with Company. Examples of prohibited words, keywords and terms include, but are not limited to the following: overstock.com; overstock; overstocked; overstock website; overstock shopping and overstock auctions. The foregoing list is for guideline purposes only and is not a complete list of words, keywords or terms which infringe or may infringe on Company’s trademarks.

8. Publisher may bid on keyword strings. Examples of keyword strings include: “overstock coupons,” “overstock.com down comforters,” “overstock.com sporting goods,” “overstock collectibles,” “overstock bedding,” and “overstock apparel.”

9. Publisher shall not bid on any of Company’s competitors’ trademark terms in conjunction with the Program. This prohibition includes, but is not limited to the following competitors’ trademarks: Target, Wal-Mart, Best Buy, Amazon, Kmart, Sears and KB Toys.

10. Publisher shall not use any “fat-finger” or “typosquatter” domain name to redirect Internet traffic to Publisher’s website or the Destination Site without Company’s prior written approval. A fat-finger or typosquatter domain name is a domain name that amounts to a misspelling of any registered or unregistered Company trademark. Examples of fat-finger or typosquatter domain names include, but are not limited to the following: “iverstock.com,” “pverstock.com,” lverstock.com” and “overstocks.com.”

11. Publisher shall not place the word “overstock” or any variation of or similar spelling of the word “overstock” in Publisher’s top-level domain name. Examples of this prohibition include, but are not limited to the following: “overstock.mydomain.com” or “mydomain.overstock.com.” The word “overstock” may be included in Publisher’s URL provided it is substantially as follows: “mydomain.com/overstock.”

12. Publisher shall not employ the use of any manual or automated software, device, application, robot or any other technology which attempts to intercept or redirect traffic or referrals to or from any website without the prior written consent of Company.

13. Publisher shall not “frame” the Destination Site so that it appears to viewers of Publisher’s website that such viewer is viewing the Destination Site. Publisher shall not do anything to its website or any website it controls that makes such website appear as though it is the Destination Site.

14. Publisher shall not employ the use of any software, device, application, robot or technology which forces Publisher’s URL into a visitor’s bookmark when such visitor attempts to bookmark the Destination Site.

15. Publisher shall not represent to visitors that Company’s products may be purchased by or from Publisher or through Publisher’s website. Publisher shall not sell Company’s products. Publisher shall not accept any order from a visitor, purchase the product ordered by the visitor from Company and direct Company to fulfill or drop-ship such product directly to the visitor. Company shall have the sole right and responsibility for processing all orders made by visitors. Publisher acknowledges that all agreements relating to sales to visitors shall be exclusively between Company and the visitor.

16. Publisher shall use the product images, text, copy and descriptions as provided by Company without material alteration. Publisher may alter the size of product images, text, copy and descriptions.

17. Publisher shall not redistribute Company’s product feeds or intellectual property to a website which can reasonably be viewed as Company’s direct competitors. For avoidance of doubt, Company’s direct competitors include, but are not limited to the following: Google Base, Froogle, shopping.com, shopzilla.com, nextag.com and other similar comparison shopping engines.

18. Publisher shall not re-sell Company’s services, as described in this Agreement, to other parties. Publisher shall not act as an intermediary seller of access to Company’s services, as described in this Agreement. Publisher agrees to refer all inquiries from third parties about participation in the Program directly to Company.

19. Publisher shall not issue any press release which mentions or discusses Company except upon prior written consent of Company.

20. Publisher shall not use Company’s product images, text, copy, descriptions, trade names, trademarks, service marks, logos or other designations of Company on any website other than Publisher’s registered CJ website, without the prior written consent of Company.

21. Publisher understands that Company will not enter into this Agreement with any Publisher who is domiciled in or a resident of the State of New York. As such, Publisher represents, warrants and certifies that it is not domiciled in or a resident of the State of New York. Publisher acknowledges that should it be domiciled in or a resident of the State of New York, significant damages could arise against Company.

22. Publisher shall not take any action the Company reasonably determines in its sole discretion is inconsistent with its policies, practice, business, marketing and preferences. Publisher shall comply with all of Company’s reasonable requests.

 

4. Commission.

1. Subject to Publisher’s compliance with all terms set forth in this Agreement, Publisher shall earn a commission as set forth in the Program Terms if a visitor completes a Transaction on the Destination Site after having last arrived at the Destination Site via Publisher’s Link. A “Transaction” is defined as a visitor having purchased a Commissionable Item. A Commissionable Item is any product or service on the Destination Site except products or services within Company’s real estate, auctions and cars tabs, products or services redeemed by gift cards, gold redemption services and cellular telephone contracts.

2. Company reserves the right to correct or reverse any amount owed to Publisher if, in Company’s reasonable judgment, (i) Publisher has acted in a fraudulent manner; (ii) Company has overpaid Publisher; or (iii) Publisher is obligated to indemnify Company for actual or anticipated losses.

 

5. Term and Termination.

1. The term of this Agreement shall be continuous, unless and until either party properly terminates this Agreement, in accordance with the following: (i) Company shall provide Publisher with seven (7) days written notice via the Network Service (via the “Expire” option), except as provided for below; and (ii) Publisher shall use the automated system within the CJ Network to drop the Program and Publisher shall comply with Section 5(D)(v) below.

2. This Agreement may be terminated immediately by CJ at Company’s request in the event that Publisher: (i) violates the PSA or; (ii) violates this Agreement.

3. Upon any termination of this Agreement, Company and Publisher will be released from all obligations and liabilities to the other party occurring or arising after the date of such termination or the transactions contemplated hereby, except with respect to those obligations which by their nature are designed to survive termination as provided herein; provided that no such termination will relieve Publisher from any liability arising from any breach of this Agreement occurring prior to termination.

4. Upon termination of this Agreement, (i) Company’s acceptance of additional referrals obtained through Publisher shall not constitute a continuation or renewal of this Agreement or a waiver of such termination, (ii) Publisher shall be entitled only to those unpaid commissions, if valid, earned by Publisher on or prior to the date of termination; (iii) Publisher shall in no event be entitled to commissions with respect to any amount of referrals delivered after the date of termination; (iv) all rights and licensees of Publisher hereunder shall immediately terminate; and (v) Publisher shall cease all uses of any trade names, trademarks, service marks, logos and other designations of Company and the Program.

 

6. Confidentiality.

1. In the performance of or otherwise in connection with this Agreement, Company may disclose to Publisher certain Confidential Information. “Confidential Information” as used in this Agreement shall mean all information regarding Company that is not generally known to the public and that Company deems confidential. Publisher will treat such Confidential Information as confidential and proprietary both during the Term and after the Term for the greater of a period of three (3) years or the maximum period permitted by law. Publisher agrees to: (a) not use the Confidential Information for any purpose other than in performing its obligations as set forth in this Agreement; (b) take suitable precautions and measures to maintain the confidentiality of the Confidential Information; and (c) not disclose or otherwise furnish the Confidential Information to any third party other than Publisher’s employees who have a need to know the Confidential Information to perform Publisher’s obligations under this Agreement. All Confidential Information supplied by Company is supplied “as is” without express or implied warranties of any kind. Company further disclaims the accuracy and completeness of the Confidential Information. Upon the termination or expiration of this Agreement, Publisher shall return or destroy all Confidential Information in Publisher’s possession.

 

7. Miscellaneous.

1. Publisher shall defend, indemnify and hold Company harmless against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) attributable to or related to: (i) Publisher’s breach of this Agreement; (ii) Publisher’s violation of applicable law, rule, regulation or order; (iii) Publisher’s technology, methodology, information, text, images, or service provided or supplied pursuant to this Agreement; (iv) Publisher’s violation of a third party’s intellectual property (including, but not limited to patent, trademark, copyright and trade secret); and (v) Publisher’s violation of its confidentiality obligations (collectively, a “Claim”).

2. COMPANY SHALL NOT BE LIABLE TO PUBLISHER FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR BUSINESS). THIS LIMITATION SHALL REMAIN IRRESPECTIVE OF WHETHER SUCH ACTION IS BASED IN CONTRACT, TORT, EQUITY OR ANY OTHER LEGAL THEORY. THIS LIMITATION SHALL REMAIN WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTHWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE MAXIMUM LIABILITY COMPANY SHALL HAVE TO PUBLISHER ARISING OUT OF THIS AGREEMENT IS THE TOTAL AMOUNT PAID TO PUBLISHER DURING THE SIX (6) MONTH PERIOD PRECEDING THE ARISE OF THE CLAIM.

3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AS TO THE QUALITY, PERFORMANCE, RESULTS, INFORMATION, SERVICES AND TECHNOLOGY IN ANY WAY RELATED TO THIS AGREEMENT.

4. Publisher shall not assign, transfer or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of Company. Any attempted assignment, transfer or delegation in violation of the provisions of this provision will be void.

5. The provisions of this Agreement are severable. If any provision of this Agreement, or the application thereof to any person or circumstance, shall be deemed invalid, illegal or unenforceable under any applicable law, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement.

6. No delay or failure by Company in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.

7. The rights and remedies of Company are not mutually exclusive; that is, the exercise of one or more of the provisions hereof shall not preclude the exercise of any other provision hereof.

8. This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Agreement.

9. By applying to the Program, using the automatic facility located on the CJ Network Service, and by clicking–through the “Apply To Program” button and clicking on “Continue” after checking the box acknowledging the Publisher’s reading of these Special Terms and Conditions, Publisher executes, accepts, enters into, and becomes party to this Agreement, effective on the date of such acceptance to this Agreement.

10. Company reserves the right to modify the terms and conditions of this Agreement in its sole discretion upon seven (7) days written notice through the Network Service (via the “Replace” option) with effect from the 8th day (or such later date as specified by Company) to Publisher. If any modification is unacceptable to Publisher, Publisher’s sole recourse is to terminate this Agreement by expiring the relationship and/or rejecting the new Program Term offered. Publisher’s continued participation in the Program by accepting the newly offered Program Term with new terms and conditions for this Agreement constitutes Publishers binding acceptance to the change.

11. This Agreement shall be governed by the laws of the State of Utah, without application of conflicts of law principles. The exclusive forum for any actions or disputes related to or arising out of this Agreement shall be in the state courts in Salt Lake City, Utah and, to the extent that federal courts have exclusive jurisdiction, in Salt Lake City, Utah. Publisher consents to such venue and jurisdiction.

12. The relationship between the parties hereto is not an employment relationship, joint venture, partnership or the like. Each party is an independent contractor vis-à-vis one another. Neither party has authority to act on behalf of the other or to bind the other by any promise or representation unless specifically authorized in writing.

13. Nothing in this Agreement is intended; nor shall any provision be construed to benefit a third party.

14. The following provisions shall survive the termination of this Agreement: Sections 6 and 7.

15. Official notices to Company should be sent to:

 

Overstock.com, Inc.
6350 South 3000 East
Salt Lake City, UT 84121
Attn: Affiliate Program

BY APPLYING FOR THE OVERSTOCK.COM PUBLISHER PROGRAM AND CLICKING ON THE “ACCEPT” ICON BUTTON YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY THE TERMS OF THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS AGREEMENT.