Lobster Gram Affiliate Agreement

This document was last modified on August 07, 2006.

Please read the entire agreement. Click the I Accept These Terms link at the bottom to continue with your affiliate application.

1) Term of the Agreements: The term of this Agreement will begin upon our acceptance of your Affiliate 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. You are only eligible to earn referral fees on sales occurring during the term.

2) 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 this site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

3) Limitation of Liability: You acknowledge and agree that under no circumstances shall our Company, its employees, independent contractors, authors, agents, representatives, assigns and successors be liable to you, or any other person or entity, for any direct or indirect losses, injuries, special or incidental or consequential damages of any kind (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOODWILL, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any Company web site, or arising from or in connection with the use of the Program Materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of Company’s services, content or Program Materials, including without limitation any losses due to server problems, computer or other equipment failure, or due to incorrect placement of HTML., regardless whether based upon breach of contract, negligence or any other claim or cause of action, In the event of any network downtime, computer or technical error we will not be held responsible for any lost hits, signups, traffic or income.

3.1) Notwithstanding the foregoing express limitations of liability, you acknowledge and agree that should Company, its officers, employees, successors, or assigns be held liable to you for damages, injuries or losses of any kind, directly or indirectly resulting from your participation in the Program, that the maximum total dollar amount of liquidated damages for any and all of your claims, injuries, damages or losses shall not exceed a total of ten dollars ($10.00).

4) Indemnification: You will indemnify, defend and hold us harmless from any and all damages, losses and costs (including attorneys’ fees) resulting from any act taken by you in violation of these Terms and Conditions, and/or any failure to act when required to under these Terms and Conditions.

5) Termination Conditions: You AGREE that any of the following actions by you or anyone under your control will result in ALL of your accounts being terminated without commission being paid, ALL of your unpaid commissions being FORFEITED to Company, and will further result in you being precluded from ever participating in any of our Programs:

5.1) Dissemination of unsolicited bulk E-mail, Instant Messages, Chatroom, Newsgroup, ICQ or IRC postings or any other existing or future forms of SPAM;

5.2) Promoting or dealing in content such as: Warez, passwords, unauthorized copies of copyrighted MP3's, bestiality, rape, child pornography, violence, or any other illegal activity. This includes use of prohibited content in hidden meta tags, text, links, graphic(s) or any HTML;

5.3) Attempting to mislead or defraud Company in any way; including, but not limited to acts of credit card or check fraud, excessive chargeback/refund/reversals activity (above 1% combined of total sales), click fraud, identity theft, money laundering, Or if we find that you have cheated in any Program, including other webmaster affiliate programs not operated by Company, we reserve the right in our sole and absolute discretion to cancel your participation in any and all Programs, at any time, without prior notification, and you will not be paid commissions for any of the Programs in which you have participated or allowed back into any of our Programs.

5.4) Directing traffic by using a misleading domain name on the Internet that may either deceive a person into viewing material that is obscene in nature or deceive a minor into viewing material that is harmful to minors on the Internet; OR infringes on copyrights, trademarks or patents of others.

5.5) Hijacking traffic;

5.6) Providing incorrect, false or incomplete account information; ALL fields must be filled out. In the case of affiliates who do not operate a website, they must specify their marketing plans for the site in the box provided for the website URL (i.e. Search engine marketing on GoogleTM and YahooTM; print ads; Newsletters; e-mails; etc.).

5.7) Generating hits or signups as a requirement to enter or obtain access to goods or services on your (or someone else's) web site;

5.8) Engaging any sort of mechanism or effort that falsely generates hits or signups, including signups by the Affiliate. If you wish to perform a test signup you must first E-mail the program administrator at affiliate@livelob.com;

5.9) Violating or infringing any rights of any person or entity, including without limitation, any copyrights, trademark rights, patent rights, rights of publicity, privacy rights or any other intellectual, personal or property right violation or infringement;

5.10) Cheating or defrauding any other affiliate program or sponsor;

5.11) Misrepresenting our site(s) in any manner, including but not limited to, misrepresenting the cost of membership, terms of membership, or content contained within our site(s);

5.12) Misuse of Lobster Gram’s® registered Trademarks, Service Marks and Trade Names including: Lobster Gram® Deluxe, Lobster Gram®, Lobster Gram® Deluxe Surf & Turf, Lobster Gram® Surf & Turf, New England Prime™ Deluxe, Maine Marvel™ Deluxe, Crustacean Sensation® Deluxe, Boston Party Gram™, Maine Shore Clambake™ Deluxe, 1-800-LIVE-LOB®, www.livelob.com®, Gift Gram®, Seashore® Deluxe, Gourmet Gram®. Misuse includes, but is not limited to unauthorized use of these trademarks, service marks and trade names in pay-per-click search engines, organic search engine results, print advertising, radio advertising, TV and Internet TV advertising and outdoor ads. Lobster Gram has invested a significant amount to create goodwill in these marks and vigorously defends the exclusive use of them for its own use. Affiliates may use these terms ONLY with written permission from Lobster Gram management.

5.13) Unauthorized modification, alteration or use of Program Materials in violation of the terms of this Agreement;

5.14) You acknowledge and agree that Company shall have the right to deny or withhold payment from you and to terminate you from the Program if there has been an abnormal number of chargebacks or cancellations of memberships or subscriptions which have been referred to Company's web sites through your web site or marketing activities including but not limited to e-mail solicitations and newsletters. You further acknowledge and agree that Company shall have the right, in its sole and exclusive judgment, to determine what constitutes an abnormal number of chargebacks or cancellations of memberships or subscriptions.

6) Warrants to Company: In consideration of Company providing you with Program Materials and the other benefits of the Affiliate Program, you hereby represent and warrant to Company as follows:

6.1) That your web site and all materials, content, goods and services offered through and in associations with your web site do not and shall not at any time:

6.1a) violate any law, statute, ordinance or regulation or promote illegal activities;

6.1b) contain or promote obscene materials or child pornography;

6.1c) contain any materials which depict persons in a manner to suggest that they are under the age of eighteen years;

6.1d) contain or promote harmful or indecent matter to minors;

6.1e) promote violence;

6.1f) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;

6.1g) contain content which is defamatory, libelous, hateful or unlawfully threatening, abusive or harassing;

6.1h) include any of the Company’s trademarks or service marks, or variations or misspellings thereof, in your domain names; or

6.1i) send unsolicited bulk, junk, Spam e-mail or any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature.

6.2) That you have full authority to enter into this Agreement;

6.3) That you will provide upon request of Company and within 24 hours of such a request accurate and complete information to Company concerning your identity, bank account, address or other required information;

6.4) That all obligations owed to third parties with respect to the activities contemplated to be undertaken by you pursuant to this Agreement are or will be fully satisfied by you, so that the Company will not have any obligations with respect thereto;

6.5) That nothing on, in or associated with your web site violates any laws, regulations, rules or customs, including but not limited to violation of regulations set forth at 18 U.S.C. Section 2257 et seq., or violate or infringe any rights of any person or entity, including any intellectual property rights, including, without limitation any copyrights, patent rights, trademark rights, trade secret rights, or rights of publicity, or any person’s or entities’ privacy rights or any other personal or proprietary rights of any kind; and

6.6) That you will comply with all applicable federal, state and local laws in the performance of your obligations hereunder; and that each email address submitted by you has originated with a customer of yours and has not been created or obtained fraudulently or in contravention of the Terms and Conditions of this Agreement.

6.7) You certify that at the time of your application you or members of your family do not own or have a controlling or minor interest or derive revenue or benefits in any way in a competing business model to Lobster Gram’s® present operations. You further agree that should you during the term of active affiliate status and so long as you receive affiliate commissions and for a period of one (1) year from the final commission payment, you will not own any part of or cause to exist a competitive business to Company’s existing operating business. If these provisions are not adhered to, the penalty for such actions shall be a cash remedy payable immediately upon discovery of such operations of no less that 51% of gross monthly sales from the initial date of active commerce and an immediate halt to all competing operations.

7) Correctness of Data Supplied by You: You must complete the required fields during the Sign-Up process, and provide us with your full name and valid contact information including e-mail and mailing address (no P.O. box). We will e-mail you notices about our Programs and your account based on the information that you provide to us.

8) Spam Policy: We do not tolerate spam (unsolicited bulk e-mail) in any form and will immediately remove anyone from our program without being paid accumulated commissions upon receiving substantiated spam complaints. Please read and familiarize yourself with our Spam Guidelines and E-Mail Solicitation Policies, located here.

9) Paid Search and Paid Inclusion Policies: Lobster Gram®, LobsterGram®, Livelob® and it's trademarked names (Lobster Gram® Deluxe, Lobster Gram®, Lobster Gram® Deluxe Surf & Turf, Lobster Gram® Surf & Turf, New England Prime™ Deluxe, Maine Marvel™ Deluxe, Crustacean Sensation® Deluxe, Boston Party Gram™, Maine Shore Clambake™ Deluxe, 1-800-LIVE-LOB®, www.livelob.com®, Gift Gram®, Seashore® Deluxe, Gourmet Gram®) are NEVER to be bid on as keywords in any Paid Search Network by an affiliate, including but not limited to Google Adwords, Overture.com, MSN.com, Findwhat.com, etc. This includes all derivatives, misspellings and/or phrases that include Lobster Gram’s® trademarked properties. This prohibition also extends to Paid Inclusion into Search engines as well. When bidding on term ‘lobster’, the term ‘gram’ must be included as a negative keyword. All violators' accounts will be terminated immediately and you will have your commission assets surrendered to the company. Affiliates may petition Lobster Gram® Affiliate Management to a limited usage agreement based on marketing plans approved by Company Management.

9.1) You may use the following trademarked name(s) in the text but NOT the headline of advertisements that are bought/bid on at pay-per-click search engines. For instance:

Great Gourmet Lobster Gifts
Lobster Gram® delivers live Maine
lobsters to your door with all the trimmings. (aff).

9.1a) You may use trademarked terms in the Display URL of Paid Search Engines ONLY if they are displayed after the "slash" following a URL that you are the owner of. (See below examples). At no time will direct linking to our home page be allowed, you MUST have a non-redirected page destination for Pay Per Click traffic to land on. Lobster Gram will be happy to supply content and product listings for this and all landing pages on your site(s).
At no time can 'lobstergram.com' or 'livelob.com' appear in the Display URL, even if it is after the slash.

Display URL Examples:

http://www.yourdomain.com/livelob

http://www.yourdomain.com/lobster_gram

http://www.yourdomain.com/lobstergram

9.2) You may not bid on keywords, terms or phrases that violate or infringe on a copyrighted or trademarked property. Many merchants are restricting the use of their copyrighted/trademarked properties in Paid Search Networks and Paid Inclusion Search Engines, thus we must respect their rights and ask that you refrain from using any and all trademarked terms where the merchant has specifically forbid the use of their copyrighted/trademarked properties names and phrases in the ads' text and keyword/phrase bidding.

9.3) You may not make any inflammatory or untrue statements in your campaigns. To avoid conflicts and to protect the integrity of the Lobster Gram® brand, Company reserves the right to suspend any affiliates activities and thus their commissions for phrases that Company determines make untrue or inflammatory claims of our products, services or websites. To avoid such measures, please forward all ad text and proposed keywords/phrases you wish to bid on to the Affiliate Manager for approval or editing, PRIOR to your submitting it to Paid Search Network providers or Paid Inclusion Search Engines.

9.4) You may link only to approved pages on our site, only after the user has visited a page on your own domain. You may create gateway pages and sales pages, but the content must be approved in advance by the Affiliate Manager. Failure to provide us with the URL of all sites/pages that are being used to promote Livelob.com Programs, prior to their being made public through the Internet, will be grounds for suspension from the program and possibly forfeiture of all commissions.

9.5) All ads placed with either Paid Search Networks or Paid Inclusion Search Engines must have the following text in their advertising text: aff or affiliate in the body text or headline of the advertisement. This is to identify the ad as an affiliate reseller to potential clients. Where the Paid Search Network or Paid Inclusion Search Engine provide a field for you to identify your link as a sponsored listing (i.e. Google Adwords), you must complete that field and identify yourself as a reseller/affiliate. You then do not have to add the text listed above in the text of your advertisement’s body text or headline. Failure to follow this guideline will be grounds for suspension from the program and possibly forfeiture of all commissions.

10) Federal Tax Payments: If you reside in the U.S. or its territories, you are required to complete a W9 form with the correct information and enter a Federal Tax ID or Social Security Number or we will be forced to withhold tax as required by law. We will register a 1099 for all U.S. domestic entities to which we issue combined yearly payments of $600.00 or more. Failure to provide this information will cause your payment to be delayed or withheld.

11) Payments To Affiliates: You will earn a % commission on all products shipped to customers who purchase products from our sites through your site's approved links, shipping and taxes are not calculated as part of commissionable sales. The base commission % calculated on an affiliates sales generated through approved links to our sites is 10% and may be adjusted at the sole discretion of the Affiliate Program Administrators.

All affiliates will be paid via a PayPal® Account. If you do not have a PayPal® Account, you may create one here.

All Payments via PayPal accounts will be paid on a monthly commission period schedule. A $50 minimum payout amount applies to all Lobster GramR Affiliate Program Accounts, no payouts will be made on account balances less that $50.00. Accounts not reaching the $50.00 minimum in a given payment period, will have their funds rolled forward into the next payment period, until the account reaches the $50.00 minimum and then will be paid out for the appropriate payment periods.

Payments made on commissions earned during a given monthly commission period will be disbursed one month in arrears. Thus, the following schedule will be applied to all affiliates commissions. PayPal payments will be made 30 days after the monthly commission period closing date (end of the month). Example: During the Commission Period of 9/1 to 9/30 an affiliate earns $100.00 in commissions; that revenue will be paid out approximately 30 days from the commission period end date (in this case 9/30). That would make 11/1 the payout date for the commission period.

This policy has been instituted to protect against fraud and excessive chargebacks and refunds against an individual affiliate account. In all cases, where fraud, refunds, chargebacks, reversals or other revenue loss items are associated with an affiliates' account, the amount of the revenue loss item will be deducted from the affiliates commission account balance when the charge is incurred. These deductions will be noted in your account payment details. Excessive refunds or chargebacks will also be grounds for suspension of the affiliates' active status until an investigation can be completed as to the source of the issues.

11.1) An affiliate may not be a downline of themselves. You may not sign up additional websites as a second tier of yourself, in other words, no double dipping. You may not under any circumstances list yourself as an affiliate downline of yourself or any entities that you may own or have partial ownership of or in any way control, influence, cause to have influence or derive income or benefits from. Decisions on the viability of second tier affiliates status as an affiliates’ downline will be at the discretion of the Program Administrator.

11.2) The Lobster Gram® Affiliate Program reserves the right to refuse access to any affiliate the Program Administrators deem a risk to the security and integrity of the program. Affiliates located in countries with higher than average fraud rates (at-risk) will not be eligible to participate in the Company's Lobster Gram® Affiliate Program. Due to excessive fraud issues and investigations, some countries have been identified as a high-risk country of origin and will not be accepted by Company's processing partners.

11.2a) In the rare case of an exception to Section 11.2 of this Agreement, the applicant will be required to disclose full bank information, as well as supply a facsimile of their passport. In addition, the applicant or current affiliate will be required to furnish a facsimile of their driver's license or other state or country of origin identification in their own name and be able to verify their identity through a trusted third party such as a bank official. In no cases will existing affiliates or future applicants from countries deemed "at risk" by the Program Administrators receive commissions until the specifications above are met.

11.2b) Existing affiliates approved into the program from “at risk” countries prior to changes made in this Agreement that affect At Risk affiliates, will be subject to the following provisions.

11.2b(1) Any and all commissions will be forfeited or subject to delays in payments of up to 360 days from the date of sale once Administrators have determined a country to be At Risk and affiliate from those countries are no longer able to become affiliates of the program.

11.2b(2) Have no recourse to reclaim any commissions forfeited in 11.2b(1) should applicants from At Risk countries be barred from program participation.

12) 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 PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

13) Miscellaneous: This Agreement will be governed by the laws of the United States and the State of Illinois, 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 Chicago, Illinois, 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 be 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.

14) Severability: If any provision of this Agreement is held void or unenforceable to any extent, such provision shall be deemed excised and removed to make the remaining provisions enforceable. Unless otherwise specifically provided, the provisions of this Agreement shall survive its termination.