This Agreement contains the complete terms and conditions that apply to your participation in the LoCarbDiner.com Affiliate Program. As used in this agreement, “you” means the applicant or affiliate, which may be an individual or an entity; and “we” means the proprietors of the LoCarbDiner.com business entity, licensed in Maryland.

Your participation in the LoCarbDiner.com Affiliate Program is solely for this purpose: to legally advertise our website to receive commissions on products purchased on our website by new customers referred directly via click-throughs from your website.

1. Application for Participation

To apply for participation in the LoCarbDiner.com Affiliate Program, you will need to submit the application form via our website, completed in full. On the application, you are required to name all of the websites where you intend to add the link to our website. We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner.

At this time, we are accepting websites located in the United States or Canada and written in English only.

We may reject your application if we determine that your website is unsuitable for the LoCarbDiner.com Affiliate Program for any reason at our sole discretion. If we reject your application, you are welcome to reapply at any time.

Unsuitable sites include those that:

· Promote sexually explicit materials;
· Promote violence;
· Promote discrimination based on race, gender, religion, nationality, disability, sexual orientation, age, or political affiliation;
· Promote illegal activities;
· Include obscene, defamatory, slanderous, hateful, or politically disruptive material (by our discretion);
· Include unapproved references to LoCarbDiner.com (or variations or misspellings thereof) in domain names or elsewhere on the website; or
· Violate our intellectual property rights in any way.

In addition, if we accept your application, we reserve the right to periodically review your website(s) for suitability. If we determine at any time that your website is no longer suitable for our Program or that you are engaging in unprofessional marketing practices, we may suspend or terminate this Agreement at our sole discretion.

In addition to the reasons stated above, your participation in our program may be suspended or terminated for any of the following reasons:

· Inappropriate advertisements such as false claims or misleading hyperlinks;
· Spamming such as mass email or mass newsgroup postings;
· Advertising on other websites without our prior approval;
· Taking unfair advantage of your affiliate relationship to place excessive orders for your family or friends;
· Offering rebates to customers who place orders through your affiliate link;
· Copying the look and feel of our website on your website;
· Utilizing or distributing software downloads that potentially enable diversions of commission from other affiliates in our program.
· Engaging in any hostile activity intended to cheat or “hack” into our business applications;
· Participating in other affiliate programs that are incompatible with the LoCarbDiner.com Affiliate Program.

2. Linking from Your Website to Ours

Once you have been approved for participation in the LoCarbDiner.com Affiliate Program, you may display links to our website on your website(s). The links will serve to identify you as a member of our Affiliate Program and will establish a tracking link from your site to ours for the purpose of accumulating commissions on sales.

We will provide you with several textual and graphic HTML options via email. Each of the HTML blocks provides a link directly to our homepage, http://www.locarbdiner.com.

The HTML code will include specifications for size, proportion, font, color, and wording. You are not allowed to make any modifications to these specifications without prior approval from us.

The graphic image or link must appear by itself, with reasonable spacing between each side of the image or link and other graphic or textual elements.

The HTML code also includes special codes for tracking all purchases made via the link. To permit accurate tracking, reporting, and commissions accrual, you must assure that the HTML code that we provide has not been altered. We will not be liable to you with respect to any failure by you to install and use the HTML code that we provide correctly, including to the extent that such failure may result in any reduction of amounts payable to you. (If you would like to test your link, please contact us directly and we will assist you with the test.)

You are not allowed to include any pricing information from our website with your affiliate link. If you choose to describe specific items that we offer, you are solely responsible for the accuracy of your representation and for keeping your information up-to-date. For example, we are not responsible for notifying you if an item you describe is no longer available through our site.

You are solely responsible for the development, operation, content, and maintenance of your website(s). We disclaim all liability for the materials on your website(s). Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating thereto, in the development, operation, content, and maintenance of your website(s).

You hereby agree that your website(s) will not, in any way, copy or resemble the look and feel of our website nor will you create the impression that your site is our site or is a part of our site. You also hereby agree that your site will not contain any content of our site or any materials, which are proprietary to LoCarbDiner.com, except with our prior written permission.

You may not display the LoCarbDiner.com graphic or logo in any manner that implies sponsorship or endorsement by LoCarbDiner.com beyond your participation in the LoCarbDiner.com Affiliate Program. You may not use the LoCarbDiner.com graphic or logo to disparage LoCarbDiner.com, its products or services, or in a manner which, in our reasonable judgment, may diminish or otherwise damage LoCarbDiner.com’s reputation.

3. Order Processing

We are responsible for all aspects of order processing and fulfillment for your referred customers. Our responsibilities include price setting and price adjusting at our discretion, removal of out-of-stock or discontinued items from our catalog, preparing order forms, processing payments, order fulfillment and shipping, processing order cancellations and returns, and handling all related customer service.

We are also responsible for tracking sales to your referred customers when these referrals come to our website through the approved affiliate link on your website. We will make available to you reports summarizing this sales activity. The form, content, and frequency of these reports may vary from time to time at our discretion.

4. Payments to Affiliates

Payments will be made to Affiliates in accordance with the following terms:

(a) New Customers only. Sales made to former customers of the LoCarbDiner are not eligible for commissions. Exceptions will be made for orders from former customers whose last direct order was placed more than one year prior to the date of the referred order.

(b) New Orders only. Only the first order from the new customer is eligible for commission, plus any subsequent orders made by the same customer through your Affiliate link within 30 days of the first order.

(c) Referred Orders Only. Only the order(s) placed via your website’s link to our website are eligible for commissions. If your referred customer subsequently makes another order without linking from your site, you will not receive commission on the subsequent order.

(d) Your Personal Orders. You, the affiliate, are subject to the same terms as your referred customers. Assuming you are not already a LoCarbDiner customer, only your first order and your personal orders placed within 30 days of your first order are eligible for commissions.

(e) Commission Rate. The commission rate is 15% of each qualifying net sale. A net sale is defined as the amount of the sale after sales taxes have been deducted and before shipping fees are added on.

(f) Maximum Commission per Sale. The maximum commission payable for any one sale is $15.00. That is, for any order that is greater than $100 net, the commission will be $15.00.

(g) Premium Commission Rate. In any calendar month in which your referred sales accruals are $500.00 or more, your commission rate for that month will be 20% with a maximum payment of $20.00 per order.

(h) Monthly Payments. Commissions are paid monthly, within 30 days of the close of each month.

(i) Minimum Payments. Monthly commissions are paid only on accruals of $50.00 or more. Accruals less than $50.00 are carried over to the next month.

(j) Final Payment. Upon your withdrawal or termination from the LoCarbDiner.com Affiliate Program, all unpaid accruals including those less than $50.00 will be paid in full. If your termination is due to any activity in violation of this policy statement, such as spamming, you forfeit your rights to your final payment.

(k) Preferred Payment Method. Commissions are normally paid through your PayPal account. Although you are not required to have a PayPal account, we recommend that you acquire one for security and privacy purposes. You can apply at: www.paypal.com.

(l) Alternate Payment Methods. If you do not have a PayPal account, your commissions will be paid by business check mailed to the mailing address you provide. If you prefer that we post credits to your credit card account or bank account, contact us to make these arrangements.

(m) Income Tax Reporting. When you earn more than $400.00 within one calendar year, we are required to report your earnings to the IRS. For this purpose only, we will ask you to provide your Social Security Number or Business License Number before we make any payments to you beyond $400.00 within the calendar year.

(n) Customer Returns and Refunds. If your referred customer receives a refund for products previously purchased and for which you were eligible for commission, the commission accrued on the refunded amount will be deducted from your next commission payment. (If there is no subsequent payment, we will send you a bill for the amount you owe back to us.)

(o) Fraudulent Orders. If your referred customer uses a fraudulent payment method such as a stolen credit card or an illegal check, you will not be eligible for commission on the fraudulent order.

A Summary Report of sales and commission accruals will be provided to you with your monthly commission payment. For a month in which no commission is paid, the report will be provided to you by email. (Commission reports are not currently available through our website.)

5. Your Marketing Restrictions

We have a strict NO SPAMMING policy for members of the LoCarbDiner.com Affiliate Program. Spam is defined as any unsolicited email – regardless of its content, and regardless of the presence of an “unsubscribe” link. You will not send bulk emails to harvested email addresses. You will not purchase email lists for the purpose of advertising your association with the LoCarbDiner. You will not include any references to LoCarbDiner.com in any mailings to purchased or acquired lists, even if the lists are represented to you as “safe” or “opt-in” lists.

Similarly, unsolicited faxing or “blast faxing” is strictly prohibited.

If you maintain an opt-in email list of visitors to your website, you may request our approval for using this list to advertise your affiliate relationship with LoCarbDiner.com in your emails to your list. Once you have received our written approval, you will be allowed to use the same HTML links that we provided for your website in your emails to your personally-maintained list.

News Group and ListServe postings must adhere to the rules of the News Group. Usually, blatant advertising is not allowed but occasional conversational mentions and subtle signature lines may be allowed under the rules of the News Group.

You are not allowed to rebate, pay or otherwise compensate customers for placing an order through your affiliate link to our website.

If you would like to purchase newspaper or magazine advertising, you will need our prior written approval of your proposal for including any reference to LoCarbDiner.com in such advertising.

Affiliates of LoCarbDiner.com may bid for or buy Google Adwords and/or use other advertising or pay-per-click programs. You are strictly prohibited, however, from purchasing keywords or keyword phrases that utilize the term "LoCarbDiner” or any derivation or misspelling thereof.

6. Additional Legal Terms, Limitations and Disclaimers

(a) Term of this Agreement

The term of this Agreement will begin on the date we notify you of our acceptance of your LoCarbDiner.com Affiliate Program application. The Agreement will continue until terminated at any time by either party by giving the other party written notice of termination by email or mail. 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, all LoCarbDiner.com logos, and all other materials provided by us to you pursuant to this Agreement. 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.

(b) Modifications

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 and by notifying all current affiliates by email. Modifications may include, but are not limited to, changes in the scope of available commissions, commission 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 program following our announcement of a new or changed agreement will constitute binding acceptance of the change.

(c) 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 website or otherwise, that reasonably would contradict anything on our website.

(d) Limitation of Liability

We will not be liable for indirect, special, accidental, or consequential damages, or any loss of revenue, profits, commissions, or data arising in connection with this Agreement or the LoCarbDiner.com 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 Program will not exceed the total referral fees paid or payable to you under this Agreement.

(e) Limited License

We grant you a non-exclusive, non-transferable, revocable right to use the graphic image and text and such other images for which we grant express permission, solely for the purpose of identifying your site as a LoCarbDiner.com 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, without our prior written approval. 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. We may revoke your license at any time by giving you written notice.

(f) Disclaimers

We will not be liable for indirect or accidental damages (loss of revenue, commissions) due to affiliate tracking failures, loss of database files, and any results of "intents of harm" to the Program or our website.

We make no expressed or implied warranties or representations with respect to the LoCarbDiner.com Affiliate Program and/or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage).

We make no claim that the operation of the affiliate program and our website will be error-free, and we will not be liable for the consequences of any interruptions or errors.

(g) Confidentiality

Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties to this Agreement agrees that all information, including the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, or any of our Affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates.

All information of a personal or confidential nature gathered by LoCarbDiner.com through our Affiliate Program such as your contact information including e-mail address shall under no circumstances be divulged to any third party without your express permission, unless required to do so by law. It is understood by all participants in the LoCarbDiner.com Affiliate Program that we may contact you periodically by email, mail, or phone.

(h) Representations and Warranties

You hereby represent and warrant to us that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.

The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate:

(i) Any provision of law, rule, or regulation to which you are subject;
(ii) Any order, judgment, or decree applicable to you or binding upon your assets or properties;
(iii) Any provision of your by-laws or certificate of incorporation; or
(iv) Any agreement or other instrument applicable to you or binding upon your assets or properties.

No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.

There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.

The development, operation, and contents of your site do not infringe upon the copyright, trademark, or any other right of any person or entity.

You are an adult of at least 21 years of age.

(i) Fraud

If you commit fraud or falsify information in connection with your application and/or participation in the LoCarbDiner.com Affiliate Program, this Agreement will be terminated immediately. In addition, you will be liable to LoCarbDiner.com for any and all damages that LoCarbDiner.com suffers as a result of such actions. In such circumstances, we will not hesitate to pursue all legal causes of action against you to the fullest extent possible under the law.

(j) Governing Law

This Agreement will be governed by the laws of the United States and the State of Maryland, 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 Maryland, 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 a provision or any other provision of this Agreement.

(k) Indemnification

You hereby agree to indemnify and hold harmless the LoCarbdiner.com business entity and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect hereof) arise out of or are based on:

(i) Any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party,
(ii) Any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or
(iii) Any claim related to your site, including, without limitation, content therein not attributable to us.

7. Final Agreement

By submitting your application to participate in the LoCarbDiner.com Affiliate Program, 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 website. You have independently evaluated the desirability of participating in this program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.