Affiliate Terms and Conditions

1. INTRODUCTION
   SphereTester is the trading name of Ponder Solutions Limited (registered in the UK, company number 08255059). This Affiliate Agreement (the “Agreement”) is made and executed by and between SphereTester (The “Affiliate Program”), and the entity registered to be a “SphereTester” Affiliate” (The “Affiliate”) on the application page located at http://spheretester.com/affiliate-area/.
   This Agreement sets forth the standard Terms and Conditions that apply to the use of the SphereTester Affiliate Program, including, but not limited to, the SphereTester software. Participation in the SphereTester affiliate program indicates your agreement to abide by these Terms and Conditions. By completing and sending the SphereTester Affiliate Application Form to us, and/or the downloading of any Creative (as defined below) and placing them on the affiliate site, and/or accepting any reward, bonus or commission from SphereTester, and/or the affiliate’s use of the SphereTester Affiliate services, the affiliate shall be deemed to have read, understood and agreed to be bound by the terms and conditions set out below.
2. AFFILIATE MEMBERSHIP REQUIREMENTS AND RESPONSIBILITIES
   In order to become a member of and participate in the Affiliate Program, you are required to meet and maintain the following eligibility criteria. SphereTester reserves the right to terminate this Agreement and cancel your membership in the Affiliate Program if you fail to comply with these requirements at any time.
   1. Membership
      1. Personal Details: The Affiliate must provide SphereTester affiliate program with complete, accurate and up to date information when applying to become a member of the Affiliate Program, including its full name, email address and any required detail. The Affiliate must not use a false name or email address to create the Affiliate account.
      2. Multiple Accounts: The Affiliate is only entitled to set up one (1) Affiliate membership account (“Account”) per entity. The Affiliate may use its Account in connection with as many domains and/or websites he owns or otherwise has the right to use. In the event that SphereTester has reasonable grounds to believe that the Affiliate has set up multiple Accounts, SphereTester shall terminate all such accounts and withhold payment of any commission or other monies payable to these Accounts.
      3. Age Restrictions: The Affiliate must be at least eighteen (18) years of age to become an Affiliate or otherwise participate in the Affiliate Program.
      4. Authority. The person signing this Agreement represents to SphereTester that he or she has all requisite power and authority to enter into this Agreement and that this Agreement will constitute the legal, valid and binding obligation of Affiliate. Such person hereby agrees to indemnify and hold SphereTester harmless from any and all claims, damages and expenses (including, without limitation, attorneys’ fees) arising from any breach of this Agreement.
   2. Creative
      1. SphereTester will provide the Affiliate with access or copies to the marketing and promotional material of SphereTester as reckoned suitable for the Affiliate (the “Creative”). The Creative shall be obtainable from the “Creatives” section located on the Affiliate Program site. The Creative is presented as is and without guarantee of any kind.
      2. The Affiliate may make use of the Creative on its websites solely for the purpose of marketing SphereTester, until such time as SphereTester upon reasonable prior notice, instruct the Affiliate to cease presenting the Creative.
      3. The Affiliate may not modify, revise, adjust or translate the Creative without SphereTester’s prior written consent. In addition, the Affiliate may not perform an act of removing or altering any trademark, copyright or other proprietary notice or designation, contained in or displayed on any Creative.
      4. Under no circumstances shall the Affiliate engage in any e-mail marketing or promotion with respect to SphereTester, except as explicitly set forth herein. In the event that the Affiliate has an “opt-in” e-mail address list whereby the individuals or entities on the list have expressly chosen to receive e-mails from the Affiliate (an “Opt-in List”), the Affiliate may make a written request to SphereTester to send e-mails regarding SphereTester to the individuals or entities on the Opt-in List. In the event in which SphereTester agrees to approve such request, the Affiliate shall abide by all of the applicable laws, rules and regulations including but not limited to, those relating to e-mail marketing and “spamming.”
         Without limiting any of the details above, the Affiliate shall (a) not send any e-mails regarding SphereTester: (i) to any individual or entity that has not requested such information; (ii) to any type of “Safe List” (herein defined as a mutually beneficial mailing list of subscribers all agreeing to send and receive information from one another) or through any type of “Safe List” service; or (iii) as part of a confirmation or thank you letter as a result of a posting to a classified advertisement website, and (b) must always include an “unsubscribe” option at the top and bottom of any e-mail regarding SphereTester.
      5. Along with the above-mentioned limitations, the Affiliate shall not (a) engage in any broadcasting, faxing, and/or telemarketing practice referring to SphereTester, (b) engage in any “use of forced traffic” (herein defined as practices such as adding clickable icons next to keywords within text that will lead visitors, if clicked, to a different website, or using pop-up banners hiding a website’s own banners, and other similar practices) or engage in any other form of predatory marketing and advertising techniques in any of its business activities relating to SphereTester, (c) make any false, misleading or disparaging representations or statements with respect to SphereTester or (d) engage in any other practices which may unfavorably affect the prestigious image, credibility or reputation of SphereTester, including but not limited to, using any Website in any manner, or having any content on any Website, that (i) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or (ii) violates any intellectual property or other proprietary rights of any third party.
      6. Banners and links may not be placed within unsolicited e-mail, unauthorized newsgroup postings, chat rooms or through the use of “bots.” 2.2.7 Traffic generated in any illegal manner, as set forth above in sections 2.2.1 to 2.2.6, will not be counted towards commissions payable to the Affiliate in terms of this agreement. SphereTester will place the Affiliate’s account under review and all funds due to the Affiliate will be withheld pending an investigation into the account. Furthermore, SphereTester reserves the right to terminate this agreement immediately if it comes to our attention that the Affiliate is using spamming as an advertising method, false advertising or participating in any other form of marketing activity which could discredit SphereTester.
   3. Activities:
      1. The Affiliate must generate a minimum new client revenue contribution of 1 new active client in a rolling three-month period or SphereTester will have the option to terminate this Agreement in its entirety.
      2. The Affiliate Web Site shall not, in any way, copy or resemble the look and feel of, or create the impression that it is, part of SphereTester.
      3. The Affiliate Web Site shall at all times during the Terms of the Agreement comply with the policies identified herein and on the Affiliate Program Site, and shall not engage in any activities in violation of this Agreement, or SphereTester will be entitled to take actions as described in section 2.2.7.
      4. The Affiliate Web site must not be involved or assist in the conduct of illegal activity of any kind or promote business opportunities or investments which are not permitted under law.
      5. The Affiliate shall execute its obligations in accordance with the industry’s highest relevant standards and in accordance with all applicable laws, rules and regulations.
      6. If the Affiliate becomes aware of any information concerning any Leads, Prospective Platforms or Affiliates that might lead to a demand, claim, or liability of or against SphereTester by a third party, the Affiliate shall promptly notify SphereTester of this information.
      7. SphereTester reserves the right to monitor the Affiliate Web Sites at any time to determine whether the Affiliate is in compliance with this Agreement.
3. AFFILIATE FEES
   1. The Affiliate shall establish a mechanism of driving traffic, on a non-exclusive basis, to SphereTester, commencing on the date of this agreement.
   2. The Affiliate shall provide the traffic at its cost and shall exercise it at its own responsibility, consistent with good business ethics.
   3. Unless otherwise agreed the Affiliate fee is:
      • 25% – if the Affiliate has referred 1-9 users
      • 30% – if the Affiliate has referred 10-19 users
      • 40% – if the Affiliate has referred 20-49 users
      • 50% – if the Affiliate has referred more than 50 users
        of revenues  generated by clients referred by the Affiliate. Higher commission will only be paid for clients referred after a threshold has been reached.
   4. SphereTester may, from time to time, set out prerequisites for registering customers and thereby reserve the right to reject registration of customers and/or close their accounts in the event of non-compliance by customers.
   5. SphereTester system shall track the Active Clients and provide the Affiliate with online access to a back-office interface to monitor its activities and reports. Payments will only be paid if the customer is tracked by our internal online tracking system from the time the link is initiated on your affiliate webpage to the time of the sale. No payments will be paid for activities and users that cannot be tracked by our internal online system.
      Payments may be reduced for amounts attributable to credit card fraud or any other kind of fraud or transaction being reversed.
      Payments may be reduced for amounts attributable to the usage of Affiliate related or generic discount codes issued by SphereTester.
   6. Unless otherwise agreed payment for Active Leads shall be collectable and due on the first working day of the applicable month given that thirty (30) days have elapsed since the initial purchase. Payment may be made by SphereTester through PayPal or other means as SphereTester may desire. SphereTester reserves the right to modify payment terms and/or Active Lead Fees at any time with reasonable notice to the Affiliate. The payment may be less any applicable taxes and fees that SphereTester may be required by law to withhold.
   7. SphereTester may reverse any commission paid to the Affiliate, and subtract said commission from future payments to the Affiliate, if SphereTester receives a charge back on a transaction from any customer referred by the Affiliate.
   8. In the event that SphereTester deems that a possible fraudulent activity has been executed by the Affiliate or a client referred by the Affiliate, SphereTester reserves the right to withhold any commissions which have been generated through this action. If such an occurrence takes place, SphereTester has full authority to terminate this Agreement in its entirety as well as withhold any commissions due to the Affiliate and/or the trader(s) the Affiliate referred.
   9. SphereTester reserves the right to change payment terms at any time, for any reason without prior notice.
   10. The Affiliate will be required, from time to time, to positively verify its account with SphereTester in order to receive payments due to the Affiliate. This is to protect both the Affiliate and SphereTester from fraud. This verification process might require the submission of documents proving identity and physical address details.
   11. SphereTester also reserves the right to monitor your Web Site at any time to determine whether you are in compliance with this Agreement.
4. LIMITED LICENSE TO USE THE SPHERETESTER AFFILIATE PROMOS
   1. The Affiliate acknowledges and agrees that SphereTester own the copyright and all other intellectual property rights to SphereTester and all documentation, software, hardware, devices, equipment, together with all “SphereTester Property” including, but not limited to trademarks, copyrights, trade secrets and patents, and to the Affiliate Program and all materials provided on the affiliate program site, including but not limited to the Creatives, all statistic and other information about Active Leads, Leads, Sub Affiliates, Prospective Affiliates, to tools, know-how, methodologies, templates, processes, documents, web sites unless otherwise expressly indicated. All rights are reserved by SphereTester. To the extent, if any, that any SphereTester Property’s ownership does not vest in an automatic way in SphereTester by reason of this Agreement, or otherwise, the Affiliate hereby attributes and transfers to SphereTester, upon the creation thereof, all rights, interest and title that the Affiliate may have in and to such SphereTester Property, including the right by SphereTester to recover and sue for past, present and future violations thereof.
   2. During the term of this Agreement, SphereTester grants the Affiliate a non-exclusive, non-transferable, revocable, limited right to access the affiliate program site and those of participating clients through the display of creative materials solely in accordance with the terms of this Agreement, as well as to display the trademarks and names associated with the Platforms (collectively, the “SphereTester Marks”) for the sole purpose of performing the Affiliate’s obligations under this Agreement and of linking the affiliate site to a participating site, solely for the purpose of identifying the affiliate site as a participant in a SphereTester Affiliate Program. The Affiliate agrees and acknowledges that: (a) it will use the Creatives only as authorized hereunder; (b) it will use the Creatives in strict accordance with all legal requirements and with all standards, guidelines, and format(s) requirements specified by SphereTester; (c) the Creatives are the sole property of SphereTester and shall remain as such; (d) nothing in this Agreement gives the Affiliate any ownership right on the Creatives and any use thereof by the Affiliate shall be done for the benefit of SphereTester.
   3. SphereTester shall grant the Affiliate a non-exclusive right to publish, market and promote SphereTester logos for the purpose of this Agreement.
   4. Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales or employment relationship between SphereTester and the Affiliate.
   5. The Affiliate hereby represents and warrants that during the term of this Agreement, and for a period of two (2) years thereafter, regardless of the cause of termination, the Affiliate shall not:
      1. Divert, or attempt to divert, any business of, or any customers of SphereTester, to any other competitive establishment, by direct or indirect inducement or otherwise;
      2. Employ, or seek to employ, any person employed by SphereTester, or any other person who is at the time operating or employed by or at any other “SphereTester” business, or otherwise directly or indirectly induce such persons to leave their employment therewith.
         In addition, for a period of two (2) years after the termination of this Agreement, regardless of the cause of termination, the Affiliate shall not, either directly or indirectly, for himself, or on behalf of or in conjunction with any other person, persons, partnership or corporation, own, maintain, engage in, or participate in the operation of any “SphereTester” type business. In the event of a breach of this provision, the Affiliate shall pay $50,000.00 to SphereTester for each office plus 20% of the gross sales of each office he is associated with for a two (2) year period.
   6. It is hereby agreed that the Affiliate neither has nor will have any proprietary right, of any kind whatsoever, in any matter whatsoever that relates to the SphereTester’s systems and software, directly or indirectly, including in relation to the software, the rights to use the software and the distribution rights, and its only right under this Agreement is the right to market to its clients the service enabling them to perform financial actions in various currencies via the Company’s systems all as set forth in this Agreement. For avoidance of doubt, it is hereby stipulated that all of the proprietary rights in and to the data files and the data itself which may be generated and which result from the client’s actions via the Company’s systems, shall vest in the Company alone, and Affiliate hereby waives any and all demands and/or causes of action in this regard.
5. CONFIDENTIALITY
   1. Each Party hereby undertakes to hold all Confidential Information of the other Party in strictest confidence. In this context, each Party undertakes not to disclose or to convey to anyone else any information relating to the other Party’s business.
   2. For the purposes of this Agreement, the term “Confidential Information” shall mean: any written and/or printed material, any material that is stored in any computer program or computer disk of any kind whatsoever, and likewise any copy of any of the aforementioned material, and including ancillary material and further including information, data, plans, software, trade secrets, formulas, marketing methods, client lists, and any other matter or material which include confidential information or which may be used as a source of confidential information – all in connection with any matter pertaining to the business of any Party or arising therefrom or howsoever related thereto.
   3. Each of the Parties hereby represents and warrants that the other Party’s Confidential Information belongs solely to, and is the property solely of, said other Party.
6. TERMINATION
   1. SphereTester reserves the right to terminate this Agreement at any time it sees fit, with or without reason, the termination taking effect immediately upon notice to the Affiliate.
   2. Upon termination of this Agreement: (a) each Party shall return to the other Party all property of the other Party in its possession or control (including all Creative and all Confidential Information; (b) The Affiliate shall immediately remove all SphereTester banner/s from its site and disable any links from the affiliate site to SphereTester and will be entitled to unpaid commissions, if any, earned by the Affiliate on or prior to the date of termination, and (c) all rights granted to Affiliate hereunder will immediately cease.
7. LIMITATION OF LIABILITY
   SphereTester shall not be liable for direct, indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the referral program, even if we have been advised of the possibility of such damages. In the event that SphereTester shall, nevertheless, be regarded liable, the aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to the Affiliate under this Agreement. Nothing in this Agreement shall be construed to provide any rights, remedies or benefits to any person or entity not a party to this Agreement. SphereTester’s obligations under this Agreement do not constitute personal obligations of its directors, officers or shareholders. Any liability arising under this Agreement shall be satisfied solely from the referral fee generated and is limited to direct damages.
8. INDEMNIFICATION
   Affiliate agrees to indemnify, defend and hold harmless the “Indemnified Party” (the “Indemnified Party” being SphereTester, managers, directors, employees, subcontractors, agents, and officers) with regards to any demand, claim, debt, cause of action, or liability, including reasonable attorneys’ fees, to the extent that such action arises out of or is based upon: (a) Affiliate’s willful misconduct or gross negligence; or (b) Affiliate’s breach of any warranty, covenant, representation, or obligation under this Agreement; (c) any representation, condition, warranty, guarantee or indemnity concerning SphereTester granted by the Affiliate to any Prospective Affiliate, Lead or other third party.
   Notice. In claiming any indemnification hereunder, the Indemnified Party shall give the Affiliate prompt written notice of any claim which the Indemnified Party believes falls within the range of the foregoing paragraphs. If it so chooses, the Indemnified Party may, assist in the defense, at its own expense, provided that the Affiliate shall oversee such defense and all negotiations relating to the settlement of any such claim and further provided that without the Indemnified Party’s written consent – which shall not be unreasonably withheld – any settlement aimed at binding the Indemnified Party shall not be final.
9. FORCE MAJEURE
   If by reason of failures of telecommunications, internet service providers, labor disputes, riots, act of God, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions (including, but not limited to the refusal or failure by a government agency to issue a license needed for any performance pursuant to this Agreement, and/or any regulation, law, or embargo preventing the performance contemplated hereafter), or other causes beyond the control of SphereTester or the Affiliate, SphereTester is unable to perform in whole or in part its obligations as set forth in this Agreement, then SphereTester shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make SphereTester liable to the User. Notwithstanding anything herein to the contrary, the Party whose performance has been hindered, delayed, or prevented by a force majeure event shall however do its best to resume its performance hereunder as soon as reasonably possible and to abate any damages caused by its non-performance hereunder.
10. GOVERNING LAW
    This Agreement shall be interpreted in accordance with the plain English meaning of its terms, and the construction thereof shall be governed by the laws of England and Wales.
11. INDEPENDENT CONTRACTORS
    The Parties to this Agreement are independent contractors. Neither Party is a representative, agent, or Related Entity of the other Party. Neither Party shall have any authority, power or right to enter into any agreement or on behalf of or for the other Party, or incur any liability of or obligation, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed with the design to create an agency, association, partnership or joint venture between the Parties or to impose any liability ascribable to such a relationship upon either Party.
12. NO WAIVER
    The failure of either Party to exercise any right under this Agreement or enforce or promote strict performance by the other Party of any provision of this Agreement shall not be construed as a relinquishment or waiver to any extent of such Party’s right to rely upon or assert any such right or provision in that or any other instance; rather, the same shall be and remain in effect and full force. Each waiver shall be described in a written instrument signed by the waiving Party.
13. MODIFICATIONS AND AMENDMENTS
    Any modification or amendment of any provision of this Agreement shall not be valid unless set forth in a written instrument signed by both Parties.
14. ASSIGNMENT
    All the terms and provisions of this Agreement shall inure to and be binding upon the benefit of the Parties to this Agreement and to their respective successors, heirs, legal representatives and assigns. The Company may assign any and all of its rights and obligations hereunder to any other company in the SphereTester Group. Affiliate may not assign any rights or obligations hereunder to a third party without the express written consent of the Company. In the event that there is a change of control of the Affiliate, Affiliate shall so inform the Company and Company shall have the right, at its discretion, to terminate this Agreement forthwith.
15. ENTIRE AGREEMENT
    This Agreement constitutes the entire agreement between the affiliate and SphereTester in connection with the Affiliate Program and supersedes all prior agreements between the parties regarding the subject matter contained herein. Each party shall specifically object to and shall not be bound by any term, condition, or other provision other than those authorized by this Agreement’s provisions (whether or not it would materially modify this Agreement) and which is proposed by the other Party in any correspondence or other document, unless the other Party specifically agrees to such provision in writing.
    By marking the “I accept” checkbox, the Affiliate hereby fully agrees with all terms and provisions described in this agreement.

Last updated: 12/06/2015