You must read, agree to, and accept the terms and conditions contained in this user agreement before you may participate in our affiliate program.

In this agreement, the term "Affiliate" refers to you (the applicant). Wherever the agreement refers to "you" or "your", it means "the Affiliate." The terms "we", "our", "us" and "Spherical Magic" throughout this user agreement refers to the company Spherical Magic Corporation, all of its related websites and facilities. The term "customer" refers to individuals who visit, contact or purchase products or services from and through Spherical Magic. The term "TOS" refers to Terms of Service.

Becoming a Spherical Magic Affiliate

Eligibility

Spherical Magic will only knowingly provide the Affiliate Program to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may participate in the Affiliate Program only under the supervision and consent of a parent or legal guardian who agrees to be bound by this Agreement. The Affiliate Program is not intended for children under the age of 13.

Opening an Account

To become an Affiliate and have the right to participate in the Affiliate Program, you must enroll in the Affiliate Program by opening an Affiliate account ("Account") with mTracker through its online registration process. A link will be provided to you below.

Contact Information

You must provide us with accurate and complete contact and payment information when you open an Account. You must immediately notify us if any of your contact or payment information changes. This can be done in your Account Administration Area. If you do not provide us with complete, accurate, and updated contact information, you may not be eligible to receive commissions based on your participation in the Affiliate Program.

Account Security

You will be provided a password when you open an Account. You will be solely and exclusively responsible for keeping your password confidential and all use of your password and Account, including, without limitation, any use by any third party. You must notify us immediately if you believe your password has been or may be obtained or used by any unauthorized person or entity. In addition, you must notify us immediately if you become aware of any other breach or attempted breach of the security of your Account or the Affiliate Service.

Linking to our site

After you have enrolled as an afflilate, you can provide one or more links from your site to our site. We will provide you with special link formats designed for tracking and reporting for all links between your site and our site. You will be solely responsible for properly utilising the link formats. We will offer assistance if you need it but we do not accept any responsibility for the incorrect use of the special links or link formats and therefore we shall not be accountable for any loss of fees as a result of incorrect use or errors.

Limited License

Spherical Magic grants you a limited nonexclusive, nontransferable, revocable right to use the graphic images and text provided to you by us, for use on your web site or web space, solely for the purpose of identifying your web site or web space as an Affiliate Program participant and to assist in generating Commissions. In addition, Spherical Magic grants you a limited, nontransferable, nonexclusive, worldwide right to reproduce and use all graphic images and other materials provided to you, solely for the purpose of creating Special Links connecting your web site or web space to the Spherical Magic websites and promoting the sale of products and services on the Spherical Magic website. All product images must be served by the Spherical Magic website and cannot be used in any form other than the form provided by us. You may not modify the graphic images or text, or any other of the Spherical Magic images, in any way. However, you may make a request for us to alter images to suit your use. We may revoke your license to use these properties at any time by giving you written notice. Spherical Magic reserves all of its rights in the graphic images, text, any other images, Spherical Magic trade names and trademarks, and all other intellectual property rights. Any and all rights in and to Spherical Magic's intellectual property shall inure to the benefit of Spherical Magic.

Order Fulfillment

We will process all product orders placed by customers who follow Special Links to the Spherical Magic websites. We reserve the right to reject orders that do not comply with any requirements that Spherical Magic has and may periodically establish. Spherical Magic will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments and handle customer service. We will track sales made to Customers who purchase products using Special Links from your web site to the Spherical Magic websites and will make available to you reports summarizing sales activity. We will use commercially reasonable efforts to present accurate information in the reports, but we cannot guarantee the accuracy of the reports.

Customers

Customers who purchase products and services through the Affiliate Program will be deemed to be customers of Spherical Magic. Accordingly, all of the Spherical Magic rules, policies, and operating procedures concerning customer orders, customer service and product sales will apply to those Customers. We may change these policies and operating procedures at any time. Product prices and availability may vary from time to time, and such price changes may affect products that you may have listed on your web site. We will use commercially reasonable efforts to present accurate information, but We cannot guarantee the availability or price of any particular product.

Sale Duration

The cookie duration for the Affiliate Program is 60 days. This means that you will earn a commission on orders for users you refer to Spherical Magic that do not make a purchase immediately but return to the site within 60 days of the initial visit. If the visitor returns via another affiliate link or Spherical Magic marketing campaign within that 60-day period, the most recent referrer earns credit for the sale.

Payment

Spherical Magic will pay you a commission on qualifying sales originating from Special Links on your website or web space in accordance with the then current Affiliate Commission Schedule. We will also pay you a Second Tier commission on sales made by new users you recruit to become Spherical Magic Affiliates.

In lieu of or in conjunction with payouts, Affiliates may elect to place all or a portion of their commissions into an accrual account to be put toward purchase of our artworks or mechanisms. Affiliates who choose this option also enjoy a discounted price schedule.

Payment Terms

Spherical Magic will pay you Commissions on a monthly basis. Within 45 days following the end of each calendar month, Spherical Magic will send you a check or remit to your PayPal account for the Commissions you have earned for the relevant month. However, if the Commissions payable to you for any month are less than $25.00, we will allow your Commissions to accrue until the total amount due is at least $25.00 or until this Agreement is terminated.

Processing Fees

If Spherical Magic owes you accrued Commissions that are less than $25.00 for at least 365 days, then we may send you payment of such accrued Commissions minus a $5 processing fee. If the amount of accrued Commissions is under $5 for at least 365 days, such amount will be used to cover our ongoing administrative costs and no payment will be made to you.

Termination Fees

If you or we terminate your Account, and you have less than $25 in accrued but unpaid Commissions then outstanding, we may charge you a $5 processing fee when sending you your final payment to cover its administrative costs.

Spherical Magic will send payment via check or PayPal for the applicable commissions on or about the 1st of the month for the previous month's commissions when your balance exceeds $50. If any order that generated a referral fee is cancelled by the customer, or if there are any returned checks or chargebacks, the amount will be deducted from the next monthly payment. If there is no subsequent payment, the Affiliate will be invoiced.

Your Responsibility

You must use the Affiliate Program in a manner that demonstrates common sense and respect for the rights of Spherical Magic and third parties.

You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site.

As a member of the Affiliate Program, we will provide you with special "tagged" link formats ("Special Link(s)") to be used in linking to the Spherical Magic websites. The Special Links will permit tracking, reporting, and commission calculations. You must ensure that each of these links properly utilize the Special Link formats. You will only earn commissions on activities occurring on the Spherical Magic websites if such activity was originated from properly formatted Special Links. Spherical Magic will not be liable to you for any failure by you to use Special Links, including to the extent that such failure may result in any reduction of amounts, which may otherwise be paid to you pursuant to this Agreement.

You will indemnify, defend and hold us harmless from all claims, damages, and expenses (including, without limitation, legal fees) relating to the development, operation, maintenance, and contents of your site as well as any goods or services provided or made available by you. These obligations will survive any termination of this Agreement. You acknowledge and agree that your Web site information (name, URL, traffic counts, etc.) may be utilized by Spherical Magic. Possible uses include (but are not limited to) lists of the busiest sites, lists of member sites, etc. The information provided by Spherical Magic to you may be proprietary in nature. You acknowledge that you are not a competitor of Spherical Magic, and agree not to share this information with any of our competitors. Any violation of these terms and conditions may cause us to terminate this agreement.

Qualifying Sites

Spherical Magic reserves the right to NOT accept any site into the Affiliate Program based on site content at our sole discretion. All sites will be reviewed and sites on certain topics will not be permitted. Sites that do NOT qualify relate to any of the following topics, including, but not limited to:

• Pornography of any kind, including but not limited to online subscription pornography or adult subscription content, or pre-adult content (pictures, videos, etc. of individuals under 18 yrs old). Anything that falls into the category of "adult entertainment" is prohibited.
• Any form of "hate" oriented site.
• Animal cruelty or procedures deemed harmful, unnecessary or unnatural to animals.
• Any type of fireworks or pyrotechnic devices or supplies.
• The sale of alcoholic beverages, tobacco products, live animals, prescription drugs or other controlled substances, hazardous materials, combustibles, corrosives.
• Unsolicited email services of any kind.
• Gambling transactions of any kind, including lottery, raffles, contest sites.
• Money making, work at home, home mailing, MLM, pyramid schemes, or similar products.
• Phone chat lines or psychic readings.
• Any form of sex product, body part enlargement, growth hormones or wonder drugs.

Additionally, sites may not:

• Violate the privacy, publicity or personal rights of others.
• Infringe on the intellectual property rights of others, i.e., copyrights, trademarks, trade secrets, plagarism, software piracy, patents, music, images, or other proprietary or property right. Materials that infringe on the intellectual property rights may not be distributed to others.
• Include Defamatory or Abusive Language. Sites may not contain any material that is unlawful, harmful, fraudulent, abusive, vulgar, hateful, racial or otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national or international law. Sites with defamatory, abusive or threatening language will be shut down.
• Distribute viruses or worms or provide information on how to send them. Any site promoting any form of cyber crime or other illegal computer activities will be shut down.
• Any illegal activities. Spherical Magic reserves the right to shut down your Affiliate Program if any activities are found to be harmful in any way.
• You may not use your affiliate link as an entryway to pay for your own projects.

No Spam

Spherical Magic has a zero tolerance policy for spam. Spam is defined as any unsolicited email whether commercial or non-commercial in nature. Spam includes, but is not limited to, the sending of ANY unsolicited information to a person or group that has not specifically asked to receive that particular information or is not a personal acquaintance of the individual sending the information. All Affiliates are expected to adhere to Spherical Magic's no spam policy. Affiliates may promote Spherical Magic to "opt-in" lists ONLY. If you run a newsletter, ezine, or other kind of bulk email service, you must have evidence that people signed up to receive email from you. Any and all spam complaints will be investigated thoroughly. If you spam, we WILL terminate your contract.

Part of the no spam policy means, you may NOT:

• Send any email to any type of mailing list or opt-in list that has been purchased or acquired from an outside individual or party.
• Send any email to any type of manually or automatically harvested list of email addresses, names, or contacts.
• Send any email to any type of "lead" or "prospect" before you have received a request for more information.
• Fax any message to any recipient that has not requested the information first.
• Send inappropriate postings to any newsgroup or forum that violates their anti-spam regulations.

Any Affiliate that engages spam or in promoting prohibited products or services in connection with their site in any way shall have their affiliate contract terminated and could lose any or all affiliate commissions due to them. The site owner also shall be held liable for any and all damages and/or losses that may result as a consequence.

Relationship of Parties

Spherical Magic and the affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict this statement.

Disclaimer of Warranties

SPHERICAL MAGIC PROVIDES THE WEBSITE AND SPHERICAL MAGIC AFFILIATE SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. SPHERICAL MAGIC DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, AFFILIATE SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. SPHERICAL MAGIC MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.

Limitation of Liability

SPHERICAL MAGIC WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SPHERICAL MAGIC SERVICE OR THIS TOS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID BY SPHERICAL MAGIC TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.

ADDITIONALLY, SPHERICAL MAGIC IN NO WAY GUARANTEES FINANCIAL SUCCESS THROUGH THE AFFILIATE PROGRAM OR THAT ANY USERS OF THE AFFILIATE PROGRAM OR OUR PRODUCTS WILL MAKE MONEY IN ANY AMOUNT. WE ARE NOT OFFERING YOU A GUARANTEED BUSINESS OPPORTUNITY OF ANY SORT.

Term

The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party.

Spherical Magic reserves the right to terminate or refuse service to any person or organization at any time for any reason.

Affiliate sites are subject to periodic review. If we determine, at our sole discretion, at any point after acceptance that your site is not suitable, that you are abusing the system, the Spherical Magic reputation or the reputation of its officers and employees and/or the Spherical Magic Affiliate Program, we may (without limiting any other rights or remedies available to us) withdraw your participation and unilaterally end the status of your site as an Affiliate. Upon the termination of this Agreement for reasons stated above, you will immediately cease use of, and remove from your web site, all links to the Spherical Magic websites, product images, all Spherical Magic trademarks, trade dress and logos, all Special Links, and all other materials provided by or on behalf of Spherical Magic to you pursuant hereto or in connection with the Affiliate Program and withhold any Commissions payable to you.

Termination By You

You may terminate your Account for any reason at any time by contacting us in writing, via email or by using one of our online contact forms.

Effect of Termination

You can only earn Commissions during the term of the Agreement, and Commissions 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.

Notices

All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Spherical Magic, you must use the following address: 35010 Sky Ranch Road, Carmel Valley, California, email or our contact form. If Spherical Magic provides notice to you, we will use the contact information provided by you to us. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.

Governing Law/Severability

This agreement between you and Spherical Magic will be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of laws principles. You agree that any litigation or arbitration between the parties will take place in California, and consent to personal jurisdiction and venue in the State. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of that Agreement will continue in full force and effect.

Dispute Resolution.

All disputes arising out of, relating to or connected with these TOS or your use of any part of the Spherical Magic Service will be exclusively resolved under confidential binding arbitration held in Monterey County, California, before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying California law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Monterey County, California. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in Santa Clara County. Notwithstanding anything to the contrary in this Section 13, Spherical Magic may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.

Complete Understanding/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 new agreement on our site. Your continued participation now, or within thirty (30) days following the posting notice of any changes in these terms and conditions, will constitute a binding acceptance by you of such rules, changes or modifications.

These Terms & Conditions constitute the full and complete understanding and agreement between you and Spherical Magic relating to the subject matter hereof, and supersede all prior understandings, agreements, representations and warranties relating to such subject matter. Any waiver, modification, or amendment of any provision of this Terms & Conditions, initiated by you will be effective only if accepted in writing and signed by Spherical Magic.