Last Revised: April 14, 2021
The website located at https://www.shells.com/l/en-US/ (the “Website”), along with the E Shells desktop cloud system (the “Application,” and together with the Website, the “Platforms”) is published, owned, and operated by E Shells, Inc. (collectively with its subsidiaries, affiliates and related entities “Shells,” “Company,” “we,” “us,” and “our”). The presented Affiliate Agreement (“Agreement”) contains all of the terms and conditions between E Shells, Inc. (“Shells™”), a Delaware corporation, and you (“Affiliate”) regarding your application to join the affiliate program offered by Shells.com.
IF YOU ARE PROVIDING AN APPLICATION TO JOIN THIS AFFILIATE PROGRAM OR BY PARTICIPATING IN THE SHELLS.COM AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT IN FULL AND ASSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.
Shells.com Affiliate Agreement Definitions:
"Affiliate Code", "Hyperlink(s)" – One or more hyperlink codes provided to Affiliates by Shells.com to uniquely identify Affiliate traffic originating from their advertising and resulting referred subscribers.
"Affiliate Site(s)" – One or more websites provided by Affiliate that advertises Shells.com services and/or promotions.
"Chargeback" - A demand by a payment or credit card provider for Shells.com to reconcile and resolve the loss a fraudulent or disputed transaction and the costs associated with the transaction.
"Commissions" or "Commission fees" – Affiliates are paid a fee for each qualifying subscription from a referred client that an affiliate refers to Shells.com under and in accordance with the present Agreement.
"Confidential Information" - any information, oral or written, treated as confidential that relates to either party's (or, if either party is bound to protect the confidentially of any other persons information, such other persons) past, present or future research, development or business activities, including any unannounced product(s) and service(s) and including any information relating to services, trade secrets, intellectual property, developments, designs, inventions, processes, plans, financial information, customer and supplier lists, forecasts, and projections. Confidential information shall also include the terms of this Agreement, any date, idea, technology, know-how, inventions, algorithms, process, technique, program, computer software, computer code, and related documentation, work-in-progress, future development, engineering, distribution, manufacturing, marketing, business, technical, financial or personal matter relating to any actor or actress present or future products, sales, customers, employees, opportunities, markets or business in graphic text or electronic or any other form, that is treated as confidential by either party.
"IP" - The collective term referring to all trademarks, servicemarks, patented, or copyrighted material as intellectual property owned by Shells.
"Qualifying subscription" – An account sign-up and payment for services offered by Shells.com referred by an approved affiliate that qualifies for a commission fee under the present Agreement.
"Recurring subscription" – A subscription that is periodically deducted and charged to the account holder.
"Referred subscriber" – A new subscriber referred from an Affiliate through a Link provided by or approved by Shells.com, which meets the criteria for a commission fee under the present Agreement.
“Shells.com" - The collective term referred to the domain shells.com and company E Shells, Inc. owned and administered by Shells™. “We," "Our," "Us" – “Shells.com, and/or E Shells, Inc.”
"You", "Your" and "Affiliate(s)" - the business, individual or entity applying for participation in the Shells.com Affiliate Program, or that displays Our products, services and/or promotions on its website and/or through offline representation through the affiliate tracking code in exchange for receiving remuneration from Shells.com for sales resulting from such display.
1. Requirements for membership
Potential affiliates for Shells.com must initially submit a completed Affiliate Program Application form. The Affiliate Program Application Form can be found at: https:www.shells.com/pages/affiliates/ Our team will review your Affiliate Program Application and will notify You of whether your application is accepted or denied usually within ten (10) business days. It is within the sole discretion of Shells.com to accept or reject potential Affiliates. Your website should be a sophisticated website that is already live, not under constructions or in a beta status, and not a brand new website lacking content. If Shells.com determines that your website or if you are unsuitable for the present Affiliate program for ANY reason, your application may be rejected.
If Your application is rejected for one reason or another, You may reapply using a different web domain and URL from the application that was rejected. If your website is brand new, you can apply again after several months once it is in a more complete form. If You reapply to the Affiliate Program using a previously terminated web domain and URL, then you will likely be rejected again. Shells.com reserves the right to provide notice to any Applicant of their rejection or removal from the Shells.com affiliate program at any time.
2. Advertising and Promotion
If Shells.com agrees to enter into the present Agreement with an approved Affiliate, Shells.com agrees to make available various hyperlinks, information, and graphics which are subject to the present Agreement. The hyperlinks known as Affiliate Codes will help identify Your particular account and traffic originating from Your website or e-mail to the Shells.com website and service.
Affiliate agrees to only display on their website those hyperlinks, graphics, and/or textual images provided by Shells.com or E Shells, Inc. Posting links to third party websites you do not have control over may be considered a material breach of this Agreement. The definition of third party websites under this Section also includes social media websites, including but not limited to Reddit, Instagram, Facebook and Twitter. Furthermore, you agree not to use surreptitious techniques such as “cookie stuffing” that set your Affiliate Code without the Referring Subscriber’s knowledge.
EXCEPT AS PERMITTED ABOVE OR IN SECTION 14 BELOW, AFFILIATE SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE SHELLS.COM TRADEMARK, NAME OR ANY OF OUR INTELLECTUAL PROPERTY (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING), WITHOUT OUR EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE OUR IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) CAUSE OR CREATE OR ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY "INITIAL INTEREST CONFUSION" OVER THE USE OF OUR IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING; AND (iv) USE ANY SOCIAL MEDIA, SEO, PPC, OR SEM TO PROMOTE THE SERVICE. YOUR USE OF OUR IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER (IN ADDITION TO BEING A BREACH OF THIS AGREEMENT) SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF OUR TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING WITHOUT LIMITATION, TREBLE DAMAGES FOR KNOWING OR WILLFUL INFRINGEMENT), AND THE OBLIGATION TO PAY OUR LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH WE SEEK TO ENFORCE OUR RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF OUR INTELLECTUAL PROPERTY RIGHTS.
Affiliate is not allowed to post any refunds, credits, promotions, or discounts, or other content concerning Shells.com, unless Shells.com has given Affiliate prior written permission by an approved representative in each instance. Affiliates may ONLY use coupons, discounts, and promotions that are provided solely and exclusively by the Affiliate program using banners and links. If the Affiliate chooses to use custom advertising and/or promotional material that he, she, or a third-party other than Shells™ created in execution of the obligations set forth in this Agreement, the promotional material MUST be approved in advance in writing by an authorized representative of Shells™. Any violations of the terms involving links, coupons, refunds, credits, promotions, or discounts shall constitute a material breach of this Agreement, and may result in Affiliate’s termination from the program or a withholding of one or more commissions.
Affiliate shall display and use the Advertisements in a way (i) that does not state or imply that Your site was established or is maintained by ; (ii) that does not state or imply that You are an authorized representative of ; (iii) that does not include the term “official” or any similar phrasing in reference to any Advertisements displayed or used by You; and (iv) that does not in any way mislead or deceive others.
Shells.com reserves the right to inspect and monitor Your site without notice and from time to time, and to ask You to submit documentation and copies of Your use of the Advertisements on Your site. Further, Shells.com reserves the right to require that You stop displaying or using any Shells.com material on Your site, if any displays or uses, at the sole discretion of Shells.com, is inconsistent with the affiliate program.
Affiliate also agrees not to post the Affiliate Code in any third party's newsgroups, blogs, unsolicited e-mail chains, link farms, chatrooms, or guestbooks in cases where the content or content of discussion is not related to the services offered by Shells.com as well as the rules of the third party platform. You may include the Affiliate Code on websites which are discussing personal computer services or in a relevant forum signature. You agree to never use automated bots to contribute comments containing Shells.com links.
AFFILIATE SHALL NOT MIMIC, CLONE, OR CREATE A CONFUSINGLY SIMILAR VERSION OF THE SHELLS.COM WEBSITE AND/OR TRADE DRESS TO DIRECT INTERNET TRAFFIC TOWARD AN AFFILIATE WEBSITE.
3. FTC Endorsement Compliance
It is the intent of Shells.com to treat our customers fairly and to comply fully with all Federal Trade Commission regulations related to advertising. As such, we require all Affiliates to comply with these regulations. This includes, but is not limited to, Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising, which requires, among other criteria, that material connections between advertisers and endorsers be disclosed. This means that directories, review/rating sites, blogs and other websites, email or collateral that purport to provide an endorsement or assessment of an advertiser (in this case Shells.com) must prominently disclose the fact financial or inkind compensation is provided from the advertiser.
Shells.com reserves the right to withhold commission fees and terminate this Agreement with you should we determine, in our sole discretion, that Affiliate is not in compliance with the previously mentioned guide or other FTC regulations/guides deemed relevant by Shells.com.
4. Order Processing
Shells.com will process orders placed by Referred Customers who follow the Affiliate links from your website to the Shells.com website. We reserve the right in our sole discretion to reject orders that do not comply with account requirements that we may establish.
Shells.com is responsible for administering all new accounts including fulfillment, refunds, and payment processing. Upon tracking the qualifying purchase generated by your website, we will update your Affiliate account information on our website. It is Affiliate’s responsibility to ensure that the Affiliate links between your website and Shells.com are accurate and properly linked and formatted.
5. Determination of Commissions
The Shells.com affiliate program pays Affiliates a commission fee on each qualifying subscription under and in accordance with the terms set forth in this Agreement. Each qualifying subscription must meet all of the following criteria (“standards”):
Each Referred subscriber must be considered a new and unique visitor to the Shells.com website and must register by completing and submitting the Registration information using valid and unique account and billing information.
Commissions may not be provided for a Referring Customer that is reactivating a previously closed or disabled account.
All qualifying subscriptions must make a purchase, and provide valid payment for the purchased services. To generate a Commission Fee, each Referred subscriber must be up-to-date regarding payments at the time and date of the processing of the commission payment and not be subject to a chargeback, refund, cancellation, credit, or account suspension. In the event of a chargeback(s), no credits will be provided to affiliate and all administrative costs for the chargeback(s) are deducted from affiliate’s payment for that month.
If it is determined that a Referred Customer was provided an offer different from the promotions offered at that time by Shells.com, Shells.com will NOT pay a commission on that referred subscriber.
Shells.com reserves the right to withhold or suspend payment of any Commission Fees at any time and indefinitely, if it suspects in its sole discretion fraud, or other improper activity, or a breach of any terms of this Agreement by Affiliate OR a referred subscriber. Shells.com reserves the right to deduct from Affiliate’s current and future Commissions any and all fees relating to any questionable, fraudulent, or canceled subscriptions related to the Affiliate account. If a commission has already been paid to Affiliate under the aforementioned circumstances, Shells.com will send an affiliate a bill for the balance of such refunded purchase upon termination of the program or termination of the referred subscriber.
Shells.com, in its sole discretion, reserves the right to withhold indefinitely, any Commission, and/or to reverse, deny, or reject any Commission for:
any sale that has not been in an approved status in good standing as an account of Shell.com for a period of at least sixty (60) days,
all commissions generated for accounts that may be fraudulent, including but not limited to the use of software that generates real and fictitious information,
all orders identified or suspected to be fraudulent based on a pattern of potentially fraudulent activity, including, without limitation, multiple accounts from the same customer, or referral of accounts which do not comply with this Agreement,
altering hyperlinks provided to Affiliate by Shells.com in any way,
affiliates whom we believe may be artificially submitting Referred Customers, engaging in the advertisement of business-opportunity sites (as determined by Shells.com in its sole discretion), using marketing practices that we deem as unethical or likely to attract
fraudulent signups and/or signups with a very low likelihood of renewal, or
referred Customers that have been offered or received coupons, refunds, credits or discounts from the Affiliate or for Referred Customers who have joined a business opportunity program that is managed or participated in by the Affiliate but is also unapproved by Shells.com.
Attempts by Affiliates to inflate, falsify, or manipulate Referred subscribers, qualifying subscriptions, or Commission fees to intentionally defraud Shells.com or engage in violations of any of the present Terms of this Agreement constitute immediate grounds for termination of this Agreement as well as forfeiture of any currently pending and unpaid Commission fees.
Affiliates who request Commissions for Referred Subscribers who are already associated with a Shells.com reseller may be removed as a pending or unpaid commission. Affiliates are not eligible for “double” compensation using commissions.
Affiliate understands that if any qualifying subscription pays for services using any gift card (not including pre-paid debit cards), Affiliate is only eligible for a fifteen percent (15%) commission on the net discounted price, if any, for the qualifying subscription. For the sake of clarity, all commission fees are based on qualifying subscriptions at the price (or discounted price taking into account any gift card discounts incurred by Shells™).
Affiliate should note that if a web browser is not set to allow cookies then any commission shall only be credited at the time the subscriber visits the affiliate landing page through the affiliate link and purchases the service on that landing page.
6. Commission Payments
Shells.com agrees to compensate Affiliate subject to the terms of this Agreement, a Commission equal to a specified percentage or monetary amount set forth in a designated Affiliate Console on all Qualifying Subscriptions and Referred Subscribers which occurs during on a monthly basis for which such Commissions are recorded. Affiliate understands that Affiliate payments are issued on the twenty-fifth (25th) calendar day of each month following the 60 day hold period. Recurring subscribers will count as a potential Affiliate Payment throughout the lifetime of the subscriber. Affiliate understands that they may have to wait at least one full sixty (60) day period before being eligible to receive payments. If Affiliate does not receive a commission payment for generated subscriptions during the relevant 60 day period, then it is Affiliate’s duty to inform Shells.com of any subscription related commission issues.
Affiliate understands that any and all transaction fees, such as those associated with Paypal and bank wires, that are associated with any payments or commissions from Shells.com, are the responsibility of Affiliate and will be deducted from Affiliate's gross commissions from Shells.com. Shells.com is not responsible for payment of any transaction fees associated with recurring payments to Affiliates.
If a drafted check or other instrument is not cashed or deposited within one hundred-twenty (120) days from issuance, then Affiliate understands that they must request a reissue from Shells.com.
It is Affiliate’s responsibility to notify and inform Shells.com regarding updated business and e-mail addresses, as well as to any changes to any information relevant to this Agreement such as name, payment method information, email address, principal place of business, tax identification number, contact information, or other personal information.
If an affiliate is terminated as a result of a breach of this agreement, Affiliate understands that they forfeit all rights to any unpaid new or recurring subscription commissions generated during the Term of this Agreement.
7. Payment Forms
Commissions to Affiliates are paid based on the information provided by Affiliates in the affiliate administrative page. You understand that it is your obligation to maintain current address and business information by updating your profile with Shells.com and submitting the relevant proposed banner placement before you are eligible to receive any commission based on this Agreement.
Affiliate understands that Affiliate is also responsible for providing the preferred payment medium by Shells.com.
Affiliate may elect to receive Commissions from Referred subscribers in the form of a Paypal payment. Paypal policies govern payments and eligibility for companies or individuals located outside the United States, so please check with Paypal to confirm that you are eligible to receive payments.
Another payment option is to elect to receive Commissions in the form of a bank wire transfer in U.S. Dollars. Minimum bank wire transfer payments to Affiliates are 500.00 USD. You understand that if you elect for wire transfer payments, you will not receive a commission payment until your affiliate account is at least 500.00 USD. Moreover, certain countries are ineligible for this form of payment. Listed countries are included below:
Any country prohibited by regulations of the United States Office of Foreign Asset Controls (“OFAC”) and Affiliates understand that this list may be updated or modified by Shells.com at any time.
Affiliate understands that all payments or third-party fees charged by your banking institution, Paypal, or other payment provider for Commissions are Affiliate’s responsibility and are not incurred or paid by Shells.com.
Shells.com in its sole discretion, reserves the right to modify the present section of the Commission payment terms described herein at any time. Changes are to take effect upon posting.
In the event of a dispute between Affiliate and Shells.com regarding a commission, Affiliate understands that they have access to the Shells.com Affiliate console, which provides relevant tracking for each affiliate’s commission. Affiliate also understands that they agree to file any tracking or commission dispute as well as any other disputes and discrepancies within forty-five (45) days after the end of the month in which the disputed sale/event took place. Shells.com will not accept disputes filed after 45 days from the date on which the Qualifying Purchase occurred, and Affiliate understands that they forever forfeit their right to a potential claim.
Please note that on any Affiliate commission fees, Shells.com offers conversion of some or all amounts (particularly on amounts below the minimum $500 to initiate a bank wire transfer) into in-store credits that may be gifted by Affiliate to others or used in the Shells.com gift shop (coming soon!).
8. Taxes/Address changes
It is Affiliate’s responsibility to provide Shells.com with relevant tax and payment information required to issue a Commission.
If Shells.com is not provided the proper tax payment information by Affiliate within ninety (90) days of a Commission being earned, then Affiliate agrees to forfeit the entire Commission and understands that no payment will be provided.
Affiliate understands and agrees that they must submit a W8/W9 tax form before Shells.com agrees to issue any Commissions.
Affiliate is responsible for the payment of ALL relevant federal, state, and local taxes related to the commissions earned under this Agreement. In compliance with all federal and state tax laws, Shells.com agrees to issue a Form 1099 to all Affiliates whose earning meet or exceed the required amount warranting distribution of a 1099. If a Form 1099 is deemed to be necessary, Shells.com will notify Affiliate via email and Affiliate will be required to provide the requested information within two (2) business days.
9. Affiliate Obligations
Affiliate understands that they are solely responsible for the content, development, operation, and maintenance of their Website and for any and all materials that appear on said site. Such responsibilities include but are not limited to, technical operation, advertising, proper hyperlinks, description of services, promotions, and accuracy of content. Affiliate understands that Shells.com disclaims all liability and responsibility for the aforementioned matters.
10. Shells.com Obligations
Shells.com agrees to provide Affiliate with necessary materials and affiliate codes to properly link your Affiliate account to Shells.com. Shells.com agrees to review purchases referred to Shells.com from Affiliate, to track the volume and number of Qualifying Subscriptions originating from Affiliate’s unique code, and provide statistics related to each Affiliate’s purchase statistics. Determinations made by Shells.com regarding the foregoing shall be binding on the Parties absent manifest error.
Shells.com has the right to monitor signups through Affiliate’s website at any time and from time to time in order to assess compliance with these Terms and Conditions. Lack of compliance regarding any part of this Agreement is sufficient grounds for termination of the Affiliate Agreement.
11. Tracking Qualifying Subscriptions
Affiliate understands that they may track qualifying subscriptions by logging into the Shells.com Affiliate console. Qualifying subscriptions are updated daily and Affiliates are encouraged by Shells.com to periodically review the Affiliate console to verify accuracy of upcoming and previous payments.
12. Subscriber Policies and Pricing
Qualifying referred subscribers who subscribe to Shells.com through an Affiliate are deemed to be the clients or customers of Shells.com. Thus, all rules, policies, Agreements and operating procedures concerning Shells.com will apply in full to those clients.Affiliate understands that Shells.com may alter any of its policies at any time. Affiliate understands that pricing and availability of Shells.com services may be subject to change at any time. Shells.com agrees to provide commercially reasonable efforts to present accurate information to Affiliate, but Shells.com cannot guarantee the availability or price of any particular service. It is important to understand that Affiliate by assenting to these terms also agrees to the Shells.com Terms of Service.
This Agreement shall be binding; the failure of Shells.com to enforce the strict performance of the terms of any provision of this Agreement shall not be deemed a waiver of the right of Shells.com, employees, agents, partners, or its officers to subsequently strictly enforce any provision of this Agreement.
14. E-mail advertising
Affiliate agrees not to create, publish, transmit or distribute, under ANY circumstances, any bulk electronic mail messages ("SPAM") without prior written consent from Shells.com for each and every day when any bulk mailing will occur. Shells.com, in its sole discretion, reserves the right to reject each and every e-mail mailing. Additionally, Affiliate may only send e-mails containing a Shells.com affiliate link and or a message regarding Shells.com or Shells.com's Affiliate Program to individual(s) who have been previously contacted and whom consented to the fact that Affiliate will be sending one or more e-mails containing Shells.com information or information about the Shells.com affiliate program. Failure by Affiliate to abide by this section, CAN-SPAM Act of 2003 or our Anti-Spam Policy as defined in the Terms of Service, in any manner, will be deemed a material breach of this Agreement by Affiliate and Affiliate will foreclose any and all rights they may have to any commissions. If Affiliate’s account is found to have excessive e-mail generated traffic within a short period of time as determined by Shells.com in its sole discretion, the Affiliate relationship may be terminated.
The Parties agree that any legal claim or dispute between them or against any agent, employee, successor, or assign of the other, whether related to this agreement or otherwise, and any claim or dispute related to this agreement or the relationship or duties contemplated under this contract, including the validity of this arbitration clause, shall be resolved by binding arbitration by the American Arbitration Association (or name other firm providing arbitration services, i.e., National Arbitration Forum), under the Arbitration Rules then in effect. Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction. Information may be obtained and claims may be filed at any office of the American Arbitration Association or at Corporate Headquarters, 335 Madison Avenue, Floor 10, New York, New York 10017-4605. Telephone: 212-716-5800, Fax: 212-716-5905, Website: www.adr.org. The losing party in any arbitration initiated under this Agreement agrees to pay the attorneys’ fees in full of the prevailing party. This agreement shall be interpreted under the Federal Arbitration Act.
The Terms and Conditions contained herein and any rights and licenses granted hereunder, may not be transferred or assigned by Affiliate, but may be assigned by Shells.com without restriction. Any right to assign or transfer the obligations under this Agreement by Affiliate requires the express written consent of Shells.com.
The terms and conditions contained herein constitute the entire Agreement between the Parties. If a court of competent jurisdiction holds any term, clause or provision of the present agreement invalid or unenforceable, such invalidity shall not affect the validity or operation of any term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
Affiliate agrees that all information including, without limitation, the terms of this Agreement, business and financial information, Shells.com vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Affiliate understands that they will act with due diligence to prevent a disclosure of confidential information. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
19. Affiliate Representations and Warranties
Affiliate represents and warrants to Shells.com as follows:
You are at least eighteen (18) years of age and of sound mind to enter into a legally binding contract.
The present Agreement has been duly and validly executed and delivered by Affiliate and contains Affiliate’s legal, valid, and binding obligation, enforceable against Affiliate in accordance with its terms.
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 Affiliate in connection with the execution, delivery, and performance of this Agreement or the taking by Affiliate of any other action contemplated hereby.
The execution, delivery, and performance by Affiliate of this Agreement and the consummation by Affiliate 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 Affiliate is subject, (ii) any order, judgment, or decree applicable to Affiliate or binding upon Affiliate assets or properties, (iii) any provision of Affiliate’s by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to Affiliate or binding upon Affiliate assets or properties.
There is no pending or, to the best of Affiliate’s knowledge, threatened claim, action, or proceeding against Affiliate, or any Affiliate of Yours, with respect to the execution, delivery, or consummation of this Agreement, and, to the best of Affiliate’s knowledge, there is no basis for any such claim, action, or proceeding.
During the term of the Agreement, Affiliate understands that they are not to include in Affiliate promotions content that is, in Our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or are in violation of Our Terms of Service or Acceptable Use Policy.
Each Referred Customer and each Qualifying Purchase referred or submitted by Affiliate to Shells.com, is valid, genuine, unique and not fraudulent and meets each of the Criteria for generating a Commission Fee as provided in this Agreement.
Affiliate hereby agree to indemnify and hold harmless Shells.com and Our 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 thereof) arise out of or are based on:
(i) Any claim that Affiliate’s use of their 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 Affiliate herein, or
(iii) Any claim related to Affiliate’s website, including, without limitation, its development, operation, maintenance and content therein not attributable to Shells.com.
21. Agreement Term
The Agreement term begins upon Shells.com’s acceptance of Affiliate’s application and ends when terminated by either Party with or without cause. Affiliate is only eligible for Commissions earned during the term of this Agreement, and Commissions earned through the date of termination remains payable only if the orders are not cancelled and comply with all of the present Terms herein. Affiliate understands that if the Agreement is terminated and a payment is outstanding, Shells.com may withhold the final Commission for a reasonable time to ensure that all subscriptions qualify for a Commission as determined by Shells.com in its sole discretion.
Any Affiliate who breaches either this Agreement or the Terms of Service will immediately forfeit any right to any and all Commission Fees and will be terminated from the Shells.com Affiliate program. In the event Affiliate exceeds chargebacks to their account that exceeds five percent (5%) of that month’s sales and commissions, Shells.com reserves the right to terminate Affiliate's account minus chargebacks and all administrative costs, fees, and fines to recoup against the chargeback activity. Affiliate understands that the Agreement may automatically terminate and all commissions may be forfeited upon Affiliate’s violation of any terms of this Agreement or any applicable law or regulation having force of law.
Shells.com reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time in Shells.com’s sole discretion.
Shells.com make no express or implied warranties or representations with respect to the Affiliate Program or any Shells.com Services offered through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF THE COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). Moreover, Shells.com makes no representation that the operation of its service will be uninterrupted or error free, and Shells.com will not be liable for the consequences of any interruptions or errors related to the service or the Affiliate service, including the tracking of information about Referred Customers during the period of interruption.
23. Limitation of Liability
SHELLS.COM WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF SHELLS.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM TO SHELLS.COM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
IN NO EVENT SHALL SHELLS.COM, ITS PRINCIPALS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, AGENTS, EMPLOYEES, AND ASSIGNS BE LIABLE TO AFFILIATE FOR ANY DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY DELAY OR FAILURE.
TO PERFORM AS REQUIRED BY THIS AGREEMENT AS A RESULT OF ANY ISSUE, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, TERRORISM, WARS, RIOTS, OR ACTS OF CIVIL OR MILITARY AUTHORITY.
24. Choice of Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts of law principles. The sole and exclusive jurisdiction and venue for any action or proceeding arising out of or related to this Agreement shall be in an appropriate state or federal court located in the State of Nevada, Clark County or nearest thereto. You hereby submit to the jurisdiction and venue of said Courts. You consent to service of process in any legal proceeding.
25. Modifications to this Agreement
Shells.com reserves the right to modify any of these terms and conditions herein at any time in Shells.com’s sole discretion. Such modifications shall take effect upon posting to the Shells.com website. Shells.com, in its sole discretion, reserves the right to notify Affiliate by e-mail and further reserves the right to withhold notification of any changes made to this Agreement. Modifications may include, but are not limited to, changes in the scope of available Commissions, Commission amounts/percentages, payment procedures, Commission Fee payment schedules, and Affiliate Program rules. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following Our posting of a change notice or new agreement on Our site will constitute binding acceptance of the change.
26. Relationship between the Parties
Affiliate understands that the relationship between Shells.com and Affiliate is that of an independent contractor, and nothing in the present Agreement creates a partnership, joint venture, agency, franchise, sales representative, shareholder, or employer/employee relationship between the Parties. Affiliate understands that they have NO authority to make or accept any offers or representations on behalf of Shells.com.
27. Independent Review and Investigation
This Application submission acknowledges that Affiliate understands and has read this Agreement in full and agrees to be bound by all the Terms and Conditions. Affiliate understands that other Affiliates may have a different relationship with Shells.com than Affiliate, including competitors. You agree that You have independently reviewed and assessed the advantages and disadvantages of participating in this Affiliate program and You are not relying on any guarantees, representations, or statements other than this Agreement as set forth herein.
I, AS A POTENTIAL AFFILIATE INDICATE MY ASSENT TO THIS AGREEMENT AND MY DESIRE TO BECOME AN AFFILIATE HEREIN BOUND BY THE AFOREMENTIONED TERMS AND CONDITIONS BY COMPLETING AND SUBMITTING THE AFFILIATE PROGRAM SIGNUP FORM, BY SUBMITTING PROPOSED REFERRED CUSTOMERS OR QUALIFYING PURCHASES TO SHELLS.COM UNDER OUR AFFILIATE PROGRAM AND/ OR BY COLLECTING AND COMMISSION FEES FROM US.
Shells Contact Information
Questions can be directed to Shells at [email protected]
5900 Wilshire Blvd., Unit 2110
Los Angeles, CA 90036