Manager Account Agreement

Last modified: September 25, 2024

• Including bank transfer and processing fees as another example of transactional, usage-based fees.
• Adding standard notice dates on Section 7(b)(i): 15 days for monthly renewals and 45 days for annual renewals.

This Manager Account Agreement extends the Terms of Use and applies to all Manager Accounts.

Definitions

This Agreement contains the terms and conditions that govern your access to and use of the Covered Services and is an agreement between Eleven and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or the Terms of Use, or if earlier, when you use any of Covered Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts, and that as you are entering into this Agreement for an entity (e.g. the company you work for), you have legal authority to bind that entity.

1. Grant of Rights

1. You may access and use the Covered Services in accordance with this Agreement and the Terms of Use. To access the Covered Services, your Account must be associated with a valid email address.
2. You shall be prohibited from granting access to the Software through your Manager Account License to anyone other than Authorized User(s).
3. In addition to, and not in limitation of, your other obligations and the other restrictions set forth in the Agreement and the Terms of Use, you are prohibited from copying the Software and from reverse engineering, decompiling or otherwise attempting to create any machine or human-readable version of the Software.
4. You shall not use the Software for any purpose other than its intended use, or in a manner that interferes with the use of the Software by Eleven or its other customers.
5. For the avoidance of doubt, Licenses do not include the ability to resell, broadcast or otherwise redistribute the Software, except as specifically provided for in this Agreement.
6. You expressly acknowledge that Eleven owns all worldwide intellectual property rights to the Software as set forth in more detail in Paragraph 8.

2. Limited Exclusivity of License

You expressly acknowledges that the Software is not exclusive to you and that Eleven shall not be limited or restricted in any way from entering into agreements to license the Software (which may be modified or adapted by Eleven to each client’s specific needs) and/or to provide similar, related or different services to any third party.

3. Account Set Up and Maintenance

1. Authorized Admin Users shall be permitted to create Manager Accounts for Authorized Users under your Manager Account License in accordance with the Terms of Use and Covered Services. Additionally, permissioned Authorized Users can invite individuals to form Investor Accounts to access User Content through the Software in accordance with the Terms of Use and Covered Services. You shall only invite individuals that you know, who wish to have access to your User Content through the Software and who are permitted to view your User Content in compliance with the applicable laws, statutes and regulations and Eleven Terms of Services.
2. For the avoidance of doubt, Eleven shall only provide Authorized Users and Investor Users that have agreed to the Terms of Use, and continue to agree to the Terms of Use, with access to the Software as follows: Authorized Users will only be provided with a Manager Account and Investor Users will only be provided with an Investor Account.
3. Eleven shall have no responsibility for, or liability associated with, the grant of, or failure to grant, access to any Account by you.
4. You shall have the primary responsibility for providing support to Investor Users it has permissioned for access to User Content on using the Software. Eleven shall provide Authorized Users and Investor Users with the technical support, updates and enhancements to usability, engagement, and user experience as are made generally available to all Eleven clients.
5. Eleven has no obligation to, and will not accept liability for, (i) uploading or maintaining any User Content; (ii) verifying the substance or accuracy of any User Content; (iii) comparing the substance of any content with any other records, information or data in Eleven’s custody or control; or (iv) auditing or investigating the substance or accuracy of any information provided by any Authorized User or Investor Users in any manner and for any purpose other than to investigate potential breaches of Terms of Use, or as authorized by an Authorized User or Investor User, and explicitly disclaims any responsibility or liability to any other person or entity related to the accuracy or substance of such information.
6. Eleven will use commercially reasonable efforts to ensure that the Software and the Accounts can be accessed and used by Authorized Users and Investor Users twenty-four (24) hours per day, seven (7) days per week; however you acknowledge that the Software in general, or one or more Accounts may be unavailable from time to time due to (i) maintenance or upgrades; (ii) service changes; (iii) correction of technical problems with servers, networks or Software or other similar activities; (iv) reasons outside of Eleven’s reasonable control.
7. Eleven shall use commercially reasonable efforts to prevent the inclusion or introduction of any virus, Trojan horse, worm, bot, or other software designs, instructions, routines or hardware components, or other disruption of the operation and use of Authorized Users’ and Investor Users’ computers, servers, or network, in each case as a result of your use of the Software.

4. Compliance with Applicable Law

You acknowledge that use of the Software is intended to serve as a tool to assist it in performing the services you provide to your clients. Notwithstanding anything else in the Agreement, you shall remain solely and exclusively responsible for ensuring that you comply at all times with all applicable laws, statutes and regulations.

5. Client Undertakings

1. Authorized Users. Any access to an Authorized User’s Account shall be deemed the act of you. You shall ensure that each Authorized User shall not disclose their confidential login credentials to any other person or entity and shall access and use their Account and the Software only in strict compliance with this Agreement and the Terms of Use. You shall be liable for any breach by any Authorized User of any provision of the Agreement or the Terms of Use.

   If you learn that any Authorized User or Investor User has acted in breach of the Agreement or the Terms of Use, you shall provide immediate notice to Eleven and Eleven shall have the right to immediately terminate access to the Software by such person.

2. Privacy and Security. You shall adopt and adhere to privacy and security policies and practices that comply with laws applicable to you and the information stored using the Software.

3. Unauthorized Code. You shall use commercially reasonable efforts to ensure that Authorized Users’ and Investor Users access to, and use of, the Software does (i) not include or introduce into Eleven’s system or server(s) any virus, Trojan horse, worm, bot or other software designs, instructions, routines or hardware components; (ii) otherwise disrupt the operation and use of the Software for Authorized Users and Investor Users or any other Eleven client; or (iii) compromise or breach the privacy, security, intellectual property rights or use of the Software, you, any Investor content, or the content of any other Eleven client.

6. Billing

Except for specific upfront fees, such as the digitization fee for subscription documents, and prorated fees, such as a new User license, along with any services featuring distinct billing terms, we automatically calculate and bill monthly using your stored payment method. You can manage your billing information and contacts by logging into the Software or contacting us at support@platformeleven.io. Please note that you are responsible for any applicable sales taxes.

All amounts due under this Agreement should be paid without setoff, counterclaim, deduction, or withholding. Fees for new Upgradable Modules or features will be effective upon posting updated fees and charges on Eleven, unless expressly stated otherwise in a notice. We reserve the right to increase or add new fees and charges for existing Services with a minimum of 30 days’ prior notice. In the event of late payments, we may choose to charge interest at a rate of 1.5% per month (or the highest rate permitted by law, if less). All payments made are non-refundable. All amounts are in US Dollars.

Digitization Services are billed upfront on an as-needed basis. Eleven Pro, Dedicated Email Domain, and User Licenses are billed in advance. Transaction Processing fees and other transactional or usage-based fees (e.g. ID Verifications, bank transfer and processing fees) may be billed either on the first of the month for transactions submitted over the prior calendar month or during the month as incurred.

7. Term and Termination

1. Term.The term of this Agreement shall begin on the Effective Date and remain in effect until terminated under this section 7.

2. Termination.

   1. For convenience. You may terminate this Agreement for any reason by providing us with 15 days advance notice for monthly renewals or 45 days notice for annual renewals, and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.

   2. For Cause. In the event of a material breach of any term or provision of the Agreement by either party, the other party may terminate this Agreement by giving thirty (30) days’ prior written notice thereof to the breaching party, provided, however, that such termination shall not take effect if the breaching party cures or corrects the breach within such thirty (30) day notice period. For these purposes (i) Client’s failure to pay any amount due to Eleven pursuant to the terms of this Agreement shall constitute a material breach of the Agreement; and (ii) if Client fails to make a required payment by the due date on more than three (3) occasions during any consecutive twelve (12) month period, Eleven may (but shall not be required to) terminate this Agreement without giving written notice to the non-breaching party of such failure or any additional failure.

   3. Other. Either party may terminate this Agreement by written notice to the other party if: (i) such other party dissolves, discontinues or terminates its business operations to which this Agreement pertains; (ii) any bankruptcy, reorganization, insolvency, dissolution or similar proceeding is instituted by or against such other party and such proceedings are not terminated within sixty (60) days; or (iii) such other party makes any assignment for the benefit of creditors.

3. Suspension

   We may suspend your right to access or use any portion or all of the Covered Services immediately if we determine:

   1. your use of the Covered Services (i) poses a security risk to the Covered Services or any third party, (ii) could adversely impact our systems, the Covered Services or the systems or Content of any other user of Eleven, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;
   2. you are in breach of this Agreement;
   3. you are in breach of your payment obligations; or
   4. you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

   If we suspend your right to access or use any portion or all of the Service Offerings, you remain responsible for all fees and charges you incur during the period of suspension.

8. Ownership and Proprietary Rights

1. Eleven represents and warrants that it has the Intellectual Property Rights (as defined below) to the Software.
2. Subject only to the rights expressly granted to you herein, and notwithstanding anything else in the Agreement, Eleven retains all right, title and interest in and to all aspects of the Software, and all improvements thereto, including all Intellectual Property Rights therein. You shall not remove, obscure or delete any copyright, trademark, logo, or other proprietary notice, label or marking on the Eleven website or on the Login Page.
3. For the purposes of this Agreement, “Intellectual Property Rights” shall include: any and all (i) copyrights and other rights associated with works of authorship; (ii) trademarks, trade names, logos and service marks and goodwill; (iii) trade secrets and know-how; (iv) inventions (patentable and unpatentable), patents, designs, workflows, and algorithms; (v) other intellectual property and proprietary rights of every kind and nature now or hereafter recognized in any country or jurisdiction in the world and however designated, whether arising by operation of law, contract, license or otherwise; (vi) trade secrets and, with respect to any particular information, all rights in such information under applicable law that give a holder, independent of contract, a right to control or preclude another person’s or entity’s use of or access to the information on the basis of the rights-holder’s interest in the information, and (vii) all registrations, applications, renewals, extensions, continuations, divisions or reissues of any of the foregoing, now or hereafter recognized in any country or jurisdiction in the world.

9. Representations, Warranties and Exclusions

1. Mutual Representations of the Parties

   1. Each party represents and warrants that it has the power and authority to enter into and perform its obligations under this Agreement and is not bound by any agreement or understanding with any third party that would interfere with the other party’s right to use or access the Software or its ability to otherwise perform its obligations under this Agreement.
   2. Each party represents that there is no pending or threatened claim, suit, action, or charge against it pertaining to the Software, in the case of Eleven, and pertaining to the provision of services to any Investor, in the case of you.
   3. Each party represents that, in connection with the use of the Software, it has (a) has complied and will comply with all applicable laws governing bribery, money laundering, and other corrupt practices, including the US Foreign Corrupt Practices Act and the UK Bribery Act; and (b) shall not, directly or indirectly, offer, give, pay, promise to pay, or authorize the payment of any bribes, kickbacks, influence payments, or other unlawful or improper inducements, in whatever form (including gifts, travel, entertainment, contributions, or anything else of value).
   4. Each party will promptly notify the other party if it becomes aware of any breach of the representations, warranties or covenants set forth in this Paragraph 9.

2. Additional Representations of Eleven

   Eleven represents that the Software does not and shall not infringe on or misappropriate any proprietary or intellectual property right or other right of any third party or any applicable laws, rules and regulations.

   EXCEPT AS PROVIDED HEREIN, ELEVEN MAKES NO WARRANTY WITH RESPECT TO THE PERFORMANCE OF THE SOFTWARE, WHICH IS PROVIDED ON AN "AS-IS" BASIS. OTHER THAN AS STATED HEREIN, ELEVEN EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THIS SOFTWARE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. ELEVEN DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SOFTWARE WILL BE FREE FROM PROGRAM ERRORS OR FUNCTION WITHOUT INTERRUPTION.

3. Additional Representations by you

   1. You shall comply with all applicable laws, statutes and regulations in accessing and using the Software, and otherwise in connection with the exercise of your rights and the performance of your obligations under or in connection with the Agreement.
   2. You shall not use the Software to send emails in violation of GDPR or any other applicable laws, statutes or regulations.
   3. You are aware of the applicable laws, statutes and regulations governing your marketing and distribution for each offering made available in your Account and you shall only make those offerings available to Investor Users in compliance with all applicable laws, statutes and regulations and Eleven Terms of Services.
   4. You understand that you are responsible for ensuring that your use of the Software to provide any services to Investor Users who reside in or are citizens of any country other than the United States is in compliance with the laws of the applicable jurisdiction.
   5. You shall only use the Software to provide services to clients residing in jurisdictions in which provision of such services is legal. You agree that it will not engage in conduct intentionally designed to provide access to the Software from other locations.

10. Confidentiality and Data Protection

1. Confidentiality

   1. In connection with any deliverables being provided pursuant to this Agreement, each party (in this capacity, the “Receiving Party”) and/or its partners, directors, officers, employees, consultants, agents, representatives and advisors (collectively, “Representatives”) may be furnished with, or have access to, sensitive and/or proprietary information, including but not limited to, the (Hosted) Software and certain information and materials concerning the other’s business, affiliates, clients, revenue, plans, wireframes, blueprints, technology, products and services, and/or other sensitive information (in this capacity, the “Disclosing Party”). As a condition to being furnished with, or having access to, such information, the Receiving Party agrees to treat any such information, (whether prepared by the Disclosing party, its officers, employees, agents, Representatives and/or advisors or otherwise or by Client’s investors, which is furnished to or obtained by the Receiving Party at any time by or on behalf of the Disclosing Party (herein collectively referred to as the “Confidential Information”) in accordance with the provisions of this Agreement and to take or abstain from taking certain other actions as set forth herein.
   2. The parties agree that the Confidential Information will be used by it solely for the purpose of performing the Agreement (the “Purpose”). The parties further agree to keep the Confidential Information in the strictest confidence, that they will not disclose it to any third party, and that the parties will establish and maintain best industry security measures to protect it from loss, theft and unauthorized disclosure; provided, however, that (i) the parties may disclose the Confidential Information to its Representatives for the Purpose, provided that any such person to whom Confidential Information is disclosed shall be directed by the parties not to disclose the Confidential Information in violation of this Agreement and to treat the Confidential Information in the strictest confidence in accordance with the provisions of this Agreement), and (ii) any disclosure of the Confidential Information may be made to which the disclosing party consents in writing prior to any such disclosure. The term “Confidential Information” does not include information which (i) is already in the receiving party’s or its Representatives’ possession before the Confidential Information is obtained by the receiving party, provided that such information is not known to be subject to another confidentiality agreement with, or other obligation of secrecy to, the receiving party or another party; (ii) becomes widely available to the public other than as a result of a disclosure by the receiving party or its Representatives in violation of this Agreement; (iii) becomes available to the receiving party or its Representatives on a non-confidential basis from a source other than the disclosing party or its representatives, agents and/or advisors, provided that such source is not known to be subject to a confidentiality agreement with, or other obligation of secrecy to, the receiving or another party; or (iv) is independently developed without use of or reference to the Confidential Information.
   3. Each party agrees that if it or any of its Representatives is requested or required by law, rule or regulation to disclose any Confidential Information, such party will, if it is permitted by law to do so, promptly notify the other party in writing of the nature of the request which in any event shall be sufficiently prior to the date on which such Confidential Information is due to be disclosed in order to permit such party to seek a protective order or to take other appropriate action. Each party agrees, if requested, to provide reasonable assistance in the other party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information. If, in the absence of a protective order, a party is, on the advice of counsel, requested or required to disclose the Confidential Information, such party may disclose only the part of the Confidential Information as is requested or required by law, rule or regulation to be disclosed, provided that it shall request confidential treatment of any information so disclosed.
   4. Promptly upon a written request by the disclosing party to the receiving party, the receiving party will destroy or deliver to the disclosing party all the disclosing party’s written Confidential Information and any other written material to the extent containing or reflecting any information in the Confidential Information (whether prepared by the disclosing party, its officers, employees, agents, representatives and/or advisors or otherwise).
   5. The failure by a party to exercise, or the delay in exercising, a right or remedy provided herein or by law does not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.

2. Data Protection.

   1. Eleven may process, access, receive or collect Personal Data (as defined in the Applicable Data Protection Laws) relating to your (Affiliates included) employees, directors and other personnel and/or clients or investors or any individuals associated with such clients or investors, as part of the operation of this Agreement and as required in order to provide the (Hosted) Software and any related services to you. The parties agree that Eleven is hereby permitted, and you hereby authorize Eleven, to process such Personal Data solely for purposes related to the carrying out of the (Hosted) Software and any related services and in compliance with the provisions included below.

   2. Where any Personal Data is supplied by, or provided access to by you (Affiliates included) under this Agreement (the “Disclosing Party”) to Eleven (Affiliates included) in connection with this Agreement, the following provisions shall apply, Eleven shall:

      1. only Process (as defined in the Applicable Data Protection Laws) such Personal Data for the purposes and in the manner specified in writing by, or agreed to in writing by the Disclosing Party, including as may be set forth in this Agreement;
      2. take all appropriate organizational, security and technical measures against unauthorized or unlawful processing of such Personal Data and against accidental loss or destruction of, or damage to, such Personal Data;
      3. not disclose such Personal Data to any third party without the prior written consent of the Disclosing Party;
      4. submit its data processing procedures relating to the Personal Data to scrutiny by the Disclosing Party and any applicable regulator during its usual office hours in order to ascertain compliance with the terms of this Agreement; and
      5. notify the Disclosing Party without undue delay on receiving any notice or communication from any supervisory regulatory or governmental body which relates directly or indirectly to the processing of Personal Data pursuant to this Agreement.

   3. To the extent that any Personal Data falling within the scope of the European Union General Data Protection Regulation (“GDPR”) or the United Kingdom (“UK”) Data Protection Act 2018 or the Personal Data (Privacy) Ordinance (Chapter 486 of the laws of Hong Kong) (as applicable) is supplied/given access to by you (Affiliates included) to Eleven in connection with this Agreement, and to the extent Eleven is considered a Data (Sub-)Processor under the GDPR or UK Data Protection Act 2018 or the Personal Data (Privacy) Ordinance (Chapter 486 of the laws of Hong Kong) (as applicable) and you (or its relevant Affiliate) the data controller or a data (sub-)processor itself (for the purposes of this Agreement, you shall be defined as “Data Controller” in either of these scenarios), the following provisions shall apply in addition to those stated above, Eleven shall:

      1. only process Personal Data for the purposes and in the manner specified in writing by the Data Controller (as defined in the GDPR), including as may be set forth in this Agreement;
      2. take all appropriate organizational, security and technical measures against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
      3. not disclose the Personal Data to any third party nor use any sub-processor without the prior written consent of the Data Controller;
      4. ensure that any of its personnel who access the Personal Data receive appropriate training on data protection issues at regular intervals and committed themselves contractually to confidentiality obligations no less protective than those included herein;
      5. not transfer any Personal Data originating from the European Economic Area outside the European Economic Area without the express written consent of Data Controller and always in compliance with the GDPR (including the ruling by the Court of Justice of the EU (CJEU) on 16 July 2020 in the so-called “Schrems II” case and subject to the applicable EU Standard Contractual Clauses as available here: https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc_en). For the avoidance of doubt, in case of any transfers of Personal Data outside the European Economic Area directly by the Data Controller to Eleven, such transfers shall also be governed by, and be subject to the terms of the applicable EU Standard Contractual Clauses;
      6. upon reasonable notice from the Data Controller, submit its data processing procedures relating to the Personal Data to scrutiny by the Data Controller and any regulator during its usual office hours in order to ascertain compliance with the terms of this Clause 10 (b);
      7. notify the Data Controller within forty-eight (48) hours if it becomes aware of any unauthorized or unlawful processing or any loss, destruction or damage to the other’s Personal Data;
      8. promptly carry out any reasonable request from Data Controller requiring the Data Processor to amend, transfer, delete or block all or any of the Personal Data;
      9. keep a record of any processing of Personal Data that it carries out on behalf of the Data Controller;
      10. assist the Data Controller within three (3) days of receipt of a request to respond to any subject access request or other data subject rights request by providing the Data Controller details of Personal Data that it holds, the purpose for which it is being processed and those to whom that Personal Data are disclosed, or doing such other thing as required from the Data Controller;
      11. provide the Data Controller with a copy of all Personal Data held by it in the format or on the media and within the time reasonably specified by the Data Controller; and
      12. notify the Data Controller immediately upon receipt of any notice or communication from a supervisory regulatory or governmental body which relates directly or indirectly to the processing of Personal Data pursuant to this Agreement.

11. Limitation of Damages

NEITHER ELEVEN, ITS AFFILIATES NOR ANY THIRD PARTY PROVIDER OF INFORMATION OR DATA OR THE SOFTWARE ON BEHALF OF ELEVEN SHALL IN ANY EVENT BE LIABLE FOR ANY LOSS, COST (INCLUDING COURT COSTS AND ATTORNEYS FEES), CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OR OTHER ALLEGED BREACH OF WARRANTY OR ACTION BROUGHT IN TORT OR STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LIABILITY REGARDLESS OF WHETHER ELEVEN OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES CAUSED. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OR EXCLUSION OF LIABILITY SHALL APPLY WITH RESPECT TO ANY CLAIMS BASED ON WILLFUL MISCONDUCT OR VIOLATION OF LAW.

12. Indemnity

1. Each party (such party, the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party (such party, the “Indemnified Party”) and the other party’s Representatives against all third party claims, losses or damages to persons or property, government charges or fines, and costs (including reasonable attorneys’ fees) arising from or connected with the Agreement solely to the extent caused by (i) the gross negligence or willful misconduct of the Indemnifying Party, its Representatives, independent contractors, or agents; (ii) to the extent that such losses, damages or claims arise out of the material breach by the Indemnifying Party of any of the representations or warranties made in Paragraph 9 of this Agreement. The Indemnifying Party shall not indemnify the Indemnified Party for any losses related to the Indemnified Party’s own tortious conduct, negligence, willful misconduct, breach of contract, or violation of law.
2. NOTWITHSTANDING ANYTHING SET FORTH TO THE CONTRARY ELSEWHERE IN THIS AGREEMENT ELEVEN’S TOTAL LIABILITY TO YOU UNDER OR ARISING OUT OF THIS AGREEMENT, EXCEPT TO THE EXTENT CAUSED BY ELEVEN’S FRAUD OR BREACH OF THE REPRESENTATIONS RELATED TO COPYRIGHT SHALL BE LIMITED TO THE AGGREGATE AMOUNTS PAID OR DUE AND OWING BY YOU TO ELEVEN HEREUNDER DURING THE MOST RECENT 3-MONTH TERM.

13. Promotion

Unless notified in writing to the contrary by you, Eleven is permitted to list you as a client on its website and in its marketing materials, including but not limited to using your name, or that of any of your affiliates, or any trade name, trademark, trade device, or simulation thereof, and a brief description of the services Eleven provides to you. This Section shall survive the termination of this Agreement.

14. Force Majeure

Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree. Notwithstanding the foregoing, to the extent that Eleven shall be excused from responsibility to perform under this Agreement under this Paragraph 14, Eleven will use reasonable efforts to resume services as soon as possible.

15. Non-Solicitation

During the Term and for a period of one (1) year thereafter, neither Eleven nor you shall hire, solicit for hire, or directly or knowingly indirectly use the services of any employee of the other party without the prior written consent of such other party. For purposes of this Paragraph, a person shall be deemed an “employee” of a party if such person has provided services to such party as an employee or independent contractor at any time within the preceding six (6) months.

16. Non-Disparagement

Each party agrees to refrain from making, or attempting to influence or convince any other person to make, any disparaging statements about the other or about any of the other’s Representatives; provided that each party and its Representatives shall be permitted to provide any information to the extent required by applicable law or regulatory authority, and provided further that both parties understand and agree that breach by one party of this Paragraph 16 shall result in the non-breaching party no longer being bound by the terms of this Paragraph.

17. Survival of Provisions

Paragraphs 1, 2, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18 shall survive any termination of this Agreement or the License.

18. Governing Law

This Agreement shall be governed by and construed with the laws of the State of New York without reference to the conflicts of laws rules thereof. Except with respect to any action arising out of the breach of Paragraph 9 of this Agreement, any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be exclusively determined by arbitration in New York, New York. The arbitration shall be administered by the American Arbitration Association pursuant to its then-current arbitration rules and procedures. Judgment on any award of the arbitrator may be entered in any court having jurisdiction. The prevailing party in any suit or arbitration shall be entitled to an award of its attorneys’ fees and costs, in addition to, and not in limitation of, other remedies, subject to the limitations set forth in Paragraph 11.

19. Miscellaneous

1. Modifications. We may modify this Agreement at any time by posting a revised version on Eleven or by otherwise notifying you in accordance with the Notices section below; provided, however, that we will provide at least 30 days’ advance notice in accordance with the Notices section for adverse changes to any Service Level Agreement. Subject to the 30-day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message.

   By continuing to use the Covered Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Platform regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the top of this Agreement.

2. Assignment. Any attempt by either party to assign its rights under this Agreement without the written prior consent of the other party shall be void. Notwithstanding the foregoing, either party may assign this Agreement in connection with the sale or other transfer of all or substantially all of such party’s assets to which this Agreement relates or in connection with a transfer of a controlling interest in such entity (by merger or otherwise). Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

3. Changes. We may change or discontinue any of the Services from time to time. We will provide you at least 30 days prior notice if we discontinue material functionality of a Service that you are using, or materially alter a customer-facing API that you are using in a backwards-incompatible fashion, except that this notice will not be required if the 90-day notice period (a) would pose a security or intellectual property issue to us or the Services, (b) is economically or technically burdensome, or (c) would cause us to violate legal requirements.

4. Notices

   1. To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Eleven Software; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on Eleven will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether you actually receive the email.
   2. To Us. To give us notice under this Agreement, you must contact us by email at support@platformeleven.io.

5. Headings; Construction. The headings in the Agreement are for descriptive purposes only and shall not control, alter, or otherwise affect the meaning, scope or intent of any provisions of the Agreement.

6. Independent Contractors. Eleven and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

7. Language. All communications and notices made or given pursuant to this Agreement must be in the English language.

8. Entire Agreement. This Agreement incorporates by reference and supplements the Terms of Use, Product Terms and the Covered Services and represents the entire agreement between the parties with respect to the products and services referenced herein. The invalidity or unenforceability of any part of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. Any terms not defined in this Agreement have the meanings set forth in the Terms of Use and Covered Services. If there is any conflict between language in this Agreement and the Terms of Use and Covered Services, the provisions of this Agreement shall supersede those of the other two agreements. In addition, it is agreed that the terms of each of these written agreements shall prevail over the terms of the online versions of such agreements.