Master Subscription Agreement
MASTER SUBSCRIPTION AGREEMENT
THIS AGREEMENT GOVERNS YOUR USE OF THE ESHARES, INC. HOSTED SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” IN THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE HOSTED SERVICES.
You may not access the Hosted Services if You are eShares’ direct competitor, except with eShares prior written consent. In addition, You may not access the Hosted Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This agreement was last updated on July 3, 2017 (“Agreement”). It is effective between You and eShares, Inc., a Delaware corporation with offices at 195 Page Mill Road, Suite 101, Palo Alto, CA 94306 ("eShares") as of the date You accepted this Agreement (the "Effective Date").
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Hosted Services" means the generally available online, Web-based applications and services related to the issuance of corporate equity and debt liabilities that are ordered by Customer under an Order Form, including updates thereto from time to time.
"Customer Data" means any data, information or other materials submitted by Customer to the Hosted Service.
"Customer Trademarks" means any trademarks that Customer provides eShares for the purpose of referring to Customer within the user interface for the Hosted Service.
"Dispute Period" means fifteen (15) days from receipt of invoice.
"Documentation" means eShares' then current on-line help, guides, and manuals published by eShares and made generally available by eShares for the Hosted Services. Documentation shall include any updated Documentation that eShares provides.
"Effective Date" means the date Customer executes this Agreement. The “effective date” of an Order Form shall be the date Customer executes such Order Form.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for Customer purchases from eShares that are executed hereunder by Customer and eShares from time to time. All Order Forms shall be deemed incorporated herein. The initial Order Form is attached hereto as Exhibit A.
"Provider" means a third party service provider (e.g. law firm or accounting firm), that Customer authorizes to use the Hosted Services for the benefit of Customer. Providers shall be deemed Users for purposes of this Agreement.
"Security Holders" means a unique individual or entity listed in the Customer's capitalization table.
"Security Issuances" means the issuance of securities such as common stock, preferred stock, option grants, warrants, and convertible notes.
"Subscription Term" means the period of time that Customer may use and access the Hosted Service beginning on the Effective Date and as set forth in the applicable Order Form. The Hosted Service may automatically deactivate and become non-operational at the end of the Subscription Term, and Customer shall not be entitled to access the Hosted Services unless the Subscription Term is renewed.
"Users" means individuals who are authorized by Customer to use the Hosted Services, for whom subscriptions to the Hosted Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by eShares at Customer’s request). Users may include but are not limited to employees, consultants, contractors and agents of Customer, or third parties with which Customer transacts business.
2. HOSTED SERVICES.
2.1 eShares shall make the Hosted Services available to Customer and its Users pursuant to this Agreement and the applicable Order Form during each Subscription Term. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by eShares regarding future functionality or features. Customer shall be responsible for Users' compliance with this Agreement.
2.2 Unless otherwise specified in the applicable Order Form, Hosted Services are purchased as User subscriptions based on the number of Security Holders, and Enterprise Subscription fees.
2.3 Customer shall not: (i) sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Hosted Services available to any third party other than Users; (ii) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the Hosted Services for any purpose including without limitation discovering individual Customer Data or re-identifying anonymous data; (iii) access or use the Hosted Services in order to build a similar or competitive product or Hosted Service; (iv) disclose any review of the Hosted Service to any third party without eShares' prior written approval; (v) use any e-mail addresses and other customer contact information provided on the Hosted Service for marketing or advertising purposes; or (vi) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information.Except as expressly stated herein, no part of the Hosted Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including but not limited to electronic, mechanical, photocopying, recording, or other means. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Hosted Services, and notify eShares promptly of any such unauthorized access or use.
3. THIRD-PARTY PROVIDERS. Customer may authorize Provider to use the Hosted Services. Provider's use of the Hosted Services and provision of services to Customer related thereto including but not limited to any terms, conditions, warranties or representations associated with such services and any exchange of data between Customer and such Provider is solely between Customer and the applicable Provider. eShares shall have no liability or obligation for, and does not endorse or accept any responsibility for Provider, the contents or use of third party web sites or any transactions completed with Providers or any third parties. Customer is responsible for all acts and omissions of Provider or any third party User.
4.1 As between the Parties, eShares shall own and retain all right, title and interest in and to the Hosted Services and eShares Confidential Information (defined below), including all intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. As between the Parties, Customer shall own all right, title and interest in and to any Customer Data and Customer Confidential Information. Customer grants to eShares the non-exclusive, worldwide right to copy, adapt, transmit, communicate, display, distribute and create compilations and derivative works of the Customer Data for the purpose of providing the Hosted Services hereunder and to improve or enhance the Hosted Services. This license includes use of Customer Data to compile, use and disclose anonymous, aggregated statistics that include Customer Data, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer's Users. Customer shall be solely responsible for ensuring that Customer has obtained all necessary third party consents and made all required disclosures in connection with the foregoing grant. Customer acknowledges and agrees that Customer Data may be transferred outside of the country or other jurisdiction where other customers or users are located. In addition, Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Customer Data.
4.2 eShares shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Hosted Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Hosted Services.
5. BILLING AND PAYMENT.
5.1 Customer agrees to pay in advance for all Hosted Services ordered. Except as otherwise provided: (i) the fees set forth in each Order Form hereunder shall be fixed during the Subscription Term including for purchases of additional Users; (ii) the Hosted Services fees for the first Subscription Term set forth in each Order Form hereunder will be invoiced upon execution of such Order Form; and (iii) subsequent fees under such Order Form will be invoiced, if applicable, in advance approximately thirty (30) days prior to the start of each subsequent Subscription Term or charged automatically at the start of each subsequent Subscription Term; provided, however, that if the subsequent Subscription Term begins on the 28th, 29th, 30th, or 31st day of the month, Customer may be automatically charged on the 27th day of the applicable month. All fees under this Agreement are nonrefundable except as otherwise set forth herein. eShares' fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed by eShares.
5.2 Except as otherwise provided in an Order Form, payment for invoices is due within thirty (30) days of Customer’s receipt of the applicable invoice (excluding amounts under reasonable and good faith dispute). If any amounts are withheld by Customer, Customer shall, within the Dispute Period provide eShares a reasonably detailed written explanation of the nature of the dispute, which explanation shall set forth the dollar amounts withheld and the reasons for withholding such amounts. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived. For clarity, Customer remains obligated to pay eShares for all portions of the applicable invoice that are not under reasonable and good faith dispute. Overdue amounts are subject to interest at one and a half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, and may result in suspension of Customer's ability to access the Hosted Service until payment is made. Customer shall reimburse eShares for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by eShares in the collection of overdue amounts.
6. SUPPORT. For the Subscription Term eShares shall provide assistance to Customer by telephone, e-mail or online chat as set forth on https://support.esharesinc.com/. eShares shall use reasonable commercial efforts to correct at no additional charge any reproducible errors reported by Customer. eShares shall review all requests for improvements and new functionality, but eShares shall have no obligation to provide any modifications to the Hosted Service.
7. LIMITED REPRESENTATIONS & WARRANTIES. Each Party represents and warrants that it has the power and authority to enter into this Agreement. eShares warrants that (i) it will provide the Hosted Service in a manner consistent with generally accepted industry standards, (ii) the Hosted Service will perform substantially in accordance with its online Documentation under normal use, (iii) the functionality of the Hosted Service will not be materially decreased during a subscription term; (iv) the configuration of the Hosted Services will conform in all material respects to this Agreement and/or the applicable Order Form; and (v) the Hosted Service will not contain or transmit to Customer any Malicious Code (except for Malicious Code that may be uploaded by Users). In the event of breach of (i) , (ii) or (iv) above, Customer’s sole and exclusive remedy, and the sole and exclusive obligation of eShares, shall be to use commercially reasonable efforts to correct or provide a workaround for the reproducible error(s) that cause breach of these warranties, or if eShares is unable to make the Hosted Service operate as warranted within a reasonable time considering the severity of the error and its impact on the Customer, Customer shall be entitled to terminate this Agreement and receive a pro-rata refund.
8. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. LIMITATION OF LIABILITY.
9.1 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ESHARES OR ITS THIRD PARTY PROVIDERS EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
9.2 IN NO EVENT SHALL EITHER PARTY OR THIRD PARTY PROVIDERS OF ESHARES BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE HOSTED SERVICE, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY IN THE EVENT OF CUSTOMER'S INFRINGEMENT OR MISAPPROPRIATION OF ESHARES' INTELLECTUAL PROPERTY RIGHTS, OR TO CUSTOMER’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 10 BELOW. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY.
10.1 Indemnification by eShares. eShares shall defend, indemnify and hold Customer harmless against any "Claims" made or brought against Customer by a third party alleging that (i) the use of the Hosted Service as contemplated hereunder infringes the copyrights, trademarks or trade secrets of such third party; (ii) eShares' breach of its confidentiality obligations relating to Customer Data harmed such third party; or (iii) eShares failed to comply with applicable laws, rules or regulations in its performance of this Agreement; provided, that Customer (a) promptly gives written notice of the Claim to eShares; (b) gives eShares control of the defense and settlement of the Claim (provided that Customer may participate in such defense at its own expense and that eShares may not settle any Claim in a manner that admits liability on behalf of Customer); and (c) provides to eShares, at eShares’ expense, reasonable assistance in connection with the defense and settlement of the Claim. eShares shall pay Customer any damages finally awarded against Customer, settlements agreed to in accordance with Section 10.1(b) and reasonable costs and expenses (including reasonable legal fees) directly attributable to such Claim.
10.1.1 eShares may, at its sole option and expense: (i) procure for Customer the right to continue using the Hosted Service under the terms of this Agreement; or (ii) replace or modify the Hosted Service to be non-infringing without material decrease in functionality. If the foregoing options are not reasonably practicable, eShares may terminate this Agreement and refund to Customer all prepaid fees for the remainder of its subscription term after the date of termination. This Section 10 represents eShares’ entire obligation and Customer's exclusive remedy regarding any third party intellectual property claims.
10.1.2 Furthermore, eShares shall have no liability for any Claim under Section 10.1(i) to the extent such liability is the result of (i) modifications to the Hosted Service by anyone other than eShares or its agents (provided that eShares shall not be liable if eShares or its agents made the modifications using requirements documents, written specifications or other written materials submitted by Customer or its agents or representatives); (ii) the use or combination of the Hosted Service with any other item not provided by eShares where in the absence of such use or combination, the Hosted Service alone would not have given rise to the Claim; or (iii) Customer’s continued use of an infringing version of the Hosted Service when the then current version of the Hosted Service has been modified to be non-infringing.
10.2 Indemnification by Customer. Customer shall defend, indemnify and hold eShares harmless against any Claims made or brought against eShares by a third party alleging that (i) the Customer Data or eShares’ transmission or hosting thereof infringes or violates the rights of such third party; (ii) Customer's use of the Hosted Service in violation of this Agreement infringes or violates the rights of such third party; or (iii) Customer failed to comply with applicable laws, rules or regulations in its performance of this Agreement; provided, that eShares (a) promptly gives written notice of the Claim to Customer; (b) gives Customer control of the defense and settlement of the Claim (provided that eShares may participate in such defense at its own expense and that Customer may not settle any Claim in a manner that admits liability on behalf of eShares); and (c) provides to Customer, at Customer's expense, reasonable assistance in connection with the defense and settlement of the Claim. Customer shall pay eShares any damages finally awarded against eShares, settlements agreed to in accordance with Section 10.2(b) and reasonable costs and expenses (including reasonable legal fees) directly attributable to such Claim.
11. TERM AND TERMINATION.
11.1 The term of this Agreement shall commence on the Effective Date listed above and shall continue until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2 The subscription term of an Order Form commences on the Effective Date (for the initial purchase of subscriptions) or the effective date of such Order Form (for subsequent purchases of subscriptions), and continues for the subscription term specified in such Order Form. Customer's subscription to the Hosted Service will automatically renew at the applicable subscription renewal fee based on the number of Security Holders at the time of such renewal, for a renewal Subscription Term paid for by Customer prior to the expiration of the initial Subscription Term or any renewal Subscription Term, unless and until Customer provides eShares with no less than fifteen (15) days’ written notice of its intent not to renew prior to the expiration of the initial Subscription Term or any renewal Subscription Term. In no event will the renewal subscription level be lower than the subscription level of the previous Subscription Term. In the event that any Subscription Term expires before Customer makes a payment for a renewal Subscription Term, eShares reserves the right to charge: (a) a proportionate fee for the elapsed time period during which the Subscription Term was expired and (b) a reactivation fee to process the renewal.
11.3 A Party may terminate this Agreement for cause (i) upon breach of this Agreement if such breach has not been cured within 30 days of written notice from the non-breaching Party specifying the breach in detail and, if eShares is the non-breaching Party, eShares may terminate Customer's password, account, access to and/or use of the Hosted Service; (ii) immediately upon written notice if the other Party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; (iii) if either Party undergoes a change of Control in favor of a direct competitor of the other Party; or (iv) as otherwise provided herein. eShares may terminate this Agreement for cause if the implementation of the Hosted Service has not been completed within three (3) months of the Effective Date (for the initial purchase of subscriptions) and, in such case, eShares may terminate Customer's password, account, access to and/or use of the Hosted Service.
11.4 At Customer's request, within 30 days of termination of this Agreement, provided Customer is not in breach of the Agreement, eShares will make available to Customer a file of the Customer Data then in its possession for a nominal handling fee. Customer agrees and acknowledges that eShares has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted after 30 days following the termination of this Agreement or if Customer's account is 30 days or more past due. The following provisions shall survive any termination of this Agreement: Sections 4, 5, 9, 10, 11.4, 12, and 14.
12. CONFIDENTIAL INFORMATION.
12.1 Each Party may have access to information that is confidential to the other Party. As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party"), whether orally or in writing, that is clearly identified as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, including but not limited to the terms and conditions of this Agreement (including pricing and other terms reflected in an Order Form hereunder), the Customer Data, the Hosted Service, business and marketing plans, technology and technical information, product designs, trade secrets and business processes. A Party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party's lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party without use of or reference to the other Party's Confidential Information. The Parties agree to use all reasonable care to prevent disclosure of the other Party's Confidential Information to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that eShares may disclose Customer's Confidential Information to its employees, consultants, Providers and other third party providers solely to the extent necessary to provide the Hosted Service under this Agreement, provided that eShares has a non-disclosure agreement in place with such third party provider that protects such Confidential Information against disclosure in a manner no less protective than this Agreement. This Section 12 constitutes the entire understanding of the Parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.
12.2 If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if Disclosing Party wishes to contest the disclosure.
12.3 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 12, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies may be inadequate.
12.4 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information for five (5) years and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
13. CUSTOMER'S RESPONSIBILITIES. Customer will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Hosted Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which eShares controls and operates the Hosted Services. Customer will ensure that any use of the Hosted Services by Customer's Users is in accordance with the terms of this Agreement.
14. GENERAL PROVISIONS.
14.1 If Customer is a federal government entity, eShares provides the Hosted Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Technical data and computer software rights related to the Hosted Service include only those rights customarily provided to the public as set forth in this Agreement. The license rights hereunder are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR
14.2 Either Party may include the other's name and logo in Customer or vendor lists.
14.3 Any action related to this Agreement will be governed exclusively by the internal laws of the state of California, without regard for its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in San Francisco County, California. The Parties hereby irrevocably consent to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
14.4 This Agreement, together with any applicable Exhibits represent the Parties' entire understanding relating to the use of the Hosted Services and supersedes any prior or contemporaneous, conflicting or additional, communications. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of the Parties hereto. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than an Order Form or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void.
14.5 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.6 No joint venture, partnership, employment, or agency relationship exists between eShares and Customer as a result of this Agreement or use of the Hosted Services.
14.7 Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (i) either Party may assign this Agreement in its entirety (including all Order Forms hereunder) to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other Party; and (ii) eShares may assign its rights and obligations relating to implementation of the Hosted Service to an Affiliate or partner. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
14.8 eShares reserves the right to use third party providers in the provision of the Hosted Services hereunder and eShares will be responsible for the acts or omissions of such third parties.
14.9 Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such Party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such Party's employees), internet or other Hosted Service disruptions involving hardware, software or power systems not within such Party's possession or reasonable control, and denial of Hosted Service attacks.
14.10 eShares may give notice by means of a Customer Notification on the Hosted Service; electronic mail to Customer's e-mail address on record in eShares's account information, or by written communication sent by first class mail or pre-paid post to Customer's address on the Hosted Service. Customer may give notice to eShares at any time by letter sent by email to firstname.lastname@example.org or by letter delivered first class mail to eShares at 195 Page Mill Road, Suite 101, Palo Alto, CA 94306. All notices shall be deemed to have been given five days after mailing (if sent by first class mail) or 24 hours after sending by confirmed facsimile.
14.11 The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any rights not expressly granted herein are reserved by eShares.
14.12 eShares reserves the right to alter the terms of this Agreement at any time. If the alterations constitute a "material change" to the Agreement, eShares will notify Customer. What constitutes a "material change" will be determined at eShares's sole discretion, in good faith and using common sense and reasonable judgment, but will only include those changes that materially affect Customer's use of the Hosted Services or rights under this Agreement. Notice will be considered to have been delivered once sent. Customer agrees to review the latest version of the Agreement on eShares's website periodically to remain aware of any non-material modifications to the Agreement about which Customer is not alerted by eShares. The Agreement available on the web site will be dated so as to make clear what version is currently in force. Any use of the Hosted Services after alteration of the Agreement will constitute acceptance by Customer of such changes. Customer's sole remedy should Customer not agree with the altered Agreement shall be to cease Customer's use of the Hosted Services and to comply with Customer's termination obligations outlined in Section 11 of this Agreement.