These terms of service, as amended, supplemented or replaced from time to time (“Terms”) constitute a contract between the recipient of services (“Customer”, “you” or “your” as the context requires) and the relevant ELLEVEN CAPITAL INC a Delaware corporation located at 1209 Orange Street, Wilmington, New Castle County, DE 19801 and/or one or more of its Affiliate(s) (“we”, “us” or “our” as the context requires) that is providing the services. The Terms govern your use of the services provided by ELLEVEN CAPITAL INC described below (“Services”).
These Terms apply to Services provided to Customers who have their registered office, place of incorporation or place of residence in any jurisdiction where we are permitted to provide our Services.
By signing up for an account through the ELLEVEN CAPITAL INC website (the “Site”) or using any of our Services, you agree that you have read, understand, and accept all of the terms and conditions contained in these Terms. The Terms include and should be read together with our Privacy Notice.
Please also note that the provisions of these Terms are in addition to any other contract relating to our Services between you and ELLEVEN CAPITAL INC, which may take the form of a service agreement, an engagement letter, or another type of agreement. Whether or not using the Site, these Terms govern the trading and Services together with any such other contract to which you have agreed with the relevant ELLEVEN CAPITAL INC entity or entities, which collectively shall form a single agreement which is hereafter referred to collectively as the “Agreement”.
In the event of any conflict or inconsistency between these Terms and such other contract, the other contract shall prevail to the extent of the conflict or inconsistency.
Your use of the Site and/or Services is governed by the version of the Terms in effect on the date of use. We may make changes to the Terms from time to time without prior notice. If we do so, we will post the changed provisions on the Site, and the revised Terms shall be effective as of such time. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services. You understand and agree that your continued use of the Services or the Site after we have made any such changes constitutes your acceptance of the new Terms.
Some Services described in these Terms or on the Site may not be available in all jurisdictions or to all Customers. Such determinations will be made by ELLEVEN CAPITAL INC in its sole discretion.
2.1. Affiliate: An entity that owns or controls, is owned or controlled by, or is or under common control or ownership with a party, where control is defined as the direct or indirect power to direct or cause the direction of the management and policies of such party, whether through ownership of voting securities, by contract, or otherwise.
2.2. Agreement: The contract between the Customer and ELLEVEN CAPITAL INC which incorporates these Terms and, where applicable, any other services agreement or contract between the parties. If there is an inconsistency or contradiction between these Terms and such other services agreement or contract, the services agreement or contract shall govern.
2.3. AML/CFT: Anti-money laundering and countering the financing of terrorism.
2.4. AML/CFT Policy: Our AML/CFT policies and procedures in force, as amended from time to time.
2.5. Applicable Laws: Has the meaning given in Section 4.1.
2.6. Asset: Fiat Currency or Digital Asset.
2.7. Authorized User: If the Customer is a natural person, “Authorized User” means the Customer and the individuals nominated and authorized by the Customer as Authorized Users in the relevant contractual documentation or otherwise in accordance with Section 5.2. If the Customer is a company or other legal entity, “Authorized User” means the individuals nominated and authorized by the Customer as Authorized Users in the relevant contractual documentation with or otherwise in accordance with Section 5.2.
2.8. Business Day: Any day other than a Saturday, a Sunday, or day when federal banks located in the State of Massachusetts as applicable, are closed for a legal holiday or by government directive.
2.9. Conduct Violation: A violation by either the Customer or Authorized User of any provision in these Terms or any Applicable Laws.
2.10. Digital Asset: A digital asset (also called a “cryptocurrency”, “digital payment token”, “virtual currency,” “digital currency,” or “virtual commodity”) such as bitcoin or ether, which is a digital representation of value based on, or built on top of, a cryptographic protocol of a computer network.
2.11. Digital Asset Transactions: Has the meaning given in Section 6(c).
2.12. Fiat Currency: Any government-issued national currency, which is also referred to as “funds” in these Terms.
2.13. ELLEVEN CAPITAL INC Platform: The Site, ELLEVEN CAPITAL INC’ user interface and any other application, including any application programming interface (API), or online portal through which the Customer can access our Services.
2.14. Obligations: Any debts, amounts owed, or liabilities incurred by us or by you or any of your Authorized Users whether under the Agreement or otherwise. Obligations may include both secured and unsecured debts, and Obligations you owe individually or together with someone else, including Obligations under other transactions or agreements between you and us or any of our Affiliates.
2.15. Site Content: All content on the Site, including but not limited to designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement.
3.1. In order to be eligible to access and use the Services, (i) you must be at least eighteen (18) years of age and competent to enter into a contract, in the jurisdiction(s) where you are using the Services and where you reside at the time you register, (ii) have the legal ability to enter into and be bound by these Terms, (iii) comply with these Terms and any relevant Agreement, and (iv) register for and have a valid ELLEVEN CAPITAL INC Account, as provided in Section 5 below. ELLEVEN CAPITAL INC is not obligated to accept any application and has sole and absolute discretion to reject applications to create a ELLEVEN CAPITAL INC Account, to revoke ELLEVEN CAPITAL INC Accounts or permissions, or to otherwise engage with potential customers or customers through any of its and/or its vendors’ platforms.
3.2. Although we intend to provide accurate and timely information on the Site, the Site (including, without limitation, the Site Content) may not always be entirely complete or current. To continue to provide you with as complete and accurate information as possible, information may, to the extent permitted by Applicable Laws, be changed or updated from time to time without notice, including without limitation, information regarding our policies and Services. Any dated information is published as of its date only, and ELLEVEN CAPITAL INC does not undertake any obligation or responsibility to update or amend any such information.
3.3. ELLEVEN CAPITAL INC may discontinue or change any of our Services at any time without prior notice. ELLEVEN CAPITAL INC further reserves the right, in its sole discretion, to block or otherwise discontinue your access and use of the Site or our Services at any time and for any reason. You agree that ELLEVEN CAPITAL INC and its Affiliates will not be liable to you or to any third party for any such modification, suspension or discontinuance.
4.1. The Customer’s conduct in using our Services is subject to applicable laws and regulations (“Applicable Laws”), including but not limited to the laws and regulations of the United States.
4.2. The Services are only intended for use in locations, where such Services are legal. Any use by you of the Services from a location where the Services, or any portion thereof, are illegal is expressly prohibited.
4.3. You agree and understand that by using, or attempting to use, our Services in any capacity, you must act in compliance with and will be legally bound by these Terms as well as all Applicable Laws. Your continued use of our Services is always conditional on your continued compliance with these Terms and Applicable Laws.
5.1. Account Opening
a. In order to use the Services, you must first register with ELLEVEN CAPITAL INC through our proprietary platform, ELLEVEN CAPITAL INC , provide the requested information and indicate the Services that you are interested in using. Access will be granted to particular Services or products you have requested, only after ELLEVEN CAPITAL INC has reviewed and approved your application to use the Services. Your ELLEVEN CAPITAL INC Account is an administrative account, and it may also allow you to view your balances in connection with the Services provided to you by ELLEVEN CAPITAL INC, access the Services and conduct certain transactions.
b. After you have successfully registered for a ELLEVEN CAPITAL INC Account and are approved, you may nominate one or more individuals as Authorized Users according to Section 5.2.
c. For purposes of fighting the funding of terrorism and money laundering activities, U.S. Federal law and Applicable Laws requires financial institutions, including ELLEVEN CAPITAL INC, to cooperate with and support regulators and law enforcement agencies in their efforts to prevent, detect and control financial crime. ELLEVEN CAPITAL INC has an obligation to comply with AML laws and regulations to close off the financial channels that money launderers and terrorist organizations use for illicit purposes. The regulatory requirements related to anti-money laundering and countering the financing of terrorism (AML/CFT), include Know Your Client (“KYC”) obligations and observing Department of Treasury’s Office of Foreign Assets Control (“OFAC”) sanctions under the US Bank Secrecy Act, Patriot Act and other Applicable Laws.
d. ELLEVEN CAPITAL INC is required to comply with applicable AML and KYC requirements when you register for a ELLEVEN CAPITAL INC Account, and thereafter on an ongoing basis.
In order to use any of our Services, you must first successfully provide the required identification information pursuant to our AML/CFT Policy. When you register for a ELLEVEN CAPITAL INC Account, we will ask for documentation and information, including but not limited to copies of your government-issued identification document (e.g., passport). For corporate ELLEVEN CAPITAL INC Accounts, we may require identification information related to the directors, officers, authorized representatives, or equity owners of the business. We may also require such information in relation to each Authorized User you nominate.
We may gather and use information about you from third parties, to help us confirm your identity, perform our AML/KYC checks and/or determine your access to the Services. You represent and warrant at all times that any and all information provided by you to us is true, accurate, and not misleading in any respect. If any such information changes, it is your obligation to provide the new information to us as soon as practicable following such change.
ELLEVEN CAPITAL INC is obligated to maintain certain information about you, including Authorized User records and transaction history, for five years, or a longer period as may be required under Applicable Laws. Under certain circumstances, ELLEVEN CAPITAL INC is required to report to the competent authorities of any unusual transactions, or of any suspicion it may have that you or any Authorized User might be involved in any financial crime or illicit activity.
5.2. Authorized User
a. The Customer’s ability to use our Services shall be restricted to Authorized Users only.
b. The Customer shall ensure that any Authorized Users use the Services in accordance with the Agreement and shall be responsible for all acts and omissions committed by its Authorized Users and any of its Authorized User’s breach of the Agreement. The Customer is responsible for entering any agreements with Authorized Users that it considers desirable or necessary. The Customer will, on ELLEVEN CAPITAL INC’s request, promptly provide a copy of any agreements with its Authorized Users relating to the Agreement. Notwithstanding the above, ELLEVEN CAPITAL INC Custody has no duty to enquire into or to investigate the legality, validity, or accuracy of any instruction given by an Authorized User.
c. The Authorized Users shall provide photographic identification, proof of address, passwords and/or any other information or documentation requested by ELLEVEN CAPITAL INC to verify their identity and/or authority prior to using our Services.
d. The Customer shall provide us with an up-to-date list of Authorized Users within five Business Days of our written request at any time. The Customer may change the individuals nominated as Authorized Users at any time by providing us prior written notice. ELLEVEN CAPITAL INC may, in our sole discretion, accept or reject the authorization of any Authorized User, or revoke the authority of any Authorized User at any time. The Customer must notify us immediately if it revokes the authority of any existing Authorized User. The Customer remains responsible for the acts or omissions of such former Authorized User in relation to the Agreement even after it has revoked such authority.
e. The Customer shall indemnify, defend and hold harmless ELLEVEN CAPITAL INC, including its employees and representatives, except in the case of willful misconduct, gross negligence or deliberate default on the part of ELLEVEN CAPITAL INC, from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) arising out of or related in any way to any instruction, act or omission of the Customer or any Authorized User, including, without limitation, in connection with or arising from any associated breach or alleged breach of Applicable Laws by the Customer or any Authorized User or any action taken or initiated by or on behalf of the U.S. Securities and Exchange Commission, the Commodity Futures Trading Commission, the New York State Department of Financial Services or equivalent regulator in any other jurisdiction.
f. If the Customer is a natural person, the Customer must at all times remain an Authorized User. If you would like more information about completing our AML/CFT Policy or about adding or revoking an Authorized User from your account, please email us pursuant to the contact information provided in Section 15.
5.3. Asset Account Types
a. Depending on the Services you use, you may have one or more Asset-holding accounts with us, including Fiat Currency accounts (“Fiat Account”) or Digital Asset accounts (“Digital Asset Account”) (each an “Asset Account”).
5.4. Source of Funds
a. You agree, represent, and warrant that all Assets deposited, transferred, exchanged or otherwise utilized in connection with Services provided by ELLEVEN CAPITAL INC, or that are deposited, transferred or exchanged by you or your Authorized User in the future in the course of using our Services, are not the direct or indirect proceeds of any criminal or fraudulent activity.
b. We reserve the right to investigate the source of any Assets and determine, in our sole discretion, how to handle their disposition. Following our review of any Assets in question and the circumstances by which you received them, we may determine that you are not the owner of such Assets. If such a determination is made, we reserve the right to dispose of any Assets then in our possession in our sole discretion, subject to Applicable Laws, which may include, returning them to the destination of origin or to a charity of our choosing.
5.5. Account & Transaction Limits
The use of our Services may be subject to different types of limits, including the value of a transaction, the amount, or volume you may transact or transfer in a given period of time, and/or the amount you may borrow from us and/or loan to us. Your transaction limits may vary depending on the type of Services you are using, your payment method, identity verification steps you have completed, and other factors, determined in ELLEVEN CAPITAL INC’s sole discretion. ELLEVEN CAPITAL INC reserves the right to change applicable limits as we deem necessary in our absolute and sole discretion. You may contact us at in accordance with Section 15 to request larger limits. We may conduct further checks, require you to submit additional information about yourself or your business, and/or arrange for meetings with our representatives. Additional fees and costs may apply, and we cannot guarantee that we will raise your limits. The limits described here may apply to you and/or at the level of each of your Authorized Users (as the case may be).
5.6. Account Access and Security
a. You are solely responsible for the activities undertaken with ELLEVEN CAPITAL INC and through your ELLEVEN CAPITAL INC Account and your Authorized Users are responsible for securing your ELLEVEN CAPITAL INC Account IDs, passwords, hints, or any other codes that you use to access your ELLEVEN CAPITAL INC Account and the Services.
b. You are responsible for ensuring your Authorized Users keep the electronic device through which they access the Services safe and maintain adequate security and control of any and all security details that they use to access the Services. This includes taking all reasonable steps to avoid the loss, theft or misuse of such electronic device and ensuring that such electronic device is both encrypted and password-protected. ELLEVEN CAPITAL INC assumes no responsibility for any loss that you may sustain due to compromise of account login credentials due to no fault of ELLEVEN CAPITAL INC and/or you or your Authorized User’s failure to follow the requirements set out in the Agreement, or to follow or act on any notices or alerts that we may send to you or your Authorized User.
c. You are responsible for monitoring your ELLEVEN CAPITAL INC Account and any records or communications related to the Services engaged in by you with ELLEVEN CAPITAL INC. If you or your Authorized User suspect that your ELLEVEN CAPITAL INC Account or any of your Authorized User’s security details or login credentials have been compromised or if you or your Authorized User become aware of any fraud or attempted fraud or any other suspicious, unauthorized activity or security incident (including a cyber-security attack) affecting you and/or ELLEVEN CAPITAL INC (together a “Security Breach”), you or your Authorized User must notify ELLEVEN CAPITAL INC as soon as possible (using the contact details under Section 15 below) and continue to provide accurate and up-to-date information throughout the duration of the Security Breach. You and your Authorized User must take any steps that we reasonably require to reduce, manage or report any Security Breach. Failure to provide prompt notification of any Security Breach, or to take any steps that we may reasonably require, may be taken into account in our determination of the appropriate resolution of the matter.
d. You agree that you are responsible for any unauthorized use of any Authorized User’s security details or login credentials that is made before you have notified us and we have had a reasonable opportunity to act on such notice. We reserve the right to suspend or cancel any Authorized User’s login access, even without receiving such notice from you or your Authorized User, if we suspect that it is being used in an unauthorized or fraudulent manner.
e. ELLEVEN CAPITAL INC is not liable for any damage or interruptions caused by any computer viruses or other malicious code that may affect your or your Authorized User’s computer or other electronic device, or any phishing, spoofing or other attack. We advise the regular use of a reputable and readily available virus-screening and prevention software. You and your Authorized User should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks, and you and your Authorized User should use care in reviewing messages purporting to originate from us.
f. We will not be liable for following any instruction we receive through your ELLEVEN CAPITAL INC Account, even if it was not authorized by you or any Authorized User, or if it was entered by mistake or is otherwise inaccurate. To verify the authenticity of any instruction we receive from you or through your ELLEVEN CAPITAL INC Account, we may require your or your Authorized User’s signature or identification in any form we deem necessary, in our sole discretion, and we may accept digital images and electronic signatures for documents that need to be signed. You agree to reimburse us (and we may charge you or deduct from the balance of any or your Assets then in our possession or control) for all claims, costs, losses and damages, including reasonable attorneys’ fees, that result from our following of your or your Authorized User’s instructions to take any action related to your ELLEVEN CAPITAL INC Account. In making such a charge or deduction, we will apply an exchange rate.
5.7. Communication & Notices
a. Subject to Dispute Notices in Section 13.14(c), and unless the Agreement requires otherwise, you agree and understand that all notices to you will be electronic, whether via email or similar communication service. We will use the email address on record for your ELLEVEN CAPITAL INC Account as our primary means of communicating with you by email. You agree to keep your email address up-to-date and immediately notify us if there are any changes. Delivery of any communication to the email address on record is considered valid. Subject to Dispute Notices in Section 13.14(c), notices referred to in this Agreement shall be deemed to have been duly given or made according to Section 13.14. If any email communication is returned as undeliverable, we may block your access to our Services until you provide and confirm a new and valid email address.
b. We may record and monitor our telephone conversations with you and your electronic communications with us (chat, email, and other forms of electronic exchange) unless Applicable Laws require otherwise. You consent in advance to such recording and monitoring and we do not need to remind you of these activities. You must promptly notify us of any change in your contact information, including residential, post and email address. Failure to notify us in a timely fashion may result in delay or non-receipt of notices or correspondence.
c. You are responsible for making sure that any instructions provided or orders placed by you in the course of using our Services are provided or placed using the appropriate and acceptable channels, and are accurate and intentional. We may at our sole discretion, require secondary electronic, verbal, written or other confirmation before acting if your account activity is outside of its normal range of activities.
d. For the purpose of this Section 5.7, communication between ELLEVEN CAPITAL INC and you, including placing of instructions or indications of interest, refers to communication between us and you and/or your Authorized Users (as the case may be).
5.8. Transaction History and Acknowledgment
a. We will make logs and records of activities concerning your use of the Services (“Transaction History”) available to you through your ELLEVEN CAPITAL INC Account, as possible under the current functionality. We have no obligation to generate periodic statements showing the activity conducted through your use of the Services. Depending on the Services you use, your Transaction History may contain all of your trading activity, including pending transactions, lending or borrowing activities, as well as other pertinent transaction records.
b. You and your Authorized User must examine your Transaction History and notify us of any unauthorized use of your ELLEVEN CAPITAL INC Account or credentials, or any error or irregularity with respect to the records of your use of the Services. Subject to Section 6(k), which specifies when and how you and your Authorized User should notify us in relation to unauthorized or incorrect Digital Asset Transactions, any information listed in your Transaction History, or other communication including, but not limited to, receipts sent to your email on record, shall be deemed, and shall be treated as correct, and authorized, approved, and confirmed by you, unless we receive Written Notice (as defined in Section 13.14(a)) to the contrary within 24 hours from the date the Transaction History was updated or the communication was sent. If such notice is not received within the 24 hour period, you will not be able to raise any further claim in this respect.
c. For the purpose of this Section 5.8, activities and information relating to the ELLEVEN CAPITAL INC and use of Services refer to the activities and information of, and the use of our Services by, you and/or your Authorized User (as the case may be).
5.9. Termination of Services or Accounts
a. ELLEVEN CAPITAL INC has the right to terminate Services or any portion thereof.
b. Your right to terminate the ELLEVEN CAPITAL INC Service
If you want to terminate your ELLEVEN CAPITAL INC Account, you may do so by notifying ELLEVEN CAPITAL INC at the contact details in Section 15 and otherwise complying with the termination provisions of any service agreement governing the relationship between you and ELLEVEN CAPITAL INC. Once your ELLEVEN CAPITAL INC Account is closed, you agree: (a) to continue to be bound by these Terms an any surviving provisions of your Service Agreements as required by Section 13.12 (Survival); (b) to immediately stop using the Services, (c) that we reserve the right (but have no obligation) to delete all of your information and ELLEVEN CAPITAL INC Account data stored on our servers, and (d) that we shall not be liable to you, your Authorized Users, or any third party for termination of access to the Services or for deletion of your information or ELLEVEN CAPITAL INC Account data. You acknowledge that any surviving legal obligations you may have under any other agreement with ELLEVEN CAPITAL INC or its Affiliates may not be affected by the termination of Service pursuant to these Terms and any such other agreement between you and ELLEVEN CAPITAL INC may continue to be in effect in accordance with its terms.
5.10. Suspension of Service
a. ELLEVEN CAPITAL INC may at any time in its sole discretion, in addition to taking any action and seeking any remedy it may be entitled to in law or in equity, immediately (i) suspend your ELLEVEN CAPITAL INC Account, (ii) terminate Service and seek to recover additional Assets in the event that the Assets in ELLEVEN CAPITAL INC’ possession or control are insufficient to cover ELLEVEN CAPITAL INC’s losses, and (iii) suspend your access to our Services until a determination has been made, if:
b. We may, in our sole discretion, give Written Notice that your ELLEVEN CAPITAL INC Account has been suspended, or any portion of the Service terminated or locked, and may, in our sole discretion, disclose the reasons for suspension, if permitted to do so by law.
5.11. Account Investigations
a. You agree and understand that we have the right to immediately investigate your ELLEVEN CAPITAL INC Account and/or transaction history and activity, if we suspect, in our sole discretion, that you or any Authorized User has committed a Conduct Violation.
b. You further agree and understand that we have the right to immediately investigate your ELLEVEN CAPITAL INC Account and/or transaction history and activity, if:
c. You acknowledge and agree that we may not be permitted to disclose such an investigation or provide you notice or information, as a matter of law.
5.12. Legal Process
You agree and understand that we, as well as our Affiliates, service providers, their respective officers, directors, agents, joint venturers, employees and representatives (collectively, the “ELLEVEN CAPITAL INC Service Providers”), may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process, which any of us reasonably and in good faith believe to be valid. We and any ELLEVEN CAPITAL INC Service Provider may, but are not required to, notify you of such process by electronic communication. We and any ELLEVEN CAPITAL INC Service Provider may charge you for associated costs, in addition to any legal process fees. You agree to indemnify, defend, and hold all of us harmless from all actions, claims, liabilities, losses, costs, attorney’s fees, or damages associated with our compliance with any process that any of us reasonably believe in good faith to be valid. You further agree that we and any ELLEVEN CAPITAL INC Service Provider may honor any legal process, regardless of the method or location of service.
5.13. Right of Offset and Security Interest Rights
a. You grant us a lien on and security interest in any and all Assets in our possession or under our control, pledged to us, loaned to us or otherwise provided to us as Collateral for (i) the value of any amount owed in connection with any Agreement made with any ELLEVEN CAPITAL INC entity at any time after one year preceding the date on which we become aware of the existence of a Conduct Violation; (ii) Obligations; and/or (iii) damages suffered by us as a result of your breach of any of the Terms (“Sums Owing”).
b. You further agree and understand that if we determine, in our sole discretion, that you have colluded, coordinated, and/or collaborated with anyone, including but not limited to an Authorized User and/or Customer to commit a Conduct Violation, you will be liable for the whole value of any Sums Owing by you and that Authorized User, and/or you and that Customer will be jointly and severally liable for the whole value of any Sums Owing by you and that Customer (as the case may be).
c. We may take, set off or charge off, any Asset in our possession or under our control, pledged to us, or otherwise provided to us as collateral, or deduct from any obligations ELLEVEN CAPITAL INC may have to you, such Sums Owing.
d. In respect of Digital Assets, you acknowledge and agree that ELLEVEN CAPITAL INC may determine the equivalent amount in fiat currency to satisfy the Sums Owing, based on market conditions and then-current pricing.
e. Your acceptance of these Terms serves as your consent to ELLEVEN CAPITAL INC’s asserting its security interest or exercising its right of setoff should any laws governing your Assets. If the law restricts our ability to take, transfer, or setoff from any obligations to you, or if your Assets are otherwise protected from attachment, levy, or legal process, you waive those conditions and limits to the full extent that you may do so by contract, and you authorize us to take any actions to offset Sums Owing in any or all of your Assets in our possession or under our control, pledged to us, or otherwise provided as Collateral.
5.14. Sanctions Programs
Pursuant to the economic sanctions programs administered in the countries where we conduct business, including, but not limited to, OFAC, we are prohibited from providing services or entering into relationships with certain individuals and institutions. In the event that we are required to block Assets or transactions associated with your use of ELLEVEN CAPITAL INC Services in accordance with a sanctions program, or other similar government sanctions programs, we may: (i) suspend your ELLEVEN CAPITAL INC Account; (ii) terminate any contractual relationship between us; (iii) return Assets to the destination of their origin or to an account specified by authorities; (iv) require you transfer Assets to another provider or transition activity to another service provider within a certain period of time; or (v) take any other action required or which we consider in our sole discretion appropriate to comply with Applicable Laws. We are not responsible for any losses, whether direct or indirect, that you may incur as a result of our complying with Applicable Laws, the guidance or direction of any regulatory authority or government agency, or any writ of attachment, lien, levy, subpoena, warrant, or other legal order.
a. Buy. You may purchase Digital Assets using (i) Digital Assets held in your Digital Asset wallet address; (ii) Funds in your Fiat Account; (iii) a valid and linked bank account; (iv) a valid credit or debit card; or (v) a linked or valid external wallet, according to our relevant instructions on the Site or otherwise provided (each a “Valid Payment Method”). You will initiate debits from your Valid Payment Methods in settlement of your purchase transactions. We reserve the right to cancel any transaction not confirmed by you, within a timeframe at our discretion, after we quote the transaction price. A purchase of Digital Assets using a Valid Payment Method generally will be initiated on the Business Day we receive your instructions. If we receive your instructions on a day other than a Business Day, the purchase will generally be initiated on the following Business Day. Purchased Digital Assets will be deposited into a valid Digital Asset wallet address as soon as possible after Funds have settled to us, which in the case of a bank account or credit or debit card may take up to five Business Days. Your payment of Digital Assets or Funds must be transferred or settled with us before your purchased Digital Asset is delivered to a valid Digital Asset wallet address.
b. Sell. You can sell Digital Currency and instruct ELLEVEN CAPITAL INC to deposit Funds into a valid and linked bank account, or to transfer Digital Assets into your Digital Asset Account or a valid Digital Asset wallet address. You authorize ELLEVEN CAPITAL INC to debit your Digital Asset Account(s) and initiate payment using your selected payment method(s) in settlement of your sell transactions.
c. Acceptance and processing of transactions. Digital Asset purchases and sales are collectively referred to herein as “Digital Asset Transactions”. ELLEVEN CAPITAL INC will make reasonable efforts to accept Digital Asset Transactions, but we are under no obligation whatsoever to accept any specific transaction or order for such transaction. If we cannot complete your Digital Asset Transaction for any reason (such as price movement, market latency, inability to find a counterparty for your transaction, or order size), we will reject the order and notify you of such rejection. You will not be charged for a rejected transaction. ELLEVEN CAPITAL INC does not accept or settle Digital Asset Transactions from shielded or privacy-protected Digital Assets. Therefore, ELLEVEN CAPITAL INC has no obligation to settle, trade, or return Digital Assets received in a shielded or privacy-protected transactions. You cannot cancel, reverse, or change any Digital Asset Transaction marked as complete or pending.
d. You authorize ELLEVEN CAPITAL INC to debit any valid and linked bank account via ACH or other methods and acknowledge that all transactions to/from your bank account comply with these Terms and are in accordance with Applicable Laws and standard banking (including ACH) guidelines.
e. In the event of over or duplicate payment by ELLEVEN CAPITAL INC, or if your payment is not successful or if your payment method has insufficient Assets, you authorize ELLEVEN CAPITAL INC, in its absolute and sole discretion, either to cancel the Digital Asset Transaction or to debit any other payment methods, including any accounts that may be indirectly linked to you by way of a financial data aggregation services, in any amount necessary to complete or reverse the transaction as appropriate. You are responsible for maintaining an adequate balance and/or sufficient credit limits in order to avoid overdraft, insufficient funds, or similar fees charged by your payment provider.
f. Reversals and Cancellations. You cannot cancel, reverse, or change any transaction marked as complete or pending. If your payment is not successful, if your Valid Payment Method has insufficient Assets, or if you reverse a payment made from funds in your bank account, you authorize ELLEVEN CAPITAL INC, in its sole discretion, to cancel the transaction or to debit your other payment methods or other linked accounts, in any amount necessary to complete the transaction. You are responsible for maintaining an adequate balance and/or sufficient credit limits in order to avoid overdraft, non-sufficient funds, or similar fees charged by your payment provider.
g. ELLEVEN CAPITAL INC reserves the right to refuse to process, or to cancel or reverse, any purchases or sales, or any Digital Asset Transaction, in its sole discretion, even after funds or Digital Assets have been credited to or debited from your account(s), under the following circumstances: (a) if the transaction, in our absolute and sole discretion, constitutes an abusive use of the Site; (b) involves a material error as determined in our sole discretion with respect to price, quantity, or other parameters; (c) is required by law or if ELLEVEN CAPITAL INC suspects the transaction involves or potentially involved (or has a high risk of involvement in) restricted businesses as described in Section 12, money laundering, terrorist financing, fraud, or any other type of financial crime; (d) to restrict trade size or frequency or limit API use which, in our absolute and sole discretion, burdens the platform or may be disruptive; or (e) in response to a subpoena, court order, or other government or regulatory order.
h. In such instances, ELLEVEN CAPITAL INC may reverse, cancel, or refuse to process the payment or transaction and we are under no obligation to allow you to reinstate a purchase or sale order at the same price or on the same terms as the reversed or cancelled transaction and you hereby release us from all liability in relation to any action taken by us under this section. Any such reversal, cancellation, or failure to process any transaction as described above may result in an administrative fee or assessment of loss to ELLEVEN CAPITAL INC, which will be applied and processed as authorized herein.
i. If you fail to settle the relevant Digital Asset Transaction in accordance with this Section 6, disavow or repudiate any purchase or sell request or order, become insolvent or file for or enter bankruptcy or receivership proceedings as the debtor, then ELLEVEN CAPITAL INC may liquidate, close-out, cancel and/or terminate all outstanding transactions. Any proceeds from the liquidation of transactions shall first be applied to the discharge your obligations to ELLEVEN CAPITAL INC. In lieu of liquidating one or more positions, ELLEVEN CAPITAL INC may elect in good faith to determine its total losses and costs (or gains, in which case expressed as a negative number) in connection with such Digital Asset Transactions, as the case may be, including any loss of bargain, cost of funding or, at the election of the ELLEVEN CAPITAL INC but without duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing of any covering transaction, hedge or related trading position (or any gain resulting from any of them) and calculate amounts owed by you by taking into account such determination. ELLEVEN CAPITAL INC may also set-off, net, and recoup any obligations (whether or not arising under these Terms, matured or contingent and irrespective of the currency, place of payment or place of booking of the obligation) to you against any obligations (whether or not arising under these Terms, matured or contingent and irrespective of the currency, place of payment or place of booking of the obligation) to ELLEVEN CAPITAL INC.
j. Fees. An applicable trading fee applies to Digital Asset Transactions, as determined by ELLEVEN CAPITAL INC from time to time. You further understand that we may also receive remuneration from any counterparty on a portion of such charges, commissions or fees and that we will retain such rebates as part of our overall compensation. In addition to trading fees, ELLEVEN CAPITAL INC may also charge inactivity fees as further described in Section 6(j).
k. Unauthorized and Incorrect Transactions. You and your Authorized Users will be able to see your Fiat Account and Digital Asset Account balances on your ELLEVEN CAPITAL INC Account. You and your Authorized Users can typically also see Transaction History on your ELLEVEN CAPITAL INC Account, including (i) the amount of each Digital Asset Transaction, (ii) a reference to the identity of the payer and/or payee (as appropriate), (iii) any fees charged, and (iv) the date of each Digital Asset Transaction. When a Digital Asset Transaction occurs using your credentials or those of your Authorized User, we will assume that you authorized such transaction, unless you notify us otherwise. If you or your Authorized User believe you did not authorize a particular transaction or that a transaction was incorrectly carried out, you or your Authorized User must contact us as soon as possible either at our email contact at Section 15 or by the same method you use to contact your primary contact person. It is important that you and your Authorized User regularly check your Account balances and your Transaction History regularly to ensure you notify us as soon as possible of any unauthorized or incorrect transactions. We are not responsible for any claim for unauthorized or incorrect transactions unless you or your Authorized User have notified us in accordance with this section.
l. Payment Services Partners. ELLEVEN CAPITAL INC may use a third-party payment processor to process any Fiat Currency payment between you and ELLEVEN CAPITAL INC, including but not limited to payments in relation to your use of the Digital Currency Transactions or deposits or withdrawals from your Fiat Account.
m. Representations. You represent and warrant to ELLEVEN CAPITAL INC at the time of entering into these Terms and each Digital Asset Transaction:
ELLEVEN CAPITAL INC Custody holds a registration with the Financial Conduct Authority as a cryptoasset business for anti-money laundering purposes under the Money Laundering Regulations Digital Assets are custodied pursuant to a separate custody agreement entered into between you and ELLEVEN CAPITAL INC Custody Limited, where such services are able to be provided in the applicable jurisdiction.
a. Digital Asset Title. All Digital Assets held in your Digital Asset Account are custodial assets held by ELLEVEN CAPITAL INC for your benefit. Beneficial title to Digital Assets shall at all times remain with you. As the owner of Digital Assets in your Digital Asset Account, you shall bear all risk of loss of such Digital Asset. We do not represent that, or treat, Digital Assets in our custody as belonging to us. Except as required by Applicable Laws, a facially valid court order, or as provided in the terms of your custody agreement with ELLEVEN CAPITAL INC, ELLEVEN CAPITAL INC will not sell, transfer, loan, hypothecate, or otherwise alienate Digital Assets in your Digital Asset Account unless instructed by you.
b. Digital Asset Address. ELLEVEN CAPITAL INC uses one or more blockchain addresses that are controlled by us to hold your Digital Assets. We may use shared blockchain addresses to hold Digital Assets and are under no obligation to segregate by blockchain address Digital Assets owned by you from Digital Assets owned by other customers or by ELLEVEN CAPITAL INC.
c. Control. ELLEVEN CAPITAL INC shall retain control over electronic private keys associated with blockchain addresses operated by ELLEVEN CAPITAL INC, including the blockchain addresses that hold your Digital Assets. Subject to downtime, outages, and other applicable ELLEVEN CAPITAL INC policies, you may withdraw your Digital Asset by instructing us to send it to a different blockchain address at any time.
You may apply to borrow or lend certain Fiat Currencies and/or Digital Assets from/to ELLEVEN CAPITAL INC, which if approved will be subject to a separate Master Lending/Borrowing Agreement entered into between you and ELLEVEN CAPITAL INC. Any use of Fiat Currency obtained pursuant to lending/borrowing agreements must be in full compliance with the terms of Applicable Laws, these Terms and the applicable Lending/Borrowing Agreement, and you shall be solely responsible and liable for any breach of any of the foregoing.
To the extent a Digital Asset applicable to a loan or the Services is at risk of being considered a security as defined in the Securities Act of 1933 by applicable regulators, ELLEVEN CAPITAL INC will have the right but not the obligation to terminate any loans or Services upon notice to you.
9.1. We do not own or control the underlying software protocols which govern the operation of Digital Assets you may purchase, lend, borrow, custody or otherwise utilize with ELLEVEN CAPITAL INC in using our Services. Generally, the underlying protocols are ‘open source’ and anyone can use, copy, modify, and distribute them.
9.2. We assume no responsibility for the operation of the underlying protocols and we are not able to guarantee the functionality or security of network operations. You acknowledge and accept the risk that underlying software protocols relating to any Digital Asset may change.
9.3. In particular, underlying protocols may be subject to certain sudden changes in operating rules or an implementation by some users of a new version of the software underpinning the blockchain network in a way that makes it incompatible with the software used by the remainder of users in the blockchain network (“forks”). Any such material operating changes may materially affect the availability, value, functionality, and/or the name of the Digital Asset. ELLEVEN CAPITAL INC does not control the timing and features of these material operating changes. It is your responsibility to make yourself aware of upcoming operating changes and you must carefully consider publicly available information and information that may be provided by ELLEVEN CAPITAL INC in determining whether to continue to transact in the affected Digital Asset using your ELLEVEN CAPITAL INC Account. In the event of any such operational change, ELLEVEN CAPITAL INC reserves the right to take such steps as may be necessary to protect the security and integrity of the Services relating to the relevant Digital Asset, including temporarily suspending operations for such Services, and other necessary steps. You acknowledge that forks may result in more than one version of the underlying protocols of Digital Asset networks and ELLEVEN CAPITAL INC holding an identical amount of Digital Asset associated with each forked network. ELLEVEN CAPITAL INC’s response to any material operating change, including a fork, is subject to the terms of the relevant service agreement or, where these are silent, its sole discretion, and may include deciding not to support any new Digital Asset or forked network. Digital Assets of forked networks may not be made available to you and may be owned by ELLEVEN CAPITAL INC.
9.4. You acknowledge that ELLEVEN CAPITAL INC is not responsible for such operating changes and not liable for any loss of value you may experience as a result of such changes in operating rules.
9.5. Unsolicited Transfers
a. You agree and understand that in the event that you or a third party deposits or transfers Digital Assets into a Digital Asset address that is not yours or under your control, we have the right to and may account for any such Digital Asset as belonging solely to us, if sent to any other Digital Asset address that we control.
b. The provisions of the service agreement you have entered into with ELLEVEN CAPITAL INC will determine the consequences of the event that a Digital Asset network attempts to, or does, distribute its Digital Assets to Digital Asset addresses of a supported network (sometimes called “Airdrop” or “bootstrapping”). ELLEVEN CAPITAL INC reserves the right to treat an Airdrop differently in different circumstances, depending on the terms of the relevant service agreement.
c. You further agree and understand that the types of transfers described in this section (each an “Unsolicited Transfer”) do not create or represent any relationship between us and the sender and/or the related Digital Asset network, and do not subject us to any obligations whatsoever as they relate to the sender and/or related Digital Asset network.
d. You agree and understand that we have absolutely no obligation or duty to return the Digital Assets of an Unsolicited Transfer.
We strive to take all reasonable steps to protect your personal information, however, we cannot and do not guarantee the security of any information or data you disclose to us. By accessing or using our Services or otherwise providing information to us, you consent to the collection, processing and transfer of your personal information in accordance with Applicable Laws. Please see our Notice for more information. In the case that you provide personal information of Authorized Users or other third parties to us, you agree that you have obtained the necessary rights and consents to do so. Each Authorized User agrees to the ELLEVEN CAPITAL INC Privacy Notice.
10.1. Recording and Recordkeeping
You agree and understand that we maintain and retain records and information of activities, and communications relating to your ELLEVEN CAPITAL INC Account and use of the Site or Services pursuant to Applicable Law and internal document retention policies.
11.1. Proprietary Rights and Limitations on Use
a. All right, title and interest in the Services or Site and all content contained herein is the exclusive property of ELLEVEN CAPITAL INC, except as otherwise stated. Unless otherwise specified, the Site is for your personal or internal business use only. You may print, copy and download limited amounts of information and content from the Site, provided that it is solely for your personal or internal business use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, reverse engineer, modify, create derivative works from, transfer, participate in the transfer or sale of, or otherwise use or exploit in any other way for commercial or public purposes in whole or in part any information, software, products or services obtained from the Site, except for the purposes expressly provided herein, without ELLEVEN CAPITAL INC’s prior written approval. If you copy or download any information or software from the Site, you agree that you will not remove or obscure any copyright or other notices or legends contained in any such information.
b. We hereby grant you a limited, non-assignable, non-transferable, non-exclusive, personal and royalty-free license to access and use the Site and Services in accordance with our Agreement. All other uses are prohibited. All rights in and to ELLEVEN CAPITAL INC, the Services or the Site, and not granted herein, are reserved.
c. ELLEVEN CAPITAL INC, the ELLEVEN CAPITAL INC logo, and other ELLEVEN CAPITAL INC trademarks and service marks referenced herein (whether registered or unregistered) (the “ELLEVEN CAPITAL INC Marks”) are trademarks and service marks of ELLEVEN CAPITAL INC. The names of other companies and third-party products or services mentioned herein may be the trademarks or service marks of their respective owners. You are prohibited from using any ELLEVEN CAPITAL INC Marks or other marks for any purpose including, but not limited to use as metatags on other pages or sites on the Internet without the written permission of ELLEVEN CAPITAL INC or the applicable third-party rights holder.
d. We may use technology that is or will become the subject of one or more pending patent applications.
11.2. Service Modifications
You agree and understand that we may modify part of or all of the Site or Services without notice.
11.3. Downtime and Maintenance
a. The Site and the Services may be temporarily unavailable from time to time for maintenance or other reasons. ELLEVEN CAPITAL INC assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. ELLEVEN CAPITAL INC is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or on the Site or combination thereof, including injury or damage to users or to any other person’s electronic device related to or resulting from participating or downloading materials in connection with the internet and/or in connection with the Services.
b. Under no circumstances will ELLEVEN CAPITAL INC be responsible for any loss or damage, including any loss or damage to any Customer of Site Content, financial damages or lost profits, or loss of business, resulting from anyone’s use of the Site or the Services, any user content or third-party content posted on or through the Site or the Services or transmitted to users, or any interactions between users of the Site or Services, whether online or offline.
11.4. Risks
11.4.1. You acknowledge that there are risks associated with using the Services and the Site, You agree and understand that you access and use the Services and the Site at your own risk. The following risks are by no means an exhaustive list of risks.
a. Technical Risk
b. Risk of Reliance on Third Parties
c. Regulatory Risk
d. Financial Risk
e. Taxation Risk
f. Derivative Transaction Risk
11.5. Third-Party Service Providers and Content
a. You agree and understand that we may use third parties to gather, review, and transmit your data and activity from one or more persons including your financial institutions to us. By using the Site or our Services, you agree to grant third-party providers that we may engage, if any, the right, power, and authority to access and transmit your data, activity, and personal and financial information from one or more of your financial institutions to us in accordance with and pursuant to their terms and conditions, privacy notice, and/or other policies.
b. You agree and understand that we may use third parties to gather, review, and submit or facilitate submitting your data and activity from us to regulatory authorities on our behalf. By using the Site or our Services, you agree to grant third-party providers that we may engage, the right, power, and authority to access and submit your data, activity, and personal and financial information to regulatory authorities on our behalf and in accordance with and pursuant to their terms and conditions, privacy notice, and/or other policies.
c. The Site may link to other websites operated by or with content provided by third parties, and such other websites may link to our Site. You agree and understand that ELLEVEN CAPITAL INC has no control over any such other websites or their content and will have no liability arising out of or related to such websites or their content. The existence of any such links does not constitute an endorsement of such websites, their content, or their operators. ELLEVEN CAPITAL INC is providing these links to you only as a convenience.
d. The inclusion of any link is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by ELLEVEN CAPITAL INC of any information contained in any third party website.
e. You should also be aware that the terms and conditions and privacy notice of each third party website will be different from those applicable to your use of the Site. You should contact the operator of the applicable third party site for any information regarding that website’s terms and conditions and/or privacy notice.
f. Certain portions of the Site may contain unedited or third-party content, including, without limitation, Customer Submitted Content (as defined in Section 13.18.1). All Customer Submitted Content and all other postings, messages, text, images, links to third-party websites or other materials published on or otherwise made available by parties other than ELLEVEN CAPITAL INC (such content, the “Third Party Content”) are the sole responsibility of the person(s) who originated such Third Party Content and ELLEVEN CAPITAL INC may not monitor and does not control such Third Party Content, although ELLEVEN CAPITAL INC reserves the right at all times (but will not have an obligation) to remove any Third Party Content. By using this Third Party Content, you agree to not rely on the Third Party Content and understand that you may be exposed to Third Party Content that is, without limitation, inaccurate, inappropriate, misleading, unlawful, offensive or otherwise objectionable, and that ELLEVEN CAPITAL INC makes no representations or warranties regarding the Third Party Content and is not responsible or liable in any manner for the Third Party Content or the conduct, whether online or offline, of any user. Your use of such Third Party Content may be subject to the terms of service or user agreement of such Third Party Content provider.
11.6. Investment Advice
a. None of the information contained in the publicly accessible portions of the Site constitutes a recommendation, solicitation or offer by ELLEVEN CAPITAL INC or its Affiliates to buy or sell any securities, futures, options, Digital Assets, other financial instruments or other assets, or provide any investment advice or service. The information contained in the Site or provided through our Services has been prepared without reference to any particular user’s investment requirements or financial situation. The information and services provided on the Site or through our Services are not provided to, and may not be used by, any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or regulatory or self-regulatory organization or clearing organization or where ELLEVEN CAPITAL INC is not authorized to provide such information or Services.
b. You agree and understand that all investment decisions are made solely by you. Notwithstanding anything in these Terms, you agree and understand that we accept no responsibility whatsoever for, and shall in no circumstances be liable to you in connection with, your decisions. You agree and understand that under no circumstances will the operation of ELLEVEN CAPITAL INC and your use of the Site or Services be deemed to create a relationship that includes the provision of or tendering of investment advice or financial advice. All orders and transactions received through and by ELLEVEN CAPITAL INC are considered unsolicited.
c. The content of the Site and the Services do not constitute an offer to buy or sell or a solicitation of an offer to buy or sell investments, securities, partnership interests, commodities or any other financial instruments; the content or the Site and the Services also do not constitute, and may not be used for or in connection with, an offer or solicitation by anyone in any jurisdiction in which such an offer or solicitation is not authorized or permitted, or to any person to whom it is unlawful to make such offer or solicitation.
11.7. Accessing ELLEVEN CAPITAL INC
You agree and understand that you are not allowed to enter any restricted area of any computer or network of ELLEVEN CAPITAL INC or any ELLEVEN CAPITAL INC Service Provider under any circumstances, or perform any functions that are not authorized by these Terms. You should never access ELLEVEN CAPITAL INC from an unsecured or public computer and/or network.
11.8. Press Guidelines
a. We encourage and hereby authorize press and media to refer to ELLEVEN CAPITAL INC, provided that any reference is accompanied by:
attribution to ELLEVEN CAPITAL INC, and
a hyperlink to ellevencap.com, when possible.
b. For all press and media inquiries, please email support@ellevencap.com.
12.1. You may not use your ELLEVEN CAPITAL INC Account to engage in the following categories of activity (“Prohibited Uses“). The specific types of use listed below are representative, and not exhaustive. If you are uncertain as to whether your use of our Services or the Site involves a Prohibited Use or have questions about how these requirements apply to you, please send us an email at our contact at Section 15.
a. Prohibited Uses. By opening a ELLEVEN CAPITAL INC Account or otherwise utilizing the Services, you represent and warrant that you will not use your ELLEVEN CAPITAL INC Account, any of our Services and/or the Site to do any of the following:
b. Prohibited Businesses. The following categories of businesses, business practices, and sale items are barred from being carried out using any of our Services or the Site (“Prohibited Businesses“). The specific types of use listed below are representative, but not exhaustive. If you are uncertain as to whether or not your use of the Services or the Site involves a Prohibited Business, or have questions about how these requirements apply to you, please send us an email at our contact at Section 15.
c. By opening a ELLEVEN CAPITAL INC Account, you represent and warrant that you will not use our Services or the Site in connection with any of the following businesses, activities, practices, or items:
d. Conditional Use. Express written consent and approval from ELLEVEN CAPITAL INC must be obtained prior to using our Site or any of our Services for the following categories of business and/or use (“Conditional Uses“). Consent may be requested by sending us an email at our contact at Section 15.
e. ELLEVEN CAPITAL INC may also require you to agree to additional conditions, make supplemental representations and warranties, complete enhanced on-boarding procedures, and operate subject to restrictions if you use our Site or any of our Services in connection with any of the following businesses, activities, or practices:
Money Services: Money transmitters, Digital Asset transmitters; currency or Digital Asset exchanges or dealers; gift cards; prepaid cards; sale of in-game currency unless the merchant is the operator of the virtual world; act as a payment intermediary or aggregator or otherwise resell any of our Services;
Charities: Acceptance of donations for non-profit enterprise;
Games of Skill: Games which are not defined as gambling under this Agreement or by law, but which require an entry fee and award a prize; and
Religious/Spiritual Organizations: Operation of a for-profit religious or spiritual organization.
12.2. Export Controls
The Services we provide are subject to United States and international export controls and economic sanctions requirements. By purchasing, selling, lending, borrowing, or otherwise using Digital Assets on the Site, you represent and warrant that your acquisition, sale, loan, borrow, and use of any such Digital Assets comports with those requirements. Without limiting the foregoing, you may not buy, sell, lend, borrow, or otherwise use Digital Assets on the Site or use any of our Services that we provide if: (i) you are in, under the control of, or a national or resident of any country subject to United States embargo, United Nations sanctions (each, a “Prohibited Jurisdiction”), or if you are on the U.S. Treasury Department’s Specially Designated Nationals List, the U.S. Commerce Department’s Denied Persons List, Unverified List, Entity List consolidated list of sanctions targets (each, a “Governmental Watchlist”); or (ii) you intend to sell or otherwise transfer any Digital Assets bought on or through the Site or offer any of our Services to any country, national, or resident of a Prohibited Jurisdiction or to any person on a Governmental Watchlist.
13.1. Disclaimer of Warranties
THE SERVICES WE AND ELLEVEN CAPITAL INC SERVICE PROVIDERS PROVIDE ARE PROVIDED TO YOU ON A STRICTLY “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS. NEITHER WE NOR ANY ELLEVEN CAPITAL INC SERVICE PROVIDER REPRESENT OR WARRANT AS TO THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SITE OR THE INFORMATION CONTAINED THEREIN OR SERVICES CONTAINED THEREON. ELLEVEN CAPITAL INC DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE OR USE OF THE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE.
13.2. Disclaimer of Liability
EXCEPT TO THE EXTENT REQUIRED BY LAW, NEITHER WE NOR ANY ELLEVEN CAPITAL INC SERVICE PROVIDER SHALL BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT, FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR DAMAGES, INCLUDING LOST TRADING OR OTHER PROFITS, DIMINUTION IN ASSET VALUE, OR LOST BUSINESS OPPORTUNITIES (EVEN IF WE AND/OR ANY ELLEVEN CAPITAL INC SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF) IN CONNECTION WITH THIS AGREEMENT, YOUR USE OR ATTEMPTED USE OF THE SITE, OR ANY OF THE INFORMATION, SERVICES OR TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ELLEVEN CAPITAL INC’ TOTAL LIABILITY IN CONNECTION WITH THE PROVISION OF SERVICES BY ELLEVEN CAPITAL INC WILL BE LIMITED BY THE PROVISIONS OF THE RELEVANT SERVICE AGREEMENT ENTERED INTO BETWEEN YOU AND ELLEVEN CAPITAL INC. WITHOUT PREJUDICE TO THE FOREGOING, YOU ACKNOWLEDGE THAT IF NO FEES ARE PAlD TO ELLEVEN CAPITAL INC FOR THE SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM ELLEVEN CAPITAL INC, REGARDLESS OF THE CAUSE OF ACTION.
YOU AGREE AND UNDERSTAND THAT NEITHER WE NOR ANY ELLEVEN CAPITAL INC SERVICE PROVIDER SHALL BE LIABLE FOR DELAYS OR INTERRUPTIONS IN SERVICE CAUSED BY AUTOMATED OR OTHER COMPLIANCE CHECKS OR FOR OTHER REASONABLE DELAYS OR INTERRUPTIONS IN SERVICE, BY DEFINITION TO INCLUDE ANY DELAY OR INTERRUPTION SHORTER THAN ONE WEEK, OR DELAYS OR INTERRUPTIONS IN SERVICE BEYOND THE CONTROL OF ELLEVEN CAPITAL INC OR ELLEVEN CAPITAL INC SERVICE PROVIDERS.
THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO ANY DAMAGE OR INTERRUPTIONS CAUSED BY ANY COMPUTER VIRUSES, SPYWARE, SCAMWARE, TROJAN HORSES, WORMS, OR OTHER MALWARE THAT MAY AFFECT YOUR COMPUTER OR OTHER EQUIPMENT, OR ANY PHISHING, SPOOFING, DOMAIN TYPOSQUATTING, OR OTHER ATTACKS, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE. NEITHER WE NOR ANY ELLEVEN CAPITAL INC SERVICE PROVIDER GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SITE OR SERVICES.
IF THIS SECTION IS DEEMED TO CONFLICT WITH A DISCLAIMER OF LIABILITY CONTAINED IN A SERVICE AGREEMENT ENTERED INTO BETWEEN YOU AND ELLEVEN CAPITAL INC, THE TERMS OF THAT SERVICE AGREEMENT WILL PREVAIL.
13.3. Reasonable Care
a. We agree to take reasonable care and use commercially reasonable efforts in executing our responsibilities to you pursuant to these Terms, or such higher care where required by law or as specified by these Terms. From time to time, interruptions, errors or other deficiencies in Services may occur due to a variety of factors, some of which are outside of our control. These factors can contribute to delays, errors in service, or system outages. You may experience difficulties in accessing your ELLEVEN CAPITAL INC Account or otherwise engaging with and/or utilizing the Services.
b. You agree that we cannot be held responsible for any failure or delay to act by any ELLEVEN CAPITAL INC Service Provider, including our banks, or any other participant that is within the time limits permitted by the Agreement or prescribed by Applicable Laws, or that is caused by the negligence of you or your Authorized Users.
c. In addition, you agree and understand that any act or omission made by us or any ELLEVEN CAPITAL INC Service Provider in reliance upon or in accordance with any provision of the Uniform Commercial Code as adopted in New York, or any rule or regulation of the State of New York, New York State Department of Financial Services, or a federal agency having jurisdiction over such party, shall constitute reasonable care and be commercially reasonable.
13.4. Force Majeure
You agree and understand that in no event shall we or any ELLEVEN CAPITAL INC Service Provider be liable for any delays, failure in performance or interruption of Services which result directly or indirectly from any cause or condition, whether or not foreseeable, beyond our or any ELLEVEN CAPITAL INC Service Providers’ reasonable control, including, but not limited to, any act of God, nuclear or natural disaster, epidemic, action or inaction of civil or military authorities, act of war, terrorism, sabotage, civil disturbance, strike or other labor dispute, accident, state of emergency or interruption, loss, or malfunction of equipment or utility, communications, computer (hardware or software), Internet or network provider services.
13.5. Indemnities
a. In no event shall we or any ELLEVEN CAPITAL INC Service Provider be liable for any act, omission, error of judgment, or loss suffered by you in connection with these Terms or your use or attempted use of the Site or any of our Services. You agree to indemnify and hold us and all ELLEVEN CAPITAL INC Service Providers harmless from or against any or all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including reasonable attorneys’ fees), claims, disbursements or actions of any kind and injury (including death) arising out of or relating to: your use of the Site or the Services; your breach of the Agreement; your violation of any law, rule or regulation or the rights of any third party; and/or our and any ELLEVEN CAPITAL INC Service Providers’ performance or nonperformance of duties to you.
b. You agree to indemnify us and any ELLEVEN CAPITAL INC Service Provider for actual, reasonable legal costs and expenses directly related to your ELLEVEN CAPITAL INC Account or any related account that are a result of any regulatory inquiry, legal action, litigation, dispute, or investigation whether such situations occur or are anticipated, that arise or relate to you or your use of the Site or our Services. As a result, we will be entitled to charge you for such costs without notice, including legal and enforcement related costs that we incur. Any withholding will last for a period of time that is reasonably necessary to resolve any regulatory or legal issue at hand, and we may place any amounts garnered from you in a separate account, and will pay you the remaining balance after any noted issue has been resolved. Furthermore, you agree that where such anticipated or actual actions relate to a specific Asset in our possession on your behalf or otherwise custodied by us, that Asset may not be transferred out of said account until the matter is resolved. We will provide copies of all invoices on request.
13.6. Separately Negotiated Arrangements
a. From time to time, we may, subject to Applicable Laws and as determined by us in our sole discretion, enter into separately negotiated arrangements with certain Customers pursuant to a confidential side letter or similar agreement that supplements certain of the economic or other terms of these Terms, in each case solely as applicable to that ELLEVEN CAPITAL INC Customer’s relationship with and use of the Site or Services. Such arrangements may involve, among other matters: (i) different Services; (ii) different incentives, including, but not limited to, different economic, funding, and/or fee terms, or other payments; (iii) the ability to receive additional or customized market information not generally available to other Customers; (iv) preferred access to ELLEVEN CAPITAL INC customer service resources; or (v) an agreement to permit representatives of such Customer to serve on any customer representative bodies or advisory committees that we may form.
b. Any such separately negotiated arrangements will be entered into based on factors or considerations determined by us to be relevant in our sole discretion, and arrangements or terms offered to one Customer generally are not available to all, or even any, other Customers.
13.7. Assignment
These Terms, or your rights and obligations hereunder, may not be transferred by you, but may be assigned by us without restriction. Any attempted transfer or assignment by you in violation hereof shall be null and void. These Terms shall be binding and inure to the benefit of the parties hereto, our successors, and permitted assigns.
13.8. Relationship of the Parties
You agree and understand that nothing in these Terms shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein. Except for the indemnity and exculpation provisions herein, nothing expressed in, mentioned in, or implied from these Terms is intended or shall be construed to give any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to these Terms to enforce any of its terms which might otherwise be interpreted to confer such rights to such persons, and these Terms and all representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the exclusive benefit of you and us.
13.9. Injunctive Relief
You agree and understand that your obligations and the obligations of each Authorized User set forth in these Terms are necessary and reasonable in order to protect us and our business. You expressly agree that due to the unique nature of our business, monetary damages would be inadequate to compensate us for any breach by you of your covenants and agreements set forth in these Terms. Accordingly, you agree and understand that any such violation or threatened violation shall cause irreparable injury to us and that, in addition to any other remedies that may be available, in law, in equity or otherwise, we shall be entitled to obtain injunctive relief against any threatened breach of these Terms or your continuation of any such breach, without the necessity of proving actual damages.
13.10. Severability
You agree and understand that if any provision of these Terms, or application thereof, shall be determined to be invalid or unenforceable under any rule, law, or regulation or by any governmental agency, local, state, or federal, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any Applicable Laws. You further agree and understand that the validity of or enforceability of any other provision (or of such provision, to the extent its application is not invalid or unenforceable) of these Terms shall not be affected.
13.11. Change of Control
In the event that we are acquired by or merged with a third-party entity, we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control.
13.12. Survival
You agree and understand that all provisions of these Terms, which by their nature extend beyond the termination or expiration of these Terms, including, but not limited to, sections pertaining to suspension, investigations, remedies for breach, termination, debts owed, Obligations, right to offset, unclaimed funds, general use of the Site and Services, disputes with us, and general provisions, shall survive the termination or expiration of these Terms.
13.13. Miscellaneous
Section headings in these Terms are for convenience only, and do not govern the meaning or interpretation of any provision of these Terms. Unless the express context otherwise requires: (i) the words “hereof,” “herein,” “hereunder” and words of similar import, when used in these Terms, shall refer to these Terms as a whole and not to any particular provision of these Terms; (ii) the terms defined in the singular have a comparable meaning when used in the plural and vice versa; (iii) wherever the word “include,” “includes” or “including” is used in these Terms, it shall be deemed to be followed by the words “without limitation”; (iv) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”; and (v) the word “or” shall not be interpreted to be exclusive.
13.14. Notice
a. If we send an email to the email address on record for your ELLEVEN CAPITAL INC Account, you agree and understand that this constitutes written notice (“Written Notice”) from us to you.
b. A communication will be sufficiently served for the purposes of these Terms if such communication is sent by email and in either case will be deemed to be duly given or made, when the email is opened and receipt acknowledged (including by way of a mail delivery report confirming receipt by the other party) except where the time of dispatch is not between 9:00am and 5:00pm on a Business Day, as defined herein, or business day in the place to which such notice is sent, in which case the notice will be deemed to have been received at the commencement of business on the next Business Day or business Day in that place.
c. In the event of a dispute (“Dispute”), ELLEVEN CAPITAL INC reserves the right to issue a demand letter to you or commence arbitration against you pursuant to the terms of the service agreement that you have entered into with ELLEVEN CAPITAL INC. The terms of such service agreement will supersede this Section 13. If you wish to raise a Dispute against ELLEVEN CAPITAL INC, you must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to ELLEVEN CAPITAL INC must be addressed to Recktenwald, Aline <aline.recktenwald@whitersworldwide.com> with a copy to Ghelman, Gabriela <gabriela.ghelman@whitersworldwide.com> or whomever is authorized., or to our email contact at Section 15 (the “ELLEVEN CAPITAL INC Notice Addresses”). Unless otherwise provided in the relevant service agreement with ELLEVEN CAPITAL INC, a Dispute Notice to you shall be delivered to the most recent email or mailing address we have on file or otherwise in our records for you, by one of the communication channels you have provided ELLEVEN CAPITAL INC, which may include email or other electronic transmission, and you agree that such a delivery of a Dispute Notice to you shall be sufficient. Should you require to obtain a Dispute Notice by any other communication channel, you must inform ELLEVEN CAPITAL INC of such a requirement in writing. Following submission and receipt of the Dispute Notice, you and ELLEVEN CAPITAL INC each agree to act in good faith to seek to resolve the Dispute before commencing arbitration. Unless otherwise provided in the relevant service agreement with ELLEVEN CAPITAL INC, if ELLEVEN CAPITAL INC and you do not reach an agreement to resolve the Dispute within sixty calendar days after the Dispute Notice is received, you or ELLEVEN CAPITAL INC may commence an arbitration proceeding pursuant to this Section 13.17.
13.15. Non-Waiver of Rights
These Terms shall not be construed to waive rights that cannot be waived under Applicable Laws, including applicable money transmission laws in the state, country or jurisdiction where you are located. In addition, our failure to insist upon your strict compliance with any term or provision of these Terms shall not be construed as a waiver for you to not comply with such term or provision.
13.16. Governing Law
Unless otherwise provided for in the relevant service agreement you have entered into with a ELLEVEN CAPITAL INC entity, these Terms, your use of our Services, your rights and obligations, and all actions contemplated by, arising out of or related to these Terms shall be governed by the laws of the State of Massachusetts, as if these Terms constitute a contract wholly entered into and wholly performed within the State of Massachusetts without regard to its conflicts of laws provisions.
13.17. Dispute Resolution
Unless otherwise agreed in the service agreement entered into between you and ELLEVEN CAPITAL INC, these Terms shall be governed by and construed and enforced in accordance with the laws of the State of Massachusetts, without regard to conflicts of laws provisions. Unless otherwise agreed in writing by you and us, any dispute arising out of or relating to these Terms, or the breach hereof, shall be finally resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, or such arbitration body as required by law, rule or regulation, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the English language before a single arbitrator in the City of Boston. Such arbitration must be commenced within one year after the claim or cause of action arises. If for any reason any provision of these Terms, or a portion thereof, shall be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms, and the remainder of the Terms shall continue in full force and effect. The Terms and any relevant Agreement constitute the entire agreement between us and you with respect to this Site and our Services and it supersedes all prior or contemporaneous communications, agreements and understandings between ELLEVEN CAPITAL INC and you with respect to the subject matter hereof. A printed version of these Terms shall be admissible in judicial or administrative proceedings.
13.18. Submissions to ELLEVEN CAPITAL INC
13.18.1. As a user of the Site or our Services, you may be permitted to post certain content on various portions of the Site. For the purposes of these Terms, all content, information and materials posted, uploaded, submitted, published or otherwise displayed through the Site shall be referred to as “Customer Submitted Content”. You are solely responsible for all Customer Submitted Content that you post, upload, submit, publish or otherwise display through the Site.
13.18.2. We do not provide any facility for sending or receiving private or confidential electronic communications. You should not use the Site to transmit any communication for which you intend only you and the intended recipient(s) to read. Notice is hereby given that all messages and other content entered using the Site can and may be read by us, regardless of whether we are the intended recipients of such messages.
Nevertheless, access to messages and other content will be accessible only by employees and ELLEVEN CAPITAL INC Service Providers that reasonably need such access.
14. Questions, Feedback, And Complaints
a. If you have feedback or general questions, please contact us via our user support at support@ellevencap.com. When you contact us please provide us with your name, email address, and any other information we may need to identify you, your ELLEVEN CAPITAL INC Account, and the matter or transaction in relation to which you are contacting us.
b. Copyright Complaints: ELLEVEN CAPITAL INC respects the intellectual property of others, and we ask our Customers to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify ELLEVEN CAPITAL INC in accordance with the procedure set forth below.
c. ELLEVEN CAPITAL INC will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement for any of the ELLEVEN CAPITAL INC group entities should be sent to the:
Chief Legal Officer
Withers Bergman LLP,
157 Church Street, 12th Floor
New Haven, Connecticut 06510
legal@withersworldwide.com
d. To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
Uma empresa no mercado de ativos digitais que será pioneira no atendimento de brasileiros nos Estados Unidos.
Copyright © 2023. Todos direitos reservados.
