ELITE SIM GENERAL TERMS AND CONDITIONS
1.1.1 Elite SIM Company Terms and Conditions;
1.1.2 Elite SIM Agent Terms and Conditions;
1.1.3 Elite SIM Broker Terms and Conditions; and
1.1.4 Elite SIM Investor Terms and Conditions;
(each the “User Terms and Conditions”) between you and Elite SIM S.p.A. (“ELITE SIM”) (each a “Party” and together the “Parties”) and by registering as a user of www.elite-network.com (the “Site”) under the relevant User Terms and Conditions and thereafter by using the Site, you indicate that you accept and agree to abide by the ELITE SIM General Terms and Conditions and the User Terms and Conditions (together the “Private Market Agreement” and briefly “the Agreement”).
1.2 In the event of any conflict between the ELITE SIM General Terms and Conditions and the relevant User Terms and Conditions, the User Terms and Conditions will always prevail.
1.3 These ELITE SIM General Terms and Conditions were last updated on 8 November 2021.
2.1 In the Agreement, unless the context requires otherwise, the following words and expressions have the meanings shown below:
“Affiliate” a group undertaking as construed in accordance with article 2359 of the Italian Civil Code;
“Agent” an EU or extra-EU bank or investment firm authorized according to MiFID regulation, that wishes to procure potential investors for the Company;
“Approved Agent” an Agent that the Company or Elite SIM Broker has confirmed to ELITE SIM through the Site may access the Data Room and possibly participate in the Capital Raising, providing potential Investors for the Company;
“Approved Investor” an Investor that the Company has confirmed to ELITE SIM through the Site may access the Data Room and possibly participate in the Capital Raising;
“Business Day” a day (other than a Saturday and Sunday or a public holiday) on which banks are generally open for full banking business in Italy;
“Capital Raising” the process of a Company raising capital by Investments or facilitating secondary transfers of its Investments through the Platform;
“Companies” persons authorised by ELITE SIM to raise capital through the Platform, following the successful outcome of the Company Compliance Check;
“Confidential Information” has the meaning given in paragraph 12.2;
“Cornerstone Investor” an Investor that is classified as such by ELITE SIM and negotiates terms and conditions with the Company to subscribe for a minimum amount of a Capital Raising, prior to Follow-on Investors being able to participate on the same terms;
“Data Room” a data room hosted by ELITE SIM through the Platform in respect of a Capital Raising;
“Deal Page” the deal page in the Data Room, which includes some mandatory information required to be uploaded in respect of a Capital Raising before an Investment Opportunity can be published;
“ELITE” Elite S.p.A.;
“ELITE SIM” Elite SIM S.p.A.;
“ELITE SIM Broker” a EU or extra-EU bank or investment firm authorized according to MiFID regulation (or equivalent legislation in the relevant legal system), appointed by the Company, who supports the Companies in the process of raising capital, in coordination with any possible advisor of the Company;
“Elite SIM Broker Appointment Agreement” an agreement between the Elite SIM Broker and a Company confirming, among other things, the appointment of the Elite SIM Broker by that Company and that the Elite SIM Broker shall provide the Elite SIM Broker Services for the Company;
“Elite SIM Broker Services” services provided by an Elite SIM Broker pursuant to the Elite SIM Broker Appointment Agreement;
“Follow-on Investor” an Investor that bids on the basis of a set of conditions pre-defined by the Company and any Cornerstone Investors;
“Investment” Issuance of a Company’s financial instruments comprising equity securities, convertible securities, bonds, collateralised loan obligations, notes and/or warrants;
“Investment Opportunity” an opportunity for Approved Investors to subscribe for Investments through the Platform;
“Investors” professional clients that wish to participate in one or more Capital Raisings by subscribing for or acquiring Investments;
“MiFID” the Markets in Financial Instruments Directive (2014/65/EC);
“MiFID Rules” MiFID and all applicable rules and regulations implementing MiFID;
“Money Laundering Laws” applicable money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency;
“professional client” has the meaning given in Annex II to MiFID;
“Platform” alternative funding programme operated through the Site by ELITE SIM that streamlines capital raising processes for enterprises;
“Representatives” has the meaning given in paragraph 12.5;
“Settlement Date” the Business Day notified by a Company upon which the subscription for Investment in relation to a Capital Raising will take effect;
“Site” https://www.elite-network.com ;
“Viruses” viruses, trojans, worms, logic bombs, keystroke loggers, malware, spyware or other material which is malicious or technologically harmful.
2.2 In the Agreement, unless the context requires otherwise:
2.2.1 references to a “person” include any individual, firm, body corporate (wherever incorporated), government, state or agency of a state or any joint venture, association, partnership, works council or employee representative body (in any case, whether or not it has separate legal personality);
2.2.2 references to a paragraph are to those of the Agreement;
2.2.3 headings are inserted for convenience only and do not affect interpretation;
2.2.4 the singular shall include the plural and vice versa, and references to one gender include all genders;
2.2.5 any statement in the Agreement qualified by the expression “to the knowledge of [Party A]” or “so far as [Party A] is aware” or any similar expression shall be deemed to include an additional statement that it has been made after due and careful enquiry;
2.2.6 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as merely illustrative and shall not limit the sense of the words preceding those terms;
2.2.7 except as otherwise expressly provided in the Agreement, any reference to an enactment (which includes any legislation in any jurisdiction) includes references to: (i) that enactment as amended, consolidated or re-enacted by or under any other enactment whenever made; (ii) any enactment that that enactment re-enacts (with or without modification); and (iii) any subordinate legislation (including regulations) whenever made under that enactment, as amended, consolidated or re-enacted as described at (i) or (ii), except to the extent that any of the matters referred to in (i) to (iii) occurs on or after the date of the Agreement and increases or alters the liability of a party under the Agreement; and
2.2.8 references to “a Company” in the Elite Company Terms and Conditions shall mean “the Company” as defined in the Elite Company Terms and Conditions.
3. ACCESSING THE SITE
3.1 Access to the Site is permitted on a temporary basis, and ELITE SIM reserves the right to withdraw or amend the content on and/or access to the Site, at any time, without notice. ELITE SIM will not be liable if, for any reason, the Site (or any content on the Site) is unavailable at any time or for any period.
3.2 From time to time, ELITE SIM may restrict your access to some or all of the Site.
3.3 You are responsible for making all arrangements necessary for you to have access to the Site. You are also responsible for ensuring that all persons who access the Site through your internet connection are aware of these terms, that they comply with them and for any activity on the Site by such persons.
3.4 By accepting these ELITE SIM General Terms and Conditions you have agreed that you have provided accurate and complete registration information and will keep that information up to date at all times.
3.5 You will need a user identification code, password and/or pre-selected answers to security questions in order to access certain parts of the Site that are reserved for registered users. It is your responsibility to keep this information secret and confidential and not to disclose it to any other person.
3.6 If you think that somebody else might know your user identification code, password and/or pre-selected answers to security questions then you must log in to your account and change these and let us know by emailing us as soon as possible.
3.7 ELITE SIM reserves the right to disable your user identification code, password and/or pre-selected answers to security questions at any time if, in ELITE SIM’s reasonable opinion, you fail to comply with any of these ELITE SIM General Terms and Conditions or if ELITE SIM considers that there may be a security risk.
ELITE SIM may delegate any of its functions to a person selected by ELITE SIM, provided that ELITE SIM will exercise all due skill, care and diligence in the selection, appointment and periodic review and ongoing monitoring of its delegates and of the arrangements of the delegate in respect of the matters delegated to it.
5. INTELLECTUAL PROPERTY RIGHTS AND CONTENT UPLOADED TO THE SITE BY YOU
5.1 Subject to paragraph 5.5, ELITE SIM, or its licensors, are the owner of all intellectual property rights in the Site, and in the content on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
5.2 ELITE, Elite SIM, and Euronext are trademarks which may not be downloaded or used in any manner without ELITE’s and/or ELITE Affiliate’s prior written consent.
5.4 You warrant to us that you own the intellectual property rights in any content which you upload to the Site or, if you are not the owner, that you have the right to upload it and for it to be made available to other users of the Site in accordance with the Agreement.
5.5 You will continue to own the intellectual property rights in any content which you upload to the Site, but for so long as that content remains on the Site you grant us a world-wide, royalty free licence to use, store, copy, distribute, display and make available that content and to permit other users of the Site to use, download, print and reproduce.
5.6 You will indemnify us for any losses, liabilities, costs, expenses, claims or proceedings that ELITE SIM suffers or incurs, or will suffer or incur, as a result of or in connection with any breach by you of your obligations or warranties in paragraphs 5.4 and/or 5.5.
5.7 ELITE SIM is not responsible for, and make no warranties, representations, undertakings or guarantees in respect of, any content on the Site which is uploaded by a user of the Site. Any view expressed by any user of the Site is their view and not ELITE SIM’s view nor the view of ELITE SIM’s officers or employees.
5.8 ELITE SIM reserves the right to remove any content that you have uploaded to the Site at any time.
5.9 ELITE SIM also reserves the right to disclose your identity to any person who claims that any content you have uploaded to the Site infringes their intellectual property rights or their right to privacy or is defamatory.
5.10 Any content that you upload to the Site must:
5.10.1 comply with all applicable laws;
5.10.2 be accurate (where it states facts); and
5.10.3 be genuinely held (where it states opinions).
5.11 You must not upload to the Site any content which:
5.11.1 is defamatory, fraudulent, deceptive, discriminatory, obscene, offensive, indecent, malicious, hateful or inflammatory;
5.11.2 infringes any copyright, database right, trademark or other intellectual property right of any other person;
5.11.3 solicits or attempts to solicit passwords or personal identifying information for commercial or unlawful purposes from other users of the Site;
5.11.4 is made in breach of any legal duty owed to anyone else, such as a contractual duty or a duty of confidence;
5.11.5 impersonates any person or misrepresents your identity or affiliation with any person;
5.11.6 gives the impression it comes from us;
5.11.7 constitutes advertising material; or
5.11.8 constitutes, advocates, promotes or assists any unlawful activity, including but not limited to copyright infringement or computer misuse.
6. RELIANCE ON INFORMATION POSTED
Content posted on this Site is provided for general information purposes only and is not intended to amount to advice on which you should rely. ELITE SIM is not liable or responsible for any reliance placed on such materials by you or anyone who you may inform of any of its contents.
7. CHANGES TO THE SITE
7.1 ELITE and/or ELITE SIM aims to update this Site regularly and may change the content on the Site (including by adding or removing content or functionality) at any time. If the need arises, ELITE and/or ELITE SIM may suspend access to the Site or close it indefinitely.
7.2 ELITE and/or ELITE SIM provides no guarantees, warranties, representations or undertakings that the content on the Site is accurate, complete or up to date at any given time, and ELITE and/or ELITE SIM is under no obligation to update such content.
8. REPRESENTATIONS AND WARRANTIES
8.1 Each Party represents and warrants to the other on a continuing basis that:
8.1.1 it is duly authorised (where authorisation is required) and has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation and, insofar as such concept exists in its jurisdiction of incorporation, is in good standing under the laws of such jurisdiction and has full power and authority to enter into, deliver and perform its obligations under the Agreement and in entering into and performing its obligations under the Agreement it shall not:
18.104.22.168 infringe any applicable law or regulation or any judgment, order, writ or decree of any government, governmental body or court having jurisdiction over it;
22.214.171.124 breach or default in respect of any agreement, deed or instrument to which it is a party;
8.1.2 it is not currently the subject of any economic, financial or trade embargoes or sanctions administered or enforced by the Office of Foreign Assets Control of the US Treasury Department, the United Nations Security Council, the European Union, the Office of Financial Sanctions Implementation of Her Majesty’s Treasury, or other relevant sanctions authority;
8.1.3 neither it, nor any of its directors or officers or employees or, so far as it is aware, any agents or other persons acting on its behalf have, in connection with its business:
126.96.36.199 used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
188.8.131.52 made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds;
184.108.40.206 attempted to pay or paid any bribe, rebate, pay-off, influence payment, facilitation payment, kick-back or other unlawful payment; or
220.127.116.11 violated or breached the U.S. Foreign Corrupt Practices Act of 1977, as amended, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Bribery Act 2010 or any similar anti-bribery or anti-corruption law or regulation; and
8.1.4 its operations and those of its Affiliates are and have been conducted at all times in compliance with Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving it or any of its Affiliates with respect to the Money Laundering Laws is pending or, to the best of its knowledge, threatened.
8.2 Each Party undertakes to execute all such documents and do all such acts as the other Party may properly and reasonably require in order to give effect to the terms of the Agreement.
9. LIABILITY OF ELITE SIM – FORCE MAJEURE
9.1 The content on this Site is provided without any guarantees, representations, undertakings or warranties as to its accuracy or that it will be error free. To the extent permitted by law, ELITE SIM, ELITE SIM’s Affiliates and third parties connected to ELITE SIM hereby expressly exclude:
9.1.1 Any liability for any direct, indirect or consequential loss or damage incurred by any user of the Site in connection with the Site or in connection with the use, inability to use, or results or the use of this Site, any websites linked to it and any materials posted on it, including, without limitation any liability for:
18.104.22.168 loss of income or revenue;
22.214.171.124 loss of business;
126.96.36.199 loss of profits or contracts;
188.8.131.52 loss or corruption of data;
184.108.40.206 loss of goodwill; and
and for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
9.2 To the extent permitted by law, ELITE SIM and its Affiliates shall not be considered liable for damages, losses or expenses unless they are immediate and direct consequence of ELITE SIM’s and its Affiliates non-fulfilment of their obligations arising from the present Agreement or this has resulted from willful misconduct (“dolo”) or gross negligence (“colpa grave”) on part of ELITE SIM and its Affiliates.
9.3 If, notwithstanding the foregoing, ELITE SIM and its Affiliates are determined by a court of competent jurisdiction to be liable to Company, such liability shall be limited in aggregate to €10.000,00 (ten Thousand/00).
9.4 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control amongst which, the following are mentioned by way of example, in particular, those causes resulting from:
a) wars, insurrections, terrorist attacks, earthquakes, floods, fires, epidemics or other force majeure events;
b) national or local (also company) strikes;
c) interruptions in the supply of electricity, or interruptions and/or malfunctioning of the electronic data transfer service due to failures in the data transmission lines, supplied by third parties;
d) impediments or obstacles caused by law or administrative provisions, or by administrative orders or judicial briefs.
10. INFORMATION ABOUT YOU AND YOUR VISITS TO THE SITE
11. USE OF THE SITE
11.1 You may only use the Site for lawful purposes and in compliance with all applicable laws, including without limitation data protection and privacy laws and laws relating to unsolicited commercial electronic messages.
11.2 In addition, you must not:
11.2.1 knowingly or recklessly introduce Viruses;
11.2.2 use the Site to attempt to gain unauthorized access to the Site, the server, equipment or network on which the Site is stored or any server, computer or database connected to this Site or any software;
11.2.3 use the Site to attempt to gain unauthorised access to any other website, internet account, server, computer, equipment, system, network, data or information;
11.2.4 use the Site to collect or use information, including without limitation email addresses, screen names or other identifiers, by deceit (such as phishing, internet scamming, password robbery, spidering, scraping and harvesting);
11.2.5 use the Site to send or transmit, whether directly or indirectly, unsolicited or unauthorised advertising or promotional material, chain letters or pyramid selling schemes; or
11.2.6 use the Site to monitor data or traffic on any network or system.
11.3 By breaching this provision, you may commit a criminal offence. ELITE SIM will report any such breach to the relevant law enforcement authorities and ELITE SIM will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your rights to use this Site will cease immediately.
11.4 ELITE SIM makes no warranties, representations, undertakings or guarantees that the Site is secure or free from bugs or Viruses. ELITE SIM will not be liable for any loss or damage caused by a denial-of-service attack or Viruses that may infect your computer equipment, device, computer programs, system, data or other proprietary material due to your use of this Site or to your downloading of any content posted on it, or on any website linked to it. You are responsible for ensuring that the device from which you access the Site has suitable anti-virus software.
12.1 Subject to paragraphs 12.4, 12.5 and 12.6 below, each Party hereby undertakes not to disclose any Confidential Information to any third parties.
12.2 For the purposes of the Agreement “Confidential Information” means any information of any nature that is available through the Site, including, without limitation, any technical, economic and financial, equity, corporate, commercial, administrative or other data, documents, agreements, corporate deeds, financial statements, business plans and other similar materials, as well as data, studies, estimates, forecasts, projections, papers, opinions, reports, analyses, comments, business models and other materials (even if not explicitly classified as being “confidential”).
12.3 The term “Confidential Information” shall not include any information that is in the public domain or information that may fall in the public domain for reasons other than a Party’s failure to perform its obligations under the Agreement.
12.4 Should it be necessary to disclose Confidential Information to third parties to comply with mandatory provisions of law or mandatory regulations or with orders issued by judicial or regulatory authorities, the disclosing party undertakes to disclose the Confidential Information solely to the extent necessary, subject to the prior timely notice to us and the person to whom the Confidential Information belongs (as appropriate) to such effect by email and by registered letter with return receipt requested.
12.5 The disclosing Party undertakes that it shall only disclose Confidential Information to its directors, officers, employees, agents, accountants and consultants (“Representatives”) if it is reasonably required for purposes connected with the Agreement and only if the Representatives are informed of the confidential nature of the Confidential Information.
12.6 The obligations referred to in this paragraph 12 shall also apply to any such Representatives to whom the potential investor provides Confidential Information in accordance with paragraph 12.5.
13. LINKING TO THE SITE AND SCRAPING
13.1 You may not create a link to the Site from another website without ELITE SIM’s prior written permission.
13.2 You may not scrape content from the Site and repost such content, either manually or automatically, without ELITE SIM’s prior written consent.
13.3 The Site must not be framed on any other website without ELITE SIM’s prior written permission.
13.4 ELITE SIM reserves the right to withdraw linking, scraping and framing permission without notice and reserves the right to require you to remove any link to, scraping from or framing of the Site at any time and without giving you prior notice.
14. LINKS FROM THE SITE
Where this Site links to other websites and resources provided by third parties, these links are provided for your information only. ELITE SIM has no control over the contents of those websites or resources, and accepts no responsibility for them or for any loss or damage that may arise from your use of them.
15. DURATION - TERMINATION
15.1 The term of this Agreement shall start on the subscription date and shall have an indefinite duration. It remains understood by the Parties that any Party can terminate the Agreement by giving a 30 (thirty) days prior written notice to the other Party.
15.2 Any notice given pursuant to this paragraph 15 shall be made following prior consultation with the other Party in good faith and to the extent reasonably practicable, but, for the avoidance of doubt, such consultation shall be exclusively for informational purposes and shall not be construed as a requirement to seek the consent of the other Party or any other person to the issue of such notice. To this scope, and following the consultation mentioned herein, the notice will contain a description of termination reasons. Once expired the consultation and the notice period without a different agreement reached between the Parties, the termination will become effective. It remains further agreed and understood that, in case of termination of the Agreement, the Parties shall continue to cooperate in good faith and to the extent reasonably practicable to finalize any pending Capital Raising.
15.3 Upon termination of the Agreement, the Parties shall (except for any liability arising before or in relation to such termination) be released and discharged from their respective obligations under the Agreement, provided that paragraphs 5.6, 8, 9, 12, 15 and 17 to 21 shall survive such termination and remain in full force and effect. Termination shall be without prejudice to any fees, charges or expenses that have become due and payable prior to such termination. In any case ELITE SIM will treat the content of any notice or information obtained by other Parties as confidential and will not use it for any commercial purpose.
16.1 ELITE SIM has a procedure for handling any complaints relating to the operation of the Platform, a copy of which is available on request at the address stated in paragraph 16.2.
16.2 In order to make a complaint to ELITE SIM please write to email@example.com or call +39 0272426242.
16.3 In the event that you are not satisfied, you may also have a right of complaint direct to the Consob Financial Ombudsman Service (Arbitro per le Controversie Finanziarie) following the procedure detailed on the following website https://www.acf.consob.it.
17.1 The representations and warranties in the Agreement shall continue in full force and effect despite the termination of the Agreement.
17.2 The Agreement with the relevant Application Form (where applicable and present), comprising these ELITE SIM General Terms and Conditions and the relevant User Terms and Conditions shall constitute the entire agreement on the subject matter between the Parties.
17.3 In the event any provision of the Agreement is found to be or becomes invalid or unenforceable, no other provision of the Agreement shall thereby be affected and the Agreement shall remain valid and enforceable in respect of all remaining provisions, and any invalid or unenforceable provision will be deemed to be replaced by a provision which as nearly as possible accomplishes the commercial purpose of the original.
17.4 ELITE SIM may introduce material changes (e.g. material changes to the Platform model and/or business model) to the Agreement upon giving you 15 days prior written notice of the change. In this case any notice given by ELITE SIM pursuant to this paragraph 17.4 shall be made following prior consultation with the other Party in good faith and to the extent reasonably practicable, but, for the avoidance of doubt, such consultation shall be exclusively for informational purposes and shall not be construed as a requirement to seek the consent of the other Party or any other person to the issue of such notice and to the relevant variation of the Agreement. To this scope, and following the consultation mentioned herein, the notice will contain a description of changes reasons. Once expired the consultation and the notice period the changes will become effective. Provided that in this case you will have full right to terminate the Agreement by giving a 10 days prior written notice without any effect of the change introduced so far with respect to you. It remains agreed and understood that ELITE SIM may vary the Agreement without giving you any prior notice in order to comply with its legal or regulatory obligations and will, in such circumstances, provide written notice of the change as soon as is reasonably practicable.
17.5 No failure to exercise and no delay in exercising on the part of any of the Parties any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in the Agreement are cumulative and not exclusive of any rights or remedies otherwise provided by law.
17.6 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.
17.7 Legislative Decree 231/01: As an integral part of the control system and in accordance with Legislative Decree No. 231/2001 on the liability of legal entities, Elite SIM has adopted the relevant Organisation, Management and Control Model (hereinafter the "231 Model"). Among the requirements established in order for the 231 Model to be effective is the adoption of a Code of Conduct and a guarantee that all those who operate with company comply with its principles and contents, which are based on fundamental values such as integrity, legality, respect and responsibility. To this end, a copy of the Code of Conduct shall be sent, on request, and published on the Elite SIM website.
18. GOVERNING LAW AND JURISDICTION
18.1 The Agreement and the relationship among the Parties to it and any non-contractual obligations which may arise out of or in connection with the Agreement shall be governed by and interpreted in accordance with Italian law. Any dispute arising out of or in connection with this Agreement and the relationship between the Parties shall be subject to the exclusive jurisdiction of the Courts of Milan, Italy.
19.1 All notices and communications hereunder shall be in writing and shall be delivered or sent by email to the email address notified by the Parties to each other from time to time. The email address for the service of notice or communication on ELITE SIM is firstname.lastname@example.org.
19.2 Notices shall be deemed to have been served:
- if delivered by hand, at the time of delivery; or
- if posted or by PEC - Email, at the time resulting from the relevant receipt of delivery.
20.1 Neither Party may assign, transfer, charge or otherwise deal with any of its rights or obligations under the Agreement nor grant, declare, create or dispose of any right or interest in it, except that you hereby consent to the assignment or transfer of the benefit and burden of the Agreement by ELITE SIM to an Affiliate of ELITE SIM subject to ELITE SIM giving you not less than 20 Business Days’ notice of such assignment or transfer unless it is impracticable in the circumstances to give such notice. Any successor in interest of ELITE SIM and you shall be bound by the Agreement.