Terms of Use

Unless expressly superseded by a written contract signed by an officer of Silo Technologies, Inc. (“Silo”) and the party requesting Services by, or otherwise accessing Services of, Silo (“Customer”), these Terms of Use (“Agreement”), as amended from time to time by Silo in its sole discretion, shall govern Silo’s provision of the Services. Any terms and conditions on any document exchanged between the parties (other than this Agreement) shall not apply to any Services and shall not be binding on or applicable to Silo. BY ESTABLISHING AN ACCOUNT WITH SILO OR OTHERWISE REQUESTING OR RECEIVING SERVICES, YOU: (i) AGREE TO THE TERMS OF THIS AGREEMENT; and (ii) REPRESENT THAT YOU ARE AN AGENT OF CUSTOMER AND HAVE THE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

DEFINITIONS
1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2. “Authorized User” means an individual using the Services under Customer’s account, and who has completed a signup process for use of the Platform and created a user identification and password.
3. “Customer” is defined as set forth in the first paragraph above and includes the party requesting services by Silo including, but not limited to, any shipper, consignor, consignee, broker, forwarder, or any other entity claiming an interest in goods for which Silo arranges transportation. Customer’s use of the Services as permitted herein may be exercised by one or more Authorized User’s of Customer, which shall all constitute Customer in such context.
4. “Customer Data” means all data and information submitted by Customer and Authorized Users to the Services, including information collected automatically from Customer’s and Authorized Users’ use of the Services, such as the features and functions of the Services being used, the associated domain names, usernames and IP addresses, and information about the devices used to access the Services.
5. “Order” means a request for Transportation Services submitted to Silo that includes information prompted by the Platform.
6. “Platform” means Silo’s software as a service platform that automates the perishable supply chain.
7. “Services” means Silo’s Platform and related systems, technologies and services ordered by Customer that are ordered and paid for by Customer, as well as “Transportation Services” provided by Silo.
8. "Transportation Services” means Silo’s arrangement, in Silo’s capacity as a broker, of motor carrier transportation of cargo at the request of Customer whether arranged directly with the Servicing Motor Carrier, as defined below, or whether arranged by third parties including, but not limited to, property brokers and freight forwarders) provided by Silo, including Transportation Services provided pursuant to an Order requested via one or more portal accounts created by or on behalf of Customer via services made available to Customer by Silo at https://usesilo.com/legal/terms).
SILO’S RESPONSIBILITIES AND ROLE
1. Provision of Services. Silo will (a) make the Services available to Customer pursuant to this Agreement, subject to reasonable maintenance and (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving our employees), Internet service provider failure or delay, or acts undertaken by third parties, including without limitation, denial of service attack.
2. Provision of Transportation Services. Unless expressly superseded by a written contract signed by an officer of Silo and the Customer, this Agreement, as amended from time to time by Silo in its sole discretion, shall govern Transportation Services. Any terms and conditions on document exchanged between the parties other than those contained in this Agreement, as revised from time to time, shall not apply to any Transportation Services and shall not be binding on or applicable to Silo. Customer understands and agrees that Silo functions as an independent entity, and not as a carrier, in selling, negotiating, and arranging for transportation for compensation, and that the actual transportation of shipments tendered to Silo shall be performed by third-party motor carriers (“Servicing Motor Carriers”) regardless of whether such Servicing Motor Carrier is engaged by Silo directly or is engaged by a subcontractor retained by Silo. Silo and Customer represent and warrant that their relationship is that of independent contractors and that the respective employees are under their respective exclusive management and control. Nothing in this Agreement shall be deemed to require Silo to provide Transportation Services upon request of Customer, and Silo reserves the right to accept or decline, in its sole discretion, any particular request for Transportation Services.
3. Compliance With Law. Silo represents and warrants that it is duly and legally qualified to operate as a property broker and to provide the Transportation Services contemplated herein. Silo agrees to comply with all applicable federal, state and local laws regarding the provision of such Transportation Services. Customer warrants and represents that it is authorized to tender the cargo in question to Silo and that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rules or regulation. Without in any way limiting the foregoing, if Customer tenders for transportation cargo designated as hazardous materials or dangerous goods, Customer shall be solely responsible for complying with any and all applicable laws, rules, regulations, or conventions with respect to classifying, tendering, packaging and labeling such cargo and must provide notice of any such cargo at the time a request for Transportation Services is first initiated by Customer to Silo. When requesting service with respect to any shipment containing food that is subject to regulations of the Food and Drug Administration (“FDA”) (hereinafter, “Food”), Customer shall be solely responsible for providing written notice detailing any handling obligations necessary for the safe and sanitary handling of food at the time of the initial request for Transportation Services with respect to the individual shipment. Any such notice shall specifically identify the consignment to which it relates. If Customer does not provide such notice, Customer warrants and represents that the cargo is appropriately packaged to ensure safe and sanitary transportation without the need for any specialized handling by the Servicing Motor Carrier. Customer acknowledge and agrees that Silo’s sole obligation with respect to food handling and food safety is to pass through to the Servicing Motor Carrier instructions contained in a notice provided by Customer to Silo pursuant to this paragraph.
4. Servicing Motor Carriers. Silo’s sole responsibility with respect to selection and retention of Servicing Motor Carriers is to make reasonable efforts to place Customer’s loads with responsible Servicing Motor Carriers: (i) authorized to perform the services required by Customer; (ii) which such carriers do not hold an “unsatisfactory” rating from the U.S. Department of Transportation; and (iii) that possess all insurance coverages as required by applicable law. Silo makes no express or implied warranties or guarantees concerning delivery time or the locating of a Service Motor Carrier to provide the transportation services requested by Customer.
5. Silo Insurance. Silo shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond or trust fund agreement.
6. Rail Transportation. Notwithstanding anything in this Agreement to the contrary, in the event, whether upon request of Customer or in Silo’s discretion, any portion of the underlying transportation is performed by a rail carrier (“Rail Carrier”), Customer acknowledges and agrees that the Rail Carrier services, including, but not limited to, charges, liability (including limitations) for loss or damage to cargo, and terms and conditions of services are governed by tariffs, circulars or similar documents maintained by the Rail Carrier or other third party logistics provider arranging such Rail Carrier services (the “Rail Conditions”). Customer acknowledges and agrees that Customer, and not Silo, shall be deemed as a shipper or beneficial cargo owner for purposes of application of the Rail Conditions. As between Customer and Silo, Customer shall be solely responsible for: (a) proper packing of any and all shipments; (b) blocking and bracing all such cargo in accordance with the Rail Conditions, as well as in accordance with industry standards (including, but not limited to, those imposed by the American Association of Railroads via Circular 43, Rules Governing the Loading, Blocking and Bracing of Freight in Closed Trailers and Containers for TOFC/COFC Service); and (c) compliance with any and all obligations or charges imposed by the Rail Carrier with respect to tender of cargo for rail and/or intermodal transportation, including but not limited to any and all charges for accessorial services imposed by Rail Carriers whether or not included in the initial rates agreed upon by the parties.
7. Shipping Documents. Shipments tendered hereunder may be evidenced by a bill of lading or similar transportation document. In no event will Silo being shown as the “carrier” on any such document change Silo’s status as a property broker. Upon request of Customer, Silo shall request that Servicing Motor Carriers obtain a delivery receipt from the consignee, showing the products delivered, the condition of the shipment and the date and time of such delivery. Customer waives access to Silo’s records pursuant to 49 C.F.R. Part 371.
8. Notification of Accidents or Delays. Silo agrees to notify Customer of any accident or other event which Silo is apprised and which prevents the Servicing Motor Carrier from making a timely safe delivery.
ACCESS AND USE OF SERVICES
1. Account Creation. Customer shall identify a primary owner for its account. Customer may create accounts which will allow access to the Services by Customer’s Authorized Users. Customer is responsible for all activities that occur under Customer’s accounts. Customer is prohibited from obtaining the Services if Customer is a direct competitor of Silo, unless Customer has received Silo’s prior, written approval.
2. Usage Limits. Authorized User accounts cannot be shared or used by more than one Authorized User. Customer and its Authorized Users are responsible for maintaining the confidentiality of its logins, passwords and accounts and for all activities that occur under its accounts.
3. Usage Restrictions. Customer acknowledges and agrees that Silo has no obligation to monitor or police the content of communications or data of transmitted through the Services, and that Silo is not responsible for the content of any such communications or transmissions. Customer will not (a) make the Services available to, or use the Services for the benefit of, anyone other than Customer or its Authorized Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (c) store or transmit infringing, libelous, or otherwise unlawful or tortious material through the Services, (d) store or transmit material in violation of third-party intellectual property, proprietary, privacy, or similar rights through the Services, (e) store or transmit malicious code through the Services, (f) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (g) attempt to gain unauthorized access to the Services or their related systems or networks, (h) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (i) copy the Services or any part, feature, function or user interface thereof, (j) frame or mirror any part of the Services, (k) access the Services in order to build a competitive product or service, (l) reverse engineer the Services or any part thereof, (m) modify, translate, or otherwise create derivative works of the Services; (n) allow the removal, alteration, covering, or obscuring of any Silo trademarks or service marks that appear on the Services, or (o) promote, market, or sell any products or services that are competitive with the Services.
4. Customer Responsibilities. Customer will (a) get any permissions required for Silo and Customer’s owners and administrators to have the rights to access Customer Data in connection with the Services; (b) be responsible for its and its Authorized Users’ compliance with this Agreement; (c) be responsible for the accuracy, appropriateness and legality of Customer Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Silo promptly of any such unauthorized access or use; and (e) use the Services, and require its Authorized Users to use the Services, only in accordance with applicable laws and government regulations.
FEES AND PAYMENT
1. Silo will charge and Customer will pay the rates and charges set forth in a load confirmation or as otherwise agreed for Transportation Services provided by Silo without offset. Customer agrees to pay Silo without offset and within fifteen (15) days of receiving the invoice, with interest accruing monthly at a rate of one percent (1%) per month on any unpaid balance. Customer shall also be liable for any expenses, including attorney fees, Silo incurs in collecting its rates and charges. If any information provided by Customer is inaccurate or incomplete, Customer acknowledges and agrees that agreed upon rates may, in Silo’s sole discretion, be revised to reflect the goods actually tendered. Customer shall also be responsible for any additional accessorial charges imposed by the Servicing Motor Carrier which were not anticipated by Silo at the time Silo arranged for transportation or which were not otherwise included in the rate set forth in the load confirmation. In no event will Silo have any responsibility for, and Customer will defend, indemnify, and hold Silo harmless from, and will pay and reimburse, any charges imposed by third parties with respect to use of equipment in which cargo tendered by, to or on behalf of Customer is or has been laden, or for charges assessed with respect to storage or handling of any such equipment, including, but not limited to, charges assessed by steamship lines, rail carriers, rail terminal operators, marine terminal operators or port authorities. Without limiting the generality of the foregoing, Silo shall have no liability for any such charges arising from or related to port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations. Silo shall have a possessory lien on all cargo, and any proceeds therefrom, in its, or in its Servicing Motor Carrier’s, dominion or control for the payment of any and all amounts due and owing from Customer or with respect to services rendered at the request, or for the benefit of, Customer. In addition, to the extent not prohibited by applicable law, Silo will have a general lien on any cargo under its, or its Servicing Motor Carrier’s, dominion or control, and any proceeds thereof, for any and all amounts due and owing from Customer or with respect to services rendered at the request, or for the benefit of, Customer, regardless of whether those amounts relate to cargo or proceeds against which the general lien is enforced.
PROPRIETARY RIGHTS AND LICENSES
1. Customer License to Use the Services. During the Term and subject to Customer and Customer’s Authorized User’s compliance with this Agreement, Customer and Authorized Users have the limited right to access and use the Services for Customer’s internal business purposes.
2. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Silo reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
3. License to Customer Data. Customer grants Silo and its Affiliates (including its third-party hosting providers acting on its behalf) a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform and display Customer Data (a) as reasonably necessary to provide the Services to Customer and Authorized Users in accordance with this Agreement; (b) to prevent or address service or technical problems or at Customer's request in connection with customer support matters; or (c) as compelled by law in accordance with the “Confidentiality” section below. Subject to the limited licenses granted herein, Silo acquires no right, title or interest under this Agreement in or to Customer Data. Notwithstanding anything to the contrary, Silo may aggregate, anonymize, or otherwise de-identify any information collected from Customer and Authorized Users in the course of this Agreement and use and disclose such information without restriction, including to provide qualitative insights on use of the Services and customer support metrics, provided that such aggregated, anonymous, or otherwise de-identified data does not: (1) identify Customer or any Authorized User; (2) disclose any of Customer’s Confidential Information; or (3) disclose any of Customer’s trademarks or other proprietary information (“Anonymized Data”). Silo retains all intellectual property rights in Anonymized Data. This Section 5.3 shall survive termination of this Agreement.
4. Feedback. If Customer (including any Authorized User) sends Silo any feedback or suggestions regarding the Services, Customer grants Silo and its Affiliates an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use or share any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User.
5. License to Customer Marks. Customer grants to Silo a royalty-free license to use any of Customer’s trademarks, brand names, and/or logos as needed to provide the Services and for the purpose of disclosing that Silo provides services to Customer. The license set forth in this Section 5.5 shall be valid only during the period of time in which Silo provides Services to Customer and shall expire at the termination of this Agreement.
6. Remedies for Infringement Claims Related to the Services. If Silo receives information about an infringement or misappropriation claim related to the Services, Silo may in its discretion and at no cost to Customer elect to: (a) modify the Services so that they no longer infringe or misappropriate, without breaching Silo’s warranties under Section 8.2; (b) obtain a license for Customer’s continued use of the Services in accordance with this Agreement; or (c) terminate Customer’s use of the Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the Term. Subject to the indemnification obligations in Section 10.2, but notwithstanding any contrary provision in this Agreement, if Silo provides any of the remedies set forth in this Section 5.6, Customer agrees that such action satisfies Silo’s obligations under this Agreement, and Customer is not eligible for further relief.
TERM AND TERMINATION
1. Term of Agreement. This Agreement commences on the Effective Date and continues for an initial one (1) year from the Effective Date; provided, however, that this Agreement shall automatically be extended for additional one year periods unless terminated (the “Term”). Termination of this Agreement will terminate any and all Orders under this Agreement.
2. Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. Payment Upon Termination for Cause. Upon any termination for cause by Silo, Customer will pay any unpaid fees covering the remainder of the Term after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to Silo for the period prior to the effective date of termination.
4. Portability and Deletion of Data. Following the Term, Silo shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control, provided, however, that Silo shall provide reasonable assistance to and deliver all Customer Data to Customer prior to or for a reasonable amount of time following termination (not to exceed 30 days following termination).
5. Surviving Provisions. The following provisions shall survive termination of this Agreement: Sections 4 (Fees and Payment), 5 (Proprietary Rights and Licenses), 6.5 (Portability and Deletion of Data); 6.6 (Surviving Provisions); 7 (Confidentiality); 8.3 (Disclaimer); 9 (Limitation of Liability); 10 (Cargo Loss, Damage, or Shortage); 11 (Mutual Indemnification); and 12 (General Provisions).
CONFIDENTIALITY
1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as otherwise specifically provided in this Agreement, Customer’s Confidential Information includes Customer Data, and all information provided by Customer and Authorized Users to Silo, whether written, electronic or oral, including without limitation, commercial or technical information, designs, drawings, plans, formulae, processes, programs, systems, product information, development or marketing techniques, business strategies and development plans, supplier information, customer information, employee information, personally identifiable information, financial information, projections and any other information of a similar nature, whether or not reduced to writing or other tangible form, and any other trade secret or non-public business information, including without limitation, pending patents or copyrights, and all notes, analyses, reports, compilations, studies, interpretations, summaries or any other documents; Silo’s Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, business processes, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind of nature, plans for future development and new product concepts, contemplated products, research, development, and strategies disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who rightfully possesses the information without confidential or proprietary restrictions, or (iv) was independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party.
2. Protection of Confidential Information. Except as otherwise specifically provided in this Agreement, or with advanced written authorization by the Disclosing Party, each Party covenants and agrees that it will not publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of any other Party, except as necessary in the performance of the terms of this Agreement or as otherwise permitted by this Agreement. Each Party covenants and agrees that it will not use any Confidential Information of any other Party except as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, service providers and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Party that disclosed the Confidential Information to the third party. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
3. Compelled Disclosure. In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that the Receiving Party will provide the Disclosing Party with prompt written notice of such request(s) to enable the Disclosing Party, at its sole cost and expense, to seek a protective order or take other lawful steps to protect and preserve the confidential nature of the Confidential Information, and the Receiving Party will cooperate with such efforts by the Disclosing Party, including by delaying the disclosure to the extent lawfully permitted to do so to permit the Disclosing Party the opportunity to engage in such efforts. Each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other Party upon discovery of any loss or unauthorized disclosure or other processing of the Confidential Information of the other Party. The Parties agree that to the extent any of their respective regulators have the right to examine the relationship between the Parties described in this Agreement, along with the records associated with such relationship, subject to any privacy requirements applicable to either Party or its Affiliates, or to the individual customers of either Party, the Parties shall (i) provide advance notice of such examination; and (ii) cooperate with each other in making relevant records available.
4. Return or Destruction. As requested by the Disclosing Party during the Term, upon expiration or any termination of this Agreement, or completion of the obligations of the Receiving Party, as applicable, the Receiving Party shall (a) return or destroy, as the Disclosing Party may direct, and in the manner reasonably directed by the Disclosing Party, all material in any medium that contains, refers to, or relates to the Disclosing Party’s Confidential Information, and (b) retain no copies except one copy solely to the extent, if any, required compliance with record retention requirements under applicable law; provided, however, that no Party will be obligated to erase Confidential Information subject to a license granted herein or contained in an archived computer system backup made in accordance with such Party’s security and/or disaster recovery procedures, provided that such archived copy will (a) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures and (b) will remain fully subject to the obligations of confidentiality and security stated herein.
5. Misuse. In the event of any actual or suspected misuse, disclosure or loss of, or inability to account for, any Confidential Information of the Disclosing Party, the Receiving Party promptly shall (a) (and in any event within three business days) notify the Disclosing Party upon becoming aware thereof; (b) furnish to the Disclosing Party full details of the unauthorized possession, use or knowledge, or attempt thereof, and use reasonable efforts to assist the Disclosing Party in investigating or preventing the reoccurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information; (c) take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the violation; and (d) cooperate in all reasonable respects with the Disclosing Party to minimize the violation and any damage resulting therefrom.
REPRESENTATIONS, WARRANTIES & DISCLAIMER
1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
2. Silo Warranties and Covenants. Silo warrants and covenants that (a) at all times during the term of this Agreement, Silo shall comply with all applicable federal, state, and local laws, and the terms of this Agreement; (b) Silo’s delivery of the Services or execution of this Agreement does not and will not conflict with Silo’s obligations to any third parties, including, without limitation, Silo’s employees, agents, or independent contractors; and (c) Silo will use commercially reasonable efforts to keep the Services and any updates free from material defects and free of viruses, malicious code, time bombs, Trojan horses, back doors, drop dead devices, worms, or other harmful code of any kind (collectively, “Harmful Code”).
3. Customer Warranties and Covenants. Customer warrants and covenants that (a) at all times during the term of this Agreement, Customer shall comply with all applicable federal, state, and local laws, and the terms of this Agreement; (b) Customer’s use of the Services or execution of this Agreement does not and will not conflict with Customer’s obligations to any third parties, including, without limitation, Customer’s employees, agents, or independent contractors; and (c) Customer will not introduce any Harmful Code into the Services.
4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND SILO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT SILO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
CARGO LOSS, DAMAGE, OR SHORTAGE
1. Customer acknowledges that Servicing Motor Carriers may limit their liability for cargo loss, damage or delay. It will be Customer’s responsibility to insure product in-transit and Customer acknowledges that if Customer wishes to declare excess value higher than the Servicing Motor Carrier’s limitation, Silo will have no responsibility to do so and it will be Customer’s responsibility to do so directly with the Servicing Motor Carrier. Silo may facilitate claims filing and processing with the Servicing Motor Carrier if Customer submits to Silo, within six (6) months of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. Silo may, in its sole discretion and without liability to Customer, discontinue pursuit of claims with the Servicing Motor Carrier if such claim is not resolved within sixty (60) days of receipt by Silo or if Customer, in Silo’s sole discretion, fails to cooperate with Silo in filing of claims with the Servicing Motor Carrier. Customer acknowledges and agrees that failure or alleged failure by the Servicing Motor Carrier to comply with shipment handling instructions, or a broken, missing or unreadable trailer seal, shall not result in any presumption that food has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose, nor otherwise be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage. Silo shall have no liability for cargo loss, damage, or shortage except to the extent such claims are caused by Silo’s negligent acts or omissions, in which case, Silo’s liability shall be limited to the charges assessed by Silo and paid by Customer with respect to the goods at issue. Customer is responsible for filing a claim with Silo alleging Silo’s liability for cargo loss and damage within six (6) months of the date of delivery of the cargo in question (or, if none, within six (6) months of the date cargo should have been delivered). Failure to do so will result in an absolute bar to any such claim and will relieve Silo of any and all liability with respect thereto. In no event will Silo have any liability arising from or related to the Servicing Motor Carrier’s refusal to accept full value liability or the Servicing Motor Carrier otherwise limiting its liability for cargo loss and damage. Silo shall be under no obligation to arrange, and Servicing Motor Carrier shall be under no obligation to provide, service in accordance with any set pick-up or delivery schedule; Silo’s sole obligation is to ensure Servicing Motor Carriers provide services with reasonable dispatch. Any lawsuit arising from such claim must be commenced within eighteen (18) months of denial of all or any part of such claim. Customer acknowledges and agrees that the sole liability of Silo with respect to loss, damage or delay to cargo shall be as set forth in this provision and Customer warrants and represents that if it is not the owner of such cargo, Customer holds authority from such owner to bind the owner to the provisions of this Agreement.
LIMITATION OF LIABILITY
1. THE TOTAL LIABILITY OF SILO WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL BE FOR THE AMOUNT CHARGED BY SILO WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
INDEMNIFICATION
1. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SILO FROM AND AGAINST, AND SHALL PAY AND REIMBURSE SILO FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO: (i) BREACH BY CUSTOMER OF THIS AGREEMENT; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAWS, RULE OR REGULATION; OR (iv) CUSTOMER’S FAILURE TO PROVIDE, OR SILO’S OR THE SERVICING MOTOR CARRIER’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, OR REQUEST OF CUSTOMER. THE FOREGOING NOTWITHSTANDING, CUSTOMER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SILO. THE TRANSPORTATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. SILO IS NOT LIABLE FOR THE CONSEQUENCES OF IDENTIFY THEFT OR FRAUDULENT CONDUCT OF THIRD PARTIES, INCLUDING UTILIZING THE TRANSPORTATION SERVICES OF ENTITIES REPRESENTING THEMSELVES TO BE SERVICING MOTOR CARRIERS OR REPRESENTATIVES THEREOF.
GENERAL PROVISIONS
1. Notices. Except as otherwise set forth herein, all notices under this Agreement will be in writing addressed to the parties at the address and will be deemed to have been duly given (a) when received, if personally delivered; (b) the first business day after sending by email; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
2. Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the laws of the State of California, without regard to its conflicts of laws rules.
3. Venue; Waiver of Jury Trial; Fees. The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
4. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such Party, which may include denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
5. Relationship of the Parties; Silo’s Role. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Silo bears no liability, and has no obligation to investigate, participate, or become involved, in any dispute between Customer and its Authorized Users.
6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
7. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9. Construction. This Agreement has been prepared with the participation of each Party and will not be strictly construed against either Party. Each party acknowledges that it has consulted with or had the opportunity to consult with counsel of its choice, and that in executing this Agreement it has not relied upon any statements, representations or agreements other than those expressly contained herein.
10. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that such party assumes or is otherwise fully bound by all of the obligations of the assigning Party under the Agreement. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Silo will refund to Customer any prepaid fees covering the remainder of the current term. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Silo regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Silo may, in its sole discretion, modify this Agreement from time-to-time. The parties agree that any term or condition stated in Customer’s bill of lading or in any other of Customer’s shipping documents is void. Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be agreed, accepted, waived or modified via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement or acceptance purportedly takes place within or through products or services or an application, website, or portal operated by or for Silo through Customer action (such as electronic signature, checking a box, or clicking to accept) or inaction, even if Customer is informed that such action or inaction will constitute agreement or acceptance. Any terms or conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no legal consequence.
12. Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.

By signing this Agreement, either by clicking a box indicating your acceptance and/or by executing an Order, you represent and warrant that you have the authority to bind Customer to this Agreement.

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