Terms of Use

This Master Subscription Agreement (this “Agreement”) is entered into by and between Silo Technologies, Inc., a Delaware corporation with offices at 8605 Santa Monica Blvd, West Hollywood, CA 90069 (“Silo” or “Company”) and the entity identified as a customer on the Order (“Customer”), effective as of the day you execute the Order (the “Effective Date”). BY EXECUTING AN ORDER THAT INCORPORATES THIS AGREEMENT BY REFERENCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, YOU 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 who is authorized by Customer to use 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. Customer’s use of the Services as permitted herein may be exercised by one or more employees 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 an ordering document specifying the Services to be provided hereunder that is entered into between Customer and Silo or any Silo Affiliates, including any addenda and supplements thereto.
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.
8. “Transportation Provider” means those independent third-parties, whether motor carriers or freight brokers, engaged by Silo to perform or arrange transportation of Goods (as defined below).
9. “Transportation Services” means Silo’s arrangement, in Silo’s capacity as a broker, of transportation of the Customer’s cargo via Transportation Providers.
SILO’S RESPONSIBILITIES AND ROLE
1. Provision of Services. Silo will (a) make the Services available to Customer pursuant to this Agreement and any applicable Order, 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. Support. Silo will use commercially reasonable efforts to provide User with technical support services relating to the Services by email each day from 02:00 to 20:00 Eastern US Time, excluding Saturdays, Sundays and public holidays.
3. Transactions. Each sale of perishable goods or other materials sold (“Goods”) on the Platform between Platform users, including without limitation Authorized Users (collectively and individually, “Users”), is referred to herein as a “Transaction.” Silo is not required to, but may, introduce Users to other Users, contact Users about promotions, or notify Users of available goods or other offers sought. At all times, Users are responsible for evaluating and determining the suitability of any Transaction for their business operations and purposes, on their own. If Users decide to enter into a Transaction, any contract or agreement governing that Transaction (each, a “Transaction Contract”) is directly between the Users and Silo is not a party to any such Transaction Contract.
4. Responsibility for Transactions. Customer acknowledges, agrees and understands that Silo is not a party to the relationship of any dealings between or among Users. Without limitation, each User is responsible for (a) determining the suitability of other Users for a Transaction and entering into a Transaction Contract, (b) negotiating, agreeing to, and executing any terms and conditions of a Transaction Contract, (c) performance of the Transaction, and (d) paying the amounts owed under any Transaction Contract to another User. Customer further acknowledges, agrees, and understands that Customer is solely responsible for assessing whether to enter into a Transaction Contract with another User and verifying any information about another User. Silo does not make any representations or offer any guarantees about the truth or accuracy of any User’s listings, Goods made available for sale or purchase, or other data made available by Users on the Services. Silo does not verify any feedback or information provided by Users about other Users. Customer acknowledges and agrees and understands that Silo does not, in any way, supervise, direct, control, or evaluate other Users or their business or Goods and that Silo is not responsible for any Transaction, the terms of any Transaction Contract, or Goods sold pursuant to a Transaction. Silo makes no representations about, and does not guarantee, and Customer agrees not to hold Silo responsible for, the quality, safety, or legality of the Goods offered by any other User, the qualifications, background or identities of other Users, the ability of Users to deliver the Goods sold pursuant to a Transaction, the ability of Users to pay other Users for Goods sold on the Platform, data, statements or posts made by Users, or the ability or willingness of a User to actually complete a Transaction. Customer acknowledges, agrees, and understands that Users are solely responsible for determining, and have the sole right to determine, which Transactions to accept, the time, place, manner and means of selling Goods on the Platform, the type of Goods provided or sold, and the prices charged by Users for their Goods (including how that price is determined or set).
5. Transportation Services Generally. In addition to this Agreement, Silo’s provision of Transportation Services is subject to the Transportation Services Terms and Conditions maintained by Silo and available at https://usesilo.com/legal/freight-terms (the “Transportation Services Terms and Conditions”). In the event of a conflict between this Agreement and the Transportation Services Terms and Conditions with respect to Transportation Services performed by Silo, the Transportation Services Terms and Conditions will govern.
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. Subscriptions. Unless otherwise provided in the applicable Order, (a) Platform services are purchased as subscriptions, (b) additional Platform subscriptions may be added during a subscription term at the same pricing set forth in the Subscription Terms in the Order, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added Platform subscriptions will terminate on the same date as the underlying Platform subscription, as set forth in the Order.
3. Usage Limits. Authorized User subscriptions 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.
4. 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.
5. 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. Fees for Subscriptions and Other Services. Customer agrees to pay all fees specified in an Order for the entire Subscription Period specified in the Order, and any additional Services obtained through renewals, additional Orders and/or revised orders. Except as otherwise specified herein or in an Order, (i) fees are based on Services purchased and not actual usage and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
2. Transaction Fees. Customer acknowledges that various Transactions in the Platform by Customer or its Authorized Users may result in Transaction fees. For example, Silo or third-party payment processors, as applicable, may impose fees for payment services, factoring, or freight services, which will be assessed for each Transaction. Customers may be able to determine whether these fees will be passed along to Users or paid by Customer. Silo reserves the right to change the Transaction fees at any time, and will provide Customer and Users notice of any Transaction fee changes before they become effective.
3. Invoicing, Payment & Taxes. Subscription Fees and fees for other Services will be invoiced in advance and otherwise in accordance with the relevant Order. Customer shall make payments in accordance with the requirements of the Order. Unless otherwise stated on the Order, invoiced charges are due net 30 calendar days from the date the invoice is received by Customer without offset. Transaction fees and Transportation Services will be invoiced monthly and invoiced charges are due net 30 calendar days from the date the invoice is received by Customer. Customer is responsible for providing complete and accurate billing and contact information to Silo and notifying Silo of any changes to such information. Customer is solely responsible for any consequences attributed Customer’s failure to provide current, complete, and accurate billing and contact information including, but not limited to, overdue charges as set forth in Section 4.4 (Overdue Charges). Customer will be responsible for all taxes associated with the Services other than U.S. taxes based on Silo’s net income. Customer shall also be liable for any expenses, including attorney fees, Silo incurs in collecting its rates and charges set forth in this section.
4. Overdue Charges. If Customer fails to make payments by the due date, then, without limiting Silo’s rights or remedies, Silo may: (a) impose a late fee of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, if higher, and/or (b) condition future subscription renewals and Orders on payment terms shorter than those specified in Section 4.3 (Invoicing, Payment & Taxes).
5. Suspension of Services. If any charge owing by Customer is 30 days or more overdue, Silo may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided Silo has given Customer 10 or more days’ prior notice that its account is overdue.
6. Payment Disputes. Silo will not exercise its rights under Section 4.4 (Overdue Charges) or 4.5 (Suspension of Services) if Customer (a) is disputing the applicable charges reasonably and in good faith; (b) is cooperating diligently to resolve the dispute; and (c) timely pays any undisputed amounts due.
7. Future Functionality. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Silo regarding future functionality or features.
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 or as expressly permitted in the Order or otherwise in writing by Customer. 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 subscriptions for 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 until all subscriptions granted to Customer in accordance with this Agreement or a specific Order have expired or been terminated (the “Term”). Termination of this Agreement will terminate any and all Orders under this Agreement.
2. Term of Subscriptions. Platform subscriptions commence on the start date specified in the applicable Order and continue for the subscription term specified therein. Then, except as otherwise specified in the applicable Order, all Platform subscriptions will automatically renew (without the need to execute a renewal Order Form) for additional periods equal to one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The unit price for any automatic renewal term will increase by 7% each renewal term.
3. 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.
4. Refund or Payment Upon Termination for Cause. Upon any termination for cause by Customer, Silo will refund Customer any prepaid fees covering the remainder of the Term after the effective date of termination. 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.
5. 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).
6. 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 (Mutual Indemnification); and 11 (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, the Order, 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 or any Order 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.
LIMITATION OF LIABILITY
1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY, PROVIDED, HOWEVER, THAT (1) SUCH LIMITATION SHALL NOT APPLY TO A PARTY’S LIABILITY RELATION TO OR ARISING OUT OF: (A) THE INJURY OR DEATH OF ANY PERSON, OR THE DAMAGE OR DESTRUCTION OF ANY PROPERTY, CAUSED IN WHOLE OR IN PART BY AN ACT OR OMISSION OF THE PARTY OR ITS EMPLOYEES, CONTRACTORS OR REPRESENTATIVES, OR (B) FRAUD OR WILLFUL MISCONDUCT OF THE PARTY OR ITS EMPLOYEES, CONTRACTORS, OR REPRESENTATIVES. THE FOREGOING SHALL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
2. 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.
MUTUAL INDEMNIFICATION
1. Customer Indemnification. Customer shall defend Silo and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against any and all third party claims, actions and demands alleging Customer's use of the Services, in breach of this Agreement, or any Customer Data, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Silo”), and shall indemnify Silo for any damages, attorney fees and costs finally awarded against Silo as a result of, or for any amounts paid by Silo under a court-approved settlement of, a Claim Against Silo. For a Claim Against Silo, Customer controls the defense and settlement of the Claim Against Silo and Silo agrees to give Customer all reasonable assistance, at Customer’s expense. Customer will not settle, compromise, or otherwise enter into any agreement regarding the disposition of any Claim Against Silo without the prior written consent and approval of Silo unless such settlement (a) is solely for a cash payment, (b) requires no admission of liability or wrongdoing on the part of Silo, (c) imposes no affirmative obligation on Silo, (d) imposes no restriction on Silo’s business, (e) provides that the parties to such settlement shall keep the terms of the settlement confidential, and (f) provides for a full and complete release of Silo. Customer shall reimburse Silo upon demand for any losses incurred by Silo that is subject to an indemnification obligation as set forth in this Section 10.1.
2. Indemnification by Silo. Silo will defend Customer and its respective officers, directors, employees and contractors, against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives Silo written notice of the Claim Against Customer, (b) gives Silo sole control of the defense (including selection of attorneys) and settlement of the Claim Against Customer (except that Silo may not settle any Claim Against Customer unless it releases Customer of all liability), and (c) gives Silo necessary assistance, at Silo’s expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from (a) Customer Data; (b) Customer’s negligence, misconduct, or breach of this Agreement; (c) any modification, combination or development of the Services that is not performed by Silo; or (d) the use of any version of software other than the most current release made available by Silo.
3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
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 set forth on the Order 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 (including all Orders), 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 of all subscriptions. 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. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order as defined herein) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, and (2) this Agreement. 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 that references this Agreement, you represent and warrant that you have the authority to bind Customer to this Agreement.