dSilo
dSilo

TERMS OF SERVICE

These Terms of Service (these "Terms") are a legally binding agreement between dSilo, Inc., a Delaware corporation ("dSilo" or "Company") and Customer, whether defined as an end user who is utilizing the Services (as defined), or, the entity for which an end user is acting as a duly authorized Representative (as defined) where the entity has obtained Services use rights for the end user pursuant to a separate agreement or by click-through purchase on our website (an "Order Form"), in which case, these Terms bind the entity in addition to the terms and conditions of Order Form, and as applicable the Master Subscription Agreement ("MSA") to which the entity and Company are signatory.

Any mention of Customer in these Terms shall either mean the end user in their personal capacity or in case their use rights herein are obtained pursuant to an entity’s order of the Services, such entity. "Party" means dSilo or Customer, as applicable, and "Parties" means the foregoing collectively.

THESE TERMS CONTAIN A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. THE PARTRIES AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT, INDIVIDUALLY OR AS PART OF A CLASS ACTION.

1.DEFINITIONS. In these Terms:

"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

"Affiliate" of a Party means any other party that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

"Authorized User" means each Representative that a Customer Group Member authorizes to use the Services.

"Customer Data" means information, in any form or medium, that is collected, downloaded, or otherwise received from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

"Customer Group" means Customer, its Affiliates, and its and their Authorized Users, and each “Customer Group Member” means the applicable entity in context which is a beneficiary of Services pursuant to these Terms and the applicable Order Form.

"Documentation" means any manuals, instructions, or other documents or materials that the dSilo provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services, including any aspect of the operation, use, or support thereof.

"Fees" means the amounts Customer is obligated to pay dSilo in connection with its subscription under each Order Form.

"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services as intended by these Terms. Harmful Code does not include any dSilo Disabling Device. "dSilo Derivative Model" means fine tunings which are developed through interaction of an Authorized User with the Service, or created by dSilo and provided to an Authorized User.

"dSilo Disabling Device" means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by dSilo or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of dSilo or its designee.

"Improvements" means new features, functionality, enhancements, extensions, upgrades, error corrections and bug fixes to the Services made generally available by dSilo to its Customers at no additional cost.

"Intellectual Property Rights" means patents, patent applications, inventions, and discoveries (whether patentable or unpatentable), copyrights and copyrightable works, moral rights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, rights in software, databases, artificial intelligence and AI algorithms, and all other intellectual property rights and similar forms of protection throughout the world.

"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

"Login Credentials" means any user-name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an Authorized User’s identity and authorization to access and use the Services.

"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

"Output" means the reports, recommendations and other actionable intelligence generated by the Services.

"Privacy Policy" means dSilo’s Privacy Policy which sets out dSilo’s approach to use and protection of data obtained through the Services.

"Resultant Data" means data and information related to Customer Group Member's use of the Services that is aggregated and anonymized, including to compile statistical and performance information related to the provision and operation of the Services.

"Representatives" means, with respect to a Party, that Party's and in case of Customer, its Affiliates', employees, officers, directors, consultants, agents, and independent contractors.

"Services" means the hosted software platform provided on a SaaS basis providing Customers access to dSilo software functionality and Documentation.

"Term" means the duration of time that these Terms are applicable to a Customer or its end users.

2.SERVICES.

2.1 Access and Use. Upon a duly executed Order Form, dSilo hereby grants Customer and each of its Affiliates a non-exclusive, non-transferable (except in compliance with Section 11.8) right to access and use the Services during the Term, solely for use by the applicable Customer Group in accordance with (i) the terms and conditions set out herein, the MSA and the Order Form. The total number of Authorized Users in respect of any Customer Group Member shall not exceed the agreed upon number except as expressly agreed to in writing by the Parties in the applicable Order Form and subject to any appropriate adjustment of the Fees payable thereunder.

2.2 Availability and Support. During the Term, dSilo will maintain availability of the Services and provide support services, provided dSilo reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Services; (ii) the competitive strength of or market for the Services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable law. In the event the Parties have entered into a service level agreement (“SLA”) as part of the Order Form/MSA, such SLA shall apply.

2.3 Acceptable and Restricted Use.

  1. (a) Customer Group Members shall use the dSilo Service exclusively for the purposes authorized in these Terms and in compliance with all applicable laws and regulations.
  2. (b) Any breach of these Terms, including by a Customer Group Member or any such entity’s Representative shall be, for the purposes of these Terms, a breach by Customer also, and liability shared subject to Section 10.4 of these Terms.
  3. (c) Customer Group Members shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by these Terms. For purposes of clarity and without limiting the generality of the foregoing, Customer Group Members shall not, except as these Terms expressly permit:
    1. i. share or disclose Login Credentials to anyone other than the specific Authorized User for which the Login Credentials were generated;
    2. ii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
    3. iii. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
    4. iv. bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid Login Credentials;
    5. v. input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
    6. vi. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, in whole or in part;
    7. vii. remove, delete, alter, or obscure any trademarks, specifications, documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any portion of the Services, including any copy thereof;
    8. viii. access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law;
    9. ix. access or use the Services for purposes of competitive analysis of the Services , the development, provision, or use of a competing service or product or any other purpose that is to the dSilo's detriment or commercial disadvantage; or
    10. x. otherwise access or use the Services beyond the scope of the authorization granted under this Section 2.3.
  4. 2.4 Suspension. dSilo may, directly or indirectly, and by use of an dSilo Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer's or any Authorized User's access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) dSilo receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires dSilo to do so; or (b) dSilo believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of these Terms, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) these Terms expire or is terminated. This Section 2.4 does not limit any of dSilo's other rights or remedies, whether at law, in equity, or under these Terms.
  5. 2.5 Subcontractors. Unless otherwise agreed upon in an MSA, nothing herein shall prohibit dSilo from engaging third parties to perform part of the Services (each, a "Subcontractor").

3.CUSTOMER RESPONSIBILITIES.

3.1 Customer Controls. Customer has exclusive control and responsibility for determining what Customer Data is submitted on Customer Group’s behalf into the Service. The Customer Group is responsible for the legality of the Customer Data, and compliance of Authorized Users with the terms and conditions of these Terms.

3.2 Login Credentials. Customer shall promptly notify dSilo of any known or suspected unauthorized use of any Login Credentials. Any Authorized User who suspects their Login Credential is compromised or may have a good chance to become compromised (including through a phishing or other cyber threat) shall promptly change their password and notify dSilo. New unique Login Credentials will be generated by dSilo and provided to Authorized Users upon email notice to dSilo at support@dsilo.io.

4.FEES AND PAYMENT.

4.1 Fees and Payment. Customer shall pay dSilo the amounts set out under the applicable Order Form for the Term in accordance with the payment terms set out therein.

4.2 Taxes. All Fees and other amounts payable by Customer are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer to dSilo, other than any taxes imposed on dSilo's income.

5.INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP.

5.1 Customer Data. As between the Customer Group and dSilo, each Customer Group Member owns and will continue to own all rights, title, and interest, including all Intellectual Property Rights, in and to its applicable Customer Data, and nothing set out under these Terms shall in any way transfer any right in a Customer Data to any other entity.

5.2 Consent to Use Customer Data. Each Customer Group Member that receives Services under these Terms hereby grants dSilo during the Term a non-exclusive, non-sublicensable (except for the purposes of provision of the Services), royalty-free, license to use, copy, store, transmit, modify, process, and create derivative works of, and display its Customer Data solely to the extent necessary to provide the Output, train and generate dSilo Derivative Models, and provide the associated Services under these Terms.

5.3 dSilo Services. As between Customer Group and dSilo, dSilo owns, and reserves all rights, title, and interest, including all Intellectual Property Rights, in and to (i) the Services, (ii) any Resultant Data, and (iii) any Derivatives Models generated.

5.4 Feedback. Each Customer Group Member hereby grants dSilo a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to any feedback, comments, ideas, and suggestions for improvement as provided by a Customer Group Member and any of their Representatives (collectively, "Feedback"). To the extent that such Feedback relates in any way to dSilo’s Confidential Information (as defined), such Feedback is exclusive to dSilo and shall be dSilo Confidential Information. dSilo may, without any obligation, incorporate, use, commercialize and distribute in any manner, including, without limitation, as part of the Services such Feedback without any attribution, payment or other obligation to Customer or its Affiliates.

5.5 Use of Aggregate Information. Notwithstanding anything to the contrary, dSilo shall have the right to collect and analyze Customer Data and other information relating to the provision, use and performance of various aspects of the Services (in whole or in part) and related systems and technologies, and dSilo will be free (during and after the term hereof) to (i) use such data to improve and enhance the Services (in whole or in part) and for other development, diagnostic and corrective purposes in connection with the Services (in whole or in part), and (ii) utilize any such data in an aggregated or other de-identified form for any legal purpose in conformance with the Privacy Policy.

6.CONFIDENTIALITY.

6.1 Confidential Information. In connection with provision of the Services, each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). Subject to Section 6.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential".

6.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

  1. (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
  2. (b) except as may be permitted by and subject to its compliance with Section 6.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 6.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6;
  3. (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
  4. (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
  5. (e) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 6.

Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this 6 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

6.4 Compelled Disclosures.If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

7.REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

7.1 Representations and Warranties. Each Party represents and warrants that:

  1. (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
  2. (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under these Terms, including in respect of its Affiliates as contemplated hereunder;
  3. (c) the execution of an Order Form and/or MSA by its representative whose signature is set forth at the end of such documents has been duly authorized by all necessary corporate or organizational action of such party; and
  4. (d) when executed and delivered by both Parties, the foregoing documents under subsection (c), as well these Terms, will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

7.2 Additional Customer Representations, Warranties, and Covenants. Each Customer Group Member represents, warrants, and covenants to dSilo that (i) it owns or otherwise has all rights, power and authority that are necessary to utilize Customer Data, (ii) it has requisite authority and consents to share the applicable Customer Data with dSilo for the purposes set out herein, (iii) neither the Customer Data, nor the use, storage or provision of the Customer Data on or through the Services, will infringe, misappropriate or violate any third-parties’ Intellectual Property Rights, or rights of publicity, privacy or confidentiality, and (iv) its use and provision of the Customer Data will not breach any agreement between it and a third party or violate any applicable laws, regulations, orders or rules.

7.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND DSILO DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER IN CONNECTION WITH THE SERVICES. EXCEPT AS SET OUT UNDER ANY SUBSCRIPTION AGREEMENT, WITHOUT LIMITING THE FOREGOING, DSILO DISCLAIMS ANY REQUIREMENT OR WARRANTY THAT THE SERVICES WILL BE ERROR FREE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED. DSILO FURTHER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR AGAINST HIDDEN DEFECTS, TO THE FULLEST EXTENT PERMITTED BY LAW. DSILO FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DSILO OR ITS EMPLOYEES OR CONTRACTORS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

8.TERM AND TERMINATION.

  1. 8.1 Term. These Terms commence on the Effective Date of the Order Form or the MSA in case an Order Form is entered into under the MSA. Unless earlier terminated pursuant to the terms of these Terms, these Terms will be coterminous with the Order Form, or the MSA, if one is applicable.
  2. 8.2 Termination for Cause.
    1. (a) In the event of material breach of its terms and conditions where such breach is either uncurable or if curable, is not cured within 30 days of written notice of breach by the other Party, either Party may terminate these Terms or a Group Member may terminate its receipt of Services. Termination of these Terms shall automatically terminate the applicable Order Forms and MSA.
    2. (b) Either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  3. 8.3 Effect of Expiration or Termination. Upon expiration of the Term or termination of these Terms, (a) Customer Group Member shall no longer access or use the Services, and (b) each Party will return to the other or destroy the other’s Confidential Information (except for back-ups made in the ordinary course of business and which are thereafter deleted according to that Parties’ back-up deletion schedule).
  4. 8.4 Survival. Notwithstanding the termination or expiration of these Terms, any provisions of these Terms that by their nature should survive termination or expiration will continue in full force and effect subsequent to and notwithstanding such termination or expiration until they are satisfied or by their nature expire. This includes, but is not limited to, this Section 8.4, Sections 1, 5, 6, 9, 10, and 11 of these Terms and any other obligations that may reasonably be expected to be performed or observed after such termination or expiration.

9.INDEMNIFICATION.

9.1 dSilo Indemnification. dSilo shall indemnify, defend, and hold harmless applicable Customer Group Member and its officers, directors, employees, agents, successors, and assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third-Party Materials) in accordance with these Terms (including the Specifications) infringes or misappropriates such third party's Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:

  1. (a) Third-Party Materials or Customer Data, including dSilo Derivative Models trained on the foregoing;
  2. (b) dSilo Derivative Models;
  3. (c) access to or use of the Services in combination with any content, hardware, system, software, network, or other materials or service not provided by dSilo or specified for Customer's use in the Documentation;
  4. (d) modification of the Services other than: (i) by or on behalf of dSilo; or (ii) with dSilo's written approval in accordance with dSilo's written specification;
  5. (e) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of dSilo; or
  6. (f) act, omission, or other matter described in Sections 9.2(a), 9.2(b), 9.2(c), or 9.2(d), whether or not the same results in any Action against or Losses by any dSilo Indemnitee.

9.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless dSilo and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "dSilo Indemnitee") from and against any and all Losses incurred by such dSilo Indemnitee resulting from any Action by a third party (other than an Affiliate of a dSilo Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:

  1. (a) Customer Data, including any Processing of Customer Data by or on behalf of dSilo in accordance with these Terms;
  2. (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including dSilo's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by dSilo;
  3. (c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under these Terms; or
  4. (d) negligence, or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with these Terms.

9.3 Indemnification Procedure. Each Party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 9.1or Section 9.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

9.4 Mitigation. If any of the Services are, or in dSilo's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services is enjoined or threatened to be enjoined, dSilo may, at its option and sole cost and expense:

  1. (a) obtain the right for Customer to continue to use the Services materially as contemplated by these Terms;
  2. (b) modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services, as applicable, under these Terms; or
  3. (c) by written notice to Customer, terminate these Terms with respect to all or part of the Services, and require Customer to immediately cease any use of the Services or any specified part or feature thereof, provided subject to Customer's compliance with its post-termination obligations set forth in Section 8.3 (Effect of Termination or Expiration) Customer will be entitled to a refund of pre-paid fees for the remaining Term.

9.5 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND DSILO'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THESE TERMS INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9.6 In the event the Parties have entered into a duly authorized Order Form and/or MSA, such documents’ Indemnification sections shall govern in the event of a conflict with the sections set out under these Terms.

10. LIMITATION OF LIABILITY.

10.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL DSILO OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

10.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF A PARTY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO DSILO UNDER THESE TERMS IN THE 12 MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10.3 Exceptions. The exclusions and limitations in 10.1 and 10.2 do not apply to Customer’s breach of Sections 5 and 6 under these Terms.

10.4 In respect of liability, unless agreed upon in the MSA or Order Form, Customer Group Members shall be jointly and severally liable under these Terms.

10.5 In the event the Parties have entered into a duly authorized Order Form and/or MSA, such documents’ Limitation of Liability sections shall govern in the event of a conflict with the sections set out under these Terms.

11. GENERAL.

11.1 Entire Agreement and Conflicts. These Terms and any other document, exhibits and schedules referenced herein and attached hereto, including the Order Form and the MSA, as applicable constitute the complete and exclusive agreement between the Parties, concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms In case of any conflict between these Terms and an Order Form or MSA and any schedule or exhibit thereto, the terms set out under the Order Form and/or the MSA will prevail. Terms of an Order Form shall similarly prevail over the MSA to the extent noted sections of the MSA over which the Order Form prevails is clearly set out.

11.2 Governing Law and Dispute Resolution.

  1. (a) Any dispute or claim by Customer arising out of or related to these Terms shall be governed by the laws of the State of New York, exclusive of its choice of law rules. The Convention on Contracts for the International Sale of Goods will not apply. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to these Terms. This paragraph will be interpreted as broadly as applicable law permits.
  2. (b) Except for dSilo’s ability to seek an injunction against Customer in any court to prevent any imminent harm against dSilo or its users, any dispute, controversy, or claim arising out of or relating to these Terms, or the breach, termination, or validity thereof, shall be settled by binding arbitration administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The place of arbitration shall be New York City, New York. The arbitration shall be conducted in English. The decision of the arbitrator shall be final and binding on the Parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
  3. (c) Individual Arbitration. The arbitration shall be conducted on an individual basis, and not as a class, consolidated, or representative action. The arbitrator(s) shall have no authority to proceed with arbitration on a class or representative basis. Any relief awarded by the arbitrator(s) shall be individualized to the claimant and shall not affect any other party.
  4. (d) No Class Action. To the fullest extent permitted by applicable law, no arbitration or claim under these Terms shall be joined to any other arbitration or claim, including any arbitration or claim involving any other current or former user of our Services, and no class arbitration proceedings shall be permitted. Customer agrees to waive any right to commence or participate in any class action against dSilo related to any claim and, where applicable, Customer also agrees to opt out of any class proceedings against dSilo.
  5. (e) Arbitrator Authority. The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this arbitration agreement, including any contention that all or any part of this arbitration agreement is void or voidable.
  6. (f) Severability. If any provision of this arbitration clause is found to be unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
  7. (g) Execution. This arbitration and no class action clause shall be effective the earlier of Customer’s execution of the MSA, the Order Form or upon acceptance by Customer of these Terms and shall survive the termination or expiration of these Terms.

11.3 Waiver, Severability, Modification, Headings. The waiver by either Party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect. The MSA or an Order Form, or any portion of these Terms may not be modified or amended except in a writing signed by a duly authorized representative of each Party. The headings in these Terms are for the convenience of reference only and have no legal effect.

11.4 Notices. Notices to a Party will be sent in English by overnight courier to the address for such Party as identified on an Order Form or MSA, and will be deemed given upon delivery or if by email (for dSilo, to legal@dsilo.io), upon transmission as followed up within 2 business days by written notice in any instance of notice in respect of a material issue under these Terms.

11.5 Force Majeure. Neither Party will be liable by reason of any failure or delay in the performance of its obligations under these Terms (except for the payment of money) on account of events beyond the reasonable control of such Party (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from further performance of any obligations affected by the Force Majeure Event but only for so long as the event continues, and such Party continues to use commercially reasonable efforts to resume performance.

11.6 Compliance with Laws. Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

11.7 Relationship Between the Parties. Nothing in these Terms will be construed to create a partnership, joint venture, or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Parties’ prior written consent.

11.8 Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms or, unless expressly permitted under these Terms, otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, provided, however, that dSilo may, without Customer's consent, include Customer's name and other indicia in its lists of dSilo's current or former customers of dSilo in non-mass market promotional and marketing materials.

11.9 Assignment. Neither Party may assign or transfer these Terms without the other Party’s prior written consent, except that either Party may assign these Terms in connection with a merger, acquisition, or transfer of all or substantially all such Parties’ assets or voting securities with written notice to the other Party. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the Parties’ successors and permitted assigns.

11.10 Non-Exclusive Remedies. Except as expressly set forth in Section 9.5 (Sole Remedy), the exercise by either Party of any remedy under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

11.11 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of these Terms may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any acts or omissions in violation of those provisions, which remedy will be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.

11.12 Interpretation. For purposes of these Terms: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to these Terms; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, these Terms; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend for these Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of these Terms to the same extent as if they were set forth verbatim herein.