Master Services Agreement 

Customer must agree to the terms and conditions herein via click-through acceptance or by executing an Order (defined below) before accessing or using the Services. The person entering into this Agreement represents that they have the authority to bind Customer to its terms and conditions.  

This Master Services Agreement (this “Agreement”) is entered into by and between Sila Inc., a Delaware corporation with its principal offices at 1022 NW Marshall Street, Suite 480, Portland, OR 97209 (“Sila”) and the organization (“Customer”) indicated on the order form or similar ordering document (each an “Order”) between the parties that references this Agreement. This Agreement is entered into as of the date (“Effective Date”) of the initial Order incorporating this Agreement by reference.

1. Structure

1.1. Relationship with Financial Institutions. Sila offers certain Services (defined below) as an agent of, or service provider to, one or more financial institutions.  Each Sila customer must be approved by at least one financial institution to permit Sila to function as its agent or service provider in connection with offering its Services to Customer. The Order will designate which financial institution(s) Sila intends to engage to offer the Services to Customer; provided that (a) there is there is no guarantee that any such financial institution will agree to such arrangement (in which case Customer retains its right to terminate pursuant to Section 4.3.1 below) and (b) Sila may replace a designated financial institution with another financial institution to enable provision and maintenance of the Services.  Customer will work with Sila to provide any information reasonably requested by a Financial Institution Partner.  Customer may not use any services offered by a Financial Institution Partner until the above-referenced approval is received.  Any financial institution(s) designated to offer the Services to Customer hereunder is referred to as a “Financial Institution Partner”.  If Sila’s relationship with a designated Financial Institution Partner is terminated for any reason, Sila reserves the right (in consultation with Customer) to designate a new Financial Institution Partner.

1.2. Orders. Sila and Customer may enter into one or more Orders which shall include the Services to be provided, the fees and charges related to such Services, the initial Financial Institution Partner (if known at the time of execution of such Order) and other terms and conditions agreed to by the parties.  Each Order is incorporated herein by reference.

1.3. Additional Terms. In addition to the terms and conditions of this Agreement, Customer must comply with additional policies, terms and agreements (“Additional Terms”) which shall include (a) all Sila-related Additional Terms and Additional Terms related to the specific Financial Institution Partner designated in the Order both of which are found at https://www.silamoney.com/legal and (b) any other rules, terms or condition required by the designated Financial Institution Partner (“Other Rules”). In the event of any conflict, the order of precedence shall be: (i) the Order, (ii) Other Rules and Additional Terms related to the specific Financial Institution Partner, (iii) this Agreement and (iv) Sila-related Additional Terms.  All applicable Additional Terms are incorporated herein by reference. Additional Terms may be modified upon notice by Sila as necessary to comply with applicable law and requirements and rules of the Financial Institution Partner.

2. Access Rights; Program Terms

2.1. Access. Subject to the Customer’s compliance with the terms and conditions of this Agreement, Sila hereby agrees that during the applicable term of an Order, the Customer is granted non-exclusive, non-transferable, limited right and license to: (i) internally use the package of application programming interface materials provided by Sila (the “API Package”) solely as necessary to make an application owned and operated by the Customer, which application is described in such Order or otherwise approved by Sila in writing (the “Customer Application”) and is designed to interoperate with the Sila services described at silamoney.com (such services, collectively with the API Package, the “Services”), (ii) use the Services in such Customer Application provided to end users (consumers or businesses) (the “End Users”) for the use case permitted by Sila in writing, including, but not limited to, as set forth in the applicable Order and (iii) use the End User information and data provided via the Services (the “Output”) solely in such Customer Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Sila’s applicable technical user documentation which can be found at docs.silamoney.com and subject to the Customer Application, and business unit restrictions (if any). All funds transfer services are provided by our Financial Institution Partner, as Sila does not receive, hold, or transmit funds. Sila provides the Services that allows Customer to send funds transfer instructions to its Financial Institution Partner. Any funds recorded by Sila in Customer’s Sila Account are held in one or more pooled holding accounts held by our Financial Institution Partner (“Holding Account”).

2.2. Restrictions. Unless Sila specifically agrees in writing, Customer will not, and will not enable or assist any third party to: (i) attempt to reverse engineer (except as permitted by law), decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) make the Services or Output available to, or use the Services or Output for the benefit of anyone other than Customer or End Users; (iv) sell, resell, license, sublicense, distribute, rent or lease any Services or Output to any third-party; (v) publicly disseminate information from any source regarding the performance of the Services or Output; or (vi) attempt to create a substitute or similar service through use of, or access to, the Services or Output.  Customer will use the Services and Output only in compliance with (a) the rights granted hereunder, and (b) any agreements between Customer and End Users (for clarity, including any privacy policy or statement).  Notwithstanding anything to the contrary, the Customer accepts and assumes all responsibility for complying with all applicable laws and regulations in connection with all of Customer’s activities involving any Services, Output, or End User data.  

2.3. Consumer Reports. In addition, Customer acknowledges and agrees that Sila is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and cannot be used as or in such.  Customer represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA.  Customer will comply with the provisions set forth in any product-specific exhibit, addendum, or other document attached to an Order, but such provisions will only apply if Customer uses the Service set forth in such document.  NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER WILL NOT: (A) DISCLOSE OUTPUT (DIRECTLY OR INDIRECTLY) TO CUSTOMER’S BUSINESS END USERS; OR (B) ACCESS THE SERVICES USING THE ACCESS TOKENS OR PUBLIC KEYS OF ANY THIRD PARTY.

2.4. Ownership. Except for the rights expressly granted under this Section 2, Sila reserves and retains all right, title, and interest in and to the Services which includes but is not limited to the API Package and any related Output (except for raw End User data, which belongs to the End User), software, products, works, and other intellectual property created, used, or provided by Sila for the purposes of this Agreement.  To the extent the Customer provides Sila with any feedback relating to the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Sila is granted a perpetual, worldwide, irrecovable license to use such Feedback in connection with Sila’s business and product development efforts.

2.5. Privacy and Additional Terms. Before any End User engages with the Customer Application in a manner that uses the Services, the Customer warrants and will ensure that it has incorporated and will provide all notices and any requirements specified in the Order and will obtain and memorialize all consents required under applicable law to enable Sila to process End User data in accordance with applicable law and Sila’s and Customer’s privacy policy. Customer shall not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with Sila’s and Customer’s privacy policy; or (ii) knowingly interfere with any independent efforts by Sila to provide End User notice or obtain End User consent.  

2.6. Permitted Users. Customer may permit its employees, agents, contractors and service providers to access the Services and Output on Customer’s behalf (“Permitted Users”), provided that Customer remains responsible for such users’ compliance with all of the terms and conditions of the Agreement (including without limitation terms relating to use of Services and Output) and that any such use of the Output and Services is for the sole benefit of Customer.  Customer is responsible for any fees or charges incurred by its Permitted Users in their use of the Services.  If Customer enables any third parties as Permitted Users, Customer (and not Sila) remains solely responsible for its relationships with such third parties and for any related billing matters, technical support, or disputes.

2.7. Reserve Accounts.

2.7.1. Potential Reserve Account Requirement. Sila may, in its sole discretion, may require its customers to establish and fund a non-interest-bearing reserve account with Sila that is distinct from the Holding Account (the “Reserve Account”) for the purpose of securing Sila against the risk that Customer or its End Users may fail to perform any of its or their obligations under this Agreement.  Currently Sila requires a Reserve Account be established in the following three (3) scenarios (which may be updated or modified by Sila from time to time upon written notice to Customer):

2.7.1.1. If Customer wishes to or does make use of the Instant Settlement feature of the Services;

2.7.1.2. If Customer wishes or does make use of the Checkout.com feature of the Services; and/or

2.7.1.3. Sila has determined, in its sole discretion and after review of relevant information and data, that (a) Customer’s ACH return rate is higher than Sila’s accepted ACH return rate or (b) Customer’s industry and/or business operations impose substantive potential risk on Sila, its Financial Institution Partners or any other third party associated therewith.  

Sila will notify Customer as to its determination as to whether Sila requires the establishment and maintenance of a Reserve Account and any such determination shall be final.  If Customer falls into any of the foregoing criteria after the execution of this Agreement and after commencement of the Services, Sila will provide Customer with 30 days to establish the Reserve Account and may prohibit Customer from utilizing any or all features of the Services until such account is established.  

2.7.2. Required Balance. If Customer is required to establish and maintain a Reserve Account pursuant to the foregoing, then  Customer shall at all times maintain a minimum required balance of an amount equal to the following, as applicable (the “Required Balance”):

2.7.2.1. If Sila determines that Customer does not have a sufficient and acceptable ACH transaction history then:

2.7.2.1.1. The Reserve Account will be initially funded with $30,000 which such amount must be maintained in the account;

2.7.2.1.2. If the balance of the Reserve Account is, at any time, less than $20,000 then Sila will notify Customer of such and Customer will have five (5) business days to replenish the Reserve Account such that the balance equals or exceeds $30,000; and

2.7.2.1.3. If Customer does not replenish the account within the period described above or if the balance of the Reserve Account falls below $10,000 at any time, then Sila may immediately suspend Customer’s access to all or any part of the Services.  Sila will re-enable access only when the Reserve Account is fully replenished.  Any suspension hereunder shall not relieve Customer of its obligations to make Payments or pay any other amounts under this Agreement.  If Customer is suspended more than once (1) during any twelve (12) month period during this Agreement then Sila may terminate this Agreement upon delivery of written notice to Customer.

2.7.2.2. If Sila determines that Customer has a sufficient and acceptable ACH transaction history then Sila will notify Customer of the Required Balance to be established and maintained in the Reserve Account.  If Customer fails to maintain the Required Balance amount then the same process as set forth in Section 1 above will be followed.  

2.7.2.3. At any time at after ninety (90) days following the establishment of the applicable Required Amount in the Reserve Amount (and assuming the Reserved Amount has been maintained), Customer may request that Sila revise Customer’s ACH transaction history and reduce the Reserve Amount required of Customer.  Sila will review such request in good faith and notify Customer of its decision as to whether the Reserved Amount may be reduced and, if so, by how much.  Any such determination will be in Sila’s sole discretion and will be final.  Customer may request such review no more than once (1x) per every six (6) month period.  If Customer fails to maintain the reduced Reserve Amount as required herein, then Sila may revoke the reduction and Customer would need to maintain the originally designated Reserve Amount.  

2.7.3. Return of Funds. Within 90 days after effective termination of this Agreement for any reason, Sila shall return any remaining funds in the Reserve Account to Customer after first deducting undisputed fees that are due and payable to Sila under the applicable Order, including the amounts of any ACH returns within the applicable return period, and any other amounts due or anticipated by Sila to become due under this Agreement.

2.8. Marketing Materials.  Sila may provide marketing materials and related collateral pertaining to the Services including materials made available by the Financial Institution Partner (“Marketing Materials”).  Customer may use the Marketing Materials as approved by Sila but cease using the Marketing Materials if and when required by Sila. Customer may not reference Sila or Financial Institution Partner in any press release, public announcement or other public disclosure without prior written consent.

2.9. Inquiries.  If Customer receives any an oral or written notice of an “error” as defined by  CFR Title 12, Chapter X, Part 1005, Subpart A, § 1005.11 (including an unauthorized electronic fund transfer), an unauthorized transaction notice or any inquiries or complaint from an End User, governmental or regulatory body or any other person or party pertaining to the Services, Customer will promptly refer such to Sila.  

2.10. Compliance.  Without limiting its obligations set forth elsewhere, Customer will also ensure all notices, consents and terms required pursuant to the Additional Terms and/or Other Rules are implemented.  Sila and Financial Institution Partner shall have the right to audit Customer to ensure compliance with this Agreement. Customer will remain qualified to do business in all jurisdictions necessary to offer Services to End Users.

3. Payments

3.1. Payments.  Customer will pay Sila for the Services as set forth in each Order entered into under this Agreement (the “Payments”). Unless otherwise specified in an Order, Payments are made via ACH.  Unpaid undisputed invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. The Customer will be responsible for all (i) taxes associated with Services other than taxes based on Sila’s net income and (ii) Sila’s costs of collection in the event of the Customer’s delinquent payment. All Payments made are non-refundable, non-cancellable, and not subject to set-off.

3.2. Reversals and Returns.  If Customer subscribes to Instant ACH processing as part of the Services, then Sila will assume responsibility solely for ACH returns (except for R01 returns for insufficient funds) on End User transactions completed using Instant ACH and promptly provide immediately available funds to (1) indemnify the Financial Institution Partner for the value of any debit entry that is returned after permitting Customer to draw on the receiver’s account; and (2) cover the cost of any adjustment memorandum received from the Financial Institution Partner and relating to the returned debit entry. Except as narrowly limited by the last sentence with respect to Instant ACH, Customer acknowledges and agrees that it is fully responsible for all reversals, claims, fees, fines, penalties, and other liability incurred by Sila, its Financial Institution Partner, other Sila users, or third parties arising from Customer’s breach of this Agreement or Customer’s use of Sila. Customer agrees to reimburse Sila, its Financial Institution Partner, other Sila users, or third parties for any and all such liability.

4. Term & Termination

4.1. Term of Agreement. This Agreement will commence on the Effective Date and will continue in effect unless terminated in accordance with this Agreement. On the effective date of termination of this Agreement, all issued Orders under the Agreement will also terminate unless otherwise agreed by Sila and the Customer.

4.2. Term of Orders. Unless otherwise specified in the Order, (i) each Order will have a term of 24 months (an “Initial Term”) beginning on the first day of the month following the Effective Date of this Agreement; (ii) after the Initial Term, the Order will automatically renew every consecutive 12 months (each a “Renewal Term”) unless either party provides the other party with written notice at least 30 days before the end of the then-current Initial Term or Renewal Term; and (iii) Sila may revise its rates for the Services under the Order for any Renewal Term by providing Customer with written notice at least 45 days before the end of the then-current Initial Term or Renewal Term; provided that any such increase will not exceed the greater of (y) 5% of the then-current term’s fees or (z) the then-current Consumer Price Index for All Urban Consumers (CPI-U).  

4.3. Termination

4.3.1. Due Diligence Period. If Sila determines, in its sole discretion during the Due Diligence Period (as defined below), that Customer does not satisfy its requirements, then Sila may terminate this Agreement and any applicable Order. As used in this Agreement and the Order, the term “Due Diligence Period” means the period commencing on the Effective Date and ending upon the earlier of either (a) the conclusion of the 6 whole consecutive months following Sila’s designation of a Financial Institution Partner, or (b) upon Sila’s written grant of approval of Customer’s production access to the Services. Customer may terminate this Agreement at any time prior to Sila having designated a Financial Institution Partner, provided that Customer has paid all fees due to Sila under this Agreement at the time of such desired termination (such fees paid to Sila will not be refunded to Customer). Neither party shall have any further rights or liabilities hereunder except for those provisions that expressly survive termination of this Agreement.

4.3.2. For Breach. Either party may terminate this Agreement and any applicable Order in the event the other party materially breaches the terms of this Agreement or any Order and fails to cure such breach within 10 days from receipt of written notice thereof.  In addition, Sila may immediately suspend the Services (without any modification of payment obligations) in the event Sila reasonably determines that (a) there is unauthorized access to or use of the Services by Customer, Permitted Users and/or End Users, or (b) continued provision of the Services will violate applicable law or cause material harm to Sila, its Financial Institution Partner or their respective networks or systems. Any such suspension will continue no longer than Sila determines is necessary to protect it and its Financial Institutions.  For clarity, notice of termination for an Order shall not be construed to be notice of termination for this Agreement or for any other Order.

4.3.3. For Convenience. If there are no active Orders, either party may terminate this Agreement for any reason and without cause upon delivery of written notice to the other party at least 30 days in advance of effective termination.

4.3.4. Effect of Termination. Upon termination of an Order for any reason, (1) all rights granted to Customer with respect to such Order will terminate and Customer will make no further use of the terminated Services or the applicable API Package (copies of which will be immediately returned to Sila or destroyed) and (2) all obligations of Sila under such Order will terminated. Notwithstanding the foregoing, Sections 2.2, 2.4, 3, and 4 through 9 will survive any termination of an Order or this Agreement.

5. Confidentiality

During the term of this Agreement, each party (a “Disclosing Party”) may disclose, under this Agreement, the other party (a “Receiving Party”) with confidential and/or proprietary materials and information of the first party (“Confidential Information”).  All materials and information disclosed by Disclosing Party to Receiving Party under this Agreement and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all such other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, will be considered Confidential Information; for the avoidance of doubt, the Service, all pricing information and terms of this Agreement, are Confidential Information of both parties.  Receiving Party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third-party without the prior written consent of Disclosing Party.  Receiving Party will only use the Confidential Information internally for the purposes contemplated under this Agreement.  The obligations in this Section 4 will not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third-party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party.  Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure.  At any time, upon Disclosing Party’s request, Receiving Party will return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.  Notwithstanding the foregoing,  Receiving Party may disclose Confidential Information as required by any legal proceeding or otherwise by applicable law, provided that, to the extent legally permissible, the Receiving Party will notify the Disclosing Party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.

6. Indemnity

6.1. By Sila.  Sila will indemnify, defend, and hold harmless Customer and its officers, directors, agents, employees, and suppliers from and against all claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees) brought or charged by a third party to the extent arising from a claim that the Services infringe or misappropriate intellectual property rights of a third party. If the Services (or any component thereof) becomes, or in Sila’s opinion is likely to become, the subject of an infringement claim, Sila may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Services so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Sila’s reasonable opinion, commercially reasonable, Sila may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees.   Notwithstanding the foregoing, Sila will have no obligation with respect to any infringement claim based upon (i) any Exclusions (defined in Section 6.2 below) or (ii) any content or data uploaded by Customer via the Services.  

6.2. By Customer.  The Customer will defend, indemnify and hold harmless Sila, our Financial Institution Partner(s) and our and its respective officers, directors, agents, employees, and suppliers from and against all claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees) brought or charged by a third party to the extent arising from: (a) a violation of this Agreement or any other applicable terms or policies of Sila or our Financial Institution Partner by Customer, a Permitted User or End User; or (b) Customer’s violation of any agreements it has with any End User.

6.3. Process. The indemnifying party’s indemnification obligations are conditioned on (i) the indemnified party notifying indemnifying party promptly in writing of such action, (ii) the indemnified party giving indemnifying party sole control of the defense thereof and any related settlement negotiations (except that indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability related to such claim), and (iii) the indemnified party cooperating and, at indemnifying party’s reasonable request and expense, assisting in such defense.

7. Warranty; Disclaimer

7.1. Mutual Warranties.  

7.1.1. Each party represents and warrants that (i) it will comply with all applicable laws in its performance of obligations and exercise of rights under this Agreement, and (ii) it has the power, authority and legal right to sign and perform this Agreement.  

7.1.2. Each party further represents and warrants that neither it nor any of its officers or directors have been subject to:

7.1.2.1. Criminal conviction (except minor traffic offenses and other petty offenses) in the United States of America or in any foreign country;

7.1.2.2. Federal or state tax lien or any foreign tax lien;

7.1.2.3. An order or similar decision, not subsequently reversed, suspended or vacated, by the Securities and Exchange Commission, any state securities regulatory authority, Federal Trade Commission, federal or state bank regulatory or any other Governmental Body in the United States or in any other country relating to an alleged violation of any federal or state securities law or regulation or any law or regulation respecting financial institutions; or

7.1.2.4. A restraining order in any proceeding or lawsuit, alleging fraud or deceptive practices on the part of Customer or any of its officers or directors.

7.2. By Sila.  Sila warrants that (i) the Services, as provided and when used as intended, will be free from material defects, and (ii) Sila will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Services that are intentionally designed to permit unauthorized access to or use of either the Services or Customer’s computer systems (“Viruses”). In the event of any breach of the foregoing warranties, Sila shall, as its sole liability and Customer’s sole remedy diligently remedy any deficiencies that cause the Services, as applicable, to not conform to the foregoing warranty. Sila will not be liable to the extent that any breach of the foregoing warranty is caused by (x) third-party components (whether included as part of the Services or provided separately), (y) unauthorized use or use of the Services other than as intended, or (z) Viruses introduced by Customer, Permitted Users, End Users or other third parties (collectively, “Exclusions”).  

7.3. Beta Services.  For any Service identified in “Beta” in an Order, Customer acknowledges that the Service is provided AS IS and offered to Customer without any warranty of any kind including pursuant to Section 7.2 above. Use of a Beta Service optional and is meant only to allow testing of the Service’s functionality or compatibility. Customer shall provide Sila with accurate and complete Feedback on its use of any Beta Service when requested.

7.4. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.2 ABOVE, THE SERVICES AND ALL FINANCIAL INSTITUTION TECHNOLOGY ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. SILA AND ALL FINANCIAL INSTITUTION PARTNERS, SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT OR ANY WARRANTY THAT THE SERVICES ARE FREE FROM DEFECTS.  NEITHER SILA NOR OUR FINANCIAL INSTITUTION PARTNER HAS CONTROL OF, OR LIABILITY FOR, ANY PRODUCTS OR SERVICES THAT ARE DEVELOPED BY CUSTOMER UTILIZING THE SILA SERVICES AND CANNOT ENSURE THAT ANY THIRD PARTY YOU TRANSACT WITH WILL COMPLETE THE TRANSACTION. NEITHER SILA NOR OUR FINANCIAL INSTITUTION PARTNER REPRESENTS OR WARRANTS THAT THE SILA SERVICES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SILA OR THROUGH THE SILA SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. NEITHER SILA A NOR OUR FINANCIAL INSTITUTION PARTNER SHALL BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS OR SYSTEM FAILURES THAT MAY AFFECT THE PROCESSING, COMPLETION, OR SETTLEMENT OF SILA SERVICES TRANSACTIONS. SILA DOES NOT MAKE ANY WARRANTY AS TO THE OUTPUT THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

8. Limitation of Liability

EXCEPT WITH RESPECT TO ITS INDEMNITY OBLIGATIONS, TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER SILA NOR ITS FINANCIAL INSTITUTION PARTNER, AND ITS AND THEIR AFFILIATES, SUPPLIERS, LICENSORS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; (B) LOSS, ERROR, OR INTERRUPTION OF USE OR DATA (IN EACH CASE, WHETHER DIRECT OR INDIRECT); OR (C) COST OF COVER OR LOSS OF BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  TO THE FULLEST EXTENT PERMITTED BY LAW, SILA’S AGGREGATE LIABILITY IN CONNECTION WITH EACH ORDER (INCLUDING ALL LIABILITY UNDER THIS AGREEMENT THAT ARISES AS A RESULT OF SUCH ORDER) WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO SILA DURING THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY (PROVIDED THAT, IF NO FEES ARE PAID OR PAYABLE, SUCH AMOUNTS WILL BE LIMITED TO TEN THOUSAND DOLLARS (US$10,000.00)).  SILA AND OUR FINANCIAL INSTITUTION PARTNER SHALL NOT BE JOINTLY LIABLE FOR ANY MATTERS HEREUNDER. THIS LIMITATION OF LIABILITY SECTION SHALL APPLY TO FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

9. Miscellaneous

This Agreement  includes all applicable Additional Terms, Other Rules and all Orders. Collectively the foregoing sets forth the entire understanding between you, Sila, and our Financial Institution Partner with respect to the Sila Services. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any failure of Sila or our Financial Institution Partner to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement is not assignable or transferable by Customer except with Sila’s prior written consent. Sila may freely assign this Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement.  Any notices in connection with this Agreement will be in writing and sent by first class mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified above (or such other address as may be properly specified by written notice hereunder).  Email notice will be permitted by Sila if sent to the Customer’s account email address. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages, governmental actions and requirements, and the acts and omissions of Sila’s Financial Institution Partner and Sila’s third party suppliers. This Agreement will be governed by the laws of the State of Oregon, without regard to the conflict of law provisions thereof. The application of 1980 United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement will be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by a single arbitrator appointed in accordance with such Rules. The arbitration will take place in Portland, Oregon, USA, in the English language and the arbitral decision may be enforced in any court.  With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties’ consent to exclusive jurisdiction and venue in the state and Federal courts located in Portland, Oregon, USA.