This Sila Terms of Service Agreement (“Agreement”) is a legal agreement between Sila, Inc. and our affiliates or subsidiaries (collectively “Sila,” “we,” “us,” or “our”) and the entity or person (“you”, “your”, or “user”) who registered with Sila to receive certain platform, data, technology and analytics services, as well as other business services that may be offered by Sila and its third party providers (each, a “Service”). This Agreement describes the terms and conditions that apply to your use of the Services and our website.
Welcome to the Sila website (the “Website”). By accessing or using any Services and/or the website, you indicate that you have read and understand this Agreement and agree to be bound by it. You must accept the terms of the Agreement in order to access or use any Services and/or the Website. If you do not understand or have questions about the Agreement, immediately stop all access and use of the Services and/or the website and contact us at firstname.lastname@example.org before accessing, using the Services and/or the Website.
You may not access or use any Services or our Website unless you agree to abide by all of the terms and conditions in this Agreement.
This Agreement may periodically change without notice, so you should check the Agreement before every attempt to use the website. When the Agreement is changed, the date of the latest revision will appear at the top of this page.
NOTICE OF BINDING ARBITRATION
ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THE TERMS OF SERVICE SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN THE SECTION TITLED “BINDING ARBITRATION” BELOW. PLEASE READ PART F, TITLED “BINDING ARBITRATION” CAREFULLY.
PART A – Website Terms and Conditions
You agree that you will not use the Website for any illegal purpose. In addition, you agree that:
You will not harvest, collect or otherwise use any information made available on the website for the purpose of sending unsolicited improper communications, including without limitation, unsolicited bulk email (collectively, spam) and that you will not use any Sila communications facility to deliver or attempt to deliver spam
You will not attempt to gain unauthorized access to the website or the servers and network associated with the Website.
You will not circumvent or attempt to circumvent any security or access control technology implemented on the website, or the servers and network associated with the Website.
You will not use the website in any manner designed to degrade the performance or functioning of the Website, including, without limitation, launching Denial-of-Service (DoS) attacks against the Website.
Sila claims a copyright in its works presented at this Website. Sila authorizes you to view, copy, download and print Sila materials on this website, subject to the following conditions:
The materials may be used solely in accordance with the terms and conditions of this Agreement and subject to the Master Services Agreement entered into between you and Sila (if any).
Information provided on the website is provided “as is” without warranty of any kind, either express or implied, including without limitation, warranties of merchantability, fitness for a particular purpose or noninfringement. Sila periodically adds changes, improves or updates the information and documents on the website without notice. Sila assumes no liability or responsibility for any errors or omissions in the content of the website. Your use of the Website is at your own risk. Under no circumstances and under no legal theory shall Sila, its third party providers or any other party involved in creating, producing or delivering the website’s contents be liable to you or any other person for any indirect, special, incidental or consequential damages of any character arising from your access to, or use of, the Website.
Links to Third Party Sites
If you use any links on the Website to websites not maintained by Sila, you will leave the Sila website. The linked sites are not under the control of Sila and Sila is not responsible for the contents of any linked site or any link contained on a linked site. Sila provides these links to you only as a convenience and the inclusion of any link does not imply recommendation, approval or endorsement by Sila of the site.
Service Marks – Permitted Use of Sila Marks
Sila marks identify Sila products and services and let the public know the source of those products and services. You may not use the Sila logos or “design” marks (as opposed to our service marks consisting solely of words) under any circumstances without our prior written authorization.
PART B – General Terms
1. Overview of this Agreement
This Agreement provides a general description of the Services that Sila or its third party providers may provide to you (“Customers”) and your customers (“End Users”). We provide you with a more detailed description of the Services through published software libraries and application programming interfaces that may be used to access the Services (the “API”) and additional resources we make available to you on our website or through our github depository.
Before using the Services, you must register with Sila and create an account (a “Sila Account”).
Part B describes the process of registering for and using your Sila Account.
Part C describes your use of the API and the Services.
Part D describes the Payment Processing Services, which are one type of Service provided by Sila.
Part E describes proper handling, management, and use of data generated during your use of the Services, including your End Users’ data.
Part F describes your liability to Sila for all losses connected with your Sila Account, your agreement to resolve all disputes with Sila by arbitration and not in a lawsuit, and other legal terms that apply to you.
2. Additional Agreements incorporated herein that you may be subject to:
Prior to using our Services, you should review the following agreements from our third party providers which are hereby incorporated into this Agreement:
Sila is solely a financial software provider between banks, investment advisors, and the financial technology companies using our services (“FinTech(s)”). We make it easy for FinTechs to provide certain banking services (e.g. bank transfers or accounts) to you as an agent of our bank partner, Evolve Bancorp, Inc., an Arkansas state banking corporation, and other financial institution partners that we may use from time to time (collectively “Banks”). Sila is an agent of Evolve Bancorp, Inc. (“Bank”) solely for the purposes of providing the Services (as defined below) under these Terms of Service and, if applicable, your Deposit Account Agreement with Bank.
Registration and Permitted Activities: Only businesses (including sole proprietors), bona fide charitable organizations, and other entities or persons located in the United States are eligible to apply for a Sila Account to use the Services described in this Agreement. Sila and its affiliates may provide Services to you or your affiliates in other countries or regions under separate agreements.To register for a Sila Account you or the person or people submitting the application (your “Representative”) must provide us with your business or trade name, physical address, email, phone number, date of birth, social security number or tax identification number, URL, photo ID, or your account and routing numbers for your bank or credit union account (“Bank Account”), the nature of your business or activities, and certain other information about you that we require. You agree to update us if the information changes.We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your Sila Account administrator. Until you have submitted, and we have reviewed and approved, all required information, your Sila Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason. If you use payment services, your name (or the name used to identify you) and URL may appear on your End Users’ bank or other statements as provided by our third-party providers. To minimize confusion and avoid potential disputes, these descriptors must be recognizable to your End Users and must accurately describe your business or activities. You may only use payment services to facilitate Transactions (as defined below) with your End Users. You may not use payment services to conduct any personal transactions, or for any other purposes prohibited by this Agreement.
Business Representative: You and your Representative individually affirm to Sila that (i) your Representative is authorized to provide the information described in this Part B.2 on your behalf and to bind you to this Agreement and (ii) your Representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of Sila, neither you nor your Representative may register or attempt to register for a Sila Account on behalf of a user Sila previously terminated from use of the Services.If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Customers, including payment of any amounts owed under this Agreement.
Validation: At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate the information you provided, verify you or your Representative’s identity, and assess the risk associated with your business. This additional information may include copies of government-issued identification, business licenses, or other information related to your business, its beneficial owners or principals. If you use payment services, we may also request that you provide copies of financial statements or records pertaining to your compliance with this Agreement, or require you to provide a personal or company guarantee. Your failure to provide this information or material may result in suspension or termination of your Sila Account.You authorize us to retrieve information about you from our service providers and other third parties, including credit reporting agencies and information bureaus and you authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, address(es), credit history, and other data about you or your Representative. You acknowledge that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of your Sila Account. Sila may periodically update this information as part of our underwriting criteria and risk analysis procedures.
Authorization to debit your account: By using our Services to send funds via the Automated Clearing House (“ACH”) from your linked Bank Account(s) to your Deposit Account, Investment Account (as applicable), Platform or a third party, you authorize us (as agent of a third party and/or Bank) to debit the Bank Account indicated by you for the amount and on the date provided by you. You understand that because this will be an electronic transaction, and funds may be withdrawn from your account as soon as the above noted transaction date, you will not dispute, unless permitted by applicable law and regulations, your Sila, Bank, or other authorized third party debiting your account, so long as the Transaction corresponds to the terms indicated in the transaction form provided to you by Sila.
Changes to Your Business, Keeping your Sila Account Current: You agree to keep the information in your Sila Account current. You must promptly update your Sila Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your Sila Account or terminate this Agreement if you fail to keep this information current. You also agree to promptly notify us in writing no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.
4. Your Relationship with your End Users
You may only use the Services for legitimate Transactions with End Users (i.e., your Customers). You know your End Users better than we do, and you are responsible for your relationship with them. Sila is not responsible for the products or services you publicize or sell or if you accept donations, for your communication to your End Users of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your End Users.
Sila provides Services to you but we have no way of knowing if any particular payment transaction, purchase, sale, donation, order, or other transaction (each a “Transaction”) is accurate or complete, or typical for your business. You are responsible for knowing whether a Transaction initiated by your End User is erroneous or suspicious. If you are unsure if a Transaction is erroneous or suspicious, you agree to research the Transaction and, if necessary, contact your End User before fulfilling or completing the Transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.
5. Fees and Fines
Sila will provide the Services to you at the rates and for the fees (“Fees”) described in our Pricing and incorporated into this Agreement. The Fees include charges for Transactions (such as processing a payment) and for other events connected with your Sila Account. We may revise the Fees at any time. However, we will provide you with at least 30 days’ advance notice before revisions become applicable to you (or a longer period of notice if this is required by applicable Law).
In addition to the Fees, you are also responsible for any penalties or fines imposed in relation to your Sila Account on you or Sila by Sila or any third-party services provider resulting from your use of the Sila Services in a manner not permitted by this Agreement or applicable law, rules and regulations.
You are also obligated to pay all taxes, fees and other charges imposed by any governmental authority (“Taxes”), including but not limited to any goods and services tax, sales tax and/or tax on the Services provided under this Agreement. If you are tax-exempt, you will provide us with an appropriate certificate or other evidence of tax exemption that is satisfactory to us.
6. Services and Sila Account Support
We will provide you with support to resolve general issues relating to your Sila Account and your use of the Services. This support includes resources and documentation that we make available to you through the current versions of Sila’s documentation and other pages on our website (collectively, “Documentation”). The most efficient way to get answers to your questions is to review our Documentation. If you still have questions after reviewing the Documentation, please contact us at email@example.com.
You are solely responsible for providing support to your End Users regarding your services, product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities. We are not responsible for providing support for the Services to your End Users unless we agree to do so in a separate agreement with you or one of your End Users.
7. Taxes and Other Expenses
Our fees are exclusive of any applicable Taxes, except as expressly stated to the contrary. You have sole responsibility and liability for: (i) determining what, if any, Taxes apply to the sale of your products and services, acceptance of donations, or payments you receive in connection with your use of the Services; and (ii) assessing, collecting, reporting, and remitting Taxes for your business to the appropriate tax and revenue authorities. If we are required to withhold any Taxes, or we are unable to validate any tax-related identification information you provide to us, we may deduct such Taxes from amounts otherwise owed and pay them to the appropriate taxing authority. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status. Upon our reasonable request, you must provide us with information regarding your tax affairs.
We may send documents to you and tax authorities for Transactions processed using the Services.
8. Service Requirements, Limitations and Restrictions
Compliance with Applicable Laws: You must use the Services in a lawful manner, and must obey all laws, rules, and regulations (“Laws”) applicable to your use of the Services and to Transactions. As applicable, this may include compliance with domestic and international Laws related to the use or provision of financial services, notification and consumer protection, unfair competition, privacy, and false advertising, and any other Laws relevant to Transactions.
Restricted Businesses and Activities: You may not use the Services to enable any person (including you) to benefit from any activities that Sila has identified as a restricted business, including but not limited to: (i) credit repair, (ii) debt consolidation, (iii) payday loans, (iv) title loans, (v) telemarketing, (vi) tobacco sales, (vii) travel clubs, (viii) sweepstakes, (ix) marijuana or controlled substance supply, (x) tribal and entities that are not governed by the U.S. or states, (xi) mail order or telephone order companies, (xii) business located outside of the U.S, (xiii) adult entertainment, (xiv) stored value cards, (xv) illegal or fraudulent goods or services, including, but not limited to, illegal substances, counterfeit goods, stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety (including synthetics, “potpourri not for human consumption”, and other similar items), illegal online gambling / wagering, pyramid schemes, counterfeit goods, unlicensed sale of firearms or weapons, (xvi) any type of money laundering, or (xvii) other businesses that operate or engage in any business regulated by FinCEN, including money service businesses, e-money business, and businesses selling money orders or traveler’s checks, and virtual or crypto-currency marketplaces and exchanges (collectively, “Restricted Businesses”). Restricted Businesses include use of the Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC).Please review the list of thoroughly before registering for and opening a Sila Account. If you are uncertain whether a category of business or activity is restricted or have questions about how these restrictions apply to you, please contact us at firstname.lastname@example.org. We may add to or update the Restricted Business list at any time.
Other Restricted Activities: You may not use the Services to facilitate illegal Transactions or to permit others to use the Services for personal, family or household purposes. In addition, you may not allow, and may not allow others to: (i) access or attempt to access non-public Sila systems, programs, data, or services; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any data, content, or any part of the Services, Documentation, or our website except as expressly permitted by applicable Laws; (iii) act as service bureau or pass-through agent for the Services with no added value to Customers; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited; (vi) reverse engineer or attempt to reverse engineer the Services except as expressly permitted by Laws; (vii) perform or attempt to perform any actions that would interfere with the normal operation of the Services or affect use of the Services by our other users; or (ix) impose an unreasonable or disproportionately large load on the Service.
9. Suspicion of Unauthorized or Illegal Use
We may refuse, condition, or suspend any Transactions that we believe: (i) may violate this Agreement or other agreements you may have with Sila; (ii) are unauthorized, fraudulent or illegal; or (iii) expose you, Sila, or others to risks unacceptable to Sila. If we suspect or know that you are using or have used the Services for unauthorized, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your Sila Account, your End Users, and Transactions made through your use of the Services.
10. Disclosures and Notices; Electronic Signature Consent
Consent to Electronic Disclosures and Notices: By registering for a Sila Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Sila (“Notices”), including those required by Law. You also agree that your electronic consent will have the same legal effect as a physical signature.
Methods of Delivery: You agree that Sila can provide Notices regarding the Services to you through our website or through the Dashboard (as defined below), or by mailing Notices to the email or physical addresses identified in your Sila Account. Notices may include notifications about your Sila Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website, mailed, or emailed to you.
SMS and Text Messages: You authorize us to provide Notices to you via text message to allow us to verify your or your Representative’s control over your Sila Account (such as through two-step verification), and to provide you with other critical information about your Sila Account. Standard text or data charges may apply to such Notices. Where offered, you may disable text message notifications in the Developer Dashboard by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important Security Controls (as defined below) on your Sila Account and may increase the risk of loss to your business.
Requirements for Delivery: You will need a computer or mobile device, Internet connectivity, and an updated browser to access your Developer Dashboard and review the Notices provided to you. If you are having problems viewing or accessing any Notices, please contact us at email@example.com and we can find another means of delivery.
Withdrawing Consent: Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your Sila Account.
11. Term and Termination
Term and Termination: This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or Sila. You may terminate this Agreement by closing your Sila Account at any time by providing a written notice to firstname.lastname@example.org. If you use the Services again or register for another Sila Account, you are consenting to this Agreement. We may terminate this Agreement or close your Sila Account at any time for any reason (including, without limitation, for any activity that may create harm or loss to the goodwill of a Payment Method) by providing you Notice. We may suspend your Sila Account and your ability to access funds in your Sila Account, or terminate this Agreement, if (i) we determine at our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your Sila Account; (ii) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; (iii) any Law, Payment Method Provider or third party provider requires us to do so; or (iv) we are otherwise entitled to do so under this Agreement. Our third party providers may terminate your ability to access their services, at any time and for any reason, in which case you will no longer be able to to access their services under this Agreement.
Effects of Termination: Termination does not immediately relieve you of obligations incurred by you under this Agreement. Upon termination, you agree to (i) complete all pending Transactions, (ii) stop accepting new Transactions, and (iii) immediately remove all Sila and and any third party service provider logos from your website (unless permitted under a separate license with the applicable third party). Your continued or renewed use of the Services after all pending Transactions have been processed serves to renew your consent to the terms of this Agreement. If you terminate this Agreement, we will pay out any remaining funds owed to you in accordance with Part D.
In addition, upon termination you understand and agree that (i) all licenses granted to you by Sila under this Agreement will end; (ii) subject to Part E.5 we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; and (iv) you are still liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination.
PART C – Sila Technology
1. API and Developer Dashboard
Sila has developed and provides access to the API that may be used to access the Services. You may use the API solely as described in the Documentation to use the Services on websites and through the applications identified in your Sila Account. You may manage your Sila Account, connect with other service providers, and enable additional features through the Sila developer dashboard (“Developer Dashboard”). You may not use the API for any purpose, function, or feature not described in the Documentation or otherwise communicated to you by us. Due to the nature of the Services, we will update the API and Documentation from time to time, and may add or remove functionality. We will provide you Notice in the event of material changes, deprecations, or removal of functionality from the API so that you may continue using the Services with minimal interruption.
We will make publishable and secret API keys for live and test Transactions available to you through the Dashboard. Publishable keys identify Transactions with your End Users, and secret keys permit any API call to your Sila Account. You are responsible for securing your secret keys – do not publish or share them with any unauthorized persons. Failure to secure your secret keys will increase the likelihood of fraud on your Sila Account and potential losses to you or your End Users. You should contact us immediately at email@example.com if you become aware of any unauthorized use of your secret key or any other breach of security regarding the Services. We provide more details on proper use of publishable and secret API keys in the Documentation. Information on securing your Sila Account is available in Part E.
2. Ownership of Sila IP
As between you and Sila, Sila and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the API, Services, Developer Dashboard, and Documentation (collectively, “Sila IP”) or any copies thereof. Sila IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and all rights in Sila IP not expressly granted to you in this Agreement are reserved.
You may choose to or we may invite you to submit comments or ideas about improvements to the Service, our API, our platform, or any other component of our products or services (“Feedback”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Feedback. You also agree that Sila has no fiduciary or any other obligation to you in connection with any Feedback you submit to us, and that we are free to use your Feedback without any attribution or compensation to you.
You are granted a nonexclusive and nontransferable license to electronically access and use the Sila IP only in the manner described in this Agreement. Sila does not sell to you, and you do not have the right to sublicense the Sila IP. We may make updates to the Sila IP or new Services available to you automatically as electronically published by Sila, but we may require action on your part before you may use the Sila IP or new Services (including activation through the Developer Dashboard, or acceptance of new or additional terms). Sila may revoke or terminate this licence at any time if you use Sila IP in a manner prohibited by this Agreement.
You may not: (i) claim or register ownership of Sila IP on your behalf or on behalf of others; (ii) sublicense any rights in Sila IP granted by us; (iii) import or export any Sila IP to a person or country in violation of any country’s export control Laws; (iv) use Sila IP in a manner that violates this Agreement or Laws; or (v) attempt to do any of the foregoing.
4. Sila Marks; References to Our Relationship
We may make certain Sila logos or marks (“Sila Marks”) available for use by you and other users to allow you to identify Sila as a service provider. To use Sila Marks, you must first agree to use the Sila Marks in accordance with the Sila Mark Guidelines. Sila may limit or revoke your ability to use Sila Marks at any time. You may never use any Sila Marks or Sila IP consisting of trademarks or service marks without our express permission, or in a manner that may lead people to confuse the origin of your products or services with ours.
During the term of this Agreement, you may publicly identify us as the provider of the Services to you and we may publicly identify you as a Sila customer. If you do not want us to identify you as a customer, please let us know at firstname.lastname@example.org. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and Sila or its third party services providers. Upon termination of your Sila Account, both you and Sila will remove any public references to our relationship from our respective websites.
You may use the Services to upload or publish text, images, and other content (collectively, “Content”) to your Sila Account and to third-party sites or applications but only if you agree to obtain the appropriate permissions and, if required, licenses to upload or publish any such Content using the Services. You agree to fully reimburse Sila for all fees, fines, losses, claims, and any other costs we may incur that arise from publishing illegal Content through the Services, or claims that Content you published infringes the intellectual property, privacy, or other proprietary rights of others.
Other Services: From time to time we may offer you additional features or services either through us or our third party service providers that may be subject to additional or different terms of service. All such additional features and services form part of the Services, and you may not use these additional services unless you agree to the applicable agreement or terms (if any) for those services.
We may also provide you access to services identified as “beta” or pre-release services. You understand that these services are still in development, may contain bugs or errors, may be feature incomplete, may materially change prior to a full commercial launch, or may never be released commercially. We provide beta services AS IS, and without warranty of any kind, and your use of, or reliance on beta services is at your own risk.
Part D: Third Party Services
Your use of the Services is subject to additional terms that apply between you and one or more of Sila, a Sila affiliate, and a Third-Party Service provider. By using the Services, you agree to the applicable terms, including any subsequent updates
Additionally, a Third-Party Service may enforce the terms of this Agreement directly against you.
Automated Clearinghouse (ACH)
The ACH network is controlled and managed by the National Automated Clearinghouse Association (NACHA) and its member organizations. Where submitting Charges over the ACH network, you are required to comply with the NACHA Operating Rules. NACHA may amend the NACHA Operating Rules at any time, and we may amend this Agreement or make changes to the Payment Processing Services as necessary to comply with the NACHA Operating Rules.
You understand and accept your role as the Originator (as defined in the NACHA Operating Rules). You agree to obtain your End User’s consent to debit or credit their bank account and initiate a Charge over the ACH network. Such consent must be in a form and manner that complies with the NACHA Operating Rules and the Documentation for ACH Transactions. As with other Payment Processing Services, you may not, and may not attempt to send or receive funds to or from a person, entity, or state where such Transactions are prohibited by applicable Law. You also agree to maintain the security and integrity of all information you collect as part of an ACH Transaction.
Certain services offered as part of the Services are money transmission within the meaning of laws that apply to those Services. To the extent that your use of the Services is money transmission or similarly regulated services, those Services are provided to you by Evolve Bank not by Sila, Inc.
2. Processing Transactions; Disputes
To enable us to process Transactions for you, you authorize and direct us, our affiliates and third party service providers to receive and settle any payment processing proceeds. You appoint Sila as your agent for the limited purpose of directing, receiving, holding and settling such proceeds. You agree that Sila’s or Sila’s third party service providers receipt of such proceeds satisfies the relevant end-customer’s obligations to make payments to you. We will promptly update your Sila Account balance to reflect any such proceeds that we receive on your behalf.
Except where Sila and a Customer have otherwise agreed, you maintain the direct relationship with your End Users and are responsible for: (i) acquiring appropriate consent to submit charges through the Service on their behalf; (ii) providing confirmation or receipts to Customers for each Transaction; (iii) verifying Customers’ identities; and (iv) determining a Customer’s eligibility and authority to complete Transactions. However, even authorized Transactions may be subject to a Dispute. Sila is not responsible for or liable to you for authorized and completed Transactions that are later the subject of a Dispute, Refund, or Reversal, are submitted without authorization or in error, or violate any Laws.
You are immediately responsible to us for all disputes, refunds, reversals, returns, or fines regardless of the reason or timing. We may decline to act upon a Refund instruction, or delay execution of the instruction, if: (i) it would cause your Sila Account balance to become negative; (ii) you are the subject of Bankruptcy Proceedings; or (iii) where we otherwise believe that there is a risk that you will not meet your liabilities under this Agreement.
In many but not all cases, you may have the ability to challenge a dispute by submitting evidence through the API or the Dashboard. We may request additional information to provide to our third party service providers to assist you, but we cannot guarantee that your challenge will be successful. Please keep in mind that you are liable for all losses you incur when lost or stolen payment credentials or accounts are used. Sila does not and will not insure you against losses caused by fraud under any circumstances.
Responsibilities and Disclosures to Your End Users
It is very important to us that your End Users understand the purpose, amount, and conditions of Transactions you submit to us and our third party service providers. With that in mind, when using the Services you agree to: (i) accurately communicate, and not misrepresent, the nature of the Transaction, and the amount of the Transaction in the appropriate currency prior to submitting it to the API; (ii) provide a receipt that accurately describes each Transaction to Customers; (iii) provide End Users a meaningful way to contact you in the event that the product or service is not provided as described; (iv) not use the Services to sell products or services in a manner that is unfair or deceptive, exposes End Users to unreasonable risks, or does not disclose material terms of a purchase in advance; and (v) inform End Users that Sila and its third parties process Transactions for you.
If you engage in Transactions with End Users who are individuals (i.e. consumers), you specifically agree to provide consumers disclosures required by Law, and to not engage in unfair, deceptive, or abusive acts or practices (“UDAAP”).
Security Interests, Collection, and Set-Off Rights
Security Interests: You grant us a lien and security interest in all funds for Transactions that we process for you as well as funds held in any other bank accounts to which such Transaction funds are deposited or transferred. This means that if you have not paid funds that you owe to us, your End Users, or to any of our affiliates, we have a right superior to the rights of any of your other creditors to seize or withhold funds owed to you for Transactions that we process through the Services, and to debit or withdraw funds from any bank account associated with your Sila Account. Upon our request, you will execute and deliver any documents and pay any associated fees we consider necessary to create, perfect, and maintain a security interest in such funds (such as the filing of a form UCC-1).
Collection and Set-Off Rights: You agree to pay all amounts owed to us and to our affiliates on demand. Your failure to pay amounts owed to us or to our affiliates under this Agreement is a breach and you will be liable for any costs we incur during collection in addition to the amount you owe. Collection costs may include, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, any applicable interest, and any other related cost. Where possible, we will first attempt to collect or set-off amounts owed to us and to or affiliates from balances in your Sila Accounts from your use of the Services or from funds that we hold in reserve, if any. However, we may collect any amounts you owe us under this Agreement by deducting or setting-off amounts that you owe from the Sila account balance (or debiting the payout account for such Sila account) for any Sila account that we determine, acting reasonably, is associated with your Sila Account. Similarly, we may deduct or set-off amounts from your Sila Account balance in order to collect amounts owed to us in relation to such associated Sila accounts.
In certain circumstances, we may require a personal, parent or other guarantee (a “Guarantee”) from a user’s principal, owner, or other guarantor. A Guarantee consists of a legally binding promise by an individual or an entity to pay any amounts the user owes in the event that the user is unable to pay. If we require you to provide us with a Guarantee, we will specifically inform you of the amount of, and the reasons for the Guarantee. If you are unable to provide such a Guarantee when required, you will not be permitted to use the Services.
5. Reconciliation and Error Notification
The Developer Dashboard contains details of Transactions and other activity on your Sila Account. Except as required by Law, you are solely responsible for reconciling the information in the Developer Dashboard generated by your use of the Services with your records of Customer Transactions, and for identifying any errors. You agree to review your Sila Account and immediately notify us of any errors. We will investigate any reported errors, including any errors made by Sila or a third party service provider, and, when appropriate, attempt to rectify them by crediting or debiting your Sila Account. However, you should be aware that your ability to recover funds you have lost due to an error may be very limited or even impossible, particularly if we did not cause the error, or if funds are no longer available. For Transaction errors, we will work with you and our third party providers to correct a Transaction error in accordance with the applicable terms and conditions. If you fail to communicate an error to us for our review without undue delay and, in any event, within 60 days after you discovered it and flagged it in the Developer Dashboard, you waive your right to make any claim against us or our Payment Method Providers for any amounts associated with the error.
If you leave any funds dormant in a Sila Account and you do not give us instructions where to send them, we may be required by Law to deem the funds to be abandoned by you, and to deliver them to various government agencies. To the extent required by Law, we will attempt to provide you Notice if we hold funds payable to you in an account beyond the applicable dormancy period for abandoned property. If we are unable to contact you, we will treat the funds in your Sila Account to be abandoned, and will deliver them to the appropriate government authority
Part E: Data Usage, Privacy, and Security
Data Usage Overview
Protecting, securing, and maintaining the information processed and handled through the Services is one of our top priorities, and it should be yours too. This section describes our respective obligations when handling and storing information connected with the Services. The following terms used in this section relate to data provided to Sila by you or your End Users, or received or accessed by you through your use of the Services:
“Payment Account Details” means the Payment Method account details for a Customer, and includes, with respect to credit and debit cards, the cardholder’s account number, card expiration date, and CVV2.
“Payment Data” means Payment Account Details, financial information specifically regulated by Laws and any other information used with the Services to complete a Transaction.
“Personal Data” means information that identifies a specific living person (not a company, legal entity, or machine) and is transmitted to or accessible through the Services.
“Sila Data” means details of the API transactions over Sila infrastructure, information used in fraud detection and analysis, aggregated or anonymized information generated from Data, and any other information created by or originating from Sila or the Services.
“User Data” means information that describes your business and its operations, your products or services, and Transactions with your End Users.
The term “Data” used without a modifier means all Personal Data, User Data, Payment Data, and Sila Data.
Sila processes, analyzes, and manages Data to: (a) provide Services to you, other Sila users, and Customers; (b) mitigate fraud, financial loss, or other harm to users, Customers, Sila and its third party providers; and (c) analyze, develop and improve our products, systems, and tools. Sila provides Data to third-party service providers, and their respective affiliates, as well as to Sila’s affiliates, to allow us to provide Services to you and other users. We do not provide Personal Data to unaffiliated parties for marketing their products to you. You understand and consent to Sila’s use of Data for the purposes and in a manner consistent with this Part E.
Data Protection and Privacy
Confidentiality: Sila will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorized by you. You will protect all Data you receive through the Services, and you may not disclose or distribute any such Data, and you will only use such Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. Neither party may use any Personal Data to market to Customers unless it has received the express consent from a specific Customer to do so. You may not disclose Payment Data to others except in connection with processing Transactions requested by Customers and consistent with applicable Laws and rules.
3. Security and Fraud Controls
Sila’s Security: Sila is responsible for protecting the security of Data in our possession. We will maintain commercially reasonable administrative, technical, and physical procedures to protect User Data and Personal Data stored in our servers from unauthorized access, accidental loss, modification, or breach, and we will comply with applicable Laws, rules and regulation when we handle User and Personal Data. However, no security system is impenetrable and we cannot guarantee that unauthorized parties will never be able to defeat our security measures or misuse any Data in our possession. You provide User Data and Personal Data to Sila with the understanding that any security measures we provide may not be appropriate or adequate for your business, and you agree to implement Security Controls (as defined below) and any additional controls that meet your specific requirements. In our sole discretion, we may take any action, including suspension of your Sila Account, to maintain the integrity and security of the Services or Data, or to prevent harm to you, us, Customers, or others. You waive any right to make a claim against us for losses you incur that may result from such actions.
4. Your Security
You are solely responsible for the security of any Data on your application and/or website, your servers, in your possession, or that you are otherwise authorized to access or handle. You will comply with applicable Laws, rules and regulations when handling or maintaining User Data and Personal Data, and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend your Sila Account or terminate this Agreement.
5. Security Controls
You are responsible for assessing the security requirements of your business, and selecting and implementing security procedures and controls (“Security Controls”) appropriate to mitigate your exposure to security incidents, including but not limited to the security of private keys. We may provide Security Controls as part of the Services, or suggest that you implement specific Security Controls. However, your responsibility for securing your business is not diminished by any Security Controls that we provide or suggest, and if you believe that the Security Controls we provide are insufficient, then you must separately implement additional controls that meet your requirements.
6. Fraud Risk
While we may provide or suggest Security Controls, we cannot guarantee that you or Customers will never become victims of fraud. Any Security Controls we provide or suggest may include processes or applications developed by Sila, its affiliates, or other companies. You agree to review all the Security Controls we suggest and choose those that are appropriate for your business to protect against unauthorized Transactions and, if appropriate for your business, independently implement other security procedures and controls not provided by us. If you disable or fail to properly use Security Controls, you will increase the likelihood of unauthorized Transactions, Disputes, fraud, losses, and other similar occurrences. Keep in mind that you are solely responsible for losses you incur from the use of lost or stolen payment credentials or accounts by fraudsters who engage in fraudulent Transactions with you, and your failure to implement Security Controls will only increase the risk of fraud. We may assist you with recovering lost funds, but you are solely responsible for losses due to lost or stolen credentials or accounts, compromise of your username or password, and any other unauthorized use or modification of your Sila Account. Sila is not liable or responsible to you and you waive any right to bring a claim against us for any losses that result from the use of lost or stolen credentials or unauthorized use or modification of your Sila Account, unless such losses result from Sila’s willful or intentional actions. Further, you will fully reimburse us for any losses we incur that result from the use of lost or stolen credentials or accounts.
We may also provide you with Data regarding the possibility or likelihood that a Transaction may be fraudulent. We may incorporate any subsequent action or inaction by you into our fraud model, for the purpose of identifying future potential fraud. You understand that we provide this Data to you for your consideration, but that you are ultimately responsible for any actions you choose to take or not take in relation to such Data.
Part F: Additional Legal Terms
1. Right to Amend
We have the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We will provide you with Notice of any changes through the Developer Dashboard, via email, or through other reasonable means. If you are an existing Sila user, the changes will come into effect 10 days after we post the changes to our website, and your use of the Services, API, or Data more than 10 days after we publish any such changes on our website constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the “Last updated” date at the top of the Agreement.
You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your Sila Account to others without our prior written consent. If you wish to make such an assignment, please contact us for our consent at email@example.com. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of this Agreement. Sila may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable Notice to you.
3. Right to Audit
If we believe that a security breach, leak, loss, or compromise of Data has occurred on your systems, website, or app affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit. The auditor will issue a report to us which we may share with our third party service providers.
4. No Agency; Third-Party Services
Except as expressly stated in this Agreement, nothing in this Agreement serves to establish a partnership, joint venture, or other agency relationship between you and us, or with any of our third party service providers. Each party to this Agreement is an independent contractor.
5. Force Majeure
Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay fees, fines, disputes, refunds, reversals, or returns under this Agreement.
6. Your Liability For Third-Party Claims Against Us
Without limiting, and in addition to, any other obligation that you may owe under this Agreement, you are at all times responsible for the acts and omissions of your employees, contractors and agents, to the extent such persons are acting within the scope of their relationship with you.
You agree to defend Sila, our affiliates, and their respective employees, agents, and third party service providers (each a “Sila Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a Sila Entity, and you agree to fully reimburse the Sila Entities for any Claims that results from: (i) your breach of any provision of this Agreement; (ii) any fees, fines, disputes, refunds, reversals, returns, or any other liability we incur that results from your use of the Services; (iii) negligent or willful misconduct of your employees, contractors, or agents; or (iv) contractual or other relationships between you and Customers.
7. Important Note for Sole Proprietors
If you are using Services as a sole proprietor, please keep in mind that the Law and the terms of this Agreement consider you and your business to be legally one and the same. You are personally responsible and liable for your use of the Services, payment of fees, refunds, reversals, fines, losses based on disputes or fraud, or for any other amounts you owe under this Agreement for your failure to use Security Controls, and for all other obligations to us and to your End Users. You risk personal financial loss if you fail to pay any amounts owed. Please take the time to read our Documentation and take any measures appropriate to protect against such losses.
8. Representations and Warranties
By accepting the terms of this Agreement, you represent and warrant that: (a) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (b) any information you provide us about your business, products, or services is accurate and complete; (c) each Transaction is for permitted products, services, or donations, and any related information accurately describes the Transaction; (d) you will fulfill all of your obligations to Customers and will resolve all disputes with them; (e) you will comply with all Laws applicable to your business and use of the Services; (f) your employees, contractors and agents will at all times act consistently with the terms of this Agreement; (g) you will not use Services for personal, family or household purposes, for peer-to-peer money transmission, or (except in the normal course of business) intercompany Transactions; and (h) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.
9. No Warranties
WE PROVIDE THE SERVICES AND SILA IP “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER TYPE OF WARRANTY OR GUARANTEE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY SILA OR OBTAINED BY YOU FROM OR THROUGH THE SERVICES – WHETHER FROM SILA OR ANOTHER SILA ENTITY, AND WHETHER ORAL OR WRITTEN – CREATES OR IMPLIES ANY WARRANTY FROM A SILA ENTITY TO YOU.
YOU AFFIRM THAT NO SILA ENTITY CONTROLS THE PRODUCTS OR SERVICES THAT YOU OFFER OR SELL. YOU UNDERSTAND THAT WE CANNOT GUARANTEE AND WE DISCLAIM ANY KNOWLEDGE THAT YOUR END USERS POSSESS THE AUTHORITY TO MAKE, OR WILL COMPLETE, ANY TRANSACTION.
THE SILA ENTITIES DISCLAIM ANY KNOWLEDGE OF, AND DO NOT GUARANTEE: (a) THE ACCURACY, RELIABILITY, OR CORRECTNESS OF ANY DATA PROVIDED THROUGH THE SERVICES; (b) THAT THE SERVICES WILL MEET YOUR SPECIFIC BUSINESS NEEDS OR REQUIREMENTS; (c) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; (d) THAT SILA WILL CORRECT ANY DEFECTS OR ERRORS IN THE SERVICE, API, DOCUMENTATION, OR DATA; OR (e) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. USE OF DATA YOU ACCESS OR DOWNLOAD THROUGH THE SERVICES IS DONE AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM SUCH ACCESS OR DOWNLOAD. YOU UNDERSTAND THAT THE SILA ENTITIES MAKE NO GUARANTEES TO YOU REGARDING TRANSACTION PROCESSING TIMES OR PAYOUT SCHEDULES.
NOTHING IN THIS AGREEMENT OPERATES TO EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF ANY IMPLIED CONDITION, WARRANTY OR GUARANTEE, OR THE EXERCISE OF ANY RIGHT OR REMEDY, OR THE IMPOSITION OF ANY LIABILITY UNDER LAW WHERE TO DO SO WOULD: (A) CONTRAVENE THAT LAW; OR (B) CAUSE ANY TERM OF THIS AGREEMENT TO BE VOID.
10. Limitation of Liability
Under no circumstances will any Sila Entity be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to this Agreement or your use of the Services, even if such damages are foreseeable, and whether or not you or the Sila Entities have been advised of the possibility of such damages. The Sila Entities are not liable, and deny responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorized access or use of the Services, your Sila Account, or Data, or your failure to use or implement anti-fraud measures, Security Controls, or any other data security measure. The Sila Entities further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the Services inconsistent with the Documentation; (b) any unauthorized access of servers, infrastructure, or Data used in connection with the Services; (c) interruptions to or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any Data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others.
You agree to limit any additional liability not disclaimed or denied by the Sila Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of Fees paid by you to Sila during the three-month period immediately preceding the event that gave rise to your claim for damages.
These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.
We provide the Services from facilities in the United States. We do not claim, and we cannot guarantee that Services we provide from the United States are or will be appropriate or available for any other location or jurisdiction, comply with the Laws of any other location or jurisdiction, or comply with Laws governing export, import, or foreign use.
11. Responding to Legal Process
12. Dispute Resolution; Agreement to Arbitrate
Binding Arbitration: In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s intellectual property (such dispute will be determined by the United States District Court for the District of Oregon), will be determined by arbitration in Portland, Oregon before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs), and in other cases in which the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator will apply the substantive law of the State of Oregon, exclusive of its conflict or choice of law rules. If the American Arbitration Association is no longer in business, or refuses or declines to administer any dispute between the parties brought before it, either party may petition the United States District Court for the District of Oregon to appoint the arbitrator. Nothing in this paragraph will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this Agreement.
Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.
Service of Process: Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Law.
Class Waiver: To the fullest extent permitted by Law, each of the parties agrees that any dispute arising out of or in connection with this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
Provision of an Award: Subject to the limitations of liability identified in this Agreement, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of Oregon. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in Portland, Oregon The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.
Fees: Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.
Confidentiality: The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable Laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
Conflict of Rules: If any provision of this Agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by Law and all the other provisions will remain valid and enforceable.
13. Entire Agreement
This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and Sila for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and Sila, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
14. Cumulative Rights, Construction, Waiver
The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement, along with all other rights and remedies available to it at Law, in equity or under the Payment Method Rules. No provision of this Agreement will be construed against any party on the basis of that party being the drafter. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.
All provisions of this Agreement that give rise to a party’s ongoing obligation will survive termination of this Agreement, including Your Relationship with Your End Users, Taxes and Other Expenses, Service Requirements, Limitations and Restrictions, Suspicion of Unauthorized or Illegal Use, Disclosures and Notices; Electronic Signature Consent, Effects of Termination, Ownership of Sila IP, Security Interests, Reconciliation and Error Notification, Dormant Accounts, Security and Fraud Controls, No Agency; Third-Party Services, Force Majeure, Your Liability for Third-Party Claims Against Us, Representations and Warranties, No Warranties Limitation of Liability, Responding to Legal Process, Dispute Resolution; Agreement to Arbitrate, Entire Agreement, Cumulative Rights, Construction, Waiver, Survival, and any related terms in the Agreement.