Pax8 Partner Terms
Last updated November 30, 2023
These Pax8 Partner Terms (Terms) set out the terms and conditions that govern your access to and resale of any and all products and services, including third party vendor products (Vendor and Vendor Products respectively), available on the Pax8 Platform or otherwise via Pax8 (collectively, Pax8 Products).
By completing and submitting the Pax8 partner sign up form or by purchasing any Pax8 Products, you (Partner) agree to these Terms. If you are an individual entering these Terms on behalf of an entity, you represent and warrant that you have the legal authority to bind that entity to these Terms. You agree and acknowledge that these Terms may be modified by Pax8 from time to time at its sole discretion by posting the updated terms to this site or a successor site.
1. Partner Appointment.
1.1 Partner appointment shall only take place following Pax8’s verification of the Partner. Pax8 reserves the right to reject or remove the appointment of any Partner in its sole discretion. Upon Pax8 verification, the Partner shall be appointed as an independent, nonexclusive authorized reseller and/or provider of the Pax8 Products.
1.2. During its appointment, Partner may promote and resell Pax8 Products in the in the relevant territories listed at https://www.pax8.com/en-us/terms/.
1.3. Unless expressly authorized by Pax8 in writing, Partner may promote, provide and resell Pax8 Products only to Partner’s customers for internal business use, and not for resale or distribution. Partner may not sell Pax8 Products to other resellers or distributors, and its customers may not offer Pax8 Products for further resale or distribution.
1.4. Partner will:
(a) promote, market, and sell the Pax8 Products to its customers;
(b) not make any false or misleading statements regarding Pax8 Products, Pax8, or any Vendor;
(c) not make or offer any warranties or other representations on behalf of Pax8 Products, Pax8 or any Vendor;
(d) perform its related activities in a professional manner and in accordance with these Terms and any guidelines issued by Pax8, including: conducting its business in a manner that reflects favorably at all times on Pax8 Products, the Pax8 Platform and reputation of Pax8;
(e) avoid any deceptive, misleading or unethical practices that are or might be detrimental to Pax8, any Vendor, or the public; and
(f) at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance under these Terms.
2. Specific Product Terms.
Partner acknowledges and agrees that many Pax8 Product licenses are subject to specific terms, which may be made available directly by the Vendor, via the Pax8 Platform (defined below), or as set forth at https://www.pax8.com/en-us/terms/ (collectively Specific Product Terms). New Specific Product Terms may be added and/or amended from time to time. While Pax8 will endeavor to make the applicable Specific Product Terms available, the Partner shall be solely responsible for ensuring it complies with the applicable Specific Product Terms from the Vendor at any given time. If there is any conflict between these Terms and the Specific Product Terms (including, but not limited to, any warranties, indemnities, support obligations or other terms set forth in the Specific Product Terms), the Specific Product Terms shall prevail. By using or selling any Pax8 Product that is subject to Specific Product Terms, Partner agrees that it has reviewed and will comply with the Specific Product Terms which are incorporated into these Terms by reference.
3. Pax8 Platform.
3.1 The platform made available by Pax8 (Pax8 Platform) is the proprietary technology platform developed by Pax8 for the ordering, provisioning, managing, and billing of Pax8 Products.
3.2. Pax8 will make the Pax8 Platform accessible to Partner, subject to these Terms and any other terms or procedures provided by Pax8. Partner agrees that Pax8 has the right to suspend such access in its sole reasonable discretion.
3.3. Partner must provide Pax8 with a valid automated payment method as a condition of using the Pax8 Platform to access Pax8 Products.
3.4. Partner may only permit its authorized employees and customers who have purchased or will purchase Pax8 Products (Customers) to access the Pax8 Platform. Partner is responsible for ensuring that such access is in accordance with these Terms.
3.5. Partner may use the Partner Catalog feature of the Pax8 Platform to add, promote, sell, bill, and manage its own (non-Pax8) products and services (Partner Products). Partner is solely responsible for providing sales and technical support for any Partner Products.
4. Technical Support Services
4.1 Where the Partner has requested to have Pax8 provide technical support to Partner and/or one or more of Customers on Partner’s behalf and Pax8 has agreed to do so (Pax8 Technical Support Services), this Section 4 shall apply.
4.2. Pax8 will provide the Pax8 Technical Support Services in accordance with the specification set out on the Pax8 Platform (Pax8 Technical Support Services Terms) and the Partner shall ensure that Customer complies with such terms.
4.3. Partner acknowledges and agrees that:
(a) the Pax8 Technical Support Services are a monthly subscription ordered on a per-Customer basis;
(b) fees shall be as set forth in the Pax8 Platform, whereby standard pricing applies to Customers with up to the number of individual end users specified in the Pax8 Platform. Pricing for larger Customers can be obtained by contacting Pax8;
(c) the current list of supported Pax8 Products can be found in the Pax8 Platform. Pax8 may add support for additional Pax8 Products at any time. Pax8 will give thirty (30) days’ notice before discontinuing support for any Pax8 Product;
(d) Pax8 will communicate directly with the Customer to provide the Pax8 Technical Support Services and Partner will provide Pax8 with the necessary contact information for the Customer via the Pax8 Platform; and
(e) Partner shall only order Pax8 Technical Support Services on behalf of a Customer where the Customer designates technical support contacts with sufficient technical proficiency to file appropriate support requests and assist Pax8 in the investigation and resolution of support issues. Pax8 shall not be liable for any delays or non-performance as a result of the Customer failing to designate such a contact.
4.4. Pax8 will use commercially reasonable efforts to respond to support requests in accordance with the Pax8 Technical Support Services service levels, as set forth on the Pax8 Platform.
4.5. Partner agrees to provide relevant information about the Customer’s computer systems, networks, and software, to the extent requested by Pax8.
5. Academy Services
5.1 Pax8 Academy services, including but not limited to Pax8 Academy IT Managed Services business coaching and Pax8 Academy Sales Coaching, (Academy Services) shall be provided at Pax8’s discretion. If Pax8 agrees to provide any Academy Services, the terms of this Section 5 shall apply.
5.2. Academy Services shall be provided in accordance with the applicable written documentation agreed to by the parties (Academy Services Proposal). Anything not expressly included in the Academy Services Proposal shall be deemed out of scope.
5.3. During any period in which Partner utilizes or purchases Academy Services and for one (1) year thereafter (Non-Solicitation Period), Pax8 and Partner mutually agree not to solicit for employment each other’s employees. If either Party breaches this Section 5, the breaching party shall pay to the non-breaching party twenty-five percent (25%) of the solicited employee’s annual salary.
5.4. Neither Party will, during the Non-Solicitation Period, either directly or indirectly, for itself or any third party, solicit or aid anyone in the solicitation of any client of either party to change its account to any competitor of the other party. As the sole and exclusive remedy for breach of this Section 5 the non-breaching Party may issue an invoice to the breaching Party in an amount equal to the total amount billed by Pax8 to Partner for Academy Services in the three calendar months preceding the breach, which the parties agree is a fair representation of the likely losses they will incur. For the avoidance of any doubt, this Section 5 shall not prohibit Pax8 from fulfilling a Customer’s request to be transferred to an alternative partner.
5.5. Pax8 warrants that Professional Services provided will be of good, workmanlike quality, performed with the requisite skill necessary.
6. Other Professional Services.
6.1 Other or additional Pax8 professional services (Professional Services) shall be provided at Pax8’s discretion. If Pax8 agrees to provide any Professional Services, the terms of this Section 6 shall apply.
6.2. The Professional Services shall be provided in accordance with the applicable written documentation agreed to by the parties (Services Description). Anything not expressly included in the Services Description shall be deemed out of scope.
6.3. Partner shall provide complete and accurate information reasonably requested by Pax8 to provide the Professional Services. Partner shall be solely liable for any delays, failure to deliver or cost increases resulting from insufficient, inaccurate, or incomplete information provided by Partner.
6.4. Partner shall be responsible for ensuring it has any licenses and permits necessary for the Professional Services. Pax8 may terminate the Professional Services if Pax8 determines that Partner does not possess necessary licenses and permits.
7. Matchmaker Service.
7.1. Where the Partner has opted into the Pax8 Matchmaker (Matchmaker), the terms of this Section 7 shall apply.
7.2. Partner will provide Pax8 with access to sufficient data relating to the Partner and its Customers, in the form required by Pax8. Pax8 will integrate such data with its own proprietary and third-party data, for the purposes of enabling Matchmaker, assessing, and monitoring the success and performance of the Matchmaker and Pax8 Products, PAx8’s own internal business reviews, Pax8 Product development and service enhancements.
7.3. The criteria for matching shall be solely determined by Pax8, which shall be Pax8’s own proprietary information. Pax8 shall have no duty to disclose the same to the Partner.
7.4. Pax8 cannot guarantee that the Partner will be successfully matched with any prospective customer leads (Matched Lead), nor that any Matched Lead will ultimately become Customer of Partner. Partner acknowledges that a Matched Lead may be matched with multiple partners and that Partner is solely responsible for the conversion of any Matched Leads.
7.5. Partner agrees that certain information relating to the Partner will be made available to potential Matched Leads, such information to be determined in Pax8’s sole reasonable discretion. Pax8 will notify Partner of any Matched Leads via email.
7.6. Partner agrees that any Matched Leads shared with Partner shall be exclusively fulfilled via the Pax8 Platform for any Pax8 Products
7.7. Partner may opt out of Matchmaker at any time. Following opt out, Partner will no longer be included in any Matched Lead results and will not be notified of any further Matched Leads.
8. Billing as a Service.
8.1 Where the Partner has requested that Pax8 provide direct billing to Customers for Pax8 Products (Billing as a Service) and Pax8 has agreed, this Section 8 shall apply.
8.2. The Partner acknowledges and agrees that:
(a) Billing as a Service is not available for Partner Products, nor is it available in all territories.
(b) Upon successful collection of billed fees from the Customer, Pax8 will pay Partner the difference between:
(i) the amount collected from the Customer for Pax8 Product(s), and
(ii) fees for any included Pax8 Products and Pax8 Technical Support Services, Billing as a Service fees, and any other fees due to Pax8 from Partner or the Customer. Payment will be by check or other equivalent method.
(c) Any amount collected from Customers but credited after payment has been remitted to Partner, may be charged back to Partner, or set off against future payments to the amount of such credit.
(d) Partner is responsible for ensuring timely payments to Pax8. If Pax8 is unable to obtain payment from the Customer by the end of the calendar month in which the payment is due, Pax8 will charge the applicable amount to Partner’s payment method.
(e) Partner shall provide reasonable assistance to Pax8 in obtaining the Customer’s authorization for Pax8 to charge Customer’s payment account. Under no circumstances will Partner attempt to utilize Billing as a Service without Customer authorization.
(f) Should the Customer revoke the payment authorization, Pax8 will promptly remove the applicable payment account information from the Pax8 Platform and cease provision of Billing as a Service to the Customer. Partner will continue to be responsible for payment, as set forth in this Section 8.
8.3. Pax8 reserves the right to withdraw Billing as a Service in its sole reasonable discretion.
9. Customer Agreement, Usage, and Information.
9.1. Prior to accessing the Pax8 Platform or receiving access to any Pax8 Products, Partner must have entered into an agreement with the Customer that:
(a) provides Pax8 with protection concerning proprietary rights, warranty disclaimers, limitations of liability and restrictions that is at least as stringent as the protection provided to Pax8 under these Terms;
(b) obtains the Customer’s consent to the Specific Product Terms, except to the extent Partner is acting as a Managed Service Provider (MSP) as defined in the applicable Specific Product Terms and the Vendor allows or requires the MSP, instead of the Customer, to accept the terms and conditions; and
(c) authorizes Pax8 to perform Technical Support Services, if applicable.
9.2. Partner will use commercially reasonable efforts to ensure that:
(a) each Customer uses Pax8 Products only up to the number of licenses purchased by the Customer or within other limitations on purchase;
(b) Customer usage of Pax8 Products is terminated upon the cancellation or expiration of the Customer’s subscription or other right to use Pax8 Products.
9.3. Partner will provide Pax8 all necessary information about the Customer and the Customer usage as required via the Pax8 Platform or such other means as directed by Pax8. Such information will include, without limitation, the name and location of Customer, Customer contact information, Customer usage and, to the extent Partner has elected Billing as a Service, Customer billing information.
10. Quoting, Ordering and Technical Support.
10.1. Partner is solely responsible for all quoting and ordering for its Customers through the Pax8 Platform, including ensuring that orders are accurate and are correctly submitted. Pax8 shall not be liable for any costs or losses resulting from inaccurate, incorrect or incomplete orders, or any delays or failures in submitting orders.
10.2. Pax8 reserves the right to reject any orders or renewals in its sole discretion.
10.3. Unless Partner has purchased Pax8 Technical Support Services, Partner is solely responsible for providing support to its Customers for Pax8 Products. However, Pax8 may elect to provide Partner and/or Customer reasonable technical support via email, telephone or other methods adopted by Pax8.
11. Subscription Term.
11.1. Subscription terms for Pax8 Products and Technical Support Services are set forth in the Pax8 Platform (each a Subscription Term). Where Subscription Terms are available and ordered on a month-to-month or annual basis (including one, two, or three-year options), the Subscription Term shall be calculated from the first day of the calendar month following the order date.
11.2. Unless terminated earlier in accordance with these Terms and the Specific Product Terms (if applicable), the Subscription Term automatically renews for successive equal Subscriptions Terms.
11.3. Where permitted by the Vendor, any fees for licenses added to an existing subscription during the Subscription Term shall be prorated based on the time remaining in the existing Subscription Term, such that the term for the additional licenses co-terms with the existing Subscription Term.
12. Fees, Invoicing, Taxes, Charges.
12.1 Fees for all Pax8 Products are set forth in the Pax8 Platform and will be charged at the then current rate for the applicable invoicing month. Pax8 may implement pricing increases upon thirty (30) days’ notice provided through the Pax8 Platform, provided however, that pricing increase required by a Vendor may be implemented by Pax8 through the Pax8 Platform at any time. Pax8 may discontinue or reduce the availability of any or all Pax8 Products upon thirty (30) days’ notice provided through the Pax8 Platform. Pax8 reserves the right to decrease fees or add new Pax8 Products without notice.
12.2. Pax8 may provide suggested retail prices for Pax8 Products, but the prices Partner charges to its Customers for Pax8 Products are at the sole discretion of Partner. Pax8 shall not be liable for any expenses incurred by Partner in their provision of the Pax8 Products or Partner Products to Customers.
12.3. Unless Pax8 is providing Billing as a Service, Partner is solely responsible for billing its Customers. The payment obligations of Partner to Pax8 must be satisfied in full, regardless of the billing or collections status of any of Partner’s Customers.
12.4. Pax8 will invoice Partner on or before the fifth (5th) day of the calendar month for:
(a) advance payment of all new subscription services ordered during the prior month,
(b) all applicable recurring fees, and
(c) any non-recurring fees incurred during the prior month. Such non-recurring fees may include, but are not limited to, any prorated amount for a partial term of a new service or licenses added to an existing Customer account during the Subscription Term.
12.5. Partner will provide Pax8 with, and shall maintain, an effective payment source and hereby authorizes Pax8 to automatically charge the payment source when payment is due. Pax8 shall notify Partner if any payment is not successfully completed. Any payment not completed within ten (10) days following the invoice due date for any undisputed fees, shall be deemed a “Past Due Amount” and a payment default constituting a material breach of these Terms. Upon a payment default by Partner, Pax8 reserves the right to suspend the provision of Pax8 Products to Partner and/or its Customers and cease accepting new orders for Pax8 Products.
12.6. Partner agrees that it will not dispute any Pax8 charges with Partner’s financial institution where the transaction corresponds to the terms of the order. Any costs incurred by Pax8 due to any wrongful dispute will automatically be added to Partner’s next invoice. Partner must dispute any good faith billing discrepancy within thirty (30) calendar days of the invoice date by emailing Pax8. Partner must include the invoice number and an explanation of the discrepancy. Pax8 and Partner will use commercially reasonable efforts to resolve the dispute thirty (30) days. Partner shall not withhold payment to Pax8 for any undisputed amounts.
12.7. Pax8 will charge Partner interest for Past Due Amounts at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Payments will be credited first to any Past Due Amounts, including any interest charges, then to any other unpaid balance. Pax8 may refer collection of the Past Due Amounts to an attorney or collections agency and Partner shall be responsible for all collection and/or legal fees related to any payment default and Past Due Amounts.
12.8. All stated fees on the Pax8 Platform will be exclusive of taxes and levies. Pax8 may include applicable taxes on the related invoice unless the Partner provides Pax8 with an appropriate certificate of exemption from such taxes. Regardless of any inclusions on the invoice, Partner will be liable for the payment of any taxes due under any applicable laws in relation to its access to or resale of the Pax8 Products. The Partner will indemnify and hold Pax8 harmless from any obligation to pay any such taxes and any damages or losses (including reasonable attorneys’ fees and costs of litigation) incurred by Pax8 relating to the same.
13. Term and Termination.
13.1 These Terms (as updated by Pax8 from time to time) will take effect upon the verification and appointment of the Partner and shall continue to apply for as long as the Partner has access to the Pax8 Platform or any Pax8 Products on behalf of itself or its Customers.
13.2. Either party may terminate these Terms and any applicable Subscription Terms, upon written notice to the other party if the other party breaches any material term or condition of these Terms, and such breach is not cured to the non-breaching party’s satisfaction within thirty (30) days of the written notice specifying the breach or is incapable of being cured.
13.3. In the event that:
(a) Pax8 terminates these Terms or any Subscription Term in accordance with Sections 13.2 or 22.2;
(b) Pax8 is required to terminate a Pax8 Product pursuant to Specific Product Terms or any other applicable terms of a third-party Vendor;
(c) Partner ceases to carry on its business;
(d) a receiver is appointed for Partner or its property;
(e) Partner makes an assignment for the benefit of its creditors;
(f) any proceedings are commenced by, for, or against Partner under any bankruptcy, insolvency, or debtor’s relief law for the purpose of seeking a reorganization of Partner’s debts, and such proceeding is not dismissed within sixty (60) calendar days of its commencement;
(g) Partner is liquidated or dissolved; or
(h) where Pax8 reasonably determines that any such events are probable,
then Pax8 may:
(i) suspend or terminate the impacted Pax8 Products; and/or
(ii) engage directly with the Customer to support with their continuity of service through the transfer of Pax8 Products to an alternative Pax8 partner or directly through Pax8.
13.4. Upon termination:
(a) Partner will immediately cease all marketing, promotion and resale of Pax8 Products and will cease to access the Pax8 Platform;
(b) Partner shall continue to be liable for any ongoing fees relating to any remaining Subscriptions Terms that cannot be terminated early in accordance with the Specific Product Terms. Pax8 will invoice Partner, according to its regular billing schedule, for all outstanding fees. Partner shall remit payment by the invoice due date.
(c) Partner shall not be entitled to any further payment due under in connection with Pax8 Products under these Terms where applicable (i.e., Billing as a Service);
(d) Partner shall provide all assistance reasonably requested by Pax8 to enable the continuation of service to Customers, including, without limitation, by assigning any Customer agreements to Pax8, communicating such assignment, and providing Pax8 with copies of relevant communications; and
(e) Partner agrees to release, hold harmless, and indemnify Pax8 from any and all claims and liabilities relating to Partner’s revenues, reputation, financial forecasts, or economic value that may result from any permitted termination by Pax8.
13.5. Expiration or termination of these Terms will not relieve either party from its obligations arising prior to such expiration or termination. Rights and obligations which by their nature would ordinarily be expected to survive the expiration or termination of these Terms will remain in effect after the termination or expiration of these Terms.
14. Marketing, Communications.
14.1. Where Pax8 makes marketing materials available to Partner such as user manuals, training materials, documentation and other materials describing Pax8 Products (Marketing Materials), Pax8 hereby grants Partner a non-exclusive, revocable, non-transferable right and license to use, reproduce, and distribute the Marketing Materials, solely for the purpose of promoting, marketing, and providing Pax8 Products to current and prospective Customers.
14.2. Partner acknowledges that to meet the obligations under these Terms, Pax8 may from time to time send electronic communications, such as newsletters, service alerts, and information, to Partner, and Partner hereby consents to receiving such communications, and will not attempt to opt-out of such communications.
14.3. Either party may issue a press release, with the non-issuing party’s prior written consent, which may not be unreasonably conditioned, delayed or withheld.
15. Proprietary Rights.
15.1. Nothing in these Terms shall act to transfer any Vendor rights, title, and interest in Vendor Products which shall remain the proprietary business asset of the supplying Vendor.
15.2. Partner retains any rights, title, and interest in any Partner Products it incorporates into the Pax8 Platform.
15.3. Pax8 retains all right, title and interest in and to the Pax8 Platform, Marketing Materials and any Pax8 Products that are owned by Pax8 as well as any derivative works thereof, shall remain proprietary business assets of Pax8, including without limitation, copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights.
15.4. Except as expressly authorized by these Terms, Partner will have no rights regarding Pax8 Products, the Marketing Materials, the Pax8 Platform, any derivative works, or individual components thereof. Partner agrees not to allege that it owns any intellectual property rights and shall not add any copyright legend on or in any Pax8 Products, Pax8 Platform, or the Marketing Materials.
15.5. Partner acknowledges and accepts that Pax8 may use any data stored in or accessed through the Pax8 Platform, or otherwise collected by Pax8 for its own internal business purposes, including for analysis, product development, product and service enhancements and for the purpose of creating and sharing insights within its marketing, on the Pax8 Platform or other public facing material providing always that such publications do not include Confidential Information. Pax8 shall retain all title to and in any aggregated, anonymized, or non-identifiable data collected or derived hereunder.
16. Mark Usage.
16.1. Marks (or the singular Mark), means any names, logos, icons, design elements, trade dress, or anything else (whether registered or unregistered) that Pax8 and/or the Vendors of any Pax8 Product may use to identify and distinguish its goods or services from those of others. Except as set forth in Section 16.2 (License), Partner is granted no right, title, or license to, or interest in, any of the Marks. Partner acknowledges and agrees that any use of the Marks by Partner will inure to the sole benefit of Pax8 or the relevant Vendor.
16.2. Pax8 hereby grants Partner a non-exclusive and non-transferrable license to use the Marks solely in connection with its advertising, promotion, and resale of Pax8 Products in accordance with these Terms and any applicable Specific Product Terms.
16.3. Pax8 and the Vendors of each Pax8 Product own and retain all proprietary rights in their respective Marks. If Partner acquires any rights in any of the Marks or any marks, names, designs or logos similar thereto, in any country in the world, by operation of law or otherwise, it will immediately, at no cost or expense to the Vendor or Pax8, assign such rights to the relevant Vendor(s) or Pax8 along with all associated goodwill, and take any reasonable action, including the execution of documents, to evidence such assignment.
16.4. Partner agrees that it will not:
(a) modify or alter the Marks in any way, including but not limited to shortening, abbreviating, or using any of them in plural, possessive, foreign-language translation, or otherwise modified forms;
(b) interfere with the rights of Pax8 or Vendors in the Marks, including challenging the use, registration, or application to register a Mark;
(c) use the Marks in any way that is misleading;
(d) use or incorporate any of the Marks in Partner’s own trademark, service mark, trade dress, trade name, website name, domain name, corporate name, or social-media handle (or any other source-identifying use), or use any trademark, service mark, trade dress, trade name, website name, domain name, corporate name, or social-media handle (or any other source-identifying use) that is likely to be confused with any of the Marks; or
(e) add anything in such close proximity to the Marks as to create a new mark with its own distinct commercial impression.
17. Compliance with Applicable Laws.
Each party shall comply with all applicable laws and regulations regarding the general conduct of business including without limitation all relevant anti-corruption and anti-bribery laws, including the United State Foreign Corrupt Practices Act, U.K. Bribery Act 2010 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
18. Export Restrictions.
Partner agrees to comply with all relevant U.S. and foreign export and import laws that apply to the Pax8 Products and any related products or services. Without limiting the foregoing, Partner represents and warrants that it is not, and that it will not market or resell the Pax8 Products to any party that is (a) listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; and (b) Partner will not (and will not permit any of its Customers to) access or use any Pax8 Products in violation of any U.S. export embargo, prohibition or restriction or with any information controlled under the U.S. International Traffic in Arms Regulations.
19. Confidential Information.
19.1. Confidential Information means information that is disclosed or otherwise made available by either party under these Terms, or to which the other party has access under these Terms, that the receiving party knows or should reasonably be expected to know is proprietary or confidential. Confidential Information includes user IDs and passwords that allow Partner to access the Pax8 Platform. It does not include information that is in the public domain or later becomes publicly available through no fault of the receiving party or that was or later is rightfully developed or obtained by the receiving party from independent sources free from any duty of confidentiality.
19.2. A party receiving Confidential Information will restrict its use to purposes necessary for the performance of the receiving party’s obligations or the exercise of the receiving party’s rights under these Terms. The receiving party will safeguard against the unauthorized disclosure of the Confidential Information to third parties using the same degree of care to prevent disclosure as it uses to protect its own information of like importance, but at least reasonable care. The receiving party will limit disclosures of Confidential Information to its employees and professional advisors to those necessary to carry out these Terms. The receiving party will inform such individuals of the limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information imposed by these Terms and will be responsible for any breach. Except as expressly authorized in these Terms, the receiving party will not use, make, or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of the disclosing party. The receiving party will notify the disclosing party immediately after learning of or having reason to suspect any breach of this Section 19. In the event that the receiving party is required to disclose Confidential Information pursuant to law, to the extent permissible under the applicable law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the disclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure. Upon the expiration or earlier termination of these Terms, the receiving party will immediately terminate all use of and return to the disclosing party all Confidential Information and all copies thereof or, at the disclosing party’s instruction, will certify in writing that it has destroyed the same.
20. Security and Data Privacy.
20.1. Each party acknowledges and agrees that it each acts as a data controller in its own right in relation to any personal data that it may collect, access or process during its fulfillment of these Terms. Each party will process personal data in accordance with all applicable privacy and data protection laws and will implement and always maintain appropriate technical and organizational measures to protect such personal data against unauthorized or unlawful processing and accidental loss, destruction, damage, alteration, and disclosure. Each party shall be responsible for meeting its own obligations under applicable laws, particularly regarding the handling of any consumer or data subject rights. Without prejudice to the foregoing, the parties agree to provide commercially reasonable assistance to the other party in respect of any obligations under privacy and data protection legislation.
20.2. Each party shall always comply with its respective obligations under all Applicable Laws relating to data privacy while performing its obligations under these Terms. Partner agrees that, if new laws and legislation apply in the field of data protection, it will fully cooperate to ensure strict compliance with such new laws and legislation, including entering into data protection agreements, as reasonably requested by Pax8.
20.3. Where either party does process personal data on behalf of the other, such processing with be in accordance with the Data Processing Agreement located here https://www.pax8.com/en-us/terms/.
20.4. Where Pax8 may be deemed a Business Associate of a covered entity as such term is defined in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended by the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009, Public Law 111-005 and the regulated regulations promulgated by U.S. Department of Health and Human Services (collectively, HIPAA), the Business Associate Addendum located at here https://www.pax8.com/en-us/terms/ shall apply.
21. Disclaimer of Warranties.
PARTNER AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE EXTENT PERMITTED BY LAW, PAX8 DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY, NONINFRINGEMENT, CONDITION OR QUALITY OF ANY PAX8 PRODUCTS, PROFESSIONAL SERVICES, THE MARKETING MATERIALS, THE PAX8 PLATFORM, TECHNICAL SUPPORT SERVICES, OR BILLING AS A SERVICE. PARTNER RECEIVES PAX8 PRODUCTS, THE MARKETING MATERIALS, THE PAX8 PLATFORM AND ANY TECHNICAL SUPPORT SERVICES OR BILLING AS A SERVICE FROM PAX8 “AS-IS.” PAX8 SHALL NOT BE LIABLE TO PARTNER OR ANY CUSTOMER FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY ANY PAX8 PRODUCT, THE MARKETING MATERIALS, THE PAX8 PLATFORM, OR ANY OTHER PAX8 PRODUCT OR SERVICE, OR BY THE CUSTOMER OR ANY VENDOR THEREOF, OR BY ANY REPAIR, SERVICE OR ADJUSTMENT THERETO OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF, OR FOR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED. PARTNER ACKNOWLEDGES THAT DISSATISFACTION WITH ANY PAX8 PRODUCTS, THE MARKETING MATERIALS, THE PAX8 PLATFORM, OR ANY OTHER PAX8 PRODUCT OR SERVICE WILL NOT RELIEVE PARTNER OF ANY OBLIGATION UNDER THESE TERMS. THIS SECTION 21 SHALL APPLY TO PARTNER AND ANY OF PARTNER’S CUSTOMERS. IN ADDITION, PAX8 MAKES NO REPRESENTATION OR WARRANTY AS TO THE AVAILABILITY OR CONTINUATION OF ANY SPECIFIC PAX8 PRODUCT OR SERVICE.
22.1. Partner will indemnify, defend, and hold harmless Pax8 from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with a third-party claim relating to:
(a) Partner or Customer’s violation of these Terms;
(b) Partner’s misrepresentations relating to Pax8; or
(c) Pax8 Products regardless of the form of action.
22.2. Pax8 will indemnify, defend, and hold harmless Partner from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with a third-party claim that a Customer’s use of the Pax8 Platform infringes a United States patent, copyright, or trademark. In the event that a claim of infringement is made or threatened, Pax8 may, at its option:
(a) replace or modify the Pax8 Platform to render it non-infringing;
(b) secure for Partner and/or the affected Customers the right to use the Pax8 Platform; or
(c) terminate any impacted Pax8 Products.
22.3. Each party will provide the other party with prompt written notice of any claim, demand, or action for which it is seeking or may seek indemnification hereunder. The indemnifying party will have the right to control the defense; provided that, it will:
(a) keep the indemnified party fully informed concerning the status of any litigation, negotiations or settlements of any such claim, demand or action; and
(b) allow the indemnified party, at its own expense, to participate in litigation, negotiations and settlements with counsel of its own choosing; and provided further that, the indemnifying party will not have the right to settle any claim without the indemnified party’s written consent if such settlement arises from or is part of any criminal action, suit or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the indemnified party.
23. Limitation of Liability.
EXCEPT WITH RESPECT AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, PAX8’S AGGREGATE LIABILITY UNDER THESE TERMS, WHETHER FOR BREACH OF CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY, IS LIMITED TO THE AMOUNT PAID BY PARTNER HEREUNDER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL PAX8 BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS, PAX8 PRODUCTS, THE PAX8 PLATFORM, PAX8 SERVICES, OR THE MARKETING MATERIALS (INCLUDING LOSS OF BUSINESS, THE COSTS OF PROCURING SUBSTITUTE SERVICES, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF PAX8 HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, SUCH LIMITATION OF LIABILITY SHALL NOT LIMIT CLAIMS FOR INDEMNIFICATION.
24. Contracting Entity and Governing Law.
24.1. These Terms shall inure to the benefit of Pax8 Inc, a Delaware company based in Colorado, on behalf of itself, its subsidiaries, and affiliates.
24.2. The Pax8 billing entity will be as set out in the applicable invoice based on the country associated with your account, which shall be determined in the order of: a) your tax registration if provided to Pax8; b) where your payment method is issued if your contact address is also in that country; or c) where your billing address is located.
24.3. Partner and Pax8 agree to the governing law, without regard conflicts of law rules, and to the exclusive jurisdiction of the applicable courts as [email protected] determined by the region in which the Partner is domiciled, in accordance with the table below.
|Governing Law and Jurisdiction
|Pax8 entity for Service
|Contact Information for Service
|Mailing Address for Service
|North America, Rest of World
T: +1 855 884 7298
|5500 S. Quebec St.,
Greenwood Village, CO, USA
|Europe, Middle East, and Africa
|England and Wales
|Pax8 UK, Ltd.
T: 0800 335 7298
|No. 2 The Distillery
1 & 2 Avon Street
Bristol BS2 0QH, United Kingdom
|Pax8 Australia Pty Ltd
T: +1 855 884 7298
|Level 1, 6 Riverside Quay
Victoria, Australia, 3006
25.1. Assignment. Partner shall not assign, subcontract, or otherwise transfer (by merger, operation of law or in any other manner) these Terms, Special Product Terms, or any Pax8 Product without the prior written consent of Pax8, not to be unreasonably withheld. Any attempted assignment, subcontract or other transfer without such consent will be void. Either party may assign these Terms to a successor in interest to all or substantially all of its business or assets, provided that such successor is not reasonably deemed to be a competitor of the other party. These Terms will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
25.2. Equitable Relief. Each party acknowledges that any breach or threatened breach of these Terms involving an unauthorized use of the other party’s Confidential Information or intellectual property, or use of Marks, may result in irreparable harm for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, the non-breaching party will be entitled to seek injunctive or other equitable relief, as appropriate, without posting any bond.
25.3. Attorney and Expert Fees. The prevailing party in any controversy arising out of these Terms will be entitled to recover its reasonable attorney and expert fees and costs, in addition to any other relief to which it may be entitled.
25.4. Relationship of the Parties. These Terms do not make either party the agent of the other, or create a partnership, joint venture, or similar relationship between the parties. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to these Terms, each party will be acting as an independent contractor.
25.5. Inspection. In the event Pax8 is audited or reasonably believes that Partner is not in compliance with these Terms, including, without limitation, with respect to the Customer Authorized Usage, Partner will permit Pax8 or its representatives to review Partner’s facilities and records to ensure compliance with these Terms. Pax8 will give Partner at least ten (10) days’ advance notice of any such inspection and will conduct any such inspection during normal business hours in a manner that does not unreasonably interfere with Partner’s operations. Pax8 undertakes to keep any information accessed during such inspection strictly confidential. a. Pax8 shall not provide such information to any third party, unless required by law.
25.6. Notices. All notices and consents provided for hereunder will be in writing and delivered:
(a) in person;
(b) by a nationally recognized next day courier service;
(c) by first class registered or certified mail, postage prepaid;
(d) by any other means described in these Terms; or
(e) by electronic mail to the address of the party specified in these Terms or such other address as either party may specify in writing, providing always that a copy is also sent by email.
Notices shall be effective upon the earliest of: (i) receipt by the party to which notice is given; (ii) on the fifth (5th) day following mailing, or (iii) on the day after sending such notice by overnight courier. Pax8 may also provide any notice to you by posting a notice on the Pax8 website or the Pax8 Platform (which shall be effective upon posting) or sending a message to the email address then associated with your account (which shall be effective upon sending). It is your responsibility to keep your email address current.
25.7. Waiver. No failure by either party to take any action or assert any right hereunder will be deemed a waiver of such right. Any waiver must be in writing from a suitably authorized person within Pax8.
25.8. Severability. If any provision of these Terms is held unenforceable or invalid under any applicable law or court decision, such unenforceability or invalidity will not render these Terms unenforceable or invalid, and such provision will be changed and interpreted to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.
25.9. Force Majeure. If either party is unable to perform any of its obligations under these Terms because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, or other event beyond the reasonable control of the affected party (a Force Majeure Event), the party who has been so affected will immediately give notice to the other party and will use commercially reasonable efforts to resume performance. Upon receipt of such notice, all obligations under these Terms will be immediately suspended for the duration of the Force Majeure Event. Notwithstanding the foregoing, payment obligations shall never be excused or suspended for a Force Majeure Event.
25.10. Entire Agreement. These Terms (including any applicable Specific Product Terms), as updated by Pax8 from time to time, constitutes the complete agreement between the parties relating to the subject matter herein and shall supersede all prior and concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the same.
25.11. Language. Unless otherwise agreed in writing, all communications and notices made or given pursuant to these Terms must be in the English language. If Pax8 provides a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
25.12. No Third-Party Beneficiaries. Except as otherwise set forth in these Terms, these Terms does not create any third-party beneficiary rights of any individual or entity that is not a party to these Terms.