Terms
C3 International Partner Agreement
Last updated: July 7, 2022
THIS PAX8, INC. PARTNER PROGRAM C3 INTERNATIONAL PARTNER AGREEMENT (this “Agreement”) forms a legally binding agreement and is made and entered into by and among the Pax8 Contracting Party specified in Section 16.11 below, also referred to as “Pax8,” “we,” “us,” or “our”) and you, the entity you represent (“C3 Partner”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Pax8 Products (the “Effective Date”). You represent and warrant to us that you are lawfully able to enter into contracts (e.g. you are not a minor). If you are an individual entering into this Agreement on behalf of an entity, such as the company you work for, you represent and warrant that you have the legal authority to bind that entity to this Agreement.
In consideration of the mutual promises contained in this Agreement, Pax8 and C3 Partner agree to all terms of the Agreement effective as of the Effective Date.
Defined terms used in this Agreement with initial letters capitalized have the meanings given in Section 16 below. If you are an individual entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind that entity to this Agreement.
C3 Partner Name:
By:
Name:
Title:
Signature Date:
Address:
Background
A. Pax8 is a cloud commerce marketplace that distributes cloud-based subscription services.
B. Pax8 has developed the Pax8 Platform and desires to promote, market, and sell Pax8 Products.
C. C3 Partner desires to obtain the right to use the Pax8 Platform and to act as an independent reseller of Pax8 Products to promote, market, and sell Pax8 Products as set forth herein.
1. C3 Partner Appointment.
1.1. Appointment. Under the terms and subject to the conditions set forth herein, Pax8 hereby appoints C3 Partner as an independent, nonexclusive authorized reseller or, in the case of an MSP, a provider of Pax8 Products, and C3 Partner hereby accepts such appointment.
1.2. Geographic Limitation. C3 Partner may promote and resell Pax8 Products only to C3 Partner’s customers in the Territory.
1.3. No 2-Tier Resale. Unless expressly authorized by Pax8 in writing, C3 Partner may promote, provide and resell Pax8 Products only to C3 Partner’s customers for internal business use, and not for resale or distribution. C3 Partner may not sell Pax8 Products to other resellers or distributors, and Customers may not offer Pax8 Products for further resale or distribution.
1.4. Promotion. C3 Partner will use reasonable efforts to promote, market, and sell Pax8 Products to Customers. C3 Partner will make no false or misleading statements regarding Pax8 Products, Pax8, or any Vendor. Further, C3 Partner will make no warranty regarding Pax8 Products, or representation on behalf of Pax8 or any other Vendor. C3 Partner will at all times perform its activities hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by Pax8. C3 Partner will: (a) conduct business in a manner that reflects favorably at all times on Pax8 Products and the Pax8 Platform and the good name, goodwill, and reputation of Pax8 and all other Vendors; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Pax8 or any other Vendor, Pax8 Products, the Pax8 Platform, and the public; (c) make no false or misleading representations with respect to Pax8 or any other Vendor, Pax8 Products or the Pax8 Platform; and (d) make no representations on behalf of Pax8 or any other Vendor with respect to Pax8 Products, the Pax8 Platform or any Pax8 Technical Support Services or Billing as a Service performed by Pax8.
1.5. Pax8 Platform.
1.5.1. Pax8 will make the Pax8 Platform accessible to C3 Partner, subject to the terms of this Agreement and any other terms or procedures provided by Pax8. C3 Partner agrees that Pax8 has the right to suspend such access in its sole discretion for security or any other reason.
1.5.2. Except as expressly authorized by Pax8 in writing, C3 partner must provide Pax8 with a valid automated payment method as a condition of using the Pax8 Platform.
1.5.3. C3 Partner may permit only its employees and Customers to access and use the Pax8 Platform. Such access is limited to the purposes of carrying out this Agreement.
1.5.4. C3 Partner may create a Partner Catalog to promote, sell, bill, and manage Partner Products. C3 Partner is solely responsible for providing sales and technical support for any Partner Products.
1.6. Permits and Licenses. C3 Partner will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement.
1.7. Compliance with Applicable Laws. C3 Partner shall comply, and shall ensure that any third parties performing any activities related to the Pax8 Products on C3 Partner’s behalf comply, with all Applicable Laws and shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Pax8, Pax8 Products, Customers or to the public. C3 Partner represents and warrants that C3 Partner’s sales activities and receipt of any fees under this Agreement are consistent with Applicable Laws. C3 Partner shall promptly inform Pax8 in writing upon becoming aware of any violations of Applicable Laws in connection with this Agreement. Without limiting the generality of C3 Partner’s obligations under this Agreement, C3 Partner hereby represents and warrants that:
(a) To the extent in violation of any Applicable Laws, no portion of any fees paid or payable to C3 Partner will be paid to, or accrued directly or indirectly for the benefit of, any person, firm, corporation or other entity, other than C3 Partner.
(b) C3 Partner has not, and will not at any time, directly or indirectly, pay, offer, give or promise to pay or give, or authorize the payment of, any monies or any other thing of value to any of the following, in violation of any Applicable Laws: (i) Government Official; (ii) other person acting in an official capacity for or on behalf of any Government Official; (iii) other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any Government Official; (iv) other person, firm, corporation or other entity with knowledge that some or all of those monies or other thing of value will be paid over to any Government Official; or (v) Close Family Member of any of the foregoing. It is the intent of the parties hereto that no payments or transfers of anything of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage.
(c) Neither it, nor any of its employees, directors, officers, agents or affiliates are listed on, nor affiliated with, any entity or person that is listed on the U.S. Commerce Department’s Denied Persons List, Entity List, or Unverified List, the U.S. State Department’s Nonproliferation Sanctions List, the U.S. State Department’s Arms Export Control Act Debarred List, or the U.S. Treasury Department’s List of Specially Designated Nationals, Foreign Sanctions Evaders List, Sectoral Sanctions Identifications List, Palestinian Legislative Council List, List of Foreign Financial Institutions Subject to Part 561, and Blocked Persons List (collectively, the “Restricted Party Lists”). C3 Partner further confirms that it does not have a business relationship with any person or entity identified on any of the Restricted Party Lists.
(d) C3 Partner shall comply with all Applicable Laws related to import, sanctions, anti-boycott, export, and re-export control laws that apply to Pax8 Products and any related products or services, as well as end-user, end-use, and destination restrictions issued by national governments, including all such laws and regulations that apply to a U.S., U.K., or EU company such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use Pax8 Products. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by United Nations Security Council, the U.S. Government (e.g. the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. Pax8 Products are subject to the EAR and thus may not be exported, re-exported or downloaded by any person in any controlled countries under the EAR. Moreover, Pax8 Products may not be exported, re-exported or downloaded by any person or entity subject to United States or international sanctions, regardless of location. C3 Partner should consult www.bis.doc.gov and https://home.treasury.gov/policy-issues/office-of-foreign-assets-control-sanctions-programs-and-information for the Restricted Party Lists that C3 Partner must check before accessing the Pax8 Platform or engaging in discussions with a potential Customer. C3 Partner agrees that these export control lPax8 govern use of Pax8 Products and that no data, information, software program and/or materials resulting from Pax8 Products or related products or services, will be exported, directly or indirectly, in violation of these lPax8.
1.8. Specific Product Terms. In addition to this Agreement, some Pax8 Products are subject to additional terms as set forth in the Specific Product Terms. Any licenses provided to you may be subject to these Specific Product Terms. New Specific Product Terms may be added from time to time. If there is any conflict between the terms in this Agreement and the Specific Product Terms, the Specific Product Terms govern in relation to that Pax8 Product. By selling any Pax8 Product with Specific Product Terms, you agree that you have reviewed and will comply with the Specific Product Terms applicable to such Pax8 Product. The Specific Product Terms are incorporated into this Agreement by reference.
1.9. All Rights Reserved. All rights not specifically granted by Pax8 hereunder are reserved by Pax8. Without limiting the generality of the foregoing, Pax8 reserves the right to advertise, promote, market and sell Pax8 Products, and to appoint third parties to advertise, promote, market and resell Pax8 Products worldwide, including, without limitation, within the Territory.
2. Customer Agreement, Usage, and Information.
2.1. Customer Agreement. Prior to selling any Pax8 Products to a Customer, C3 Partner must have entered into an end user 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 this Agreement;
(b) obtains the Customer’s consent to the Vendors’ required terms and conditions, which may be found at https://www.pax8.com/en-us/terms/ (“Pax8 Products – End User License Agreements”), except to the extent C3 Partner is acting as an MSP and a particular 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 (“Customer Agreement”), if applicable.
2.2. Usage and Information. C3 Partner’s right to sell Pax8 products in the Territory is contingent on C3 Partner’s compliance with the following additional terms:
(a) C3 Partner will use commercially reasonable efforts to ensure that each Customer will use Pax8 Products only for internal business purposes, and will not resell, rent or lease Pax8 Products to any third party;
(b) C3 Partner will use commercially reasonable efforts to ensure that each Customer uses Pax8 Products only up to the number of licenses purchased by the Customer or within other limitations on purchase (“Customer Authorized Usage”);
(c) C3 Partner will use commercially reasonable efforts to ensure that Customer usage of Pax8 Products is terminated upon the cancellation or expiration of the Customer’s subscription or other right to use Pax8 Products or the transfer of such subscription or right away from C3 Partner;
(d) C3 Partner will provide Pax8 all necessary information about the Customer and the Customer Authorized 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, the Customer Authorized Usage, and, to the extent C3 Partner has elected Billing as a Service, Customer billing information.
3. Quoting, Ordering and Technical Support.
3.1. Quoting and Ordering. C3 Partner is solely responsible for all quoting and ordering for its Customers through the Pax8 Platform. Pax8 reserves the right to reject a Customer order.
3.2. Customer Support. Unless C3 Partner has elected Pax8 Technical Support Services (Exhibit A), C3 Partner is solely responsible for providing support for its Customers for Pax8 Products. Where a customer support issue requires Pax8 involvement, C3 Partner is responsible for contacting Pax8.
3.3. Pax8 Technical Support to C3 Partner. Subject to the terms and conditions of this Agreement, including, without limitation, the payment of all relevant fees and charges, Pax8 will provide to C3 Partner reasonable technical support for Pax8 Products. Such support will be provided via email, telephone or other methods adopted by Pax8.
3.4. Customer Contact. In the event that a Customer of C3 Partner contacts Pax8 for customer support and C3 Partner has not delegated customer support to Pax8 by electing Technical Support Services and paying the associated fees, in general or for the Pax8 Product at issue, Pax8 may: (a) direct the Customer to contact C3 Partner directly, or (b) take other measures to address the situation in a commercially reasonable manner.
4. Subscription Term.
4.1. Term. Subscription Terms for Pax8 Products and Technical Support Services are set forth in the Pax8 Platform (each a “Subscription Term”). For Pax8 Products and Technical Support Services available and ordered on a month-to-month or annual basis (including one-, two-, or three-year options), the Subscription Term begins on the first day of the calendar month following the order date and runs for the designated term (“Initial Term”).
4.2. Partial Month. Any fees for subscription products or services provided for a partial month prior to the beginning of the Initial Term are prorated based on the number of days remaining in the calendar month.
4.3. Renewal. The Subscription Term automatically renews for successive terms equal to the Initial Subscription Term under the same conditions and financial commitments (“Renewal Term”) unless cancelled prior to the beginning of the Renewal Term, or upon expiration or cancellation of this Agreement.
4.4. Additional Licenses. Any fees for licenses added to an existing subscription during the Initial Term or a Renewal Term shall be prorated based on the time remaining in the existing Subscription Term, such that the term for the additional licenses co-terminates with the existing Subscription Term.
5. Prices, Billing, Taxes, Charges.
5.1. Prices to C3 Partner. Fees for Pax8 Products, Technical Support Services, and Billing as a Service are set forth in the Pax8 Platform. C3 Partner agrees to pay Pax8 the current fees for the products/services it orders using one of the payment methods Pax8 supports. Pax8 reserves the right to increase the pricing of, discontinue, or reduce the availability of any or all Pax8 Products and/or services set forth in the Pax8 Platform upon thirty (30) days’ notice provided to C3 Partner, including notice through the Pax8 Platform. Pax8 reserves the right to decrease prices or add new Pax8 Products or Technical Support Services without notice.
5.2. Prices to Customers. Pax8 may provide Suggested Retail Prices for Pax8 Products, but the prices C3 Partner charges its Customers for Pax8 products are in the sole discretion of C3 Partner.
5.3. Customer Billing and Collections. Except as provided in Section 5.6 (Billing as a Service), C3 Partner is solely responsible for billing all of its Customers and collecting Customer payments. C3 Partner acknowledges that its payment obligations to Pax8 must be satisfied in full, regardless of the billing or collections status of any of C3 Partner’s Customers.
5.4. Invoicing. Pax8 will bill C3 Partner on or before the fifth day of the calendar month for: (a) advance payment for 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.
5.5. Automatic Payments. Unless another payment arrangement is approved by Pax8 in advance and in writing, C3 Partner authorizes Pax8 to automatically charge its payment method when payment is due. C3 Partner agrees that it will not dispute Pax8’s recurring billing with C3 Partner’s financial institution so long as the transaction corresponds to the terms of the order.
5.6. Billing as a Service. C3 Partner may elect to have Pax8 bill its customers, subject to the following terms:
5.6.1. Pax8 Products. Billing as a Service is available for all Pax8 Products.
5.6.2. Partner Products. Billing as a Service is not available for Partner Products.
5.6.3. Payment to C3 Partner. Upon successful collection from the Customer, Pax8 will pay C3 Partner: the difference between (a) the amount collected from the Customer for Pax8 Product(s), and (b) C3 Partner’s cost for such Pax8 Products, plus all applicable Technical Support Services, Billing as a Service fees, and any other fees due to Pax8 from C3 Partner or the Customer. Payment will be by check or other equivalent method.
5.6.4. Refunds; Chargebacks. For any amount collected from Customers but credited after payment has been remitted to C3 Partner, Pax8 may charge back or set off from future payments the amount of the credit.
5.6.5. Collections Responsibility. Regardless of the election of Billing as a Service, C3 Partner is ultimately 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 C3 Partner’s payment method. C3 Partner agrees to provide to Pax8, and keep current, a payment source for any amounts due to Pax8, to the extent that the Customer does not pay fees when due.
5.6.6. Customer Authorization. C3 Partner shall provide reasonable assistance to Pax8 in obtaining the Customer’s authorization for Pax8 to charge its payment account. Under no circumstances will C3 Partner attempt to initiate or continue Billing as a Service until Customer authorization is obtained.
5.6.7. Revocation of Customer Consent. Should the Customer revoke the authorization addressed in Section 5.6.6 at any time, Pax8 will promptly remove the applicable payment account information from the Pax8 Platform and cease billing the Customer. C3 Partner will then be responsible for payment, as set forth in Section 5.6.5.
5.7. Disputes. C3 Partner may dispute a billing discrepancy within 30 calendar days of the invoice date. Disputes can be submitted by emailing Pax8 at [email protected]. Disputes must include the invoice number and an explanation of the dispute. Pax8 will use commercially reasonable efforts to respond to the dispute within seven (7) business days. Under no circumstances will C3 Partner withhold payment to Pax8 for any undisputed amount.
5.8. Expenses. Except as otherwise mutually agreed in writing, C3 Partner will be responsible for all costs associated with its performance under this Agreement, including without limitation, and if applicable, the performance of C3 Partner’s responsibilities in connection with the Technical Support Services and Billing as a Service provided by Pax8.
5.9. Effect of Cancellation. Canceling during a Subscription Term prevents Pax8 Products, Technical Support Services, or Billing as a Service from automatically renewing for an additional term. Pax8 does not issue partial refunds or credits for the remaining portion of the then-current Subscription Term.
5.10. Late Payments. Amounts not paid to Pax8 when due will accrue interest 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. Upon the nonpayment of any amounts due, Pax8 reserves the right to: (a) suspend Pax8 Product(s) to C3 Partner and/or its Customers; and/or (b) cease accepting new orders for Pax8 Products.
5.11. Taxes. Each party is responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All amounts due and payable to Pax8 hereunder will be exclusive of applicable charges, fees, levies, imposts, duties, tariffs or other assessments imposed by or payable to any federal, state, local or foreign tax or governmental authority, including without limitation, sales, use, goods, services, value added, transfer, customs, personal property, stamp duty, excise, withholding and other obligations of the same or similar nature (individually and collectively, “Taxes”) based or measured thereon. C3 Partner will be responsible for the payment of all such Taxes, excluding Taxes based on Pax8’s income, unless C3 Partner provides Pax8 with an appropriate certificate of exemption from such taxes. C3 Partner will indemnify and hold Pax8 harmless from any obligation to pay to any governmental entity any employer statutory Taxes, withholding Taxes, social security Taxes or other Taxes in connection with C3 Partner’s performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting therefrom. To the extent that Pax8 bills one or more of C3 Partner’s Customers, C3 Partner agrees that Pax8 shall charge any Taxes reasonably required to be paid by Pax8, and Pax8 agrees to pay such Taxes to the appropriate governmental authority, as required.
6. Term and Termination.
6.1. Term. The initial term of this Agreement will commence on the Effective Date and will continue for a period of one year. Thereafter, this Agreement will automatically renew for successive one-year terms unless either party provides written notice of its intention not to renew the Agreement at least sixty (60) days prior to the end of the then-current term. Unless otherwise terminated as set forth herein, the initial term and each applicable renewal term will constitute the “Term” of this Agreement.
6.2. Material Breach. Either party may terminate this Agreement upon written notice to the other party if the other party breaches any material term or condition of this Agreement, and such breach is not cured to the non-breaching party’s satisfaction within thirty (30) days of the written notice specifying the breach.
6.3. Insolvency. This Agreement will terminate automatically in the event that: (a) a receiver is appointed for C3 Partner or its property; (b) C3 Partner makes an assignment for the benefit of its creditors; (c) any proceedings are commenced by, for, or against C3 Partner under any bankruptcy, insolvency, or debtor’s relief law for the purpose of seeking a reorganization of C3 Partner’s debts, and such proceeding is not dismissed within sixty (60) calendar days of its commencement; or (d) C3 Partner is liquidated or dissolved.
6.4. Other. Either party may terminate and cancel this Agreement immediately by notice to the other if: (a) the other party ceases to carry on its business; (b) Pax8 exercises its option to terminate pursuant to Section 12.2(c) (Indemnification by Pax8); (c) Pax8 decides to terminate pursuant to Section 14.1 (Assignment); or (d) Pax8 is required to terminate pursuant to any license terms of a third-party Vendor.
6.5. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement, C3 Partner will immediately cease all marketing, promotion, sales, use and performance of Pax8 Products, Technical Support Services, and Billing as Service, and will cease to access the Pax8 Platform.
6.6. Additional Provisions Applicable to Termination. If termination of this Agreement is based on Material Breach (Section 6.2) by C3 Partner, Insolvency (Section 6.3) of C3 Partner, or the cessation of C3 Partner’s business under Section 6.4(a): (a) C3 Partner agrees that Pax8 shall be expressly permitted to continue to provide Pax8 Products and perform the Technical Support Services directly to Customers; (b) C3 Partner shall not be entitled to any further payment in connection with Pax8 Products under this Agreement; and (c) C3 Partner agrees to cooperate with Pax8 to enable the continuation of service to Customers, including, without limitation, by assigning Customer Agreements to Pax8, communicating such assignment, and providing Pax8 with copies of relevant communications.
6.7. No Liability for Termination. Neither party will be liable for any damages arising out of the termination of this Agreement in accordance with this Section 6. C3 Partner acknowledges and agrees that Pax8 is not responsible for C3 Partner’s dependence on revenues hereunder, and C3 Partner agrees to release, hold harmless and indemnify Pax8 from any and all claims and liabilities relating to C3 Partner’s revenues, financial forecasts or economic value that may result from any termination by Pax8 of this Agreement as permitted hereunder.
6.8. Continuing Payment Obligation. Expiration or termination of this Agreement does not relieve C3 Partner of payment obligations incurred during the Term of the Agreement. Pax8 will invoice C3 Partner, according to its regular billing schedule, for all outstanding fees. C3 Partner shall remit payment by the invoice due date.
6.9. Survival. Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature would ordinarily be expected to survive the expiration or termination of this Agreement will remain in effect after the termination or expiration of this Agreement.
7. Marketing, Communications.
7.1. Marketing Materials. Pax8 may make available to C3 Partner marketing materials including, but not limited to, user manuals, training materials, documentation and other materials describing Pax8 Products (“Marketing Materials”). During the Term, Pax8 hereby grants C3 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.
7.2. Communications. C3 Partner acknowledges that Pax8 may from time to time send electronic communications, such as newsletters, service alerts, and information, to C3 Partner, and C3 Partner hereby consents to receiving such communications, and will not attempt to opt-out of such communications.
7.3. Press Releases. 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.
8. Proprietary Rights.
8.1. Pax8 Products. Each Vendor retains all right, title, and interest in Pax8 Product(s) it supplies. Pax8 Products remain the proprietary business asset of the supplying Vendor.
8.2. Partner Products. C3 Partner retains any rights in Partner Products it incorporates into the Pax8 Platform. Pax8 does not acquire ownership rights in Partner Products.
8.3. Pax8 Platform and Marketing Materials. The Pax8 Platform and Marketing Materials remain proprietary business assets of Pax8. Pax8 retains all right, title and interest in and to the Pax8 Platform and Marketing Materials, as well as any derivative works thereof, including without limitation, copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights. Except as expressly authorized by this Agreement, C3 Partner will have no rights with respect to Pax8 Products, the Marketing Materials, the Pax8 Platform, or any derivative works or individual components thereof. C3 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.
9. Trademarks.
9.1. Definition. “Trademarks” means all names, marks, logos, designs, trade dress and other brand designations used by any Vendor or Pax8 in connection with their respective products and services. Except as set forth in Section 9.2 (License), C3 Partner is granted no right, title or license to, or interest in, any of the Trademarks. C3 Partner acknowledges and agrees that any use of the Trademarks by C3 Partner will inure to the sole benefit of Pax8 or the relevant Vendor.
9.2. License. Pax8 hereby grants C3 Partner a license to use the Trademarks solely in connection with its advertising, promotion and resale of Pax8 Products in the Territory. C3 Partner acquires no right, title, or interest in the Trademarks other than the foregoing limited license.
9.3. Ownership. Pax8 and the Vendors of each Pax8 Product own and retain all proprietary rights in the Trademarks. C3 Partner agrees not to take any action to contest Pax8’s or any Vendor’s ownership of the Trademarks, or use, employ, or attempt to register in any country any trademark, service mark, or trade name that is confusingly similar to the Trademarks, including the registration of any Internet domain names using any Trademark or product name or common misspelling or variant thereof, unless authorized in advance and in writing by Pax8. If C3 Partner acquires any rights in any of the Trademarks 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.
10. Confidential Information.
10.1. Definition. “Confidential Information” means information that is disclosed or otherwise made available by either party under this Agreement, or to which the other party has access under this Agreement, 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 C3 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.
10.2. The Receiving Party’s Obligations. 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 this Agreement. During the term of this Agreement and thereafter, the receiving party will safeguard against the 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 this Agreement. The receiving party will inform such individuals of the limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information imposed by this Agreement and will be responsible for any breach. Except as expressly authorized in this Agreement, 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 10. 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.
10.3. Return of Confidential Information. Upon the expiration or earlier termination of this Agreement, 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.
11. Disclaimer of Warranties.
Pax8 agrees to assign to C3 Partner and/or C3 Partner’s Customers any of the Vendors’ warranties received by Pax8 and intended for end customers with respect to Pax8 Products. C3 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, THE MARKETING MATERIALS, THE PAX8 PLATFORM, TECHNICAL SUPPORT SERVICES, OR BILLING AS A SERVICE. C3 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 C3 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, TECHNICAL SUPPORT SERVICES OR BILLING AS A 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. C3 PARTNER ACKNOWLEDGES THAT DISSATISFACTION WITH ANY PAX8 PRODUCTS, THE MARKETING MATERIALS, THE PAX8 PLATFORM, TECHNICAL SUPPORT SERVICES AND/OR BILLING AS A SERVICE WILL NOT RELIEVE C3 PARTNER OF ANY OBLIGATION UNDER THIS AGREEMENT. THIS SECTION SHALL APPLY TO C3 PARTNER AND ANY OF C3 PARTNER’S CUSTOMERS. In addition, Pax8 makes no representation or warranty as to the availability or continuation of any specific Pax8 Product, Technical Support Service, or Billing as a Service.
12. Indemnification.
12.1. Indemnification by C3 Partner. C3 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) C3 Partner’s violation of the rights and licenses granted herein; (b) any acts or omissions of C3 Partner’s Customers and/or prospective Customers; or (c) C3 Partner’s misrepresentations relating to Pax8, its products and services, Pax8 Products, Technical Support Services, Billing as a Service, or this Agreement, regardless of the form of action.
12.2. Indemnification by Pax8. Pax8 will indemnify, defend and hold harmless C3 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 C3 Partner and/or the affected Customers the right to use the Pax8 Platform; or (c) terminate this Agreement in accordance with this Section 12.2 and Section 6 (Term and Termination).
12.3. Additional Obligations Regarding Indemnification. 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 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.
13. Limitation of Liability.
EXCEPT WITH RESPECT AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, PAX8’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY, IS LIMITED TO THE AMOUNT PAID BY C3 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 THIS AGREEMENT, PAX8 PRODUCTS, THE PAX8 PLATFORM, THE TECHNICAL SUPPORT SERVICES, BILLING AS A SERVICE, OR THE MARKETING MATERIALS (INCLUDING LOSS OF BUSINESS, 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 PURSUANT TO SECTION 12 (INDEMNIFICATION).
14. Security and Data Privacy.
14.1. Without limiting Section 11 or any other provisions of this Agreement, Pax8 will implement reasonable and appropriate measure designed to help secure your data or other information against accidental loss, access, or disclosure.
14.2. Service Attributes. To provide billing and administrative services, Pax8 may process your Service Attributes in your Account Country and/or in the United States. To provide you with support services initiated by you and investigate fraud, abuse, or violations of this Agreement or Vendor EULAs, we may process Service Attributes where we maintain our support and investigation personnel.
14.3. The Data Processing Addendum attached hereto as Exhibit B and available at https://www.pax8.com/en-us/terms/ applies to C3 Partners whose Account Country is in the European Economic Area or to whom the European Union’s GDPR otherwise applies.
15. Miscellaneous.
15.1. Assignment. Pax8 is entering into this Agreement with C3 Partner based in substantial part on the unique attributes that C3 Partner and its business offer; therefore, neither this Agreement nor any of C3 Partner’s rights or obligations hereunder may be assigned, subcontracted or otherwise transferred (by merger, operation of law or in any other manner) by C3 Partner without the prior written consent of Pax8, which will not be unreasonably withheld. Any attempted assignment, subcontract or other transfer of this Agreement or any of C3 Partner’s rights or obligations hereunder in contravention of this Section 14.1 will be void ab initio and will be considered a material breach of this Agreement. This Agreement will be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Pax8 may assign this Agreement to a successor in interest to all or substantially all of its business or assets.
15.2. Governing Law. The Governing Law, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
15.3. Disputes. Any dispute arising under or relating to this Agreement will be adjudicated in the Governing Institutions, and you consent to the jurisdiction and venue of the Governing Institutions, subject to the additional provisions below.
15.4. Equitable Relief. Each party acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of the other party’s Confidential Information or intellectual property, or use of the Trademarks, will 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. If the non-breaching party seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement involving an unauthorized use of its Confidential Information or intellectual property, or misappropriation of the Trademarks, the other party agrees that it will not allege in any such proceeding that the non-breaching party’s remedy at law is adequate. If the non-breaching party seeks any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will it be deemed to have made an election of remedies.
15.5. Attorney and Expert Fees. The prevailing party in any controversy arising out of this Agreement 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.
15.6. Relationship of the Parties. This Agreement does 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 this Agreement, each party will be acting as an independent contractor.
15.7. Inspection. In the event Pax8 is audited or reasonably believes that C3 Partner is not in compliance with this Agreement, including, without limitation, with respect to the Customer Authorized Usage, C3 Partner will permit Pax8 or its representatives to review C3 Partner’s facilities and records to ensure compliance with this Agreement. Pax8 will give C3 Partner at least five (5) days’ advance notice of any such inspection and will conduct any such inspection during normal business hours in a manner that does not interfere with C3 Partner’s normal operations. Pax8 undertakes to keep any information accessed during such inspection strictly confidential and to use such information only for compliance purposes. Pax8 shall not provide such information to any third party and shall not use such information to directly approach or deal with any of C3 Partner’s Customers.
15.8. Notices. All notices and consents provided for hereunder will be in writing and will be 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 facsimile, € by any other means described in this Agreement, or (f) by electronic mail to the address of the party specified in this Agreement or such other address as either party may specify in writing. Notwithstanding the foregoing, for product- and pricing-related notices only, notice from Pax8 to C3 Partner shall also be deemed delivered if and when placed on the Pax8 Platform, and C3 Partner agrees to regularly check the Pax8 Platform for notices. Notices shall be effective upon the earliest of: (w) posting on the Pax8 Platform (if applicable), (x) receipt by the party to which notice is given, (y) on the fifth day following mailing, or (z) on the day after sending such notice by overnight courier. The parties’ current addresses are as follows:
If to Pax8:
Pax8, Inc.
5500 South Quebec Street, Greenwood Village, CO 80111
Attn: Chief Financial Officer
Email: [email protected]
If to C3 Partner:
We may provide any notice to you under this Agreement by: (i) providing notice as described above to the name and address on the Cover Page, if applicable; (ii) posting a notice on pax8.com or any successor website thereto; or (iii) sending a message to the email address then associated with your account. Notices we provide by posting to pax8.com will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
15.9. 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.
15.10. Severability. If any provision of this Agreement is held unenforceable or invalid under any applicable law or court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.
15.11. Force Majeure. If either party is unable to perform any of its obligations under this Agreement 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 this Agreement 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.
15.12. Entire Agreement. This Agreement (including any and all Specific Product Terms) constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all prior and concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
15.13. Amendments. Except as provided herein, no amendments, modifications, or supplements to this Agreement will be binding unless they are in writing and signed by both parties hereto.
15.14. Language. Unless otherwise agreed in writing, all communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of this Agreement will control if there is any conflict.
15.15. No Third-Party Beneficiaries. Except as otherwise set forth in this Agreement, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
16. Definitions
16.1 “Account Country” is the country associated with your account. If you have provided a valid tax registration number for your account, then your Account Country is the country associated with your tax registration. If you have not provided a valid tax registration, then your Account Country is the country where your billing address is located, except if the credit card associated with your account with Pax8 that is issued in a different country and your contact address is also in that country, then your Account Country is that different country.
16.2 “Applicable Laws” means all applicable international, national, state, regional, and local laws, regulations, ordinances, and judicial administrative orders, including without limitation: (i) the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”); (ii) trademark and copyright laws; (iii) ICANN policies and procedures governing domain names; (iv) the U.S. Foreign Corrupt Practices Act of 1977, as amended, and other applicable anti-corruption laws, including the UK Bribery Act and those in the Territory; (v) data protection laws applicable in the Territory; and (vi) the U.S. Export Administration Regulations (15 C.F.R. Parts 730-774), and any other applicable export control laws, rules, regulations or orders.
16.3 “Billing as a Service” means optional billing services provided by Pax8 for a fee.
16.4 “Close Family Member” means the spouse, the individual’s and the spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, first cousins, the spouses of any of these people, or any other individuals who share the same household.
16.5 “Customer” is a person or entity that purchases or may purchase Pax8 Products or other information technology products or services for its own internal use. “Customer” includes both a company and its individual end users.
16.6 “EAR” means the United States Export Administration Regulations.
16.7 “Governing Law” and “Governing Institution” means, for each Pax8 Contracting Party, the laws and Institutions set forth in the following table:
| Pax8 Contracting Party | Governing Law | Governing Institution |
| Pax8, Inc. | Colorado, USA | Any action will be brought exclusively in the state courts located in Denver, Colorado, or the federal courts located in Denver, Colorado, as applicable. |
| Pax8 UK, Ltd. | England and Wales | JAMS, Denver, CO |
| Wirehive, Ltd. | England and Wales | JAMS, Denver, CO |
| Resello, B.V. | The Netherlands | JAMS, Denver, CO |
| Pax8 Australia, Pty. Ltd. | Australia | JAMS, Denver, CO |
| Pax8 Canada, Inc. | Colorado, USA | JAMS, Denver, CO |
16.8 “Government Official” means anyone that is, or works for or on behalf of a (i) national, regional, municipal or local government; (ii) department, agency, subsidiary or branch of a national, regional, municipal or local government; (iii) government-owned or government-controlled company (for example, a state-owned oil company, bank, airline, hospital, university, etc.); (iv) subsidiary of a government-owned or government-controlled company; (v) public international organization (for example, the International Monetary Fund, the United Nations, the World Bank, the World Trade Organization, etc.); (vi) member of a royal family; or (vii) political party, political party official, or candidate for political office.
16.9 “Managed Service Provider” or “MSP” means a company that delivers network, application, system, and e-management services across a network to third-party organizations for such organizations’ own internal business use.
16.10 “Partner Catalog” is a feature of the Pax8 Platform that allows C3 Partner to add its own products and services to the Pax8 Platform for the purpose of sales, billing, and/or management.
16.11 “Partner Products” are products and services C3 Partner adds to the Partner Catalog. Partner Products do not include Pax8 Products.
16.12 “Pax8 Contracting Party” means the party identified in the table below, based on your Account Country. If you change your Account Country to one identified with a different Pax8 Contracting Party below, you agree that this Agreement is then assigned to the new Pax8 Contracting Party under this Section 16.11 without any further action required by either party.
| Account Country | Pax8 Contracting Party | Contact Information | Mailing Address |
| The United Kingdom or the Republic of Ireland | Pax8 UK, Ltd. | [email protected] 0800 335 7298 | No. 2 The Distillery Glassfields 1 & 2 Avon Street Bristol BS2 0QH, United Kingdom |
| Any country within the European Economic Area except for the United Kingdom or the Republic of Ireland | Resello, B.V. | [email protected] +31 88 002 8200 | Zuiderzeelaan 53 8017 JV Zwolle The Netherlands |
| Australia or New Zealand | Pax8 Australia Pty Ltd | [email protected] +1 855 884 7298 | Level 1, 6 Riverside Quay Southbank, Victoria, Australia, 3006 |
| Canada | Pax8 Canada, Inc. | [email protected] +1 855 884 7298 | 135 Queens Plate Dr., Suite 600 Etobicoke, Ontario, Canada M9W 6V7 |
| Any country that is not listed in this table above | Pax8, Inc. | [email protected] +1 855 884 7298 | 5500 S. Quebec St., Suite 350 Greenwood Village, CO, USA |
16.13 “Pax8 Platform” is the technology platform developed by Pax8 for the ordering, provisioning, managing, and billing of Pax8 Products and Pax8 Technical Support Services. “Pax8 Platform” includes technology platforms and other services for the ordering, provisioning, managing, and billing of Pax8 Products and Pax8 Technical Support Services developed by and provided to Pax8 by third parties.
16.14 “Pax8 Products” are technology products and services sold by Pax8 through the Pax8 Platform. The current list of Pax8 Products and product descriptions are available in the Pax8 Platform.
16.15 “Specific Product Terms” means the license terms and conditions for specific Pax8 Products, which may be found at https://www.pax8.com/en-us/resources/terms/ (“Pax8 Products – End User License Agreements”).
16.16 “Pax8 Technical Support Services” or “Technical Support Services” is technical support provided by Pax8 to a C3 Partner’s Customer for a fee. The decision to elect Technical Support Services is in C3 Partner’s sole discretion, in consultation with its Customer. See Exhibit A.
16.17 “Service Attributes” means Pax8 Product data related to your account such as contact information, billing information, Customers, margins, resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
16.18 “Territory” means worldwide, except as otherwise set forth at https://www.pax8.com/en-us/resources/terms/ (“Pax8 Products – Territory”).
16.19 “Vendor” is a supplier of any product or service sold and/or billed through the Pax8 Platform. Pax8 is a Vendor to the extent it supplies any Pax8 Product. C3 Partner is a Vendor with respect to any Partner Products.
Exhibit A
Pax8 Technical Support Services
The terms of this Exhibit apply only if C3 Partner has elected Pax8 Technical Support Services (“the Services”) on behalf of one or more Customers and paid the associated fees. In the event of a conflict between the terms of this Exhibit and other terms of this Agreement, this Exhibit governs.
Territory. For purposes of this Exhibit, “Territory” means worldwide.
Services. C3 Partner may elect to have Pax8 provide technical support to one or more of its Customers on C3 Partner’s behalf. Pax8 will provide the services specified in the Pax8 Technical Support Services Terms. The Services are a monthly subscription ordered on a per-Customer basis.
Prices. Prices for the Services are set forth in the Pax8 Platform. 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.
Availability. The Services may not be available for all Pax8 Products. 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.
Customer Contact. C3 Partner acknowledges that its election to have Pax8 perform Technical Support Services requires Pax8 to communicate directly with the Customer. C3 Partner hereby consents to such communications.
Pax8 Responsibilities. Pax8 will use commercially reasonable efforts to respond to support requests in accordance with the Pax8 Technical Support Services SLA, as set forth in the Pax8 Technical Support Services Terms.
C3 Partner Responsibilities. By electing the Services, C3 Partner agrees to the following obligations:
(a) C3 Partner will provide Pax8 with the necessary contact information for the Customer via the Pax8 Platform.
(b) C3 Partner will designate, or use commercially reasonable efforts to ensure that Customer designates, technical support contacts (“Customer Administrators”) with sufficient technical proficiency to file appropriate support requests and assist Pax8 in the investigation and resolution of support issues. C3 Partner acknowledges that the designation of such Customer Administrators is critical to the successful provision of the Services. Consequently, C3 Partner agrees to order the Services on behalf of a Customer only where such Customer Administrators are available.
(c) C3 Partner agrees to comply with and use best efforts to secure Customer compliance with the Pax8 Technical Support Services Terms.
(d) C3 Partner agrees to provide relevant information about the Customer’s computer systems, networks, and software, to the extent requested by Pax8.
Exhibit B
Data Processing Addendum
This Data Processing Addendum (“DPA”) supplements the Pax8 C3 International Partner Agreement available at https://www.pax8.com/en-us/terms/ as updated from time to time between C3 Partner and Pax8, or other agreement between C3 Partner and Pax8 governing C3 Partner’s use of the Pax8 Platform and Pax8 Products (the “Agreement”) when the GDPR, or UK-GDPR applies to your use of the Pax8 Products or services to process C3 Partner or Customer Data. This DPA is an agreement between you and the entity you represent (“C3 Partner”, “you” or “your”) and Pax8, Inc. and the Pax8 Contracting Party or Pax8 Contracting Parties (as applicable) under the Agreement (together “Pax8”). Unless otherwise defined in this DPA or in the Agreement, all capitalized terms used in this DPA will have the meanings given to them in Section 15 of this DPA.
1. Data Processing.
1.1. Scope and Roles. This DPA applies when C3 Partner Data of C3 Partners whose Account Country is in the European Economic Area or to whom the European Union’s or UK’s GDPR otherwise applies is processed by Pax8. In this context, Pax8 will act as processor to C3 Partner, who can act either as controller or processor of C3 Partner Data.
1.2. C3 Partner Controls. Taking into account the nature of the processing, C3 Partner agrees that it is unlikely that Pax8 would become aware that C3 Partner Data transferred under the Standard Contractual Clauses is inaccurate or outdated. Nonetheless, if Pax8 becomes aware that C3 Partner Data transferred under the Standard Contractual Clauses is inaccurate or outdated, it will inform C3 Partner without undue delay.
1.3. Details of Data Processing.
1.3.1. Subject matter. The subject matter of the data processing under this DPA is C3 Partner Data.
1.3.2. Duration. As between Pax8 and C3 Partner, the duration of the data processing under this DPA is determined by C3 Partner.
1.3.3. Purpose. The purpose of the data processing under this DPA is the provision of the Services initiated by C3 Partner from time to time.
1.3.4. Nature of the processing. Billing, marketing, provisioning of Pax8 Products and such other services as initiated by C3 Partner from time to time.
1.3.5. Type of C3 Partner Data. C3 Partner Data uploaded to the Pax8 Portal or otherwise provided by C3 Partner.
1.3.6. Categories of data subjects. The data subjects could include C3 Partner’s employees, Vendors, Customers, Customers’ employees, and End Users.
1.4. Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it and binding on it in the performance of this DPA, including the GDPR.
2. C3 Partner Instructions.
The parties agree that this DPA and the Agreement (including C3 Partner providing instructions via configuration tools such as the Pax8 Platform and APIs made available by Pax8) constitute C3 Partner’s documented instructions regarding Pax8’s processing of C3 Partner Data (“Documented Instructions”). Pax8 will process C3 Partner Data only in accordance with Documented Instructions (which if C3 Partner is acting as a processor, could be based on the instructions of its controllers). Additional instructions outside the scope of the Documented Instructions (if any) require prior written agreement between Pax8 and C3 Partner, including agreement on any additional fees payable by C3 Partner to Pax8 for carrying out such instructions. C3 Partner is entitled to terminate this DPA and the Agreement if Pax8 declines to follow instructions requested by C3 Partner that are outside the scope of, or changed from, those given or agreed to be given in this DPA. Taking into account the nature of the processing, C3 Partner agrees that it is unlikely Pax8 can form an opinion on whether Documented Instructions infringe the GDPR. If Pax8 forms such an opinion, it will immediately inform C3 Partner, in which case, C3 Partner is entitled to withdraw or modify its Documented Instructions.
3. Confidentiality of C3 Partner Data.
Pax8 will not access or use, or disclose to any third party, any C3 Partner Data, except, in each case, as necessary to maintain or provide Pax8 Products or other services, or as necessary to comply with the law or a valid and binding order of a governmental body (such as a subpoena or court order). If a governmental body sends Pax8 a demand for C3 Partner Data, Pax8 will attempt to redirect the governmental body to request that data directly from C3 Partner. As part of this effort, Pax8 may provide C3 Partner’s basic contact information to the governmental body. If compelled to disclose C3 Partner Data to a governmental body, then Pax8 will give C3 Partner reasonable notice of the demand to allow C3 Partner to seek a protective order or other appropriate remedy unless Pax8 is legally prohibited from doing so.
4. Confidentiality Obligations of Pax8 Personnel.
Pax8 restricts its personnel from processing C3 Partner Data without authorization by Pax8.
5. Security of Data Processing
5.1. Pax8 has implemented and will maintain the following technical and organizational measures: (a) security of the Pax8 Portal; (b) physical security of the facilities; (c) measures to control access rights for Pax8 employees and contractors to the Pax8 Portal; and (d) processes for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures implemented by Pax8.
5.2. C3 Partner can elect to implement technical and organizational measures to protect C3 Partner Data. Such technical and organizational measures include the following which can be obtained by C3 Partner directly from a third party supplier: (a) pseudonymisation and encryption to ensure an appropriate level of security; (b) measures to ensure the ongoing confidentiality, integrity, availability and resilience of the processing systems and services that are operated by C3 Partner; (c) measures to allow C3 Partner to backup and archive appropriately in order to restore availability and access to C3 Partner Data in a timely manner in the event of a physical or technical incident; and (d) processes for regularly testing, assessing and evaluating the effectiveness of the technical and organizational measures implemented by C3 Partner.
6. Sub-processing.
6.1. Authorized Sub-processors. C3 Partner provides general authorization to Pax8’s use of sub-processors to provide processing activities on C3 Partner Data on behalf of C3 Partner (“Sub-processors”) in accordance with this Section. The Pax8 website (currently posted at https://www.pax8.com/en-us/terms/) lists Sub-processors that are currently engaged by Pax8, as amended from time to time in the sole and absolute discretion of Pax8. To object to a particular Sub-processor, C3 Partner can: (i) terminate the Agreement pursuant to its terms; or (ii) cease using the service for which Pax8 has engaged the Sub-processor.
6.2. Sub-processor Obligations. Where Pax8 authorizes a Sub-processor as described in Section 6.1: (i) Pax8 will restrict the Sub-processor’s access to C3 Partner Data only to what is necessary to provide or maintain the Pax8 Products and services in accordance with the Documentation, and Pax8 will prohibit the Sub-processor from accessing C3 Partner Data for any other purpose; (ii) Pax8 will enter into a written agreement with the Sub-processor and, to the extent that the Sub-processor performs the same data processing services provided by Pax8 under this DPA, Pax8 will impose on the Sub-processor the same contractual obligations that Pax8 has under this DPA; and (iii) Pax8 will remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Pax8 to breach any of Pax8’s obligations under this DPA.
7. Pax8 Assistance with Data Subject Requests.
If a data subject makes a request to Pax8, Pax8 will promptly forward such request to C3 Partner once Pax8 has identified that the request is from a data subject for whom C3 Partner is responsible. C3 Partner authorizes on its behalf, and on behalf of its controllers when C3 Partner is acting as a processor, Pax8 to respond to any data subject who makes a request to Pax8, to confirm that Pax8 has forwarded the request to C3 Partner. The parties agree that Pax8 forwarding data subjects’ requests to C3 Partner in accordance with this Section, represent the scope and extent of Pax8’s required assistance.
8. Security Incident Notification.
8.1. Security Incident. Pax8 will (a) notify C3 Partner of a Security Incident without undue delay after becoming aware of the Security Incident, and (b) take appropriate measures to address the Security Incident, including measures to mitigate any adverse effects resulting from the Security Incident.
8.2. Pax8 Assistance. To enable C3 Partner to notify a Security Incident to supervisory authorities or data subjects (as applicable), Pax8 will cooperate with and assist C3 Partner by including in the notification under Section 8.1(a) such information about the Security Incident as Pax8 is able to disclose to C3 Partner, taking into account the nature of the processing, the information available to Pax8, and any restrictions on disclosing the information, such as confidentiality. Taking into account the nature of the processing, C3 Partner agrees that it is best able to determine the likely consequences of a Security Incident.
8.3. Unsuccessful Security Incidents. C3 Partner agrees that: (i) an unsuccessful Security Incident will not be subject to this Section 8. An unsuccessful Security Incident is one that results in no unauthorized access to C3 Partner Data or to any of Pax8’s equipment or facilities storing C3 Partner Data, and could include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents; and (ii) Pax8’s obligation to report or respond to a Security Incident under this Section 8 is not and will not be construed as an acknowledgement by Pax8 of any fault or liability of Pax8 with respect to the Security Incident.
8.4. Communication. Notification(s) of Security Incidents, if any, will be delivered to one or more of C3 Partner’s administrators by any means Pax8 selects, including via email. It is C3 Partner’s sole responsibility to ensure C3 Partner’s administrators maintain accurate contact information on the Pax8 Platform and secure transmission at all times.
9. Pax8 Certifications and Audits.
9.1. Pax8 ISO-Certification and SOC Reports. In addition to the information contained in this DPA, upon C3 Partner’s request, and provided that the parties have an applicable NDA in place, Pax8 will make available the following documents and information: (i) the certificates issued for the ISO 27001 certification, (or the certifications or other documentation evidencing compliance with such alternative standards as are substantially equivalent to ISO 27001); and (ii) the System and Organization Controls (SOC) 2 Report (or the reports or other documentation describing the controls implemented by Pax8 that replace or are substantially equivalent to the SOC 2).
9.2. Pax8 Audits. Pax8 uses external auditors to verify the adequacy of its security measures, This audit: (a) will be performed at least triennially; (b) will be performed according to ISO 27001 standards or such other alternative standards that are substantially equivalent to ISO 27001; (c) will be performed by independent third party security professionals at Pax8’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be Pax8’s Confidential Information.
9.3. Audit Reports. At C3 Partner’s written request, and provided that the parties have an applicable NDA in place, Pax8 will provide C3 Partner with a copy of the Report so that C3 Partner can reasonably verify Pax8’s compliance with its obligations under this DPA.
9.4. Privacy Impact Assessment and Prior Consultation. Taking into account the nature of the processing and the information available to Pax8, Pax8 will assist C3 Partner in complying with C3 Partner’s obligations in respect of data protection impact assessments and prior consultation, by providing the information Pax8 makes available under this Section 9.
10. Transfers of Personal Data.
10.1. Transfers. The Parties agree that Pax8 may transfer C3 Partner Data, either directly or via onward transfer, to any Third Country, (each a “Data Transfer”) including to the United States.
10.2. Application of Standard Contractual Clauses. Subject to Section 10.3, the Standard Contractual Clauses will only apply to C3 Partner Data that is transferred to any Third Country outside of the EEA10.2.1. When C3 Partner is acting as a controller, the Controller-to-Processor Clauses will apply to a Data Transfer. 10.2.2. When C3 Partner is acting as a processor, the Processor-to-Processor Clauses will apply to a Data Transfer. Taking into account the nature of the processing, C3 Partner agrees that it is unlikely that Pax8 will know the identity of C3 Partner’s controllers because Pax8 has no direct relationship with C3 Partner’s controllers and therefore, C3 Partner will fulfil Pax8’s obligations to C3 Partner’s controllers under the Processor-to-Processor Clauses.
10.3. Alternative Transfer Mechanism. The Standard Contractual Clauses will not apply to a Data Transfer if Pax8 has adopted Binding Corporate Rules for Processors or an alternative recognized compliance standard for lawful Data Transfers as may exist today or in the future.
11. Termination of the DPA.
This DPA will continue in force until the termination of the Agreement (the “Termination Date”).
12. Return or Deletion of C3 Partner Data.
At any time up to the Termination Date, and for 90 days following the Termination Date, subject to the terms and conditions of the Agreement, Pax8 will return or delete C3 Partner Data when C3 Partner requests such return or deletion in writing.
13. Duties to Inform.
Where C3 Partner Data becomes subject to confiscation during bankruptcy or insolvency proceedings, or similar measures by third parties while being processed by Pax8, Pax8 will inform C3 Partner without undue delay. Pax8 will, without undue delay, notify all relevant parties in such action (for example, creditors, bankruptcy trustee) that any C3 Partner Data subjected to those proceedings is C3 Partner’s property and area of responsibility and that C3 Partner Data is at C3 Partner’s sole disposition.
14. Entire Agreement; Conflict.
This DPA incorporates the Standard Contractual Clauses by reference. Except as amended by this DPA, the Agreement will remain in full force and effect. If there is a conflict between the Agreement and this DPA, the terms of this DPA will control. Nothing in this document varies or modifies the Standard Contractual Clauses.
15. Definitions.
Unless otherwise defined in the Agreement, all capitalized terms used in this DPA will have the meanings given to them below:
15.1. “Controller” has the meaning given to it in the GDPR.
15.2. “Controller-to-Processor Clauses” means the standard contractual clauses between controllers and processors for Data Transfers, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, and currently located at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj.
15.3. “C3 Partner Data” means the “personal data” (as defined in the GDPR) that is uploaded to the Pax8 Platform or in the provisioning, maintenance, or billing of Pax8 Products, for Customers or otherwise under C3 Partner’s account with Pax8.
15.4. “EEA” means the European Economic Area.
15.5. “GDPR” means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). UK-GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
15.6. “Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” will be interpreted accordingly.
15.7. “Processor” has the meaning given to it in the GDPR.
15.8. “Processor-to-Processor Clauses” means the standard contractual clauses between processors for Data Transfers, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, and currently located at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj.
15.9. “Security Incident” means a contravention of Pax8’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, C3 Partner Data.
15.10. “Standard Contractual Clauses” means (i) the Controller-to-Processor Clauses, or (ii) the Processor-to-Processor Clauses, as applicable in accordance with Sections 10.2.1 and 10.2.2.
15.11. “Third Country” means a country outside the EEA not recognized by the European Commission as providing an adequate level of protection for personal data (as described in the GDPR).