Pax8 Vendor Terms

Welcome to Pax8. We are so glad you want to be a Pax8 Vendor.

The Pax8 Marketplace is the leading cloud commerce marketplace for business software where Pax8 Partners – independent, non-exclusive resellers – buy, sell and manage best-in-class technology products and services for small and midsize business customers. These Pax8 Vendor Terms govern your rights and responsibilities as a Pax8 Vendor, the sale of your products and services (Vendor Products) in the Pax8 Marketplace and your access to the Pax8 Marketplace. By becoming a Pax8 Vendor, you are agreeing to these Pax8 Vendor Terms and any other terms applicable to you (more on that below).

If you are an individual accepting these Terms on behalf of an entity, you represent and warrant that you have the legal authority to bind that entity to these Terms and that the entity accepts these Terms.

1. Accelerate Program. As a Pax8 Vendor, you are automatically enrolled in the Pax8 Accelerate Program. You can find the benefits available to you based on your current program tier and the other terms you need to comply with in the Pax8 Accelerate Program Guide. We may make other programs available to Pax8 Vendors from time to time. Pax8 reserves the right to withdraw or modify the Accelerate Program and any other Pax Vendor program (each, a Program) on a minimum of 90 days’ notice.

2. Account Registration. You become a Pax8 Vendor by accepting these Terms and establishing an account as part of the Pax8 Vendor onboarding process (Vendor Account) with Pax8. As part of the onboarding process, you will provide us with your (or your business’) legal name, address, phone number, and e-mail address, as well as any other required information.

3. License Grant.

3.1 General License Grant. You grant to Pax8, and Pax8 accepts, a non-exclusive worldwide license to promote, market, sublicense, resell, and distribute Vendor Products and related documentation (Documentation) in the Pax8 Marketplace, including all modifications, enhancements, upgrades, and new versions and releases thereof (Upgrades), or any component thereof (License Grant). You also grant Pax8 the right to use the Vendor Products only for the purposes set out in these Terms in accordance with the applicable Vendor Specific Terms (defined below).

3.2 Sublicensing. Where applicable, Pax8 may sublicense Vendor Products to customers that purchase Vendor Products directly from Pax8 or Pax8 Partners (Customers) and Pax8 Partners may also sublicense the Vendor Products to Customers. As used herein, Customer refers to both a company that is purchasing Vendor Products and its individual end users.

3.3 Vendor Specific Terms. You are solely responsible for providing to Pax8 and Pax8 Partners a current copy of your end user license terms and conditions for Vendor Products (Vendor Specific Terms), including any updates to your Vendor Specific Terms. Pax8 Partners and/or Pax8 Customers will be required to accept the Vendor Specific Terms prior to purchasing the Vendor Products in the Pax8 Marketplace. Pax8 is not liable for enforcing the Vendor Specific Terms.

3.4 No Exclusivity. You acknowledge and agree that Pax8 may promote, market, license, resell or distribute any other product or service in the Pax8 Marketplace, including competing third-party products and services.

4. Ordering. Pax8 will place orders for Vendor Products directly with you using the Vendor Marketplace API (as defined below).

5. Support.

5.1 Technical Support. You are responsible for all technical support for the Vendor Products.

5.2 Sales Support. Sales support is governed by the Accelerate Program.

5.3 Training. You shall provide Pax8 with all necessary training on the Vendor Products, and with training and support materials appropriate for both internal Pax8 use and for prospective or current Pax8 Partners or Customers.

5.4 Billing and Provisioning Support. Pax8 is responsible for billing and provisioning of Vendor Products through the Pax8 Marketplace.

5.5 Designated Contact. You must designate a person to serve as Pax8’s point of contact for escalation of critical matters.

6. Your obligations.

6.1 Upgrades. You must provide Pax8 with advance notice of and access to any upgrades and use commercially reasonable efforts to incorporate new features, functionality or bug fixes that may be reasonably requested by Pax8, Pax8 Partners, or Customers.

6.2 Pax8 APIs. Pax8 is making available to you one or more application programming interfaces (APIs), including the Vendor Marketplace API, that permit your systems to interface with certain features and functionality in the Pax8 Marketplace (Pax8 APIs). Unless otherwise agreed in writing by the Parties, you are required to utilize the Pax8 APIs to integrate with the Pax8 Marketplace and comply with any terms of use applicable to the Pax8 APIs.

6.3 Margins. Margin is agreed to in writing (email is sufficient) by the Parties prior to launch of the Vendor Products in the Pax8 Marketplace. The margin represents a discount percentage off the price a Pax8 Partner will pay for the Vendor Products within the Pax8 Marketplace.

6.4 Pricing. All required information on pricing for the Vendor Products must be provided to Pax8 in advance of implementation in the Pax8 Marketplace, including MSRP and published partner costs if applicable.

6.5 Changes.

a. You must notify us at least 45 days advance of any changes to existing Vendor Products such as name changes, price changes and end of life announcements.

b. We must agree to the addition of new Vendor Products to the Pax8 Marketplace (such as a new SKU or expansion into a new geographic region) and changes to billing logic that will impact billing and provisioning, including but not limited to minimum purchase commitments, volume discounts, or shifts from current billing models (entitlement, usage, etc.).

6.6 Change of Channel and Customer Migration. You will support the following license transfers and you will share any existing processes for such transfers with Pax8: (a) any Partner transfers of licenses from you or a third-party distributor or marketplace to Pax8, and (b) any Customer requests to move Customer licenses from a non-Pax8 Partner to a Pax8 Partner or any distributor.

6.7 Taxes. The pricing for the Vendor Products is exclusive of all local, state, federal, and foreign taxes, levies or duties of any nature (Taxes). Pax8, or its Partners or Customers, are responsible for payment of any related Taxes, excluding taxes on your income.

6.8 Billing and Payments.

a. Billing Requirements. You must provide a consolidated invoice and a separate reconciliation report to Pax8 by the third (3rd) business day of each calendar month for the previous calendar month. The invoice shall include product names, quantities, and rates. The reconciliation report shall include: (a) SKUs for each item; and (b) Partner and Customer level usage detail for each SKU. You shall not invoice Pax8 for, and Pax8 shall not be obligated to pay, any charges for Vendor Products not previously included on an invoice that are more than 120 days old (Back Charges). If your invoice contains Back Charges or otherwise is not compliant with this Section 6.8, the invoice is a Non-Compliant Invoice.

b. Payment Terms. Pax8 will remit payment to you for the undisputed portion of any invoice within 60 days of the invoice date.

c. Invoice Corrections. If Pax8 receives a Non-Compliant Invoice, Pax8 may request a corrected invoice (Corrected Invoice). Pax8 will have 45 days from receipt of the Corrected Invoice to remit payment.

d. Billing Disputes. If Pax8 in good faith disputes any part of an invoice, Pax8 will notify you of the dispute within 45 days of the invoice date. You will use commercially reasonable efforts to respond to the dispute within 30 days. Pax8 may withhold payment of the disputed amounts pending resolution of the dispute, and any such withholding of payment shall not be considered a breach of these Terms.

e. Partner and Customer Billing. Pax8 is solely responsible for billing Pax8 Partners and Customers and collecting payments. Pax8’s payment obligations to you are not contingent upon collection from Pax8’s Partners and Customers.

7. Term and Termination.

7.1 Term. These Terms shall remain in effect until terminated by us or you as provided below (Term).

7.2 Termination.

a. Termination for Convenience. Either Party may terminate these Terms on 30 days written notice.

b. Termination for Breach. Either Party may terminate these Terms or your Vendor Account if a Party breaches any material term or condition of these Terms and the breach is not cured to the non-breaching party’s reasonable satisfaction within 15 days of the written notice specifying the breach, or immediately if the breach is not capable of cure.

c. Termination Notices. Any notice of termination sent in accordance with this Section 7.2 must conform to the requirements set forth in Section 14.3 of these Terms.

7.3 Effect of Termination.

a. General. Upon termination, a 12-month transition period shall begin (Transition Period). Unless otherwise agreed in writing, during the Transition Period:

(i) The License Grant will remain in effect until all subscriptions are migrated;

(ii) The Parties shall continue to be bound by these Terms with respect to any existing subscriptions until those subscriptions are terminated or migrated;

(iii) Pax8 will not submit any orders from new Customers to you; and

(iv) You agree not to terminate service to any Pax8 Partner or Customer with an active subscription to any of the Vendor Products during the Transition Period.

b. Specific. If either of us terminate your Vendor Account or these Terms for convenience, Pax8 will refund to you any market development fund money that has not been allocated to any Pax8 inventory items or events within 60 days of termination.

c. Payment Obligations. Termination does not relieve either Party of any payment obligations incurred before the date of termination.

d. Survival. Rights and obligations that are of a continuing nature shall survive, including, without limitation, obligations related to proprietary information, indemnification, and limitation of liability.

8. Marketing; Press Releases; and Marks.

8.1 Marketing Materials. You will make available to Pax8 any marketing materials including, but not limited to, user manuals, training materials, documentation, and other materials describing the Vendor Products (Marketing Materials). During the Term, and subject to the restrictions of Section 8.4 below, you hereby grant Pax8 a non-exclusive, non-transferable, right and license to use, reproduce, co-brand, and distribute the Marketing Materials for the purpose of promoting, marketing, and providing the Vendor Products to current and prospective Partners and Customers. Pax8 may also develop its own promotional materials for the Vendor Products.

8.2 Press Releases. Prior to issuing a press release, a Party must obtain the non-issuing Party’s prior written consent, which may not be unreasonably conditioned, delayed or withheld.

8.3 Marks. Marks means all names, marks, logos, designs, trade dress and other brand designations used by the Parties in connection with their respective products and services. The Parties are permitted to use the Marks in accordance with the Marks usage guidelines in Section 8.4 below, and solely in connection with the activities permitted or required by these Terms or a Program.

8.4 Marks Usage Guidelines. The Parties are permitted to use the Marks only in the registered form or style and shall not use any such Marks: (a) in connection with any other products or services, or (b) as part of any corporate or trade name or any internet domain name. The Parties shall not alter, obscure, remove, interfere with or add to any of the Marks.

8.5 Intellectual Property. The Parties retain all right, title, and interest, including all intellectual property rights, that are not expressly granted under these Terms. Excepts as expressly stated in these Terms, no license or right is granted directly or by implication, inducement, estoppel or otherwise.

9. Confidential Information. Confidential Information means information that is disclosed or otherwise made available to or accessed by either of us under the Terms that the receiving party knows or should reasonably be expected to know is proprietary or confidential. For the avoidance of any doubt, pricing and margins are considered Confidential Information. Confidential information does not include information that: becomes public through no fault of the receiving party; is known to the receiving party without confidentiality obligations; is independently developed without using the disclosing party’s information; or is lawfully obtained from a third party without confidentiality obligations. If required by law to disclose confidential information, the receiving party will notify the disclosing party promptly if legally permitted.

10. Data Protection and Security.

10.1 Compliance. Each Party is responsible for its own personal data as a data controller in its own right and shall comply with any applicable data protection laws and legislation, including implementing effective technical practices and protection policies to ensure the security of personal data and meeting its own obligations relating to the rights of data subjects. Each of us shall provide necessary and reasonable assistance to comply with such obligations. We will process personal data in accordance with our Privacy Notice.

10.2 Data Processing. Where we do process data on your behalf, we will do so in accordance with the Pax8 Data Processing Agreement.

10.3 Data Usage. Pax8 may use any data stored in or accessed through the Pax8 Marketplace, or otherwise collected by us, for our business purposes, including for analysis, product development, product and service enhancements and for the purpose of creating and sharing insights, providing always that such publications do not include the unauthorized disclosures of confidential information.

10.4 Cooperation. If new laws and legislation apply in the field of data protection, the Parties will fully cooperate with such new laws and legislation, including entering into data protection agreements, as reasonably requested by Pax8.

10.5 Liability for Breach. EXCEPT AS SET FORTH HEREIN, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES DUE TO THE OTHER PARTY’S VIOLATION OR BREACH OF DATA PRIVACY LAWS OR OF SUCH OTHER PARTY’S OWN DATA PROTECTION PRIVACY POLICIES AND DATA SAFEGUARDS.

11. Warranties.

11.1 Performance Warranty. You warrant that throughout the Term, the Vendor Products will perform substantially in accordance with the applicable Documentation, and that the functionality of the Vendor Products will not be materially decreased.

11.2 Compliance with Laws. Each Party represents and warrants that it will comply with all applicable laws and regulations in the performance of these Terms, including without limitation export, anti-money laundering and anti-bribery laws.

11.3 Disclaimer. EXCEPT as expressly provided in these Terms, Vendor Products are provided “as is,” and BOTH PARTIES DISCLAIM ALL warranties, express or implied, including, but not limited to, any warranties of merchantability or fitness for a particular purpose.

12. Indemnification.

12.1 Vendor Infringement Indemnity. You will indemnify, defend and hold us harmless 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 incurred by us alleging that any use of the Vendor Products infringes on the intellectual property of any third party. If a claim of infringement is made or threatened, you may, at your option: (a) replace or modify the Vendor Products to render them non-infringing; (b) secure for us and/or the affected Partners or Customers the right to use the Vendor Products; or (c) terminate these Terms in accordance with this Section 12 (Indemnification) and Section 7 (Term and Termination). You shall pay us any damages awarded against us to the extent based on such a claim, regardless of the form of award (and specifically including any award of attorneys’ fees or costs).

12.2 Pax8 Infringement Indemnity. We will indemnify, defend and hold harmless you 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 incurred by you alleging that any feature of Pax8 Marketplace designed or supplied by us infringes on third party intellectual property. If a claim of infringement is made or threatened, we may, at our option: (a) replace or modify the feature to render it non-infringing; (b) secure for you the right to use the feature or (c) terminate these Terms in accordance with Section 7 (Term and Termination) hereof. Pax8 shall pay to Vendor any damages awarded against Vendor to the extent based on such a third-party claim, regardless of the form of award (and specifically including any award of attorneys’ fees or costs).

12.3 General Indemnity. Each Party shall indemnify, defend, and hold harmless the other from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of a third-party claim related to or alleged to have been caused by a Party’s breach of these Terms, gross negligence, willful misconduct, or misrepresentations.

12.4 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.

13. Limitation of Liability.

13.1 Limitation of Liability. Except with respect to its indemnification obligations, violation of applicable law, and payment obligations, each Party’s liability is limited to direct damages not exceeding the total payments paid or payable to you in the past 12 months.

13.2 No Consequential Damages. Except for the Parties’ indemnification obligations, violation of applicable law, or violation of Section 9 (Confidential Information), neither Party will be liable to the other for any indirect, incidental, consequential, punitive, exemplary, reliance, or special damages.

13.3 Exclusions. Nothing in these Terms limits any liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation and any liability that cannot be legally limited.

14. Contracting Entity, Governing Law, and Notices.

14.1 Contracting Entity. As used herein, Pax8 means Pax8, Inc., a Delaware corporation, and its affiliates and subsidiaries.

14.2 Governing Law. The governing law of the State of Colorado applies to these Terms, without regard conflicts of law rules, and the federal and state courts in Colorado shall have exclusive jurisdiction over these Terms. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms.

14.3 Notices. Notices should be sent to legal@pax8.com and to Pax8, 5500 South Quebec Street, Suite 350, Greenwood Village, CO, 80111 USA. Notices are effective upon the earliest of actual receipt, five days after mailing, or the day after sending by overnight courier.

15. Disputes.

15.1 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 the 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. 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.

15.2 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.

16. Modification of these Terms. We may update these Terms from time to time, including by adding entirely new terms and deleting existing terms. If the changes are material, we’ll let you know in advance by posting the changes on our website and/or sending you an email or message about the changes. By continuing as a Pax8 Vendor after a modification, you agree to be bound by the modified Terms. If you do not accept the updated Terms, we may suspend or terminate your Vendor Account.

17. Miscellaneous. The Terms, including the Accelerate Program, any other Program that we may make available for you to participate in, and any other policies and terms and conditions that make up the Terms, are the entire agreement and supersede any other agreement between us. A Party’s failure to enforce any part of the Terms is not a waiver of the right to later enforce that or any other part of the Terms. We may assign any of our rights and obligations under the Terms. We may notify you by posting on the Pax8 Marketplace or on our website, or by sending an email to your account address. If a Party cannot perform its obligations due to events beyond its control (for example, natural disasters, government actions), it must notify the other party and use reasonable efforts to resume performance. Payment obligations are not excused or suspended.

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