Pax8 Vendor Private Offer Terms

These Pax8 Vendor Private Offer Terms (Terms) are a legally binding contract between you and Pax8 and take effect (Effective Date) when you (Vendor, you, or your) accept and acknowledge these Terms (Acknowledgement). The Terms incorporate by reference the Pax8 Accelerate Program Guide available at  https://pax8.fyi/AccelerateGuide (Accelerate Program), as may be updated from time to time, and any other document, attachments, statements of work or other exhibits. All the above referenced documents (as may be updated from time to time) are collectively referred to as the Terms.

If you are an individual entering these Terms on behalf of an entity, you represent and warrant that you have the legal authority to bind that entity to these Terms and that the entity accepts these Terms. You agree and acknowledge that these Terms may be modified by Pax8 at its sole discretion by posting the updated terms to this site or a successor site. You should read these Terms carefully.

Recitals

A. Pax8 is a cloud commerce marketplace that distributes cloud-based subscription services.
B. Vendor is a Publisher of a Private Offer or Third Party Offer on a Microsoft-proprietary Commercial Marketplace.
C. The parties wish to work together to make Vendor Products available on a Microsoft Commercial Marketplace for purchase on the Pax8 Marketplace through such Commercial Marketplace.
D. The parties are also contemplating a direct distribution or resale relationship in which Pax8 would make the Vendor Products available on the Pax8 Marketplace independent of any Microsoft Commercial Marketplace.
E. The parties acknowledge that, with respect to these Terms, each party also maintains rights and obligations to Microsoft in furtherance of these Terms. Those rights and obligations are contained in the documents linked below:

(i) As to the Vendor, the Microsoft Publisher Agreement available at https://learn.microsoft.com/en-us/legal/marketplace/msft-publisher-agreement
(ii) As to Pax8, the Third Party Offer section of the Microsoft CSP Program Guide available at https://go.microsoft.com/fwlink/p/?LinkId=617100.

1. Definitions.

1.1. Affiliate means any person or entity which directly or indirectly controls, is controlled by, or is under common control of a party; the term “control” as used herein shall mean the possession of the power to direct or cause the direction of the management and the policies of a person or entity, whether through the ownership of a majority of the outstanding voting rights, by contract or otherwise.
1.2. Commercial Marketplace means a marketplace on the Partner’s portal at Microsoft’s discretion, or any other marketplace provided by Microsoft for the commercial purchase of non-Microsoft products or services by Vendor or third parties.
1.3. Marketplace means the proprietary cloud commerce marketplace developed by Pax8.
1.4. Materials means software, data, text, audio, video, images, or other content.
1.5. Pax8, us, we mean Pax8, Inc., and its Affiliates.
1.6. Pax8 Customer or Customer means a person or entity that purchases or may purchase from Pax8 or a Pax8 Partner, cloud-based or other products or services for its own internal use. As used herein, Customer refers to both company and its individual end users.
1.7. Pax8 Partner or Partner means an entity appointed, by separate agreement with Pax8, as an independent, non-exclusive authorized reseller of Pax8 products and services.
1.8. Private Offer or Third Party Offer means that selection of non-Microsoft products or services made available through a marketplace capability such as the Commercial Marketplace on the Microsoft-proprietary partner portal and Microsoft’s discretion.
1.9. Public Software means any software, documentation, or other material that contains, or is derived (in whole or in part) from any software, documentation, or other material that is distributed as free software, open source software (for example, Linux) or similar licensing or distribution models, including but not limited to software, documentation, or other material licensed or distributed under any of the following licensing or distribution models, or licenses or distribution models similar to any of the following: (a) the GNU General Public License (GPL); Lesser/Library GPL (LGPL), or Free Documentation License; (b) The Artistic License (for example, PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; and (h) the Apache License.
1.10. Publisher means an independent software vendor (ISV) that makes transactable offerings available on the Microsoft Commercial Marketplace.
1.11. Territory means worldwide.
1.12. Vendor Products means the products and/or services provided by Vendor which are available as a Private Offer on the Commercial Marketplace.
1.13. Vendor Specific Terms means the end user license terms and conditions for specific Vendor Products.

2. Account Registration. To become a seller in the Marketplace, you must accept these Terms and complete the vendor onboarding process to establish an account (Vendor Account) with Pax8. Only parties that can lawfully enter and form contracts under applicable law may become a Pax8 vendor. As part of the vendor onboarding process, you must provide us with your (or your business’) legal name, address, phone number, and e-mail address, as well as any other information required by these Terms or that we may reasonably request.

3. License Grant.

3.1. Marketplace. Subject to these Terms, you grant to us, and we accept, a non-exclusive license in the Territory to promote, market, sublicense, resell, and distribute the Vendor Products and related documentation (Documentation) in the Commercial Marketplace, including all modifications, enhancements, upgrades, and new versions and releases thereof (Upgrades), or any component thereof . These Terms are not exclusive and does not in any way limit Pax8’s right to promote, market, license, resell or distribute any other product or service, including competing third-party products and services, or your right to engage with other technology marketplaces or distributors. The parties acknowledge and agree that the Vendor Products may be supplied by or marketed, sublicensed, resold, or distributed through the Affiliates and in the currencies set forth in the table below.

3.2. License Restrictions. Pax8 may not and may not authorize any third-party to do any of the following with the Vendor Products or Documentation: (a) reverse engineer, decompile, or disassemble them; (b) modify or create derivative works based upon them in whole or in part; (c) remove any proprietary notices or labels on them; (d) use any Public Software in any manner that requires, pursuant to the license applicable to such Public Software, that the Vendor Products or Documentation be disclosed, licensed, distributed, or otherwise made available to anyone; (e) access or use them for fraudulent or illegal activities or activities that violate these Terms or are otherwise harmful to Vendor or (f) access them for any reason other than as permitted under these Terms.
3.3. Vendor Specific Terms. You must provide a copy to Pax8 of any Vendor Specific Terms, that you require Pax8Partners and/or Pax8 Customers to be subject to. You are solely responsible for providing Pax8 and/or Partners, as applicable, any updates to or new versions of Vendor Specific Terms. Pax8 Partners and/or Pax8 Customers will be required to accept the Vendor Specific Terms prior to purchasing the Vendors Services in the Marketplace. Pax8 is not liable for enforcing the terms of the Vendor Specific Terms, and you will indemnify, defend, and hold Pax8 harmless against any claims, damages, costs, fees, or penalties incurred by Pax8 in connection with your breach of the Vendor Specific Terms.
3.4. In addition to the foregoing, the Parties agree and acknowledge that they are both subject to additional obligations as per the Microsoft policies set forth in the Recitals.

4. Ordering.

4.1. Pax8 will place orders for Vendor Products via an application programming interface (API) with Microsoft through the Private Offer on the Commercial Marketplace.
4.2. Cancellations. If you support a cancellation policy more lenient than that allowed by Microsoft on the Commercial Marketplace, you will honor such cancellation policy and credit Pax8 for the subscription fees which will be refunded to you to the extent that Microsoft refunds Pax8 for any such cancellation.

5. Support; Training Materials; Dedicated CAM.

5.1. Technical Support. You shall be responsible for all technical support for the Vendor Products.
5.2. Sales Support. We will provide sales support in accordance with the terms of the Accelerate Program.
5.3. Internal Sales Training Materials. You shall provide us with sales training and materials. You shall also be responsible for providing periodic training on all Upgrades to appropriate Pax8 training personnel so that such Pax8 training personnel may train other Pax8 employees.
5.4. External Materials. You shall provide us with Customer sales and technical support materials to provide to prospective Partners and Customers.
5.5. Billing and Provisioning Support. Pax8 will be responsible for billing and provisioning support of Vendor Products through the Marketplace.
5.6. Dedicated CAM. On or by the Effective Date, you shall designate a Channel Account Manager (CAM) for Pax8. The CAM shall have primary responsibility for ensuring overall Pax8 success with respect to inclusion of the Vendor Products in the Marketplace and serve as Pax8’s point of contact for escalation of critical matters.

6. Upgrades.

6.1. Upgrades. You shall provide Pax8 with access to any Upgrades to the Vendor Products.

7. Margins; Pricing; Changes; Taxes.

7.1. Margins. The margins for the Vendor Products are found in the hyperlink specified in the Acknowledgement (Margins). The Margins represent a discount percentage off the price a Pax8 Partner will pay for the Vendor Products within the Marketplace.
7.2. Pricing. Pricing for the Vendor Products charged by you to Pax8 must be equal to or lower than the pricing that you offer directly to Pax8 Partners and/or Customers. You shall provide the initial pricing for Vendor Products (Pricing) to Pax8 via [email protected]. Thereafter, Pricing will be found at the hyperlink specified in the Acknowledgement.
7.3. Changes. You may propose changes to the Vendor Products (for example, product name changes, new product SKUs, and Pricing changes) (Changes) by sending the Changes to Pax8 via [email protected]. Your changes must be submitted to Pax8 ninety (90) days prior to the proposed effective date of the changes unless a shorter notice period is approved by Pax8 via email. Changes approved by Pax8 will be effective on the ninety-first (91st) day following your submission.
7.4. Change of Channel (CoC). CoC means any transaction where a Customer or Partner that currently purchases Vendor Products directly from you migrates to us. You must be able to support CoC.
7.5. Promotional Pricing. Pax8 and Vendor may agree on special or promotional (Promotional Pricing) for your customers, including Pax8 Partners and/or Customers.
7.6. Taxes. Any fees charged or collected pursuant to these Terms are exclusive of all local, state, federal, and foreign taxes, levies, or duties of any nature (Taxes.) Pax8, its Partners, or Customers, are responsible for payment of any related Taxes, excluding United States taxes on your income.
7.7. No Amendments. If the procedures specified in this Section 7 are followed, no written amendment to these Terms shall be required for any Changes or for Promotional Pricing.

8. Billing and Payments.

8.1. Billing. Microsoft will invoice us for the Vendor Products that were ordered through the Private Offer during the previous calendar month. We will pay Microsoft per Pax8’s standard payment terms. Microsoft will pay Publisher for the Vendor Products per the agreed payment terms between Publisher and Microsoft.
8.2. Disputes. You are solely responsible for your collection or payment issues with Microsoft. You shall provide all required assistance we may require with any billing disputes that we have with Microsoft in a timely, accurate and complete manner.
8.3. Customer Billing. We are solely responsible for billing Pax8 Partners and Customers and collecting payments. We have no direct payment obligations to you. Pax8’s payment obligations to Microsoft for the Vendor Services are not contingent upon collection from Pax8’s Partners and Customers.
8.4. Refunds. If a refund is required for any Pax8 Partner or Customer, we will escalate the request for a refund to Microsoft who will, in turn, seek approval for such refund from you. Such approval shall not be unreasonably denied or delayed by you.
8.5. Audit Rights. Both parties shall keep and maintain full, true and accurate records containing all data reasonably required to verify a its compliance with these Terms including, but not limited to, verification of amounts to be paid, the quantity of Vendor Products sold via the Marketplace or the Commercial Marketplace, and applicable usage data. Once per every twelve-month period, each party shall have the right provided that a party has a reasonable belief that the other party is not in compliance with these Terms, during normal business hours upon at least thirty (30) days prior notice, to audit and analyze, by itself or through a recognized independent public accounting firm, the records of the other party to verify compliance with the provisions these Terms and the Vendor Specific Terms. Each party shall bear its expenses associated with such audit. The results of any audit will be held confidential.

9. Term and Termination.

9.1. Term. The Terms shall apply to the parties until terminated by us or you as provided below (Term).
9.2. Termination.

9.2.1. Termination by You. You may terminate your Vendor Account or these Terms for convenience upon thirty (30) days written notice to us. You may terminate your Vendor Account or these Terms if Pax8 breaches any material term or condition of these Terms and the breach is not cured to your reasonable satisfaction within thirty (30) days of the written notice specifying the breach.
9.2.2. Termination by Us. We may terminate your Vendor Account or these Terms for convenience upon thirty (30) days written notice to you. We may suspend or terminate your Vendor Account or these Terms if we determine that (a) you have materially breached these Terms and failed to cure the breach to our reasonable satisfaction within thirty (30) days of the written notice specifying the breach, unless your breach exposes us to liability toward a third party, in which case we are entitled to reduce, or waive, the aforementioned cure period at our reasonable discretion; (b) your Vendor Account has been, or our controls identify that it may be used for deceptive or fraudulent, or illegal activity; or (c) we are required to do so by law.
9.2.3. Termination Notices. Any notice of termination sent in accordance with this Section 9.2 must conform to the requirements set forth in Section 16.3 of these Terms.

9.3. Effect of Termination.

9.3.1. General. Upon termination, a 12-month transition period shall begin (Transition Period). Unless otherwise agreed in writing, during the Transition Period:
(a) The licenses granted by the parties will remain in effect for at least ninety (90) days following termination;
(b) The parties shall continue to be bound by these Terms with respect to any existing subscriptions;
(c) Pax8 will not submit any orders from new Customers to you; and
(d) 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.
9.3.2. Specific. If either Pax8 or Vendor terminates Vendor’s Account or these Terms for its convenience, Pax8 will refund to Vendor any market development fund money that has not been allocated to any Pax8 inventory items or events.
9.3.3. Payment Obligations. Termination does not relieve either party of any payment obligations incurred before the date of termination.
9.3.4. Survival. Rights and obligations that are of a continuing nature shall survive, including, without limitation, obligations related to Confidential Information, proprietary information, indemnification, and limitation of liability.

10. Launch Package, Marketing; Press Releases; and Marks.

10.1. Launch Package. You are responsible for payment of the Launch Package fee specified in the Acknowledgement (Launch Fee). Pax8 will invoice you for the Launch Fee within thirty (30) days of the date when the Vendor Products are available on the Marketplace, and you shall pay the Launch Fee within thirty (30) days of receipt of Pax8’s invoice.
10.2. 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, 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.
10.3. 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.
10.4. 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. You hereby grant Pax8 a license to use the Vendor Marks in Pax8’s sole reasonable discretion, and solely in connection with Pax8’s advertising, promotion, and distribution of the Vendor Products. The parties acquire no right, title, or interest in each other’s Marks other than the foregoing limited license.

11. Confidential Information.

11.1. Confidential Information. Confidential Information means information that is disclosed or otherwise made available by either party under these Terms, or to which the other party has access under these Terms, that the receiving party knows or should reasonably be expected to know is proprietary or confidential. It does not include information that 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.
11.2. The Receiving Party’s Obligations.

11.2.1. A party receiving Confidential Information will restrict its use to purposes necessary for the performance of the receiving party’s obligations or the exercise of the receiving party’s rights under these Terms. During the Term 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 necessary to carry out these Terms. The receiving party will inform such individuals of the limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information imposed by these Terms and will be responsible for any breach.
11.2.2. Except as expressly authorized by these Terms, the receiving party will not use, make, or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of the disclosing party. The receiving party will notify the disclosing party immediately after learning of or having reason to suspect any breach of this Section 11. In the event that the receiving party is required to disclose Confidential Information pursuant to law, to the extent permitted by 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.
11.2.3. At any time during or after the Term, at the written request of the disclosing party, the receiving party shall within a reasonable amount of time after the request, return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information or Marketing Materials, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information or Marketing Materials have been destroyed. Notwithstanding the foregoing:

(i) the receiving party is not required to destroy any electronic copy of Confidential Information or Marketing Materials that is created pursuant to its standard electronic backup and archival procedures and is stored until the ordinary course deletion thereof;
(ii) the receiving party may retain one copy of any Confidential Information or Marketing Materials:
(a) to the extent required to defend or maintain any litigation relating to the Terms, the Confidential Information or Marketing Materials, or comply with established document retention policies; and
(b) such copies of the Confidential Information or Marketing Materials required to comply with requirements of applicable law, regulation, or rule or any requirement or request of any legal, regulatory, governmental, or supervisory authority; and
(iii) The receiving party shall continue to be bound by Sections 11.2.1 and 11.2.2 with respect to any retained Confidential Information or Marketing Materials.

11.3. Data Use. Subject to the obligations of the parties under these Terms either party may use data that it rightfully collects or has rightful access to during the Term for its own internal purposes, including for analysis, product development, product, and service enhancements and for the purpose of creating and sharing insights within its marketing, platform or other public facing material providing always that such publications do not include Confidential Information or otherwise identify the other party. Each party shall retain all title to any aggregated, anonymized, or non-identifiable data collected or derived hereunder.

12. Data Protection and Security.

12.1. Compliance. Each party shall always comply with its respective obligations under all applicable data protection laws and legislation in relation to all personal data that is processed by it while performing its obligations under these Terms, including by maintaining a valid and up to date registration, notification or other filings under applicable data protection laws and legislation.
12.2. Cooperation. Each party agrees that, if new laws and legislation apply in the field of data protection, the parties will fully cooperate to ensure strict compliance with such new laws and legislation, including entering into data protection agreements.
12.3. Use. Each party acknowledges and agrees that it acts as a controller in its own right in relation to any personal data that it may collect, access or process during its fulfillment of these Terms. Each party will process personal data in accordance with all applicable privacy and data protection laws and will implement and always maintain appropriate technical and organizational measures to protect such personal data against unauthorized or unlawful processing and accidental loss, destruction, damage, alteration, and disclosure. Each party shall be solely responsible for meeting its own respective obligations under applicable laws, particularly regarding the handling of any consumer or data subject rights. Without prejudice to the foregoing, the parties agree to provide commercially reasonable assistance to the other party in respect of any obligations under privacy and data protection legislation. If either party processes personal data on behalf of the other, Pax8 will abide by the data processing agreement (DPA) available at https://www.pax8.com/en-us/terms/.
12.4. 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.

13. Warranties.

13.1. Pax8 Warranty. Pax8 will not make any false or misleading representations to Partners, Customers, prospective Partners or Customers, or others regarding you or the Vendor Products.
13.2. Compliance with Laws. Each party 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.
13.3. Limited Warranty; Disclaimer. VENDOR PROVIDES WARRANTIES FOR ITS VENDOR PRODUCTS DIRECTLY TO THE CUSTOMER VIA THE VENDOR SPECIFIC TERMS. PAX8 AGREES THAT IT WILL MAKE NO ADDITIONAL OR DIFFERENT WARRANTY, GUARANTEE, OR REPRESENTATION, WHETHER WRITTEN OR ORAL, ON VENDOR’S BEHALF, BEYOND THOSE WARRANTIES PROVIDED FOR BY VENDOR DIRECTLY TO THE CUSTOMER IN THE VENDOR SPECIFIC TERMS EFFECTIVE BETWEEN THE RELEVANT CUSTOMER AND VENDOR. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, VENDOR SERVICES ARE PROVIDED “AS IS,” AND VENDOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VENDOR DOES NOT REPRESENT OR WARRANT THAT THE VENDOR PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE VENDOR PRODUCTS WILL MEET PAX8’S REQUIREMENTS OR THE REQUIREMENTS OF PAX8’S PARTNERS OR CUSTOMERS.

14. Indemnification.

14.1. Vendor Infringement Indemnity. You will indemnify, defend and hold harmless Pax8 from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with a third-party claim incurred by Pax8: that any use of the Vendor Products infringes a patent, copyright, Mark, service mark, trade dress or other common law trade identity right 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 Pax8 and/or the affected Partners or Customers the right to use the Vendor Products; or (c) terminate these Terms in accordance with this Section 14 and Section 9 . You shall pay to Pax8 any damages awarded against Pax8 to the extent based on such a claim, regardless of the form of award (and specifically including any award of attorneys’ fees or costs).
14.2. Pax8 Infringement Indemnity. Pax8 will indemnify, defend and hold harmless Vendor 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 Vendor alleging that any feature of Marketplace designed or supplied by Pax8 infringes a patent, copyright, Mark, service mark, trade dress or other common law trade identity right of any third party. If a claim of infringement is made or threatened, Pax8 may, at its option: (a) replace or modify the feature to render it non-infringing; (b) secure for Vendor the right to use the feature or (c) terminate this Agreement in accordance with this Section 14 and Section 9 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).
14.3. 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 (i) a party’s breach of these Terms, or (ii) a party’s respective gross negligence, willful misconduct, or misrepresentations.
14.4. 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. The indemnifying party will have the right to control the defense; provided that, it will: (a) keep the indemnified party fully informed concerning the status of any litigation, negotiations or settlements of any such claim, demand or action; and (b) allow the indemnified party, at its own expense, to participate in such 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.

15. Limitation of Liability.

15.1. Limitation of Liability. Except for the parties’ unauthorized use or misappropriation of intellectual property or its indemnification obligations under Sections 14.1, 14.2, and 14.3(ii) or violation of applicable law, each party’s per claim liability shall be limited to proven direct damages not to exceed an amount equal to the total payments paid or payable to you for the applicable service during the twelve (12) months preceding the event giving rise to the liability at issue.
15.2. No Consequential Damages. Except for the parties’ the unauthorized use or misappropriation of intellectual property or indemnification obligations under Sections 14.1, 14.2, and 14.3(ii) or violation of applicable law, neither party will be liable to the other for any indirect, incidental, consequential, punitive, exemplary, reliance, or special damages, including without limitation damages for lost profits, advantage, savings, or revenues of any kind.

16. Contracting Entity, Governing Law, and Notices.

16.1. Successors and Assigns. These Terms shall inure to the benefit of Pax8 Inc., a Delaware company based in Colorado, on behalf of itself, its wholly owned subsidiaries, and Affiliates and their permitted successors and assigns.
16.2. Governing Law. The parties agree to the governing law of the State of Delaware without regard conflicts of law rules, and to the exclusive jurisdiction of the federal and state courts in Delaware. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms.
16.3. Notices. Transactional communications may be sent by email and are effective upon sending. Pax8 may also notify you by posting a notice on the Pax8 website (which shall be effective upon posting).It is each party’s responsibility to keep their primary email address (and any other email address specified in these Terms) current. Legal notices shall be effective upon the earliest of: (i) receipt by the party to which notice is given; (ii) on the fifth (5th) day following mailing, or (iii) on the day after sending such notice by overnight courier. Notwithstanding the foregoing, any legal notices shall be mailed to Pax8 at 5500 South Quebec Street, Suite 350, Greenwood Village, CO, 80111 USA, with a copy sent to [email protected].

17. Disputes.

17.1. 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.
17.2. 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.

18. Miscellaneous.

18.1. Relationship of the Parties. These Terms 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 these Terms, each party will be acting as an independent contractor.
18.2. Assignment. These Terms shall not be assigned by either party without the prior written consent of the other party; provided, however, that either party may, without the prior written consent of the other party, assign all of its rights under these Terms to (a) a parent, subsidiary or Affiliate of the assigning party, (b) a purchaser of all or substantially all assets related to these Terms, or (c) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which the assigning party is participating. Notwithstanding the foregoing, you will not assign these Terms to a Competitor of Pax8. For the purposes of these Terms, Competitor means any entity that resells or distributes cloud computing software and/or services. These Terms will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
18.3. 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.
18.4. Severability. If any provision of these Terms is held unenforceable or invalid under any applicable law or court decision, such unenforceability or invalidity will not render these Terms unenforceable or invalid, and such provision will be changed and interpreted to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.
18.5. Force Majeure. If either party is unable to perform any of its obligations under these Terms because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, or other event beyond the reasonable control of the affected party (Force Majeure Event), the party who has been so affected will promptly give notice to the other party and will use commercially reasonable efforts to resume performance. Upon receipt of such notice, all obligations under these Terms will be immediately suspended for the duration of the Force Majeure Event. Notwithstanding the foregoing, payment and confidentiality obligations shall never be excused or suspended for a Force Majeure Event.
18.6. Construction. The titles of the sections of these Terms are for convenience of reference only and are not to be considered in construing these Terms. Unless the context of these Terms clearly requires otherwise: (a) references to the plural include the singular, and the singular and the plural, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” and (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation.” Any reference in these Terms to any statute, rule, regulation, or agreement, including these Terms, shall be deemed to include such statute, rule, regulation, or agreement as it may be modified, varied, amended, or supplemented from time to time.
18.7. Entire Agreement. These Terms (including all exhibits or attachments) constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all prior and concurrent contracts, proposals, and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of these Terms.

END.