Pax8 Direct Customer Terms

These Pax8 Direct Customer Terms (Terms) set out the terms and conditions that govern your access to and use of the Pax8 Marketplace and all products and services that you purchase from Pax8 (as defined in Section 18.2 below), including third party vendor products (Vendor and Vendor Products respectively, and collectively, Pax8 Products).

These Terms take effect the earlier of (a) when you (Customer, you or your) accept these Terms or (b) when you use or purchase the Pax8 Products (Effective Date). If you are an individual entering these Terms on behalf of an entity, you represent and warrant that you have the legal authority to bind that entity to these Terms. You represent to us that you are lawfully able to enter into a contract (for example, you are not a minor). 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. Your continued access to and use of your Account, the Pax8 Marketplace and/or the Pax8 Products constitutes your acceptance of the updated terms.

1. Customer Responsibilities.

1.1. Account Access. To access the Pax8 Marketplace and the Pax8 Products, you must accept these Terms and establish an account with Pax8 that is associated with a valid email address and a valid form of payment (Account). You must provide any additional information reasonably required by Pax8 for verification of your Account information and you agree and acknowledge that Pax8 may conduct a credit check as part of the Account verification process. We reserve the right to reject a request to establish a new Pax8 Account for any reason, and to suspend your Account or your Pax8 Marketplace access in our sole discretion. You will comply with these Terms and all laws, rules, and regulations applicable to your access to and use of the Pax8 Marketplace and Pax8 Products. Unless explicitly permitted by Pax8, you will only create one Account per email address. Except to the extent caused by our breach of these Terms, (a) you are responsible for all activities that occur under your Account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or end users), and (b) we and our affiliates are not responsible for unauthorized access to your Account.

1.2. No Resale. Unless expressly authorized by Pax8 in writing, you may access and use Pax8 Products only for your internal business use, and not for resale or distribution.

1.3. Your Security and Backup: You are responsible for properly configuring and using the Pax8 Products and otherwise taking appropriate action to secure, protect and backup your systems and your data in a manner that will provide appropriate security and protection, unless we have a separate agreement with you for configuration or implementation services.

1.4. End Users. You will be deemed to have taken any action that you permit, assist, or facilitate any person or entity to take related to these Terms, the Pax8 Marketplace and/or the Pax8 Products. You are responsible for End Users’ use of the Pax8 Products, and for their compliance with your obligations under these Terms. If you become aware of any violation of your obligations under these Terms caused by an End User, you will immediately suspend access to Pax8 Products for such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services. End User means any individual or entity that directly or indirectly through another user accesses or uses Pax8 Products or the Pax8 Marketplace under your Account.

1.5. Specific Product Terms. Customer acknowledges and agrees that many Pax8 Product licenses are subject to specific terms, which may be made available directly by the Vendor, via the Pax8 Marketplace, or otherwise by Pax8 (collectively Specific Product Terms) which may be added and/or amended from time to time. While Pax8 will endeavor to make the applicable Specific Product Terms available, the Customer shall be solely responsible for ensuring it complies with the applicable Specific Product Terms from the Vendor at any given time. If there is any conflict between these Terms and the Specific Product Terms (including, but not limited to, any warranties, indemnities, support obligations or other terms set forth in the Specific Product Terms), the Specific Product Terms shall prevail. By using any Pax8 Product that is subject to Specific Product Terms, Customer agrees that it has reviewed and will comply with the Specific Product Terms which are incorporated into these Terms by reference.

2. Our Responsibilities.

2.1. Pax8 Marketplace. The Pax8 Marketplace is the proprietary technology platform developed by Pax8 for the ordering, provisioning, managing, and billing of Pax8 Products. Pax8 will make the Pax8 Marketplace accessible to you, subject to these Terms and any other terms or procedures provided by Pax8. You agree that Pax8 has the right to suspend such access in its sole reasonable discretion. You may only permit your authorized employees to access the Pax8 Marketplace. You are responsible for ensuring that such access is in accordance with these Terms.

2.2. Notice of Changes to Pax8 Products. Pax8 may discontinue or reduce the availability of any or all Pax8 Products upon sixty (60) days’ notice provided through the Pax8 Marketplace or email communication. Pax8 will not be obligated to provide such notice under this Section 2.2 if the discontinuation is necessary to (a) address an emergency, or risk of harm to the Pax8 Marketplace or to Pax8; (b) respond to claims, litigation, or loss of license rights related to third party intellectual property rights, or (c) comply with law. However, should any of the preceding occur Pax8 will provide you with as much prior notice as is reasonably practicable under the circumstances. Pax8 reserves the right to add new Pax8 Products without notice.

2.3. Security. We will implement reasonable and appropriate measures designed to secure any of your data or content that is stored in the Pax8 Marketplace or any other Pax8 system.

3. Ordering and Technical Support.

3.1. Orders. Only the transaction-specific terms of an order, such as quantity, price, payment terms, subscription/order term and billing/provisioning contact information will have any force and effect. You are solely responsible for ensuring that orders are accurate and are correctly submitted via the Pax8 Marketplace or your account representative, as applicable. Pax8 shall not be liable for any costs or losses resulting from inaccurate, incorrect, or incomplete orders, or any delays or failures in submitting orders. Pax8 reserves the right to reject any orders or renewals in its sole discretion.

3.2. Technical Support. Customer is solely responsible for providing support to itself for Pax8 Products. However, Pax8 may, at its discretion, elect to provide Customer reasonable technical support via email, telephone or other methods adopted by Pax8. Customer agrees to provide relevant information about the Customer’s computer systems, networks, and software as requested by Pax8 for order or renewal fulfillment, support and/or data security and privacy.

4. Subscription Term. Subscription terms for Pax8 Products are set forth in the Pax8 Marketplace or in the applicable order form or order confirmation (each a Subscription Term). Unless terminated earlier in accordance with these Terms and/or the Specific Product Terms (if applicable), the Subscription Term automatically renews for successive equal Subscriptions Terms. Where permitted by the Vendor, any fees for licenses added to an existing subscription during the Subscription Term shall be prorated based on the time remaining in the existing Subscription Term, such that the term for the additional licenses co-terminate with the existing Subscription Term.

5. Access & Use Rights.

5.1. Evaluation. If evaluation use of a Pax8 Product is obtained via Pax8 (Evaluation Product), these Terms apply to such evaluation use and the following additional terms apply: (a) the duration of the evaluation is as mutually agreement between you and Pax8 or as specified by the applicable Vendor, provided that access to the Evaluation Product may be terminated at any time by Pax8 or the applicable Vendor; and (b) Evaluation Products are provided “AS-IS” without warranty of any kind, and Pax8 disclaims all warranties, support obligations, and other liabilities and obligations for the Evaluation Products.

5.2. Access & Use Rights. Your use of any Pax8 Products is subject to these Terms, the Specific Product Terms, and is solely for your internal use during the applicable Subscription Term. Your access and use is limited to the quantity ordered. Subject to these Terms and any applicable Specific Product Terms, Pax8 retains all right, title and interest in and to the Pax8 Marketplace and any Pax8 Products that are owned by Pax8 as well as any derivative works thereof, which shall remain proprietary business assets of Pax8, including without limitation, copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights.

5.3. Restrictions. You may not (i) alter, publicly display, translate, create derivative works of or otherwise modify a Pax8 Product; (ii) sublicense, distribute or otherwise transfer Pax8 Product to any third party (except as expressly provided in the Section 19.1 (Assignment); (iii) allow third parties to access or use a Pax8 Product or the Pax8 Marketplace; (iv) create public Internet “links” to a Pax8 Product or the Pax8 Marketplace; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for any Pax8 Product or the Pax8 Marketplace (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to any Pax8 Product or the Pax8 Marketplace or its related systems or networks; or (vi) use a Pax8 Product or the Pax8 Marketplace to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction.

6. Fees and Payment.

6.1. General. We calculate and bill fees and charges monthly. We may bill you more frequently for fees accrued if we reasonably suspect that your Account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for the Pax8 Products set forth in the Pax8 Marketplace using one of the payment methods we support. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Pax8 Product will be effective when we post updated fees and charges in the Pax8 Marketplace and will be charged at the then current rate for the applicable invoicing month.

6.2. Price Increases. We may implement pricing increases upon thirty (30) days’ notice provided through the Pax8 Marketplace, provided however, that pricing increases required by a Vendor may be implemented by us at any time.

6.3. Past Due Amounts. Any payment not completed within ten (10) days following the invoice date for any undisputed fees, shall be deemed a payment default (Payment Default) constituting a material breach of these Terms. Any unpaid and undisputed fees shall be deemed a Past Due Amount. Upon a Payment Default by you, we the reserve right to (a) immediately suspend the provision of Pax8 Products to you and cease accepting new orders for Pax8 Products and (b) terminate your Pax8 Marketplace access and your Account. Pax8 will charge Customer interest for Past Due Amounts at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Payments will be credited first to any Past Due Amounts, including any interest charges, then to any other unpaid balance. Pax8 may refer collection of the Past Due Amounts to an attorney or collections agency and Customer shall be responsible for all collection and/or legal fees related to any Payment Default and Past Due Amounts.

6.4. Billing Disputes. Customer agrees that it will not dispute any Pax8 charges with Customer’s financial institution where the transaction corresponds to the terms of the order. Any costs incurred by Pax8 due to any wrongful dispute will automatically be added to Customer’s next invoice. Customer must dispute any good faith billing discrepancy within thirty (30) calendar days of the invoice date by emailing Pax8 at [email protected]. Customer must include the invoice number and an explanation of the discrepancy. Pax8 and Customer will use commercially reasonable efforts to resolve the dispute within thirty (30) days. Customer shall not withhold payment to Pax8 for any undisputed amounts.

6.5. Taxes. All stated fees on the Pax8 Marketplace will be exclusive of taxes and levies. Pax8 may include applicable taxes on the related invoice unless the Customer provides Pax8 with an appropriate certificate of exemption from such taxes. Regardless of any inclusions on the invoice, Customer will be liable for the payment of any taxes due under any applicable laws in relation to its access to or resale of the Pax8 Products. Customer will indemnify and hold Pax8 harmless from any obligation to pay any such taxes and any damages or losses (including reasonable attorneys’ fees and costs of litigation) incurred by Pax8 relating to the same.

7. Term.

These Terms will take effect on the Effective Date and remain in effect until your Account is terminated in accordance with Section 8 (Termination). Any notice of termination by either party to the other must include a termination date that complies with the notice requirements in Section 17 (Notices).

8. Termination.

8.1. Termination for Convenience. You may terminate your Account for any reason by providing us at least 30 days’ advance written notice and terminating your subscriptions for all Pax8 Products in accordance with Specific Product Terms. We may terminate your Account (including your access to the Pax8 Marketplace and/or the Pax8 Products) for any reason by providing you at least 30 days’ advance notice.

8.2. Termination for Cause:

a. By Either Party: Either party may terminate these Terms and any applicable Subscription Terms, upon written notice to the other party if the other party breaches any material term or condition of these Terms, and such breach is not cured to the non-breaching party’s satisfaction within thirty (30) days of the written notice specifying the breach or immediately if the breach is incapable of being cured

b. By Us. We may also terminate your Account immediately upon notice to you if: (i) Pax8 is required to terminate a Pax8 Product pursuant to Specific Product Terms or any other applicable terms of a third-party Vendor; (ii) Customer ceases to carry on its business; (iii) a receiver is appointed for Customer or its property; (iv) Customer makes an assignment for the benefit of its creditors; (v) any proceedings are commenced by, for, or against Customer under any bankruptcy, insolvency, or debtor’s relief law for the purpose of seeking a reorganization of Customer’s debts, and such proceeding is not dismissed within sixty (60) calendar days of its commencement; (vi) Customer is liquidated or dissolved; (vii) unprofessional conduct towards Pax8 employees; (viii) breach of any other agreement with Pax8, including the Pax8 Privacy Policy and the Data Processing Agreement located here https://www.pax8.com/en-us/terms/, or (ix) where Pax8 reasonably determines that any such events are probable.

8.3. Effect of Termination:

a. Unless otherwise agreed in writing by Pax8, your access to the Pax8 Marketplace will immediately terminate; and

b. You will continue to be liable for any ongoing fees relating to any remaining Subscriptions Terms that cannot be terminated early in accordance with the Specific Product Terms. Pax8 will invoice Customer, according to its regular billing schedule, for all outstanding fees. Customer shall remit payment by the invoice due date.

c. Expiration or termination of these Terms will not relieve either party from its obligations arising prior to such expiration or termination. Rights and obligations which by their nature would ordinarily be expected to survive the expiration or termination of these Terms will remain in effect after the termination or expiration of these Terms.

9. Marketing and Communications.

Customer acknowledges that to meet the obligations under these Terms, Pax8 may from time to time send electronic communications, such as newsletters, service alerts, and information, to Customer, and Customer hereby consents to receiving such communications, and will not attempt to opt-out of such communications.

10. Proprietary Rights.

10.1. Marks. For the purposes of these Terms, Marks (or the singular Mark), means any names, logos, icons, design elements, trade dress, or anything else (whether registered or unregistered) that Pax8 and/or the Vendors of any Pax8 Product may use to identify and distinguish its goods or services from those of others. Pax8 and the Vendors of each Pax8 Product own and retain all proprietary rights in their respective Marks. If Customer acquires any rights in any of the Marks or any marks, names, designs or logos similar thereto, in any country in the world, by operation of law or otherwise, it will immediately, at no cost or expense to the Vendor or Pax8, assign such rights to the relevant Vendor(s) or Pax8 along with all associated goodwill, and take any reasonable action, including the execution of documents, to evidence such assignment. Customer is granted no right, title, or license to, or interest in, any of the Marks. Customer acknowledges and agrees that any use of the Marks by Customer will inure to the sole benefit of Pax8 or the relevant Vendor. You will not misrepresent or embellish the relationship between us and you or between you and a Vendor (including by expressing or implying that Pax8 and/or a Vendor supports, sponsor, endorses or contributes to you or our business endeavors). You will not imply any relationship or affiliation between you and Pax8 or you and a Vendor except as expressly permitted by these Terms or any applicable Specific Product Terms.

10.2. Customer Data. Customer acknowledges and accepts that Pax8 may use any data stored in or accessed through the Pax8 Marketplace, or otherwise collected by Pax8 for its own internal business purposes, including for analysis, product development, product and service enhancements and for the purpose of creating and sharing insights within its marketing, on the Pax8 Marketplace or other public facing material, provided that any such marketing or public facing material shall not include Confidential Information (defined in Section 13 (Confidential Information)). Pax8 shall retain all title to and in any aggregated, anonymized, or non-identifiable data collected or derived hereunder.

10.3. Suggestions. If you provide any suggested improvements to the Pax8 Products or the Pax8 Marketplace, we will be entitled to use the suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the suggestions.

11. Compliance with Applicable Laws.

Each party shall comply with all applicable laws and regulations regarding the general conduct of business including without limitation all relevant anti-corruption and anti-bribery laws, including the United States Foreign Corrupt Practices Act, U.K. Bribery Act 2010, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

12. Export Restrictions.

Customer agrees to comply with all relevant U.S. and foreign export and import laws that apply to the Pax8 Products and any related products or services. Without limiting the foregoing, Customer represents and warrants that it is not, and that it will not market or resell the Pax8 Products to any party that is (a) listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country;  and (b) Customer will not access or use any Pax8 Products in violation of any U.S. export embargo, prohibition or restriction or with any information controlled under the U.S. International Traffic in Arms Regulations.

13. Confidential Information.

13.1. General. Confidential Information means information that is disclosed or otherwise made available by either party under these Terms, or to which the other party has access under these Terms, that the receiving party knows or should reasonably be expected to know is proprietary or confidential. Confidential Information includes user IDs and passwords that allow Customer to access the Pax8 Marketplace. 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.

13.2. Use of Confidential Information. A party receiving Confidential Information will restrict its use to purposes necessary for the performance of the receiving party’s obligations or the exercise of the receiving party’s rights under these Terms. The receiving party will safeguard against the unauthorized disclosure of the Confidential Information to third parties using the same degree of care to prevent disclosure as it uses to protect its own information of like importance, but at least reasonable care. The receiving party will limit disclosures of Confidential Information to its employees and professional advisors to those necessary to carry out these Terms. The receiving party will inform such individuals of the limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information imposed by these Terms and will be responsible for any breach. Except as expressly authorized in these Terms, the receiving party will not use, make, or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of the disclosing party. The receiving party will notify the disclosing party immediately after learning of or having reason to suspect any breach of this Section 13. In the event that the receiving party is required to disclose Confidential Information pursuant to law, to the extent legally permissible, 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.

13.3. Disposal of Confidential Information. Upon the expiration or earlier termination of these Terms, the receiving party will immediately terminate all use of and return to the disclosing party all Confidential Information and all copies thereof or, at the disclosing party’s instruction, will certify in writing that it has destroyed the same. Notwithstanding the foregoing, neither the Recipient nor any of its representatives shall be required to destroy any electronic copy of Confidential Information that is created pursuant to its or their standard electronic backup and archival procedures and stored until the ordinary course deletion thereof. In addition, the Recipient and its Representatives may each retain: (a) one copy of any Confidential Information to the extent required to defend or maintain any litigation relating to these Terms or the Confidential Information, or to comply with established document retention policies; and (b) such copies of the Confidential Information to the extent required to comply with requirements of applicable law, regulation, or rule or any requirement or request of any legal, regulatory, governmental, or supervisory authority; provided, however, that the Recipient and its Representatives shall continue to be bound by the terms and conditions of these Terms with respect to such retained Confidential Information.

14 Security and Data Privacy.

14.1. Each party acknowledges and agrees that it each acts as a data controller in its own right in relation to any personal data that it may collect, access or process during its fulfillment of these Terms. Each party will process personal data in accordance with all applicable privacy and data protection laws and will implement and always maintain appropriate technical and organizational measures to protect such personal data against unauthorized or unlawful processing and accidental loss, destruction, damage, alteration, and disclosure. Each party shall be responsible for meeting its own obligations under applicable laws, particularly regarding the handling of any consumer or data subject rights. Without prejudice to the foregoing, the parties agree to provide commercially reasonable assistance to the other party in respect of any obligations under privacy and data protection legislation.

14.2 Each party shall always comply with its respective obligations under all applicable laws relating to data privacy while performing its obligations under these Terms. Customer agrees that, if new laws and legislation apply in the field of data protection, it will fully cooperate to ensure strict compliance with such new laws and legislation, including entering into data protection agreements, as reasonably requested by Pax8.

14.3. Where either party does process personal data on behalf of the other, such processing with be in accordance with the Data Processing Agreement located here https://www.pax8.com/en-us/terms/.

14.4. Where Pax8 may be deemed a Business Associate of a covered entity as such term is defined in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended by the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009, Public Law 111-005 and the regulated regulations promulgated by U.S. Department of Health and Human Services (collectively, HIPAA), the Business Associate Addendum located at here https://www.pax8.com/en-us/terms/ shall apply.

15. Disclaimer of Warranties.

CUSTOMER 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 OR SERVICES, AND THE PAX8 MARKETPLACE. CUSTOMER RECEIVES PAX8 PRODUCTS AND THE PAX8 MARKETPLACE FROM PAX8 “AS-IS.” PAX8 SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY ANY PAX8 PRODUCT, THE PAX8 MARKETPLACE OR ANY PAX8 TECHNICAL SUPPORT SERVICES , 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. CUSTOMER ACKNOWLEDGES THAT DISSATISFACTION WITH ANY PAX8 PRODUCTS, AND THE PAX8 MARKETPLACE, OR ANY PAX8 SERVICES WILL NOT RELIEVE CUSTOMER OF ANY OBLIGATION UNDER THESE TERMS. THIS SECTION 15 SHALL APPLY TO CUSTOMER AND ANY OF CUSTOMER’S END USERS. IN ADDITION, PAX8 MAKES NO REPRESENTATION OR WARRANTY AS TO THE AVAILABILITY OR CONTINUATION OF ANY SPECIFIC PAX8 PRODUCT OR SERVICE.

16. Indemnification.

16.1. Customer will indemnify, defend, and hold harmless Pax8 from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with a third-party claim relating to:

a. Your or an End User’s violation of these Terms;

b. Your misrepresentations relating to Pax8;

c. A dispute between you and any End User; or

d. Your or an End User’s use of the Pax8 Products regardless of the form of action.

16.2 Pax8 will indemnify, defend, and hold harmless Customer 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 Marketplace infringes a United States patent, copyright, or trademark. If a claim of infringement is made or threatened, Pax8 may, at its option:

a. replace or modify the Pax8 Marketplace to render it non-infringing;

b. secure for Customer the right to use the Pax8 Marketplace; or

c. terminate any impacted Pax8 Products.

16.3. Each party will provide the other party with prompt written notice of any claim, demand, or action for which it is seeking or may seek indemnification hereunder. The indemnifying party will have the right to control the defense; provided that, it will:

a. keep the indemnified party fully informed concerning the status of any litigation, negotiations, or settlements of any such claim, demand, or action; and

b. allow the indemnified party, at its own expense, to participate in litigation, negotiations and settlements with counsel of its own choosing; and provided further that, the indemnifying party will not have the right to settle any claim without the indemnified party’s written consent if such settlement arises from or is part of any criminal action, suit or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the indemnified party.

17. Limitation of Liability.

17.1. EXCEPT WITH RESPECT AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, PAX8’S AGGREGATE LIABILITY UNDER THESE TERMS, WHETHER FOR BREACH OF CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY, IS LIMITED TO THE AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

17.2. IN NO EVENT WILL PAX8 BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS, PAX8 PRODUCTS, THE PAX8 MARKETPLACE, OR ANY PAX8 TECHNICAL SUPPORT SERVICES (INCLUDING LOSS OF BUSINESS, THE COSTS OF PROCURING SUBSTITUTE SERVICES, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF PAX8 HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

17.3. NOTWITHSTANDING THE FOREGOING, SUCH LIMITATION OF LIABILITY SHALL NOT LIMIT CLAIMS FOR INDEMNIFICATION.

18. Contracting and Billing Entity; Governing Law, Notices.

18.1. These Terms shall inure to the benefit of Pax8, Inc., a Delaware corporation based in Colorado, on behalf of itself, its subsidiaries, and affiliates.

18.2. The Pax8 entity (Pax8, we or us) and the governing law, without regard conflicts of law rules, and to the exclusive jurisdiction of the applicable courts, will be determined by the geographic region set forth in Table A below in which Customer’s principal business address is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

18.3. The Pax8 billing entity will be as set out in the applicable invoice based on the country associated with your Account, which shall be determined in the order of a) your tax registration if provided to Pax8; b) where your payment method is issued if your contact address is also in that country; or c) where your billing address is located.

18.4. Any notice required or permitted to be given under these Terms shall specifically refer to these Terms and:

a. Except as otherwise stated by these Terms, notices to Pax8 shall be mailed to the respective Pax8 entity set forth in Table A below based on the geographic region in which your principal business address is located, providing always that a copy is also sent to [email protected], and

b. You accept that communications from Pax8 may be electronic and agree that all electronic communications that Pax8 provides to you are acceptable and effective as notice. As such, Pax8 may notify you by posting a notice on the Pax8 website or the Pax8 Marketplace (which shall be effective upon posting) or sending a message to the email address then associated with your Account (which shall be effective upon sending). It is your responsibility to keep your email address current.

18.5. Notices shall be effective upon the earliest of: (i) receipt by the party to which notice is given; (ii) on the fifth (5^th) day following mailing, or (iii) on the day after sending such notice by overnight courier, or (iv) as stated in Section 18.4(b).

19. Miscellaneous

19.1. Assignment. Customer shall not assign, subcontract, or otherwise transfer (by merger, operation of law or in any other manner) these Terms, Special Product Terms, or any Pax8 Product without the prior written consent of Pax8, not to be unreasonably withheld. Any attempted assignment, subcontract or other transfer without such consent will be void. Pax8 may assign these Terms to a successor in interest to all or substantially all its business or assets. These Terms will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

19.2. Equitable Relief. Each party acknowledges that any breach or threatened breach of these Terms involving an unauthorized use of the other party’s Confidential Information or intellectual property, or use of Marks, may result in irreparable harm for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, the non-breaching party will be entitled to seek injunctive or other equitable relief, as appropriate, without posting any bond.

19.3. Attorney and Expert Fees. The prevailing party in any controversy arising out of these Terms will be entitled to recover its reasonable attorney and expert fees and costs, in addition to any other relief to which it may be entitled.

19.4 Relationship of the Parties. These Terms do not make either party the agent of the other, or create a partnership, joint venture, or similar relationship between the parties. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to these Terms, each party will be acting as an independent contractor.

19.5. Inspection. In the event Pax8 is audited or reasonably believes that you are not in compliance with these Terms, Customer will permit Pax8 or its representatives to review Customer’s facilities and records to ensure compliance with these Terms. Pax8 will give you at least ten (10) days’ advance notice of any such inspection and will conduct any such inspection during normal business hours in a manner that does not unreasonably interfere with your operations. Pax8 undertakes to keep any information accessed during such inspection strictly confidential and Pax8 shall not provide such information to any third party, unless required by law.

19.6. Waiver. No failure by either party to take any action or assert any right hereunder will be deemed a waiver of such right. Any waiver must be in writing from a suitably authorized person within Pax8.

19.7. 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.

19.8. Force Majeure. If either party is unable to perform any of its obligations under these Terms because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, or other event beyond the reasonable control of the affected party (a Force Majeure Event), the party who has been so affected will immediately give notice to the other party and will use commercially reasonable efforts to resume performance. Upon receipt of such notice, all obligations under these Terms will be immediately suspended for the duration of the Force Majeure Event. Notwithstanding the foregoing, payment obligations shall never be excused or suspended for a Force Majeure Event.

19.9. Entire Agreement. These Terms (including any applicable Specific Product Terms), as updated by Pax8 from time to time, constitutes the complete agreement between the parties relating to the subject matter herein and shall supersede all prior and concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the same.

19.10. Language. Unless otherwise agreed in writing, all communications and notices made or given pursuant to these Terms must be in the English language. If Pax8 provides a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.

19.11. No Third-Party Beneficiaries. Except as otherwise set forth in these Terms, these Terms does not create any third-party beneficiary rights of any individual or entity that is not a party to these Terms.

END.