Capitalised terms, unless defined otherwise within this EUSA, take on their meaning from the Agreement of which this forms a part.
This End User Services Agreement ("EUSA") is made and entered into as of the Commencement Date.
1. Right to Use the Services.
- "Services", for the purposes of this EUSA only, means the Marketo software as a service products listed in the Schedule. Marketo is an intended third party beneficiary of this EUSA.
- During the Support Period, the Customer has a nontransferable, nonexclusive, worldwide right to permit those individuals authorised by it, being the Customer's employees, agents or contractors ("Users"), to access and use the Services subject to the terms of this EUSA.
- The Services are provided from a data centre facility to which Users have remote access via the Internet in conjunction with certain offline components. The Schedule defines any specific usage rights within which the Customer ensures compliance.
- The Customer is solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, "Equipment"). The Customer shall ensure that the Equipment complies with all configurations and specifications set forth in the online documentation.
- The Services may be temporarily unavailable for scheduled maintenance, for which the Customer will be advised by email in advance. Marketo will advise the Customer by email as soon as reasonably practicable in respect of any unscheduled emergency maintenance, resulting from causes beyond Marketo's reasonable control.
2. Usage Restrictions and Representations.
- The Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services ("Marketo Materials"); (ii) modify, translate, or create derivative works based on the Services or Marketo Materials; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Marketo Materials; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services; or (iv) remove any proprietary notices or labels from the Services or Marketo Materials. The Customer shall use the Services and Marketo Materials only for its own internal business operations, and not for the operation of a service bureau or timesharing service.
- The Customer shall not knowingly or wilfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with the provision of the Services. The Customer shall be responsible for maintaining the security of the Equipment and the Customer's account access passwords. The Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Services. The Customer shall be liable for all acts and omissions of its Users.
- The Customer represents and warrants that it will use the Services only in compliance with the Use Policies attached as Schedule A to this EUSA (as may be amended from time to time upon written notice to Customer), and all applicable (i) social networking sites' terms and conditions associated with its procurement and use of Customer Data; and (ii) laws and regulations, including those related to spamming, privacy, data protection , intellectual property, consumer and child protection, pornography, obscenity or defamation.
- The Customer's password, account, and access to the Services may be immediately suspended if the Customer violates this EUSA including its confidentiality obligations with respect to the Services. Any suspension of the Services under the preceding sentence shall not relieve the Customer of its payment obligations under the EUSA
- The Customer acknowledges that it is obtaining a right to access and use the Services with no ownership rights being conveyed to it. The Services are offered as an on-line solution and the Customer has no right to obtain a copy of the Services. Marketo reserves all intellectual property rights in and to the Services and Marketo Materials, including all derivatives or improvements. From time to time, the Customer, solely at its discretion, may submit comments, questions, enhancement requests, suggestions, ideas, descriptions of processes or other information to Marketo for which Marketo may use in an anonymous manner in order to further develop and/or improve the Services, without any liability to the Customer for using such information for this purpose.
- The Customer owns any data, information or material originated by the Customer that the Customer submits, collects or provides in the course of using the Services, including information regarding the Customer's social networking "connections", "followers" or other contacts activated through use of the Services ("Customer Data"). The Customer shall be solely responsible for the accuracy, quality, content and legality of the Customer Data, the means by which the Customer Data is acquired and the transfer of the Customer Data outside of the Services. The Customer Data shall be deemed to be Customer Confidential Information.
Upon termination of the MSA or a Schedule including Services pursuant to this EUSA, the Customer's right to access and use the Services shall terminate. Notwithstanding, at the Customer's request if received within 30 days of termination of such MSA or Schedule Marketo will permit the Customer to access the Services solely to the extent necessary for the Customer to retrieve a file of Customer Data then in Marketo's possession. The Customer acknowledges and agrees that Marketo has no obligation to retain Customer Data and that Marketo will irretrievably delete and destroy Customer Data 30 days following the termination of such MSA or Schedule.
5. Statistical Information.
Marketo may compile aggregated, anonymous statistical information across its entire customer base regarding the performance of the Services for the purposes of its own marketing, for which it maintains intellectual property rights. Marketo undertakes not to incorporate any Customer Data nor identify any Customer Confidential Information in such marketing materials.
Marketo may give notice applicable to its general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer's e-mail address on record in Marketo's account information.
Email Use and Anti-Spam Policy
Marketo has a zero tolerance policy regarding the sending of unsolicited commercial email ("spam") using the Service. Any Customer or User account found to be in violation of this policy is subject to immediate suspension, and will not be allowed to send any additional emails using the Service.
Recipients of email messages sent using the Service are encouraged to report suspected violation of this policy by forwarding a copy of the received email to email@example.com. It is Marketo's policy to catalogue, investigate, and take appropriate action on all reports of abuse.
Acceptable Use and Requirements for Bulk or Commercial Email
The Customer and Users shall comply with all laws and regulations applicable to bulk or commercial email when using the Service, including without limitation all local or national laws applicable to the regions where the Customer and Users have business operations or where their email recipients are located.
In addition, the Customer and Users may not send any Unsolicited Email by use or means of the Service. "Unsolicited Email" is defined as email sent to persons other than: (i) persons with whom the Customer has an existing business relationship, OR (ii) persons who have consented to the receipt of such email, including publishing or providing their email address in a manner from which consent to receive email of the type transmitted may be reasonably implied.
All Bulk or Commercial Email sent using the Services must include provision for recipients to revoke consent, i.e., to "opt out", of receiving future email contacts from the sender. The Customer shall either use the Unsubscribe tools supplied by default with the Service; or, if the Customer chooses to override the default tools, the Customer shall have procedures in place to allow an email recipient to easily opt-out, such as an unsubscribe link in the body of the e-mail, or instructions to reply with the word "Remove" in the subject line. Customer shall honor any and all such revocations of consent within 72 hours.
Privacy and Data Protection
The Customer shall be knowledgeable about and at all times compliant with all privacy and data protection laws applicable to its location and operations.