Marketo End User Services Agreement

Terms and Conditions

This End User Services Agreement ("Agreement") is made and entered into as of the Commencement Date of the Services shown in the Schedule to the Squiz Plus Agreement (the "Effective Date") by and between Squiz and Customer (each, a "party" and, collectively, the "parties"). Customer and Squiz hereby agree as follows:

  1. Right to Use the Services.
    1. "Services" means the Marketo software as a service products listed in the Schedule setting out the specifications of the services being acquired ("Order"). Marketo is an intended third party beneficiary of this Agreement.
    2. During the Subscription Term set forth in an Order, Customer has a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer's behalf, and who are Customer's employees, agents or contractors ("Users"), to access and use the Services subject to the terms of the Agreement.
    3. The Services are provided from a data center facility to which Users have remote access via the Internet in conjunction with certain offline components. Each Order defines specific usage rights ("Usage Rights"), and Customer shall at all times ensure that its use does not exceed its Usage Rights.
    4. Customer shall be 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"). Customer shall ensure that Equipment complies with all configurations and specifications set forth in the online documentation. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Marketo's reasonable control. Customer shall be provided advance notice by e-mail of any scheduled unavailability of the Services.
  2. Usage Restrictions and Representations.
    1. 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. 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.
    2. Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with the provision of the Services. Customer shall be responsible for maintaining the security of the Equipment and Customer's account access passwords. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for all acts and omissions of its Users.
    3. Customer represents and warrants that Customer will use the Services only in compliance with the Use Policies attached as Schedule A (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.
    4. Customer's password, account, and access to the Services may be immediately suspended if Customer violates Section 1.1, 2 or its confidentiality obligations with respect to the Services. Any suspension of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the EUSA.
  3. Ownership.
    1. Customer acknowledges that it is obtaining a right to access and use the Services, no ownership rights are being conveyed to Customer, the Services are offered as an on-line solution and 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, Customer may submit comments, questions, enhancement requests, suggestions, ideas, descriptions of processes or other information to Marketo ("Feedback"). Marketo may, in connection with any of its products or services, freely use, copy, disclose, license and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
    2. Customer owns any data, information or material originated by Customer that Customer submits, collects or provides in the course of using the Services, including information regarding Customer's social networking "connections", "followers" or other contacts activated through use of the Services ("Customer Data"). Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Services. Customer Data shall be deemed to be Customer Confidential Information.
  4. Termination. Upon any termination or expiration of an Order, Customer's right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, at Customer's request if received within 30 days of termination of the Order, Marketo will permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in Marketo's possession. Customer acknowledges and agrees that Marketo has no obligation to retain Customer Data and that Marketo will irretrievably delete and destroy Customer Data after 30 days following the termination of the Agreement.
  5. Statistical Information. Notwithstanding anything else in the Agreement or otherwise, Marketo may monitor Customer's use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer's Confidential Information. Marketo retains all intellectual property rights in such information.
  6. Notices. 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.

Schedule A

Squiz Use Policies

Email Use and Anti-Spam Policy

Marketo has a zero tolerance policy regarding the sending of Unsolicited Commercial Email ("UCE", or "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 abuse@marketo.com. It is Marketo's policy to catalog, investigate, and take appropriate action on all reports of abuse.

Acceptable Use and Requirements for Bulk or Commercial Email

Customers 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 Customers and Users have business operations or where their email recipients are located, e.g., the United States CAN-SPAM Act of 2003.

In addition, Customers 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 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. Customer shall either use the Unsubscribe tools supplied by default with the Service; or, if Customers choose to override the default tools, 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

Customer shall be knowledgeable about and at all times compliant with all privacy and data protection laws applicable to its location and operations, such as, by way of example, the European Union Data Protection Directive and member state implementations thereof.

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