MARKETO EMEA, LIMITED
MASTER ALLIANCE AGREEMENT
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Marketo EMEA MAA Clickthrough_20161207 Confidential
This Master Alliance Agreement and associated Program Exhibits (“Agreement”) govern the participation of Your Company and solutions in the Marketo EMEA, Limited (“Marketo”) Alliance and Digital Services Partner Program as may be amended by Marketo from time to time (“Partner Program”). The individual who clicks the "I Accept" button (“You” or “Your”) on the Marketo Partner Website hereby represents that You have the authority to bind Your company (“Company”) to the legally binding terms and conditions of the Agreement. If You do not have that authority, or if You do not agree with these terms and conditions, Your Company may not participate in the Partner Program. This Agreement is effective between Company and Marketo as of the date of Marketo’s acceptance.
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Marketo EMEA MAA Clickthrough_20161207 Confidential
1. SCOPE OF AGREEMENT. This Agreement is entered into by the parties in connection with Company’s enrollment in the Marketo Alliance Program and provides the framework for Marketo and Company to (a) market certain software-as-a-service offerings and/or other products or services made available by the other party (“Solution(s)”), to existing and potential customers (each, a “Lead”) and (b) make the other party’s Solutions available to Qualified Leads (as defined in Section 3.1 below) via the program(s) described in one or more exhibits to this Agreement that have been executed by the parties (e.g., Services Partner, Training Use) (each, a “Program Exhibit”). Once a Qualified Lead has executed an agreement to receive Solutions under the terms of this Agreement and the applicable Program Exhibit, such Qualified Lead shall be deemed a “Customer” under this Agreement.
2. APPOINTMENT AND AUTHORITY.
2.1 Appointment; Description of Authority. Each party hereby appoints the other, and each party hereby accepts such appointment, as non-exclusive representatives under the terms and conditions set forth in this Agreement and each applicable Program Exhibit. In such capacity, each party’s authority under this Agreement shall be limited to: (a)promoting and discussing with Leads those Solutions authorized by the other party pursuant to the applicable Program Exhibit; provided that the owner of the Solution(s) will have the right to update such authorized Solutions at any time upon written notice to the other party; (b)providing descriptions and information about such Solutions to Leads in accordance with the provisions of this Agreement; (c) demonstrating the other party’s Solutions, if applicable, to Leads in accordance with Section2.3 below; (d)performing the tasks listed in Section3 below or such other tasks as the parties shall mutually agree upon; (e)submitting Leads for qualification in accordance with Section 3.1 below; and (f)making such Solutions available to Qualified Leads (as defined below) in accordance with this Agreement and each applicable Program Exhibit. Neither party has the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of the other party nor shall either party be liable for any acts, omissions to act, contracts, commitments, promises or representations made by the other party.
2.2 Collateral. In conjunction with referring Leads, each party shall have the authority to provide such Leads with high-level Solution descriptions, sales and marketing brochures and other collateral material supplied or specifically approved by the owner of such Solution(s) in writing (“Collateral”). The receiving party shall have no right to make any changes, additions or other modifications to such Collateral.
2.3 solutions Demonstrations; Restrictions. If expressly included in a Program Exhibit, each party shall have the authority to provide demonstrations of the other party’s authorized Solutions to Leads in accordance with this Section2.3. Subject to the foregoing and other terms and conditions of this Agreement, each party hereby grants to the other a nonexclusive, non-sublicensable, nontransferable (except as set forth in Section 12.2 below), royalty-free, limited license to perform and display any Solution made available by its owner for demonstration purposes in a non-production environment solely for the purpose of demonstrating such Solution to Leads. Marketo or Company shall not use the other party’s Solutions except as explicitly provided under this Section2.3. Without limiting the foregoing, neither party shall directly or indirectly use or otherwise exploit the other party’s Solutions under this Agreement for its own internal productive use or for commercial exploitation. To the extent such restriction is permitted by law, neither party shall reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from any software or any part thereof provided in object code format as part of the other party’s Solutions. Except as expressly provided herein, neither party may use, modify, reproduce, sublicense, distribute or otherwise provide to third parties the other party’s Solution, in whole or in part. Neither party shall remove, obscure or alter any proprietary notices on the other party’s Collateral or Solutions, including, but not limited to, copyright notices and shall not permit any third party to do so.
3. QUALIFICATION; DISTRIBUTION.
3.1 Lead Qualifications. For each interested Lead, Marketo and Company shall comply with the Lead qualification process set forth within the applicable Program Exhibit (the “Lead Qualification Process”). Upon qualification of a Lead pursuant to the Lead Qualification Process, each Lead shall be deemed a “Qualified Lead” under this Agreement. Upon request, each party shall discuss each Qualified Lead in detail with the other party and shall provide all relevant non-confidential information it has regarding each Qualified Lead and the relevant commercial market conditions.
3.2 Solution Distribution Terms. Each party may make the other party’s Solutions available to Customers solely in accordance with each mutually executed Program Exhibit. Each of Marketo and Company shall conduct all of its business in its own name, in a businesslike and professional manner and in a manner that reflects well upon the other party and its brands. Neither party will engage in any deceptive, misleading, illegal or unethical business practices. Except as may be expressly authorized in each applicable Program Exhibit, neither party shall make representations or guarantees concerning the other party’s Solutions, accept the return or cancellation of, or make any allowance for such Solutions.
3.3 Compliance with Policies; Further Assistance. Company shall abide by the applicable policies and procedures of the Marketo Alliance Program as in effect from time to time as may be communicated to Company. Each party shall furnish such other assistance as the other party may from time to time reasonably request.
3.4 Marketing Information; Demonstrations. From time to time each party shall supply the other with the Collateral to enable such party to perform its duties and obligations under this Agreement. At a time and location mutually agreed upon by the parties, each party shall provide a demonstration of the Solutions to the other party’s personnel.
3.5 Non-Exclusive Relationship. This Agreement is non-exclusive and either party may enter into similar relationships with other third parties or, subject to all intellectual property rights and Confidential Information restrictions set forth herein, develop, market and sell products and services that compete with the other party.
4. JOINT RIGHTS AND OBLIGATIONS.
4.1 Integrations. The parties may, from time to time, assist and cooperate in the joint design and development of methods of integrating their respective Solutions (each, an “Integration”). Each party will provide support to its own Customers for each such Integration for the purpose of providing Customers and Leads an integrated solution that will allow the systematic exchange of data and interface between the parties’ respective Solutions in accordance with this Agreement. The terms and conditions of all such integration efforts shall be mutually agreed upon by the parties in writing. Notwithstanding the foregoing, the parties will complete any specific Integrations set forth in an attachment to applicable Program Exhibits in accordance with any specifications and timelines set forth therein.
4.2 Publicity. Marketo and Company agree to develop and execute a joint marketing plan as part of each applicable Program Exhibit, which will define mutually agreed upon marketing and public relations activities that may include a press release and/or blog posts (the form and content of which will have been reviewed and approved in advance by each of the parties) announcing their cooperative efforts and respective goals at a mutually agreed upon date. In addition, during the Term (as defined below), Marketo and Company agree to explore opportunities for additional press releases, events, promotions, co-branded advertising and other public relations and marketing collateral, may display the other party’s corporate logo on their respective internet website, as well as a brief description of the other party’s business. Notwithstanding the foregoing, the parties hereby agree to any specific publicity rights set forth in a Program Exhibit.
4.3 Intellectual Property Rights. As between the parties, each party or its licensors owns or has license rights to its own Solutions, Proprietary Marks (defined in Section 7 below), Confidential Information, Collateral and other items provided to the other party under this Agreement and shall at all times continue to retain full and exclusive right, title and ownership and/or license, as the case may be, in and to all of the foregoing and in any and all intellectual property rights therein, including, but not limited to, all rights in related patents, trademarks, copyrights and proprietary and trade secret rights and know-how (“Intellectual Property Rights”). Neither party shall have any right to use any of the other party’s Solutions, Proprietary Marks, Confidential Information, Collateral or other items provided hereunder except as expressly licensed in this Agreement or in one or more Program Exhibits.
4.4 Security and Privacy. In connection with its performance under this Agreement and any Program Exhibits hereto, each party agrees to comply with all applicable data privacy and security laws, rules and regulations, including, without limitation, those related to processing, storage, use, reuse, disclosure, protection, transmission and handling of third party information and data. Neither party shall have any right to use any of the other party’s Solutions, Proprietary Marks, Confidential Information, Collateral or other items provided hereunder except as expressly licensed in this Agreement or in one or more Program Exhibits hereto.
4.4.1 In exercising its rights and performing its obligations under the Agreement, the parties shall at all times comply with its respective obligations under applicable privacy law. Privacy law means a law relating to the protection of personal information in the jurisdictions in which a party has operations or deploys Solutions hereunder. Personal information means information relating to the protection of information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion. Without limiting this requirement, each party shall not collect, use, disclose or handle personal information obtained, accessed or provided in connection with the Solutions except in accordance with privacy law, shall take all reasonable technical and organizational measures to prevent the unauthorized loss, misuse or disclosure of such personal information and shall comply with any requirements of a privacy commissioner or other regulator acting under privacy laws in relation to such personal information. To the extent that Company provides any personal information to Marketo, Company warrants that: (a) Company has collected the information in accordance with privacy law; and (b) the individual to whom the personal information relates has consented to Company providing that personal information to Marketo and to a jurisdiction outside that of the individual.
5. PAYMENT TERMS.
5.1 Fees; Expenses; Payment Terms. The fees that are payable by either Company or Marketo in connection with the distribution of Solutions to Customers (“Fees”) and the terms of payment shall be set forth in each applicable Program Exhibit. Except as expressly set forth therein, each party shall be responsible for all costs and expenses incurred by it in connection with the implementation and performance of its duties and obligations under this Agreement, including, but not limited to compensation, bonuses, and benefits, if any, for its personnel; costs and expenses associated with establishing and maintaining its sales organization and offices; advertising, Solution demonstration and promotion expenses; and any and all taxes, fees, duties, tariffs or charges which may be imposed on such party under applicable law.
5.2 Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, VAT, GST, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, order form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income.
5.2.1 All prices, fees and other charges payable under this Agreement or any instrument, order form or agreement ancillary to or referenced by this Agreement, shall not include any Taxes now or hereafter levied except as provided below. Company shall be responsible for all of such Taxes. Company shall communicate to Marketo its VAT or GST identification number(s) attributed by (i) the country where Company has established its business, and/or (ii) any other country where Company has established a fixed establishment, to which the Solutions under this Agreement are provided. Marketo shall consider its Solutions under this Agreement to be for Company's business use and provided to the location(s) of the Company in accordance with the provided VAT or GST identification number(s). Company will be responsible for such taxes via reverse charge mechanism if applicable.
5.3 Records and Audits. During the term of this Agreement and for a period of two (2) years following its termination for any reason, each party shall maintain clear and accurate books and records relating to the activities hereunder, including without limitation under each applicable Program Exhibit (“Records”). Each party shall have the right to review and audit the Records of the other party to confirm accuracy of payments made upon no less than ten (10) business days’ prior notice, no more frequently than once annually, through an independent third party.