Marketo Referral Agreement

This Referral Agreement (“Agreement”) sets forth the terms and conditions pursuant to which an entity may refer to Marketo (as defined below) qualifying leads for the sale by Marketo of Marketo’s marketing automation software as a service (“Marketo Services”) subscriptions. The individual who clicks the "I Accept" button below represents and warrants that he or she has the requisite authority to bind his or her company (“Referral Partner”) to this legally binding Referral Agreement, which is effective between the Referral Partner and Marketo as of the date of such acceptance (“Effective Date”). In the event Referral Partner and Marketo have executed or will execute a separate referral contract for the sale of Marketo Services subscriptions, such executed contract shall supersede this Referral Agreement.

1. General Description. Marketo agrees to pay Referral Partner a referral fee for submitting qualifying leads which result in the sale of Marketo Services subscriptions to new customers in accordance with the terms set forth in this Agreement.

2. Lead Registration and Acceptance.

2.1Lead Registration. To create a qualifying lead eligible for a referral fee, Referral Partner must register leads with Marketo in conjunction with the current lead process in place. At Marketo’s request, Referral Partner shall supply any additional information reasonably requested by Marketo and/or assist Marketo in making contact with the proposed lead by arranging an introduction, meeting, conference call or other means of communication with the proposed lead. Following receipt of approval by Marketo, Referral Partner will be introduced to a Marketo account manager to engage with the prospect. Prospect must purchase and pay for an annual (or longer) Marketo Services subscription within 90 days of the lead registration and approval or such longer period that may be authorized by Marketo at its sole discretion and on a case-by-case basis.

2.2Lead Acceptance. Within a reasonable period of time following Referral Partner’s submission of a proposed lead, Marketo shall review the proposed lead and provide Referral Partner with a notification of its acceptance of the proposed lead as commissionable, or its rejection of the proposed lead. Marketo will be under no obligation to accept any proposed lead submitted by Referral Partner and may reject or decline to accept proposed leads for any commercially reasonable reason as determined by Marketo, including that:

(i) the proposed lead was an existing customer of Marketo or of any of its affiliates (as defined below) at the time of submission of the proposed lead;

(ii) Marketo or any of its affiliates was already involved in discussions relating to the sale of Marketo Services to the proposed lead at the time of submission of the proposed lead;

(iii) the proposed lead has previously been submitted to Marketo or any of its affiliates by Referral Partner or by any other third party;

(iv) the proposed lead (a) does not meet Marketo’s credit requirements, (b) is on a list of restricted or prohibited parties issued by the government of the United States or any other jurisdiction, or (c) is located in a country that is subject to a United States trade embargo or that is deemed a terrorist supporting country by the United States Government; or

(v) the proposed lead is located in an area in which Marketo or any of its affiliates has an exclusive arrangement for the sale of Marketo Services subscriptions or which Marketo is otherwise prohibited by agreement or law from accepting.

3. Referral Fee.

3.1Fee.Marketo will pay Referral Partner a referral fee equal to 10% of the first year subscription fees collected by Marketo from leads registered by Referral Partner which are approved in writing by Marketo and closed by Marketo within 90 days of date of approval (or for such longer period as may be authorized by Marketo pursuant to Section 2.1 above).

3.2Eligibility. Marketo Services subscription renewals, support, implementation, training or other professional services are not eligible for referral fees. Marketo will remit referral fees within 60 days after the qualifying lead’s subscription payment is received. Referral Partner will be solely responsible for payment of all taxes and other costs levied against the referral fee or its operations. Marketo will manage Marketo Services sales, provision, billing and collection activities with end-user Customers.

4. Term and Termination; Post-termination Fees.This Agreement shall expire in the event Referral Partner has not registered a lead for six consecutive months. Either party may terminate this Referral Agreement with written notice to the other at any time. Unless the termination is for breach, it will not affect Marketo’s obligation to pay referral fees for qualifying leads approved and current prior to the termination date.

5. General.

5.1Restrictions; Disclaimer.Marketo will handle all Marketo Services sales, provision, billing and collection activities. Referral Partner may not use Marketo’s marketing materials or trademarks without prior written authorization in each case. The Marketo Services will be provided to customers solely pursuant to a services agreement between Marketo and its customers. MARKETO MAKES NO REPRESENTATIONS OR WARRANTIES TO REFERRAL PARTNER OR ITS LEADS, INCLUDING ANY EXPRESS OR IMPLED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARKETO WILL NOT BE LIABILE FOR ANY SPECIAL OR INCIDENTIAL DAMAGES THAT MAY ARISE UNDER THIS AGREEMENT AND IN NO EVENT WILL MARKETO’S LIABILITY EXCEED THE AMOUNT OF THE REFERRAL FEE FOR THE QUALIFYING TRANSACTION.

5.2Relationship of the Parties.This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties, notwithstanding its use of the term "partner." There are no third-party beneficiaries to this Agreement. Referral Partner may not assign any rights or obligations under this Agreement without Marketo’s prior written consent.

5.3Contracting Parties; Governing Law.Which entity is defined as “Marketo” under this Agreement, to whom the Referral Partner should direct all legal or dispute-related notices under this Agreement and what law will apply if there is a dispute between Referral Partner and Marketo, depend on the domicile of the Referral Partner according to the following table:

If the domicile of the Referral Partner is in: / “Marketo” under this Agreement is defined as: / Notices should be addressed to: / The governing law is:
The United States of America or Canada / Marketo, Inc. / Marketo, Inc.
901 Mariners Island Blvd., Suite 500,
San Mateo, California 94404, U.S.A / State of
California, U.S.A.
Japan, China, Korea,
Taiwan or Vietnam / Marketo K.K. / Marketo K.K.
Roppongi Hills Tower 34F, 6-10-1
Roppongi, Minato-ku, Tokyo 106-
6134
Japan / The laws of Japan
EMEA or Latin America / Marketo EMEA,
Limited / Marketo EMEA, Limited
Cairn House, South County Business
Park, Leopardstown, Dublin 18,
Ireland / The laws of Ireland
Asia Pacific, including
Australia, New Zealand
and Southeast Asia / Marketo EMEA,
Limited / Marketo EMEA, Limited
Cairn House, South County Business
Park, Leopardstown, Dublin 18,
Ireland / The laws of the
State of New
South Wales,
Australia

All Marketo entities in the table above constitute affiliates under this Agreement. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules. If any provision of this Agreement is held by a court to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect its intentions, with all other provisions remaining in full force and effect. A party's failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless agreed to by that party in writing.

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MarketoReferral Agreement