End User Services Agreement

Crowd Factory, a division of Marketo, Inc., and
Customer agree as Follows:

1. SCOPE

This Agreement shall apply to Customer’s use of Crowd Factory’s subscription services, all linked pages, content, products and offline components (“Service” or “Services”) identified in one or more ordering documents signed by the parties, including any exhibits thereto (“Order” or “Orders”). This Agreement and all Orders (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Crowd Factory ordering document, and no terms included in any such purchase order or other non-Crowd Factory ordering document shall apply to the Services. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order.

2.SERVICES

2.1. Provision of Services. Crowd Factory shall make the Services available to Customer in accordance with the relevant Order during a subscription term (“Term”). During the Term and subject to the terms and conditions of this Agreement and the Order, Crowd Factory grants to Customer a nontransferable, non-exclusive, worldwide right to permit its users to access and use the Services. Customer acknowledges that (i) it shall not receive, nor shall be entitled to receive, any copies of software (whether in source code or object code form) under this Agreement; and (ii) Customer purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Crowd Factory regarding future functionality or features.

2.2. Authorized Contacts. Customer will designate on the Order the names and contact information of two (2) individuals designated by Customer as exclusively authorized to receive log-in and other specialized access information and engage with Crowd Factory for support and technical issues pursuant to the terms of this Agreement (“Authorized Contacts”). Customer acknowledges that Crowd Factory has no obligation to engage with any user or individual other than Authorized Contacts regarding Services support. Customer shall give Crowd Factory written notice of any changes in Authorized Contacts.

3. USE OF THE SERVICES

3.1. Customer Data. As between Customer and Crowd Factory, Customer owns all data and information regarding its users and their social networking “connections” or “followers” or other contacts activated through their use of the Services that Customer or Crowd Factory collects and/or compiles in the course of the Services ("Customer Data"). Crowd Factory has no ownership rights in or to Customer Data. Customer acknowledges that Crowd Factory may compile Customer Data and usage information that has been stripped of all personally identifiable information and may use, both during and after the term of this Agreement, such data in aggregated format to determine and report Services usage patterns by customers and end users generally and for marketing purposes, provided that such use shall not identify Customer or any end users. Crowd Factory shall maintain reasonable physical, administrative and technical measures to protect the security of Customer Data and except as required by applicable law, it will not disclose Customer Data to any third party for any purpose other than to provide the Services set forth herein to Customer.

3.2. Equipment. 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 Crowd Factory’s published documentation.

3.3. Compliance with Laws and Regulations. Each Party shall be solely responsible for ensuring that collection and use of all personal information gathered through such Party’s web site complies with all applicable laws, regulations, or recognized industry self-regulatory standards.

3.4. Customer Responsibilities. Customer shall (i) be responsible for its user’s compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Crowd Factory promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with Crowd Factory documentation and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than its users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. Customer shall be exclusively responsible for providing all necessary support to visitors to the Customer Site who use the Services. If requested by Customer, Crowd Factory will use commercially reasonable efforts to provide Customer with “second level” support reasonably necessary to resolve issues related to the Services that Customer is unable to resolve by consulting the applicable Crowd Factory documentation; provided that Crowd Factory shall not in any event be required to interact with Customer’s users in providing such second level support. Crowd Factory shall be entitled to charge Customer for such second level support at the rates set forth on the Order. Customer shall not use the Services in any manner that could knowingly or willfully damage, disable, overburden, impair or otherwise interfere with Crowd Factory’s provision of the Services.

4. FEES AND PAYMENT FOR PURCHASED SERVICES

4.1. Fees. Customer will pay to Crowd Factory, in consideration of the Services and license rights granted hereunder, the fees set forth in the Order (“Fees”) in accordance with the payment schedule set forth therein. Customer will comply with the reporting requirements set forth in the Order, if any. Except as otherwise specified herein or in an Order, Fees are quoted and payable in United States dollars and payment obligations are non-cancelable and Fees paid are non-refundable.

4.2. Invoicing and Payment. All invoices hereunder will be due within thirty (30) days after Customer’s receipt of each invoice. All payments due hall be paid in United States Dollars by direct electronic transfer to a United States bank account designated in writing by Crowd Factory, or by any other reasonable means mutually agreed to in writing by Crowd Factory and Customer from time to time.

4.3. Overdue Charges. If any Fees or charges are not received from Customer by the due date, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Crowd Factory may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).

4.4. Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer purchases hereunder other than Taxes based on Crowd Factory income, property and employees.

5. PROPRIETARY RIGHTS

5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Crowd Factory reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.2. Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein or in an Order, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer own intranets or otherwise for Customer own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

5.3. Ownership of Customer Data. As between Crowd Factory and Customer, Customer exclusively owns all rights, title and interest in and to all of Customer Data.

5.4. Suggestions. Crowd Factory shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its users, relating to the operation of the Services.

6. CONFIDENTIALITY

6.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information shall include Customer Data; Crowd Factory Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Orders, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

6.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

6.3. Protection of Customer Data. Without limiting the above, Crowd Factory shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Crowd Factory shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with Section 6.4 (Compelled Disclosure) or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services or prevent or address service or technical problems, or at Customer’s request in connection with support matters.

6.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7. WARRANTIES AND DISCLAIMERS

7.1. Crowd Factory Warranties. Crowd Factory represents and warrants that (a) it has full power and authority to enter into and to perform its obligations under this Agreement and that performance of its obligations under this Agreement will not violate any other obligations by which it is bound, and (b) it will perform the Services in a professional manner, consistent with generally accepted industry standards, and substantially in accordance with published Services documentation. Customer must notify Crowd Factory of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies. For breach of the express warranty set forth above, Customer's exclusive remedy shall be the re-performance of the deficient Services. If Crowd Factory cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to Crowd Factory for such deficient Services, and such refund shall be Crowd Factory’s entire liability.

7.2. Customer Warranties. Customer represents and warrants that it has full power and authority to enter into and to perform its obligations under, this Agreement and that performance of its obligations under this Agreement will not violate any other obligations by which it is bound.

7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CROWD FACTORY AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CROWD FACTORY AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER CROWD FACTORY NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSMISSION OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CROWD FACTORY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS IN TRANSMISSION. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY CROWD FACTORY, THE SERVICES ARE PROVIDED “AS IS.”

8. MUTUAL INDEMNIFICATION

8.1. Indemnification by Crowd Factory. Crowd Factory shall defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided, that Customer (a) promptly gives Crowd Factory written notice of the Claim; (b) gives Crowd Factory sole control of the defense and settlement of the Claim (provided that Crowd Factory may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides to Crowd Factory all reasonable assistance, at Crowd Factory’s expense.

8.2. Indemnification by Customer. Customer shall defend Crowd Factory against any Claim made or brought against Crowd Factory by a third party alleging that Customer Data, or Customer use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Crowd Factory for any damages finally awarded against, and for reasonable attorney’s fees incurred by Crowd Factory in connection with any such Claim; provided, that Crowd Factory (a) promptly give Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases Crowd Factory of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.

8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

9. LIMITATION OF LIABILITY

9.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER PAYMENT OBLIGATIONS HEREUNDER.

9.2. Exclusion of Consequential and Other Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10. TERM AND TERMINATION

10.1. Term of Agreement. The Agreement commences as of the date set forth in the first Order and continues for the Term stated on any current Order. The Agreement shall renew for additional consecutive renewal terms (each a “Renewal Term”; the Initial Term and any Renewal Terms are, collectively, the “Term”) of the same length as the initial period unless there is written notification by either party at least 30 (thirty) days prior to the expiration of the Initial Term.

10.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.3. Effect of Termination. Upon expiration or termination of this Agreement, all rights and licenses granted hereunder shall immediately terminate and all undisputed, outstanding payments shall become immediately due and payable as of the date of expiration or termination.

10.4. Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination, Crowd Factory will make available to Customer for download a file of Customer Data. After such 30-day period, Crowd Factory shall have no obligation to maintain or provide any of Customer Data and shall thereafter, unless legally prohibited, delete all of Customer Data in Crowd Factory systems or otherwise in Crowd Factory possession.

10.5. Surviving Provisions. Section 1 (Scope), 3.1 (Customer Data), 4 (Fees and Payment for Purchased Services), 3.1 (Customer Data), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 9 (Limitation of Liability), 10 (Term and Termination) and 11 (General Provisions) shall survive any termination or expiration of this Agreement for a period of five (5) years.

11. GENERAL PROVISIONS

11.1. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to Customer shall be addressed to the system administrator designated by Customer for Customer relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by Customer.

11.2. Agreement to Governing Law and Jurisdiction. This Agreement will be governed and interpreted in accordance with the laws of the State of California, without regard to its rules governing conflicts of law. The state and federal courts located in San Francisco, California, shall have sole jurisdiction over any dispute arising in connection with this Agreement, provided that either party shall have the right to seek injunctive relief and the enforcement of judgments in any court of competent jurisdiction, no matter where located.

11.3. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

11.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.

11.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.8. Entire Agreement. This Agreement, including all Orders, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.

11.9. Publicity. During the Term, Crowd Factory will be entitled to display Customer’s corporate name and logo on Crowd Factory’s website and marketing materials and to identify Customer as a customer of Crowd Factory. With Customer’s consent, which shall not be unreasonably withheld, Crowd Factory may issue a press release regarding the execution of this Agreement.