ARCHIVE COPY- THIS AGREEMENT CANNOT BE ACCEPTED AFTER THE END DATE (11 MAY 2017) AND HAS BEEN REPLACED WITH THE MARKETO API LICENSE AGREEMENT FOUND AT: http://developers.marketo.com/api-license/. PARTIES LICENSED PRIOR TO THE END DATE WILL CONTINUE TO BE LICENSED PURSUANT TO THE TERMS OF THIS AGREEMENT
MARKETO
APPLICATION PROGRAMMING INTERFACE
LICENSE AGREEMENT
This Marketo Application Programming Interface License Agreement (“Agreement”) governs the implementation of the API Specification and APIs used to make the Marketo Service available to a Software Application. You represent you have the authority to bind your company to this Agreement (individually “You” or “Your”) where You implement the API Specification and associated APIs on behalf of or in a product owned or licensed by Your company. If You do not have that authority, or if You do not agree with the terms and conditions in this Agreement, You may not implement the APIs. By implementing these APIs (e.g., by clicking a button denoting acceptance, downloading, or otherwise accessing), You agree to the terms of this legally binding Agreement. This Agreement is effective between You and Marketo, Inc. (“Marketo”) as of the date of Your acceptance, but in no case later than the End Date. Individually, You and Marketo are referred to herein as a “Party,” and collectively as “Parties.”
1. Definitions
A. “API Limits” means restrictions (e.g., numeric) to Your API calls as described in Your Subscription Agreement, or on the Marketo Developer website found at: http://developers.marketo.com/documentation/rest/.
B. “Application Programming Interface” or “API(s)” means a collection of routines, classes, function parameters, protocols, webhooks, related libraries and other instructions provided in Source Code or Object Code form.
C. “API Specification” means a written description or definition of the routines, classes, function parameters, protocols, webhooks, related libraries and other instructions that allow a Software Application to interoperate with the Marketo Service, as substantially described at: http://developers.marketo.com/documentation/rest/.
D. “End User(s)” means a person(s) who is sublicensed, subject to certain API Limits, to perform the Marketo APIs under the terms of this Agreement.
E. “End Date” means the date during which the Agreement may be accepted by You up to and including 11 May 2017.
F. “Subscription Agreement” means one of: (i) an End User Services/Subscription Agreement (see e.g., http://www.marketo.com/eusa-20120828), (ii) Master Subscription and Services Agreement governing access to Marketo Services, (iii) an Order Form, or any modified version of the aforementioned including all additions, ordering documents and addendums thereto, and any API Limits contained therein.
G. “Feedback” means suggestions or comments provided by You to Marketo that are related to Marketo products (e.g., Marketo APIs or the Marketo Service).
H. “Forking” mean the act of creating a distinct and/or separate set of APIs that are based upon, derived from, or a modification of the Marketo APIs.
I. “Marketo API(s)” means a collection of routines, classes, function parameters, protocols, related libraries, tools and other instructions provided in Source Code or Object Code form that allow access to or interoperability with the Marketo Service by a Software Application, as substantially described and made available at: http://developers.marketo.com/documentation/rest/.
J. “Marketo Service(s)” means a service or services made available to You through the Marketo APIs and substantially described at: http://www.marketo.com/software/.
K. “Object Code” means Source Code that has been interpreted, compiled or otherwise translated into a machine readable form.
L. “Software Application” means software authored by You prior to the End Date in Object Code or Source Code form that accesses or otherwise interoperates with the Marketo Service via the Marketo APIs.
M. “Source Code” means computer code in a human readable form and as such computer code that has not been interpreted or compiled.
N. “Use” means to perform, reproduce, or sublicense (the right of sublicense restricted to a performance right as outlined in Section 2.D (Marketo API License Restrictions)) as defined under 17 U.S.C. § 101 et seq. or other applicable copyright statute but does not include any right of distribution.
2. Licenses and Restrictions
A. Marketo API License. Subject to the provisions of this Agreement, Marketo grants You a world-wide, terminable, non-exclusive, license, under Marketo copyrights, to Use the Marketo APIs to facilitate the interoperability of the Marketo Service and the Software Application in a development or production environment. You are granted this license provided that You adhere to Your API Limits as a condition to receiving this license. In the event of any inconsistency between the terms of this Agreement and the Subscription Agreement, the Subscription Agreement shall govern. You may, but have no obligation to, create a Software Application.
B. Marketo API Specification License. Marketo grants You a world-wide, non-exclusive, royalty free, terminable license, under Marketo copyrights, to perform and reproduce the API Specification to enable interoperability between the Software Application and the Marketo Service.
C. Feedback License to Marketo. In the event You provide Feedback to Marketo, You grant to Marketo a world-wide, non-exclusive, fully-paid, royalty-free license, under Your intellectual property rights, to make, have made, use, sell, offer for sale, import, perform, display, reproduce, transmit, distribute, make derivatives of, or sublicense any of the foregoing rights in Feedback so as to allow for the commercialization of Marketo products.
D. Marketo API License Restrictions. Marketo retains legal title to the Marketo APIs under this Agreement, and You agree not to delete or alter any copyright (e.g., “© Marketo, Inc.”) or other proprietary notices signifying Marketo’s ownership of this legal title. Additionally, You agree to the following license restrictions- (i) the right of sublicense granted herein is restricted to the sublicensing of the right to perform by You solely to End Users of the Software Application, this right of sublicense may not be extended to licensees of the End User; (ii) the right to perform, granted via the sublicense, is limited to the applicable API Limits of the sub licensee; (iii) in no event will you make available the Marketo APIs in Source Code form to an End User or any other party; (iv) none of the following rights are granted with respect to the Marketo APIs- the right to distribute, publicly display, or to create derivatives (e.g., a superset or subset of the Marketo APIs); and (v) the Marketo APIs shall not be used to access a service other than the Marketo Service. Marketo may limit the number and/or frequency of API requests to the Marketo Service, or any use of the APIs that could damage, disable, overburden, impair or otherwise interfere with the Marketo Service. Further, You agree to sublicense End Users only on terms no less restrictive than the terms contained in this Agreement.
E. API Specification License Restrictions. Marketo retains legal title to the API Specification under this Agreement and You agree not to delete or alter any copyright (e.g., “© Marketo, Inc.”) or other proprietary notices signifying Marketo’s ownership of this legal title. Further, You agree to the following license restrictions- You shall not make an unreasonable number of reproductions of the API Specification. Further, for avoidance of doubt, no right to- (i) distribute; (ii) sublicense; (iii) publicly display; or (iv) create derivatives of the API Specification is granted hereunder.
3. Warranty, Disclaimer, Indemnity, and Limitation of Liability
A. Warranty Related to Forking. You warrant that You have not and will not engage in Forking or otherwise attempt to modify or reverse engineer the Marketo APIs. Further, You warrant that You have not or will not distribute a set of APIs or a development kit that is based upon or otherwise a modification of, the Marketo APIs including being a subset or superset of the Marketo APIs.
B. Warranty Related to Branding. You warrant that You will follow or otherwise adhere to the Trademark Guidelines (found at: http://legal.marketo.com/legal-notices/Trademark-and-Guidelines.pdf) pertaining to the use of Marketo trademarks (registered or otherwise), logos, or word marks (collectively “Marks”) and the goodwill associated therewith. Further, you acknowledge that unless separately negotiated with Marketo, no license (implied or explicit) to use the Marks and the goodwill associated therewith is provided herein.
C. Disclaimer of Warranties. You acknowledge the Marketo APIs are provided “AS IS,” without warranty of any kind, and may not be functional on any machine or in any environment. MARKETO DISCLAIMS ALL WARRANTIES RELATING TO THE MARKETO SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Marketo makes no representations or warranties regarding the suitability of the Marketo APIs for your intended requirements or purposes including for use with Your Software Application. Further, Marketo makes no representations or warranties regarding the integrity of data that You TRANSMIT, transfer, store, obtain or receive through use of the Marketo APIs. Marketo is not obligated to maintain or support the Marketo APIs, or to provide you with updates, fixes, or services related thereto. You assume all risk arising from use of the Marketo APIs, including, without limitation, the risk of damage to Your computer system, Software Application, the corruption or loss of data, and compliance with ALL applicable laws and regulations (including laws and regulations related to privacy and data protection).
D. Indemnity. You shall defend, indemnify and hold harmless Marketo, its affiliates and their respective officers, directors, employees, agents and representatives from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from the Software Application. The Parties agree to comply with the following process when Marketo seeks indemnification under this section and specifically that Marketo is to- (i) promptly give You written notice of the claim; (ii) give You sole control of the defense and settlement of the claim (provided that You may not settle any claim unless it unconditionally releases Marketo of all liability); and (iii) provide You, at Your cost, all reasonable assistance.
E. Limitation of Liability. IN NO EVENT SHALL MARKETO BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (I) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; OR (II) FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES OR PROFITS; (III) ANY MATTER BEYOND ITS REASONABLE CONTROL, OR (IV) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF $100.
4. Confidentiality. As used herein, Confidential Information means- (i) any Feedback that You provide to Marketo pursuant to Section 2.C; and (ii) any Marketo business or technical information that is disclosed to You in connection with this Agreement, including, but not limited to, any information relating to Marketo’s plans, business opportunities, or research and development. Confidential Information excludes any information that- (a) is or becomes generally known to the public other than as a result of Your breach of this Agreement; (b) is rightfully known to You at the time of disclosure without restrictions on use or disclosure; (c) is independently developed by You, without access to or use of any Confidential Information; or (d) is rightfully obtained by You from a third party who has the right to disclose it and who discloses it without restrictions on use or disclosure. You will maintain all Confidential Information in strict confidence and will not disclose Confidential Information to any third party. You will not use Confidential Information, except as necessary for the performance of this Agreement.
5. Term and Termination
A. Term. This Agreement will commence on the date You implement the Marketo APIs or the API Specification but no later than the End Date, and will continue until terminated as provided in Section(s) 5.B or 5.C.
B. Termination for Convenience. At its sole discretion, and with thirty (30) days advance notice, Marketo may terminate this Agreement. At its sole discretion, Marketo may reinstate Your ability to use the APIs or API Specification. You may terminate the Agreement at any time by ceasing Use of the Marketo APIs, the API Specification, and disabling Your Software Application’s ability to Use the Marketo APIs.
C. Termination for Breach. Marketo may terminate this Agreement immediately upon written notice if You breach any covenant or condition in this Agreement. At its sole discretion, Marketo may reinstate the Your ability to use the APIs or API Specification where compliance with one or more of the terms referenced in this Agreement has been demonstrated by You.
D. Emergency Suspension. If Marketo becomes aware of a situation where Your violation of the terms of this Agreement may disrupt its delivery of the Marketo Services to third parties (e.g., customers of Marketo) generally, or in the event Marketo detects unauthorized third-party access to the Marketo Service (collectively referenced herein as an “Emergency”), Marketo may immediately suspend the offending use (and any rights licensed under this Agreement that enable such use). Any such suspension shall be to the minimum extent and duration needed to respond to the Emergency. At its sole discretion, Marketo may reinstate the use (and any rights granted in this Agreement that enable such a use) where the Emergency has been resolved.
E. Survival Upon Termination. Upon termination of this Agreement, Your licenses to the Marketo APIs, and the API Specification under Section(s) 2.A (Marketo API License) & 2.B (Marketo API Specification License) shall immediately terminate. Notwithstanding the forgoing, Sections 2.C (Feedback License to Marketo), 3 (Warranty, Disclaimer, Indemnity, and Limitation of Liability), 4 (Confidentiality), and 6 (Miscellaneous) will survive any termination of this Agreement.
6. Miscellaneous
A. Injunctive Relief. You acknowledge a violation of this Agreement may cause irreparable harm to Marketo not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief may be an appropriate remedy to prevent any actual or threatened violation hereunder.
B. No Support. Unless otherwise agreed to in writing, Marketo shall not be responsible for providing service (or level of service), support, or maintenance to You (or a user of Your Software Application) for the Marketo APIs.
C. Export Laws. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Marketo APIs nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
D. Integration; Order of Precedence. Unless otherwise agreed to in writing between the Parties, this Agreement, constitutes the entire agreement, and with the exception of the terms of the Subscription Agreement (and any modifications to the Subscription Agreement agreed to by the Parties), supersedes any and all prior agreements, between the Parties with regard to the subject matter hereof. This Agreement may not be amended or modified except by a writing signed by both Parties hereto. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any order, acknowledgement or confirmation or other document issued by You, unless the Parties mutually agree in writing that such terms and conditions shall modify, supersede and control in the event of any inconsistency with this Agreement.
E. Severability. In the event any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties.
F. Force Majeure. In the event either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that, the affected Party- (i) provides the other Party with prompt notice of the nature and expected duration of the event; (ii) uses commercially reasonable efforts to address and mitigate the cause and effect of such event; (iii) provides periodic notice of relevant developments; and (iv) provides prompt notice of the end of such event.
G. Press Release; References. Unless a written waiver has been agreed to between the Parties, neither Party will issue a public statement or press release regarding this Agreement without the prior consent of the other Party. Notwithstanding the foregoing, Marketo, during the Term, will be permitted to list You as a customer and licensed to use Your standard logo for Marketo’s promotional and marketing use. Upon Marketo’s prior written request, You will cooperate with Marketo to prepare a written description of Your use of the Marketo Services or Marketo APIs, and Marketo may provide such description to other prospective customers. Marketo will follow Your brand usage requirements as provided by You.
H. Marketo’s Right of Modification. At Marketo’s discretion, Marketo may modify the terms of this Agreement without notice to You. Any such terms will be effective on the date You use the Marketo Service after the terms have been modified, and Your use of the Marketo Service serves as consideration for such modification.
I. Assignment. You may assign this Agreement in its entirety, whether by operation of law or otherwise, with the prior written consent of Marketo (not to be unreasonably withheld). Any attempt to assign Your rights or obligations under this Agreement in breach of this section will be void and of no effect. Marketo may assign this Agreement in its entirety whether by operation of law or otherwise without Your prior written consent.
J. Implied License and Estoppel. Nothing in this Agreement shall be construed as granting a license via the doctrines of Implied License or Legal Estoppel to rights beyond what is expressly granted under this Agreement. Further, nothing in this Agreement shall be deemed a waiver of Marketo’s intellectual property rights in the Marketo Solution, or other Marketo technologies. These intellectual property rights are reserved to Marketo. Through agreeing to the terms of this Agreement, You acknowledge that You are only licensed to the rights expressly enumerated in this Agreement and that the actions of the parties and/or the consideration granted under this Agreement is solely for these rights and for no others.
K. Governing Law; Notices.
This Agreement shall be governed by the laws of the State of California without regard to choice or conflicts of law rules, and subject to the exclusive jurisdiction of its courts. The venue for any legal matter related to this Agreement shall be either the Superior Court for San Mateo County, California, or the United States District Court for the Norther District of California. Notices under this Agreement must be in writing and are deemed to have been given upon (a) personal delivery, (b) the third business day after mailing, (c) the first business day after sending by email. Notices to Us must be addressed to: “Application Programming Interface License Agreement” and Marketo, Inc., 901 Mariner’s Island Boulevard, Suite 500, San Mateo, CA 94404, with a copy to our General Counsel at the same address.