Limited Use This Software License Agreement
IMPORTANT—READ CAREFULLY: This Limited Use Software License Agreement is a legal agreement between you (either an individual or a single entity) and Marketro LLC. for the software that accompanies this License, which may include computer software operating in the Cloud through the users Web browser, Mobile Apps and may include associated media, printed materials, “online” or electronic documentation, and Internet-based services including third party bots, modules, software, programs, platforms and utilities (“Software” or “System”).
YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT WITHIN THIRTY (30) DAYS FOR A FULL REFUND.
Marketro LLC. (‘‘Company’’) hereby grants you, and you accept, a non-exclusive and non-transferable license, to use the software This (the ‘‘System’’ or the "Software" or the "Licensed Program" or the “Database), including the right to access and use data from the current release of its Database (the ‘‘Database’’).
You must accept all components of the System.
2. AGE REQUIREMENT
YOU MUST BE EIGHTEEN (18) YEARS OR OLDER TO ACCESS OR PURCHASE THIS SYSTEM. IF YOU ARE UNDER EIGHTEEN YEARS OF AGE, YOU ARE NOT PERMITTED TO ACCESS OR PURCHASE THIS SYSTEM FOR ANY REASON.
3. SYSTEM AND SOFTWARE ACCESS
To access this System or Software or some of the resources, modules or platforms it has to offer, you may be asked to provide certain registration details or other information. It is a condition of your use of this System and Software that all the information you provide will be correct, current, and complete. If our Company believes the information you provide is not correct, current, or complete, we have the right to refuse you access to this System or any of its resources, and to terminate or suspend your access at any time, without notice.
This License Agreement is effective until terminated. You may terminate it at any time by destroying the Licensed Program with all copies made (with or without authorization).
5. AUTHORIZED USE OF SYSTEM.
You shall have the right to load the System on a single device and at a single location designated by you. You may not use the System on a network or multi-user basis without notifying Marketro LLC. and obtaining and paying for an appropriate additional network license to do so.
Additional licenses are available for purchase, however you are not permitted to use the System on more devices than you have purchased licenses for.
This platform provides app modules for third party systems, platforms and services, including but not limited to, Facebook messenger bot Chat Response, Skype, Telegram, Kik, GroupMe, and Slack.
Marketro LLC.'s MailResponse modules connect third party system sending services, including but not limited to, Amazon SES (Simple Email Service) and Sendgrid Email Services. All commercial email is regulated by Federal law, including the CAN-SPAM Act, the Federal Trade Commission (FTC) and other Federal and State laws and agencies, that you are legally responsible for complying with.
You are responsible for any and all costs associated with any said third party services.
Third party companies post Terms Of Service (TOS), policies, use prohibitions and other legal documents that you must comply with to access and use their services.
The use of Marketro LLC. services, products and strategies may be in violation of third party use prohibitions. Therefore, use the Marketro LLC. services, products, techniques and strategies at your own risk. You, the Client, agree Marketro LLC. shall have no liability for any adverse consequences for your use of our Company services, products and strategies.
You agree that Marketro LLC. is not responsible for any third party security or lack thereof.
You agree that Marketro LLC. is not responsible for third party or lack of third party encryption or stolen content including messages, photos, videos, sketches, mobile webpages, content and other information.
You agree that Marketro LLC. is not responsible for any third party program or usage costs whatsoever, including but not limited to data plan charges and SMS charges.
You agree that Marketro LLC. is not responsible for malicious web-links and viruses from the Marketro LLC. system as well at third party programs and systems.
You agree that Marketro LLC. is not responsible for copyright infringement or unauthorized sharing of files, images, PDFs, documents, or spreadsheets from the Marketro LLC. system as well at third party programs and systems.
You agree that Marketro LLC. is not responsible for third party ‘Block’ button and other feature malfunctions and other third party system and program errors.
You agree that Marketro LLC. is not responsible for third party adverse consequences which may include, but are not limited to the following: Third party use prohibitions; Third party policies; Any cost associated with or by your carrier; Loss of your carrier telephone number; Loss of your third party carrier account; Banning your carrier account; Loss of any provider, account, services, Web sites, and/or domains. You agree that you alone bear the risk of any action taken by a third party against you. See section fourteen (14) below, RISK NOTICE AND DISCLAIMER.
You may selectively download, modify, merge and print limited content of the Database for your personal non-commercial use on a single device; provided, however that any such portions of the Database downloaded or merged into another program or database will continue to be subject to the terms and conditions of this License, and you acknowledge that any copy, modification, or portion printed or merged into other programs is protected by U.S. copyright law. Upon termination of this License, you agree to destroy all copies, modifications, and merged content in any form.
YOU AGREE THAT XODO INC. IS NOT RESPONSIBLE FOR YOUR HISTORY DATA OR DATA LOSS. YOU AGREE TO DO A DAILY DOWNLOAD OF YOUR HISTORY DATA WHICH YOU ARE ENCOURAGED TO KEEP FOR YOUR RECORDS EVEN AFTER YOU STOP USING THE SYSTEM.
IF YOU TRANSFER POSSESSION OF ANY COPY, MODIFICATION, OR MERGED PORTION OF THE DATABASE TO ANOTHER PARTY, YOUR LICENSE IS AUTOMATICALLY TERMINATED.
6. USE RESTRICTIONS.
You may not (a) copy the System, except to load it into a device;
(b) distribute copies of the Database or System to any other person; (c) modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the System;
(d) copy, download, store in a retrieval system, publish, transmit, or otherwise reproduce, transfer, store, disseminate, or use, in any form or by any means, any part of the data contained within the Database except as expressly provided for in this License;
(e) transfer, resell, sublicense, lease, or grant any other rights of any kind to any individual copy of the Database or the System to any other person; or
(f) remove any proprietary notices, labels or marks on the Database or System.
You agree to take reasonable measures to maintain the security of the Database and the System.
7. PROPRIETARY RIGHTS.
You acknowledge and agree that the Marketro LLC. System is the sole and exclusive property of Marketro LLC., and the System and its components are licensed to you only for the term of this License and strictly under the terms hereof. Marketro LLC. owns all right, titles, and interest in and to the content in the System and the Database. Except for the limited rights given to you herein, all rights are reserved by Marketro LLC..
Third Party systems and software including but not limited to third party bots, components, modules, software, programs and utilities are owned by the respective third parties and are not owned or controlled by Marketro LLC.. See section nine (9) below.
8. RESERVATION OF RIGHTS AND OWNERSHIP. Marketro LLC. reserves all rights not expressly granted to you in this Software License. The Software is protected by copyright and other intellectual property laws and treaties. Marketro LLC. or its suppliers own the title, copyright, and other intellectual property rights in the Software.
The Software is licensed, not sold.
9. THIRD PARTY REFERENCES
This System may reference third parties which are not maintained by, or related to, our Company. Any reference to such third parties are provided as a service to users and are not sponsored by or affiliated with our Company. Our Company has not reviewed any or all of such third parties and is not responsible for any third party activities or business practices. Third party companies are to be used or accessed at the user's own risk, and our Company makes no representations or warranties about the content, completeness or accuracy of third party companies. Further, the inclusion of any reference to a third-party company does not necessarily imply endorsement by our Company of that company.
If you should fail to perform in the manner required in this License, this License shall terminate and Marketro LLC. may exercise any rights it may have. Upon termination, Marketro LLC. may require that you destroy all of these materials and that you so certify, in writing to Marketro LLC.. All provisions of this License with regard to the protection of the proprietary rights of Marketro LLC. shall continue in force after such termination.
11. WARRANTIES, INDEMNITIES, AND LIMITATION OF LIABILITY.
THE SYSTEM IS PROVIDED ‘‘AS IS,’’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. XODO INC. NEITHER GIVES NOR MAKES ANY OTHER WARRANTIES OR REPRESENTATIONS UNDER OR PURSUANT TO THIS LICENSE.
Marketro LLC. does not warrant, guarantee or make any representations that the functions contained in the System will meet your particular requirements or that the operation of the System will be uninterrupted or error free, including but not limited to, System errors such as not subscribing or unsubscribing a user. The entire risk as to the results and performance of the System is assumed by you.
If the System is defective in workmanship or materials and Marketro LLC. is given timely notice thereof, Marketro LLC.’s sole and exclusive liability and your sole and exclusive remedy, shall be the replacement of the defective system. In the event of a defect in the system covered by this warranty, Marketro LLC. will replace the system. The foregoing states your sole remedy and Marketro LLC.’s sole obligation in the event of the occurrence of a defect coming within the scope of the Limited Warranty.
IN NO EVENT SHALL XODO INC., ITS SUPPLIERS, OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE DATABASE, SYSTEM OR DOCUMENTATION BE LIABLE FOR ANY LOSS OR INACCURACY OF DATA OF ANY KIND OR FOR LOST PROFITS, LOST SAVINGS, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO THE USE OR INABILITY TO USE THE SYSTEM, EVEN IF XODO INC. OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY TO ANY CLAIM OR CAUSE WHATSOEVER WHETHER SUCH CLAIM OR CAUSE IS IN CONTRACT, TORT OR OTHERWISE.
The limited warranty set forth above is in lieu of all other express warranties, whether oral or written. The agents, employees and distributors of Marketro LLC. are not authorized to modify this warranty, nor to make additional warranties binding on Marketro LLC.. Accordingly, additional statements such as distributor representations, whether written or oral, do not constitute warranties of Marketro LLC. and should not be relied upon as a warranty of Marketro LLC.. In no case shall Marketro LLC.’s liability exceed the cost of the System. You agree to indemnify and hold Marketro LLC., its suppliers, and all of their officers, directors, employees and agents, as well all those individuals or organizations providing information for the Database, harmless from any and all claims of third parties resulting from or incidental to your use or operation of the System, or arising from any breach by you of any provisions of this License. Marketro LLC. may, at its option, institute or defend any action arising out of the aforesaid clauses with counsel of its own choice.
You understand that our Company cannot and does not guarantee or warrant that Software or System available for downloading from the Internet or for use in the Cloud or for use in your browser, will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to this Software and System for the reconstruction of any lost data. Our Company does not assume any responsibility or risk for your use of the Software or System.
The System is not necessarily complete and up-to-date and should not be used to replace any written reports, statements, or notices provided by Company. Investors, borrowers, and other persons should use the System in the same manner as any other educational medium and should not rely on the System to the exclusion of their own professional judgment. Information obtained by using this System is not exhaustive and does not cover all issues, topics, or facts that may be relevant to your goals.
All of the information in this System, whether historical in nature or forward-looking, speaks only as of the date the System is offered and Company does not undertake any obligation to update such System after it is offered or to remove such System if it is not, or the System is no longer, accurate or complete.
[Some states do not allow exclusions or limitations of implied warranties or liability in certain cases, so the above exclusions and limitations may not apply to you.]
Trademarks, service marks, and logos appearing in this System are the property of Company or the party that provided the trademarks, service marks, and logos to Company. Company and any party that provided trademarks, service marks, and logos to Company retain all rights with respect to any of their respective trademarks, service marks, and logos appearing in this System.
Third Party systems and software trademarks, service marks, and logos appearing, including but not limited to third party bots, components, modules, software, programs and utilities are owned by the respective third parties and not Marketro LLC..
13. CONFLICTS ARBITRATION
This Licensing Agreement will be governed and interpreted pursuant to the laws of New Jersey, United States of America, notwithstanding any principles of conflicts of law. You specifically consent to personal jurisdiction in New Jersey in connection with any dispute between you and Company arising out of these Licensing Agreement or pertaining to the subject matter hereof.
The parties agree that any claim or dispute between them, or against any agent, employee, successor, or assign of the other, whether related to this agreement or otherwise, including the validity of this arbitration clause, that cannot be settled within six months after the time the dispute has been raised by one party regarding the interpretation of any provision of this agreement, and nothing else, shall be settled by binding arbitration. Any such arbitration proceeding, including the interpretation of this agreement, shall be conducted in Montclair, New Jersey under the laws of the State of New Jersey and in accordance with the rules of the American Arbitration Association or its successor. Any judgment upon an award rendered by the arbiters, including
remedies of repossession, replevin, or other remedies where property would be subject to reclamation or disposition, may be entered in the Federal and State Courts of the State of New Jersey and in any other Court having jurisdiction. The arbiters shall not have the power to amend this agreement in any respect. In the event a court having jurisdiction finds any portion of this agreement unenforceable, that portion shall not be effective and the remainder of the agreement shall remain effective. This agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16. Each party shall bear and be responsible for their own costs and attorney fees.
The parties to this Licensing Agreement each agree that the exclusive venue for any dispute between the parties arising out of these Licensing Agreement or pertaining to the subject matter of these Licensing Agreement will be in Montclair, New Jersey. If any part of these Licensing Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. This Licensing Agreement constitutes the entire agreement among the parties relating to this subject matter. Notwithstanding the foregoing, any additional terms and conditions on this site will govern the items to which they pertain.
You agree that you will not join any other party in any dispute you have with Company and that you must bring any action under this agreement as a sole individual.
The terms constituting this offering are set forth in writing on this System. Whether or not you choose to print this License, containing the terms and conditions as described herein, you agree that this contract constitutes a writing.
This Agreement is being written in English, which is to be the official language of the contract’s text and interpretation. If you do not agree with the above terms and conditions, you have the option to not use the Software.
14. RISK NOTICE AND DISCLAIMER.
The Marketro LLC. System and Software allows users to mass broadcast SMS text messages (both text and images). This necessarily involves third parties and third party companies unrelated to Marketro LLC..
Third party companies post Terms Of Service (TOS), policies, use prohibitions and other legal documents that you must comply with to access and use their services.
The use of Marketro LLC. services, products and strategies may be in violation of a third party use prohibitions. Therefore, use the Marketro LLC. services, products, techniques and strategies at your own risk. You, the Client, agree Marketro LLC. shall have no liability for any adverse consequences for your use of our Company services, products and strategies.
You agree that Marketro LLC. is not responsible for third party adverse consequences which may include, but are not limited to the following: Third party use prohibitions; Third party policies; Any cost associated with or by your carrier; Loss of your carrier telephone number; Loss of your third party carrier account; Banning your carrier account; Loss of any provider, account, services, Web sites, and/or domains. You agree that you alone bear the risk of any action taken by a third party against you.
Short Message Service (SMS) is a text messaging service component of phone, Web, and/or mobile communication systems.
WARNING: SHORT MESSAGE SERVICE (SMS) IS HIGHLY REGULATED BY BOTH FEDERAL LAW, THE TELEPHONE CONSUMER PROTECTION ACT 47 U.S.C. § 227 AND STATE LAW AND CARRIES SERIOUS CONSEQUENCES FOR VIOLATIONS OF SAID LAWS. OUR COMPANY DOES NOT UNDER ANY CIRCUMSTANCES GIVE LEGAL ADVICE, OPINIONS OR ANSWER QUESTIONS ABOUT YOUR INTENDED USE OR USE OF OUR SYSTEM OR ANY OF THE SYSTEM COMPONENTS.
WE ARE NOT LAWYERS AND OUR COMPANY ADVISES YOU TO BE CAUTIOUS, IN THAT REGARD, AS SHORT MESSAGE SERVICE (SMS) TEXT MESSAGING LAW IS COMPLICATED AND BEST LEFT TO LAWYERS.
IF YOU ARE MARKETING PRODUCTS OR SERVICES DIRECTLY OR INDIRECTLY USING TEXT MESSAGES, YOU SHOULD BE CONSULTING WITH EXPERIENCED INTERNET MARKETING COUNSEL ON A REGULAR BASIS TO COMPLY WITH FEDERAL LAW AS WELL AS STATE LAW FOR THE STATE YOU ARE MARKETING IN.
THE INFORMATION CONTAINED HEREIN IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE, NOR IS IT A SUBSTITUTE FOR OBTAINING LEGAL ADVICE FROM A QUALIFIED ATTORNEY. EACH SITUATION IS UNIQUE, AND YOU SHOULD NOT ACT OR RELY ON ANY INFORMATION CONTAINED HEREIN WITHOUT SEEKING THE ADVICE OF AN EXPERIENCED ATTORNEY.
15. USE PROHIBITIONS
You may not post, send, submit, publish, or transmit in connection with this System any material that:
· you do not have the right to use, including proprietary material of any third party;
· advocates illegal activity or discusses an intent to commit an illegal act;
· is vulgar, obscene, pornographic, or indecent;
· threatens or abuses others, libels, defames, invades privacy, stalks, is obscene, pornographic, racist, abusive, harassing, threatening or offensive;
· seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
· infringes any intellectual property or other right of any entity or person, including violating anyone’s copyrights or trademarks or their rights of publicity;
· violates any law or may be considered to violate any law;
· impersonates or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
· includes programs which contain viruses, worms and/or Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications;
· amounts to a 'pyramid' or similar scheme;
· disobeys any policy or regulations established from time to time regarding use of this System;
· contains information to other entities that contain content that falls within the descriptions set forth above.
Although under no obligation to do so, our Company reserves the right to monitor use of this System to determine compliance with your License, as well the right to revoke your License for any reason. Notwithstanding these rights, you remain solely responsible for the content of your submissions. You acknowledge and agree that neither Company nor any third party that provides Content to Company will assume or have any liability for any action or inaction by Company or such third party with respect to any submission.
Any passwords used for this System are for individual use only. You will be responsible for the security of your password (if any). Company will be entitled to monitor your password and, at its discretion, require you to change it. If you use a password that Company considers insecure, Company will be entitled to require the password to be changed and/or terminate your account.
You are prohibited from using any services or facilities provided in connection with this System to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If you become involved in any violation of system security, Company reserves the right to release your details to system administrators at other entities in order to assist them in resolving security incidents. Company reserves the right to investigate suspected violations of this License.
Company reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Company to disclose the identity of anyone using the System, or publishing or otherwise making available any materials that are believed to violate this License.
BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU ALSO ACKNOWLEDGE THAT THIS LICENSE IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN XODO INC. AND YOU, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR OTHER COMMUNICATIONS, WHETHER ORAL OR WRITTEN, BETWEEN YOU AND XODO INC. RELATING TO THE SUBJECT MATTER OF THIS LICENSE. THIS LICENSE CANNOT BE MODIFIED OR AMENDED EXCEPT BY A FURTHER WRITTEN INSTRUMENT EXECUTED BY YOU AND XODO INC..
Marketro LLC DATA PROCESSING TERMS
LLC and the counterparty agreeing to these terms (“Customer”)
have entered into an agreement for the provision of the Services (as
amended from time to time, the “Agreement”).
Marketro LLC Data Processing Terms (including the appendices,
Processing Terms”) are entered into by Marketro
LLC and Customer and supplement the Agreement. These Data Processing
Terms will be effective, and replace any previously applicable terms
relating to their subject matter, from the Terms Effective
you are accepting these Data Processing Terms on behalf of
you warrant that: (a) you have full legal authority to bind
to these Data Processing Terms; (b) you have read and understand
these Data Processing Terms; and (c) you agree, on behalf of
Customer, to these Data Processing Terms. If you do not have the
legal authority to bind Customer, please do not accept these
Data Processing Terms sets out the additional terms, requirements
and conditions on which Marketro LLC will process Personal Data when
providing Services under the Agreement. These Terms contains the
mandatory clauses required by Article 28(3) of the General Data
Protection Regulation ((EU)
contracts between controllers and processors.
agreeing to these Terms, Customer enters into them on its own behalf
and on behalf of its Affiliates, if and to the extent Marketro LLC
Processes Personal Data for which such Affiliates qualify as
shall mean, as to any entity, any other entity that,
indirectly, controls, is controlled by or is under common
with such entity.
means the EU General Data Protection Regulation ((EU)
the European Parliament and of the Council of 27 April 2016
protection of natural persons with regard to the processing
personal data and on the free movement of such data, and
shall mean the natural or legal person, public authority,
other body which, alone or jointly with others, determines
purposes and means of the Processing of Personal
shall mean the Personal Data which Marketro LLC is
Processor on behalf of Customer in order to provide the
Protection Laws” shall
mean all data protection and privacy laws applicable to the
respective party in its role in the processing of Personal
under the Agreement, including, where applicable, EU Data
Data Protection Law” shall
mean (i) the GDPR, and any equivalent or replacement law in
Member State and all and any regulations made under those
regulations; (ii) the guidelines, recommendations, best
opinions, directions, decisions, and codes of conduct
adopted or approved by the European Commission, the European
Protection Board, and/or any supervisory authority or data
protection authority from time to time in relation to the
(iii) any judgments of any relevant court of law relating to
processing of personal data, data privacy, and data
Standard Contractual Clauses”
shall mean the Standard Contractual Clauses for the Transfer
Personal Data to Processors Established in Third Countries
forth in the Commission Decision 2010/87/EC of 5 February
well as under any new laws, rules, regulations, and/or
that that replace, supersede, or are required to be
connection with the Standard Contractual
shall mean a country that is a member of the European Union
the European Economic Area.
shall mean any information relating to an identified or
identifiable natural person (“Data Subject”), which information
is subject to Data Protection Legislation; an identifiable natural
person is one who can be identified, directly or indirectly, in
particular by reference to an identifier such as a name, an
identification number, location data, an online identifier such as
an IP or MAC Address or Mobile ID, or to one or more factors
specific to the physical, physiological, genetic, mental, economic,
cultural or social identity of that natural person.
shall mean a suspected or actual breach of the Marketro LLC
technical and organizational measures leading to the accidental or
unlawful destruction, loss, alteration, unauthorized disclosure of,
or access to, Personal Data transmitted, stored or otherwise
mean the Privacy Shield Principles (as supplemented by the
Supplemental Principles) contained in Annex II to the European
Commission Decision C(2016)4176 of 12 July 2016 (as may be amended,
superseded or replaced).
shall mean the collection, recording, organization,
use, access, disclosure, copying, transfer, storage,
combination, destruction, disposal or other use of Personal
the Processor on behalf of Customer.
shall mean a natural or legal person, public authority,
other body which processes Personal Information on behalf of
shall mean the services provided by Marketro LLC as
means any subcontractor engaged by Marketro LLC for the
of Customer Personal Data in accordance with Section
shall mean an independent public authority which is
a Member State pursuant to Data Protection
the period from the Terms Effective Date until the end of Marketro
LLC’s provision of the Services under the Agreement.
date on which Customer clicked to accept or the parties otherwise
agreed to these Data Processing Terms.
shall mean the access by, transfer or delivery to, or
Personal Data to a person, entity or system located in a
jurisdiction other than the country or jurisdiction where
Personal Data originated from.
Data Processing Terms will take effect on the Terms Effective Date
and, notwithstanding expiry of the Term, remain in effect until, and
automatically expire upon, deletion of all Customer Personal Data by
Marketro LLC as described in these Data Processing Terms.
Data Processing Terms apply if and to the extent Marketro LLC is
Processing Customer Personal Information. In this context, Marketro
LLC will act as a “Processor” to the Customer, who may act as
“Controller” or “Processor” with respect to Customer Personal
1 (Processing Details) sets out:
nature, purposes, and subject matter of the Processing;
duration of the Processing;
categories of Data Subjects; and
types of Customer Personal Data.
LLC will Process Customer’s Personal Data for the sole purpose of
providing the Services according to Customer’s written
instructions. The Parties agree that the Agreement and these Data
Processing Terms constitute Customer’s complete and final
documented instructions to Marketro LLC in relation to the Processing
of Customer’s Personal Data. Additional instructions outside the
scope of the Agreement or these Data Processing Terms (if any)
require prior written agreement between Marketro LLC and Customer,
including agreement on any additional fees payable by Customer for
carrying out such instructions. Customer shall ensure that its
instructions comply with all laws, rules and regulations applicable
in relation to Customer’s Personal Data, and that the Processing of
Customer’s Personal Data in accordance with Customer’s
instructions will not cause Marketro LLC to be in breach of EU Data
LLC will not access or use Customer’s Personal Data, except as
necessary to maintain or provide the Services, or as necessary to
comply with the law or a binding order of a governmental
agrees that (i) it will comply with its obligations under Data
Protection Laws in respect of its Processing of Customer’s Personal
Data, including any obligations specific to its role as a Controller
and/or Processor (as applicable); and (ii) it has provided notice and
obtained (or will obtain) all consents and rights necessary under
Data Protection Laws for Marketro LLC to Process Customer’s
Personal Data and provide the Services pursuant to the Agreement and
these Data Processing Terms. If Customer is itself a Processor,
Customer warrants to Marketro LLC that Customer’s instructions and
actions with respect to that Customer Personal Data, including its
appointment of Marketro LLC as another Processor, have been
authorized by the relevant Controller.
AND ORGANIZATIONAL MEASURES
LLC will implement and maintain technical and organizational
measures to ensure a level of security appropriate to the risk,
taking into account the state of the art, the costs of
implementation and the nature, scope, context and purposes of the
Processing as well as the risk of varying likelihood and severity
for the rights and freedoms of individuals.
is responsible for making an independent determination as to
whether the technical and organizational measures implemented by
Marketro LLC meet Customer’s requirements and legal obligations
under GDPR. Customer acknowledges that the Marketro LLC
and organizational measures are subject to technical progress
further development and that Marketro LLC may update or modify
Marketro LLC technical and organizational measures from time to
time provided that such updates and modifications do not result
a material degradation of the overall security of the Services
provided to Customer under the Agreement.
agrees that, without prejudice to Marketro LLC’s obligations
under Section 3.1: (a) Customer is responsible for its use of
Services, including making appropriate use of the Services to
ensure a level of security appropriate to the risk in respect of
Customer’s Personal Data, securing its account authentication
credentials, managing its data back-up strategies, and
the security of Customer’s Personal Data when in transit to and
from the Services and taking any appropriate steps to securely
encrypt or backup any Customer’s Personal Data uploaded to the
Services; and (b) Marketro LLC has no obligation to protect
Customer’s Personal Data that Customer elects to store or
transfer outside of Marketro LLC’s and its Sub-processors’
systems (for example, offline or on premise
SUBJECT RIGHTS AND REQUESTS
LLC shall rectify, erase, allow the portability of or otherwise
Process Customer’s Personal Data and take any other measures in
relation to requests from Data Subjects in relation to their rights
under applicable EU Data Protection Law only in accordance with and
subject to Customer’s written instructions.
the extent permitted by applicable Data Protection Legislation,
Marketro LLC will inform Customer without undue delay of requests
from Data Subjects exercising their rights thereunder that are
addressed directly to Marketro LLC regarding Customer’s Personal
Data. If Customer is obliged to provide information regarding
Customer’s Personal Data to third parties (e.g., Data Subjects or
any Supervisory Authority), Marketro LLC shall use best efforts to
assist Customer in doing so by providing all required
agrees that, without prejudice to Marketro LLC’s obligations under
Sections 4.1 and 4.2 above, Customer is solely responsible for
dealing with Data Subject requests.
a law enforcement agency sends Marketro
LLC a demand for
Customer’s Personal Data (e.g., a subpoena or court order),
will redirect the law enforcement agency to request that data
directly from Customer. As part of this effort, Marketro
LLC may provide
Customer’s contact information to the law enforcement agency. If
compelled to disclose Customer’s Personal Data to a law
enforcement agency, then Marketro
LLC will give Customer
reasonable notice of the demand to allow Customer to seek a
protective order or other appropriate remedy to the
LLC is legally permitted
to do so.
is required under the GDPR to: (a) collect and maintain written
records of certain information, including the name and contact
details of each Processor and/or Controller on behalf of which
is acting and, where applicable, of such Processor’s or
Controller's local representative and data protection officer.
(b) make such information available to the Supervisory
Accordingly, if GDPR applies to the Processing of Customer’s
Personal Data, Customer will, where requested, provide such
information to Marketro
LLC via the Services or
other means provided by Marketro
LLC, and will ensure
that all information provided is kept accurate and
prejudice to any existing contractual arrangements between the
Parties, Marketro LLC shall treat all Customers’ Personal Data as
strictly confidential and is shall inform all its employees, agents
and/or approved Sub-processors engaged in Processing the Customer’s
Personal Data of the confidential nature of the data. Marketro LLC
shall ensure that all such persons or parties have signed an
appropriate confidentiality agreement, are otherwise bound to a duty
of confidentiality, or are under an appropriate statutory obligation
LLC will not disclose Customer’s Personal Data to any third party,
unless authorized by Customer or required by mandatory law. If a
government or Supervisory Authority demands access to Customer’s
Personal Data, Marketro LLC will notify Customer prior to disclosure
unless prohibited by law.
shall also provide written responses (on a confidential basis)
all reasonable requests for information made by Customer related
its Processing of Customer’s Personal Data, including responses
to information security and audit questionnaires that are
to confirm Marketro
compliance with these Data Processing Terms, provided that
shall not exercise this right more than once per
agrees to exercise any right it may have to conduct an audit or
inspection of Marketro LLC’s technical and organization
including under the EU Standard Contractual Clauses if they
by instructing Marketro
to carry out such audit.
OR DELETING CUSTOMER’S PERSONAL DATA
termination or expiration of the Agreement, or anytime upon
Customer’s written request, Marketro LLC shall promptly return
delete all copies of Customer’s Personal Data. Marketro LLC
not be required to return or delete Customer’s Personal Data to
the extent (i) Marketro LLC is required by applicable law or
of a governmental or regulatory body to retain all or some of
Customer’s Personal Data, or (ii) Customer has not paid all
amounts due under the Agreement.
agrees that Marketro
may engage Sub-processors to Process Customer’s Personal Data on
Customer’s behalf. Customer hereby consents
continuing to use any of Marketro
Affiliates and all Sub-processors already engaged
as at the date of these Data Processing Terms (a full list is
available on request by contacting the Marketro
shall promptly take any reasonable action required or
to facilitate or support any transfer of Customer’s Personal
to approved Sub-processors (e.g. updating registrations with
shall notify Customer of any new
wishes to appoint to carry out Processing activities on behalf
Customer. If, within two (2) weeks of receipt of any such
Customer notifies Marketro
in writing of any objections to the proposed appointment for
legitimate reasons, Marketro
shall work with Customer in good faith to take reasonable
to address the objections raised by Customer, and where such
measures cannot be agreed within three (3) weeks
receipt of Customer’s notice, Customer may by written notice to
with immediate effect terminate the Agreement to the extent that
relates to the Services which require the use of the proposed
Sub-processor. “Legitimate reasons” shall be deemed given if
there is an indication based on objective facts which reasonably
support the assumption that the engagement of the Sub-processor
would breach applicable law or this DPA.
Marketro LLC engages a Sub-processor to carry out specific
Processing activities on behalf of Customer, Marketro LLC shall
enter into a written agreement with the Sub-processor which
includes terms which offer the same level of protection for
Customer’s Personal Data as those set out in this
any approval by Customer within the meaning of Section 8.1,
Marketro LLC shall remain fully liable vis-à-vis Customer for
performance of any such Sub-processor that fails to fulfil its
protection obligations under these Data Processing Terms and/or
applicable Data Protection Laws.
of PERSONAL INFORMATION
the extent that Marketro LLC Processes any Customer’s
Data in a country that is neither a Member State nor
the European Commission to have adequate level of protection
personal information, Marketro LLC will (i) enter into EU
Contractual Clauses with Customer, unless Marketro LLC can
demonstrate adherence to one of the other statutory Transfer
mechanisms approved by the European Commission, such as the
the extent that Customer or Marketro LLC are relying on a
statutory mechanism to normalize international Personal Data
Transfers that is subsequently modified, revoked, or held in
court of competent jurisdiction to be invalid, Customer and
Marketro LLC agree to cooperate in good faith to promptly
the Transfer or to pursue a suitable alternative mechanism
lawfully support the transfer.
the purposes of Section 9.2, Marketro
LLC and Customer agree that incorporation of the EU Standard
Contractual Clauses or Privacy Shield into these Data
Terms shall act as a legally-binding
OBLIGATIONS AND PERSONAL DATA BREACH
Marketro LLC becomes aware of a Personal Data Breach that
the Processing of the Customer’s Personal Data that is the
subject of the Agreement and is reasonably likely to require a
breach notification by Customer under EU Data Protection Law,
Marketro LLC will without undue delay: (a) notify Customer of
Personal Data Breach; and (b) take reasonable steps to minimize
damage resulting from the Personal Data Breach.
assist Customer in relation to any Personal Data Breach
notifications Customer is required to make under the EU Data
Protection Law, Marketro LLC will include in the notification
Section 10.1(a) such information about the Personal Data Breach
Marketro LLC is reasonably able to disclose to Customer, taking
into account the nature of the Services, the information
to Marketro LLC, and any restrictions on disclosing the
information, such as confidentiality.
unsuccessful Personal Data Breach will not be subject to this
Section 10. An unsuccessful Personal Data Breach is one that
results in no unauthorized access to Customer’s Personal Data or
to any of Marketro LLC’s equipment or facilities storing
Customer’s Personal Data, and may include, without limitation,
pings and other broadcast attacks on firewalls or edge servers,
port scans, unsuccessful log-on attempts, denial of service
attacks, packet sniffing (or other unauthorized access to traffic
data that does not result in access beyond headers) or similar
LLC’s obligation to report or respond to a Personal Data Breach
under this Section 10 is not and will not be construed as an
acknowledgment by Marketro LLC of any fault or liability of
Marketro LLC with respect to the Personal Data
of Personal Data Breaches, if any, will be delivered to one or
of Customer’s administrators by any means Marketro LLC selects,
including via email. It is Customer’s sole responsibility to
ensure Customer’s administrators maintain accurate contact
information on Marketro LLC’s systems, and secure transmission
acknowledges that Marketro LLC will not assess the contents of
Customer’s Personal Data in order to identify information
to any specific legal requirements. Customer is solely
for complying with the data breach notification obligations
applicable to Customer under EU Data Protection Law and
any third-party notification obligations related to any Personal
liability of each Party under these Data Processing terms shall be
subject to the exclusions and limitations of liability set out in the
Agreement. Customer agrees that any regulatory penalties incurred by
Marketro LLC in relation to the Customer’s Personal Data that arise
as a result of, or in connection with, Customer’s failure to comply
with its obligations under these Data Processing Terms and EU Data
Protection Law shall count towards and reduce Marketro LLC’s
liability under the Agreement as if it were liability to Customer
under the Agreement.
any provision of these Data Processing Terms is ineffective or void,
this shall not affect the remaining provisions. The parties shall
replace the ineffective or void provision with a lawful provision
that reflects the business purpose of the ineffective or void
provision. In case a necessary provision is missing, the parties
shall add an appropriate one in good faith.
the event of any inconsistency between the provisions of Data
Processing Terms and the provisions of the Agreement, the provisions
of Data Processing Terms shall prevail.
Data Processing Terms will be governed and construed in accordance
with the governing law and applicable jurisdiction provisions of the
Agreement, unless required by applicable Data Protection
as otherwise detailed herein, the terms and conditions of the
Agreement shall remain unchanged and in full force and
LLC Data Processing Terms, Version 1.0
Matter and Details of the Data Processing
LLC’s provision of the Services and any related technical support
of the Processing
Term plus the period from expiry of the Term until deletion of all
Customer Personal Data by Marketro LLC in accordance with these Data
and Purpose of the Processing
LLC will Process (including, as applicable to the Services and the
instructions described in Section 2.4 (Customer’s Instructions),
collecting, recording, organizing, structuring, storing, altering,
retrieving, using, disclosing, combining, erasing and destroying)
Customer Personal Data for the purpose of providing the Services and
any related technical support to Customer in accordance with these
Data Processing Terms.
of Personal Data
Personal Data may include your name, address, telephone number, email
address, or any screen name or user name you may use, and other
relevant information related to processing need for Marketro LLC
software to perform it's function.
of Data Subjects
Personal Data will concern the following categories of data
Subjects about whom Marketro LLC collects Personal Data in its
provision of the Services; and/or
Subjects about whom personal data is transferred to Marketro LLC in
connection with the Services by, at the direction of, or on behalf