As a precondition and requirement to use the services available via marketro.com, you, for yourself and for the company or other person(s), if any, you represent ("Subscriber" or "Subscribers", as applicable), hereby accept and agree to be legally bound by these Terms of Service ("Terms"). These Terms are effective immediately between the Subscriber and Marketro LLC, its subsidiaries, and affiliates ("marketro.com"). Each Subscriber is subject to these Terms, and by using marketro.com's services, network, and/or systems (collectively the "Services"), Subscriber agrees to be legally bound by and subject to all terms and conditions contained in these Terms, including as well all usage policies and other policies herein. To the extent not inconsistent therewith, these Terms are also incorporated into the individual service agreement, if any, of each Subscriber.
Subscriber represents and warrants that, if an individual, Subscriber is at least 18 years old and otherwise legally competent in all respects to, or, if an entity, Subscriber is a corporation, limited liability company, partnership, or other legal entity duly formed and in good standing, as applicable, and possesses all legal authority and power to accept and be bound by these Terms. Additionally, Subscriber represents and warrants that neither it, she, or he (as applicable), nor any entity it, she or he represents, is prohibited under any part of section 13 of these Terms from registering or signing up with or otherwise subscribing to or receiving any of the Services from marketro.com.
Further, Subscriber represents and warrants all information provided by Subscriber to marketro.com has been and is complete, accurate, and current, and that Subscriber shall continue to provide complete, accurate and current information to marketro.com in connection with all registration or renewal processes and further agrees to update all such information as necessary to maintain complete, accurate and current information.
marketro.com intends to provide the best possible video serving service to each of its Subscribers. marketro.com is also dedicated to staying abreast of new and available technologies that will better serve our Subscribers. However, due to changing technologies, changing laws, and the individual and collective needs of our Subscribers, marketro.com reserves the right, in its sole discretion, to change, modify, add or remove all or any part of these Terms at any time with or without notice.
Any use of the Services by Subscriber, after changes, modifications, additions or deletions to these Terms are posted on the marketro.com website, shall constitute Subscriber's acceptance of all such changes, additions, modifications or deletions.
If a Subscriber does not agree to any such alterations to these Terms, the Subscriber's sole and exclusive remedy is to cancel the Subscriber's account as set forth in this agreement.
Notwithstanding marketro.com's right to alter these Terms without prior notice, marketro.com may, within its sole discretion and as a courtesy to all affected Subscribers, make an effort to provide Subscribers with 7 days advanced notice of any alteration of these Terms if it appears to marketro.com, in its sole discretion, that said alteration may materially and adversely impact said Subscriber's use of the Services.
TERM - PAYMENT - RENEWAL OF ACCOUNT
Term of Service. The term of Subscriber's subscription to the Services commences upon Subscriber's acceptance of these Terms and terminates as set forth in this agreement.
Payment. Subscriber agrees to pay all applicable fees for Services in effect at the time of registration and/or renewal, subject to these Terms as same may be modified by marketro.com from time to time.
Automatic Renewal of Account. As a courtesy and not as an obligation (contractual or otherwise), marketro.com will automatically renew Subscriber's account by charging the applicable fee to Subscriber's current method of payment on file.
Cancellation of Automatic Renewal of Account.
To cancel Automatic Account Renewal, Subscriber must notify marketro.com of Subscriber's intent to cancel at least seven (7) days prior to the account expiration date, by directing Automatic Account Renewal Cancellation Notification to marketro.com, as applicable, by sending same via the Helpdesk at https://support.marketro.com/. marketro.com agrees that on receipt of Automatic Account Renewal Cancellation Notification under the conditions stated above, no additional charges will be billed to Subscriber, and Subscriber's account and videos, as applicable, shall expire on the account expiration date and be removed permanently from marketro.com's servers sometime after cancellation.
Authority. In the event Subscriber is a corporation, limited liability company, partnership, joint venture, other business entity, or group of individuals, the person registering for or renewing marketro.com Services on behalf of Subscriber hereby certifies that he/she has the authority to and does hereby bind the corporation, LLC, partners, joint venture or other individuals in this manner and in connection with Subscriber's acceptance of all other Terms set forth herein.
CANCELLATION OF SERVICES - REFUND POLICY
Cancellations and Refunds. marketro.com provides a 30-day money-back guarantee for new account registrations.
Subscribers must direct all cancellation requests to marketro.com via the Helpdesk at https://support.marketro.com/.
Chargebacks and Reversals. In the event Subscriber issues a chargeback or reversal of charges without first following the above cancellation procedures, the Subscriber will be responsible for a $50.00 billing service fee.
PROPRIETARY RIGHTS
These Terms do not give Subscriber any rights in marketro.com intellectual property or technology. marketro.com and related trademarks and logos are the exclusive property of marketro.com. marketro.com and Subscriber agree that neither will, directly or indirectly, reverse engineer or decompile object code or execution code, nor otherwise seek to obtain source code or trade secrets of the other party. Notwithstanding the foregoing, nothing herein shall bar marketro.com from using any knowledge, information or skills that are generally known or that can be learned or otherwise acquired in the normal course of business.
SECURITY AND OWNERSHIP
Site Security. marketro.com uses sophisticated means of security in connection with the Services. Notwithstanding the foregoing, it is exclusively Subscriber's obligation to maintain and control passwords to Subscriber's account(s), and Subscriber exclusively is responsible for all activities that occur in connection with Subscriber's user name and password.
Subscriber agrees to immediately notify marketro.com of any unauthorized uses of the Service or any other breaches of security. marketro.com will not be liable for any loss or damages of any kind, under any legal theory, caused by Subscriber's failure to comply with the foregoing security obligations or caused by any person to whom Subscriber grants access to Subscriber's Services.
Access and Control Policy. When a new account is registered with marketro.com or with one of its affiliates, the process requires and results in the creation of the following within the records of marketro.com, in association with the said new account: i) Name of person registering; ii) email address; iii) user name; and iv) password.
If a person contacts marketro.com and claims that she or he is entitled access to an account registered with marketro.com or its affiliate but is without access (for any reason such as but not limited to a forgotten password or forgotten user name, data loss or corruption on personal computer, improperly locked out, and so forth), marketro.com will give access to the person who acceptably evidences she or he has substantially all of: i) name of the person who originally registered or last paid for said account; ii) email address of the person who originally registered or last paid for said account; iii) the user name of the person who originally registered or last paid for said account, if possible; and, iv) a photo identification evidencing she or he is the rightful possessor and user of said credit card or original payment medium or the one which was last used to pay for said account (mandatory).
Otherwise, marketro.com will not give access and control to a claimant unless marketro.com is served with a valid order of a court, agency, or appropriate internet controlling entity, requiring marketro.com to give such access and control to said claimant or unless there is submitted to marketro.com at https://support.marketro.com/ a written statement duly signed by the person who originally registered said account which statement is duly notarized, and in which said originally registering person confirms that said claimant is entitled to access and control of the account, together with a written notarized statement duly signed by claimant which confirms claimant is entitled to access and control of said account and has read and agreed to these Terms of Service.
Subscriber acknowledges and accepts that the foregoing access and control policies and procedures are the only way that notice(s) can be given and changes can be effected regarding said access and/or control; and, further, that any other changes made directly by Subscriber or by others within the online records of marketro.com or of its affiliates shall not be deemed effective to give notice to marketro.com or its affiliates of any changes in said access or control.
Subscriber acknowledges and accepts said access and control policy and procedure, agrees not to bring any claim in the form of a lawsuit or otherwise against marketro.com arising out of its following said policy and procedure, agrees immediately to dismiss any claim so brought, and hereby releases marketro.com from all liability and all claims for damages or any other liability whatsoever that may arise out of marketro.com.s following said policy and procedure.
License to marketro.com marketro.com claims no ownership interest in the content of Subscriber's web site(s).
By submitting content and data to marketro.com, Subscriber grants to marketro.com, its successors and assigns, the worldwide, royalty-free, and nonexclusive license under Subscriber's copyrights and other rights, if any, in all material and content displayed in Subscriber's web site to use, distribute, display, reproduce, and create derivative works from such material in any and all media, in order to maintain such content on marketro.com's servers during the term of these Terms.
Subscriber also authorizes the downloading and printing of such material, or any portion thereof, by end-users for their personal use. This license shall terminate upon Subscriber's cancellation of the Services as set forth in this agreement.
Transfer of Ownership. marketro.com is not responsible to determine ownership of accounts opened with marketro.com or its affiliates.
By accessing marketro.com’s system, registering, or using any of the services provided by marketro.com, the Subscriber, or any other person so accessing, registering or using, hereby represents and warrants that the information provided in connection with said registration, including as well information concerning ownership of accounts, is true, accurate, and complete in each material detail.
Any disputes arising regarding the ownership of any account registered with marketro.com or any of its affiliates are subject to the terms and conditions set forth in this agreement.
marketro.com will recognize a change of ownership of account(s) with marketro.com or its affiliates only in the event that at least one of the following occur: i) there is received by the Abuse Manager (https://support.marketro.com/) a written statement (in a form acceptable to marketro.com or applicable affiliate) containing the notarized signature of the original owner of the account confirming that ownership of the account has been transferred to a person (claimant) claiming to own said account along with a written statement containing the notarized signature of the claimant confirming that she or he has acquired said ownership, has read and agrees to be bound by these Terms of Service; or, ii) marketro.com is served with a valid order of a court, agency, or appropriate internet controlling entity, requiring marketro.com (or affiliate) to transfer such ownership to said claimant.
Subscriber acknowledges and accepts that the foregoing policies and procedures regarding transfer of ownership are the only way that notice(s) can be given and changes can be effected regarding said transfer of ownership within marketro.com; and, further, that any other changes made directly by Subscriber or by others within the online records of marketro.com or of its affiliates shall not be deemed effective to give notice to marketro.com or its affiliates of any changes in said ownership.
Subscriber acknowledges and accepts that the foregoing policies and procedures regarding transfer of ownership are the only way that notice(s) can be given and changes can be effected regarding said transfer of ownership within marketro.com; and, further, that any other changes made directly by Subscriber or by others within the online records of marketro.com or of its affiliates shall not be deemed effective to give notice to marketro.com or its affiliates of any changes in said ownership.
Disputing Account Ownership Disputes sometimes arise between or among multiple persons claiming ownership of an account hosted by marketro.com or in an associated marketro.com account. marketro.com is not obligated to resolve any such disputes.
If multiple persons are claiming ownership of or rights in an account hosted by marketro.com or in an associated marketro.com account, and, in marketro.com's sole judgment, there is not certainty as to the ownership of or rights in said site or account, then marketro.com will, to the extent of its knowledge and ability, notify said persons of the dispute and demand that said persons promptly, conclusively, and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves marketro.com of all liability or obligations concerning the dispute.
If the disputing persons fail so to resolve the dispute within what marketro.com, in its sole judgment, deems to be a reasonable time, then marketro.com, at its option and without any obligation to do so, may, in accordance with and subject to the laws of the State of New Jersey USA, file an interpleader action in a court of competent jurisdiction within the State of New Jersey USA for the purpose of allowing the contending persons to resolve said dispute and to reach certainty regarding ownership of or rights in said site and/or account.
The person or persons conclusively and finally determined by the interpleader action to be the rightful owner(s) or interest holder(s) of said site and/or associated account shall be obligated to reimburse marketro.com for all of its expenses relative to said interpleader action including without limit all its court costs and reasonable attorney fees.
All amounts owed to marketro.com under this section shall be deemed due and payable immediately upon thirty (30) days after judgment or settlement is reached in said interpleader action.
Failure of the rightful owner of said site and/or associated account to cause marketro.com to be timely paid in full all of said amounts shall be deemed a breach of these Terms, shall subject the account to immediate termination, and shall entitle marketro.com to a judgment against said rightful owner for all costs and all of marketro.com's expenses relative to said interpleader action including without limit all of marketro.com's court costs and reasonable attorney fees.
No rights enumerated in this section shall in any way diminish any other rights of marketro.com enumerated in any other section of these Terms, or otherwise available to marketro.com at law or in equity.
PRIVACY POLICY
Commitment. The marketro.com commitment to our Subscribers' privacy is set forth in this section.
Except as required by law or as otherwise provided herein, marketro.com will take commercially reasonable steps to ensure your right to privacy. marketro.com is committed to developing long lasting relationships that are built on trust and will never intentionally violate that trust.
Confidentiality. With the exception of trusted business affiliates and/or associates who work on behalf of or in connection with marketro.com, subject to specific confidentiality agreements, marketro.com will not provide or sell to any third party your personal information and will keep all Subscriber information confidential, subject to the following:
- marketro.com will respond to subpoenas, court orders, or other legal process, and will utilize Subscriber information as necessary to establish or exercise marketro.com's legal rights or defend against legal claims.
- marketro.com will share information to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations or suspected violations of these Terms, or as otherwise required by law.
marketro.com may transfer information about Subscribers if marketro.com is acquired by or merged with another company, in which event marketro.com will notify Subscriber.
"UNLIMITED" USAGE POLICIES AND DEFINITIONS
What "Unlimited" means. In good faith and subject to these Terms, marketro.com makes every commercially reasonable effort to provide its Subscribers with all the storage and bandwidth resources needed to power their videos successfully, as long as the Subscriber's use of the service complies with these Terms. By not setting limits on key resources, we are able to provide simple, consistent pricing to our Subscribers. As a result, a typical Subscriber website may experience periods of great popularity and resulting increased storage without experiencing any associated increase in hosting charges.
What "Unlimited" DOES NOT mean. marketro.com employs mechanisms to protect its Subscribers and systems from abuse. marketro.com's offering of "unlimited" services is not intended to allow the actions of a single or few Subscribers to unfairly or adversely impact the experience of other Subscribers.
marketro.com's service is a shared service, which means that multiple Subscriber assets are hosted from the same server and share server resources. marketro.com's service is designed to meet the typical needs of small business and home business website Subscribers.
It is NOT intended to support the sustained demand of large enterprises, internationally based businesses, or non-typical applications better suited to a dedicated server.
marketro.com will make every commercially reasonable effort to provide additional resources to Subscribers who are using their website(s) consistent with these Terms, including moving Subscribers to newer and bigger shared servers as necessary, at an increased monthly cost.
However, in order to ensure a consistent and quality experience for all Subscribers, marketro.com does employ automated safeguards to protect against any one account adversely impacting the system.
Unlimited Video Serving or Hosting - marketro.com reserves the right to limit processor time, bandwidth, or processes, memory, or number of files in cases where it is necessary to prevent a user from negatively impacting other Subscribers.
COOKIE POLICY STATEMENT
General Purposes. marketro.com understands that many of its Subscribers are concerned about "cookies", which are electronic collections of information stored on the local computer of a person using the worldwide web and which are used chiefly by websites to keep track of visitors and registered users and to relate one computer transaction to a later one.
marketro.com provides this Cookie Policy Statement to let you, the Subscriber, know how marketro.com uses this technology. marketro.com uses cookies to help marketro.com improve its services, and, most importantly, to provide marketro.com's existing Subscribers with the opportunity for continued savings and increased convenience.
Cookies for Improving Our Web Site. marketro.com uses cookies to inform marketro.com of a repeat visit.
Cookies for Affiliate Program. marketro.com uses cookies to help monitor the traffic generated from marketro.com banners and logo buttons displayed on affiliated websites. For every new marketro.com Subscriber that is introduced to marketro.com through an affiliate, the affiliate receives a commission.
Cookies for Subscriber Account Management. For marketro.com Subscribers, marketro.com uses cookies to store user names for added convenience. As part of our marketro.com video service package, marketro.com offers password-protected, web-based management tools.
By storing a Subscriber's username in a cookie, the Webmaster will not have to fill out form fields each time he or she manages the account. (The cookie does not store Passwords.) marketro.com is dedicated to using the newest technologies in order to simplify our Subscribers' experience.
PROHIBITED USES
Breach of Terms and Account Termination. The uses of marketro.com Services set forth in this section hereinbelow are prohibited. The engaging in any prohibited use as set forth herein by Subscriber or by any affiliate or subscriber of Subscriber ( as determined in the sole discretion of marketro.com) constitutes a material breach of these Terms and will subject Subscriber's account to immediate termination without notice.
Spamming. Spamming, whether or not it overloads the Services or disrupts service to marketro.com's Subscribers, is prohibited. The term "Spamming" includes, but is not limited to, the sending of unsolicited bulk and/or commercial messages over the Internet, maintaining an open SMTP policy, or sending to any mailing list that is not double opt in. marketro.com requires that all email messages promoting a URL that contains a video embed hosted by us contain an automated opt out . We do not allow purchased lists. marketro.com's Subscribers are required to follow all rules in the Can Spam Act (http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm) as well as our company spam rules. marketro.com reserves the right to determine, in its sole and absolute discretion, whether e-mail recipients were part of an opt-in email list.
Prohibited Offerings. No Subscriber may utilize the Services to provide, sell or offer to sell the following: controlled substances; illegal drugs and drug contraband; weapons; pirated materials; instructions on making, assembling or obtaining illegal goods or weapons to attack others; information used to violate the copyright(s) of, violate the trademark(s) of or to destroy others' intellectual property or information; information used to illegally harm any people or animals; pornography, nudity, sexual products, programs or services; escort services or other content deemed adult related.
Profanity. Profanity or profane subject matter in the content is prohibited.
Private Information and Images. Subscribers may not post or disclose any personal or private information about or images of children or any third party without the consent of said party (or a parent's consent in the case of a minor).
Violations of Intellectual Property Rights. Any violation of any person's or entity's intellectual property rights, rights of privacy, rights of publicity or other personal rights is prohibited. marketro.com is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see "Copyright Infringement Notice Information" below).
Hacking. "Hacking" and related activities are prohibited. "Hacking" includes, but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in hacking.
Export Control Violations. The exportation of encryption software outside of the United States and/or violations of United States law relating to the exportation of software is prohibited. Subscriber may not export or transfer, directly or indirectly, any regulated product or information to anyone outside the United States without complying with all applicable statues, codes, ordnances, regulations, and rules imposed by U.S. federal, state or local law, or by any other applicable law.
Child Pornography. The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. marketro.com is required by law to, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
Other Illegal Activities. The use of the Services to engage in any activity that is determined by marketro.com, in its sole and absolute discretion, to be illegal is prohibited. marketro.com will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
Obscene, Defamatory, Abusive or Threatening Language. Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited.
Backup Storage. marketro.com offers its Services to show videos, not to store data. Using an account as an online storage space for archiving electronic files is prohibited.
Other Activities. Engaging in any activity that, in marketro.com's sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, marketro.com's business, operations, reputation, goodwill, Subscribers and/or Subscriber relations, or the ability of marketro.com's Subscribers to effectively use the Services is prohibited.
Such prohibited activities include making available any program, product or service that is designed to or could be used to violate these Terms. In addition, the failure of Subscriber to cooperate with marketro.com in correcting or preventing violations of these Terms by, or that result from the activity of, a subscriber, patron, customer, invitee, visitor, or guest of the Subscriber constitutes a violation of these Terms by Subscriber.
COPYRIGHT NOTICE INFRINGEMENT INFORMATION
In accordance with the Digital Millennium Copyright Act, marketro.com has adopted a policy that provides for termination of accounts hosted by marketro.com that are found to infringe on copyrights of third parties. If a copyright holder believes that there has been a violation of his or her copyright on a video that is hosted by marketro.com or an marketro.com subsidiary, and the copyright holder wants marketro.com to remove the content or disable the material in question, marketro.com will remove the content or disable the material if the copyright holder provides us with all of the following information.
A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Identification of the copyrighted work that is claimed is being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.
Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material.
Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.
A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
GENERAL
Promotional Pricing. marketro.com may periodically offer "free" or discounted services or credits in connection with a promotional offer. Such promotional offers are honored only in connection with the specific promotional package to which they apply. In the event a Subscriber downgrades or otherwise changes his/her/its subscription to a subscription to which a promotional offer does not apply, Subscriber will forfeit any unused free credits offered under the promotional packaged and marketro.com will charge Subscriber the prevailing fees for any free credits redeemed by Subscriber under the promotional package.
Backups. For its own operational efficiencies and purposes, marketro.com from time to time backs up data on its servers, but is under no obligation or duty to Subscriber to do so under these Terms. IT IS SOLELY SUBSCRIBER'S DUTY AND RESPONSIBILITY TO BACKUP SUBSCRIBER'S FILES AND DATA ON marketro.com SERVERS, AND under no circumstance will marketro.com be liable to anyone FOR DAMAGES OF ANY KIND under any legal theory for loss of Subscriber FILES AND/or data on any marketro.com server.
Monitoring and Disclosures. All activities occurring on, in, and/or via the Services or any account hosted by marketro.com may be monitored, recorded, and examined by any authorized person, including as well law enforcement.
In general, marketro.com does not monitor its Subscribers' websites or activities to determine whether they are in compliance with these Terms.
However, when and if marketro.com becomes aware of any violation of these Terms, marketro.com may take any lawful action, and in the event of illegal activity, will take action, to stop or correct such violation, including, but not limited to, shutting down an account, denying access to the Services or to the Internet via marketro.com, and/or removing non-complying information.
In addition, marketro.com may take any lawful action against a Subscriber or a subscriber, patron, customer, invitee, visitor, or guest of such Subscriber because of the activities of such subscriber, patron, customer, invitee, visitor, or guest. marketro.com reserves the right to take any such action even though such action may affect other subscribers, patrons, customers, invitees, visitors, or guests of the Subscriber.
marketro.com may disclose any information in its possession, including, without limitation, information about Subscribers, internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, governmental request, or other legal process to protect marketro.com or others from harm, and/or to ensure the proper operation of the Services. marketro.com has no obligation to notify any person, including the Subscriber about whom information is sought, that marketro.com has provided the information.
Accurate Account Information. Subscriber must continually update and keep accurate and current Subscriber's contact information stored and saved on marketro.com in order to avoid termination of Subscriber's marketro.com account(s).
Duty to Notify marketro.com of Breach. If Subscriber discovers anyone on the marketro.com system violating any of these Terms or notices anything suspicious from the marketro.com network, Subscriber agrees to report the violation or suspicious activity to https://support.marketro.com/ for investigation. marketro.com reserves the right to and will immediately terminate any account which marketro.com concludes to be in violation of any of these Terms.
Reservation of Rights. marketro.com reserves the right to refuse or to cancel service to any prospective Subscriber or existing Subscriber for any lawful reason at any time during Subscriber's hosting term with marketro.com.
Severability. These Terms are binding upon marketro.com, all existing and prospective Subscribers, and upon the assigns, heirs, and successors of each. If any provision of these Terms is held by any court of competent jurisdiction to be invalid or otherwise unenforceable, the rest of these Terms shall, nevertheless, continue to be valid and in full force and effect, to the extent said remaining Terms are then otherwise consistent with the original intent of the Terms of Service.
Governing Law. These Terms shall be governed by the laws of New Jersey, USA without reference to conflict of law principles. The United Nations Convention on the International Sale of Goods shall not apply and is hereby expressly excluded. By subscribing to or using any of the Services of marketro.com, Subscriber agrees that all disputes, if any, involving marketro.com shall be subject exclusively to the jurisdiction of the State and Federal Courts within the State of New Jersey.
Subscriber hereby agrees that it is subject to the in personam jurisdiction of said courts for all purposes in connection with these Terms and/or in connection with any claim or dispute involving marketro.com. Subscriber agrees that it has no right to and shall not file or otherwise bring a lawsuit against marketro.com outside the State of New Jersey; and, that Subscriber, if involved before a court in a lawsuit outside of the State of New Jersey, shall be deemed to support and to stipulate to a motion made by marketro.com to dismiss said lawsuit with respect to marketro.com.
WARRANTY DISCLAIMER - LIMITATIONS - INDEMNIFICATION
Warranty Disclaimer. YOU, THE SUBSCRIBER, ACKNOWLEDGE THAT THE SERVICES AND THE SOFTWARE ARE PROVIDED "AS IS, AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND. marketro.com HEREBY DISCLAIMS ANY WARRANTY OR CONDITION WITH RESPECT TO THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES AND SOFTWARE, OR WITH RESPECT TO THE QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF THE SERVICES AND SOFTWARE, OR THAT THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND SOFTWARE MAY CONTAIN ERRORS. NO ADVICE OR INFORMATION GIVEN BY marketro.com OR marketro.com'S REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, SUBSCRIBER SUPPORT REPRESENTATIVES, SHALL CREATE A WARRANTY. marketro.com DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OF COMPUTER PROGRAMS AND CONTENT. marketro.com DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. marketro.com DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICE OR marketro.com IN PARTICULAR.
Limitations on marketro.com's Liability. marketro.com SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT SHALL marketro.com BE LIABLE UNDER CONTRACT, NEGLIGENCE, TORT, CONVERSION, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT marketro.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. marketro.com SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. marketro.com'S ENTIRE LIABILITY AND SUBSCRIBER'S EXCLUSIVE REMEDY WITH RESPECT TO ANY USE OF THE SERVICES IS THE CANCELLATION OF SUBSCRIBER'S ACCOUNT AS SET FORTH HEREIN. IN NO EVENT SHALL marketro.com'S LIABILITY TO YOU, THE SUBSCRIBER, EXCEED THE GREATER OF ONE DOLLAR ($1.00) OR ANY AMOUNTS ACTUALLY PAID IN CASH BY YOU, THE SUBSCRIBER, TO marketro.com FOR THE PRIOR ONE MONTH PERIOD. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU, THE SUBSCRIBER, MORE THAN ONE YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION . SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, marketro.com'S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Indemnification of marketro.com. You, the Subscriber, agree to defend, indemnify and hold marketro.com, its affiliates and its sponsors, partners, other co-branders and the respective directors, officers and employees of each harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys' fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party of the Services, except to the extent the foregoing directly result from marketro.com's own gross negligence or willful misconduct. marketro.com reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, the Subscriber.
IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS YOU ARE REPRESENTING WITH RESPECT TO marketro.com SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A MEMBER, CANCEL YOUR marketro.com ACCOUNT. BEGINNING NOW, ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.
Marketro LLC DATA PROCESSING TERMS
Marketro 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”).
These Marketro LLC Data Processing Terms (including the appendices, “ Data 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 Date.
If you are accepting these Data Processing Terms on behalf of Customer, you warrant that: (a) you have full legal authority to bind Customer 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.
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) 2016/679) for contracts between controllers and processors.
By 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 Controller.
“Transfer” shall mean the access by, transfer or delivery to, or disclosure of Personal Data to a person, entity or system located in a country or jurisdiction other than the country or jurisdiction where the Personal Data originated from.
2. DATA PROCESSING
2.1 These 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.
2.2 These 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 Data.
2.3 Annex 1 (Processing Details) sets out:
(a) the nature, purposes, and subject matter of the Processing;
(b) the duration of the Processing;
(c) the categories of Data Subjects; and
(d) the types of Customer Personal Data.
2.4 Marketro 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 Protection Law.
2.5 Marketro 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 body.
2.6 Customer 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.
3.0 TECHNICAL AND ORGANIZATIONAL MEASURES
3.1 Marketro 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.
3.2 Customer 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 technical and organizational measures are subject to technical progress and further development and that Marketro LLC may update or modify the Marketro LLC technical and organizational measures from time to time provided that such updates and modifications do not result in a material degradation of the overall security of the Services provided to Customer under the Agreement.
3.3 Customer agrees that, without prejudice to Marketro LLC’s obligations under Section 3.1: (a) Customer is responsible for its use of the 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 protecting 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 storage).
4. DATA SUBJECT RIGHTS AND REQUESTS
4.1 Marketro 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.
4.2 To 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 information.
4.3 Customer 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.
4.4 If a law enforcement agency sends Marketro LLC a demand for Customer’s Personal Data (e.g., a subpoena or court order), Marketro LLC 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 extent Marketro LLC is legally permitted to do so.
4.5 Customer acknowledges that Marketro LLC 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 Marketro LLC is acting and, where applicable, of such Processor’s or Controller's local representative and data protection officer. and (b) make such information available to the Supervisory Authorities. 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 up-to-date.
5. CONFIDENTIALITY
5.1 Without 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 of confidentiality.
5.2 Marketro 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.
6. INFORMATION AND AUDIT
6.1 Marketro LLC shall also provide written responses (on a confidential basis) to all reasonable requests for information made by Customer related to its Processing of Customer’s Personal Data, including responses to information security and audit questionnaires that are necessary to confirm Marketro LLC’s compliance with these Data Processing Terms, provided that Customer shall not exercise this right more than once per year.
6.2 Customer agrees to exercise any right it may have to conduct an audit or inspection of Marketro LLC’s technical and organization measures, including under the EU Standard Contractual Clauses if they apply, by instructing Marketro LLC to carry out such audit.
7. RETURNING OR DELETING CUSTOMER’S PERSONAL DATA
7.1 Upon termination or expiration of the Agreement, or anytime upon Customer’s written request, Marketro LLC shall promptly return or delete all copies of Customer’s Personal Data. Marketro LLC shall not be required to return or delete Customer’s Personal Data to the extent (i) Marketro LLC is required by applicable law or order 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.
8. SUB-PROCESSORS
8.1 Customer agrees that Marketro LLC may engage Sub-processors to Process Customer’s Personal Data on Customer’s behalf. Customer hereby consents to Marketro LLC continuing to use any of Marketro LLC’s Affiliates and all Sub-processors already engaged by Marketro LLC as at the date of these Data Processing Terms (a full list is available on request by contacting the Marketro LLC’s helpdesk at https://support.marketro.com/ . Customer shall promptly take any reasonable action required or appropriate to facilitate or support any transfer of Customer’s Personal Data to approved Sub-processors (e.g. updating registrations with Supervisory Authorities).
8.2 Marketro LLC shall notify Customer of any new Sub-processor Marketro LLC wishes to appoint to carry out Processing activities on behalf of Customer. If, within two (2) weeks of receipt of any such notice, Customer notifies Marketro LLC in writing of any objections to the proposed appointment for legitimate reasons, Marketro LLC shall work with Customer in good faith to take reasonable measures to address the objections raised by Customer, and where such measures cannot be agreed within three (3) weeks from Marketro LLC’s receipt of Customer’s notice, Customer may by written notice to Marketro LLC with immediate effect terminate the Agreement to the extent that it 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.
8.3 Where 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 DPA.
8.4 Notwithstanding any approval by Customer within the meaning of Section 8.1, Marketro LLC shall remain fully liable vis-à-vis Customer for the performance of any such Sub-processor that fails to fulfil its data protection obligations under these Data Processing Terms and/or any applicable Data Protection Laws.
9. TRANSFERS of PERSONAL INFORMATION
10. INFORMATION OBLIGATIONS AND PERSONAL DATA BREACH