Makana Solutions, Inc. ("Makana") provides a sales compensation planning on-line software solution (the "Service") that enables companies to design and model more effective incentive programs. As a subscriber to the Service, we will provide you with use of the Service, including a browser interface, access to and use of Makana's proprietary software (the ("Software"), data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement and any terms on the Makana website incorporated by reference herein, including but not limited to Makana's privacy and security policies. Please see our website at www.makanasolutions.com for details of the features provided.

1. ORDERING. BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF MAKANA'S ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR USERS" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.

2. SUBSCRIPTION RIGHTS

2.1. Grant. In consideration of your payment of the fees payable hereunder and your covenants contained herein, and subject to your compliance with the terms hereof, Makana grants you a nonexclusive, nontransferable, worldwide, royalty-free right, for the Term of this Agreement, to use the Service for your own internal business purposes and not for resale or distribution to third parties.

2.2. Restrictions. You and your Users shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any features, functions or graphics of the Service. User subscriptions cannot be shared or used by more than one individual User but may be reassigned from time to time to new users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.

2.3. Prohibited Acts. You and your Users shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

2.4. Third Party Interactions. During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Makana and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Makana does not endorse any sites on the Internet
that are linked through the Service. Makana provides these links to you only as a matter of convenience, and in no event shall Makana or its licensors be responsible for any content, products, or other materials on or available from such sites. Makana provides the Service to you pursuant to the terms and conditions of this Agreement. You acknowledge, however, that certain third-party providers of content, software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such content, software, hardware or services.

3. MAKANA'S HOSTING SERVICE AND MAINTENANCE

3.1. Hosting Service. We shall host the Service on our server(s) and shall procure and maintain such server(s) as may be necessary for us to perform our obligations under this Agreement. We shall provide or arrange for at our expense all Internet bandwidth and all other computer and telecommunications equipment and resources necessary for our site to operate, including without limitation the Software, hardware, server and ancillary software, communications lines, firewalls and support services. During the Term, you will have access to our support center. We will use commercially reasonable efforts to keep our website available to you on an as-nearly-as-possible 24/7 basis.

3.2. Maintenance. During the Term, we shall maintain our server(s), the Software, and associated hardware and software for the purpose of maintaining accessibility and use to the extent reasonably possible. We may, from time to time, designate (and change such designations) reasonable time periods during which we limit or suspend the availability of our server(s) and website to perform necessary maintenance or upgrades thereto and to the Software and associated hardware and ancillary software. We reserve the right to perform corrective or critical maintenance outside of such scheduled maintenance periods. The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Makana is not responsible for any such delays, delivery failures, or other damage resulting from such problems.

4. PRIVACY AND SECURITY; CUSTOMER DATA

4.1. Privacy and Security. The Makana Privacy Policy and the Makana Security Policy may be viewed at http://www.makanasolutions.com. We reserve the right to modify our privacy and security policies in our reasonable discretion from time to time.

4.2. Customer Data. Makana does not own any Customer Data that you submit to the Service in the course of using the Service.

4.2.1. Makana will not review, share, distribute, print, or reference any Customer Data except as may be required by law. Individual records may at times be viewed or accessed only for the purpose of resolving a problem, support issue, or suspected violation of this Agreement, or as may be required by law. Users are responsible for maintaining the confidentiality and security of their user registration and password.

4.2.2. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and we shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), we will make available to you a file of the Customer Data within thirty (30) days of termination if you so request at the time of termination. We reserve the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and we shall have no obligation to maintain or forward any Customer Data.

5. FEES AND BILLING - Not Applicable for Free Trial

6. LIMITED WARRANTIES

6.1. By Us. We represent, warrant and covenant as follows:
(a) The Service will be provided in a competent and professional manner and shall be in accordance with the practices and quality standards used in well-managed operations performing similar services.
(b) We have the full power to enter into this Agreement and perform our obligations hereunder, and our performance of such obligations will not violate any terms or conditions of other agreements to which we are a party.
(c) We are, or at the applicable time will be, either the owner of, or authorized to use, the Software and any ancillary software used in providing the Service.
(d) To the best of our knowledge, and without having conducted an audit, the Service, the Software and any other Makana technology used in providing the Service, do not infringe any United States patent right, or any copyright, or misappropriate any trade secret, of any other party.

6.2. By You. You represent, warrant and covenant as follows:
(a) You have the full power to enter into this Agreement and perform your obligations hereunder, and your performance of such obligations will not violate any terms or conditions of other agreements to which you are a party.
(b) You are, or at the applicable time will be, either the owner of, or authorized to use, the Customer Data as used hereunder and, to your best knowledge, such use shall not infringe any copyright, trade secret or other right of any other party.
(c) You shall not use, nor permit the use by any person of, any Makana server hereunder to transmit an obscene, threatening, defamatory or hostile communication (i) with intent to annoy or threaten another person, or (ii) otherwise in violation of any applicable law.
(d) You will adhere to the Makana Privacy Policy and the Makana Security Policy governing the Makana site, as these may be reasonably modified by Makana from time to time.

7. EXCLUSIVE REMEDY FOR BREACH OF INFRINGEMENT WARRANTY

If a claim is made or an action brought that the Service, the Software, or any other Makana technology used in providing the Service infringes a United States patent, or any copyright or trade secret, we will indemnify you and hold you harmless against such claim and resulting costs (including reasonable attorneys fees) and damages finally awarded or agreed to in settlement, provided that (i) you promptly notify us in writing of the claim, and (ii) we have sole control of the defense and all related settlement negotiations. You may be represented by separate counsel at your own expense. Our obligations under this Section are conditioned on your agreement that if the Service, or the use or operation thereof, becomes, or in our opinion is likely to become, the subject of such a claim, we may at our expense, either procure the right for you to continue using the Service or, at our option, replace or modify the same so that it becomes non-infringing (provided such replacement or modification does not materially adversely affect your intended use of the Service as contemplated hereunder). If neither of the foregoing alternatives is available on terms which are reasonable in our reasonable judgment, you will discontinue your use of the Service on written request by us and we will credit or (at your option) refund to you subscription fees paid by you in the preceding twelve (12) months. We shall have no liability for any claim based upon the operation or use of the Service with equipment, software or other information or materials not supplied or expressly approved in writing by us if such claim would have been avoided by use of other information or materials. THE FOREGOING STATES YOUR ENTIRE REMEDY AND OUR SOLE OBLIGATION WITH RESPECT TO INFRINGEMENT CLAIMS.

8. DISCLAIMER OF OTHER WARRANTIES

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE SERVICE FURNISHED OR MADE AVAILABLE TO YOU HEREUNDER OR IN CONNECTION HEREWITH. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING WITHOUT LIMITATION STATEMENTS REGARDING CAPACITY, SUITABILITY FOR
USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY MAKANA FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF MAKANA WHATSOEVER.

9. LIMITATION OF LIABILITY

Regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), and except as otherwise expressly provided herein, IN NO EVENT (i) SHALL OUR MAXIMUM LIABILITY FOR ALL DAMAGES RELATED TO THE SERVICE EXCEED THE TOTAL AMOUNT PAID TO US BY YOU WITHIN THE PRECEDING TWELVE (12) MONTHS, OR (ii) SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS PROFITS AND LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. No limitation as to damages for personal injury is hereby intended. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply.

10. CONFIDENTIAL INFORMATION

10.1. Mutual Obligations. Each party shall (i) not use for its own benefit or knowingly disclose to, or use for the benefit of, any other person the other party's Confidential Information without the other party's prior written consent; (ii) use at least the same degree of care and caution to protect the other party's Confidential Information from disclosure that it employs with respect to its own confidential information, and in any event reasonable care and caution; (iii) disclose Confidential Information only to those of its employees or contractors who require access in order for the party to be able to perform its obligations under this Agreement; and (iv) take appropriate action by instruction, agreement or otherwise with persons allowed such access to satisfy the foregoing obligations.

10.2. Information Not Covered; Legal Requirements. This Section shall not apply to any information which (i) is or becomes publicly available through no fault of the receiving party; (ii) is already in the receiving party's possession without restriction on disclosure when disclosed by the disclosing party; (iii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (iv) is rightfully obtained by the receiving party from a third party without violating the rights of the disclosing party. To the extent required by any applicable law, regulation, or order of any court or governmental body, disclosure of Confidential Information shall not be deemed a breach of this Agreement provided that the party required to disclose (a) promptly notifies the other party of such requirement, (b) prior to any such disclosure, asserts the confidential nature of the Confidential Information, and (c) cooperates fully with the other party in protecting against such disclosure, including without limitation obtaining a court or administrative order narrowing the scope of disclosure and disclosing Confidential Information only to the extent necessary to comply with such requirement.

11. INTELLECTUAL PROPERTY RIGHTS AND DATA OWNERSHIP

11.1. Existing Intellectual Property Rights. You expressly acknowledge that we own all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights of every nature whatsoever) in and to the Service, the Software, and the Content, and this Agreement conveys to you no right or interest in any of them other than the limited rights granted herein to use them in accordance herewith. We expressly acknowledge that you own all right, title and interest in and to the Customer Data, and this Agreement in no way conveys to us any right or interest in the Customer Data other than the limited rights granted herein to use it in accordance herewith.

11.2. Your Obligations. You shall limit access to the Service to your employees and consultants who require access in connection with your use of the Service and who have agreed in writing to observe your obligations hereunder.

11.3. Security Measures. We may from time to time implement additional or different password protection, firewalls or other security measures in connection with the Makana web site, and you shall cooperate with any such measures.

11.4. Injunctive Relief. In the event that a material breach by either party of its obligations under this Section is proven, (i) the other party shall be conclusively deemed to be entitled to an injunction or similar equitable relief ordering the cessation of such breach immediately upon request to a court of competent jurisdiction without having to post any bond or show anything other than the fact of such breach, and (ii) the breaching party will not argue in any such proceeding either that such breach will not cause irreparable harm or that the other party can be adequately compensated for such harm by money damages or other remedies other than injunctive relief, and any such arguments shall not be considered by the court. Nothing contained in this paragraph shall be construed as agreement by either party that it is entitled to damages or to any remedy other than that expressly provided for by the foregoing.

12. TERM AND TERMINATION

12.1 Term and Termination. The Term of this Agreement shall commence on the Effective Date and is terminable at will by either party at any time for any reason or for no reason.

12.2 Consequences of Termination. Upon termination of any subscription, we shall, subject to Section 4.2, promptly turn over to you or destroy all copies of Customer Data and any other materials provided by you to us under this Agreement, and you shall cease use of the Service. Termination of this Agreement shall not affect any rights or obligations accrued prior thereto. Sections 7-14 shall survive termination of this Agreement.

13. DISPUTE RESOLUTION

13.1. Disputes. In the event of any controversy, dispute or claim between you and us arising out of or related to this Agreement (including, but not limited to, claims relating to breach, termination, fraud or misrepresentation, or the invalidity, illegality or voidness of this Agreement) whether based on contract, tort, statute or other legal theory (collectively referred to hereinafter as "disputes"), the parties shall follow the dispute resolution procedures set forth below.

13.2. Internal Discussions. The parties shall first attempt to resolve a dispute, at the written request of either party, through discussions between one of our authorized senior management representatives and one of your authorized senior management representatives. Except as otherwise expressly provided in this Section, the good faith pursuit of the foregoing discussions is a condition precedent to the commencement of any arbitration or other legal proceedings hereunder.

13.3. Arbitration. If not thus resolved by the foregoing process within thirty (30) days after the request, the dispute shall be referred to arbitration pursuant to the commercial arbitration rules of the American Arbitration Association (the "AAA") then in effect by a sole arbitrator selected by the parties within thirty (30) days after written request for arbitration by either party or, in the absence of such selection, to arbitrator(s) selected in accordance with such rules. Any award made hereunder shall be made within four (4) months of the appointment of the arbitrator and may be entered in any court of competent jurisdiction. The arbitrator shall determine issues of arbitrability but may not limit, expand or otherwise modify the terms of this agreement. Issues of arbitrability shall be determined in accordance with the federal substantive and procedural laws relating to arbitration.

13.4. Intellectual Property. Only subsection 13.2 of this Section shall apply to disputes arising out of, resulting from or relating to the intellectual property rights of a party (including, but not limited to, patents and patent rights, copyrights, trademarks, service marks, trade secrets, and unauthorized disclosure of Confidential Information). Notwithstanding anything to the contrary in this Section, in the event of alleged violation of a party's Intellectual Property Rights, that party may seek temporary injunctive relief from any court of competent jurisdiction. The party requesting such relief shall simultaneously file a demand for arbitration of any other issues involved in the dispute, and shall request the AAA to proceed under its rules for expedited hearing. In no event shall any such temporary injunctive relief continue for more than 30 days without review by the issuing court.

13.5. Expenses. Each party shall bear its own attorneys' fees and other costs and expenses, but those related to the compensation and expenses of the arbitrator shall be shared and those related to the compensation and expenses of the arbitrator and of the AAA shall be borne as provided by the AAA. If court proceedings to stay litigation or compel arbitration are instituted, the party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses and attorney's fees which are reasonably incurred by the other party.

13.6. Miscellaneous. The requirement for arbitration shall not be deemed a waiver of any right of termination under this Agreement, and the arbitrator is not empowered to act or make any award other than based solely on the rights and obligations of the parties prior to any such termination. The arbitrator shall not have authority to award punitive or other damages in excess of compensatory damages and each party irrevocably waives any claim thereto. The exclusive arbitration dispute resolution procedure provided above shall not be applicable to requests for equitable relief, and request by a party to a court for interim measures or equitable relief shall not be deemed a waiver of the obligation to arbitrate. The place of arbitration shall be the Boston, Massachusetts metropolitan area. Except to the extent required by law, the parties, their representatives, other participants and the arbitrator shall hold the existence, content and result of arbitration in confidence.

14. GENERAL

14.1. Assignment. This Agreement shall be binding upon our and your successors or permitted assigns. Either party (the "Seller") may assign its rights hereunder to the purchaser or surviving entity (the "Purchaser") in any stock, assets, merger or other transaction in which all or substantially all of the business of such party is transferred, regardless of the form such transaction may take; provided that the Purchaser assumes all of the obligations of the Seller hereunder and the Seller hereunder remains jointly and severally liable for such obligations. Except as expressly authorized in this Section, neither this Agreement nor any license granted hereunder may be assigned, licensed, sublicensed, sold, mortgaged, pledged or otherwise disposed of by either party in whole or part without the prior written consent of the other party, and any such assignment, license, sublicense, sale, mortgage, pledge or other disposal shall be void and of no force or effect.

14.2. Relationship of the Parties. Makana and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party's name or on its behalf.

14.3. Notice

14.3.1. By Us. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing, shall reference this Agreement and shall be deemed to have been delivered and given by us (i) when delivered personally; (ii) three (3) business days after having been sent by registered or certified U.S. mail, return receipt requested, postage and charges prepaid, whether or not actually received; (iii) one (1) business day after deposit with a commercial overnight courier, with written verification of receipt; or (iv) immediately upon successful transmission by fax, email or other commonly-used forms of electronic communication. For purposes of this Section, material posted to our web site (or a web site designated by us to you in writing) shall be deemed to be a written communication to you if you have been informed in writing of the presence of such material or the schedule upon which such material will be posted or updated. We may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address set forth at the beginning of this Agreement, or such other address as you may hereafter notify us in writing.

14.3.2. By You Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing, shall reference this Agreement and shall be deemed to have been delivered and given by you upon actual receipt of a letter delivered by a nationally
recognized overnight delivery service or first class postage prepaid mail to Makana at the address set forth at the beginning of this Agreement, or such other address as we may hereafter notify you in writing, to the attention of President, with a copy to Peter N. Barnes-Brown at: Morse, Barnes-Brown and Pendleton, P.C., Reservoir Place, 1601 Trapelo Road, Waltham, MA 02451.

14.4. Force Majeure. In no event shall either party be liable for any delay or failure to perform under this Agreement which is due to causes beyond the reasonable control of such party, including, without limitation, fire, explosion, flood, strike, war, civil disturbances, civil or military authority, unavailability of products or materials which are not reasonably available from alternate sources, acts of God or public enemy. Performance times under this Agreement shall be considered extended for a period of time equivalent to the time lost because of any delay which is excusable hereunder.

14.5. Entire Agreement; Modifications. This document contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. This Agreement may be modified only by a written instrument signed by an authorized representative of each party.

14.6. Severability. In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision shall be without effect to the extent of the voidness or unenforceability without affecting such provision in any other respect and without affecting any other provision.

14.7. Limitation of Actions. No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has been or reasonably should have been discovered, or, in the case of an action for nonpayment, more than two years after the date the last payment was due.

14.8. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to choice of law principles; and each party irrevocably (i) agrees that any action or proceeding arising from or relating to this Agreement may be brought only in the courts of Massachusetts or the U.S. District Court located in Boston, Massachusetts, (ii) consents, for itself and in respect of its property, to the jurisdiction of each such court in any such action or proceeding, and (iii) waives any objection to proceeding in such venue, including that the forum is inconvenient.

15 DEFINITIONS

"Confidential Information" means (i) any confidential or proprietary information of either party (including without limitation any information relating to technology, pricing, the Services, or the Makana site), or (ii) any information regarding the provisions of this Agreement and the dealings of the parties hereunder, which is disclosed (a) in writing, if clearly marked to indicate that it is proprietary or confidential, or (b) verbally, if clearly stated at the time of disclosure to be proprietary or confidential and reduced to a writing so marked within fifteen (15) business days.

"Content" means all audio and visual information, documents, software, products and services contained or made available by us to you in the course of using the Service.

"Customer Data" means your data and other content and works of authorship created by you that are stored on or transmitted via our servers pursuant to our provision of the Service or your proper use of the Service under this Agreement.

"Order Form" means the Order Form submitted online or in written form, specifying, among other things, the number of subscriptions and other services contracted for, the applicable fees, the billing period, and other charges as agreed to in writing by the parties.

"User" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and to whom you have supplied user identifications and passwords (or by us at your request).
Questions or Additional Information Please contact a Makana sales representative at 1-877-881-0001. Makana is a service mark of Makana Solutions, Inc.