CLOUD9 ANALYITCS SUBSCRIPTION AGREEMENT

This Subscription Agreement (“Agreement”) is a legal agreement between you (“You” or “Customer”) and Cloud9 Analytics Corporation, a Delaware corporation, having its principal place of business at 2855 Campus Drive, San Mateo, CA 94403-2511 (“Cloud9”) regarding your use of the Service and Report Software (each as defined below). YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE USING OR ACCESSING THE SERVICE OR REPORT SOFTWARE. BY CLICKING ON THE “ACCEPT” BUTTON OF THIS AGREEMENT, OR USING OR ACCESSING THE SERVICE OR REPORT SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU SHOULD EXIT THIS PAGE AND NOT USE OR ACCESS THE SERVICE OR REPORT SOFTWARE. BY FAILING TO AGREE TO THIS AGREEMENT YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO USE THE SERVICE OR REPORT SOFTWARE.

1. Definitions

“Cloud9 Technology” has the meaning set forth in Section 5.1.

“Customer Data” means all electronic data or information provided by Customer to Cloud9 (through a third party or otherwise).

“Order Form” means the ordering documents representing the initial purchase of the Service as well as any subsequent purchases or modifications agreed to between the parties in writing from time to time, that are executed hereunder from time to time and that specify, among other details of the relationship between Cloud9 and Customer, the number of Users that can use the Service, the subscription type and the applicable fees.

“Reports” means the analytical reports produced by the Report Software.

“Report Software” means the software that Cloud9 makes available to Customer as part of the Service known as Cloud9 Analytics.

“Service” means Cloud9’s on-demand analytic solution that supports and accelerates customer-facing business functions through the creation of Reports and other application functions based on Cloud9’s analysis of Customer Data.

“Users” mean Customer’s employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Cloud9 at Customer’s request).

2. Customer Data.

2.1. Access. Upon acceptance of this agreement, Customer shall supply to Cloud9 any and all information necessary for Cloud9 to access Customer Data, including without limitation any passwords and verification information necessary to access the applicable accounts. In the event that Customer alters the information necessary to maintain such access at any time during the term of the Agreement, Customer shall supply such updated information to Cloud9.

2.2. License Grant to Customer Data. Customer hereby grants to Cloud9 a worldwide, non-exclusive, assignable, fully paid-up, and royalty-free license to access, use, display, reproduce and analyze the Customer Data in the applicable formats and through any applicable channels for the purposes of providing the Service hereunder including creating the Reports.

3. Service.

3.1. Provision of Service. Cloud9 shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement and any and all Order Forms executed hereunder from time to time.

3.2. License.

3.2.1. Grants. Cloud9 grants Customer, through no more than the aggregate number of authorized Users, a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service in accordance with the terms of this Agreement.

3.2.2. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or Cloud9 Technology; (ii) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than for Customer’s own internal business purposes; or (iii) disassemble, reverse engineer, or decompile the Service or Cloud9 Technology, for any reason (except to the extent that the foregoing restrictions are prohibited by law), including without limitation in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.

3.2.3. Evaluation License. If Customer has obtained the Service and Report Software pursuant to an evaluation license, then, in addition to all other terms and conditions herein, the following restrictions apply: (a) the license to the Service and Report Software terminates after thirty (30) days (unless otherwise agreed to in writing by Cloud9), and Customer must secure a paid license through execution of an Order Form to continue the Service uninterrupted; and (b) Customer may use the Service and Report Software for the sole purpose of internal testing and evaluation for no more than ten Users to determine whether Customer wishes to license the Service and Report Software on a commercial basis. Under an evaluation license, the Service and Report Software is delivered “AS IS” without support, warranty, or other obligation to you. CLOUD9 HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. CUSTOMER BEARS ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND REPORT SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE BARGAIN FOR AN EVALUATION LICENSE.

3.2.4. Early Access Program License. If Customer has obtained the Service and Report Software pursuant to an evaluation license, then, in addition to all other terms and conditions herein, the following restrictions apply: (a) the license to the Service and Report Software terminates on September 21st, 2007 (unless otherwise agreed to in writing by Cloud9), and Customer must secure a paid license through execution of an Order Form to continue the Service uninterrupted; and (b) Customer may use the Service and Report Software for the sole purpose of internal testing and to determine whether Customer wishes to license the Service and Report Software on a commercial basis. Under an Early Access Program License, the Service and Report Software is delivered “AS IS” without support, warranty, or other obligation to you. CLOUD9 HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. CUSTOMER BEARS ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND REPORT SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE BARGAIN FOR AN EVALUATION LICENSE.

3.3. Additional Users. User subscriptions are for named Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who have terminated an employment or some other prior relationship with Customer, changed job status or function, or otherwise no longer require ongoing use of the Service. Unless otherwise specified in the relevant Order Form (i) the term of the additional User subscriptions shall be coterminous with the expiration of the then current subscription term; and (ii) pricing for the additional User subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the then current subscription term.

4. Use of the Service.

4.1. Cloud9 Responsibilities. Cloud9 shall: (i) in addition to its confidentiality obligations under Section 8, except as explicitly allowed herein, not use, edit or disclose to any party other than Customer the Customer Data and; (ii) maintain the security and integrity of the Service and the Customer Data.

4.2. Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use best efforts to prevent unauthorized access to, or use of, the Service, and notify Cloud9 promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service and, if using the Service outside of the United States, not use the Service in a manner that would violate any federal or state laws of the United States if conducted therein.

4.3. Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.

4.4. Modifications. Customer and Cloud9 may mutually agree to modify the provision of the Service through one or more Order Forms. If the terms of this Agreement contradict the terms of any Order Form or Order Form acceptance, the terms of this Agreement will take precedence. No boilerplate terms in either party's order-tracking documents will apply.

4.5. Privacy Statement. Cloud9’s privacy statement is set forth atwww.cloud9analyitcs.com/privacy, and incorporated herein by this reference.

5. Fees & Payment.

5.1. User Fees. Customer shall pay all fees specified in all executed Order Forms hereunder. Except as otherwise provided, all fees are quoted in United States dollars. Except as otherwise provided, fees are non-refundable.

5.2. Excess Data Storage Fees. Cloud9 will archive up to the most recent twelve (12) months of customer data.

5.3. Suspension of Service. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Cloud9 reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.

5.4. Taxes. Unless otherwise stated, Cloud9’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Cloud9’s income. If Cloud9 has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Cloud9 with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Proprietary Rights.

6.1. Reservation of Rights. Customer acknowledges that in providing the Service, Cloud9 utilizes (i) the Cloud9 name, the Cloud9 logo, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “Cloud9 Technology”) and that the Cloud9 Technology is covered by intellectual property rights owned or licensed by Cloud9 (collectively, “ Cloud9 IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in or to the Cloud9 Technology or Cloud9 intellectual property rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.

6.2. Customer Data. As between Cloud9 and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement. Cloud9 may access Customer’s User accounts, including Customer Data, solely to respond to service or technical problems or at Customer’s request. Cloud9 may use Customer data in aggregate with to improve the service, though may not disclose specifics about an individual Customer data.

6.3. Suggestions. Cloud9 shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Service.

7. Confidentiality.

7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, the Cloud9 Technology (including, without limitation the Report Software), Reports business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) constitutes aggregate anonymized information gathered from Customer Data (iv) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (v) is received from a third party without breach of any obligation owed to the Disclosing Party.

7.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

7.3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.

7.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

7.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 8, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

8. Warranties & Disclaimers.

8.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Cloud9 represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the Cloud9 Technology to grant the rights and licenses granted herein; and (iii) the Service and Cloud9 Technology do not infringe any intellectual property rights of any third party.

8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CLOUD9 MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CLOUD9 HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. Indemnification.

9.1. Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Cloud9 harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Cloud9 by a third party alleging that the Customer Data (including the use or collection thereof) infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Cloud9 (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Cloud9 of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

10. Limitation of Liability.

10.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $50,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER.

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

10.3. Limitation of Action. Except for actions for non-payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.

11. Term & Termination.

11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.

11.2. Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order Form and continue for one (1) year thereafter. User subscriptions shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal unless Customer gives Cloud9 notice of termination at least thirty (30) days prior to the end of the relevant subscription term.

11.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Cloud9 shall refund Customer any prepaid fees for the remainder of the subscription term after the date of termination.

11.4. Termination for Convenience. Either party may terminate this Agreement for any reason or for no reason upon thirty-days (30) written notice.

11.5. Effect of Termination or Expiration

11.5.1. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Cloud9 prior to the effective date of termination.

11.5.2. Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration.

12. General Provisions.

12.1. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

12.2. No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.

12.3. Force Majeure. Except for payment obligations hereunder, neither party will be liable to the other if its performance is delayed by circumstances beyond its reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems not involving such party’s employees, computer or telecommunications failures or delays involving hardware or software not within such party’s possession or reasonable control, and network intrusions or denial of service attacks, but only to the extent unavailability results notwithstanding the exercise by such party of reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes.

12.4. Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses notified by the parties to each other by a means evidenced by a delivery receipt, by facsimile or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email. Notices to Cloud9 shall be addressed to the attention of its Legal Department.

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

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

12.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.8. Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflicts of laws provisions.

12.9. Venue. The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.10. Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.

12.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto, along with all Order Forms executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict between the provisions in this Master Subscription Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of such exhibit, addendum or Order Form shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.