The Magellan Network, LLC (“TMN”) offers its online restaurant reservation service (“Service”) in accordance with this Subscription Agreement Terms & Conditions (“Terms”), which together with the on-line order form submitted by you (“Order Form”) and the Adoption Agreement (defined below), create the legally binding agreement governing your use of the Service (the “Agreement”). Please read these Terms before indicating that you accept these terms by clicking “I Accept” below. “You”, “you” or “Restaurant Subscriber” refers to the legal entity listed on the associated Order Form.

1. Basics; Service

1.1. BY CHECKING THE BOX AND CLICKING THE “I ACCEPT” BUTTON BELOW, YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT CLICK “I ACCEPT” AND YOU SHOULD LEAVE THIS PAGE. The individual clicking “I Accept” represents and warrants that he or she has the power and authority to bind you, and you represent that you have authorized the person executing this Agreement to do so on your behalf.

1.2. Capitalized terms in these Terms not defined in the body of the Terms are defined in Section 24 below or in the Order Form. In the event a term is defined in both the Order Form and these Subscription Terms, the meaning given to the term in the Subscription Terms shall prevail.

1.3. TMN will provide you with certain data analytics services (“Analytics Services”) pursuant to the adoption agreement set forth below after the conclusion of these Subscription Terms as Exhibit A (“Adoption Agreement”), the terms of which are incorporated into this Agreement by this reference. If you wish to receive Analytics Services, you must include software on your website to enable the Analytics Services, which will enable TMN and its third party service provider to collect certain information. Such collection will be performed in accordance with the Adoption Agreement.

2. Privacy; Disclosure

2.1. Privacy Policy TMN's privacy policy may be viewed below (“Privacy Policy”), which is incorporated into this Agreement by this reference. TMN reserves the right to modify its Privacy Policy as set forth in the Privacy Policy.

2.2. Communication with Consumers

(a) The Service enables restaurant patrons or potential patrons (“Consumers”) to make restaurant reservations online either directly on TMN’s website, or on the website of one or more TMN partner websites (“Portals”). If applicable, you may be given the opportunity to choose functionality in the Service that will allow visitors to Portals to make a reservation at your restaurant from the Portal.

(b) During the reservation process, Consumers may be asked whether or not they wish to opt-in to receive marketing and other non-critical Service-related communications from TMN or a particular restaurant from time to time. If you wish to contact Consumers who opt-in to receiving promotional emails, you must first export the applicable Consumer list including only those Consumers who agree to be contacted by email.

(c) You must export an updated Consumer list prior to EACH communication to Consumers, and any such communications must comply with the applicable terms of this Agreement and all applicable laws.

3. License Grant & Restrictions

3.1. License

(a) TMN hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement for use solely at the location specified on an Order Form (“Site”). If you own or represent more than one restaurant located at physical locations other than the Site, you will need to register for a separate site license for each restaurant. All rights not expressly granted to you are reserved by TMN and its licensors.

3.2. License Limits. Except as expressly provided in this Agreement, you shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content (as defined below) in any way; (b) modify or make derivative works based upon the Service or the Content; (c) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device (provided, however, that you may embed the Service link provided to you by TMN on your designated website); (d) reverse engineer the Service, or access the Service in violation of this Agreement; (e) disclose or otherwise make available to any third party any Intellectual Property Rights in the TMN Technology, the Content and/or the Service (including without limitation business processes, screens and functions); or (f) build a product or service that is competitive with the Service, build a product using similar ideas, features, functions or graphics of the Service, or copy any ideas, features, functions or graphics of the Service.

3.3. Restrictions.

You may use the Service only for your internal business purposes and shall not use the Service to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, including without limitation CAN-SPAM;(b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates any third party’s privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (d) interfere with or disrupt the integrity or performance of the Service or the data contained therein.

4. Your Responsibilities

4.1. You are responsible for all activity occurring under your subscription and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, import/export restrictions, international communications, and the transmission of technical or personal data, and email. You are solely responsible for maintaining the confidentiality of your credentials needed to log onto the administrative site (“Admin Site”) for the Service (including without limitation user name and password), and you will be solely responsible for all acts, omissions, and transactions that occur as a result of access to your Admin Site.

4.2. You shall: (a) notify TMN immediately of, and use reasonable efforts to stop immediately, any unauthorized use of any user name or password, unauthorized access to your Admin Site, or any other known or suspected breach of security with regard to the Service or your Admin Site; (b) report to TMN immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you; (c) not impersonate another user of the Service or provide false identity information to gain access to or use the Service; (d) include on or incorporate in your website the software code provided by TMN as required or desirable to give you access to the Service.

5. Subscriber Information and Consumer Data

5.1. Restaurant Data

(a) The Restaurant Data, defined hereinafter, that you provide will be made available in and become part of the Service, and will therefore become publicly available to users of the Service.

(b) You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Restaurant Data. TMN shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Restaurant Data. This means that as relevant details about your restaurant change (e.g. hours, menu, number of tables, etc.), it is your responsibility to update the Restaurant Data in the Service by accessing your administrative.

(c) Maintaining and defending any intellectual property rights you have in the Restaurant Data shall be your responsibility.

5.2. Consumer Data

(a) As between TMN and you, TMN and/or its licensors own all data, information and material, including consumer contact information, collected by the Service ("Consumer Data"). TMN agrees to provide you access to portions of the Consumer Data relating to Consumers who have made a reservation with your restaurant through the Service solely for your business purposes. TMN grants you a limited, revocable, non-sublicenseable, non-transferable, non-exclusive license to use Consumer Data solely for its internal business purposes, provided however, that you may share Consumer Data with other restaurants owned by you or owned by the person or entity that owns you. Access to the Consumer Data will be provided to you through TMN software or a TMN-maintained website; TMN will provide for export of the Consumer Data in a standard electronic format.

(b) TMN shall have no responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of any Consumer Data, and TMN shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Consumer Data. TMN reserves the right to withhold, remove and/or discard Restaurant Data and Consumer Data without notice for any breach, including, without limitation, your non-payment. Upon termination, your right to access or use Consumer Data immediately ceases, and TMN shall have no obligation to maintain or forward any Consumer Data.

6. Intellectual Property Ownership

6.1. TMN (and its licensors, where applicable) shall own all right, title, and interest, including all related Intellectual Property Rights, in and to the TMN Technology, the Content, Consumer Data, and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service.

6.2. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the TMN Technology or the Intellectual Property Rights owned by TMN or its licensors. The TMN name, the TMN logo, and the product names associated with the Service are trademarks or service marks of TMN or its licensors, and no right or license is granted to use them except as necessary in the ordinary course of using the Service.

7. Fees for the Service

7.1. The monthly subscription fee for access to and use of the Service you purchase is set forth on the Order Form you completed (“Subscription Fee”). All payments will be made in U.S. dollars. All fees are exclusive of all taxes, levies, or duties, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on TMN’s income.

7.2. TMN reserves the right to modify its fees and charges, including without limitation the Subscription Fee, and to introduce new charges at any time by providing notice to you (“Fee-Change Notice”) at least 30 days prior to the date the new fees will be implemented, which date will be included in the Fee-Change Notice. The Fee-Change Notice may be provided by email to the billing email address provided below. Any modifications to fees and charges for the Service set forth in the Fee-Change Notice shall take effect upon the date stated in the Fee-Change Notice (“Fee-Change Effective Date”) unless you object to such change in writing, in which case your sole and exclusive remedy will be to terminate the Agreement by providing written notice to TMN prior to the Fee-Change Effective Date.

8. Billing; Payment

8.1. You agree that TMN may debit the bank account or charge the credit card you identify in the Order Form for all charges required hereunder. TMN will debit or charge you on the frequency and/or the date described in the Order Form you completed. Fees for other services will be charged on an as-separately-quoted basis. You will provide TMN with complete and accurate billing and contact information necessary to charge or debit your account. You will promptly update this information if changes are made to it. If the contact information you have provided is false or fraudulent, TMN reserves the right to immediately terminate your access to the Service in addition to any other legal remedies.

8.2. If you believe a bill or charge is incorrect, you must contact us in writing within 30 days of the invoice date or charge date or you waive any right to receive an adjustment or credit. You agree that TMN may charge your account a $35.00 (thirty-five dollar) insufficient funds charge in the event that a debit or charge to your applicable account is denied.

9. Non-Payment and Suspension

TMN reserves the right to suspend the Service or terminate this Agreement if your account becomes delinquent (falls into arrears) by more than 10 days. In the event TMN chooses to terminate the Agreement under this Section 9.1, TMN will provide you written notice, and the termination will become effective upon delivery of the notice. TMN may charge a late fee of the lesser of 1.0% per month or the maximum allowed by applicable law on any overdue amount, plus all related bank charges and expenses of collection. TMN reserves the right to impose a reconnection fee in the event the Service is suspended and thereafter request access to the Service. You agree and acknowledge that TMN has no obligation to retain Restaurant Data or Consumer Data and that the Restaurant Data and/or Consumer Data may be irretrievably deleted if your account is 30 days or more delinquent.

10. Term

10.1. This Agreement is effective on the earlier to occur of: (i) the date this Agreement is accepted by you by clicking the "I Accept" option presented on the screen after this Agreement is displayed, or (ii) the date you begin accessing or using the Service (“Effective Date”). The initial term will commence on the Effective Date, and will continue for the length of time indicated in the Order Form (“Initial Term”). The Initial Term will automatically extend for subsequent one month periods unless either you or TMN provide notice of termination to the other party at least 15 days prior to the expiration of the Initial Term or then-current extension period, where such termination will be effective upon the expiration of the Initial Term or then-current extension period. To provide notice of termination to TMN, call TMN Customer Service at 800.998.3577, ext. 2, to speak to a Customer Service Representative.

10.2. In the case of free trials, any notification provided to you by TMN through the Service or otherwise indicating the remaining number of days in the free trial shall constitute notice of termination.

11. Termination for Cause; Effects of Termination

11.1. Any breach of your payment obligations, breach of your obligations with regard to the use of the Service, or any unauthorized use of the TMN Technology or Service will be deemed a material breach of this Agreement. TMN, at its sole discretion, may suspend or terminate your user name, password or use of the Service, or the Agreement if you breach or otherwise fail to comply with this Agreement. If you breach an obligation in the Agreement and TMN desires to terminate the Agreement, TMN will deliver to you notice of breach, and if you fail to cure the breach within 5 days of your receipt of the notice, the Agreement will terminate upon the expiration of such 5 day period without further action needed by either party. In addition, TMN may terminate a free account at any time at its sole discretion by delivering to you written notice of such termination, where such termination will be effective as described in the notice. TMN may also terminate the Agreement as set forth elsewhere in this Agreement.

11.2. Upon termination of the Agreement: (i) all licenses granted hereunder will immediately terminate, and you will immediately cease all use of the Service, and (ii) all amounts owed by you hereunder will become immediately due and payable, and (iii) you will be obligated to pay the balance due on your account as of the effective date of termination, and you agree that TMN may charge any unpaid fees to your credit card or otherwise bill you for the unpaid fees.

12. Representations & Warranties Each party represents and warrants that it has the legal power and authority to enter into this Agreement. The individual executing the Agreement represents and warrants that he or she has the power and authority to bind you, and you represent that you have authorized the person executing the Agreement to do so on your behalf. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

13. Indemnification

You hereby agree to indemnify, defend and hold harmless TMN, TMN's directors, officers, employees, contractors, attorneys, agents and licensors from and against all claims, demands, damages, losses, costs, expenses (including attorneys' fees and costs) and other liabilities arising out of or related to this Agreement, including without limitation claims arising from customer complaints about the Service or your restaurant or any infringement arising from the combination of the Service with any of your products, Restaurant Data, services, hardware or business processes.

14. Disclaimer of Warranties

14.1. TMN AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT AND PROVIDE THE SERVICE AND CONTENT “AS-IS”. TMN AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT, WITHOUT LIMITATION:

(a) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,

(b) THE SERVICE OR DATA WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS,

(c) ANY DATA WILL BE ACCURATE, RELIABLE OR SECURE,

(e) ERRORS OR DEFECTS WILL BE CORRECTED, OR

(f) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

14.2. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TMN AND ITS LICENSORS.

15. Internet delays; Downtime

The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. TMN is not responsible for any delays, delivery failures, or other damage resulting from these problems. TMN, in its sole discretion, may schedule downtime periods during which the Service will be shut down for the purposes of system upgrades and maintenance. In addition, there may be unscheduled downtime events that will make the Service inaccessible for a limited time due to unforeseen software, hardware, network, power and/or Internet outages.

16. Limitation of Liability

17. IN NO EVENT SHALL TMN'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM (OR TWELVE TIMES THE AVERAGE MONTHLY AMOUNT PAID BY YOU IN THE IMMEDIATELY PRECEDING PERIOD DURING WHICH THIS AGREEMENT WAS IN EFFECT, IF LESS THAN TWELVE MONTHS). IN NO EVENT SHALL TMN AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF TMN OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

18. Third Party Websites.

The Service provides the ability for your restaurant to have online reservations capability on certain third party websites, including those of TMN's current and future Portal partners. TMN MAKES NO REPRESENTATIONS OR WARRANTIES AND DISCLAIMS ALL LIABILITY RELATING TO THE PORTALS AND THIRD PARTY WEBSITES AND ONLINE RESERVATIONS CAPABILITIES.

19. Notice TMN may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in TMN's subscription information, or by written communication sent by first class mail or pre-paid post to your address on record in TMN's subscription information. You may give notice to TMN (notice shall be deemed given when received by TMN) at any time by any of the following: letter sent by confirmed facsimile to TMN at the following fax number: (970) 385-2343; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to TM: The Magellan Network, One TMN Plaza, Durango, CO 81301, addressed to the attention of: President. Notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).

20. Modification to Terms.

TMN reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective 30 days after TMN notifies you (“Review Period”) that it has posted an updated version of this Agreement on TMN’s website. If you do not agree to the modified terms and conditions, your sole and exclusive remedy will be to terminate the Agreement by providing written notice to TMN prior to the expiration of the Review Period. If you do not provide notice to TMN of termination prior to the expiration of the Review Period, you will be deemed to have accepted the revised Agreement. No other modification, whether oral or written, to any of the terms and conditions of this Agreement will be binding unless specifically agreed to in writing and signed by a duly authorized officer of TMN.

21. Assignment; Change in Control

21.1. This Agreement may not be assigned by you, and you may not assign any rights or delegate any duties under this Agreement, without the prior written approval of TMN. TMN may assign this Agreement or any rights, or delegate any duties freely without your consent. Any purported assignment in violation of this section shall be void and without effect.

21.2. Any actual or proposed change in control of you that results or would result in a direct competitor of TMN directly or indirectly owning or controlling 50% or more of you shall entitle TMN to terminate this Agreement immediately upon written notice.

22. Confidentiality

22.1. This Agreement and any information of TMN marked as confidential or, regardless of form (written/electronic/oral) or marking, is of the nature that a reasonable person would understand its owner would not want it disclosed to the public will be considered to be “Confidential Information.” You will not disclose Confidential Information of TMN except to employees, or a third party subject to a similar confidentiality agreement, which have a need to know to perform your obligations under this Agreement. You will take at least the same precautions to protect Confidential Information as you would utilize to ensure the protection, confidentiality and security of your own confidential information. You may only use Confidential Information as necessary to exercise rights or obligations under this Agreement. Confidential Information shall not include any information which:

(a) is or becomes generally known or available through no act or failure to act by the receiving party;

(b) is already known by the receiving party as evidenced by its written records; or

(c) is hereafter rightfully furnished to the receiving party by a third party without restriction on disclosure;

22.2. In addition, the receiving party will be allowed to disclose Confidential Information of the disclosing party to the extent that such disclosure is necessary for the receiving party to enforce its rights under the Agreement in connection with a legal proceeding, provided that the receiving party notifies the disclosing party of such required disclosure promptly and in writing and cooperates with the disclosing party, at the disclosing party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

22.3. Upon the expiration or earlier termination of this Agreement, TMN may, in writing, request either the prompt return or destruction, and a written certification of the destruction, of any Confidential Information provided to you. You further acknowledge that monetary damages may not alone be a sufficient remedy for unauthorized disclosure of Confidential Information or breach of the license or license restrictions, and that TMN shall be entitled to seek all remedies and damages available in law and equity, including but not limited to injunctive relief as may be deemed proper by a court of competent jurisdiction.

23. General

23.1. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Colorado as applied to agreements entered into and performed entirely within that state by residents thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. In the event of any controversy, claim, or dispute arising under or relating to this Agreement, the parties to this Agreement hereby expressly and irrevocably consent to the exclusive personal jurisdiction and venue of the federal and state courts sitting within the state of Colorado. If any term or condition shall be held by a court of competent jurisdiction to be unenforceable, that term or condition shall be interpreted as broadly as possible to give effect to the intent of the parties, and the remaining terms and conditions of this Agreement will remain in full force and effect. This Agreement, comprised of the Order Form, the Adoption Agreement and these Subscription Terms, and any exhibits hereto, constitutes the final and entire agreement between the parties regarding the subject matter hereof. This Agreement supersedes all prior or contemporaneous, agreements, understandings and communications between the parties, whether written or oral. In the event of any conflict between the terms of the Subscription Terms and the terms of any Order Form, the terms of this the Subscription Terms shall prevail. All waivers must be in writing and any waiver of or failure to enforce a provision of this Agreement on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion. This Agreement may only be amended by a written document signed by both parties. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to fires, floods, epidemics, famines, earthquakes, hurricanes and other natural disasters or acts of God; regulation or acts of any civilian or military authority or act of any self-regulatory authority; wars, terrorism, riots, civil unrest, sabotage, or theft or other criminal acts of third parties; failure of electronic or mechanical equipment; and fluctuations in or failures of electric power, heat, light, air conditioning or telecommunications and shortages of relied-upon services or supplies. Notwithstanding any other provisions herein, no party will be deemed as a third-party beneficiary to this Agreement. The parties hereto are independent contractors and each will conduct its business hereunder solely as a principal for its own account. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties.

24. Definitions.

24.1. As used in this Agreement (including any Order Forms or exhibits now or hereafter associated herewith):

(a) "Content" means the audio and visual information, data, content, documents, software, products and services contained or made available to you in the course of using the Service;

(b) "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

(c) "TMN Technology" means all of TMN’s or its licensors’ technology (including software in object and source code format), hardware, products, software, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), and other technology used by TMN or made available to you by TMN in providing the Service;

(d) "Restaurant Data" means any data, information or material provided or submitted by you in the course of using, accessing, or subscribing to the Service;

Exhibit A

Adoption Agreement

1. Definitions.

Any capitalized term not defined in this Adoption Agreement has the meaning given to it in the Agreement.

“Client” means “You”, “you” or “Restaurant Subscriber” as those terms are defined in the Terms.

“Code” means HTML tags or other source code provided by TMN to Client, upon the terms and conditions of this Adoption Agreement to enable Client to tag Client Site(s) for use in connection with the Measurement Services.

“Client Data” means any and all data and information collected by TMN via Omniture, Inc., its third party online business optimization service provider (“Omniture”) in the course of tracking traffic and related data and information on the Client Sites together with all measurement statistics generated there from in the course of TMN’s provision of the Measurement Services.

“Client Site(s)” mean(s) the current and future website(s) owned and operated by Client, any and all web pages of such Client Site(s), and any and all web pages that may be hosted or operated by a third party that contain Client’s brand or logo, and have a look and feel that is consistent with Client’s web pages and appear to be owned and operated by Client or on behalf of Client. Client Site(s) shall also include any internet services applications that contain the Code for purposes of receiving the Measurement Services.

“Measurement Services” means the website tracking, recording and/or reporting services, and/or bid management services that may be provided by TMN via Omniture, as further described in Section 2.1 below.

“Report(s)” mean(s) all reports, based in whole or in part on data and/or information gathered in the course of tracking traffic on the Client Site(s), which is provided to Client as part of the Measurement Services.

“User” means only employees of Client who are authorized and designated by Client to access the Reports using a unique password and login ID, as provided by TMN, or Omniture.

2. Measurement Services.

A description of the features and functionalities of the various Measurement Services that Client may purchase can be obtained from Omniture. In order to improve the Measurement Services or as otherwise required by its third party vendors, TMN may provide updated Code to Client, which Client agrees to install within thirty (30) days of receipt.

3. License.

Subject to the terms of this Agreement and in consideration of the Fees stated herein, TMN hereby grants to Client, during the term of this Agreement, the worldwide right to (i) use the Code solely on the Client Sites for purposes of receiving the Measurement Services; (ii) use and access the Measurement Services solely to track and analyze traffic on Client Sites; and (iii) subject to Section 4, access the Reports. Client agrees not to (i) sell, rent, sublicense or lease access to the Measurement Services or use the Code to provide services to third parties, including but not limited to ASP’s, time-shares or other similar entities; (ii) remove, obscure or alter any proprietary notices associated with the Measurement Services or Reports; (iii) tamper with the Measurement Services or Reports; (iv) use the Measurement Services, or allow them to be used, in any manner or for any purpose other than as expressly permitted herein; (v) reproduce, modify, make derivative works of, use, make, have made, sell, offer to sell or import the Code, except as expressly provided in this Agreement; or (vi) disassemble, decompile, or reverse engineer the Code or Measurement Services. Client acknowledges that Client and each of its employees or agents that access the Measurement Services will be bound by the terms and conditions of use required of each such user upon sign on or otherwise provided by its third party providers. Client grants to TMN and Omniture, the non-exclusive, worldwide right to use, copy, transmit and display Client Data solely to the extent necessary to provide the Measurement Services and Reports to Client.

4. Ownership.

Client owns all right, title and interest in and to all data and information collected by TMN via Omniture from the Client Site(s), or from Client’s search engine providers, in the course of providing the Measurement Services, including any and all data about traffic to the Client Sites contained in the Reports(s). Nothing in this Section 4 shall be considered a grant to Client of any right, title or interest in or to Omniture’s underlying rights in the Code, the Measurement Services, or TMN data in the aggregate such as, but not limited to, the functionality expressed in the Reports, data collection functionalities, supporting software, systems architecture and any and all related technologies, and any graphical design and look and feel contained in the Reports. Omniture retains all right, title and interest in and to all improvements, modifications, suggestions, enhancement requests, feedback, recommendations or derivative works thereof and any intellectual property rights therein.

5. Privacy; Confidentiality.

5.1. Privacy.

All Client Data is the Confidential Information of Client, and TMN will not disclose such Client Data to any third party or use such Client Data for any purpose other than providing Client with the Measurement Services under this Agreement. The parties hereby agree that they shall comply with all applicable federal and state consumer privacy laws, rules, and regulations. Client acknowledges and agrees that Omniture is processing the Client Data on behalf of Client and that, if required by applicable data protection legislation, Client will inform third parties of the processing of Client Data and ensure that any required third parties have given their consent to such processing. Client hereby agrees that the Client Site(s), and any other application containing the Code, will feature a privacy policy, linked conspicuously from the Client Site(s)’ home page, that (A) discloses Client’s privacy practices, (B) identifies the collection (via cookies and web beacons) and use of information gathered in connection with third party services, such as Omniture’s Measurement Services; and (C) if Client collects, or plans to collect, personally identifiable information on the Client Site(s) and transmits, or plans to transmit, such information to Omniture, contains a statement specifically disclosing such practices (including transmission to a third party service provider) and offers site visitors an opportunity to opt out of (or opt-in, if applicable law requires) such use by third parties, such as Omniture. Client shall be responsible for creating and maintaining the necessary P3P privacy policies (i.e., the machine readable form of privacy policy that is provided with the cookie) to enable Client to use, and Omniture to provide, the Measurement Services, and for ensuring that P3P privacy policy is consistent Client’s privacy policy posted on the Client Sites. TMN and Omniture shall not be liable in any way for any inaccuracies in such P3P policies or liability resulting therefrom. Further, if said P3P statement commits Client to providing visitors to Client Site(s) with an opt-out (or opt-in) mechanism, Client will maintain such an opt-out (opt-in) mechanism for use in conjunction with the Client Site(s). TMN shall have the right to terminate this Agreement on five (5) days prior written notice to Client if Client breaches this provision and fails to remedy such breach within said five (5) day period.

5.2. Confidential Information.

Each party may have access to information that is confidential to the other party or its third party providers ("Confidential Information"). Confidential Information means any information that is clearly identified in writing as confidential at the time of disclosure, and any written or oral information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential (such as password or log-in protected access to online tools or solutions). Such Confidential Information includes, but is not limited to, products, technological processes, product forecasts, trade secrets, pre-publication patent applications, product designs, pricing information and rate cards, software designs, hardware or system designs, technology specifications, source code, object code, graphic designs, report templates, proprietary financial information, systems architecture, and systems functionalities. Confidential Information also includes all copies, summaries and extracts of any Confidential Information. A party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was rightfully in the other party's possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is rightfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party's Confidential Information. The parties agree to use all reasonable care to prevent the disclosure of the other party's Confidential Information to any third party.

6. Indemnification.

Client agrees to indemnify, defend and hold TMN (and its directors, employees, third party providers and agents) harmless from and against all liability, damage, expense, loss, claim or cost suffered by TMN (and its directors, employees, third party providers and agents), including reasonable attorneys’ fees, to the extent that such liability, damage, expense, loss, claim or cost suffered is based on a (i) third-party claim that Client has breached its obligations hereunder, or (ii) third party claim that Client’s actions in connection with the Measurement Services violate Client’s privacy policy or any third party’s rights of privacy.

7. Third Party Suppliers.

Client acknowledges and agrees that TMN may use third parties to perform some or all of its obligations under this Agreement. Client further acknowledges and agrees that under certain circumstances a third party service provider of TMN may assume all or certain of the rights and obligations of TMN under this Agreement. Client agrees that such third party service providers are third party beneficiaries of this Agreement and may enforce the applicable terms of this Agreement as necessary to protect such of provider’s intellectual property and other rights.

Disclaimer, Limitation of Liability.

All Code, materials and services are provided AS-IS AND agency and its third party suppliers HEREBY DISCLAIM AND MAKE NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO representations, guarantees, or WARRANTIES OF MERCHANTABILITY, ACCURACY, quality of service or results, availability, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, or warranties of its third party providers. THE AGGREGATE LIABILITY OF agency WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT (or due from Client) within the twelve (12) months prior to such claim. The foregoing limitations and exclusions of liability will apply regardless of the form, or source, of action and regardless of any obligation stated under this agreement.

Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@gotmn.com.

Privacy Policy

Last updated: October 19, 2008

The Magellan Network, LLC (“The Magellan Network,” “we”, or “us”) is committed to safeguarding the privacy of information we collect and maintain about you. Establishing and adhering to an effective privacy policy is an important part of that dedication. In this Privacy Policy, you will find details about The Magellan Network’s commitment to protecting any information you provide to and through The Magellan Network’s Restaurant Reservation web site, www.goTMN.com (“Site”), or any of our client restaurants’ website reservation systems (“Client Site”). Together the Site and Client Site(s) are referred to as “Websites.”

The Magellan Network offers its online restaurant reservation service (the “Service”) to its restaurant customers (“Restaurants”) so that the Restaurant can offer consumers (“Diners”) a convenient, on-line method of making reservations.

What This Privacy Policy Covers

This Privacy Policy describes The Magellan Network’s practices with respect to Personal Information and Anonymous Information that we collect when you (i) visit, browse, or use a Website. This Privacy Policy does not apply to the use of your Personal Information that is collected by third parties that The Magellan Network does not own or control or that do not support The Magellan Network in providing the Services.

“Personal Information” is information that is personally identifiable like names, addresses, e-mail addresses, or phone numbers, as well as other non-public information that is associated with the foregoing.

“Anonymous Information” means information that is not associated with or linked to your Personal Information; Anonymous Information does not permit the identification of individual persons.

By visiting a Website, or submitting Personal Information through a Website, you expressly consent to the processing of your Personal Information according to this Privacy Policy.

Your Personal Information may be processed in the country where it was collected as well as other countries (including the United States) where laws regarding processing of Personal Information may be less stringent than the laws in your country and by using the Services or submitting Personal Information through the Services, you are expressly consenting to such processing.

Information you will be asked to provide when using www.goTMN.com

We collect, and may store, the following Personal Information that you submit to us voluntarily:

• When a Diner looking for a reservation at a Restaurant completes a reservation request on a Website, he or she must provide a name, email address, and a telephone number, as one usually would by making a reservation over the phone. Additionally, we collect all information submitted via the text boxes. Collectively, the foregoing is “Diner Data.”

• When a Diner is creating a consumer account with The Magellan Network, he or she must provide a name, email address, and phone number. Additionally, we collect all information submitted via the text boxes.

• Restaurants will be asked to provide The Magellan Network with names, phone contact information and email addresses of your restaurant managers.

What information is accessible to Restaurants:

When a Diner makes a restaurant reservation using the Service, the Diner’s name, telephone number and email address (and the names and email addresses of other invitees, if the Diner provides them) are provided to that Restaurant. The Restaurant will be permitted to send information to those addresses unless the Diner elects to opt-out of receiving such information when the Diner makes the reservation (if a Diner doesn’t opt-out, the Restaurant is required to include an opt-out option in each email it sends to Diners as well). Diners also have the option of providing special preferences or comments regarding their reservation or providing other comments, which The Magellan Network will pass to that Restaurant.

The Magellan Network will only share the Diner Data specified above with the Restaurant with which the Diner has made reservations using the Service. Restaurants cannot access information pertaining to Diners or dining history from other non-affiliated restaurants through the Service. However, all Diners must understand that any Diner Data shared with The Magellan Network during the reservation process may be used by that Restaurant for its internal, lawful purposes. Additionally, a Restaurant with which a Diner chooses to share information may share that information with other restaurants under the same ownership or within the same corporate group.

Information Collected Via Technology

We currently contract with several online partners to help manage and optimize our Internet business and communications. We use the services of a marketing company to help us measure the effectiveness of our advertising and how visitors use Websites. We utilize third party service providers to collect Anonymous Information about your visits to the Site or Client Sites, such as what portions of a Site or Client Site you visit, and what website you were visiting prior to visiting a Site or Client Site.

To do this, we use Web beacons and cookies provided by our marketing company on the Websites. The type of information we collect includes visitor information and site navigation use. By supplementing our records, this information helps us learn things like what pages are most attractive to our visitors, which of our products most interest our customers, and what kinds of offers our customers like to see. Although our marketing company logs the information coming from the Websites on our behalf, we control how that data may and may not be used. If you do not want to help us learn how to improve our site, products, offers and marketing strategy, you can “opt-out” of our ability to analyze such data by exiting the Website you are currently visiting.

How The Magellan Network uses your Personal Information:

In general, information (including Personal Information) you submit to us, or to third parties that support us in collecting information, is used by us to provide you or others with services requested or purchased by you (including the Service), to respond to requests or questions that you submit, to improve the Service and to better tailor the features, performance and support of the Service.

We may use some of the information, including both Personal Information and Anonymous Information, for our marketing purposes. For example, we may use information you provide to contact you to further discuss your interest in The Magellan Network, the Service, and to send you information regarding us and our partners, such as information about promotions or events.

Diners - The Magellan Network will never sell, rent, loan or otherwise distribute any of your Personal Information (including but not limited to your name, email address, phone number or any other identifiable information about you) to any third party without your express written consent, although The Magellan Network will pass certain Personal Information on to the Restaurants at which you make reservations, only as described above. If you are making a reservation through a Client Site, we will also share your Personal Information with the owner of the Client Site. In addition, we may send to the email address(es) you provide updates and newsletters periodically about new features, special offers and targeted promotional items available on The Magellan Network. You may choose to not receive certain of these communications by so indicating during the reservation process or by using the “opt-out” feature contained in each of our e-mails, which will clearly explain how to opt out of future communications.

Restaurants - The Magellan Network will never sell, rent, loan or otherwise distribute any of your information (including but not limited to your name, email address, phone number or any other identifiable information about you or your employees) to any third party without your express written consent. However, The Magellan Network reserves the right to use Restaurant information to notify you of important announcements regarding the operation of the Service as well as other marketing related communications that might interest you. As a Restaurant, you will not have the option of opting out unless you terminate your subscription agreement with The Magellan Network. If you become a paying customer of The Magellan Network service, you agree that The Magellan Network can disclose the fact that you are a paying customer.

Reservations - The Restaurant may use a Diner’s telephone number to confirm your reservation. In addition, Diner’s will be asked to provide an email address to which The Magellan Network will send an automated confirmation of your reservation at the Restaurant.

With whom we share Personal Information:

Except as otherwise stated in this Privacy Policy, we do not disclose to or share your Personal Information with third parties, unless you ask or authorize us to do so.

We share Diners’ Personal Information with Restaurants as described above.

We share Diners’ Person Information with third party service providers (“Service Providers”). These Service Providers use your Personal Information only in connection with delivery of e-mail mailings to users of the Service.We contractually prohibit these Service Providers from using, storing or retaining this information for secondary purposes.

From time to time we may allow some of our select Restaurants to send Diners special promotional offers that we believe may be of special interest to Diners. Diners may choose not to receive these communications from such Restaurants by so indicating during the reservation process or by using the “opt-out” feature contained in each of our e-mails, each of which will clearly explain how to opt out of future communications.

We may disclose Personal Information if required to do so by law or in the good faith belief that such action is necessary to conform with the law or legal process or to protect or defend our rights or property.

Although we currently do not have a parent company, any subsidiaries, joint ventures, or other companies under a common control (collectively, “Affiliates”), we may in the future. We may share some or all of your Personal Information with these Affiliates, in which case we will require our Affiliates to honor this Privacy Policy.

In the event The Magellan Network goes through a business transition such as a merger, acquisition by another company, or sale of all or a portion of its assets, your Personal Information will likely be among the assets transferred. You acknowledge that such transfers may occur, and that any acquirer of The Magellan Network or its assets may continue to use your Personal Information as set forth in this Privacy Policy. You hereby consent to The Magellan Network sharing your Personal Information under the above circumstances.

Security

The Magellan Network has reasonable security measures in place to help protect the loss, misuse and alteration of the information under our control. All information is stored in a secure operating environment. When credit card information is collected and transmitted across the Internet, we use Secure Socket Layer (SSL) encryption. Internally, all customer information is protected with multiple security checks. Employee access to the system is limited to the functionality necessary for each person's job. Relevant employees are informed of our security policies and their access to applications and data on our network.

However, no company, including The Magellan Network can fully eliminate security risks associated with Personal Information.

Privacy of Minors

We do not intentionally collect information from persons under the age of 13 through the Websites.

Links

We may provide links to third party Web sites as a service to our users. Please be aware that we cannot control and are not responsible for the information collection practices of such Web sites, which may differ from those of The Magellan Network. We encourage you to review and understand the privacy policies on these Web sites before providing any information to them.

Opting out; Choices about Information

You may elect not to receive emails from The Magellan Network, other than automated service messages which are required as part of the Service, such as reservation confirmations, by unsubscribing from any such emails.

Contact Us

Protecting your privacy is one of our highest priorities. If you have any questions about our privacy policy, you may e-mail us at privacy@gotmn.com, or write to us at The Magellan Network, One TMN Plaza, Durango, CO 81301 Attn: Privacy. Changes to The Magellan Network's privacy policy We will occasionally update this Privacy Statement to reflect changes in our services and customer feedback. Any changes to The Magellan Network's privacy policy will be posted to this section of the web site, along with the effective date of the new policy. We encourage you to periodically review this Statement to be informed of how The Magellan Network is protecting your information.

In the event we make a material change to the Privacy Policy, we will notify you either by email or by posting a notice on the home page of the Websites. You will have 30 days from receipt of the email or from the date of posting of the notice on the Website, which ever date is later, to object to the changes. If you object to the changes, your sole and exclusive remedy is to terminate your relationship with us and cease your use of the Sites and Services. If you do not object within such time period, you will be deemed to have accepted the revised terms.

Thank you for using The Magellan Network.

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