DATACOOKBOOK SOFTWARE LICENSE AGREEMENT

 

This Agreement is made by and between IData, Inc., a Virginia corporation, (hereinafter referred to as "IData") having its principal place of business at 1908 Mt. Vernon Ave., 2nd Floor, Alexandria, Virginia 22301 and the person or entity accessing this Software as a subscriber (hereinafter referred to as "You"). If an individual is licensing this Software from IData on behalf of a corporation or other corporate entity, "You" refers to that entity and that entity will be bound by the terms and conditions below.

We hereby agree as follows:

1. DEFINITIONS

"DataCookbook Software" means the software, known generally as DataCookbook, licensed hereunder for use as software code, before modification, customization or implementation.

Through use of the DataCookbook Software, IData has developed its DataCookbook functionality, training and support ("DataCookbook Service") offered to You at the DataCookbook.com site ("Site").

You desire to subscribe to use the DataCookbook Service at the Site pursuant to the Terms of Service ("TOS") at the Site and, thereby, access the DataCookbook Service and the DataCookbook Software from Your computers. Such access of the DataCookbook Software is pursuant to this Software License Agreement.

2. DELIVERY OF DATACOOKBOOK SOFTWARE

2.1 IData shall deliver copies of the DataCookbook Software via the Internet and through the Site, or, on rare occasion, other media on which this DataCookbook Software is supplied. IData grants to You a corporate wide, perpetual, non‑exclusive and nontransferable license to use the DataCookbook Software, data, code and any available associated documentation of the DataCookbook Software as hosted by our Site to use the DataCookbook Service. This License permits this use of this DataCookbook Software solely through our hosting at our Site for Your use in regard to your business purposes, and only by Your employees in the ordinary course of Your internal business and not for remarketing or use for other entities. This License does not constitute a sale of the DataCookbook Software or any copy, part or portion thereof. IData reserves the right at any time to alter prices, features, licensing terms, or other characteristics of the DataCookbook Software. Any third party software provided together with the DataCookbook Software is included for use at Your option, and any use of such software shall be governed by the third party's license agreement and not by this Agreement, except to the extent that this Agreement indicates otherwise with respect to specific third party software.

Without limiting the generality of the foregoing, as this DataCookbook Software is software code which is a trade secret of IData and protected by copyright law and other intellectual property law, the following restrictions apply. Except as otherwise expressly permitted in this Agreement, and in addition to any other restrictions herein, You may not: (i) modify or create any derivative works of the DataCookbook Software, including translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the DataCookbook Software; (iii) redistribute, encumber, sell, rent, lease, sublicense, use the DataCookbook Software in a timesharing or service bureau arrangement, or otherwise transfer rights to the DataCookbook Software; (iv) copy the DataCookbook Software; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the DataCookbook Software; (vi) modify any header files or class libraries in the DataCookbook Software; (vii) create or alter tables or reports relating to the database portion of the DataCookbook Software (except as necessary for operating the DataCookbook Software); (viii) publish any results of benchmark tests run on the DataCookbook Software or disclose DataCookbook Software features, errors or bugs to a third party without IData’s prior written consent; or (ix) use the database provided by IData, if any, for use with the DataCookbook Software except in conjunction with the DataCookbook Software and DataCookbook Service.

2.2 IData’s delivery of the DataCookbook Software herein shall be for the purpose of use of the DataCookbook Service. There is a potential of enabling the performance by IData of follow-on consulting services; all IData services relating to the DataCookbook Software and DataCookbook Service, such as services relating to the development of enhancements and customizations, database population and database conversion, implementation services and training services for You, individually, shall be specifically agreed to by both parties in an Agreement for Consulting Services. Any programming or other services provided to You by IData, including without limitation any modifications necessitated by the particular configuration of Your computer system, shall be invoiced to You at IData’s then current rates or mutually agreed upon price, as well as any material charges and travel and lodging reimbursement rates in effect at the time such services are rendered. All assistance requested by You shall be provided by IData during normal business hours subject to IData’s availability as determined by IData in its sole discretion.

2.3 You agree to assist IData in developing and testing improvements to the DataCookbook Software and DataCookbook Service through Your use, provided such development and testing shall not interfere with Your use of the DataCookbook Service in the ordinary course of its business. At such time as updated versions are available, IData shall make such new versions or updates available to You.

2.4 You agree to keep accurate records enabling a determination to be made as to the accuracy of Your payments made to IData.

2.5 IData shall have the right upon reasonable advance written notice to visit Your offices, workplaces and facilities during normal business hours and inspect Your records and verify the number of users and the accuracy of the payments made by You to IData. You grant IData permission to visit and enter Your offices, workplaces and facilities and to access Your records and computer system to perform such audit. You further grant permission to IData to visit and enter any other location of Yours at which an unauthorized access is reasonably suspected by IData. You further agree to provide a safe and adequate working area for IData personnel to carry out such audit.

3. CONSIDERATION, FEES AND EXPENSES

3.1 For the license for the use of the DataCookbook Software, You agree to pay the charges set forth in the registration process and pursuant to applicable fee schedules.

3.2 You will indemnify, defend and hold IData harmless against claims for sales, service, ad valorem or other tax, penalty and interest thereon due to any governmental authority based on transactions occurring hereunder. IData is not collecting tax payments on your behalf, including without limitation any sales, service, ad valorem or other tax, if any, in force from time to time.

4. INTELLECTUAL PROPERTY INDEMNITY

Should the DataCookbook Software, or DataCookbook Service, become, or, in IData's opinion be likely to become, the subject of a claim of infringement of any currently issued patent or copyright against IData or You, then IData has the right at its discretion to defend against such claims, the right to remedy or otherwise cure the alleged claim, or withdraw access to the DataCookbook Software, or DataCookbook Service, or any portion thereof consisting of segregable infringing material or item (provided that IData will also refund the fees, if any, previously paid for the DataCookbook Software, or DataCookbook Service, or any portion thereof consisting of segregable infringing material or item, less a charge for the value of Your prior use). IData's obligations hereunder shall not extend to infringement arising out of unauthorized use of the DataCookbook Software, or DataCookbook Service, or any portion thereof, or a modification of the DataCookbook Software, or DataCookbook Service, or any portion thereof after delivery by IData, or the combination, operation, or use of the DataCookbook Software, or DataCookbook Service, with programs or data if such infringement would have been avoided by not making the combination, operation or use of the DataCookbook Software, or DataCookbook Service, with other programs or data or would have been avoided by the combination, operation or use of the DataCookbook Software, or DataCookbook Service, with other programs or data. THE FOREGOING OBLIGATIONS BY IDATA CONSTITUTE IDATA'S SOLE LIABILITY AND YOUR SOLE REMEDY FOR INFRINGEMENT OF PATENTS AND COPYRIGHTS AND ANY OTHER INTELLECTUAL PROPERTY RIGHTS.

5. WARRANTY, LIABILITY AND DEFAULT

5.1 Warranty

YOU RECOGNIZE THAT THE DATACOOKBOOK SOFTWARE AND ALL PRODUCTS AND OTHER ITEMS AND SERVICES PROVIDED TO YOU HEREUNDER ARE DELIVERED PURSUANT TO THOSE PUBLISHED SPECIFICATIONS IN EFFECT UPON DELIVERY TO YOU, IF ANY, AND OTHERWISE "AS IS." OTHER THAN AS SET FORTH ABOVE, NO WARRANTIES ARE GIVEN, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR PARTICULAR PURPOSE OR MECHANTABILITY OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN NO EVENT WILL IDATA BE LIABLE FOR ANY LIABILITY IN TORT, NEGLIGENCE, OR ANY OTHER LIABILITY INCURRED BY YOU OR UNDER OR IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IDATA DOES NOT WARRANT THAT THE USE OF THE DATACOOKBOOK SOFTWARE OR DATACOOKBOOK SERVICE, OR OF ANY INFORMATION CONTAINED IN OR RELATED TO THE DATACOOKBOOK SOFTWARE OR DATACOOKBOOK SERVICE, WILL NOT INFRINGE ANY PATENT, COPYRIGHT, OR TRADEMARK OF ANY THIRD PERSON, OR THAT THE DATACOOKBOOK SOFTWARE OR DATACOOKBOOK SERVICE OR ANY PARTICULAR FEATURES OR FUNCTION CONTAINED IN IT WILL REMAIN AS A GENERALLY COMMERCIALLY AVAILABLE PRODUCT.

Without limiting the generality of the foregoing, IData shall have no liability relating to defects resulting solely from: (a) software, hardware or interfacing not supplied by IData; (b) inadequate or improper maintenance or usage by You; (c) use of any part of the DataCookbook Software by personnel other than IData personnel; (d) operation of hardware/software environment; or (e) improper site preparation or site environment by IData.

5.2 Limitation of Liability: IData's maximum liability and obligation to You and Your exclusive remedy for any cause whatsoever, regardless of the form of action, whether in contract or in tort including negligence, relating to this Agreement shall be limited, up to the greater of the total of Your payments under this Software License Agreement or the total of Your payments under the TOS or $1000. IDATA SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS, LOST OR DESTROYED DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.3 IData shall not be responsible for the loss of or damage to, regardless of how such loss or damage arise, any document or data which was supplied by You or for any consequential loss arising from said loss or damage. You agree to maintain back‑up copies of any documents or data furnished to IData or provided to DataCookbook Software, DataCookbook Service or the IData web site.

5.4 Each party shall give the other prompt written notice of any material defect or material failure of performance under the Agreement promptly upon discovery.

5.5 In the event of a default under this Agreement, except as otherwise provided, the party in default shall have a reasonable time and opportunity to cure any such defect or failure of performance.

6. TRADE SECRETS AND PROPRIETARY RIGHTS

6.1 It is acknowledged by the parties that all information, methods, formulae, techniques, processes, system and programs devised, produced or supplied hereunder by one party to the other, and clearly designated in writing as proprietary or confidential (or if oral, disclosure shall be identified in writing as such within thirty (30) days) is confidential and proprietary and shall be and remain the property of the disclosing party. Additionally, the DataCookbook Software is hereby deemed confidential regardless of any markings. The receiving party shall at all times during the period of this Agreement and continuously thereafter keep confidential all such information, products, and systems so supplied or communicated to it ("Proprietary Information"). The receiving party shall use the same degree of care to avoid disclosure or use of the Proprietary Information as the receiving party employs with respect to its own proprietary information of like importance and represents that it has adequate procedures to protect the secrecy of such Proprietary Information. Unless otherwise agreed upon in writing, disclosure shall be limited to the receiving party's employees, agents and contractors who have "need to know" the Proprietary Information and, in the event of disclosure to a contractor, the contractor shall have executed a nondisclosure agreement with the disclosing party on terms substantially similar to the terms of this Agreement.

6.2 Information shall not be deemed proprietary, and the receiving party shall have no obligation with respect to any information which the receiving party can show that (a) is publicly disclosed through no wrongful act of the receiving party; (b) is independently developed by the receiving party without access to the Proprietary Information, as long as not otherwise protected by law and not otherwise prohibited by this Agreement; (c) is approved for release by written authorization of the disclosing party; (d) disclosure is required by law, provided that disclosing party shall be afforded sufficient advance notice of disclosure so as to assert any rights it has in the courts and otherwise to maintain the confidentiality of the information; (e) is received from an independent source without restriction, or (f) is lawfully known to the receiving party prior to disclosure hereunder.

Notwithstanding the above exceptions, You acknowledge that IData has invention rights, patent rights, copyrights, and other intellectual property rights in the Proprietary Information which prohibit copying, sale and modification, and creation and manufacture of the Proprietary Information is prohibited, notwithstanding the above terms of this Agreement.

7. TERMINATION

7.1 This Agreement and license is effective until terminated. IData may terminate the License of the DataCookbook Software or the offer of the DataCookbook Service at any time immediately and without prior notice to You.

(a) Your termination rights. Upon IData materially breaching its obligations hereunder, You may terminate this Agreement, upon notice and providing IData ten (10) days opportunity to cure.

(b) Additional IData termination rights Upon Your material breach of Your obligations hereunder, IData may terminate this Agreement upon notice and providing You five (5) days opportunity to cure. In addition, IData may terminate this Agreement immediately, if You do any act which causes an infringement of any IData (or licensor of IData’s) intellectual property or other property right including, without limitation any copyright, license right, or trade secret right.

7.2 Upon termination, any property of IData delivered pursuant to this Agreement, real, personal, intellectual, or otherwise including the DataCookbook Software shall be forthwith returned or conveyed to IData.

8. APPLICABLE LAW/INTERPRETATION

8.1 All notices required or permitted to be given under this Agreement may be sent to a party by ordinary first class mail at the address shown herein, or to that party's last known place of business unless that party gives written notice of an alternative address for the purpose of such service. Such notices shall be deemed to have been served upon delivery but in the event of notices sent by first class mail they shall be deemed to have been served at the expiration of three (3) days after posting.

8.2 A failure or omission by either party to enforce any remedy for any breach of any term or condition in this Agreement shall not be construed as a waiver of such term or condition.

8.3 It is acknowledged that it is the intent of the parties that the provisions contained in this Agreement should be enforced. Therefore, if any part of this Agreement shall be held unenforceable or invalid, it is the intent of the parties that such provision shall not be wholly invalid but shall be deemed to be the maximum restriction for time, geographics and restriction in activities, which a court of competent jurisdiction deems reasonable and enforceable in any jurisdiction in which such court is convened. If any part, provision or paragraph of this Agreement shall be held unenforceable or invalid, the remaining part, provision or paragraph shall continue to be valid and enforceable as though the invalid portions were not a part thereof.

8.4 This Agreement shall be construed and all the rights, powers and liabilities of the parties hereunder shall be determined in accordance with the laws of the Commonwealth of Virginia without reference to its conflicts of laws principles that would require the application of the laws of any other jurisdiction other than the Commonwealth of Virginia. You agree to submit to the jurisdiction and venue of the Virginia courts located within the County of Fairfax, Virginia and the United States District Court for the Eastern District of Virginia.

8.5 You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, the License, the Terms of Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

8.6 In the event of any conflict between this Agreement and the Terms of Service, the terms of this Agreement shall control.

8.7 This Software License and the Terms of Service together constitute the entire agreement between you and DataCookbook with regard to the use of the Software and the access to the Site. Together they shall be the entire Agreement between the parties in connection with the DataCookbook Software and the access to the Site, to the exclusion of all antecedent or present representations, undertakings, agreements or warranties, expressed or implied and annuls, supersedes and replaces any and every other representation, warranty and agreement which may have existed between the parties. This agreement may be amended only by a written instrument which has been similarly executed by both parties.

vers. November 1, 2009