Snowconvert Software License Agreement
This is a legal agreement ("Agreement") between you (either an individual or an entity) as the end user ("Licensee") and Mobilize.Net ("Mobilize") entered into as of today ("Effective Date"). BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE AND RELATED DOCUMENTATION IDENTIFIED BELOW ("PRODUCT"), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR USE THE SOFTWARE.
1.1 "Mobilize Software" means the “Mobilize Tools” and “Mobilize Frameworks” defined in the attached Exhibit(s) used to migrate a specific Original Application into a Modernized Application with similar functionality. Original Application” means the Licensee’s input software to be modernized, developed and/or otherwise legally owned by Licensee, as described in the associated Exhibit(s). 1.2 “Modernized Application” means the specific output software resulting from the migration of an Original Application using Mobilize Software and/or services and: (i) includes substantial functionality beyond the Mobilize Software; and (ii) is not a commercial alternative for, or competitive in the marketplace with, the Mobilize Software or any components of the Mobilize Software. 1.3 “End-Users” means the Licensee’s employees or the Licensee’s end-users that the Licensee authorizes to use the Modernized Application and Mobilize Frameworks pursuant to this Agreement.
1.4 "Scope Limitations" means the limitations on the scope of the licenses granted to Licensee under this Agreement and relevant Exhibit(s).
1.5 “Unauthorized Use” means any use, reproduction, distribution, disclosure, possession, examination, or other activity involving the Mobilize Software that is not expressly authorized under this Agreement.
2. USE OF THE MOBILIZE SOFTWARE
2.1 Use of the Mobilize Software. Subject to the terms and conditions of this Agreement, Mobilize grants to Licensee a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) license to reproduce, install, and use licensed copies of 1) the Mobilize Tools, without right to sublicense, solely for the purpose of migrating, modernizing, or transforming the Licensee’s Original Application(s) with maximum lines of code specified in the corresponding Exhibit(s) into a Modernized Application, and 2) the Mobilize Frameworks subject to the following conditions and Scope Limitations:
Licensee is granted a Mobilize Framework Developer License under the following additional conditions:
- 2.Source Code. Any Mobilize Frameworks source code that is provided to Licensee by Mobilize hereunder, is provided so that Licensee can maintain its Modernized Application(s) under the terms of this Agreement.
- 3.Testing and Building License. Licensee may use the Mobilize Frameworks to test, maintain, and improve the Licensee’s Modernized Application.
3.1 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Licensee will not, nor will they permit or authorize third parties to: reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Mobilize Software; rent, lease, or sublicense the Mobilize Tools; use the Mobilize Software on a service bureau or application service provider basis; provide, divulge, disclose, make available to, or permit the use of the Mobilize Tools by any third-party; circumvent or disable any technological or security or features or license compliance measures in the Mobilize Software, including, without limitation, to attempt to discern the source code for the Mobilize Software. 3.2 Proprietary Rights Notices. Licensee will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on the Mobilize Software.
3.3 Compliance with Laws. Licensee will use the Mobilize Software in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Mobilize.
3.4 Export. The Mobilize Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, reexport, or import the Mobilize Software. 3.5 Protection against Unauthorized Use. Licensee acknowledges that the Mobilize Software and any other materials furnished to Licensee by Mobilize involve valuable proprietary rights of Mobilize. Licensee will take appropriate steps and precautions to protect the Mobilize Software. Without limiting the generality of the foregoing, Licensee will use its best efforts to prevent any Unauthorized Use and immediately notify Mobilize in writing of any Unauthorized Use that comes to Licensee’s attention. In the event of any Unauthorized Use by anyone who obtained access to the Mobilize Software directly or indirectly through Licensee or any of its employees, agents, representatives, or contractors, Licensee will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Mobilize Software in the possession or control of the person or entity engaging in such Unauthorized Use. Licensee will provide to Mobilize such cooperation and assistance related to any such Unauthorized Use as Mobilize may reasonably request.
3.6 Trademark License. Licensee may use the Mobilize product names, logos and trademarks for the purpose of communicating the Mobilize copyright as required above in Section 2.1 d), in the Modernized Application. Licensee agrees to obtain written approval from Mobilize prior to using Mobilize names, logos, and trademarks in any marketing.
4.1 Delivery. Mobilize has delivered or will deliver within a reasonable time after Effective Date, access to the Licensed Software and associated license file(s) to Licensee.
4.2 Deployment Services. Licensee is solely responsible for deploying the Mobilize Software for operation (i.e., installation, configuration, testing, etc.) unless Licensee has contracted to have Mobilize perform specific deployment services in accordance with the terms of Mobilize’s standard service agreement.
4.3 Support and Maintenance. For as long as Licensee is current with its payment of the fees specified in Payment Terms of the relevant Exhibit(s), Licensee is entitled to receive the respective Support and Maintenance specified in Exhibit(s) during the Initial Term of this Agreement and any renewals.
5.1 Fees and Payment Terms
a) Licensee will pay Mobilize the fees specified in the Payment Terms of the relevant Exhibit(s) and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes. Licensee agrees to pay all amounts due by their agreed due dates. Licensee agrees that its rights to use or benefit in any way from Mobilize Software is contingent upon Licensee being current with all payments due under this agreement, and will cease and desist any use or distribution of its Modernized Application upon valid notice of delinquency for non-payment from Mobilize.
b) Any amount not paid within 30 days of the date of the applicable invoice will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Licensee will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Mobilize to collect any amount that is not paid when due. Amounts due from Licensee under this Agreement may not be withheld or offset by Licensee against amounts due to Licensee for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Licensee will pay all such amounts in United States dollars.
5.2 Taxes. Other than federal and state net income taxes imposed on Mobilize by the United States, Licensee will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Licensee will pay any additional taxes as are necessary to ensure that the net amounts received by Mobilize after all such taxes are paid are equal to the amounts that Mobilize would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5.3 Audit. During the term of this Agreement and for three years thereafter, Licensee will keep current, complete, and accurate records regarding the reproduction, distribution, and use of Mobilize Software. Licensee will provide such information to Mobilize and certify that it has paid all fees required under this Agreement within five business days of any written request, so long as no more than two requests are made each year. Licensee will, after reasonable prior notice from Mobilize, provide Mobilize reasonable access to Licensee’s premises, records, and personnel so that Mobilize may audit and confirm that Licensee complies with this Agreement. If an audit reveals any reproduction, use, or distribution of the Mobilize Software that is not compliant with this Agreement, Licensee will promptly comply with this Agreement and purchase additional licenses as necessary to cover the actual discovered usage, plus interest at the rate specified in Section 5.1 part b.. If the audit reveals that the cost of additional licenses to come into compliance cost five percent (5%) or more than the fees specified in the relevant Exhibit(s), Licensee will promptly reimburse Mobilize for its reasonable costs of conducting such audit.
6.1 Term. This Agreement will commence upon the Effective Date. Each of the Exhibit(s) add specific license terms that apply to each unique Original Application and Modernized Application. This Agreement will terminate upon termination or expiration of all associated Exhibit(s).
6.2 Termination for Nonpayment. Mobilize may, without limitation to any of its other rights or remedies, terminate this Agreement immediately if Licensee fails to timely pay any fees owing under this Agreement.
6.3 Termination for Material Breach. Without limiting Section 6.2, either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party and such termination will take effect when the breaching party receives written notice of termination from the non-breaching party.
6.4 Post-Termination Obligations. If this Agreement is terminated for any reason, Licensee will pay to Mobilize any fees, or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, Licensee will provide Mobilize with a written certification signed by an authorized representative certifying that Licensee has destroyed all copies and discontinued all use of the Mobilize Software.
6.5 Survival. Any provisions of the Agreement containing license restrictions, including, but not limited to those related to the Mobilize Frameworks source code, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
7.1 Mutual Warranties. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; no authorization or approval from any third-party is required in connection with such party’s execution, delivery, or performance of this Agreement; and the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, MOBILIZE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. MOBILIZE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. MOBILIZE DOES NOT WARRANT THAT THE MOBILIZE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE MOBILIZE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. MOBILIZE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE LICENSEE’S USE OF THE MOBILIZE SOFTWARE. LICENSEE WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF MOBILIZE TO ANY THIRD-PARTY.
8.1 Infringement Defense. Mobilize will defend Licensee from any third-party claim that the Mobilize Software infringes or misappropriates any copyright or trade secret of any third-party during the term of this Agreement if: the applicable Licensee Indemnified Party gives Mobilize prompt written notice of the claim; Mobilize has full and complete control over the defense and settlement of the claim; the applicable Licensee Indemnified Party provides assistance in connection with the defense and settlement of the claim as Mobilize may reasonably request; and the applicable Licensee Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
8.2 Infringement Indemnification. Mobilize will indemnify Licensee against all damages, costs, and attorneys’ fees finally awarded in any proceeding under Section 8.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Mobilize’s consent after Mobilize has accepted defense of such claim); and if any proceeding arising under Section 8.1 is settled, all amounts paid to any third-party agreed to by Mobilize in settlement of any such claims.
8.3 Exclusions. Mobilize will have no liability for any infringement to the extent that it arises out of or is based upon the combination, operation, or use of the Mobilize Software with Licensee’s Original Application or Modernized Application if such infringement would have been avoided but for such combination, operation, or use; designs, requirements, or specifications for the Mobilize Software required by or provided by Licensee, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; use of the Mobilize Software outside of the scope of the license granted to the Licensee; Licensee’s failure to use the latest release of the Mobilize Software or to comply with instructions provided by Mobilize, if the alleged infringement would not have occurred but for such failure; any modification of the Mobilize Software not made by Mobilize where such infringement would not have occurred absent such modification; or Unauthorized Use of the Mobilize Software. Licensee will reimburse Mobilize for any costs or damages that result from these actions.
8.4 Exclusive Remedy. This Section 8 states Mobilize’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement of any third-party intellectual property right by the Mobilize Software.
9.1 Defense. Licensee will defend Mobilize from any actual or threatened third-party claim arising out of or based upon the Licensee’s use of the Mobilize Software, a third-party’s use of the Mobilize Software, or Licensee's breach of any of the provisions of this Agreement. Mobilize will: give Licensee prompt written notice of the claim; grant Licensee full and complete control over the defense and settlement of the claim; assist Licensee with the defense and settlement of the claim as Licensee may reasonably request and at Licensee’s expense; and comply with any settlement or court order made in connection with the claim.
9.2 Indemnification. Licensee will indemnify Mobilize against: all damages, costs, and attorneys’ fees finally awarded against Mobilize in any proceeding under Section 9.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Mobilize in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Licensee’s consent after Licensee has accepted defense of such claim); and if any proceeding arising under Section 9.1 is settled, Licensee will pay any amounts to any third-party agreed to by Licensee in settlement of any such claims.
10.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, MOBILIZE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF MOBILIZE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL MOBILIZE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY OR INFRINGEMENT CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO MOBILIZE UNDER THIS AGREEMENT WITHIN 12 MONTHS OF THE DATE UPON A CLAIM IS ASSERTED BY LICENSEE AGAINST MOBILIZE.
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MOBILIZE TO LICENSEE AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11.1 Relationship. Mobilize will be and act as an independent contractor (and not as the agent or representative of Licensee) in the performance of this Agreement.
11.2 Assignability. Except in the event of merger or acquisition, neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed.
11.3 Subcontractors. Mobilize may utilize a subcontractor or other third-parties to perform its duties under this Agreement so long as Mobilize remains responsible for all of its obligations under this Agreement.
11.4 Non-solicitation. During the term of this Agreement and for a period of one year thereafter, neither party will, directly or indirectly, employ or solicit the employment or services of an employee or independent contractor of the other party without the prior written consent of the other party.
11.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to next day courier.
11.6 Force Majeure. Mobilize will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Mobilize’s reasonable control, so long as Mobilize uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
11.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington, in connection with any action arising out of or in connection with this Agreement.
11.8 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Mobilize Software under this Agreement is found to be illegal, unenforceable, or invalid, Licensee’s right to use the Mobilize Software will immediately terminate.
11.9 Confidentiality. The parties mutually acknowledge that the other party’s source code is confidential and contains valuable and proprietary trade secrets and intellectual property. Except as explicitly provided herein, no portion of the Original Application, Modernized Application, or Mobilize Software, or any derivative work thereof, may be distributed, disclosed or otherwise made available to any third-party.
11.10 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile or electronic signature and such execution and delivery will have the same force and effect of an original document with original signatures.
11.11 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding the licensing of the Mobilize Software. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties for services relating to the Mobilize Software that Mobilize may provide. No employee, agent, or other representative of Mobilize has any authority to bind Mobilize with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Mobilize will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Licensee in any receipt, acceptance, purchase order, confirmation, correspondence, or otherwise, unless Mobilize specifically agrees to such provision in a writing signed by an authorized agent of Mobilize.
MOBILIZE SOFTWARE, SCOPE LIMITATIONS, AND FEES
1. Mobilize Tools means Mobilize’s software platform, tools, and updates and extensions thereto, which transform:
- 1.Original Application from: Teradata, Oracle, SQL Server, Scala, Python architecture
- 2.into Modernized Application in: Snowflake architecture.
2. Mobilize Frameworks means Mobilize’s software classes, libraries, and all derivative works, updates and extensions thereto that implement functionality which may be required by the Original Application in the source platform but not provided in a compatible form on the target platform, libraries to support automated testing, API exposure, or other Mobilize IP used in the development, testing, or execution of the Modernized Application. These frameworks include, but are not limited to:
- 1.Snowconvert Helper Classes
3. Term. The term of this license will commence on the Effective Date and continue for the period specified in the corresponding License Key file obtained from Mobilize.Net (“Initial Term”). Licensee’s rights to use the Mobilize Frameworks under this license according to the rights and limitations described in the Software License Agreement Section 2 in conjunction with the Modernized Application referenced herein will continue for the duration of this Agreement.
4. Original Application Limitations. Licensee hereby agrees that the Mobilize Software will be used for the sole purpose of migrating, modernizing, or transforming Licensee’s specific set of source code of a specific size (measured in lines of code) determined in the license file obtained from Mobilize.Net that is generated on a per customer per application set and that is required for the Mobilize Software to operate properly.
5. Payment Terms:
- 1.Initial Term License and Support and Maintenance Fee. Licensee will pay Mobilize the corresponding amount based on Mobilize Price List valid on the Effective Date. If License Key is deemed to be a TRIAL License Key, there is no cost to Licensee.