ARTIFACTORY COMMUNITY EDITION FOR C/C++ EULA
JFROG LTD. ARTIFACTORY COMMUNITY EDITION FOR C/C++
END USER SOFTWARE LICENSE AGREEMENT
PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END USER SOFTWARE LICENSE AGREEMENT (“EULA”) BEFORE PROCEEDING WITH OPERATION OR USE OF JFROG’S SOFTWARE KNOWN AS ARTIFACTORY COMMUNITY EDITION FOR C/C++ (“SOFTWARE”) WHICH IS LICENSED HEREUNDER FOR NO CHARGE (NOT SOLD). BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS EULA. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, THEN CLICK THE “NO” BUTTON BELOW TO TERMINATE SOFTWARE OPERATION OR DO NOT USE OR INSTALL THE SOFTWARE. DO NOT INSTALL OR USE THE SOFTWARE UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD, AND AGREED TO THE TERMS AND CONDITIONS OF THIS EULA. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW. THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR AN ENTITY (TOGETHER WITH ITS RESPECTIVE AFFILIATES, SUBSIDIARIES, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS AND EMPLOYEES AND AGENTS (IF EXISTS AND TO THE EXTENT APPLICABLE) “YOU”, “YOUR”, OR “LICENSEE”) AND JFROG LTD. (“WE”, “LICENSOR” or “JFROG”) REGARDING YOUR USE OF THE SOFTWARE. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS SET FORTH HEREIN. FOR THE PURPOSES OF THIS AGREEMENT, “YOU” SHALL APPLY BOTH TO YOU AND SUCH ENTITY. YOU FURTHER AGREE TO ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE.
1. LICENSE GRANT.
1.1. Subject to terms and conditions of this EULA, Licensor hereby grants to You, and You accept, a perpetual, limited, personal, revocable, nontransferable, non-sublicensable, nonexclusive license to make internal use of the Software only in binary executable form, for the regular and standard purposes the Software was designed for, only as authorized in this EULA (the “License”). The term “Software” includes the Software and its binary code, compilation of data, or visual display resulting from the operation of the Software, and any associated materials, specifications and documentation.
1.2. The Software is licensed as a single product. Other than the rights expressly set forth in Section 1.1 above, no other right or interest whatsoever in or relating to the Software is transferred or granted to You.
1.3. The Software should be installed in accordance with the instructions of the Licensor. Except as expressly permitted by this EULA, You shall not, nor permit anyone else to, directly or indirectly (i) copy, reverse engineer, decompile, or disassemble the Software or any part of it or otherwise attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software, (ii) modify, convert, alter, change, manipulate, divide, part or revise the Software, or any part thereof, (iii) delete or in any manner remove or alter Licensor’s trade names, copyright, trademarks, service marks, logos, domain names, and other distinctive brand features and notices; (iv) export the Software in violation of export administration regulations of the United States or any other applicable country and (v) assign, sublicense, resell, transfer, distribute, pledge, loan, lease, market, rent, or use the Software in any service bureau arrangement, facility management or third party training, or otherwise share Licensee’s rights under this Agreement with any third party, except that Licensee may permit its third party contractors to use the Software on Licensee’s behalf (provided however, such third party contractors will continue to be bound by the terms of this Agreement and Licensee shall remain liable for any breach of the terms of this Agreement by such third party contractors). This EULA shall automatically terminate (subject to the survival provisions hereunder) upon occurrence of any of the events set forth in this Section 1.3 and any attempt to do any such events will be considered void and of no effect and will make available to JFrog legal remedies.
2. INTELLECTUAL PROPERTY RIGHTS.
2.1. For the purpose of this EULA, “Intellectual Property Rights” shall mean any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, modifications or corrections thereto, including all derivative works thereof, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
2.2. You further acknowledge and agree that between You and Licensor, all right, title, and interest in and regarding the Software, including associated Intellectual Property Rights, are and shall remain with Licensor, its affiliates, subsidiaries and/or their respective suppliers and licensors.
2.3. If You contact JFrog with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Feedback”), such Feedback shall be deemed to be non-confidential, and JFrog shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback, in whole or in part, into the Software.
3. THIRD PARTY COMPONENTS.
3.1. The Software may use or include certain software, files, components and materials that are subject to open source and/or third party license terms (“Third Party Components”). A list of open sourced Third-Party Components is available as part of the documentation or at JFrog’s website at: www.jfrog.com (the “About Box“) and may be updated from time to time. With respect to any Third Party Component that is not open source, We will pass through any warranty We receive from the provider of such Third Party Component.
3.2. The licenses of certain Third Party Components may require the provision of the source code of these Third Party Components. With respect to any licenses of Third Party Components that require the provision of the open source code of these Components, JFrog will provide to You upon Your request a machine-readable copy of the corresponding source code. For that purpose, You should contact JFrog at: email@example.com. For the removal of doubt, under no circumstances shall the Software or any portion thereof (except for the applicable Third Party Components) be deemed to be “open source” or “publicly available” software.
4. TERM; TERMINATION.
4.1. This EULA is effective upon the earliest of the following occurrences: (i) by agreement electronically in any manner; (ii) by downloading the Software; (iii) by installing the Software; (vi) by using the Software; or (v) Your acceptance and agreement to the terms and conditions of this EULA in any other way. This EULA will remain in force until terminated in accordance with this EULA.
4.2. Licensor may terminate this EULA: (i) for convenience, upon a thirty (30) days prior notice; or (ii) immediately with no further action or notice upon the breach of any term of this EULA by the Licensee which is not cured with seven (7) business days following the delivery of written notice to You.
4.3. Upon termination of this EULA by Licensor, the license granted herein will terminate and You: (i) shall immediately cease to use the Software, (ii) shall remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in Your possession or under Your control. Upon JFrog’s request You shall, within seven (7) days, certify destruction of all full or partial copies of the Software, documentation and related materials provided by JFrog.
4.4. Termination of this EULA for any reason will not Licensee’s obligations duties and acknowledgement of rights contained under the provisions of the License Grant (Section 1), Intellectual Property Rights (Section 2), Limited Warranty, Limited Liability, IP Indemnification (Section 6), Confidentiality and Privacy (Section 7) and Miscellaneous (Section 8).
5. NO WARRANTY
5.1. THE SOFTWARE AND DOCUMENTATION ARE LICENSED TO YOU ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE.
5.2. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL USE OF THE SOFTWARE IS AT YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR: (I) ANY DAMAGE TO, WITHOUT LIMITATION, ANY COMPUTER NETWORK, SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SOFTWARE; (II) FOR ASSUMING THE COST OF ALL NECESSARY SERVICING, REPAIR AND/OR CORRECTION; AND (III) FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE.
6. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY LOSS OR DAMAGE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS AND BUSINESS INTERRUPTION), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE GENERALITY OF THE ABOVE, IF WE ARE FOUND TO BE LIABLE BY A FINAL JUDICIAL RULING THE CUMULATIVE LIABILITY THEREUNDER FOR ANY CLAIM RELATING TO THE SOFTWARE AND TO THIS EULA, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED US $50.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7. IP INDEMNIFICATION. Licensor shall defend, indemnify and hold harmless Licensee and any Licensee affiliate (the “Indemnified Party”) from and against any and all damage, cost and expenses finally awarded or otherwise incurred (including reasonable attorneys’ fees) to an unaffiliated third party as a result of any claim, suit or proceeding based on a claim that the use of any Software or services furnished by Licensor under this Agreement constitutes an infringement of any copyright, trademark, patent or other intellectual property right (an “Infringement Claim”). In the event any Infringement Claim is made or, in Licensor’s sole judgment, is likely to be made, Licensor shall use reasonably commercial efforts, at its own expense and discretion, either: (i) procure for Licensee the right to continue the use the Software; (ii) replace the infringing Software with non-infringing software programs and support materials of equivalent function and performance; (iii) modify the Software so that it become non-infringing without detracting from function or performance; or (iv) terminate this Agreement upon written notice. The Indemnified Party shall promptly give written notice of the claim to the Licensor, provided, that, the Indemnified Party’s failure to notify the Licensor shall only excuse the Licensor’s indemnification obligations to the extent the Licensor was materially prejudiced thereby. The Licensor, at its option, will be entitled to assume the sole control of the defense and settlement of the claim. Notwithstanding the above, the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided, that such participation shall be at the Indemnified Party’s own expense. The Indemnified Party shall not consent to the entry of any judgment or enter into any settlement or compromise with respect to any Infringement Claim without the prior written consent of Licensor which shall not be unreasonably withheld. The foregoing indemnification obligation of Licensor will not apply: (a) if the Software is modified by Licensee; (b) if the Software is combined with other products, applications, or processes not authorized by Licensor but solely to the extent the alleged infringement is caused by such combination; or (c) to any unauthorized use of the Software. This is the sole and exclusive remedy for any Infringement Claim.
8. CONFIDENTIALITY AND PRIVACY.
8.1. Trade Secrets. The Software contains trade secrets and proprietary know-how that belong to JFrog and it is being made available to You in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS EULA, MAY BE ACTIONABLE AS A VIOLATION OF JFROG’S TRADE SECRET RIGHTS.
8.2. Mutual Confidentiality Each party (the “Receiving Party”) agrees to regard and preserve as confidential all information related to the business activities of the other (the “Disclosing Party”), its clients, suppliers and other entities with whom the Disclosing Party does business that may be obtained by the Receiving Party from any source or may be developed as a result of this Agreement (“Confidential Information”). The Receiving Party agrees to hold Confidential Information in trust and confidence for the Disclosing Party and not to disclose Confidential Information to any person, firm or enterprise, or use any Confidential Information for its own benefit or the benefit of any other party, unless authorized by the Disclosing Party in writing, and to limit access and disclosure of such Confidential Information to the Receiving Party’s personnel on a “need to know” basis only. Confidential Information does not include information that is (a) previously known to the Receiving Party, free from any obligation to keep it confidential, (b) publicly disclosed by the Disclosing Party either prior to or subsequent to the receipt by the Receiving Party of such information, (c) independently developed by the Receiving Party without any access to Confidential Information, or (d) rightfully obtained from a third party lawfully in possession of Confidential Information who is not bound by confidentiality obligations to the Disclosing Party. The Receiving Party may disclose Confidential Information if the Receiving Party is required to do so under applicable law, rule or order; provided that the Receiving Party, where reasonably practicable and to the extent legally permissible, provides the Disclosing Party with prior written notice of the required disclosure. At the request and option of the Disclosing Party, or in the event of termination or expiration of this Agreement (or any part thereof), the Receiving Party agrees to promptly: (a) return to the Disclosing Party the Confidential Information; or (b) destroy or permanently erase the Confidential Information and, if the Disclosing Party requests that Confidential Information be destroyed or permanently erased, then the Receiving Party shall acknowledge in writing that all such Confidential Information has been destroyed or permanently erased within ten (10) days of such destruction or permanent erasure. Notwithstanding the foregoing, the Receiving Party may retain copies of the Confidential Information to the extent required to comply with applicable legal and regulatory requirements, provided, however, that such Confidential Information will remain subject to the terms and conditions of this Agreement. For the avoidance of doubt, the Software and related documentation shall be considered Confidential Information for purposes of this Section.
8.4. Consent to Collection and Use of Data. In addition to the foregoing, You agree that JFrog may collect, use, store and transmit technical and related information (including the Internet Protocol Address on which the Software is installed), browser type, operating system, application usage (including but not limited to successful installation and/or removal), software, software usage and peripheral hardware, that may be gathered periodically to facilitate the provision of the Software, Software updates, Software product support and other services to You, including online services provided that any data used in such event logs shall be used in the aggregate, anonymously and Licensee’s identity may not be derived from such data.
8.5. Publicity Rights. We may identify You as a user of the Software in our promotional materials, website or other public communications. You hereby grant us a limited and revocable world-wide license to use Your entity’s name and logo in connection therewith. You may request that We stop doing so by submitting an email to firstname.lastname@example.org at any time. Please note that it may take us up to 30 days to process such request.
8.6. Trademarks. “JFrog”, “JFrog®”, “Artifactory”, “Artifactory®” and other JFrog’s marks and logos and all other proprietary identifiers used by JFrog in connection with the service (“JFrog Trademarks”) are all trademarks and/or trade names of JFrog and/or its affiliates, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the website belong to their respective owners (“Third Party Marks”). JFrog is not sponsored by, endorsed by or affiliated with the holders of these trademarks. The Third Party Marks are used by JFrog only to refer to software and other technology of third parties with which JFrog’s technology is compatible. JFrog’s use of these Third Party Marks in no way indicates any relationship between JFrog and the holders of these trademarks. Rather, any such usage of Third Party Marks by JFrog is considered nominative fair use under trademark law. No right, license, or interest to the JFrog Trademarks and the Third Party Marks is granted hereunder, and Licensee agrees that no such right, license, or interest shall be asserted by Licensee with respect to the JFrog Trademarks or Third Party Marks and therefore Licensee shall avoid using any of those marks.
9.1. Compliance with Laws. You shall be solely responsible to comply, at its own expense, with local, state, national and international laws and regulations, including without limitation laws regarding data protection, security and privacy and with all governmental approvals, licenses, permits and authorizations which may be required with regards to the Licensee’s use of the Software
9.2. Governing Law. This EULA shall be construed and governed in accordance with the laws of the State of Israel. without giving effect to any principles of conflicts of laws thereof, and the competent courts of Tel-Aviv shall have sole and exclusive jurisdiction over all disputes between the parties, and You further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You hereby agree to service of process in accordance with the rules of such courts. In any action or proceeding to enforce rights under this EULA, the prevailing party shall be entitled to recover costs and attorneys’ fees.
9.3. Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
9.4. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
9.5. Injunctive Relief. Since a breach by You of any of the obligations or undertakings contained herein may result in irreparable and continuing damage to JFrog for which there may be no adequate remedy at law, You acknowledge and agree that money damages will not be a sufficient remedy for any breach by You of this EULA, and therefore JFrog shall be entitled, in addition to money damages, to specific performance and injunctive relief and any other appropriate equitable remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this EULA but shall be in addition to all other remedies available at law or in equity.
9.6. Entire Agreement; Assignment. You agree that this EULA is a complete and exclusive statement of the agreement between licensee and licensor and supersedes any proposals or prior agreement, oral or written, and any other communications relating to the subject matter of this EULA. Any attempt by Licensee to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void ab initio. This EULA shall be binding upon and inure to the benefit of each party’s heirs and legal representatives. We may assign this EULA to (A) any legal entity or company which We, directly or indirectly (i) owns or controls, (ii) is owned or controlled by or (iii) is under common ownership or control with, or (B) a successor in a merger, acquisition or other consolidation including, without limitation, the sale of all or substantially all of its stock or assets, or business to which this EULA applies. * * * * * * * *