ENTERPRISE+ BETA PROGRAM TERMS OF SERVICE (SaaS)
ENTERPRISE+ BETA PROGRAM
TERMS OF SERVICE (SaaS) April 2018
JFROG IS PLEASED TO INVITE YOU TO PARTICIPATE IN OUR ENTERPRISE + BETA PROGRAM. PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS BETA TESTING SOFTWARE AS A SERVICE TERMS OF SERVICE (“TOS”). BY REGISTERING, ACCESSING OR USING THE BETA SERVICE (AS DEFINED BELOW), YOU HEREBY: (I) ACCEPT AND AGREE TO THESE TERMS OF SERVICE; AND (II) REPRESENT THAT YOU ARE ACTING ON BEHALF OF A COMPANY, ORGANIZATION OR ENTITY, AND THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY, ORGANIZATION OR ENTITY TO THE TERMS AND CONDITIONS SET FORTH HEREIN. FOR THE PURPOSES OF THIS AGREEMENT, “YOU” SHALL APPLY BOTH TO YOU AND SUCH COMPANY, ORGANIZATION OR ENTITY.
1. BETA DISCLAIMER.
THE BETA SERVICE PROVIDED TO YOU UNDER THESE TOS IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND IS STILL IN TESTING. THE BETA SERVICE MAY STILL CONTAIN DEFECTS, FOR WHICH WE HOPE TO OBTAIN FEEDBACK FROM YOU AND IDENTIFY BUGS, ERRORS AND PERFORMANCE DEFICIENCIES. ALTHOUGH THE BETA SERVICE IS NOT TO BE USED IN PRODUCTION, AND YOU ARE HEREBY ADVISED TO SAFEGUARD YOUR DATA AND HOLD A BACKUP OF YOUR REPOSITORIES.
2. DESCRIPTION OF THE BETA SERVICE.
2.1. Beta Software. The Enterprise+ is a bundle of various tools and JFrog proprietary software, providing you with an end-to-end platform for the management and distribution of your software. This includes: JFrog Artifactory – High Availability version, JFrog Xray, JFrog Mission Control (Insights), JFrog Replicator, JFrog Distribution and JFrog Access Federation (collectively, the “Beta Software”).
2.2. Beta Service. During the term of the Beta Program and subject to the terms and conditions of this TOS, you will be granted with a non-exclusive, non-transferable, limited and fully revocable right to use the Beta Software and store your data on a dedicated server hosted on Google Cloud Platform for internal testing and evaluation (the “Beta Service”).
2.3. On-Premises Software. In order to fully utilize the functionality of the Beta Software, you will also be granted with a limited, revocable, nontransferable, non-sublicensable, nonexclusive license to make use of JFrog Artifactory Edge, for internal testing and evaluation (the “Edge License”). The Edge License allows you to install such number of instances of Artifactory Edge as set forth in Exhibit A attached hereto and use it on a single specific hardware system at any time per each such instance. Other than the rights expressly set forth in this section, no other right or interest whatsoever in or relating to the Software is transferred or granted to you.
3. RESTRICTIONS ON USE.
Except as expressly permitted by this Agreement, you shall not, nor permit anyone else to, directly or indirectly:
3.1.1. allow others to access or use the Beta Service;
3.1.2. attempt to decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, programming or interoperability interfaces of the Beta Service;
3.1.3. modify, convert, alter, change, manipulate, divide, part or revise the Beta Service, or any part thereof, including for the removal of doubt separate Beta Software;
3.1.4. assign, sublicense, resell, transfer, distribute, pledge, loan, lease, market, rent, or use the Beta Service in any service bureau arrangement, facility management or third party training, or otherwise share your rights under these TOS to any third party;
3.1.5. delete or in any manner remove or alter our trade names, copyright, trademarks, service marks, logos, domain names, and other distinctive brand features and notices;
3.1.6. use the Beta Service to transmit, distribute, or otherwise make available through or in connection with the Beta Service, any computer code, artifact, component or any software to any third party which is not you or your affiliate;
3.1.7. transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or in connection with the Beta Software; and
3.1.8. use the Beta Service for any purpose or in any manner involving ‘Protected Health Information’ under HIPAA if you are (or become) a ‘Covered Entity’ or ‘Business Associate’ under HIPAA.
3.2. For the removal of doubt, the foregoing restrictions shall also apply to your use of Artifactory Edge.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1. For the purpose of this Agreement, “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.
4.2. All right, title, and interest in and regarding the Beta Software, Artifactory Edge, Beta Service and any related documentation, including associated Intellectual Property Rights, are and shall remain with us, our affiliates, subsidiaries and/or their respective suppliers and licensors, and except, as expressly set forth herein, no other rights or licenses are granted or to be implied under any of JFrog’s Intellectual Property Rights. These TOS do not convey to you an interest in or to the Beta Service or Artifactory Edge, but only a limited right of use.
4.3. Third Party Components. Artifactory Edge 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 (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.
5. CUSTOMER DATA
5.1. Operation of the Beta Service and the provision of the services hereunder require us to monitor traffic and content (including encrypted content) transmitted by your networks and require you to provide, upload, transmit, or make accessible to us such data (collectively, the “Customer Data”). You hereby agree that
5.2. we will collect, monitor, store and use the Customer Data, on your behalf, in order to provide the Beta Services. For the removal of doubt, you will control the access to the Customer Data and have full administrative control over such data, including the right to view or modify it. As between you and us, the intellectual property rights and all other rights, title and interest of any nature, in and to the Customer Data, which may be stored on your database, are and shall remain your exclusive property. We shall be considered granted a non-revocable, non-exclusive, assignable, sub-licensable, royalty-free license to use, in accordance with any applicable privacy laws, the Customer Data in order to provide the Beta Services. Except as set forth herein, nothing in these TOS shall be construed as transferring any rights, title or interests in the Customer Data to us or any third party.
5.3. For the removal of doubt, we will not have any obligation to retain your Customer Data following the lapse of the Term.
6. FEEDBACK; COLLECTION OF DATA; SUPPORT.
6.1. As part of your participation in our Enterprise + Beta Program, we ask that you provide us with reports, opinions, suggestions, comments, requests and feedback with respect to the Beta Software and your use thereof (collectively, “Feedback”), as well as consult with our representatives from time-to-time concerning the performance of the Beta Software.
6.2. You hereby agree that we will be free to use your Feedback for the development of the Beta Software and other products of ours, and hereby agree that any right, title and interest to any Feedback relating to the Beta Software or any inventions relating to an improvement, modification or enhancement of the Beta Software conceived in, or made as a result of your performance of this Agreement, shall become our exclusive property. To the extent that you can not assign to us such rights under applicable law, you hereby grant us with an-exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into the Beta Software and into any of other products, technologies or services we have or may have.
6.3. You further agree and warrant that all such Feedback shall be deemed to be non-confidential and is not subject to any license terms that would purport to require us to comply with any additional obligations with respect to any current or future products, technologies or services that incorporate any Feedback.
6.4. You agree that during the Term we may collect, use, store and transmit technical and related information that is being collected from your use of the Beta Services or Artifactory Edge, including information that may identify your computer (including the Internet Protocol Address), 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 services hereunder (“Analytics Information”), provided that any data used in such event logs shall be used in the aggregate, anonymously and your identity may not be derived from such data. The Company is and shall remain the sole owner of the Analytics Information.
6.5. Should you encounter any bugs, errors, deficiencies, lack of functionality or other problems in the Beta Service, please let us know immediately, as to enable us to provide corrections for such errors, at our discretion. You can submit your requests and issues to firstname.lastname@example.org. Your help and assistance in this matter is highly appreciated.
7.1. 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, products, this Beta Agreement and the Software (“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.
7.3. Notwithstanding any other agreement between the parties, you hereby agree that we may identify you as a participant in the Beta Program and use your name and logo in our website and in promotional materials in connection with such participation.
8. NO WARRANTY.
8.1. THE BETA SERVICE 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. WE DO NOT GUARANTEE ANY UPTIME NOR WILL WE PROVIDE YOU WITH ANY CREDITS OR COMPENSATION FOR YOUR INABILITY TO ACCESS OR USE THE BETA SERVICES.
8.2. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL USE OF THE BETA 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 BETA 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 BETA SOFTWARE (INCLUDING ANY REPORTS, LISTS, GRAPHS, INSIGHTS, STATISTICS, ETC.).
9. 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.
10. TERM; TERMINATION.
10.1. This Agreement shall be in effect for a period commencing on your acceptance hereof and shall terminate upon the earlier to occur of: (i) Within five (5) days of the receipt by a party of a written notice to that effect, for any reason or no reason; (ii) Immediately upon the breach of any provision of this Agreement by you; or (iii) on the final date of the Beta Program as shall be indicated by us (the “Term”)
10.2. Upon expiration or termination of this Agreement: (i) any license and right granted to you herein shall terminate; (ii) you shall immediately cease to use and access the Beta Service; and (iii) you shall remove Artifactory Edge, documentation and any files, documents and information relating thereto, from all hard drives, networks and other storage media and destroy all copies thereof in your possession or under your control.
11.1. Compliance with Laws. you shall be solely responsible to comply, at your 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 your use of the Beta Software.
11.2. Governing Law. This Agreement 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 Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
11.3. 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.
11.4. Publicity Rights. We may identify you as a participant in this Beta program in our promotional materials, website or other public communications. You hereby grant us a limited and revocable world-wide license to use your company name and logo in connection therewith. You may request that we stop doing so by submitting an email to email@example.com at any time. Please note that it may take us up to 30 days to process your request.
11.5. 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.
11.6. Injunctive Relief. Since a breach by you of any of the obligations or undertakings contained herein may result in irreparable and continuing damage to us 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 Agreement, and therefore we will 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 Agreement but shall be in addition to all other remedies available at law or in equity.
11.7. Entire Agreement; Assignment. You agree that this Agreement is a complete and exclusive statement of the agreement between us and supersedes any proposals or prior agreement, oral or written, and any other communications relating to the subject matter of this Agreement. Any attempt by you to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void ab initio.