END USER LICENSE AGREEMENT
THIS ENTERPRISE+ END USER LICENSE AGREEMENT (THE “AGREEMENT” OR “EULA”) IS MADE BETWEEN YOU AND JFROG LTD. (“JFROG” OR “WE” OR THE “COMPANY”). IF YOU ARE ENTERING INTO THIS AGREEMENT NOT AS AN INDIVIDUAL BUT ON BEHALF OF YOUR EMPLOYER OR ANY OTHER LEGAL ENTITY THEN “YOU” MEANS SUCH THIRD PARTY; AND YOU HEREBY REPRESENT THAT YOU HOLD THE AUTHORITY TO REPRESENT SUCH ENTITY AND TO BIND IT TO THIS AGREEMENT. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. JFROG AND YOU MAY BE REFERRED TO IN THIS AGREEMENT, INDIVIDUALLY, AS “PARTY” AND, COLLECTIVELY, AS “PARTIES.”
1. DESCRIPTION OF THE SOFTWARE.
- The JFrog 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 (the “Software”), JFrog Artifactory Edge, JFrog Xray – High Availability, JFrog Mission Control, JFrog Insight, JFrog Distribution and JFrog Access and certain additional features (collectively, the “E+ Features”). The Software, together with the E+ Features, shall be defined as the “E+ Software”. The term “E+ Software” includes all 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.
2. SOFTWARE LICENSE.
- 1. Subject to the terms and conditions of this EULA we hereby grant you, and you hereby accept, a perpetual, limited, revocable, nontransferable, non-sublicensable, and 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”).
- 2. The License allows you to install such number of instances of the E+ Software as set forth in the Order Form. Other than the rights expressly set forth in Section 2.1 above, 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:
- 1. copy, reverse engineer, decompile, or disassemble the E+ Software or any part of it or otherwise attempt to reconstruct or discover any source code or underlying ideas or algorithms of the E+ Software;
- 2. modify, convert, alter, change, manipulate, divide, part or revise the E+ Software, or any part thereof;
- 3. assign, sublicense, resell, transfer, distribute, pledge, loan, lease, market, rent, or use the E+ Software in any service bureau arrangement, facility management or third-party training, or otherwise share your rights under this Agreement to any third party;
- 4. delete or in any manner remove or alter trade names, copyright, trademarks, service marks, logos, domain names, and other distinctive brand features and notices within or in connection with the E+ Software;
- 5. export the E+ Software in violation of export administration regulations of the United States or any other applicable country.
4. SUBSCRIPTION TERMS; SUBSCRIPTION FEES; MAINTENANCE.
- 1. You can commence use of the E+ Software by purchasing a subscription for such number of licenses and for a certain duration of time as shall be set forth in an order form (each a “Subscription” and “Order Form”, respectively). A Subscription entitles you to: (i) use the E+ Software under the terms and conditions set forth herein; and (ii) receive Maintenance (as defined in below) for a certain copy of the E+ Software during the applicable Subscription Term. In this Agreement, “Subscription Term” means the period specified in the Order Form.
- 2. Each Subscription expires at the end of the applicable Subscription Term. You shall pay the fees for each Subscription as specified at the time of purchase of such Subscription in an Order Form. The Subscription fee for any additional Subscription will be according to JFrog’s then-current applicable Subscription fee.
- 3. All amounts payable under this EULA are exclusive of sales, use, value-added, withholding, and other taxes and duties. You will pay all taxes and duties assessed in connection with this EULA by any authority, except for taxes payable on JFrog’s net income. If any such tax or duty must be withheld or deducted from any payment made by you under this Agreement, you shall gross-up such payment by an amount that will ensure that after applying the required withholding or deduction, JFrog shall receive an amount equal to the payment otherwise required by it.
- 4. During a Subscription Term, JFrog shall provide you with (i) updates, upgrades and enhancements made generally available from time to time; (ii) Service Level Agreement (“SLA”) based support as shall be defined in the applicable Order Form (“Maintenance”); and (iii) a limited, personal, revocable, nontransferable, non-sublicensable and nonexclusive license to, solely during the applicable Subscription Term, make internal use of the E+ Features only in binary executable form, for the regular and standard purposes the E+ Software was designed for, and only as authorized in this EULA.
- 5. To the extent the relevant Subscription Term expires, you may continue to use the latest version of the Software used by you prior to such termination or expiration, under the terms and conditions set forth herein, however, you will not be entitled to receive any Maintenance or to continue your use of the E+ Features.
- 6. We may offer a free trial subscription to the E+ Software (“Trial Version“). The Trial Version, if any, shall commence on the date that we issue you with the applicable license and will conclude thirty (30) days thereafter, unless otherwise indicated by us, at our sole discretion (the “Trial Period”). You acknowledge and agree that the terms of this EULA are applicable and binding upon you during the Trial Period and that: (i) to the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to Trial Version, including any warranty, and indemnity obligations; and (ii) we reserve the right to terminate your right to use the Trial Version during the Trial Period at any time and for any reason in our sole discretion, without liability to you.
5. INTELLECTUAL PROPERTY RIGHTS.
- 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.
- 2. All right, title, and interest in and regarding the E+ Software, including associated Intellectual Property Rights, are and shall remain with JFrog, 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.
- 3. If you contact JFrog with feedback data (e.g., questions, comments, suggestions or the like) regarding the E+ 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 into its products.
- 4. The E+ 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 of the E+ Software as well as at the JFrog website (the “About Box“) and may be updated from time to time upon the release of updates or upgrades to the E+ Software.
- 5. JFrog’s marks and logos and all other proprietary identifiers used by JFrog in connection with the E+ Software (“JFrog Marks”) are all trademarks and/or trade names of JFrog and/or its affiliates. No right, license, or interest to the JFrog Marks is granted hereunder, and any use thereof shall be limited to the terms of the JFrog Brand Guidelines available at https://jfrog.com/brand-guidelines/.
- 6. The E+ 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 E+ SOFTWARE OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES, OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF JFROG’S TRADE SECRET RIGHTS.
- 7. We may identify you as a JFrog customer 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 any time.
- 1. Each party (the “Receiving Party”) agrees to regard and preserve as confidential all non-public information related to the business activities of the other (the “Disclosing Party”) that is either designated as confidential or was disclosed in circumstances of confidence, or would be understood by the Parties, exercising reasonable business judgement, to be confidential (“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 or service providers 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. Upon the earlier of: (i) the termination or expiration of this Agreement and (ii) the request of the Disclosing Party, the Receiving Party shall promptly return or destroy all of the Confidential Information of the Disclosing Party at its possession and will erase all such information from its systems, computer networks and other electronic equipment, provided however, that the Receiving Party may retain copies of the Confidential Information: (i) to the extent required to comply with applicable legal and regulatory requirements; and (ii) any information which is electronically stored in automatic backup, and provided further that such Confidential Information will remain subject to the terms and conditions of this Agreement.
- 3. You agree that JFrog may collect, store and make use of technical and statistical information that is associated with your use of the E+ Software (“Analytical Data”). The Analytical Data includes the Internet Protocol address of your Artifactory instance(s), browser type, operating system, and application usage. Analytical Data is gathered periodically to facilitate the provision of the E+ Software and the Maintenance hereunder, as well as for enable us to provide you with other services. Any Analytical Data gathered shall be used in the aggregate, anonymously and your identity may not be derived from such data.
7. LIMITED WARRANTY; LIMITED LIABILITY.
- 1. We represent and warrant that for a period of three (3) months following the effective date of a Subscription (the “Warranty Period”), the applicable E+ Software will substantially conform to the description of the E+ Software, its applicable specifications and documentation (the “Warranty”). Any Warranty claim hereunder must be made in writing during the Warranty Period.
- 2. During the Warranty Period, to the extent that any portion of the E+ Software does not conform to the Warranty, we shall provide reasonable commercial efforts to correct, promptly after being notified thereof, all errors affecting the operation of the E+ Software and/or any significant feature(s) thereof, as well as any non-conformance of the E+ Software with the documentation. In the event we determine, at our discretion, that we cannot remedy such errors, we may terminate the Subscription and refund the fees paid for such Subscription. This is your sole remedy with respect to the Warranty.
- 3. The warranty provisions of Sections 7.1 and 7.2 above shall not apply to any E+ Software: (i) that was installed, used or operated in any way other than in accordance with the applicable specifications or documentation; (ii) which was modified, changed, adjusted or altered in any way, without our prior written approval from JFrog; (iii) which was used on an operating environment (including but not limited to appropriate hardware and software platform and configuration) that was not specified in the applicable specifications or documentation; (iv) was caused to be defective or damaged due to improper testing, operation, maintenance, or installation; or (v) which was used by a third party not authorized to use the E+ Software under this EULA.
- 4. We further represent and warrant that any software or code provided by us shall not intentionally or knowingly contain any code, programs or mechanisms that disrupt, modify, delete, harm or otherwise impede the operation of Your systems.
- 5. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE E+ SOFTWARE IS 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.
- 6. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL USE OF THE E+ 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 E+ 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 E+ SOFTWARE (INCLUDING ANY REPORTS, LISTS, GRAPHS, INSIGHTS, STATISTICS, ETC.) AS WELL AS FOR ANY DECISIONS YOU MAKE BASED ON SUCH RESULTS.
- 7. IN NO EVENT SHALL EITHER PARTY 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 IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE GENERALITY OF THE ABOVE, IF A PARTY IS 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 THE AMOUNT PAID OR DUE BY YOU TO US FOR THE USE OF THE E+ SOFTWARE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. THIS SECTION 7.7 SHALL NOT APPLY TO A BREACH OF EITHER PARTY’S CONFIDENITLIAY OBLIGATIONS, YOUR BREACH OF THE RESTRICTIONS SET FORTH IN SECTION 3 OR OUR INDEMNIFICATION OBLIGATION UNDER SECTION 8.
8. IP INDEMNIFICATION
- 1. Infringement Claim. We shall defend, indemnify and hold you harmless from and against all damages, costs and expenses awarded (including reasonable attorneys’ fees) to an unaffiliated third party as a result of any claim, suit or proceeding based on a claim that the E+ Software, when used as authorized hereunder, infringes any copyright, trademark, patent or other intellectual property right (an “Infringement Claim”). In the event that an Infringement Claim is made or, in our sole judgment, is likely to be made, we shall use reasonable commercial efforts, at our own expense and discretion, to either: (i) procure for you the right to continue the use of the E+ Software; (ii) replace the infringing software with non-infringing software programs and support materials of equivalent function and performance; (iii) modify the E+ Software so that it becomes non-infringing without detracting from function or performance; or (iv) terminate this Agreement upon written notice and refund the Subscription fees paid by you, prorated to the remaining Subscription Term. This is your sole and exclusive remedy for any Infringement Claim
- 2. Indemnification Process. In the event an Infringement Claim is brought against you, you shall promptly provide us written notice of the claim, provided, that your failure to notify us shall only excuse our indemnification obligations to the extent the we were materially prejudiced thereby. We, at our option, are entitled to assume the sole control of the defense and settlement of the claim. Neither Party shall 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 the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, we can enter into a settlement without your consent, to the extent the only obligation associated with you thereunder is solely of monetary nature.
9. TERM; TERMINATION.
- 1. This EULA is effective upon the earliest of the following occurrences: (i) downloading the E+ Software; (ii) installing the E+ Software; (iii) activation of a license or otherwise using the E+ Software; (iv) your consummation of the transaction for the purchase of the E+ Software; or (vi) your acceptance and agreement to the terms and conditions of this EULA in any other way. This EULA will remain in force and effect until terminated in accordance with these terms and will continue to govern, mutatis mutandis, your use of the Software following the termination or expiration of a Subscription.
- 2. Either Party may terminate this EULA upon the material breach of any term of this EULA (including without limitation, your obligations to pay all Subscription fees when due and payable) by the other Party which is not cured within thirty (30) days following the delivery of a written notice.
- 3. Either party may terminate this Agreement if the other party: (i) ceases operation without a successor; or (ii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).
- 4. Upon termination of this EULA, all Licenses granted herein will terminate and You: (i) shall immediately cease to use the E+ Software, (ii) shall pay to JFrog any amounts owed to JFrog under any Order Form; (ii) shall remove the E+ Software from all hard drives, networks and other storage media and destroy all copies of the E+ Software in your possession or under your control, and to the extent requested by JFrog, provide a certification to that effect within ten (10) business days.
- 1. Compliance with Laws. Each Party shall be 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 its rights and obligations hereunder.
- 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 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.
- 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.
- 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.
- 5. Injunctive Relief. Since a breach by a Party of any of its confidentiality obligations contained herein or any unlawful action made in connection with intellectual property rights, may result in irreparable and continuing damage to the other party for which there may be no adequate remedy at law, the breaching Party acknowledges and agrees that money damages will not be a sufficient remedy for any such breach or actions, and therefore the damaged Party will be entitled, in addition to money damages, to specific performance and injunctive relief and any other appropriate equitable remedies in connection therewith. Such remedies shall not be deemed to be the exclusive remedies for such events, but shall be in addition to all other remedies available at law or in equity.
- 6. 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. Either Party may assign this EULA to (A) any legal entity or company which either party 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. The Party assigning this Agreement shall provide the other Party with a notice to that effect as soon as practical.
- 7. Changes to this EULA. This EULA including any referenced policies and other documents, may be amended, updated or changed by us, from time to time. Unless expressly stated otherwise, any modification shall become effective upon the renewal of the respective Subscription. For the avoidance of doubt, and unless otherwise agreed upon in writing, any Subscription is subject to the version of the EULA in effect at the time of the Order Form.