JFrog Consulting Services Agreement

Last Updated: April 14, 2023

THIS JFROG CONSULTING SERVICES AGREEMENT (THE “AGREEMENT”) IS MADE BETWEEN JFROG ENTITY DEFINED BELOW (“JFROG”), ON BEHALF OF ITSELF AND ITS AFFILIATES, AND YOU (“CUSTOMER”), ON BEHALF OF ITSELF AND ITS AFFILIATES. PLEASE CAREFULLY READ THIS AGREEMENT BEFORE EXECUTING A SCOPE OF WORK THAT REFERENCES THIS AGREEMENT. BY EXECUTING A SCOPE OF WORK THAT REFERENCES THIS AGREEMENT, YOU HEREBY: (I) ACCEPT AND AGREE TO THIS AGREEMENT; AND (II) REPRESENT THAT IF YOU ARE ACTING ON BEHALF OF A COMPANY, ORGANIZATION OR LEGAL ENTITY, THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY, ORGANIZATION OR LEGAL ENTITY TO THIS AGREEMENT. JFROG AND CUSTOMER MAY BE REFERRED TO IN THIS AGREEMENT, INDIVIDUALLY AS “PARTY” AND COLLECTIVELY AS “PARTIES.”

1. DEFINITIONS.
   Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 1.
   1. “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any jurisdiction or country. JFrog IP shall in no case include Customer’s Confidential Information or Data.
2. DUTIES AND SERVICES.
   1. Customer hereby engages JFrog, acting as an independent contractor, to perform services, as described on the Statement of Work (“SOW”) (the “Services”) subject to and made a part of this Agreement by reference.
   2. In the event of a conflict between any term of this Agreement and any SOW, this Agreement shall control, unless expressly stated otherwise in the applicable SOW.
   3. JFrog agrees to comply with Exhibit B, attached hereto and incorporated herein by reference, in the performance of Services under this Agreement.
3. COMPENSATION; FEES.
   1. In consideration for the Services, the Customer shall pay to JFrog the fees set forth in the SOW (the “Compensation”).
   2. All payments due under this Agreement from the Customer to JFrog shall be made in US Dollars and against an invoice issued in accordance with applicable law setting forth in detail the calculation of the costs in connection with the performance of the Services.
   3. The Customer shall pay the amount properly due and payable under each of JFrog’s invoices within thirty (30) days after the Customer’s receipt of the applicable invoice.
   4. Any other services not specified in the SOW shall be charged separately and shall be subject to terms and conditions as agreed upon in writing by the Parties.
   5. All sums payable under this Agreement are exclusive of VAT, withholding tax and all other taxes, duties, levies, imports and like matters imposed by any governmental authority (collectively, “Taxes”) which, if applicable, shall be paid by the Customer at the rate and in the manner prescribed by law. The Customer shall hold JFrog harmless for all Taxes which are levied or imposed by reason of the performance of Services under this Agreement solely to the extent Customer is required by law to pay such Taxes. If applicable law requires the Customer to withhold any taxes levied on payments to be made pursuant to this Agreement (the “Withholding Tax”), the prices set out in this Agreement shall be adjusted to compensate for such Withholding Tax, such that the net amounts received by JFrog after all such taxes are paid are equal to the amounts that JFrog would have been entitled to in accordance with this Agreement as if the Taxes did not exist. To the extent that any claims against JFrog by any tax authority (other than with respect to JFrog’s income taxes) arise out of the Services provided herein, the Customer shall defend, indemnify and hold harmless JFrog, its officers, directors, employees and agents, for any amounts due to taxing authorities. Upon request, the Customer shall provide to JFrog a certificate evidencing payment of any such taxes as indicated above.
4. TERMINATION.
   1. Each Party may terminate this Agreement upon prior written notice of 15 (fifteen) days (the “Notice Period”); provided however, that this Agreement shall continue to apply to any valid SOW that has not been separately terminated upon termination of this Agreement.
   2. Notwithstanding the generality of the foregoing, each Party may terminate this Agreement and/or any SOW immediately, in any of the circumstances set forth herein: (i) the other Party has breached any material provision hereof and/or in the respective SOW and has failed to remedy such breach within 30 days of the date of receipt of a written notice; or (ii) a receiver is appointed or applied for with respect to the other Party or its property or a petition in bankruptcy is filed by or against the other Party, or it makes an assignment for the benefit of creditors which has not been dismissed within 60 days.
   3. In the event of termination for any reason, whether initiated by the Customer or JFrog, the Customer shall pay JFrog any and all sums owed to JFrog together with any costs and expenses to which JFrog is committed, as of the date of such termination.
   4. Survival. The provisions of Sections 3, 4, 5, 6, 7, 8, and 10 of this Agreement shall survive the expiration of the Term or the termination of this Agreement (however so terminated).
5. CONFIDENTIALITY.
   1. Each Party acknowledges that in the course of their engagement hereunder, one party (the “Receiving Party”) may be exposed to the other party’s Confidential Information (as defined below) (the “Disclosing Party”).
   2. Confidential Information” means any information of a Party (“Discloser”), whether written, other tangible form or verbal, that is disclosed to or observed by the other Party (“Recipient”) in connection with this Agreement or other potential business relationship between the Parties, which at the time of disclosure is marked as being “Confidential” or “Proprietary” or is reasonably identifiable as confidential given the nature of the information or the circumstances of disclosure. Confidential Information may include, but is not limited to, ideas, inventions, procedures, processes, specifications, software, computer programs, trade secrets, know-how, methods, business plans, financial data and analyses, financial forecasts, marketing plans, roadmaps, customer and supplier information, drawings, models or other intellectual property. “Confidential Information” shall not include any information that Recipient can demonstrate by its written records that: (i) was already known to Recipient at the time of disclosure; (ii) is independently developed by or for Recipient without reference to or use of Discloser’s Confidential Information; (iii) is obtained from a third party without a breach of confidentiality obligations; or (iv) is or becomes publicly known or generally available to the public without breach of confidentiality.
   3. Use and Non–Disclosure. Recipient shall:
      1. protect Discloser’s Confidential Information using the same degree of care Recipient uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care;
      2. use Confidential Information solely to exercise rights and fulfill obligations under this Agreement;
      3. only disclose Confidential Information to its Affiliates, employees, officers, directors, agents, contractors, JFrogs, service providers or professional advisors (collectively, “Representatives”) who (i) “need to know” the Confidential Information in connection with their respective rights and obligations under this Agreement and (ii) are bound by confidentiality obligations no less stringent than those in this Agreement; and
      4. not reverse engineer, disassemble, decompile nor remove proprietary markings from Confidential Information without Discloser’s prior written consent.
   4. Recipient shall be liable for any breach of this Section ‎‎5 by its Representatives.
   5. Compelled Disclosure. Recipient may disclose Confidential Information to the extent required by applicable law, regulatory authority, or a court of competent jurisdiction (“Compelled Disclosure”), provided that Recipient (i) gives prompt written notice to Discloser of such Compelled Disclosure when legally permissible; (ii) reasonably cooperates with Discloser in seeking a protective order or otherwise preventing or restricting such disclosure; and (iii) only discloses that portion of Confidential Information required to comply with the Compelled Disclosure.
   6. Return/Destroy. Recipient, upon written request and as directed by Discloser, shall promptly return or destroy all documents and materials containing Confidential Information of Discloser in its possession or under its control, including all copies, notes and extracts. Recipient shall confirm in writing to Discloser the completion of the return or destruction of Confidential Information. Notwithstanding the foregoing, Recipient may maintain copies of Confidential Information as required for legal or regulatory purposes or as part of its standard archival or computer back-up systems, provided that such Confidential Information shall continue to be subject to the terms of this Agreement.
   7. Confidentiality Period. The obligations of confidentiality hereunder with respect to all Confidential Information shall survive the termination or expiration of this Agreement for any reason, shall be binding upon the Receiving Party, the Representatives and its affiliates or successors and shall continue until such Confidential Information is no longer considered Confidential Information, as stated herein.
6. PROPRIETARY RIGHTS.
   1. Ownership. JFrog will remain the sole and exclusive owner of all right, title, and interest in, to all deliverables (if any) that were created by JFrog during the course of, and in connection with, the Services, including, without limitation, (i) the know-how and professional knowledge to the processes, reports, images, designs, procedures, deliverables, and methods that were used or created by JFrog for the provision of the Services, and any Intellectual Property Rights thereof; and/or (ii) any and all intellectual property that has been owned, held by, or licensed to JFrog (the “JFrog IP”).
   2. The Services shall not include the creation or development of any Intellectual Property by JFrog for Customer. Completion of the Services contemplated herein shall not impact the applicable subscription term purchased separately for JFrog’s proprietary software. Except as stated herein, nothing contained in this Agreement shall be construed as conferring upon Customer, by implication, operation of law or otherwise, any license or other right in or to JFrog IP.
7. WARRANTY; LIMITATION OF LIABILITY.
   1. Warranty. JFrog represents and warrants that it will perform the Professional Services in a diligent manner in accordance with (i) industry standards and practices; and (ii) all material requirements set forth in the SOW.
   2. Breach of Warranty. The Customer will notify JFrog in writing of any breach of these warranties within thirty (30) days after performance of the non-conforming Professional Services. On receipt of such notice, JFrog, in its sole discretion, will either (i) use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranties; or (ii) will terminate the affected Services upon written notice and provide a prorated refund of unused prepaid Fees for the nonconforming Professional Services. This Section sets out Customer’s sole and exclusive remedies under or in connection with failure to meet these professional services warranties.
   3. The Customer acknowledges that to the extent the Services to be provided by JFrog hereunder are based upon information supplied by the Customer, among other certain elements, reports, samples and models, JFrog does not guarantee or warrant such Services to any specifications, function or other standards, except as specifically set forth hereunder.
   4. EXCEPT AS EXPRESSLY STATED IN THIS SECTION BY JFROG, JFROG HEREBY EXPRESSLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR INTENDED OR PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES THAT THE SERVICES AND/OR THE RESULTS THEREOF WILL BE ERROR FREE OR WILL MEET ANY PARTICULAR SPECIFICATIONS.
   5. IN NO EVENT SHALL JFROG HAVE ANY LIABILITY FOR LOSS OF PROFITS, INCOME OR DATA, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE SERVICES OR FOR ANY LOSS OR DAMAGE RELATING TO THE USE OR INABILITY TO USE ANY PRODUCTS SUPPLIED (IF ANY), EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER ITEM OR FROM ANY OTHER CAUSE. NOTWITHSTANDING THE GENERALITY OF THE ABOVE, JFROG’S CUMULATIVE LIABILITY TO CUSTOMER FOR ANY CLAIMS AND DAMAGES RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL PAYMENT ACTUALLY PAID BY CUSTOMER TO JFROG AS SET FORTH IN THIS AGREEMENT DURING THE PERIOD OF TWELVE (12) MONTHS PRECEDING TO THE OCCURRENCE OF SUCH EVENT.
   6. THE CUSTOMER EXPRESSLY AGREES THAT THE WARRANTY SET FORTH IN THIS AGREEMENT SHALL CONSTITUTE THE SOLE WARRANTY OF JFROG WITH RESPECT TO SERVICES AND THE PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT AND THE RESPECTIVE STATEMENT OF WORK.
8. INDEMNIFICATION.
   1. JFrog shall defend, indemnify and hold harmless Customer and its affiliates (the “Indemnified Party”) from and against all damage, cost and expenses finally awarded or otherwise incurred (including reasonable attorney’s fees) to an unaffiliated third party as a result of any claim, suit or proceeding based on a claim that the use of any of JFrog’s deliverables or Services furnished by JFrog under this Agreement constitutes an infringement of any copyright, trademark, patent or other intellectual property right.
9. JFROG PERSONNEL.
   1. JFrog will: (a) ensure that each of its Personnel have all necessary permits and licenses, (b) select and supervise the performance of Personnel, (c) use only adequately trained Personnel and (d) ensure that any Personnel who work at any location owned or controlled by Customer comply with Customer’s safety and security guidelines. For purposes of this Section 9, “Personnel” means any individual, contractor or entity who works for or on behalf of JFrog in connection with JFrog’s performance of the Services.
10. MISCELLANEOUS
    1. Authorization. Each Party represents and warrants that it has the necessary legal authority to enter into this Agreement and to fulfill and perform each covenant and obligation imposed by this Agreement and that this Agreement, when executed by the duly authorized representative of each Party, represents a valid, binding and enforceable legal obligation of such Party.
    2. Relationship of Parties. Neither Party, nor its affiliates, its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of the other Party, nor do they have any authority whatsoever to bind the other Party by contract or otherwise, nor will they make any representations to the contrary, either expressly, implicitly, by appearance or otherwise. It is understood and agreed that nothing in this Agreement is intended to, nor will it result in, an employee of a Party becoming an employee of the other party or becoming a joint employee of both Parties. Each Party remains solely responsible for the payment of all taxes, social security or national insurance payments, insurance, workers’ compensation payments, disability insurance or similar items, including interest and penalties thereon, with respect to its employees.
    3. Injunctive Relief. Each Party agrees that any breach of Section 5 may cause irreparable damage to the other Party and that, in the event of such breach, each Party shall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation or threatened violation of the other Party’s obligations hereunder.
    4. Severability; No Waiver; Amendment. If any term of this Agreement is or becomes invalid, illegal or unenforceable, the rest of the Agreement will remain in effect. No failure of either Party to enforce any rights under this Agreement shall act as a waiver of such rights. No modification or recission of this Agreement shall be binding unless executed in writing by the Party to be bound.
    5. Notices. Except as set forth herein, any notice required or permitted by this Agreement must be in writing and shall be effective upon receipt when sent by certified mail or recognized overnight delivery service to the address of the Party set forth above.
    6. Governing Law.
       1. The JFrog entity entering into this Agreement; the law governing this Agreement which applies in the event of a dispute arising out of or in connection with this Agreement; and the courts that have exclusive jurisdiction over any such dispute depend on where the Customer is domiciled in accordance with the following table:

          	If Customer is domiciled in	Governing law, excluding any conflict of laws principles or rules and without regard to the United Nations Convention on Contracts for the International Sale of Goods	Courts with exclusive and sole jurisdiction (including non-contractual)	JFrog entity entering into this Agreement
          I	The USA; a country in North America, Central America, South America or the Caribbean	State of California, USA	The competent state or federal courts located in San Francisco, California	JFrog, Inc. 270 E Caribbean Dr., Sunnyvale, CA 94089
          II	Israel or a geographic region that does not fall into one of the designations described in this table, then Customer will fall into this category	Israel	Tel Aviv, Israel	JFrog Ltd 3 HaMachshev St., Netanya, Israel
          III	A country in APAC (Asia Pacific); a country in EMEA (Europe, Middle East, and Africa) excluding countries in row II and IV of this table	English	High Courts in London, UK
          IV	Belgium, France or Luxembourg	France	Paris, France	JFrog SAS 21, boulevard de la Marquette in Toulouse (31000), France

       2. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
    7. Entire Agreement; Assignment. This Agreement constitutes the complete, final and exclusive statement of the terms of the agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, representations or understandings. Neither Party may assign this Agreement without the prior written consent of the other Party, except that each Party may assign this Agreement to its Affiliate or in connection with a merger, acquisition, sale of all or substantially all of its assets, or any similar transaction of such Party. The Parties’ rights and obligations under this Agreement will bind and inure to the benefit of their permitted successors and assigns.
    8. Counterparts; Electronic Execution. This Agreement may be executed in any number of counterparts, each of which when executed shall be an original, and together shall constitute one binding Agreement. This Agreement may be executed electronically.