JFrog Agreement – Trial

Last Updated: September 8, 2024

This JFrog Agreement – Trial (this “Agreement”), made by and between the applicable JFrog Contracting Entity specified in Section 9 (“JFrog”) and you (“Customer”), governs access and use of the proprietary JFrog end-to-end DevSecOps platform and any other JFrog software, portal, features, or add-ons (“JFrog Platform”) and documentation (accessible online at www.jfrog.com/help/) (“Documentation”) by Customer. The JFrog Platform may be hosted and managed by JFrog on behalf of Customer (“JFrog Cloud”), or by or on behalf of Customer (“JFrog Self-Hosted”). THIS AGREEMENT TAKES EFFECT WHEN CUSTOMER CLICKS THE “I ACCEPT” OR SIMILAR BUTTON OR BY ACCESSING OR USING THE JFROG PLATFORM (“EFFECTIVE DATE”). BY DOING SO, CUSTOMER: (A) ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT IT HAS THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT IT IS LEGALLY BOUND BY ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS OR IF CUSTOMER IS A COMPETITOR OF JFROG (OR A PERSON ACTING ON BEHALF OF A COMPETITOR), PLEASE SELECT THE “I DECLINE” OR SIMILAR BUTTON AND DO NOT ACCESS OR USE THE JFROG PLATFORM.

1. ACCESS AND USE OF JFROG PLATFORM.
   
   • License. Subject to the terms and conditions of this Agreement, JFrog hereby grants Customer and its Affiliates a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the trial period to access and use the JFrog Platform (and download and install any self-hosted feature of the JFrog Self-Hosted) solely for Customer’s internal evaluation purposes and in accordance with this Agreement, the Documentation, Acceptable Use Policy (made accessible at https://jfrog.com/acceptable-use-policy/), applicable laws, and any other instructions, restrictions, and conditions which JFrog may provide or impose, in its sole discretion. Nothing herein requires JFrog to provide any support, maintenance, service levels, service credits, or updates for the JFrog Platform. The trial period will be 14 days. The parties may agree to extend the trial period for no more than 30 days. For the purposes of this Agreement, “Affiliate” means, with respect to a specified entity, now or in the future, any other entity that directly or indirectly controls, is controlled by, or is under common control with such specified entity, where “control” means the possession, directly or indirectly, of the power to independently direct or cause the direction of the management and policies of an entity, whether through ownership of more than fifty percent (50%) of the voting interests of such entity, by contract, or otherwise.
   • Restrictions on Use. Customer shall not, nor shall it permit, facilitate, or otherwise allow any other person or entity to: (i) access or use the JFrog Platform: (A) for fraudulent, misleading, or unlawful activities or purposes; (B), for benchmarking, or competitive activities or purposes; (C) to develop or train a machine learning or artificial intelligence functionality, logic, features, or operations; or (D) in a manner that does not comply with this Agreement (including the applicable Order Form), the Acceptable Use Policy (accessible online at https://jfrog.com/acceptable-use-policy/), the Documentation, and/or with JFrog’s written instructions; (ii) use any proxying, caching or other mechanism to provide any third parties with access to and/or use of the JFrog Platform; (iii) make availableprovide use of, pledge, or market the JFrog Platform, to any entity or person other than Customer’s and its affiliates’ authorized employees, contractors, consultants, service providers or development partners (“Customer Users”); (iv) delete, obscure, or alter JFrog’s brand features, warranties, or disclaimers, or any intellectual property or proprietary rights notices from the JFrog Platform or Documentation; (v) upload or transmit any personal data (except for each Customer User’s name, username, email address and IP address (“Customer User Information”, and together with Customer Artifacts (as defined below), “Customer Data”)), unlawful Customer Data, viruses or other malicious content or code into or through the JFrog Platform; (vi) translate, reverse-translate, decipher, decode, disassemble, or otherwise reverse-engineer the JFrog Platform; (vii) breach, bypass, or otherwise interfere with security-related or limiting features of the JFrog Platform; (vii) copy, modify, or create derivative works of, the JFrog Platform or Documentation; or (ix) develop, implement, or install any third third-party extension, plug-in, or other means of access or use of the JFrog Platform, without prior written approval from JFrog. Customer Artifacts means binary artifacts, containers, images or configuration files uploaded to the JFrog Platform which are provided by, on behalf of, or at the direction of Customer in connection with Customer’s software.
   • Additional Terms for JFrog Self-Hosted. THIS SECTION APPLIES TO THE JFROG SELF-HOSTED ONLY. CUSTOMER IS RESPONSIBLE FOR PROVIDING ITS OWN CLOUD PLATFORM OR CONTRACTING WITH A CLOUD PLATFORM PROVIDER THAT WILL: (I) HOST AND MAINTAIN THE JFROG PLATFORM ON A CLOUD PLATFORM (THAT MEETS MINIMUM TECHNICAL SPECIFICATIONS TO BE PROVIDED BY JFROG); AND (II) STORE AND PROCESS THE CUSTOMER ARTIFACTS.
2.  TERM, SUSPENSION AND TERMINATION. This Agreement shall commence on the Effective Date and continue until the expiration of the trial period. JFrog may immediately terminate or suspend this Agreement for any or no reason by providing Customer with written notice. Upon termination or expiration of this Agreement: (a) Customer shall cease all use of the JFrog Platform and Documentation, and promptly destroy all copies of the JFrog Platform (in the case of the JFrog Self-Hosted Platform), Documentation, and JFrog’s Confidential Information; and (b) JFrog will maintain all Customer Data for sixty (60) days post such termination or expiration and promptly delete it thereafter. In the event of a termination, expiration or suspension by JFrog, JFrog reserves the right to immediately delete all Customer Data. Any sections of this Agreement that by their nature are intended to continue beyond the termination or expiration of this Agreement, shall survive any such termination or expiration.
3.  INTELLECTUAL PROPERTY RIGHTS; FEEDBACK; DATA. The parties do not transfer, and are under no obligation to transfer, any title or ownership interest in or to their respective intellectual property rights in connection with this Agreement. JFrog reserves all rights not expressly granted to Customer hereunder. Customer hereby grants JFrog a: (a) worldwide, non-exclusive, transferable, sub-licensable, royalty-free, fully paid-up, right and license to store, display, and use Customer Data solely as necessary to provide the JFrog Platform to Customer; and (b) worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into JFrog’s or its Affiliates’ products, services, or technology, any feedback provided by Customer relating to the operation of the JFrog Platform and its services. Nothing herein grants any implied licenses or restricts, limits, or otherwise affects the ability of JFrog or its Affiliates to collect, use, store, disclose, or otherwise process any: (a) data about access and use of the JFrog Platform by Customer. Customer hereby irrevocably consents to JFrog monitoring and recording Customer’s access and use of the JFrog Platform.
4.  CONFIDENTIALITY. Customer shall: (a) keep JFrog’s Confidential information confidential; (b) not use JFrog’s Confidential Information, except solely to exercise its rights and fulfill its obligations under this Agreement; and (c) not disclose JFrog’s Confidential Information, except to its affiliates, and to its and its affiliates’, employees, officers, directors, agents, contractors, consultants, service providers, subcontractors or professional advisors (collectively, “Representatives”) who: (i) “need to know” JFrog’s Confidential Information for the purposes described in the foregoing (b); and (ii) are bound by confidentiality obligations no less stringent than those herein. “JFrog’s Confidential Information” includes confidential information disclosed by its Representatives in connection with this Agreement.
5. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
   • By Customer. Customer represents, and warrants, that: (i) Customer owns or otherwise has and will have the necessary rights, licenses, and consents in and relating to the Customer Data such that, as used by JFrog in accordance with this Agreement in connection with the JFrog Platform, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights, of any third party or violate any applicable law; (ii) it has not given, offered, received or been offered any illegal or improper bribe, kickback, payment, gift, donation, or thing of value (excluding reasonable gifts and entertainment provided customarily and in good faith in the ordinary course of legitimate business activities) from JFrog or otherwise in connection with this Agreement; (iii) Customer, its Affiliates, and Customer Users are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties; and (iv) it will not, export, re-export, or release the JFrog Platform to, or make the JFrog Platform accessible from or to, any country, jurisdiction or person/entity to which export, re-export, or release is prohibited or restricted by applicable laws and regulations.
   • Disclaimers. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE JFROG PLATFORM IS LICENSED TO CUSTOMER ON AN “AS IS” BASIS AND JFROG HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALL THIRD-PARTY TECHNOLOGY IS PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR THEREOF.
6.  LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL JFROG OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY LOSS OR DAMAGE OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF JFROG OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) JFROG’S AND ITS AFFILIATES’ AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS (100 USD). The parties agree that the limitations and exclusions of liability specified in this Section will survive and apply even if any limited remedy specified herein is found to have failed in its essential purpose. Customer shall be liable for the acts and omissions of its Affiliates and Customer Users in connection with this Agreement as if such acts or omissions were those of Customer. Customer may link, connect or use third-party components in conjunction with the JFrog Platform at its sole risk and responsibility and solely in accordance with the Documentation and the applicable third-party license agreement.
7. INDEMNIFICATION. Customer will indemnify, defend, and hold harmless JFrog and its Affiliates from and against any claim, demand, suit or proceeding made or brought against JFrog by a third party arising out of its access and use of the JFrog Platform, and will indemnify and hold harmless JFrog from any damages awarded against JFrog as a result of, or for any amounts paid by JFrog under a settlement approved by Customer in writing, together with all reasonable attorney fees and costs incurred in connection with such litigations or settlements. JFrog may join in defense with counsel of its own choice at its own expense. Customer shall not consent to the entry of any judgment or enter into any settlement or compromise requiring JFrog to admit liability, pay money, or take or refrain from any action without the prior written consent of JFrog.
8. MISCELLANEOUS. If any term of this Agreement is or becomes invalid, illegal or unenforceable in any jurisdiction it will, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. No waiver hereunder will be effective, unless in a writing signed by a duly authorized signatory on behalf of the waiving party. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both parties. Customer may not assign or otherwise transfer this Agreement. The parties are independent contractors. There are no third-party beneficiaries under this Agreement. Titles and headings of this Agreement are for convenience only. The singular includes the plural, and vice versa. The terms “include” and “including” are not limiting. Reference to any agreement, website or document includes any modifications, supplements, amendments and replacements thereto. This Agreement (including the Documentation and Acceptable Use Policy) constitutes the complete, final and exclusive statement of the terms of the agreement between the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements, representations or understandings, written or oral, concerning its subject matter.
9. JFROG CONTRACTING ENTITY; GOVERNING LAW AND JURISDICTION. The Convention on Contracts for the International Sale of Goods and conflicts of laws principles do not apply to this Agreement. The applicable JFrog Contracting Entity is JFrog Ltd, except if Customer is domiciled in: (a) USA or a country in North or Central America, South America, or the Caribbean (“Region 1”), then such entity is JFrog, Inc.; or (b) Bahrain, Belgium, Egypt, France, French Polynesia, Indonesia, Kuwait, Luxembourg, Malaysia, New Caledonia, Qatar, Saudi Arabia, or the United Arab Emirates (“Region 2”), then such entity is JFrog SAS. This Agreement will be construed in accordance with and governed by the laws of Israel, and Tel Aviv, Israel is the exclusive jurisdiction and venue for any claim, dispute, or controversy arising out of or in connection with this Agreement, except if Customer is domiciled in: (i) Region 1, then such governing laws will be those of California, USA and such exclusive jurisdiction and venue will be the U.S. District Court for the Northern District of California or a state court located in or having jurisdiction over Santa Clara County, California; (ii) Region 2, then such governing laws will those of France and such exclusive jurisdiction and venue will Paris, France; or (iii) a country in Europe, Middle East, Africa or the Asia Pacific, excluding Israel, or a country in Region 2, then such governing laws will those of England and such exclusive jurisdiction and venue will be the courts in London, UK. Each party and its respective Affiliates hereby submit to the personal jurisdiction and venue of such applicable courts, and waive all rights they may have to object to the jurisdiction of any such applicable court, or to transfer or change the venue.