END USER SOFTWARE LICENSE AGREEMENT
ARTIFACTORY PRO POWER PACK AND/OR ARTIFACTORY HIGH AVAILABILITY (HA)
PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) BEFORE PROCEEDING WITH OPERATION OR USE OF JFROG’S SOFTWARE KNOWN AS ARTIFACTORY PRO POWER PACK AND/OR ARTIFACTORY HIGH AVAILABILITY (HA) (“SOFTWARE”) WHICH IS LICENSED HEREUNDER (NOT SOLD). BY CLICKING THE “YES” BUTTON BELOW OR 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 SELECT “I AGREE” OR 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 A SINGLE 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, ON BEHALF OF ITSELF AND ITS AFFILIATES (“LICENSOR” or “JFROG”) REGARDING THE SOFTWARE.
YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE.
- LICENSE GRANT.
- 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 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.
- The Software is licensed as a single product. Other than the rights expressly set forth in Section 1 above, no other right or interest whatsoever in or relating to the Software is transferred or granted to You.
- 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) not 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, nor copy the Software manual(s), on-line documentation, or any written materials accompanying the Software; (iv) export the Software in violation of export administration regulations of the United States or any other 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 to 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.
- SUBSCRIPTION TERMS; SUBSCRIPTION FEES; SOFTWARE MAINTENANCE.
- Subscription Terms. Each subscription you download (Trial version) or purchase from JFrog (a “Subscription”) entitles you to: (i) use the Software under the terms and conditions set forth herein; and (ii) receive Software Maintenance (as defined in Section 2.5 below) for such copy of the Software during the Trial Term or Subscription Term, as applicable. In this Agreement, “Subscription Term” means the initial twelve (12) month period following the Effective Date (or such shorter or longer period as may be specified upon purchase of Your Subscription and as approved by JFrog). In this Agreement, “Effective Date” means the earlier of: (i) the date on which You purchased the applicable Subscription from JFrog; and (ii) the date on which You installed or used the Software.
- The License allows you to install a single instance of the Software and use, access, display and run one copy of the Software on a single physical or virtual host at any time per License and to use the License according to the features of the provided Software license key.
- Each Subscription expires at the end of the applicable Subscription Term, unless renewed by You. You shall pay the fees for each Subscription as specified at the time of purchase of such Subscription from JFrog. The Subscription fee for any additional Subscription will be according to JFrog’s then-current Subscription fee.
- 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 has to be withheld or deducted from any payment under this Agreement, Licensee shall gross-up the payment under this Agreement by such amount as shall ensure that after such withholding or deduction JFrog shall have received an amount equal to the payment otherwise required.
- During the relevant Subscription Term (the “Initial Maintenance Period”), JFrog shall provide You with a Software license key, updates, upgrades and/or enhancements made generally available to customers from time to time, and online e-mail product support (e.g. bug fixes, non-SLA based) to one designated technical contact for the sole purpose of addressing technical issues relating to the use of the Software (excluding, for removal of doubt, any form of on-site visits by JFrog’s personnel or contractors or any SLA based services or configuration of the Software and its ecosystem) (the “Software Maintenance”). The Initial Maintenance Period may be renewed for additional twelve (12) month periods or longer at the then-current rate for Software Maintenance. You may also subscribe for additional service packages offered by JFrog, and service under such packages shall be made subject to payment of the applicable service fees at such time. To the extent the relevant Subscription Term expires, You may continue to use the original Software version purchased under the terms and conditions set forth herein, however, You will not be entitled to any Software Maintenance regarding such original Software version purchased.
- JFrog shall be obligated to support or maintain any version of the Software for a period of at least eighteen (18) months after the version was initially released. If JFrog ceases to support the Software during the eighteen months minimum support obligation period and develops a new or replacement product (“New Product”) for the Software, Licensee may purchase a subscription to such New Product under the terms and conditions of this Agreement or any other agreement to be executed by JFrog and Licensee, according to JFrog’s then-current Subscription fee.
- LICENSOR’S RIGHTS.
- 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.
- 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.
- If You contact Jfrog with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Information”), such Information shall be deemed to be non-confidential, and JFrog shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate into the Software any such Information.
- OPEN SOURCE CODE.
- JFrog’s products are based on the Software which developed and owned by JFrog andor any of its affiliates, subsidiaries and/or their respective suppliers and licensors. The Software includes certain software, components and materials (“Open Source Materials”) of third parties (“Third Party Licensors”) licensed under certain licenses (“Open Source Licenses”). The “About Box” lists and contains the open source code software and materials used in connection with the Software (including the Software copyright notices, which are subject to certain licenses, warranties, copyright policies and other terms located at the websites listed therein. The “About Box” is available as a file attached to the Software distribution package and will be updated from time to time by JFrog.
- Licensee hereby acknowledges and agrees that Licensee will be licensing any Open Source Materials directly from the applicable Third Party Licensors, including the right to use such Third Party Materials in connection with the Software. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of this EULA, the provisions of the Open Source Licenses shall prevail.
- Certain Open Source Licenses listed in “About Box” may require the provision by the Licensor of the source code of the software to the Licensee. With respect to any Open Source License that contains such requirement, Licensor will provide to any third party, during a period set forth by each such license, for a charge of no more than Licensor’s cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, on a medium customarily used for software interchange. For that purpose, Licensee should contact Licensor at: email@example.com.
- TERM; TERMINATION.
- This EULA is effective upon the earliest of the following occurrences: (i) by agreement electronically in any manner; (ii) downloading the Software; (iii) installing the Software; (vi) using the Software; (v) your consummation of the transaction for the purchase of the 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 until terminated in accordance with this EULA.
- Licensor may terminate this EULA immediately with no further action or notice upon the breach of any term of this EULA (including without limitation, the obligations to pay all Subscription fees when due and payable) by the Licensee which is not cured with seven (7) business days following the delivery of written notice to You.
- 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).
- Upon expiration or termination of this EULA, the license granted herein will terminate and You: (i) shall immediately cease to use the Software, (ii) shall pay to JFrog any amounts owed to JFrog under this EULA before such expiration or termination; (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 three (3) days certify destruction of, all full or partial copies of the Software, documentation and related materials provided by JFrog.
- Termination of this EULA for any reason will not affect the Licensee’s obligations relating to the payment of amounts due or the Licensee’s obligations duties and acknowledgement of rights contained under the provisions of the License Grant (Section 1), Licensor’s Rights (Section 3), Limited Warranty, Limited Liability (Section 6), Confidentiality and Privacy (Section 7) and Miscellaneous (Section 8).
- In the event that the Software license key needs to be exchanged (in coordination with the Licensee or upon Licensee’s request) the prior Software license key shall be automatically terminated upon activation and use of the subsequent Software license key.
- LIMITED WARRANTY; LIMITED LIABILITY.
- Licensor represents and warrants that for a period of three (3) months following the delivery of the Software to Licensee (the “Warranty Period”), the Licensor’s products will substantially conform to the description of the Software provided in the Licensor’s manuals, specifications or documentation, as provided by the Licensor. Any warranty claim under this Section 6 must be made in writing during the Warranty Period.
- During the Warranty Period, to the extent that any portion of the Software does not so conform, Licensee’s exclusive remedy in respect thereof is to Licensor shall provide reasonable commercial efforts to correct, promptly after being notified thereof, all errors affecting the operation of the Software and/or any significant feature(s) thereof, as well as any non-conformance of the Software with the documentation, provided that such errors or non-conformances occur or notification is given within the aforementioned Warranty Period or, at Licensor’s sole discretion, terminate this EULA upon written notice and refund the license fee, upon return of the Software and associated documentation. This is the sole remedy of the Licensee with respect thereof.
- The warranty provisions of Sections 6.1 and 6.2 above shall not apply to: (i) use of equipment or software acquired from any source other than Licensor; (ii) any products which were installed, used or operated in a way other than in accordance with the Licensor’s manuals, specifications or documentation; (iii) any products, which are modified, changed, adjusted or altered in any way, without Licensor’s prior written approval of such modification, change, adjustment or alteration; (iv) any products which are used on an operating environment (including but not limited to appropriate hardware and software platform and configuration) other than an operating environment specified in the Licensor’s manuals, specifications or documentation; (v) any products that were removed or transferred to a location where no support services of the Licensor are available; (vi) any products which are defective or damaged due to either misuse, accident, abuse or neglect; (vii) any products which are defective or damaged due to either improper testing, operation, maintenance, installation, tuning or any unauthorized use with auxiliary equipment; (viii) any products which are used by either a third party who is not a party to this EULA; or (ix) the combination of any products with equipment or software not authorized or provided by Licensor or otherwise approved by Licensor in the Licensor’s manuals, specifications or documentation.
- EXCEPT AS SET FORTH IN SECTIONS 6.1-6.3, THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT. IN NO EVENT SHALL LICENSOR 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).
- NOTWITHSTANDING THE GENERALITY OF THE ABOVE, IF LICENSOR IS FOUND TO BE LIABLE BY A FINAL JUDICIAL RULING THE CUMULATIVE LIABILITY OF LICENSOR TO YOU 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 ORIGINALLY PAID BY YOU TO LICENSOR FOR THE LICENSE OF THE SOFTWARE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, FOR USING THE SOFTWARE.
- CONFIDENTIALITY AND PRIVACY.
- Confidentiality. 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.
- 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 that identifies 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 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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. Each 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.