END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (THE “AGREEMENT“) IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL, COMPANY OR OTHER LEGAL ENTITY (“YOU“) AND JFROG, LTD. AND ITS AFFILIATES (THE “COMPANY” AND/OR “JFROG”). ANY USE OF THE JFROG “XRAY” SOFTWARE INCLUDING ANY REVISIONS, MODIFICATIONS, ENHANCEMENTS, UPDATES AND/OR UPGRADES THERETO (HEREINAFTER “SOFTWARE”) SUPPLIED BY THE COMPANY ARE AND SHALL BE, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
BY DOWNLOADING, INSTALLING, OPERATING OR OTHERWISE USING THE SOFTWARE, YOU ARE EXPRESSLY AND EXPLICITLY ACCEPTING THIS AGREEMENT AND AGREEING TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THIS AGREEMENT DO NOT MAKE ANY USE OF THE SOFTWARE.
- License grant and restrictions.
- The Software. The Software is proprietary software provided to you for the regular and standard purposes the Software was designed for, all in accordance with the terms set forth in this Agreement. The term “Software” includes the Software and its binary code, compilation of data, underlying databases, reports and/or visual display resulting from the operation of the Software, and any associated materials, systems, specifications and documentation.
- License. Subject to the terms and conditions of this Agreement, the Company hereby grants you, and you accept a limited, non-exclusive, non-sublicensable, non-transferable and fully revocable license to use the Software solely for your internal business purposes, in accordance with the Software’s documentation. All other rights in the Software are expressly reserved by the Company.
- Prohibited Uses. Except as specifically permitted herein, without the prior written consent of the Company you agree not to, directly or indirectly: (i) use, modify, incorporate into or with other software, or create a derivative work of any part of the Software; (ii) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under this Agreement with or to anyone else; (iii) copy, distribute, publish or reproduce the Software, including without limitation any databases or reports or generated by the Software; (iv) use or permit the Software to be use to perform services for third parties, whether on a service bureau or time sharing basis or otherwise; (v) disclose, publish or otherwise make publicly available the results of any benchmarking of the Software, or use such results for your own competing software development activities; (vi) modify, disassemble, decompile, reverse engineer, revise or enhance the Software or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software, except to the extent otherwise permitted under applicable law, in the jurisdiction of use, notwithstanding this prohibition; (vii) access the underlying databases; (viii) ship, transfer or export the Software into any country, or make available or use the Software in any manner which is in violation of applicable export control laws, restrictions or regulations and/or (ix) disclose, provide or otherwise make available trade secrets contained within the Software and related documentation in any form to any third party. You shall implement reasonable security measures to protect such trade secrets (x) remove or otherwise alter any of the Company’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed or attached to the Software as delivered to you.
- Lawful Use. You hereby declare and agree that you shall only use the Software in a manner that complies with all applicable laws in the jurisdiction in which you use the Software, including, but not limited to, applicable restrictions concerning the protection of privacy and intellectual property including copyrights and any other intellectual property rights. The Software should be installed in accordance with the instructions of the Company and in accordance with the instructions set forth in the Software’s documentation.
- Xray Output. Reports, alerts, results, information, content and/or indications that you obtain through your use of the Software (“Xray Output”) . The Xray Output is provided solely for your internal use. You shall not use the Xray Output and/or any Company trademark and/or tradename contained therein in any manner that might imply verification or certification by JFrog of the Xray Output content. JFROG WILL NOT BE LIABLE FOR ANY DAMAGE OR LOSS INCURRED TO YOU, YOUR ORGANIZATION OR ANY THIRD PARTY AS A RESULT OF OR IN CONNECTION WITH THE USE OF XRAY OUTPUT.
- Limited Availability; basic maintenance.
- Availability. During the term of this Agreement, and subject to JFrog’s sole discretion, the Software may be available for your use in accordance with the terms of this Agreement.
- Basic Maintenance. During the term of this Agreement, JFrog may (but has no obligation to) provide you with updates, upgrades and/or enhancements made generally available to customers from time to time, and product maintenance.
- Consideration. Subject to the terms of this Agreement, the Software can be licensed by contacting JFrog via JFrog.com, and in accordance with the then current price list, as applicable (the “Fee”).
- Title & Ownership. The Software and the related documentation are licensed and not sold. The Company and its licensors have and shall retain all right, interest and ownership in and to the Software and the related documentation, including without limitation in and to any and all intellectual property rights (including, without limitation, copyrights, trade secrets, trademarks, etc.) evidenced by or embodied in and/or attached/connected/related to the Software. This Agreement does not convey to you an interest in or to the Software but only a limited revocable right to use the Software in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of the Company’s intellectual property rights under any law. If you contact the Company with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Feedback”), such Feedback shall be deemed non-confidential, and the Company shall have a non-exclusive, worldwide royalty-free and perpetual license to use or incorporate such Feedback into the Software and/or other current or future products or services of the Company (without your approval and without further compensation to you).
- Disclaimers. OTHER THAN AS EXPLICITLY STATED UNDER THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND THE DOCUMENTATIONS ARE PROVIDED ON AN “AS IS” BASIS. THE COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE SOFTWARE’S OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS. THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES, ALL IMPLIED WARRANTIES, AND ALL CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITION OF MERCHANTABILITY, NON-INTERFERENCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. COMPANY DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY XRAY OUTPUT, OR THAT THE XRAY OUTPUT IS ACCURATE, COMPLETE OR ERROR FREE.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (A) THE COMPANY OR ITS SUPPLIERS AND/OR LICENSORS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT OR OTHERWISE, TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM AND/OR RELATED WITH AND/OR CONNECTED TO THE INSTALLATION OF THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY (IF ANY) AND/OR ANY USE OF OR INABILITY TO USE THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY (IF ANY), EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL PAYMENTS ACTUALLY MADE TO THE COMPANY FOR THE SOFTWARE, IF ANY, DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY SUCH CLAIM OR CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- Confidentiality. 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 and other entities with whom the Disclosing Party does business that may be obtained by the Receiving Party from any source or may be developed as a result of this Agreement (“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. At the request and option of the Disclosing Party, or in the event of termination or expiration of this Agreement (or any part thereof), the Receiving Party agrees to promptly: (a) return to the Disclosing Party the Confidential Information; or (b) destroy or permanently erase the Confidential Information and, if the Disclosing Party requests that Confidential Information be destroyed or permanently erased, then the Receiving Party shall acknowledge in writing that all such Confidential Information has been destroyed or permanently erased within five (5) days of such destruction or permanent erasure. Notwithstanding the foregoing, the Receiving Party may retain copies of the Confidential Information to the extent required to comply with applicable legal and regulatory requirements, provided, however, that such Confidential Information will remain subject to the terms and conditions of this Agreement. For the avoidance of doubt, the Software and related documentation shall be considered Confidential Information for purposes of this Section.
- Third Party Software.
- The Software is based on software which is developed and owned by the Company and/or its licensors. The Software may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components“). Your right to use such Third Party Components as part of, or in connection with the Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. You hereby agree to such terms associated with the Third Party Components. Under no circumstances shall the Software or any portion thereof (except for the Third Party Components contained therein) be deemed “open source” or “publicly available” software.
- A list of Third Party Components is available at (the “Xray About Box“) and will be updated from time to time. The licenses of certain Third Party Components may require the provision of the source code of these Third Party Components. With respect to any licenses of Third Party Components that require the provision of the open source code of these Components, the Company will provide you and any third party, during a period set forth by each such license, for a charge of no more than Company’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, you should contact the Company at: email@example.com.
- 9.1 Company acknowledges and agrees to defend, at its expense, any third party action or suit brought against you alleging that the Software licensed to you hereunder infringes intellectual property rights held by any third party (“IP Infringement Claim“), and the Company will pay any damages awarded in final judgment against you that are attributable to any such claim; provided that (i) you notify the Company promptly in writing of such claim; and (ii) you will grant the Company sole authority to handle the defense or settlement of any such claim, suit or proceeding and will provide the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that you enter into without the Company’s prior written consent. If the Software becomes, or in the Company’s opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole option and expense (a) procure for you the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite the Company’s reasonable efforts, the Company may accept return of the Software and grant you credit for the price of the Software as depreciated on a straight-line five (5) year basis, commencing on the date of receipt by you of the Software. Notwithstanding the foregoing, the Company shall have no responsibility for IP Infringement Claim resulting from or based on: (i) modifications to the Software made by a party other than the Company or its designee; (ii) your failure to use updated or modified Software provided by the Company specifically to avoid infringement; or (iii) combination or use of the Software with equipment, devices or software not supplied or authorized by the Company or not in accordance with the Company’s instructions. THE FOREGOING TERMS STATE THE COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
- You agree to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) your unauthorized use of the Software; and/or (ii) your violation of any term of this Agreement.
- Term; Termination . This Agreement shall become effective upon downloading, installing, operating or otherwise using the Software. This Agreement will remain in force and effect provided that (i) you have an active applicable Artifactory subscription; and (ii) all Fees (as defined below) were timely paid. Provided, however, that the Company may terminate this Agreement immediately without notice if you do not comply with or otherwise breach any provision of this Agreement. Upon termination of this Agreement: (i) any license granted hereunder shall expire; (ii) you shall discontinue all further use of the Software; and (iii) you shall promptly remove the Software from all hard drives, networks and other storage media under your control. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive upon termination of this Agreement for any reason.
- Miscellaneous. This Agreement shall be construed and governed in accordance with the laws of the State of California without regard to its conflict of laws principles, and the competent courts of Santa Clara County, California shall have exclusive jurisdiction in any conflict or dispute arising out of this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement represents the complete agreement concerning the license granted herein and the subject matter hereof and may be amended only by a written agreement executed by both parties. 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. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. You may not assign your rights or obligations under this Agreement without the prior written consent of the Company. The Company may assign or transfer its rights and/or obligations under this Agreement without restriction or notification.
I HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.