Enterprise Devops Consulting Services Agreement

JFROG LTD.

PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS ENTERPRISE DEVOPS CONSULTING SERVICES AGREEMENT (this “AGREEMENT”) BEFORE PROCEEDING WITH USE OF ANY OF JFROG’S ENTERPRISE DEVOPS CONSULTING PACKAGES. BY PURCHASING AND USING JFROG’S CONSULTING PACKAGE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS MADE BETWEEN YOU AND JFROG LTD. (“JFROG” OR THE “CONSULTANT”). YOU AND THE CONSULTANT SHALL ADDITIONALLY BE REFERRED TO AS EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES” REGARDING THE CONSULTING PACKAGES OFFERED BY JFROG. 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.

R E C I T A L S

WHEREAS, the CONSULTANT is in the business of providing consulting services in connection with the field of DevOps and other related technologies; and

WHEREAS, YOU wish to engage the CONSULTANT as an independent contractor to provide the services described herein and the CONSULTANT agrees to provide the services in consideration of the Compensation and otherwise in accordance with the terms and conditions contained in this Agreement;

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, accepted and agreed to, the Parties, intending to be legally bound, agree to the terms set forth below.

TERM.
The independent contractual relationship pursuant to this Agreement shall commence on the date in which YOU purchased the applicable subscription through a Service Order (the “Effective Date”) and through the completion of the subscription term unless terminated earlier pursuant to Section 4 hereof (the “Term”).
DUTIES AND SERVICES.
1. 2.1.YOU hereby engage CONSULTANT, acting as an independent contractor, to perform consulting services, as described on the applicable purchased Service Order (“Order”) subject to and as part of this Agreement.
2. 2.2.In the event of a conflict between any term of this Agreement and any Order, this Agreement shall control, unless expressly stated otherwise in the applicable Order.
COMPENSATION; FEES.
1. 3.1.In consideration for the Services, YOU shall pay to the CONSULTANT the fees set forth in each applicable Order (the “Compensation”).
2. 3.2.Unless otherwise specified in an Order, all payments due under this Agreement from YOU to the CONSULTANT 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. 3.3.YOU shall pay the amount properly due and payable under each of the CONSULTANT’s invoices within five (5) days after YOUR receipt of the applicable invoice.
4. 3.4.Any other services not specified in the Order shall be charged separately and shall be subject to terms and conditions as agreed upon in writing by the Parties.
5. 3.5.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 YOU at the rate and in the manner prescribed by law. YOU shall hold the CONSULTANT harmless for all Taxes which are levied or imposed by reason of the performance of Services under this Agreement. If applicable law requires YOU 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 CONSULTANT after all such taxes are paid are equal to the amounts that CONSULTANT would have been entitled to in accordance with this Agreement as if the Taxes did not exist. To the extent that any claims against the CONSULTANT by any tax authority (other than with respect to the CONSULTANT’s income taxes) arise out of the Services provided herein, YOU shall defend, indemnify and hold harmless the CONSULTANT, its officers, directors, employees and agents, for any amounts due to taxing authorities. Upon request, YOU shall provide to the CONSULTANT a certificate evidencing payment of any such taxes as indicated above.
6. 3.6.Any amount not paid when due hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law.
TERMINATION.
1. 4.1.Each Party may terminate this Agreement upon prior written notice of 30 (thirty) days (the “Notice Period”), provided however, that this Agreement shall continue to apply to any valid Subscription that has not been separately terminated upon termination of this Agreement.
2. 4.2.Notwithstanding the generality of the foregoing, each Party may terminate this Agreement and/or any Subscription immediately, in any of the circumstances set forth herein: (i) the other Party has breached any material provision hereof and/or in the respective Subscription 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. 4.3.In the event of termination for any reason, whether initiated by YOU or the CONSULTANT, YOU shall pay the CONSULTANT any and all sums owed to the CONSULTANT, together with any costs and expenses to which the CONSULTANT is committed, as of the date of such termination.
4. 4.4.Survival. The provisions of Sections, 3, 4, 5, 6, 7 and 8 of this Agreement shall survive the expiration of the Term or the termination of this Agreement (however so terminated).
CONFIDENTIALITY;
1. 5.1.Confidentiality.
2. 5.1.1.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”).
3. 5.1.2.Confidential Information. The term “Confidential Information” means any and all confidential knowledge, data or information related to the Disclosing Party’s business as conducted and/or as proposed to be conducted or its actual or demonstrably anticipated research or development, including without limitation: (a) trade secrets, inventions, ideas, processes, computer source and object code, data, formulae, programs, other works of authorship, graphics, creative works, data, methods, drawings, models, text, photos, audio works, translation works, broadcasting works, animation works, algorithms, icons, symphonies, tunes, melodies, sound effects, know-how, improvements, discoveries, developments, designs, and techniques; (b) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (c) information regarding the skills and compensation of the Disclosing Party’s consultants, contractors, and any other service providers of the Disclosing Party; and (d) the existence of any business discussions, negotiations, or agreements between the Disclosing Party’s and any third party.
4. 5.1.3.Confidential Information shall not include information or matter that the the Receiving Party can document that (a) was already known to the Receiving Party prior to disclosure; (b) is independently developed by the Receiving Party without reference to or use of the Confidential Information; or (c) which at the time of disclosure by the Receiving Party is generally available to the public or thereafter becomes generally available to the public other than through a breach of any obligation under this Agreement caused by an act or omission on the part of the Receiving Party.
5. 5.1.4.Nondisclosure In consideration of the willingness of the Disclosing Party to disclose its Confidential Information, and in recognition of the confidential nature thereof, at any time after the date of each disclosure of the Confidential Information, the Receiving Party agrees that the Receiving Party and its affiliates, shareholders, employees, officers, directors, agents, advisors, subcontractors and CONSULTANTs (the “Representatives”): (i) shall treat all the Confidential Information disclosed to it as strictly confidential and not to exploit or make use, whether or not for consideration, directly or indirectly, of such Confidential Information without the express written consent of the Disclosing Party, except to its Representatives for purposes of the performance of this Agreement and provided that prior to disclosing any Confidential Information to such Representatives the Receiving Party shall have ensured that they are aware of the provisions of this Agreement and have signed non-disclosure agreements with non-use and non-disclosure terms substantially similar to those contained in this Agreement, (ii) not to reverse engineer, disassemble or decompile any samples, prototypes, software or other tangible objects provided by the Disclosing Party hereunder except with the express written authorization from the Disclosing Party. The Receiving Party shall assume full responsibility for enforcing the confidentiality obligations hereunder and shall take appropriate measures with its Representatives and other persons acting on its behalf to ensure that such Representatives and other persons acting on its behalf are bound by a like covenant of confidentiality, including but not limited to, informing any Representatives and other persons acting on its behalf that such Confidential Information shall not be disclosed except as provided herein. The Receiving Party shall protect the Confidential Information of the Disclosing Party with at least the same degree of care as it normally exercises to protect its own confidential information of a similar nature, but no less than a reasonable degree of care. The Receiving Party agrees to be liable for any breach of this Agreement by its Representatives. Notwithstanding the above, the Receiving Party may disclose the Confidential Information which is (a) approved in writing by the Disclosing Party for release by the Receiving Party, but only to those parties to whom disclosure was permitted pursuant to this Agreement; or (b) required or compelled by court order to be disclosed, provided that Receiving Party provides all reasonable prior notice to the Disclosing Party, to the extent legally permitted, to allow it to seek protective or other court orders, and only to those parties required or compelled to by the court order.
6. 5.1.5.Third Party Information. Each Party understands, in addition, that the Disclosing Party has received and in the future will receive from third parties confidential or proprietary information (the “Third Party Information”) subject to a duty on the Disclosing Party’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of this Agreement and thereafter, the Receiving Party will hold Third Party Information in strict confidence and will not disclose to anyone (other than its personnel who need to know such information in connection with their work under this Agreement) or use, except in connection with the Services provided hereunder, Third Party Information, unless expressly authorized by an officer of the Disclosing Party in writing.
7. 5.1.6.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.
PROPRIETARY RIGHTS.
1. 6.1.Ownership. CONSULTANT will be the sole and exclusive owner of all right, title, and interest in, to all deliverables (if any) that were created by CONSULTANT during the course of, and in connection with, the Services (the “Foreground IP”). In any event and notwithstanding any provision in any Order, CONSULTANT shall retain and remain the sole owner of all JFrog Background IP and any improvements thereof. In this Agreement, the term “JFrog Background IP” means and includes all rights and interest and related Intellectual Property Rights in (i) the know-how and professional knowledge including without limitation, to the processes, reports, images, designs, procedures and methods that were used by JFrog for the provision of the Services; and/or (ii) any and all intellectual property that has been owned, held by, or licensed to, JFrog prior to the commencement of this Agreement or prior to the provision of the relevant Services; and/or (iii) any and all intellectual property developed or to be developed by JFrog relating to the business of JFrog or to the actual or anticipated business, research or development of JFrog. In this Agreement, the term “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.
2. 6.2.Nothing contained in this Agreement shall be construed as conferring upon YOU, by implication, operation of law or otherwise, any license or other right in or to JFrog Background IP.
3. 6.3.YOU hereby irrevocably and unconditionally assign and transfer to CONSULTANT all right, title and interest that YOU may now or hereafter have in the Foreground IP and Background IP. YOU agree that YOU will cooperate with CONSULTANT in performing any and all acts necessary to secure the CONSULTANT’s or its nominee patent, trademark, copyright or other intellectual property protection for any such JFrog Background IP and Foreground IP.
LIMITED WARRANTY; LIMITATION OF LIABILITY.
1. 7.1.YOU acknowledge that to the extent the Services to be provided by the CONSULTANT hereunder are based upon information supplied by YOU, among other certain elements, reports, samples and models, the CONSULTANT does not guarantee or warrant such Services to any specifications, function or other standards, except as specifically set forth hereunder.
2. 7.2.EXCEPT AS EXPRESSLY STATED IN THIS SECTION BY CONSULTANT, THE CONSULTANT 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.
3. 7.3.IN NO EVENT SHALL THE CONSULTANT 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, CONSULTANT’S CUMULATIVE LIABILITY TO YOU FOR ANY CLAIMS AND DAMAGES RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL PAYMENT ACTUALLY PAID BY YOU TO THE CONSULTANT AS SET FORTH IN THIS AGREEMENT DURINNG THE PERIOD OF TWLEVE (12) MONTHS PRECEEDING TO THE OCCURRENCE OF SUCH EVENT.
4. 7.4.YOU EXPRESSLY AGREE THAT THE WARRANTY SET FORTH IN THIS AGREEMENT SHALL CONSTITUTE THE SOLE WARRANTY OF THE CONSULTANT WITH RESPECT TO SERVICES AND THE PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT AND THE RESPECTIVE STATEMENT OF WORK.
MISCELLANEOUS.
1. 8.1.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. 8.2.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. 8.3.Equitable Relief. Each Party agrees that any breach of Section 5 above by it would 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. 8.4.Waivers. No delay or failure by either party to exercise or enforce at any time any right or provision of this Agreement will be considered a waiver thereof or of such Party’s right thereafter to exercise or enforce each and every right and provision of this Agreement. No single waiver will constitute a continuing or subsequent waiver.
5. 8.5.Severability; Reformation. In case any one or more of the provisions (or parts of a provision) contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision (or part of a provision) of this Agreement; and this Agreement shall, to the fullest extent lawful, be reformed and construed as if such invalid or illegal or unenforceable provision (or part of a provision), had never been contained herein, and such provision (or part of the provision) reformed so that it would be valid, legal and enforceable to the maximum extent possible. Without limiting the foregoing, if any provision (or part of provision) contained in this Agreement shall for any reason be held to be excessively broad as to duration, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the fullest extent compatible with then existing applicable law.
6. 8.6.Assignment. This Agreement shall be binding upon and inure to the benefit of each party’s successors and assigns. Notwithstanding the foregoing, unless otherwise stated herein, neither Party shall assign, by operation of law or otherwise, any of its rights or obligations hereunder nor permit the same to be assigned by operation of law, except with the other Party’s prior written consent provided (which consent shall not be unreasonably withheld or delayed), except that either Party, without consent, may assign this Agreement in connection with an M&A transaction, change of control, sale of all or substantially all of its assets, or any similar transaction of such Party.
7. 8.7.Notices. Any notices or other communications required hereunder shall be in writing and shall be deemed given when delivered in person or when mailed, by certified or registered first class mail, postage prepaid, return receipt requested, addressed to the parties at their addresses specified in the preamble to this Agreement or to such other addresses of which a party shall have notified the other in accordance with the provisions of this Section 8.8, and shall be deemed effectively given upon the earlier of actual receipt or: (a) personal delivery to the notified party, (b), if sent by electronic mail or facsimile (with electronic confirmation of receipt) on the recipient’s next business day, (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.
8. 8.8.Costs and Expenses. Each Party will pay its own costs and expenses in connection with the preparation, negotiation and execution of this Agreement.
9. 8.9.Force Majeure. Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure, provided, however, that YOU shall pay the CONSULTANT any sums due and owing to it as of the date of such termination. “Force Majeure” means any circumstances beyond such Party’s control including, but not limited to, war, invasion, acts of terror, act of foreign enemy, whether war be declared or not, hostile action, civil war, rebellion, civil strife, sabotage, strikes and/or industrial disputes, act of government and acts of God.
10. 8.10.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. 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 Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
11. 8.11.Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the parties hereto relating to the subject matter of this Agreement.
12. 8.12.Headings; Interpretation. Headings and subheadings are for convenience only and shall not be deemed to be a part of this Agreement. The preamble, exhibits and schedules to this Agreement constitute an integral part hereof. Words in the singular shall include the plural and vice versa; words in the masculine shall include the feminine and vice versa; and reference to a person shall also include corporate bodies and other legal entities.

Last updated: July 15, 2019