QWAK AGREEMENT – TRIAL

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This JFrog Agreement – Trial (this Agreement”), is entered into as of the date last signed by a Party below (“Effective Date”) and Qwak AI Ltd. and/or its Affiliates (“Qwak”) and Customer, which  governs access and use of the proprietary end-to-end MLOps management platform for machine learning models for build, training, production, deployment, management, monitoring and/or data processes, including any other JFrog ML software, portal, features or add-ons, hosted and managed either by Qwak or by Customer, (“JFrog ML Services”) and documentation (accessible online at https://docs.qwak.com/docs/introduction) (“Documentation”) by Customer. The JFrog ML Services may be hosted and managed by Qwak on behalf of Customer (“JFrog Cloud”), or by or on behalf of Customer (“Self-Hosted”).  THIS AGREEMENT TAKES EFFECT WHEN CUSTOMER CLICKS THE “I ACCEPT” OR SIMILAR BUTTON OR BY ACCESSING OR USING THE JFROG ML SERVICES (“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 ML SERVICES.  

  1. ACCESS AND USE OF JFROG ML SERVICES.

  1. License. Subject to the terms and conditions of this Agreement, Qwak 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 ML Services JFrog ML Services (and download and install any self-hosted feature) 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 Qwak may provide or impose, in its sole discretion. Nothing herein requires Qwak to provide any support, maintenance, service levels, service credits, or updates for the JFrog ML Services JFrog ML Services. 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. 

  1. Restrictions on Use. Customer will be solely responsible for all use of the Services and Documentation, including compliance with this Agreement, applicable laws and regulations. Customer shall not, nor shall it permit, facilitate, or otherwise allow any other person or entity to: (i) access or use the JFrog ML Services: (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, unless specifically authorized under the Documentation; or (D) in a manner that does not comply with this Agreement (including the applicable Order Form), the Acceptable Use Policy, the Documentation, and/or with Qwak’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 ML Services, and/or or any other method intended to avoid incurring fees which would otherwise be incurred for such access or use; (iii) make available, provide use of, pledge, or market the JFrog ML Services, 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 Qwak’s brand features, warranties, or disclaimers, or any intellectual property or proprietary rights notices from the JFrog ML Services 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”), unlawful Customer Data, viruses or other malicious content or code into or through the JFrog ML Services; (vi) translate, reverse-translate, decipher, decode, disassemble, or otherwise reverse-engineer the JFrog ML Services; (vii) breach, bypass, or otherwise interfere with security-related or limiting features of the JFrog ML Services; (viii) copy, modify, or create derivative works of, the JFrog ML Services  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 ML Services, without prior written approval from Qwak; (x) rent, lease, transfer, sell, distribute, sublicense, assign, publish, resell, pledge, loan, market, or otherwise provide use of or make available the JFrog ML Services to any entity or person, including on or in connection with any service bureau arrangement, facility management or third-party training, except as expressly allowed under the license grant in this Agreement; (xi) violate this Agreement or the  Acceptance Use Policy; (xii) delete, remove, obscure, alter or modify in any way any proprietary, intellectual property, or other notices or attributions in the Services including any Qwak Marks, brand features, warranties, disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services or Documentation; (xiii) upload or transmit any sensitive personal data or special categories of personal data as defined by applicable data protection laws or, without limiting any of the foregoing, patient, medical or protected health information as regulated by the U.S. Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (HIPAA); (xv) Customer will take appropriate precautions to prevent unauthorized access to or use of the JFrog ML Services using the same degree of care Customer uses to protect its own systems and services, but in no event less than a reasonable degree of care, and notify Qwak immediately of any such unauthorized access or use. The Services are not intended for use by anyone under the age of 18 and Customer is responsible for ensuring that all users are at least 18 years old.

Customer Data” means any data, content, materials, computer software, code (including, for avoidance of doubt, source code), binary artifacts, containers, configuration files, images, music, audio files, or other sounds, photographs, videos, and any other software and information uploaded to the JFrog ML Services  or otherwise provided to Qwak which are provided by, on behalf of, or at the direction of Customer or its users within the JFrog ML Services, including from third-party products. 

  1. Additional Terms for Self-Hosted. THIS SECTION APPLIES TO 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 ML SERVICES ON A CLOUD PLATFORM (THAT MEETS MINIMUM TECHNICAL SPECIFICATIONS TO BE PROVIDED BY Qwak); AND (II) STORE AND PROCESS THE CUSTOMER DATA. 

2. TERM, SUSPENSION AND TERMINATION. This Agreement shall commence on the Effective Date and continue until the expiration of the trial period. Qwak 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 ML Services and Documentation, and promptly destroy all copies of the JFrog ML Services (in the case of the Self-Hosted), Documentation, and Qwak ’s Confidential Information; and (b) Qwak 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 Qwak, Qwak 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.

  1. 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. Qwak reserves all rights not expressly granted to Customer hereunder. Customer hereby grants Qwak 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 ML Services  to Customer; and (b) worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into Qwak’s or its Affiliates’ products, services, or technology, any feedback provided by Customer relating to the operation of the JFrog ML Services  and its services. Nothing herein grants any implied licenses or restricts, limits, or otherwise affects the ability of Qwak or its Affiliates to collect, use, store, disclose, or otherwise process any: (a) data about access and use of the JFrog ML Services by Customer. Customer hereby irrevocably consents to Qwak monitoring and recording Customer's access and use of the JFrog ML Services.

  1. CONFIDENTIALITY. Customer shall: (a) keep Qwak’s Confidential information confidential; (b) not use Qwak’s Confidential Information, except solely to exercise its rights and fulfill its obligations under this Agreement; and (c) not disclose Qwak’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” Qwak’s Confidential Information for the purposes described in the foregoing (b); and (ii) are bound by confidentiality obligations no less stringent than those herein. “Qwak’s Confidential Information” includes confidential information disclosed by its Representatives in connection with this Agreement. 

  1. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.

  1. 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 Qwak in accordance with this Agreement in connection with the JFrog ML Services, 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 Qwak 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 ML Services to, or make the JFrog ML Services 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.

  1. Disclaimers. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE JFROG ML SERVICES  IS LICENSED TO CUSTOMER ON AN “AS IS” BASIS AND QWAK 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 QWAK 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 QWAK OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) QWAK ’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 ML Services at its sole risk and responsibility and solely in accordance with the Documentation and the applicable third-party license agreement.

  1. INDEMNIFICATION. Customer will indemnify, defend, and hold harmless Qwak and its Affiliates from and against any claim, demand, suit or proceeding made or brought against Qwak by a third party arising out of its access and use of the JFrog ML Services, and will indemnify and hold harmless Qwak from any damages awarded against Qwak as a result of, or for any amounts paid by Qwak under a settlement approved by Customer in writing, together with all reasonable attorney fees and costs incurred in connection with such litigations or settlements. Qwak 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 Qwak to admit liability, pay money, or take or refrain from any action without the prior written consent of Qwak.

  1. 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.

  1. 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 governing law and courts for any dispute or claim arising out of or in connection with this Agreement depend on where the Customer is domiciled, in accordance with the following table: 



Row If Customer is domiciled in Governing law Courts with exclusive and sole jurisdiction (including non-contractual)
I The USA; or a country in North America, Central America, South America or the Caribbean State of California, USA 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 A country in EMEA (Europe, Middle East, and Africa) or APAC (Asia Pacific), excluding countries in row III or IV below English Courts in London, UK
III Israel Israel Tel Aviv, Israel
IV Bahrain, Belgium, Egypt, France; French Polynesia, Indonesia, Kuwait, Luxembourg, Malaysia, New Caledonia, Qatar, Saudi Arabia or United Arab Emirates France Paris, France
V Anywhere else Israel Tel Aviv, Israel