ARTIFACTORY PRO AND PROX CLOUD TERMS OF SERVICE

THIS ARTIFACTORY PRO AND PROX CLOUD TERMS OF SERVICE (THE “AGREEMENT” or “TERMS”) IS MADE BETWEEN YOU AND THE APPLICABLE JFROG ENTITY AS SET FORTH IN SECTION ‎15.2 (“JFROG” OR “WE” OR THE “COMPANY”). PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF AGREEMENT BEFORE ACCEPTING, AND/OR BEFORE REGISTERING FOR THE SERVICE. BY REGISTERING, ACCESING OR USING THE SERVICE (AS DEFINED BELOW), YOU HEREBY: (I) ACCEPT AND AGREE TO THESE TERMS; AND (II) REPRESENT THAT YOU ARE ACTING ON BEHALF OF A COMPANY, ORGANIZATION OR ENTITY, AND THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY, ORGANIZATION OR ENTIY TO THE TERMS AND CONDITIONS SET FORTH HEREIN. JFROG AND YOU MAY BE REFERRED TO IN THIS AGREEMENT, INDIVIDUALLY, AS “PARTY” AND, COLLECTIVELY, AS “PARTIES.”

DEFINITIONS.
1. 1. 1. “Service(s)” means JFrog’s cloud service known as “Artifactory Pro Cloud” or “Artifactory ProX Cloud” as described at: https://jfrog.com/pricing/#cloud (or any other website that replaces such website; the “Website”), developed, operated, and maintained by Us, accessible via the Website or any other designated partner web site, service names, domains or IP address, and/or any ancillary online products and services provided to You by Us, to which You are being granted access under this Agreement. The Service includes Your ability to store the Customer Data (as defined below) on the Amazon Web Services, Microsoft Azure or on the Google Cloud Platform (collectively, the “Cloud Platforms”), and/or to migrate the Customer Data from one Cloud Platform to another, subject to terms of this Agreement and the payment of the applicable Fees. We reserve the right to add, change, remove and/or modify the Services, including modifications to functionality, presentation and companion products after providing prior notification on the Website and the Service. To the extent We include access to third party services in or through the Services, We will have no responsibility or liability with respect to such third party services.
    2. “Software” means the software code used as part of the Service, both in connection with the Services rendered under this Agreement, together with all other related and accompanying documentation (the “Documentation”), provided by Us via the Service, and any update or a new release of the Software.
    3. “System” means the Software, the Services and all associated processes.
    4. “Xray Output” means the reports, alerts, results, information, content and/or indications that You obtain through Your use of the Xray product.

2.SERVICE. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND PAYMENT OF APPLICABLE FEES, WE HEREBY GRANT YOU, AND YOU HEREBY ACCEPT, A NON-EXCLUSIVE, NON-TRANSFERABLE AND FULLY REVOCABLE RIGHT TO USE THE SYSTEM SOLELY FOR YOUR OWN INTERNAL USE AND FOR YOUR OWN OPERATIONS DURING THE APPLICABLE SUBSCRIPTION TERM (AS DEFINED BELOW).

3. RESTRICTIONS ON USE. EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT, YOU SHALL NOT, NOR PERMIT ANYONE ELSE TO, DIRECTLY OR INDIRECTLY:

1. 1. allow others to access or use the Service;
  2. attempt to decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, programming or interoperability interfaces of the Service;
  3. modify, convert, alter, change, manipulate, divide, part or revise the Service, or any part thereof;
  4. assign, sublicense, resell, transfer, distribute, pledge, loan, lease, market, rent, or use the Service in any service bureau arrangement, facility management or third-party training, or otherwise share Your rights under this Agreement with any third party;
  5. circumvent, disable or otherwise interfere with security-related features of the System or features that enforce limitations on its use;
  6. delete or in any manner remove or alter our trade names, copyright, trademarks, service marks, logos, domain names, and other distinctive brand features and notices;
  7. use the Service to transmit, distribute, or otherwise make available through or in connection with the Service, any computer code, artifact, component or any software to any third party which is not You or Your affiliate;
  8. transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or in connection with the Service;
  9. access or use the Service for the purpose of bringing an intellectual property infringement claim against Us or for the purpose of creating a product or service competitive with the Service.
  10. access or use the Service in a manner that is not in compliance with the Documentation and/or with Our specific instructions;
  11. export any underlying software of the Service in violation of export administration regulations of the United States or any other applicable country;
  12. use the Service for any purpose or in any manner involving ‘Protected Health Information’ under HIPAA if You are (or becomes) a ‘Covered Entity’ or ‘Business Associate’ under HIPAA.

4. TITLE AND INTELLECTUAL PROPERTY. YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SYSTEM, IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT THE SOFTWARE AND THE DOCUMENTATION, INCLUDING ANY REVISIONS, CORRECTIONS, MODIFICATIONS, ENHANCEMENTS AND/OR UPGRADES THERETO ARE OUR PROPERTY PROTECTED UNDER ANY APPLICABLE LAWS AND TREATIES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHT, TITLE AND INTERESTS IN AND TO THE SYSTEM, INCLUDING ASSOCIATED INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO, COPYRIGHTS, TRADE SECRETS, TRADEMARKS, ETC.), EVIDENCED BY OR EMBODIED IN AND/OR ATTACHED/CONNECTED/RELATED TO THE SYSTEM ARE AND SHALL REMAIN WITH US. THIS AGREEMENT DOES NOT CONVEY TO YOU AN INTEREST IN OR TO THE SYSTEM, BUT ONLY A LIMITED RIGHT OF USE OF THE SYSTEM, REVOCABLE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT CONSTITUTES A WAIVER OF OUR INTELLECTUAL PROPERTY RIGHTS UNDER APPLICABLE LAW.

5.THIRD PARTY COMPONENTS. THE SERVICE MAY USE OR, INCLUDE OR ALLOW ACCESS TO CERTAIN SOFTWARE, FILES, COMPONENTS, THIRD PARTY SERVICES AND MATERIALS THAT ARE SUBJECT TO OPEN SOURCE AND/OR THIRD-PARTY LICENSE TERMS (“THIRD PARTY COMPONENTS”). A LIST OF OPEN SOURCED THIRD-PARTY COMPONENTS IS AVAILABLE AS PART OF THE DOCUMENTATION AND MAY BE UPDATED FROM TIME TO TIME (THE “ABOUT BOX“). WITH RESPECT TO ANY THIRD-PARTY COMPONENT THAT IS NOT OPEN SOURCE, WE WILL PASS THROUGH ANY WARRANTY WE RECEIVE FROM THE PROVIDER OF SUCH THIRD-PARTY COMPONENT.

6. CONFIDENTIALITY; PRIVACY.

1. 1. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. You agree that We may identify You as a user of the System and use Your trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by Us on Our website for promotional purposes. 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.
  2. Your personal data collected by us during the Term of this Agreement will be treated in accordance with our Privacy Policy, available at: https://jfrog.com/privacy-policy/ and incorporated herein by reference.

7. CUSTOMER DATA AND ANALYTICS INFORMATION.

Customer Data. Operation of the Service and the provision of the services hereunder require us to monitor traffic and content (including encrypted content) transmitted by Your networks and require You to provide, upload, transmit, or make accessible to us such data (collectively, the “Customer Data”). You hereby agree that We will collect, monitor, store and use the Customer Data, on Your behalf, to provide the Service. For the removal of doubt, You will control the access to the Customer Data and have full administrative control over such data, including the right to view or modify it. As between You and Us, the intellectual property rights and all other rights, title and interest of any nature, in and to the Customer Data, which may be stored on Your database, are and shall remain Your exclusive property. We shall be considered granted a non-revocable, non-exclusive, assignable, sub-licensable, royalty-free license to use, in accordance with any applicable privacy laws, the Customer Data to provide the Service. Except as set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests in the Customer Data to Us or any third party.
Analytical Data. You agree that during the Subscription Term We may collect, use, store and transmit technical and related information that is being collected from Your use of the Service (“Analytical Data”), including information that may identify Your computer (including the Internet Protocol Address), browser type, operating system, and application usage. Analytical Data is gathered periodically to facilitate the provision of the Service and the underlying software and the Maintenance hereunder, as well as to enable us to provide You with other services. Any Analytical Data gathered shall be used in the aggregate, anonymously and Your identity may not be derived from such data. We are and shall remain the sole owner of the Analytical Data.

8. SUBSCRIPTION TERM; FEES

1. To commence use of the Service and be granted with access to the System, You shall accept the terms herein and the commercial terms of the respective subscription as set forth in the Website, online registration form or a service order provided by Us, as applicable (collectively, the “Service Order”), including the selection of a Cloud Platform on which You choose to store Customer Data and use the Service as any other information relating thereto (the “Subscription”). Unless otherwise set forth in a Service Order, the “Subscription Term” for a Subscription will be for intervals of one month, which will automatically renew for succeeding one month period, unless cancelled or terminated as set forth in this Agreement.
2. Fees. You shall pay Us the fees applicable to the Subscription as set forth in the Service Order The Fees may comprise of both fixed fees associated with the Subscription (“Fixed Fees”), as well as fees for data consumption throughout the Subscription Term (the “Usage Fees”, and together with the Fixed Fees, the “Fees”). The Fees shall be paid at the end of each month during the Subscription Term and will be charged via the credit card the details of which were provided during the registration process.
3. Prepaid Subscriptions. To the extent your Service Order is for a fixed Subscription Term and not on a recurring one month basis (“Prepaid Subscription”), the following will apply: (i) The Fees will be paid in advance at the beginning of the Subscription Term and are nonrefundable; (ii) In the determining the Fees for the Subscription Term the Usage Fees will be based on Your anticipated data usage during the Subscription Term; (iii) to the extent the actual data usage exceeds the anticipated usage, You will be obligated to additional Usage Fees, to cover the then anticipated data usage throughout the remaining Subscription Term.
4. We reserve the right to modify the Fees at any time, upon 30 days prior written notice, which notice may be provided by e-mail or via the Service; such new prices shall not apply for an active Subscription during the then-active Subscription Term.
5. In the event that You request to migrate Your data between the Cloud Platforms (“Platform Migration”), You hereby acknowledge that in addition to the Fees, overlapping payments shall apply in connection therewith.
6. Taxes. All amounts payable under this Agreement 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 Agreement by any authority, except for taxes payable on Our net income. If any such tax or duty must be withheld or deducted from any payment made by You under this Agreement, You shall gross-up such payment by an amount that will ensure that after applying the required withholding or deduction, We shall receive an amount equal to the payment otherwise required by it.
7. In addition to other remedies available to it, JFrog expressly reserves the right to suspend or terminate the Services and notify You of such termination or suspension, in the event You fail to pay the Fees on a timely manner. You further agree and acknowledge that We have no obligation to retain Your Data and that it may be deleted from the Service if You have failed to pay any outstanding Fees when due. To the extent You utilized the services of a third party (e,g, reseller) for the payment of the Fees to Us, You hereby agree and acknowledge that the failure by such third party to pay the Fees to Us shall be considered a breach of this Agreement and will entitle Us to the foregoing remedies.
8. Trial Version. We may offer a free trial subscription to the Service (“Trial Version“). The Trial Version, if any, shall commence on the date that We issue You with the login credentials and the applicable license to use and will conclude at a time and date specified by Us at our discretion (the “Trial Period”). In addition, the Trial Version shall grant You the ability to use an amount of data (for both storage and transfer) and system resources as shall be defined by Us at our sole discretion and may be limited to certain Cloud Platforms (as shall be indicated by Us at our sole discretion). You acknowledge and agree that the terms of this Agreement are applicable and binding upon You during the Trial Period and that: (i) to the maximum extent permitted by applicable law, JFrog disclaims all obligations or liabilities with respect to Trial Version, including any warranty, and indemnity obligations; and (ii) We reserve the right to terminate Your right to use the Trial Version during the Trial Period at any time and for any reason in Our sole discretion, without liability to You.

8. SUBSCRIPTION TERM; FEES

To commence use of the Service and be granted with access to the System, You shall accept the terms herein and the commercial terms of the respective subscription as set forth in the Website, online registration form or a service order provided by Us, as applicable (collectively, the “Service Order”), including the selection of a Cloud Platform on which You choose to store Customer Data and use the Service as any other information relating thereto (the “Subscription”). Unless otherwise set forth in a Service Order, the “Subscription Term” for a Subscription will be for intervals of one month, which will automatically renew for succeeding one month period, unless cancelled or terminated as set forth in this Agreement.
Fees. You shall pay Us the fees applicable to the Subscription as set forth in the Service Order The Fees may comprise of both fixed fees associated with the Subscription (“Fixed Fees”), as well as fees for data consumption throughout the Subscription Term (the “Usage Fees”, and together with the Fixed Fees, the “Fees”). The Fees shall be paid at the end of each month during the Subscription Term and will be charged via the credit card the details of which were provided during the registration process.
Prepaid Subscriptions. To the extent your Service Order is for a fixed Subscription Term and not on a recurring one month basis (“Prepaid Subscription”), the following will apply: (i) The Fees will be paid in advance at the beginning of the Subscription Term and are nonrefundable; (ii) In the determining the Fees for the Subscription Term the Usage Fees will be based on Your anticipated data usage during the Subscription Term; (iii) to the extent the actual data usage exceeds the anticipated usage, You will be obligated to additional Usage Fees, to cover the then anticipated data usage throughout the remaining Subscription Term.
We reserve the right to modify the Fees at any time, upon 30 days prior written notice, which notice may be provided by e-mail or via the Service; such new prices shall not apply for an active Subscription during the then-active Subscription Term.
In the event that You request to migrate Your data between the Cloud Platforms (“Platform Migration”), You hereby acknowledge that in addition to the Fees, overlapping payments shall apply in connection therewith.
Taxes. All amounts payable under this Agreement 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 Agreement by any authority, except for taxes payable on Our net income. If any such tax or duty must be withheld or deducted from any payment made by You under this Agreement, You shall gross-up such payment by an amount that will ensure that after applying the required withholding or deduction, We shall receive an amount equal to the payment otherwise required by it.
In addition to other remedies available to it, JFrog expressly reserves the right to suspend or terminate the Services and notify You of such termination or suspension, in the event You fail to pay the Fees on a timely manner. You further agree and acknowledge that We have no obligation to retain Your Data and that it may be deleted from the Service if You have failed to pay any outstanding Fees when due. To the extent You utilized the services of a third party (e,g, reseller) for the payment of the Fees to Us, You hereby agree and acknowledge that the failure by such third party to pay the Fees to Us shall be considered a breach of this Agreement and will entitle Us to the foregoing remedies.
Trial Version. We may offer a free trial subscription to the Service (“Trial Version“). The Trial Version, if any, shall commence on the date that We issue You with the login credentials and the applicable license to use and will conclude at a time and date specified by Us at our discretion (the “Trial Period”). In addition, the Trial Version shall grant You the ability to use an amount of data (for both storage and transfer) and system resources as shall be defined by Us at our sole discretion and may be limited to certain Cloud Platforms (as shall be indicated by Us at our sole discretion). You acknowledge and agree that the terms of this Agreement are applicable and binding upon You during the Trial Period and that: (i) to the maximum extent permitted by applicable law, JFrog disclaims all obligations or liabilities with respect to Trial Version, including any warranty, and indemnity obligations; and (ii) We reserve the right to terminate Your right to use the Trial Version during the Trial Period at any time and for any reason in Our sole discretion, without liability to You.

9. TERMS AND TERMINATION

This Agreement is effective commencing on the date of the Service Order, or the date upon which You have subscribed through the Website to the Service (the “Effective Date”) and until the earlier of the following: (i) other than for a Prepaid Subscription, until terminated by either party upon a thirty (30) days prior written notice; (ii) upon the expiration of all Prepaid Subscriptions; or (iii) until terminated otherwise in accordance with these terms (the “Term”).
Upon any violation by You of any of the provisions of this Agreement, which has not been remedied within seven (7) days after You have been given written notice of the violation, which may be made via email, rights to use the System shall automatically terminate.
Upon termination or expiration of this Agreement: (i) We will cease from providing the Services hereunder, the license granted to You under this Agreement shall expire, and You shall discontinue all further use of the System; (ii) You shall immediately permanently delete all copies of the Documentation in Your or any of its representatives’ possession or control; (iii) We shall immediately return and /or permanently delete (as instructed by You) and certify to You, within fourteen (14) business days, that it has done so, all Customer Data provided by You pursuant to this Agreement, provided that the We will retain any Analytical Data which is derived from the use of the System and from the provision of the Services; (iv) any sums paid by You until the date of termination are non-refundable, and You shall not be relieved of its duty to discharge in full all due sums owed by You to Us under this Agreement until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration the Agreement. Upon termination or expiration of this Agreement, You will lose all access to any Customer Data that We may be storing in order to make the System available to You. You shall be responsible to download Your Customer Data prior to termination of this Agreement. Termination of this Agreement shall not limit Us from pursuing any other remedies available to it under the applicable law.
The provisions of this Agreement that, by their nature and content, must survive any expiration or termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, including without limitation, the provisions regarding Title and Intellectual Property (Section 4), Third Party Components (Section 5), Confidentiality (Section 6), Fees (Section 8), Limitation on Warranty (Section 11). Limitation of Liability (Section 12), Indemnification (Section 13), and Miscellaneous (Section 16).

COMPENSATION & SLA FOR DOWN TIME EVENTS. IF THE SERVICES WILL NOT BE OPERATIONAL AND AVAILABLE TO YOU AT LEAST 99.9% OF THE TIME IN ANY CALENDAR MONTH, YOU WILL BE ELIGIBLE TO RECEIVE THE ARTIFACTORY ONLINE SERVICE CREDITS DESCRIBED BELOW.

This Down Time Compensation provision states Your sole and exclusive remedy for any failure by We to provide the Services.
Definitions: The following definitions shall apply to the Down Time Compensation provision.
1. “Downtime” means, for Service(s), if there is more than a five percent user error rate. Downtime is measured based on Artifactory Online server side error rate. “Downtime” does not include the time period during which the Customer Data is migrated from one server to another and is unavailable for use (We will advise You as to the applicable migration period).
2. “Downtime Period” means, for a domain, a period of ten consecutive minutes of Downtime, excluding any Scheduled Downtime. Intermittent Downtime for a period of less than ten minutes will not be counted towards any Downtime Periods.
3. “Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in a calendar month, divided by the total number of minutes in a calendar month.
4. “Scheduled Downtime” means those times where JFrog notifies its customers of periods of Downtime at least three days prior to the commencement of such Downtime. Scheduled Downtime is not considered Downtime for purposes of this Down Time Compensation provision, and will not be counted towards any Downtime Periods.
5. “Service Credit” means the following:
  
  Monthly Uptime Percentage Calendar Days of Service added to the end of the Service term, at no charge to You
  
  < 99.9% – ≥ 99.0% 1
  
  < 99.0% – ≥ 90.0% 7
  
  < 90.0% 30
You Must Request Service Credit. In order to receive any of the Service Credits described above, You must notify Us within thirty (30) days from the time You become eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Your right to receive a Service Credit.
Maximum Service Credit. The aggregate maximum number of Service Credits to be issued by Us to You for any and all Downtime Periods that occur in a single calendar month shall not exceed thirty days of Services added to the end of Your term for the Services. Service Credits may not be exchanged for, or converted to, monetary amounts.

11. LIMITATION ON WARRANTY. JFROG WARRANTS FOR YOUR BENEFIT ALONE, THAT THE SYSTEM, IF OPERATED AS SPECIFICALLY DIRECTED BY US, SHALL OPERATE SUBSTANTIALLY IN ACCORDANCE WITH THE FUNCTIONAL SPECIFICATIONS IN THE DOCUMENTATION AND AS SPECIFICALLY PROVIDED BY US. WE DO NOT WARRANT HOWEVER THAT THE USE OF THE SYSTEM WILL BE UNINTERRUPTED OR THAT USE OF THE SYSTEM WILL BE ERROR FREE OR SECURE. OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY BY JFROG SHALL BE THE DOWN TIME COMPENSATION AS SET FORTH ABOVE AND THE REPAIR OF THE DEFECT THAT DOES NOT MEET THIS LIMITED WARRANTY, WITHIN REASONABLE TIME. THE FOREGOING WARRANTY APPLIES ONLY TO FAILURES IN OPERATION OF THE SYSTEM THAT ARE REPRODUCIBLE IN STANDALONE FORM AND DOES NOT APPLY (I) IF THE DEFECT IS CAUSED BY FAULTY MAINTENANCE, INSTALLATION OR SET-UP, BY ALTERATIONS UNDERTAKEN WITHOUT OUR CONSENT OR BY FAULTY REPAIRS; (II) IF THE DEFECT WOULD HAVE BEEN AVOIDED BY THE USE OF A CURRENT UPDATE OF THE SYSTEM THAT WE MAKE GENERALLY AVAILABLE TO ITS CUSTOMERS; (III) IF THE DEFECT IS CAUSED BY THE COMBINATION, OPERATION OR USE OF THE SYSTEM WITH SOFTWARE, HARDWARE OR OTHER MATERIALS NOT LICENSED HEREUNDER AND NOT CONFORMING OUR SPECIFICATIONS SET FORTH IN THE DOCUMENTATION; (IV) IF THE SYSTEM IS OTHERWISE OPERATED IN VIOLATION OF THIS AGREEMENT OR OTHER THAN IN ACCORDANCE WITH THE DOCUMENTATION; (V) IF THE DEFECT IS CAUSED DUE TO PROBLEMS INHERENT TO THE USE OF THE INTERNET AND/OR ELECTRONIC COMMUNICATIONS.

EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE LICENSE TO USE THE SYSTEM AS SET FORTH HEREIN, IS PROVIDED FOR THE USE OF THE SYSTEM “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND JFROG DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; NO LICENSOR, DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. JFROG SHALL NOT BE RESPONSIBLE FOR (I) UNAUTHORIZED ACCESS TO, ALTERATION AND/OR LOSS TO THE CUSTOMER DATA, INCLUDING IN CONNECTION WITH A PLATFORM MIGRATION EXCEPT TO THE EXTENT THAT SUCH ACCESS OR ALTERATION IS DUE TO JFROG’S WILLFUL MISCONDUCTAND (II) ANY DAMAGE OR LOSS INCURRED TO CUSTOMER, YOUR ORGANIZATION OR ANY THIRD PARTY AS A RESULT OF OR IN CONNECTION WITH THE USE OF XRAY OUTPUT AS WELL AS FOR ANY DECISIONS CUSTOMER MAKES BASED ON THE XRAY OUTPUT.

12. LIMITATION OF LIABILITY. CUSTOMER HEREBY AGREES THAT IN NO EVENT SHALL JFROG OR ITS SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SALE OF, USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF JFROG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN CUSTOMER AND JFROG. IN NO EVENT WILL JFROG BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT JFROG ACTUALLY RECEIVED FROM CUSTOMER FOR THE SPECIFIC LICENSE SUBSCRIBED FOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING, WHICH IS GIVING RISE TO THE LIABILITY. CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT JFROG WOULD NOT PROVIDE THE SYSTEM EXCEPT UNDER THE TERMS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.

13. INDEMNIFICATION. THE COMPANY ACKNOWLEDGES AND AGREES TO DEFEND, AT ITS EXPENSE, ANY THIRD PARTY ACTION OR SUIT BROUGHT AGAINST YOU ALLEGING THAT THE SYSTEM INFRINGES INTELLECTUAL PROPERTY RIGHTS HELD BY ANY THIRD PARTY (“IP INFRINGEMENT CLAIM“), AND WE WILL PAY ANY DAMAGES AWARDED IN FINAL JUDGMENT AGAINST YOU THAT ARE ATTRIBUTABLE TO ANY SUCH CLAIM; PROVIDED THAT (I) YOU NOTIFIED US PROMPTLY IN WRITING OF SUCH CLAIM; AND (II) YOU WILL GRANT US AUTHORITY TO HANDLE THE DEFENSE OR SETTLEMENT OF ANY SUCH CLAIM, SUIT OR PROCEEDING AND WILL PROVIDE US WITH ALL REASONABLE INFORMATION AND ASSISTANCE, AT OUR EXPENSE. WE WILL NOT BE BOUND BY ANY SETTLEMENT THAT YOU ENTER INTO WITHOUT OUR PRIOR WRITTEN CONSENT. IF THE SYSTEM BECOMES, OR IN OUR OPINION IS LIKELY TO BECOME, THE SUBJECT OF AN IP INFRINGEMENT CLAIM, THEN WE MAY, AT OUR SOLE OPTION AND EXPENSE (A) PROCURE FOR YOU THE RIGHT TO CONTINUE USING THE SYSTEM; (B) REPLACE OR MODIFY THE SYSTEM TO AVOID THE IP INFRINGEMENT CLAIM; OR (C) IF OPTIONS (A) AND (B) CANNOT ACCOMPLISHED DESPITE OUR REASONABLE EFFORTS, THEN WE MAY DISCONTINUE PROVIDING THE SERVICES AND GRANT YOU CREDIT FOR THE PRICE OF THE SERVICES ALREADY PAID BY YOU WITH RESPECT TO THE PERIOD FOLLOWING SUCH EVENT. NOTWITHSTANDING THE FOREGOING, WE SHALL HAVE NO RESPONSIBILITY FOR IP INFRINGEMENT CLAIM RESULTING FROM OR BASED ON: (I) MODIFICATIONS TO THE SYSTEM MADE BY A PARTY OTHER THAN US OR OUR DESIGNEE; (II) YOUR FAILURE TO USE UPDATED OR MODIFIED SYSTEM PROVIDED BY US SPECIFICALLY TO AVOID INFRINGEMENT; OR (III) COMBINATION OR USE OF THE SYSTEM WITH EQUIPMENT, DEVICES OR SOFTWARE NOT SUPPLIED OR AUTHORIZED BY US OR NOT IN ACCORDANCE WITH OUR 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 Us, Our 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 System; (ii) Your violation of any term of this Agreement (including without limitation any warranties provided herein); and/or (iii) a third party claim, suit or proceeding that use of You Data within the scope of this Agreement infringes any proprietary or privacy right of a third party.

14. EXPORT CONTROL. YOU SHALL COMPLY WITH ALL APPLICABLE GOVERNMENT TRADE AND EXPORT CONTROL LAWS AND REGULATIONS WITH RESPECT TO THE SYSTEM. YOU AGREE THAT THE SYSTEM WILL NOT BE TRANSFERRED OR EXPORTED INTO ANY COUNTRY OR USED IN ANY MANNER PROHIBITED BY ANY APPLICABLE LAWS IN ANY JURISDICTION.

15. MISCELLANEOUS

Compliance with Laws. Each Party shall be 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 its rights and obligations hereunder.
Contracting Entity; Governing Law and Jurisdiction.
1. With respect to Customers domiciled in North America, South America, or Australia: (i) this Agreement shall be entered into by JFrog, Inc., a Delaware corporation with its principal place of business at 270 East Caribbean Drive, Sunnyvale, California 94089, on behalf of itself and its affiliates; and (ii) this Agreement shall be construed and governed in accordance with the laws of the State of California and the United States, without giving effect to any principles of conflicts of laws thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The competent state or federal courts San Francisco or Santa Clara County, California shall have sole and exclusive jurisdiction over all disputes between the Parties, and the Parties further agree and submit to the exercise of personal jurisdiction of such courts for litigating any such claim or action.
2. With respect to Customers domiciled in any other country other than those in North America, South America, or Australia: (i) this Agreement shall be entered into by JFrog Ltd., an Israeli company with its principal place of business at 3 Hamachshev St., Netanya, Israel, on behalf of itself and its affiliates; and (ii) 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 and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The competent courts Tel Aviv, Israel shall have sole and exclusive jurisdiction over all disputes between the Parties, and the Parties further agree and submit to the exercise of personal jurisdiction of such courts for litigating any such claim or action.
3. 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.
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 a Party of any of its confidentiality obligations contained herein or any unlawful action made in connection with intellectual property rights, may result in irreparable and continuing damage to the other party for which there may be no adequate remedy at law, the breaching Party acknowledges and agrees that money damages will not be a sufficient remedy for any such breach or actions, and therefore the damaged Party will be entitled, in addition to money damages, to specific performance and injunctive relief and any other appropriate equitable remedies in connection therewith. Such remedies shall not be deemed to be the exclusive remedies for such events, but shall be in addition to all other remedies available at law or in equity.
Entire Agreement; Assignment. You agree that this Agreement is a complete and exclusive statement of the agreement between the parties and supersedes any proposals or prior agreement, oral or written, and any other communications relating to the subject matter of this Agreement. You may not assign its right and obligations under this Agreement without Our prior consent. Notwithstanding the foregoing, either Party may assign this Agreement 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 Agreement applies. The Party assigning this Agreement shall provide the other Party with a notice to that effect as soon as practical.
Changes to this Agreement. This Agreement including any referenced policies and other documents, may be amended, updated or changed by Us, from time to time. Unless expressly stated otherwise, any modification shall become effective upon the renewal of the respective Subscription. For the avoidance of doubt, and unless otherwise agreed upon in writing, any Subscription is subject to the version of the Agreement in effect at the time of the Order Form.

last updated on May 19, 2020

Monthly Uptime Percentage	Calendar Days of Service added to the end of the Service term, at no charge to You
< 99.9% – ≥ 99.0%	1
< 99.0% – ≥ 90.0%	7
< 90.0%	30