JFrog Cloud – General Terms

Last Updated: November 1, 2022

THESE JFROG CLOUD GENERAL TERMS OF SERVICE (THE “AGREEMENT”) ARE MADE BETWEEN YOU (“YOU”) AND JFROG (“JFROG” OR THE “COMPANY”). PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE REGISTERING FOR THE SERVICE. BY SIGNING AN ORDER FORM (AS DEFINED BELOW) THAT INCORPORATES THESE TERMS, OR BY REGISTERING FOR THE SERVICE (AS DEFINED BELOW), YOU HEREBY: (I) ACCEPT AND AGREE TO THESE TERMS; AND (II) REPRESENT THAT IF YOU ARE ACTING ON BEHALF OF A COMPANY, ORGANIZATION OR OTHER LEGAL ENTITY, THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY, ORGANIZATION OR LEGAL ENTITY 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. Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 1.
1. “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means the ownership of at least fifty percent (50%) of the voting interests of such entity or the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.
2. “Cloud Marketplace” means an online directory, digital catalog, or marketplace of software listings from cloud computing service providers supported by the JFrog Software.
3. “Customer Artifacts” means artifacts provided by, on behalf of or at the direction of You in connection with Your software or services.
4. “Customer Data” means Customer Artifacts, Login Credentials and traffic and content, including encrypted content, transmitted by Your networks in connection with the Service.
5. “Documentation” means the written and/or electronic end user or technical documentation pertaining to the Service as provided by JFrog.
6. “Eligible Features” means those features and functions of the Service that are eligible for use with respect to a Subscription Level purchased by You. A list of Eligible Features included in each Subscription Level of the Service is available at https://jfrog.com/pricing/. JFrog may, from time to time, modify the Eligible Features of a Subscription Level during a Subscription Term, provided that such modification shall not materially adversely impact the functionality of the Service.
7. “Instance” means a server on a Cloud Platform selected by You and managed by JFrog.
8. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, modifications or corrections thereto, including all derivative works, renewals, extensions and restorations, now or hereafter in force and effect worldwide.
9. “Internal Use” means use of the Service in Your internal operations, under the direction and solely for the benefit of You and excludes any access to or use of the Service by any Non-User Third Parties except as expressly set forth herein.
10. “JFrog Cloud Data Processing Agreement” means either JFrog Cloud Data Processing Agreement for GDPR available at https://jfrog.com/jfrog-cloud-data-processing-addendum/ or JFrog Cloud Data Processing Agreement for CCPA available at https://jfrog.com/jfrog-ccpa-addendum/, as applicable.
11. “Login Credentials” means the name, username and email address of each User as provided by You which allows Users to access and use the Service.
12. “Monthly Subscription” means a Subscription of one (1) month via online registration on the Website, which will automatically renew for subsequent one (1) month periods unless terminated as set forth herein.
13. “Non-User Third Parties” means those third parties who are not Users and granted limited rights to access and use the Service as set forth in this Agreement.
14. “Order Form” means an ordering document, whether by way of an online registration to the Software through the Website, Cloud Marketplace, or by way of another document between the parties, that identifies the commercial terms of a purchase of a Subscription to the Service, including the applicable Subscription Level, Subscription Term, and the associated Fees.
15. “Prepaid Subscription” means a Subscription with a minimum Subscription Term of twelve (12) months unless otherwise set forth in an Order Form.
16. “Report” means output of the Service which presents data in a visual and/or textual manner.
17. “Reseller” means a third party authorized by JFrog to sell a Subscription to You.
18. “Self-Hosted Artifactory Edge” means a JFrog artifactory edge instance on a computer, device or network owned, controlled or managed by You.
19. “Software” means software that is licensed to Customer by JFrog as part of the Service, including the Service’s underlying software and any other software provided by JFrog which is designated to be self-hosted and interoperate with the Service (“Self-Hosted Software”). Software includes its binary code, compilation of data, visual display resulting from the operation of the Service, any associated materials, specifications, Documentation, and all updates and upgrades that are made generally available by JFrog to its customers during the applicable Subscription Term. Self-Hosted Software may be subject to additional terms, as applicable.
20. “Subscription” means a JFrog plan, including all applicable Eligible Features, to which You subscribe or is set forth in an Order Form to access and use the Service.
21. “Subscription Level” means the Eligible Features and the System Resources You will be entitled to use as part of the Service.
22. “Subscription Term” means the effective term of a Subscription.
23. “System Resources” means the consumption metric and features by which the Service or an Eligible Feature is billed as set forth on an Order Form, including, but not limited to, amount of Customer Data storage, amount of Customer Data transfer, and CI/CD minutes.
24. “Trial Period” means the duration of a Trial Version as determined by JFrog in its sole discretion.
25. “Trial Version” means a trial Subscription to the Service.
26. “Usage Data” means information about Your use of the JFrog Service, which includes version, setup, configuration, integration and consumption.
27. “Users” means Your employees, contractors, consultants, service providers or development partners of or Your Affiliates authorized by You to access and use the Service.
28. “Website” means JFrog website at www.jfrog.com
THE CLOUD SERVICE.
1. Description of Service. JFrog Cloud is an online software-as-a-service platform managed and provided by JFrog comprised of various tools and JFrog proprietary Software providing customers with an end-to-end, hybrid, universal DevOps platform for continuous software development and release management (the“Service”). The Service includes those Eligible Features applicable to the Subscription Level You registered for or as set forth in the applicable Order Form and may also include access to certain third-party services.
2. License. Subject to the terms and conditions of this Agreement, Company grants You a non-exclusive, non-transferable, non-sublicensable, limited and fully revocable right solely during the Subscription Term for You and Your Users to access and use the Service solely for Your Internal Use in connection with the development of Your or Your Affiliates’ proprietary software on a cloud server hosted by Amazon Web Services, Microsoft Azure or Google Cloud Platform selected at Your option (each, a “Cloud Platform”).
3. Limited Distribution Rights. Subject to the terms and conditions of this Agreement and solely in connection with Enterprise and Enterprise+ Subscription Levels, Company grants You a non-exclusive, non-transferable, non-sublicensable, limited and fully revocable right solely during the Subscription Term to grant Non-User Third Parties with limited download-only access to and use of Your Instance(s) for the sole purpose of downloading Customer Artifacts by such Non-User Third Parties. You are expressly prohibited from permitting such Non-User Third Parties to upload any information, data, artifacts or software to the Service or use the Service in any other manner. You shall not, nor permit anyone else to, copy and/or cache Customer Artifacts or other information derived from the Service for the purpose of re-serving such Customer Artifacts by You or Non-User Third Parties to other third parties. You represent and warrant that there are no third-party beneficiaries in connection with the Service, including but not limited to, any rights to support, downtime compensation, representations or warranties. You acknowledge that the Fees set forth in the applicable Order Form shall include all downloads by Non-User Third Parties, including incomplete downloads. A breach of this Section 2.3 shall be deemed a material breach of this Agreement.
4. Self-Hosted Artifactory Edges. Subject to the terms and conditions of this Agreement and solely in connection with the Enterprise+ Subscription Level and to the extent included in an applicable Order Form, Company grants You a non-exclusive, non-transferable, non-sublicensable, limited and fully revocable right solely during the Subscription Term to download and install a self-hosted instance of Self-Hosted Artifactory Edge solely for Your Internal Use in connection with the development of Your proprietary software. You shall only install the number of Self-Hosted Artifactory Edges as set forth in an applicable Order Form. You agree to update all Self-Hosted Artifactory Edges within eighteen (18) months after the release date of the version installed by You. Except as expressly set forth herein, no other right nor interest in or relating to the Self-Hosted Artifactory Edge is transferred or granted to You.
5. Improvement of Service. As part of Company’s continued efforts to improve the Service, Company may add or remove features and functionalities or increase or decrease limits and System Resources related to the Service. JFrog shall provide You with reasonable advance notice prior to making any changes that materially adversely impact the core functionality of the Service. Any changes impacting unpaid Subscriptions or Trial Versions may be applied without advance notice.
RESTRICTIONS ON USE. Except as expressly permitted by this Agreement, You shall not, nor permit anyone else to, directly or indirectly:
1. allow any person, entity or third party other than You, Your Affiliates or Your Users 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, 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 Service or features that enforce limitations on its use;
6. delete or in any manner remove or alter JFrog’s 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 owned, licensed by or in the lawful possession of You, Your Affiliates or Your Users;
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 JFrog or for the purpose of creating a product or service competitive with the Service;
10. access or use the Service in a manner that does not comply with the Documentation and/or with JFrog’s specific instructions;
11. attempt to manipulate, interfere with or otherwise take any action which bypasses Your applicable Subscription Level, including performing repository replication outside of Your organization or by using proxy or caching mechanism;
12. export any underlying software of the Service or any other software or data in connection with the Service in violation of export administration regulations of the United States or any other applicable country; and
13. except for Login Credentials, upload to or use the Service in any manner involving any personal information as defined under applicable data protection and privacy laws and regulations, including without limitation (i) information relating to biometric or genetic data, health, racial or ethnic origin, political opinions, religious or philosophical beliefs, sex or sexual orientation, trade union membership, or personal payment or financial information, (ii) consumer reports as defined in the Fair Credit Reporting Act, as amended, (iii) nonpublic personal information as defined under the Gramm-Leach-Bliley Act, as amended, (iv) protected health information as defined under the Health Insurance Portability and Accountability Act, as amended (“HIPAA”) that has not been de-identified in compliance with HIPAA, or (v) special categories of personal data as defined in the General Data Protection Regulation, as amended (“GDPR”).
14. Suspension for Breach. JFrog may suspend Your access to the Service if JFrog reasonably believes that Your is in breach of Section ‎3 or Your use of the Service may cause damage to Your Instance or the Cloud Platform. JFrog shall use reasonable efforts to notify You of such suspension in advance and may provide reasonable assistance to You to remediate such breach or mitigate such risk to the Service.
SUBSCRIPTION TO THE SERVICE
1. Registration. You may register (i) for a Monthly Subscription to the Service via the Website by creating a username and a password and providing the necessary information required by JFrog to use the Service (“Registration”), or (ii) for a Prepaid Subscription by executing an Order Form. You shall select the Subscription Level and the Cloud Platform on which Your Customer Data will be stored and hosted at the time of Registration for Monthly Subscriptions. You may upgrade or downgrade the Subscription Level for a Monthly Subscription through the Service.
2. Login Credentials. Your are responsible for maintaining the confidentiality of Login Credentials and for all activities that occur under Your Instance. You agree to immediately notify JFrog of any unauthorized use of the Service or Login Credential or any other breaches of security related to Your Instance of which You become aware.
3. Trial Version. JFrog, in its sole discretion, shall determine the Subscription Level, Eligible Features, Trial Period and System Resources for any Trial Version. Any Trial Version shall commence on the date that JFrog issues the initial Login Credentials to You. You acknowledge and agree that the terms of this Agreement apply to any Trial Version during the Trial Period and that: (i) except for JFrog’s indemnification obligations and to the maximum extent permitted by applicable law, JFrog disclaims all obligations, warranties and liabilities with respect to Trial Version; and (ii) JFrog reserves the right, in its sole discretion, to terminate Your right to use and access any Trial Version during the Trial Period at any time and for any reason without liability.
4. Maintenance and Support. For certain Subscriptions Levels, JFrog shall provide You with maintenance and support services as set forth in JFrog’s Service Level Agreement available at https://jfrog.com/platform/sla/.
FEES
1. Generally. Fees are comprised of both fixed fees associated with the applicable Subscription Level (“Fixed Fees”) and fees for consumption of additional System Resources during the Subscription Term (“Usage Fees”; together with the Fixed Fees, the “Fees”). Except as set forth herein, all Fees for Prepaid Subscriptions and Monthly Subscriptions are non-refundable. JFrog reserves the right to modify the Fees at any time, upon thirty (30) days prior written notice, which notice may be provided by e-mail or via the Service, provided that the new prices shall not apply to Your current Subscription but only to Your next renewal of the Subscription.
2. Monthly Subscriptions. You shall pay the Fees for the applicable Subscription Level for Monthly Subscriptions as set forth on the Website or as otherwise set forth in an Order Form. The Fees shall be paid by charging the credit card You provided at Registration at the end of each month during the Subscription Term.
3. Prepaid Subscriptions. You shall pay the Fees for all Prepaid Subscriptions as set forth in the applicable Order Form. Unless otherwise provided in an Order Form, the following shall apply to all Prepaid Subscriptions: (i) JFrog shall invoice You for all applicable Fees upon commencement of the Subscription Term; (ii) all Fees shall be allocated to Your account as credits for the applicable Subscription (“Account Credit”); (iii) Account Credit will be available for use during the applicable Subscription Term; (iv) the Usage Fees as set forth in an Order Form are an estimate based on the anticipated data usage and consumption during the Subscription Term as determined by You; (v) the applicable Usage Fees based on Your actual usage of System Resources for a month shall be deducted from the Account Credit at the end of each month during the Subscription Term; and (vi)to the extent Your actual usage of System Resources exhausts all Account Credit prior to the end of the Subscription Term, You shall be invoiced for additional applicable Fees at the end of the month in accordance with JFrog’s current price list unless set forth otherwise in an applicable Order Form.
4. Migration Costs. If You requests to migrate Customer Data from one Cloud Platform to another Cloud Platform (“Platform Migration”), You agree that Fees for the usage of both Cloud Platforms shall apply in connection with and during such Platform Migration.
5. Taxes. All Fees and amounts payable under this Agreement are exclusive of sales, use, value-added, withholding, and other taxes and duties. You shall pay all taxes and duties assessed by any authority in connection with this Agreement, except for taxes payable on JFrog’s 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, JFrog shall receive an amount equal to the payment otherwise owed to JFrog.
6. Suspension and Termination for Non-Payment. In addition to other remedies available to JFrog, JFrog expressly reserves the right to suspend or terminate the Service or this Agreement and notify You of such termination or suspension if You fail to pay any applicable Fees when due. You further agree and acknowledge that (i)JFrog has no obligation to retain Customer Data after termination of Your Subscription; and (ii) JFrog may delete Customer Data if You have failed to pay any outstanding Fees when due.
7. Resellers. You may purchase Prepaid Subscriptions through a Reseller. If You chooses to use a Reseller, You hereby agree and acknowledge that: (i) JFrog and Reseller will enter into an Order Form in which You will be the “ship to” party and Reseller will be the “bill to” party; (ii) JFrog will not be bound by any commitment, agreement or understanding entered into between You and Reseller; (iii)JFrog shall not be liable for any acts or omissions of Reseller; (iv) Your use of and access to the Service will be governed by the terms and conditions of this Agreement; and (v) the failure of Reseller to pay all applicable Fees to JFrog shall be considered a breach of this Agreement entitling JFrog to all remedies set forth herein, including but not limited to those in this Section 5.7.
CUSTOMER AND USAGE DATA.
1. Customer Data. As between You and JFrog, You own and will retain all right, title and interest of any nature, including all Intellectual Property Rights, in and to Customer Data. You maintain full administrative control over Customer Data including the right to view and modify it. You grant JFrog a worldwide, non-exclusive, sublicensable, royalty-free license to collect, store, monitor and use Customer Data solely (i) during the Subscription Term, (ii) on Your behalf and (iii) as necessary to provide the Service to You in accordance with this Agreement. Except as set forth herein, nothing in this Agreement shall be construed as transferring or conferring any right, title or interest in or to Customer Data to JFrog or any third party.
2. Usage Data. You agree that during the Subscription Term, JFrog may store, use, and transmit Usage Data to facilitate the provision of the Service, support and maintenance, account maintenance, account management and billing. JFrog may also use Usage Data in an aggregate, anonymous, de-identified form to develop and improve the Service. You agree that JFrog owns all Usage Data.
CONFIDENTIALITY; PRIVACY.
1. Definition. “Confidential Information” means any information of a Party (“Discloser”), whether written, other tangible form or verbal, that is disclosed to or observed by the other party (“Recipient”) in connection with this Agreement, which at the time of disclosure is marked as being “Confidential” or “Proprietary” or is reasonably identifiable as confidential given the nature of the information or the circumstances of disclosure. Confidential Information may include, but is not limited to, ideas, inventions, procedures, processes, specifications, software, computer programs, trade secrets, know-how, methods, business plans, financial data and analyses, financial forecasts, marketing plans, roadmaps, customer and supplier information, drawings, models or other intellectual property. Confidential Information shall not include any information that Recipient can demonstrate by its written records that: (i) was already known to Recipient at the time of disclosure; (ii) is independently developed by or for Recipient without reference to or use of Discloser’s Confidential Information; (iii) is obtained from a third party without a breach of confidentiality obligations; or (iv) is or becomes publicly known or generally available to the public without Recipient’s breach of this Agreement.
2. Use and Non–Disclosure. Recipient shall: (i) protect Discloser’s Confidential Information using the same degree of care Recipient uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care; (ii) use Confidential Information solely to exercise rights and fulfill obligations under this Agreement; (iii) only disclose Confidential Information to its Affiliates, employees, officers, directors, agents, contractors, professional advisors, or consultants (collectively, “Representatives”) who (A)“need to know” the Confidential Information in connection with rights and obligations under this Agreement and (B) are bound by confidentiality obligations no less stringent than those in this Agreement; and (iv) not reverse engineer, disassemble, decompile nor remove proprietary markings from Confidential Information without Discloser’s prior written consent. Recipient shall be liable for any breach of this Agreement by its Representatives.
3. Compelled Disclosure. Recipient may disclose Confidential Information to the extent required by applicable law, regulatory authority, or a court of competent jurisdiction (“Compelled Disclosure”), provided that Recipient (i) gives prompt written notice to Discloser of such Compelled Disclosure when legally permissible, (ii)reasonably cooperates with Discloser in seeking a protective order or otherwise preventing or restricting such disclosure, and (iii) only discloses that portion of Confidential Information required to comply with the Compelled Disclosure.
4. Return of Confidential Information. Upon written request and as directed by Discloser, Recipient shall promptly return or destroy all documents and materials containing Confidential Information of Discloser in its possession or under its control, including all copies, notes and extracts thereof, and confirm in writing such destruction or return. Notwithstanding the foregoing, Recipient may maintain copies of the Confidential Information as required for legal or regulatory purposes or as part of its standard archival or computer back-up systems, provided that such Confidential Information shall continue to be subject to the terms of this Agreement.
DATA SECURITY AND PRIVACY
1. Security Program. JFrog will maintain a security and privacy program which will in all material aspects comply with relevant industry standards and be designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. As part of this program, JFrog will:
  1. Implement appropriate environmental and physical security measures to prevent unauthorized physical access to restricted information and the systems managing it;
  2. Manage and restrict access solely to the resources necessary for users (application, database, network, and system administrators) to perform authorized functions;
  3. Require strong authentication and encryption that meets industry security standards for any remote access to Confidential Information and JFrog’s network;
  4. Have an external third party conduct an annual penetration test on the Service, whose executive report may be shared with You upon written request;
  5. Employ appropriate measures of identification and access controls to JFrog’s systems and data;
  6. Provide all JFrog employees with an appropriate level of periodical training on organizational security and privacy measures; and
  7. Conduct risk assessment processes to regularly assess information security risks.
2. Compliance, Audit and Certification. JFrog shall validate compliance with its security and privacy program annually and audit its controls and infrastructure in line with the applicable risk level, JFrog’s policies and procedures, legal and regulatory requirements and generally accepted industry practices.
3. Data Breach. JFrog will promptly notify You of a confirmed Data Breach unless such notification is delayed or prohibited by an act or order of any governmental agency or other similar authority. JFrog will provide You with a description of the nature of the Data Breach, including a description of the measures taken to address the Data Breach, mitigation measures if applicable, and likely consequences of the Data Breach. JFrog will reasonably assist You with conducting investigations and analysis required by You. JFrog shall take all necessary steps consistent with good industry practice, and taking into account the severity of the risk, to resolve such Data Breach as quickly as possible and to prevent its recurrence. For the purposes of this section, a “Data Breach” shall mean any unauthorized, accidental or unlawful destruction, loss, alteration, disclosure of, or access to Customer Data.
4. Privacy. Your personal data collected by JFrog during the Term of this Agreement will be treated in accordance with its privacy policy, available at: https://jfrog.com/privacy-policy/ and incorporated herein by reference.
5. Processing of Personal Data. To the extent JFrog processes any personal information on Your behalf in connection with the Service, the provisions of the applicable JFrog Cloud Data Processing Agreement shall apply.
JFROG’S INTELLECTUAL PROPERTY RIGHTS.
1. Ownership. All right, title, and interest in and regarding the Service, Software and Documentation, including associated Intellectual Property Rights, are and shall remain with JFrog, its Affiliates, subsidiaries and/or their respective suppliers and licensors. Except as expressly set forth herein, no other right nor license is granted to or implied under any of JFrog’s Intellectual Property Rights. This Agreement does not convey any interest in or to the Service beyond the limited right of use expressly granted in Section ‎2 above.
2. Third Party Components. The Service and Self-Hosted Software may use, include or allow access to certain software, files, components, third party services and materials as well as certain software that is subject to open source and/or third-party license terms (“Third Party Components”). A list of open-sourced Third Party Components, as may be updated by JFrog from time to time, is available in the Documentation and on the Website (the “About Box“). To the extent You connect Third Party Components to the Service, You expressly acknowledge and agree that, to the extent permitted by applicable law, use of any such third party services in conjunction with the Service or Self-Hosted Software is at Your sole risk and without warranty of any kind by JFrog, whether express or implied, including without limitation, the implied warranties of merchantability, non-infringement, performance, and fitness for a particular purpose.
3. JFrog Marks. JFrog’s marks and logos and all other proprietary identifiers used by JFrog in connection with the Service (“JFrog Marks”) are all trademarks and/or trade names of JFrog and/or its Affiliates. No right, license, or other interest to the JFrog Marks is granted hereunder, and any use thereof shall be limited to the terms of the JFrog Brand Guidelines available at https://jfrog.com/brand-guidelines/.
4. Feedback. If You contact JFrog with feedback data (e.g., questions, comments, suggestions, etc.) regarding the Service (collectively, “Feedback”), such Feedback shall be deemed to be non-confidential, and JFrog shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into its products and services.
5. Publicity Rights.JFrog may identify You as a customer in JFrog’s promotional materials, website or other public communications. You hereby grant JFrog a limited and revocable world-wide license to use Your company name and logo in connection therewith. You may request that JFrog cease doing so by submitting an email to service@jfrog.com at any time.
SERVICE WARRANTY.
1. Warranty. JFrog warrants for Your benefit alone, that the Service, if operated as specifically directed by JFrog and as set forth in this Agreement, shall operate substantially in accordance with the functional specifications in the Documentation. JFrog does not warrant that the use of the Service will be uninterrupted or error free. JFrog’s sole liability and Your sole and exclusive remedy for any breach of the warranty in this Section 10.1 shall be the Down Time Compensation as set forth in Section 1 and repair of the defect within a reasonable time.
2. Limitations. The foregoing warranty applies only to failures in operation of the Service that are reproducible in standalone form and does not apply (i) if the defect is caused by unauthorized or faulty maintenance, installation, repairs or modifications; (ii) if the defect would have been avoided by the use of an update of the Service made generally available to JFrog’s customers; (iii) if the defect is caused by the combination, operation or use of the Service with software, hardware or other materials not authorized by JFrog; (iv) if the Service is operated in violation of this Agreement or not in accordance with the Documentation; or (v) if the defect is caused by problems inherent to the use of the internet and/or electronic communications.
3. GENERAL DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE LICENSE TO USE THE SERVICE AS SET FORTH HEREIN IS PROVIDED TO YOU ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE. JFROG SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO, ALTERATION AND/OR LOSS TO CUSTOMER DATA, INCLUDING IN CONNECTION WITH A PLATFORM MIGRATION, EXCEPT TO THE EXTENT THAT SUCH ACCESS OR ALTERATION IS DUE TO JFROG’S GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OR BREACH OF THIS AGREEMENT.
4. OUTPUT DISCLAIMER. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ALL USE OF THE SERVICE IS AT YOUR SOLE RISK. EXCEPT AS SET FORTH HEREIN, YOU ARE SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICE OR ANY OUTPUT THEREOF (INCLUDING ANY REPORTS, LISTS, GRAPHS, INSIGHTS, STATISTICS, ETC.) AS WELL AS FOR ANY DECISIONS YOU MAKE BASED ON SUCH RESULTS. THE SERVICE AND ANY REPORT SHOULD NOT BE CONSIDERED LEGAL ADVICE, AND ANY INFORMATION IN A REPORT IS PROVIDED FOR CONVENIENCE PURPOSES ONLY. JFROG DOES NOT GUARANTEE: (I) THAT A REPORT IS INCLUSIVE OF ALL INSTANCES, COMPONENTS, LIBRARIES AND DEPENDENCIES OF OPEN SOURCE OR THIRD PARTY SOFTWARE INCLUDED IN YOUR INSTANCE, OR ALL LICENSES AND VULNERABILITIES THEREUNDER; AND (II) THAT THE ANNOTATION OF SUCH INSTANCES, COMPONENTS, LIBRARIES AND DEPENDENCIES IS COMPLETE OR ACCURATE.
5. Support. For certain Subscription Levels, JFrog will also provide You with support services in accordance with JFrog’s Service Level Agreement, a copy of which is available on the Website.
DOWNTIME COMPENSATION.
1. Downtime. If the Service (excluding any third party services used in conjunction with the Service) is not operational and available to You at least 99.9% of the time in any calendar month, You will be eligible to receive Service Credits as set forth below. The remedy set forth in this Section 11 is Your sole and exclusive remedy for any failure by JFrog to provide the Service.
2. Definitions. The following definitions apply to this Section 11:
  “Downtime” means, for the Service, if there is more than a five percent (5%) user error rate, Downtime is measured based on JFrog’s server-side error rate. Downtime expressly excludes Cloud Migrations when some or all of the Customer Data may be unavailable for use.“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.“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.“Scheduled Downtime” means those times where JFrog notifies its customers of periods of Downtime prior to the commencement of such Downtime. Scheduled Downtime is not considered Downtime for purposes of this Section 11 and will not be counted towards any Downtime Periods.“Service Credit” means the following:
  
  Monthly Uptime Percentage Number of Subscription Calendar Days Added to the End of the Subscription Term
  
  < 99.9% – ≥ 99.0% 1
  
  < 99.0% – ≥ 90.0% 7
  
  < 90.0% 30
3. You Must Request Service Credit. To receive any of the Service Credits described above, You must notify JFrog within thirty (30) days from the time You become eligible to receive a Service Credit. Failure to comply with this requirement shall forfeit Your right to receive a Service Credit.
LIMITATION OF LIABILITY.
1. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY LOSS OR DAMAGE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS AND BUSINESS INTERRUPTION), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 12.1 SHALL NOT APPLY TO YOUR BREACH OF THE RESTRICTIONS SET FORTH IN SECTION ‎3.
2. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ANY ORDER FORM OR THIS AGREEMENT SHALL LIMITED TO THE AMOUNT PAID OR PAYABLE BY YOU TO JFROG FOR THE PROVISION OF THE SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. THIS SECTION 12.2 SHALL NOT APPLY TO: (A) A BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS; (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, (C) YOUR BREACH OF THE RESTRICTIONS SET FORTH IN SECTION ‎3; (D) YOUR PAYMENT OBLIGATIONS TO JFROG; (E) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (F) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
INDEMNIFICATION.
1. Indemnification by JFrog. JFrog shall defend, indemnify and hold You harmless from and against any liabilities, damages, losses, costs, fees (including reasonable attorney’s fees) and expenses arising out of a third-party claim that the Service or the Software, when used as authorized hereunder, infringes any copyright, trademark, patent or other Intellectual Property Right (an “Infringement Claim”). In the event of an Infringement Claim, JFrog shall have the right in its sole discretion to either: (i) procure for You the right to continue using the Service in accordance with the terms of this Agreement; (ii) replace the allegedly infringing item with a non-infringing item of equivalent function and performance; (iii) modify the Service to avoid the claim without materially detracting from its function or performance; or (iv) terminate this Agreement upon written notice and provide a pro-rata refund of Fees attributable to the remaining Subscription Term as of the effective date of the termination. These are Your sole and exclusive remedies for any Infringement Claim.
2. Exclusions. This Section 13.1 will not apply to the extent the underlying allegation of an Infringement Claim arises from: (a)modifications to the Service not authorized or made by JFrog, but solely to the extent the alleged infringement is caused by such modification; (b)combination of the Service with other products, applications, or processes not authorized or made by JFrog, but solely to the extent the alleged infringement is caused by such combination; or (c) any unauthorized use of the Service.
3. Indemnification by You. You shall defend, indemnify and hold JFrog and its Affiliates, directors, officers and employees harmless from and against any liabilities, damages, losses, costs, fees (including reasonable attorney’s fees) and expenses arising from: (i) Your unauthorized use of the Service; (ii) a third-party claim, suit or proceeding that the use of the Customer Data or Customer Artifacts as set forth in this Agreement infringes any copyright, trademark, patent or other Intellectual Property Right; (iii) a claim, suit, proceeding or penalty that the distribution of Customer Data or Customer Artifacts as set forth in this Agreement infringes or violates any applicable export laws or regulations.
4. Indemnification Process. In the event a claim is brought against a Party hereto (“Indemnifying Party”), the Party seeking indemnification (“Indemnified Party”) shall provide the Indemnifying Party prompt written notice of the claim, provided that a failure to provide such notice shall only excuse the Indemnify Party’s to the extent it was materially prejudiced thereby. The Indemnifying Party shall have sole control and authority over the defense and/or settlement of the claim, provided that the Indemnified Party may join in defense with counsel of its own choice at its own expense. The Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement or compromise requiring Indemnified Party to admit liability, pay money or take (or refrain) from any action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed.
TERMINATION.
1. Monthly Subscriptions. Either Party may terminate a Monthly Subscription on thirty (30) days written notice. You may terminate a Monthly Subscription through the administrator portal of the Service. JFrog may terminate a Monthly Subscription for Inactivity upon written notice to You, which notice may be provided via email or the Service. For the purpose of this Agreement, “Inactivity” shall mean a Monthly Subscription for which there was no storage or transfer of Customer Data for thirty (30) consecutive days.
2. Termination for Material Breach. Either Party may terminate this Agreement upon the material breach of any term of this Agreement by the other Party (including without limitation, Your obligations to pay all Fees when due) which is not cured within fourteen (14) days following the delivery of such written notice.
3. Termination for Legal Cause. Either Party may terminate this Agreement if: (i)the other Party ceases operation without a successor; (ii) the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such Party (and not dismissed within sixty (60) days thereafter); or (iii) applicable law or applicable government or court order prohibits performance under this Agreement.
4. Effect of Termination. Upon termination or expiration of this Agreement: (i) JFrog will cease providing the Service to You; (ii) the licenses granted to You under this Agreement shall terminate; (iii)You shall cease all use of the Service and Software; and (iv) JFrog shall delete all Customer Data within sixty (60) days, provided that JFrog shall retain any Usage Data. Upon termination or expiration of this Agreement, You will lose all access to the Service and any Customer Data stored therein. You are responsible for downloading all Customer Data prior to termination or expiration of this Agreement, and JFrog shall not have any obligation to retain Customer Data after effective date of termination of this Agreement. The foregoing rights and obligations shall also apply to the termination or expiration of a Subscription, but solely to the specific Instance and Customer Data associated with the applicable Subscription.
5. Survival. Sections 1 (Definitions), 5.5 (Taxes), 7 (Confidentiality; Privacy), 9 (Intellectual Property Rights), 10.3 (General Disclaimer), 10.4 (Output Disclaimer), 12 (Limitation of Liability); 13 (Indemnification), 14.5(Effect of Termination), and 15 (Miscellaneous) and Your payment obligations to JFrog shall survive the termination of this Agreement.
MISCELLANEOUS.
1. Compliance with Laws. Each Party shall comply, at its own expense, with all applicable 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.
2. Governing Law and Jurisdiction.
  1. With respect to Customers domiciled in North America, South America, or Australia, 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, 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, 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.
3. Notices. Except as set forth herein, any notice required or permitted by this Agreement must be in writing and shall be effective upon receipt when sent by certified mail or recognized overnight delivery service to the address of the Party set forth above.
4. Severability; No Waiver; Amendment. If any term of this Agreement is or becomes invalid, illegal or unenforceable, the rest of the Agreement will remain in effect. No failure of either Party to enforce any rights under this Agreement shall act as a waiver of such rights. No modification or recission of this Agreement shall be binding unless executed in writing by the Party to be bound. Referenced policies and other documents may be amended from time to time by JFrog in its sole discretion.
5. No Obligation. Nothing in this Agreement shall obligate either Party to execute any Order Form between the Parties. The Parties are independent contractors, and nothing in this Agreement shall create any agency, partnership nor joint venture relationship between the Parties.
6. Conflicts. The terms of this Agreement shall take precedence over any conflicting terms in an Order Form unless expressly set forth to the contrary in such Order Form. Any terms in any purchase order, payment portal or otherwise shall not apply to Your use of the Service or this Agreement unless agreed to in writing by an authorized representative of JFrog.
7. Injunctive Relief. The Parties agree that a breach of confidentiality obligations or Intellectual Property Rights may result in irreparable harm for which there may be no adequate remedy at law. The non-breaching Party shall be entitled to seek equitable relief in any court of competent jurisdiction worldwide, including specific performance and injunctive relief, in addition to any other remedies available to it at law without the need to prove irreparable harm or post a bond or other security.
8. Entire Agreement; Assignment. This Agreement constitutes the complete, final and exclusive statement of the terms of the agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, representations or understandings. Neither Party may assign this Agreement without the prior written consent of the other Party, except that each Party may assign this Agreement to its Affiliate or in connection with a merger, acquisition, sale of all or substantially all of its assets, or any similar transaction of such Party. The Parties’ rights and obligations under this Agreement will bind and inure to the benefit of their permitted successors and assigns.
9. Changes to this Agreement. This Agreement including any referenced policies and other documents, may be amended, updated or changed by JFrog, 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 Your registration or the applicable Order Form. Any terms included in any purchase order, payment portal or otherwise shall not apply to Your use of the Service unless signed by a duly authorized representative of JFrog.

Monthly Uptime Percentage	Number of Subscription Calendar Days Added to the End of the Subscription Term
< 99.9% – ≥ 99.0%	1
< 99.0% – ≥ 90.0%	7
< 90.0%	30