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ORBITERA WEB SERVICES
1.1 “Authorized Users” means employees and individual contractors (e.g., temporary employees) of an Orbitera Customer that have been authorized by the Orbitera Customer to access the Orbitera Web Services via the Platform.
1.2 “Documentation” means the user manuals supplied in connection with licensed Software relating to the installation, use and administration of the Software.
1.3 “Orbitera” means Orbitera Inc., a Delaware corporation.
1.4 “Orbitera Customer” means the customer of Orbitera that has authorized you to use the Orbitera Web Services as an Authorized User of such Orbitera customer.
1.5 “Orbitera Customer Agreement” means the agreement between Orbitera and an Orbitera Customer permitting such Orbitera Customer to use the Orbitera Web Services via the Platform and to authorize Authorized Users to use the Orbitera Web Services.
1.6 “Orbitera Web Services” or “Software” means the online customer portal software made available via the Platform as an online service by Orbitera to Orbitera customers.
1.7 “Platform” means the combination of servers and client software used to deliver the Software.
2. Access to Orbitera Web Services.
2.1 Access Rights. Subject to the terms and conditions of this Agreement, Orbitera grants you the non-exclusive right to access and use the Orbitera Web Services solely on the Platform, in the manner and for the purposes described in the Documentation, solely during the period, and to the extent, that the Orbitera Customer is authorized to use and authorize Authorized Users to use the Orbitera Web Services on the Platform under the terms of the Orbitera Customer Agreement.
2.2 Limitations. You represent and warrant that you are an Authorized User under a currently valid and effective Orbitera Customer Agreement, and you agree and acknowledge that your use of the Software is subject to all applicable limitations contained in such Orbitera Customer Agreement. It is your responsibility to inquire with the Orbitera Customer as to any such limitations which apply to you.
2.3 Documentation. You may download and make copies of the Documentation solely for your personal use, but no more than the amount reasonably necessary. You must retain on all such copies all copyright and other proprietary notices that appear on or in the Documentation.
2.4 Other Restrictions. You agree not to modify, port, adapt or translate the Software, or to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. You are not permitted to sublicense, assign or transfer the Software or any rights in the Software, or authorize any portion of the Software to be accessed by another individual or entity. You are not permitted to (a) use the Software on behalf of third parties; (b) rent, lease, lend or grant other rights in the Software; or (c) using any component, library, database or other technology included with the Software other than solely in connection with your use of the Software.
3. Intellectual Property Rights.
The Software and any copies that you are authorized by Orbitera to make are the intellectual property of and are owned by Orbitera and its licensors. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Orbitera and its licensors. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software, and all rights not expressly granted are reserved by Orbitera.
By using the Platform to publicly offer trials of an Orbitera Customer’s software or solution, you authorize Orbitera to publicize such trials, including without limitation to use such Orbitera Customer’s name or logo on Orbitera web properties.
4. No Support.
You acknowledge and agree that Orbitera support obligations, if any, with respect to the Orbitera Web Services are solely to the Orbitera Customer, and you agree to seek all support for the Orbitera Web Services from the Orbitera Customer that has authorized you to be an Authorized User. Additionally, and for the avoidance of doubt, Orbitera has no liability and provides no support for the Platform.
5. No Warranties.
ORBITERA SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SOFTWARE. ORBITERA ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER AS A RESULT YOUR USE OF THE SOFTWARE.
ORBITERA DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY THIRD-PARTY MATERIALS OR SERVICES OFFERED BY OR THROUGH THE PLATFORM. ORBITERA MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT THE PLATFORM, AND SHALL NOT BE LIABLE FOR ANY THIRD PARTIES OR THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
ORBITERA WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF USING THE PLATFORM OR A THIRD PARTY USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. Limitations on Liability.
IN NO EVENT WILL ORBITERA OR ITS LICENSORS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER, INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, OR PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, EVEN IF AN ORBITERA REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. ORBITERA’S AGGREGATE LIABILITY AND THAT OF ITS LICENSOR’S UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF FIVE HUNDRED UNITED STATES DOLLARS ($500) OR THE AGGREGATE AMOUNT PAID BY YOU FOR THE SOFTWARE. THIS LIMITATION WILL APPLY EVEN IF ORBITERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 6 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
7. Notice to U.S. Government End Users.
The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All rights are reserved under the copyright laws of the United States. Orbitera Inc., 8391 Beverly Blvd. #449 Los Angeles, California 90048.
8. Export Rules.
You acknowledge that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that you will comply with the Export Laws. You are not permitted to ship, transfer, export or re-export the Software, directly or indirectly, to (a) any countries that are subject to US export restrictions (currently including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”), (b) any end user whom you know or have reason to know will use them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software. You represent and warrant that (i) you are not a citizen of, or located within, an Embargoed Country, (ii) you will not use the Software for a Prohibited Use, and (iii) you are not a Sanctioned Party. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
9. Term and Termination.
This Agreement shall remain in effect until either (a) any material breach of this Agreement by you occurs, (b) the termination or expiration of the applicable Orbitera Customer Agreement, or (c) other cancellation of the applicable Orbitera Customer’s right to use the Software under such agreement. Upon the occurrence of (a), (b) or (c) above, this Agreement shall automatically terminate. Upon termination of this Agreement for any reason, you must immediately discontinue all use of the Software, Documentation and all copies thereto. Termination shall not, however, relieve either party of obligations incurred prior to the termination. The following Sections shall survive any expiration or termination of this Agreement: 1 (Definitions), 3 (Intellectual Property Rights), 5 (No Warranties), 6 (Limitations on Liability), 7 (Notice to U.S. Government End Users), 9 (Term and Termination), 12 (Governing Law), and 13 (General Provisions). Orbitera reserves the right, in its sole discretion, to change, cease to provide or discontinue support for the Software at any time.
10. Third-Party Beneficiaries.
You acknowledges and agrees that Orbitera’s licensors are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or Orbitera.
11. Third Party Software.
The Software may contain third-party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http://orbitera.com/app/third-party-eula (or a successor website thereto) and are made a part of and incorporated by reference into this Agreement.
12. Governing Law.
This Agreement and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in the State of California. The courts of Orange County, California shall have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the following, the application of which is hereby expressly excluded: (a) the conflict of law rules of any jurisdiction, (b) the United Nations Convention on Contracts for the International Sale of Goods, and (c) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.
13. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. Updates and upgrades may be licensed by Orbitera with additional or different terms. This is the entire agreement between Orbitera and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. You agree to comply with all applicable laws and regulations pertaining to this Agreement.
TERMS OF SERVICE
THIS ENTERPRISE PLUS SAAS LICENSE AGREEMENT (THE “AGREEMENT” or “TERMS”) IS MADE BETWEEN YOU AND JFROG LTD. (“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.”
1. THE SERVICE.
1.1. JFrog Enterprise Plus is an online service (the “Service”) comprised of various tools and JFrog proprietary software, providing you with an end-to-end solution for the management and distribution of your software. This includes: JFrog Artifactory – High Availability, JFrog Xray – High Availability, JFrog Mission Control, JFrog Insight and JFrog Access and certain additional features. In addition, and to provide a comprehensive solution, any Subscription (as defined below) will also grant you a license(s) to JFrog Antifactory Edge, a proprietary software of JFrog as set forth in Section 1.4 below, as shall be set forth in the applicable Order Form.
1.2. Subject to the terms and conditions of this Agreement, and solely during the Subscription Term (as defined below) you will be granted with a non-exclusive, non-transferable, limited and fully revocable right to use the Service solely for your internal use on a cloud hosted by Amazon Web Services, Microsoft Azure or the Google Cloud Platform (each, a “Cloud Platform”), according to your choice (or according to certain limitations that may be set forth by JFrog at its sole discretion), and as set forth in the applicable Order Form.
1.3. To fully utilize the functionality of the Service and the underlying software, you will also be granted with, solely during the Subscription Term, a limited, revocable, nontransferable, non-sublicensable, nonexclusive license to download, install and make internal use of JFrog Artifactory Edge (the “Edge License”). An Edge License allows you to install such number of instances of Artifactory Edge as set forth in the Order Form.
1.4. Other than the rights expressly set forth in this section, no other right or interest whatsoever in or relating to the JFrog Artifactory Edge is transferred or granted to you. For the removal of doubt, unless explicitly stated otherwise, the term Service shall include the Edge License, and the terms herein shall apply, mutatis mutandis, to JFrog Artifactory Edge. The term Edge License includes all applicable software and its binary code, compilation of data, or visual display resulting from the operation of JFrog Artifactory Edge, and any associated materials, specifications and documentation.
2. RESTRICTIONS ON USE. Except as expressly permitted by this Agreement, you shall not, nor permit anyone else to, directly or indirectly:
2.1. allow others to access or use the Service;
2.2. 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;
2.3. modify, convert, alter, change, manipulate, divide, part or revise the Service, or any part thereof;
2.4. 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;
2.5. circumvent, disable or otherwise interfere with security-related features of the System or features that enforce limitations on its use;
2.6. 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;
2.7. 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;
2.8. transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or in connection with the Service;
2.9. use the System in a manner that is not in compliance with the Documentation and/or with JFrog's specific instructions;
2.10. export any underlying software of the Service in violation of export administration regulations of the United States or any other applicable country; and
2.11. use the Service for any purpose or in any manner involving 'Protected Health Information' under HIPAA if you are (or become) a 'Covered Entity' or 'Business Associate' under HIPAA.
3. SUBSCRIPTION TERMS; SUBSCRIPTION FEES; MAINTENANCE.
3.1. Subscription Terms. To commence use of the Service you shall accept the terms herein and the commercial terms of the respective subscription set forth in an Order Form (the “Subscription”), including selection of a Cloud Platform on which you choose to store your Customer Data and use the Service, the estimated data usage (for both storage and transit), number of licenses of JFrog Artifactory Edge, the effective date of the Subscription, as well as any other information relating thereto. The “Subscription Term” for that certain Subscription shall be set forth on an Order Form.
3.2. During the Subscription Term, a Subscription entitles you to: (i) access and use the Service under the terms and conditions set forth herein; and (ii) Service Level Agreement based support as shall be defined in the applicable Order Form (the “Maintenance”).
3.3. Fees. The Subscription fees shall be in accordance with JFrog’s then current fees, as shall be specified in the applicable Order Form. The Order Form will specify the fixed fees associated with the Subscription (“Fixed Fees”), as well as fees in connection with the anticipated data usage throughout the Subscription Term (the “Usage Fees”, and together with the Fixed Fees, the “Fees”). The Fees shall be paid in advance at the beginning of the Subscription Term, unless agreed otherwise in writing by JFrog. 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. JFrog reserves 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.
3.4. Platform Migration. You may request to migrate your Customer Data to a different Cloud Platform (a “Platform Migration”), you hereby acknowledge that in addition to the Fees, overlapping and other payments in connection therewith (at JFrog’s reasonable discretion) shall apply in connection therewith and shall be borne solely by you.
3.5. 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 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 required by it.
3.6. 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 JFrog at its 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 JFrog at its 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, we disclaim 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.
4. JFROG’S INTELLECTUAL PROPERTY RIGHTS.
4.1. For the purpose of this Agreement, “Intellectual Property Rights” shall mean 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 thereof, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
4.2. All right, title, and interest in and regarding the Service and the underlying software, and any related documentation, including associated Intellectual Property Rights, are and shall remain with JFrog, our affiliates, subsidiaries and/or their respective suppliers and licensors, and except, as expressly set forth herein, no other rights or licenses are granted or to be implied under any of JFrog’s Intellectual Property Rights. This Agreement does not convey any interest in or to the Service - solely a limited right of use.
4.3. Third Party Components. The Service may use or include certain software, files, components 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.
4.4. 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 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/.
4.5. Feedback. If you contact JFrog with feedback data (e.g., questions, comments, suggestions or the like) 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.
4.6. Publicity Rights. We may identify you as a customer of ours in our promotional materials, website or other public communications. You hereby grant us a limited and revocable world-wide license to use your company name and logo in connection therewith. You may request that we stop doing so by submitting an email to firstname.lastname@example.org at any time.
5. CUSTOMER AND ANALYTICAL DATA
5.1. 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.
5.2. 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 and Artifactory Edge (“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.
6.1. Each party (the “Receiving Party”) agrees to regard and preserve as confidential all non-public information related to the business activities of the other (the “Disclosing Party”) that is either designated as confidential or was disclosed in circumstances of confidence, or would be understood by the Parties, exercising reasonable business judgement, to be confidential (“Confidential Information”). The Receiving Party agrees to hold Confidential Information in trust and confidence for the Disclosing Party and not to disclose Confidential Information to any person, firm or enterprise, or use any Confidential Information for its own benefit or the benefit of any other party, unless authorized by the Disclosing Party in writing, and to limit access and disclosure of such Confidential Information to the Receiving Party’s personnel or service providers on a need-to-know basis only. Confidential Information does not include information that is (a) previously known to the Receiving Party, free from any obligation to keep it confidential, (b) publicly disclosed by the Disclosing Party either prior to or subsequent to the receipt by the Receiving Party of such information, (c) independently developed by the Receiving Party without any access to Confidential Information, or (d) rightfully obtained from a third party lawfully in possession of Confidential Information who is not bound by confidentiality obligations to the Disclosing Party. The Receiving Party may disclose Confidential Information if the Receiving Party is required to do so under applicable law, rule or order; provided that the Receiving Party, where reasonably practicable and to the extent legally permissible, provides the Disclosing Party with prior written notice of the required disclosure. Upon the earlier of: (i) the termination or expiration of this Agreement and (ii) the request of the Disclosing Party, the Receiving Party shall promptly return or destroy all of the Confidential Information of the Disclosing Party at its possession and will erase all such information from its systems, computer networks and other electronic equipment, provided however, that the Receiving Party may retain copies of the Confidential Information: (i) to the extent required to comply with applicable legal and regulatory requirements; and (ii) any information which is electronically stored in automatic backup, and provided further that such Confidential Information will remain subject to the terms and conditions of this Agreement.
7. SERVICE WARRANTY
7.1. JFrog warrants for your benefit alone, that the Service, if operated as specifically directed by JFrog, shall operate substantially in accordance with the functional specifications in the documentation and as specifically provided by JFrog. JFrog does not warrant however that the use of the Service will be uninterrupted or that use of the Service will be error free.
7.2. JFrog’s 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 in Section 9 hereunder and the repair of the defect that does not meet this limited warranty, within reasonable time.
7.3. 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 faulty maintenance, installation or set-up, by alterations undertaken without JFrog’s consent or by faulty repairs; (ii) if the defect would have been avoided by the use of a current update of the Service that JFrog makes generally available to its customers; (iii) if the defect is caused by the combination, operation or use of the Service with software, hardware or other materials not licensed hereunder and not conforming JFrog’s specifications set forth in the documentation; (iv) if the Service 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.
7.4. We further represent and warrant that any software or code provided by us shall not intentionally or knowingly contain any code, programs or mechanisms that disrupt, modify, delete, harm or otherwise impede the operation of Your systems.
8. ARTIFACTORY EDGE WARRANTY
8.1. Artifactory Edge Warranty. Without derogating from the foregoing and solely with respect to Artifactory Edge, we represent and warrant that for a period of three (3) months following the effective date of a Subscription (the “Warranty Period”), the applicable Edge License will substantially conform to the description thereof, its applicable specifications and documentation (the “Warranty”). Any Warranty claim hereunder must be made in writing during the Warranty Period.
8.1. During the Warranty Period, to the extent that Artifactory Edge does not conform to the Warranty, we shall provide reasonable commercial efforts to correct, promptly after being notified thereof, all errors affecting the operation of Artifactory Edge and/or any significant feature(s) thereof, as well as any non-conformance of Artifactory Edge with the documentation. In the event that we determine, at our discretion, that we cannot remedy such errors, we may terminate the Edge License and refund the Fees paid for such License. This is your sole remedy with respect to the Warranty.
8.2. The warranty provisions of Sections 7.1 and 7.2 above shall not apply to any Artifactory Edge: (i) that was installed, used or operated not in accordance with the applicable specifications or documentation; (ii) which is modified, changed, adjusted or altered in any way, without our prior written approval; (iii) which is used on an operating environment (including but not limited to appropriate hardware and software platform and configuration) not specified in the applicable specifications or documentation; (iv) is made defective or damaged due to improper testing, operation, maintenance, or installation; or (v) which is used by a third party not authorized under this Agreement;.
9. DOWN TIME COMPENSATION.
If the Service 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 Service Credits as described below.
9.1. This Down Time Compensation provision states your sole and exclusive remedy for any failure by JFrog to provide the Service.
9.2. Definitions: The following definitions shall apply to the Down Time Compensation provision.
“Downtime” means, for Service(s), if there is more than a five percent user error rate. Downtime is measured based on our server-side error rate. "Downtime" does not include the period of a Cloud Migration in which 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 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.
“Service Credit” means the following:
Monthly Uptime Percentage
Calendar Days of free Service added to the end of the Subscription term
< 99.9% - ≥ 99.0%
< 99.0% - ≥ 90.0%
9.3. Customer 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 will forfeit you right to receive a Service Credit.
10. LIMITED WARRANTY; LIMITED LIABILITY.
10.1. 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 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 MISCONDUCT.
10.2. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR: (I) ANY DAMAGE TO, WITHOUT LIMITATION, ANY COMPUTER NETWORK, SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICE; (II) FOR ASSUMING THE COST OF ALL NECESSARY SERVICING, REPAIR AND/OR CORRECTION; AND (III) FOR THE RESULTS OBTAINED FROM YOUR USE OF THE E+ SOFTWARE (INCLUDING ANY REPORTS, LISTS, GRAPHS, INSIGHTS, STATISTICS, ETC.) AS WELL AS FOR ANY DECISIONS YOU MAKE BASED ON SUCH RESULTS.
10.3. 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. NOTWITHSTANDING THE GENERALITY OF THE ABOVE, IF A PARTY IS FOUND TO BE LIABLE BY A FINAL JUDICIAL RULING, THE CUMULATIVE LIABILITY THEREUNDER FOR ANY CLAIM RELATING TO THE SOFTWARE AND TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED THE AMOUNT PAID OR DUE BY YOU TO US FOR THE PROVISION OF THE SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. THIS SECTION 10.3 SHALL NOT APPLY TO A BREACH OF EITHER PARTY’S CONFIDENITLIAY OBLIGATIONS, YOUR BREACH OF THE RESTRICTIONS SET FORTH IN SECTION 2 OR A PARTY’S INDEMNIFICATION OBLIGATION.
11. IP INDEMNIFICATION
11.1. Indemnification by us. We shall defend, indemnify and hold you harmless from and against any damage, cost and expenses finally awarded or otherwise incurred (including reasonable attorneys’ fees) to an unaffiliated third party as a result of any claim, suit or proceeding based on a claim that the Service or its underlying software, when used as authorized hereunder, infringes any copyright, trademark, patent or other intellectual property right (an “Infringement Claim”). In the event any Infringement Claim is made or, in our sole judgment, is likely to be made, we shall use reasonable commercial efforts, at our own expense and discretion, to either: (i) procure for you the right to continue the use Service; (ii) replace the infringing software with non-infringing software programs and support materials of equivalent function and performance; (iii) modify the Service so that it becomes non-infringing without detracting from function or performance; or (iv) terminate this Agreement upon written notice and refund the Subscription fees paid by you, prorated to the remaining Subscription Term.
11.2. Indemnification by you. You agree to defend, indemnify and hold us harmless, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to reasonable attorney's fees) arising from: (i) your unauthorized use of the Service; and/or (ii) a third-party claim, suit or proceeding that use of the Customer Data within the scope of this Agreement infringes any Intellectual Property Rights of a third party.
11.3. Indemnification Process. In the event a claim is brought against a party hereto (the “Indemnifying Party”), the Party seeking indemnification (the “Indemnified Party”) shall promptly provide the Indemnifying Party with a written notice of the claim, provided that, a failure to provide such notification shall only excuse the indemnification obligations of the Indemnifying Party to the extent the it was materially prejudiced thereby. Neither Party, as the case may be, shall consent to the entry of any judgment or enter into any settlement or compromise with respect to any Infringement Claim without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the above, JFrog may enter into a settlement without your consent, to the extent the only obligation associated with you thereunder is of monetary nature. Our indemnification obligation will not apply: (a) if the Service is modified by you, without our consent; (b) if the Service is combined with other products, applications, or processes not authorized by us, but solely to the extent the alleged infringement is caused by such combination; or (c) to any unauthorized use of the Service. This is your sole and exclusive remedy for any Infringement Claim.
12. TERM; TERMINATION.
12.1. This Agreement shall be in effect for a period commencing on the effective date of your first Subscription and shall terminate upon the earlier to occur of: (i) upon the expiration of all Subscriptions; or (ii) until terminated otherwise in accordance with these terms (the “Term”)
12.2. Either Party may terminate this Agreement upon the material breach of any term of this Agreement (including without limitation, your obligations to pay all Subscription Fees when due and payable) by the other Party which is not cured within fourteen (14) days following the delivery of a written notice.
12.3. Either party may terminate this Agreement if the other party: (i) ceases operation without a successor; or (ii) 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).
12.4. Upon termination or expiration of this Agreement: (i) we will cease from providing the Service hereunder, the licenses granted to you under this Agreement shall expire, and you shall discontinue all further use of the Service and its underlying software, including Artifactory Edge; (ii) you shall remove Artifactory Edge, documentation and any files, documents and information relating thereto, from all hard drives, networks and other storage media and destroy all copies thereof in your possession or under your control; (iii) we shall immediately return and /or permanently delete (as instructed by you), within thirty (30) days, all Customer Data provided by you pursuant to this Agreement, provided that we will retain any Analytical Information. 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 Service available to you, and you will be responsible to download its Customer Data prior to termination of this Agreement. For the removal of doubt, we will not have any obligation to retain your Customer Data following the termination of this Agreement.
12.5. Provisions in connection with the section totaled - Taxes; Intellectual Property Rights; Confidentiality; Privacy; Limited Warranty; Limited Liability; IP Indemnification and Miscellaneous - shall survive the termination of this Agreement for any reason.
13.1. 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.
13.2. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of Israel, without giving effect to any principles of conflicts of laws thereof, and the competent courts of Tel-Aviv shall have sole and exclusive jurisdiction over all disputes between the parties, and you further agree and submit to the exercise of personal jurisdiction of such courts for litigating any such claim or action. You hereby agree to service of process in accordance with the rules of such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees.
13.3. 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.
13.4. 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.
13.5. 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.
13.6. Entire Agreement; Assignment. You agree that this Agreement is a complete and exclusive statement of the agreement between us and supersedes any proposals or prior agreement, oral or written, and any other communications relating to the subject matter of this Agreement. 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.
13.7. 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.
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