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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.
JFROG ARTIFACTORY ONLINE
SOFTWARE AS A SERVICE (SAAS) LICENSE AGREEMENT
LAST UPDATED – MARCH 7, 2017
This SaaS License Agreement (the “Agreement”) is made between you (both the individual using the Services offered under this Agreement and any legal entity on whose behalf such individual is acting) (“You” or “Your” or “Customer”) on the one hand and JFrog, Inc., on the other hand, on behalf of itself and its affiliates (“JFrog” or the “Company”). JFrog and Customer may be referred to in this Agreement, individually, as “Party” and, collectively, as “Parties.”
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE REGISTERING FOR THE SERVICES AND/OR THE SYSTEM, AS APPLICABLE. THIS SYSTEM IS COPYRIGHTED AND LICENSED (NOT SOLD). TAKING ANY STEP TO SETUP OR INSTALL THE SYSTEM CONSTITUTES YOUR CONSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF YOU SHALL BE CONSTRUED AS INFERENCE TO THE CONTRARY. THE REGISTRATION BY YOU TO THE SERVICES (DEFINED BELOW) IS EXPRESSLY MADE CONDITIONAL ON YOUR CONSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SYSTEM.
- “Service(s)” means JFrog's online service known as “Artifactory Online” as described in the Website (at: http://www.jfrog.com) (the “Website”), developed, operated, and maintained by JFrog, accessible via the Website or any other designated partner web site, service names, domains or IP address, and/or any ancillary online or offline products and services provided to Customer by JFrog, to which Customer is being granted access under this Agreement. The Service includes the Customer's ability to store the Customer Data (as defined below) on the Amazon Web Services, Microsoft Azure or on the Google Cloud Platform (collectively, the “Cloud Platforms”), and/or to migrate the Customer Data from one Cloud Platform to another, subject to terms of this Agreement and the payment of the applicable Fees. JFrog reserves the right to add, change, remove and/or modify the Services, including modifications to functionality, presentation and companion products after providing prior notification on the Website and the Service. To the extent JFrog includes third party services in the Services, JFrog will have no responsibility or liability with respect to such third party services.
- “Software” means the software code used as part of the Service, both in connection with the Services rendered under this Agreement, together with all other related and accompanying documentation (the “Documentation”), provided by JFrog via the Service, and any update or a new release of the Software.
- “System” means the Software, the Services and all associated processes.
- Service. Subject to the terms and conditions of this Agreement and payment of applicable Fees, JFrog hereby grants Customer, and Customer hereby accepts, a non-exclusive, non-transferable and fully revocable right to use the System subject to registration by Customer to the Website.
- Use of System. The System is protected by intellectual property laws and international treaty provisions. The System is licensed to Customer solely for Customer’s own internal use and for Customer’s own operations. Except as explicitly permitted herein, without the prior written consent of JFrog, Customer will not (nor allow any third party to) directly or indirectly: (a) allow others to use the System, or use the System for the benefit of third parties; (b) except and only to the extent established by applicable law, attempt to decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the System by any means whatsoever; (c) develop methods to enable unauthorized parties to use the System or develop any other product containing any of the concepts and ideas contained in the System; (d) modify the System or create a derivative work of any portion of the System; (e) remove any copyright or other proprietary notices from the System; (f) test the System or use the System in connection with any benchmark tests, evaluation or any other tests of which the results are designated or likely to be published in any form or media or otherwise made available to the public; (g) circumvent, disable or otherwise interfere with security-related features of the System or features that enforce limitations on its use; (h) transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or in connection with the System. (i) rent, lend, lease, sub-license, assign or transfer the System and/or Customer’s rights to the System; (j) make copies of the System or any portions thereof; (k) use the System in a manner that is not in compliance with the Documentation and with JFrog's specific instructions; (l) copy nor modify, adapt or translate into any language the Documentation, nor create derivative works based on the Documentation; (m) violate, or encourage the violation of the legal rights of JFrog, its suppliers or third parties; (n) use the System for any unlawful, invasive, infringing, defamatory or fraudulent purpose; and/or (o) access the System in order to build a competitive solution or to assist any third party to build a competitive solution (p) use the System for any purpose or in any manner involving 'Protected Health Information' under HIPAA if Customer is (or becomes) a 'Covered Entity' or 'Business Associate' under HIPAA. Customer shall comply with all applicable laws, rules and regulations in connection with Customer’s use of the Services.
- Title and Intellectual Property. Customer acknowledges and agrees that use of the System, is subject to the terms and conditions of this Agreement and that the Software and the Documentation, including any revisions, corrections, modifications, enhancements and/or upgrades thereto are JFrog's property protected under any applicable laws and treaties. Customer further acknowledges and agrees that all right, title and interests in and to the System, including associated intellectual property rights (including but not limited to, copyrights, trade secrets, trademarks, etc.), evidenced by or embodied in and/or attached/connected/related to the System are and shall remain with JFrog. This Agreement does not convey to Customer an interest in or to the System, but only a limited right of use of the System, revocable in accordance with the terms and conditions of this Agreement. Nothing in this Agreement constitutes a waiver of JFrog's intellectual Property rights under applicable law.
- Third Party Components. The System is based on software developed and owned by Company and/or its licensors, and may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components”). Customer's right to use such Third Party Components as part of, or in connection with, the System is subject to any applicable acknowledgements and license terms attached to such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the System or any portion thereof (except for the Third Party Components contained therein) be deemed to be "open source" or "publicly available" software. A list of Third Party Components is available in the System or its documentation (the “About Box”) and will be updated from time to time. The licenses of certain Third Party Components may require the provision of the source code of these Third Party Components. With respect to any licenses of Third Party Components that require the provision of the open source code of these Components, the Company will provide the Customer and any third party, during a period set forth by each such license, for a charge of no more than Company's cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, on a medium customarily used for software interchange. For that purpose, the Customer should contact the Company at: services@JFrog.com.
- Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. Customer agrees that Company may identify Customer as a user of the System and use Customer's trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by Company on Company's website for promotional purposes. Confidential Information does not include information that is (a) previously known to the receiving Party, free from any obligation to keep it confidential, (b) publicly disclosed by the disclosing Party either prior to or subsequent to the receipt by the receiving Party of such information, (c) independently developed by the receiving Party without any access to Confidential Information, or (d) rightfully obtained from a third party lawfully in possession of Confidential Information who is not bound by confidentiality obligations to the disclosing Party. The receiving Party may disclose Confidential Information if the receiving Party is required to do so under applicable law, rule or order; provided that the receiving Party, where reasonably practicable and to the extent legally permissible, provides the disclosing Party with prior written notice of the required disclosure.
- Fees. Customer shall pay JFrog those fees set forth in the Website, Registration Form or Service Orders made through a third party or partner (collectively, the “Service Order”) as applicable to Customer’s subscription for the System (the “Fees”). Payment of Fees may be performed by payment through third parties detailed on the Website which shall issue the invoice in connection with such Fee. The Fees shall be due and payable in advance and according to the terms set forth in Customer’s Service Order, and is not refundable. In the event that Customer requests to migrate Customer’s data between the Cloud Platforms (“Platform Migration”), Customer hereby acknowledges that in addition to the Fees, overlapping payments shall apply in connection therewith, (i.e. for a duration of up to a full monthly payment cycle, overlapping charges may apply and shall be borne solely by customer). JFrog reserves the right to modify the Fees at any time, upon 30 days prior written notice to Customer, which notice may be provided by e-mail or at the Website; such new prices shall not apply for subscription for the System which has already been completed, but shall apply to any subscription completed after the effective date of change of the Fees. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and such taxes, levies and duties shall be added to the Fees. In addition to other remedies available to it, JFrog expressly reserves the right to suspend or terminate the Services and notify Customer of such termination or suspension, in the event Customer fails to pay the Fees on a timely manner. Customer further agrees and acknowledges that JFrog has no obligation to retain Customer’s Customer Data and that it may be deleted from the Service if Customer has failed to pay any outstanding Fees when due.
- Term and Termination. This Agreement is effective commencing on the date of the Service Order, or the date upon which Customer has subscribed through the Website to the Service (the “Effective Date”) and until terminated by JFrog upon thirty (30) days prior written notice or, in the event Customer has elected to use the Services on a trial basis, if applicable and if available by the Company as detailed on the Website, upon expiration of such trial period if Customer has not enrolled in the monthly subscription (the “Term”).
Upon any violation by Customer of any of the provisions of this Agreement, which has not been remedied within seven (7) days after Customer has been given written notice of the violation, which may be made via email, rights to use the System shall automatically terminate.
Customer may terminate this Agreement at any time upon thirty (30) days prior written notice to JFrog by e-mail at the following e-mail address email@example.com; provided, however, that such termination by Customer shall not relieve Customer from Customer’s obligation to pay any Fees for the duration of the term to which Customer has subscribed for.
Upon termination or expiration of this Agreement: (i) Company will cease from providing the Services hereunder, the license granted to Customer under this Agreement shall expire, and Customer shall discontinue all further use of the System; (ii) Customer shall immediately permanently delete all copies of the Documentation in Customer’s or any of its representatives’ possession or control; (iii) Company shall immediately return and /or permanently delete (as instructed by Customer) and certify to Customer, within fourteen (14) business days, that it has done so, all Customer Data provided by Customer pursuant to this Agreement, provided that the Company will retain any Analytics Information which is derived from the use of the System and from the provision of the Services; (iv) any sums paid by Customer until the date of termination are non-refundable, and Customer shall not be relieved of its duty to discharge in full all due sums owed by Customer to Company under this Agreement until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration the Agreement. Upon termination or expiration of this Agreement, Customer will lose all access to any Customer Data that Company may be storing in order to make the System available to Customer. Customer shall be responsible to download its Customer Data prior to termination of this Agreement. Termination of this Agreement shall not limit Company from pursuing any other remedies available to it under the applicable law.
The provisions of this Agreement that, by their nature and content, must survive any expiration or termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, including without limitation, the provisions regarding Title and Intellectual Property (Section 4), Third Party Components (Section 5), Confidentiality (Section 6), Fees (Section 8), Limitation on Warranty (Section 11). Limitation of Liability (Section 12), Indemnification (Section 13), and Miscellaneous (Section 16).
- Compensation & SLA for Down Time Events. If the Services will not be operational and available to Customer at least 99.9% of the time in any calendar month, Customer will be eligible to receive the Artifactory Online Service Credits described below.
10.1 This Down Time Compensation provision states Customer’s sole and exclusive remedy for any failure by JFrog to provide the Services.
10.2 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 Artifactory Online server side error rate. "Downtime" does not include the time period during which the Customer Data is migrated from one server to another and is unavailable for use (JFrog will advise Customer as to the applicable migration period).
“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 Service added to the end of the Service term, at no charge to the Customer
< 99.9% - ≥ 99.0%
< 99.0% - ≥ 90.0%
10.3 Customer Must Request Service Credit. In order to receive any of the Service Credits described above, Customer must notify JFrog within thirty (30) days from the time Customer become eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer’s right to receive a Service Credit.
10.4 Maximum Service Credit. The aggregate maximum number of Service Credits to be issued by JFrog to Customer for any and all Downtime Periods that occur in a single calendar month shall not exceed fifteen days of Services added to the end of Customer’s term for the Services. Service Credits may not be exchanged for, or converted to, monetary amounts.
- Limitation on Warranty. JFrog warrants for Customer’s benefit alone, that the System, 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 System will be uninterrupted or that use of the System will be error free or secure. JFrog’s sole liability and Customer’s sole and exclusive remedy for any breach of this warranty by JFrog shall be the Down Time Compensation as set forth above and the repair of the defect that does not meet this limited warranty, within reasonable time. The foregoing warranty applies only to failures in operation of the System that are reproducible in standalone form and does not apply (i) if the defect is caused by faulty maintenance, installation or set-up, by alterations undertaken without JFrog’s consent or by faulty repairs; (ii) if the defect would have been avoided by the use of a current update of the System that JFrog makes generally available to its customers; (iii) if the defect is caused by the combination, operation or use of the System with software, hardware or other materials not licensed hereunder and not conforming JFrog’s specifications set forth in the Documentation; (iv) if the System is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; (v) if the defect is caused due to problems inherent to the use of the internet and/or electronic communications.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE LICENSE TO USE THE SYSTEM AS SET FORTH HEREIN, IS PROVIDED FOR THE USE OF THE SYSTEM “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND JFROG DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; NO LICENSOR, DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. JFROG SHALL NOT BE RESPONSIBLE FOR 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.
- Limitation of Liability. CUSTOMER HEREBY AGREES THAT IN NO EVENT SHALL JFROG OR ITS SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SALE OF, USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF JFROG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN CUSTOMER AND JFROG. IN NO EVENT WILL JFROG BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT JFROG ACTUALLY RECEIVED FROM CUSTOMER FOR THE SPECIFIC LICENSE SUBSCRIBED FOR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING, WHICH IS GIVING RISE TO THE LIABILITY. CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT JFROG WOULD NOT PROVIDE THE SYSTEM EXCEPT UNDER THE TERMS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
- Indemnification. The Company acknowledges and agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the System infringes intellectual property rights held by any third party ("IP Infringement Claim"), and the Company will pay any damages awarded in final judgment against the Customer that are attributable to any such claim; provided that (i) the Customer notifies the Company promptly in writing of such claim; and (ii) the Customer will grant the Company authority to handle the defense or settlement of any such claim, suit or proceeding and will provide the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that the Customer enter into without the Company's prior written consent. If the System becomes, or in the Company's opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole option and expense (a) procure for the Customer the right to continue using the System; (b) replace or modify the System to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot accomplished despite the Company's reasonable efforts, then the Company may discontinue providing the Services and grant the Customer credit for the price of the Services already paid by Customer with respect to the period following such event. Notwithstanding the foregoing, the Company shall have no responsibility for IP Infringement Claim resulting from or based on: (i) modifications to the System made by a party other than the Company or its designee; (ii) the Customer's failure to use updated or modified System provided by the Company specifically to avoid infringement; or (iii) combination or use of the System with equipment, devices or software not supplied or authorized by the Company or not in accordance with the Company's instructions. THE FOREGOING TERMS STATE THE COMPANY'S SOLE AND EXCLUSIVE LIABILITY AND THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
The Customer agrees to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) the Customer's unauthorized use of the System; (ii) the Customer's violation of any term of this Agreement (including without limitation any warranties provided herein); and/or (iii) a third party claim, suit or proceeding that use of the Customer Data within the scope of this Agreement infringes any privacy right of a third party.
- Export Control. Customer shall comply with all applicable government trade and export control laws and regulations with respect to the System. Customer agree that the System will not be transferred or exported into any country or used in any manner prohibited by any applicable laws in any jurisdiction.
- Injunctive Relief. Each Party acknowledges that if it breaches any obligations or undertakings contained in this Agreement, the other Party may suffer immediate and irreparable harm for which there may be no adequate remedy at law, and in addition to all other remedies, the injured Party shall be entitled to specific performance and injunctive relief and any other appropriate equitable remedies to prevent a threatened breach or to correct an actual breach and to enforce this Agreement. Unless otherwise set forth in this Agreement, such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
- Miscellaneous. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of the provisions of this Agreement shall remain in full force and effect. 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. JFrog shall not be liable for failing or delaying performance of its obligations and/or failure of operation of the System and/or failure to grant the Services resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles and without regard to the United Nations Convention on Contracts for the International Sale of Good. Any legal action or proceeding relating to this Agreement shall be instituted in any state or federal court in San Francisco or Santa Clara County, California. The Parties agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. 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. 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. This Agreement and any Schedule(s) thereto including the Service Order, sets the entire understanding and agreement between Customer and JFrog, it supersedes any prior proposal, representation and understanding concerning the System, and may be amended only in writing signed by both parties. If Customer is a corporation, partnership or similar entity, then the license to use the System granted hereunder is deemed to be accepted by a person authorized to sign for and bind the entity. Except as expressly permitted hereunder, any attempt by Customer to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void ab initio. This Agreement shall be binding upon and inure to the benefit of each party’s heirs and legal representatives. Neither party may assign or subcontract its rights under this Agreement without the prior written consent of the other party; provided, however, that each 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.
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