Anchore Terms of Service

Last updated: September 30, 2016

Please read these Terms of Service (these “Terms”) carefully before using any of the service offerings (each, a “Service”) provided on the anchore.io or anchore.com website (the “Site”) operated by Anchore, Inc. (“Anchore”, “us”, “we”, or “our”).

Your access to and use of any of the Services is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Services.

By accessing or using the Services you (“Customer”, “you”, or “your”) agree to be bound by these Terms. If you disagree with any part of these Terms, then you do not have permission to access or use any of the Services.

1. Subscriptions

Some Services are billed on a subscription basis (“Subscription(s)”). You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set on an annual basis. At the end of each Billing Cycle, your Subscription will automatically renew unless one party gives the other notice of its intent to terminate at least thirty (30) days prior to the end of the then-current term. A valid payment method, including credit card, is required to process the payment for your Subscription. You shall provide Anchore with accurate and complete billing information including full name, address, state, zip code, telephone number, and valid payment method information. By submitting such payment information, you automatically authorize Anchore to charge all Subscription fees incurred through your account to any such payment method(s).

Should automatic billing fail to occur for any reason, Anchore will issue an electronic invoice indicating that you must proceed manually. All invoices will be paid within fifteen (15) days from the date of the invoice. All payments are non-refundable and are made without the right of setoff or chargeback. You will pay interest, at a rate equal to one percent (1%) per month on any amount that remains unpaid fifteen (15) days after the date of the invoice. You will pay directly any taxes arising out of these Terms or Anchore’s performance under these Terms, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on Anchore’s net income and all employer reporting and payment obligations with respect to Anchore’s personnel. If any applicable law requires you to withhold amounts from any payments to Anchore under these Terms, (a) you will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Anchore with tax receipts evidencing the payments of such amounts and (b) the sum payable by you upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Anchore receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Anchore would have received and retained absent the required deduction or withholding.

2. Free Trial

Anchore may, at its sole discretion, offer a Subscription with a free trial for a limited period of time (“Free Trial”). You may be required to enter your billing information in order to sign up for the Free Trial. If you do enter your billing information when signing up for the Free Trial, you will not be charged by Anchore until the Free Trial has expired. On the last day of the Free Trial period, unless you terminated your Subscription by providing notice to us, you will be automatically charged the applicable Subscription fees for the type of Subscription you have selected. At any time and without notice, Anchore reserves the right to (a) modify the terms and conditions of the Free Trial offer, or (b) cancel such Free Trial offer.

3. Fee Changes

Anchore in its sole discretion and at any time, may modify the Subscription fees for the Subscriptions. Any Subscription fee change will become effective at the end of the then-current Billing Cycle. Anchore will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective. Your continued use of the Services after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.

4. Accounts

When you create an account with us, you guarantee that you are above the age of 18, and that the Account Information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service. You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with one of our Services or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.

5. Your Responsibilities

5.1 Customer Content. You are solely responsible for the development, content, operation, maintenance, and use of Customer Content. For example, you are solely responsible for: (a) the technical operation of Customer Content; (b) compliance of Customer Content with the Acceptable Use Policy and the law; (c) any claims relating to Customer Content; and (d) properly handling and processing notices sent to you by any person claiming that Customer Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.

5.2 Other Security and Backup. You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of Customer Content, which may include the use of encryption technology to protect Customer Content from unauthorized access and routine archiving Customer Content. Log-in credentials and private keys generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except as otherwise provided herein. You may disclose your private key to your agents and subcontractors performing work on your behalf and you shall be responsible for their compliance with these Terms. Although the Services may offer mechanisms for the creation of back-ups of the Customer Content, you are solely responsible for creating copies of any data, material, or information transmitted, posted, or uploaded to the Services. All Customer Content is Customer’s property and is for Customer’s exclusive use subject to the rights given to Anchore in Section 7.3 below. Customer shall maintain a local copy of all data uploaded or stored on Anchore servers. ANCHORE SHALL NOT RESTORE CUSTOMER CONTENT UPON CUSTOMER’S REQUEST. ANCHORE SHALL NOT RETAIN ANY CUSTOMER CONTENT AFTER ACCOUNT TERMINATION.

5.3 End User Violations. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to these Terms, Customer Content or use of the Services. You are responsible for End Users’ use of Customer Content and the Services. You will ensure that all End Users comply with your obligations under these Terms and that the terms of your agreement with each End User are consistent with these Terms. If you become aware of any violation of your obligations under these Terms by an End User, you will immediately terminate such End User’s access to Customer Content and the Services.

5.4 End User Support. You are responsible for providing customer service (if any) to End Users. We will not provide any support or related services to you or End Users unless we have a separate agreement with you or an End User obligating us to provide support or related services.

5.5 Resale of the Services.

5.5.1 Resale. You may resell the right to access the Services to your third party customer (“Client”); provided that you are not permitted to appoint any resellers, distributors or other third parties to resell the Services. If you resell access to the Services, you are responsible for use of the Services by your Clients and their End Users to the same extent as if you were using the Services yourself, including compliance with these Terms. You shall promptly notify Anchore of any violations of these Terms by any Clients, your or their End Users or other third parties. You will ensure that all your Clients comply with your obligations under these Terms and that the terms of your agreement with each Client are consistent with these Terms. Clients will contract directly with Customer. Pricing, billing and all other terms and conditions are solely between the Client and Customer, and all agreements between Clients and Customer will include language specifically disclaiming all liability for the licensors or suppliers of Customer.

5.5.2 No Representations. Customer may not make any representations or warranties regarding the functionality or performance of the Services that exceeds the terms set forth in these Terms, and further indemnifies and holds Anchore harmless for any claims or lawsuits resulting from such action pursuant to the terms of Section 11 below.

5.5.3 Audit. You will maintain accurate records relating to resales of the Services during the Term and for at least two (2) years after the expiration or termination of the Term. Anchore, or persons designated by Anchore, will, at any time during the period when you are obliged to maintain such records during normal business hours and on reasonable prior notice, be entitled to audit such records and to ascertain completeness and accuracy, in order to verify Customer’s compliance with Section 5.5.

5.5.4 Marks. Anchore hereby grants to you a limited, non-transferable, royalty-free license to use its trademarks and logos (“Marks”) solely in connection with the fulfillment of your rights under this Section 5.5 during the Term only and not thereafter, and at all times subject to Anchore’s specifications as set forth at www.anchore.com/terms-of-service and the terms and conditions of these Terms. Customer shall have no rights to use the Marks other than for purposes set forth above and acknowledges and agrees that Anchore holds all right, title and ownership in and to the Anchore Marks and the goodwill appurtenant thereto.

6. Security and Data Privacy.

6.1 Anchore Security. Without limiting Section 13 or your obligations under Section 5.2, we will implement reasonable and appropriate measures designed to help you secure Customer Content against accidental or unlawful loss, access or disclosure.

6.2 Data Privacy. Customer agrees that Anchore and its authorized agents may use the Customer Content and Account Information for all reasonable and necessary purposes required to perform the Services for Customer. We will only use your Account Information in accordance with the Privacy Policy, and you consent to such usage. The Privacy Policy does not apply to Customer Content.

6.3 Service Attributes. To provide billing, administration and other related services and to investigate fraud, abuse or violations of these Terms, we may process Service Attributes where we maintain our personnel.

7. Proprietary Rights

7.1 Services. As between you and us, we or our licensors own and reserve all right, title, and interest in and to the Services, in whole and in part and all derivative works thereof. The Services are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright law, international conventions, and other copyright law. Customer hereby assigns to Anchore any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Services. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer, Clients or any End Users regarding the Services, or any part thereof, and all rights not expressly granted to Customer, Clients or End Users are reserved to Anchore.

7.2 Right to Access the Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable right to do the following during the Term: (a) access and use the Services solely in accordance with these Terms; and (b) copy and use the Anchore Content solely in connection with your permitted use of the Services. Except as provided in this Section 7.2, you obtain no rights under these Terms from us or our licensors to the Services, including any related intellectual property rights. The Services may contain open source software components which are licensed under the terms of the applicable open source software licenses and not these Terms. From time to time, we may apply upgrades, patches, bug fixes or other maintenance to the Services (“Maintenance”). We agree to use reasonable efforts to provide you with prior notice of any scheduled Maintenance (except for emergency Maintenance) and you agree to use reasonable efforts to comply with any Maintenance requirements that we notify you about.

7.3 Customer Content. As between you and us, you or your licensors own all right, title, and interest in and to Customer Content. Except as provided in these Terms, we obtain no rights under these Terms from you or your licensors to Customer Content, including any related intellectual property rights. On termination of Customer’s right to use a Service, Anchore shall make all reasonable efforts to promptly remove Customer Content from such Service and its ancillary systems, such as back-up servers, and cease use of the Customer Content; however, Customer recognizes and agrees that caching of or references to the Customer Content may not be immediately removed. Customer warrants and represents that Customer has the right to grant Anchore the rights set forth above and that it will not contribute any Customer Content that (a) violates any applicable law, regulation or other governmental requirement or the Policies, (b) reveals any trade secret, unless Customer owns the trade secret or has the owner’s permission to disclose it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another, (d) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party, (e) contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or (f) remains posted after Customer has been notified that such Customer Content violates any of sections (a) to (e) of this sentence (collectively, “Prohibited Content”). If we reasonably believe any Customer Content constitutes Prohibited Content or otherwise violates a material term of these Terms, we will notify you and may request that such content be removed from the Services or access to it be disabled. If you do not remove or disable access to the Prohibited Content within 2 business days of our notice, we may remove or disable access to the Prohibited Content or suspend the Services to the extent we are not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, we may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that we remove content without prior notice, we will provide prompt notice to you unless prohibited by law. Without limiting the generality of the foregoing, Customer shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information of such data subjects via the Services by Anchore and/or Customer. Customer shall be solely responsible for ensuring that any processing of Customer Content by Anchore and/or Customer via the Services does not violate any applicable law. Customer shall not process or submit to the Services any Customer Content that includes any: (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless it enters into a separate agreement with Anchore relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (iv) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive”) and any national law adopted pursuant to the EU Directive, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission of any crime or offense.

7.4 Restrictions. Neither you nor any End User may use the Services in any manner or for any purpose other than as expressly permitted by these Terms. Except as is expressly permitted herein, neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services (except to the extent software included in the Services are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services, (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Services. All rights granted to you in these Terms are conditional on your continued compliance these Terms, and will immediately and automatically terminate if you do not comply with any term or condition of these Terms. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services you have used.

8. Links to Other Web Sites

Our Services may contain links to third party web sites or services that are not owned or controlled by Anchore. Anchore. has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not provide any warranties concerning the offerings of any of these entities/individuals or their websites. You acknowledge and agree that Anchore shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.

9. Termination

The term (“Term”) of these Terms shall commence on the earlier of the time when you click an “I Accept” button or check box presented with these Terms or when you use any of the Services and shall continue until terminated as provided in this Section 9. In the event that you do not have a valid Subscription in place, we may terminate or suspend your account and bar access to the Services immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of these Terms. These Terms may be terminated (a) by either party if the other party materially breaches these Terms and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; and (b) by Anchore upon notice to Customer if Anchore’s relationship with a third party partner who provides software or other technology Anchore uses to provide the Services expires, terminates or requires Anchore to change the way it provides the software or other technology as part of the Services. Upon any termination of these Terms: (i) all your rights under these Terms immediately terminate; (ii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination; (iii) you will immediately return or, if instructed by us, destroy all Anchore Content in your possession; and (iv) Sections 5.3, 5.5.2, 5.5.3, 7.1, 7.3, 7.4, 8, 9, 11-15, 17 and 18 will continue to apply in accordance with their terms.

10. Temporary Suspension

10.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Services immediately upon notice to you if we determine: (a) your or an End User’s use of or registration for the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the systems or Content of any other Anchore customer, (iii) may subject us, or any third party to liability, or (iv) may be fraudulent; (b) you are, or any End User is, in breach of these Terms, including if you are delinquent on your payment obligations for more than 15 days; or (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

10.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Services: (a) you remain responsible for all fees and charges you have incurred through the date of suspension; (b) you remain responsible for any applicable fees and charges for any Services to which you continue to have access; and (c) we will not erase any of Customer Content as a result of your suspension, except as specified elsewhere in these Terms. Our right to suspend your or any End User’s right to access or use the Services is in addition to our right to terminate these Terms pursuant to Section 9.

11. Indemnification

11.1 General. You will defend, indemnify, and hold us, our licensors, and each of their respective employees, officers, directors, and representatives harmless from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your, your Clients’ or any End Users’ use of the Service (including any activities under your Anchore account and use by your employees and personnel); (b) breach of these Terms or violation of applicable law by you, your Client or any End User; (c) Customer Content or the combination of Customer Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer Content or by the use, development, design, production, advertising or marketing of Customer Content; or (d) a dispute between you, your Client and/or any End User. If we are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

11.2 Process. We will promptly notify you of any claim subject to Section 11.1, but our failure to promptly notify you will only affect your obligations under Section 11.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.

12. Limitation of Liability

WE AND OUR LICENSORS WILL NOT BE LIABLE UNDER THESE TERMS FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THESE TERMS OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THESE TERMS OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR LICENSORS’ TOTAL AGGREGATE LIABILITY UNDER THESE TERMS WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THESE TERMS FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.

13. Disclaimer

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE. ANCHORE AND ITS LICENSORS DO NOT WARRANT THAT: (A) THE SERVICES WILL FUNCTION UNINTERRUPTED, OR BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY ERRORS OR DEFECTS WILL BE CORRECTED; (C) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR, YOUR CLIENTS’ OR END USERS’ REQUIREMENTS. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, YOU MAY NOT USE ANY SERVICES WITH RESPECT TO: (I) ANY APPLICATION CONTROLLING HAZARDOUS ENVIRONMENTS THAT REQUIRE FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR OR CHEMICAL FACILITIES, AIRCRAFT OR OTHER MODES OF HUMAN MASS TRANSPORTATION, LIFE SUPPORT SYSTEMS, IMPLANTABLE MEDICAL EQUIPMENT, MOTOR VEHICLES, WEAPONS SYSTEMS, OR OTHER USES IN WHICH FAILURE OF THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, OR (II) ANY INFORMATION, DATA OR TECHNOLOGY GOVERNED BY THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS.

14. Exclusions

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

15. Governing Law

These Terms shall be governed and construed in accordance with the laws of the State of New York, United States, without regard to its conflict of law provisions. Each party agrees that any claim or cause of action arising under or relating to these Terms will be brought in a court of competent jurisdiction located in New York, New York and each party irrevocably consents to such personal jurisdiction and waives all objections thereto. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to these Terms.

16. Changes

We may change, discontinue, or deprecate any of the Services (including the Services as a whole) or change or remove features or functionality of the Services from time to time. We will notify you of any material change to or discontinuation of the Services. In addition, we may modify these Terms (including any Policies) at any time by posting a revised version on the Site or by otherwise notifying you in accordance with Section 17.7 below. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to these Terms, you agree to be bound by the modified terms. It is your responsibility to check the Site regularly for modifications to these Terms. We last modified these Terms on the date listed at the beginning of these Terms.

17. General

17.1 Confidentiality. You may use Confidential Information only in connection with your use of the Services as permitted under these Terms. You will not disclose Confidential Information during the Term or at any time during the 5-year period following the end of the Term; provided that to the extent the Confidential Information constitutes a trade secret(s) under law, you agree to protect such information for so long as it qualifies as a trade secret under applicable law. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.

17.2 Force Majeure. We will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

17.3 Independent Contractors. We and you are independent contractors, and neither party is an agent of the other for any purpose or has the authority to bind the other.

17.4 No Third Party Beneficiaries. These Terms does not create any third party beneficiary rights in any individual or entity that is not a party to these Terms.

17.5 U.S. Government Rights. The Services and any accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Services and accompanying documentation by the U.S. Government shall be governed solely by the terms of these Terms.

17.6 Import and Export Compliance. In connection with these Terms, you will comply with all applicable import, re-import, export, and re-export control law and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Services, including your transfer and processing of Customer Content and the provision of Customer Content to End Users.

17.7 Notice.

(a) To You. We may provide any notice to you under these Terms by: (i) posting a notice on the Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. To give us notice under these Terms, you must contact us by personal delivery, overnight courier or registered or certified mail to Anchore, Inc., 800 Presidio Ave Suite B Santa Barbara, CA 93101, Attn: Chief Financial Officer. We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.

(c) Language. All communications and notices to be made or given pursuant to these Terms must be in the English language.

17.8 Assignment. You will not assign these Terms, or delegate or sublicense any of your rights under these Terms, without our prior written consent. Any assignment or transfer in violation of this Section will be void. Subject to the foregoing, these Terms will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

17.9 No Waivers. The failure by us to enforce any provision of these Terms will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

17.10 Severability. If any portion of these Terms is held to be invalid or unenforceable, the remaining portions of these Terms will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from these Terms but the rest of the Agreement will remain in full force and effect.

17.11 Entire Agreement. These Terms includes the Policies and is the entire agreement between you and us regarding the subject matter of these Terms. These Terms supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of these Terms. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 6 of these Terms contain our entire obligation regarding the security, privacy and confidentiality of Customer Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of these Terms (whether or not it would materially alter these Terms) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or another document. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Services to be provided under these Terms and to this extent only are incorporated as a part of these Terms and all other terms in purchase orders are rejected. If the terms of these Terms are inconsistent with the terms contained in any Policy, the terms contained in these Terms will control.

17.12 DMCA. Anchore has adopted the policy set forth at www.anchore.io/dmca-policy/ toward copyright infringement with respect to the Services in accordance with the Digital Millennium Copyright Act.

17.13 Contact Us. If you have any questions about these Terms, please contact us at [email protected].

18. Definitions

“Acceptable Use Policy” means the policy currently available at www.anchore.io/acceptable-use-policy/, as it may be updated by us from time to time.

“Account Information” means information about you that you provide to us in connection with the creation or administration of your Anchore account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your Anchore account.

“Anchore Content” means Content we make available in connection with the Services or on the Anchore Site to allow access to and use of the Services.

“Confidential Information” means all nonpublic information disclosed by us, our business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of these Terms; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.

“Content” means software (including machine images), data, text, audio, video, or images.

“Customer Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your Anchore account and any computational results that you or any End User derive from the foregoing through their use of the Services. Customer Content does not include Account Information.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Customer Content; or (b) otherwise accesses or uses the Services under your or your Client’s account.

“Policies” means the Acceptable Use Policy, the Trademark Use Guidelines, all restrictions described in the Anchore Content and on the Site, and any other policy or terms referenced in or incorporated into these Terms. Policies do not include whitepapers or other marketing materials referenced on the Site.

“Privacy Policy” means the privacy policy currently referenced at www.anchore.io/privacy-policy/ as it may be updated by us from time to time.

“Service Attributes” means Service usage data related to your account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.