IMPORTANT – READ CAREFULLY. BY CLICKING TO “ACCEPT” OR “AGREE” TO THIS TERMS OF SERVICE AND OUR PRIVACY POLICY WHEN THIS OPTION IS MADE AVAILABLE TO YOU OR BY OPENING, ACCESSING, OR USING THE WEBSITE OR MOBILE APPLICATION OF HATCHWORKS, LLC, YOU AGREE THAT YOU ARE THIRTEEN (13) YEARS OF AGE OR OLDER AND HAVE READ THE ENTIRE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS; OR, IF YOU ARE THIRTEEN (13) YEARS OF AGE OR OLDER BUT UNDER THE AGE OF EIGHTEEN (18) YEARS, YOU AGREE THAT YOUR LEGAL GUARDIAN HAS READ AND CONSENTED TO THE TERMS HEREIN ON YOUR BEHALF. IF YOU, OR YOUR LEGAL GUARDIAN, AS THE CASE MAY BE, DO NOT AGREE TO THESE TERMS, DO NOT CLICK “ACCEPT” OR “AGREE,” AND DO NOT OPEN, ACCESS, OR USE THE WEBSITE OR MOBILE APPLICATION OF HATCHWORKS, LLC.
THIS TERMS OF SERVICE AGREEMENT and our PRIVACY POLICY, incorporated herein by reference, as modified or amended from time to time in HatchWorks’ sole discretion (collectively, “Agreement”) sets forth the legal agreement between HatchWorks, LLC, a Colorado limited liability company (“HatchWorks”) and the end user (“you”) relating to your access to and use of the website (“Website”) and mobile application, including any associated updates and upgrades (“Application”), offered and owned by HatchWorks, and any and all data and content contained therein, including, but without limitation, videos, photographs, animations, illustrations, images, maps, graphics, routes, geo-data, plans, interactive comments, information, software, scripts, executable files, sounds, applications, features, designs, and any and all HatchWorks IP, as defined below, (“Contents”) in whatever format or online environment they may occur (collectively, the “Service”). Read all terms and conditions of the Agreement carefully before opening, using, or accessing the Service. By clicking to “accept” or “agree,” or by opening, using, or accessing the Service, you agree to the terms and conditions set forth in this Agreement, as modified or amended from time to time, and each time you open, use, or access the Service, you reconfirm your agreement; provided, however, that if you are not thirteen (13) years of age or older, you may not use the Service and by accepting the terms of this Agreement, you represent and warrant that you are the requisite age; and, if you are thirteen (13) years of age or older but not at least eighteen (18) years of age, you hereby affirm that your legal guardian has read and consented to the terms herein on your behalf and is supervising your use of and access to the Service.
IT IS YOUR RESPONSIBILITY TO CHECK THIS AGREEMENT PERIODICALLY FOR CHANGES, AND IF AT ANY TIME YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE, AND MUST ELECT NOT TO OPEN, USE, OR ACCESS, HATCHWORKS’ SERVICE.
1. License. Subject to the terms and conditions provided herein, HatchWorks hereby grants to you a single, personal, limited, revocable, non-exclusive, non-sublicensable, and non-transferrable right to download, access, and use any applicable Service through a supported digital distribution platform, strictly in accordance with this Agreement and for the purposes for which HatchWorks makes the applicable Service available (the right to download, access, and use any applicable Service is referred to as the “License”). The terms and conditions of this License and this Agreement also govern any updates, supplements, or replacements to the Service, unless separate terms accompany such updates, supplements, and replacements, in which case the separate terms will apply. The applicable Service is not sold but licensed to you for your personal, non-commercial use only on a device owned or controlled by you as permitted by and in accordance with any other applicable terms of the digital distribution platform provider through which you access and use the Service.
2. Reservation of Rights. The Service is the exclusive property of HatchWorks. The License granted to you is a limited license, and you have no other right, title, or interest in the Service other than set forth herein. The License does not transfer to you any right, title, or interest in or to any of HatchWorks’ intellectual property rights or those of any HatchWorks suppliers or licensors. HatchWorks hereby reserves all right, title, and interest in or to HatchWorks IP, as defined below, in all languages, formats, and media throughout the world, including all copyrights. Any rights not expressly granted to you are fully reserved by HatchWorks and its suppliers or licensors, as applicable, and no such rights are conferred by estoppel, operation of law, implication, or otherwise.
3. Term. This Agreement is effective from the date you initially open, use, or access the Service until such time as you cease to be an authorized licensee hereunder (“Term”).
4. Termination. HatchWorks may, at its option, terminate, with or without notice, your License granted hereunder and your access to the Service, in whole or in part, if it reasonably believes you have breached this Agreement, or any other related terms, guidelines, or policies. In addition, you or HatchWorks may, at any time, terminate this Agreement and the License granted hereunder, for any or no reason whatsoever. Following termination, (i) you will not be permitted to access or use the Service and you agree to immediately cease using or accessing the Service at such time; (b) you shall immediately uninstall the Service and destroy all copies of the Service, or any portion thereof, as the case may be; and (c) upon request, you shall certify in writing to HatchWorks that the Service, or any portion thereof, has either been returned to HatchWorks or destroyed and uninstalled, as the case may be, as required herein. Notwithstanding any such termination, all the provisions of this Agreement which operate to protect the rights of HatchWorks shall continue to be in full force and effect indefinitely, or unless and until HatchWorks chooses to terminate them, regardless of whether any account you open is terminated by you or HatchWorks or whether you continue to use or continue to have the right to use the Service. If your access to the Service is terminated, HatchWorks reserves the right, in its sole discretion, to remove Contents, exercise whatever means it deems necessary to prevent unauthorized access to the Service, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to your use of the Service that HatchWorks reasonably believes is or might be in violation of this Agreement, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce the Agreement. Upon termination of your License hereunder, HatchWorks shall be under no obligation to store, retrieve, or assist in storing or retrieving any of your data to the maximum extent permitted by law. It shall be your sole responsibility to backup and archive any or all of your data.
5. Premium Service. HatchWorks may, in its sole discretion, offer certain premium versions of the Service, with additional features or functions that are or may be in the future, subject to certain one-time charges or an ongoing fee, such charges or fees to be determined by HatchWorks from time to time. (“Premium Service”). Delivery of the Premium Service shall only be charged pursuant to purchases made by you via HatchWorks’ Website or any compatible digital distribution platform for HatchWorks’ software. By signing up for and using the Premium Service, you agree to the terms and conditions of this Agreement and to any additional terms and conditions provided herein with regard to the Premium Service, and you further agree to pay any fees or other incurred charges that apply to your use of the Premium Service. When you sign up for the Premium Service, you must provide complete and accurate information about your preferred method of payment (“Payment Method”). By signing up for and using the Premium Service, you authorize HatchWorks to collect from you the appropriate fees and other charges incurred for the Premium Service through your Payment Method. If you do not pay the fees or charges due for your use of the Premium Service, HatchWorks reserves the right to disable or terminate your access to the Premium Service without notice to you. You may cancel the Premium Service at any time. Upon confirmation of your cancellation, no additional charges or fees will be assessed to you for the Premium Service and your access to the same will be terminated at the end of the current billing cycle; however, you will remain responsible for any charges or fees incurred prior to your cancellation. To the maximum extent permitted by law, HatchWorks reserves the right to change its prices for the Premium Service at any time and in its sole discretion.
6. Restrictions; Prohibitions; and Monitoring.
6.1. Restrictions on Activities. You agree that you will not:
6.1.1. Decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Service (except as may be permitted by U.S. copyright laws);
6.1.2. Make any modification, adaptation, improvement, enhancement, translation or derivative work from the Service;
6.1.3. Violate any applicable laws, rules, or regulations in connection with your access or use of the Service;
6.1.4. Remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) of HatchWorks or its affiliates, partners, suppliers, or the licensors of the Service or otherwise obscure or modify the manner in which the Service is displayed by means of the software;
6.1.5. Install, use or permit the Service to exist on more than one device at a time or on any other mobile device or computer, other than by means of your separate authorized downloads of the software, each of which is subject to a separate license (this restriction however does not limit your right to reinstall the software on the specific device for which it was downloaded);
6.1.6. Sell, lease, license, sublicense, distribute or link the Service to multiple devices or other services;
6.1.7. Make the Service available over a network or other environment permitting access or use by multiple devices or users at the same time; and
6.1.8. Use the Service to send automated queries or to send any unsolicited commercial faxes, phone calls, mail, text messages, or email.
6.1.9. Link to or “frame” any HatchWorks website (including deep linking to a specific portion of any HatchWorks website) or overlay content on the Service, except as expressly authorized by HatchWorks;
6.1.10. Use any of HatchWorks’ trademarks, service marks, or other portion of the Service (including in connection with meta tags or other “hidden text”) in advertising, promotions, or for other commercial purposes;
6.1.11. Conduct script searches or use search results of the Service in a manner that results in the automated display of any material or other information on a third party website;
6.1.12. Take any bad faith action that may undermine the ratings or review or similar process(es) under the Service;
6.1.13. Use the Service, or any of its Contents, to compile information for use in connection with a competitive product or service.
6.2. Prohibitions on Use. You may use the Service and other materials made available to you in connection with your authorized use of the same only as expressly permitted by this Agreement and only in a manner that does not interfere with HatchWorks’ right or ability to provide the Service to others or any third party’s right or ability to use or enjoy the Service. Without limiting the foregoing, you agree not to use the Service in any manner that:
6.2.1. Harasses, abuses, stalks, threatens, defames, or otherwise infringes, violates, or transgress any right of any other party (including but not limited to rights of publicity or other proprietary rights);
6.2.2. Is unlawful, fraudulent, or deceptive;
6.2.3. Uses or launches any technology or automated system or process, including without limitation, “bots,” “spiders,” or “crawlers,” to access unauthorized content or non-public spaces or otherwise engages in data mining, redirecting, or compiling a collection of listings or data for any purpose (including, without limitation, for use by a listing product or listing service that is, directly or indirectly, competitive with or in any way a substitute for any Service offered by HatchWorks) other than one authorized pursuant to this License;
6.2.4. Attempts to bypass, disrupt, or interfere with the security, provision or use of the Service;
6.2.5. Attempts to introduce viruses or any other harmful computer code, files, or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
6.2.6. Attempts to damage, disable, overburden, or impair HatchWorks’ servers or networks;
6.2.7. Attempts to gain unauthorized access to a HatchWorks computer network or Service;
6.2.8. Attempts to gain unauthorized access to HatchWorks’ user accounts or the accounts of other users of the Service;
6.2.9. Impersonates another person or entity, misrepresents your affiliation with a person or entity, or otherwise uses a false identity;
6.2.10. Provides false or misleading information to HatchWorks;
6.2.11. Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
6.2.12. Assists any third party in engaging in any activity prohibited by this Agreement;
6.2.13. Violates the terms of this Agreement in any manner; or
6.2.14. Fails to comply with applicable third-party terms and conditions or other third-party policies.
6.3. Linking to the Service. If you would like to link to the Service on your website or application (“Linking”), you agree that: (i) any link to the Service will be a text only link clearly and accurately marked “HatchWorks” (without the use of any other trademark, logo, or copyright or any other intellectual property owned or controlled by HatchWorks) or in some other format directed by HatchWorks; (ii) the appearance, position, and other aspects of the link will not damage or dilute the goodwill associated with HatchWorks’ name or marks; (iii) the link will “point” to the root domain name of the Service and not to other pages within the Service; (iv) the appearance, position, and other attributes of the link will not create the false impression that you, your organization, or any other person or entity is sponsored by, affiliated with, or otherwise associated with HatchWorks; (v) when selected, the link will display the Service in a full screen and not within a “frame” on the linking website or application, and (vi) HatchWorks reserves the right to revoke consent to Linking at any time and in its sole discretion, and that upon HatchWorks’ notification to you of such revocation of consent, you agree to promptly remove the link from your website or application and cease any further Linking.
6.4. Monitoring. HatchWorks reserves the right, but not the obligation, to monitor the Service for the purpose of determining that your usage is in compliance with this Agreement and you hereby consent to such monitoring.
7. Intellectual Property.
7.1. Generally. The HatchWorks logo and other HatchWorks names, patents, copyrights, trademarks, service marks, graphics, logos and other intellectual property used in connection with the Service are and shall be the exclusive intellectual property of HatchWorks (collectively, “HatchWorks IP”). The HatchWorks IP may not be copied, reproduced, imitated, duplicated, distributed, transmitted, transferred, published, stored, licensed, sold nor used, in whole or in part, without the prior written permission of HatchWorks, except with respect to and in accordance with HatchWorks’ intended functionality of the Service. The Service and architecture of the same, including the format, layout, and data structures also constitute and contain, as the case may be, HatchWorks IP, and are protected, as applicable, by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights and are subject to the same aforementioned restrictions.
7.2. Copyright. By downloading, installing, accessing, or using the Service, you acknowledge the validity and enforceability of HatchWorks’ copyright in the underlying Service and code. HatchWorks maintains ownership of all copyright interests in the Service, including any derivative works based upon the Service. Unauthorized copying of the Service or accompanying materials, even if modified, merged, or included with other Service, is expressly forbidden.
7.3. Infringement and Relief. You may be held legally responsible for any infringement of intellectual property rights that is caused or encouraged by your failure to abide by the terms of this Agreement. Notwithstanding any other provisions herein, HatchWorks has the unequivocal right to obtain timely injunctive relief to protect the proprietary rights of HatchWorks referenced herein, in addition to any and all other remedies available under this Agreement or at law or in equity.
7.4. Confidentiality. You agree to keep confidential the Service and to protect its Contents, to limit access to the same to those who have a need to use any of them, and to prevent unauthorized disclosure by your agents, officers, or employees. This obligation shall survive the variation, renewal, or termination of this Agreement but shall not extend to any information which is or comes into the public domain as a result of lawful acts not attributable to the party to whom the information has been supplied.
8. Availability, Compatibility, Maintenance, Service, No Endorsement, and Claims.
8.1. Availability and Accuracy. You should not rely on the availability or functionality of the Service, as the Service, or any part thereof, may not be continuously available. HatchWorks does not guarantee that any portion of the Service will be available at all times or at any given time or that HatchWorks will continue to offer all or any part of the Service for a particular length of time. HatchWorks may impose limits on certain parts of the service or restrict your access to part or all of the Service without notice to you. While HatchWorks has sought to ensure the Contents of the Service are accurate, the Service may not be error free, and HatchWorks makes no representation or warranty, whether express or implied, as to the accuracy, completeness, or non-infringement of the Service or its Contents.
8.2. Compatibility. HatchWorks does not warrant that the Service will be compatible or interoperable with your device(s) or any other piece of hardware, software, equipment, or device installed on or used in connection with your device. You acknowledge and agree that HatchWorks and its affiliates, partners, suppliers, and licensors will have no liability to you for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
8.3. Maintenance and Support. HatchWorks has no obligation to maintain or support the Service or your use of the Service. HatchWorks may, but is not required to, periodically update, modify, change, or terminate all or any part of the Service or functionality available through the Service without further notice to you. In some instances, such updates, modifications, additions or upgrades may cause data loss or other issues. YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF THE SERVICE MAY BE TERMINATED IN WHOLE OR IN PART IN HATCHWORKS’ SOLE DISCRETION WITHOUT NOTICE TO YOU, AND YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF ANY PORTION OF THE SERVICE. In the event HatchWorks upgrades the Service and you do not install the upgrade, some or all of the Service’s functionality may not be available to you and the security of your information may be compromised. You acknowledge and agree that you are solely responsible for regularly backing your data to prevent this from occurring.
8.4. Phone Data and Email Service. You acknowledge and agree that certain aspects of the Service require and utilize phone service, data access, text messaging, email service or other similar capability. Except as otherwise noted as part of the Service, HatchWorks hereby advises you and you hereby agree that the usage of such capabilities is subject to carrier rates for phone, data, text messaging, and email service, which may apply and, if so, you are solely responsible for any such rates or charges, and you agree to hold HatchWorks harmless therefrom.
8.5. No Endorsement. HatchWorks makes no representation that any third party device, platform, or service provider has endorsed the Service.
8.6. Third Party Claims. You acknowledge that you are responsible for addressing any third party claims relating to your use or possession of the Service, and you agree to notify HatchWorks of any third party claims relating to the Service of which you become aware. Furthermore, you hereby release HatchWorks from any liability to third parties resulting from your use or possession of the Service.
9. User Information; Security; Communications; and Advertisements.
9.1. User Information. The Service may use, maintain, or transmit the information that you input therein, and by acknowledging and agreeing to the terms of this Agreement, or by using the Service, you consent to the transmission of such information to HatchWorks, including its agents and third-party contractors, and consent to HatchWorks, including its agents and third-party contractors, receiving, collecting, storing, processing, analyzing, aggregating, improving, reporting, transmitting, and using such information with and for the functionality of the Service and for the purposes disclosed in this Agreement. Such information shall otherwise be kept confidential and not disclosed to any party outside of such purposes. You acknowledge and agree that following termination of your Account, and even if you remove any information from the Service, HatchWorks may retain your information for a commercially reasonable period of time for backup, archival, and audit purposes, or as otherwise required or permitted by law. HatchWorks takes the collection, use, and security of the data that you provide very seriously. Please review the terms of the Privacy Policy, incorporated into this Agreement by reference, for a complete discussion regarding the information HatchWorks collects or receives, how HatchWorks uses that information, and your rights related thereto.
9.2. Security of Account. You must enter a valid user identification and password (“Access Codes”) to use and access the Service’s secure areas and the user account that is specific to you (“Account”). You have the ability to modify your password at any time, and HatchWorks recommends you modify your password regularly. It is your sole responsibility to monitor use of these Access Codes and your Account for all purposes, and you accept all responsibility for the security and utilization of the Service via the same, including unauthorized access by third parties. Do not disclose your Access Codes to anyone not authorized to act on your behalf. If you disclose your Access Codes to anyone, you will be responsible for their actions, including any and all statements made and acts or omissions that occur through the use of your Access Codes or Account and any charges incurred for Service or purchases of additional features or functions, including, but not limited to the Premium Service. You may not transfer or share your Account with any other party, and HatchWorks reserves the right to immediately terminate your Account in the event of the same.
9.3. Communications. After signing up for an Account, you may receive periodic email communications regarding the operation or status of the Service, and you may not opt out of receiving these communications while you continue to use the Service. You may also receive periodic promotions and other offers or materials HatchWorks believes might be of interest to you. You may opt out of receiving these promotional messages at any time by following the instructions to unsubscribe contained in the email messages or by changing the email preferences in your account.
9.4. Advertisements. You understand and acknowledge that the Service may provide or include paid listings, advertisements, or other sponsored information by third parties. You may enter into correspondence with or participate in the promotions of these third party advertisers. Any such correspondence or promotional participation, including the delivery of and the payment for goods and services, and any other associated terms, conditions, warranties or representations, is solely between you and the respective third party advertiser. HatchWorks assumes no liability, obligation, or responsibility for any part of such correspondence or promotional participation.
10. Third-Party Service and Content; Apple Device and Application Terms.
10.1. Third Party Service. Some or all of the software or Service may be provided by an affiliate or subsidiary of HatchWorks or a third party (collectively, “Third Party Service”), and you may be subject to both this License and the terms of service of that third party. Certain portions of the Service may utilize or include Third Party Service that is subject to open source and third party license terms. You acknowledge and agree that your right to use such Third Party Service as part of, or in connection with, the Service is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Service, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this License and the terms of such open source or third party licenses with regard to your use of the relevant Third Party Service, the terms of the open source or third party licenses will control. In no event will the Service or components thereof be deemed to be “open source” or “publicly available” software. You agree to comply with any applicable third party terms of agreement which may affect or be affected by your use of the Service and to respect third party intellectual property.
10.2. Third Party Content. HatchWorks may provide access to third party content, such as network information, service provider information, user-generated reviews, other content submitted by users of the Service, and links to third-party websites. HatchWorks does not, unless otherwise provided: (i) undertake any obligation to review, screen, or investigate materials or other information submitted or otherwise provided by third parties (including other users) in connection with the Service; (ii) undertake any obligation to review, screen, or investigate third parties who provide links to their websites (or the websites of other third parties) or the content of any such websites; or (iii) endorse any positions, ideas, ideologies, concepts, or opinions contained in such third-party content. HatchWorks is not responsible for any third party materials or information, including whether the information is accurate or suitable or available for your use; for the performance or operation of any third party website; for any service or services advertised or sold by any third party (including on or through a third party’s website); or for any other action or inaction by any third party. HatchWorks does not endorse any network or service provider or mobile platform. Your use of any such third party materials will be subject to those terms to which you and the third party agree. HatchWorks will have the right to delete or modify any third-party content in its sole discretion. You assume all risks arising out of or resulting from your transaction of business over the Internet, and you agree that HatchWorks is not responsible or liable for any loss or damage resulting from your use of third-party content, websites, or services.
10.3. Apple Device and Application Terms.
10.3.1. If you access the Service using an application on a device provided by Apple, Inc. (“Apple”) or obtain the Application through the Apple App Store, the following shall apply:
10.3.1.1. Both you and HatchWorks acknowledge that this Agreement is between you and HatchWorks only, and not with Apple, and that Apple is not responsible for the Service;
10.3.1.2. You will only use the Application in connection with an Apple device that you own or control;
10.3.1.3. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
10.3.1.4. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure, and upon notification, Apple’s sole warranty obligation to you will be to refund you the purchase price, if any, of the Application;
10.3.1.5. You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement, and discharge of any such infringement claim;
10.3.1.6. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or that is listed on any U.S. Government list of prohibited or restricted areas;
10.3.1.7. You acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
10.3.1.8. You acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right to enforce this Agreement against you as the third party beneficiary hereof.
10.4. Through the Application, you may purchase (“In App Purchase”) keys or other goods or services (collectively, “Goods”). To the extent you purchase Goods through the Apple iTunes service, you are agreeing to Apple’s iTunes’ terms and conditions (http://www.apple.com/legal/itunes/us/terms.html).
10.5. Apple, the Apple logo, iPhone and iPad are trademarks of Apple, registered in the U.S. and other countries. App Store is a service mark of Apple.
11. User-Generated Content.
11.1. Content You Provide. The Service may allow you to submit, generate, or transfer content, written or otherwise, while using the Service (“User-Generated Content”). You acknowledge and agree that you, and you alone, are responsible for the development of your User-Generated Content.
11.2. License to HatchWorks in User-Generated Content. You further acknowledge and agree that your User-Generated Content may be used, reproduced, displayed, modified, deleted, added too, adapted, and published by the HatchWorks (for example, in product marketing campaigns). To the extent you have any intellectual property rights in such content, you will retain those rights subject to the grant of a license pursuant to this paragraph. By uploading or otherwise submitting content in connection with your use of the Service, you hereby grant HatchWorks (and its affiliates, distributors, and other contractors it may designate in its sole discretion) a worldwide; perpetual; irrevocable; transferrable; sub-licensable; royalty-free; and non-exclusive license to use, distribute, reproduce, publicly display and transmit, modify, delete from, add to, adapt, publish, and prepare derivative works from your User-Generated Content for any purpose without any compensation, attribution, or other obligation to you. You agree not to submit content unless you are willing, and have the right, to grant this license for such content. HatchWorks reserves the right, but not the obligation, to refuse to post, or to remove, in its sole discretion, any of your User-Generated Content. You understand and agree that this license continues even if you stop using the Service.
11.3. Limitations on User-Generated Content. You agree that you will not post, whether within the Service or in any discussion forum, blog, or any other form of social media or in any online area or any other forum, any content that is unlawful, harmful, offensive, threatening, abusive, harassing, invasive of privacy, defamatory, libelous, vulgar, obscene, pornographic, indecent, lewd, suggestive, profane, hateful, racially, ethnically or otherwise objectionable or inappropriate, or that infringes upon the intellectual property or other proprietary rights of any other party, or that would give rise to civil liability or violate any applicable local, state, federal or international law. You agree that you will not post any content that consists of political campaigning, chain letters, mass mailings of any kind or any form of SPAM, or reviews that contain the transmission, distribution or delivery of any unsolicited bulk or commercial e-mail.
11.4. User-Generated Content After Termination. You acknowledge and agree that following termination of your Account, and even if you remove any User-Generated Content from the Service, HatchWorks may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of your User-Generated Content that has otherwise been stored or shared through us.
11.5. Other User-Generated Content. You understand that User-Generated Content of other persons accessing or using the Service is not generated or produced by HatchWorks, but is available in connection with the Service, and is the sole responsibility of the person from whom such User-Generated Content originated, whether publically posted or privately transmitted. Thus, User-Generated Content should not be relied on. HatchWorks does not endorse any opinions, ideas, or information contained in User-Generated Content. All information provided in User-Generated Content is provided “as is” without any representation, warranty, or condition as to its accuracy, completeness, or reliability.
12. Disclaimers; Exclusions; and Limitations.
12.1. NO WARRANTIES. HATCHWORKS IS LICENSING THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. HATCHWORKS DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, USE OF THE SERVICE, OR ANY INFORMATION PROVIDED IN CONNECTION WITH THE SERVICE: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, DELAYS, INACCURACIES, INCOMPLETENESS, OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH HARDWARE OR SOFTWARE YOU USE. HATCHWORKS MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THE TERMS OF THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. HATCHWORKS MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY THIRD PARTY MATERIALS, INFORMATION, GOODS, OR SERVICES, WHETHER RECEIVED OR ACCESSED VIA ANY LINKS PROVIDED BY OR IN CONNECTION WITH THE SERVICE OR OTHERWISE. HATCHWORKS MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY GOODS OR SERVICE WHICH MAY BE PURCHASED OR OBTAINED FROM HATCHWORKS OR ANY THIRD PARTY AS A RESULT OF USING THE SERVICE. NOTWITHSTANDING THE FOREGOING, IF AN IMPLIED WARRANTY OR CONDITION IS CREATED PURSUANT TO STATE LAW AND/OR FEDERAL OR STATE LAW PROHIBITS A DISCLAIMER OF IMPLIED WARRANTIES OR CONDITIONS, YOU MAY HAVE AN IMPLIED WARRANTY OR CONDITION, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE MINIMUM PERIOD AS REQUIRED BY LAW (“WARRANTY PERIOD”). AS TO DEFECTS DISCOVERED AFTER THE WARRANTY PERIOD, IF ONE IS REQUIRED, THERE IS NO IMPLIED WARRANTY OR CONDITION OF ANY KIND. NOTWITHSTANDING THE FOREGOING, SOME STATES MAY NOT ALLOW LIMITATIONS ON THE DURATION OF AN IMPLIED WARRANTY OR CONDITION SO THE AFOREMENTIONED LIMITATION MAY NOT BE APPLICABLE TO YOU.
12.2. NO CONSEQUENTIAL DAMAGES. HATCHWORKS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICE, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED. SOME STATES/JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT BE APPLICABLE TO YOU. IF THE LAWS OF SUCH STATES APPLY TO ANY CLAIM BY OR AGAINST HATCHWORKS, THE LIMITATIONS AND DISCLAIMERS CONTAINED HEREIN SHALL BE TO THE GREATEST EXTENT PERMITTED BY LAW.
12.3. LIMITATION OF DAMAGES. IN NO EVENT, UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, WHETHER IN TORT OR CONTRACT, OR OTHERWISE, WILL THE AGGREGATE LIABILITY OF HATCHWORKS ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE EXCEED THE GREATER OF: (I) AMOUNTS THAT YOU PAID HATCHWORKS FOR YOUR USE OF THE SERVICE; OR (II) FIFTY AND 00/100 DOLLARS ($50.00).
12.4. STATE LAW EXCEPTIONS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Indemnity. You agree to defend, indemnify, and hold harmless HatchWorks, including its agents, affiliates, employees, officers, directors, contractors, licensors, suppliers, and anyone involved in creating or providing the Service, from and against any claims, causes of action, liabilities, damages, judgments, awards, losses, costs, fines, penalties, expenses or fees (including reasonable attorneys’ fees) resulting from or related to your use or misuse of the Service, your violation of this Agreement, your violation of any rights of a third party, any negligent, willful or criminal act or omission, or any allegation of any of the foregoing.
14. Activities Involving Risk; No Duty; Assumption of The Risk; and Proper Use.
14.1. Activities Involving Risk. You acknowledge and understand that the activities, programs, exercises, tricks, or maneuvers, related or incidental to, represented or condoned by, accessed through, or connected with the Service (the “Activities”) involve physical activity and that the participation in such Activities, even for persons who are currently in good health, involve substantial risk to your health and safety. You are responsible for your own safety, and you should consult with your healthcare provider(s) and consider the risks before using the Service. By using the Service, you agree, represent, and warrant that you have received consent from your physician to participate in the Activities.
14.2. No Duty. You understand and agree that HatchWorks will not provide, will not be responsible for, and has no duty to carry out any physical inspection, approval, supervision, preparation, execution, or regulation of the Activities or any of the property, premises, equipment necessary, related, or incidental to your participation in the Activities or your use of the Service. You acknowledge and agree that you are responsible for the inspection of any and all equipment related to the Activities, the premises where you will engage in the Activities, and your use of any and all protective equipment, including but not limited to, a helmet, knee pads, and wrist guards.
14.3. ASSUMPTION OF THE RISK. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT PARTICIPATING IN THE PHYSICAL OR OTHER ACTIVITIES REPRESENTED BY OR IN CONNECTION WITH THE SERVICE INVOLVE RISK OF SERIOUS INJURY OR DEATH, ECONOMIC LOSS, AND PROPERTY DAMAGE OR LOSS, ALL OF WHICH MAY NOT ONLY RESULT FROM YOUR OWN ACTIONS, INACTIONS, OR NEGLIGENCE WHILE USING THE SERVICE, BUT MAY ALSO RESULT ALSO FROM THE ACTIONS, INACTIONS, OR NEGLIGENCE OF OTHERS AND/OR THE CONDITION OF THE PROPERTY. YOU HEREBY ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOUR PARTICIPATION IN SUCH ACTIVITIES IS FOR YOUR OWN PERSONAL ENJOYMENT AND YOU VOLUNTARILY AGREE TO ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES.
14.4. Proper Use. You are responsible for your own use of the Service in all respects, and you agree that you will use the Service properly and safely. You agree not to change settings or otherwise use your device while in motion or performing the Activities, and further agree to consider your surroundings, your physical skills and abilities, and third persons prior to and while engaging in the Activities or otherwise using the Service. To the maximum extent permitted by law, you expressly agree that HatchWorks is not responsible or liable, directly or indirectly, for any injuries or damages that are sustained from or related to your use of the Service, your participation in the Activities, or any Contents or products that you access or learn about through the Service or other users, even if caused in whole or in part by the action, inaction, or negligence of HatchWorks. Furthermore, you expressly agree that HatchWorks is not responsible or liable for, directly or indirectly, any third-party conduct in relation to the Activities or any event that utilizes or is promoted by or accessed through the Service.
15. Beta Service. From time to time, HatchWorks may offer certain portions of the Service in “Beta” for a period of time while still under development and testing (the “Beta Service”). By using the Beta Service, you agree to the terms and conditions of this Agreement and to any additional terms and conditions provided herein with regard to the same. If you utilize the Beta Service, you acknowledge and agree that the Beta Service is a pre-release version, does not represent a final product from us, and may contain bugs, errors, or other problems that could cause failures and other damages, including, without limitation, damage to your computer or mobile device. You further acknowledge that the Beta Service is experimental in nature and is provided “as is,” without warranties of any kind, whether express or implied, or statutory, including but not limited to warranties of title, non-infringement, merchantability, or fitness for a particular purpose. You agree that HatchWorks has no liability of any nature as a result of any use of the Beta Service outside of a testing environment. Further, to the maximum extent permitted by law, in no event will HatchWorks be liable for any loss of use, lost data, damage, or destruction to any computer or mobile device, failure of security mechanisms, or any indirect, special, incidental or consequential damages of any kind, regardless of the form of action, and with respect to the Beta Service. HatchWorks does not guarantee that it will make a commercial release of a version of the Beta Service available. USE OF THE BETA SERVICE IS ENTIRELY AT YOUR OWN RISK.
16. Non-U.S. Access or Use. The Service is intended for use only by persons located in the United States. HatchWorks makes no claims that the Service or any of its Contents is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
17. Complaints and Dispute Resolution.
17.1. Generally. Most concerns can be solved quickly by contacting HatchWorks. However, in the event that the concern cannot be addressed in this manner, and you wish to bring legal action against HatchWorks, this Agreement shall be governed by and construed in accordance with the laws of the State of Colorado and applicable federal laws of the United States. These provisions apply to you if you are domiciled in the United States. These provisions may also apply to you if you are and/or access, use, download, or install, as the case may be, the Service from outside the United States.
17.2. Initial Dispute Resolution. If you have any concerns or issues regarding the Service, you agree that HatchWorks’ customer support team, to be contacted as set forth in Section twenty-five (25), will be your first point of contact, and you further agree to use your best efforts, acting reasonably and in good faith, to settle any dispute, claim, concern, or disagreement regarding the Service through direct negotiations with our support team. Such good faith negotiations shall be a precondition to your initiation of any legal proceeding, action, or formal claim against HatchWorks.
17.3. Binding Arbitration. If you and HatchWorks (collectively, the “Parties”) do not reach a mutually agreed solution within a period of thirty (30) days from the time initial dispute resolution is pursued pursuant to the paragraph above, the Parties may initiate binding arbitration as the sole means to formally resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms of Service or the Privacy Policy (including the interpretation, formation, performance, and breach of the same), the relationship between you and HatchWorks, and/or your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Comprehensive Arbitration Rules or Streamlined Arbitration Rules, as appropriate, excluding any rules or procedures governing or permitting class actions. This arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the interpretation, applicability, enforceability and formation of these terms notwithstanding any other choice of law provision contained in these terms. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these terms, including without limitation any claim that all or any part of these Terms of Service or Privacy Policy is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The JAMS rules governing the arbitration may be accessed at http://www.jamsadr.com/ or by calling JAMS at (800) 352-5267. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Comprehensive Arbitration Rules and, to the extent applicable, the Consumer Minimum Standards, including the then-current limit on arbitration filing fees. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, HatchWorks will pay the additional cost. The Parties understand that, absent this mandatory provision, the Parties would have the right to sue in court and have a jury trial, and further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
17.4. Location. If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in Denver County, Colorado, and you and we agree to submit to the personal jurisdiction of any federal or state court in Denver County, Colorado, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
17.5. Class Action Waiver. The Parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action to seek relief on a class basis. YOU AND HATCHWORKS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE PRIVACY POLICY ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
17.6. Exception to Arbitration. Notwithstanding the Parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the Services under these terms. Either you or HatchWorks may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
17.7. Right To Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the paragraphs above by sending HatchWorks written notice of your decision to opt-out. The notice must be sent within thirty (30) days of your commencement of use of the Service, otherwise you shall be bound to arbitrate disputes as provided for herein. If you opt-out of these arbitration provisions, HatchWorks also will not be bound by them.
17.8. Notice of Change. HatchWorks will provide sixty (60) days’ notice of any changes to this Section Seventeen (17). Any changes made will become effective on the sixtieth (60th) day and will apply prospectively only to those claims accruing or arising after the sixtieth (60th) day.
18. LIMITATION PERIOD. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE COMMENCED WITHIN 1 (ONE) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
19. No Agency. You agree that no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship between you and HatchWorks is intended or created by this Agreement.
20. Legal Fees. In the event of a legal action or proceeding brought by either party, the prevailing party shall be entitled to reimbursement of legal fees as set by court action.
21. Severability. If any of these terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms.
22. Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
23. Waiver; No Waiver. Any waiver by HatchWorks of any term or condition of this Agreement must be in writing. Failure of HatchWorks to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance, and no waiver of any provision of this Agreement by HatchWorks shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
24. Entire Agreement. This Agreement, which includes the Terms of Service and the Privacy Policy, incorporated herein by reference, constitutes the sole and entire agreement between you and HatchWorks with respect to the Service and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral.
25. Notice. HatchWorks may provide any notice to you under this Agreement using your electronic address associated with your Account of directly through the Service. All notices to or correspondences to HatchWorks under this Agreement must be sent to the following electronic address: contact–[email protected] or the following physical address:
HatchWorks, LLC
PO Box 1956
Greeley, CO 80632
26. Modification of this Agreement. HatchWorks may modify this Agreement at any time or from time to time for any reason whatsoever. Any amendments or modifications may be provided to you through on-line or electronic notice as provided herein. You agree that your use of the Service after you have, or should have received, notice of modifications or amendments to this Agreement will constitute acceptance of all such modifications or amendments.
27. Export Restrictions. You agree to comply with all applicable international and U.S. laws that may apply to the Service, including, without limitation, the U.S. Export Administration Regulations, and any end-user, end-use, and destination restrictions that have been or may be issued by the United States and other countries or jurisdictions.
