Effective: January 1, 2020
Hatch Brighter Terms of Service
ACCEPTANCE OF TERMS
IMPORTANT — READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE HATCH BRIGHTER SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
DESCRIPTION OF SERVICE
The Service includes, and is limited to, a service, web site, or mobile application that allows You access to and use of a single Hatch Brighter Account. “Hatch Brighter” referred to herein means an online mobile application that guides parents through various activities, exercises & conversations. The Service may contain information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Service (collectively, “Content”). Subject to these Terms of Service, Hatch Brighter grants to You and each user of the Service a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Service. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Service is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. For the purposes of these Terms of Service, “Content” also includes all User Content (as defined below).
A “Hatch Brighter Account” or “Account” referred to herein means a service, web site, or mobile application, provided by Hatch Brighter, where You may use Hatch Brighter to create, update, share, and publish information, data, text, messages or other materials (“User Content”).
Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Agreement. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You also understand and agree that the service may include certain communications from Hatch Brighter, such as service announcements, administrative messages, etc., and that these communications are considered part of the Service and You will not be able to opt out of receiving them. You agree not to access the Service by any means other than through the interfaces that are provided by Hatch Brighter for use in accessing the Service. Hatch Brighter will provide the Service in accordance with this Agreement. Hatch Brighter may at its sole discretion modify the features of the Service from time to time without prior notice.
In order to use the Service, You must have a valid Account. To acquire an Account for the Service, You must provide Hatch Brighter with an electronic mail address and other information (“Registration Data”). You are responsible for maintaining the confidentiality of the access data for Your Account, and are fully responsible for all activities that occur under Your Account. You agree to (a) immediately notify Hatch Brighter of any unauthorized use of Your Account or any other breach of security, and (b) ensure that You exit from Your Account at the end of each session. Hatch Brighter cannot and will not be liable for any loss or damage arising from Your failure to comply with this section. In consideration of use of the Service, You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the Service’s registration form, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Hatch Brighter assumes no duty to verify such information as further detailed in the CONTENT OF THE SERVICE section of these Terms of Service. If You provide any information that is untrue, inaccurate, not current or incomplete, or Hatch Brighter has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Hatch Brighter has the right to suspend or terminate Your Account and refuse any and all current or future use of the Service (or any portion thereof). By using the Service (and registering an Account on the Service), You represent and warrant that You are at least 13 years of age, and no one under the age of 13 may use the Service – except as set forth below under “Kids Under 13 and Hatch Brighter”. Hatch Brighter may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Service is revoked where these Terms of Service or use of the Service is prohibited or to the extent offering, sale or provision of the Service conflicts with any applicable law, rule or regulation.
KIDS UNDER 13 AND Hatch Brighter
PROPRIETARY/INTELLECTUAL PROPERTY RIGHTS
Hatch Brighter and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Service and in all trade names, trademarks and service marks associated or displayed with the Service. You will not remove, deface or obscure any of Hatch Brighter’s or its suppliers’ copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Service. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Service.
You acknowledge that the Service, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
You acknowledge that any use of the Service contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or
materials related to the Service, may cause irreparable injury to Hatch Brighter, its affiliates, suppliers and any other party authorized by Hatch Brighter to resell, distribute, or promote the Service (“Resellers”), and under such circumstances Hatch Brighter, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
Hatch Brighter does not claim ownership over any User Content submitted on or through the Service. Your User Content belongs to You. However, by uploading any User Content to the Service, You agree that Hatch Brighter may store and display your User Content solely as necessary in connection with the Service. To the extent you choose to share any of Your User Content with other users of the Service, You agree to allow these users to view Your User Content and, to the extent applicable, collaborate with You and Your User Content.
You understand that all User Content is the sole responsibility of the person from which such User Content originated. This means that You, and not Hatch Brighter, are entirely responsible for all User Content that You upload, post, transmit or otherwise make available via Your Account. Hatch Brighter does not control the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such User Content.
You understand that Hatch Brighter at times will send notification email to users. These emails will come to individuals with a “ do not reply to” address of a Hatch Brighter email.
You understand that by using the Service, You may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will Hatch Brighter be liable in any way for any User Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that Hatch Brighter does not pre-screen User Content, but that Hatch Brighter and its designees shall have the right (but not the obligation) in their sole discretion to refuse, modify or move any Content that is available via the Service. Without limiting the foregoing, Hatch Brighter and its designees shall have the right to remove any User Content that violates the Agreement or is otherwise objectionable. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not reasonably rely on any Content created by Hatch Brighter or submitted to Hatch Brighter. You acknowledge and agree that Hatch Brighter may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
(a) comply with legal process;
(b) enforce the Agreement;
(c) respond to claims that any Content violates the rights of third-parties; or
(d) protect the rights, property, or personal safety of Hatch Brighter, its users and the public.
If Hatch Brighter discloses User Content to comply with legal process or respond to claims that any User Content violates the rights of third-parties, to the
extent permitted by law, regulation or legal process, Hatch Brighter agrees to provide You with prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
You understand that the technical processing and transmission of the Service, including Your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Should User Content be found or reported to be in violation with, but not limited to, the following terms, it will be in Hatch Brighter’s sole discretion as to what action should be taken. You agree that You will not:
(a) upload, post, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a Hatch Brighter official, forum leader, guide or host, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service;
(e) upload, post or otherwise transmit any User Content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, including but not limited to (a) sending mass email to recipients who haven’t requested email from You or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting Your site by posting multiple submissions in public forums that are identical;
(h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) “stalk” or otherwise harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices.
(m) offer for sale or sell any item, good or service that (i) violates any applicable federal, state, or local law or regulation, (ii) You do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (iii) Hatch Brighter determines, in its sole discretion, is inappropriate for sale through the Service provided by Hatch Brighter;
(n) use the Account website as a redirecting/forwarding service to another website;
(o) exceed the scope of the Service that You have signed up for; for example, accessing and using the tools that You do not have a right to use, or having humans share User logins, or deleting, adding to, or otherwise changing other people’s comments or User Content as an Account holder. If any user is reported to be in violation with the letter or spirit of these terms, Hatch Brighter retains the right to terminate such account at any time without further warning.
Apple Device and Application Terms. If you are accessing the Service via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store (each an “Application”), the following shall apply:
Both You and Hatch Brighter acknowledge that these Terms of Service are concluded between you and Hatch Brighter only, and not with Apple, and that Apple is not responsible for the Application or the Content;
The Application is licensed to You on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for Your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Service as they are applicable to the Service;
You will only use the Application in connection with an Apple device that You own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
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; upon notification, Apple’s sole warranty obligation to You will be to refund to you the purchase price, if any, of the Application;
You acknowledge and agree that Hatch Brighter, and not Apple, is responsible for addressing any claims You or any third party may have in relation to the Application;
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, Hatch Brighter, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
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, and that You are not listed on any U.S. Government list of prohibited or restricted parties;
Both You and Hatch Brighter 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
Both You and Hatch Brighter acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon Your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against You as the third party beneficiary hereof.
Apple, the Apple logo, iPhone and iPad are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Google Play is a trademark of Google Inc.
In-App Purchases. 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).
GENERAL PRACTICES REGARDING USE AND STORAGE.
You agree that Hatch Brighter has no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Content and other communications maintained by the Service. You acknowledge that Hatch Brighter may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time. Hatch Brighter retains the right to create limits on use and storage at our sole discretion at any time with or without notice. You acknowledge that we reserve the right to log off users who are inactive for an extended period of time.
You agree that You will not:
(a) upload, post, email, or otherwise transmit any computer routines, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
(d) copy, reproduce, alter, modify, or publicly display any information displayed on the Service (except for Your User Content), or create derivative works from our website (other than from Your User Content), to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of Hatch Brighter or any other third party, except with the prior written consent of Hatch Brighter or the appropriate third party.
CONTENT OF THE SERVICE.
Hatch Brighter takes no responsibility for any third-party Content or User Content (including, without limitation,any viruses or other disabling features), nor does Hatch Brighter have any obligation to monitor such third-party Content. Hatch Brighter reserves the right at all times to remove or refuse to distribute any Content on the Service, such as Content which violates these Terms of Service. Hatch Brighter also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms of Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of Hatch Brighter, its users and the public. Hatch Brighter will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
If Hatch Brighter discloses such information to satisfy any applicable law, regulation, legal process or governmental request or to respond to user support requests, to the extent permitted by law, regulation or legal process, Hatch Brighter agrees to provide You with prompt notice of any such demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct and acceptable User Content. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside. You understand that data you give Hatch Brighter may be stored on servers inside the United States and you have the right to opt out and request your data be removed at anytime while utilizing Hatch Brighter.
NO RESALE OF THE SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express permission by Hatch Brighter.
YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that (a) all of the information provided by You to Hatch Brighter to participate in the Service is correct and current; and (b) You have all necessary right, power and authority to enter into these Terms of Service and to perform the acts required of You hereunder.
NO WARRANTIES OR REPRESENTATIONS BY Hatch Brighter
You understand and agree that the Service is provided “as is” and Hatch Brighter, its affiliates, suppliers and Resellers expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or bailment of your data on Hatch Brighter’s servers. Hatch Brighter, its affiliates, suppliers and Resellers make no warranty or representation regarding the results that may be obtained from the use of the Service, the security of the Service, or that the Service will meet any user’s requirements. Use of the Service is at Your sole risk. You will be solely responsible for any damage to You resulting from the use of the Service. The entire risk arising out of use, security or performance of the Service remains with You. No oral or written information or advice given by Hatch Brighter or its authorized representatives shall create a warranty or in any way increase the scope of Hatch Brighter’s obligations. Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Hatch Brighter, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
You agree to indemnify, defend and hold harmless Hatch Brighter, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees as and when incurred) arising from Your use of the Service, Your use of Your Account, Your violation of these Terms of Service or the infringement or violation by You or any other User of Your Account, of any intellectual property relating to the Service (including without limitation Your User Content) or other right of any person or entity.
MODIFICATIONS TO SERVICE
Hatch Brighter reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time. You agree that Hatch Brighter shall not be liable to You or to any third party for any modification, suspension, termination or discontinuance of the Service.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between You and Hatch Brighter Software is intended or created by these Terms of Service.
LIMITATION OF LIABILITY
In no event will Hatch Brighter or its affiliates, suppliers or Resellers be liable for any special, incidental, indirect, exemplary or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss or damage) arising out of the use of or inability to use the Service, or the provision of or failure to provide technical or other support service, whether arising in tort (including negligence) contract or any other legal theory, even if Hatch Brighter, its affiliates, suppliers or Resellers have been advised of the possibility of such damages. In any case, Hatch Brighter’s, its affiliates’, suppliers’ and Resellers’ maximum cumulative liability and Your exclusive remedy for any claims arising out of or related to this Agreement will be limited to the amount actually paid by You for the Service (if any) in the previous twelve (12) months.
WAIVER AND SEVERABILITY
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
STATUTE OF LIMITATIONS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of Hatch Brighter services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
CHOICE OF LAW AND FORUM
This Agreement shall be governed by and construed under the laws of the State of California, USA, as applied to agreements entered into and to be performed in California by California residents. The parties consent to the exclusive jurisdiction and venue of the courts located in the county of Tustin, in the state of California, in the country of the United States of America.
ENTIRE AGREEMENT/GENERAL PROVISIONS
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. Hatch Brighter may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of Hatch Brighter upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Hatch Brighter, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. Notices to You may be made via either email or regular mail. The Service may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to You generally on the Service. All notices or other correspondence to Hatch Brighter under this Agreement must be sent to the following electronic mail address for such purpose: