HATCHTRACKER TERMS OF USE
Last updated November 3, 2022
These Terms of Use (or “Terms”) are a binding contract between Hatch Tracker LLC (the “Company,” “us,” or “we”) and you governing your use of the HatchTracker mobile application (“HatchTracker”). Additional, separate terms may apply to your use of HatchTracker, each of which will be considered to form part of these Terms.
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND AN ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND THE COMPANY.
If you have any questions about HatchTracker or these Terms of Use, please contact us at info@hatchtracker.com.
1. ACCEPTANCE
To use HatchTracker, you must agree to be unconditionally bound by these Terms. You must be of legal age and capacity to form a binding contract to accept the Terms and use HatchTracker. If you are accessing HatchTracker on behalf of a company or other legal entity, you represent and agree that you are authorized to act on behalf of such entity and to bind such entity to these Terms. You accept the Terms by accessing or using HatchTracker in any manner, or by clicking to accept or agree to the Terms where this option is made available to you. These Terms will remain in effect as long as you use HatchTracker. By using HatchTracker in any capacity, you represent and warrant that (a) any information you submit to us is truthful and accurate; (b) you will maintain the accuracy of that information; (c) you will be entirely responsible for maintaining the security of your logins and credentials, if any; and (d) your use of HatchTracker and their features does not and will not violate any applicable law, rule or regulation. Any use of HatchTracker in violation of these Terms that in our judgment threatens the security, integrity, or availability of HatchTracker may result in immediate suspension of access to HatchTracker, without limiting any other rights and remedies.
2. ELIGIBILTY
To be eligible to use HatchTracker, you must be at least 18 years old and reside in the United States or any of its territories or possessions, and you must be a subscribing customer (“Customer”) or an employee or other authorized user of a Customer (“Authorized User”). By accessing or using HatchTracker, you represent and warrant that you are of legal age to form a binding contract with the Company, and you meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not use HatchTracker.
3. REGISTRATION
You must register and create an account to use HatchTracker. The information we collect during registration and how we use that information is described in our Privacy Policy. Only you are permitted to access HatchTracker via your own account. Your login credentials are for your personal use only and you shall not, under any circumstances, make your login credentials made available to anyone. You accept responsibility for all activity that occurs under your account. You may not use false identities or impersonate any other person or use credentials that you are not authorized to use. We are not liable for any loss or damage arising out of your failure to maintain your account security. You agree to notify the Company immediately of any suspected theft, loss, or fraudulent use of your login or password.
4. AUTHORIZED USERS
a. Access via Customer. As an Authorized User, your access to HatchTracker has been paid by the applicable Customer, and you will be able to use HatchTracker subject to the Customer’s policies and practices until the expiration of a specified term agreed between the Customer and the Company. The Customer paying for your access to HatchTracker controls the scope and duration of your access and use of HatchTracker and may terminate or de-provision your access to it. You agree that the Company will not be liable to you or any third-party for any termination or cancellation of your access to, or use of, HatchTracker that were originally provided to you by such Customer.
b. No Employment Relationship. As an Authorized User, you may use HatchTracker in connection with your employment, however, you understand you have no employment relationship with us and that you and the Company are independent contractors. Nothing in these Terms shall be interpreted to grant either party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, co-owners, principal-agent, or otherwise participants in a joint or common undertaking, or, except as expressly provided herein, allow either party to create or assume any obligation on behalf of the other for any purpose whatsoever. You acknowledge and agree that you will not be entitled to participate in and/or receive any benefits from us under any circumstances, we have no obligation to withhold any income or other payroll taxes on your behalf. You agree to indemnify, defend, and hold harmless the Company from and against any losses that we incur as a result of your breach of your obligations under this provision.
5. LICENSE GRANT
Subject to these Terms, we hereby grant you a limited, non-exclusive, nontransferable, non-sublicensable, revocable license to access, download, install, and use HatchTracker for your own personal, non-commercial purposes. HatchTracker are licensed to you, not sold. Nothing in these Terms is intended to, or may be construed as, conferring by implication, estoppel or otherwise any ownership, license or other grant of right to any copyright, trademark, or other intellectual property of the Company or any third party, except as expressly provided in these Terms. The Company reserves all rights not expressly granted in these Terms.
6. PRIVACY POLICY
You acknowledge that you have read and understand our Privacy Policy. You may review our Privacy Policy at any time by visiting the Company website and clicking on the Privacy Policy link. Note that as a Customer, you are solely responsible for ensuring that you only use and make HatchTracker available to Authorized Users in compliance with applicable laws.
7. ACCEPTABLE USE
You agree to not: (a) rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer HatchTracker or any portion thereof (including the Contents, defined below) or use it in any manner not expressly authorized by these Terms; (b) copy, reverse engineer, translate, port, modify, or make derivative works of any portion of HatchTracker; (c) violate or attempt to violate the security features of HatchTracker; (d) use any device, software, or routine to interfere or try to interfere with the proper working of HatchTracker or any activity being conducted on via HatchTracker; or (e) use or try to use any device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search HatchTracker other than the search engine or search agents that we make available via HatchTracker and the generally available third-party web browsers. Tampering with HatchTracker, conducting fraudulent activities on HatchTracker and all other illegal activities are prohibited and may subject a user to legal action and/or termination of your access to HatchTracker. If you engage in the foregoing activity, you may face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations. You are strictly prohibited from using HatchTracker: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, or local laws, regulations, rules, or ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious or destructive code; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of HatchTracker or any related website or application, other website or application, or the internet. We reserve the right to terminate your use of HatchTracker for violating any of the prohibited uses.
8. AVAILABILITY
The Company will use commercially reasonable efforts to maintain availability of HatchTracker. You agree and understand that there will be times when HatchTracker is not available, such as scheduled maintenance times; outages; emergency maintenance; unavailability caused by software, hardware, or other users; and causes beyond our reasonable control. The Company will make commercially reasonable efforts to notify you of planned downtime and unavailability of HatchTracker. The Company is not liable for any delays, interruptions, or other transmission errors resulting from any lack of Service, whether or not the cause is mentioned in this paragraph, or any lack of Service caused by your device or your internet or wireless service provider. We reserve the right to close, suspend, or limit your access to HatchTracker if, in our sole discretion, (a) we are unable to obtain or verify your identity or eligibility; (b) we suspect a security compromise related to your use of HatchTracker; or (c) your data has been used in, or seems to have been used in, a nefarious manner.
9. CONTENTS AND OWNERSHIP
Unless otherwise expressly indicated, the information contained on HatchTracker, including but not limited to all data, software, images, content, text, information, page headers, button icons, designs, data, graphics, slogans, photographs, written information, and other materials, as well as names, logos, taglines, trade dress, and other trademarks displayed on HatchTracker, are copyrights, trademarks, trade dress or other intellectual property owned, controlled, or licensed by the Company (collectively, the “Contents”). The Contents are protected by U.S. and foreign copyright, trademark, trade dress, or other proprietary right laws and international conventions. The absence of a product name or logo from this list in no way constitutes a waiver of the Company’s intellectual property rights. No material contained on HatchTracker should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed on HatchTracker without the express written agreement of The Company. The Company’s registered and unregistered trademarks and trade dress, including names, logos, taglines, trade dress, and other trademarks, may not be copied, imitated, or used, whether in whole, partial, or modified form, without the prior written permission of the Company. You may not use any meta tags or any other hidden text utilizing a Company name, trademark, or product name without the Company’s prior written permission. Third-party trademarks and service marks used on HatchTracker are the property of their respective owners, and we use them with their consent. The Company and the other licensors of the marks on HatchTracker reserve all rights with respect to all Contents and all intellectual property. Improper use of trademarks displayed on HatchTracker is strictly prohibited.
10. USER GENERATED MATERIAL
Authorized Users, website visitors, and others may have the opportunity to publish, transmit, submit or otherwise post comments, feedback, photos, or other materials via HatchTracker (“User Generated Material” or “UGM”) that may be accessible and viewable by the public or others. With respect to any UGM posted by you, you represent that (a) you created and own the rights to the content, or you have the owner’s express permission to post such content; and (b) the content does not infringe any other person’s or entity’s rights (including, without limitation, copyrights, trademarks, rights of publicity or privacy rights) or violate any applicable laws, rules or regulations, these Terms, or any of our other posted policies. User Generated Material must not (i) misrepresent your identity or affiliation with any person or organization; (ii) seek to collect others’ Personal Information by any means; (iii) seek to transmit chain letters, or bulk or junk email; (iv) relate to contests, sweepstakes, or other sales promotions; (v) include information that may be used to track, contact, or impersonate another; (vi) infringe any intellectual property or other proprietary rights of The Company or any other person; (g) seek to harm or exploit children; (vii) contain any material that is false, defamatory, libelous, obscene, harassing, discriminatory, profane, or otherwise offensive, damaging, unlawful, or harmful; (viii) violate The Company’s or any other person’s or entity’s legal rights, contain any material that could give rise to civil or criminal liability under applicable laws or regulations, or otherwise promote, advocate or assist any illegal activity or unlawful act; or (ix) be otherwise objectionable as determined by us at our sole discretion. You are solely responsible for your UGM and the consequences of posting it online. You assume all risks associated with dealing with other users with whom you come in contact through HatchTracker, and, to the extent that the law permits, you release us from any claims or liability related to any UGM posted via HatchTracker and from any claims related to the conduct of any other users. We reserve the right, but have no obligation to, monitor, review, screen, post, remove, reject, modify, or store UGM at any time and for any reason without notice. We do not endorse any UGM, and the UGM posted does not reflect our opinions, views, or advice. We take no responsibility and assume no liability for any UGM that you or a third party posts or sends on or through HatchTracker, nor do we assume any liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. In consideration for your use of the UGM features, you grant to the Company an irrevocable, worldwide, royalty-free, fully paid, sub-licensable, perpetual license to use, reproduce, make derivative works from, distribute, publish, display, or perform such UGM in whole or in part, by any and all means and media, in connection with advertising, marketing and promoting The Company, our products and HatchTracker. You acknowledge that the Company may modify the UGM for any purpose. However, we have no obligation to use any UGM, and our use of any UGM does not create or imply any endorsement of or affiliation with you.
11. MOBILE APPLICATION
To use HatchTracker, you must have a compatible mobile telephone or handheld device, Internet access, and the necessary minimum specifications (“Software Requirements”). The Software Requirements for Apple iOS devices and Android OS devices can be found on the relevant App Store page. HatchTracker may be upgraded from time to time to add support for new functions or services. HatchTracker may request certain privacy permissions from time to time such as access to your calendar, device camera or microphone, or other apps and associated features on your device. You acknowledge that the terms of agreement with your respective mobile network provider will continue to apply when using HatchTracker. Data and messaging charges may apply to your use of HatchTracker or any text messaging or photo sharing features you use via HatchTracker. You accept responsibility for any such charges that arise. If you are not the bill payer for the mobile telephone or handheld device being used to access HatchTracker, you will be assumed to have received permission from the bill payer for using HatchTracker.
12. THIRD-PARTY CONTENT
HatchTracker may include third-party content and/or hyperlinks to websites, resources, or content owned or operated by third parties, over which we have no control (“Third-Party Content”). Third-Party Content available on HatchTracker is provided solely for your convenience. We are not responsible for the content of any Third-Party Content, nor do we make any representations about the content or accuracy of material on any other platforms. Inclusion of Third-Party Content on HatchTracker does not imply our approval or endorsement of the Third-Party Content. Please be aware that when you click on links that take you to external platforms or content, you do so at your own risk, and you will be subject to their privacy policies and practices and not ours. Any concerns regarding any such website, service, or resource should be directed to the respective third-party.
13. LEGAL COMPLIANCE; VOID WHERE PROHIBITED
The Company administers and operates HatchTracker from its offices in the United States. If you choose to access HatchTracker from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws. Without limiting the foregoing, when using HatchTracker, you agree to comply with all applicable laws, including, but not limited to ecommerce, export controls, and applicable laws governing privacy and data security and their requirements related to verifiable consent, parental consent, consumer privacy rights, recordkeeping, international data transfer laws and other requirements. Not all features, products or services discussed, referenced, provided, or offered via HatchTracker are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. The Company reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. HatchTracker is void where prohibited.
14. TERM AND TERMINATION
These Terms shall remain in full force and effect as long as you use HatchTracker. Termination of these Terms is effective when you discontinue all use of HatchTracker. Notwithstanding the foregoing, termination of these Terms between a Customer and the Company shall be effective as set forth in the written agreement(s) between the Customer and the Company. On termination, you lose the right to access or use HatchTracker. Sections 4, 7, 9, 10, 13, and 15 through 19 of these Terms shall survive termination.
15. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COMPANY, ITS EMPLOYEES, AGENTS, OR INDEPENDENT CONTRACTORS (THE “DISCLAIMING ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH HATCHTRACKER, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF THE DISCLAIMING ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED HEREIN, HATCHTRACKER ARE PROVIDED “AS-IS” AND THE COMPANY DISCLAIMS, AND THESE TERMS EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY (A) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSES, (B) THAT HATCHTRACKER ARE ERROR-FREE, FAULT-TOLERANT, OR FAIL-SAFE, WILL OPERATE WITHOUT INTERRUPTION, ARE COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS, OR THAT ALL NON-CONFORMITIES CAN OR WILL BE CORRECTED, (C) OF NONINTERFERENCE, SYSTEM INTEGRATION, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. YOU AGREE THAT ITS USE OF HATCHTRACKER IS AT ITS SOLE DISCRETION AND RISK. NOTWITHSTANDING THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT HATCHTRACKER SHALL BE ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE AT THE TIME OF DELIVERY. HatchTracker does not replace professional training, good judgment, or common sense. You are responsible for compliance with all safety notices that accompany HatchTracker. The Company does not warrant the accuracy, completeness, or usefulness of any data submitted to or output from HatchTracker. Any reliance you place on such information is strictly at your own risk. The Company disclaims all liability and responsibility arising from any reliance placed on such information by you or others.
17. INDEMNIFICATION
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY AND THE DISCLAIMING ENTITIES FROM ALL CLAIMS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, OF ANY KIND OR NATURE ARISING OUT OF OR RELATED TO A CLAIM (A) YOUR USE OF THE SERVICES IN VIOLATION OF THESE TERMS; (B) OUR PROVISION OF HATCHTRACKER TO YOU; (C) YOUR UGM; (D) YOUR BREACH OR ALLEGED BREACH OF ANY REPRESENTATIONS OR WARRANTIES MADE BY YOU HEREUNDER OR YOUR VIOLATION OF ANY OTHER PROVISION OF THESE TERMS; OR (E) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
18. Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT CONTAINS A CLASS ACTION WAIVER, REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES, AND CLAIMS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY. You agree that any dispute, controversy or claim between you and The Company arising out of or relating to: (a) these Terms, or the breach thereof; (b) our provision of HatchTracker to you; (c) your access to or use of HatchTracker; or (d) any alleged violation of any federal, state, or local law, statute, or ordinance (each such dispute, controversy or claim, a “Dispute”) will be governed by the arbitration procedure outlined below.
a. Informal Dispute Resolution. We want to address your concerns without the necessity of a formal legal case. Before filing a claim against the Company, you agree to try to resolve the Dispute informally by contacting info@hatchtracker.com. The Company will make a good faith effort to resolve the Dispute informally. If a Dispute is not resolved within 30 days after you contact us, you or we may bring a formal proceeding.
b. Arbitration Agreement. You and the Company each agree to resolve any Disputes through final and binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in King County, Washington, or any other location we agree to. The AAA rules will govern payment of all arbitration fees. Notwithstanding the foregoing, either you or The Company may assert claims, if they qualify, in small claims court in King County, Washington or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of HatchTracker, or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
c. Class Action Waiver. You may only resolve Disputes with the Company on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under these Terms.
d. Legal Fees. If any dispute arises between the parties with respect to the matters covered by these Terms which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
e. Limitation on Claims. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of HatchTracker must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
19. GENERAL
a. Relationship of Parties. The relationship between the parties is that of independent contractors and nothing in these Terms should be construed to create a partnership, joint venture, agency, or employer-employee relationship.
b. Governing Law; Venue. These Terms will be governed by and construed in accordance with the laws of the State of Washington without regard to its choice-of-law provisions. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. The parties agree that any action arising from or relating to these Terms shall be brought exclusively in the state and federal courts of Washington and the parties expressly consent to the personal jurisdiction of the state and federal courts located in King County, Washington for any lawsuit arising from or related to these Terms.
c. No Assignment No right or obligation pursuant to these Terms may be assigned by either party without the other party’s written consent, and any such attempted assignment shall be void and of no effect. Notwithstanding the foregoing, either party may, without consent, assign these Terms to any successor to all or substantially all its business that concerns these Terms (whether by sale of assets or equity, merger, consolidation or otherwise).
d. Entire Agreement. These Terms (along with any documents incorporated by reference) is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties. No modification of or amendment to these Terms, nor any waiver of any rights under these Terms, will be effective unless in writing and signed by the party to be charged. These Terms may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each party represents and warrants that (i) it has all right, power, and authority to enter into these Terms and to grant the licenses hereunder and (ii) it will comply with all applicable laws now or hereafter enacted.
e. Severability. In case any one or more of the provisions contained in these Terms shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of these Terms, and these Terms shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in these Terms shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
f. Waiver. Neither will, by the lapse of time, and without giving written notice, be deemed to have waived any of its rights under these Terms. A party’s waiver of any breach of these Terms shall not constitute a waiver of any prior or subsequent breach of these Terms. Neither party shall be required to give notice to enforce strict adherence to all terms of these Terms.
g. Amendments. The Company reserves the right to amend these Terms of Use without notice at any time. If we revise these Terms, we will update this posting. Your continued use of HatchTracker following the posting of changes constitutes your acceptance of such changes. You further agree that in the event any portion of these Terms of Use are found to be unenforceable, the remainder of these Terms of Use shall remain in full force and effect and the otherwise unenforceable portion shall be amended so as to be enforceable to the greatest extent permitted by law.