Hatch Baby, Inc. Terms of Service ("Agreement")
This Agreement was last modified May 2018.
Please read these Terms of Service ("Agreement", "Terms of Service") carefully as they govern your access to and use of Hatch Baby, Rest, Grow, Answered and/or Services (our "Offerings"). This agreement constitutes a legal agreement between Hatch Baby, Inc. ("us", "we", or "our") and you ("you"). This Agreement takes effect when you access or use our Offerings in any manner, including using our apps, purchasing our products or visiting or browsing our sites or services (the "Effective Date"). You agree to be bound by these Terms of Service.
1. Acceptance of Terms of Service
a. By registering for and/or using our Offerings in any manner, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which may be updated from time to time without notice to you.
b. Certain of our Offerings may be subject to additional terms and conditions specified by us; your use of such Offerings is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
c. These Terms of Service apply to all users of the Offerings, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
d. Our Offerings may contain general health and wellness information. All information and communication provided through Hatch Baby Offerings, including but not limited to communications with Hatch Baby experts is intended for general information purposes only and is in no way a substitute for professional medical diagnosis or treatment. Hatch Baby, itself, does not provide medical or health advice, care, diagnosis, or treatment, and reliance on any information provided by Hatch Baby experts is solely at your own risk. If you have a medical emergency, you should call 911 or your doctor immediately.
e. ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
a. You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not use our Offerings. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you. Further, the Offerings are offered only for your use, and not for the use or benefit of any third party.
a. To sign up for the Offerings, you must register for an account (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene.
b. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Offerings without permission. You must notify us immediately of any change in your eligibility to use the Offerings (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account.
a. Definition. For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, software, algorithms, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
b. User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Offerings by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Offerings is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Offerings is or will continue to be accurate.
c. Notices and Restrictions. The Offerings may contain Content provided by us, our partners or our users that is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
d. Use License. Subject to these Terms of Service, we grant each user of the Offerings 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 Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Offerings 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.
e. License Grant. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Site, the Offerings and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Site or the Offerings (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after you no longer use the Offerings. You also hereby do and shall grant each user of the Site and/or the Offerings a non-exclusive, perpetual license to access your User Content through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Services. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
f. Availability of Content. We do not guarantee that any Content will be made available on the Site or through the Offerings.
5. Rules of Conduct
a. As a condition of use, you promise not to use the Offerings for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
b. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
(i.) you know is false, misleading, untruthful or inaccurate;
(ii.) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, or is otherwise inappropriate as determined by us in our sole discretion;
(iii.) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”) or run any manner of auto-responder;
(iv.) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, bypass, circumvent or interfere with the proper function of any software, or hardware, or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
(v.) impersonates any person or entity, including any of our employees or representatives; or includes anyone’s identification documents or sensitive financial information.
(vi.) Harvest, scrape any Content from our Offerings using manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site
(vii.) You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Offerings(including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
c. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
6. Third Party Services
The Offerings may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Offerings. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators.
7. Payments and Billing
a. Paid Offering. Certain of our Offerings may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Offering are deemed part of this Agreement.
b. Billing. When you chose to use a credit card for your payment, we use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Offerings (your “Billing Account”) for use of the Paid Offering. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor.
c. Payment Method. By choosing to use Paid Offering, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
d. Recurring Billing. Some of the Paid Offering may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Offering have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION CONTACT US AT SUPPORT@HATCHBABY.COM.
e. Replacement Products. By submitting your credit card information to us and our Payment Processor, you acknowledge that if you request a replacement product, you are required to return your original product to us. You hereby accept responsibility for returning such original product to us within thirty (30) days’ of receipt of your replacement product. IF SUCH ORIGINAL PRODUCT IS NOT RETURNED, YOU ACKNOWLEDGE THAT WE MAY SUBMIT A CHARGE TO YOUR CREDIT CARD INFORMATION STORED WITH OUR PAYMENT PROCESSOR EQUAL TO THE THEN-CURRENT RATE FOR THE REPLACEMENT PRODUCT WITHOUT FURTHER AUTHORIZATION FROM YOU.
f. Current Information Required. You must provide current, complete and accurate information for your billing account. You must promptly update all information to keep your billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify us or our payment processor if your payment method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. If you fail to provide any of the foregoing information, you agree that we may continue charging you for any use of paid services under your billing account unless you have terminated your paid services as set forth above.
g. Auto-Renewal for Subscription Offering. Unless you opt out of auto-renewal, any Subscription Offering you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If you terminate a Subscription Offering, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. However, you won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
h. Reaffirmation of Authorization. Your non-termination or continued use of a Paid Offering reaffirms that we are authorized to charge your Payment Method for that Paid Offering. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service
i. Termination. We may terminate your access to all or any part of the Offerings at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
8. Warranty Disclaimer
a. We have no special relationship with or fiduciary duty to you. You acknowledge that We have no duty to take any action regarding (i) which users gain access to the Services; (ii) what Content you access via the Services; or (iii)how you may interpret or use the Content.
b. The Offerings and content are provided on an “as is”, “as available” and without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We, and our directors, employees, agents, suppliers, partners and content providers do not warrant that: (i) the Offerings will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the Offerings is free of viruses or other harmful components; or (iv) the results of using the Offerings will meet your requirements. Your use of the Offerings is solely at your own risk and you acknowledge and agree that you do not rely on the services.
c. NOT A MEDICAL DEVICE OR MEDICAL ADVICE. The Offerings, Content and our products are not medical and are not intended to be used as medical devices or as medical instruction.
d. Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Offering, Content, or otherwise from your User Content, violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity.
e. Limitation of Liability. In no event shall we, nor our directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Offerings(i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) of the greater of (a) fees paid to us for the particular services during the immediately previous three (3) month period or (b) $500.00.
9. ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
a. Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE OFFERINGS, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION. HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
b. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Offerings or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Offerings (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Offerings without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Offerings following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Offerings going forward. Your use of the Offerings is subject to the Terms of Service in effect at the time of such use.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Offerings (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that all Feedback will be the sole and exclusive property of us and you hereby irrevocably assign to us and agree to irrevocably assign to us all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
By registering or placing an order with us, you are consenting to receive E-mails from us regarding your order. Additionally, by registering or placing an order with us, you are consenting to receive commercial E-mail from us. If you do not wish to receive commercial E-mail from us, you may remove your name from the E-mail list by contacting us.
a. Entire Agreement and Severability. These Terms of Service are the entire agreement between you and us with respect to the Offerings and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
b. Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee will assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement will be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment will be null and void and constitute a breach of this Agreement.
c. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
d. No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
e. Contact. You may contact us at the following address:
Hatch Baby, Inc.
3525 Alameda De Las Pulgas, Suite D
Menlo Park, California 94025