1.1. Services: The building and maintenance of a custom application for web, iOS, and Android (“Application”), as well as a web dashboard of additional services to support the Customer (as defined below) in the development of their app and audience (“Dashboard” and together with the Application, the “Service(s)”).
1.2. Service Fees: The subscription payment, payable in advance, subject to the terms of Section 5 herein. Includes $250 of Amazon Web Services credits per month. If app exceeds the allotted credits, Custome
1.3. Initial Service Term: A pre-determined period commencing upon the first date in which Customer apps are published on iOS, Android, and the web. Customer may elect a 30-day, 1-year, or 2-year Initial Service Term upon payment.
2. SAAS SERVICES AND SUPPORT
2.1. Subject to the terms of these Terms and Conditions, Hatch Technologies, Inc. (the “Company”) will use commercially reasonable efforts to provide you (the “Customer”) the Services and any Implementation Services. As part of the registration process, Company will provide an administrative account and password for Customer’s Company account.
2.2. Subject to the terms of these Terms and Conditions, Company will use commercially reasonable efforts to provide Customer with technical support services.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1. Customer acknowledges that the Software in source code form remains Proprietary Information (defined below) of Company and that the source code is not licensed to Customer by these Terms and Conditions and will not be provided by Company to Customer, other than as pursuant to Section 6.4. Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or (iv) remove any proprietary notices or labels.
3.2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services, including any claim arising from Customer’s infringement of a third party’s intellectual property rights. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.4. Customer agrees not to publish, transmit or upload any content which is defamatory, slanderous, morally offensive, obscene, pornographic, glorify the use of violence, are of an insulting or discriminatory nature, are in violation of trademarks, are known to be untrue or otherwise constitute a criminal offense. All apps are subject to Company’s approval. Company reserves the right (i) to monitor all apps and to remove any content which it considers in its absolute discretion to be unlawful, inappropriate, offensive or otherwise in breach of these Terms and Conditions, and (ii) to refuse any app at its sole discretion for any reason whatsoever, including for offensive or inappropriate content. In the event of app refusal, Company will pause all billing until or unless the app is modified, accepted, and published.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service, as well as Software, Application features, designs, templates, code base, or Dashboard capabilities, existing at the time of these Terms and Conditions or developed subsequently. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third party any such Proprietary Information (except as it relates to performance of the Services or as otherwise permitted herein). The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2. Customer shall own all right, title and interest in and to (a) its Proprietary Information, (b) any pre-existing technology owned by Customer, (c) any Customer-provided design assets, (d) data collected from app users, and (e) all separate intellectual property agreed to by the Parties in writing as being the sole property of the Customer. Company shall own and retain, without limitation, all right, title and interest in and to (a) its Proprietary Information, (b) any software, source code, metadata, applications, inventions, work product, designs or other technology developed in connection with the Services and the Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing (collectively the “Company Property”). Company may sell, use, or repurpose Company Property for the benefit of other customers, including customers who use Company services to build similar applications.
4.3. Notwithstanding anything to the contrary, Company shall have the right to collect, analyze, and report data and other information relating to the provision, use and performance of various aspects of the Services, the Implementation Services, and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.4. Notwithstanding the foregoing, the Company may list the Customer’s name and logo alongside other potential partners and customers on Company’s website and in marketing materials, unless and until the Customer explicitly revokes such permission by providing notice to the Company in writing or by e-mail.
5. PAYMENT OF FEES
5.1. Customer will pay Company the then applicable fees for the Services in accordance with the terms therein (collectively the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth in these Terms and Conditions or otherwise requires the payment of additional fees (per the terms of these Terms and Conditions), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or thencurrent renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
5.2. Customer will provide Company with valid and updated payment information. If Customer provides credit card information to Company, Customer thereby authorizes Company to charge such credit card for Services described in these Terms and Conditions. Customer shall be responsible for all taxes associated with Services and Implementation Services other than U.S. taxes based on Company’s net income.
5.3. Fees are billed in advance and are non-refundable. No refunds or credits will be provided for partial months of the Services, upgrades/downgrades, or for months unused.
6. TERM AND TERMINATION
6.1. Subject to earlier termination as provided below, these Terms and Conditions are for the Initial Service Term, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination in writing or by e-mail at least thirty (30) days prior to the end of the then-current term.
6.2. In addition to any other remedies it may have, Customer may also terminate the Services upon thirty (30) days’ written or e-mail notice if a material breach by the Company of any of these Terms and Conditions remain uncured and outstanding. Company may terminate without notice in the case of nonpayment by Customer. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.3. In the event that the Application is not approved by Apple’s App Store or Google’s Google Play Store (collectively the “Stores”), and Application is unable to gain approval from either or both of the Stores within forty-five (45) days, Service Fees are reduced by 30% for each Store that has withheld approval until such time as approval is attained.
6.4. In the event of a termination pursuant to Section 6.1 or a breach by the Company of Section 6.2, Company agrees to transfer Customer’s Application (mobile and web) and Customer Data to the Customer in exchange for payment in full of the Services Fees for the Initial Service Term and a one-time conversion fee of $20,000.
7. WARRANTY AND DISCLAIMER
Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL INCLUDING ACTS OF A THIRD PARTY, SUCH AS AMAZON WEB SERVICES, APPLE OR GOOGLE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THESE TERMS AND CONDITIONS IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of these Terms and Conditions are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms and Conditions will otherwise remain in full force and effect and enforceable. Any rights or obligations granted under these Terms and Conditions are not assignable, transferable or sublicensable by Customer except with Company’s prior written consent, which may be granted or withheld by Company for any reason. Company may transfer and assign any of its rights and obligations under these Terms and Conditions without the consent of Customer. These Terms and Conditions are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms and Conditions, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms and Conditions, and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under these Terms and Conditions, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms and Conditions will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. These Terms and Conditions shall be governed by the laws of the District of Columbia without regard to its conflict of laws provisions. The Customer agrees to reasonably cooperate with Company to serve as a reference account upon request. Company may, in its sole discretion, modify or update these Terms and Conditions from time to time, and so Customer should review this page periodically. Customer’s continued use of the Services after any such change constitutes acceptance of the new Terms and Conditions. If Customer does not agree to any of these Terms and Conditions or any future Terms and Conditions, Customer must not use or access (or continue to access) the Services.
Last updated January 15, 2018