Terms of Use

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HATCHLINGS’ TERMS OF USE

Effective Date: November 1, 2009

Introduction

PLEASE READ THIS USER AGREEMENT CAREFULLY, AND IF YOU ARE UNDER THE AGE OF MAJORITY IN YOUR JURISDICTION, MAKE SURE THAT YOUR PARENT OR LEGAL GUARDIAN READS AND AGREES WITH THIS AGREEMENT ON YOUR BEHALF. BY ACCESSING AND/OR ADDING THE APPLICATION YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT, YOU ARE NOT PERMITTED TO USE OR ACCESS THIS APPLICATION. IN ADDITION YOU ARE SEPARATELY BOUND BY THE TERMS OF USE WHEN YOU REGISTERED WITH FACEBOOK.

This User Agreement (the “Agreement”) is a contract between you and Hatchlings Inc. (“Hatchlings”) and applies to all users of this Application. In this User Agreement “you” or “your” means any person or entity using this Application, provided that if such person is under 18 years of age or the age of majority in your jurisdiction, whichever is older (the “Age of Majority”), it also includes such person’s parent or legal guardian. Unless otherwise stated, “Hatchlings”, “we” or “our” refers to Hatchlings’ Inc., an Iowa Corporation, and its successors and assigns.

Amendments

We may amend or supplement this User Agreement at any time. Please check this User Agreement each time you access and use this Application so that you will understand the terms applicable to your access and use of this Application. If you do not agree to the amended User Agreement, you may not continue to access or use the Application.

Links to Other Applications

While HATCHLINGS may provide links to this Application and other Applications and websites owned and/or operated by HATCHLINGS or unaffiliated third parties, these sites are not part of this Application, and each has a different user agreement. In addition, to the extent such linked Applications are not owned or operated by affiliates of HATCHLINGS, these sites also have different policies with respect to the collection, use and disclosure of your personal information. Please be sure to review the applicable agreements and policies carefully when visiting our other Applications or any third party Applications to whom we provide links. HATCHLINGS is providing these links to you only as a convenience and the inclusion of any link does not imply endorsement by HATCHLINGS of the Application linked to. HATCHLINGS ASSUMES NO RESPONSIBILITY FOR ANY MATERIAL OUTSIDE OF THIS APPLICATION WHICH MAY BE ACCESSED THROUGH SUCH LINKS. Unless otherwise expressly indicated by us, we are not sponsored by or affiliated with the linked Application and we do not control the information and materials accessed from such third party Applications. Furthermore, the copyrights and trademarks used in connection with such third party Applications are not copyrights or trademarks of HATCHLINGS.

The Hatchlings Application is presently used only in the Facebook environment and in connection with your Facebook account. As a Facebook user you previously agreed to the disclosure and use of information to Facebook and its developers under terms defined by Facebook (see, Facebook Privacy Policy – “Sharing Your Information with Third Parties.”) Before allowing any developer to make any application available to you, Facebook requires the application developer to enter into an agreement (“Developer Terms of Service”) which, among other things, requires them to respect your privacy settings and strictly limits their collection, use, and storage of your information. Hatchlings has entered into this agreement with Facebook and acknowledges it is bound by those terms with respect to information shared with Hatchlings through your use of the application. Please see same for complete details. Hatchlings does collect log files automatically created from used interaction that contain user IP addresses. Hatchlings does not, at this time however, independently collect additional personally identifiable data. All data supplied to Hatchlings is used only for the purpose of the function of the app and your app experience, and is not sold or given for any use beyond what is neccesary to the function of the game. If you would like to request your data be removed you may email support@hatchlings.com and request the removal of your account.

Registration and Security of Your Account

In addition to your Facebook registration and its related governing terms, certain products, services, information and materials provided by HATCHLINGS through this Application may be accessed and/or used by you without requiring registration or login to this Application (collectively, “Public Materials”). Other products, services, information and materials provided by HATCHLINGS through this Application may require registration in order to be accessed and/or used by you (collectively, “Member Materials”). This User Agreement applies equally to the use the Application itself and access of Public Materials and Member Materials as the case may be.

You are responsible for maintaining the confidentiality of your Facebook login information, that account and for all activities that occur through the use of your that account including use of the Application. You agree to: (i) immediately notify HATCHLINGS of any unauthorized use of your Facebook account or any other breach of security relating to same or occasioned by or a result of or related to your use of the Application. HATCHLINGS will not be liable for any loss or damage arising from your failure to comply with this section. Although we use reasonable efforts to safeguard the security of your personally identifiable information received from Facebook, transmissions made on or through the Internet and personally identifiable information stored on our servers or the servers of third parties that we use are vulnerable to attack and cannot be guaranteed to be secure. In addition, submissions made via email are not protected by encryption and are vulnerable to interception during transmission. We disclaim responsibility for all negligent acts that may result in disclosure of your personal information.

Registration Period

Your use of the Application is valid for and under the same terms and duration as your Facebook account, provided that Hatchlings reserves the right to terminate your use of the Application in accordance with or for violation of this Agreement.

Communications

All parties agree that this User Agreement and all communications and documents relating hereto be expressed in the English language. You further acknowledge and agree that all communications and documents between you and HATCHLINGS with respect to your use of this Application may take place electronically and that all such electronic notices, agreements, and other communications from HATCHLINGS shall be the legal equivalent of written communications.

Ownership of Intellectual Property and Restrictions on Use of HATCHLINGS Materials

All products, services, content, information displayed, performed or otherwise accessible through this Application, including, without limitation, any virtual currency offered or provided by Hatchlings, Public Materials, Member Materials, feature codes and access codes together with all digital images activated by such codes, software code, designs, texts, databases, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, animation, and any copyrightable and/or patentable elements, and the selection and arrangements thereof, and all trademarks, service marks, trade names, trade dress and patents, (collectively the “Hatchlings Materials”) are the property of Hatchlings Inc., its partners, affiliates, third party licensors and suppliers and/or any of their successors and assigns (collectively, the “Hatchlings Group”), and are protected, without limitation, by the United States’ and other foreign copyright, trademark and patent laws. Without limiting the generality of any other provisions of this User Agreement, the use of any Hatchlings Materials on any other Application or networked computer environment is prohibited.

Grant of a Limited License

This User Agreement grants to you a limited license to access and use this Application, the Public Materials, and if applicable, the Member Materials, for your personal, non-commercial use, provided that this license is limited to the display of the Hatchlings Materials in their entirety, including but not limited to visual elements such as advertisements that adjoin content. Any use of the Application or the Hatchlings Materials in violation of these License Limitations will be regarded as an infringement of Hatchlings Inc.’s copyrights in and to the Application. You agree that it would be a violation of the license granted hereunder, and that you will not, under any circumstances:

Attempt to access the HATCHLINGS Materials in a manner that obscures or blocks such adjoining advertisements visual elements;
Except to retain copies of pages of the Application only for your own personal, non-commercial use as expressly provided herein, you agree that no portion of this Application may be accessed, used, reproduced, duplicated, copied, or otherwise exploited by you for any other purpose, and nothing contained herein shall be construed as conferring any other right. You may not use the HATCHLINGS Materials in a manner that suggests an association with HATCHLINGS, its developer, owner(s) or partners or make any modifications to any HATCHLINGS Materials other than as expressly permitted, in advance, by us;
You agree that you shall not: (i) download or copy any Application pages, except as may occur through the normal and intended use of the Application, and caching function of your browser, except to print and retain a copy of the pages of this Application for your own personal, non-commercial use; (ii) download or copy Application information for the commercial benefit of you or a third party; (iii) make any resale or commercial use of this Application or the Hatchlings Materials; (iv) publish, with the intent to sell or receive value of any kind, any collection or compilation of any eggs, pets, Hatchlings, or other items that are created through or inherent to the Application experience; or (v) create any derivative work of the Hatchlings Materials, the Application or its contents including eggs, pets, Hatchlings, or other items inherent to the Application experience;
In whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create any derivative works based on or for use with/in the Application. All such actions will be considered by Hatchlings unauthorized derivative works and actionable under current intellectual property laws;
Use any unauthorized third-party software that intercepts, “mines”, or otherwise collects information from or through the Application, its hosting servers or Facebook, including without limitation any software that reads areas of RAM used by the Application to store information about items, users or the Application environment; provided, however, that Hatchlings Inc. may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
Use the Hatchlings Materials or the Application , upload, submit, publish, transmit, display, disseminate or otherwise communicate any materials while connected to Hatchlings or the Hatchlings Material, whether as a host or participant in any group or site, in a manner that is : (i) defamatory, libelous or inaccurate, (ii) abusive or threatening towards or invade the privacy of any third party, (iii) which is offensive, obscene or pornographic; (iv) infringes the intellectual property rights, including copyrights, of any third party; (v) violates any law or regulation; (vi) advocates illegal activity; or (vii) advertises or otherwise solicits funds or are a solicitation for goods or services. Violation in this manner will be considered a misuse of the limited license granted to you, and such grant will be irrevocably considered revoked as of the time of such conduct.
Facilitate, create or maintain any unauthorized connection to the Application or its hosting servers that emulates, or attempts to emulate, the Application;
You also agree that you shall not use any data mining tools, cheats, automation software (bots), hacks, mods, data-gathering and extraction devices or any other unauthorized third-party software designed to modify, alter, enhance, degrade, or otherwise effect the Application or the Application experience as a user.
You also agree that with respect to the Application and the information contained thereon you shall not, unless explicitly authorized by Hatchlings in advance, frame or use framing techniques to enclose any trademark, logo, trade name or other content (including images, text, page layout, or form) of Hatchlings or its licensors; or use any meta tags or any other “hidden text” utilizing the trademarks, logos, trade names or content of Hatchlings or its licensors. Any unauthorized or prohibited use may subject you to civil liability and criminal prosecution under applicable laws.

HATCHLINGS has the right to vary, modify, change or discontinue: (i) any feature or function offered on this Application; (ii) any part or all of this Application, including hours of availability; and (iii) to restrict access to parts or all of this Application from time to time with or without notice to you. HATCHLINGS may make available and upgrade this Application on the same terms and conditions as this User Agreement and any such upgrades will form part of this Application.

Virtual Currency

HATCHLINGS reserves the right to invalidate any unused virtual currency or virtual goods after a period of one year. Virtual items hold no cash value. You are not allowed to transfer virtual items outside of the Service (i.e., in the “real world”), for example by selling them for cash. You are not allowed to sublicense, sell or attempt to sell in-game Virtual Items for “real” money, or exchange Virtual Items for value of any kind outside of the game. Any such transfer or attempted transfer is prohibited and void, and We may terminate your Account because of it.

Refund Policy

ALL SALES ARE FINAL: You acknowledge that while we may from time to time choose to refund a player for an individual purchase as we deem reasonable, HATCHLINGS is not required to offer a refund for any reason, and that you will not receive money or other compensation for unused virtual items when an account is closed (or a game is no longer supported), whether such closure was voluntary or involuntary, or whether you made a payment through hatchlings.com or another platform such as Apple, Google, Facebook, or any other sites or platforms where we offer our services.

Third Party Advertising

We use third-party advertising companies, such as Google, to serve ads when you visit our website. These companies may use information (not including your name, address, email address, or telephone number) about your visits to this and other websites in order to provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies, please see http://www.google.com/privacy_ads.html. With particular regard to Google and the DoubleClick DART cookie: please be advised that Google, as a third party vendor, uses cookies to serve ads associated with the Application; Google’s use of the DART cookie enables it to serve ads to your users based on their visit to your sites and other sites on the Internet and; Users may opt out of the use of the DART cookie by visiting the Google ad and content network privacy policy.

User Content

Certain aspects of this Application may require or permit you to send to HATCHLINGS materials, information and other submissions. HATCHLINGS values your feedback on this Application, and to help us better understand your remarks, HATCHLINGS requests that you be as specific as possible in your comments on this Application. Upon submission, all creative suggestions, ideas, notes, artwork, drawings, stories, designs, concepts, content, materials or information of any nature, save and except any personally identifiable information as defined in our Privacy Policy (collectively, the “User Content”), submitted by you to HATCHLINGS or otherwise posted on this Application shall be deemed to be, and shall remain, the property of HATCHLINGS. You shall be deemed to have irrevocably assigned in perpetuity to HATCHLINGS free of charge all of your worldwide right, title and interest in and to such User Content, and waived any “moral” or author’s rights or rights to attribution therein completely and irrevocably. Without limiting the foregoing, HATCHLINGS shall exclusively own all now known or hereafter existing rights to the User Content of every kind and nature throughout the world, and shall be entitled to unrestricted use of the User Content for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the User Content. To the extent any User Content is deemed non-assignable by applicable law, you hereby grant (or warrant that the owner of such rights has expressly granted) to HATCHLINGS, a worldwide, royalty-free, perpetual, irrevocable and nonexclusive right and license to use, reproduce, modify, sublicense, edit, adapt, publish, translate, broadcast, create derivative works from, distribute, perform, display and publicize such User Content anywhere, for any purpose and in any form, through any media or technology now known or later developed, without any compensation to you. None of the User Content shall be subject to any obligation of confidence on the part of HATCHLINGS, and HATCHLINGS shall not be liable for any use, non-use or disclosure of all or part of the User Content. Without limiting any of the foregoing, HATCHLINGS may, but is not obligated to, use and publish the User Content at this Application or elsewhere for purposes that include without limitation contest announcements, new or enhanced products or services, marketing and public relations.

You are responsible for all User Content posted by you. HATCHLINGS HAS NO RESPONSIBILITY FOR SUCH USER CONTENT. You hereby represent and warrant that you have all necessary rights in and to all User Content that you provide. HATCHLINGS does not and cannot review every submission by users and is not responsible for, nor does it endorse the content of such submissions. However, HATCHLINGS retains the right, but not the obligation, to review, edit or delete any User Content which HATCHLINGS deems to be illegal, offensive, or otherwise inappropriate. All information submitted by you which constitutes personal information shall be subject to our Privacy Policy.

Contests

From time to time you may have the opportunity to send us your submissions as part of a contest where your submissions are judged and the winner will be awarded a virtual prize(s), such as virtual money (e.g. “Shells”). We will provide the rules for such contests at such times as they are made available on this Application. With respect to games or contests, the following minimum rules shall apply:

We will tell you the number and types of prizes to be won; all virtual prizes awarded shall have no retail value and may not be redeemed for monetary value;
Your chances of winning depend on your skill in playing the game selected, and where you are playing a game against other users of this Application, your chances of winning also depend on the number of other players and their skill in playing the game. For some games, it may be possible for there to be no winner (for example, a game where none of the players answers the questions correctly);
We will clearly advise you of the start and stop times applicable to the game selected and, to ensure fairness, there may be limits on the number of times you may play a game.

Suspension or Termination of Account

HATCHLINGS reserves the right to suspend any Account that has been inactive for six (6) months or more.

In addition, HATCHLINGS may terminate or suspend your Account and/or access to all or part of this Application and/or any products or services available through this Application in the event (i) it determines after reasonable investigation that you have breached this User Agreement, the Limited License, or Code of Conduct stated herein or that your conduct violates applicable law or is otherwise harmful to the interests of HATCHLINGS or other third parties, or (ii) HATCHLINGS determines to cease its operations and/or its provision of any applicable products or services in connection with this Application.

User Code of Conduct

The Application is provided by HATCHLINGS and is intended to be used in a safe and enjoyable fashion. You are responsible for the content of any material you enter on this Application. To avoid termination of the right to use this Application, users must not:

Use this Application in such a way as to offend or interfere with the use by anyone else of this Application;
Upload, submit, publish, transmit, display, disseminate or otherwise communicate any materials while connected to or otherwise using this Application that: (i) are defamatory, libelous or inaccurate, (ii) are abusive or threatening towards or invade the privacy of any third party, (iii) which are offensive, obscene or pornographic; (iv) infringe the intellectual property rights, including copyrights, of any third party; (v) violate any law or regulation; (vi) advocate illegal activity; (vii) advertise or otherwise solicit funds or are a solicitation for goods or services; or (viii) are treated as confidential under any contract or policy;
Attempt to circumvent or manipulate this Application or Facebook; which shall include but not be limited to the use of any automated scripts for use with or in connection with the Application, any contests or games originating from, through or resulting from you use of the Application or Facebook;
Attempt to gain access to this Application in a fraudulent manner, including but not limited to using fraudulent information;
Attempt to use this Application in a fraudulent manner, including but not limited to, using cheat codes, exploits or similar measures to gain, or attempt to gain, unearned virtual money or other virtual prizes, gain access to this Application or information or images that have not yet been officially announced or incorporated into this Application.
Attempt to gain access to any other user’s Account or Facebook account; or ascertain any other user’s password, and/or personal information by any means whatsoever, including without limitation, by use of this Application, Facebook or any other Application, or by e-mail communication;
Attempt to harvest or otherwise collect information about other users without their consent;
Attempt to use this Application for any purposes other than those intended by HATCHLINGS; or
Upload or submit any data or information that contains viruses or any other computer code, corrupt files or programs designed to interrupt, destroy or limit the functionality or disrupt any software, hardware, telecommunications, networks, servers or other equipment; or use the Application to create or distribute Spam communications.
Engage in verbal or written abusive communication or conduct directed at any person working for or associated with Hatchlings Inc. in the course of communicating with said person(s) regarding the Application, games, complaints, or any aspect of the Application user experience.

Disclaimers

THE USE OF THIS APPLICATION IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THIS APPLICATION AND THE HATCHLINGS MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, THE HATCHLINGS GROUP DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THIS APPLICATION, ITS CONTENTS, THE PRODUCTS OR SERVICES AVAILABLE THROUGH THIS APPLICATION, OR ASSOCIATED WITH THE USE OF THIS APPLICATION, OR ANY APPLICATION OR CONTENTS WITH WHICH IT IS LINKED.

THE HATCHLINGS GROUP DOES NOT WARRANT THAT THIS APPLICATION, THE HATCHLINGS MATERIALS, OR ANY APPLICATION TO WHICH THIS APPLICATION IS LINKED WILL BE AVAILABLE AT ANY PARTICULAR TIME, WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR WILL BE CORRECTED IF FOUND TO BE DEFECTIVE. WE RESERVE THE RIGHT TO MODIFY AND/OR DISCONTINUE THIS APPLICATION AT ANY TIME WITHOUT NOTICE. TO THE EXTENT THAT YOU COMMUNICATE WITH HATCHLINGS OR A HATCHLINGS REPRESENTATIVE THROUGH ANY SOURCE THE STATEMENTS, PROMISES OR ACTIONS TAKEN BY SUCH SOURCES SHALL NOT LIMIT OR OTHERWISE MODIFY THE TERMS OF THIS DISCLAIMER AND/OR THIS USER AGREEMENT AND THIS DISCLAIMER AND THIS USER AGREEMENT SHALL APPLY TO ANY INFORMATION PROVIDED TO YOU THROUGH SUCH SOURCES. IN ADDITION, THE HATCHLINGS GROUP DOES NOT WARRANT THAT THIS APPLICATION OR THE SERVERS THAT MAKE THIS APPLICATION AND ITS CONTENTS AVAILABLE WILL WORK WITH ANY PARTICULAR HARDWARE OR SOFTWARE SYSTEMS OR CONFIGURATIONS OR ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FINALLY, THE HATCHLINGS GROUP DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE RESULTS OF THIS APPLICATION OR THE HATCHLINGS MATERIALS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS OR OTHERWISE. SOME JURISDICTIONS MAY NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES AND THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU TO THE EXTENT PROHIBITED.

Limitations of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL THE HATCHLINGS GROUP BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, OR FOR ANY DAMAGES OF ANY KIND OR CHARACTER (INCLUDING WITHOUT LIMITATION ANY COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THIS APPLICATION, ESTORE ITEMS OR ANY OF THE HATCHLINGS MATERIALS OR CONTENTS WITH WHICH IT IS LINKED, EVEN IF THE HATCHLINGS GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE FOREGOING, HATCHLINGS IS NOT RESPONSIBLE OR LIABLE FOR ANY INFECTIONS OR CONTAMINATIONS OF YOUR SYSTEM, OR DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF YOUR USE OF THIS APPLICATION.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. HOWEVER, IN NO EVENT SHALL THE TOTAL LIABILITY OF THE HATCHLINGS GROUP FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, RELATED TO YOUR USE OF, OR THE INABILITY TO USE, THIS APPLICATION, ANY VIRTUAL PRIZES OR MONEY, OR ANY OF THE HATCHLINGS MATERIALS OR FUNCTIONS AT THIS APPLICATION, EXCEED THE LESSER OF (I) THE AMOUNT, IF ANY, PAID BY YOU IN CONNECTION WITH YOUR ACCESS, USE AND/OR PURCHASES MADE ON THIS APPLICATION OR (II) USD$5.00.

Indemnity

YOU HEREBY AGREE TO INDEMNIFY AND HOLD EACH MEMBER OF THE HATCHLINGS GROUP HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY, CLAIM, DEMAND, DAMAGES, COSTS AND EXPENSES, INCLUDING ALL LEGAL FEES, WHICH ANY MEMBER(S) OF THE HATCHLINGS GROUP MAY INCUR IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RESULTING FROM: (I) ANY BREACH BY YOU OF THIS USER AGREEMENT; (II) YOUR USE OF THIS APPLICATION, YOUR ACCOUNT(S) AND/OR YOUR SUBMISSION OF USER CONTENT; (III) YOUR PURCHASE OF ANY ESTORE ITEM; AND/OR (IV) ANY VIOLATION BY YOU OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY. YOU MUST USE YOUR BEST EFFORTS TO COOPERATE WITH HATCHLINGS IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

Jurisdictional Issues and Dispute Resolution

This Application is controlled and operated through and by Hatchlings’ principal place of business located in the State of Iowa. If you choose to access and use this Application from another location, country or jurisdiction you are responsible for compliance with local laws, if and to the extent local laws are applicable. This User Agreement shall be governed by and construed in accordance with the laws of the United States and specifically the laws and jurisdiction of the State of Iowa, without giving effect to any principles of conflicts of law. If the arbitration and dispute resolution provisions of this User Agreement are not enforceable, you agree that, except as set forth below, any action at law or in equity arising out of or relating to this User Agreement shall be filed only in the courts of the State of Iowa, or for matters involving intellectual property, the federal courts located in the State of Iowa, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The language of any proceedings arising under this User Agreement shall be English. This clause does not prevent the consumer from applying the law of his place of residence and from accepting the jurisdiction of his place of residence if this is imposed by national or international laws. Nothing in this User Agreement shall be deemed to affect any statutory or other consumer rights that you may have under local laws which cannot be or have not been altered, limited or waived by this Agreement. You might wish to consult with a legal professional in your own jurisdiction about the exact implications of this User Agreement should you have any queries about it.

Arbitration:

This Application is owned and operated by HATCHLINGS, an Iowa corporation. If you have any questions or concerns relating to this Application, they can be sent to the attention of the developer via the Application itself. Should HATCHLINGS be unable to resolve the issue, the following rules may apply to the dispute.

YOU AND/OR YOUR COMPANY AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC SERVICES ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE SERVICES, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF USE, THE SITE AND/OR THE SERVICE (INCLUDING YOUR VISIT TO OR USE OF THE SITE AND/OR THE SERVICE) SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, or you have otherwise violated any of the user conduct rules set forth above or in the Code of Conduct then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought; and (b) no disputes or claims relating to any transactions you enter into with a third party through the Facebook Marketplace may be arbitrated.

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes ( the “AAA Consumer Rules”) (collectively the “AAA Rules”). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, the Company will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the Site and/or the Service (including your visit to or use of the Site and/or the Service) be instituted more than three (3) years after the cause of action arose.

Waiver of Jury Trial and Class Actions

BY ENTERING INTO THIS USER AGREEMENT, YOU AND HATCHLINGS ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL, OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND HATCHLINGS BOTH AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE, OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE ARBITRATION CLAUSE SET FORTH IN THIS USER AGREEMENT IS DEEMED INAPPLICABLE OR INVALID, OR THE EXTENT THE ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND HATCHLINGS BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.

Final Note

This User Agreement and our Privacy Policy contain the entire understanding between you and HATCHLINGS in connection with your access and use of this Application and supersede all prior agreements, understandings, negotiations or discussions, whether oral or written between you and HATCHLINGS with respect to your access and use of this Application. If any provision of this User Agreement is found to be illegal, void or unenforceable, then: (i) such provision (or portion thereof as applicable) will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this User Agreement will remain in full force and effect. Notwithstanding the foregoing, if any provision of this User Agreement which is held null, void or otherwise ineffective or invalid by an arbitrator or a court of competent jurisdiction cannot be restated by such arbitrator or court to reflect as nearly as possible the original intentions of the Parties, then that provision shall be deemed severable from this User Agreement. Your use of this Application is not intended and shall not be deemed to create any agency, joint venture or other legal relationship of any kind between you and HATCHLINGS other than that of independent contractors. This User Agreement may not be assigned by you.