Terms of Service
Last updated April 5, 2024
hotcakes’ products and services are provided by build’r Inc., a Delaware corporation (d/b/a “hotcakes”), which we refer to in these terms of service (the “Terms”), along with certain other affiliates and related parties described below, as “hotcakes.” These terms govern your access to and use of hotcakes’ mobile application (“App”), website, products and services (collectively, the “Products & Services”). By using the Products & Services, you agree to be bound by these Terms, our Privacy Policy, which is available from https://www.hotcakesapp.com/privacy (the “Privacy Policy”), and our User Guide & Community Guidelines, which is available from within the App (the “Community Guidelines”), each of which is incorporated herein by reference. If you do not agree to these Terms, our Privacy Policy or the Community Guidelines, do not use the Products & Services and exit our App.
Throughout these Terms, the words “we,” “us,” “our,” and “hotcakes” refer to hotcakes and any parent, subsidiary, affiliated entity or assign, our officers, directors, employees, agents, attorneys and other representatives, and officers, directors, employees, agents, attorneys and other representatives of any parent, subsidiary, affiliated entities or assigns collectively.
If you have any questions regarding these Terms, contact us at support@hotcakesapp.com.
1. Introduction
(a) Contract.
When you use our Products & Services you agree to these contractual Terms, our Privacy Policy and Community Guidelines. It is your responsibility to review the latest versions.
Please carefully review this End User License Agreement and Terms of Service Agreement (the “Agreement”), the Privacy Policy and Community Guidelines, which are all incorporated herein by reference, because by registering, visiting, accessing, downloading or using our App and/or the Products & Services, you are agreeing to a legally binding contract. This Agreement governs your activity using the App and Products & Services. The Products and Services are owned and operated by hotcakes. The Agreement shall be effective immediately upon your access to the Products & Services (the “Effective Date”) and shall continue in full force indefinitely until terminated in accordance with this Agreement. hotcakes may terminate your use of the Products & Services with or without cause or notice in its sole discretion, including, without limitation, if hotcakes believes that you have violated or acted inconsistently with the Agreement. By using the Products and Services, you understand and agree to all terms and conditions of this Agreement. Your continuing visits, access, or use of our Products & Services reaffirms your acceptance and agreement in each instance. If you do not agree to this Agreement, do not register, visit, access, download or use our Products & Services. You can terminate this Agreement at any time by closing your user account and no longer visiting, accessing or using our Products & Services. hotcakes may modify the Agreement or any other terms, such as the Privacy Policy and Community Guidelines, at any time. If you have registered as a user with an account and an email address, hotcakes will notify you of any material changes prior to those changes taking effect, via email and/or via the Products & Services. The Agreement and any accompanying or incorporated terms are effective immediately upon posting. You should review all applicable terms regularly. In the event new terms may be displayed on-screen, you may be required to read and accept them to continue your use of the Products & Services. hotcakes will also post the terms at https://www.hotcakesapp.com/terms. If you choose not to accept any new terms, you may close your account and/or stop using the Products & Services. Where the law allows, you acknowledge that continued use of Products & Services after hotcakes posts or sends notice of updated terms means that your personal data is subject to any updated Privacy Policy. Where translations are provided, these are for convenience only; the English version is controlling in all cases.
(b) Products & Services..
hotcakes provides mobile and desktop software and tools which allow you to shop Seller Products (as defined below) featured on the App, including through Shops (as defined below) opened by Influencers (as defined below). Our Products & Services allow you to shop Seller Products from verified Sellers (as defined below), including from shops opened by verified Influencers (each, a “Shop”). Our Products & Services create technological and commercial relationships between third-party retailers/brands, advertisers and other businesses (“Sellers”), athletes, celebrities, individuals and entities with websites, blogs, social media presence, agents or agencies and other content platforms (“Influencers”) and shoppers like you. Our Products & Services create a free, fun and convenient shopping experience to you, while facilitating sales and marketing of Seller products and services (collectively, “Seller Products”) and the payment of Influencer Commissions (as defined below) to Influencers.
(c) How Does hotcakes Work?
(i) Purchasing Seller Products. hotcakes enables users to buy Seller Products from verified Sellers that have an existing Shopify account that they have linked to hotcakes through Linked Technologies (as defined below). Users can buy Seller Products through the main hotcakes feed or, if a Seller Product is being sold through a Shop, through such Shop. If you are purchasing a Seller Product, the agreement for the purchase is made solely between you and the Seller. If you are selling a Seller Product, the agreement for sale is made solely between you and the buyer. Payment for Seller Products must take place via our third-party payment provider, Stripe. Payments via Stripe enables Sellers to accept payment by major credit or debit cards, Apple Pay, Google Pay and certain other means, where available.
(ii) Selling Seller Products. In order to sell Seller Products on hotcakes, you must first get verified as a Seller. To do so, you must have an existing Shopify merchant account through which you sell products and you must link that Shopify merchant account to our App through Linked Technologies.
(iii) Creating Shops. Users who have been verified as Influencers can open Shops through which they call sell their own Seller Products, as well as Seller Products from other Sellers. Anytime a Seller Product is purchased through a Shop (other than an Influencer’s own Seller Product in the Influencer’s own Shop), the applicable Influencer receives a commission of 15% of the list price (the “Influencer Commission”). The Influencer Commission may be changed from time to time upon prior written notice to you. In order to open a Shop, a user needs to get verified as an Influencer. hotcakes reserves the right to verify (or not verify) any user as an Influencer in its sole and absolute discretion. In determining whether to verify a user as an Influencer, we look at a number of factors to determine if such user meets our verification criteria, including, without limitation, that the user: (x) represents a real person, business or entity, or an AI-generated person that is notable (see clause (y)); (y) is well-known, highly searched for, and/or with a dedicated (even if niche) following of social media users; and (z) has a complete and public social media account that is active and can be verified. In order to receive Influencer Commissions, Influencers must sign up to hotcakes Payments via Stripe. To use hotcakes Payments via Stripe to receive Influencer Commissions, Influencers will be subject to Stripe’s user agreements. Influencer Commissions will be deducted directly from funds transferred by Shoppers to Sellers in connection with purchases of Seller Products in the Influencer’s Shop and remitted to the Influencer by hotcakes within 45 days after purchase as long as the Seller Product has not been returned or refunded within the applicable return period (generally 30 days after the applicable sale).
(iv) hotcakes Commission. Any time a Seller Product is sold through hotcakes, hotcakes receives a commission equal to 6% of the list price (the “hotcakes Commission”). The hotcakes Commission may be changed from time to time upon prior written notice to you, or waived from time to time in hotcakes’ sole and absolute discretion. hotcakes Commissions will be deducted directly from funds transferred by Shoppers to Sellers in connection with purchases of Seller Products anywhere on hotcakes, including in Influencer Shops. hotcakes Commissions and Influencer Commissions are refundable to Sellers for a period of 30 days after the applicable sale solely in the event the applicable Seller Product is returned to the Seller and a full refund is issued, as evidenced by a credit memo acceptable to hotcakes. After 30 days, hotcakes Commissions and Influencer Commissions are non-refundable. The hotcakes Seller Product return and refund terms and conditions may be changed from time to time upon prior written notice to you in hotcakes’ sole and absolute discretion.
2. Product & Service Availability; Termination
We may change, suspend, or terminate your use of the Products & Services at our discretion, including associated Linked Technologies and Third-Party Apps (each as defined below).
hotcakes may change, suspend or terminate your use of the Products & Services with or without cause or notice to you, including, without limitation, if hotcakes believes that you have violated or acted inconsistently with this Agreement. In the event of termination, all your representations, warranties, indemnifications, and promises shall survive. Furthermore, the sections of this Agreement related to claims and dispute resolution will continue to govern any claim or dispute. We may, but do not promise to, store or keep any content that you have provided, liked or posted. HOTCAKES SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY(S) FOR ANY LOSS OR DAMAGE THAT IS CAUSED BY OR ARISES FROM OR IN CONNECTION WITH ANY SUCH DISCONTINUATION OF PRODUCTS & SERVICES (INCLUDING, WITHOUT LIMITATION AND BY WAY OF EXAMPLE ONLY, REFUNDS, LOST PROFITS, LOST OPPORTUNITIES, MONETARY DAMAGES, DISRUPTION IN OR LOSS OF SERVICE, OR LOSS OF CONTENT).
3. Access to Our Products & Services
(a) General
hotcakes reserves the right to discontinue the Products & Services or to change the content or any component of the Products & Services in any way and at any time, including test/beta features, and Third-Party Apps, Linked Technologies, or links, with or without notice to you, and without liability. hotcakes may at its discretion provide or not provide the Products & Services or any features thereof at any time to you. All features may not be available to all users as hotcakes may test features, or roll out to select geographies or cohorts, at hotcakes’ sole discretion. From time to time, hotcakes may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to the public (“Beta Services”). Beta Services may be subject to additional terms and conditions, which hotcakes will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information (as defined below) of hotcakes and subject to the confidentiality provisions in these Terms. hotcakes makes no representations or warranties that the Beta Services will function. hotcakes may discontinue the Beta Services, as with any of the Products & Services, at any time in its sole discretion. hotcakes will have no liability for any harm or damage arising out of or in connection with a Beta Service or any of the Products & Services. The Beta Services may not work in the same way as a final version. hotcakes may change or not release a final or commercial version of a Beta Service at our sole discretion. hotcakes makes no predictions, warranties, or guarantees, express or implied, about the quality of any of the Seller Products provided by any Sellers, or other individual, company, or service provider utilizing the Products & Services or featured on the Products & Services and assumes no liability related thereto.
(b) Eligibility
To use our Products & Services, you must: (i) be at least 13 years of age; and (ii) be either old enough to lawfully enter into this Agreement yourself or have your parent or legal guardian do so. THE SERVICES ARE AVAILABLE ONLY TO INDIVIDUALS AGED 13 YEARS OF AGE OR OLDER. IF YOU ARE 13 OR OLDER, BUT UNDER THE APPLICABLE AGE OF MAJORITY IN YOUR STATE OR JURISDICTION OF RESIDENCE, THEN YOU AGREE TO REVIEW THIS AGREEMENT WITH A PARENT OR LEGAL GUARDIAN TO MAKE SURE YOU AND YOUR PARENT OR LEGAL GUARDIAN UNDERSTAND AND AGREE TO THIS AGREEMENT. IF YOU ARE THE PARENT OR LEGAL GUARDIAN AGREEING TO THE AGREEMENT FOR YOUR CHILD OVER 13 YEARS OF AGE, THEN YOU AGREE ON YOUR CHILD’S BEHALF AND FURTHER AGREE AND ACCEPT FULL RESPONSIBILITY FOR YOUR CHILD’S USE OF THE SERVICES. HOTCAKES DOES NOT ENCOURAGE, SOLICIT, OR PERMIT VISITORS TO THE SERVICES WHO ARE UNDER THE AGE OF 13.
(c) Registration
You agree to provide certain information to set up your account. As part of the registration process, you will select a username and password and may provide certain information. You hereby consent to our access to and collection of such personal information about you. By registering for the Products & Services, you hereby authorize hotcakes to send you emails and other communications. You agree to protect your password and not share your account with others. You are solely responsible for maintaining the confidentiality of your username and password. You may not authorize others to use your account, and you may not share, assign or otherwise transfer your account or login information to any other person or entity. You are responsible for any and all activities that are conducted through your account. hotcakes shall be entitled to assume that a user presenting your username and password is, in fact, you. You agree to notify hotcakes immediately of any unauthorized use of your account. hotcakes shall have the right at any time to change, modify or amend your username and password. You agree to provide correct information and keep it updated. You agree to only use our Products & Services for personal reasons and not, for example, to compete with us. You represent and warrant that the information you provide to hotcakes is accurate, true, not confidential, and not in violation of any contractual obligations or other third party rights. You agree that it is your responsibility to keep your information accurate and updated. You represent and warrant that you are not a competitor of hotcakes and are not using the Products & Services in competition with hotcakes. You further represent and warrant that you are using the Products & Services solely for personal reasons and that you are not an attorney or an agent of an attorney conducting an investigation to a potential claim related to the Products & Services, any materials available through the Products & Services, or hotcakes.
(d) Updates.
We may provide you updates from time to time and may require you to use the most updated version. hotcakes shall have the right in its sole discretion to substitute, replace, modify, update or upgrade (“Updates”) the Products & Services as hotcakes deems advisable, and all such updates shall be incorporated in and subject to this Agreement and shall be the exclusive property of hotcakes. If hotcakes provides you with any Updates, you will be required to utilize such version. hotcakes will only be required to support the most recent and current version provided to you. Depending on the Update, you may not be able to use the Products & Services until you have downloaded the latest version and accepted any new terms that may apply. In case of a conflict between this Agreement and other terms provided with respect to updates, such other terms will prevail. This section will not require hotcakes to deliver new features and functionality nor any future offerings.
(e) Support.
We may provide user support. hotcakes reserves the right at any time to discontinue, cancel, or modify the technical support provided, if any. If you have questions about Seller Products, please reach out to the appropriate Seller directly for any questions related to such Products and all aspects of the transactions between you and such Sellers, including to request information about a Seller’s refund policy, returns, fulfilling any sales or customer service, fraudulent transactions, or required legal disclosures.
(f) Messages.
You agree to receive messages from us, including marketing materials. You agree to receive messages, including notices and marketing materials, through the Products & Services or through your contact information, such as email. It is your responsibility to ensure hotcakes has your current email address. Any notice sent to you via such email address by hotcakes shall be deemed given, received, and read by you, whether or not it actually is received and/or read. If you purchase Seller Products from Sellers using Linked Technologies or Third-Party Apps, you may receive an order confirmation from us. Please note this order confirmation is solely for record purposes, but if you have questions about your purchase, reach out to the appropriate Seller directly.
(g) Automated Processing.
We may provide relevant content to you and others based on automated processing. Our Products & Services include making suggestions for content that may be interesting to you and others. We use the data you provide and the data we have about other users, to make these recommendations.
(h) Mobile Devices; Carrier Charges.
Your use of Mobile Media (as defined below) may incur separate charges, such as by a carrier. You agree to be solely responsible for any such charges. Certain portions of the Products & Services may be configured for mobile devices, mobile websites, and/or mobile applications (collectively, “Mobile Media”). This Agreement shall apply with equal force and measure to your access and use of the Products & Services through Mobile Media. If you visit, access, or use the Products & Services through Mobile Media, then you hereby acknowledge and agree that information about your use of the Products & Services or such App through a mobile device and/or a mobile device carrier (such as, by way of example only, the identity of the mobile device, and/or the mobile device carrier) may be communicated to hotcakes, and that you accept full responsibility for all mobile device and carrier fees, rates, and charges that may apply, if any. The data fees, rates, and charges of your mobile device carrier may apply to your visit, access, and/or use of the Products & Services or the App. hotcakes is not responsible for, and you further accept full responsibility for, all mobile device and carrier fees, rates, and charges that may apply, if any.
4. Rights and Restrictions on Use
(a) hotcakes’ Limited License to You
You agree to only use the Products & Services for personal reasons and understand that you may not copy or otherwise use the Products & Services in an unauthorized manner. Subject to your acceptance of this Agreement and your continuing compliance with this Agreement and any other relevant policies, hotcakes grants to you a personal, non-exclusive, non-transferable, revocable limited license to download, access and use the Products & Services and related software (excluding source and object code) for your non-commercial, personal use on a device or machine(s) of which you are the primary user. You may not copy, rent, lease, lend, sell, assign, transfer, distribute, sublicense or prepare derivative works of any of the Products & Services. If you sell or otherwise transfer to a third party a device on which the Products & Services are installed, you must remove the Products & Services from such device before doing so.
(b) Warnings; Disclaimers
Our Services include content from third parties such as Sellers and Influencers, which we do not control. Where our Products & Services contain links to other sites provided by third parties, hotcakes does not control the contents of those sites. Such links should not be interpreted as approval by hotcakes of those linked websites. We also may offer users the ability to use Linked Technologies and/or Third-Party Apps for sales of Seller Products, including through Shops. As a shopper using the Products & Services, you acknowledge and agree that any contract of sale of Seller Products made through the Products & Services is directly between you and the applicable Seller whose Seller Product you purchased. Sellers, not hotcakes, are the sellers of record for all Seller Products you purchase through the Products & Services. hotcakes disclaims any liability for such content or use. You understand that hotcakes does not accept any liability whatsoever for any harm that might result from any statements presented on the Products & Services, and/or Linked Technologies and/or Third-Party Apps, including statements and opinions on the Products & Services, Seller Products viewed via the Products & Services, or third-party advertisements or services posted or linked through the Products & Services. You understand that any statements by hotcakes, its employees, agents, and affiliates are provided for informational purposes only. hotcakes reserves the right to discontinue the Products & Services or to change the content of the Products & Services in any way and at any time, with or without notice to you, and without liability. LTK makes no predictions, warranties, or guarantees, express or implied, about the quality of any of the Seller Products advertised, offered, or provided by any Seller, statements made by any Seller or Influencer, or other individual, company, or service provider utilizing the Products & Services or featured on the Products & Services and assumes no liability related thereto. hotcakes does not guarantee the accuracy, integrity, appropriateness, or quality of any third party content, including Influencers or Sellers, and in no way will be liable for any content published, promoted, or linked to by any Influencer or Seller.
(c) Posting Content
Our Products & Services may include the ability to upload or post content including text through the Products & Services or make contact with other users of the Products & Services. At all times, you must comply with this Agreement and the Community Guidelines. You further warrant that any such content complies with those standards and you will be liable to us and indemnify hotcakes for any loss or damages we may suffer as a result of your breach of such warranty. You further acknowledge that hotcakes has no obligation to prescreen, monitor, review, or edit any content posted by you and other users on the Products & Services. You further agree and represent that you own any content that you publish or transmit and that you have received all necessary permissions, clearances from, or are authorized by the owner of any part of the content to submit it to the Products & Services. By posting content to or through the Products & Services, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your content. hotcakes has a right to disclose your identity to any third party who is claiming that any content posted by you to our Products & Services constitutes a violation of their intellectual property rights or of their right to privacy. hotcakes reserves the right to cut, crop, edit, or refuse to publish your content at our sole discretion. You acknowledge that hotcakes has the right to remove, disallow, block, or delete any posting you make on our Products & Services if, in our sole discretion, your post does not comply with this Agreement or the Community Guidelines or in response to complaints from other users or third parties, including Influencers, with or without notice and without any liability to you.
(d) Restrictions on Your Use
You agree not to copy our Products & Services, circumvent our security, or otherwise engage in prohibited conduct. You agree that systematic retrieval of data from the Products & Services to create or compile directly or indirectly, in whole or in part, a collection, compilation, database or directory without the express written permission of hotcakes is strictly prohibited. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein. You may not engage in the practices of “screen scraping,” “database scraping,” or any other practice or activity the purpose of which is to obtain lists of users, portions of a database, or other lists or information from the Products & Services, in any manner or in any quantities not authorized by hotcakes. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of hotcakes or its affiliates without prior express written consent. You may not use any meta tags or any other “hidden text” utilizing hotcakes’ name or trademarks without our express written consent. You agree that you will not use any device, software or routine to bypass any code which may be included to prevent you from breaching the obligations in this Section or to interfere or attempt to interfere with the proper working of the Products & Services. You agree that you will not knowingly provide false information to sabotage or otherwise negatively affect the Products & Services. You agree you will not reverse engineer, disassemble or decompile any hotcakes prototypes or software, nor any other systems, information, materials or objects which are provided to you or to which you are granted access hereunder. You agree to be bound by any application, forum, or specific rules published within the Products & Services. You agree that you will not use the Products & Services for any authorized purpose, including communicating or facilitating any commercial advertisement or solicitation
or spamming.
(e) Your License to hotcakes
You grant us a non-exclusive license to use your data in connection with the Products & Services and their promotion. You grant to hotcakes a non-exclusive, perpetual, worldwide, royalty-free license to use, host, store, transmit, reproduce, distribute, sublicense, modify, create derivative works, communicate, publish, publicly perform, publicly display, archive, and otherwise use and exploit your data, in whole or in part, in any manner, medium, or form, whether now known or hereinafter devised, as hotcakes sees fit in its sole discretion, and includes without limitation use for the purpose of operating, promoting, and improving the Products & Services. You further grant to hotcakes all rights necessary to facilitate your use of a third party’s site, app or services that require syndication or other use of your data in connection with the Products & Services.
5. Warnings; Disclaimers
If you choose to share content and/or communications through the Products & Services in areas that others can view, copy, and use, then you do so at your own risk. HOTCAKES IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM OR IN CONNECTION WITH, THE USE OR DISCLOSURE OF ANY INFORMATION, COMMUNICATION, OR CONTENT THAT YOU VOLUNTARILY SUBMIT THROUGH THE PRODUCTS & SERVICES OR THE APP IN AREAS THAT OTHERS CAN VIEW, COPY AND USE.
6. Inappropriate Activity
You agree not to behave inappropriately or harass other users. We reserve the right to determine, in our sole discretion, if an act is offensive. Inappropriate content and/or harassment includes anything hotcakes, in its sole discretion, determines to be offensive or inappropriate for inclusion or use on the Products & Services. It includes, without limitation, content that:
- impersonates any person or entity or falsely states or otherwise misrepresents your affiliation with any person or entity, or creates a false identity for purposes of misleading others;
- promotes or contains material that is illegal, harmful, threatening, abusive, harassing, false, misleading, tortious, defamatory, vulgar, obscene, libelous, sexually explicit, violent, invasive of another’s privacy, hateful, discriminatory based on race / sex / religion / nationality / disability / age / sexual orientation, directed toward children under 1 years of age pursuant to the Children’s Online Privacy Protection Act (see also, FTC’s Children’s Privacy Site at http://business.ftc.gov/privacy-and-security/childrens-privacy), likely to deceive any person, or is otherwise objectionable;
- infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- you do not have the right to disclose under contract or applicable law;
- contains software viruses or any other technology designed to interrupt, destroy or limit the functionality of the Products & Services;
- involves the transmission of “junk mail”, “chain letters” unsolicited mass emails — “spam”l or solicitations;
- uses automated scripts or other technology to collect information from or otherwise interact with the Products & Services or other users without their consent;
- engages in promotion material, advertising, or other solicitation activities such as pyramid schemes, contests, or sweepstakes;
- incorporate the Products & Services or any portion thereof into any other program or product;
- use the Products & Services in a manner that may create a conflict of interest of undermine the purposes of the Products & Services;
- provides material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- includes other people’s personally identifying information or other confidential information, such as credit card numbers, Social Security numbers, license numbers, passwords, phone numbers, addresses, and email addresses; or
- violates or encourages or facilitates the violation of any applicable local, state, national or
international law, including but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law.
In addition to the above, your access to and use of the Products & Services must, at all times, be compliant with our Community Guidelines. hotcakes reserves the right, at any time and with or without notice, to remove or disable access to content at our discretion for any reason or no reason. Some of the reasons we may remove or disable access to content may include finding the content or use in violation of this Agreement, the Community Guidelines, or otherwise harmful to the Products & Services or our users. Violating this Agreement may also lead to you being immediately and permanently banned, with notification to your Internet Service Provider if deemed necessary.
7. Links to Other Sites, Networks, Platforms, and Apps
Your decision to access Linked Technologies and Third-Party Applications is at your own risk. We are not responsible for third party activities.
The Products & Services may contain links to third party sites, networks, platforms or apps (“Linked Technologies”), including but not limited to Shopify and payment platforms, like Stripe. However, please be aware that hotcakes is not responsible for and cannot control the terms of service or privacy policies of such other Linked Technologies. We encourage you to be aware of, and to read, the applicable agreements governing all Linked Technologies. The Agreement applies solely to these Products & Services. hotcakes is not responsible for and makes no representations or warranties regarding Linked Technologies, including without limitation, the content, accuracy, opinions, functionality, or services provided in such Linked Technologies. Inclusion of any Linked Technologies in the Products & Services does not imply approval or endorsement by hotcakes. If you decide to access any Linked Technologies, then you do so at your own risk. hotcakes may, in its sole discretion, provide you with access to third-party applications, which interface with hotcakes application programming interfaces (“hotcakes APIs”) (for purposes of this Agreement, such third-party applications are “Third-Party Apps”). Such Third-Party Apps use hotcakes APIs. Use of such Third-Party Apps is voluntary, and you use them at your own risk. By using Third-Party Apps, you may be granting Third-Party Apps access rights to your activities, including without limitation related metadata. hotcakes makes no representations or warranties regarding your use of any Third-Party Apps, which shall be governed by a separate agreement between your and the owners of such Third-Party Apps. You agree that hotcakes has no liability whatsoever for the Third-Party Apps, including, without limitation, providing continued access to the hotcakes APIs, technical issues related to the Third-Party Apps or their interaction with the hotcakes APIs, and any damages or claims caused by, arising out of or relating to the Third-Party Apps. hotcakes may change, suspend, or discontinue any aspect of the hotcakes APIs at any time, including the availability of any hotcakes APIs. hotcakes may also impose limits on certain features and services or restrict developers’ access to parts or all of the hotcakes APIs or the Products & Services without notice or liability.
8. Ownership of Intellectual Property
We own our intellectual property and only provide you a limited license to use our Products & Services pursuant to this Agreement. You do not acquire any ownership rights by using our Products & Services.
Unless otherwise specified, all materials that are part of the Products & Services are owned, controlled, or licensed by hotcakes and are protected by law from unauthorized use. The entire contents of the Products & Services are protected under copyright, patent, trademark, and/or other intellectual property laws. hotcakes, the hotcakes logos, and all designs are trademarks and/or trade dress of hotcakes and may not be used without the express written permission of hotcakes. All other trademarks appearing on the Products & Services are the property of their respective owners. You do not acquire any ownership rights by using the Products & Services or downloading material from or uploading material to the Products & Services. You agree not to (and shall not allow any third party to) reproduce, distribute, publish, prepare derivative works, publicly perform, publicly display, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer or exploit any right in the Products & Services, in whole or in part, except as expressly permitted herein. The limited licenses granted herein do not constitute a sale of the App, the Products & Services, or any portion or copy thereof. RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY HOTCAKES. You agree to only use the Products & Services as expressly permitted herein.
9. Export Control
You agree to comply with all export laws. You agree to comply with all U.S. and foreign export laws regarding the importation and exportation of goods and services. You represent and warrant that (a) you are not located in any country to which the United States has embargoed goods or has designated as a “terrorist supporting” country, and (b) you are not listed on any United States list of prohibited or restricted parties.
10. Use of Content in the Products & Services
It is possible that not all Services and Products, as well as not all Seller Products, will be available to you. The content contained in the Products & Services, and the terms, conditions, and descriptions that appear, are subject to change. Not all Products & Services, nor all Seller Products, may be available in all geographic areas or to all users.
11. Feedback and Idea Submission and hotcakes Research
If you provide us feedback or ideas, then we may use or discard them at our discretion and without liability. All comments, feedback, suggestions, ideas, and other submissions (“Ideas”) disclosed, submitted, or offered to hotcakes in connection with the use of the Products & Services shall be the exclusive property of hotcakes, including, without limitation, any feedback on Beta Service offerings or research services. Such Ideas will not subject hotcakes to any confidentiality obligations and hotcakes shall have no obligations to you, contractual or otherwise. You agree that hotcakes may use, sell, exploit and disclose the Ideas in any manner, for any purpose whatsoever, commercial or otherwise, without restriction, without attribution and without compensation to you. This includes that any user reviews about hotcakes can be used for marketing purposes.
12. Digital Millennium Copyright Act
If you believe that your copyright has been infringed by a third party on our Products & Services, then please follow this take down procedure.
It is hotcakes’ policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). hotcakes does not make judgments about the veracity of intellectual property infringement claims or adjudicate such claims. If the information you are complaining about is located on a third-party site or application, then you should contact that third-party site or application. Please be aware that, in order to be effective, your notice of claim must comply with the detailed requirements set forth in the DMCA. You are encouraged to review them (see 17 U.S.C. § 512(c)(3)) before sending your claim.
You may notify hotcakes of alleged infringement of intellectual property rights by contacting our Designated Agent at:
Email: support@hotcakesapp.com
Upon receipt of notice of claimed infringement, hotcakes will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue. Please be advised the DMCA requires that hotcakes send a copy of your complaint to the alleged infringer.
Please do not send any other communications to the Designated Agent, who is appointed solely for the purposes of receiving notices of copyright claims under the DMCA.
13. Assignment
We may assign our rights and obligations under this Agreement, but you may not. hotcakes may assign its rights and obligations under this Agreement freely. You may not assign any rights or obligations under this Agreement without hotcakes’ prior written consent.
14. No Warranty/Disclaimers
We disclaim any warranties for our Products & Services and provide them AS IS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE PRODUCTS & SERVICES IS AT YOUR SOLE RISK. THE PRODUCTS & SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT ALLOWED BY LAW, HOTCAKES AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATES,SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS (THE “HOTCAKES PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY, PERFORMANCE, NON-INTERFERENCE WITH INFORMATION, AND ACCURACY OF INFORMATIONAL CONTENT. THERE IS NO WARRANTY THAT INFORMATION PROVIDED HEREUNDER, OUR EFFORTS, OR THE PRODUCTS & SERVICES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. LTK PARTIES NEITHER ASSUME NOR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE AND USE OF THE PRODUCTS & SERVICES. THE HOTCAKES PARTIES ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, THE PRODUCTS & SERVICES OR ANY USER COMMUNICATIONS. THE HOTCAKES PARTIES ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON THE PRODUCTS & SERVICES, WHETHER CAUSED BY USERS OF THE PRODUCTS & SERVICES OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE PRODUCTS & SERVICES. THE HOTCAKES PARTIES MAKE NO WARRANTY THAT YOUR USE OF THE PRODUCTS & SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; THE INFORMATION OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS & SERVICES WILL BE ACCURATE OR RELIABLE; OR THE QUALITY OF ANY PRODUCTS & SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS & SERVICES WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS & SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE HOTCAKES PARTIES OR THROUGH THE PRODUCTS & SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW CERTAIN DISCLAIMERS, SO SOME OR ALL OF THIS SECTION MAY NOT APPLY TO YOU.
15. Limitation of Liability
This is the limit of our legal liability to you, if any.
WHEN PERMITTED BY LAW, THE HOTCAKES PARTIES, TOGETHER WITH ANY THIRD PARTIES THAT MAY CONTRIBUTE TO OR BE AFFILIATED WITH THE PRODUCTS & SERVICES, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THE FOREGOING PROVISION MAY HAVE THE EFFECT TO LIMITING THE LIABILITY OF THE HOTCAKES PARTIES FOR THEIR OWN NEGLIGENCE, INCLUDING THEIR OWN GROSS NEGLIGENCE. IF YOU ARE DISSATISFIED WITH THE PRODUCTS & SERVICES, OR ANY OF THE INFORMATION CONTAINED THEREON, OR REFUSE TO ABIDE BY THE AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT PERMITTED BY LAW, THE HOTCAKES PARTIES’ TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT YOU PAID TO USE THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN LIABILITIES, SO SOME OR ALL OF THIS SECTION MAY NOT APPLY TO YOU.
16. Indemnification
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD COMPLETELY HARMLESS THE HOTCAKES PARTIES, TOGETHER WITH ANY THIRD PARTIES THAT MAY CONTRIBUTE TO OR BE AFFILIATED WITH THE PRODUCTS & SERVICES, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS, ATTORNEYS’ FEES, EXPENSES, AND SETTLEMENTS, WHETHER GROUNDED IN CONTRACT, TORT, STATUTE, LAW OR EQUITY, INCLUDING WITHOUT LIMITATION CLAIMS ARISING FROM OR RELATED TO YOUR USE OF THE PRODUCTS & SERVICES OR YOUR INABILITY TO USE THE PRODUCTS & SERVICES, THE MATERIALS THE PRODUCTS & SERVICES CONTAIN, ANY SITES OR APPLICATIONS LINKED TO THE PRODUCTS & SERVICES, ANY ALLEGED VIOLATION OF THE AGREEMENT, AND ANY ALLEGED VIOLATION OF THE RIGHTS OF A THIRD PARTY. THE FOREGOING PROVISION MAY HAVE THE EFFECT TO PROVIDING INDEMNITY TO THE LTK PARTIES LIABILITY AND DAMAGES ARISING FROM THEIR OWN NEGLIGENCE, INCLUDING THEIR OWN GROSS NEGLIGENCE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN INDEMNIFICATIONS, SO SOME OR ALL OF THIS SECTION MAY NOT APPLY TO YOU.
17. Arbitration; Choice of Law; Venue; Claim Resolution; and Class Action Waiver
THIS AGREEMENT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AND WE AGREE TO SUBMIT ANY DISPUTE RELATED TO THIS AGREEMENT OR THE PRODUCTS & SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. THIS AGREEMENT ALSO INCLUDES A TRIAL BY JURY WAIVER AND CLASS ACTION WAIVER, WHICH MEANS THAT YOU AND WE AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.
(a) Arbitration.
It is understood and agreed between the parties to this Agreement that any and all claims, grievances, demands, controversies, causes of action, or disputes of any nature whatsoever, including those related to the issue of arbitration or dispute resolution itself, (whether in tort, contract, equity, upon any law, statute, order, regulation, or otherwise) (hereinafter “Disputes”), arising out of, in connection with, or in relation to (i) this Agreement, (ii) the interpretation or enforceability of this Agreement, or (iii) questions of arbitrability under this Agreement, that cannot be settled by mutual agreement will be resolved by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Prior to initiating any Dispute to AAA for resolution, you agree to contact us and attempt in good faith to resolve the Dispute on commercially reasonable terms. Unless you and hotcakes agree otherwise, the arbitration will be conducted in Los Angeles County, California. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 17(a) shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Services & Products.
(b) Claim Resolution.
Any Dispute must be raised within two (2) years after the date the cause of action arose. Failure to provide the written documentation within this timeframe will render all claims related to the Dispute null and void. You further agree not to join in any lawsuit with another person or serve as a class representative of any class action lawsuit against hotcakes.
(c) Choice of Law, Venue.
For any and all matters not subject to mandatory, binding arbitration as set forth above, the laws of the state of Delaware, United States, without application of conflict of law provisions, will apply to any disputes arising out of or relating to this Agreement or the Products & Services. All claims arising out of or relating to this Agreement, or the Products & Services will be litigated exclusively in the federal or state courts of Los Angeles County, California. The Agreement is fully performable in Los Angeles County, California. The parties consent to personal jurisdiction in Los Angeles County, California, and hereby waive any challenge to venue and personal jurisdiction they may have to a lawsuit filed in a state or federal court in Los Angeles County, California. Notwithstanding the foregoing, hotcakes may institute proceedings for equitable relief in any court of competent jurisdiction.
(d) Waiver of Trial by Jury.
EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE (INCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY SEEKING EQUITABLE RELIEF). EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (Y) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, AND (Z) IT MAKES SUCH WAIVERS VOLUNTARILY.
18. Several Notes About This Agreement and Apple.
If you downloaded the App from Apple’s App Store, then please review these additional terms. The following addresses certain matters with respect to Apple Inc. (“Apple”) and/or the so-called “Usage Rules” set forth in Apple’s App Store Terms of Service (located at http://www.apple.com/legal/internet-services/itunes/us/terms.html) as of the effective date hereof (“Apple’s Usage Rules”).
Acknowledgement. The Parties hereby acknowledge that:
- this Agreement is between the Parties only, and not with Apple;
- Apple is not responsible for the App, Products & Services, or the content thereof;
- Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
- Apple has no warranty obligations, whether express or implied;
- Apple is not responsible for addressing any claims you or any third party have or may have relating to the App or your possession and/or use of the App, including, without limitation, (i) product liability claims, (ii) any claim that such App fails to conform to any applicable legal or regulatory requirement, (iii) claims arising under consumer production or similar legislation, and (iv) intellectual property infringement claims;
- this Agreement’s usage rules for the App are not intended to be less restrictive than Apple’s Usage Rules;
- Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement; and
- Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary hereof.
Amended Scope of Limited License – The App. If you download, access, or use the App from or through Apple’s App Store, then the limited license granted to you hereunder with respect to such App (see Section 4(a) above) is hereby amended to add the following restriction: you may not use such App on any device other than the Apple-brand device (e.g., iPhone, iPod Touch, iPad) that you own or control, or in any manner that is contrary to Apple’s Usage Rules.
19. General Terms
(a) U.S. Government Customers.
The App is a “Commercial Item” as that term is defined in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable, Commercial Computer Software and Commercial Computer Software Documentation are licensed to the U.S. Government users (i) only as Commercial Items, and (2) only with those rights granted to other users under this Agreement. Unpublished rights are reserved under the copyrights of the United States.
(b) Force Majeure.
The hotcakes Parties shall not have any liability for any failure to perform obligations under this Agreement if such failure is caused by fire, flood, natural disaster, epidemic, act of God, strike, civil unrest, riot, insurrection, revolution, war, terrorism, lack or failure of suppliers or transportation facilities, failure of utilities or telecommunications, failure of third party software, law or governmental regulation or other cause or event which is of a magnitude or a type beyond the reasonable control of the hotcakes Parties or such other party.
(c) Waiver; Severability; Headings.
If any provision of the Agreement is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions will not in any way be affected or impaired and a valid, legal, and enforceable provision of similar intent and economic impact will be substituted therefore. hotcakes’ failure to require or enforce strict performance of any provision or to exercise any right under the Agreement shall not be construed as a waiver of any such provision or right. The headings appearing at the beginning of each section are for identification and reference purposes only and shall not be used to determine the construction or interpretation of the Agreement.
20. Contact Us
This covers how to contact us.
Any notices or communications sent by you to hotcakes pursuant to this Agreement must be in writing and sent to the address specified herein or such other address as hotcakes may specify in writing.
All notices should be sent to:
ATTN: Legal build’r Inc.
Email: support@hotcakesapp.com
April 5, 2024