General Terms and Conditions

• 1. Definitions

• Unless expressly stated otherwise in these Conditions the following terms beginning with capital letters shall have meanings as set out below:

• AI Engine: The ChatGPT language model operated by OpenAI or any other similar artificial intelligence (AI) model on which the Parties agree in writing and which is accessed by the Application to provide Outputs which are then made available to the Customer within the Application.
• Application: shall mean each individual application available within the Platform. Each Application shall be created by the Provider for the Customer based on Customer instructions. The purpose of each Application is to (i) compose prompts for the AI Engine based on the parameters, data or files provided by the Customer, (ii) send such prompts to the AI Engine and (iii) make the respective Outputs created by the AI Engine available to the Customer.
• Civil Code: shall mean the Czech Act No. 89/2012 Coll., the Civil Code.
• Conditions: shall mean these General Terms and Conditions.
• Contact E-Mail: shall mean the e-mail address of the Customer to which the communication relating to the Contract and its performance shall be delivered.
• Contract: shall mean the contract between the Customer and the Provider for provision of agreed Services. These Conditions shall form an integral part of each such Contract unless expressly agreed otherwise in such Contract.
• Customer: shall mean the person who enters into the Contract with the Provider for the provision of Services.
• Fees: shall mean the remuneration which the Customer shall pay to the Provider for the provision of Services.
• Output: is the response of the AI Engine to the prompts composed by the Application based on the parameters, data or files provided by the Customer; such response is then made available to the Customer within the Application.
• Party, Parties: shall mean the Customer and the Provider, individually or collectively as the context requires.
• Platform: shall mean the platform called: Hatchedbyai which is operated by the Provider and available at: www.hatchedby.ai. Within the Platform, the Customer may access and use individual Applications to compose prompts to the AI Engine and receive Outputs.
• Personal Data: shall mean any data which are regarded as personal data in accordance with applicable personal data protection laws and which the Customer provides to the Provider in connection with the performance of the Services.
• Provider: shall mean the entity operating the Platform and providing Services to the Customer, i.e. Ewing s. r. o.., company incorporated and existing under the Czech law, with its registered office at Jankovcova 1603/47a, Holešovice, 170 00 Praha 7, Identification Number 49712331, entered into Commercial Register maintained by the Prague City Court, Section C., Insert No. 23104.
• Services: shall mean the services provided by the Provider to the Customer as agreed in the Contract, in particular, access to the Platform and Applications as stated in the Contract and creating individual Applications for the use by the Customer within the Platform.

• 2. Contract Formation and Changes

  • 2.1 Each Customer has to conclude the Contract with the Provider (including consenting to these Conditions) in order to receive the Services.
  • 2.2 In the Contract the Parties shall agree in particular on the scope of Services, the Fees (including by way of reference to the price list of the Provider) and also the Contract E-mail of the Customer shall be stated in the Contract. By conclusion of the Contract each Customer confirms that such Customer enters into the Contract as entrepreneur acting within the scope of trade or profession; the Services are not intended for or available to consumers.
  • 2.3 The Contract can be concluded also in electronic form (e.g., by e-mail) provided that it contains unequivocal agreement of both Parties as to the scope of Services and Fees and unconditional consent of the Customer to these Conditions; otherwise, the Contract is not concluded.
  • 2.4 The Provider shall not be bound to conclude any Contract with any Customer or specify reasons for rejection.
  • 2.5 The Customer may request change of the scope of Services in writing. Such change shall become effective once accepted by the Provider. The Provider shall not be required to accept such change or specify reasons for rejection of such change request.
  • 2.6 The Customer hereby acknowledges and accepts that the Provider shall have the right to make adequate changes to these Conditions pursuant to Section 1752 (1) of the Civil Code. Each such change shall be notified by the Provider to the Customer at least 30 days prior to such change entering into effect. The Customer shall notify its disagreement with the change to the Provider before the change enters into effect otherwise the change shall be deemed to have been accepted by the Customer. Should the Customer timely notify the disagreement with the change to the Provider, the Contract is deemed to have been terminated as of the day when the change enters into effect.

• 3. Communication

  • 3.1 The Customer shall ensure that the contact details provided to the Provider upon Contract's conclusion (in particular the Contact E-mail) are accurate and functional for communication. The Customer shall not assert any communication faults resulting from the breach of the above obligation against the Provider.
  • 3.2 The Provider shall communicate with the Customer primarily by way of e-mail messages sent to Contact E-mail. The Customer shall communicate with the Provider by e-mail messages to the address found at Provider's website or otherwise communicated to the Customer is writing. The Parties agree that if these Conditions or any provisions of applicable law require communication in writing, it shall include e-mail and other electronic messages provided that such messages include the identity details (at least full name and e-mail address) of the person who sent it and are preservable for future reference.

• 4. Provision of Services

  • 4.1 The scope of Services shall be set out in the Contract.
  • 4.2 The Customer shall protect its access details (such as username or password) to the Platform and not to disclose such access details to any third party. The Provider accepts no liability for misuse of such access details.
  • 4.3 The Customer shall use the Platform as well as the Applications in strict compliance with their specifications and operation manuals and refrain from any conduct that could compromise the security, functionality or availability of the Platform or the Applications. The Customer cannot claim defects in the Services resulting from Customer's breach of obligations in this Article 4.3. The Provider also accepts no responsibility for defects in the Services resulting from inaccurate or incomplete data provided by the Customer (unless such inaccuracy or incompleteness is caused by the Provider).
  • 4.4 The Customer hereby acknowledges and agrees that Outputs are generated by the AI Engine which is a novel and experimental technology. Therefore, the Provider assumes no liability for the quality or accuracy of any Output. Neither shall be the Provider held liable for the availability or functionality of the AI Engine which is operated by a third-party. When using any Application, the Customer shall at all times comply with all policies, terms and conditions of the operator of the AI Engine and shall fully indemnify and compensate the Provider for any claims of the AI Engine operator or any third party resulting from violation of such policies, terms or conditions by the Customer.
  • 4.5 Should the Services not be provided by the Provider as stated in the Contract (unless such non-compliance with the Contract results from circumstances excluding Provider's liability under Article 4.2, 4.3 or 4.4), the Customer shall notify the Provider of such defect without undue delay after its discovery, in any case no later than 30 days from the date of provision of the respective Service, otherwise all Customer's rights resulting from such defect lapse. In such notification, the Customer shall also choose whether it wishes to receive remedy of the defect by re-performance or correction of performance of the respective Service (if possible) or corresponding discount from Fees; Customer shall have no other rights in connection with such defect. Should the Customer fail to include such choice in the notification, the choice is with the Provider. In the event that the defect shall be remedied by corresponding discount from Fees, such discount shall be implemented in the next invoice, unless the Parties agree otherwise.

• 5. IP and License

  • 5.1 The Customer hereby acknowledges and agrees that all components of the Platform and all Applications are the intellectual property of the Provider, unless expressly stated that they are the intellectual property of third parties. The Customer shall refrain from any conduct that would infringe Provider's or respective third parties' rights to such intellectual property.
  • 5.2 The Provider hereby grants the Customer a non-exclusive license to use the Platform and Applications available on the Platform solely for the purpose for which they were provided, i.e. the Platform shall be used solely to access and use Applications available on the Platform and the Applications shall be used solely for internal private or business purposes of the Customer, however not for re-sale, rental, lending or communication to the public, unless the Contract allows the Customer to re-sale certain Services.
  • 5.3 The above license does not extend to AI Engine and Outputs. Use of AI Engine and Outputs by the Customer is governed by the terms, conditions and policies of the AI Engine operator which the Customer shall familiarize with and adhere to at all times.
  • 5.4 In case that certain components of the Platform or any Application are owned by third parties (e.g. third party open source components), the Provider shall disclose it to the Customer together with links to the license terms applicable to such components and the Customer shall familiarize itself with and at all times adhere to such license terms.

• 6. Fees

  • 6.1 The Customer shall pay to the Provider the Fees as set out in the Contract. The Provider shall have the right to unilaterally change the Fees; such change shall be communicated and accepted by the Customer under the same principles as in Article 2.7.
  • 6.2 Unless specified otherwise in the Contract, the invoicing period shall be 1 month, first invoice shall be issued as of the date of Contract's signature and due date of invoices shall be 15 days from delivery to Customer.
  • 6.3 Should the invoice not be paid by the Customer on time, the Provider may disable access of the Customer to Platform or the Applications and also charge default interest set out by the applicable laws.

• 7. Limitation of Liability

  The Provider's liability for damage or any other harm caused to the Customer by the Provider resulting from the breach of Contract or any statutory provisions in connection with the Contract by the Provider shall not exceed the amount of total Fees paid by Customer to Provider in the respective monthly invoicing period in which the breach occurred. In any case the Provider shall not be liable for any indirect, consequential or punitive damages, third party claims, loss or damage of data, non-monetary damage or lost profits. The above limitation of liability shall not apply in cases where the limitation of liability is excluded by provision of applicable law which cannot be departed from by the agreement of the parties.

• 8. Personal Data

  • 8.1 Customer and user data
  • 8.1.1 The Provider shall act as independent data controller with respect to Personal Data which are (a) included in the Contract, (b) part of access details to the Application or (c) otherwise provided by the Customer or data subjects on the side of the Customer within the process of Contract conclusion or use of the Platform or any Application (such as name, username, e-mail address, profile photograph or affiliation with the Customer or position within the Customer's organization).
  • 8.1.2 Provision of such Personal Data is necessary in order to conclude the Contract and receive Services. The Provider shall process such Personal Data only for the purpose of and to the extent as necessary for (i) the provision of Services under the Contract (i.e. the legal title of data processing under Article 6 (1)(b) of the GDPR), (ii) fulfillment of legal obligations (i.e. the legal title of data processing under Article 6 (1)(c) of the GDPR or (iii) legitimate interests of the Provider such as resolution of legal claims (i.e. the legal title of data processing under Article 6 (1)(f) of the GDPR). Such Personal Data are (a) stored for the duration of the Contract and deleted after its termination (provided that it is not required to retain such data under any applicable law or to resolve legal claims), (b) not used for any other purposes and (c) not shared with any other parties with the exception of data processors acting upon instructions of the Provider (such as authentication and other service providers) and (d) not transferred outside of the European Economic Area.
  • 8.1.3 Each data subject has the following rights with respect to the above processing of Personal Data: (a) right of access: i.e. right to obtain confirmation from the data controller as to whether or not personal data concerning such data subject are being processed, and, where that is the case, to access such personal data and obtain information as to scope, method, purpose and duration of such processing; (b) right to rectification: i.e. to request correction of inaccurate or amendment of incomplete personal data related to such data subject, (c) right to erasure (right to be forgotten): i.e. the right, under the conditions set out in GDPR, to have personal data related to such data subject erased for example in cases when such data are no longer necessary in relation to the purposes for which they were collected, consent to their processing has been withdrawn, objection to their further processing has been made or they were processed unlawfully; (d) right to restrictions of processing for example when the accuracy of personal data is contested or the personal data were unlawfully processed, (e) right to data portability: i.e. right to receive the personal data provided above in a structured, commonly used and machine-readable format and to transmit those data to another controller, under the conditions set out in GDPR and to the extent of technical capabilities of the data controller; (f) right to object to further processing of personal data by the data controller for example in cases where the processing is based on legitimate interest of the data controller; (g) right to withdraw consent: in case where the data processing is based on consent of data subject such consent may be withdrawn at any time without affecting lawfulness of processing carried out before such withdrawal and (h) right to file complaint at the data protection authority (Czech Office for Protection of Personal Data) with its website located at https://www.uoou.cz or with the data protection authority at the place of data subject's residence.
  • 8.2 Data entered into Applications
  • 8.2.1 With respect to Personal Data the Customer enters to the Platform or any Application, the Customer shall be acting as data controller and the Provider as data processor of such Personal Data and processing of such Personal Data shall be governed by the provisions of this Article 8.2.
  • 8.2.2 The Customer hereby represents to the Provider that such Personal Data were collected by the Customer and handed-over to the Provider in full compliance with all applicable laws, in particular with the GDPR and their processing by the Provider in accordance with the Contract (including their transfer to the AI Engine) will not give rise to any breach of contractual or other legal obligation to the subjects of such Personal Data or any breach of any applicable law (including the GDPR). Should such representation prove untrue, the Customer shall fully indemnify and compensate the Provider for any damage or any other harm (including any sanctions, fines or third-party claims) that the Provider incurs as a result of such untrue representation.
  • 8.2.3 Within the provision of Services, the Provider may process in particular the Personal Data entered into the Platform or the Application by the Customer.
  • 8.2.4 The purpose of data processing is provision of Services under the Contract, in particular operation of the Platform and the Application in accordance with their specification, i.e., to compose prompts, send such prompts to the AI Engine, receive the Outputs and make them available to the Customer. It may also be possible to store the previous interactions with the Applications in the form of history or compose templates; such features may be disabled by the Customer.
  • 8.2.5 The Provider shall process Personal Data only for the time period necessary to achieve the above purpose of data processing, in any case no longer than for the duration of the Contact. After expiration of this time period of data processing the Provider undertakes to proceed in accordance with Article 8.2.11.
  • 8.2.6 The Provider shall process the Personal Data only on documented instructions from the Customer, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by applicable law to which the Provider is subject; in such a case, the Provider shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. By uploading any Personal Data to any Application and pressing the "Submit" or any similar button causing the Application to compose prompt based on such Personal Data, send such prompt to the AI Engine and make the Output available to the Customer, the Customer shall be deemed to have given instruction to the Provider to such Personal Data processing (i.e. to compose respective prompt based on such Personal Data, send such prompt to the AI Engine and make the Output available to the Customer).
  • 8.2.7 The Provider shall ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
  • 8.2.8 The Provider shall ensure to take all measures pursuant to Article 32 of the GDPR.
  • 8.2.9 The Provider shall be entitled to engage another processor to process Personal Data only with prior written consent of the Customer. Should such consent be granted, the Provider shall adhere to its obligations under Article 28, paragraph 2 and 4 of the GDPR.
  • 8.2.10 While processing Personal Data, the Provider shall take into account the nature of the processing, assists the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR and ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to the Provider.
  • 8.2.11 The Provider undertakes to, at the choice of the Customer, delete or return all the Personal Data to the Customer after the end of the provision of services relating to processing, at the latest upon termination of the Contract and delete all existing copies unless any applicable law requires storage of the Personal Data.
  • 8.2.12 The Provider shall make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in this Article 8.2 as well as in any applicable laws and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer.
  • 8.3 Data Processing by AI Engine
  • 8.3.1 The Provider is not responsible and assumes no liability for the Personal Data processing by the AI Engine. Within the role of Personal Data processor under Article 8.2 the Provider composes the prompts for the AI Engine based on the parameters, data or files provided by the Customer which may (or may not) contain Personal Data, send such prompts to the AI Engine and makes the Outputs available to the Customer without exercising any influence or control over Personal Data processing by AI Engine. Processing of such Personal Data by the AI Engine is performed in accordance with the Privacy Policy of its operator; with respect to ChatGPT such policy can be found at: https://openai.com/policies/privacy-policy and the Customer shall familiarize itself with and at all times adhere to such Privacy Policy. The Customer shall also note that such Personal Data processing by AI Engine may include transfer of Personal Data outside of the European Economic Area and the Customer shall be fully responsible for taking any required safeguards for such transfer.
  • 8.3.2 The Customer shall fully indemnify and compensate the Provider for any damage or any other harm (including any sanctions, fines or third-party claims) resulting from Personal Data processing by the AI Engine in contradiction to any applicable laws or contractual obligations, provided that such contradiction occurred for reasons on the side of the Customer.

• 9. Term and Termination

  The Contract shall become valid and effective as of its signature by both Parties and shall be made for indefinite period. In addition to the cases where the Contract can be terminated in accordance with Article 2.7 or under the rules of applicable law, it can also be terminated by each Party for any reason or without stating a reason by a written termination notice sent by e-mail from the Contact E-mail to the address of the Provider set out in Article 3.2 and the Provider shall have the right to terminate the Contract for any reason or without stating a reason by written termination notice sent by e-mail to the Contact E-Mail, in both cases with 3 month termination period. The Customer hereby acknowledges that after termination of the Contract the Provider will delete all accounts of the Customer within the Platform, including all data stored there by the Customer.

• 10. Final Provisions

  • 10.1 All Contracts shall be governed by the laws of the Czech Republic.
  • 10.2 Any dispute arising from or in connection with any Contract shall be decided by the courts of the Czech Republic. Local jurisdiction of such courts shall be determined on the basis of the registered office of the Provider at the time of filing of the respective court action; this shall not apply in case where the other party to the dispute is a consumer.
  • 10.3 No provision of any Contract shall establish rights or obligations of any third party and shall not serve interest of any third party.
  • 10.4 No Party shall be entitled to assign any Contract or its rights or obligations under any Contract to any third party with the exception of such an assignment by the Provider to a person which the Provider controls, is controlled by or under common control with or an assignment of Provider's monetary receivables against the Customer by the Provider to any third party; the Customer grants its consent to such assignments.
  • 10.5 Reference to an "Article" shall mean Article of these Conditions unless expressly stipulated otherwise.