Terms of Service for Fathom™ Control
Last Updated: February 18, 2016.
PLEASE CAREFULLY READ THESE TERMS OF SERVICE. THESE TERMS OF SERVICE ARE A BINDING CONTRACT BETWEEN FATHOM AND CUSTOMER (DEFINED BELOW) AND GOVERN THE USE OF FATHOM™ CONTROL. THESE TERMS OF SERVICE EXEMPT FATHOM AND OTHER PERSONS FROM LIABILITY OR LIMIT THEIR LIABILITY, SPECIFY THE JURISDICTION FOR RESOLUTION OF DISPUTES AND CONTAIN OTHER IMPORTANT PROVISIONS.
BY SUBSCRIBING TO FATHOM CONTROL, YOU ACKNOWLEDGE AND SIGNIFY CUSTOMER’S ACCEPTANCE AND AGREEMENT, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THESE TERMS OF SERVICE, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT AND AGREE TO THESE TERMS OF SERVICE ON BEHALF OF CUSTOMER.
IF CUSTOMER DOES NOT AGREE WITH EACH PROVISION OF THESE TERMS OF SERVICE, OR YOU ARE NOT AUTHORIZED TO AGREE TO THESE TERMS OF SERVICE ON BEHALF OF CUSTOMER, THEN NEITHER YOU NOR ANY OTHER PERSON ON BEHALF OF CUSTOMER MAY SUBSCRIBE TO FATHOM CONTROL.
1. Definitions and Interpretation
1.1 Definitions: In these Terms of Service, the following terms have the following meanings and other capitalized terms have the meaning set out elsewhere in these Terms of Service:
(a) “Authorized User” means an individual who is authorized by Customer to use Fathom Control on Customer’s behalf.
(b) “Beacon” means a Bluetooth Low Energy device that operates in accordance with an industry standard beacon protocol that is compatible with a Fathom Device and Fathom Control, as set out in applicable Documentation.
(c) “Bluetooth Device” means a device, other than a Beacon, that emits a Bluetooth signal that is compatible with a Fathom Device and Fathom Control, as set out in applicable Documentation.
(d) “Customer” means the person identified as the “Customer” in an online order for a Subscription or an invoice issued by Fathom confirming a Subscription.
(e) “Customer Data” means information, data (including data collected from Beacons and Bluetooth Devices) and other materials (e.g. venue maps) submitted by or on behalf of Customer or an Authorized User to Fathom, including data transmitted by Fathom Devices to Fathom Control.
(f) “Documentation” means user manuals and other documents regarding a Service provided or made available by Fathom to Customer or an Authorized User from time to time.
(g) “Fathom Analytics” means analytics relating to or derived from Customer Data that are created by or on behalf of Customer using Fathom Control.
(h) “Fathom Control” means an online proximity and location integrity management solution, comprised of various functionalities and services, for the provisioning, management and monitoring of Fathom Devices and the analysis of certain Customer Data.
(i) “Fathom Device” means a hardware device, manufactured by or on behalf of Fathom, that is designed to be compatible with Fathom Control and is operated and used by Customer in connection with Fathom Control.
(j) “Fathom System” means the technologies, infrastructure, software, services, information and data used by or on behalf of Fathom to operate Fathom Control and perform or provide Services.
(k) “Professional Service” means a service performed by or on behalf of Fathom relating to the implementation and use of Fathom Control by or on behalf of Customer.
(l) “Representatives” means directors, officers, employees, contract workers, agents and other personnel and representatives. Customer’s Representatives are deemed to include all Authorized Users.
(m) “Services” means all services (including Fathom Control and Professional Services) provided by Fathom to or for the benefit of Customer pursuant to these Terms of Service.
(n) “Subscription” means Customer’s valid and subsisting subscription for use of specified functionalities or services of Fathom Control by or on behalf of Customer.
1.2 Other Agreements and Terms/Policies: These Terms of Service are in addition to other agreements between Customer and Fathom (collectively the “Parties” and each a “Party”) regarding Fathom’s products and software, such as an End User License Agreement for Fathom Install Application and a License Agreement for Fathom Firmware (collectively “Other Agreements”). Certain features or functionalities of Fathom Control may be subject to additional terms and conditions (collectively the “Additional Terms”), which are available at support.fathom.xyz/legal. If there is a conflict or inconsistency between these Terms of Service and any Other Agreements or Additional Terms, then: (a) the Additional Terms will take priority and govern regarding the relevant features or functionalities of Fathom Control; (b) the Other Agreements will take priority and govern regarding the relevant product or software; and (c) these Terms of Service will take priority and govern regarding Fathom generally.
2. Subscription to Fathom Control
2.1 Details: Customer may order a Subscription using the online ordering process made available for that purpose by Fathom. The details of each Subscription (e.g. the specific functionalities or services of Fathom Control available for use by or on behalf of Customer and the maximum permitted number of Authorized Users and data transmission or storage limits) will be selected by Customer during the online ordering process and confirmed in an invoice issued by Fathom to Customer.
2.2 Term of Subscription: The initial term of a Subscription will be selected by Customer during the online ordering process. After the initial term of a Subscription, the Subscription will automatically renew for consecutive, additional renewal terms (each having the duration specified during the online ordering process) unless and until the Subscription is cancelled or terminated pursuant to these Terms of Service. Customer may cancel a Subscription by using the online controls made available through Fathom Control. If the duration of the then-current term (initial or renewal, as applicable) of a Subscription is three (3) months or less, then Customer’s cancellation of the Subscription will be effective at the end of the then-current term of the Subscription. If the duration of the then-current term (initial or renewal, as applicable) of a Subscription is more than three (3) months, then Customer’s cancellation of the Subscription will be effective at the end of the then-current calendar month, and Fathom will refund to Customer the unused portion of any pre-paid fees for the cancelled part of the Subscription less a ten percent (10%) early cancellation charge. Fathom may cancel a Subscription on thirty (30) days’ notice to Customer, and Fathom will refund to Customer the unused portion of any pre-paid fees for the cancelled part of the Subscription.
2.3 Subscription: Subject to the provisions of these Terms of Service, for each Subscription Fathom hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, restricted and limited license during the term of the Subscription to: (a) permit Authorized Users to access and use, through the access mechanisms purposefully made available by Fathom, the applicable functionalities and services of Fathom Control for the benefit of Customer in accordance with the details of the Subscription, the applicable Documentation and the restrictions and requirements set out in these Terms of Service; and (b) make and use a reasonable number of copies of applicable Documentation for Fathom Control to the extent reasonably necessary to facilitate Authorized Users’ use of Fathom Control in accordance with these Terms of Service.
2.4 Permitted Use: Customer will use, and will ensure Authorized Users use, Fathom Control and Fathom Analytics for the sole purpose of Customer’s internal business purposes only.
2.5 Restrictions/Requirements: Customer will not, and will ensure that Authorized Users do not: (a) use Fathom Control, Customer Data, Documentation or Fathom Analytics in any manner, by any means, or for any purpose not expressly permitted by these Terms of Service; (b) attempt to circumvent the ordinary navigational structure, technical delivery systems or display of Fathom Control or otherwise attempt to access or use Fathom Control by any means that is not purposely made available for that purpose by Fathom; (c) use Fathom Control in a way that interferes with or threatens, damages, disrupts, compromises or degrades the integrity, functionality, operation, performance or security of Fathom Control or any related Fathom System; (d) license, sublicense, grant, sell, share, transfer, assign, pledge, create an interest in, or otherwise give or make available or permit the use of Fathom Control, Documentation, Customer Data or Fathom Analytics to or for the benefit of any other person, whether as a service bureau or otherwise, and whether with or without charge; (e) alter, attempt to circumvent, destroy, obscure or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, digital rights tools or management information, security or control measures or agreements (including end user terms and conditions) on, in or in relation to Fathom Control, Documentation or Fathom Analytics; (f) develop a software application for use with Fathom Control, unless the Subscription expressly permits Customer to do so; (g) reverse engineer or otherwise access or use Fathom Control, a Fathom System, Customer Data or Documentation in order to create a product or service that is competitive with Fathom Control or any other product or service offered by Fathom, or a product or service using similar ideas, features or functions; or (h) permit, assist or encourage any other person to do any of the foregoing in this section 2.5 or to commit an act or omission that would be a breach of these Terms of Service if committed by Customer or an Authorized User. A restriction set out in this section 2.5 does not apply if and to the extent, but only to the extent, that the restriction is prohibited by applicable law.
2.6 Changes: Fathom in its discretion may change the functionality or operation of Fathom Control from time to time without any notice to Customer or any other person, provided that any change will not materially adversely affect the functionality or operation of Fathom Control that is relevant to Customer’s actual use of Fathom Control.
2.7 Authorized Users
(a) General: Customer will access and use Fathom Control only through one or more Authorized Users, each of whom has a valid and subsisting sub-account for Fathom Control. Customer will ensure that each Authorized User accesses and uses Fathom Control only on behalf of Customer and strictly in accordance with the restrictions and requirements set out in these Terms of Service. Customer will authorize one (1) or more Authorized Users (each an “Administrator”) to administer use of Fathom Control by other Authorized Users. A Subscription may limit the number of Authorized Users and Administrators.
(b) Responsibility: Customer is fully responsible and liable for all acts and omissions by or on behalf of each Authorized User and each Authorized User’s use of Fathom Control, Documentation, Customer Data and Fathom Analytics. Customer will ensure that each Authorized User fully complies with all of the requirements, restrictions and limitations, set out or referenced in these Terms of Service and the Documentation, regarding Fathom Control, Documentation, Customer Data and Fathom Analytics.
(c) Registration/Changes/Termination: Fathom Control may provide an Administrator with online controls to authorize or terminate other Authorized Users’ registration to use Fathom Control. Customer may submit a request (by email) to Fathom requesting that Fathom terminate an Administrator’s registration to use Fathom Control. Fathom, acting reasonably, may refuse to register an individual as an Authorized User, and may restrict, suspend or terminate (in whole or in part) an Authorized User’s registration to use Fathom Control. Each Authorized User will be considered to be an active Authorized User of Fathom Control unless and until the Authorized User’s registration to use Fathom Control is terminated by an Administrator or by Fathom in accordance with these Terms of Service.
(d) Credentials: Each Authorized User will use valid and subsisting unique identifiers registered with or generated by Fathom (collectively “Credentials”) to access and use Fathom Control. Credentials are specific to the Authorized User for whom they are registered or generated, and may not be shared with or transferred to any other person. Customer will ensure that each Authorized User keeps the Authorized User’s Credentials secure and confidential at all times, does not permit any other person to use the Authorized User’s Credentials, and immediately notifies Fathom if the Authorized User knows or suspects that the Authorized User’s Credentials have become known to or used by any other person. Customer is fully responsible and liable for the security of all Credentials and all use and misuse of Credentials. Fathom in its discretion may require Authorized Users to verify or change Credentials from time to time.
(e) Monitoring Use: Fathom Control will monitor and record information regarding each Authorized User’s use of Fathom Control, and Fathom may use that information for system administration purposes and to provide Services to Customer, and may disclose or make that information available to Customer and Customer’s other personnel (including Administrators). Customer will ensure that each Authorized User consents to the collection, retention, use, storage, processing and disclosure of information (including personal information) regarding the Authorized User and the Authorized User’s use of Fathom Control as set out in this section 2.7(e) and as otherwise permitted by applicable law.
3. Other Services
3.1 APIs: Without limiting the generality of section 2.5, if a Subscription expressly permits Customer to use an application programing interface to the Fathom System (an “API”), then: (a) use of the API will require a valid and subsisting sub-account and corresponding Credentials designated for that purpose; (b) Customer is fully responsible and liable for all use of the API using the applicable sub-account and corresponding Credentials; and (c) all data (including Customer Data and Fathom Analytics) transmitted, received or otherwise obtained using the API may be used for the sole purpose of Customer’s internal business purposes only and not for any other purpose whatsoever.
3.2 Professional Services: On request by Customer, Fathom in its discretion may agree to provide to Customer Professional Services as expressly agreed in writing (e.g. in a written statement of work) by the Parties. A written statement of work regarding Professional Services will not be valid or binding unless and until it is signed by Fathom and Customer. Professional Services may be subject to Additional Terms.
4.1 Additional Definitions: In these Terms of Service: (a) “Anonymized Data” means any and all Customer Data and Fathom Analytics that have been anonymized by or on behalf of Fathom so that the data does not refer to Customer, an Authorized User or any identified individual; and (b) “Use” means any and all forms and methods of use, including create, copy, reproduce, load, install, access, configure, reformat, modify, delete, enhance, translate, host, retain, store, backup, archive, transmit, communicate, combine with and incorporate into other works and create derivative works.
4.2 Lawful Authority: Customer represents and warrants to Fathom that Customer has the right, power, capacity and authority to lawfully collect and Use Customer Data and Fathom Analytics as contemplated by these Terms of Service, and to lawfully authorize and license Fathom to Use Customer Data, Fathom Analytics and Anonymized Data as contemplated by these Terms of Service.
4.3 Refusal/Removal of Customer Data: If Fathom reasonably believes that any Customer Data or Fathom Analytics does not comply with the restrictions or requirements set out or referenced in these Terms of Service, then Fathom may refuse to permit the transmission of the Customer Data to Fathom Control and remove and delete Customer Data and Fathom Analytics from Fathom Control.
4.4 Fathom Use of Data: Customer hereby grants to Fathom a non-exclusive, irrevocable, perpetual, world-wide, fully transferable, fully sub-licensable, royalty-free, fully paid-up, unlimited and unrestricted right and license in perpetuity to do each of the following: (a) Use and authorize other persons to Use Customer Data and Fathom Analytics for the purpose of performing Fathom’s obligations and exercising Fathom’s rights under these Terms of Service; and (b) Use Customer Data and Fathom Analytics to create Anonymized Data and Use and commercialize (including sell, transfer, license, distribute and disclose) Anonymized Data (in original, modified and altered forms and in combination with other data and materials) for any and all commercial and non-commercial purposes whatsoever and using any and all means, media and technologies (including any and all forms of publication, reproduction, transmission, distribution, performance, dissemination and display) now in existence or developed in the future, all without any compensation or attribution to Customer or any other person.
4.5 Service Metrics: Customer acknowledges and agrees that Fathom may collect data regarding the use of Fathom Control and other Services by or on behalf of Customer and Use that data to perform Fathom’s obligations and exercising Fathom’s rights under these Terms of Service, to improve the quality and performance of Fathom Control and other Services, and to develop new Services.
4.6 Security: Fathom will use commercially reasonable efforts appropriate to perceived risk to provide a commercially reasonable level of security for Customer Data and Fathom Analytics while stored in a Fathom System. Fathom is not responsible for the security or integrity of Customer Data or Fathom Analytics outside a Fathom System. If Fathom becomes aware of a security breach of a Fathom System that affects the security of Customer Data or Fathom Analytics stored in the Fathom System, then Fathom will immediately notify Customer of the security breach, inform Customer of the steps Fathom intends to take to resolve the security breach and prevent similar security breaches in the future, and reasonably cooperate with Customer to mitigate the adverse effects of the security breach.
4.7 Deletion of Data: On expiration or termination of a Subscription, Fathom will retain for a period of fifteen (15) days all Customer Data and Fathom Analytics relating to the Subscription that was in Fathom Control on the expiration or termination date, and after that retention period Fathom may permanently delete any and all of the Customer Data and Fathom Analytics.
5. Legal Compliance
5.1 General: Customer will comply, and will ensure that any and all use by or on behalf of Customer of Services, Documentation, Customer Data and Fathom Analytics complies, with all applicable laws, including all laws relating to data security, privacy, personal information protection, marketing, advertising and the sending of electronic messages.
5.2 Sensitive Data: Depending on how Customer has configured Customer’s Beacons and Fathom Devices and the nature of Customer’s use of Fathom Control, Customer Data may include the following data: (a) basic information about Beacons, Bluetooth Devices and Fathom Devices (e.g. make, model, operating system, UUID and other similar information); (b) the location of a Beacon, Bluetooth Device or Fathom Device, including when the item arrives or leaves a particular location covered by the Customer’s beacon network; and (c) the date and time the Customer Data is collected by the Customer’s beacon network (collectively “Sensitive Data”). Customer acknowledges that Sensitive Data may include personal information about identifiable individuals that is regulated by privacy and personal information protection laws.
6. Fees and Payment
6.1 Fees: Customer will pay to Fathom the fees and charges for each Subscription or Service (collectively “Fees”) set out or referenced in these Terms of Service. Fees for a Subscription or Service will vary depending on the nature or use of the Subscription or the Service. Fees for a Subscription and other recurring periodic Fees are payable in advance on the first day of the relevant period. Fathom in its discretion may change its generally applicable fees and charges from time to time, but a change will not apply to the Fees payable regarding existing Subscription.
6.2 Taxes: Fees are exclusive of all applicable sales, use, value-added, property, excise, import, foreign, withholding and other governmental taxes, duties, charges, levies, fees, excises, tariffs and assessments of any nature and kind whatsoever now or hereafter imposed (collectively “Taxes”). Customer is solely responsible and liable for, and will pay and remit promptly, all Taxes (other than corporate income taxes payable by Fathom) associated with, based on or due as a result of Fees, and all related interest, penalties and expenses.
6.3 Payments: If Customer selects to pay Fees and Taxes by credit card or similar payment method, then Fathom will charge Fees and Taxes to the credit card or payment method on the date when the Fees and Taxes are due and payable, and Fathom will simultaneously provide (including by email) or make available to Customer an invoice or payment confirmation for the Fees and Taxes. In other circumstances, Fathom will issue to Customer an invoice for Fees and Taxes, which invoice is payable on receipt. Payment obligations are non-cancellable and advance payments are non-refundable, except as expressly set out in these Terms of Service. All Fees and applicable Taxes are payable in the currency specified in the applicable Subscription information or invoice, provided that if no currency is specified Fees and Taxes are payable in U.S. currency. Customer is solely responsible for all fees and charges (including currency exchange fees) charged by Customer’s payment service provider. Except to the extent required by applicable law, all amounts payable to Fathom under these Terms of Service are payable in full without any deduction or withholding.
6.4 Non-Payment: If Customer fails to make a payment when due, then Fathom in its discretion may, without notice to Customer, suspend the provision of Services to Customer until the payment has been made, and the suspension will not be a breach of these Terms of Service by Fathom, entitle Customer to a refund or suspension of payment obligations, or give rise to any liability by Fathom to Customer or any other person.
7. Ownership/Proprietary Rights
7.1 Customer Data: Except for the licenses expressly set out or referenced in these Terms of Service: (a) as between the Parties, Customer will at all times solely own and retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with Customer Data and Fathom Analytics; and (b) Fathom will not acquire any right, title or interest in, to or associated with any Customer Data or Fathom Analytics.
7.2 Services and Related Items: Except for the licenses expressly set out or referenced in these Terms of Service: (a) as between the Parties, Fathom and its licensors will at all times solely own and retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with all Services (including Fathom Control), Fathom Systems, Documentation and Anonymized Data; and (b) neither Customer nor any other person will acquire any right, title or interest in, to or associated with any Service, Fathom System, Documentation or Anonymized Data.
7.3 Feedback: If Customer or its Representatives (including an Authorized User) gives to Fathom or any of Fathom’s personnel any feedback (including ideas or suggestions for enhancements or improvements) about a Service or Documentation, then Fathom and its licensors and their respective successors, assigns and licensees may use and commercialize the feedback without providing any compensation to Customer or any other person. For greater certainty, Customer and Authorized Users will not include in feedback to Fathom any information that is confidential or proprietary to Customer or any other person.
7.4 Fathom Systems: All Fathom Systems and related intellectual property rights are protected throughout the world by international laws and treaties and may be subject to copyright, patents or patents pending. Notwithstanding any other provision of these Terms of Service, and for greater certainty, under no circumstances will Fathom be obligated to provide, nor will Customer or any other person be entitled to directly or indirectly receive, obtain, access or use, a copy of any of the software or other technologies that are used by or on behalf of Fathom to provide Services.
7.5 Trademarks: FathomÔ and other related marks are registered or unregistered trademarks of Fathom or its licensors. Customer does not have any license or right to use any of those trademarks.
7.6 Reservation of Rights: All rights not expressly granted by a Party under these Terms of Service are reserved to the Party.
8. Other Matters
8.1 General Representations/Warranties of Customer: Customer represents and warrants to Fathom that Customer has the right, power, capacity and authority to lawfully enter into these Terms of Service and lawfully perform Customer’s obligations and exercise Customer’s rights under these Terms of Service.
8.2 Technical Requirements: Customer is solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all Fathom Devices, Beacons and other equipment (including mobile computing devices and personal computers), software and services (including Internet access) necessary for the use of Services (including transmission of data to and from Fathom Control and related Fathom Systems) by or on behalf of Customer and Authorized Users.
8.3 Notifications: Customer will promptly notify Fathom if Customer or any Authorized User: (a) knows of or suspects any unauthorized access to or use of a Service; or (b) becomes aware of a complaint, claim or allegation by any other person arising from, connected with or relating to a Service or the use of a Service by or on behalf of Customer, and on request by Fathom Customer will cooperate with and assist Fathom to investigate and respond to the complaint, claim or allegation (as applicable).
9.1 General Disclaimer: To the maximum extent permitted by applicable law, Services and Documentation are provided “as is”, “as available” and “with all faults”, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, including any representations, warranties, conditions or guarantees of or relating to durability, fitness for a particular purpose, merchantability, non-infringement, performance, quality, results, suitability, timeliness, title or workmanlike effort, all of which are hereby disclaimed by Fathom to the fullest extent permitted by applicable law. Customer is solely responsible and liable for the selection and use of Services to achieve intended results.
9.2 Data Disclaimer: Customer is solely responsible for the use of Customer Data and Fathom Analytics by or on behalf of Customer. Customer use Customer Data and Fathom Analytics at Customer’s own risk. Customer is solely responsible and liable for, and bears all risks and liabilities associated with, Customer Data and Fathom Analytics, including the accuracy, quality, integrity, legality, reliability, suitability and timeliness of Customer Data and Fathom Analytics. Fathom is not responsible or liable for the deletion, correction, destruction, damage, loss of or failure to store any Customer Data or Fathom Analytics. Fathom makes no representation, warranty, condition or guarantee of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, regarding Customer Data or Fathom Analytics, and disclaims any and all responsibility and liability for Customer Data and Fathom Analytics to the fullest extent permitted by law.
9.3 Security Disclaimer: Customer acknowledges that security measures used by Fathom might not protect a Fathom System or data (including Customer Data and Fathom Analytics) stored in the Fathom System against unauthorized access, use or disclosure. Fathom is not responsible or liable for any unauthorized access to, or use, alteration, theft or destruction of, a Fathom System or any data (including Customer Data and Fathom Analytics) stored in the Fathom System, whether through accident, fraudulent means or devices, or any other method. Fathom is not required to verify the actual identity or authority of any person using Credentials, and Fathom may act on any communication that is given with the use of Credentials.
9.4 Technology Disclaimer: Customer acknowledges that Services might be affected by circumstances beyond Fathom’s control, might not be continuous, uninterrupted or secure, and are subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Fathom is not responsible or liable for any delays, failures or any damage or loss resulting from any of those problems.
9.5 No High Risk Use: Services, Customer Data and Fathom Analytics are not fault-tolerant and are not designed or intended for use in any situation where failure or fault of any kind could lead to death or serious bodily injury or to severe physical or environmental damage (“High Risk Use”), including the operation of nuclear or chemical facilities, aircraft or other modes of human mass transportation, aircraft navigation or communication systems, air traffic control systems, weapons systems, life-support machines, or Class III medical devices under the United States Federal Food, Drug and Cosmetic Act. High Risk Use is strictly prohibited, and Customer and Authorized Users will not use Services or Fathom Analytics in, or in connection or conjunction with, any High Risk Use.
10. Liability Exclusions/Limitations and Indemnity
10.1 Exclusions/Limitations: Notwithstanding any other provision of these Terms of Service, and to the maximum extent permitted by applicable law:
(a) Exclusions: Fathom Group’s liability (if any) to Customer Group arising from, connected with or relating to these Terms of Service or to Services, Documentation, Customer Data and Fathom Analytics is limited to direct damages suffered by Customer only, and in no event and under no circumstances will Fathom Group be liable to Customer Group or any other person for any indirect, incidental, consequential, special, punitive or exemplary loss or damage, or any loss of data, loss of information, loss of business, loss of markets, loss of savings, loss of income, loss of profits, loss of use, loss of production or loss of goodwill, anticipated or otherwise;
(b) Limitations: in no event and under no circumstances will Fathom Group’s total aggregate liability to Customer Group arising from, connected with or relating to these Terms of Service or to Services, Documentation, Customer Data or Fathom Analytics ever exceed the total amount of fees actually paid by Customer to Fathom for Fathom Control during the three (3) months immediately before the date on which the liability arose; and
(c) Application: this section 10.1 applies to liability under any theory (including contract, tort, strict liability and statutory liability), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by Fathom Group or any person for whom Fathom is responsible, even if other remedies are not available or do not adequately compensate for the loss or damage, even if Fathom Group knows or ought to have known of the possibility of the potential loss or damage being incurred, and regardless of whether or not the loss or damage was foreseeable.
10.2 Indemnity: Customer will defend, indemnify and hold harmless Fathom Group from and against any and all claims, complaints, demands, actions, suits and proceedings by any person, including a regulatory authority (each a “Third Party Claim/Proceeding”) and all resulting liabilities and obligations (including damages, administrative monetary penalties, financial sanctions, settlement payments, expenses and costs, including lawyer’s fees) arising from, connected with or relating to: (a) the use by or on behalf of Customer or an Authorized User of a Service, Documentation, Customer Data or Fathom Analytics; or (b) any negligence, misconduct or breach of these Terms of Service, or any actual or alleged violation of any applicable law (including privacy or personal information protection laws) or infringement of any rights, by or on behalf of Customer Group or any other person for whom Customer is responsible under these Terms of Service or at law. Notwithstanding the foregoing in this section 10.2, Fathom Group retains the right to participate (with counsel of their own selection at their sole cost and expense) in the defense of and settlement negotiations relating to any Third Party Claim/Proceeding.
10.3 Definitions: In this section 10: (a) “Fathom Group” means Fathom and Fathom’s affiliates and their respective suppliers, service providers, licensors and Representatives; and (b) “Customer Group” means Customer and its Representatives (including Authorized Users).
10.4 Acknowledgement: The Parties acknowledge and agree that the allocation of risk set out in these Terms of Service is an essential part of the bargain between the Parties, a controlling factor in setting the fees payable by Customer for Services, and an inducement to the Parties to enter into these Terms of Service.
11. Term and Termination
11.1 Terms of Service: These Terms of Service as they apply to a Subscription and related Services will commence when the Subscription begins and will continue in full force and effect until the Subscription expires or is cancelled or terminated in accordance with these Terms of Service. On termination of these Terms of Service, each Party will remain responsible and liable for all obligations and liabilities arising prior to the termination of these Terms of Service.
11.2 Termination of Service: If Customer breaches these Terms of Service, then Fathom in its discretion may suspend or terminate any or all Services effective immediately on notice to Customer. On expiration, cancellation or termination of a Service, Customer and all Authorized Users will no longer access or use the Service.
11.3 Survival: Notwithstanding any other provision of these Terms of Service, each of sections 2.5, 2.7(b), 4.4, 4.5, 4.7, 5, 6, 7, 9, 10, 11.3 and 12, and all other provisions necessary to the interpretation or enforcement of those sections, will survive the expiration or termination of these Terms of Service and will remain in full force and effect and be binding on the Parties as applicable.
12.1 Publicity: Fathom may include Customer’s name in any published list or directory of Fathom’s customers (including on Fathom’s website).
12.2 Notices: Unless these Terms of Service expressly states otherwise: (a) Fathom may deliver invoices, payment confirmations and notices to Customer by email, facsimile or courier delivery to Customer’s addresses on record in Customer’s file with Fathom or by message posted to the Fathom Control account of any Administrator; and (b) Customer will give all notices to Fathom under these Terms of Service in writing delivered to Fathom by email to email@example.com.
12.3 Governing Law: These Terms of Service and the subject matter of these Terms of Service and all related matters will be governed by, and construed in accordance with, the laws of the Province of British Columbia and the laws of Canada applicable in British Columbia, excluding any laws that implement the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code or the Uniform Computer Information Transactions Act, and excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws.
12.4 Disputes: All disputes, controversies and claims arising under, out of, in connection with, or in relation to these Terms of Service or any related matter will be referred to and finally resolved by binding arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules. The number of arbitrators will be one. The place of arbitration will be Vancouver, British Columbia. The language of the arbitration will be the English language. If ICDR Canada is not operative, the arbitration will proceed ad hoc and be governed by the Arbitration Act (British Columbia). Notwithstanding the foregoing in this section 12.4, either Party may seek preliminary or temporary injunctive relief and other remedies from the Supreme Court of British Columbia sitting in Vancouver, British Columbia to avoid irreparable harm or to preserve the status quo, and the Parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of that court in respect of all of those matters and all other matters that are not properly subject to arbitration.
12.5 U.S. Government: If Customer is a branch or agency of the United States Government, then this section 12.5 applies. Services and Documentation are “Commercial Items”, as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as those terms are used 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. §227.7202-1 through 227.7202-4, as applicable, Services and Documentation are made available to U.S. Government agencies and end users with only the rights granted to other end users, according to the terms and conditions set out and referenced in these Terms of Service. Contractor/manufacturer is Fathom, an operating division of Rx Networks Inc., 1201 West Pender Street, Suite 800, Vancouver, British Columbia, Canada, V6E 2V2.
12.6 Interpretation: In these Terms of Service: (a) a reference to “these Terms of Service” refers to these Terms of Service as a whole, and not just to the particular provision in which those words appear; (b) headings are for reference only and do not define, limit or enlarge the scope or meaning of these Terms of Service or any provision of these Terms of Service; (c) words importing the singular number only include the plural and vice versa; (d) reference to a day, week, month, quarter or year, means a calendar day, week, month, quarter or year, unless expressly stated otherwise; (e) reference to currency is to the lawful money of the United States of America, unless expressly stated otherwise; (f) “person” includes an individual (natural person), corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (g) “including” or “includes” means including or includes (as applicable) without limitation or restriction; (h) “discretion” mean a person’s sole, absolute and unfettered discretion; and (i) “law” includes common law, equity, statutes and regulations, and reference to a specific statute includes all regulations made under the statute and all amendments to, or replacements of, the statute or any regulation in force from time to time, as applicable.
12.7 Force Majeure: Notwithstanding any other provision of these Terms of Service, Fathom will not be liable for any delay in performing or failure to perform any of Fathom’s obligations under these Terms of Service to the extent performance is delayed or prevented due to a cause or circumstance that is beyond Fathom’s reasonable control, any delay or failure of that kind will be deemed not a breach of these Terms of Service by Fathom and the time for Fathom’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
12.8 Miscellaneous: The Parties are non-exclusive, independent contracting parties, and nothing in these Terms of Service or done pursuant to these Terms of Service will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties. These Terms of Service is binding on and will enure to the benefit of the Parties and their respective successors and permitted assigns. Customer may not assign a Subscription or these Terms of Service without Fathom’s express, prior, discretionary written consent. Fathom in its discretion may assign these Terms of Service. If a provision of these Terms of Service is held by a court or arbitrator to be invalid or unenforceable for any reason, then the provision will be deemed severed from these Terms of Service and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance these Terms of Service would fail in its essential purpose. If Fathom’s consent or approval is required under these Terms of Service, then Fathom in its discretion may withhold the consent or approval unless these Terms of Service expressly specifies otherwise. No consent or waiver by Fathom to or of a breach of these Terms of Service by Customer will be effective unless in writing and signed by Fathom. Except as expressly set out in these Terms of Service, Fathom’s rights and remedies under these Terms of Service are cumulative and not exclusive of any other rights or remedies to which Fathom may be entitled under these Terms of Service or at law, and Fathom is entitled to pursue all of its rights and remedies concurrently, consecutively and alternatively. The Parties have expressly requested and required that these Terms of Service and all related documents be written in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s'y rapportent soient rédigés en Anglais. If a document relating to these Terms of Service requires the signature of both Parties, then the document may be signed and delivered (including by facsimile transmission or by email in PDF or similar secure format) in counterparts, and each signed and delivered counterpart will be deemed an original, and both counterparts will together constitute one and the same document. These Terms of Service may not be amended except by a written document that expressly states that it is an amendment to these Terms of Service and that is signed by both Parties or their respective successors or permitted assigns.
12.9 Entire Agreement: These Terms of Service sets out the complete agreement between the Parties with respect to the subject matter of these Terms of Service, and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of these Terms of Service. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties regarding the subject matter of these Terms of Service other than as expressly set out or referenced in these Terms of Service. Purchase orders and other documents issued by Customer and accepted by Fathom in connection with these Terms of Service are for administrative convenience only, and the terms and conditions contained in those documents are of no force or effect and do not in any way amend the terms and conditions of these Terms of Service.
a copy of this document is also available in pdf form below.