This Fathym Terms of Service form an agreement (this “Agreement”) made between Fathym, Inc. (“Fathym”) and you, or if you represent an entity or other organization, that entity or organization (in either case “you”).
Fathym provides data and app solutions through Fathym sensors, third party sensors and Smart Hubs, including WeatherCloud, a wholly-owned subsidiary of Fathym, (the “Products”), Fathym’s website located at www.Fathym.com, community.fathym.com, and any other websites operated by Fathym (the “Site”), the mobile and other software applications provided by and on behalf of Fathym (each, an “Application”), and the services provided through the Fathym Products, Site, and Applications (the “Services”). All access to and use of the Fathym Products, Site, and Applications, and Services (together, the “Fathym Platform”) is subject to the terms of this Agreement.
Before accessing or using any portion of the Fathym Platform, you are required to agree to the terms of this Agreement. PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING ANY PORTION OF THE FATHYM PLATFORM OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, FATHYM IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR — USE OF THE FATHYM PLATFORM AND YOU MUST NOT ACCESS OR — USE THE FATHYM PLATFORM.
Unless you later enter into any other agreements with Fathym regarding the Fathym Platform, this Agreement is the complete and exclusive agreement between you and Fathym regarding your access to and use of the Fathym Platform. This Agreement supersedes any prior agreement or proposal, oral or written, and any other communications between you and Fathym relating to the Fathym Platform.
The Fathym Platform is not available to individuals under the age of 13 or who do not meet any of the other qualifications included in this Agreement. If you are under age 13, or do not meet the qualifications in this Agreement, please do not attempt to access or use the Fathym Platform. If you are 13 or older but younger than 18, then you may access and use the Fathym Platform only if your parent or guardian accepts this Agreement on your behalf. If you are a parent or guardian entering this Agreement for the benefit of a child age 13 or older but under 18, then you agree you will be solely responsible for all access to and use of the Fathym Platform.
This Agreement is entered into as of the earlier of the date you first download or install any Application or first access or use any other portion of the Fathym Platform (the “Effective Date”) and will continue until terminated as set forth herein.
Fathym is constantly improving our Services and the Fathym Platform, and that means that sometimes we have to change the legal terms under which our Fathym Platform is offered. If we make changes that are material, we will let you know by posting that change on the Fathym Platform, or by sending you an email or other communication. If you disagree with our changes, then you should stop using the Fathym Platform. You will be deemed to have agreed to any modification to the Fathym Platform or the Agreement through your continued use of the Fathym Platform following such notice.
You may be required to establish a user account (an “Account”) to access portions of the functionality of the Products or portions of the Sites, Applications, or Services. Approval of your request to establish an Account will be at the sole discretion of Fathym. In connection with establishing an Account, you will be asked to submit certain information about yourself (“Registration Information”). You agree that: (1) all Registration Information you provide will be true and complete; and (2) you will maintain and promptly update your Registration Information to keep it accurate and current. You may not: (a) select or use an Account of another person with the intent to impersonate that person; (b) use an Account that Fathym, in its sole discretion, deems offensive; or (c) use your Account in any way that is likely to cause Fathym liability. You are solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software, equipment, and Internet connectivity necessary for you to connect to, access, and use the Fathym Platform.
- Account IDs
Each Account and the user identification and password for each Account (the “Account ID”) is personal in nature. Each Account is for your personal use and each Account ID may be used only by you or, if you are an organization, by an individual employee within your organization. You may not distribute or transfer your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are responsible for maintaining the security of your Account, and you are fully responsible for all activities that occur under your Account. You will ensure the security and confidentiality of your Account ID and will notify Fathym immediately of any unauthorized uses of your Account or any other breaches of security. You are fully responsible for all costs, fees, liabilities or damages incurred through the use of your Account or under any Account ID (whether lawful or unlawful) and that any transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by you. Fathym will not be liable for the foregoing obligations or the failure by you to fulfill those obligations.
- To Fathym Products
Sensors may be connected to a telecom service (the Smart Hub), which is used to send your Content to Fathym. By installing and using the Fathym Products, you agree to the subscription agreement, data plan, and service provider as laid out in your Purchase Agreement for such Fathym Products. Fathym Products are covered under the Product’s Limited Warranty. Fathym Products are non-transferable, and only meant for the vehicles applicable under the Purchase Agreement. Subject to this Agreement and any Purchase Agreement accompanying the Products, Fathym will provide you with a limited right to access and use the Site, Applications, and Services through the Products. All access to and use of any firmware, software, or other Technology (as defined below) included in, installed on, or incorporated into the Products is subject to the terms of this Agreement and may be used solely as installed on the Products in connection with the normal operation of the Products. Fathym reserves the right to access the Products or any other portion of the Fathym Platform as needed to update, upgrade, or modify the firmware or other software installed on, or incorporated into the Products. By using the Products, you agree to such updates. Products should only be installed by a trained professional or following the Fathym installation guide. Fathym is not responsible for any issues that may arise from incorrect Product installation.
- To Sites and Services
Subject to this Agreement, during the term of this Agreement, Fathym will provide you with a limited right to access and use the Site and Services under this Agreement. If you have purchased Fathym Products under a Purchase Agreement, all access to the Site and all Services will be solely by you for your own use in connection with your use of and access to the Products that you have purchased under a Purchase Agreement. If you are an entity or other organization, then your employees and contractors may also use the Site and Services on your behalf in connection with your internal business purposes. Your rights to access and use the Site and Services is non-exclusive, non-transferable, and non-sublicensable. Fathym offers a variety of upgraded hosting, support, and consulting Services under the terms and conditions for each such service. By signing up for an upgraded Service account, you agree to abide by such additional terms and conditions in addition to this Agreement.
- To Applications
The Products may come pre-loaded with a proprietary Fathym Application. If you have obtained a Smart Hub without a Fathym Application pre-loaded, you are responsible for sending the Smart Hub to Fathym for Application installation or downloading the Application on your own. Subject to your compliance with this Agreement and any other terms and conditions accompanying each Application, Fathym will permit you to download and install Applications and operate those Applications solely for the purpose of using and accessing the Smart Hub, Sites, and Services as intended by Fathym. Fathym is not responsible for any errors or damage that may arise by installing an Application on your own. The Application connects to the Fathym Products, and may provide you with alerts and notifications. You may only use Applications for your own personal and non-commercial purposes in accordance with this Agreement and any applicable terms and conditions accompanying the Application or otherwise provided to you by Fathym. Except as expressly set forth in the previous sentence, you are granted no licenses or other rights in or to any Application or any IPR (as defined below) therein or related thereto. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement you are required to agree to before being given access to any Application.
- To Alerts and Notifications
You may sign up for custom alerts and notifications through the Fathym Platform based on your data. Fathym does its best to ensure that alerts and notifications operate as expected and with full accuracy, but it cannot guarantee performance. These alerts and notifications should not replace common sense or other life-saving warnings.
- To Other Users
You may be permitted to link, connect, and otherwise communicate with other users and third parties through the Fathym Platform. By linking, connecting, or communicating with other users or third parties, you are agreeing to allow those users to communicate directly with you through the Fathym Platform. You are solely responsible for all communications between you and any other user or third party through the Fathym Platform. Your extension or acceptance of a link, connection or other communication with another user or other third party will serve as your affirmative “opt in” to the disclosure by Fathym of any data, information, or content (which may include your personally identifiable information) that communicate to that user or third party.
- To Third-Party Services
The Fathym Platform may provide you with the choice to access services developed, provided, or maintained by third-party service providers of Fathym (“Third Party Services”). Unless otherwise stated in this Agreement, Fathym has no control over, is not responsible for, and does not provide support for, any Third Party Services. In addition to the terms of this Agreement, your access to and use of any Third Party Service is also subject to any other agreement you may agree to before being given access to the Third Party Service (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement (which may include payment of additional fees) will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement but will not apply to any other Services provided by Fathym that you may access through the Fathym Platform. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement.
The Fathym Platform and the software, firmware, hardware, databases, and other technology used by or on behalf of Fathym to provide the Products, Site, and Applications and their structure, organization, coordination, and underlying data, information, and source code (collectively, the “Technology”) constitute valuable IPR of Fathym. You will not, and will not permit any third party to: (1) access or use the Fathym Platform or Technology, in whole or in part, except as expressly provided in this Agreement; (2) use the Fathym Platform or Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts or other automated means to collect information from or otherwise access or interact with the Fathym Platform or Technology; (4) alter, modify, reproduce, create derivative works of the Fathym Platform or Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Fathym Platform or Technology; (6) provide the Services, or use the Fathym Platform to provide services, to third parties or otherwise make the Technology or access thereto available to any third party, except as expressly permitted under this Agreement; (7) disassemble, reverse engineer, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Fathym Platform or Technology; (8) access or attempt to access the Fathym Platform other than through the interfaces provided by Fathym; (9) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (10) alter or misrepresent the identification of the origin of any Content transmitted through the Fathym Platform; or (11) interfere in any manner with the operation or hosting of the Fathym Platform or Technology, or attempt to gain unauthorized access to the Fathym Platform or Technology. You will not allow any access to or use of the Technology except consistent with the terms, conditions and restrictions set forth in this Agreement.
- Payment and Renewal
- General Terms
In addition to the Applications, Services, and Content available for no charge as part of the Fathym Platform and your Purchase Order, you may be offered the opportunity to purchase, subscribe to, or otherwise obtain access to certain upgraded Applications, Services, or Content or other products or services through the Fathym Platform for an additional fee (any such upgraded Applications, Services, or Content, an “Upgrade”). Any purchase or other transaction of an Upgrade through the Fathym Platform will be subject to any terms and conditions displayed or provided through the Fathym Platform in connection with the purchase or transaction of an Upgrade in addition to the terms of this Agreement and will cover the use of that Upgrade for a monthly or annual subscription period as indicated. Unless otherwise indicated through the Fathym Platform in connection with a purchase or transaction of an Upgrade, purchases or other transactions made by you through the Solution cannot be exchanged and any fees or charges in connection with those purchases or transactions are non-refundable. All information that you provide in connection with a purchase or other transaction through the Fathym Platform will be accurate complete and current. You authorize Fathym (or a company chosen to act on behalf of Fathym) to charge the credit card, debit card, mobile services account, or other payment method provided in connection with any purchase or other transaction made through your Account or otherwise made by you through the Fathym Platform and agree to honor all charges incurred in connection with any such transaction.
- Automatic Renewal
Unless you notify Fathym before the end of the applicable subscription period that you want to cancel an Upgrade, your Upgrade subscription will automatically renew and you authorize Fathym to collect the then-applicable annual or monthly subscription fee for such Upgrade (as well as any taxes) using any credit card or other payment mechanism we have on record for you.
You may terminate this Agreement at any time upon notice to Fathym. Any such notice will be effective upon actual receipt by Fathym. Fathym may terminate your access to all or any part of the Fathym Platform at any time, with or without cause, with or without notice, effective immediately. Fathym may also terminate this Agreement upon notice to you if Fathym, in its sole discretion, ceases to make any portion of the Fathym Platform generally commercially available. Upon termination of this Agreement for any reason: (1) all rights and subscriptions granted to you under this Agreement will terminate; (2) you will immediately cease all use of and access to the Fathym Platform and all Fathym Content; (3) you will cease use of and delete all Account IDs or Content in your possession or control; and (4) all amounts then owed by you (if any) under this Agreement will become immediately due and payable. Termination of this Agreement will not affect your ownership of any Fathym Products or any other products purchased from Fathym. The following Sections will survive any termination of this Agreement for any reason: 6 (Restrictions), 7 (Payment and Renewal), 8 (Termination), 9 (Suspension); 10 (Intellectual Property Rights and Ownership), 11 (Content); 12 (Data Privacy); 13 (Linked Sites); 13 (Disclaimer), 14 (Indemnity), 15 (Limitation on Liability), 16 (Data Privacy), 18 (Notices), 20 (Governing Law), 21 (Arbitration), and 22 (Additional Terms).
Without limiting Fathym’s right to terminate this Agreement, Fathym may also immediately and indefinitely suspend your access to the Fathym Platform, with or without notice to you, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by Fathym to be inappropriate or detrimental or harmful to the Fathym Platform or Technology or to Fathym, any other Fathym user, or any other third party.
- Intellectual Property Rights and Ownership
This Agreement does not transfer from Fathym to you any aspects of the Fathym Platform or IPR (as defined below), and all right, title and interest, including, without limitation, all IPR, in and to the Fathym Platform, Fathym Content, Technology, and any additions, improvements, updates, and modifications thereto will remain (as between the parties) solely with Fathym. You acknowledge that you are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to you to use them apart from the rights granted under this Agreement. Fathym, Fathym.co, Fathym.com, the Fathym and Fathym logos, and all other trademarks, service marks, graphics, and logos used in connection with Fathym or the Fathym Platform are trademarks or registered trademarks of Fathym, Fathym’s parent entity, or Fathym’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Fathym Platform may be the trademarks of other third parties. Your use of the Fathym Platform grants you no right or license to reproduce or otherwise use any Fathym or third-party trademarks. For purposes of this Agreement, “IPR” means any and all intellectual property and proprietary rights and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights in data and databases, and contract rights.
- Your Content
- Your Content Dashboard
You may use the Fathym Platform to create, organize, and configure Your Content in a dashboard, provided through the Fathym Platform, that contains functionality such as Abilities, Views, Catalog Parts, Rules, Roles, Permissions, or other functionality (the, “Your Content Dashboard“). Your Content Dashboard is linked to your Account. You are responsible for maintaining the security of your Account and Your Content Dashboard, and you are fully responsible for all activities that occur under your Account and any other actions taken in connection with Your Content Dashboard. You must not describe or assign keywords to Your Content Dashboard in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Fathym may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Fathym liability. Fathym reserves the right to display advertisements on Your Content Dashboard unless you have purchased an Upgrade, such as a Custom App Solution, an Ad-free, or a Premium/Enterprise Services Account. Fathym reserves the right to display attribution links such as ‘Powered by Fathym’ or ‘Powered by Fathym’ in Your Data Dashboard. Footer credits and the Fathym.co toolbar may not be removed, regardless of Upgrades purchased.
- Fathym Content
Other than Your Content, all Content accessible through the Fathym Platform (“Fathym Content”) is owned by Fathym or any user or third party providing the Fathym Content. All Fathym Content is for informational purposes only. Fathym has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Fathym Content. You are solely responsible for your use of, or reliance on, any Fathym Content. Subject to this Agreement, you may access the Fathym Content solely for Your own personal and noncommercial purposes in connection with your own use of the Fathym Platform. You are granted no other licenses or rights in or to any Fathym Content. You will not, and will not permit any third party to: (1) alter, modify, reproduce, or create derivative works of any Fathym Content; (2) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Fathym Content; or (3) alter, obscure, or remove any copyright, trademark or any other notices that are provided on or in connection with any Fathym Content. Certain of the Fathym Content may include or be based on Content from third party providers (“Third Party Content”). Fathym has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Fathym Platform. By operating the Fathym Platform, Fathym does not represent or imply that it endorses any Content, or that it believes such Content is accurate, useful, or non-harmful. Without limiting the foregoing, Fathym will not be held liable to you or any other third party for any Content, including Your Content (as defined below), under a Federal Law called the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement, you are granted no licenses or other rights in or to any Fathym Content, or any IPR (as defined below) therein or related thereto. Fathym disclaims any responsibility for any harm resulting from your use of the Fathym Content.
- Data Privacy
- Linked Sites
Fathym has not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which the Fathym Platform links, and that link to the Fathym Platform. Fathym does not have any control over those non-Fathym websites, web pages, applications, or data, and is not responsible for their contents or their use. By linking to a non-Fathym application, data set or website, Fathym does not represent or imply that it endorses such application, data set or website. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Fathym disclaims any responsibility for any harm resulting from your use of non-Fathym applications, data sets, or websites.
All notices required to be provided to Fathym under this Agreement will be provided by you in writing and shall be delivered by hand, certified U.S. mail (return receipt requested), or overnight delivery service (with confirmation of receipt) to Fathym, 1942 Broadway, Boulder, CO 80302, or the address for Fathym set forth on the Site. All notices and other communications provided to you may be provided by Fathym by email to the email address Fathym maintains on file for you or to any other mailing address you have provided to Fathym. All notices will be deemed to have been received by the addressee upon confirmed receipt or, as applicable, within 24 hours after Fathym sends notice by email to you.
- Copyright Infringement and DMCA Policy
We respect the intellectual property rights of others and ask that you do too. If you believe in good faith that your copyrighted work has been reproduced on the Fathym Platform without your authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by sending an e-mail to email@example.com.
Please provide the following information to Fathym’s copyright infringement agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) your name, address, daytime phone number, and email address, if available; (3) a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and (5) your electronic or physical signature. Fathym reserves the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers.
- Domain Names
If you are registering a domain name or using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (ICANN), including their Registration Rights and Responsibilities.
- General Representation and Warranty
- Disclaimer of Warranties
THE FATHYM PLATFORM (INCLUDING THE PRODUCTS, SITES, APPLICATIONS, SERVICES, TECHNOLOGY, AND ALL CONTENT) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND FATHYM AND ITS THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM, AND YOU DISCLAIM ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO FATHYM OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FATHYM DOES NOT REPRESENT OR WARRANT THAT: (1) THE FATHYM PLATFORM WILL MEET YOUR REQUIREMENTS; (2) THE FATHYM PLATFORM WILL BE ERROR-FREE, TIMELY OR UNINTERRUPTED; OR (3) THE RESULTS OBTAINED FROM THE — USE OF THE FATHYM PLATFORM WILL BE ACCURATE OR RELIABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FATHYM, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.YOU RECOGNIZE THAT THE FATHYM PLATFORM AND ALL SERVICES AND CONTENT PROVIDED THROUGH THE FATHYM PLATFORM ARE NOT BUILT FOR ERROR-FREE ACCESS AND THAT INTERRUPTIONS, CRASHES, DOWNTIME, DELAYS, AND LATENCY MAY OCCUR FROM TIME TO TIME. THE PLATFORM IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR — USE FOR OR WITH REAL-TIME ROUTE GUIDANCE (INCLUDING WITHOUT LIMITATION, TURN-BY-TURN ROUTE GUIDANCE AND OTHER ROUTING THAT IS ENABLED THROUGH THE — USE OF A GPS OR OTHER SENSOR), NAVIGATION OR COMMUNICATIONS SYSTEMS, TRAFFIC CONTROL SYSTEMS, OR FOR OR IN CONNECTION WITH ANY SYSTEMS OF FUNCTIONS FOR AUTOMATIC OR AUTONOMOUS CONTROL OF VEHICLE BEHAVIOR, WHERE THE FAILURE OF THE PLATFORM COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. YOU ASSUME ALL RISK OF — USE OF THE FATHYM PLATFORM IN SUCH APPLICATIONS AND FATHYM PLATFORM AND ITS SUPPLIERS DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY AND ALL DAMAGES THAT MAY BE INCURRED DUE TO THE — USE OF THE FATHYM PLATFORM IN SUCH APPLICATIONS.
You hereby agree to indemnify, defend, and hold harmless Fathym and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and against all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (1) your access to or use of the Fathym Platform, including any Content or Services; (2) Your Content, Your Content Dashboard, or any access to or use thereof; (3) any access to or use of Your Content or Your Content Dashboard by any other users or third party; (4) your collection, use, and disclosure of any Fathym Content, and (5) your breach of any provision of this Agreement, including any representation or warranty. Fathym will provide you with notice of any such claim or allegation, and Fathym will have the right to participate in the defense of any such claim at its expense.
- Limitation of Liability
FATHYM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CA– USED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE — USE OF THE FATHYM PLATFORM, CONTENT OR SERVICES, EVEN IF FATHYM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT OR YOUR CONTENT DASHBOARD, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES. FATHYM’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS AGREEMENT OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $10 OR, IN THE CASE OF YOU HAVE PAID FEES TO FATHYM TO ACCESS THE FATHYM PLATFORM OR ANY APPLICATIONS, SERVICES, OR CONTENT, THE AMOUNTS PAID BY YOU TO FATHYM IN THE 3-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO ANY LIABILITY. YOU AGREE THAT FATHYM WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FATHYM’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
This Agreement was originally written in English (US). Fathym may translate this Agreement into other languages. In the event of a conflict between a translated version of this Agreement and the English version, the English version will control.
Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Fathym in Denver, Colorado U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
- Governing Law
The interpretation of the rights and obligations of the parties under this Agreement, and any negotiations, arbitrations or other legal proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado. Subject to Section 22 (Arbitration), each party agrees that it will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court in Denver, Colorado. You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Fathym.
Fathym will not be responsible for any failure to provide any Services or any access to or use of any other portions of the Fathym Solution, Your Content, or Your Content Dashboard due to the actions of any third party provider or any other reason beyond Fathym’s reasonable control. Except as expressly set forth in this Agreement, this Agreement will exclusively govern your access to and use of the Fathym Platform and constitutes the entire agreement between Fathym and you concerning the subject matter hereof. This Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Except as expressly set forth in this Agreement, this Agreement may be modified by a written amendment signed by an authorized executive of Fathym. All waivers under this Agreement must be in writing. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. With Fathym’s consent, you may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Fathym may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The parties hereto are independent parties, not agents, employees, or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all any Products and any other hardware, software, and other equipment as may be necessary for you to connect to, access, and use the Fathym Platform.
This Terms of Service was last updated on: August 24, 2015.