Terms of Service

Thank you for choosing Fathym!

PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING ANY FATHYM PRODUCT OR SERVICE. BY USING ANY FATHYM PRODUCT OR SERVICE YOU HAVE ACCEPTED THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, DO NOT USE ANY FATHYM PRODUCT OR SERVICE.

Fathym, Inc. (“Fathym”) is constantly improving our website, products and services (collectively, our “Products and Services”), and that means sometimes we have to change the legal terms under which our Products and Services are offered. Fathym may modify all or any part of these Terms of Service from time to time without notice to you; you should visit our website often so you are aware of your current rights and responsibilities. If you previously entered into a prior version of terms of services, those terms no longer apply. Your continued use of our Products and Services after changes to the Terms of Service have been published constitutes your binding acceptance of the updated Terms of Service. If at any time the Terms of Service are no longer acceptable to you, you should immediately cease all use of our Products and Services.

THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ THEM CAREFULLY.

1. SERVICE

Our website provides you with access to our Products and Services, as well as information, including but not limited to company details, industry insights and news, technological updates and access to Fathym’s blog. Fathym is under no obligation to provide such information, products and services to you. Unless explicitly stated otherwise, any new features that augment or enhance the current website, products and services shall be subject to these Terms of Service.

You acknowledge that Fathym may establish general practices and limits concerning use of our Products and Services. You further acknowledge that Fathym reserves the right to modify these general practices and limits from time to time. Fathym reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, our website (or any part thereof), or any products and services, with or without notice. You agree that Fathym shall not be liable to you or to any third party for any modification, suspension or discontinuance of our Products and Services.

2. ELIGIBILITY

You must be a human to use our Products and Services. Our Products and Services are not available to individuals under the age of thirteen (13) or who do not meet any of the other qualifications included in this agreement. If you are under age thirteen (13) or do not meet the qualifications in this agreement, do not attempt to access or use this website or any products and services. If you are age thirteen (13) or older but younger than age eighteen (18), then you may access and use our Products and Services 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 between age thirteen (13) and eighteen (18), then you agree you will be solely responsible for all access to and use of our Products and Services.

3. ACCOUNTS

An account represents an individual’s authorization to login to and use certain Products and Services. Organizations may establish accounts as shared workspaces for multiple users associated with a single entity. Subject to these Terms of Service, you retain ultimate administrative control over your account and the content within it, and the “owner” of an organization’s account has ultimate administrative control over that organization’s account and the content within it. If you are the owner of an organization’s account under these Terms of Service, we consider you responsible for the actions that are performed by any user through your organization’s account, and your organization is liable for any misuse by a user granted access to your organization’s account.

Fathym has the right to suspend or terminate your access to all or any part of our Products and Services at any time, with or without cause, with or without notice, effective immediately. Fathym reserves the right to refuse service to anyone for any reason at any time. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes and enforce our agreements. All provisions of this agreement which, by their nature, should survive termination will survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity and limitations of liability.

4. USER NAME

If you have an account, you agree to (i) provide Fathym with accurate, complete and up to date information; (ii) update your information to keep it accurate, current and complete; and (iii) comply with these Terms of Service. Failure to provide accurate information constitutes a breach of this agreement, which may result in immediate termination of your right to access our Products and Services.

You may not select a user name that impersonates someone else, is or may be illegal, or may be protected by trademark or other proprietary rights, is vulgar or offensive or may cause confusion. Fathym reserves the right to reject any user name in our sole discretion.

You agree not to sell or transfer your use of or access to any product or service or permit use to anyone else whose account was suspended or terminated through your user name or password. You are responsible for maintaining the confidentiality of your password and account and for all activity that occurs on your account. You agree to immediately notify Fathym of any unauthorized use of your account or any other breach of security. Fathym will not be liable for any loss you incur as a result of someone else using your password and account with or without your permission.

5. TRADEMARKS

The trademarks, logos and service marks (“Marks”) displayed on our Products and Services are the property of Fathym or other third parties. You are not permitted to use these Marks without the prior written consent of Fathym or such third party which may own the Mark.

6. COPYRIGHT

Fathym either owns the intellectual property rights in the HTML, text, images, audio, video, software or other content that is made available through our Products and Services or has obtained the permission of the owner of the intellectual property to make it available. Fathym strictly prohibits the redistribution or copying of any part of or content on our Products and Services without written permission from Fathym.

Fathym authorizes you to display on your computer, download and print pages from our website and our other Products and Services provided (a) the copyright notice appears on all such printouts, (b) the information will not be altered, (c) the content is only used for personal, educational and non-commercial use, and (d) you do not redistribute or copy the information to any other media. Fathym and its affiliates respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow our Procedure for Making Claims of Copyright Infringement below.

7. LINKING

Any links to other websites and resources are provided for convenience only. Fathym has not reviewed the linked websites and is not responsible for the content or availability of any linked websites. The inclusion of any link to a website does not imply endorsement by Fathym of the website or their entities, products or services.

8. RIGHTS IN CONTENT

Fathym does not claim ownership of any content, messages, text, files, images, photos, video, sounds, profiles, works of authorship or any other materials (“Content”) you submit via our Products and Services; however, by displaying, publishing and making available for download and use by others any Content, you give Fathym a perpetual, irrevocable, worldwide, royalty-free and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through our website. You agree that this license includes a right for Fathym to make such Content available to other companies, organizations or individuals with whom Fathym has relationships for the provision of services and to use such Content in connection with the provision of those services. You understand that Fathym may (a) transmit or distribute your Content over various public networks and in various media and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Fathym to take these actions. You confirm and warrant to Fathym that you have all the rights, power and authority necessary to grant the above license.

9. SOFTWARE USE

Any software that is made available to you to access or download from our website and our other Products and Services (“Software”) is the copyrighted work of Fathym and/or third parties. Your use of the Software is governed by the terms of the end user license agreement which accompanies or is included with the Software (“License Agreement”). You will not access or install any Software that is accompanied by or includes a License Agreement, unless you first agree to the terms of the License Agreement.

SOFTWARE IS WARRANTED, IF AT ALL, IN ACCORDANCE WITH THE TERMS OF THE LICENSE AGREEMENT. EXCEPT AS SET FORTH IN THE LICENSE AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.

10. THIRD PARTY SERVICES

Certain products or services, or portions thereof, may be provided by a third party or hosted on a third party platform (such as GitHub, npm, Azure or hardware and sensors). In order to use our Products and Services, you may be required to establish an account with the third party, in which case, you will be subject to the additional terms and conditions imposed by the third party. You confirm that you will abide by such terms and conditions, and you acknowledge that Fathym is not a party to those terms and conditions and these Terms of Service still apply. Fathym has no control over, is not responsible for and does not provide support for, any third party services.

11. DIGITAL PARTNER OF RECORD

If you are using Azure cloud management subscription services by Microsoft, and you use any Product or Service requiring Fathym to access Azure on your behalf, you must designate Fathym as your Digital Partner of Record (“DPOR”) granting us permission with the provider to help you design, build, deploy or manage the subscription service itself or a solution built on the subscription service. Fathym must be added as your DPOR each time a new subscription is sold, regardless of whether the service is new or existing. Only you can designate a DPOR for your subscriptions; this is not a task Fathym can do for you.

12. RULES OF CONDUCT

Your use of our Products and Services is subject to all applicable local, state, national and international laws and regulations, and you agree not to violate such laws and regulations. Any attempt by any person to deliberately damage our Products and Services is a violation of criminal and civil laws. Fathym reserves the right to seek damages from any such person to the fullest extent permitted by law.

In addition, you agree not to post or transmit through our Products and Services any material or content that violates or infringes in any way the rights of others or solicits, encourages or promotes the use of illegal substances or activities, which is unlawful, threatening, abusive, harassing, defamatory, libelous, derogatory, invasive of privacy or publicity rights, vulgar, obscene, bigoted or hateful, profane, scandalous, pornographic, indecent or otherwise objectionable, gives rise to civil or criminal liability or otherwise violates any applicable law. You may not engage in any activity on our Products and Services that restricts or inhibits any other user from using or enjoying our Products and Services by “hacking”, “cracking”, “spoofing” or defacing any portions of our Products and Services.

You may not post or transmit through our Products and Services advertising or commercial solicitations; promotional materials relating to website or online services which are competitive with Fathym and/or our Products and Services; software or other materials that contain viruses, worms, time bombs, Trojan horses or other harmful or disruptive components; political campaign materials; chain letters, mass mailings, spam mail, any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of our website or its contents, or any of our other Products and Services. You may not harvest or collect information about website visitors or users of our Products and Services without their express written consent.

Abuse or excessively frequent requests to our Products and Services via the API may result in the temporary or permanent suspension of your account’s access to the API. Fathym, in our sole discretion, will determine abuse or excessive usage of the API. Fathym may offer subscription-based access to our

API for those users who require high-throughput access or access that would result in resale of our Products and Services.

13. MONITORING

Fathym has the right, but not the obligation, to monitor the content of our website and our other Products and Services, to determine compliance with these Terms of Service and any other operating rules established by Fathym. Fathym has the right in our sole discretion to edit, refuse to post or remove any material submitted to or posted on our website or our other Products and Services that we find to be in violation of these Terms of Service or is otherwise objectionable. You are solely responsible for any information you post, transmit or otherwise make available. You acknowledge and agree that Fathym does not have any liability for any action or inaction with respect to any conduct, communication or posting on our website or our other Products and Services.

14. GLOBAL AVAILABILITY

Fathym controls our website and our other Products and Services from our Boulder, Colorado U.S.A. offices. If you use our Products and Services from other locations you are responsible for compliance with applicable local laws. Fathym makes no representation that the products and services referenced herein are appropriate worldwide and informs you that certain products and services may not be available worldwide.

15. EXPORT CONTROL

By using our Products and Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods. You agree you will not export or re-export any goods or products unless you have complied with all applicable U.S. and foreign government export controls and approvals. Fathym makes no claim that content contained in our Products and Services is appropriate or may be downloaded outside the United States. If you access our Products and Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.

16. UNITED STATES GOVERNMENT END USERS

Our Products and Services are “Commercial items”, “Commercial computer software” and “Computer software documentation” as defined by the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS, 227.7202-1 through 227.7202-4 and their successors, the U.S. Government acquires our Products and Services subject to the terms of this agreement.

17. INDEMNIFICATION

Any person or corporation submitting content to our website or our other Products and Services agrees to defend, indemnify and hold Fathym and its parent, subsidiaries, affiliates, officers, directors, shareholders, predecessors, successors in interest, employees, agents and licensors harmless from and against any and all claims, losses, liabilities and expenses (including attorneys’ fees) related to or arising out of such submitted content, including without limitation claims made by third parties related to any false advertising claims; liability claims for products or services sold by the person or corporation

submitting such content; claims for patent, copyright or trademark infringement; and claims due to disruption or malfunction of services provided (pertaining to the submitted content), even if such content is reviewed by Fathym prior to publication.

18. DISCLAIMER

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (1) ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; (2) YOUR USE OF ALL PRODUCTS AND SERVICES IS AT YOUR OWN RISK; AND (3) FATHYM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT OR THE FATHYM PRODUCTS OR SERVICES AND FATHYM DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES IMPLIED BY THE COURSE OF DEALING OR USAGE OF TRADE. FATHYM AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, ACCURATE OR COMPLETE OR COMPLY WITH REGULATORY REQUIREMENTS; THAT FATHYM WILL CORRECT ANY ERRORS; THAT THE INFORMATION PROVIDED THROUGH THE PRODUCTS OR SERVICES IS ACCURATE, RELIABLE OR CORRECT; OR THAT OUR PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION OUR WEBSITE, ITS CONTENT, AND THE SERVER ON WHICH OUR WEBSITE AND CONTENT ARE AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

19. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FATHYM IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH OUR PRODUCTS AND SERVICES, EVEN IF FATHYM HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO THE USE OF OR THE INABILITY TO USE OUR PRODUCTS AND SERVICES; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM OUR PRODUCTS AND SERVICES; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE. TO THE EXTENT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.

20. PRIVACY

Refer to the Fathym Privacy Policy. https://fathym.com/privacy-policy/

21. GOVERNING LAW AND ARBITRATION

This agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado (U.S.A.), without regard to or application of conflicts of law rules or principles. Any controversy, dispute or claim relating to our Products and Services and/or these Terms of Service shall be exclusively resolved by binding arbitration conducted at a site specified by Fathym in Denver, Colorado (U.S.A.), in the English language, in accordance with the rules of the American Arbitration Association. If you file for arbitration, you shall be solely responsible for any fees in connection with such filing.

Subject to the provisions for arbitration herein, the Federal and State Courts having jurisdiction over matters arising in Denver, Colorado (U.S.A.) will have sole and exclusive jurisdiction over any disputes arising under or relating to this agreement, and you irrevocably submit to the personal jurisdiction of such courts. No claim or action, regardless of form, arising out of this agreement may be brought by you more than one (1) year after your first became aware, or reasonably should have been aware, of the basis for the claim. TO THE FULLEST EXTENT PERMITTED, YOU WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply, even if adopted as part of the laws of the State of Colorado.

22. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

Fathym respects the copyright of others, and we ask our users to do the same. To file a notice of copyright infringement, please provide the following information to the Fathym-designated address listed below:

1) a description of the copyrighted work that you claim has been infringed;

2) a description of where the material that you claim is infringing is located on our Products and Services;

3) your address, telephone number and email address;

4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;

5) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and

6) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright. By mail: Fathym, Inc. PO Box 3007

Boulder, Colorado 80307 USA

By email: legal@fathym.com

23. MISCELLANEOUS

This agreement shall be interpreted in English (U.S.). You may translate this agreement into other languages. In the event of a conflict between any translated version of this agreement and the English version, the English version will control. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”

You may not assign this agreement; any attempted assignment will be deemed void and ineffective. Fathym’s delay or failure to exercise any rights under this agreement will not constitute or be deemed a waiver or forfeiture of such rights. This agreement is binding on you and Fathym and, other than as expressly provided in this agreement, nothing in this agreement grants any other person or entity any right, benefit or remedy. Your electronic signature will be effective to bind you to this agreement.

If any provision of this agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this agreement will remain in effect to the greatest extent permitted by law.

All notices under this agreement shall be in writing, in English. When you send a notice to Fathym (other than a notice of copyright infringement, as detailed above), such notice shall be deemed properly given when addressed to Fathym’s address as stated on our website and (1) delivered by personal delivery, (2) delivered by overnight courier service with signature required, or (4) mailed by first class U.S. mail with postage paid, return receipt requested. Fathym may send notices to you through our Products and Services or to any email address or physical address used by your account.

If you enter into a separate contractual relationship with Fathym, such as an Enterprise Agreement (and/or Order Form), with terms that are different from those described in these Terms of Service, the terms of that agreement will apply.

These Terms of Service were last updated on November 19, 2019.

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