License Agreement for Fathom Firmware (v180216)

License Agreement for Fathom™ Firmware

Last Updated: February 18, 2016.

 

PLEASE CAREFULLY READ THIS AGREEMENT. THIS AGREEMENT IS A BINDING CONTRACT BETWEEN FATHOM AND DEVICE OWNER (DEFINED BELOW) AND GOVERNS THE USE OF FATHOM™ FIRMWARE THAT IS PRE-INSTALLED ON CERTAIN FATHOM DEVICES AND CERTAIN UPDATES AND UPGRADES TO THE FIRMWARE MADE AVAILABLE BY FATHOM. THIS AGREEMENT EXEMPTS FATHOM AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, SPECIFIES THE JURISDICTION FOR RESOLUTION OF DISPUTES AND CONTAINS OTHER IMPORTANT PROVISIONS.

BY USING FATHOM™ FIRMWARE ON A DEVICE OWNED BY DEVICE OWNER, YOU ACKNOWLEDGE AND SIGNIFY DEVICE OWNER’S ACCEPTANCE AND AGREEMENT, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT AND AGREE TO THIS AGREEMENT ON BEHALF OF DEVICE OWNER.

IF DEVICE OWNER DOES NOT AGREE WITH EACH PROVISION OF THIS AGREEMENT, OR YOU ARE NOT AUTHORIZED TO AGREE TO THIS AGREEMENT ON BEHALF OF DEVICE OWNER, THEN NEITHER YOU NOR ANY OTHER PERSON ON BEHALF OF DEVICE OWNER MAY USE THE FATHOM™ FIRMWARE ON A DEVICE OWNED BY DEVICE OWNER OR INSTALL OR USE UPDATES OR UPGRADES TO THE FATHOM FIRMWARE. UNAUTHORIZED DOWNLOADING, INSTALLATION OR USE OF FATHOM™ FIRMWARE IS STRICTLY PROHIBITED.

1.              Definitions: In this Agreement: (a) “Device” means a hardware device, manufactured by or on behalf of Fathom, an operating division of Rx Networks Inc. (“Fathom”), that is designed to use the Firmware and is owned by Device Owner; (b) “Device Owner” means the person who owns the Device; (c) “Fathom Control Account” means a valid and subsisting account for the use of the online service known as Fathom™ Control (“Fathom Control”) operated by or on behalf of Fathom; and (d) “Firmware” means the computer software known as Fathom™ Firmware that is pre-installed on the Device or is otherwise provided or made available to or for the benefit of Device Owner by or on behalf of Fathom.

2.              Authority: If you are not Device Owner regarding the Device on which the Firmware is installed, then you represent and warrant that Device Owner has expressly authorized you to agree, on behalf of Device Owner, to be bound by this Agreement.

3.              License/Permitted Uses: Subject to the provisions of this Agreement, Fathom hereby grants to Device Owner a non-exclusive, non-sublicensable, non-transferable, restricted and limited license during the term of this Agreement to use one (1) copy of the object-code (machine-readable) version of the Firmware on the Device for the sole purpose of Device Owner’s lawful use of the Device, and not for any other purpose whatsoever (the “License”). The License is limited to the intellectual property rights in the Firmware owned by Fathom and its licensors, and does not include or relate to any other intellectual property rights.

4.              General Restrictions/Prohibitions: Device Owner may not: (a) use the Firmware in any manner or for any purpose except as expressly permitted by this Agreement; (b) copy or reproduce the Firmware; (c) license, sublicense, sell, resell, lend, rent, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, create any interest in, or otherwise give or make available or permit access or use of the Firmware to or for the benefit of any other person, whether with or without charge; (d) except as and only to the extent expressly permitted by this Agreement or applicable law, adapt, alter, change, enhance, modify, improve or translate the Firmware, create derivative works from or based on the Firmware, merge, embed or combine the Firmware with any other software or materials, or reverse engineer, disassemble, decompile, convert into human readable format or otherwise attempt to access or derive the source code of the Firmware; (e) alter, attempt to circumvent, destroy, obscure, conceal, modify or remove any notices, proprietary codes or locks, means of identification, rights management information, technological protection measures or agreements on, in or in relation to the Firmware; or (f) authorize, assist or encourage any other person to do any of the foregoing or to use the Firmware in a way that would constitute an infringement of Fathom’s rights in the Firmware or a breach of this Agreement if it were done by Device Owner. Device Owner will protect the Firmware against unauthorized access, distribution or use.

5.              Fathom Control: The Firmware will permit the Device to remotely access and use certain functionalities provided by Fathom Control in accordance with Device Owner’s Fathom Control Account. Use of Fathom Control and Fathom Control Accounts are governed by a Terms of Service and other terms and conditions prescribed by Fathom (which are available at support.fathom.xyz/legal) and may be subject to payment of additional fees. If Device Owner is not authorized to use Fathom Control pursuant to a Fathom Control Account, then the Device will not be able to access or use Fathom Control.

6.              Embedded Third Party Components: The Firmware includes components licensed by Fathom from third parties for use as part of the Firmware, and Device Owner’s use of those components is governed by this Agreement and the applicable third party licensing terms and conditions, which are either contained or referenced in the documentation for the Firmware or referenced in the applicable legal notices available at support.fathom.xyz/legal, each of which is incorporated into and forms part of this Agreement.

7.              Updates/Upgrades: Fathom is not obligated to issue updates or new versions or releases to or of the Firmware, but Fathom in its discretion may do so and each of those updates, versions or releases may have different features and functionalities than previous versions of the Firmware. This Agreement applies to each update or new version or release to or of the Firmware made available by Fathom unless Fathom indicates that the update or new version or release is subject to a different agreement, in which case the different agreement will govern.

8.              Technical Information/Feedback: If Device Owner transmits or otherwise gives to Fathom technical information or data regarding use of the Firmware or the Device, or feedback (including any ideas or suggestions for corrections, enhancements or improvements) regarding any of those items, then Fathom and its successors, assigns and licensees may use the information and feedback for any and all purposes (including to support, maintain and improve the Firmware and other Fathom products and services) without providing any compensation or attribution to Device Owner or any other person.

9.              Technical Requirements/Legal Compliance: Device Owner is solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including personal computers and mobile computing devices), software and services (including Internet access) necessary for Device Owner to use the Firmware on the Device. Device Owner will comply with all applicable laws regarding Device Owner’s use of the Firmware.

10.           Ownership: Fathom and its licensors own and retain all right, title and interest (including copyright and other intellectual property rights), throughout the world in, to and associated with the Firmware. The Firmware is licensed (not sold) to Device Owner for limited purposes as expressly set out in this Agreement. The Firmware and all related intellectual property rights are protected throughout the world by international laws and treaties. Except for the License, Device Owner will not acquire any right, title or interest in, to or associated with the Firmware pursuant to this Agreement or otherwise. Except as required by applicable law, under no circumstances will Fathom be obligated to provide, nor will Device Owner be entitled to receive, obtain or access, any source (human readable) code for the Firmware. All rights not expressly granted under this Agreement are reserved to Fathom and its suppliers and licensors. All Rights Reserved.

11.           Confidentiality: Device Owner acknowledges that all non-public information concerning the Firmware (the “Confidential Information”) is the proprietary and confidential information of Fathom and its licensors. Both during and after the term of this Agreement, Device Owner will hold all Confidential Information in confidence and will use the Confidential Information only in connection with Device Owner’s use of the Firmware in accordance with this Agreement.

12.           Termination: This Agreement is effective until terminated. Device Owner may terminate this Agreement at any time by ceasing to use the Firmware and then delivering a notice of termination to Fathom. This Agreement will terminate immediately and automatically, without any notice to or from Fathom, if Device Owner breaches this Agreement. Upon termination of this Agreement, the License will immediately terminate and Device Owner will immediately cease using the Firmware. Notwithstanding any other provision of this Agreement, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable: sections 4, 6, 8, 10, 11, 12, 13, 14, 15 and 16.

13.           DISCLAIMERS

(a)            GENERAL DISCLAIMER: DEVICE OWNER IS SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF THE FIRMWARE TO ACHIEVE DEVICE OWNER’S INTENDED RESULTS, AND DEVICE OWNER INSTALLS THE FIRMWARE AND USES THE FIRMWARE AT DEVICE OWNER’S OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE FIRMWARE IS 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 OF THIRD PARTY RIGHTS; LACK OF VIRUSES OR OTHER DISABLING OR HARMFUL CODE; PERFORMANCE; QUALITY; RESULTS; SUITABILITY; TIMELINESS; TITLE; QUIET ENJOYMENT; OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY DISCLAIMED BY FATHOM TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, FATHOM DOES NOT REPRESENT OR WARRANT THAT THE FIRMWARE WILL MEET DEVICE OWNER’S REQUIREMENTS, THAT THE OPERATION OR AVAILABILITY OF THE FIRMWARE WILL BE CONTINUOUS, UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS IN THE FIRMWARE WILL BE CORRECTED, OR THAT THE FIRMWARE WILL BE COMPATIBLE OR OPERATE WITH ANY SPECIFIC COMPUTER OR DEVICE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF FATHOM OR ANY FATHOM REPRESENTATIVE WILL CREATE ANY LEGALLY BINDING OR EFFECTIVE REPRESENTATION, WARRANTY OR PROMISE.

(b)            NO HIGH RISK USE: THE FIRMWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR SUITABLE FOR USE IN A SITUATION WHERE FAILURE OR FAULT OF ANY KIND (INCLUDING DELAYS, ERRORS OR INACCURACIES IN PERFORMANCE, CONTENT, DATA OR INFORMATION PROVIDED BY THE FIRMWARE) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”). HIGH RISK USE OF THE FIRMWARE IS STRICTLY PROHIBITED.

14.           LIABILITY EXCLUSIONS/LIMITATIONS

(a)            LIABILITY EXCLUSIONS/LIMITATIONS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL FATHOM GROUP BE LIABLE TO DEVICE OWNER OR ANY OTHER PERSON FOR ANY DAMAGE, LOSS OR LIABILITY OF ANY NATURE OR KIND WHATSOEVER (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS) ARISING FROM, CONNECTED WITH, OR RELATING TO THE FIRMWARE (INCLUDING DEVICE OWNER’S USE OR INABILITY TO USE THE FIRMWARE) OR ANY RELATED MATTER; AND (II) IF NOTWITHSTANDING THE FOREGOING FATHOM GROUP IS LIABLE TO DEVICE OWNER OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL FATHOM GROUP’S TOTAL AGGREGATE LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO THE FIRMWARE OR ANY RELATED MATTER EVER EXCEED THE LESSER OF THE TOTAL AMOUNT OF FEES (IF ANY) THAT DEVICE OWNER ACTUALLY PAID FOR THE FIRMWARE OR FIVE DOLLARS ($5). THIS SECTION 14(a) APPLIES TO LOSS, DAMAGE AND LIABILITY HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING CONTRACT, TORT, STRICT LIABILITY AND STATUTORY LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY OR ON BEHALF OF FATHOM OR ANY PERSON FOR WHOM FATHOM IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE FOR THE LOSS, DAMAGE AND LIABILITY, OR THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR FATHOM KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE LOSS, DAMAGE AND LIABILITY BEING INCURRED. IN THIS SECTION 14, “FATHOM GROUP” MEANS FATHOM AND EACH OF FATHOM’S AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PARTNERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SHAREHOLDERS, PARTNERS, DISTRIBUTORS AND REPRESENTATIVES, JOINTLY AND SEVERALLY.

(b)            EXCEPTIONS: THE LAWS IN SOME JURISDICTIONS PROHIBIT OR LIMIT THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, AND SO THE DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS IN THIS AGREEMENT MIGHT NOT APPLY TO DEVICE OWNER.

15.           Government Users: The Firmware and related documentation are “Commercial Items” (as defined at 48 C.F.R. §2.101) consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” (as 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, the Firmware and related documentation are licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users as expressly set out in this Agreement. Unpublished-rights are reserved under the copyright laws of the United States, Canada and all other applicable jurisdictions.

16.           General Matters

(a)            Governing Law and Disputes:

(i)              General: Subject to section 16(a)(ii), this Agreement and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws that govern the Terms of Service that applies to Device Owner’s Fathom Control Account. All disputes arising from, connected with or relating to this Agreement, the Firmware or any related matter, will be resolved in accordance with the dispute resolution provision set out in the Terms of Service that applies to Device Owner’s Fathom Control Account.

(ii)            Exception: If Device Owner does not have a Fathom Control Account, then: (1) this Agreement and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws and excluding any law that implements the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code or the Uniform Computer Information Transaction Act; and (2) the courts of British Columbia, Canada sitting in the city of Vancouver, British Columbia, Canada will have original and exclusive jurisdiction over any and all disputes arising from, connected with or relating to this Agreement, the Firmware or any related matter, and Device Owner and Fathom each hereby unconditionally and irrevocably submit and attorn to the original and exclusive jurisdiction of those courts regarding those disputes.

(b)            Notices: Fathom may deliver notices to Device Owner by email or postal mail to any of the addresses that Device Owner provides to Fathom in connection with Device Owner’s Fathom Control Account. Device Owner is solely responsible for ensuring that those addresses are and remain current and correct throughout the term of this Agreement. Device Owner will give all notices required under this Agreement to Fathom in writing delivered by email to Fathom at the following email address: support@fathom.xyz.

(c)            Enforcement: Device Owner acknowledges and agrees that Device Owner’s breach of any of sections 4, 6, 11 and 12 of this Agreement will result in irreparable harm, loss and damage to Fathom and its licensors and affiliates for which Fathom and its licensors and affiliates could not be adequately compensated by an award of monetary damages; and if Device Owner breaches or threatens to breach any of those sections, then Fathom will be entitled as a matter of right to judicial relief by way of a restraining order, interim, interlocutory or permanent injunction, or order for specific performance, and Device Owner will not oppose the granting of that judicial relief and hereby waives all defences to the strict enforcement of this Agreement.

(d)            Miscellaneous: No consent or waiver by Fathom to or of any breach of this Agreement by Device Owner will be effective unless in writing and signed by Fathom or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach by Device Owner. Fathom’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which Fathom may be lawfully entitled under this Agreement or at law, and Fathom will be entitled to pursue any and all of its rights and remedies concurrently, consecutively and alternatively. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement 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 this Agreement would fail in its essential purpose. Device Owner may not assign this Agreement or any of Device Owner’s rights (including the License) or obligations under this Agreement. Fathom in its discretion may assign this Agreement or any of Fathom’s rights and obligations under this Agreement. The provisions of this Agreement will enure to the benefit of and be binding upon Device Owner and Fathom and their respective successors, permitted assigns and personal representatives.

(e)            Interpretation: In this Agreement: (i) “this Agreement” and similar terms refer to this License Agreement for Fathom™ Firmware as a whole, and not just to the particular provision in which those words appear; (ii) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (iii) words importing the singular number only include the plural and vice versa; (iv) words importing a gender include all genders; (v) “person” includes an individual (natural person), corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (vi) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (vii) “law” includes common law, equity, statutes and regulations, and a reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation made under the law in force from time to time; and (viii) “discretion” means a person’s sole, absolute and unfettered discretion. If there is a conflict or inconsistency between this Agreement and any other agreement between Device Owner and Fathom, then this Agreement will take priority and govern regarding the Firmware and related matters.

(f)              Complete Agreement/Governing Language: This Agreement sets out the entire agreement between Device Owner and Fathom regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of this Agreement. This Agreement may not be modified, except by a written agreement that expressly states that it is an amendment to this Agreement and is signed by Fathom. Device Owner and Fathom have expressly requested and required that this Agreement and all related documents be drawn up 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. Subject to applicable law, any translation of this Agreement provided by Fathom is for convenience only, and if there is a conflict or inconsistency between the English version and a non-English version then the English version of this Agreement will take priority and govern.

(g)            Contact Information: Fathom’s address is 1201 West Pender Street, Suite 800, Vancouver, British Columbia, Canada, V6E 2V2. If you have any questions or complaints regarding the Licensed App, you may contact Fathom’s support services staff at 1-604-685-8988 and support@fathom.xyz.

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a copy of this document is also available in pdf form below.

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