End User License Agreement for Fathom™ Install Application (iOS Version)
Last Updated: February 18, 2016.
PLEASE CAREFULLY READ THIS AGREEMENT BEFORE INSTALLING OR USING THE FATHOM™ INSTALL APPLICATION. THIS AGREEMENT IS A BINDING CONTRACT THAT GOVERNS THE USE OF THE FATHOM™ INSTALL APPLICATION, EXEMPTS FATHOM AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, SPECIFIES THE JURISDICTION FOR RESOLUTION OF DISPUTES AND CONTAINS OTHER IMPORTANT PROVISIONS.
BY CLICKING THE “AGREE/ACCEPT” BUTTON OR INSTALLING OR USING THE FATHOM™ INSTALL APPLICATION, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THIS AGREEMENT WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE FATHOM™ INSTALL APPLICATION. UNAUTHORIZED INSTALLATION OR USE OF THE FATHOM™ INSTALL APPLICATION OR ANY RELATED SERVICES 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 be activated and configured using the Licensed App and that is owned by you or that you are lawfully authorized to administer by the person who owns the device and holds the Fathom Control Account to which the device is registered; (b) “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; (c) “Fathom Services” means services relating to the Licensed App provided by or on behalf of Fathom, excluding Fathom Control; (d) “Licensed App” means the mobile device software application known as Fathom™ Install and all related documentation provided or made available to you by or on behalf of Fathom; and (e) “Mobile Device” means a mobile computing device (e.g. mobile phone or tablet) that is compatible with the Licensed App and that you own or are lawfully entitled to use.
2. Authority: If you do not own the Mobile Device on which you download and install the Licensed App, then you represent and warrant that the owner of the Mobile Device: (a) has expressly authorized you to download, install and use the Licensed App on the Mobile Device; and (b) agrees to be bound by this Agreement; and in those circumstances each reference in this Agreement to “you” and similar terms is deemed a reference to both you and the owner of the Mobile Device.
3. License/Permitted Uses: Subject to the provisions of this Agreement, Fathom hereby grants to you a non-exclusive, non-sublicensable, non-transferable, restricted and limited license during the term of this Agreement to download and install the object-code (machine-readable) version of the Licensed App on a Mobile Device and to use that installed copy of the Licensed App for the sole purpose of lawfully activating, configuring and using Devices for the benefit of the person who owns the Devices and holds or controls the Fathom Control Account to which the Devices are registered, and not for any other purpose whatsoever (the “License”). The License is limited to the intellectual property rights in the Licensed App owned by Fathom and its licensors, and does not include or relate to any other intellectual property rights.
4. General Restrictions/Prohibitions: You may not: (a) use the Licensed App in any manner or for any purpose except as expressly permitted by this Agreement; (b) transfer possession of the Licensed App to any other person; (c) copy or reproduce the Licensed App, except to the extent required to install the Licensed App in order to use the Licensed App in accordance with this Agreement; (d) 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 Licensed App to or for the benefit of any other person, whether with or without charge; (e) except as and only to the extent expressly permitted by this Agreement or applicable law, adapt, alter, change, enhance, modify, improve or translate the Licensed App, create derivative works from or based on the Licensed App, merge, embed or combine the Licensed App 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 Licensed App; (f) 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 Licensed App; or (g) authorize, assist or encourage any other person to do any of the foregoing or to use the Licensed App in a way that would constitute an infringement of Fathom’s rights in the Licensed App or a breach of this Agreement if it were done by you. You will protect the Licensed App against unauthorized access, distribution or use. Regardless of the number of copies of the Licensed App received by you or the means by which you receive them, each copy of the Licensed App is subject to this Agreement.
5. Specific Prohibitions: Without limiting the generality of any other provision of this Agreement, you may not use the Licensed App to access, configure or use any device other than a Device that is registered to your Fathom Control Account.
6. Usage Rules: Notwithstanding any other provision of this Agreement, you will comply with the Usage Rules, and you will ensure that your use of the Licensed App and Fathom Services complies with the Usage Rules. In this Agreement, “Usage Rules” means the restrictions, requirements and rules that govern applications downloaded through the application store through which you obtained the Licensed App (e.g. the Apple App Store) as set out in the terms of service and other agreements specified by the operator of the application store (e.g. Apple).
7. Fathom Control: To activate and use the Licensed App, you must be authorized to use Fathom Control pursuant to a Fathom Control Account. The Licensed App will permit you to access and use certain functionalities provided by Fathom Control in accordance with the applicable Fathom Control Account. Use of Fathom Control and Fathom Control Accounts are governed by 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 you are not authorized to use Fathom Control pursuant to a Fathom Control Account, or if you do not accept and agree to the applicable Terms of Service and other applicable terms and conditions, then you may not activate or use the Licensed App. If your Fathom Control Account expires or is terminated for any reason, then you will no longer be able to use the Licensed App or Fathom Control.
8. Embedded Third Party Components: The Licensed App includes components licensed by Fathom from third parties for use as part of the Licensed App, and your 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 Licensed App 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.
9. Licensed App Updates/Upgrades: Fathom is not obligated to issue updates or new versions or releases to or of the Licensed App, 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 Licensed App. This Agreement applies to each update or new version or release to or of the Licensed App 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.
10. Technical Information/Feedback: If you transmit or otherwise give to Fathom technical information or data regarding your use of the Licensed App, Fathom Services, your Mobile Device or Devices, 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 Licensed App, Fathom Services, Devices and other Fathom products and services) without providing any compensation or attribution to you or any other person.
12. Technical Requirements/Legal Compliance: You are solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including your Mobile Device), software and services (including mobile Internet access) necessary for your use of the Licensed App and all data used in association with the Licensed App. You will comply with all applicable laws regarding your use of the Licensed App.
13. 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 Licensed App. The Licensed App is licensed (not sold) to you for limited purposes as expressly set out in this Agreement. The Licensed App and all related intellectual property rights are protected throughout the world by international laws and treaties. Except for the License, you will not acquire any right, title or interest in, to or associated with the Licensed App pursuant to this Agreement or otherwise. Except as required by applicable law, under no circumstances will Fathom be obligated to provide, nor will you be entitled to receive, obtain or access, any source (human readable) code for the Licensed App. All rights not expressly granted under this Agreement are reserved to Fathom and its suppliers and licensors. All Rights Reserved.
14. Confidentiality: You acknowledge that all non-public information concerning the Licensed App (the “Confidential Information”) is the proprietary and confidential information of Fathom and its licensors. Both during and after the term of this Agreement, you will hold all Confidential Information in confidence and you will use the Confidential Information only in connection with your use of the Licensed App in accordance with this Agreement.
15. Termination: This Agreement is effective until terminated. You may terminate this Agreement at any time by uninstalling and permanently deleting and destroying all copies (full or partial) of the Licensed App in your possession or control (including copies of the Licensed App installed on your Mobile Devices) and then delivering a notice of termination to Fathom. This Agreement will terminate immediately and automatically, without any notice to or from Fathom, if you breach this Agreement. Fathom may terminate this Agreement at any time for its convenience on 14 days’ notice of termination. Upon termination of this Agreement, the License will immediately terminate and you will immediately cease using the Licensed App, permanently uninstall the Licensed App from each of your Mobile Devices and permanently delete and destroy all other copies (full or partial) of the Licensed App in your possession or control. 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, 5, 8, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20 and 21.
(a) GENERAL DISCLAIMER: YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF THE LICENSED APP AND FATHOM SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND YOU INSTALL THE LICENSED APP AND USE THE LICENSED APP AND FATHOM SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APP AND FATHOM SERVICES 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 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 LICENSED APP OR FATHOM SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OR AVAILABILITY OF THE LICENSED APP OR FATHOM SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS IN THE LICENSED APP OR FATHOM SERVICES WILL BE CORRECTED, OR THAT THE LICENSED APP OR FATHOM SERVICES 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 LICENSED APP 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 LICENSED APP) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”). HIGH RISK USE OF THE LICENSED APP IS STRICTLY PROHIBITED.
17. 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 YOU OR ANY OTHER PERSON (INCLUDING THE OWNER OF THE DEVICES THAT YOU ACTIVATE, CONFIGURE OR USE WITH THE LICENSED APP) 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 LICENSED APP (INCLUDING YOUR USE OR INABILITY TO USE THE LICENSED APP), FATHOM SERVICES OR ANY RELATED MATTER; AND (II) IF NOTWITHSTANDING THE FOREGOING FATHOM GROUP IS LIABLE TO YOU 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 LICENSED APP, FATHOM SERVICES OR ANY RELATED MATTER EVER EXCEED THE LESSER OF THE TOTAL AMOUNT OF FEES (IF ANY) THAT YOU ACTUALLY PAID FOR THE LICENSED APP OR FIVE DOLLARS ($5). THIS SECTION 17(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 17, “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 YOU.
18. Export/Import/Use Restrictions: The Licensed App may include items or technologies that are subject to domestic and international export, import or use restrictions or controls imposed by applicable law. You will comply with all applicable export, import and use restrictions and controls under the laws of Canada, the United States of America, the jurisdictions in which you are located when you purchase, access or use the Licensed App and any other applicable laws in effect from time to time, and you will not export, or permit or assist the export or re-export, import or use of the Licensed App in violation of the laws of Canada, the United States of America, the jurisdictions in which you are located or any other applicable laws, including to any prohibited or restricted country or person. You represent and warrant that: (a) you are not located in, under control of, or a national or resident of, either: (i) a country that is subject to an embargo by the governments of Canada, the United States of America or the jurisdiction in which you are located or the United Nations; or (ii) a country that has been designated as a “terrorist supporting” country by the governments of Canada, the United States of America or the jurisdiction in which you are located when you purchase, access or use the Licensed App or the United Nations; (b) you are not listed on any list of prohibited or restricted persons issued by the governments of Canada, the United States of America or the jurisdiction in which you are located when you purchase, access or use the Licensed App or the United Nations; and (c) your possession or use of the Licensed App is not prohibited by any applicable law.
19. Government Users: The Licensed App and related documentation are “Commercial Items” (as defined at 48 C.F.R. §2.101) consisting of “Commercial Computer Licensed Application” and “Commercial Computer Licensed Application 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 Licensed Application 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.
20. General Matters
(a) Governing Law and Disputes:
(i) General: Subject to section 20(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 your Fathom Control Account. All disputes arising from, connected with or relating to this Agreement, the Licensed App, Fathom Services or any related matter, will be resolved in accordance with the dispute resolution provision set out in the Terms of Service that applies to your Fathom Control Account.
(ii) Exception: If you don’t 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 Licensed App, Fathom Services or any related matter, and you 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 you by email or postal mail to any of the addresses that you provide to Fathom in connection with your Fathom Control Account. You are solely responsible for ensuring that those addresses are and remain current and correct throughout the term of this Agreement. You will give all notices required under this Agreement to Fathom in writing delivered by email to Fathom at the following email address: email@example.com.
(c) Enforcement: You acknowledge and agree that your breach of any of sections 4, 5, 6, 8, 14, 15 and 18 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 you breach or threaten 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 you will not oppose the granting of that judicial relief and you hereby waive 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 you 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 you. 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. You may not assign this Agreement or any of your 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 you and Fathom and each of their respective successors, permitted assigns and personal representatives.
(e) Interpretation: In this Agreement: (i) “this Agreement” and similar terms refer to this End User License Agreement for Fathom™ Install Application 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 you and Fathom, then this Agreement will take priority and govern regarding the Licensed App, Fathom Services and related matters.
(f) Complete Agreement/Governing Language: This Agreement sets out the entire agreement between you 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. You 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 firstname.lastname@example.org.
(a) General: This Agreement is between you and Fathom only. Apple Inc. and its subsidiaries (collectively “Apple”) is not a party to this Agreement. Fathom, not Apple, is solely responsible for the Licensed App and the content of the Licensed App. Apple has no obligation to provide any maintenance or support services with respect to the Licensed App.
(b) Remedies for Warranty Breach: If the Licensed App fails to conform to any applicable warranty (if any) set out in this Agreement or implied by applicable law, then you may notify Apple and Apple will refund the purchase price (of any) that you paid for the Licensed App, and to the maximum extent permitted by applicable law Apple will have no other warranty obligation whatsoever with respect to the License Application, and subject to the provisions of this Agreement any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Licensed App to conform to any applicable warranty (if any) will be Fathom’s sole responsibility.
(c) Product Claims: Fathom, not Apple, is responsible for addressing any claims by you or any other person relating to the Licensed App or your possession or use of the Licensed App, including: (i) product liability claims; (ii) any claim that the Licensed App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(d) Intellectual Property Rights: If there is a third party claim that the Licensed App or your possession and use of the Licensed App infringes that third party’s intellectual property rights, then subject to the provisions of this Agreement Fathom, not Apple, will be responsible for the investigation, defence, settlement and discharge of the claim.
(e) Third Party Beneficiary: Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement Apple will have the right (and will be deemed to have accepted the right), as a third party beneficiary of this Agreement, to enforce this Agreement against you.
a copy of this document is also available in pdf form below.