Limited Warranty for Fathom Hardware

 

 

Limited Warranty for Fathom™ Hardware

 

Last Updated: November 21, 2016.

  1. Definitions:  In this Limited Warranty:  “Device” means a hardware device, manufactured by or on behalf of Fathom Systems Inc., a subsidiary of Rx Networks Inc. (“Fathom”), that is designed to use the Firmware and is owned by Device Owner;  “Device Owner” means the person who owns the Device;  “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  “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. 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 agreement 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.
  3. Warranty Scope: This Limited Warranty: (a) applies to any Fathom Device purchased directly from Fathom or from an authorized reseller (for a list of authorized resellers, please visit www.fathom.xyz); (b) covers Fathom Devices against defects in material and workmanship when used normally for their intended purposes; and (c) begins on the date of purchase and is valid for 90 days.
  4. Warranty Limitations: This Limited Warranty: (a) is not valid if you obtained your Fathom Device via an unauthorized reseller; (b) is not transferable and is valid only for the period of time the Device is owned by the Device Owner; (c) does not apply if the Device fails due to damage from abuse or misuse, or if it has been used or maintained in a manner not conforming to the Fathom installation and operating instructions, has been modified in any way, or has had any serial number removed or defaced; (d) will be void if, for applicable Fathom Devices that use replaceable batteries, (i) you replace batteries with non-Fathom approved batteries or (ii), you do not follow the Fathom instructions for battery replacement; and (e) will be void if, except for battery replacement, any repair or modification of the Device is performed by anyone other than Fathom or a Fathom approved service center.
  5. Obtaining Warranty Service: In order to obtain service under this limited warranty, you need to: (a) have a proof of purchase (e.g. order reference #); (b) contact Fathom technical support and obtain an RMA #, along with shipping instructions; and (c) at your shipping cost, include the RMA and send the defective Fathom Device to the address provided by Fathom’s technical support.
  6. Fathom Obligations: Fathom will not accept shipments that are not prepaid or shipments without a Return Merchandise Authorization (RMA). We will do our best to return, at our cost, repaired or replacement Devices within 10 business days. These returned Devices may be repaired or refurbished units of the same type, and refurbished or used parts may be used to repair Devices. If, in our sole determination, we are unable to replace the defective Device, we will provide a refund for the original purchase price of the Device.
  7. DISCLAIMERS
    1. GENERAL DISCLAIMER:  DEVICE OWNER IS SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF THE DEVICE TO ACHIEVE DEVICE OWNER’S INTENDED RESULTS, AND DEVICE OWNER USES THE DEVICE AT OWNER’S OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEVICE 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 DEVICE WILL MEET DEVICE OWNER’S REQUIREMENTS, THAT THE OPERATION OR AVAILABILITY OF THE DEVICE WILL BE CONTINUOUS, UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS IN THE DEVICE WILL BE CORRECTED, OR THAT THE DEVICE 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.
    2. NO HIGH RISK USE:  THE DEVICE 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 DEVICE) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”). HIGH RISK USE OF THE DEVICE IS STRICTLY PROHIBITED.
  8. LIABILITY EXCLUSIONS/LIMITATIONS
    1. LIABILITY EXCLUSIONS/LIMITATIONS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS LIMITED WARRANTY, 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 DEVICE (INCLUDING DEVICE OWNER’S USE OR INABILITY TO USE THE DEVICE) 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 DEVICE OR ANY RELATED MATTER EVER EXCEED THE TOTAL AMOUNT OF FEES (IF ANY) THAT DEVICE OWNER ACTUALLY PAID FOR THE DEVICE. THIS SECTION 8(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 8, “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.
    2. 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 LIMITED WARRANTY MIGHT NOT APPLY TO DEVICE OWNER.
  9. GOVERNING LAW AND DISPUTES
  1. General:  Subject to section 9(b), this Limited Warranty 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 apply to Device Owner’s Fathom Control Account. All disputes arising from, connected with or relating to this Limited Warranty 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.
    1. Exception:  If Device Owner does not have a Fathom Control Account, then: (1) this Limited Warranty 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 Limited Warranty 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.
  1. Contact Information: Fathom Systems Inc. is located at 1201 West Pender Street, 8th Floor, Vancouver, British Columbia, Canada, V6E 2V2. If you have any questions or complaints regarding this Limited Warranty you may contact Fathom’s support services staff at 1-604-699-6178 and support@fathom.xyz.

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