1. USE OF THE SITE OR SERVICES. You must be 13 years or older to access or use the Site or Services. If you are under 13, then You may not use or access the Site or Services under any circumstances. If You are 13 or older and younger than 18, then You may access and use the Site or Services only if you have your parents’ or guardians’ prior permission. By accessing or using the Site or Services, You represent that You are at least 18 or that you are at least 13 and have your parents’ prior permission to do so. If you are a parent or guardian providing permission for a child age 13 or older to access or use the Site or Services, then you agree to accept full responsibility for that child’s use of and access to the Site or Services under this Agreement. You further represent and warrant that You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and You are not listed on any U.S. Government list of prohibited or restricted parties. You may access and use the Site or Services solely for lawful purposes and only in accordance with the terms of this Agreement and any other agreement You are required to agree to before being given access to any specific areas of the Site or Services (any such additional agreements are in addition to this Agreement and will govern your use of the portions of the Site or Services to which those additional agreements apply in the event of a conflict between the terms of this Agreement and those additional agreements). Fathom reserves the right at any time and in its sole discretion to modify, suspend, or discontinue the Site or Services (or any portion thereof) with or without notice.
2. REGISTRATION. Registration is not mandatory to access the public areas of the Sites. Registration may, however, be required for access to certain areas of the Sites and the products and services provided through those areas of the Sites. The areas of the Sites that may require registration are noted on each Site. Until you apply for and are approved as a registered user of the Site (a “Registered User”), Your access to the Site will be limited to the areas of the Site generally available to all users. Your approval as a Registered User is at the sole discretion of Fathom. In connection with Your application to become a Registered User, You will be asked to submit certain information about Yourself (“Registration Information”).
3. YOUR ACCOUNT. If You are approved as a Registered User, You will be asked to create a password-protected account to access the areas of the Site available to registered users (an “Account”). You agree to keep Your Account information and password confidential. You agree to notify Fathom immediately of any actual or suspected unauthorized use of your Account. Your Account is solely for Your personal and non-commercial use. You may not sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer Your Account or the right to access your Account to any third party. You are solely responsible for all activities that occur through Your Account. Fathom will not be responsible for any loss to You caused by your failure to comply with these obligations. You represent and warrant that: (1) all Registration Information You have provided is true, accurate, current, and complete; and (2) You will maintain and promptly update the Registration Information to keep it true, accurate, current, and complete. As part of the registration process, you will be assigned or permitted to create a user ID for use in identifying your Account (a “User ID”). You may not: (a) select or use a User ID of another person with the intent to impersonate that person; (b) use a User ID in which another person has rights without such person’s authorization; or (c) use a User ID that Fathom, in its sole discretion, deems offensive. Failure to comply with the foregoing shall constitute a breach of this Agreement, which may result in immediate termination of your Account.
4. PURCHASES. You may be offered the opportunity to purchase, subscribe to or otherwise obtain products or services accessible or made available through the Site or Services (each a “Product” or “Service,” respectively). In addition to this Agreement, any purchase or subscription will be subject to any terms and conditions displayed in connection with the purchase or subscription. Unless otherwise indicated on the Site, purchases or subscriptions made by You through the Site or Services cannot be exchanged and are non-refundable. Purchases made through the Site or Services may be subject to additional fees or charges which are also non-refundable. All information that You provide in connection with a purchase or other transaction through the Site or Services will be accurate complete and current. You authorize Fathom (or a company chosen to act on behalf of Fathom) to charge the credit card, debit card, mobile services account, or other payment method provided in connection with any transaction You make on the Site or through the Services and will pay all charges incurred in connection with any such transaction.
5. TERM AND TERMINATION. This Agreement will be effective on the date You first use the Site or Services and will continue until terminated. Fathom may terminate this Agreement, and Your access to any Products or Services accessible or made available through the Site, immediately, for any reason or no reason, with or without notice to You. You may terminate this Agreement upon written notice to Fathom, such termination effective 10 business days following acknowledgment of receipt of such notice by Fathom. Fathom may also suspend your use of the Site (or any Products or Services) and direct You to cease using the Site (or those Products or Services) with or without notice to You and with or without cause. Upon any termination of this Agreement, all rights granted to You under this Agreement will cease; if You are a Registered User, your Account will be closed, and You must promptly discontinue all use of or access to any part of the Site or any Products, Services, Software or Content downloaded or otherwise obtained or made available through the Site. Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 19 will survive termination or expiration of this Agreement for any reason as they apply to the rights granted to Fathom and the restrictions placed on You.
6. SOFTWARE AND WIDGETS. The widgets and other software and code available on or for download through the Site or Services (“Software”) are protected by intellectual property rights, including, as applicable and without limitation, copyrights, trademarks, patents (and patent applications), trade secrets and other proprietary and intellectual property rights (“Intellectual Property Rights”). Unless otherwise expressly stated in a license or other agreement separate from this Agreement that You may have entered into (or may enter into) with Fathom or its Affiliates relating to any Software (each such license or other agreement, a “Software License Agreement”) or as otherwise in this Section 6, Fathom grants you a personal, limited, non-exclusive, non-transferable right to download, install and execute a single copy of the Software in accordance with the instructions provided on the Site or through the Services and solely for your own personal and non-commercial purposes. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any Intellectual Property Rights therein or related thereto, and You may not modify, copy or reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of Fathom. For software distributed under a third party license (referred to as “Open Source Software”), Your use of the Open Source Software will be governed by the applicable third party license. To the extent the terms of the license applicable to Open Source Software prohibit any of the restrictions in this Agreement, then with respect to the specific Open Source Software, such restrictions will not apply to such Open Source Software component.
7. CONTENT. The text, files, images, graphics, illustrations, information, data, audio, video, photographs, advertising, and other content (collectively, “Content”) available on the Site or provided from or through the Site or Services, including, without limitation, all Content made available through any widget or other Software (such Content and any other contents of the Site or Services, collectively, “Site Content”) are protected by the Intellectual Property Rights of Fathom and its partners, affiliates, and licensors (“Affiliates”). Unless otherwise noted on the Site, as between You, Fathom and its Affiliates, all Site Content is owned by Fathom and its Affiliates. Your access to and use of any Site Content is also subject to any other license or other agreement separate from this Agreement that You may have entered into (or may enter into) with Fathom or any of its Affiliates relating to that Site Content (each of those licenses or other agreements, a “Content Agreement”). Except as expressly set forth in this Agreement or any Content Agreement or the express functionality of a Site, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to the Site or Site Content, or any Intellectual Property Rights therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Site or Site Content without the prior written permission of Fathom. If you would like to use the Site Content in a manner that is not expressly set forth in this Agreement or any other Content Agreement, please send your request to Fathom by emailing Fathom firstname.lastname@example.org.
8. MARKS. Unless otherwise labeled, all trademarks, trade names, service marks, logos, banners, and page headers displayed on the Site or through the Services (collectively, the “Marks“) are the property of Fathom and its Affiliates. Except as expressly set forth in this Agreement, You may not display, link to, or otherwise use the Marks without the prior written permission of Fathom.
9. POSTINGS AND UPLOADS. The Site or Services may include forums, bulletin boards, chat rooms, or other opportunities through which You may provide, transmit, upload, or otherwise make available Content to the Site or through the Services (such Content, “Provided Content”). You agree not to upload or provide any Provided Content that is: (1) libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (2) an infringement or misappropriation of the Intellectual Property Rights of any third party; (3) illegal in any way or that advocates illegal activity; or (4) an advertisement or solicitation of funds, goods, or services. You represent and warrant to Fathom and its Affiliates that You own all right, title, and interest in and to any Provided Content that You provide or upload to the Site or through the Services, or that You have sufficient rights, whether by implication, estoppel, or otherwise, to grant Fathom the rights discussed in this Agreement. You will indemnify, defend, and hold harmless Fathom and its Affiliates from any and all third-party claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees and court costs) that result from a breach or alleged breach of any representation or warranty set forth in this Agreement. By providing or uploading any Provided Content to the Site or through the Services, unless otherwise stated in a separate agreement entered into by You and Fathom in connection with Your upload of any Provided Content, You grant Fathom a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display such Provided Content throughout the world in any form, media, software, or technology of any kind. In addition, you waive all moral rights in the Provided Content or warrant that all moral rights applicable to such content have been waived. You also grant Fathom the right to use Your name in connection with the reproduction or distribution of such material.
10. CONDUCT. You will not and will not permit any third party to: (1) use the Site or Services to harvest or collect e-mail addresses or other contact information of other users from the Site or Services by electronic or other means for the purposes of sending unsolicited e-mails or other unsolicited communications; (2) use the Site or Services in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (3) use the Site, Services, Products, Software, or Content for any commercial purpose or in any automated manner; (4) use automated scripts to collect information from or otherwise interact with the Site or Services; (5) use the Site or Services to intimidate or harass any other people or entities; (6) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or method of operation of the Site, Services, or any Software or other Product; (7) remove, bypass or circumvent any electronic protection measures on the Site, Services, or on any Software or other Product; (8) remove, alter, or obscure any copyright or other proprietary rights notices included on the Site, Services, Products, Software, or Content; or (9) upload to the Site or provide to Fathom any code or device capable of or intended to interrupt, harm or damage the Site, Services, Products, Software, or Content or the operation thereof.
11. CLAIMS OF INFRINGEMENT. Just as Fathom requires users of the Site and Services to respect the copyrights and other intellectual property rights of Fathom, its Affiliates, and other third parties, Fathom respects the copyrights and other intellectual property rights of users of the Site and Services and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Site or through the Services without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
AC JV, LLC
Attn: Marketing Department
5990 Greenwood Plaza Blvd.
Building 2, Suite 100
Greenwood Village, Colorado 80111
Please provide the following information to Fathom’s Marketing Department:
(1) the identity of the infringed work, and of the allegedly infringing work;
(2) Your name, address, daytime phone number, and E mail 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 of the accuracy of the notice and, under penalty of perjury, that You are authorized to act on behalf of the owner; and
(5) Your electronic or physical signature.
12. REPRESENTATIONS AND WARRANTIES. You hereby represent, warrant, and covenant for the benefit of Fathom and its Affiliates that: (1) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with Your access to the Site or use of the Services; and (3) all information You provide to Fathom in connection with this Agreement and Your access to the Site or use of the Services is correct and current.
13. DISCLAIMER AND LIMITATION OF LIABILITY.
13.1 Disclaimer. THE SITE AND ALL CONTENT, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED THROUGH OR IN CONNECTION WITH THE SITE, OR OTHERWISE PROVIDED BY FATHOM, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER. NEITHER FATHOM NOR ITS AFFILIATES REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY CONTENT, ADVICE, OPINION, STATEMENT, OR OTHER DATA OR INFORMATION DISPLAYED ON, DOWNLOADED FROM, OR DISTRIBUTED THROUGH THE SITE. YOU UNDERSTAND THAT BY USING THE SITE, YOU MAY BE EXPOSED TO CONTENT THAT YOU MAY FIND OFFENSIVE, INDECENT OR OBJECTIONABLE. UNDER NO CIRCUMSTANCES WILL FATHOM BE LIABLE IN ANY WAY FOR ANY PRODUCTS, SERVICES, SOFTWARE OR CONTENT. YOU AGREE THAT YOUR ACCESS TO THE SITE AND THE PRODUCTS, SERVICES, SOFTWARE, AND CONTENT IS AT YOUR OWN DISCRETION AND YOUR OWN RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO OR USE OF THE SITE OR ANY PRODUCTS SERVICES, SOFTWARE, OR CONTENT. EXCEPT WHERE THE LAWS AND REGULATIONS OF A PARTICULAR JURISDICTION CONCERNING WARRANTIES CANNOT BE WAIVED OR EXCLUDED BY AGREEMENT, FATHOM EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SITE, AND THE PRODUCTS, SERVICES, SOFTWARE, AND CONTENT, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, FATHOM MAKES NO WARRANTY THAT THE SITES, PRODUCTS, SERVICES, CONTENT OR SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS CRASHES, AND DOWNTIME OR OTHER FAILURES OR WILL MEET YOUR REQUIREMENTS. THE SITE AND THE PRODUCTS, SERVICES, SOFTWARE OR CONTENT ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USES 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) OR FOR OR IN CONNECTION WITH ANY SYSTEMS OF FUNCTIONS FOR AUTOMATIC OR AUTONOMOUS CONTROL OF VEHICLE BEHAVIOR, WHERE THE FAILURE OF THE PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE.
13.2 Limitation. IN NO EVENT WILL FATHOM BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH YOUR ACCESS TO OR USE OF (OR YOUR FAILURE TO GAIN ACCESS TO OR USE OF) THE SITE OR ANY PRODUCTS, SERVICES, SOFTWARE, OR CONTENT, EVEN IF FATHOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FATHOM’S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100.
14. INDEMNIFICATION. You hereby indemnify, defend, and hold harmless Fathom and its Affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and 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 from Your accessing or using the Site, Services, Products, Software, or Content, or Your breach of any term of this Agreement. Fathom will provide You with notice of any such claim or allegation, and Fathom will have the right to participate in the defense of any such claim at its expense.
16. LINKED SITES OR SERVICES. The Site and Services may contain links to third-party sites or services that are not under the control of Fathom, and Fathom is not responsible for any content on any linked site or service. If you access a third-party site or service from the Site or through the Service, then you do so at your own risk. Fathom provides links only as a convenience, and the inclusion of the link does not imply that Fathom endorses or accepts any responsibility for the content on those third-party sites or services. Fathom welcomes links to the Site. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of your site by Fathom or any group or individual affiliated with Fathom. You may not use on Your site or through Your service any Content or Marks appearing on the Site in establishing the link. You may not frame or otherwise incorporate into another site or service the Content or other materials on the Site or provided through the Services without prior written consent.
17. MOBILE SERVICES. The Services offered through the Site may include certain Services (“Fathom Mobile Services”)made available through Your mobile telephone and other mobile device (“Mobile Device”). By accessing, using, or subscribing to any Fathom Mobile Services, You consent to receiving Content, Products, and Software from Fathom through Your Mobile Device, including, without limitation, news, updates, notices, alerts, polls, giveaways, ringtones, wallpaper, advertising, coupons, datacasts, games, widgets, and other mobile Content, Products or Software. You also consent to providing Content from your Mobile Device to Fathom, including, without limitation, comments, responses, notices, unique device identifiers, GPS and other location-based and geo-positioning information, or other data or information. All Content, Products, Software, or other data or information received, provided, transmitted, exchanged, or otherwise made available through the Fathom Mobile Services are subject to this Agreement. You acknowledge that You: (1) are the authorized account holder for each Mobile Device through which You access, use, or subscribe to any Fathom Mobile Services; or (2) have the authorized account holder’s permission to access, use, or subscribe to such Fathom Mobile Services. The Fathom Mobile Services are available only through participating mobile carriers and on compatible Mobile Devices. Message and Data rates may apply to the Fathom Mobile Services and, depending on your Mobile Device plan or Your mobile carrier or provider, You may incur additional message or data charges by using or accessing the Fathom Mobile Services. Contact Your mobile service provider for more information. You may unsubscribe from the Fathom Mobile Services at any time by replying with the word “STOP” to any message received from Fathom or to any short code provided to You when You subscribed to the Fathom Mobile Services or any replacement for that short code later provided by Fathom.
18. NOTICES. Except as expressly stated otherwise, any notices required or allowed under this Agreement will be given to Fathom by postal mail to the address for Fathom listed on the Site. If applicable law requires that Fathom accept E-mail notices (but not otherwise), then You may send Fathom an E-mail notice by emailing Fathom at email@example.com. With respect to Fathom’s notices to You, Fathom may provide notice of amendments by posting them on the Site and You agree to check for changes. In addition, or in lieu thereof, Fathom may give notice by sending E-mail to the E-mail address You provide during registration for the Site. Notice shall be deemed given 24 hours after it is posted or an E-mail is sent, unless (as to E-mail) the sending party is notified that the E-mail address is invalid.
19. GENERAL TERMS.
19.1 Third-Party Beneficiaries. Fathom’s Affiliates are intended third-party beneficiaries under this Agreement with the right to enforce the provisions that directly concern Products, Services, Content, or Software to which they have rights.
19.2 Assignment. You may not assign, delegate or transfer this Agreement or any of Your rights hereunder, and any attempt to do so will be null and void.
19.3 Integration. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior oral and written agreements or understandings between the parties regarding the subject matter of this Agreement. This Agreement may not be modified except upon mutual written agreement of both parties. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
19.4 Severability. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability, without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
19.5 Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Colorado, without giving effect to any conflict of laws principles. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You hereby irrevocably and unconditionally consent to the jurisdiction and venue in the state and federal courts sitting in Denver, CO. In any such dispute, the prevailing party will be entitled to recover its reasonable attorneys’ fees and expenses from the other party.
19.6 Modifications. Fathom reserves the right, at any time and without notice, to add to, change, update, or modify the Site, Services, or this Agreement, simply by posting such addition, change, update, or modification on the Site or providing it through the Services. Any such addition, change, update, or modification will be effective immediately upon posting on the Site or providing it through the Services and Your continued use of the Site or Services following posting or providing of any such addition, change, update, or modification will constitute Your agreement to be bound by the addition, change, update, or modification.
19.8 Apple, Inc. The Application that is downloaded to an Apple Product uses the iOS software development kit from Apple, Inc. (“Apple”), however, Fathom is solely responsible for the Application and the content thereof. By using or accessing the Application via an Apple product, you acknowledge and agree that this Agreement is between You and Fathom and not with Apple. Furthermore, your access or use of the Application on an Apple product is limited to Apple products you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. Fathom is responsible for addressing any claims You may have related to the use and/or possession of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for any third party claim that the Application, or Your possession and use of the Application, infringes a third party’s intellectual property rights You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement but only to the extent it relates to the Application used on an apple product, and Apple has the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.