This Fathom Terms and Conditions (the “Terms”) are entered into between Avalanche Strategy, Inc. dba Fathom , a Delaware corporation with headquarters at [9335 Eric Pl. NE, Bainbridge Island, WA 98110] (“Fathom”) and the entity that has executed an Order Form that references and incorporates these Terms by reference (“Customer”), and governs Customer’s access to and use of Fathom’s products and services (collectively, “Services”) described on such Order Form. An “Order Form” means any written order form or other ordering document signed by Fathom and Customer referencing these Terms, and containing the pricing, subscription term, and other specific terms and conditions applicable to Customer’s access to and use of the Services.  These Terms and the Order Form, constitute the complete understanding between the parties on the subject matter (“Agreement”) and is effective on the earlier of: (a) the date that the Order Form is fully executed by the parties, or (b) Customer’s initial access to and use of the Services (“Effective Date”). By entering into an Order Form and/or otherwise accessing or using the Services, Customer agrees to be bound by these Terms and the other terms and conditions of the Agreement. If Customer does not accept these Terms, Customer is not authorized to access or use the Services. Each of Fathom and Customer may be referred to herein as a “Party” and together, the “Parties”.

TERMS AND CONDITIONS

1. DEFINITIONS.  Capitalized terms have the meaning set forth below or as defined within this Agreement.

1. “Applicable Privacy Laws” means, to the extent applicable to the Services, all worldwide data protection and privacy laws and regulations, including where applicable, the California Consumer Privacy Act Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”), the General Data Protection Regulation (“GDPR”), the e-Privacy Directive (Directive 2002/58/EC), and any U.S. state or national data protection laws as superseded, amended or replaced.

2. “Authorized User” means the employees, agents and independent contractors of Customer who are authorized to access the Platform pursuant to Customer’s rights under this Agreement.

3. “Fathom Technology” means the Platform, the Services, the Documentation and any applicable software, data, or technical information contained within the foregoing.

4. “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users,  in connection with the Services, including any Personal Data.

5. “Customer Marks” means Customer’s trademarks, tradenames, service marks, and logos.

6. “Documentation” means all specifications, user manuals, and other technical materials relating to the Platform to the extent provided or made available to Customer, and as may be modified by Fathom from time to time.

7. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.

8. “Order Form(s)” means Fathom’s standard form for ordering Services which specifies the Services to be provided by Fathom, the applicable Fees, and any additional terms, conditions, or restrictions agreed to by the parties.

9. “Personal Data” has the meaning given in Applicable Privacy Laws.

10. “Platform” means Fathom’s proprietary software-as-a-service platform designed to deliver understanding based on surveys with qualitative data, which is used to provide the Services, as may be updated or improved by Fathom from time to time.

11. "Processing" (including "Process", "Processes", "Processed", and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction. 

12. “Professional Services” means the professional services provided by Company to Customer as described in any Order Form (as may be further elaborated in any SOW).

13. “Services” means the tools and data labelling services provided through the Platform and described on an Order Form agreed by the Parties in writing under this Agreement, and the Professional Services, if any, provided under one (1) or more Order Forms or SOWs.

2. ACCESS TO THE PLATFORM; RESTRICTIONS; SERVICES.

1. Access.  Subject to the terms and conditions of this Agreement, Fathom hereby grants to Customer, and the Authorized Users on Customer’s behalf, a limited, non-exclusive, non-transferable (except as permitted under Section 11.4), non-sublicensable right during the Term to: (a) access and use the Services and other features and functionality of the Platform, in accordance with the Documentation and the terms of this Agreement; (b) use and make reasonable copies of the Documentation.  Customer acknowledges and agrees that Fathom may update the Services and the Platform from time to time with or without notifying Customer, provided, that any such update does not materially diminish any of the features and functionality previously made available through the Services or Platform. Fathom shall use commercially reasonable efforts to ensure that any such updates do not materially degrade the functionality of the Platform or the Services.

2. Restrictions.  Customer shall not, and shall procure that its Authorized Users shall not: (a) allow any third party to access the Fathom Technology except as expressly allowed herein; (b) modify, adapt, alter or translate the Fathom Technology; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Fathom Technology for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform or other Fathom Technology, except as permitted by law; (e) interfere in any manner with the operation of the Platform, the Services or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Platform without prior authorization of Fathom; (f) modify, copy or make derivative works based on any part of the Fathom Technology; (g) access or use the Fathom Technology to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (h) attempt to access the Platform through any unapproved interface; (i) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Fathom or its licensors on the Fathom Technology or any copies thereof; or (j) otherwise use the Fathom Technology in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, the Order Form or this Agreement. Fathom reserves the right to suspend without prior notice Customer’s access to the Platform and the Services for any failure, or suspected failure, to comply with the foregoing conditions.

3. Acceptable Use Policy.  The following terms constitute our “Acceptable Use Policy”: Customer shall not use the Fathom Technology in a manner that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive or otherwise objectionable of any kind or nature or which is harmful to minors in any way; (c) is designed to discriminate or discriminates against any group (including without limitation, any particular race, nationality, religion, gender, disability or union status); (d) adversely impacts or attempts to adversely impact the environment; or (e) otherwise violates any law, regulation, or obligations or restrictions imposed by any third party. Fathom reserves the right to suspend Customer’s access to the Platform and the Services for any failure, or suspected failure, to comply with Fathom’s Acceptable Use Policy.

4. Usernames and Passwords.  Each Authorized User will use his or her unique username and password or single sign on credentials to access the Platform pursuant to this Agreement (“Credentials”).   Customer acknowledges and agrees that: (a) only Authorized Users are entitled to access the Platform with their unique Credentials; (b) it will provide to Fathom information and other assistance as necessary to enable Fathom to establish access to the Platform for the Authorized Users, and will verify all Authorized User requests for access to the Platform; (c) it will ensure that each unique Credentials will be used only by that Authorized User when accessing the Platform; (d) Customer is responsible for maintaining the confidentiality of all Authorized Users’ unique Credentials, and is solely responsible for all activities that occur under these Authorized User accounts; (e) Customer will notify Fathom promptly of any actual or suspected unauthorized use of any account, Credentials, or any other breach or suspected breach of this Agreement; and (f) Customer is at least 18 years old (or the age of majority in Customer’s jurisdiction).  Fathom reserves the right to suspend, disable or terminate any Authorized User’s access to the Platform that Fathom reasonably determines may have been used by an unauthorized third party. The unique Credentials cannot be shared or used by more than one individual Authorized User to access the Platform.

5. Company Content.  Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content.  Customer will obtain all third party licenses, consents and permissions needed for Fathom to use and process the Customer Content to provide the Services.  Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties (including all Authorized Users) all necessary consents and rights for Fathom to use the Customer Content submitted by or on behalf of Customer or Authorized Users for the purposes set forth in this Agreement, including all consents required in accordance with all Applicable Privacy Laws.  

6. Necessary Equipment.  Customer must provide all equipment and software necessary to connect to the Platform, including but not limited to, applicable application program interfaces that have sufficient bandwidth to facilitate the Services.  Customer is solely responsible for any fees, including internet connection fees, that Customer incurs when accessing the Platform and the Services.

7. Support Services. Subject to the terms and conditions of this Agreement, Fathom will exercise commercially reasonable efforts to: (a) provide support for the use of the Platform and Services to Customer; and (b) keep the Platform and Services operational and available to Customer, in each case in accordance with its standard policies and procedures.

8. Professional Services. Where the parties have agreed to Fathom’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW”).  The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement.  To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.  

9. Fathom Communications. By entering into the Agreement, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include, but are not limited to, operational communications concerning your account or the use of the Platform or Services, updates concerning new and existing features on the Platform or Services, and news concerning the Company and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.

3. FEES, PAYMENT, AND TAXES.

1. Fees. In consideration for the access rights to the Platform granted to Customer and the Services performed by Fathom under this Agreement, Customer will pay to Fathom the fees set out in the applicable Order Form (“Subscription Fees”). Except as set forth otherwise in an Order Form, such Subscription Fees will be charged to the payment method specified on the Order Form (“Payment Method”), in advance, in accordance with the payment schedule identified on the Order Form.  In the event Customer exceeds the limitations relating to the Customer then-current tier (as set forth in the Order Form), Customer agrees to pay any additional per-month amounts applicable to the next tier (“Additional Fees”) and Customer will be charged at the higher rates for the next tier thereafter. Customer hereby agrees to Fathom’s automatic charging of such Additional Fees in arrears to Customer’s Payment Method as described herein and that no further consent is required for such charges. Except as otherwise provided in the Order Form or the applicable SOW, all fees for Professional Services (“Professional Services Fees”) are billed at the end of the month in arrears and payable within thirty (30) days of the date of the invoice.  Subscription Fees, Additional Fees, and Professional Services Fees are referred to herein as the “Fees”.  Fathom will be reimbursed only for expenses that are expressly provided for in an Order Form or that have been approved in advance in writing by Customer, provided Fathom has furnished such documentation for authorized expenses as Customer may reasonably request.  Fathom reserves the right (in addition to any other rights or remedies Fathom may have) to discontinue the Platform and the Services and suspend all Authorized Users’ and Customer’s access to the Platform and the Services if Fathom is unable to process any payment amounts to the Payment Method when due and/or Customer has not otherwise paid outstanding Fees for a period exceeding fifteen (15) days from the date such Fees were due, until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times. 

2. Third Party Payment Provider. Fathom uses Stripe, Inc. as the third party service provider for payment services (e.g., card acceptance and related services).  By selecting a credit card as the Payment Method for paying Subscription Fees and Additional Fees, Customer agrees to be bound by Stripe’s Privacy Policy: https://stripe.com/privacy and hereby consents and authorizes Fathom to share any information and payment instructions provided herein with Stripe to the minimum extent required to complete Customer’s transactions hereunder.

3. Late Payments. Payments by Customer that are past due will be subject to interest at the rate of one and one-half percent (1½%) per month (or, if less, the maximum allowed by applicable law) on that overdue balance. Customer will be responsible for any costs resulting from collection by Fathom of any such overdue balance, including, without limitation, reasonable attorneys’ fees and court costs.  Fathom reserves the right (in addition to any other rights or remedies Fathom may have) to suspend Customer and all Authorized Users’ access to the Platform and the Services if any Fees are more than fifteen (15) days overdue until such amounts are paid in full.

4. Taxes. The Fees do not include taxes, duties or charges of any kind.  If Fathom is required to pay or collect any local, value added, goods and services taxes or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Fathom’s income), then such taxes and/or duties shall be billed to and paid by Customer.

5. Withholding Payments.  If any applicable law requires Customer to withhold amounts from any payments to Fathom hereunder, then Customer will perform such obligations consistent with the provisions of this section.  Prior to withholding amounts, Customer will notify Fathom of the withholding requirement and provide information establishing the requirement to withhold. Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Fathom with tax receipts evidencing the payments of such amounts. The sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Fathom receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Fathom would have received and retained in the absence of such required deduction or withholding.

6. Free Trials. Any free trial or other promotion that provides access to the Platform and/or Services must be used within the specified time of the trial. At the end of the trial period, Customer’s use of the Platform and/or Services will expire and any further use of the Platform and/or Services is prohibited unless Customer pays the applicable Subscription Fees.

4. TERM AND TERMINATION.

1. Term.  This Agreement will begin on the effective date of the first Order Form between the Parties and will continue in full force and effect for as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”).   

2. Termination. 

1. Either Party may terminate this Agreement immediately upon notice to the other Party if:

1. the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or

2. the other Party: (i) becomes insolvent; (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement; or (c) makes an assignment for the benefit of its creditors.

2. Either Party may terminate an Order Form if the other Party materially breaches the Order Form, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. The termination of an Order Form does not affect any other outstanding Order Form then in effect.

3. Fathom may terminate this Agreement, and any Order Form, for convenience upon sixty (60) days’ written notice to Customer, provided that Customer shall receive a refund of any pre-paid but unearned Fees prorated on a monthly basis for the remainder of the term of the applicable Order Form.

3. Effect of Termination.  Upon the earlier of expiration or termination of this Agreement:

1. each Party shall immediately return or, if requested by a Party, destroy all (including any copies of) Confidential Information (as defined below) of the other Party and, upon request, each Party shall provide written certification that the foregoing obligations have been completed; 

2. all Order Forms and the rights and licenses granted to Customer hereunder will immediately terminate, Customer will cease use of the Platform,  the Services and Documentation, and return or destroy all copies of the Documentation in its possession/control;

3. the Parties’ rights and obligations under Sections 2.2, 3, 4.3, 5, 7, 8.2, 9, 10 and 11 will survive termination of this Agreement and/or any Order Form; and

4. termination of this Agreement will not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor will termination relieve Customer of its obligation to pay all Fees that accrued prior to such termination.

5. CONFIDENTIALITY.

1. Definition. Each Party (“Receiving Party”) acknowledges that it may receive from the other Party (“Disclosing Party”) confidential information relating to the Disclosing Party and such confidential information includes, but is not limited to, technical, business, marketing and financial information, survey data, and any other information that could reasonably be considered confidential or proprietary (“Confidential Information”).  The terms of this Agreement and any Order Form, the Fathom Technology, and all technical information relating thereto shall be considered Confidential Information of Fathom.

2. Exceptions. Confidential Information does not include information that:

1. is or becomes generally available to the public other than through a wrongful act of the Receiving Party;

2. is or becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it to the Receiving Party; or

3. is independently developed by the Receiving Party, its employees or third party contractors without access to or use of the Disclosing Party’s Confidential Information.

3. Obligations. During and after the term of this Agreement, the Receiving Party shall: (i) not use (except for performance of this Agreement) or disclose Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party; and (ii) take no less than the same measures that it takes with its own Confidential Information, and in any case no less than reasonable measures, to maintain the Confidential Information of the Disclosing Party in confidence.

4. Lawful Disclosure. Either Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.

5. Ownership. All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except for the limited use right above) operate to transfer, or operate as a grant of any Intellectual Property Rights in the Confidential Information.

6. DATA SECURITY; PRIVACY.

1. Data Security.  Fathom shall maintain reasonable data safeguards and procedures designed to prevent the authorized use or disclosure of Personal Data as required under Applicable Privacy Laws (“Data Safeguards”). During the Term, Fathom will maintain physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data. Fathom will periodically archive and back-up of Personal Data in accordance with Fathom’s applicable disaster recovery and business continuity procedures and industry standards.  

2. Privacy.  Without limiting Customer’s obligations under Sections 2.5, 6.3 and 8.2, each Party shall comply with all Applicable Privacy Laws in the performance of their respective obligations under this Agreement with respect to the processing of Personal Data. Fathom’s Privacy Policy is available at: https://www.fathomthat.ai/privacy-policy.

3. Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of Credentials required in order to access the Platform and the Services. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.  Fathom is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense.

7. INTELLECTUAL PROPERTY RIGHTS.

1. Fathom Technology.  This Agreement does not grant to Customer any ownership interest in the Fathom Technology.  The Fathom Technology is proprietary to Fathom and Fathom and/or its licensors have and retain all right, title and interest, including all Intellectual Property Rights therein.  Customer acknowledges that any trademarks, trade names, logos, service marks, or symbols adopted by Fathom to identify the Platform and the Services belong to Fathom and/or its licensors, and that Customer has no rights therein.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Fathom Technology, including any right to obtain possession of any source code, data or other technical material relating to the Fathom Technology.  All rights not expressly granted to Customer are reserved to Fathom.

2. Customer License; Ownership. The Customer Content, and Customer’s Confidential Information, and all worldwide Intellectual Property Rights therein, are the exclusive property of Customer. All rights in and to the Customer Content and Customer’s Confidential Information not expressly granted to Fathom in this Agreement are reserved by Customer. Customer grants Fathom a non-exclusive, worldwide, royalty-free and fully paid license during the Term to: (a) process and use the Customer Content as necessary for purposes of providing and improving the Platform and the Services, including without limitation training Fathom’s models and (b) to use the Customer Marks as required to provide the Services.  Fathom may generate Usage Data to operate, improve, analyze and support the Platform and the Services for benchmarking and reporting and for Fathom’s other lawful business purposes. For the purposes of this Section, “Usage Data” means technical logs, account and login data, data and aggregated learnings about Customer’s usage of the Platform and the Services (e.g., frequency of logins, volume of Customer Content processed).

3. Feedback and Data.  Customer hereby grants Fathom a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Fathom Technology, including for the purpose of improving and enhancing the Platform and the Services; provided that Customer is not referenced in such use. Both during and after the Term, Fathom may collect, use and analyze Customer Content provided to Company or otherwise arising during the use of the Platform and the Services in order to improve and enhance the Platform and the Services and for other diagnostic and development purposes for other offerings of Fathom, but solely to the extent such data is aggregated and anonymized in a way that does not identify Customer.

4. Publicity. Fathom may use Customer’s name and Customer Marks in its Customer list (including on Fathom’s website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers. Fathom shall use Customer Marks in accordance with Customer’s applicable branding guidelines and Fathom may not use Customer’s name in any other way without Customer’s prior written consent (with email consent deemed sufficient).

8. WARRANTIES; DISCLAIMERS.

1. Fathom Limited Warranty.  Fathom represents and warrants that the Services will be performed consistent with generally accepted industry practices. Customer must report any deficiencies in the performance of the above warranties to Fathom in writing within thirty (30) days of the non-conformance.  Provided the Customer has complied with the foregoing, for any breach of the above warranties, Customer’s exclusive remedy, and Fathom’s entire liability, will be the re-performance of the Services and if Fathom fails to re-perform the Services as warranted, Customer’s sole and exclusive remedy shall be to terminate this Agreement immediately upon notice to Fathom.

2. Customer Warranty. Customer represents and warrants that:

1. it has procured all applicable consents required to provide the Customer Content to Fathom for the performance of the Services, including in accordance with Section 2.5 and all Applicable Privacy Laws;

2. the Customer Content will not: (i) infringe or misappropriate any third party’s Intellectual Property Rights; (ii) be deceptive, defamatory, obscene, pornographic or unlawful; (iii) contain any viruses, worms or other malicious computer programming codes intended to damage Fathom Technology; and (iv) otherwise violate the rights of a third party (including under all Applicable Privacy Laws); and

3. neither Customer, nor any of its Authorized Users, shall upload to the Platform any Customer Content that contains any Personal Data of a sensitive nature,  (such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers), or any information or combinations of information that fall within the definition of “special categories of data” under Applicable Privacy Laws.

Customer agrees that any use of the Fathom Technology contrary to or in violation of the representations and warranties of Customer in this Section 8.2 constitutes unauthorized and improper use of the Fathom Technology.

3. DISCLAIMERS. 

1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND FATHOM AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING, OR OTHERWISE.  EXCEPT AS SPECIFIED IN SECTION 8.1, FATHOM AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE FATHOM TECHNOLOGY, AND ANY OTHER PRODUCT OR SERVICES FURNISHED UNDER THIS AGREEMENT.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FATHOM DOES NOT WARRANT THAT THE PLATFORM IS ERROR-FREE OR THAT THE PLATFORM OR THE SERVICES WILL OPERATE WITHOUT INTERRUPTION AND FATHOM GRANTS NO WARRANTY REGARDING THE USE BY CUSTOMER OF THE PLATFORM OR SERVICES.  THE FATHOM TECHNOLOGY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  FATHOM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS;

2. CUSTOMER ACKNOWLEDGES AND AGREES THAT FATHOM IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD FATHOM LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.

3. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND SERVICES ARE NOT DESIGNED TO COMPLY WITH CERTAIN INDUSTRY-SPECIFIC REGULATIONS SUCH AS THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OR THE FEDERAL INFORMATION SECURITY MANAGEMENT ACT, SO CUSTOMER MAY NOT USE THE PLATFORM OR SERVICES WHERE CUSTOMER CONTENT WOULD BE SUBJECT TO SUCH LAWS, AND FATHOM SHALL NOT BE LIABLE IN CONNECTION WITH ANY SUCH USE. CUSTOMER MAY NOT USE THE PLATFORM AND SERVICES IN A WAY THAT WOULD VIOLATE THE GRAMM-LEACH-BLILEY ACT.

9. INDEMNIFICATION

1. By Fathom. Fathom will defend at its expense any suit brought against Customer, and will pay any settlement Fathom makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Platform or the Services infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Platform or Services becomes, or in Fathom’s opinion is likely to become, the subject of a claim of infringement (“Infringing Technology”), Fathom may, at Fathom’s option: (a) procure for Customer the right to continue using the Infringing Technology; (b) replace the Infringing Technology with non-infringing software or services which do not materially impair the functionality of the Platform or Services; (c) modify the Infringing Technology so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Fathom Technology. Notwithstanding the foregoing, Fathom will have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Platform or Services not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Platform or Services in combination with other products, equipment, software or data not supplied by Fathom; or (iii) any modification of the Platform or Services by any person other than Fathom or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Fathom, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

2. By Customer. Customer will defend at its expense any suit brought against Fathom, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to: (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 6.2 and 8.2. This section states the sole and exclusive remedy of Fathom and the entire liability of Customer, or any of its officers, directors, employees, shareholders, contractors or representatives, for the claims and actions described herein.

3. Procedure. The indemnifying Party’s obligations as set forth aboveare expressly conditioned upon each of the foregoing: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party having sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party cooperating with the indemnifying Party to facilitate the settlement or defense of any claim or suit.

10. LIMITATION OF LIABILITY.

1. Types of Damages.  NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY NOR TO ANY THIRD PARTIES FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE FATHOM TECHNOLOGY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT AND REGARDLESS WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT.  IN NO EVENT SHALL FATHOM BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

2. Amount of Damages. EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR DAMAGES FOR SERVICES PERFORMED WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

3. Exclusions. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO: (A) A BREACH BY A PARTY OF SECTIONS 2 OR 5; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9; OR (c) ANY DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.

4. Basis of the Bargain. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN FATHOM AND CUSTOMER. FATHOM’S FEES FOR THE SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

11. GENERAL PROVISIONS.

1. Relationship Between the Parties. Fathom is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties.  Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Fathom.  Each Party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes.  Each Party will maintain appropriate worker’s compensation insurance for its employees as well as general liability insurance.

2. Injunctive Relief. Customer acknowledges that the Platform and the Services contain valuable Intellectual Property Rights and proprietary information of Fathom, that any actual or threatened breach of Sections 2 or 5 will constitute immediate, irreparable harm to Fathom for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.  If Customer continues to use the Platform or the Services after its right to do so has terminated or expired, Fathom will be entitled to immediate injunctive relief without the requirement of posting bond.

3. Export and Import Laws.  Customer agrees not to use, export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Fathom, or any products utilizing such data, in violation of the United States export laws or regulations. Further, each Party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Services are provided (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation.  Customer further represents that (i) Customer is 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 (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.  Customer acknowledges and agrees that products, services or technology provided by Fathom are subject to the export control laws and regulations of the United States, agrees to comply with these laws and regulations, and agrees that it shall not, without prior U.S. government authorization, export, re-export, or transfer Fathom products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

4. Assignment.  Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however that Fathom shall have the right to assign the Agreement, without the prior written consent of Customer, to the successor entity in the event of merger, corporate reorganization or a sale of all or substantially all of Fathom’s assets. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.

5. Notices.  All notices required or permitted under this Agreement must be delivered in writing, if to Fathom, by emailing [team@fathomthat.ai] and if to Customer by emailing the Customer Point of Contact email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other Party at the Party’s address as listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each Party may change its email address and/or address for receipt of notice by giving notice of such change to the other Party.

6. Governing Law.  The Agreement is governed by the laws of the State of Delaware, without regard to its conflicts of laws or provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  The prevailing Party in any action to enforce this Agreement shall be entitled to recover attorneys’ fees, court costs, and other collection expenses.  Any action or proceeding arising from or relating to this Agreement will be brought in a federal court in the County of New Castle and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.  Notwithstanding the foregoing, nothing shall prevent either Party from seeking relief in any court of competent jurisdiction for any misuse or misappropriating of such Party’s Intellectual Property Rights or Confidential Information.

7. Waivers; Severability.  Any waivers shall be effective only if made by writing signed by representatives authorized to bind the Parties.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  If any provision of this Agreement is 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 will continue in full force and effect.  Without limiting the generality of the foregoing, Customer agrees that Section 10 will remain in effect notwithstanding the unenforceability of any provision in Sections 8 and 9.

8. Construction.  The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”

9. Force Majeure.  Any delay in the performance of any duties or obligations of either Party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.

10. Entire Agreement; Amendment. This Agreement and any applicable Order Form constitutes the complete agreement between the Parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement.  To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.  It is expressly agreed that the terms and conditions of this Agreement and any Order Form supersede the terms any of Customer’s purchase order.  Neither this Agreement nor an Order Form may be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage, or custom will be deemed to amend or modify this Agreement or an Order Form.