Creating an Account
Use of the Fathom Service requires that you create an account by providing us with an email address and password. You are responsible for all activity that occurs in association with your account. Fathom is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
We may need to contact you about your use of the Fathom Service. These communications are part of the Fathom Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications and keep your email address up-to-date from your account settings.
Full use of the Fathom Service may be dependent upon your use of a sensor and supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Fathom Service and it is the user’s responsibility to ensure the equipments’ compatibility and functionality.
“Fathom Content” includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Fathom Service to you. Except for Your Content, Fathom’s Content, Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Fathom Service.
Permitted Uses of the Fathom Service
The Fathom Service is intended for your personal, non-commercial use.
Fathom grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (1) access and view the Fathom Content, (2) access and use the software and mobile applications provided by the Fathom Service, and (3) use the software that is embedded into Fathom products as authorized in these Terms. This license is provided solely for your personal use of the Fathom Service as permitted in these Terms.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Fathom Content, Fathom Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fathom or its licensors, except for the licenses and rights expressly granted in these Terms.
Prohibited Uses of the Fathom Service
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Fathom Service: (1) use, display, mirror or frame the Fathom Service or any individual element within the Fathom Service, Fathom’s name, any Fathom trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Fathom’s express written consent; (2) access or tamper with non-public areas of the Fathom Service, Fathom’s computer systems, or the technical delivery systems of Fathom’s providers; (3) test the vulnerability of any Fathom system or breach any security or authentication measures; (4) circumvent any technological measure implemented by Fathom or any of Fathom’s providers or any other third party (including another user) to protect the Fathom Service or Fathom Content; (5) access the Fathom Service or Fathom Content through the use of any mechanism other than through the use of an Authorized Connection, Fathom Service or Fathom API; or (6) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Fathom provides to you or any other part of the Fathom Service.
Fathom Enforcement Rights
We are not obligated to monitor access of or use of the Fathom Service, Fathom Content, or to review or edit any Fathom Content or Your Content, but we have the right to do so for the purpose of operating the Fathom Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the Fathom Service, any Fathom Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Fathom Content, Your Content, or your use of the Fathom Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Fathom Service.
Not a Medical Device
Fathom Content is based on both peer-reviewed and accepted best practices and at times internal findings based on population data. Our goal is to provide helpful and accurate information through the Fathom Service, but we make no endorsement, representation or warranty of any kind about any Fathom Content, information, services or recommendations. The accuracy of the data collected and presented through the Fathom Service is not intended to match that of medical devices.
We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Fathom Service.
Consult Your Doctor Before Using The Fathom Service
The Fathom Service is not intended to diagnose, treat, cure, or prevent any disease or medical condition. If you have a medical condition, are returning from an injury, or on medication which may affect your response to exercise, please consult your doctor before using the Fathom Service or engaging in an exercise program. If you experience a medical emergency, stop using the Fathom Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Fathom Service. If you engage in any exercise program you receive or learn about through the Fathom Service you agree that you do so at your own risk and are voluntarily participating in these activities.
Prolonged contact with wearable devices may contribute to skin irritation in some users. To reduce irritation, follow these wear and care tips: (1) Keep the sensor clean, (2) dry your skin before applying the sensor, and (3) remove the sensor after periods of heavy sweating and wash skin thoroughly to remove any potential residue. If you notice any skin irritation, remove your device. If symptoms persist longer than 2-3 days after removing the device, consult your doctor.
We recommend users discontinue exercise and consult their doctor if you feel pain during movement and activity.
Feedback And Submissions Policy
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by Fathom, or obtained from sources other than you.
Agreement to Receive Alerts And Notifications
As part of your use of the Fathom Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
We Are Not Responsible For Third-Party Links On The Fathom Service
The Fathom Service contains links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under Fathom’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
Fathom Does Not Control Third-Party Services That You Link With Your Fathom Account
Changes To The Fathom Service
Fathom may change or discontinue, temporarily or permanently, any feature or component of the Fathom Service at any time without notice. Fathom is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Fathom Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Fathom products without prior notice to you.
If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may cancel your account at any time by contacting customer support at support@Fathomai.com. Upon any termination, discontinuation or cancellation of the Fathom Service or your account, the following provisions of these Terms will survive: Posting Your Content On The Fathom Service; Fathom’s Rights; Our Enforcement Rights; Consult Your Doctor Before Using The Fathom Service; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.
THE FATHOM SERVICE AND FATHOMCONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Fathom Service or Fathom Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Fathom Service or any Fathom Content. You acknowledge and agree that if you rely on any Fathom Content or the Fathom Service, you do so solely at your own risk.
You will indemnify and hold harmless Fathom and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Fathom Service, (ii) Your Content, or (iii)your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation Of Liability
NEITHER FATHOM, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE FATHOM SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE Fathom SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Fathom HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL FATHOM’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE FATHOM SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO Fathom FOR USE OF THE FATHOM SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO FATHOM, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Fathom AND YOU.
These Terms shall be governed by and construed in accordance with the laws of the State of North Carolina and controlling U.S. federal law as applicable, without regard to its conflict of law principles.
To the maximum extent permitted by applicable law, you and Fathom agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Fathom Service under the rules of the American Arbitration Association. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
Any arbitration between you and us, to the extent necessary, will be conducted in Durham, North Carolina, and you waive any right to claim that such location is an inconvenient forum. You agree not to sue us or bring arbitration in any other forum.
The arbitration will be conducted in English. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association. Both you and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens for everyone involved:
-the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration;
-the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and
-any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement describing the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with us arising out of or relating to your use of the Services:
You are giving up your right to have a trial by jury;
You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; and
You must file any claim within one (1) year after such claim arose or it is forever barred.
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts for Durham, North Carolina, and you and we hereby submit to the personal jurisdiction and venue of these courts.
This agreement to arbitrate will not preclude you or Fathom from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Fathom from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of Fathom’s intellectual property rights.
In the event of any litigation or arbitration arising from or related to these Terms, or the Fathom Service provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation or arbitration.
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Fathom and you regarding the Fathom Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Fathom and you regarding the Fathom Service and Fathom Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Fathom’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Fathom may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Fathom under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Fathom Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
Fathom’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fathom. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Additional Terms May Apply
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.
PO Box 25325
Durham, NC 27702
At Fathom Co. (“Fathom”), we respect the intellectual property rights of others and expect our users to do the same.
It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of users who repeatedly infringe the copyrights of others in accordance with the U.S. Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Web Site,http://www.copyright.gov).
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, and believe that any material available on or through the Fathom website, including applications, products, user-generated content, posts or materials on user forums, or any other content (collectively referred to as “Content”), infringes upon your copyrights, you may report alleged copyright infringements by providing the information in the following DMCA Notice of Alleged Infringement (“Notice”) and delivering it to Fathom’s Designated Copyright Agent identified below. Upon receipt of the Notice, we will take whatever action, in our sole discretion, we deem appropriate, including removal of the Content. If we remove or disable access in response to such a notice, we may notify the owner or administrator of the Content so that he or she can make a counter notification.
Please note that filing a report of intellectual property infringement is a serious matter with legal consequences. Any person who knowingly materially misrepresents that material or activity is infringing could be liable for damages pursuant to section 512(f) of the DMCA or similar laws in other jurisdictions or countries. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney. You acknowledge that if you fail to comply with all of the notice requirements below, your copyright notice may not be valid.
DMCA NOTICE OF ALLEGED INFRINGEMENT
- Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site(s) where such material may be found.
- Provide your mailing address, telephone number, and, if available, email address. (Note that we may provide your contact information, including your name and email address, the name and address of the owner of the right in question, and/or the contents of your report to the person who posted the material you are reporting.)
Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Fathom’s Designated Copyright Agent:
c/o Fathom Co.
PO Box 25325
Durham, NC 27702