KEMEERA (DBA FATHOM) CUSTOMER AGREEMENT
This Agreement (“Agreement”) sets forth the terms and conditions on which FATHOM provides customers digital manufacturing services and rapid prototyping services and issues quotations for such services (“Services”). A user (referred to as a “Customer”) may obtain a pricing quotation for Services by way of this website (the “Website”), and Customers agree and acknowledge that use of this Website is and shall be governed by the terms and conditions of this Agreement The Services a Customer may obtain through this Website are provided by Kemeera, Inc. doing business as “FATHOM” (referred to hereafter as “FATHOM”), a California corporation, whose principal place of business is located at 315 Jefferson St, Oakland, CA 94607.
1. DIGITAL MANUFACTURING, RAPID PROTOTYPING AND DESIGN SERVICES.
1.1 FATHOM QUOTATIONS. From time to time the Customer may request price quotations (“FATHOM Quotes”) from FATHOM for the production of end use parts or a rapid prototype parts (collectively referred to as “Part” or “Parts”) and/or provision of other manufacturing services or rapid prototyping services (collectively referred to as “Services”) by completing the FATHOM Quote form on this Website and initiating an Order (as defined below in Section 1.2). The FATHOM Quote requires the Customer to submit all of its desired specifications, which may include any critical tolerance or requirements (“Specifications”) for the Part to FATHOM.
1.2 ORDERS. Once the Customer has obtained a FATHOM Quote, Customer may accept the quote from FATHOM and may submit an online order (an “Order”) requesting FATHOM to produce the Part(s) quoted. The total fees for each Order shall include the applicable amount specified in the FATHOM Quote for the Part(s), plus all applicable taxes and all shipping charges (collectively, the “Fees”). To submit an Order, the Customer must either pay the Fees in advance online by providing FATHOM with valid credit card account information, or by issuing a non-cancellable purchase order to FATHOM by e-mail. Once an electronic Order confirmation has been delivered to the Customer, the Order is binding on both parties, and may not be cancelled or changed except by written agreement of the parties. The Order confirmation shall specify the anticipated Services duration, and the date range on which the Part shall be completed. FATHOM reserves the right to accept or reject any Order or Order change for any reason, at its sole discretion. All Services and the Order are expressly governed by the terms and conditions of this Agreement, and the parties acknowledge and agree that no other terms and conditions of any Customer purchase order or other agreements, forms, contracts, or terms and conditions not specifically agreed to in writing by FATHOM shall be binding upon FATHOM under any circumstances, which is an express condition that Customer agrees to in exchange for FATHOM’s performance of the Services in connection with a confirmed Order.
1.3 CANCELLATION/CHANGE ORDERS. If FATHOM does agree to a cancellation or change request, Customer may receive the following refunds for cancelled/changed Orders based on the following:
Orders can only be cancelled/changed by FATHOM personnel. Please contact us by telephone at: (877) 345-4948, or via email at firstname.lastname@example.org if you wish to request changes to your Order.
1.4 REPEAT/SIMILAR ORDERS. FATHOM processes each Order as a new Order. If the Customer requires an Order to be processed in an identical manner as a previous Order, Customer must request that FATHOM reference in its FATHOM Quote the previous Order number on the new Order.
1.5 DELIVERY TERMS. FATHOM will use commercially reasonable efforts to provide all Parts to the Customer in accordance with the Order and this Agreement, and within the timeframe specified by FATHOM at the time of its Order confirmation. After completion of the Services and once the Part is ready for shipping, FATHOM shall use commercially reasonable efforts to deliver the Part(s) within three (3) to five (5) business days based the delivery method Customer selected in the FATHOM Quote. Shorter lead-times may be available for smaller projects, and overnight delivery may be available for an additional charge. Lead times will be longer for Orders involving large quantities and/or physically large Parts. If the parties have agreed to partial Parts shipments in the Order, the Quote and Order confirmation may specify additional charges. Please call (877) 345-4948 or email email@example.com for more information.
1.6 SHIPPING AND INSURANCE: Parts Shipments are F.O.B. shipping point, and risk of loss passes at the time FATHOM provides the Parts to the designated carrier. Any damage to Parts during transportation is the responsibility of the carrier and Customer. Customer is responsible for securing appropriate insurance and for submitting any damage claims to the carrier for damages.
2. OWNERSHIP OF INTELLECTUAL PROPERTY.
2.1 CUSTOMER OWNERSHIP. The entire right, title and interest, including all copyright, patent, trade secret, mask work and trademark rights (“Customer’s Intellectual Property”), in and the Part and any Specifications related thereto is and shall be owned solely by the Customer, or its licensors.
2.2 FATHOM RIGHTS Notwithstanding Section 2.1, FATHOM retains all right, title and interest, in and to all FATHOM Intellectual Property, which includes but is not limited to, all copyright, patent, trade secret, mask work and trademark rights, in and to the FATHOM Website and in the underlying software, technology, methodologies and know-how used by FATHOM in performing its Services and producing Parts, including any new Intellectual Property derived from or developed in course of the performance of Services.
3. LIMITED CUSTOMER WARRANTIES; FATHOM WARRANTY DISCLAIMER.
3.1 CUSTOMER WARRANTIES. Customer hereby warrants that (a) it has the right to provide the Specifications to FATHOM; (b) the use of the Specifications and such other materials provided by the Customer to produce a Part will not violate or infringe any intellectual property or other legal rights of any third party; and (c) any software or Part files delivered by the Customer to FATHOM will be free of any viruses, time bombs and other harmful programming routines.
3.2 FATHOM WARRANTY DISCLAIMER. FATHOM makes no representations, warranties, guarantees or conditions as to materials, strength, tolerances, or other part characteristics; and all parts are delivered and accepted in "as is" condition. To the maximum extent of applicable law, FATHOM expressly disclaims any and all obligations, duties and liabilities, and customer is and shall be exclusively liable, for any use by a third party of the part manufactured and produced by fathom pursuant to a quote and this agreement. In addition, FATHOM disclaims all other statutory, express, and implied representations, warranties, guarantees, and conditions of any kind, with respect to the parts or the services provided hereunder, including without limitation any implied warranty of merchantability, fitness for a particular purpose, title, non-infringement, quality of service, or otherwise arising out of a course of performance, dealing, or trade usage.
4. LIMITATION OF LIABILITY.
4.1 EXCLUSION OF CONSEQUENTIAL DAMAGES. In connection with any services rendered or part produced by FATHOM pursuant to an order placed under this agreement, FATHOM hereby disclaims and excludes any and all liability for punitive, exemplary, incidental, indirect and/or consequential damages, including without limitation late delivery, lost profits, lost opportunity costs or costs of cover, arising in connection with this agreement and its subject matter, whether such damages arise by contract, tort (including negligence), or otherwise.
4.2 DIRECT DAMAGE LIMITATION. FATHOM’s aggregate and cumulative liability for any damages of any kind incurred in connection with or which arise out of this agreement and its subject matter, whether arising by contract, tort (including negligence) or otherwise, shall not exceed the total service fees paid by customer for the applicable part alleged to have caused such damage.
4.3 BASIS OF THE AGREEMENT. Customer further agrees and acknowledges that these disclaimers, exclusions and limitations of liability are a material and essential condition of this agreement, and that the website and services would not be made available, or would be made available on materially different terms, in the absence of these conditions, which customer does expressly consent to under the advice of a counsel of its choosing.
5. INDEMNITY. Customer agrees to defend, indemnify and hold harmless FATHOM, its agents and employees against all claims, losses, liabilities and damages, and to pay all claims, judgments, awards, costs and expenses (including attorney and expert witness fees) arising out of or in connection with Supplier’s acts or omissions under this Agreement, and (i) any claim that any Specifications, Parts or any other materials provided to FATHOM in connection with an Order violate or infringe the Intellectual Property or other legal rights of any third party; (ii) any violation of laws by Customer or any of its affiliates, agents, subcontractor or any third party under Customer’s control or management or (ii) for or in connection with any use of a Part by Customer or its employees, agents or contractors or by any third party including a consumer who may use the Part (including any products liability claims such third party might raise).
6. WEBSITE ACCESS AND USAGE OBLIGATIONS. Customer shall use a valid e-mail address and a secure password to log on to the FATHOM Website. Customer must not disclose its password to third parties. Customer is responsible for all access to and use of the FATHOM Website using their e-mail address and password. If an employee, agent or any person uses Customer’s e-mail address and password to access the FATHOM Website, Customer will be deemed to have authorized any access, use or misuse of the FATHOM Website (including without limitation all orders placed) by such employees or agents or any other person using the Customers e-mail address and password. Customer will not use any automatic device or manual process to monitor or copy FATHOM’s web pages or the content contained herein without the express written permission of FATHOM. Customer will not interfere or attempt to interfere with the proper working of the FATHOM Website or any activities conducted on the FATHOM Website. Customer will not take any action that imposes an unreasonable or disproportionately large load on FATHOM’s infrastructure. Customer will not copy, reproduce, alter, modify, create derivative works of, or reverse engineer the FATHOM Website or publicly display any content from the FATHOM Website without the prior express written consent of FATHOM.
7. TERMINATION. Either Customer or FATHOM may terminate this Agreement at any time upon written notice to the other party, but all Orders previously submitted and confirmed by FATHOM shall remain binding upon the parties. Sections 2-5 and 8 shall survive the termination of this Agreement.
8. MISCELLANEOUS PROVISIONS.
8.1 FORCE MAJEURE. Neither party shall be liable for a breach of its obligations hereunder to the extent that such breach is caused by factors outside its reasonable ability to foresee and avoid (provided that such party makes diligent good faith efforts to remedy the breach as soon as possible), including without limitation, war, acts of God, terrorism, natural disaster, or third party communications or encryption failure, and which continue for any 60 day period.
8.2 ENTIRE AGREEMENT. This Agreement and any accompanying Orders and Non-Disclosure Agreement embody the entire agreement and understanding between the parties regarding the subject matter hereof, and supersede any prior understanding and agreements between and among them respecting the subject matter hereof. FATHOM may at any time change or modify the terms of this Agreement by publishing such additional or replacement terms on the Website at least five business days prior to implementation. If the Customer does not agree with any change or modification, the Customer may terminate this Agreement on notice to FATHOM.
8.3 INDEPENDENT CONTRACTORS. The parties hereto are independent contractors and are not, and shall not represent themselves as, principal and agent, partners or joint ventures. No party shall attempt to act, or represent itself as having the power, to bind another party or create any obligation on behalf of another party. Each party shall be solely responsible for the employment, direction and control of its employees and their acts.
8.4 SEVERABILITY. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. The parties agree that (a) the provisions of this Agreement shall be severable in the event that any of the provisions hereof are for any reason whatsoever invalid, void or otherwise unenforceable, (b) such invalid, void or otherwise unenforceable provisions shall be automatically replaced by other provisions which are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions shall remain enforceable to the fullest extent permitted by law.
8.5 ASSIGNMENT. Customer shall not assign the rights and obligations under this Agreement without the written consent of FATHOM. Any assignment in breach of this provision shall be void.
8.6 GOVERNING LAW. This Agreement is made under and shall be construed in accordance with the laws of the State of California, without giving effect to its choice of law rules. The state and federal courts located in Alameda County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
8.7 NOTICES. All legal notices to FATHOM shall be sent to 3000F Danville Blvd. #141, Alamo, CA 94507, addressed to the attention of “Principal”.