1. Standard Terms and Conditions for Deliverables. These terms and conditions of sale (these “Terms”) shall govern all goods and services (in either case, the “Deliverables”) provided by Fathom Manufacturing, LLC, a Delaware limited liability company or any of its direct or indirect subsidiaries (collectively, “Fathom”), to its immediate customer (“Buyer”) from time to time. BUYER’S ORDER IS ACCEPTED ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN AND THE PROVISIONS OF ANY ORDER OR OTHER WRITING WHICH ARE INCONSISTENT HEREWITH SHALL NOT CONSTITUTE PART OF THESE TERMS AND CONDITIONS OF SALE AND SHALL BE DEEMED A MATERIAL ALTERATION HEREOF. FATHOM’S ACCEPTANCE OF BUYER’S ORDER IS SUBJECT TO AND CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS OF SALE. ANY CONDUCT OR ACTION BY BUYER RECOGNIZING OR EVIDENCING THE EXISTENCE OF AN AGREEMENT SHALL BE DEEMED TO BE AN ACCEPTANCE BY BUYER WITHOUT EXCEPTION OF THESE TERMS AND CONDITIONS OF SALE. Fathom’s written proposal or quotation (“Quotation”) and these Terms are intended by the parties to be the complete and exclusive agreement of the parties with respect to the subject matter hereof and supersede all prior understandings, representations, warranties or agreements between the parties, whether written or oral. Without limiting the generality of the foregoing, no course of prior dealings, course of performance, course of conduct, community standards, industry standards, customary practices or interpretation, or usage of trade shall be relevant to supplement or explain any terms in these Terms. No modification of these Terms, whether in whole or in part, will be valid or binding upon Fathom unless expressly agreed to by Fathom in a signed writing.
2. Order Details; Cancellation; Inspection. Fathom may, in its sole discretion, require minimum quantities and/or lead times for any order. Buyer may not cancel an order without the written consent of Fathom, which such consent may be subject to cancellation fees or other conditions in Fathom’s sole discretion. Upon receipt of the Deliverables, it is Buyer’s responsibility to fully inspect the Deliverables for damage or other defects. Buyer shall, within ten (10) days, or thirty (30) days for Tooling manufactured by Fathom, after delivery of the Deliverables, inspect the Deliverables and immediately report in writing to Fathom any shortages, damages or defects reasonably observable by proper inspection. If Buyer fails to inspect or report any shortages, damages or defects as required herein, Buyer shall be deemed to have accepted the Deliverables and shall be liable to Fathom for the total price of the order.
3. Prices and Payment. Prices, terms of payment and pricing policies will be those set forth in the Quotation. Unless otherwise specified in the Quotation, prices stated on the Quotation do not include any sales, use or value-added taxes, or other taxes, charges or duties applicable to sales of Deliverables, which taxes, charges and duties shall be the sole responsibility of Buyer. OUTSTANDING BALANCES NOT PAID WHEN DUE SHALL BE SUBJECT TO A DELINQUENCY CHARGE ACCRUING AT THE MAXIMUM INTEREST RATE ALLOWABLE UNDER APPLICABLE LAW. Buyer agrees to reimburse Fathom’s out-of-pocket costs and expenses to collect delinquent accounts, including, but not limited to, attorney fees and court costs. All prices are quoted in U.S. dollars and all payments shall be made in U.S. dollars.
4. Shipping and Delivery. Unless otherwise agreed in writing by Fathom and the Buyer, all shipments are ExWorks, Fathom’s facility (Incoterms® 2020). Title and risk of loss shall pass to Buyer at the time the Deliverables are delivered to a carrier at Fathom’s facility. Buyer shall be solely responsible for procuring commercially reasonable insurance coverage for the Deliverables after such delivery for the benefit of Fathom and Buyer. Buyer shall be responsible for filing any claims against such insurers or carriers. All freight, storage, insurance or other fees or charges (including, without limitation, any sales, use or value-added taxes and import duties on the Deliverables, if any) shall be paid by Buyer and if advanced by Fathom, shall be added to Fathom’s invoice and payable together with payment for the Deliverables purchased. Fathom will package the Deliverables, if applicable, in a commercially reasonable manner acceptable to commercial carriers. Fathom will furnish special packaging, at Buyer’s sole expense, only if specifically requested by Buyer and expressly agreed to in writing by Fathom. Shipping dates on any Quotation or order are estimates only. Fathom will use commercially reasonable efforts to meet such estimated shipping date; provided, however, that Fathom shall not be liable for any failure to meet such estimated shipping date, including any losses incurred by Buyer as a result of such delay.
5. Tooling. Buyer will pay for any Tooling required for the Deliverables as set forth in the Quotation. Tooling may be ordered by Buyer and Fathom will be provided such Tooling as set forth in a Quotation, unless the Deliverables include manufacturing Tooling for Buyer. Tooling will be stored by Fathom or its subcontractors for a reasonable time during which it is not used. If Fathom requests that Buyer take possession of its Tooling, Fathom and Buyer will arrange for delivery of the Tooling to Buyer or Buyer’s designee, within thirty (30) days of the date of such request from Fathom at Buyer’s sole expense. During such 30day period, Buyer may request that Fathom continue storing Buyer’s Tooling for an inventory fee or destroy such Tooling for a scrap fee, which may be accepted or rejected by Fathom in its sole discretion. Subject to Fathom’s obligation to deliver the Tooling in good working condition and in conformity with these Terms, Buyer acknowledges that once the Tooling has been delivered to Buyer, notwithstanding any other provision in these Terms, any warranty provided by Fathom relating to the Tooling will not apply. “Tooling” means, collectively, all tooling, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, molds, data files, software and other materials and information provided by Buyer or entirely paid for by Buyer, which are used by Fathom or its subcontractors in connection with its or their manufacturing and assembly of the Deliverables, together with any accessions, attachments, parts, accessories, substitutions, replacements and appurtenances thereto that are provided or paid for by Buyer.
6. Limited Warranty. For the first 20,000 shots for injection molding deliverables, following Buyer’s receipt of the Deliverables, Fathom warrants that the Deliverables shall be free from defects in material (unless Buyer designates, selects and/or provides materials used in the Deliverables, in which case Buyer is solely responsible for any defects in material) and workmanship and shall conform to Buyer’s specifications included in the order. Fathom’s sole obligation for Deliverables failing to comply with this warranty shall be, at its option, to replace or issue credit for the nonconforming Deliverables. THE FOREGOING LIMITED WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Limitation of Liability. IN NO EVENT SHALL FATHOM BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY NATURE ARISING OUT OF OR RELATING TO THE DELIVERABLES AND/OR THESE TERMS, INCLUDING, WITHOUT LIMITATION, DELAY, LOST REVENUE, LOST PROFITS, OR LOSS OF GOODWILL, EVEN IF FATHOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S AGGREGATE RECOVERY FROM FATHOM FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE DELIVERABLES AND/OR THESE TERMS SHALL NOT EXCEED BUYER’S PURCHASE PRICE FOR THE DELIVERABLES GIVING RISE TO SUCH CLAIM.
8. Confidentiality. Buyer shall hold in strict confidence all non-public data and information of Fathom, including, but not limited to, Fathom’s pricing to Buyer or data or information of third parties that Fathom is required to hold in confidence (collectively, the “Confidential Information”), and shall only use the Confidential Information as contemplated by the order. “Confidential Information” shall not include information that at the time of first disclosure to Buyer: (i) is, or thereafter becomes, generally available to the public other than as a result of a breach of confidentiality by Buyer; (ii) is, or thereafter becomes, available to Buyer on a non-confidential basis from an unaffiliated third-party source who is not under any duty of confidentiality to Fathom with respect thereto; (iii) was previously in the possession of Buyer; or (iv) is required to be disclosed pursuant to applicable law or judicial process, provided that Buyer shall, if legally permissible, provide prompt written notice to Fathom of the intent to disclose. All Confidential Information, as between Fathom and Buyer, is and shall remain the sole property of Fathom. Within fifteen (15) days of Fathom’s demand, Buyer shall return all originals and copies of all Confidential Information to Fathom and destroy all intangible copies of Confidential Information (with destruction certified in writing to Fathom); provided that Buyer shall not be required to destroy backup copies which have been made pursuant to ordinary course data backup and recovery processes of Buyer so long as such intangible copies are held in confidence indefinitely and are not used by Buyer for any purpose. This Section 8 shall not supersede any confidentiality, nondisclosure or similar agreement between Fathom or any of its affiliates, on the one hand, and Buyer or any of its affiliates, on the other, which shall survive these Terms in accordance with the provisions thereof.
9. Intellectual Property. Buyer acknowledges that all ideas, designs, modifications, formulations, concepts, know-how, Confidential Information, discoveries, inventions, data, technology, computer code (including both source and object code), software, developments, copyrightable works, and other work product of any nature whatsoever, whether or not patentable or registrable, that Fathom develops, prepares, originates, produces, authors, edits, amends, conceives or reduces to practice, either alone or jointly with others, or otherwise creates during the term of these Terms, as well as any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), patents, know-how, shop rights, rights of publicity and privacy and other intellectual property rights therein arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto, including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, reissues, extensions and renewals therefor shall be the sole and exclusive property of Fathom.
10. Force Majeure. Except for a party’s payment obligations, neither party shall be in default of these Terms or an order or liable for failure or delay in performance of any obligation hereunder or in connection with a Quotation or order to the extent such failure, delay or action is attributable to a Force Majeure Event. In the event of any shortage of raw materials or other supplies, Fathom may allocate materials and supplies among its customers in such manner as Fathom may determine in its sole discretion, and shall have no liability to Buyer on account of any delay or cancellation on account thereof. “Force Majeure Event” means any acts of God, acts of government (including any orders, legislation, or regulations), terrorist acts, embargoes, fire, storm, floods, strikes, labor trouble, wars, riots, failure of carriers, shortages of labor or materials, pandemic, government mandated shutdowns, accidents beyond the reasonable control of Fathom or its subcontractors causing damage or destruction of equipment or tools necessary to produce the Deliverables or other causes beyond the reasonable control of the non-performing or delayed party.
11. Indemnification. Buyer shall defend, indemnify, and hold harmless Fathom, its affiliates, and its and their respective officers, employees, agents, successors, and assigns, past, present, and future, from and against all demands, claims, actions, suits and proceedings asserted by any third party (“Claims”), and all damages, losses, costs and expenses in connection with Claims, arising out of or relating, directly or indirectly, to the Deliverables, including but not limited to, Claims based on infringement or misappropriation of intellectual property rights associated with Buyer’s design or specifications included with an order and/or products liability associated with any components, parts or completed goods incorporating all or a portion of the Deliverables; provided, that this Section 11 shall not apply in instances of Fathom’s willful misconduct or where the Claims arose primarily and directly due to Fathom’s breach of Section 6 of these Terms.
12. Governing Law and Venue. These Terms shall be governed by the laws of the State of Wisconsin without application of any conflicts of law principles. Disputes between Fathom and Buyer related to these Terms shall be venued exclusively in the state courts located in Waukesha County, Wisconsin, or the United States Federal Court for the Eastern District of Wisconsin.
13. Severability. In the event that any provision of these Terms are found invalid or unenforceable, whether in whole or in part, for any reason, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions. The invalidity or unenforceability of any such provision or part of such provision will not affect the validity or enforceability of the remaining terms and conditions hereof.
14. Notices. Any notice relating to these Terms must be in writing and will be considered given at the earlier of the date when actually delivered to an officer of a party at the address provided in writing to the other party or when deposited in the United States mail, certified or registered mail, postage prepaid, return receipt requested, to such address.
15. Miscellaneous. No amendment or waiver of these Terms is effective unless it is in writing and signed by Fathom and Buyer. Buyer may not assign its rights or obligations under any order or these Terms without Fathom’s prior written consent. These Terms are binding upon and inure to the benefit Fathom and its successors and assigns and Buyer and its successors and permitted assigns. Buyer acknowledges and agrees that Fathom reserves the right to use subcontractors to perform and fulfill its obligations under any Quotation or order.