Registered Company Number: 10287475
MASTER TERMS
1. Definitions
“Account” means the primary means for accessing and using the Platform, subject to payment of a Fee designated in the selected Plan.
“Administrator” means a User(s) of an Account which the Client has granted a special authorisation to manage the Client Account.
“Affiliates” means any legal entity that controls or owns more than 50% of such entity’s outstanding shares or securities, is controlled by, or under common control with a party.
“Beta Service” means any functionality of Services that is in development or has not been commercially released as a final product and which has made available to Client for testing and evaluation.
“Client” means a natural or legal person or entity who has accepted these Terms with DeepFathom by using the Platform Services.
“Client Data” means data and documents of any kind (images, spreadsheets, text files, identification documents etc.), and any other digital data and information, that is inserted into the Platform by the Client or generated for Client using the Platform.
“Content” means any data and information available through the Platform Services or contained within the structure of the Platform Services, including but not limited to, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments.
“Credentials” means all usernames, passwords, and other access credentials created by or assigned to Client and each of its designated Users for use of the Platform Services.
“Data Processing Addendum” or “DPA” means the agreement, as set forth www.deepfathom.co.uk/data-processing-addendum, which explains how the Platform processes Client Data.
“Digital Audit” means an online audit by the Client delivered by DeepFathom to scoped participants who respond to audit statements, upload required documents, text, and objective evidence required to produce an audit report, dashboard, and decision as per the Client audit scope.
"End User" means the licenced user held by an Administrator.
“Feature” means a function or set of functions providing a particular capability within the Platform Services as determined by the Supplier and as further governed by any applicable Supplemental Terms.
“Fee” means payment for using the Platform via an activated Account.
“Feedback” means any comment, bug report, feedback, suggestion or modification for the Platform Services which Client or a User provides to DeepFathom via support@deepfathom.co.uk
“Marketplace” means a catalogue or marketplace of applications that interoperate with the Platform.
“Master Terms” means these core legal and commercial terms that apply to Client’s use of the Platform Services.
“Non-Platform Application” means a web-based, mobile, offline or other software application functionality that interoperates with the Platform Services, that is provided by Client or a third party and/or listed on a Marketplace. Non-Platform Applications, other than those obtained or provided by Client, will be identifiable as such.
“Platform” means the customised customer relationship management software designed and Digital Auditing and reporting services, configured and maintained and hosted by DeepFathom Ltd unless otherwise specified in the Terms.
“Platform Materials” means the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, a compilation of the content, code, data, and all other elements of the Platform technology system and related Services.
“Pilot” means a paid for test of a service before being introduced more widely by the Client and Beta Tests.
“Plan” means various criteria related to the use and functionality and cost of a particular Platform Service and on which the Fee is based.
“Plan Term” means the period of the Client’s use of the Platform Services commencing on the date of payment of the corresponding Fee for the associated Plan and concluding on the date of expiration of the Plan.
“Privacy Notice” means the notice, as set forth at https://www.deepfathom.co.uk/privacy-policy, which describes how the Platform collects, receives, uses, stores, shares, transfers, and processes personal data within the Client Data in connection with Client’s use of the Platform Services. It also describes Client’s choices regarding use, as well as Client’s rights of access.
“Renewal Date” means the date the Client’s Plan will renew on an annual or monthly basis depending on the Client’s Plan.
“Sensitive Information” means full PAN credit or debit card numbers, CVV and expiry numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, passport numbers, driving licences, proof of address), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.
“Sub-processor” means any third party, as set forth here, which the Platform uses in the provision of Platform Services.
“Services” or “Platform Services” means the services provided through the Platform.
“Supplemental Terms” means the terms, as set forth here, applicable to Client’s use of a particular Feature or any third-party services and which form a part of the Terms.
“Terms” means these Terms of Service and consists of the Master Terms, any applicable Supplemental Terms, the DPA and the Privacy Notice.
“User” means an entity or individual granted the authorized rights and privileges to use the Account on behalf of a Client.
“Web Site” means the compilation of all web documents (including images, PHP, html files and other files) made available via www.deepfathom.co.uk, or other domain name provided to or agreed with the Client for use of the Platform, its subdomains or domains with identical names under other top domains, and owned or administered by DeepFathom Ltd or provided to it for the delivery of the service.
2. Modifications
No modification of the Terms will be valid unless agreed to the parties in writing.
3. Platform Services
3.1 Use of the Platform Services
Subject to these Terms and any applicable Supplemental Terms, and the payment of the applicable Fee, DeepFathom grants the Client and its Users a non-exclusive, non-transferable, non-sublicensable license to use the Platform Services to:
collect, store and organise Client Data;
modify and delete Client Data; and
request customisation the standard features or functionality of the Platform Services.
Details of the Services scope of works are in specific Schedules and Deployment and timelines in.
3.2 Modifications to Platform Services
DeepFathom reserves the right to modify the Platform Services or any part or element thereof from time to time. Whilst in the normal course of events prior written notice will be provided, we reserve the right to make changes without prior notice where in our opinion not to do so may create a risk to the correct and accurate functioning or performance of the system, including, without limitation:
rebranding, or repackaging or rehosting of the platform (including any adjustments to current Fees which will be applicable at the next Plan renewal date) the Platform Services at its sole discretion;
ceasing providing or discontinuing the development of any particular Platform Service, Feature or part or element of the Platform, temporarily or permanently;
taking such action as is necessary to preserve DeepFathom’s rights upon any use of the Platform Services that may be reasonably interpreted as violation of DeepFathom’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.
As applicable, Client may be notified of such modifications when logging in to the Account.
If the Client does not accept a modification, Client shall notify DeepFathom and the Client’s Account will terminate on the effective date of the modification. However, Client’s continued use of the Platform Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. DeepFathom shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Platform Services, or any part or element thereof.
3.3 Credentials
Client is responsible for maintaining the confidentiality of all Credentials and is solely responsible for all activities that occur with such Credentials. These Credentials must not be shared or used by multiple persons but may be reassigned to a new User replacing a former User who has terminated employment (or otherwise changed job function) and who no longer uses Platform Services. DeepFathom reserves the right to terminate any User’s Credentials that DeepFathom reasonably determines may have been used by an unauthorised third party or in an unauthorised manner, as solely determined by DeepFathom, and will provide immediate notice of such termination to Client. It is strongly recommended that as a matter of policy that the Client enforces the use of the Clients VPN and Multi Factor Authentication for all Users DeepFathom is however unable to enforce such a policy unless the Client has retested this under a custom configuration.
Client must promptly notify DeepFathom:
of any actual or suspected, disclosure, loss or unauthorised use of any Credentials;
of a User’s departure from the Client’s organisation;
of a change in a User’s role in the Client’s organisation; or
of any termination of a user’s right for any reason.
3.4 Changing Plans
The Client may upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by the Platform. The chosen Plan at the time of signing is articulated in the Schedules.
In the event of the Client choosing to change the Plan, the Client’s credit card on file, automated bank debit facility, with the Platform will automatically be charged with a Fee for the next payment interval with the rate (non-stipulated in the new Plan). If the Client elects to upgrade their Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the upgraded Plan. If, after the commencement of a Plan Term, Client elects to downgrade their Plan, this may cause the loss of Features, functionality, capacity of the Account, as well as the loss of Client Data. No refund of any prepaid or outstanding Fees will be provided to the Client for the price difference between Plans in the event the Client elects to downgrade after the commencement of a Plan Term.
3.5 Administration of Client’s Account
Client acknowledges that it retains administrative control over to whom it grants access to Client Data hosted in the Platform Services. The Client may specify a User to be the billing owner and, depending on the Plan, one or more Users to be an Administrator to manage its account, and DeepFathom is entitled to rely on communications from an Administrator when servicing Client’s Account. Client’s Administrator(s) will have the ability to access, monitor, use, and/or export their Data. We suggest a monthly export as part of the Client’s data governance and business continuity plan.
It is the Client’s responsibility to ensure that the Client Data is provided to DeepFathom in a full and complete format and as per the specified data scheduled required for a complete and effective import. If the Client fails to provide and manage its Client Data in a timely and effective manner, DeepFathom cannot be held responsible for the effective operation.
The Client will be responsible for UAT and signing off all configured processes, calculations, web documents, outbound marcoms, lists, and dashboards.
3.6 Technical Support
DeepFathom shall provide reasonable technical support to Client and its Users via the following options as outlined below, as soon as reasonably possible.
Platform FAQ available in platform and training material available to all Users
Email - available to Users, via the Platform
Teams - Users on Enterprise and Custom Plans can request a Teams call back from support via the Platform and ticketing system
If you are having trouble logging you can contact us here or if you don’t have a Platform Account, you can reach out to us at DeepFathom support@deepfathom.co.uk.
Notwithstanding the foregoing, for any Platform Services purchased from a Reseller, the first-line technical support will be provided by the Reseller and not by DeepFathom.
3.7 User Verification
Client understands and agrees that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account and/or User. In the event that the Client loses access to an Account or otherwise requests information about an Account, we reserve the right to request from the Client any verification we deem necessary before restoring access to or providing information about such Account.
3.8 Features
DeepFathom may, from time to time, make Features available through the Platform Services, and which may be subject to Supplemental Terms. The Client's use of any such Feature is subject to any applicable Supplemental Terms.
3.9 Free Trial
We do not offer free trails.
3.10 Beta Services
DeepFathom may offer Clients certain Features for the purpose of testing and evaluation called Beta Services. DeepFathom reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services, with or without notice to the Client.
The Client agrees that the DeepFathom will not be liable to the Client or to any third party for any harm related to, arising out of the Client's use of the Beta Services, or caused by the modification, suspension or discontinuance of any of the Beta Services, for any reason. For AI Beta Services the Platform AI Beta Services Terms also apply.
3.11 Non-Platforms Applications
DeepFathom or third parties may make available third-party non-Platform applications via Marketplace. If Client elects to procure a non-Platform application, the terms and conditions regarding its use or receipt of the non-Platform application are between Client and the provider of those non-Platform applications and any exchange of data between Client and such third-party provider is solely between Client and the applicable provider.
Any questions, concerns or disputes that arise based on Client’s use of non-Platform applications should be addressed with the provider of such non-Platform application and not with DeepFathom.
DeepFathom does not warrant, or support non-Platform applications, whether or not they are designated by DeepFathom as “certified” or otherwise. DeepFathom is not responsible for any disclosure, modification or deletion of Client Data resulting from access by such non-Platform application or its provider.
Integration with Non-Platform Applications. Platform Services may contain Features and functionality designed to interoperate with non-Platform applications. However, DeepFathom cannot guarantee the continued availability of such Features, or functionality, and may cease providing them without notice and without entitling Client to any refund, credit, or other compensation, if for example and without limitation, the provider of a non-Platform application ceases to make the non-Platform application available for interoperation with the corresponding Features or functionality in a manner acceptable to DeepFathom.
4. Restrictions
4.1 Prohibited Activities
Client and its Users may use the Platform Services, and any part or element thereof, only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
use the Platform Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Platform Services or any part or element thereof, or attempt to extract the source code thereof, unless it is expressly allowed under applicable law, and to the extent that the Platform is not permitted by that applicable law to exclude or limit the foregoing rights;
provide false, inaccurate or misleading information; act in a manner that is defamatory, trade libelous, threatening or harassing to DeepFathom; or use the Platform Services or any part or element thereof unless it has agreed to be bound to these Terms.
4.2 Uses Requiring DeepFathom Consent
The Client or any User may not, without DeepFathom’s prior express written consent:
sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant access or make the Platform Services available, in whole or in part, to any third persons, unless such third person is a User of the same Client; or use the Platform Services, or any part or element thereof, in a scope, with means or for purposes other than those for which their functionality was intended.
4.3 Trade Control Compliance
The Client, any User, Reseller, or agent (“Third Party”) hereby represents, warrants, covenants, and agrees that, with respect to the Platform:
Third Party has complied and shall comply with, and shall cause its directors, officers, employees, and agents to comply with the United States, European Union, and any other applicable foreign economic, trade, and financial sanctions laws and regulations, including economic and trade sanctions administered by the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the US Department of State (collectively, “Sanctions”), and US, EU and applicable foreign laws and regulations pertaining to export controls, including those administered by the US Departments of Commerce and State (collectively, “Trade Controls”).
Third Party shall take no action, directly or indirectly, that would cause Deep Fathom Ltd or any of its Affiliates, or any of their respective officers, directors, employees, or representatives, to violate any Sanctions or Trade Controls.
Neither the Third Party nor any of its officers or directors, employees, and any agents or other representatives acting on their behalf has been or is designated on any Sanctions or export related list of restricted or blocked persons, including designation on OFAC’s List of Specially Designated Nationals and Blocked Persons or OFAC’s Sectoral Sanctions Identifications List,
Third Party will promptly notify DeepFathom if Third Party or any personnel employed by or affiliated with Third Party:
(i) commits any actual or potential breach of Sanctions or Trade Controls in relation to the Platform, or
(ii) becomes a Restricted Person.
DeepFathom, in its sole discretion, shall have the right to immediately terminate the access to, or use of the Platform without notice or liability to Third Party, if Third Party, or any person employed by or affiliated with Third Party, takes any action in violation of the provisions described in this Section 4 or if DeepFathom Ltd determines, in its sole discretion, that the Third Party’s continued use of the Platform could violate Sanctions or Trade Controls.
4.4 Take Down
Deep Fathom Ltd endeavours to comply with all relevant laws and reserves the right to remove any Client Data from the Platform upon receipt of a compliant takedown notice, including any judicial or regulatory orders, notices and requests.
5. DeepFathom’s Responsibilities
5.1. Provision of Platform Services
DeepFathom will
(a) make the Platform Services, Content and Client Data available to Client pursuant to these Terms and Schedules,
(b) provide support as outlined in Section 3.6 for the Platform Services to Client at no additional charge,
(c) use commercially reasonable efforts to make the Platform Services available 24 hours a day, 7 days a week, except for:
(i) planned downtime (of which DeepFathom shall give advance electronic notice), and
(ii) any unavailability caused by circumstances beyond DeepFathom’s reasonable control, including, for example, Force Mayeur, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic, strike or other labour problem, Internet service provider failure or delay or denial of service attack.
DeepFathom may use Sub-processors to perform the Platform Services. DeepFathom will make commercially reasonable efforts to ensure that data transfers to Sub-processors meet requirements applicable to Clients’ processing of Client Data and will provide information on such data transfers in these Terms for Client’s consideration.
For additional information regarding such transfers with Sub-processors, please see DeepFathom’s Privacy Notice and DPA with a current list of Sub-processors.
5.2. Protection of Client Data
DeepFathom will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of Client Data. Additionally, DeepFathom shall only access, use, modify or otherwise disclose of Client Data:
(a) to provide the Platform Services and prevent or address service or technical problems,
(b) as compelled by law in accordance with Section 7.6 (Compelled Disclosure) below,
(c) as Client or User expressly permits in writing.
DeepFathom will not, and will not allow any of its AI model providers to, train AI models using Client Data.
6. Fees & Payment
The use of the Platform, which is not via a Free Trial, is subject to a Fee. The Fees are articulated in the relevant Schedules. Upon sign-up of an Account, Client must select a Fee Plan. Different rates apply to different Plans.
Unless stated otherwise in the Schedules, the applicable Fee is charged in advance on a monthly, or annual basis, and additional service usage charges are charged 30 days in arrears.
Deep Fathom Ltd reserves the right to modify the Fees for any Plan, in its reasonable discretion, at any time after the commencement of the Plan Term, upon at least one month’s prior notice to Client, provided that any such modification will not take effect until the start of any Plan immediately following the Plan Term in which DeepFathom provided Client with notice of the modification.
The Plan Term will not automatically renew. Any agreement to renew the Services must be in writing or it will be invalid. If Client chooses to cancel its Plan during the Plan Term, Client may use the Service until the end of Client’s then-current Plan Term but will not be issued a refund for the most recently (or any previously) charged Fees.
All Fees are non-refundable. For purposes of clarity, there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, deactivated the Account or terminated these Terms during an ongoing payment interval, or where an Account is terminated or suspended by Deep Fathom Ltd in accordance with Section 13.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
In the event the Client does not pay all Fees due within 7 days of invoice date, Deep Fathom Ltd will suspend all access to the Client Account. Client will have 90 days to provide an authorised payment method to reactivate a subscription and their Account, otherwise DeepFathom has the right to permanently delete the Account, including all Client Data therein.
6.1 Payment Card Authorisation
DeepFathom Ltd and its Affiliates may seek pre-authorisation of Client’s payment card account prior to its purchase of the Platform in order to verify that the payment card is valid and has the necessary funds or credit available to cover any purchase. Client agrees to approve such card pre-authorisation and to pay any amounts for a Plan described on the Web Site and authorises Deep Fathom Ltd to charge all Fees to such card account. Client agrees to provide Deep Fathom Ltd updated information regarding its payment card account upon request and any time the information earlier provided is no longer valid.
6.2 Direct Bank Debit Payments
If Client agrees, Deep Fathom Ltd may elect that Client complete a bank debit mandate to enable bank debit payments. In such cases, DeepFathom shall comply with all applicable national rules and regulations related to direct debit payments.
6.3 Payment Service Providers
Deep Fathom Ltd uses GoCardless to process Client’s bank debit payments. More information on how GoCardless processes Client’s personal data and Client’s data protection rights, including Client’s right to object, is available at gocardless.com/legal/privacy/.
6.4 Electronic Invoice
If Deep Fathom Ltd has not sought pre-authorisation of Client’s payment card, then before the end of each payment interval, Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.
6.5 Late Payment Charges
Upon delay with any payments, Deep Fathom Ltd may require the Client to pay interest on the delay (penalty for late payment) for the period that such payment is overdue.
The interest rate for late payment due shall be 1% per month or the maximum allowed by local law, whichever is higher.
Deep Fathom Ltd may also make time and materials charges in accordance with the consulting services agreement to cover administration time spent as a result of late payment by the Client.
6.6 Right to Offset
In addition to other rights and remedies Deep Fathom Ltd may if legally permitted to do so, offset any payment obligations to Client that it may incur under the Terms against any fees owed to DeepFathom and not yet paid by Client under the Terms, or any other agreement between Client and Deep Fathom Ltd.
7. Client Data/Sensitive Information
7.1 Rights to Client Data
In connection with Client Data, Client affirms, represents, and warrants that:
(i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorise DeepFathom and the Platform to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to its Client Data in a manner consistent with the intended Features of the Platform Services and these Terms, and to grant the rights and license set forth in these Terms, and
(ii) Client Data, or DeepFathom’s or any DeepFathom licensee’s use of such Client Data pursuant to these Terms, do not and will not:
(a) infringe, violate, or misappropriate 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) violate any applicable law or regulation anywhere in the world; or
(c) require the obtaining of a license from or paying any fees and/or royalties by DeepFathom to any third party for the performance of any Platform Services which Client has chosen to be performed by DeepFathom or for the exercise of any rights granted in these Terms, unless Client and DeepFathom otherwise agree.
7.2 Uploading Client Data to Platform Services
Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the platform. If Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or their respective owners (including Users, persons and organisations), whether posted and/or uploaded by Client or made available on or through the Platform Services. By uploading Client Data to the Platform Services, Client authorises DeepFathom to process the Client Data to provide the Platform Services. Client is responsible for ensuring that:
Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data which violates these Terms, the rights of DeepFathom, other clients or users of Platform Services or persons or organizations;
any Client Data is not harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful; and
Client and all Users associated with the Account have the necessary rights to use the Client Data, including to insert it into the Platform Services and process it by means of the Account.
7.3 No Liability of Client Data
Deep Fathom Ltd does not guarantee any accuracy with respect to any information contained in the Client Data and recommends that Client carefully consider what it transmits, submits or posts to or through the Platform and conducts appropriate independent checks and independent financial reconciliation of all records.
The Client understands that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that the Client, and not Deep Fathom Ltd, is entirely responsible for all Client Data that is uploaded, posted, transmitted and calculated in or otherwise made available through the Platform, by the Client or its Users, as well as for any remedial actions taken by Client or Users as a result of such Client Data. However, the Client will not be responsible for any elements of the output from the Platform Services that are not part of Client’s input.
7.4 Sensitive Information and Unlawful Client Data
Client will not use the Platform to store
(a) Sensitive Information such as full PAN credit or debit card numbers, CVV and expiry numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, passport numbers, driving licences, proof of address), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.
or
(b) Client Data that, in any manner, is prohibited by law or in violation of these Terms. Deep Fathom Ltd is not obliged to pre-screen, monitor or filter any Client Data, or its processing by the Client, in order to determine if it is Sensitive Information or unlawful in nature.
However, if Deep Fathom Ltd, in its sole discretion, has reason to believe that Client is processing any unlawful Client Data or Sensitive Information, or the action of its processing is unlawful in nature, DeepFathom has the right to:
a. notify the Client of such unlawful Client Data or Sensitive Information;
b. deny its use in the Platform;
c. demand that the Client bring its use of the Platform into compliance with these
Terms and applicable law;
d. temporarily or permanently remove or transfer the unlawful Client Data or Sensitive Information from the Platform to an agreed sensitive Data repository, restrict access to it or delete it.
If Deep Fathom Ltd is presented convincing evidence that the Client Data is not unlawful or materially Sensitive Information, Deep Fathom Ltd may, at its sole discretion, restore such Client Data or Sensitive Information, which was previously removed from the Platform Services, Account or access to which was restricted.
The Platform is not designed to comply with industry-specific regulations relating to the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA). As such, Client may not use the Platform where its communications would be subject to such laws. In addition, Client may not use the Platform in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
For the avoidance of doubt the end user client balance information is not regarded as Sensitive Information under section 7.4 nor is the end users provision of a UK Payment account (sort code and account number) to which the funds may be returned. Such data may however be subject to Platform users role-based restrictions and would be made available on a 'need to know' basis.
The Platform is designed to interface with secure document repositories such as Box.com (or other as selected by the Client and these secure document repositories should be used for the storage of Sensitive Information).
7.5 DeepFathom Rights to Client Data
DeepFathom may use, with written permission from the Client, Client Data in an aggregated and anonymised format for research, educational and other similar purposes. DeepFathom may not otherwise use or publicly display Client Data without Client’s written consent and respects Client’s right to exclusive ownership of Client Data. Unless specifically permitted by Client and otherwise set forth herein, Client’s use of the Platform Services does not grant DeepFathom the license to use, reproduce, adapt, modify, publish or distribute the Client Data created by Client or stored in Client’s Account for DeepFathom’s commercial, marketing or any similar purpose.
The Client expressly grants DeepFathom the right to use and analyse aggregate system activity data associated with use of the Platform Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the Platform Services operate, and to create new Features and functionality in connection with the Platform Services in the sole discretion of DeepFathom.
7.6 Compelled Disclosures
Supplier may disclose a Client's confidential information to the extent compelled by law to do so. In such instance, Supplier will use commercially reasonable efforts to provide the Client with prior notice of the compelled disclosure (to the extent legally permitted) and the Client shall provide reasonable assistance, at its cost, if the Client wishes to contest the disclosure. If Supplier is compelled by law to disclose the Client's confidential information as part of a civil proceeding to which Supplier is a party, and the Client is not contesting the disclosure, the Client will reimburse Supplier for its reasonable cost of compiling and providing secure access to that confidential information.
8. Privacy
The Platforms Privacy Notice is documented in the Schedule 5 (Privacy Policy), updates are available on the www.deepfathom.co.uk website.
Guiding principles, and operational guidelines for data migration into the Platform is documented in Schedule 6.
9. Intellectual Property Rights
9.1 DeepFathom’s Intellectual Property Rights
The Platform Services, Platform, Platform Materials, DeepFathom trade names and trademarks, and any associated intellectual property thereof are, solely and exclusively, owned and operated by DeepFathom, its Affiliates or its respective third-party vendors and hosting partners.
Platform Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws.
Except as set forth in these Terms, the Client’s use of the Platform and Platform Materials, and any parts or elements, does not grant to the Client any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the Platform Materials is strictly prohibited unless the Client has received the express prior written permission from DeepFathom or the otherwise applicable rights holder.
The Client may not use DeepFathom trade names and trademarks in any manner that disparages DeepFathom or its products or services or portrays DeepFathom in a false, competitively adverse or poor light.
DeepFathom reserves all rights to the Platform Services, Platform, Platform Materials and DeepFathom trade names and trademarks not expressly granted in the Terms.
The Client shall not, and shall not permit any third party to:
a. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, architecture, or underlying ideas, algorithms or know-how of the Platform, Platform Services, Digital Auditing, ERP system or any part thereof, except to the extent expressly permitted by applicable law and then only upon prior written notice to the Provider;
b. reproduce, adapt, modify, translate, or create any derivative works based on the Platform system;
c. use the Platform system, or any part thereof, to develop or enable the development of any product or service that competes with or is functionally similar to the Platform system.
The Client acknowledges that the Platform and all associated intellectual property rights are and shall remain the exclusive property of the Provider or its licensors.
The obligations in this clause shall survive the termination or expiry of this Agreement.
Any breach of this clause shall be deemed a material breach and shall entitle the DeepFathom to seek injunctive relief, specific performance, and any other remedies available under law or equity, including damages and legal costs.
9.2 Content
Subject to these Terms and the payment of the applicable Fee, DeepFathom grants Client and its Users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for its personal, non-commercial use.
The Client shall not remove copyright and proprietary notices that are contained in any part of the Content. The Client expressly acknowledges that it does not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the Platform Services.
The Client shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as expressly permitted by DeepFathom.
9.3 Feedback
If a Client or a User provides DeepFathom with any Feedback, DeepFathom shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Platform.
The Client or User hereby grants DeepFathom a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use Feedback for any purpose.
DeepFathom shall have the right to modify or remove any Feedback provided in the public areas of the Web Site which the DeepFathom deems, at its sole discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
10. DISCLAIMERS; Warranty
DeepFathom represents and warrants that:
(i) it will comply with all applicable laws and all terms and conditions of the platforms (such as ChatGPT) it uses to provide the services; and
(ii) the Services and output of the Services (other than Client input) will not infringe or violate the intellectual property, privacy or other rights of any third party.
UNLESS OTHERWISE EXPRESSLY STATED BY DEEP FATHOM LTD, THE PLATFORM SERVICES, DEEP FATHOM MATERIAL, PLATFORM AND ANY CONTENT, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DEEP FATHOM LTD AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY DEEP FATHOM LTD, DEEP FATHOM LTD AND ITS AFFILIATES DO NOT WARRANT THAT THE PLATFORM AND ANY CONTENT OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM AND ANY CONTENT OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORM OR THE PLATFORM THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY DEEP FATHOM LTD, DEEP FATHOM LTD AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE PLATFORM, DEEPFATOM MATERIALS OR ANY WEB SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
IF THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS, SET FORTH IN THIS SECTION 10, MAY NOT APPLY TO DEEPFATOM, AND CLIENT MAY HAVE ADDITIONAL RIGHTS AS SET FORTH IN LAW.
11. Indemnification
The Client agrees to defend, indemnify and hold harmless DeepFathom and its Affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of its misuse of the Platform, Platform Materials, representations made to DeepFathom, its Affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants.
DeepFathom reserves the right, at its own expense, to assume the exclusive defence and control of any matter for which Client is required to indemnify DeepFathom, and the Client agrees to cooperate with such defence of these claims.
DeepFathom agrees to defend, indemnify and hold harmless the Client and its Affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of its violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants.
The Client reserves the right, at its own expense, to assume the exclusive defence and control of any matter for which DeepFathom is required to indemnify the Client, and DeepFathom agrees to cooperate with such defence of these claims.
12. Limitation of Liability
12.1 No Liability
Deep Fathom Ltd shall not be liable to the Client or User for any consequences resulting from:
modification of the Platform, Platform Material, Account usage by Client or any part or element thereof, including, but not limited to, any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the Platform or Materials, except that this does not affect DeepFathom’s liability related to its processing of Client Data;
deletion of, corruption of, or failure to store any Client Data;
use of Client Data by the Client or any of the Users associated with the Account;
upgrading or downgrading of a current Plan by Client;
any disclosure, loss or unauthorised use of the login credentials of Client or any User due to the Client’s failure to keep them confidential;
the Client’s use of the Account or the Platform Services by means of web browsers other than those accepted or supported by the Platform;
the application of any remedies against the Client or Users by DeepFathom; for example, if the Client or User has committed a crime or conducted a breach of applicable law by using the Platform Services or any part or element thereof;
the differences between technologies and platforms used for access; for example, if certain Features, functions, parts or elements of the Platform are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
DeepFathom’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
In addition, Deep Fathom Ltd and its Affiliates shall not be liable to the Client for any claim by any user, person, organization, or third persons against the Client arising out of the Client’s failure to:
provide Deep Fathom Ltd with accurate information about the Client, Users or Account;
notify Deep Fathom Ltd of any reasons due to which a User does not have the right to use the Account on behalf of the Client;
provide any Platform or Features which it has agreed to provide to any person or organization (whether such failure arises as a result of DeepFathom’s negligence, breach of these Terms or otherwise);
ensure the lawfulness of the Client Data;
obtain the necessary rights to use the Client Data; or
abide by any of the restrictions described in these Terms.
12.2 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE SPECIFIC PLATFORM GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS FOR NEGLIGENCE, IN CONTRACT OR TORT, MISREPRESENTATION OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS SET FORTH IN SECTION 5 “FEES/PAYMENT”.
12.3 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12.4 Exceptions
No limitation or exclusion in this Section 12 will limit either party’s liability for
(a) breach of any confidentiality or data protection obligations in these Terms,
(b) indemnification obligations in Section 11,
(c) infringement of the other party’s intellectual property rights, or
(d) willful misconduct.
Neither party’s total liability arising from or related to these Terms will exceed five million English pounds (£1,000,000).
13. Termination/Suspension
13.1 For Convenience
These Terms and/or Client’s access to the Platform Services may be terminated for convenience in the following situations;
by the Client at any time by:
emailing or in writing from an authorised representative of the Client,
by revoking the billing agreement payment mechanism, by Deep Fathom Ltd upon decision to end provision of any portion of the Platform, any Feature and/or close any portion of the Platform;
by Deep Fathom Ltd at any stage and for any reason, provided that the Deep Fathom Ltd will provide a pro rata refund of any unused Fees for the remainder of the Term; or
immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.
13.2 For Default
These Terms and/or Client’s access to the Platform may be terminated for default upon written notice to the other party as indicated in Section 15.6 “Notice”:
by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party;
immediately by either party if the other party breaches its obligations, as applicable under Sections 4 “Restrictions”, 7 “Client Data/Sensitive Information”, 9 “Intellectual Property Rights” or 11 “Indemnification”; or by Deep Fathom Ltd with immediate effect if:
Client’s use of the Platform is suspected, in Deep Fathom's sole discretion, of illegal activity,
requests made by law enforcement, judicial order, the FCA or other government agencies for such termination, or if Client’s use of the Platform endangers the property of others, the Web Site or the Platform.
13.3 Effect of Termination
Upon termination of these Terms and/or Client’s access to the Platform for any reason whatsoever:
Deep Fathom Ltd shall offer to securely transfer a database data dump and associated encryption keys to a nominated legal representative of the Client deactivate and permanently delete the Account and all Client Data in the Platform within 1 month of the effective date of termination of these Terms and/or Client’s access to the Platform.
If the Client has specifically requested for an earlier deletion of the Account and all Client Data, Deep Fathom Ltd shall fulfil such request within 1 month of its receipt of such request.
Deep Fathom will be permitted to charge out of pocket expenses for the provision of a secure database dump, such costs not to exceed two months platform fees.
Client must:
stop using and prevent the further usage of the Platform, including, without limitation, the Platform;
pay any amounts owed to under these Terms; and discharge any liability incurred by the Client under these Terms prior to the termination.
Except as otherwise set forth herein, in no event shall Client receive a refund of any Fees prepaid hereunder.
The following provisions shall survive the termination of these Terms: Sections 1, 2, 4, 5.2, 6, 7-9, 11, 12, 13.3, 14 and 15.
13.4 Suspension
Deep Fathom Ltd has the right to suspend access to all or any part of the Platform or an Account, including removing Content, at any time, and for any period of time, for:
(i) violation or suspected violation of these Terms,
(ii) legal obligations
(iii) bandwidth usage by Client or its Users of the Platform Service, any Features, or functionality to be significantly excessive in relation to other Platform users, or to protect the integrity, operability, and security of the Platform, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to the Platform or any third party, Deep Fathom typically provides notice at the login page and/or in Platform notification or email on or before such suspension.
Deep Fathom Ltd will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Platform. For any such suspension, Deep Fathom Ltd shall make the sole determination as to any credit or refund of prepaid Fees by the Client.
14. DeepFathom Contracting Entity/Arbitration/Governing Law & Jurisdiction
14.1 Contracting Entity for the Platform
The contracting entity with whom Client is contracting under these Terms is detailed below:
Deep Fathom Ltd registered in in England and Wales, Company No 10287475, VAT Number 251095325
Email: support@DeepFathom.co.uk
Address: 184 Shepherds Bush Road, London, England, W6 7NL
14.2 Arbitration/Governing Law and Jurisdiction
In the event of a dispute, controversy or claim arising out of or in relation to these Terms, including but not limited to the formation, validity, breach or termination thereof, the parties shall attempt to solve the matter amicably in mutual negotiations.
In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below.
Notwithstanding the foregoing and subject to the terms and conditions set forth below, either party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law. Should an amicable settlement between parties not be possible, the dispute shall be finally solved by arbitration as designated herein subject to the terms and conditions set forth below.
The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not be applied to these Terms.
Any questions relating to these Terms which are not expressly or implicitly settled by the provisions contained in these Terms shall be governed by and construed in accordance with the following:
For Clients domiciled in the United Kingdom; all disputes arising out of or in connection with the Terms, including any question regarding its existence, validity or termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Arbitration Rules”) by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, appointed in accordance with the Arbitration Rules.
The place of the arbitration shall be London, England. The language of the arbitration shall be English. The arbitration shall be commenced by a request for arbitration by either party, delivered to the other party.
The request for arbitration shall set out the nature of the claim(s) and the relief requested. Except as otherwise specifically limited in these Terms, the arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such.
Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
The existence and content of the arbitral proceedings and any rulings or awards shall be kept confidential by the parties and members of the arbitral tribunal except to the extent that disclosure may be required of a party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, with the consent of all parties, where needed for the preparation or presentation of a claim or defence in this arbitration, where such information is already in the public domain other than as a result of a breach of this clause, or by order of the arbitral tribunal upon application of a party.
The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees, as the arbitral tribunal shall deem reasonable. Any award of the arbitral tribunal shall be final and binding on the parties.
Enforcement of any award may be sought in any court of competent jurisdiction. For all purposes of these Terms, the parties consent to
(a) exclusive jurisdiction and venue in England and
(b) the laws of England as the governing law, without giving effect to any principles of conflicts of law.
Use of the Platform is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section. Notwithstanding the foregoing, Client and Deep Fathom Ltd agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, seek injunctive relief in a court of law, or to file suit in a court of law to address intellectual property infringement claims.
This contract is subject to the courts of England and Wales.
Further details of Service Level Agreements and Dispute Resolution are documented in the Schedules.
15. General
15.1 Relationship of the Parties
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between Client and DeepFathom, and Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
15.2 Severability
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible to affect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
15.3 Entire Agreement
These Terms are the entire agreement between Client and DeepFathom regarding Client’s use of the Platform Services, Platform Materials and the Platform and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
15.4 Assignment
Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without DeepFathom’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable.
Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent:
(1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or
(2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees. DeepFathom may freely assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without restriction.
15.5 No Waiver
Failure of either party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
15.6 Notices
Except as otherwise specified in the Terms, all notices related to the Terms will be in writing and will be effective upon
(a) personal delivery,
(b) the second business day after mailing, or
(c), except for notices of termination or an indemnifiable claim, which shall clearly be identifiable as “Legal Notices”, the day of sending by email. Billing-related notices to Client will be addressed to the relevant billing contact designated by Client. All other notices to Client will be addressed to the relevant Client system administrator designated by Client.
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