In providing online services and products to Clients, the Company (Deep Fathom Ltd) operates in accordance with the following terms and conditions of contract, which may only be amended by written agreement within an appropriate document. These terms and conditions, together with any associated documents as defined below which have been accepted by both parties, form the entire contract between the Company and the Client.
Within these terms and conditions of contract, the word ‘document’ shall be defined as “any information that defines the products or services that will be delivered and the associated costs”. This may include but is not restricted to product definition(s) that appear on our web site, a specific proposal for services, or a combination of the two.
- To protect the interests of Clients, the Company undertakes the professional obligation not to disclose Personal Data information that is confidential to the Client and will only use this for the purpose of the delivery of contracted services, efficient administration and to maintain effective customer relationships. However, this confidentiality shall not extend to any information already known to the Company prior to its disclosure by the Client or lawfully received from a third party or any information already existing in the public domain at the date of its disclosure. Any Client has the right to request details of the information the Company holds on them.
- More specifically the assessment system the Company uses has a range of access points which are username and password protected via third-party secure servers:
- Assessment designers – those who create assessment content and manage the automatic analysis of data for reporting purposes
- Assessment implementors – those who set up individual assessment scopes, which may include the capture of personal data, and issue url(s) to assessment users
- Assessment user – those that take part in an assessment
- Report users – those that have access to assessment responses and analysed data
- Each type of User has a different level of access and therefore the Company collects and analyse different levels of personal data.
- In summary:
For assessment designers
- We collect the designers name, company information such as email addresses and telephone number to set them up in the assessment system, creating usernames and passwords. We also use this information for formal communications and help them create the necessary assessment content.
For assessment implementors
- We collect the implementors name, company information such as email address and telephone number so that they can be set up in the assessment system using usernames and passwords. We also use this information for formal communications to help them run assessments to meet their specific requirements.
For assessment users
- We do not collect the personal data of assessment users unless these are specifically requested by the Client we are working with and inputted by the assessment designer or implementor. Being IT based, the system collects IP addresses which are used for problem solving and analysis purposes should this arise.
For report users
- We collect and use information such as names, email addresses and telephone numbers to create usernames and passwords to access the reporting portal so that users can see assessment results.
- For business portal administrators we collect email addresses, names to set up usernames and passwords. Business portals may contain personal data recorded by the Client in their documentation and website pages. Anyone is free to request these to be removed or changed at any time.
- The Company never sells personal data. The Company does not pass on personal data to third parties unless it is in connection with the services provided as agreed. Information collected will be retained indefinitely so reporting and other activities related to the agreed services can be delivered. Business portal administrators, assessment implementers, assessment designers and report users can see that data and request editing or removal.
- The Company will take all reasonable precautions to ensure the protection of client information stored on its web site or other IT systems by implementing, at minimum, industry standard security such as server room physical access control, firewalls, password access control and encryption of access details. Where the Company, at its sole discretion, deems increased protection is required beyond this level, this will be provided.
- The product or service is confined to work specified in the associated documents. The time to complete the work and the measure of its success depend to a degree on factors outside the Company’s control, including the co-operation of the Client and the Client’s staff. Time shall not be of the essence and the Company shall incur no liability to the Client in respect of any failure to complete the work or any part thereof by any date specified in the proposal or otherwise.
- In creating proposals, the Company is limited to providing an estimate of the cost to the client, the time required to deliver the services and the information that will be delivered, based upon information made available by the Client. Any such estimates of cost, time and services, and any confirmation or variation of them in subsequent correspondence or reports, although given in good faith, shall not be deemed to be undertakings, warranties or contractual conditions unless so agreed in writing.
- Although The Company may supply generic content for its online services, these are provided to the Client without warranty as to its applicability to the Client’s own specific circumstances. It is the responsibility of the Client to ensure that this and/or any subsequent adaptation or development of the content is appropriate to their needs. The Company accepts no warranty or liability whatsoever for any content created by the Client themselves. The Client shall always be responsible for the interpretation, adaptation and/or utilisation of any and all information reported from the Company’s services. In no circumstances shall the Company be liable for loss of profit or any other consequential damages.
- Intellectual property rights in any computer program, system, product design or other work undertaken or used by the Company in the pursuance of the contract shall remain vested in the Company. The Client shall have a free and irrevocable license to make use of them for the Client’s own purposes, as defined in and for the duration specified in any agreed proposal, subject to the Company’s invoices having been paid in full. The Client shall not publish or circulate them outside their own organisation without the Company’s written permission.
- During the Client’s use and discussion with the Company about the online tools, they will inevitably gain some understanding of how these tools are designed and used. The Client undertakes not to use any such information or Intellectual property to develop comparable tools, either for their own or others’ use, or to share this Intellectual property with others.
- The client shall not:
- copy or take from the Client’s possession, any disk, memory stick, or other medium upon which this program or its contents may be magnetically, electro-statically or otherwise imprinted or stored or any manual or documentation relating to or containing this program, or the methodology deployed to create content in the system or the content itself.
- display this program on-screen by use of de-bugging, editing, diagnostic or other such program or means for the purpose of copying any part of this program, translating it into another language or making able to be listed.
- erase or seeks to erase the on-screen copyright notice and link to this document or prevent its display or reducing its legibility or in any ways interfering with its position or prominence.
17. All data provided by the client in order to permit the Company to deliver its services will remain the property of the client, with the Company being permitted to use this in the pursuance of the agreed contract. Unless specifically agreed otherwise, the Company has the right to retain indefinitely any data required to generate online assessment or benchmarking reports and to use this anonymously, in which case the Company will ensure the client cannot be identified from use of such data.
18. The Client shall make available to the Company all information that may reasonably be required for the effective execution of their work agreed within the contract. When the Company’s representative is required to work on the Client’s premises, the Client will provide the Company with office accommodation, telephone and minor secretarial services, and protective clothing and equipment if appropriate, without charge.
19. The Company is acting at all times as the Client’s agent and the Client hereby agrees to indemnify the Company against all claims and costs for which the Company may become liable by reason of the acts or omissions of the Company during the delivery of any agreed contract.
20. The fees relating to the product or service are detailed in the documents associated with it. They remain valid for the period stated in the documents or for 30 days from the date of their submission. The Company reserves the right to amend the proposed fee after the expiry of this validity period.
21. Should circumstances arise which could not reasonably have been foreseen at the time the documents were agreed, the fee may be amended by agreement in respect of the agreed change in content.
22. Fees quoted are for a single use of the service or for the first 12 months of its delivery, unless otherwise stated in any proposal. Where the service continues for a period longer than 12 months, the Company reserves the right to adjust the costs to reflect inflation and/or any other changes, unless agreed otherwise in a proposal.
23. Unless specified within the documents, the fees cover a licence for the Client to use the product or service at any time they wish. For ‘single-use’ products, the client may define the scope and participation to suit their own needs. For products that have been purchased for use at any time over a specified period, the Client may only use it within the scope and participation defined in the agreed proposal or other associated document(s). The Company will provide access to the product or service through their web site and will make every effort to ensure its availability. Although the Company cannot guarantee that it will be available for 100% of the time, they will make every effort to maximise its availability to Clients.
24. For purchase of the ‘one-off’ use of a product, either selected directly from the web site or as a result of a proposal, the duration of the licence will be until all deliverables included with the documents are made by the company. This will normally be within seven days of the completion of the Client’s access to the online product (the Close Date set).
26. For other products the duration of the contract will be for a minimum of twelve months, unless defined otherwise within the documents. This ensures that the initial work carried out by the Company to design and set up the products and services can be fully reimbursed over the duration of the contract. The licence to use any products covered by this type of contract will continue for a period of 30 days following closure of the contract.
27. This contract will be ‘rolling contracts’, to continue until terminated by either party, unless specifically defined as otherwise within the documents. Termination will be enacted by either party giving a minimum of three months’ notice to the other. Such notice may be given no earlier than nine months into the first year of the contract.
28. Fees for ‘one-off’ use products and services will be those published on the web site or as defined in any other associated documents and are only valid at the time they are quoted.
29. Fees for other products and services will remain valid as defined in the associated documents, and unless specifically noted therein, will be reviewed annually.
30. Where required, reasonable travelling, accommodation, subsistence or other expenses necessarily incurred in connection with the delivery of the product or service will be recharged to the Client at cost. Where copies of reports are specified in the documents, these will normally be provided in electronic format or in other formats by agreement free of charge.
31. Payment for ‘one-off’ use products and services will be enacted either by automatic payment through the web site or against individual invoices for their use. Access to the product or service will be available immediately the payment has been cleared through the Company’s account. Invoices for other products and services will be submitted monthly unless otherwise stated in the documents. All invoices are payable together with Value Added Tax within 15 days of the invoice date without right of set-off or counterclaim statutory or otherwise. The Company reserves the right to charge interest at 3% above current UK bank base rate per month on amounts outstanding 30 days from the date of invoice. Fees and expenses are subject to the addition of Value Added Tax, when applicable.
32. If the Client fails to make payment as required by these Terms of Working or if the Client goes into liquidation or has a Receiver or Administrator appointed of if the Client breaches any terms of the contract with the Company, then the Company shall have the right to cancel the contract with immediate effect, discontinue any work and deny further access to the products and services. All sums owing at that time shall become immediately payable as a debt to the Company.
33. No failure or delay on the part of the Company in exercising their rights under the contract shall be deemed to be a waiver of that right and no waiver by the Company of any breach of the contract shall be considered as a waiver of any subsequent breach of the same or any other condition.
34. In order to ensure any assessment report and its associated certificate (if issued) can be understood in full context, the client undertakes to disclose to any party using the report or certificate all regulatory non-compliance’s and occurrences within the scope of the assessment for which any regulatory authority requires notification.
35. The Company shall at all times keep the Client fully and effectually indemnified against all actions, claims and demands arising from any infringement or potential infringement of third-party intellectual property rights considered to have been improperly used in the course of the development of the Intellectual Property or licensing programs made available hereunder by the Company.
35.1 In any such cases where the Client is made aware of a potential breach of Intellectual Property the client shall as required, cooperate fully with the Company in regard to any potential actions, claims or demands. Specifically:
- Where the Client shall receive notice from any third party, it shall forthwith give notice to the Company setting out the nature of such issues.
- On reference by Clause 35 aforesaid the Client shall ensure cease to communicate directly with any third party in respect of such issues and shall refer all future correspondence, notices, papers or legal communications to the Company forthwith.
35.2 The Company shall upon receiving such notice from the Client, take over and adopt all dealing with any third party, whether in correspondence or proceedings.
35.3 The Company shall have authority to action, compromise or otherwise negotiate any resolution of any such issues without reference to the Client as it may in its sole discretion decide, always acting in a way to mitigate any liabilities and expense that may be incurred in meeting its contractual obligations to the Client. Nonetheless, the Company shall ensure that its actions, compromise, or negotiations do not impact adversely the Client, the Client’s activities and/or reputation. Among others, the Company shall not make any admission or recognize any form of responsibility or liability.
35.4 In any such cases initiated by the Client shall as required, cooperate fully with the Company about any potential actions, claims or demands.
35.5 On reference by Clause 35 aforesaid the Client shall cease to communicate directly with any third party in respect of such issues and shall refer all future correspondence, notices, papers or legal communications to the Company forthwith.
35.6 The Company shall upon receiving such notice from the Client, take over and adopt all dealing with any third party, whether in correspondence or proceedings.
35.7 The Company shall have authority to action, compromise or otherwise negotiate any resolution of any such issues without reference to the Client as it may in its sole discretion decide, always acting in a way to mitigate any liabilities and expense that may be incurred in meeting its contractual obligations to the Client. Nonetheless, the Company shall ensure that its actions, compromise, or negotiations do not impact adversely the Clients activities and/or reputation. Among others, Company shall not make any admission or recognize any form of responsibility or liability.
The contract between the Company and the Client is governed by the jurisdiction of the law of England and Wales.