KOMPASS North America is a New Jersey corporation located at 100 Overlook Center 2nd Floor Princeton, New Jersey 08540 (“Kompass”). Kompass is an exclusive distributor and licensee of products and/or services owned and/or operated by KOMPASS INTERNATIONAL in USA and Canada.
Advertisement(s): Advertisement in any format and/or with any commercial information message created and/or published by KOMPASS on the Client's behalf in the context of the Visibility Services.
Database(s): Any database belonging to KOMPASS INTERNATIONAL.
Purchase Order: Refers to the purchase order signed and accepted by the Client for the purpose of subscription to one of the Services indicating the nature, price and modalities of a Service and of the options subscribed for by the Client. The Purchase Order may be sent and accepted via electronic mail.
Client: Any business client who has subscribed to a Service offered by KOMPASS.
Distribution Agreement: Distribution agreement between KOMPASS and KOMPASS INTERNATIONAL.
Export Credits: Purchase units for the extraction of data from a Database.
KOMPASS INTERNATIONAL: KOMPASS INTERNATIONAL S.A., owner of the Database and related rights.
Advertising Material(s): Content of an Advertisement and any element necessary for the preparation of such content – including, in particular, any text, message, still or moving image, file, trademark, designation, slogan, logo, domain name, URL, commercial information, promotional advertisement, description of the activity, etc. - made available to KOMPASS by the Client for the purpose of performing a Visibility Service, together with any commercial information supplied by the Client to KOMPASS in view of enhancing its business information in the Database.
Prospecting: All Services enabling the Client, for purposes of prospecting, to engage in Use, in accordance with the modalities and within the limit of options subscribed for by the Client. (e.g. EasyBusiness).
Service(s): All services offered by KOMPASS under different names and trademarks and connected to Prospecting and/or Visibility.
Space(s): Space made available to the Client by KOMPASS on the Websites and on partner websites in accordance with the terms of the offer subscribed for by the Client for publication of an Advertisement.
Partner Networks: sets of distributors of products and services developed by KOMPASS INTERNATIONAL and sold under the KOMPASS brand, such as those stored on the Database and/or the Websites.
Website(s): The website(s) of KOMPASS, KOMPASS INTERNATIONAL or other Partner Network members.
Subscription(s): refers to the client's signature of the Purchase Order for ordering a Service.
Use: Any act (i) of access and/or (ii) of consultation and/or (iii) of export and/or (iv) of extraction and/or (v) of exploitation of data relating to companies contained in the Database in accordance with the modalities and within the limit of options subscribed for by the Client.
Visibility: All Services offered by KOMPASS corresponding (i) to the sale of advertising spaces on the Website and/or (ii) to technical services intended to optimise the visibility of the Client's commercial information and/or the referencing of this information by the search engines of the aforementioned Website and/or (iii) to the creation of advertising content or advice relating to said content (ex: Booster).
These General Terms and Conditions include rights and obligations of the parties in connection with the Services offered by Kompass to Client. Set out the general contractual rules and principles applicable to the relationship between the Client and Kompass (hereinafter, the “Parties”) in the context of the Services, and the special conditions applicable to Prospecting (Article 9) and Visibility (Article 10) respectively. These General Terms and Conditions are intended to be binding on any intermediary acting on behalf of the Client.
The Subscription for a Service by the Client implies full and entire acceptance of the General Conditions and the Purchase Order.
The Client undertakes to check the Purchase Order edited by KOMPASS before signing or accepting it and shall not seek to have KOMPASS held liable for any errors or omissions.
I. provisions APPLICABLE to all services
Any Service subscribed to by the Client is indicated and itemised in a Purchase Order.
The General Conditions and Purchase Order form an indivisible whole.
The value of any other document emanating from KOMPASS (including, in particular, advertising brochures or leaflets) is only informative and indicative but not contractual.
Within all limits permitted by law, any objection relating to the quality or conformity of a Service shall be reported by the Client to KOMPASS, in writing by Certified Mail sent to: 14 Washington Rd., Building 6, Princeton Junction, New Jersey 08550 (“Notice of Dispute”). KOMPASS shall have thirty (30) days from receipt of said notice to cure the complained of condition. Accordingly, if no such notice is timely received, the Services shall be deemed to be in compliance with the agreement free from defect or error, and of sufficient quality.
5. IRREVOCABILITY of the subscription
Without agreement in writing from KOMPASS, the Subscription to a Service by the Client is irrevocable.
6. TERM OF THE SUBSCRIPTION
KOMPASS shall provide Services (i) on a per service basis or (ii) by subscription during a period specified in the Purchase Order.
The effective date corresponds to the date of signature of the Purchase Order or, in the absence of a stated date of signature, to the date of issue of the Purchase Order.
A subscription shall not last more than three (3) years, notwithstanding any indication to the contrary in the Purchase Order. If the Purchase Order does not state a maximum time frame, or if it includes automatic renewal, it is understood that the Services cannot be supplied for longer than three (3) years as from the effective date.
7. services unavailable
KOMPASS may remove any Service from its product and service offer at any time and for any reason. If it does so and the withdrawn Service is covered by a Subscription, KOMPASS will notify the Client 30 days before the Service is definitively discontinued.
Only KOMPASS may be deemed liable to the Client for Service quality and delivery and the Client’s only remedy in the event of default is to pursue a Claim against KOMPASS. None of the employees, officers or affiliates of KOMPASS shall be liable in connection herewith.
Within the limit permitted by law, KOMPASS's liability with respect to the Client is limited, for all types of loss, to the amounts effectively received by KOMPASS from the Client for the contractual period giving rise to the event that generated liability. The Client acknowledges that the agreed price reflects this distribution of risk and the limitation of liability resulting from it.
KOMPASS's liability cannot be incurred for unforeseen or unpredictable losses and/or circumstances and in no event shall KOMPASS be held liable for damage suffered by the Client for loss of earnings, loss of market or client-base, loss of expected profits, any increased costs, harm to third parties or commercial harm related to performance of the Services by KOMPASS. KOMPASS does not guarantee that its Services correspond to the Client's specific needs or specifications.
More specifically, KOMPASS shall use all due care in collecting and updating the data in the Databases but shall not be deemed responsible for any minor omissions, inaccuracies or errors affecting the information in the Database, or the consequences thereof for the Client. KOMPASS also shall not be held responsible for any malfunctions or telecommunications problems affecting the Database or any viruses or hacking attacks by third parties.
Delivery time-frames are given for information purposes and delays shall not give rise to any penalty, compensation or termination.
In the event that (i) KOMPASS agrees to work with a service provider of the Client at the latter's request, and/or (ii) KOMPASS delivers to or invoices another entity on behalf of the Client, and/or (iii) KOMPASS agrees to deliver any other Service to an intermediary of the Client of any nature whatsoever, the Client acknowledges and accepts that it alone is responsible for any damage and harm caused to KOMPASS by its service provider, the third party, or the other entities of its group that may be concerned. The Client therefore undertakes to compensate KOMPASS for all harm pertaining thereto (including reasonable legal fees), without waiting for the service provider, third party, intermediary or any other entity of its group to recognize its liability or to compensate KOMPASS.
II. special provisions APPLICABLE to prospecting and visibility services
The provisions of this Article 9 apply exclusively to Subscriptions to a Prospecting Service.
9.1 DATABASE ACCESS AND USE
In case of a Visibility Service, on-line access to the Database will be accomplished via the Website or online communications service that will be provided to the Client
The Client shall access the Database by using their connection logins, comprised of a user name and password, communicated by KOMPASS to the Client by email within approximately fifteen (15) days of the date of signature of the Purchase Order (unless otherwise agreed). If sent electronically, KOMPASS' computerized registers count as proof of sending said connection logins to the Client.
The Client shall designate a person or persons authorized to receive and manage connection logins. The connection logins constitute confidential information. In this respect, the Client shall ensure that they are only communicated to members of its personnel authorized to know them and upon whom the Client undertakes to impose the same obligations of confidentiality.
The Client shall be responsible for the use of connection logins that are communicated to it. In the event of loss, theft or accidental disclosure of connection logins, the Client shall immediately so inform KOMPASS who shall send new connection logins to the Client and shall immediately implement the necessary measures for preventing any connection from the logins that were disclosed. Any costs involved in creating and sending new connection logins shall be borne by the Client.
9.2 QUALITY OF SERVICE
KOMPASS undertakes to deploy all necessary resources for ensuring consistency, continuity and quality of the Services offered. In this respect, KOMPASS is bound only by an obligation of using best efforts to reach commercially reasonable results. KOMPASS shall endeavour to maintain access to the service 24 hours a day, every day of the year, except for disruption of networks outside of its control. In this respect, KOMPASS is bound only by an obligation of best-endeavours.
KOMPASS reserves the right to interrupt access to the Website and to the Prospecting Services exceptionally and briefly in order to carry out any maintenance or security interventions.
9.3 MODIFICATION AND UPDATING OF THE DATABASE
KOMPASS is authorized to develop the functionalities and rules for classification of its Database with particular reference to the evolution of information technology techniques and at its sole discretion, although the nature of data accessible shall remain as agreed in the Purchase Order.
KOMPASS regularly updates the data contained in the Database. The volume of information included is in constant growth. KOMPASS shall not, however, be held responsible for any omissions, inaccuracies or errors affecting said data, or for any consequences that may result from them for the Client.
9.4 PERIOD OF DATABASE USE
The Client may subscribe for online Database Use for a fixed period by signing up for a subscription, within the limits of the Prospecting Services offered by KOMPASS.
The type of subscription and period of Use is stated in the Purchase Order.
9.5 CONTENT OF THE DATABASE
The content of the Database accessible by the Client varies in line with the selected search filters and the options subscribed to by the Client.
In particular, the KOMPASS classification includes:
- different geographical areas;
- generic information relating to referenced companies;
- financial information relating to referenced companies;
- information relating to officers of the referenced companies.
9.6 ANALYTICAL TOOLS
KOMPASS offers a Service allowing the use of analytical tools and/or of automated cross-checking of data contained in the Database, able to function on the basis of different search filters. In particular, results can be presented in the form of pivot tables and graphs.
The options subscribed for by the Client in the context of this Service are indicated in the Purchase Order.
The resulting information is generated algorithmically in line with statistical or objective data held by KOMPASS. Under no circumstances shall the service offered by KOMPASS be intended to meet specific requirements of each client or replace human analysis. Client shall be obligated to verify results obtained through KOMPASS before reaching an economic decision.
9.7 AUTHORIZED USE
The acts of Use allowed to the Client are those corresponding to the Prospecting Service subscribed for by the Client as indicated in the Purchase Order.
The acts of Use allowed are strictly personal to the Client. Without express authorisation in writing beforehand and presupposing the payment of the purchase price for additional licences, the Client shall refrain from assigning its rights to third parties, without prior written consent of KOMPASS, which KOMPASS can withhold at its discretion, from communicating access codes that have been given to them and/or allowing people other than members of its staff to benefit from them within the agreed limits. In the event of purchase by an intermediary on behalf of several distinct legal entities, this intermediary shall report this immediately to KOMPASS before the signature of any Purchase Order. Unless agreed otherwise, the Services intended for each of the legal entities concerned shall be the subject of separate contracts.
Any access code (or connection login) delivered is, in principle, usable by one person only within the same company. Sharing the same code or login among several people is not allowed. The Client agrees to buy as many codes or logins as there are people likely to carry out acts of Use.
Use on several sites is also, in principle, unacceptable. Unless expressly agreed otherwise between the Parties, the access codes provided must be used exclusively for acts of Use from a location corresponding to the address indicated for delivery.
Any act of Use that is not expressly allowed is prohibited.
The balance of Export Credits can be viewed on the Website in the Client's personal space.
In order to verify the Client's compliance with the provisions of articles 9.9, 9.10, 15 and 16, KOMPASS shall have the right to conduct an audit, at any time, without prior notice, at the Client's premises, throughout the period of subscription, and thereafter for one (1) year following said date.
For this purpose, KOMPASS may be assisted and/or accompanied by one or more experts, or other professionals as KOMPASS deems fit. Parties agree that information and/or services provided by KOMPASS are confidential; parties shall adhere to strict confidentiality of any commercial information that is confidential or of private nature of which it may incidentally have knowledge at the time of said audits and which is not directly linked to a failure to comply by the Client.
Except for serious reasons that are duly explained in writing and pertaining to the protection of its fundamental economic interests, the Client undertakes (i) to facilitate free access to its premises by KOMPASS personnel carrying out inspections and by experts, bailiffs and/or sworn officials accompanying them, (ii) to enable them to inspect its servers, as well as its terminal devices, with a view to verifying in particular the absence of any fraudulent Use of an access code.
The Client shall be notified in advance. However, in the event of indications suggesting the possibility of the disappearance of evidence, KOMPASS may present itself without prior notice, unless otherwise imposed by applicable law in the Client's country, when the authorization of the judicial authority must be obtained.
Among other rights accorded herein and by law, the following rules shall apply in the event that the Client’s default (such as, in particular, non-payment or late payment, violation of article 15 and 16 or a Use that has not been expressly authorized):
- Upon receipt of a Notice of Breach and a 5 day right to cure from KOMPASS, the Client is required to cease any form of Use, on pain of a periodic penalty of $100 per day of delay from the date of receipt of Notice.
- In the event the Client fails to comply with the Notice and fails to cure default within 5 days, Client shall be responsible for payment to KOMPASS as liquidated damages 5 times the amount of the subscription fee paid, plus interest, attorney’s fees and costs
9.10 DISCONTINUANCE OF THE CONTRACTUAL SERVICE
In the event of discontinuance of a Service paid for by subscription, whether subsequent to early termination for any reason whatsoever or through expiry of the agreed term of subscription, the Client shall immediately cease any form of Use (without prejudice to Article 9.7).
Export Credits purchased but not used by the Client during the period of its subscription shall be irrevocably lost. Export Credits will not be either refunded or carried forward in the event of a new Subscription to a Service.
The provisions of this Article 10 shall apply exclusively to Subscriptions for a Visibility Service.
10.1 PROVISION OF SPACE AND REFERENCING
10.1.1 SALE OF SPACE
The Client can subscribe to a Service consisting of the publication of Advertisements by KOMPASS on the Websites as well as on Partner Network or third party websites on the Client's behalf in Spaces provided for said purpose. KOMPASS offers several types of Space formats, allowing the display of Advertisements for different durations and/or in accordance with different targeting rules depending on the options considered. The format, duration and targeting rules subscribed for by the Client are indicated in the Purchase Order.
It is the Client's responsibility to make available to KOMPASS the final Advertising Material intended for publication in the form of an Advertisement.
In the event the Client fails to supply the Advertising Material timely, KOMPASS reserves the right to supply its Prospecting Service without compensation for the possible late publication of the Advertisement. No full or partial reimbursement will be granted to a Client who has not supplied the Advertising Material to KOMPASS.
Without prejudice to the provisions of the General Conditions providing the possibility for KOMPASS to suspend the performance of its Services in the event of non-payment or late payment of outstanding bills, the effective provision of Space for publication of Advertisements by KOMPASS shall take place within a period of one (1) month from its invoicing to the Client.
The Client can subscribe to a Service that may include improved visibility for its company listing on the Website(s), promotion on these Websites of commercial information concerning the Client (elements of identification, distinctive signs, etc.) and/or optimization of the referencing of said listings and information at the time of a search on the Database and/or on third party search engines referencing one or more Websites.
The characteristics, options and modalities of the referencing subscribed for by the Client are set out in the Purchase Order. The Client can subscribe to an optional Service allowing access to the consultation follow-up statistics for its listing.
If the nature of the Service so requires or if the Purchase Order so specifies, it is the Client's responsibility to make available to KOMPASS the Advertising Material intended for promotion in the context of the Services referred to in this Article. In the event Client fails to supply this information timely, KOMPASS reserves the right to supply its Service without compensation for the possible late performance of the Services in question. No full or partial reimbursement can be granted to the Client not having supplied the Advertising Material to KOMPASS.
Without prejudice to the provisions of the General Conditions providing the possibility for KOMPASS to suspend the performance of its Services in the event of non-payment or late payment of outstanding bills, the performance of the Services referred to in this Article shall take place within a period of one (1) month from proving to the Client an invoice for services by any reasonable means, including email or regular mail.
10.1.3 PROOFS AND CLAIMS
The statistics held by KOMPASS, together with the computer data recorded in the KOMPASS and KOMPASS INTERNATIONAL servers relating to the Services referred to in articles 10.1.1 and 10.1.2 (period of display, consultation statistics, number of displays and/or clicks if KOMPASS usually collects this type of information, etc.) shall be deemed as proof unless the Client provides to KOMPASS reliable information to the contrary.
In the event of publication of an Advertisement where the content is not in conformity with the Advertising Material communicated to KOMPASS by the Client or where the quality is not as agreed, the Client has a period of eight (8) days from the date of contentious publication for addressing a dispute in writing to KOMPASS. In the absence of a claim within said period, any Advertisement published is indisputably deemed to be in conformity.
In the event of dispute concerning the format of the Space sold in the context of article 10.1.1 and/or the quality of the Services provided in the context of article 10.1.2, the claim period is 15 (fifteen) days. Services carried out more than fifteen (15) days before the claim are therefore indisputably deemed to be satisfactory.
In the event of dispute on the invoicing, in particular with regard to the elements of calculation retained (such as, if said elements are relevant, the number of clicks, printouts or acts, CPC, CPI, etc.), the claim period is that specified in article 11 of the General Conditions.
10.2 CREATION OF AN ADVERTISEMENT
KOMPASS can offer certain Services that may include work to create the content of Advertisements in different formats (text, image). The format subscribed for by the Client is indicated in the Purchase Order.
Work for creation or advice in terms of advertising are of necessity, as expressly mentioned in the Purchase Order. Notwithstanding anything herein to the contrary, no KOMPASS Service shall be deemed to include any assignment whatsoever of creation and/or advice on its part.
In the event of subscription to such a Service, it is the Client's responsibility to supply to KOMPASS or to its service providers the Advertising Material that it wishes to see shown in the Advertisement and to involve itself in producing the Advertisement by making its expectations known and by steering the designers in line with its choices.
Without prejudice to the provisions of the General Conditions anticipating the possibility for KOMPASS to suspend the performance of its Services in the event of payment default or late payment of outstanding bills, the design work shall start within a period of one (1) month from KOMPASS issuing an invoice (unless agreed otherwise between the Parties as shown in the Purchase Order). KOMPASS shall have reasonable time to complete the assignment and the delivery date will depend on the Client's individual circumstances and compliance with the terms of this agreement.
It is the Client's responsibility to validate every Advertisement within eight (8) days of receipt by the Client of a copy of the final draft and by submission to KOMPASS or to its service provider of a signed "ready for press" proof or my space access. Within the same time-frame, it shall also make known its objections. No complaint shall be made with regard to the content of an Advertisement that has been validated or for which no objection has been received by KOMPASS within the proscribed time.
In the event of non-validation of the Advertisement by the Client for a reason not attributable to KOMPASS or to its service provider, the amounts already paid by the Client shall not be reimbursed by KOMPASS and the amounts not yet paid shall remain due up to the limit of work completed.
10.3 URL ADDRESS
Any incorporation in an Advertisement or a company listing of a link towards the Client's website at the latter's request shall be effected subject to a functional and compliant URL address for the website corresponding to the laws and regulations applicable to the Advertiser's activity. The Client is solely responsible for the content of websites linked from any URL address incorporated in an Advertisement or company listing at the latter's request.
10.4 REFUSAL OF ADVERTISING MATERIAL
KOMPASS reserves the right at any time to refuse any Advertising Material which, in any manner whatsoever, in its reasonable judgment:
- present a character that is contrary to the legislation or regulations in force, to good morals or to public order;
- is not in accordance with KOMPASS's commercial policy. In this case, KOMPASS reserves the right to ask the Client to modify the Advertising Material in order to bring it into compliance with its commercial policy or, if the Service subscribed for includes a service for creation of an Advertisement, to propose an acceptable alternative, without this being an obligation for KOMPASS.
10.5 INTELLECTUAL PROPERTY RIGHTS
10.5.1 KOMPASS INTELLECTUAL PROPERTIES
KOMPASS holds all intellectual property rights relating to any Advertisement created on the Client's behalf in the context of the Visibility Services, subject to the Client's rights over any Advertising Material included in the Advertisement in question described in Article 10.5 of the General Conditions. The Client is not authorized to publish such an Advertisement on a third party advertising space outside of the stipulations provided in the Purchase Order and/or without prior written consent from KOMPASS.
10.5.2 INTELLECTUAL PROPERTY RIGHTS OF THE CLIENT AND LICENSE
The Client expressly declares that it holds all rights (literary and artistic property, trademarks, trade names, protected designations, designs and models, rights for use of the image or other third party personality attributes) on all elements (documents, contents or advertising messages, etc.) that make up the Advertising Material sent to KOMPASS, and which are necessary for performance of the Visibility Services, and that these are in compliance with all legal and regulatory rules in force.
For the requirements of the Services, the Client shall grant to KOMPASS, free of charge, a non-exclusive and non-transferable (with the exception of possible subcontractors of KOMPASS solely for the requirements of the Services) license to use the Advertising Material worldwide for the duration of the Services.
This license includes:
- a right of reproduction including, in particular, the right to fix, to have fixed, to reproduce, to have reproduced, to record, to have recorded the Advertising Material; the right to establish and to have established, in whatever number that may please KOMPASS, any duplicates or copies of the Advertising Material;
- a right of adaptation of the Advertising Material in line with the Client's instructions and with technical and commercial necessities of the different modes of operation;
- a right of communication to the public of the Advertising Material solely for the purposes of publicity, visibility or promotion in the Client's favour by any means, and in particular on the Internet, including the Websites and network of KOMPASS partners.
Any other use of the Advertising Material by KOMPASS is subject to prior agreement in writing from the Client.
Within the same limits, the Client hereby grants KOMPASS the right to reproduce, adapt, and communicate its logos.
10.6.1 KOMPASS RESPONSIBILITIES
KOMPASS shall not be held responsible for the non-compliance of an Advertisement with the local legislations of countries where the Advertisement is distributed. KOMPASS offers to the Client the possibility of receiving, free of charge, requests for information in relation with its activity. However, KOMPASS shall not under any circumstances be held responsible in the event that a Client does not receive such information during the period of the Service. As a general rule, KOMPASS does not guarantee the success of an Advertisement or that its Services will lead to an increase in the number of visitors and/or customers on the Client's website, or in the number of deals signed by the Client.
10.6.2 CLIENT RESPONSIBILITIES
The Client is solely responsible for the Advertising Material sent by the latter to KOMPASS.
The Client shall bear the responsibility of compliance of the Advertising Material included at its request in an Advertisement or company listing with the laws, rules and legislation and regulations in force in the subject jurisdiction.
The Client declares and warrants that it holds (i) all intellectual property rights relating to the Advertising Material sent to KOMPASS for the purposes of distribution in an Advertisement, together with (ii) the right-of-use for advertising purposes of personality attributes of people likely to appear in it, including, in particular, the image rights of the people concerned.
The Client declares that it is not bound by any reservation or claim formulated by third parties with regard to its rights over the Advertising Material.
Client shall hold KOMPASS harmless and shall defend and indemnify KOMPASS against any right of recourse of any nature whatsoever, against any suit, action or proceeding of any kind and any nature, emanating from any user or third party, and against any action or complaint that might be initiated against KOMPASS for the insertion of the Advertising Material in an Advertisement or company listing.
KOMPASS declines all responsibility with regard to the deficiencies or errors that may result from use of the Advertising Material submitted by the Client.
III. GENERAL PROVISIONS
11. ONLINE SERVICES not covered
In principle, an online Subscription to the Services is not possible. It is understood, for the avoidance of doubt, that where services can be ordered and supplied directly online from the Websites (eg: "EasyList"), they are sold by KOMPASS INTERNATIONAL and not by KOMPASS.
12. MODIFICATION of general conditions
KOMPASS hereby reserves the right to modify, at any time, the General Conditions applicable to any new Subscription.
The applicable General Conditions that accompany the Purchase Order at the time of Subscription shall be those applicable to the Service contracted by the client.
The price payable for a Service is determined exclusively based on the stipulations appearing on the Purchase Order.
The prices are stated in USD.
14. invoicing and payment
14.1 BILLING ADDRESS AND BILLED ENTITY
It is understood that the address for invoicing and delivery is the one shown in the Purchase Order. It shall be Client’s responsibility to provide KOMPASS with the Client’s proper address. If invoices or services are to be sent or delivered to another address, the Client shall specify this clearly at the time of Subscription and check that this separate address is duly posted to the Purchase Order.
The name and address of the entity appearing on the Purchase Order as “Client” shall be deemed responsible for paying the invoice and using the service and for the purposes herein, unless established otherwise by Client in writing. The Client shall not transfer its obligations arising from the contract without the express agreement of KOMPASS, which is in KOMPASS’S sole discretion, and therefore cannot require another person or entity to be invoiced in its place and use the subscription. On an exceptional basis and at the express request of the Client, KOMPASS may nonetheless and at its discretion accept a change in the entity invoiced, although in this case, the Client shall always remain jointly and severally responsible for payment of the invoice.
Any intermediary making a Subscription on behalf of a Client shall clearly specify the name of the Client on behalf of whom it is acting on the Purchase Order. That Client alone shall receive delivery and be invoiced. Any intermediary having failed at the time of Subscription to indicate the name of the Client for whom it has acted shall be invoiced personally and obliged to pay the invoice, including when the Services are payable in advance.
In the event that the Client objects in writing to being personally liable for payment of the Subscription made on its behalf by an intermediary, the latter shall provide proof to KOMPASS, upon request from KOMPASS, documentation sufficiently establishing such relationship between the parties. In the event it fails to provide such proof within a period of 8 (eight) days, or if it appears that it has exceeded the purpose of its power of attorney, the intermediary in question shall be personally held responsible for paying the invoice, including when the Services are payable in advance.
14.2 TERMS OF PAYMENT
Unless otherwise specified and expressly accepted by the Parties or stated in the Purchase Order, the payment must be settled in full and the price paid before commencement of performance of the Services by KOMPASS.
14.3 LATE PAYMENT
Failure to pay in full or in part by the Client of a single invoice by the deadline set for said invoice shall, as of right and without prior notice being necessary, incur the following:
- all sums remaining shall be deemed due upon receipt of an invoice issued by KOMPASS, whether due or to become due, by whatever methods of payment were specified;
- In the event payment in full of any invoice is not received within 5 days when due, the payment shall be deemed “late.” All late payments shall bear a late fee equalling the lesser of per cent (5%) of the amounts due, or maximum amount of interest accorded by law in the subject jurisdiction, plus reasonable legal fees and costs, interest, and without prejudice to any entitlement to additional damages accorded by law;
- payment by the Client of a fixed-rate compensation of $100 is due the following day.
15. INTELLECTUAL PROPERTIES
KOMPASS holds exclusive ownership rights or operating rights on all intellectual property owned by KOMPASS INTERNATIONAL and its affiliates relating to:
- the Databases, including their architecture, their presentation, their arrangement and their classification;
- all methods, processes, techniques, developments, and know-how incorporated in the Services or which KOMPASS may be led to develop or provide in the context of the Services;
- all original or distinctive elements appearing in the work, documents, memos, consultations, opinions, conclusions or other procedural actions, etc. realized in the context of the Services, including but not limited to any copyright, registered trademark and any other intellectual property right relating thereto.
The Subscription to a Service shall not imply the disposal of any intellectual property right to the profit of the Client. The Client shall only be authorized to use KOMPASS products and services for business purposes and in view of meeting its in-house requirements strictly within the limits of the Services subscribed for.
The Client shall not make mention or use of the name, designation, trademarks and logos or other titles, whether or not commercial, of KOMPASS, KOMPASS INTERNATIONAL or its affiliates without its prior agreement in writing.
The Client is expressly prohibited from reproducing, representing, adapting, hiring, transferring, commercializing and, more generally, using all or part of the KOMPASS products or services for profit from third parties to the Client, for any purpose whatsoever, free of charge or against payment, and by any means whatsoever.
Specifically, the Client does not hold any right to reproduce, adapt, translate or represent the Database outside the limits strictly defined in these General Conditions and in the Purchase Order.
The Client shall not transfer, encode, grant sub-licenses, or transmit in any way whatsoever the aforementioned right-of-use. The Client shall not allow any person, with the exception of its duly authorized employees when the Client is a legal entity or a trade association, to use or consult the Databases without prior authorization in writing from KOMPASS. In the event that KOMPASS grants its authorization, the Client remains responsible with regard to KOMPASS for the use of the Databases by its own clients and for compliance with these General Conditions. Any request for information concerning any multi-use or collective use shall be addressed to KOMPASS.
The Client has been made aware that the Databases contain control addresses intended for detecting any unauthorized use. The Client undertakes to take all necessary steps to ensure that its employees, associates, subcontractors, together with any third parties involved on the Databases comply with the above obligations.
16. NON COMPETITION
The Client holds a simple right of use over the Databases, which is strictly limited to the Use stipulated in Article 9.7. This right is non-transferable, non-exclusive and strictly limited to the period of the Services solely for the requirements of its activity and in USA and Canada territory, TO THE EXCLUSION OF ANY ACTIVITY LIKELY TO BE DIRECTLY OR INDIRECTLY IN COMPETITION WITH KOMPASS'S ACTIVITY.
The following is understood to be an "activity directly or indirectly in competition with KOMPASS's activity":
- publishing or exploitation of databases, in all forms and on all media, such as paper directories, digital media and on-line publishing on Internet type digital networks;
- supply of all associated services: information delivery, printing work, handling, routing, sending of mail and email in all its forms;
- supply and marketing of advertising services.
The following is also prohibited: total, substantial, or partial extraction from or use of the Database on another medium, duplication in any form whatsoever of all or part of the Database, wrongful extraction of a non-substantial part of its Databases for the purpose of resale, rental, or incorporation of this data in any new business product or service.
17. PERSONAL DATA pROTECTION
KOMPASS undertakes to comply with regulations applicable to the protection of personal data.
Data of a personal nature that is indicated by the Client when creating the account (last and first names, together with telephone numbers, postal and email addresses that can be linked to an identified or identifiable person), may be used by KOMPASS and its partners for the requirements of managing said account and performing the Services. It is also accepted that said data may be used for commercial purposes in order to promote the products of KOMPASS, its affiliated companies and/or its trading partners in the context of email or direct mail campaigns, within the limits specified by applicable legislation. KOMPASS may thus legitimately consider that the person concerned has given their consent. If data of a personal nature does not relate to the Client (or to the person representing it for this purpose), but concerns a third party, the Client shall ensure that said third party has been informed of this clause and has given their consent. In the opposite case, it shall assume all consequences and shall hold KOMPASS harmless against any right of recourse from the third party in question and/or the competent authorities.
18. Force majeure
All circumstances outside the control of the Parties preventing the performance of their obligations under normal conditions shall be considered grounds for releasing the Parties from their obligations and Parties and the services contemplated herein shall be suspended accordingly. The party that invokes the circumstances referred to above shall immediately notify the other party of their occurrence.
All unavoidable events and circumstances, external to the parties, unforeseeable, inevitable, outside the control of the Parties and which cannot be prevented by the Parties, despite all reasonably possible endeavours, shall be deemed cases of force majeure. The unavailability for any reason whatsoever of the KOMPASS Website or Services due to a cause that is external to KOMPASS is expressly considered to be a case of force majeure or act of God.
In a case of force majeure, the Parties in good faith cooperate with one another to evaluate the effect of the event on the subject services, with the goal of establishing parties’ obligations and performance under the agreement. In the event force majeure lasts for longer than 12 months, these General Conditions can be terminated by the aggrieved party.
19. NATURE OF THE OBLIGATIONS AND GUARANTEES
KOMPASS shall fulfill its obligations with diligence and in accordance with the best business practices.
KOMPASS, despite its best endeavours, does not guarantee the continuous and error-free operation of its Websites such as www.kompass.com, whatever the cause of the malfunction.
The Client shall fully guarantee and compensate KOMPASS against any condemnation, complaint or claim originating from any natural or legal person, based on the elements that it transmits, for the consequences (in particular financial) of any above mentioned action, opposition, or complaint, and shall, in particular, pay to KOMPASS all applicable damages, costs and fees due under the agreement, together with reasonable legal fees incurred In connection with the subject agreement. The Client also undertakes to pay any transactional indemnity in the event that KOMPASS should have agreed on a transactional settlement with a third party if the Client was previously invited by KOMPASS to participate in the settlement discussions.
20. NON DISCLOSURE
KOMPASS and the Client undertake not to divulge confidential information received from the other party and to which each party would have had access at the time of performing the Services. KOMPASS and the Client undertake to ensure that this obligation is respected by their employees, parent companies, subsidiaries and possible subcontractors.
Confidential information is understood to mean information of any kind, visual or oral, on any medium whatsoever, relating to the other party's structure, organisation, business affairs, various in-house policies, projects and personnel. The content of the Services, together with the reports, letters, information, memos, quotes supplied by the other party during performance of the Services are also of a confidential nature.
Nonetheless, the following information is not considered to be confidential:
- in the public domain at the time of their disclosure or fallen into the public domain without infringement of this clause of non-disclosure;
- resulting from knowledge internal to the other party without infringement of this clause of non-disclosure;
- sent in a legitimate manner to the other party by a third party.
This clause shall remain in force for a period of 3 years starting from the end of the Service, for whatever reason.
In the event that one party wishes for all or part of the confidential information to be disclosed to, or used by a third party, this party shall request prior authorization in writing from the other party. The terms and conditions applicable to said disclosure shall then be set out between the parties.
In the event of the Client's breach of a material obligation with respect to one of the provisions of these General Conditions, Special Conditions or the Purchase Order, KOMPASS reserves the right to terminate the contract at any time and without compensation on condition of notice sent to the Client and remaining without response five (5) working days after its receipt, without prejudice to KOMPASS' entitlement to compensation for the prejudice suffered.
Termination shall be effective as of right on the 5th day, unless the breach is fully cured within the deadlines set forth herein, and KOMPASS shall immediately bring the services in progress to an end.
KOMPASS reserves the right to terminate the contract immediately in the event of non-compliance by the Client with the intellectual property rights of KOMPASS, KOMPASS INTERNATIONAL and its affiliates.
KOMPASS is also automatically entitled to terminate the contract when the Distribution Contract comes to an end.
The Client shall not dispose of, delegate or transmit its rights and obligations in respect of these General Conditions without prior written consent of KOMPASS, which shall be in sole discretion of KOMPASS.
KOMPASS shall have the right to assign and/or transfer, without any notice to Client, its rights and obligations with respect to these conditions to any new majority shareholder.
KOMPASS may assign any agreement with a term of more than one (1) year to KOMPASS INTERNATIONAL and no formalities are required for such an assignment.
23. NullitY OF A CLAUSE
If one or more of the stipulations in these General Conditions are held to be non-valid or declared as such in application of a law or regulation, or subsequent to a final decision by a competent court, the other stipulations shall retain their full force and scope.
The fact that KOMPASS may not avail itself of a breach by the other party of any one whatsoever of the obligations referred to in these General Conditions shall not be interpreted for the future as a waiver of the obligation in question.
25. APPLICABLE LAW AND ATTRIBUTION OF JURISDICTION
The contractual relationships subject to these General Conditions are governed in accordance with the laws of New Jersey, USA and the New Jersey courts shall have exclusive jurisdiction to resolve disputes in connection herewith. The stipulations of the Purchase Order and these General Conditions shall therefore be interpreted and subject to New Jersey laws. Venue shall lay in the State of New Jersey.
IMPORTANT: IN THE ABSENCE OF AMICABLE AGREEMENT BETWEEN THE PARTIES, ANY DISPUTE RELATING TO THE START, PERFORMANCE, TERMINATION, RESCISSION, VALIDITY AND/OR NULLITY OF THE CONTRACTUAL RELATIONSHIPS SUBJECT TO THESE GENERAL CONDITIONS, TOGETHER WITH THE INTERPRETATION OF THE STIPULATIONS IN THE PURCHASE ORDER AND THESE GENERAL CONDITIONS, SHALL BE BROUGHT EXCLUSIVELY BEFORE THE COURTS OF NEW JERSEY, UNITED STATES.