Database(s): Database belonging to KOMPASS or commercialised by the latter under licence, accessible on-line on a website belonging to KOMPASS such as the website www.kompass.com and/or via DVD-Rom in accordance with the modalities and within the limit of options subscribed for by the Client.
Purchase Order(s):refers to either (i) the purchase order published on paper format by KOMPASS, then signed by the client for the purpose of subscription to one of the Services indicating the nature, price and modalities of the Services and options subscribed for by a Client, or (ii) in the case of an On-line order, the email summarising the Services subscribed for, sent by KOMPASS to the Client at the email address indicated by the latter at the time of the On-line subscription process.
Client: Any business client having subscribed to one of the Services proposed by KOMPASS.
On-line order(s): On-line subscription to the Services on a Website, as summarised in a Purchase Order sent on-line.
Special Terms and Conditions: Specific Special Conditions of Sale applicable respectively to the “Prospecting”, “Visibility” and “Direct Marketing” Services proposed by KOMPASS.
Direct Marketing: All Services offered by KOMPASS corresponding to (i) the provision of files containing information on companies for the purpose of operations for email or direct mail distribution campaigns and/or (ii) the enhancement of such files (e.g. adding Siret number) and/or (iii) technical services for sending out postal or electronic mail and/or (iv) the creation of advertising content or advice relating to said content in the context of the client’s email or direct mail campaigns.
Service(s): All services offered by KOMPASS under different names and trademarks and connected to the “Prospecting”, “Visibility” and/or “Direct Marketing” services.
Prospecting: All Services enabling the Client, for purposes of prospecting, to access, consult, export and/or extract data relating to companies contained in a KOMPASS Database in accordance with the modalities and within the limit of options subscribed for by the Client.
Website(s): KOMPASS Website(s) allowing on-line access to the database and services offered by KOMPASS.
Subscription(s): refers, as the case may be, to either (i) signature by the client of the Purchase Order for ordering a Service, or (ii) an On-line order.
Visibility: All Services offered by KOMPASS corresponding (i) to the sale of advertising spaces over the whole website belonging to KOMPASS such as the website www.kompass.com and/or on KOMPASS’s partner network and/or (ii) to technical services intended to optimise the visibility of the Client’s commercial information and/or of the referencing of this information by the search engines of the aforementioned websites and/or to the creation of advertising content or advice relating to said content.
These General Terms and Conditions of Sale (hereinafter “General Conditions“) 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. These General Conditions are also binding on any intermediary acting on behalf of a Client.
They are supplemented by the Special Conditions that more specifically govern certain Services, based on their particular nature, to which they may refer as applicable.
The Subscription to a Service by the Client implies full and entire acceptance of the General Conditions and Special Conditions printed on the front and/or back of the Purchase Order or accompanying it.
The Client undertakes to check the Purchase Order edited by KOMPASS before signing it and shall not hold KOMPASS liable in the event of errors or omissions.
4. ON-LINE ORDER
In the case of an On-line order, the Client subscribes to the Service by means of the sale form shown on the Website. This process allows the Client to submit its order, confirm it after having taken cognisance of it, then to receive an email acknowledging receipt and containing the Purchase Order.
Any On-line order requires the Client to indicate an email address for sending the Purchase Order and invoicing.
Any On-line order also presupposes acceptance by the Client of these General Conditions and applicable Special Conditions, a copy of which will be send to the Client with the electronic mail containing the detailed Purchase Order.
The contractual information relating to the Services subscribed for are the subject of a confirmation in the Purchase Order sent by KOMPASS to the Client after payment of the On-line order. Any order implies acceptance of the prices and descriptions of the Services itemised before Subscription. These descriptions of Services are confirmed on the Purchase Order submitted to the Client. These descriptions shall prevail in the event of dispute.
The Client undertakes on receipt to check the Purchase Order submitted on-line against the email acknowledging receipt of its order. The particulars of the Purchase Order are deemed in compliance with the order subscribed on-line. In the absence of immediate response by the Client in order to report a possible error on receipt to the email address firstname.lastname@example.org (and in any event, before accessing the Services), this presumption shall be totally irrefragable.
In the event of unavailability of a Service subscribed on-line, the Client shall be informed of this by electronic mail. In this case, the Client has the choice between a cancellation of the On-line order or an exchange of Service. In the case of a request for cancellation, only the unavailable Service is cancelled and refunded by KOMPASS, while the rest of the On-line order remains firm and final.
For any question relating to the follow-up of an On-line order, KOMPASS makes a client service available to the Client, the contact information for which is shown on the Website from which the On-line order was placed.
Any Service subscribed to by the Client is indicated and itemised in a Purchase Order and also subject to Special Conditions that supplement the General Conditions.
The General Conditions, Special 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.
In the event of incompatibility between the General Conditions and the Special Conditions, the latter conditions shall prevail.
6. MODIFICATION OF GENERAL OR SPECIAL CONDITIONS
KOMPASS reserves the right at any time to modify the General Conditions and/or Special Conditions that will be applicable to any new Subscription.
The General Conditions and Special Conditions that are in force, accompanying the Purchase Order at the time of the Subscription shall remain those applicable to the Service subscribed to by the Client.
The due price of a Service is determined exclusively in line with the stipulations shown on the Purchase Order.
These stipulations correspond to KOMPASS’s general pricing structure in force – obtainable on request – although the Parties may however derogate under exceptional circumstances in order to take a Client’s specific situation into account.
Unless expressly specified in the Purchase Order, no rebate, discount or reduction may be claimed from KOMPASS.
Prices are shown in euros and take into account the VAT applicable at the date of Subscription. Any change in the applicable VAT rate, or any new tax or contribution, shall be automatically passed on to the price of the Services.
8. INVOICING AND PAYMENT
8.1 – Invoicing address and entity invoiced
8.1.1. It is understood that the address for invoicing and delivery is the one shown in the Purchase Order for sending the latter. 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.
8.1.2. The entity to be invoiced and delivered is of necessarily the Client who took out the Subscription and whose name is shown as such in the Purchase Order. The Client cannot transfer its obligations arising from the contract with the express agreement of KOMPASS and therefore cannot require another person to be invoiced in its place. 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.
8.1.3. Without prejudice to the provisions of the Special Conditions applicable to the intermediaries specified by article 20 of law no. 93-122 of 29 January 1993, 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. The latter shall alone receive delivery and be invoiced. Any intermediary having omitted 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 should contest being personally committed by the Subscription made on its behalf by an intermediary, the latter shall provide proof upon first request from KOMPASS of the mandate that it has received. If 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.
8.2 – 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.
In the case of On-line order, payment shall be made at the time of the Subscription under the conditions specified in Article 8.4. In this case, it is specified as a requirement that the sums paid cannot under any circumstances be considered as deposits or prepayments.
Invoices issued by KOMPASS are in principle payable on a cash basis at the time of the order without discount, unless otherwise specified and expressly accepted by the Parties or stipulated in the Purchase Order (or the invoice itself) providing for payment at due date (on the understanding that no time shall be allowed below an invoiced amount of two hundred euros (€200) including all taxes.
When a payment at due date is specified, the following rules shall apply:
The invoice is payable at latest within forty five (45) days of the date of issue of the invoice;
In the event that KOMPASS may have good reason to anticipate payment difficulties on the part of the Client at the time of or subsequent to the date of Subscription, KOMPASS reserves the right to require immediate payment for the performance or continuation of the Services;
Likewise, in the absence of negotiation more favourable to the Client, KOMPASS reserves the possibility of requiring immediate payment for the performance or continuation of the Services in the event that the total amount of invoices issued by KOMPASS and not yet paid by the Client, even without delay by the latter, should reach an upper limit for amounts outstanding of five thousand euros (€5,000) including all taxes.
Payments can be made, by bank transfer (it being then specified that it is the Client’s responsibility to request receipt of KOMPASS’s bank details in sufficient time to allow it to pay promptly), direct debit, bank draft, by cheque made out to KOMPASS or by bank card (the latter being the only method accepted in the case of On-line order, as specified in Article 8.4.1).
8.3 – 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:
immediate collectability of the total of all sums remaining due in respect of all invoices issued by KOMPASS, whether due or to become due, whatever methods of payment were specified,
invoicing of interest for late payment equal to fifteen per cent (15%) of the amounts due, in addition to any eventual legal costs and without prejudice to any entitlement to damages;
payment by the Client of a fixed-rate compensation of forty euros (€40) due the following day.
8.4 – On-line payment
8.4.1 – Payment procedure
In the case of on-line Order, payment is made only by credit/debit card.
The absence of challenge to the Purchase Order sent to the Client following an On-line order is proof of the Subscription and the collectability of amounts incurred.
Computerised records, kept in KOMPASS’s computer systems under reasonable conditions of security, shall be considered as proof of communications, of the On-line order and of payments taking place between the Parties. The archiving of Purchase Orders and invoices is carried out on a reliable and durable medium that can produced by way of proof.
8.4.2 – Payment problems
KOMPASS reserves the right to suspend any On-line order management in the event of refusal to authorise payment on the part of officially accredited bodies or in the event of non-payment.
In the event of difficulty encountered during payment requiring a verification procedure, KOMPASS in particular reserves the right to refrain from delivering an On-line order. In the context of this verification, the Client may be asked to send by fax to KOMPASS a French “K-bis” extract (or equivalent, such as a certificate of registration on the French trades register, or, if the Client is established outside of France, any certified copy of a foreign official document attesting to its identity and its legal existence). The On-line order shall then only be validated after receipt and verification by KOMPASS of the documents sent by the Client.
More generally, any problem with the Client’s account (non-payment, non-functional email address, etc.) shall authorise KOMPASS to suspend the Client’s On-line order until it has been resolved.
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 within a maximum period of fifteen (15) days by registered letter with advice of receipt (as evidenced by the postmark). Accordingly, the Services carried out more than fifteen (15) days before an objection is sent are indisputably deemed to be in compliance with the expectations of the Parties, free from defect or error, and in sufficient quantity.
Without prejudice to the previous paragraph, any objection relating to an invoice must take place within a period of 15 (fifteen) days of it being sent to the Client (with the date of dispatch corresponding to the postmark shown on the issuing envelope, which the Client has a duty to keep). Each objection shall be sent by registered letter with advice of receipt. Beyond this deadline, invoices issued by KOMPASS shall be indisputably deemed free of error and shall no longer be subject to objection.
10. IRREVOCABILITY OF THE SUBSCRIPTION
Without agreement in writing from KOMPASS, the Subscription to a Service by the Client is irrevocable.
11. TERM OF THE CONTRACT
KOMPASS proposes 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.
The Subscription to a Service shall not be automatically renewable. Any renewal shall be expressly specified and accepted by KOMPASS and shall, as applicable, give rise to the drawing up and signature of a new Purchase Order.
12. INTELLECTUAL PROPERTY
12.1 – Intellectual property rights of KOMPASS
KOMPASS holds exclusive ownership rights or operating rights on all intellectual property rights 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. realised 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 authorised 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 without its prior agreement in writing.
The Client is expressly prohibited from reproducing, representing, adapting, hiring, transferring, commercialising and, more generally, using all or part of the KOMPASS products or services to the profit of third parties to the Client, for any purpose whatsoever, free of charge or against payment, and by any means whatsoever.
12.2 – Intellectual property rights of the Client
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.) sent to KOMPASS and which are necessary for performance of the Services subject to the General Conditions (in particular for the purposes of implementing Visibility services) and for these to be in compliance with all legal and statutory rules in force.
13. LAW ON DATA PROCESSING AND CIVIL LIBERTIES
KOMPASS undertakes to comply with French regulations applicable to the protection of personal data and in particular the provisions of law no. 78-17 of 6 January 1978, as amended, relating to data processing, files and civil liberties (hereinafter “Data Protection Law“).
By virtue of the Data Protection Law, natural persons benefit from a right to access, oppose and rectify any data and information concerning them. They exercise said rights by contacting KOMPASS services at the following email address: email@example.com.
In a case of an On-line order or the use of certain free functionalities of the Websites requiring the creation of a personal account, data of a personal nature that are 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 indicated at the time of the Order and/or creation of the account 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.
Within the limit permitted by law, KOMPASS’s liability in respect of the Client is limited, for all types of damages, to the amounts effectively received by KOMPASS from the Client for the contractual period giving rise to the event that generated liability, except in the case of gross or wilful misconduct. The Client acknowledges that the agreed price reflects this distribution of risk and the limitation of liability resulting from it.
Without prejudice to the previous paragraph, it is acknowledged that, in accordance with articles 1150 and 1151 of the French Civil Code, KOMPASS’s liability cannot be incurred for unforeseen or unpredictable damage and that, even in the event of fraudulent misconduct, KOMPASS cannot be held responsible for indirect damage suffered by the Client, in particular loss of earnings, loss of market or client-base, non-realisation of expected profits, any increased costs, prejudice caused to third parties or even commercial prejudice, related to performance of the Services by KOMPASS.
Delivery time-frames are given for information purposes and delays shall not give rise to any penalty, compensation or termination.
KOMPASS does not guarantee that its Services correspond to the specific specifications or requirements of the Client and notes in particular that the Database only constitute an information search tool, since these Databases and extracted data come under the full and entire responsibility of the Client exclusively.
KOMPASS can offer training tools to its Clients but cannot necessarily be held responsible for the incorrect use of these tools by its Clients and for the direct or indirect consequences of such incorrect use. The Client therefore acknowledges having received all useful information for exploiting, under optimal conditions, the data shown in the Databases.
In the event that (i) KOMPASS agrees to work with a service provider of the Client at the latter’s request (for example to carry out the routing of data in the context of a Direct Marketing service), and/or (ii) KOMPASS delivers to or invoices another entity on behalf of the Client, and/or (iii) KOMPASS agrees to deliver a file or 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 prejudice caused to KOMPASS by its service provider, by the third party, or by the other entities of its group that may be concerned. The Client therefore undertakes to compensate KOMPASS for all prejudices pertaining thereto (including legal fees), without waiting for the service provider, third party, intermediary or any other entity of its group to recognise its liability or to compensate KOMPASS.
15. 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 shall lead to their suspension. The party that invokes the circumstances referred to above shall immediately notify the other party of their occurrence, and also of their disappearance.
All unavoidable events and circumstances, external to the parties, unforeseeable, inevitable, outside the control of the Parties and which cannot be prevented by the latter, 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 addition to those usually retained by case law in French courts and tribunals.
In a case of force majeure, the Parties come together with a view to examining the impact of the event and agreeing the conditions under which performance of the contract will be continued. If the case of force majeure lasts for longer than three months, these General Conditions can be terminated by the aggrieved party.
16. NATURE OF THE OBLIGATION AND GUARANTEES
KOMPASS shall fulfil its obligations with diligence and in accordance with the best practices in use in its business and shall therefore only be held to an obligation of best-endeavours.
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, complaint and shall in particular pay to KOMPASS all damages or civil fines that KOMPASS may be sentenced to settle, together with legal fees incurred to ensure its defence, even at the end of a court decision that is not final but is enforceable. 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.
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.
However, 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 five (5) 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 authorisation 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 an essential obligation in respect of 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 10 working days after its receipt, without prejudice to KOMPASS’s entitlement to compensation for the prejudice suffered.
Termination shall be effective as of right on the eleventh day, unless the breach is fully regularised within the deadlines, and KOMPASS shall immediate 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 KOMPASS’s intellectual property rights.
The Client shall not dispose of, delegate or transmit its rights and obligations in respect of these General Conditions without prior agreement in writing from KOMPASS.
KOMPASS shall be able to transfer, without any formality, its rights and obligations in respect of these conditions to any new majority shareholder.
20. 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.
22. APPLICABLE LAW AND ATTRIBUTION OF JURISDICTION
The contractual relationships subject to these General Conditions are governed in accordance with French law. The stipulations of the Purchase Order, the Special Conditions and these General Conditions shall therefore be interpreted and subject to French law.
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, THE SPECIAL CONDITIONS AND THESE GENERAL CONDITIONS, SHALL BE BROUGHT EXCLUSIVELY BEFORE THE COMMERCIAL COURT OF NANTERRE (FRANCE). IF THE LATTER IS NOT MATERIALLY COMPETENT, THE DISPUTE SHALL BE SUBMITTED BEFORE THE COMPETENT CIVIL COURT UNDER THE JURISDICTION OF THE COURT OF FIRST INSTANCE OF NANTERRE.
23. PUBLIC PROCUREMENT CONTRACTS
In the event that the Services are subscribed for in the context of a public contract, it is reiterated as necessary that no provision of these General Conditions or Special Conditions may be interpreted as or have the effect of questioning the validity of a provision of public policy in the French Public Procurement Code.
The public body shall be able to terminate the contract in the event of misconduct by KOMPASS or in the event of wrongdoing by KOMPASS that may be specified by the French Public Procurement Code.The public body may also, notwithstanding any provision to the contrary of these General Conditions or Special Conditions, terminate the contractual relation early without penalty, either for an overriding reason in the general interest, or for any other cause independent of misconduct by KOMPASS and justifying the unilateral termination of the contract by the public body in application of a mandatory provision of the French Public Procurement Code, subject to fully compensating KOMPASS for all the heads of damage resulting from said termination.Article 22 shall not be able to nullify either the competence of the administrative courts when the conditions are met for establishing said competence, or the rules of public policy of the French Administrative Justice Code.