Kompass (UK) Ltd
In this Agreement, the following terms shall, unless the context requires otherwise.
1.1 "Working Day" means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
1.2 "Client" means the person or firm that purchases or otherwise acquires the Data from the Company.
1.3 "Commencement Date" has the meaning set out in clause 3.5
1.4 "Company" means Kompass (UK) Limited registered in England and Wales with company number 07819067 whose registered office is at 1 Swan Wood Park, Gun Hill, Horam, East Sussex, TN21 0LL
1.5 "Data" means the data set out in the Order Confirmation, comprising information of any kind whether it be words, numbers, graphs or otherwise in any other form and whether or not it is the property of the Company or a third party, which is supplied or made available to the Client by the Company.
1.6 "Delivery Date" means the date on which the Company supplies the Data to the Client.
1.7 "Force Majeure Event" has the meaning given to it in clause 16.1.
1.8 "Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trade-marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
1.9 "Licence" means the licence between the Company and the Client for the use of the Data incorporating these Terms.
1.10 "Licence Period" has the meaning given in clause 3.2
1.11 "Order Confirmation" means the Client’s written acceptance of the Company’s quotation .
1.12 "Payment Date" has the meaning set out in 19.2(b).
1.13" Price" means the charges payable by the Client for the supply of the Data in accordance with clause 19.
1.14 "Recipient" means each person whose details are the subject matter of the Data.
1.15 "Terms" means these terms and conditions as amended from time to time in accordance with clause 2.
In these Terms, the following rules apply:
(a)a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b)a reference to a party includes its personal representatives, successors or permitted assigns;
(c)a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.16 “We or Us" means Kompass (UK) Limited and our services
1.17 “You” means the subscriber and end user
1.18 “Service” means the service/services provided by Kompass (UK) Limited, including but not only ‘kompass.co.uk’ and ‘EBOL’ – ‘Easybusiness Online’ data and marketing lists however so delivered
1.19 “Record” means data about a single company but not necessarily all the fields of data about that company
1.20 “Subscription” means the payment for use of the service in the amount set out in the order confirmation.
1.21 “Subscriber” means an individual subscriber
1.22“Authorised User" means an employee duly authorised by an organisation which is a Subscriber or any other person expressly authorised by Kompass (UK).
1.23 “Unauthorised Person” means any person who is neither a Subscriber nor an Authorised User
1.24 “Broker” means a person to whom Kompass supplies any Record for onward supply to an End-User.
1.25 “Business Database” means any general or sector specific or regional database of business names, telephone numbers, addresses, and other related information (whether or not including all the data fields which are used in the service.)
1.26 “Contract Year” means each successive period of twelve months commencing on the Commencement Date and then on each anniversary of that date.
1.27 “Automatic Renewal” Unless a Party provides the other Party with written notice not less than sixty (60) days prior to the expiration of the Initial or renewal term that it intends not to renew the Service, the Service shall automatically renew in increments of one year (each a “Contract Year").
1.28 “Data Protection Requirements” means the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or other relevant supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction (whether mandatory or not).
1.29 “Direct Marketing” means any form of telephone sales, telephone marketing, direct mail, email broadcast, market research or use of circulation list or fax marketing which is aimed at the target market.
1.30 “End-User” means any person to whom you supply any of the service or records under this Agreement.
1.31 “Intellectual Property Rights” means all copyright, database rights, trade marks, domain names, moral rights, patents and rights in inventions, rights in confidential information and any other similar or equivalent rights or forms of protection in any part of the world, in each case whether registered or unregistered.
1.32 "Force Majeure Event" has the meaning given to it in clause 12.1.
2. General Terms & Conditions of Use
2.1 This Licence Agreement is between Kompass (UK) Limited and the individual or company to whom we have agreed to supply the Services.
2.2 The following terms and conditions govern your use of the services supplied by us and the data and content available therein.
2.3 This service is provided by Kompass (UK) Limited
2.4 The following terms and conditions apply to use of the Service and the materials and information it contains.
2.5 Kompass (UK) may suspend access by any person to the Service at any time without compensation if it has reasonable grounds to suspect a breach of these terms and conditions by that person.
2.6 In this Agreement unless the context otherwise requires:
Data subject, personal data, processing and appropriate technical and organisational measures shall bear the meanings given to those terms respectively in the Data Protection Act 1998.
2.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.8 The singular includes the plural and vice versa.
2.9 The headings are inserted for convenience only and do not affect its interpretation.
2.10 References to persons shall include individuals, corporate bodies (wherever incorporated), unincorporated associations and partnerships.
2.11 References to one gender shall include all genders.
2.12 Any words following the terms “including”, “include”, “in particular” or “for example” or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2.13 References to a party or parties shall be the parties to this Agreement
2.14 Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and a reference to writing or written includes faxes and e-mails
3.1 The Order Confirmation constitutes an offer by the Company to sell the Service and or data in accordance with these Terms.
3.2 Subject to any supplemental terms which may apply for specific materials, you are granted a non-exclusive, non-transferable, limited licence to access and use the service for a period of 12 months.
3.3 Authorised Users and Subscribers may use the Service and the Materials that appear on it from time to time for their own private or business research, and for this purpose may:
• display the records on screen;
• make printouts of records included using the printing commands contained in the Service
• download and store in machine readable a single copy of insubstantial portions of the records primarily for one person’s exclusive use
3.4 The Order Confirmation constitutes an offer by the Company to sell the Service in accordance with these Terms. The Client is responsible for ensuring that the terms of the Order Confirmation are complete and accurate.
3.5 The Order Confirmation shall only be deemed to be accepted by the Client when the Client signs and dates the Order Confirmation and returns it to the Company at which point and on which date the Licence shall come into existence (the Commencement Date).
3.6 The Licence constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Licence.
3.7 These Terms apply to the Licence to the exclusion of all other terms and conditions that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.8 Any repeat or subsequent requests by the Client for a licence to use the Service/Data shall be subject to these Terms. For the avoidance of doubt, a separate Licence shall come into existence for each Order Confirmation relating to the Service/Data that is accepted by the Client in accordance with clause 2.2.
3.9 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3.10 The quantities and descriptions shall be as set out in the Order Confirmation
3.11 The quantities stated in quotations or in list specifications are always approximate and may change without notice due to constant updating of the Materials.
3.12 Unless otherwise agreed in writing with Kompass all Materials are supplied to the Customer for one time use only. The Customer may not copy keep or re-use the Materials without prior permission in writing from Kompass and if requested by Kompass must return all Materials to Kompass after use, including any copies of any of the Materials made by the Customer. Where Kompass has agreed to multiple uses of the materials they may be used by the Customer an unlimited number of times during the specified lease period.
3.13 The Customer may subcontract the physical distribution and printing of mail or other communications using the Materials, and any incidental copying of the contents of the Materials, to one or more third parties but shall remain bound by these Terms and Conditions and any breach by such third party of these Terms and Conditions shall be deemed a breach by the Customer.
3.14 If you are supplying the service or records from the service for onward supply to an End-User, you shall procure that you will supply the service and records in accordance with your licence only to the specified End-User and that neither you nor the End-User shall supply the service nor records to any other person.
4 Restrictions on Use
4.1 Subject to any Supplemental Terms which may apply for Specific Materials, you are granted a non-exclusive, non-transferable, limited licence to access and use the Online Services and Materials from time to time made available to you
4.2 Authorised Users and Subscribers may not:
· (a) make multiple printouts or copies of materials or records for distribution to others except where permitted.
· (b) (With the exception of Brokers) re-sell the Service or any part of the materials or records to others
· (c) make the Service or any records available on a local area network, a wide area network or on any intranet or extranet unless a multi-user licence has been agreed.
· (d) Abstract, download, store, reproduce, transmit, display, copy, distribute or use the materials and records other than as expressly permitted.
· (e) decompile, disassemble or reverse engineer any of the software programmes, databases or other systems used by Kompass (UK) to provide the Service
· (f) use the Service, or any of the facilities available on the Service, for any illegal purpose nor send or post or allow any posting of information which is defamatory or obscene or which violates the legal rights of others, nor use the Service to send any unsolicited promotional or advertising material or any volume messages which may interfere with the provision of the Service or the use of the Service by others.
· (g) use the service to verify any other Commercial Business Database either in part or in entirety;
· (h) use the service directly or indirectly to compile any other commercial database except that: you may compile a prospect database for your own use.
4.3 If you are supplying the service or records from the service for onward supply to an End-User, you shall procure that you will supply the service and records in accordance with your licence only to the specified End-User and that neither you nor the End-User shall supply the service nor records to any other person.
4.4 You acknowledge and agree that seed records, which can be tracked to an individual licensee, are included in the service. These are undetectable as anything other than standard businesses.
4.5 If the Order Confirmation states that the Licence is for a specific number of uses: the Client shall only contact each Recipient for the number of times set out in the Order Confirmation
4.6 If a Recipient replies to the contact authorised by clause 4.6 the Client is then permitted to contact that Recipient freely from the date of such reply.
4.7 if a Recipient does not reply to the contact authorised by clause 4.6 the Client shall not contact that Recipient again.
4.8 If the Order Confirmation states that the Client has a Multiple Use Licence:
(a) the Client may make contact with each Recipient as many times as he wishes within the period referred to in the Order Confirmation (Licence Period);
(b) if a Recipient replies to any contact authorised by clause 4.8(a) the Client is then authorised to contact that Recipient freely from the date of such reply and beyond the Licence Period;
(c) if a Recipient does not reply to any of the contacts authorised by clause 4.8(a) the Client shall not contact that Recipient again after the Licence Period has expired.
4.9 For the avoidance of doubt an out of office message or other automatic response to any contact made by the Client does not constitute a reply for the purposes of clause 4.5 or clause 4.8a.
4.10 If the Client breaches clause 4.5 or 4.8 it shall pay to the Company a sum equal to the difference between (1) the Price and (2) the amount the Client would have paid to the Company if the Licence had entitled the Client to use the Data for the total number of times that it has actually been used by the Client, such charges to be calculated in accordance with the Company’s pricing structure as at the date that the breach first occurred. The due date for such a further payment shall be the date on which the breach first occurred.
4.11 Breach of clause 4.5 or 4.8 shall constitute a material breach of the Licence
4.12 Clauses 4.5 and 4.8 shall survive the expiry or termination of the Licence.
5 Passwords and Security
5.1 If passwords are issued by Kompass UK to access the Service your password is for your own personal use and you may not make it available to others for the purpose of using the Service.
5.2 If Kompass UK suspects that a password is being used by an Unauthorised Person the password may be cancelled.
6 Access to Services
6.1 Your password may be restricted from accessing certain Materials otherwise available in the Online Services.
6.2 Materials and features may be added to or withdrawn from the Service and the Service otherwise changed without notice.
6.3 You must ensure that each person having access to the Services:
(a) is an Authorised User; and
(b) is using the Service only in accordance with these Terms and Conditions and the Additional Terms.
6.4 Training & Support
Kompass UK will endeavour to provide full training and support to subscribers. This includes free online help and support and free telephone training and support – subscribers are limited to a maximum of 4 telephone based training sessions in any 12 month period. Kompass reserve the right to charge at current rate card for extra training sessions. Onsite Training is available – the charge for is at current rate card + expenses per day or part of day.
7.1 Materials and features may be added to and removed from the Service without notice.
7.2 Every effort is made to keep records up to date but the Service and Materials are provided on an ‘as is’ basis and Kompass UK excludes to the extent permitted by law all implied warranties relating to fitness for a particular purpose.
8. Intellectual Property Rights
8.1 All intellectual property rights and other rights in the Service and Materials (in both machine readable and printed form) belong to Kompass UK or their third party licensors. Authorised Users and Subscribers acquire no proprietary interest in the Service or Materials and except as expressly permitted by these terms and conditions and may not use the Service or the Materials in any way that infringes the intellectual property rights in them.
8.2 Authorised Users and Subscribers may not obscure or remove any copyright notices that appear on Materials printed from the Service.
9. Limitation of liability
9.1 To the full extent permissible by law Kompass UK shall have no liability for any damage or loss (including, without limitation, financial loss, loss of profits, loss of business or any indirect or consequential loss), however it arises, resulting from the use of or inability to use the Service or any material appearing on it or from any action or decision taken as a result of using the Service or any such material.
9.2 The liability of Kompass UK for interruptions to availability of the Service caused by circumstances within its control shall not exceed the amount paid by the Subscriber for access to the Service in respect of the period of non-availability.
9.3 The only obligation of Kompass UK in respect of interruptions caused by circumstances outside its control shall be to use all reasonable efforts to have the Service reinstated.
9.4 The Kompass Data is collected by use of questionnaires, proof lists and in depth interviews with the companies listed in the Kompass Data. Much of the Kompass Data is provided to Kompass by third parties. The accuracy and completeness of the information collected depends on the co-operation of the listed companies. Although Kompass undertakes to use all reasonable endeavours to ensure that the information is as accurate as is commercially possible, Kompass accepts no liability for the currency, usefulness or any inaccuracy of the Kompass Data
9.5 The Client shall comply with all applicable laws, statutes, rules, regulations and ordinances (“Laws”), including, but not limited to, privacy, data protection and direct marketing Laws and Laws concerning facsimile and email transmissions. Each Party shall perform its activity under its own responsibility
10. Law and Jurisdiction
10.1 These terms and conditions shall be interpreted in accordance with the Laws of England and any dispute shall be subject to the exclusive jurisdiction of the English Courts.
11.1 The Kompass websites contain links to external sites owned by companies outside Kompass (UK) Ltd, users view such sites at their own risk. Kompass (UK) Ltd is not responsible for, and has no control over, the content of such sites.
12. 1Unless otherwise stated, the copyright, database rights and similar rights in all material published on the service are owned by Kompass (UK) Limited. You are permitted to print or download extracts from this material for your personal use only. None of this material may be used for any commercial or public use.
12.2 No part of the service nor any material appearing from the service may be reproduced, stored in or transmitted on any other website without the written permission of Kompass (UK) Limited and any payments of a specified fee. Requests to republish any material may be sent to firstname.lastname@example.org
13. Protection Rights
13.1 The names and logos of; Kompass; Kompass.co.uk & Easybusiness are trademarks of Kompass (UK) Limited. You are not permitted to use or reproduce or allow anyone to use or reproduce these trademarks for any reason.
14.1 Kompass will use reasonable commercial efforts to ensure that the information held is as complete and accurate as reasonably possible. However, the subscriber acknowledges that the completeness or accuracy of the service relies on periodic verification by Kompass and that the service may not be complete or accurate for a number of reasons including:
· (a) business are created and fail on a continuing basis and it is not possible at any time to have a comprehensive list of businesses;
· (b) verification of the details of each business is undertaken on a regular basis and in the cycle between verifications, details may have changed
· (c) Kompass relies on information provided as a result of verification activities. Some businesses request that they are not included in the Kompass service.
14.2 Accordingly, Kompass accepts no responsibility for the incompleteness or accuracy of the database. However, Kompass will use reasonable endeavours to rectify any errors or omissions when notified such rectifications to then be provided in future Updates.
14.3 Except as expressly stated in this Agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law. Without limiting the foregoing, and without prejudice Kompass (UK) Limited does not warrant that the database is accurate, complete, reliable, useful, fit for purpose or timely.
14.4 The Client acknowledges that a bounced e-mail does not mean the Data is incorrect and confirms that it will make no claim against the Company for a refund in connection with a bounced e-mail. The Company makes no guarantee whatsoever to the response rates the Client may get.
14.5 The IP addresses of the Client’s servers or a third party (broadcaster’s) servers may be listed on a DNSBL database as a result of using the Data. Therefore the Company does not guarantee or warrant against this and it is not a condition of the Licence and the Client will not be entitled to refuse to pay any amount due to the Company for the Data under the Licence if the IP addresses are listed on a DNSBL database.
14.6 The Client acknowledges that spam filters may prevent as much as 25% of the Client’s e-mail marketing messages from being delivered to the Recipients’ in-boxes. The Client acknowledges that this is due to spam filters on the Recipients’ servers and is not because the Data is inaccurate or wrong. Therefore the Company does not guarantee or warrant against this and it is not a condition of the Licence and the Client will not be entitled to refuse to pay any amount due to the Company for the Data under the Licence if spam filters prevent delivery of the Client’s e-mails to the Recipients.
14.7 The Client acknowledges and agrees that the Company may plant up to five “seeds” per 1,000 Recipients for the purpose of enforcing any breaches of the Licence.
15. Advertising Material
15.1 Advertisers are responsible for ensuring that material submitted for inclusion on the service complies with all relevant laws and regulations. Kompass (UK) Limited will not take responsibility for any error, omission or inaccuracy in advertising material.
16. Force Majeure
16.1 For the purposes of the Licence, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
16.2 The Company shall not be liable for any loss suffered or incurred by the Client as a result of any delay in or failure of the Company performing its obligations under the Licence arising from any Force Majeure Event.
16.3 If the Force Majeure Event prevents the Company from performing any of its obligations under the Licence for more than four weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate the Licence immediately by giving written notice to the Client.
17.1 Without limiting its other rights or remedies, Kompass (UK) Ltd may terminate the Licence with immediate effect by giving written notice to the other party if:
(a) You commit a material breach of the Licence and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
(b) You suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admits inability to pay your debts;
(c) You go into liquidation, become bankrupt, make a voluntary arrangement with your creditors, have a receiver or administrative receiver appointed over your assets or a person becomes entitled to appoint a receiver or administrative receiver over your assets;
(d) Any event occurs or proceeding are taken in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.1(b) or clause 17.1.(c);
(e) You suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business; or
(f) You (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or become a patient under any mental health legislation.
17.2 Without limiting its other rights or remedies, the Company may terminate the Licence with immediate effect by giving written notice to the Subscriber if the Client fails to pay any amount due under the Licence on the due date for payment.
17.3 On expiry or termination of the Licence for any reason:
(a) You shall immediately pay to Kompass (UK) Ltd all of the Company’s outstanding unpaid invoices and interest in respect of records and/or subscriptions supplied and, in respect of Data or Subscriptions supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable immediately on receipt;
(b) You shall destroy and/or delete details of all the Recipients whether these details are held on a computer file or otherwise and shall cease to contact such Recipients unless this is authorised;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Licence which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after expiry or termination shall continue in full force and effect.
18.1 All dates set out in the Order Confirmation for delivery are approximate only, and the time of delivery is not of the essence. Kompass shall not be liable for any loss or damage whatsoever suffered by the Client arising from any delay, however caused, nor will any delay entitle the Client to cancel or alter its obligations under the Licence.
18.2 The Company shall not be bound to deliver the Data until the Client has paid for it unless otherwise agreed in writing by the Company.
18.3 If the Company fails to deliver the Data, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement data of similar description and quantity in the cheapest market available, less the price of the Data. The Company shall have no liability for any failure to deliver the Data to the extent that such failure is caused by a Force Majeure Event or the Client's failure to provide the Company with adequate instructions that are relevant to the supply of the Data.
19. The Price and Payment
19.1 The Price for the Data is as set out on the Order Confirmation.
19.2 The Client shall pay the price for the Data:
(a) in full and in cleared funds to a bank account nominated in writing by the Company
(b) before it is delivered to the Client, unless the Company has agreed otherwise in writing, in which case the Client shall pay the price on or before the date agreed by the Company (Payment Date).
Time for payment shall be of the essence of the Licence.
19.3 The price is exclusive of VAT which shall be due at the prevailing rate on the date of the VAT invoice. The Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the of the Data at the same time as payment is due for the Data.
19.4 If any payment is made later than the Delivery Date or, where the Company has agreed that payment may be made after the Delivery Date, the Payment Date then, without limiting any other right or remedy of the Company, the Company shall have the right to charge interest on the overdue amount at the rate of 4% per annum above the then base lending rate of Lloyds Bank accruing on a daily basis from the due date for payment until the date of actual payment of the overdue amount, whether before or after judgment and compounded quarterly. The Company shall also have the right to charge the Client an administration fee of £50.00 for all debts that are passed to the Company’s debt recovery department.
19.5 The Client shall pay all amounts due under the Licence in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
20. Indemnity from the Client
20.1 The Client shall keep the Company indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by the Company as a result of or in connection with:
(a) any claim made against the Company by a third party arising out of, or in connection with, the use of the Data, to the extent that the claim is attributable to the acts or omissions of the Client, its employees, agents or subcontractors;
(b) any claim made against the Company by a third party arising out of, or in connection with the breach, negligent performance or failure or delay in performance of the Licence by the Client, its employees, agents or subcontractors; and
(c) any claim made against the Company by a third party arising out of, or in connection with the Client disclosing or making available the Data to a third party, whether permitted by the Licence or not.
20.2 This clause 20 shall survive expiry or termination of the Licence.