General Terms & Conditions
These General Terms and Conditions apply between 360kompany AG, an Austrian joint-stock company registered with the Austrian commercial register under FN 375714 x (“kompany”) and you (“Customer” or “you”) in respect of the Services provided by kompany (“T&C”).
1.1. kompany provides information services including searches and software services (“Services”) via its website https://www.kompany.com (“kompany Website”) and its associated API (“KYC API” together with the kompany Website the “kompany Systems”). The Services provide without limitation audit-proof primary source data and documents in real time from third parties (“Information”), and are made available to you via the kompany Systems.
2. kompany Customer
2.1. By using our kompany Systems and Services, you agree to become a Customer and these T&C apply to you. With each and every use of our kompany Systems and (free and fee-based) Services you confirm that you accept and comply with the T&C. If you do not agree with the T&C you must refrain from using kompany Systems.
2.2. kompany grants to the Customer a non-exclusive, limited, revocable, non-sublicensable and non-transferable right to access and use the Services for internal business use only, subject to these T&C.
2.3. You may purchase the Services by registering yourself on kompany Systems and providing us with valid and true information as required in the registration process. As soon as you have successfully completed the registration process and have chosen a plan (which is confirmed by kompany via e-mail) you are authorized to use all offered Services.
2.4. You may authorize other users including your employees, officers and agents (“Authorized Users“) by providing them with a secure user-ID and password (including any API-key) to the kompany Systems.
2.5. You shall
2.5.1. ensure that Authorized Users do not disclose or share their user-ID and password (including any API-key) to any party outside of the Customer, as this is a confidential information. The unlawful sharing or disclosure of the user-ID and password (including any API-key) by any Authorized User is a material breach of these T&C. If you believe that a third party has obtained access, you shall inform us immediately about such breach.
2.5.2. be responsible for installing any software and/or hardware and making any other arrangements required to use the Services, including use of a network or other connection required to access the Services.
2.5.3. provide kompany with the requested information necessary for providing the Services.
2.5.4. not sell, resell, license, lease, transfer, redistribute, assign or otherwise commercially exploit or make the Services and Information available to any third party, other than the Authorized Users.
2.5.5. use the kompany Systems lawfully and for lawful purposes only and comply with all relevant laws, rules and regulations in force.
2.5.6. use the kompany Systems for business to business and business purposes only.
2.5.7. not contract as a “consumer” (as defined by the Austrian Consumer Protection Act).
2.6. kompany offers Services to and enters into contracts only with persons of legal age.
3. Use of Services
3.1. The Customer acknowledges that a limited number of free searches on kompany Systems may be provided before payment for continued search usage functionality will be required and that jurisdictional limitations may apply.
3.2. The Customer may choose between a monthly or yearly plan. The Services may be offered in combination with an initial trial-period, during which the plan can be terminated at any time. If the Service is not cancelled during the trial-period, it is automatically upgraded to the chosen plan. Any offered trial-period can only be consumed once within 24 months. The chosen plan is automatically renewed at the end of the plan term, if not cancelled by the Customer.
3.3. The Customers acknowledges and confirms that he or she and any Authorized Users must comply with these T&C.
3.4. The Customer acknowledges that the Services may be updated and changed from time to time based on customer needs, business priorities and for any other reasons within kompany’s reasonable discretion.
3.5. As the Services are inter alia based on Information provided by third parties, changes of the Services may be required in order to meet legal, regulatory or factual requirements of these third-party providers.
3.6. kompany will provide customer service free of charge for reasonable Customer requests. If the service support request results in third party charges or significant additional attention, this will be agreed and charged separately.
3.7. The Services are available 24/7, except in the case of maintenance work. However, the availability of Information depends and is based on the official operating hours of the respective third-party information and services.
4. Pricing and payment
4.1. The Customer shall pay for the use of the Services and Information in accordance with the charges set out on kompany Systems (monthly/yearly plan fee and costs related to Information pursuant to https://www.kompany.com/i/support/price). The respective charges are due at the beginning of the plan period (e.g., monthly or yearly) and have to be paid in full (without offset or deduction for any fees and taxes, including banking/transfer fees or any withholding tax, or customs duties). Costs related to the purchase of Information during the period will typically be invoiced monthly, however, kompany reserves the right to invoice at any time. Individual purchases of Services and Information without a plan are not possible.
4.2. All sums payable by the Customer under these T&C shall be paid free and clear of all deduction or withholdings unless the deduction or withholding is required by law, in which event the Customer shall pay such additional amount as shall be required to ensure that the net amount received by kompany hereunder will equal the full amount which would have been received had no such deduction or withholding been required to be made. If any tax authority brings into charge to tax any sum paid by the Customer hereunder, then the Customer shall pay such additional amount as shall be required to ensure that the total amount paid, less the tax chargeable on such amount, is equal to the amount that would otherwise be payable hereunder.
4.3. kompany reserves the right to change the pricing for its Services at any time. kompany may require amending its charges in case third party providers increase their prices, especially with respect to certain government fees in regard to the Information retrieval. Pricing quoted is exclusive of all taxes, duties, levies, fees or other similar charges (e.g., VAT) for which the Customer shall be liable (where applicable).
4.4. The Customer agrees to receive the invoices via email and in PDF-format.
4.5. In case Customer is in delay with payments, kompany may charge reminder fees to a reasonable relation to the amount in delay and as far as such fees are necessary to cover adequate costs of kompany to administer such delay and enforce the rights (a total amount of at least EUR 5.00 up to a maximum of EUR 15.00 will be charged). In case the respective Customer does not settle debts within a reasonable time, kompany reserves the right to entrust a debt collection agency with the collection of the claimed debt. In such case kompany will additionally charge EUR 5.00 processing fee for claims between EUR 0 and EUR 500.00 and EUR 10.00 processing fee for claims of more than EUR 500.00. Furthermore, any additional expenses charged by the debt collection agency towards kompany will be charged to the Customer, as long as these are reasonable and necessary to cover adequate prosecution costs.
5. Data Protection
6.1. kompany does not and cannot control the flow of information to and from the kompany Systems and the performance of services provided by third parties (e.g., internet access, government and other registers, PEP and sanctions screening providers, credit reference agencies, translation services, etc). For this reason, kompany provides no warranty that use of the third-party services will be uninterrupted or error free. In the event that kompany is unable to access Information from a third party, necessary to deliver the services, kompany will not be liable for any interruption in the Services.
6.2. Since kompany receives Information from various company registers, financial and tax authorities as well as other third-party sources, kompany does not warrant the accuracy, completeness and reliability of third-party content. kompany will make reasonable commercial efforts to ensure Information accessible through the Services is up to date and complete. To the maximum extent permitted by law, kompany disclaims all liability for any error, inaccuracy or incompleteness in Information supplied.
6.3. kompany will make reasonable commercial efforts to ensure that its kompany Website and its systems (e.g., KYC API) are free from virus or other technologically harmful material that may infect Customer’s computer equipment or systems due to the Customer’s downloading of the Information or use of the Services. To the maximum extent permitted by law, kompany disclaims all liability for any loss or damage caused by any technologically harmful material accessed or downloaded via the kompany Systems or arising from use of the Services or from downloading the Information.
6.4. To the maximum extent permitted by law and except as expressly set forth in these T&C, kompany expressly disclaims any warranty of any kind relating to the Services, whether express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantability, fitness for a particular purpose or the reasonable use of skill and care. Information and Services are provided on an “as is” basis and, to the maximum extent permitted by law, without any warranty of any kind.
7. Right of withdrawal
As stated in these T&C our Services are intended for commercial use and commercial clients. Should you be in breach of this provision, you must explicitly give up your 14-day right of withdrawal, from which consumers benefit according to section 11 of the Austrian Fern- und Auswärtsgeschäfte-Gesetz – FAGG, in order to allow kompany in accordance with section 18 para 1 no 11 FAGG to share the Information before the right of withdrawal expires. kompany Systems transmit a confirmation of the closed contract according to section 5 para 2 of the FAGG immediately after the purchase.
8.1. The Services may be terminated by providing one month notice prior to the end of a chosen plan. Such termination taking effect with respect to the chosen plan at the end of the respective plan period.
8.2. Either party may terminate this agreement immediately by written notice (e-mail sufficient), if (a) the other party has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or enters into any form of insolvency, or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or assets or any part thereof; or (b) the other party ceases or threatens to cease to carry on business; or (c) the other party commits a material breach of this agreement and (if such breach is remediable) fails to remedy that breach within thirty (30) calendar days of receiving written notice (e-mail sufficient) requiring it to do so.
8.3. Without prejudice to the remainder of the T&C or any remedies available at law, kompany may immediately suspend or terminate the Customer’s use of the Services, without liability or refund, if the Customer fails to make a payment due under the T&C or if additional verification of the Customer is required.
9.1. kompany will indemnify and hold Customer harmless from Losses resulting from any claims brought by unaffiliated third parties against Customer alleging that use of the Services as permitted herein infringes any intellectual property rights of any third party. “Losses“ means in connection with an indemnified claim, defense costs, the amount of a final judgement (including any award of fees and expenses) rendered against the indemnitee, and/or the amount of a settlement entered into by the indemnifying party, or with the indemnifying party’s consent.
9.2. Customer will indemnify and hold kompany harmless from Losses resulting from any claims brought by unaffiliated third parties against kompany (i) alleging that Customer’s use of the Services in breach of this T&C, infringes any intellectual property rights of any third party, or (ii) related to any acts or omissions of Customer or the Authorized Users in breach of Clause 2.5 of this T&C.
9.3. Each party’s obligations under Clause 9.1 and 9.2 are expressly conditioned on the party subject to a claim (a) providing prompt notice of the claim; (b) giving sole control of the defense and settlement of the claim to the other party; (c) reasonably cooperating with the party in charge of the defense; and (d) not having compromised or settled such claim in any way or having made any admissions with respect to such claim without the defending party’s prior written consent.
9.4. Should the Services become (or in the opinion of kompany, be likely to become) the subject of a claim of infringement of any third party's intellectual property rights, kompany may at its option and at no cost to Customer (a) procure for Customer the right to continue to use the Services, (b) replace or modify the Services to make it non-infringing and functionally equivalent, or, only if neither of the foregoing remedies can be provided under commercially reasonable terms, (c) terminate the such Services and refund to Customer any pre-paid fees prorated to the remainder of the pre-paid term.
9.5. kompany will have no liability for any claim based on (a) use of the Services in combination with any software, hardware, network or system not supplied by kompany where the claim relates to such combination, (b) any modification or alteration of the Services and/or Information (other than by kompany), (c) Customer continuing any infringing activity after being informed of alleged infringement, or (d) use of the Services not in accordance with the T&C.
9.6. This section 9. states each party’s entire liability with respect to third party claims as described herein.
10.1. kompany shall
10.1.1. via commercial clients only be liable for any direct and foreseeable damage in the case of intent or in cases physical damages of persons negligently caused by kompany.
10.1.2. via consumers only be liable for any direct and foreseeable damage in the case of intent, gross negligence or in cases of physical damages of persons negligently caused by kompany.
10.1.3. in no case be liable for indirect damages, consequential damages, especially but not limiting to damages to other software, lost profit, pure property damages of a Customer or third-party damage.
10.1.4. in particular not be liable for damages caused by interruptions of kompany Systems which are necessary for maintenance work or to avoid network disturbances and/or which are caused by inevitable occurrences which are outside kompany’s control.
10.2. To the maximum extent permitted by law, kompany’s liability for any claim, loss, expense, or damage arising under these T&C shall in no event exceed the total price paid for six (6) months’ use of services under the T&C in respect of the six (6) month period immediately preceding the date on which the event giving rise to the claim took place.
10.3. The Customer shall be responsible for all actions or omissions of the Authorized Users, and any breaches of these T&C, as if they were the Customer’s acts, omissions or breaches.
11. Intellectual Property
11.1. All intellectual property subsisting in, created during, or used in connection with the Services or Information, including any modifications and amendments thereto, provided to the Customer by kompany, shall be and remain the sole property of kompany or its licensors or other third-party providers. The Customer shall not, without kompany’s prior written consent, use or adopt any name, trade name, trading style or commercial designation used by kompany or the relevant owner, or do or omit anything to infringe on any intellectual property right relating to any Service or Information supplied by kompany or the relevant owner. The Customer agrees to notify kompany immediately if it becomes aware of any unauthorized use of our intellectual property.
11.2. In the event that new intellectual property, inventions, designs or processes evolve in the performance of or as a result of Services, including where modifications recommended by the Customer are incorporated by kompany into the Services, the Customer acknowledges that the same shall be kompany’s intellectual property unless otherwise agreed in writing.
12.1. kompany and the Customer shall keep secure and secret any Confidential Information which such party has received from the other. “Confidential Information” shall mean any information, technical, commercial or of any other kind, whether written, oral or in electronic form, except such information which is publicly known or which has come to the public knowledge in any other way than through breach of this secrecy undertaking, or has been: (a) independently developed without access to such party’s Confidential Information; (b) rightfully received from a third party; or (c) required to be disclosed by law or by a governmental authority.
12.2. Neither kompany nor the Customer shall, even after the expiration of the T&C use or disclose to any third parties the Confidential Information except: (a) to those of its employees, officers, agents and sub- contractors required to know such Confidential Information for the purposes of their proper performance of these T&C; (b) to its auditors or such other third party having a right, duty or obligation to know such Confidential Information which disclosure shall only be made with the prior written consent of the disclosing party; or (c) to use the disclosing party’s Confidential Information solely in connection with the T&C and not for its own benefit or the benefit of any third party, in each case provided that such third parties have entered into confidentiality arrangements on terms at least as favorable as set out in this clause.
13. Public Relations
13.1. Customer agrees if requested by kompany to
13.1.1. release a joint press release (with the form and publishing details to be agreed between the parties). 13.1.2. allow kompany the use of the Customer’s logo and/or trademark(s) on kompany Website for the sole purpose of demonstrating this agreement, provided that this does not grant a license to use the Customer’s logo and/or trademark for any other reason.
14.1. The T&C exclusively govern the relationship between you and kompany and supersede any prior statements or agreements. Any of your terms and conditions are excluded from being applicable on the relationship between you and kompany.
14.2. If any provision or part-provision of these T&C is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the T&C.
14.3. Changes to and amendments of these T&C, including this clause, may be made by kompany at any time and become effective at the earlier of (i) the Customer accepts online the amended terms or (ii) within 1 (one) month after having published such changes or amendments.
14.4. No failure or delay by either party in exercising any right under these T&C will constitute a waiver of that right. Any waiver, to be effective, must be in writing and signed on behalf of the party who is waiving the breach or provision.
14.5. kompany and you agree on communication in English language. Subject to the German terms in brackets referring to Austrian legal terms (which shall be interpreted only with respect to their meaning under Austrian law and with respect to the German language term in brackets), any other language used shall be only used for purposes of convenience. Respectively every communication or notice shall be made in English language. The English language version of these T&C is the prevailing version.
14.6. Except for any payments due hereunder, neither party shall be responsible or liable for any failure to perform its obligations due to causes beyond its reasonable control, including but not limited to acts of God, war, riots, terrorist acts, embargoes, acts of civil or military authorities, fires, floods, earthquakes, accidents, strikes or other form of industrial actions, failure of any communications services or utility service for the duration of any such circumstances or cause.
14.7. These T&C and any Services hereunder shall be governed by and construed in accordance with the laws of the Republic of Austria to the exclusion of the provisions of the United Nations Convention on the International Sale of Goods and without giving effect to any statutory conflict of law provisions or rules that would cause the application of the law of any jurisdiction other than Austria.
14.8. Any and all disputes or divergences or claims shall be exclusively dealt with the commercial court (Handelsgericht), 1010 Vienna.
15. Special Terms and Conditions for RegisterDirect
15.1. Online access to the commercial register database and the land registry database for the Republic of Austria can be obtained from kompany. kompany has been commissioned as the official clearing house for the Austrian Federal Ministry for Justice to process enquiries relating to the commercial register and land register, whereas this service shall henceforth be referred to as "RegisterDirect". With these special terms, Customers have the right to use the IT applications, services, access and products provided within RegisterDirect ("Applications") under the conditions set out in this section.
15.2. The Applications are run during the hours of operation of the commercial registry database and the land registry database of the Republic of Austria. These hours of operation are referred to as the core operating time, whereas the operation of or access to RegisterDirect or the Applications may be suspended or restricted – also during the core operating time – due to, especially but not limited to, urgent problem solving by such databases, kompany or overload, malfunction or collapse of the Austrian or international telecommunications networks. Outside the core operating time, constant access to these Applications is not guaranteed (e.g. due to maintenance work). The Applications are run on equipment belonging to kompany. Data obtained from the Applications originates directly from the respective data bases or systems of the Republic of Austria.
15.3. In order to use the Applications, a Customer of RegisterDirect must purchase the respective plan. A Customer of RegisterDirect is not permitted to resell data from the Applications for commercial use and must adhere to the copyright laws of the Republic of Austria.
15.4. For a Customer of RegisterDirect and the Applications, the provisions of these T&C shall apply, whereas in case of a conflict between this section and the other sections of the T&C, this section shall prevail.