This agreement is between you, the Customer, and Kinamo NV/SA, with registered office at Hessenstraatje 2, 2000 Antwerp, Belgium.
Kinamo has the right to modify these Terms of Sale. Such amendments shall also apply to agreements already concluded with the Customer.
Amendments shall enter into force 30 days after their announcement, or at a time specified in the announcement.
If an amendment to the terms and conditions is not reasonably acceptable to the Customer, he is entitled to terminate the Agreement in writing within 30 days of its announcement.
This will terminate 30 days after sending the letter.
Delivery times are approximate only. Exceeding the delivery time shall not entitle the Customer to any compensation or rescission of the Agreement.
Kinamo reserves the right to make changes and improvements to the Services at its sole discretion.
Kinamo shall make the necessary efforts to inform the Customer in a timely manner - to the extent that the changes adversely affect the enjoyment of the Services - but shall not be liable for any damages or costs incurred by the Customer, as a result of the said measures. The aforementioned measures shall not affect the Customer's payment obligations.
1.3 Warranties and limitations.
The Kinamo Service Level Agreement applies to the services Dedicated Hosting, Cloud Server Hosting, Virtual Server Hosting - if explicitly mentioned in the hosting agreement - and Co-location (Server Housing), and this in accordance with the service level chosen by the Customer.
Kinamo guarantees acceptable availability of the Shared Hosting services, keeping in mind that these services are provided in a shared environment, where the actions of other Customers in the same environment are not under Kinamo's control.
Kinamo cannot guarantee that the Customer will be able to register or renew his desired domain name, even if it appears that the domain name is available. Indeed, Kinamo cannot find out whether the desired domain name is not simultaneously searched for by a third party, and cannot guarantee that the relevant WHOIS databases do not contain errors or imperfections.
The client declares to agree with the terms and conditions regarding hosting services and has been able to take note of them at www.kinamo.be.
Kinamo shall, upon determination of exceeding the data traffic limit agreed upon in the agreement between the Customer and Kinamo, charge the data traffic consumed in excess of such limit on a monthly basis as additional. Reports of data traffic usage can be accessed by the Customer at any time through Kinamo's customer website.
Kinamo will use best efforts to secure the Services. However, Kinamo shall not be liable for any damage on the part of the Customer or third parties resulting from insufficient security.
If the Customer notices or suspects that third parties have unlawfully gained access to the Services, he shall immediately report this to Kinamo. Kinamo shall not be liable for any damages resulting from such unauthorized use of the Services.
1.5 Obligations and restrictions of the Customer.
The Customer shall not be allowed to apply processes or actions, which he may reasonably suspect will hinder Kinamo and/or Kinamo customers or adversely affect the other use of the Services.
The Customer is responsible and liable for any use of the Services provided, including the confidentiality and use of its access codes, its e-mail addresses, and the content of its website.
The Customer shall not be entitled to transfer any rights and obligations resulting from the Agreement to third parties without Kinamo's prior written consent.
In case of change of address of the Customer, it shall be obliged to inform Kinamo in writing without delay.
In case Kinamo addresses the Customer in writing, this shall be lawful if done at the last address notified by the Customer.
Changes in the authority of the Customer, its representatives or proxies, notwithstanding their registration in public records, shall be effective against Kinamo only after Kinamo has been notified in writing.
In case the Customer enters into the Agreement on behalf of a third party, in particular if the Customer acts as a "reseller" or "partner", the Customer asserts its authority to bind such third party to all terms and conditions applicable to the Agreement. By this empowerment, the Customer accepts full liability for damages caused to Kinamo or third parties by non-compliance with the aforementioned terms and conditions.
1.6 Payment terms, prices and protest periods
The Customer does not have the right to withdraw from a purchase. According to Article 80, §4,2° of the Trade Practices Act of July 14, 1991, the Customer does not have the right to invoke the legal withdrawal period of 7 days since the order includes a "customized" service. Concretely, this means that the Customer - after processing the order - cannot have a period of reflection.
Kinamo reserves the right to adjust the prices of its Services in function of the fluctuation of its suppliers' prices.
Services are payable in advance at the beginning of each period. Invoices are payable within 15 days of invoice date unless otherwise specified on the invoice.
Invoices are payable on the due date specified on invoice and are payable to Kinamo's bank account as specified on the invoice.
If the invoice has not been paid on the due date, a conventional default interest at the interest rate stipulated in article 5 of the Law of 02/08/2002 for Combating Late Payments shall be due ipso jure and without any notice of default.
Each late payment by the Customer shall also entitle Kinamo to charge a fixed compensation of 12% of the invoice amounts, with a minimum of 50 EUR, to cover Kinamo's administrative costs.
If after a final (second) payment reminder sent by e-mail or by mail to the Customer's contact address payment of the invoice is not followed up, an administrative cost of 7 EUR will be charged for a third reminder. If after this final third reminder payment is not followed up Kinamo reserves the right to have collection of the invoice completed by an external partner.
All costs resulting from enforcing payment through amicable and judicial means, including bailiff and attorney fees, shall be charged to the customer.
Complaints regarding delivery of services or performance cannot be used as grounds for non-payment or late payment of invoices. If within a period of 7 working days no registered written protest has been received regarding an invoice, it will automatically be considered accepted, including the amounts, products and services mentioned.
To the extent the Agreement includes the delivery of equipment transferred in ownership to the Customer, Kinamo reserves ownership until the full amount due from the Customer has been paid.
In case the Agreement includes the placement in a Kinamo data center of equipment owned by the Customer, Kinamo reserves the right not to release such equipment until the full amount due on behalf of the Customer has been paid.
Payments made by the Customer shall first serve to pay interest and costs due and secondly to pay due invoices which have been outstanding the longest, even if the Customer states that the payment relates to a later invoice.
1.7 Duration and termination
The Agreement is initially entered into for the period stated on the order form or, in the absence of such a statement, for one (1) year.
The Agreement may be terminated no later than six (6) weeks prior to the expiration of the initial period. For server services, notice of termination of the service must be given at least three (3) months (12 weeks) before the next end date.
If The Agreement is not terminated, it will be automatically renewed for the period stated on the original order form or, in the absence of such a statement, for another period of one (1) year from the expiration date.
Termination of the Agreement can only be done by registered letter.
Kinamo shall be entitled to terminate the Agreement without further notice and by operation of law with immediate effect in case the Customer is declared bankrupt, the Customer has applied for or accepted a composition with creditors or more generally the Customer is in suspension of payments.
1.8 Liability and indemnification for third parties.
Kinamo shall not be liable for any direct and/or indirect damage of the Customer resulting from any failure in the performance of any Agreement or any other obligation of Kinamo towards the Customer, which is not due to intentional or gross fault of Kinamo.
Kinamo shall only be liable for direct damages resulting from an attributable contractual failure of Kinamo to the Customer, which can be proven by the Customer and established by Kinamo. The liability is in any case limited to direct damage to goods and direct damage due to death or injury, and to an amount not exceeding the net invoice value ( excl. VAT ) of the delivery to which the damage is related and this during the period in which the Customer suffered damage.
Kinamo shall not be liable for any indirect damages, including consequential damages (including loss of data or profits, financial losses, disrupted planning and third party claims, etc.).
All legal claims of the Customer against Kinamo, including claims for damages, shall expire one year after the relevant claim arose.
The Customer shall indemnify Kinamo. against all third party claims arising from the Customer's use of the Service and/or from the Customer's non-compliance with any obligation imposed in the Agreement. This obligation to indemnify shall remain in effect even after termination of the Agreement.
1.9 Legal Framework
Relations between the Customer and Kinamo shall be governed by Belgian law.
In case of dispute of a matter subject to these General Terms and Conditions, only the court of Antwerp, Belgium shall be competent.