General Terms & Conditions
With regard to KINX Inc.(“KINX”) services, henceforth known in these Terms and Conditions as KINX’s services(“Services”) to customers,
the purpose of these Terms and Conditions is to define the use of, rights and obligations of KINX's Services, between KINX, and the other signatory,
to the applicable Order Form(“Customer”).
“Affiliate” shall mean an entity that now or in the future, directly or indirectly controls, is controlled by or is under common control with a party, where the term “control” and its correlative meanings, “controlling”, “controlled by”, and “under common control with” means the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the aggregate of all voting equity interests in an entity.
“Agreement” shall mean the KINX order form and KINX Master Service Agreement into which these Terms and Conditions are incorporated.
1.3. Billing Start Date
“Billing Start Date” shall mean the date designated in the Order as the Billing Start Date or if there is no date designated in the Order, the date provided by KINX as the official service start date.
1.4. Customer’s Equipment
“Customer’s Equipment”shall mean all network, computer, and other equipment provided, owned or controlled by Customer, Customer’s Affiliates, Customer’s Authorized Persons, Accompanying Persons or Associated Entities (including wiring and connections between such equipment and Customer’s demarcation equipment) excluding Cross-Connects or KINX’s demarcation equipment.
“Fees” shall mean any and all charges of whatever kind or nature, owed to KINX from Customer for Services provided under the Order From.
“Services”shall mean any service(s) which may include supplying connectivity, colocation space, environmental control, physical security, monitoring of KINX’s infrastructure, reporting and remote hands, outsourcing, equipment leasing, data or telecommunications and related services and products.
1-7. Service Level Agreement (SLA)
“Service Level Agreement (SLA)” shall mean, as applicable, the document setting forth the performance levels that will be provided for certain Services, the metrics or performance indicators by which the service levels will be measured and the remedies available to Customer if service levels are not met.
1-8. Service Term
“Service Term” shall mean the term for the Services as specified in the Service Order.
1-9. Service Order
“Service Order” shall mean the Order Form for the acquisition of the Service by Customer. Service order must be submitted in the form designated by KINX; which will contain i) all information related to Services, specifying the type, quantity, purchase price and delivery dates for such Services, ii) is fully executed by both parties and iii) shall be incorporated by reference hereto.
1-10. Order Form
“Order Form” shall mean the applicable KINX order form(s) so entitled, signed and submitted by Customer to KINX setting out the matters relating to the delivery of the relevant Services by KINX to Customer.
1-11. Reselling Services
“Reselling Services” shall mean third party services procured by KINX to provide Services for Customers.
1.12. Remote Hands
“Remote Hands” shall mean KINX’s onsite technical assistance which may include the following Customer’s express instructions relating to remote management, installation troubleshooting of Customer’s Equipment or any other assistance agreed to by KINX in the KINX Order Form.
2. Scope and Responsibilities
KINX shall provide the Services to Customer as specified in mutually executed Service Order(s). To order any Services, Customer shall submit to KINX a description of the Services it would like to receive, including any back up detail requested by KINX.
The parties hereby acknowledge and agree that the Services provisioned by KINX and any liabilities for failure to provide the agreed upon Services shall be the sole obligation of KINX. However, KINX shall not be responsible for the services that the other is obligated to provide.
With only sole exception being permission granted through written consent by KINX on a particular Order Form, Customer shall not be permitted to resell the Services to a third party (including Customer Affiliates) nor enter into any commercial relationship or relationship of any kind, with a third party to enable the purchase or use of the Service through Customer.
This agreement gives KINX the authority to modify any Service if such modification is generally applicable to all customers. In the event of such modification, Customer may terminate the applicable Order Form or other Order Form without the penalty of a termination charge if only KINX fails to remedy a material decrease in the functionality of the affected Service within thirty (30) days of written notice from Customer.
The parties hereby acknowledge and agree that KINX is not responsible for any delays in access to the Service due to reasons that are not solely attributable to KINX, and such delays shall not affect or alter the Billing Start Date.
The parties hereby further acknowledge and agrees that KINX shall in no way bear any responsibility or liability in connection with: (i) non-KINX products or services that Customer, knowingly or unknowingly, chooses to use in connection with the Services, or (ii) Customer-devised or Customer-implemented rules (and associated misconfigurations and outages) or actions undertaken by Customer, or a third party directed by Customer, that might result in denial of service, availability issues or performance degradation. (iii) any damages or service disruption that may occur due to the excessive use of power that is described in KINX’s Service Order.
Customer hereby affirms and guarantees that its use of the Services will not violate any applicable law, rule or regulation including without limitation or restrictions to any and all global and domestic regulations, legal laws or rules by authorities, regulatory or governmental bodies regarding data security, data privacy or export compliances, breach of Terms of Conditions, or copyright infringement or other breaches of intellectual property rights of any kind to a third party. Customer further acknowledges and agrees that the responsibility for understanding the regulatory requirements applicable to Customer’s business for selecting and using Services shall be in a manner that complies with the applicable requirements.
Customer hereby agrees to indemnify and defend KINX against any and all third-party claims, liabilities, costs and expenses incurred, including reasonable attorneys’ fees, penalties, and fines imposed by governmental, regulatory or any other authoritative bodies, any and all breach or infringement violation by Customer, breach or infringement violation by Customer of the representations, warranties and covenants or any violation of applicable law, rule or regulation by Customer (hereby stated as a “KINX Claim”). Regardless of Customer’s ability to settle the KINX Claim, KINX will have the right to govern, overrule or authorize any non-monetary settlement that involves a KINX commitment, and KINX will not unreasonably withhold, condition, or delay that approval. KINX will have the right to govern the defense of the KINX Claim only if Customer does not provide written notice to KINX on the KINX Claim that it will assume the defense.
3. Representation and Warranty
KINX agrees and acknowledges that the Services provisioned for the agreed-upon Term shall be in accordance with the Service Order.
KINX hereby acknowledges that all Services will be provisioned for in a competent and professional manner in accordance with the level of dedicated professional care observed and shown by a skilled professional rendering similar services and it will retain sufficient and appropriately qualified personnel to deliver the Services under the Order Form.
Each Party acknowledges and affirms that it has the authority to enter into a binding legal contract and perform its obligations stated hereunder and in all other signed legal documents, such as MSA and the Order Form.
Each party states, stipulates and guarantees that it is and shall be in compliance with applicable laws and regulations.
Customer warrants that its network and systems used to access and use the Services comply with any and all technical requirements specified by KINX in the Order Form or any document(s) incorporated by reference therein.
Customer shall waive any claim for a breach of KINX warranties ascribed in Sections 3-1 and 3-2, if Customer is in any way in breach of the material Order Form (including, but not limited to, payment default) or if a Service failure arises as a result of a Customer’s use of Service that is in a manner inconsistent to the Order Form or KINX’s specific written instructions.
KINX disclaims any and all warranties not expressly stated in the Order Form including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Customer is solely responsible for the suitability of the Services chosen, including the suitability as it relates to Customer Data. Any services that KINX is not contractually obligated to provide but that KINX may perform for Customer at Customer’s request and without any additional charge are provided on an “As Is” basis.
KINX is only obligated to provide Support to Customer’s administrative or technical contacts listed on Customer’s account. KINX hereby states that it will not provide support directly to Customer’s end users unless specifically requested by Customer in writing.
4. Term and Termination
After the Initial Term, the Service Term shall be automatically extended on an monthly basis (the “Extended Terms”, collectively the “Term” together with the Initial Term) under the same terms and conditions of the Order Form unless there is a written notice of its intention not to extend the Term from one party at least sixty (60) days or the specified number of days between both parties prior to the expiry date of the Term of the Order Form.
When Customer intends to terminate the Service contract, Customer should submit the application for termination to KINX 60 days or the specified number of days before the intended termination date. However, if either Customer or KINX violates the obligations of the contract or has serious negligence on the violation, Customer/KINX shall first notify the other party in writing of the violation, and both parties shall use reasonable efforts to resolve such issues.
In colocation service, the service fee may change if fluctuation in the official electricity price announced by KEPCO(Korea Electric Power Corporation) occurs. The price shall be calculated accordingly to KEPCO's changed rate. In addition, the standard power supply per each rack shall be limited to 2.8kW (220V). If the Customer exceeds more than 10% of the contracted power, KINX shall notify Customer either i)to relocate Customer’s equipment, ii)charge additional power cost to Customer based on its actual power consumption.
KINX shall suspend the use of the Customer’s Service from the date of termination requested by Customer when the application for termination is completed pursuant to clause 4-2.
Customer whose Service has been terminated must remove the Customer’s Equipment from KINX within 5 days (including termination date). KINX does not accept expenses from the date of termination to the date of take out. If Customer does not remove the Customer’s Equipment within five (5) days, Customer must pay the cost of the daily fee (charge for colocation) from the date of termination to the date of take out.
If Customer does not take out its equipment within five (5) days from the date of termination, KINX has the right to move Customer’s Equipment to a safe area without customer’s consent. KINX shall put best efforts to move equipment, and Customer shall not be entitled to claim for damages by loss of data caused by abnormal system shutdown of Customer's Equipment or for damages caused by the take out or move of the Customer’s Equipment.
KINX will continue to hold on to the Customer’s Equipment until a written agreement has been reached and agreed to by both parties on the removal of Customer’s Equipment. If the Customer does not take out the equipment within thirty (30) days after the date of termination, KINX has the right to dispose of the Customer’s Equipment.
If Customer fails to pay the Service Fee until the due date and the payment default cannot be resolved five (5) days after the Service is suspend, KINX has the right to terminate the contract.
KINX may terminate the contract without delay if Customer falls under any of the following criteria and KINX notifies this fact to Customer. However, if there are difficulties in notifying in advance, KINX may notify Customer after the preliminary action: (i) When the government office or public institution asks to terminate the Customer’s contract due to the continuous illegal spam sent from Customer even after the restriction of usage and suspension. (ii) When Customer has received the restriction of usage or suspension more than twice in the same year. (iii) When the Service has been applied by the name which is not real or by the name of a third party or corporate name. (iv) When Customer provides their information untruthfully or misses or applies with the wrong information. (v) When Customer does not explain the reason behind the use of the Service in violation of relevant laws, regulations, or Customer does not accept the KINX’s request of statement of opinion without any reasonable reason.
If the term of the Order Form is terminated at Customer’s convenience before the expiry of the Term of the Order Form, Customer shall be responsible to pay fifty percent (50%) of the remaining monthly recurring charges (“MRC”) for each terminated the Service for the remainder of each applicable Service term. Also, with regard to Reselling Services, Customer shall be responsible to pay a hundred percent (100%) of MRC for each terminated Services for the remainder of each applicable Service term.
Customer may terminate the Order Form upon written notice if KINX (i) breaches any material provision of the Order Form and fails to cure such breach within thirty (30) days after written notice thereof, or (ii) becomes insolvent and ceases to do business in the ordinary course. KINX may terminate the Order Form upon written notice if Customer (i) breaches any material provision of the Order Form and fails to cure such breach within thirty (30) days after written notice thereof or (ii) becomes insolvent and ceases to do business in the ordinary course.
Customer hereby acknowledges and agrees to pay all fees and charges for Services as specified on the Order Form before or on the agreed upon MRC date for the duration of the contract. Regardless of the actual Usage of Service, all payment obligations are committed for the Term (as defined below) and non-cancelable, and all amount are nonrefundable. Unless stipulated in the Order form, all payment terms are net thirty (30) days from the invoice date, without offsets, or deductions of any kind, and payment is due in agreed currency. If Customer believes, in good faith, that Customer’s invoice is incorrect, Customer must notify KINX with written notice within thirty (30) days of the days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit for the disputed amount. The said written notice must contain a transcribed detailed description of the Fees and charges in question and the good faith basis for disputing such amounts. Customer agrees to promptly remit payment for all other amounts and irrevocably waives its right to challenge any amount not disputed during such thirty (30) day period. Nothing in this section will be deemed to limit KINX’s right to seek judicial intervention at any time regarding any such disputed amount.
Customer shall pay an incremental late fee of two percent (2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid within thirty(30) days of invoice date, plus all costs, including reasonable attorneys’ fees, incurred to collect any unpaid amounts. Unless prohibited by applicable law or regulation, all invoiced amounts not disputed in writing by Customer within thirty (30) days (or the agreed days) of invoice date are deemed accepted. From time to time, KINX reserves the right to reasonably require payment assurance.
If Customer fails to pay the Service Fees for more than thirty (30) days of the due date, KINX shall suspend the Services with KINX's authority. If payment failure is not resolved within five (5) days of the Service suspension, all the contract including Services shall be terminated with KINX's authority.
KINX’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer is responsible for payment of all such taxes, levies, or duties, except for taxes based solely on KINX’s income. If KINX is legally obliged to pay or collect any such amounts for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides KINX with a valid tax exemption certificate authorized by the appropriate taxing authority covering such amount.
6. Limitation of Liability
Customer waives any liability claims against KINX for failing to provide the Services unless such failure results from a breach of a SLA, or results from KINX’s gross negligence, willful misconduct, or intentional breach of the SLA. The credits stated in agreements are Customer’s sole and exclusive remedy for KINX’s failure to meet the agreed upon Service obligations for which credits are provided unless such failure is due to KINX’s willful misconduct.
KINX and its affiliates (KINX’s employees, agents, affiliates or suppliers) are not liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. In addition, KINX and its affiliates are not liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall KINX and its affiliates be liable to the Customer for any punitive damages or for any loss of profits, revenue, customers, contracts or goodwill.
Regardless of anything written in the Order Form to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from KINX’s negligence, the maximum aggregate monetary liability of KINX and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Order Form and any act shall not exceed the monthly recurring fee under the Order Form.
If KINX, or any of KINX’s or Customer’s respective employees, agents, or suppliers (hence known as the “Indemnitees”) is faced with a legal claim brought forward by a third party arising out of Customer’s actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations, violation of Customer’s agreement with Customer’s end users, or violation of these Terms and Conditions, then Customer will pay the cost of defending the claim (including reasonable attorney fees) and any damages awarded, fine, penalty or other amounts that is imposed on the Indemnitees as a result of the claim. Customer’s obligations under this subsection include claims arising out of the acts or omissions of Customer’s employees or agents, any other person to whom Customer have given access to the Services, and any person or entity who gains access to the Services as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer. Customer acknowledges and agrees to pay reasonable attorney fees and other expenses the Indemnitees incurred in connection with any dispute between persons having a conflicting claim to control Customer’s account with KINX, or any claim by Customer’s end user arising from an actual or alleged breach of Customer’s obligations to them.
KINX will have the authority to choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to Customer. Customer must comply with KINX’s reasonable requests for assistance and cooperation in the defense of the claim. KINX may not settle the claim without Customer’s consent, although such consent may not be unreasonably withheld. Customer must pay all expenses incurred under this Section as Indemnitees incur them.
8. Force Majeure
In the case of an event that is beyond the control of either party("Force Majeure Event") and aside from obligations related to Service Fee payments, all the obligations related to the Service will be suspended but only so far and for so long as the Service is affected by the Force Majeure Event.
“Force Majeure” means any event or circumstance or combination of events or circumstances that is beyond the reasonable control of the party sought to be held liable, including, but not limited to, any: (i) delay in obtaining or failure to obtain or renew any permit or governmental authorization, (ii) act of God or of the public enemy, (iii) action, or failure to act, of any governmental authority, (iv) war or warlike operations, (v) civil war or commotion, mobilization, military call-up and acts of similar nature, (vi) revolution, rebellion, sabotage, insurrection or riot, (vii) drought, fire, flood, lightning, epidemic or quarantine restriction, (viii) strike or other labor action, (ix) freight embargo, (x) unworkable weather, (xi) trawler or anchor damage, (xii) damage caused by other marine activity such as fishing, marine research or marine development, (xiii) failure or shortage of power supplies or general unavailability of any raw materials or components, (xiv) act, or failure to act, of Customer (in a case where KINX is sought to be held liable), act, or failure to act of KINX (in a case where Customer is sought to be held liable) or act, or failure to act, of any representatives or agents of the respective Parties (in a case where the other party is sought to be held liable).
The Party so affected by Force Majeure shall promptly notify the other Party in writing and shall be excused from the performance of its obligations aside from obligations related to Service Fee payments hereunder while or to the extent of its performance is interrupted or prevented by one or more of the events of Force Majeure.
In the event of a Force Majeure that prevents a Party from performing its obligations under the Order Form for a period exceeding thirty (30) consecutive days, either Party may terminate the Services by giving seven (7) days’ written notice to the other Party. Each Party shall pay the other any and all Charges due to the other up until the date of termination.
Legal notices given by the parties to one another in connection with the Order Form shall be given in writing and delivered via fax (with written confirmation), return receipt mail or express delivery service to the parties' respective legal addresses first.
Each party gives the other party consent to use the other party’s name, trade name, trademarks, icons, and logos (collectively, the “Brands”) to refer publicly to the other, orally and in writing, as a customer/vendor of the other solely in connection with the Services and only during the Term. Any other use of a party’s Brands requires such party’s prior written consent.
11. Confidentiality and Ownership
Any information, partial or otherwise, that a receiving party knows or has knowingly or unknowingly received or has become aware of as confidential or proprietary information (because such information is identified by the disclosing party orally or in writing as such or is not generally known in the relevant industry), is “Confidential Information” and shall remain the sole property of the disclosing party. The terms of any Order Form shall also constitute Confidential Information of each party. Both party shall not disclose, use, modify, copy, reproduce or otherwise divulge Confidential Information of the other, except as required by law or as necessary for KINX to provide the Services in accordance with or as otherwise permitted by the Order Form. This Section 11 shall not apply to information disclosed in published materials, generally known to the public, lawfully obtained from any third party, or previously known to or independently developed by the receiving party.
KINX reserves all rights, title, and interest in the Services, and KINX or its licensors retains all ownership in all intellectual property rights related to the Services.
Neither party may assign or otherwise transfer any of its rights or obligations under the Order Form without prior consent from the other party.
13. Governing Law
The Service contract shall be governed by the law of South Korea without reference to its conflict of law provisions and the Parties irrevocably submit to the non-exclusive jurisdiction of the Korea courts and any court of appeal there from.