1 Application
This document details the terms and conditions for the provision of Services by Console Connect. The Customer is deemed to have accepted the Conditions and the relevant Service offerings when applying for the Services.

 

2 Definitions and Interpretation
2.1 “Application” means a request for Services made by the Customer which may be oral or written by completing a relevant Console Connect service order form.
“CA” means the Communications Authority established by section 3 of the Communications Authority Ordinance (Cap.616) or its successor. “Conditions” means the terms and conditions in this document namely clauses 1 to 15 (both inclusive). “Contract” means the agreement between the Customer and Console Connect for the provision of Services comprising these Conditions, the Service Offerings, the Application and any policies or user guides issued and revised by Console Connect from time to time.
“Console Connect” means Console Connect (HK) Limited and includes any of its successors, transferees or assignees.
“Console Connect’s Standard Business Hours” means 9:00 am to 6:00pm Monday to Friday excluding gazetted public holidays in Hong Kong.
“Customer” means any person, firm or entity (a) which has applied for a Service; (b) which has used the Service, but has not applied for that Service; or (c) as stated in the Application.
“Equipment” means equipment (including software relating thereto) which is provided by Console Connect for the provision of a Service to the Customer and which is installed at the Customer’s premises, excluding the Customer’s equipment or third party equipment.
“Hong Kong” has the meaning ascribed to that term in the Interpretation and General Clauses Ordinance (Cap.1).
“Licence” means the relevant licence issued to Console Connect and includes any replacement of it. “Network” means the network established, maintained and/or operated by Console Connect in accordance with the Licence.
“Ordinance” means the Telecommunications Ordinance (Cap.106) and includes any replacement of or amendment to it.
“Services” or “Service” means any services offered by Console Connect to the Customer.
“Special Conditions” means the special terms and conditions (if any) set out in the Service Offerings or the Application which are applicable to the Services.
“Service Offerings” in respect of a Service means the description of the Service, the charges and any Special Conditions, as amended and published by Console Connect from time to time.

2.2 Unless the context says otherwise:
(a) A reference to a clause is a reference to a clause of these Conditions.
(b) Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
(c) The singular includes the plural and conversely.
(d) Headings to clauses are used for convenience of reference only and do not form a part of the clauses.
(e) If there is a conflict between the Conditions and the Service Offerings (excluding the Special Conditions) the Conditions will prevail to the extent of the conflict. If there is a conflict between the
Conditions and the Special Conditions then the Special Conditions will prevail to the extent of the conflict.
(f) Any correspondence which is required to be given in writing can be given by prepaid post.
(g) A reference to a “day” refers to a calendar day.

 

3 Provision of Services
3.1 Where Console Connect has accepted an Application from the Customer, Console Connect will provide the Services subject to the terms of the Contract.

3.2 Console Connect does not guarantee continuous provision of or fault free Services or performance at a particular speed, bandwidth or data throughput rate. In the event of a fault in the Service, the Customer shall immediately notify Console Connect. Console Connect will determine the appropriate methods for providing the Services and the route along which a Service is delivered to the Customer. Console Connect may change the method and delivery route from time to time without informing the Customer.

3.3 The provision of a Service to the Customer is subject to the Customer providing such information as may be reasonably requested by Console Connect and which meets Console Connect’s credit policy requirements.

3.4 Console Connect will repair faults that occur on a date agreed with the Customer unless otherwise provided, or if the Customer has entered into an alternative maintenance arrangement with Console Connect. In some cases a temporary repair may be performed to enable the Customer to use the Service before permanent repair is effected.

3.5 For Internet and data connectivity Service, the access speed specified for each circuit or access port is the maximum data transfer capacity or throughput (measured in bits per second) that Console Connect has configured the circuit or access port for. In any case actual access speed will be affected by Customer’s usage levels, network line condition, network configuration, resource availability and extraneous factors.

 

4 Use of Services
4.1 The Customer shall use the Services in accordance with the terms and conditions of the Contract.

4.2 Subject to the Contract, the Customer may allow any person to use the Service provided that the Customer will remain liable to Console Connect for all charges incurred thereby and for any and all liabilities or obligations arising under the Contract. The Customer shall be liable for all charges incurred through the use of the Service whether such charges were incurred with or without the consent of the Customer.

4.3 If the Customer vacates the premises at which the Service is provided without cancelling the Service, the Customer will be liable for any charges outstanding in respect of the use of the Services and any charges incurred in respect of the Services by any person who commences occupation of the premises or remains in occupation after the Customer has vacated the premises, or by any other person whom such person permits to use the Services.

4.4 The Customer must not use or permit another person to use the Service:
(a) in connection with, or in, the commission of an
offence against the laws of Hong Kong or other applicable laws of subscribed service in another countries;
(b) for the purposes of resale or sublease of the Service, unless otherwise agreed by Console Connect in writing;
(c) in any manner which infringes any rights (including intellectual property rights) of any third party;
(d) for the purpose of sending large volume of advertising material or message;
(e) in any manner which interferes with, impedes or impairs the use or operation of, or do anything likely to interfere with, impede or impair the use or operation of the Network or Services; or
(f) for purposes not authorised by Console Connect.

4.5 The Customer must:
(a) comply with any written notice from Console Connect in relation to the modifications of any apparatus including machinery, engines, meters, lamps, transformers or fittings (“apparatus”), or other action to be taken, to eliminate the interference, impedance or impairment or the likelihood of the interference, impedance or impairment;
(b) permit or obtain the necessary permission to enable Console Connect’s employees or agents to enter any premises to inspect any apparatus, which is, or may be, causing or likely to cause, any interference or damage to the Network; and

4.6 The Customer shall indemnify and hold harmless Console Connect, its employees and agents against all claims, liability, losses or damages which Console Connect suffers or incurs as a result of:
(a) any acts or omissions of the Customer;
(b) any claims by any person relating to the use of the Service, or its resupply, by the Customer;
(c) a breach by the Customer of the Contract;
(d) any illegal or unauthorised activity by the
Customer;
(e) any claims by any person in relation to the use of the Service by the Customer (including any claims for infringement of any intellectual property rights or any claims arising out of or relating to carrying material of obscene, indecent or defamatory nature); and
(f) any injury or damage to property suffered by Console Connect in the course of access to the Customer’s designated premises for the purpose of supply of the Service.

 

5 Access to Premises
5.1 The Customer must allow or obtain the required permission to enable Console Connect’s employees or
agents to enter at all reasonable times into the premises where the Services will be provided to inspect, test, install, maintain, replace and remove the Services or Equipment prior to, during and after the provision of the Services, as well as to inspect any other equipment used in or in connection with the Services. The Customer will provide safe access to the premises and safe conditions for Console Connect’s employees or agents whilst in the premises.

5.2 Provision of Services is subject to Console Connect gaining access to the building and the Customer’s premises to install the necessary facilities including equipment and wiring and in some situation access to the use of any in-situ wires in the Customer’s building or premises. The Customer will provide necessary assistance to facilitate such access including:
(a) liaising with the respective Building Management Office (BMO), data centre operator or relevant authority, and settling cross connection charge or any surcharges that may be imposed (one-off and monthly recurring); and
(b) ) where internal wiring work is required, to remove and reinstate any interior furnishings that may be affected; provide necessary tools such as construction platform and seeking permission to drill holes. Console Connect may cancel the Application without any liability to the Customer if access is denied or necessary arrangement(s) are not made or it is not technically or commercially feasible to install the required facilities to provide the Services.

 

6 Equipment
6.1 Console Connect will endeavour to deliver and install such Equipment as agreed with the Customer to the agreed installation site on the date determined by Console Connect or agreed with the Customer. The title to the Equipment delivered and/or installed shall remain with Console Connect and the risk of loss or damage shall be borne by the Customer.

6.2 The Customer must:
(a) provide a suitable place for the Equipment to be installed;
(b) provide proper and adequate lighting, air- conditioning, fire protection, approved power supply, approved wiring and any other special requirements as informed by Console Connect;
(c) obtain any consents required for the installation and connection of the Equipment;
(d) provide safe conditions for the installation of the
Equipment;
(e) not misuse the Equipment and will follow any directions from Console Connect and the manufacturer regarding the use of the Equipment;
(f) leave the Equipment where it was installed and never interfere with the Equipment or any identifying marks or numbers on it unless authorised in writing by Console Connect;
(g) protect the Equipment from radio or electrical interference, abnormal environmental conditions and any other risks; and
(h) not use or allow others to use the Equipment for any purpose other than that for which the Equipment was provided.

6.3 (a) Any equipment which the Customer intends to connect to the Network must:
(i) be approved by Console Connect in writing prior to any connection, and (ii) comply with the technical standards as advised by Console Connect from time to time.
(b) At the time of application for any Services the Customer must provide all details regarding the equipment which it intends to connect to the Network. Console Connect may reject the application if the required information is not provided or in Console Connect’s reasonable view, the equipment does not comply with Console Connect’s technical standards.
(c) Console Connect may at any time disconnect the Customer’s equipment connected to the Network if:
(i) the equipment so connected is different from the details provided by the Customer;
(ii) there is any malfunction of the equipment; or
(iii) the Services to the Customer are terminated or discontinued for whatever reason.

6.4 For the sale and rental of Equipment, the following conditions shall apply:
(a) Equipment is for the sole use of the Customer and in connection with the Service. The Equipment is not for resale or for use with other services or products.
(b) Equipment sold (excluding consumables) will be warranted to be free from defect in workmanship and material under normal use and service for a period of
90 days from the date of purchase (“Warranty”). During the warranty period, Console Connect will at its own option and cost replace and repair the Equipment or any parts of the Equipment except replacements and repairs caused by any of the events set out in paragraph (d).
(c) During the rental period of Equipment, Console Connect will at its own option and cost replace and repair the Equipment or any parts of the Equipment except replacements and repairs caused by any of the events set out in paragraph (d).
(d) Console Connect does not have any obligations to replace or repair any Equipment caused by: accident, negligence or improper use; modification, repair or alteration not authorised by Console Connect; removal or relocation of Equipment without the approval of Console Connect; or non-compliance of the environmental conditions for the installation of the Equipment.
(e) Console Connect has the right to terminate the rental or applicable Warranty if:
(i) any alteration, modification or repair is made to the Equipment without the authorisation of Console Connect;
(ii) the Equipment has been used in connection with any parts not approved by Console Connect;
(iii) the serial number on the Equipment has been
removed, defaced or altered; or
(iv) the Equipment is re-sold or transferred by the Customer without the written approval of Console Connect.
(f) Console Connect shall be entitled to charge the Customer repair or replacement cost and other testing or handling charges in respect of the Equipment or any part of the Equipment not covered by the Warranty.
(g) Risk of loss or damage to the Equipment shall pass to the Customer on installation. For sale of Equipment, title in the said Equipment shall not pass until full payment of the purchase price is received by Console Connect. Title shall not pass for Equipment on rental.
(h) The Customer shall provide suitable environment as instructed by Console Connect for installation of the Equipment.
(i) On termination or expiration of the rental period the Customer shall permit Console Connect to access the premises where the Equipment is installed to remove the Equipment.
(j) The rental period is more than and equal to 30 days, On expiration of the rental period, the Equipment on rental shall continue on a monthly
basis until otherwise terminated by either party by giving to the other no less than 30 days’ written notice or otherwise extended.
(k) The rental period equals to 2 hours or less than 30 days, on expiration of the rental period, the Equipment on rental shall continue on a daily basis until otherwise terminated by either party by giving to the other no less than 1 day’s written notice or otherwise extended.
(l) The rental period equals to 1 hour or less than 48 hours, on expiration of the rental period, the Equipment on rental shall continue on a daily basis until otherwise terminated by either party by giving to the other no less than 1 hour’s written notice or otherwise extended.

 

7 Charges for Services and Payments
7.1 All charges for Services will be as specified in the Application or the Service Offerings. Console Connect may amend any charges in the Service Offerings and may not necessarily inform the Customer prior to effecting any changes to the Service Offerings.

7.2 The Customer shall pay Console Connect the full amount of the charges for Services as specified in the statement from Console Connect without deduction or set-off. Charges for Services are exclusive of any applicable taxes, withholdings of any kind, surcharges, duties or other similar charges assessed or imposed by any competent governmental authority on, or in relation to the Service (“Taxes”) or any electricity charges or any third party charges. In addition to all other charges and amounts payable under the Contract, the Customer shall be solely responsible for payment of any Taxes. The Customer shall not deduct any Taxes from the charges payable to Console Connect. Electricity charges will be calculated according to Console Connect’s records and will be subject to upward adjustment from time to time according to rates published by electricity supplier.

7.3 Charges are payable from the date when the Service is ready for operation or connected except for charges which are based on usage. All periodical and rental charges are payable in advance.

7.4 Charges payable based on usage will be calculated by reference to the details of such usage as are recorded by Console Connect.

7.5 Where services of a third party is accessed using the Service, the Customer shall pay charges relating to the services of that third party to Console Connect on demand.

7.6 Unless otherwise stated by Console Connect, statements for charges payable will be rendered through electronic means in accordance with Console Connect’s normal billing cycle for the type of Service provided. Any such charges are due and payable by the Customer to Console Connect by the date or within the time specified in the relevant statement from Console Connect. Statements for Taxes payable by the Customer will be rendered by Console Connect from time to time upon its receipt of request or notice from the competent governmental authority. Charges for Taxes are due and payable by the Customer to Console Connect by the date or within the time specified in the relevant statement from Console Connect. The Customer shall be solely responsible for any late payment interest or penalty charges imposed by the relevant governmental authority if it fails to make payment on or before the payment due date as specified in the relevant statement.

7.7 If the Customer has paid an amount of charges in advance and that the amount is less than the amount of charges payable for that period (including the effect of variation to charges during a period), the Customer shall pay to Console Connect for the difference between the amount paid in advance and the amount of charges so payable.

7.8 Notwithstanding the foregoing Console Connect may at any time issue an interim statement for charges due at the date of issue requiring payment of those charges immediately or within a specified period, and on issue of such an interim statement or demand, those charges are so due and payable by the Customer to Console Connect.

7.9 Payment by cheque will be deemed to be unpaid until the cheque has been cleared and the Customer will be liable to Console Connect for any bank fees incurred for dishonoured cheque.

7.10 Where any amount due by the Customer to Console Connect in respect of charges payable remains unpaid on the date on which it is due, without prejudicing any other remedies available to Console Connect, all charges payable by the Customer under the Customer’s account(s) with Console Connect shall become due immediately and payable by the Customer on demand and Console Connect shall have the right to suspend all other Services subscribed under the Customer’s account(s).

7.11 The Customer will continue to be responsible for all charges for the Service between the time of suspension and the actual termination of the Service.

7.12 Where the total charges payable in any account rendered do not amount to a multiple of 5 cents, the total charges may be rounded down to the nearest 5 cent multiple. The Customer will not be liable for the difference between the total charges and the total charges which have been rounded down, which difference will be withdrawn.

7.13 If there is any dispute relating to the charges for Services, the records of Console Connect will be conclusive evidence of the charges payable by the Customer. Any disputes must be raised with DCCONNECT within 15 days of receipt of the statement.

7.14 The Customer shall pay for all charges for Services on or before the payment due date set out in the relevant statement of account from Console Connect.

7.15 Unless otherwise agreed, Console Connect will provide consolidated account for all Services provided by Console Connect and charges under consolidated account will be collected by Console Connect using one of the payment methods chosen by the Customer.

 

8 Security for Payment of Charges
8.1 At any time Console Connect may require the Customer:
(a) to provide a security deposit for charges incurred or will be incurred for the Service; or
(b) to pay in advance the whole or part of the charges which will be or may be estimated to be incurred for the Service.

8.2 The receipt by Console Connect of such a security or advance payment will not relieve the Customer from compliance with the Contract as to payment of periodical charges in advance, nor constitute a waiver or modification of the terms and conditions of the Contract for the suspension or termination of a Service for non-payment of any charges.

8.3 If the Customer has provided security or paid charges in advance, the Customer is entitled on termination of the Service to the release or refund of any security or any advance not required to cover charges outstanding at the time of termination provided the Customer submits its request in writing to Console Connect within six (6) months of the termination of Service.

8.4 Security or advance payment made by the Customer is not risk free. In the unlikely event that Console Connect goes into liquidation, there is no guarantee that Customer will receive refund of any security or advance payment, the rights for the Customer to get refund will be subject to the relevant laws and regulations governing liquidation of companies in Hong Kong.

 

9 Cancellation of Application
9.1 The Customer is not allowed to cancel a Service before the contract expires for any reasons.

 

10 Suspension or Restriction of Service
Console Connect may suspend or restrict a Service at any time without notice for any period as it sees fit without being liable to the Customer or any third party for any loss or damage whatsoever resulting from or in connection with the suspension or restriction of the Service:
(a) in an emergency or when Console Connect considers it necessary in order to safeguard provision of Services or the Network;
(b) while payment of charges for the Services is
overdue;
(c) if Console Connect is unable to locate the Customer at the address notified by the Customer and has reason to believe that the Customer is no longer residing at that address;
(d) if in the reasonable opinion of Console Connect there is, has been or may be unauthorised or fraudulent use of the Service;
(e) if the Customer becomes bankrupt or insolvent or enters into a scheme of arrangement or composition with the Customer’s creditors or, being a company, is placed in receivership or under official management or has a provisional liquidator appointed;
(f) if the Customer is in breach of the Contract;
(g) if in the reasonable opinion of Console Connect the
use of the Service or Equipment by the Customer is causing or may potentially cause damage or any interference to the Network or Equipment or inconvenience to other Customers of Console Connect; (h) to carry out routine maintenance to the Network; (i) if the Customer has incurred charges for the Service which has exceeded the credit limit allowable by Console Connect irrespective of whether such credit limit has been communicated to the Customer; or
(j) if Console Connect is obliged to comply with a direction or request of the CA or other competent government authorities the related to service subscribed.

 

11 Personal Data
11.1 The Customer must notify Console Connect promptly of any change of address or any particulars provided to Console Connect which may affect the provision of Services to the Customer.

11.2 In circumstances where Console Connect has obtained from the Customer Personal Data concerning payment instructions for charges due on the Customer’s account, Console Connect may use the said Personal Data to collect all payments due on the Customer’s account for all Services subscribed to by the Customer, including those Services subscribed to by the Customer after the provision of the said Personal Data by the Customer to Console Connect.

 

12 Exclusions and Limitation of Liability
12.1 To the extent allowed by law, the liability of Console Connect whether arising from a breach of contract or negligence on the part of Console Connect or the employees or agents or contractors or suppliers (including suppliers of the Services or parts of the Services) will be limited to the supply or resupply of the Services, as the case may be or theapplicable service level rebates or credits. In any event, the maximum liability of Console Connect shall not exceed the total amount received by Console Connect for the Services during the 3 months period prior to when such claim arose.

12.2 Under no circumstances will Console Connect, its employees, agents or contractors or suppliers (including suppliers of the Services or parts of the Services) be liable in any way whatsoever to the Customer or any other person for any special, indirect or consequential loss or damage, loss of profit, business, revenue, goodwill, use of data or anticipated savings.

12.3 If Console Connect fails to meet any service level agreed with the Customer applicable to the Services, Console Connect’s liability shall be limited to the applicable service level rebates or credits agreed with the Customer.

12.4 Console Connect will not be liable to the Customer or any person claiming through the Customer for any defaults caused by an event beyond the reasonable control of Console Connect including any repair required for any fault in the Service due to natural disaster; change in government policy and regulations or act of government, misuse or unauthorised use of Services by the Customer or any third party; the Customer’s provided equipment; or abnormal environment conditions.

 

13 General Provisions
13.1 The Contract represents the entire understanding between Console Connect and the Customer relating to the Services and there are no promises, terms, conditions or obligations, oral or written, expressed or implied, other than those contained in the Contract.

13.2 Each of the provisions of the Conditions is severable and distinct from the others and, if one or more of such provisions is or becomes illegal, invalid or unenforceable, the remaining provisions will not be affected in any way.

13.3 The Contract and any transactions contemplated by the Contract are governed by the law in force in Hong Kong and each party submits to the exclusive jurisdiction of the courts of Hong Kong for determining any disputes concerning the Contract and any transactions contemplated by the Contract.

13.4 The Conditions and the Service Offerings may be translated into Chinese. If there is any inconsistency or conflict between the English version and the Chinese version, or conflict to the act of government or its conditions the English version shall prevail, to the extent of such inconsistency or conflict.

13.5 Any statements, notices or communication by Console Connect to the Customer shall be sufficiently given to the Customer if addressed to the Customer at the address notified to Console Connect by the Customer, by post or email and shall be deemed to have been given and received on the day on which such communication ought to have been received in the ordinary course of such transmission or delivery.

13.6 The Customer shall not assign or transfer any or all of its rights and obligations under the Contract to any third party. Console Connect may at any time assign or transfer any or all of its rights and obligations under the Contract to any person without the Customer’s agreement.

13.7 No delay, neglect or forbearance on the part of Console Connect in enforcing against the Customer any term or condition of the Contract shall either be or be deemed to be a waiver or in any way prejudice any right of Console Connect under the Contract.

13.8 Termination of a Service or the Contract does not operate as a waiver of any breach by a party of any of its provisions and is without prejudice to any rights, liabilities or obligations of any party which have accrued up to the date of termination, including without limitation an obligation to pay any accrued charges.

13.9 These Conditions may be amended from time to time by Console Connect. Such amendments shall become effective when published, advertised or notified to the Customer by such means as Console Connect thinks fit and shall be binding on the Customer if the Customer continues to use any of the Services after the effective date thereof. For the most up-to-date version of these Conditions, the Customer may access Console Connect’s official website https://www.consoleconnect.com/legal/msa-terms-and-conditions/ .

 

14 Third Party Rights
The Contracts (Rights of Third Parties) Ordinance (Cap.623) shall not apply to the Contract. For clarity, a person who is not a party to the Contract shall have no right to enforce the Contract.