1.      The Service

(a) Console Connect will provide the EDGEIX Remote Peering Service (“Service”) in accordance with the specifications set out in the Console Connect IX Remote Peering Application Form accepted by Console Connect and the terms set out in these Terms and Conditions.

(b) The Service is a multi-lateral private IP transit and Ethernet switching device delivered over an Ethernet port at a location specified by you in the relevant Order Form that permits you to transmit and receive packets from EDGEIX and/or Console Connect or from EDGEIX’s and/or Console Connect’s other customers who participate in the Internet Exchange.

(c) The Customer expressly acknowledges and agrees that: (i) Console Connect is not a content provider or host and does not have knowledge or control of data or information accessed or made available through use of the Service and cannot in any way supervise, edit or control the content and form of any information or data passing or accessed through the Service; and (ii) Console Connect shall not be held responsible in any way for any content or information passing through or accessed via the Service.

2.      Customer Obligations

(a)         The Customer shall ensure compliance with all terms in these Terms and Conditions, the Agreement and the relevant Order Form binding upon the Customer.

(b)         The Customer shall:

1. 1. (i) adhere to EDGEIX’s and/or Console Connect’s operational procedures and technical specifications and any other reasonable directions given by EDGEIX and/or Console Connect in relation to a Service from time to time;
   2. not publish any material comparing the Service provided by Console Connect with any other similar suppliers;
   3. not do any act which damages the reputation of Console Connect and/or EDGEIX;
   4. not make any representation or give any warranty in relation to the Service that is in consistent with written materials supplied by Console Connect and/or EDGEIX;
   5. provide Console Connect and/or EDGEIX with all information, assistance and co-operation reasonably requested by Console Connect and/or EDGEIX in writing in order for Console Connect and/or EDGEIX to supply a Service;
   6. ensure that all equipment that the Customer connect to the EDGEIX Network is appropriate, adequately maintained and meets minimum technical standards determined by the Australian Communications Authority;
   7. not represent expressly or by omission or implication that the Customer is an agent of, Console Connect;
   8. not use any common law or registered trademarks of Console Connect, its affiliate(s) or its Supplier in promoting or resupplying the Services, other than as approved by Console Connect from time to time;
   9. not offer or supply, or purport to offer or supply, any other services of EDGEIX that are not included in the Service;
   10. use EDGEIX and/or Console Connect (or its Supplier, as relevant) website(s) and Software solely to further activity under the Agreement and take all reasonable steps as required by EDGEIX and/or Console Connect in writing to safeguard EDGEIX and/or Console Connect password protected website(s) and Software from unauthorised use;
   11. take full responsibility for actions of your employees and agents in marketing, promoting and soliciting applications for, and sales of, the Service, and assume full responsibility for training your employees (except that training provided by EDGEIX and/or Console Connect and its supplier) and agents;
   12. procure Console Connect and/or its supplier(s) with reasonable and free access to the relevant premises if reasonably required for Console Connect and/or its supplier(s) to repair or restore the Service or the EDGEIX Network or in order for Console Connect to perform its obligations and rights under these terms and conditions.

(c)          The Customer shall also:

1. 1. 1. connect to the equipment to the Port at the Customer’s own cost;
      2. ensure the Customer’s equipment to send Ethernet frames originating from no more than two MAC addresses (Customer MAC Addresses);
      3. ensure the Customer’s equipment not to transmit traffic of the following types over the Port:
         (A) Proxy ARP;
         (B) ICMP redirect;
         (C) Link local level protocols;
         (D) Directed broadcasts; or
         (E) Unsolicited default route traffic to another participant in the Internet Exchange.
      4. possess a globally routable public autonomous system number (AS);
      5. possess globally routable portable IPv4 and IPv6 address space (IP Space) of no lessthan a 24-bit CIDR bitmask;
      6. (vi) advise Console Connect in writing the Customer MAC Addresses, AS and IP Space in a manner and form as defined by EDGEIX and/or Console Connect from time to time before the Customer begin to use the Service;
      7. establish a BGP session with Our Route Server.
      8. adhere to EDGEIX peering policy, which is published on https://www.edgeix.net/allowed-traffic, as amended from time to time.

(d)           The Customer shall comply with all Relevant Law(s) and Regulation(s) applicable to the Customer and the requirements binding on the Customer in relation to use of the Service as set out in these Terms and Conditions.

(e)           The Customer shall secure and maintain all necessary licences, authorities, consents and permits (collectively, the “Licence”) as may be required by applicable law in the performance of its obligations hereunder. The Customer shall indemnify Console Connect against all losses, expenses, costs, claims or demands resulting directly or indirectly from any breach of this clause. The limitation of liability provisions in the Agreement shall not apply to the indemnity obligations under this clause notwithstanding anything to the contrary contained in these Terms and Conditions or the Agreement itself.

(f)           The Customer shall be liable for any third party claims for loss or damages arising from or caused by the gross negligence, omission, fraud or wilful misconduct of the Customer.

(g)            The Customer shall comply, and shall ensure the Customer’s collaborators and their respective contractors, Customer’s customers, clients, officers, directors, collaborators, employees, representatives, licensees, agents, or invitees comply, with all safety rules and regulations communicated to the Customer in writing, from time to time.

(h)            The Customer shall indemnify Console Connect from any claims, losses, or expenses (including reasonable attorneys’ fees) arising from third party claims relating to or arising out of or in connection with a breach of these Terms and Conditions and/or Order Form (as the case may be) by the Customer and/or its officers, employees, duly authorized agents or representatives.

(i)            The aggregate liability of EDGEIX and its Related Body Corporate for all loss arising out of or otherwise in connection with the Service(s) is limited to the total fees paid by the Customer for the affected Service(s) in the 12 months preceding the relevant cause of action accruing or, if there are more than one, the last cause of action accruing.

(j)             In the event the Customer wishes to terminate the Service before the Minimum Contract Period expires, Customer shall notify Console Connect in writing and the Customer shall be liable for all Charges payable to Console Connect for the unexpired months of the Minimum Contract Period, as specified in the relevant Order Form (the “Cancellation Charge”). The Parties agree that the Cancellation Charge is an agreed reasonable pre-estimate of the anticipated losses suffered by Console Connect if the Service is terminated before the Minimum Contract Period ends.

(k)            Console Connect shall bill for the Service according to its billing cycle. The due date for payment shall be thirty (30) days from the date of the invoice. The Customer shall pay the invoice by the due date, failing which Console Connect shall be entitled to charge interest at the rate of 1% per month, from the due date to the date of full payment.

 

3.      Suspension and Termination

(a)        (a) Console Connect may immediately suspend the Service to the Customer or terminate the relevant Order Form or the Agreement without any liability whatsoever in any of the following events:

1. 1. 1. If the Customer violates any Relevant Law(s) or Regulation(s);
      2. If the Customer violates these Terms and Conditions (aside from a violation of a Relevant Law or Regulation) and the violation is not remedied by the Customer within fourteen (14) Calendar Days after receipt of a written default notice from Console Connect or such further period of time mutually agreed by the Parties in writing;
      3. If the Customer’s use of the Service is in a manner which is unauthorized, fraudulent, illegal, immoral, defamatory, discriminatory or in breach of applicable laws, rules, regulations, any orders or directives of government/ authority having jurisdiction;
      4. Console Connect receives a written notice from EDGEIX that EDGEIX reasonably believes it is necessary to suspend or terminate the Service to comply with any law or order or request of any government or regulatory body to protect any person, equipment or the EDGEIX Network and/or to attend to any emergency;
      5. EDGEIX and/or Console Connect Is unable to supply, or continue to supply, the Customer with the Service due to the cancellation, suspension or termination of any agreement with its suppliers, for whatever reason; or
      6. EDGEIX and/or Console Connect is unable to supply, the Customer with the Service due to geographical coverage, capacity or technical capability limitations.

(b)        Console Connect may, at its absolute discretion, and without terminating the Agreement and without incurring any liability, (i) order the Customer to suspend and restrict, the access of all or any of the Service to any person; or (ii) by its own means, suspend and restrict access to the Service (in whole or in part) provided to the Customer if:

1. 1. 1. the Customer fails to make any undisputed amounts due to Console Connect punctually by the applicable due date and fails to make such payment within seven (7) Calendar Days of being advised by Console Connect in writing;
      2. Console Connect is required to reduce and prevent fraud or interference within its own network or the network of its third party supplier(s) upon giving reasonable prior written notice to the Customer; or
      3. (iii) Console Connect or its third party supplier of the Service needs to carry out planned or unplanned maintenance, repair a fault, upgrade any equipment or facility forming part of its network or in any Service Infrastructure upon giving reasonable prior written notice to the Customer.

(c)        Nothing shall prevent Console Connect to terminate these Terms and Conditions or the Agreement without any liability if there is any suspension of the Service.

(d)        If the Agreement is terminated by Console Connect pursuant to clause 3 before the Minmium Contract Period, the Customer is liable to Console Connect for the Cancellation Charge. The Parties agree that the Cancellation Charge is an agreed reasonable pre-estimate of the anticipated losses suffered by Console Connect if the Service is terminated before the Minimum Contract Period ends.

4.     Intellectual Property

(a)        The Customer shall not use the name, any trademark, service mark, brand name, copyright, patent, or any other Intellectual Property Rights of EDGEIX in any way or for any purpose without the prior written consent of Console Connect.

(b)        The Customer shall indemnify Console Connect from any against any and all loss, costs and expenses (including reasonable legal costs and expenses) arising from any claims by third parties caused by the Customer’s infringement of any Intellectual Property Rights of EDGEIX or any other third party.

5.     Sanctions Compliance

(a)        Console Connect may, at its sole discretion, immediately terminate the connection(s) for a Customer or any user of the Service whose name is listed on the lists of persons and entities subject to Target Financial Sanctions under the United Nations Sanctions Ordinace (Cap. 537) and its subsidiary legislations.

6.      Definitions

Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement.

a.            Agreement means the master services agreement and/or other general terms and conditions agreed between the Customer and Console Connect, including the Specific Terms and Order Form relating to the Service.

b.            Customer means any person, firm or company to whom Console Connect provides the Service.

c.           Calendar Days means days including any business day from Monday to Friday and all Saturdays, Sundays, public holidays and local bank holidays.

d.            EDGEIX means EdgeIX Pty Ltd (ACN 630 112 079).

e.            EDGEIX means the telecommunications network used by EDGEIX to provide the Services.

f.             Intellectual Property Rights mean any patent, trade mark or name, service mark, business or company name, registered design, copyright, design right, know-how, confidential information or any other similar right exercisable in any part of the universe and shall include any rights to registration of such rights, whether existing in Australia or otherwise.

g.              Minimum Contract Period means the fixed period during which the Customer agrees to pay for the Service and as used herein, refers to both the initial term of an Order Form and any renewal term of the same Order Form.

h.             Regulation(s), mean any legislation, regulations or other administrative orders governing the provision of telecommunications services applicable in the jurisdiction in which the Service is being provided.

i.             Related Body Corporatehas the meaning given in section 9 of the Corporations Act 2001 (Cth).

j.             Relevant Law means any ordinance, law, rule or regulation applicable in and outside of Australia which are applicable to EDGEIX, Console Connect, the Customer or the Customer’s equipment used to receive or use the Service and the Service Infrastructure.

k.              “Service Infrastructure” means all items provided by Console Connect or its third party supplier to the Customer in order to provide the Service under Order Form.