Standard Form Of Agreement

1. General Terms – Part One

1.1. The Contract

1.1.1.  This Contract

Each contract with us is made up of:

a)       the Accepted Quotation signed, or accepted online by your authorised representative,

b)       the General Terms (Part One),

c)       the relevant Service Schedule (Part Two), and

d)       the relevant Service Level Agreement, if any (Part Three).

1.1.2. How long does this contract last?

This contract begins on the date the Accepted Quotation is accepted by us and will continue:

a)       until the end of the minimum period; or

b)       until it is terminated in accordance with clause 1.11; or

c)       where the minimum period has ended and you have continued to use the service in accordance with clause 1.1.3, on a month-to-month basis and thereafter until it is terminated in accordance with clause 1.11.

1.1.3.What will happen at the end of a contract?

a)      If neither you nor us cancels the contract at the end of the contract period we will continue to supply you the service on a month-to-month basis.

b)      If you do not wish to continue to use the service on a month-to-month basis after the end of the contract period, you must cancel the contract in accordance with clause 1.11 at least 30 days prior to the end of the contract period.

c)      If we will not continue to provide the service to you at the end of the contract period we will inform you of this at least 30 days prior to the end of the contract period.

1.1.4.How can we change anything in this contract?

We cannot make any changes to this contract that are to your detriment unless we:

a)      are required to by law; or

b)      provide you with written notice detailing the change we are proposing and a period of at least 30 days in which to terminate the contract, on 30 days notice, without incurring any additional termination costs or charges.

1.1.5.How can you change anything in this contract?

You can make changes to this contract by requesting a variation or modification in writing. We  will accept the variation or modification at our absolute discretion. If any additional charges will be incurred as a result of the requested variation or modification we will advise you, and if accepted you will be liable for the new charges

1.2. Your Application For The Supply Of This Service

1.2.1.The Service

The Service that you have selected is detailed in the Accepted Quotation

1.2.2.Can we refuse your application?

Your application can be rejected if:

a)      your credit status is not acceptable to us;

b)      you have amended any of part of the Standard Form of Agreement without our consent;

c)      another supplier changes the terms offered to us that we based your quotation on;

d)      you provide incorrect or false information to us;

e)      we withdraw our offer for any reason.

1.2.3.How we deal with personal information

We will only collect, use and disclose personal information that is reasonably necessary to provide the service. You may at any time contact us to access and if required correct any stored personal information. Any complaints about our use of personal information should be addressed to [email protected]. Any complaints that can’t be resolved by us can be referred to the Office of the Federal Privacy Commissioner.

1.3. Using The Service

1.3.1.When will we deliver the Service?

We will use all reasonable endeavours to meet the estimated delivery date on the Accepted Quotation but we do not represent or warrant that we will deliver the Service by this date. We shall not be liable for any delay in installation and time for delivery of the Service shall not be of the essence unless previously agreed by us in writing.

1.3.2.When does the minimum term commence?

The minimum term commences on delivery of the Service. The Service is deemed to have been delivered on the date that we notify you that it is Ready For Service (RFS) or the date you commence using the Service, whichever is earlier.

1.3.3.Quality of the Service

We will provide the Service to you with due care and skill. In the event of unexpected faults outside our control we will restore the Service as soon as possible. You acknowledge that we make no warranty in relation to the performance or characteristics of any website or software supplied in connection with the Service.

1.4. Equipment

1.4.1.Your Equipment

You must ensure that all equipment you use in connection with the Service, and the way you use that equipment, complies with all laws, as well as directions by a regulator and reasonable directions by us.  If you do not do so, we may disconnect that equipment from the Service or remove the equipment in question from the rack. We will try to give you reasonable notice before disconnection but may do so immediately in an emergency.

1.4.2.Lost, stolen or damaged equipment

You will be responsible for the repair or replacement costs of our equipment that is lost, stolen or damaged while on loan to you, excepting any fair wear and tear.

1.5. Charges

1.5.1.What are the charges for using the Service?

You agree to pay all charges incurred in respect of the service. You agree that you will pay the charges and make payments in conformity with the rates and charges as set out in the Accepted Quotation. Where a minimum usage based charge is detailed in the Accepted Quotation the minimum amount will apply even if you have incurred lower usage based charges or no usage based charges in that billing period.  At any time after the expiry of the contract period for a Service, we may on at least 30 days written notice vary the charges for that Service

1.5.2.Additional Charges

You acknowledge that the charges in the Accepted Quotation are based on the information that you have provided to us.  If any of that information is inaccurate, or anything unforeseen occurs (other than as a result of our negligence), you will pay us an amount equivalent to any additional costs and expenses incurred by us.

1.5.3.Other Charges

If you do not pay a bill by its due date, we reserve the right to:

a)      charge you interest at the rate of 3% above the prevailing base rate charged by our current bank on overdue charges from the due date until paid;

b)      all reasonable expenses incurred by us (including reasonable legal costs and expenses and the fees of our debt recovery agents) in relation to recovering payments due;

c)      charge you an equal amount to recoup any bank or financial institution fees incurred because your cheque, credit card payment or direct debit is not honoured.

1.6. Payment

1.6.1.How will we bill you?

Invoices will be provided to you monthly in electronic form via email. You must provide a current email address for this purpose and keep us informed of any changes to such email address.

1.6.2.What will we bill you?

Unless otherwise agreed in the Accepted Quotation we will invoice you monthly in arrears for usage-based charges; and monthly in advance for installation charges, recurring charges and all other charges.  We will not bill you for any charges that are older than 180 days from the date the charge was incurred by you.

1.6.3.When must you pay your bill?

Unless otherwise agreed in the Accepted Quotation you must pay all invoices within 14 days of the date of the invoice.

1.6.4.What Payment method can you use?

Unless otherwise agreed in writing by us you must pay your bill by direct debit.

1.6.5.How can I dispute an invoice?

To dispute an invoice in good faith, you must notify us in writing. This notice must include the detailed reasons for the dispute, and must be issued within 30 days of the invoice date.  If you have notified us of your dispute by the due date for payment, you may withhold only the disputed amounts of the invoice. If you fail to notify us by the due date you must pay all sums due in full.  We will use reasonable endeavours to resolve any such dispute quickly and efficiently.  Where a dispute is determined to be baseless, you must pay us the amount withheld within 7 days of such determination; or where a dispute is determined to be founded and you have already paid the disputed amount, we must refund the relevant amount within 7 days of such determination.

1.6.6.What happens if you don’t pay your bills?

Except for any billing disputes you have with us, if you do not pay your bill on the due date we reserve the right to:

a)      charge additional fees as detailed in clause 1.5.3; and

b)      take any additional actions as allowed under this contract, including but not limited to suspension or termination.

1.6.7.GST and other taxes

Unless otherwise expressly noted, all charges for the Services are exclusive of GST.

You will pay to us at the same time when any part of the charges for the Service is payable, an amount equal to any GST payable on supply of that Service. We will issue a tax invoice to you for any supply on which GST is imposed. If any additional tariffs become payable by us in relation to or in connection with this contract we will charge an additional amount equal to the amount of the tariffs payable.

1.7. Credit Approval

1.7.1.When may we require credit approval?

Credit approval is required:

a)      for all new customers;

b)      for material increases in monthly billing, and

c)      from time to time to ensure we are satisfied with your credit rating.

To assess your credit rating, you consent to us disclosing to a credit reporting agency personal information relating to you in our possession. If we require additional information from you to properly assess your credit rating you must supply this requested information.

1.8. Security Deposit

1.8.1.When may we require a security deposit?

If we are at any time not satisfied with your credit rating, we may require a security deposit, or an addition to your existing security deposit to limit our financial risk under this contract.  If we require a security deposit you must provide the security deposit within 14 days of the date of our request. The value of the security deposit must be equivalent to the amount we reasonably believe is necessary to secure our exposure under this contract.

1.8.2.How can we utilise the security deposit?

We may utilise your security deposit to recover any amounts payable by you to us under this contract or we may compensate ourselves for any loss, liability or expense suffered or incurred by us as a result of any breach of this contract by you.

1.9. Rebates

1.9.1.When are you entitled to a rebate?

Where your Service has a Service Level Agreement and a Service Level Rebate and we fail to achieve the relevant service levels in any one month, you will be entitled to a rebate calculated in accordance with the relevant Service Level Agreement.

1.9.2.How do I claim a rebate?

In order to claim a rebate, you must lodge a written claim detailing the alleged incident that gives rise to your claim. We must receive the written claim within 14 days of the alleged incident.

1.9.3.How is the outage time measured?

Outage time is measured as detailed in the relevant Service Level Agreement.

1.9.4.When am I not entitled to a rebate?

You are not entitled to a rebate when:

a)      your Service does not have a Service Level Rebate;

b)      we achieve the relevant Service levels in any one month;

c)      you have any undisputed overdue payments outstanding with us; and

d)      failure to achieve the Service levels is caused directly or indirectly by, or arises from or in connection with:

i.        a continuing event that is reasonably out of our control; for example, earthquake, explosion, natural disaster, sabotage or war;

ii.       any act or omission by you or your agents, employees or contractors

iii.      your equipment; or

iv.     a suspension of the Service, allowed under this contract.

1.10. Complaints and Disputes

1.10.1.What to do if you have a complaint

If you have any complaints in connection with your Service (including complaints about your bill) you should contact us first to resolve the complaint. If the complaint is not resolved to your satisfaction you can take your complaint to the Telecommunications Industry Ombudsman if the complaint relates to a Telecommunications service or the Department of Fair Trading for all other complaints.

1.11. Cancelling the Service

1.11.1.Your rights to cancel the contract

In some circumstances you may cancel your Service without incurring any additional charges.

a)      You may cancel your contract immediately if:

i)        We breach an essential clause of this contract which isn’t resolved within 30 days of you requesting us to do so in writing or which is unable to be resolved;

ii)      We become unable to pay our debts when due;

iii)     Your service has been suspended for 14 days, where there is no fault on your part.

d)      You may cancel your Service by giving us 30 days notice if:

i)        The minimum period on the Accepted Quotation has ended and you have continued to use the Service.

In addition to these rights you have a general right to cancel the Service at any time, at your convenience. However if you do so a cancellation fee will apply. The cancellation fee will be calculated by multiplying the monthly charges payable by you under this contract by the remaining months (or part thereof) of the minimum term.

1.11.2.What do you need to do to cancel the service?

You can cancel the Service by writing to us. This letter will be a notice to cancel the Service and will be effective on the date we receive the request.

1.11.3.Our right to cancel the Service

In accordance with clause 1.1.3 we may cancel your Service at the end of the contract period by informing you at least 30 days before the termination date. In this case, termination will be effective at the end of the minimum contract period as specified in the Accepted Quotation.  In addition we may cancel your Service in the following circumstances:

a)      Immediately if:

i)        we reasonably suspect fraud by you or anyone using the Service;

ii)      we are required to cancel the Service to comply with a law enforcement agency, or a regulatory authority;

iii)     you have failed to make a payment by the due date and you fail to make such payment within 5 business days of receipt of a notice requiring you to do so, except where an amount is permitted to be withheld pursuant to a billing dispute;

iv)     you have failed to provide the security requested;

v)      you fail to comply with a statutory demand issued by us under the Corporations Law;

vi)     we determine that the you are in breach of the confidentiality provisions of this contract;

vii)    you become insolvent, bankrupt or unable to pay your debts when due;

viii)  you breach an essential clause of this or any contract with us which isn’t resolved within 14 days of us requesting you to do so in writing or which is unable to be resolved;

b)      By giving you 30 days notice if:

i)        The minimum period on the Accepted Quotation has ended and we have continued to supply the Service;

ii)      we are unable to supply the Service to you because a supplier has terminated its agreement with us and we cannot provide the Service to you by using an alternative supplier;

iii)     we are unable to supply the Service to you because of an continuing event that is reasonably out of our control; for example, earthquake, explosion, natural disaster, sabotage or war.

1.11.4.Information contained in a notice to cancel the Service

If we cancel the Service, the written notice will contain:

a)      The effective date on which cancellation takes effect;

b)      the reasons for the cancellation;

c)      details of all charges for the use of the Service up to the date of cancellation;

d)      how these charges are calculated;

e)      when the charges are due;

f)        details of any applicable refunds or rebates and how these refunds or rebates are calculated;

g)      Details of any cancellation fee and how it is calculated.

1.11.5.What happens when the Service is cancelled?

Where the Service is cancelled:

a)      you will not be able to use the Service after the cancellation date;

b)      subject to any disputes you have with us, you agree to pay for any charges for your use of the Service until the cancellation date;

c)      any credits on your account will be applied to pay for any undisputed, outstanding charges at the cancellation date;

d)      we will refund to you any used portion of any security deposits held by us;

e)      we will refund to you any money that you have paid in advance for that part of the Service that is being cancelled on a pro-rata basis;

f)        you will return our equipment to us within 30 days;

g)      if you cancel the contract before the end of the contract period, except where cancellation occurs in the circumstances set out in clause 1.11.1, you will have to pay the cancellation fee set out in that clause;

h)      if we cancel the Service before the end of the contract period pursuant to clause 1.11.3 a, you will have to pay the cancellation fee set out in clause 1.11.1.

1.12.Suspending the Service

1.12.1.Our right to suspend the Service

We may suspend your service by giving you reasonable prior notice where:

a)      It is necessary to do so to maintain or restore any part of the network;

b)      we reasonably suspect fraud by you or anyone using the Service;

c)      we are required to suspend the Service to comply with a law enforcement agency, or a regulatory authority;

d)      you have failed to make a payment by the due date and you fail to make such payment within 5 business days of receipt of a notice requiring you to do so, except where an amount is permitted to be withheld pursuant to a billing dispute;

e)      you have failed to provide a security deposit as requested;

f)        you fail to comply with a statutory demand issued by us under the Corporations Law;

g)      we determine that the you are in breach of the confidentiality provisions of this contract;

h)      we are temporarily unable to supply the Service to you because a supplier has temporarily withdrawn its service from us;

i)        we are temporarily unable to supply the Service to you because of an continuing event that is reasonably out of our control; for example, earthquake, explosion, natural disaster, sabotage or war;

j)         you breach an essential clause of this contract or any other contract with XXXX .

We will only suspend your Service for a period that is reasonable in the circumstances.  A reasonable period of suspension means a period that does not exceed that which is necessary to give effect to the demands of law enforcement agencies and other circumstances.

1.12.2.Information contained in a notice to suspend the Service

If we suspend the Service, the notice that we give you will contain all the relevant information including the dates on which the suspension will take effect and the reasons for the suspension.

1.12.3.What happens when a Service is suspended?

When the Service is suspended:

a)      you will not be able to use the service;

b)      you will be liable to us for any charges for access to or use of the Service during the period of suspension; except where the suspension was a result of an event that was reasonably out of your control.

1.13. Liability

1.13.1.Your liability to us

You are liable to us for:

a)      all charges for the use of your Service; and

b)      any damage to our property caused by the fault or negligence of you or your People during installation, repair or maintenance;

1.13.2.Our Liability to you

We have responsibilities and obligations under the Telecommunications Act, the Trade Practices Act and other laws. Nothing in this contract limits or removes these rights where it would be illegal to do so. We exclude all conditions and warranties implied into the contract and limit our liability for any non-excludable conditions and warranties, where permitted to do so by law, to (at our option):

a)      repairing or replacing the relevant goods;

b)      resupplying the relevant or equivalent services; or

c)      in either case, paying you the cost of doing so.

We are also liable to you for:

a)      interruptions in your use of the service as a result of a fault or negligence of us and our People to the extent of a rebate as detailed in the relevant Service Level Agreement. Your entitlement to a rebate is your sole and exclusive remedy for any interruption to your Service and for our acts or omissions leading up to the rebate;

b)      death or personal injury caused by us or our People

1.13.3.We are not liable to you for

We are not liable to you for consequential loss, including but not limited to;

a)      indirect loss, loss of profits of any kind;

b)      loss or corruption of data;

c)      interruption to business;

d)      loss of customers or customer losses;

e)      loss of revenue and economic loss of any kind.

1.13.4.Limits to our Liability

To the extent permitted by law, our total liability to you in any 12 month period in respect of all claims in arising out of or connection with this contract will not in any circumstances exceed the lesser of:

a)      the total amount paid by you to us under this contract in the preceding 12 month period; and

b)      $1 million.

Without limiting the liability cap, our liability for your loss under or in connection with the contract or the Service is reduced to the extent that your acts or omissions or your equipment (or the acts, omissions or equipment of a third person, including a supplier) cause or contribute to that loss.

1.14. Indemnity

1.14.1.You are liable and will indemnify us against

You are liable and will indemnify us against all loss arising from or in relation to:

a)      a claim against us arising out of the death of or personal injury to our People, to the extent that such damage or loss is caused by a negligent act or omission, or an act or omission intended to cause death or personal injury, by you or any of your People;

b)      any damage to or loss of any equipment, network or other tangible property of ours or any third party to the extent that such loss is caused by a negligent act or omission, or an act or omission intended to cause loss, by you or any of your People;

c)      a claim by a third party against us to the extent that the claim relates to any negligent or wilful act or omission of you or any of your People in relation to this contract;

d)      all loss (including consequential and indirect loss or damage) arising from any breach by you or your People of clause 1.3.5;

e)      if we use an other supplier in providing the Services, you will indemnify us for all loss suffered by us as a result of a claim by you or a third party against the other supplier (excluding claims for death, personal injury or physical damage to tangible property) arising from or in connection with the supply or cessation of supply of the Services;

f)        you will indemnify us for all loss suffered by us as a result of a third party claim against us (excluding claims for death, personal injury or damage to tangible property) arising from or in connection with the supply or cessation of supply of the Services.

Without limiting any other term of this contract, you will release us from any and all loss to the extent that such loss or liability is caused by a negligent act or omission of you or any of your People.

1.15. End Users

1.15.1.What happens to my end users if I breach an essential clause of this contract?

In the event that we terminate a Service pursuant to clause 1.11.3 a) of this contract, and you are re-supplying the Service to an end user, you agree that we may contact the end user(s) affected by the termination to ensure the continued supply of the Services to that end user either directly or via an alternate wholesale customer of ours.

1.16. Confidentiality

1.16.1.Your confidentiality requirements

You agree to keep in confidence and not to use or disclose any of our confidential information.

You may only disclose confidential information to the extent necessary:

a)      to your legal advisers in relation to its rights under this Agreement;

b)      to your People;

c)      to abide by any law, binding directive of a regulator or a court order;

d)      to abide by the listing rules of any stock exchange on which its securities are listed

You acknowledge that a breach of this confidentiality clause may cause us irreparable damage for which monetary damages would not be an adequate remedy.  In addition to other remedies that may be available, we may seek and obtain injunctive relief against such a breach or threatened or suspected breach. Your obligations with respect to the confidential information survive termination of this contract. You must return our confidential information immediately upon request

1.16.2.Our confidentiality requirements

We agree to keep in confidence and not to use or disclose any of your confidential information.

We may only disclose confidential information to the extent necessary:

a)      to our legal advisers in relation to its rights under this agreement;

b)      to our People;

c)      to abide by any law, binding directive of a regulator or a court order;

d)      to abide by the listing rules of any stock exchange on which its securities are listed.

We acknowledge that a breach of this confidentiality clause may cause you irreparable damage for which monetary damages would not be an adequate remedy.  In addition to other remedies that may be available, you may seek and obtain injunctive relief against such a breach or threatened or suspected breach. Our obligations with respect to the confidential information survive termination of this contract. We must return your confidential information immediately upon request.  Nothing in this clause will prevent us disclosing any information to anyone undertaking due diligence enquiries or the like in relation to us, provided they are bound by confidentiality restrictions equal to the above.

1.17. Intellectual Property

1.17.1.Your intellectual property

We must not use your Intellectual Property without your prior written consent.

1.17.2.Our intellectual property

You acknowledge that our intellectual property and all goodwill associated with our intellectual property remains our sole property and no rights are conferred on you with respect to our intellectual property except as specifically expressed in this contract. Any intellectual property created in delivering the Service to you remains the sole property of us.

1.18. Other Important Information

1.18.1.Costs

Each party must pay its own costs in respect of this contract

1.18.2.Assignment

You may not assign, novate, mortgage, charge, sublicense or subcontract or otherwise delegate any of your obligations under this contract without our prior written consent (such consent not to be unreasonably withheld).  We may assign, novate or otherwise delegate all or any of our rights and obligations under this contract to a related body corporate or any other person or entity.

1.18.3.Network security

You are entirely responsible for implementing and maintaining the security of your network.  You will be liable to pay for any and all charges included on your bill that were incurred as a result of a breach of your network security including but not limited to where there is any unauthorised use of your network. Unauthorised use could include any use of your Services which is not authorised by you, use resulting from a viral infection of any computers or related equipment on your network, attacks from the internet, a denial of service attack, spam and misuse of your Services by third parties including your employees.

1.18.4.Compliance

Each party shall comply with all relevant local, State and Commonwealth laws and regulations and any registered industry-based codes of practice. Each party shall comply with the provisions of the Telecommunications Act and the Interception Act.  In particular, you acknowledge that we may be required to disclose information to comply with Part 13 of the Telecommunications Act or to retain and disclose data about Services and communications to comply with the Interception Act.  In such a case we will use our reasonable endeavours to advise you of the information provided to the enforcement agency except where to do so may or will place us in breach of a law or a direction of an enforcement agency.

1.18.6.Waiver and exercise of rights

 A waiver by a party of a provision of or of a right under this contract is binding on the party granting the waiver only if it is given in writing and is signed by the party or an authorised officer of the party granting the waiver. A waiver is effective only in the specific instance and for the specific purpose for which it is given. A single or partial exercise of a right by a party does not preclude another exercise or attempted exercise of that right or the exercise of another right. Failure by a party to exercise or delay in exercising a right does not prevent its exercise or operate as a waiver.

1.18.7.Severability

If the whole or any part of a provision of this contract is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction and the remainder of this contract otherwise has full force and effect. This clause has no effect if the severance alters the basic nature of this contract or is contrary to public policy.

1.18.8.Entire agreement

This contract constitutes the entire agreement of the parties about its subject matter and any previous contracts, understandings, negotiations and representations on that subject matter cease to have any effect.

1.18.9.Jurisdiction

This contract is governed by the laws from time to time in force in New South Wales.

1.18.10.Notices

A notice, approval or consent, to be issued under this contract must be in writing and in the absence of evidence to the contrary will be take to be received:

a)      if left at the address of the addressee, at the time it was left;

b)      if sent by ordinary post, on the third day after posting;

c)      if sent by express post, on the next day;

d)      if sent by facsimile, at the time recorded on a transmission report from the machine from which the facsimile was sent; and

e)      if sent by electronic email, at the time the sending party receives a “return receipt” confirmation of successful transmission.

1.18.11.Interpretation

Undefined words and expressions have the same meaning as in the Telecommunications Legislation. A reference to a person includes a reference to a person, firm, corporation or other legal entity. The singular includes the plural and vice versa. Headings are purely for ease of reference and do not form part of or affect the interpretation of this contract. Different grammatical forms of the same word have the corresponding meaning. A reference to a clause is to a clause in this Standard Form of Agreement, unless otherwise stated. References to each party include references to its successors in title, permitted assigns and novatees.

2.Service Schedules – Part Two

2.1.Colocation Service Schedule

2.1.1.What is the Service?

The Colocation Service is data centre service delivered as Full Racks or Half Racks. All Colocation Services come with a power allocation and a defined number of PDUs or power outlets that enables you to install, maintain and operate compute and network hardware in our data centres. The specific configuration and details are noted on your Accepted Quotation.

2.1.2.Equipment needed to access the Service

You require compute or network equipment capable of being installed in a data centre and meeting the specifications of the Service in your Accepted Quotation. You must ensure all electrical devices are tested and meet the Facility standards and applicable industry standards and guidelines. Where redundant power is available it is your responsibility to ensure all devices have redundant power supplies and are drawing power from each of the redundant sources.

2.1.3.Allocation of Space

We shall allocate the Colocation Space at our discretion and may upon 30 days notice to you modify, substitute, replace or change the location of the Colocation Space.  We shall use reasonable endeavours to minimise any disruption too, or non-availability of the Colocation Services during a modification, substitution or relocation. We will act reasonably in making any decision to relocate your equipment and we will ensure the new space is suitable for your equipment.

2.1.4.Access

Subject to your compliance with this schedule, the General Terms and successful completion of induction, you and Your People will be permitted unescorted access to the Facility for the purpose of installing, operating, maintaining, repairing or removing your equipment. All access will be remotely monitored via video. We may withdraw any Secure Access Status if you fail to comply with your obligations under this Agreement.  You must comply with any conditions of access (such as permissible hours of entry) and notice periods notified by us to you from time to time. You acknowledge that we have absolute discretion to refuse to allow any person to enter the Facility.

2.1.5.Notice

You will use your best endeavours to give us such notice as we require of a request to enter the Facility. For an emergency necessitating unscheduled access to the Facility, you must notify us as soon as practicable and in all circumstances before you enter the Facility.

2.1.6.Policies and Procedures

You agree to comply with our security regulations and other local site operating policies and procedures as advised by us to you from time to time.

2.1.7.Use of Power

You must not exceed the maximum power allocation stated in your Accepted Quotation for the Colocation Service without our prior written consent. If you breach this clause we will provide written notice of the breach; and if we have previously provided written notice pursuant to this clause, we will increase your power allocation at your cost.

2.1.8.Cross Connects

Each Colocation Service comes with a single SMOF Cross Connect. Additional Cross Connects are available on request for additional fees.

2.1.9.Remote Hands

Remote Hands Support is available to Colocation customers and is a billable service.

Each facility has a different fee for service for Remote Hands Support which will be advised to you on request.

2.1.10.Limitations

AC Power only is provided. If you have any equipment requiring DC Power you must install a rectifier at your cost, such rectifier to be approved in writing by us prior to install at our absolute discretion.

2.1.11.Provisioning times

Standard provisioning times for this Service is 10 working days from receipt of a signed Accepted Quotation.

2.1.12.What you can change about the Service

You may where possible increase your power allocation, the number of PDUs and vary the number of Cross Connects.

2.1.13.Fee Escalation

On the date 12 months from RFS and on each subsequent 12 month anniversary of the RFS date, the fees for the Service will increase by the greater of 3% or CPI.

2.1.14.Your Insurance Requirements

You shall obtain and maintain:

a)      Standard form property insurance insuring against the perils of fire, extended coverage, vandalism, malicious mischief, special extended coverage ("all-risk") and leakage. This insurance policy shall be on all property owned by you, for which you are legally liable or that was installed at your expense, and which is located in the Facility, in an amount not less than ninety percent (90%) of the full replacement cost thereof. If there is a dispute about the amount, which comprises full replacement cost, our decision shall be conclusive.

b)      Public liability insurance insuring you against any liability arising out of the this Schedule and use occupancy or maintenance of the Facility. Such insurance shall be in the amount of $10,000,000.

c)      Workers compensation insurance in amounts required by applicable laws.

2.1.15.Your Obligations

You must

a)      take reasonable care not to damage or interfere with any customer equipment and not unreasonably interfere with any other customer's use of and access to the Colocation Space;

b)      ensure that the Colocation space is kept clean and tidy and that no flammable materials are left or kept in the Colocation space or the Facility;

c)      comply with our reasonable requests regarding cleaning of the Colocation space and disposal of waste;

d)      immediately inform us in writing of any damage to the Colocation space, equipment or facilities of third parties, or the Facility (including our equipment and cabling) immediately upon becoming aware of the same;

e)      ensure that your equipment does not exceed the floor loading limits of the Facility;

f)        satisfy yourself as to the adequacy of the Facility, the Colocation Space, power supply, ventilation and levels of electromagnetic emission;

g)      upon request by us remove from the Colocation space equipment that:

i)        is not approved by us;

ii)      interferes with the equipment of us or third parties in the Facility;

iii)     interferes with the safety, structural integrity or operation of the Facility; or

iv)     emits unacceptable levels of electromagnetic emissions.

You must not:

a)      directly interconnect your equipment to the colocated equipment of any carrier or customer of ours at the Facility without the written consent of us and the relevant equipment owner.  Cross-connection charges shall apply to such interconnections;

b)      install any lines into or on land, facilities or buildings owned or operated by us without our prior written consent

c)      do anything in or around the Colocation space or in the Facility that, in our opinion, is noxious, offensive or a nuisance;

d)      use the Colocation space for any purpose other than installing, inspecting, maintaining, repairing and operating your equipment;

e)      damage the Colocation space or the Facility or any equipment located therein;

f)        except as expressly permitted by us, install fixtures or fittings in the Colocation space;

g)      permit any third party (other than your authorised employees, agents or contractors who have our approval) to access the Colocation Space; or

h)      do any act or thing that causes us to be in breach of any regulatory approval, consent, licence or regulation held or required to be held by us.

2.1.16.Our Obligations

We Agree to maintain and keep the Colocation Space in good and safe condition and repair.

2.1.17.No Tenancy

Nothing in this Schedule creates any tenancy between us and you, nor does it confer upon the you any right or interest in the land by way of occupation rights, licence, easement, rights of way or otherwise except expressly provided in this Schedule.

2.1.18.Sale and Transfer of Facility

Nothing in this Schedule prohibits us from selling or otherwise transferring its interest in the Facility.

This Schedule shall automatically terminate when we cease to have a right to use the Facility.

We shall use reasonable endeavours to assist you to novate this Contract to, or enter into a new agreement with, any new owner, lessee or licensee of the Facility.

2.1.19.Lien over Equipment

You grant us a lien over your equipment for all charges pursuant to the Agreement including any expenses incurred by us in accordance with this Agreement.  We shall be entitled to refuse you access to the Facility and to prevent the removal to your equipment where moneys are owing by you to us or if we exercise our lien pursuant to this clause.

2.1.20.Removal of Your Equipment

You must remove your equipment from the Facility within 14 days of termination of this Agreement.

At any time you must give us 2 business days’ notice prior to removing your equipment.

Unless prior written agreement is reached with us, if your equipment remains at the Facility for a period of 30 days after termination of this Agreement then the equipment will be deemed abandoned and you authorise us to deal with the equipment in any manner that we deem fit, including but not limited to moving the equipment to a different location or disposing of the equipment and retaining any monies derived from the disposal.

2.2.Ethernet Service Schedule

2.2.1.What is the Service?

The Service is an Ethernet Private Line (EPL);

The specific configuration and speed details are noted on your Accepted Quotation.

2.2.2.Equipment needed to access the Service

You need an Ethernet switch, router with Ethernet ports or like device, at each end to receive the service. The Service demarcation point will be a 1Gbps or 10Gbps fibre port on a Network Termination Device (NTD) owned by us. The port speed will be set at our discretion and will be noted on your Accepted Quotation. Unless otherwise agreed in the Accepted Quotation, we will cross connect the service to your rack in our facilities and it is your responsibility to cross connect to us in third party facilities.

2.2.3.Limitations

Pause frames (802.1x) are not accepted and will always be dropped. A technical specification sheet is available for Ethernet services that details the service configuration.

2.2.4.Service specific terms

You agree to comply with any reasonable direction given by us necessary to avoid causing any breach by us of our supplier's terms and conditions.

2.2.5.Provisioning times

Standard provisioning times for this Service is 5 working days from receipt of a signed Accepted Quotation.

2.2.6.Permitted uses of the Service

In using the Service, you must comply with all laws, all directions by a regulator and reasonable directions by us.  You must not use, or attempt to use, the Service:

a)      to break any law or to infringe another person’s rights;

b)      to expose us to liability;

c)      in any way which damages, interferes with or interrupts the Service, or any telecommunications network, equipment, or facilities, or cabling controlled by us

d)      in any way which may damage any property or injure or kill any person;

e)      to transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted.

You acknowledge that, we may be required to intercept communications over the Service and may also monitor your usage of the Service and communications sent over it. We may ask you to stop doing something that we reasonably believe is contrary to this clause. You must immediately comply with any such request.  If you do not, then we may take any steps reasonably necessary to ensure compliance with this clause or the request.

2.2.7.What you can change about the Service

You may where possible increase the speed, fixed increments apply.

2.3.Internet Access Service Schedule

2.3.1.What is the Service?

This Service provides access to local and international Internet routes from our Network. The specific configuration and speed details are noted on your Accepted Quotation.

2.3.2.Equipment needed to access the Service

You need a router with an Ethernet port, or like device, to receive the service. The Service demarcation point will be a 1Gbps or 10Gbps fibre port on a Network Termination Device (NTD) owned by us. The port speed will be set at our discretion and will be noted on your Accepted Quotation. Unless otherwise agreed in the Accepted Quotation, we will cross-connect the service to your rack in our facilities and it is your responsibility to cross-connect to us in third party facilities.

2.3.3.Limitations

The Internet Access Service is limited to a default route configuration unless a variation is agreed in writing by us.

2.3.4.Service specific terms

You agree to comply with any reasonable direction given by us necessary to avoid causing any breach by us of our supplier's terms and conditions.

2.3.5.Provisioning times

Standard provisioning times for this Service is 5 working days from receipt of a signed Accepted Quotation.

2.3.6.Permitted uses of the Service

In using the Service, you must comply with all laws, all directions by a regulator and reasonable directions by us.  You must not use, or attempt to use, the Service:

a)      to break any law or to infringe another person’s rights;

b)      to expose us to liability;

c)      in any way which damages, interferes with or interrupts the Service, or any telecommunications network, equipment, or facilities, or cabling controlled by us

d)      in any way which may damage any property or injure or kill any person;

e)      to transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted.

You acknowledge that we may be required to intercept communications over the Service and may also monitor your usage of the Service and communications sent over it. We may ask you to stop doing something that we reasonably believe is contrary to this clause. You must immediately comply with any such request.  If you do not, then we may take any steps reasonably necessary to ensure compliance with this clause or the request.

2.3.7.What you can change about the Service

You may where possible increase the speed, fixed increments apply.

 

3.Service Level Agreements – Part Three

3.1.Service Support

3.1.1.How Do I Request Support?

We will provide you with access to the Leading Edge EPOC to record an incident or request relating to the Services. You can submit an incident or request via email, phone or any application provided by us. All incidents or requests must be classified by priority and type:

3.1.2.Scheduled Maintenance

If it is necessary to perform scheduled maintenance we will provide the following notice periods:

*Notice will be provided as soon as reasonably practicable with a goal of 8 hours minimum notice

3.1.3.Service Level Targets

We will use all reasonable endeavours to meet the Service Level Target for the relevant Service. Our Target Restoration Time commences at the time the incident is first recorded with the our EPOC and ends on the resolution of the incident. Our target time to respond to an incident or service request is:

3.2.Colocation Service Level Agreement

3.2.1.Colocation Service Availability Metrics

These metrics will be used to measure the availability of all Colocation services unless otherwise noted on the Accepted Quotation.

Temperature

The average temperature within 1 metre of the cold air outlets in the Colocation space as measured by us is no greater than 25 degrees Celsius.

Humidity

The average return air humidity measured at the point nominated by us will not deviate from the acceptable humidity range of 35-65% for a continuous period of more than 60 minutes in any day.

3.2.2.Colocation Service Level Agreement Coverage Window

The following coverage windows will be applicable to all Colocation services unless otherwise noted on the Accepted Quotation.

3.2.3.Service Level Rebates

3.3.Ethernet Service Level Agreement

3.3.1.Ethernet Service Availability Metrics

These metrics will be used to measure the availability of all Ethernet services unless otherwise noted on the Accepted Quotation.

3.3.2.Ethernet Service Level Agreement Coverage Window

The following coverage windows will be applicable to all Ethernet services unless otherwise noted on the Accepted Quotation.

3.3.3.Service Level Rebates

3.4.Internet Access Service Level Agreement

3.4.1.Internet Access Service Availability Metrics

These metrics will be used to measure the availability of all Internet Access services unless otherwise noted on the Accepted Quotation.

3.4.2.Internet Access Service Level Agreement Coverage Window

The following coverage windows will be applicable to all Internet Access services unless otherwise noted on the Accepted Quotation.

3.4.3.Service Level Rebates

Dictionary of Terms