1.      The Service

(a)         Console Connect will provide the HKIX 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 scope of the Service is as follows:

1. Console Connect will enable the Customer to connect to the HKIX network with a high speed trunk link (10G/100G) to HKIX.
2. Console Connect will provide access switch(s) for connection.
3. Console Connect will decide on the technical configuration for the access switch(s) for connection.
4. Console Connect is responsible for the configuration and management of the access switch(s). Support service of the access switches is to be maintained by Console Connect.
5. HKIX Translate Switch will translate traffic between agreed VLANs and HKIX production VLAN.
6. Console Connect will prevent the trunk link bandwidth dominated by specific VLAN(s).
7. Console Connect will provide or procure HKIX to provide technical support to the Customer directly.

(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 that Customer’s AS numbers must be registered by entities out of Hong Kong.

(b)          The Customer shall ensure compliance with all terms in these Terms and Conditions and relevant Order Form binding upon the Customer. Console Connect reserves the rights to terminate the connections for the Customer at its sole and absolute discretion.

(c)           In the event that the Customer fails to use the Service in accordance with the applicable requirements of these Terms and Conditions or the Agreement, Console Connect may restrict, suspend or terminate the affected portion of the Service against the Customer.

(d)           The Customer shall comply with all Relevant Laws and Regulations applicable to the Customer and the requirements (including but not limited to the suitability requirements of the Customer prescribed by HKIX) 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 comply with HKIX’s Policy when using the Service. HKIX’s Policy may be amended by HKIX from time to time. The amendments will come into effect on the commencement date stipulated in the amended policy. If no commencement date has been communicated to the Customer, the amendments will come into effect upon notification from Console Connect or HKIX to Customer. Notification of the amended policy may be done by: (i) emailing the amended policy or the link to the amended policy on the HKIX website to the Customer; or (ii) posting the amended policy on the HKIX website. The Customer will be deemed to consent to such modifications and/or additions to HKIX’s Policy by using the Service after such modifications and/or additions come into effect.

(g)            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 willful misconduct of the Customer.

(h)            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.

(i)             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.

(j)             In the event the Customer wishes to terminate the Service before the Minimum Contract Period expires, Customer shall give prior written notice of thirty (30) Calendar Days to Console Connect and HKIX 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)            In the event HKIX determines that it is necessary to relocate its service location; including HKIX data centre location, network equipment or network equipment module, HKIX will use commercially reasonable best efforts to minimize the interference with Customer’s use of the Service, and Customer shall cooperate in good faith with HKIX to facilitate such relocation. Customer shall be responsible for any costs incurred by Customer in connection with any such relocation.

 

3.      Suspension and Termination

(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. If the Customer violates any Relevant Law or Regulation;
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.

(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. 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. 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 and if requested by Console Connect, the Customer will pay for the Service at the applicable rates (the “Transitional Charge”) for a period of twelve (12) calendar months from the date of termination of these Terms and Conditions or the Agreement (the “Transitional Period”) and the Customer will not impose any additional cost to Console Connect during the Transitional Period. The Customer expressly acknowledges and agrees that the Transitional Charge payable to Console Connect is an agreed reasonable pre-estimate of the anticipated losses suffered by Console Connect if these Terms and Conditions or the Agreement is terminated pursuant to clause 3 hereunder.

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 HKIX (including but not limited to the name of “HKIX”, “Hong Kong Internet Exchange”, “Hong Kong Internet eXchange”, “香港國際互聯網交換中心” and “香港互聯網交換中心”) 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 HKIX 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 mean means days including any business day from Monday to Friday and all Saturdays, Sundays, public holidays and local bank holidays.

d.            HKIX’s Policy means the “HKIX Policy for Customers” as set out in Schedule A and as amended by HKIX in writing from time to time.

e.             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 Hong Kong or otherwise.

f.              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.

g.             Regulations 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.

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

i.              “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.

 

Schedule A

HKIX’s Policy for Customers

“HKIX’s Policy for Customers” may be amended by HKIX from time to time. Such amendments and/or additions may be made by posting the amended conditions on the website of HKIX (www.hkix.net) or by notifying the Customers through their respective service providers who are authorised resellers of HKIX’s Services (the “Reseller”). Customers are deemed to consent to such amendments and/or additions when using the Services of HKIX (“Services”) after such amendments and/or additions are made and become effective.

 

1.      Provision of the services

1.1         HKIX will make and keep the connection available to Customer under the terms of the agreement with Reseller. The obligations and responsibilities of HKIX with regard to the Connection will not apply beyond the service demarcation point at HKIX.

1.2        Customers shall be responsible for arranging its own primary Global Internet Connectivity independent of HKIX infrastructure.

1.3        Customers shall be responsible for arranging cross-connects between its equipment or that of a used third party transport network and the designated HKIX Reseller infrastructure termination point (patch panel) in the HKIX Reseller sites of choice. This responsibility may be carried out by a designated third party assigned by Customers.

1.4        HKIX peering model is a Sender Keep All (SKA) model; Bi-Lateral Peering arrangements between Customers and Reseller are not covered. Customers are responsible for the negotiation, conclusion and implementation of peering arrangements with other customers of HKIX.

1.5        Customers shall be responsible to offer reasonable assistance to HKIX in relation to network and system integration, network and system migration, daily operation and maintenance matters. Except for emergency repairs or maintenance, HKIX shall notify Customer thirty (30) Calendar Days in advance of any regularly scheduled maintenance that will or might incur services interruption to Customer.

1.6        HKIX will make the Service available on or before a particular date, but it does so on a commercially reasonable best efforts basis and is subject to availability and the provisions of and compliance by Customer with this policy.

1.7        HKIX reserves sole ownership to all equipment, networks and products procured for the purpose of providing the HKIX Services to Customer regardless of whether Customer has access to, right to use, or has directly or indirectly funded the same.

1.8        Customer shall be solely responsible for the quality, reliability, performance and non-performance of, and damages from, Customer equipment and transmissions that connects to HKIX’s network that may be required, and for ensuring the compliance of Customer equipment with applicable standards and for obtaining any necessary approvals or authorizations prior to its use, and for the reliability and performance of its own equipment and facilities connecting to the facilities affecting the quality of the service. In no event shall HKIX be responsible for the transmission or reception of signals by Customer equipment or for the quality or defects in Customer equipment or its transmission or reception.

1.9        HKIX does not covenant, represent or warrant to Customer, expressed or implied, that its provision of the services shall be fault-free or continuous or that services will be available from applicable requested service date.

2.      Compliance with Laws and Obligations

2.1        The Customer shall ensure that it:
2.1.1 obtains and maintains all valid licenses, approvals, consents and authorizations necessary for it to perform lawfully its obligations under this policy; and

2.1.2 complies at all times with all relevant laws and obligations, including without limitation any applicable license under the party’s local Telecommunication Ordinance/Act.

3.      Customer Obligations

3.1        Customers shall use commercially reasonable efforts to:

(a)materially comply with the instructions and requirements of HKIX and its authorized agents with regard to the Services, the HKIX equipment, or the HKIX infrastructure.
(b)notify HKIX of any fault in the Services, the HKIX equipment, the HKIX infrastructure or the deterioration in the quality of the Services, the HKIX equipment or the HKIX infrastructure within a reasonable of time;
(c)use the Services, the HKIX equipment, and the HKIX infrastructure in accordance with this policy and applicable laws;
(d)not maliciously use the Services, the HKIX equipment or the HKIX infrastructure in any manner that would be in breach of any applicable law;
(e)not maliciously use the Services, the HKIX equipment, or the HKIX infrastructure:

1. for any improper purpose or unacceptable use in the reasonable opinion of HKIX; or
2. in any manner which is unauthorised, immoral, prohibited, fraudulent or illegal; or
3. in a manner which may constitute an infringement by Customer or HKIX of the rights of any person;

(f) not maliciously interfere with, causes the imposition of any lien or encumbrance over, or impede the operation of the services, the HKIX equipment, the HKIX infrastructure or any third party telecommunications service or network, or do or not do anything which is likely to have such an effect;
(g)notify HKIX of any change of address or any other particulars provided to HKIX which may affect the provision of the Services to Customer within thirty (30) Calendar Days;
(h)not maliciously disclose to any person any personal identification number or password or login ID issued by HKIX to Customer or any other access method authorized by HKIX in writing from time to time; and

(i)fully comply with the policies and guidelines at all times as presented and updated from time to time on HKIX’s website (www.hkix.net).

3.2       Customers are solely responsible for obtaining all licenses, approvals, and regulatory authority as required for its use and operation of the service and the provision of service and warrants that it shall not use the service for any illegal, immoral or prohibited purpose or in breach of any third party’s right.

3.3       Customers shall use commercially reasonable efforts to comply with all reasonable instructions, which HKIX believes is necessary for reasons of health, safety or the quality of any telecommunications service provided by HKIX to Customers or any other users, provided that such instructions do not materially affect the performance of any permitted use of the Service.

4.     Suspension, withdrawal or restriction of the Services

4.1        HKIX may, at its sole and reasonable discretion, upon the provision of at least fifteen (15) Calendar Days’ prior written notice to the Reseller, and without incurring any liability, suspend, withdraw or restrict access to all or part of the Service it provides and deny access by Reseller to the HKIX data centre without being liable to Customer if:
4.1.1 HKIX is obliged to do so to comply with an order, instruction or request of government, emergency services organization or other competent authority provided that HKIX gives to Customer reasonable prior written notice; or
4.1.2 HKIX is required to reduce and prevent fraud or interference within its own network, provided that HKIX gives to Customer reasonable prior written notice; or
4.1.3 HKIX needs to repair a fault in its network or in any network equipment as a result of any unplanned outage or any other reason beyond HKIX’s reasonable control, provided that HKIX will use its best endeavours to provide to Customer as much prior notice as possible and minimize any disruption caused to Customer.

4.2        HKIX may, in its reasonable opinion suspend, withdraw or restrict access to all or part of the service it provides to Customer in order for HKIX to:

(a)carry out planned maintenance, repair or upgrading of any system, network any other equipment or facility forming part of the HKIX infrastructure, provided HKIX gives Customer through the Reseller at least thirty (30) Calendar Days prior written notice and HKIX will use its best efforts to minimize any disruption caused to Customer if it needs to suspend such service, or any of them, for the reason stated in this subclause; or

(b)protect the integrity of the HKIX infrastructure, the system and/or the HKIX equipment, or to carry out unplanned maintenance, repair or upgrading of any system, any equipment or facility forming part of the HKIX infrastructure.

4.3        If it is necessary for HKIX to suspend, withdraw or restrict access to the Service it provides or any part thereof, under Clause 4 it will do so for as short a period as is practicable in the circumstances.

4.4        If HKIX suspends such Service, or any part thereof, due to any event in Clause 4.1, this will not exclude its right, if any, to terminate the service later in respect of that or any other event.