(ABN 96 603 333 599)
Definitions and Interpretation
Definitions
In this Agreement:
Access Card means a security access card issued by us to enable access to the Colocation Space and Facility.
Add-ons Services means Remote Support and any other services that we may agree to provide from time to time.
Agreement means this document and any other documents stated in the Contract Details as forming part of the Agreement.
Automatic Transfer Switch (ATS) is a rack mount device that provide reliable, redundant power to single-corded equipment. The rack ATS has dual input power cords supplying power to the connected load. If the primary power source becomes unavailable, the rack ATS will seamlessly source power from the secondary source without interrupting critical loads.
Business Day means a day that is not (a) a public holiday in the place in which the Services are being carried out; or (b) Saturday, Sunday.
Cloud Services means infrastructure and storage as a service, which may include: (a) cloud-based infrastructure platform; (b) web application or portal; and/or (c) cloud-based storage.
Colocation Space means, in respect of Your Agreement, the area in the Facility allocated by us, which may include: (a) Racks; (b) Halls; and/or (c) a Secured Area.
Consequential Loss means (a) loss of revenue; (b) loss of reputation; (c) loss of profits; (d) indirect or consequential loss; (e) loss of bargain; (f) loss of actual or anticipated savings; (g) economic loss; (h) lost opportunities, including opportunities to enter arrangements with third parties; (i) loss, corruption or interception of data; and (j) any indirect or consequential loss or damage.
Cross Connect means a cross connection between the Colocation Space and any other space in the Facility to a third party, including to a carrier.
Early Termination Charges means a fee that we are entitled to charge in accordance with clause 13.3.
Emergency means any event or circumstance which in our reasonable opinion endangers or threatens to endanger the safety or health of any person or destroys or damages or threatens to destroy or damage the Facility or any part of the Facility, or the property of any other party.
End User Agreement means the agreement to be entered into between an end user with the Client, under which the Client makes the cloud platform available to the end users.
Facility means the data centre facility as specified in the Agreement, includes all fixtures, fittings, plant, machinery, equipment, or other property of us or on the Facility.
Facility Rules means rules relating to the operation and management of the Facility and the provision of the Services as provided by us to you, and as amended or replaced by us from time to time.
Fees means (a) the Setup Fees; the Colocation Services Fees, including reservation fees; (c) the Power Fees; (d) Connectivity Services Fees; (e) Add-ons Services Fees; (f) Cloud Services Fees; and (g) any other fees as agreed between the parties.
Force Majeure Event means any occurrence or omission outside a party’s control and which is (a) an Emergency; (b) a physical natural disaster including fire, flood, lightning or earthquake; (c) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency; (d) law taking effect after the date of Your Agreement; or (e) strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party's subcontractors.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, including, without limitation, any copyright, trade or service marks, patents, registered and unregistered trademarks, registered designs, trade secrets, knowhow, moral rights, protocols, trade, business or company name, indication or source of origin, or other proprietary right, or right to registration of such rights.
Move Add Change (MAC) request means the written request by which you request us to provide Add-ons Services after the date of submitting the Service Order.
Our Material means any material provided or to which access is given by us to you for the purposes of Your Agreement. This may include documents, software, source code, configurations, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules, and data stored by any means.
Power Allocation means, in respect of the Colocation Space, the Power Allocation for that Colocation Space specified in the Service Order.
Power Rate means the per kWh rate specified in the Service Order.
Power Fees means, in respect of a month, the power consumed by you during that month (measured in kWh at the power distribution unit located in the Colocation Space) multiplied by the Power Rate.
Rack means a physical rack with an agreed Power Allocation, the specific details of which are outlined in the applicable Service Order.
Remote Support means minor technical services that you request us to provide, and that we agree to provide, as amended from time to time.
Scheduled Outages refers to any schedule outage scheduled by us when maintenance is required to be perform on the Cloud Services.
Service Availability describes the availability of (a) a cloud instance (where the instance is up and available); and (b) the hosting environment (being the servers, storage, routers, switches, and internet connectivity) is under our exclusive control.
Service Order means the Service Order (Schedule A) submitted by you to order Services.
Service Commencement Date means, in respect of Your Agreement, the date which is calculated by reference to Your Agreement Commencement Date plus the applicable timeframe for delivery of the Setup Services, or such other later date as agreed between the parties.
Service Interruptions describe the time-period on non-availability of (a) a cloud instance; (b) cloud platform; and (c) the hosting environment.
Service Level Agreement or SLA means the Service Level Agreement in clause 5.
Service Levels has the meaning given to it in the Service Level Agreement.
Services means Setup Services, Colocation Services, Connectivity Services, Add-ons Services and Cloud Services.
Suspension Notice means a notice given by us for the purposes of clause 6.8 or clause 6.9.
Technical Support means technical support provided by us to you, end users or third party as detailed in Schedule C.
Tax Charge means any tax, duty or governmental charge relating to carbon emissions, trading scheme, pollution, electricity, carbon dioxide, greenhouse gas or similar emissions or other regulatory charges or schemes.
Your Agreement means the contract formed between you and us when we accept your Service Order.
Your Agreement Commencement Date means the date we accept your Service Order.
Your Agreement Term has the meaning given to it in clause 12.1.
Your Equipment means all hardware, software, accessories, tools and other information technology and telecommunications equipment owned, leased, licensed, controlled or otherwise used by or in the possession of you or your authorised personnel from time to time, which is located in the Facility, including the Colocation Space.
Your Material means any material provided or to which access is given by you to us for the purposes of Your Agreement. This may include documents, software, source code, configurations, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules, and data stored by any means.
Interpretation
In this Agreement, unless the context indicates otherwise:
(a) A reference to “you” or “your” means the Client and a reference to “we”, “our” or “us” means Pier DC Pty Ltd;
(b) headings are, in the interpretation of this Agreement, to be disregarded;
(c) a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this Agreement and references to this Agreement include any schedules or annexures;
(d) a reference to a party to this Agreement or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;
(e) a reference to a document or agreement (including a reference to this Agreement) is to that document or agreement as amended, supplemented, varied or replaced;
(f) if any day on or by which a person must do something under this Agreement is not a Business Day, then the person must do it on or by the next Business Day; and
(g) wherever the words ‘include’, ‘included’ or ‘including’ are used in this Agreement, they are not to be interpreted as words of limitation.
Services
2.1 Our Services are as follows:
(a) Setup Services: the preparation, installation, and energisation of power circuit to the Colocation Space.
(b) Colocation Services: the preparation, establishment, and provisioning of the Colocation Space.
(c) Connectivity Services: the installation and ongoing provision of Cross Connects, internet and/or data services.
(d) Add-ons Services: additional services that we agree to provide from time to time as part of this Agreement. This includes Remote Support or other services by third party.
(e) Cloud Services: the provision of cloud-based infrastructure platform, web portal and cloud-based storage.
2.2 We may vary the Services when required for operational, technical, and commercial reasons without prior notice when such variations do not have an adverse material effect to you.
2.3 We may subcontract the performance of any Services, except for Colocation Services, in whole or in part, to any person.
Setup Services
2.4 We will, subject to the terms and conditions of Your Agreement, commence the Setup Services on Your Agreement Commencement Date.
2.5 We will endeavour to complete the Setup Services prior to the Service Commencement Date for the Colocation Services.
Colocation Services
2.6 We will provide you with Colocation Space in our Facility for the Term on a non-exclusive basis.
2.7 We grant you the right to install, inspect, operate, repair, and maintain Your Equipment within that space, for the duration of the Term for this Service. For the avoidance of doubt, you will have no right to a lease of the Colocation Space and no right or interest in any property or equipment not owned by you and you must not seek to register any security right or interest against any of our property or equipment under the Personal Property Security Register created by the Personal Property Security Act 2009.
2.8 We will allocate the Colocation Space in our sole discretion.
2.9 We will provide you with notice of any modification, substitution, replacement or change to the Colocation Space as is reasonable in the circumstances.
2.10 We will use reasonable endeavours to minimise any disruption or inconvenience to you during any modification, substitution, replacement or change to the Colocation Space.
2.11 You must not carry out any alterations, modifications, or other works to the Colocation Space without our prior written approval which we may withhold in our absolute discretion.
Rack Reservation
2.12 You may reserve racks for your future requirement, subject to any applicable Fees.
2.13 Prior to selling the reserved racks to another customer, we will provide you with written notice of our intention and grant you the first right to order the respective racks within 10 Business Days of the notice.
Power Consumption and Allocation
2.14 Our Facility operates a ‘Pay As You Use’ (PAYU) power consumption scheme whereby:
(a) Your equipment is supplied from two power feeds via the Power Distribution Units (PDU). We will monitor and meter at both power sources, upstream to the PDU. Your power consumption is the summation of these readings.
(b) Your power consumption in kWh (kilowatt hours) is chargeable as Power Fees at the Normal Power Rate, based on your utilisation.
(c) If Your Equipment draws more power than the maximum Power Allocation as specified in clause 2.15, we will automatically charge you excess power usage above the maximum Power Allocation.
2.15 A maximum Power Allocation is as set out in your Service Order.
(a) The maximum Power Allocation (“Max Power”) is determined by the summation of all nameplate ratings of Your Equipment in kilowatts (kW).
(b) You may request additional power with a written request, and if we agree to that request, we will provide our written consent. You may incur additional fees as part of this request.
2.16 You acknowledge that any consumption by you more than your maximum Power Allocation may adversely:
(a) affect the supply of power to you;
(b) affect the supply of power to another customer;
(c) impact upon the proper operation of the Facility cooling system; and
(d) impact upon our ability to meet the Service Level Agreement.
2.17 If you become aware you are using power more than your Power Allocation you must immediately stop excess power utilisation.
2.18 If your power utilisation exceeds the Power Allocation, we may give notice to you requiring you to rectify the breach (“Max Power Breach”). You must rectify the breach as soon as reasonably practicable, but in any event within period set out in the notice. If you fail to rectify the breach within the notice period, we may take whatever remedial action we deem necessary, which may include disconnecting power to Your Equipment in the Colocation Space.
2.19 If we consider it necessary for the protection of the Facility, the Colocation Space, other property of ours or any third party or the safety or health of any person, or for compliance with any requirement of any government agency, any applicable Law or any obligation owed to any third party, we may exercise its rights under clause 3.12 without first being required to issue the notice referred to or waiting for you to rectify the breach.
2.20 Notwithstanding any excess usage charges, we may cancel your Services if you do not comply with the maximum power supply obligations.
Power Balance
2.21 You must use reasonable efforts to ensure that your power utilisation is evenly spread across each power feed to the Colocation Space and, where applicable, between phases on a three phase supply.
2.22 You must ensure that no individual Rack draws in excess of 7kW for single phase supply or in excess of 22kW for a three phase supply, unless we agree to in writing.
2.23 If in our reasonable opinion there is a material imbalance in your power utilisation, we may give you a notice requiring you to rectify the imbalance.
2.24 You must rectify the imbalance as soon as reasonably practicable, but in any event within 5 Business Days of receiving our notice under clause 2.23.
Onboarding
2.25 You must provide us with written notice no less than 2 Business Days of any proposed delivery, setup and installation date of Your Equipment. We must provide, within 1 Business Day of receipt of such notice, to confirm the date the installation may occur.
2.26 You will organise delivery of Your Equipment at your own cost. If you fail to provide us with prior notice, we may elect not to accept delivery at our discretion.
2.27 We will provide you and your authorised personnel access to a Staging room to facilitate the unpacking, preparation, setup and testing of Your Equipment for up to 3 Business Days. Extended access to the staging room is subject to availability and an applicable Fee.
2.28 You must power up all Your Equipment and pass a Compliance Test, witness and signed off by us, prior to installation of Your Equipment in the Colocation Space.
Your Equipment
2.29 You must ensure that the size and weight of Your Equipment does not exceed the maximum size and weight that we specify to you in Service Order (Schedule A), unless we provide our written consent. You may incur additional fees as part of this request.
2.30 You are responsible for installing Your Equipment and must ensure that the equipment is installed within the racks that are allocated to you, and unless we agree to install Your Equipment as a part of providing the services.
2.31 You must ensure that all of Your Equipment is clean and in good repair and condition at the time it is installed in the Colocation Space and that it is kept in good repair and condition.
2.32 You must ensure that you minimise the use of any space external to the Colocation Space when installing, inspecting, operating, repairing and maintaining Your Equipment.
2.33 Your Equipment is supplied from two power feeds via the Power Distribution Units (PDU). Power is energised to the PDU upon completion of installation by us, unless instructed otherwise by you in a written request.
2.34 If Your Equipment contain single-corded devices, they must be used in conjunction with a rack mount Automatic Transfer Switch (ATS) approved by us.
2.35 We may require you to remove any of Your Equipment from the Colocation Space and the Facility that does not comply with this Agreement or the Facility Rules.
Repair and Maintenance
2.36 You must ensure that the Colocation Space is kept in good condition and repair that comply with our requirements and instructions regarding rubbish removal and recycling.
2.37 You must ensure that the Colocation Space is kept clean and tidy and that no flammable or hazardous materials are left or kept in the Colocation Space or the Facility.
2.38 You must inform us in writing of any damage to the Colocation Space, the Facility or our other property or other property of any third party immediately upon becoming aware of the damage.
2.39 You must promptly repair damage to the Colocation Space or the Facility caused or contributed to by you if requested by us.
Relocation of Your Equipment
2.40 We may relocate Your Equipment with the Colocation Space from time to time on the following conditions:
(a) We will act reasonably in making the decision to relocate Your Equipment
(b) The new space must be suitable for Your Equipment
(c) We will give you 30 Business Days’ written notice of change, except in an Emergency, when we will give you as much notice as it reasonably can; and
(d) We will bear the direct costs of relocating Your Equipment
Connectivity Services
2.41 We will provide the Connectivity Services in the form of Cross Connects to any internet and data connectivity delivered within the Colocation Space, subject to applicable Fees.
2.42 If any of the Connectivity Services is made available to a third party, you must obtain the consent of the third party to the provision of this service.
2.43 We are not under any circumstances liable for any acts or omissions of any carrier in connection with the supply of any products or services by the carrier to you.
2.44 We do not warrant that any Connectivity Services will be free from interruptions, errors, defects or failures and our liability is subject to the Service Levels in clause 5.4.
Cloud Services
2.45 We will provide the Cloud Services in the form of infrastructure and storage as a service, subject to applicable Fees.
2.46 We will provide the cloud orchestration platform in accordance with this Agreement, solely in order that you may resell and make the platform available to end users.
2.47 The cloud platform may include products owned by third-parties (Third Party Products). You acknowledge that:
(a) its use of the Third Party Products will be subject to the terms and conditions of any applicable third party contract(s) (“Third Party Contract(s)”); and
(b) the Third Party Contract(s) will be between you and the applicable third party.
2.48 If any of the Cloud Services is made available to a third party, you must obtain the consent of the end users to the provision of this service.
2.49 For the avoidance of doubt, you shall not be entitled to resell and make the platform available to end users following termination or expiry of this Agreement other than those end users who have a subsisting arrangement already in place at the time of such termination or expiry.
2.50 We do not warrant that any Cloud Services will be free from interruptions, errors, defects or failures and our liability is subject to the Service Levels in clause 5.4.
Notification
1.51 We will, once we are aware of the incident and as soon as is reasonably practicable in the circumstances, notify you of any incident relating to the Facility where there is a material risk to your authorised personnel or Your Equipment. Following resolution of such an incident we will provide further notification of such resolution.
Facility Access and Use
Access
3.1 You must use the Colocation Space for the sole purpose of installing, inspecting, repairing and maintaining Your Equipment in the Colocation Space.
3.2 You will have 24/7 access to the Colocation Space for the purpose of exercising your rights as specified in clause 2.6.
3.3 You and your authorised personnel must adhere and comply with our Facility Rules (current and any subsequent amendments), relating to the operation and management of the Facility and the provision of the Services.
3.4 You can specify up to 8 personnel to be your authorised personnel who will be granted access to the Facility and your Colocation Space following individual induction training provided by us, unless we agree otherwise. You must confirm to us in writing the status of your authorised personnel every time there is a change in the authorised personnel list and otherwise every three months.
Facility Rules
3.5 Without limitation, the Facility Rules may include rules relating to:
(a) the process for arranging access to the Facility and the Colocation Space for you and your authorised personnel, including the provision of acceptable proof of identity and the attendance to induction session;
(b) the process for obtaining approval for performing work on-site, including receipt of deliveries at the Facility;
(c) compliance with our instructions concerning security, safety and other general procedures;
(d) display of identification and security passes to access the Colocation Space.
3.6 At the time of this Agreement, the Facility Rules are as follows:
(a) You are responsible for controlling the use of the access cards issued and assignment to you and your authorised personnel.
(b) You must comply with our directions when accessing the Facility and Colocation Space including, where we require, having our on-site or security staff escort your authorised personnel whilst on premise.
(c) When accessing the Facility or Colocation Space, you must ensure that you and your authorised personnel do not touch, interfere with or connect anything to any items of equipment, other than Your Equipment or where any relevant equipment has been approved by us in writing in advance.
(d) We may suspend your access to the Colocation Space or may require your authorised personnel to leave the Colocation Space and the Facility:
(i) in an Emergency;
(ii) if you or your authorised personnel breach the Facility Rules
(iii) in any event or circumstance where we reasonably consider it appropriate to do so; or
(iv) in the circumstances contemplated by clause 6.8.
(e) We may refuse access to the Facility or remove your authorised personnel from the Facility, whose admission or presence is, or would be, in our reasonable opinion detrimental to the security of the Facility.
(f) These rules relating to access to the Facility and Colocation Space may be amended from time to time.
General Obligations
3.7 You and your authorised personnel must comply with the Facility Rules and any reasonable direction given by us whilst at the Facility.
3.8 You must comply with all applicable laws and must ensure that your authorised personnel comply with all applicable laws and that you and your authorised personnel have obtained all relevant consents, permits, approvals, authorities and licences required to receive and use the Services.
3.9 You must only use the Services for its intended purpose and to:
(a) comply with all relevant technical standards and requirements in the overall operational design, installation, configuration and support of Your Equipment; and
(b) not use the Service to commit any offence or allow anyone else to do so.
3.10 You must not do any act or thing (including in connection with the installation, inspection, operation, repair, maintenance or replacement of Your Equipment):
(a) in the Facility or the Colocation Space that is fraudulent or illegal or that, in our reasonable opinion, is dangerous, annoying, offensive or immoral;
(b) that interferes with, obstructs access to, damages or overloads the Facility, the Colocation Space or any of our property or property of any third party;
(c) that causes nuisance to or interference with the use of the Facility or any part of the Facility by us, or any of our other customers or customers of the Facility Provider (or their customers) and, for the purposes of this clause, interference shall include technical interference; or
(d) that may cause us or the Facility Provider to be in contravention of any applicable law or any approval, licence, consent, authority or permit held or required to be held by us or the Facility Provider.
Our Right To Enter
3.11 We may enter the Colocation Space in order to provide you the Services and otherwise for the purpose of inspecting and maintaining the Facility and Colocation Space.
3.12 We may enter the Colocation Space to exercise our rights set out in Your Agreement and the Facility Rules, or as required to comply with applicable laws or in the event of an Emergency.
Add-Ons and Cloud Services
General
4.1 You may from time to time request us to provide Add-ons and Cloud Services, which may include:
(a) Remote Support Services;
(b) Cloud Services;
(c) Third party Services; or
(d) other services that we may agree to provide from time to time.
4.2 Any such request must be made:
(a) on the Service Order if you request the Add-ons or Cloud Services at the same time as the Colocation Services; or
(b) if you request Add-ons or Cloud Services after you have submitted the Service Order for the initial services, on a MAC (Move Add Change) or Cloud Services request, which we will provide to you on request.
4.3 If we agree to provide the Add-ons or Cloud Services, we will advise you in writing that we accept your request. We are under no obligation to agree to your request.
4.4 The terms of Your Agreement shall apply to any Add-ons or Cloud Services that we agree to provide.
(a) We will use reasonable endeavours to ensure that the Add-On Services shall:
(i) be perform in a professional, honest and efficient manner;
(ii) be free from defects in materials and workmanship;
(iii) be of merchantable quality; and
(iv) comply with any applicable Australian Standards and any other standards specified in this Agreement.
(b) We will use reasonable endeavours to ensure that the operation of the Cloud Services will be secure, confidential, uninterrupted, error-free, accurate, complete or current.
(c) We regularly updates and carries out scheduled maintenance on the Cloud Services, so we may have to suspend access to, or functionality on, the cloud platform from time to time. These updates will be scheduled in line with the Service Levels set out by clause 5.
4.5 You must comply with all of our policies, procedures and requirements applicable to the Add-ons and Cloud Services, including the Facility Rules.
Cloud Services
4.6 We provide the cloud orchestration platform in accordance with this Agreement, solely in order that you may resell and make the platform available to end users, subject to you:
(a) provide any agreed deliverables and services;
(b) observe and comply with:
(i) your obligations under this Agreement;
(ii) any reasonable direction given by us; and
(iii) all applicable laws, including any relevant codes of practice or codes of conduct;
(c) perform your obligations in a professional, honest and efficient manner;
(d) not do anything to cause damage to our name and reputation or any of our affiliates, the cloud platform and/or any other services provided by us;
(e) not make any false, misleading or deceptive statements or representations in relation to us, our Services and any other services provided by us;
(f) not use the cloud platform to send, or allow the sending, of unsolicited emails to third parties;
(g) not use, or allow the use of, the cloud platform for any unlawful activities; or
(h) not use, or allow the use of, the cloud platform to publish any materials or store content that is unlawful, pornographic, defamatory, abusive, insulting, threatening, obscene, inflammatory, offensive or otherwise inappropriate or objectionable.
4.7 You must nominate a dedicated technical personnel who will have primary responsibility for managing the day-to-day relationship with us.
4.8 You must ensure that you have sufficient sales and technical resources to perform your obligations under this Agreement.
4.9 You must ensure all information and material provided to us:
(a) is accurate, complete and current;
(b) is provided promptly or otherwise within the agreed timeframes;
(c) does not infringe the intellectual property or other rights of any person; and
(d) is not misleading, deceptive, unlawful, fraudulent or defamatory.
4.10 We will provide initial training services to your personnel staff with respect to the cloud platform, with the intention that you will appoint a technical personnel within your team to perform ongoing training for your other staff.
(a) Additional training, following the initial training, may be provided, subject to an applicable Fees.
(b) You must bear the full cost of your resources attending such training, including travel, accommodation, meals and personal expenses.
4.11 With respect to Technical Support to the cloud platform:
(a) you will provide level 1 and 2 support to the end users;
(b) we will provide level 3 Technical Support, limited to issue to the cloud platform and exclude end-user environment.
4.12 The relationship between us and you is that of principal and independent contractor. Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.
4.13 You acknowledge and agree that we have no contractual relationship with, nor any liability to, end users. Use by end users on the cloud platform shall be subject to terms of any End User Agreement.
4.14 Without limitation as to clauses 4.12 or 4.13:
(a) you have no authority to enter into any agreement on behalf of us; and
(b) you must not incur any liability on behalf of us.
4.15 You agree that it will not make the cloud platform available to any end users or third party without first entering into an End User Agreement with such end users or third party.
4.16 Subject to clause 4.17, on termination or expiry of this Agreement, subject to you continuing to pay the Fees applicable in respect of the continuing End User Agreements:
(a) each End User Agreement which is operative as at the date of termination or expiry of this Agreement will continue until it terminates or expires according to its terms;
(b) you must continue to comply with its obligations in relation to such continuing End User Agreements;
(c) you may not agree to any amendment or extension of any such continuing End User Agreement without the prior written consent from us; and
(d) we will continue to provide agreed levels of Technical Support to end users or third party under such continuing End User Agreements.
4.17 If you elect not to carry out your obligations in relation to any continuing End User Agreements, you must immediately notify us, upon which we may, at our sole discretion, request a novation or assignment of any End User Agreement from you, and you must do all things reasonably necessary to give effect to such novation or assignment in favour of us.
(a) All costs in connection with novation or assignment will be borne by you.
(b) Should a novation or assignment not be obtained for any reason, you agree to indemnify and hold us harmless from all damages and claims arising out of or related to your election not to carry out you obligations in relation to any continuing End User Agreements.
Service Level Agreement
5.1 The Service Level Agreement (SLA) in this clause sets out:
(a) the Service Levels that we will achieve in connection with the provision of the Services; and
(b) the remedies available to you for any failure by us to achieve the Service Levels which are your sole and exclusive remedies for any failure by us to achieve the Service Levels.
5.2 This SLA covers the following elements of the Colocation Space and Cloud Services:
(a) supply of power;
(b) maintenance of temperature;
(c) maintenance of humidity levels; and
(d) cloud Service Interruptions
5.3 This SLA does not apply to any feature of the Colocation Space and Cloud Services not specifically identified in this SLA. To the extent permitted by law, the remedies set forth in this SLA are your sole and exclusive remedies for any failure by us to achieve a Service Level.
Service Levels
5.4 We will achieve the Service Levels in this SLA, as set out in the table below (each a “Service Level”). If we fail to achieve a Service Level (a “Failure”), you will be entitled under Your Agreement to a Service Credit (each a “Service Credit”) as set out in the table below, subject to the terms and conditions of Your Agreement.
(a) Colocation Space
(b) Cloud Services
Notification of Failure
5.5 We will, once we are aware of any Failure within 3 Business Days and as soon as is reasonably practicable in the circumstances, notify you of any Failure relating to the Colocation Space or Cloud Services. Following resolution of the Failure we will provide further notification of such resolution.
Service Credit
5.6 We will provide a Service Credit automatically, within 2 calendar months, on a notified Failure in clause 5.5, in respect of that part of the Colocation Space or Cloud Services affected by the Failure.
5.7 We are not required to provide a Service Credit on unnotified Failure unless the following requirements are met:
(a) you give us notice of the Failure immediately upon becoming aware of the Failure; and
(b) you request the Service Credit in respect of the Failure within 5 business days of its occurrence.
5.8 Any such notice or request must be made in the manner, and include the information, advised by us from time to time.
Service Credit Limitations
5.9 The maximum of all Service Credits required to be provided by us to you in any calendar month is 100% of the fees payable in respect of that part of the Colocation Space or Cloud Services affected by a Failure for the calendar month.
5.10 Service Credits will apply only to Services provided under Your Agreement. We are not required to provide Service Credits to you under Your Agreement against any Services that are provided under any other contract between us and you, nor to provide refunds under Your Agreement that arise under any other contract with you. If upon termination of Your Agreement there are outstanding Service Credits, such Service Credits are forfeited.
5.11 Notwithstanding any provision to the contrary in this SLA, the following do not constitute Failures (and you will not be entitled to a Service Credit):
(a) failures to achieve Service Levels that occur while any undisputed amount that is due and payable to us remains unpaid outside of any contractual payment terms;
(b) failures to achieve Service Levels caused by or in connection with Your Equipment, racks supplied by you or your acts or omissions;
(c) failures to achieve Service Levels caused by property of a third party or the acts or omissions of any third party including other sub-contractors unless those sub-contractors are acting under our directions or instructions.
(d) failures to achieve Service Levels caused by you exceeding the Power Allocation or by you failing to remedy a power imbalance in accordance with Your Agreement;
(e) failures to achieve Service Levels caused by our exercise of our rights pursuant to Your Agreement;
(f) a failure to achieve a Service Level that is recorded by a monitoring or reporting device, but which we can demonstrate to our reasonable satisfaction was incorrectly recorded as a Service Level Failure due to a defect in or failure of the monitoring or reporting device; and
(g) failures to achieve Service Levels caused by Force Majeure Events.
5.12 Notwithstanding any provision to the contrary in this SLA, and in addition to the items listed in clause 5.4 of this SLA, failures to achieve Service Levels due to scheduled maintenance do not constitute Failures in respect of any Service Level described above as having ‘Low’ severity.
5.13 For each incident, Service Credits for Your Agreement may only be calculated under one Service Level. In instances where there are multiple Services Levels for Your Agreement that have been impacted, the Service Credits payable to you shall be calculated using the regime which generates the greatest Service Credit payable to you, and only that Service Credit will be payable and no other additional Service Credits will be payable regardless of the total number of Failures arising from that incident.
Planned Maintenance
5.14 With respect to Colocation Services, we will use reasonable endeavours to:
(a) minimize disruption to the Services when performing maintenance;
(b) provide you with maintenance notifications 30 days in advance for planned maintenance and 3 days in advance for urgent or emergency maintenance
5.15 With respect to Cloud Services, we will use commercially reasonable efforts to notify you of any Scheduled Outages according to the following schedule involving:
(a) security related upgrades, at least 3 Business Days prior to the date on which the Schedule Outage is proposed to occur.
(b) non-security related upgrades, work will be carried out based upon a schedule to be communicated with the Partner at least 10 Business Days prior to the date on which the Schedule Outage is proposed to occur.
(c) any ancillary cloud services will be offline for more than 30 consecutive minutes at any time, we will notify you directly.
5.16 In the event that, in our reasonable opinion, any planned maintenance will cause, or is likely to cause, us to fail to achieve a Service Level, we will give you at least 30 days’ notice of the maintenance, such notice to include, where possible:
(a) details of the nature of the planned maintenance;
(b) the likely effect on our ability to achieve the Service Levels;
(c) the dates and times for carrying out the maintenance; and
(d) an estimated time scale for completing the planned maintenance.
Fees and Payment
6.1 The Fees contain charges as follows:
(a) Setup Fees;
(b) Colocation Services Fees;
(c) Power Fees;
(d) Connectivity Service Fees;
(e) Add-ons Services Fees;
(f) Cloud Services Fees; and
(g) any other fees as agreed between the parties.
Payment of Fees
6.2 The Fees are invoiced in accordance to the pricing established on the Service Order, subsequent amendments to the Service Order or our current pricing schedule, unless otherwise approved by us.
6.3 The Fees will be charged with non-recurring and monthly recurring charges as follows.
(a) Fees from the provision Colocation Services and Connectivity Services, monthly in advance, pro-rated to the Service Commencement Date.
(b) Power Fees, monthly in arrears, based on your metered power utilisation incurred in the previous month.
(c) Add-ons Services Fees in arrears.
(d) Cloud Services Fees, monthly in arrears, based on your metered usage incurred in the previous month.
(e) Setup Fees will be charged in your first invoice.
6.4 All invoices are due 30 days from the date issued without set-off, counterclaim, withholding or deduction.
6.5 We are not responsible for the payment of fees and charges for services provided by third parties contracted by you.
Fees Adjustment
6.6 Where the cost of supplying the Services increases due to:
(a) any increase in the cost of supplying the Services associated with any change in Tax Charge; or
(b) a material change in the cost of power to us,
(c) we may, by notice in writing to you, adjust the Fees.
6.7 On each anniversary of the commencement of the Term, we may increase our Fees by either CPI (Consumer Price Index for Perth) or 2.5%, whichever is greater and we advise you in writing of the revised Fees with the next invoice. If, at any time there is an increase in our cost of providing the Services, we may review and amend the Fees and advise you in written notice of the Revised Fees. The Revised Fees will become the effective Fees at 10 Business Days after the date of the notice.
Suspension
6.8 We may suspend your access to the Facility, the Colocation Space and any other services if an undisputed amount payable under Your Agreement is not paid within 7 days of its due date and you fail to pay the amount within 7 days of receiving a Suspension Notice from us; or
6.9 We may suspend the provision of power to the Colocation Space and the provision of all other services to you if an undisputed amount payable under Your Agreement is not paid within 14 days of its due date and you fail to pay the amount within 14 days of receiving a Suspension Notice from us.
Lien
6.10 You grant us a lien over Your Equipment as security whilst the undisputed amount payable is not paid.
GST
6.11 You acknowledge that the Fees are exclusive of GST and GST is payable in addition to the Fees.
Interest
6.12 If you do not make a payment of Fees within the period allowed under Your Agreement then you must pay interest of 10% per annum calculated daily and backdated to the invoice date.
Merchant Fee
6.13 1.5% Merchant fee payable on all credit card transactions
No Assignment
6.14 Each party’s Material remains the property of that party and nothing in Your Agreement grants the other party any Intellectual Property Rights in the Material or its other Intellectual Property Rights.
Your Material
6.15 To the extent reasonably required to allow us to perform and/or deliver the Services, you grant to us a non-exclusive, irrevocable, worldwide, royalty-free licence to exercise and sub-license the Intellectual Property Rights in any of Your Material in connection with us providing any Services to you.
6.16 You warrant that use of Your Material by us in accordance with clause 7.2 will not infringe the Intellectual Property Rights or other rights of any third party.
Indemnity
Customer Indemnity
7.1 You indemnify us from and against (and must pay for) any claims, liability, loss, damage, costs or expenses (including legal costs) we incur or suffer arising directly or indirectly, including as a result of any claim by us or other customers, from or in connection with:
(a) any breach of Your Agreement by you;
(b) your use (or attempted use) of the Services;
(c) the personal injury or death of any person (including any of your authorised personnel) in connection with Your Equipment, use of the Colocation Space or use of the Services or any act or omission by you or your authorised personnel;
(d) any wrongful or negligent act or omission by you or your authorised personnel;
(e) damage to Your Equipment, the Facility, the Colocation Space or your other property, our property or any third party’s (including the Facility Provider’s) property caused by or in connection with any act or omission by you or your authorised personnel; or
(f) as a result of the activation of gas/agent from fire suppression system at the Facility, as a result of any act or omission by you or your authorised personnel.
Continuing Obligation
7.2 Each indemnity contained in Your Agreement is a continuing obligation notwithstanding:
(a) any settlement of account; or
(b) the occurrence of any other thing and it is not necessary for us to incur expense or make payment before enforcing or making a claim under an indemnity.
7.3 The indemnities in clause 8.1 will be reduced proportionately to the extent of any negligent act or omission caused by us.
Liability
Our Liability To You
8.1 Subject to clauses 9.2 and 9.3, our aggregate liability for any loss or damage, however caused (including by our negligence), suffered by you in connection with Your Agreement is limited to:
(a) where you suffer loss or damage as a result of a failure by us to meet any Service Level, the relevant Service Credit specified in the SLA; or
(b) in every other case, an amount equal to the Colocation Services Fees paid by you to us under Your Agreement in the 12 months prior to you first suffering loss or damage in connection with Your Agreement.
8.2 Subject to clauses 9.1 and 9.3, we are not liable for any Consequential Loss, however caused (including by our negligence), suffered or incurred by you in connection with Your Agreement.
8.3 Nothing in Your Agreement operates to limit or exclude liability that cannot by law be limited or excluded. Our liability to you for breach of any statutory guarantee or term implied by statute which cannot be excluded is (to the extent permitted to by law) limited to, at our discretion:
(a) in the case of goods, the replacement, repair or supply of equivalent goods or paying the cost of doing so; and
(b) in the case of services, resupply of the services or payment of the cost of having the services resupplied.
When we are not liable
8.4 We are only liable to you in the cases set out in clause 9.1. Otherwise, we are not liable to you in contract, tort (including negligence) or otherwise for any loss or damage.
Risk
8.5 You are responsible for all loss or damage to Your Equipment however caused, except to the extent caused by our recklessness or unlawful conduct and subject to the limit in clause 9.1 (b).
Insurance
9.1 You must effect and maintain from a reputable insurance company:
(a) all insurances required by law, including workers’ compensation insurance in accordance with relevant legislation; and
(b) public liability insurance for an amount of not less than $20 million per claim.
9.2 If we request, you must provide us with evidence of the currency of the policies referred to in clause 10.1.
9.3 We must maintain public liability insurance for an amount of not less than $20 million per claim.
9.4 You must not knowingly do or fail to do anything which may cause an increase in the insurance premium of any policy held by us in respect of the Facility and will reimburse us for any such increase.
Assignment
10.1 You must not assign, in whole or in part, or novate your rights and obligations under Your Agreement without our prior written consent.
10.2 We may assign, in whole or in part, or novate our rights and obligations under Your Agreement.
Term
Term of Your Agreement
11.1 Your Agreement commences on Your Agreement Commencement Date, and continues until termination or expiry of the Service Term for Colocation Services (“Your Agreement Term”).
Service Term
11.2 Each Service commences on the Service Commencement Date, and continues for the Minimum Term.
11.3 After expiry of the Minimum Term, the Service automatically extends on a month to month basis on the existing terms (including price), unless either party notifies the other (at least 30 days before any automatic extension) that it does not wish the Service to extend automatically.
Termination
Termination By Us
12.1 We may terminate Your Agreement by written notice to you if:
(a) you fail to pay any undisputed amount payable under Your Agreement within 30 days of its due date;
(b) you fail to pay any undisputed amount payable under Your Agreement on or before its due date on more than 3 occasions in any rolling 12-month period;
(c) you commit a material breach of Your Agreement which is incapable of remedy, or you commit a material breach of Your Agreement which is capable of remedy and you fail to remedy the breach within 30 days of receiving a notice from us requiring you to do so;
(d) an administrator, receiver, liquidator or provisional liquidator is appointed to you, or you resolve to enter into any settlement, moratorium or similar arrangement for the benefit of your creditors, or you are unable to pay your debts when they are due;
(e) you undergo a change in Control without our prior written approval;
(f) a Force Majeure Event prevents us from performing all or substantially all of our obligations under Your Agreement for a period exceeding 60 days; or
(g) a change to the regulations or law which makes it commercially unviable for us to continue to provide the Services.
Migration
12.2 If the Facility is sold or otherwise disposed of by us, on your request we will use reasonable endeavours to assist you to transfer Your Agreement to, or enter into a new agreement with, any new owner, lessee or licensee of the Facility.
Early Termination Charges
12.3 If during the Minimum Term a Service is cancelled or terminated for any reason other than for our material breach, we may charge you any waived Fee(s) for the cancelled or terminated Service(s) and an amount calculated as follows:
(a) 100% x F x R
(b) where “F” is the average Fees paid or payable each month by you for the Service(s) up to the date of cancellation.
(c) where “R” is the number of months (or part of a month) remaining in the Minimum Term for the relevant Service(s).
12.4 You acknowledge that this amount is a genuine pre-estimate of the loss we are likely to suffer.
Consequences of Termination
12.5 Termination of Your Agreement does not affect any accrued rights or remedies of a party.
Obligations at End of Your Agreement Term
13.1 The Exit Date is:
(a) 30 days from the date Your Agreement expires;
(b) 30 days from the date of termination if Your Agreement is terminated under clause 13.
13.2 On or before the Exit Date you must:
(a) remove Your Equipment from the Colocation Space and the Facility and bear all costs incurred by you associated with such removal;
(b) repair any damage to the Colocation Space or the Facility caused by the removal of Your Equipment;
(c) if and to the extent requested by us, remove any works carried out on the Colocation Space and make good the Colocation Space to the condition it was in prior to the works being carried out (and in carrying out any such works, you must comply with the terms of Your Agreement);
(d) deliver up the Colocation Space in a condition that is consistent with you having complied with your obligations under Your Agreement;
(e) deliver any of our confidential information to us; and
(f) return our property, including but not limited to power rails and structured cabling.
13.3 If you do not remove Your Equipment in accordance with clause 14.2 (a), we may treat it as abandoned and deal with it in any way we see fit.
13.4 In complying with your obligations under this clause 14, you must not disturb or cause interruption to us or other users of the Facility.
Force Majeure
14.1 Neither party will be:
(a) in breach of Your Agreement as a result of; or
(b) liable for,
(c) any failure or delay in the performance of its obligations under Your Agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event. This clause does not relieve you from making any payment as required under Your Agreement.
Dispute Resolution
15.1 The parties agree to use best endeavours to resolve in good faith any dispute concerning Your Agreement. Each party must follow the procedures in this clause before starting arbitration or court proceedings (except for urgent injunctive or declaratory relief).
15.2 If a dispute arises between the parties that cannot be resolved promptly between our contact person and your contact person, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute.
15.3 If the dispute remains unresolved, the parties must try to resolve it by mediation administered by the Australian Commercial Disputes Centre according to its Mediation Guidelines.
15.4 The parties will continue performing their respective obligations under Your Agreement while the dispute is being resolved, unless and until such obligations are terminated or expire in accordance with Your Agreement.
15.5 Each party must bear its own costs of complying with this clause.
General
Severability
16.1 If any part of Your Agreement is or becomes void or unenforceable, that part is, or will be severed from this Your Agreement so that all parts that are not or do not become void or unenforceable remain in full force and effect and are unaffected by that severance.
Proper Law
16.2 Your Agreement shall be construed according to the laws of the State of Western Australia and the parties agree to submit to the non-exclusive jurisdiction of the Courts and Tribunals of the State of Western Australia.
Waiver
16.3 No failure or delay by us in exercising any right, power or privilege under Your Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
16.4 The rights and remedies provided in Your Agreement are cumulative and not exclusive of any rights and remedies provided by law.
Whole Agreement
16.5 Your Agreement contains the whole agreement between the Parties in respect of the subject matter of Your Agreement, and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
16.6 The Parties confirm that they have not entered into Your Agreement on the basis of any representation that is not expressly incorporated into Your Agreement.
Variation
16.7 Your Agreement can only be amended or varied in writing signed by you and us.
Confidentiality
16.8 You agree that the terms of Your Agreement and the nature and effect of the terms of Your Agreement are to be kept confidential and not disclosed to any person except the parties’ duly appointed financial and legal advisors or where required by law.
Further Assurance
16.9 Each Party to Your Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of Your Agreement or to make it easier to enforce.
Notices
16.10 A notice or other communication connected with Your Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in Your Agreement or by email.
Counterparts
16.11 Your Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one and the same instrument.
16.12 Your Agreement is not binding on any party unless one or more counterparts have been duly executed by, or on behalf of, each person named as a party to this Agreement and those counterparts have been exchanged.
16.13 A copy of a counterpart sent by email as a PDF:
(a) must be treated as an original counterpart
(b) is sufficient evidence of the execution of the original; and
(c) may be produced in evidence for all purposes in place of the original.
Pier DC Pty Ltd T/A DC Alliance