Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1 Registration Statement (General Form) HTML 1.38M
18: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 9K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 106K
3: EX-3.3 Articles of Incorporation/Organization or By-Laws HTML 150K
4: EX-4.2 Instrument Defining the Rights of Security Holders HTML 200K
5: EX-4.3 Instrument Defining the Rights of Security Holders HTML 76K
6: EX-4.4 Instrument Defining the Rights of Security Holders HTML 73K
7: EX-4.5 Instrument Defining the Rights of Security Holders HTML 81K
8: EX-4.6 Instrument Defining the Rights of Security Holders HTML 59K
11: EX-10.11 Material Contract HTML 52K
12: EX-10.12 Material Contract HTML 223K
13: EX-10.13 Material Contract HTML 462K
14: EX-10.17 Material Contract HTML 115K
15: EX-10.18 Material Contract HTML 53K
9: EX-10.2 Material Contract HTML 142K
10: EX-10.3 Material Contract HTML 292K
16: EX-21.1 Subsidiaries HTML 8K
17: EX-23.2 Consent of Experts or Counsel HTML 9K
This
Master Service Agreement (the “MSA (United States)”) is entered into on November6, 2009 (the “Effective Date”) by and between Equinix Operating Co., Inc.
(“Equinix”) and the undersigned customer (“Customer”).
In
consideration of the mutual covenants and conditions set forth below, Equinix
and Customer agree as follows:
A1. The
term “Agreement” as used in this MSA (United States) and in the General Terms
and Conditions attached hereto as Attachment A (“General Ts&Cs”) shall mean
this MSA (United States) and everything incorporated into this MSA (United
States) by reference, including the General Ts&Cs as modified below,
Attachment B, Service Levels, and everything referenced in this MSA (United
States) and in the General Ts&Cs as being incorporated by reference into
this Agreement, including the Policies and all Orders. Capitalized terms used in
this MSA (United States) but not defined in this MSA (United States) shall have
the meaning ascribed to them in the General Ts&Cs.
A2. The
terms and conditions set forth in the General Ts&Cs are hereby incorporated
by reference into this MSA (United States) with the following
modifications:
a. This
Agreement will be governed in all respects by the internal laws of the State of
California without regard to its conflict of law’s provisions. The Parties each
irrevocably agree to the exclusive jurisdiction of the courts of San Francisco.
California, and waive any right to bring any action against the other Party in
any other jurisdiction or courts. If any legal action is brought by either Party
arising from, or related to, the subject matter of this Agreement, the
prevailing Party will be entitled to an award of its reasonable attorneys’ fees
and costs.
b. All
notices sent by Equinix pursuant to Sections A2(e) and A2(i) of this MSA (United
States) may be sent by first class US mail, and receipt of such notices shall be
presumed to occur five (5) days after mailing.
c. Customer
will not file a mechanic’s lien or similar lien on, or in connection with, the
Licensed Space or IBX Centers. Without limiting the foregoing, in the event any
such lien is filed, Customer will be responsible for the immediate satisfaction,
payment or bonding of any such lien.
d. In
no event will Customer’s Equipment be construed as fixtures.
e. Equinix
and Customer will comply with the Policies, which have been furnished to
Customer and which are incorporated by reference into this Agreement. Equinix
may modify the Policies at any time(s), and any modification by Equinix to the
Policies will be effective upon notice to Customer, except modifications to the
Shipping Policies (the portion of the Policies entitled “Shipping Policies”),
which will be effective immediately upon being made. Customer may terminate this
Agreement as to a Licensed Space if Equinix modifies the Policies in a way
that materially adversely affects Customer’s use of the Services in such
Licensed Space, but only if Customer provides written notification that it
wishes to terminate this Agreement within ten (10) business days after Customer
receives notification of such change in the Policies.
f.
Except for the Policies, which may be amended by Equinix from time to time, this
Agreement may be
amended only in writing by an instrument signed by each Party. For the avoidance
of doubt, the prior sentence is not meant to prohibit the Orders confirmed
by Order Confirmation or prohibit Equinix from modifying the rates and fees
pursuant to Section A2(i) of this MSA (United States).
g. If
Customer wishes to dispute a charge listed on an Equinix invoice to Customer (a
“Disputed Amount”), Customer must submit a written dispute notice that includes
reasonably sufficient supporting documentation within ninety (90) days of
receipt of the initial invoice on which the Disputed Amount appears. If Customer
does not submit such written dispute notice and reasonably sufficient supporting
documentation to Equinix within such ninety (90) day period, then
notwithstanding anything in this Agreement to the contrary, Customer,
waives all rights to dispute such Disputed Amount and to file a claim of any
kind relating to such Disputed Amount (and Customer also waives all rights to
otherwise claim that it does not owe such Disputed Amount or to seek any
set-offs or reimbursements or other amounts of any kind based upon or relating
to such Disputed Amount).
Page 1 of
7
h. Service
Fees for the Services will begin to accrue on the Billing Commencement Date.
Customer will pay in full all invoices from Equinix within thirty (30) days of
the date of invoice. Any undisputed past due amounts owed by Customer will
accrue interest at the lesser of one and a half per cent (1.5%) per month or the
highest rate permitted by applicable law. All invoices will be paid in the
currency stipulated in the Order. Unless otherwise agreed to by the parties in
writing, Equinix will invoice in advance each month for all recurring
Services.
Service
Fees will be listed on Orders, except for Online Orders and Phone Orders, in
which case Service Fees will be Equinix’s then-current list price for such
Services, unless otherwise agreed to by the Parties in writing or in an Order
Confirmation. Upon sixty (60) days prior notice to Customer, Equinix may in its
reasonable discretion change the rates and fees for any and all Services at any
time(s) after twelve (12) months from the effective date of the applicable Order
for such Service, unless otherwise agreed to by the Parties in writing. For
purposes of the prior sentence, in the case of each Online Order and Phone
Order, the “applicable Order” shall mean the Order which contains the Licensed
Space in which the Services ordered on such Online Order or Phone Order is
installed.
i.
Customer shall be responsible for all Taxes related to the activities, or the
ownership or operation of the equipment (including Customer’s Equipment) of
Customer. Without limiting the foregoing, Customer will be responsible for
paying any and all Taxes separately imposed, levied or assessed against Customer
by any governmental, quasi-governmental or tax authorities. Customer will be
responsible for paying any Taxes imposed on Service Fees at the same time it
pays the Service Fees. If Customer is required to make any deduction,
withholding or payment on account of any Taxes in any jurisdiction in
respect of any amounts payable hereunder by Customer to Equinix, such amounts
will be increased to the extent necessary to ensure that after the making of
such deduction, withholding or payment, Equinix receives when due and retains
(free from any liability in respect of any such deduction, withholding or
payment) an amount equal to what would have been received and retained had no
such deduction, withholding or payment been required or made.
j.
The first sentence of section 4(e) of the G T&Cs is stricken.
k. Notwithstanding
anything to the contrary in section 6(a) of the G T&Cs, the cure period
for payment breaches shall be thirty (30) days, not ten (10) days, meaning “(ten
(10) days in the case of a failure to pay Service Fees)” shall be deleted from
this MSA.
l.
In section 6(b) of the GT&Cs, the reinstatement fee shall not exceed
$500.
m. In
section 6(c) of the GT&Cs, termination may only occur upon thirty (30) days’
prior written notice and so the words “thirty (30) days’ prior” shall be added
before “written notice” and “immediately” shall be deleted from this
MSA.
n. The
last sentence in section 8(b) of the GT&Cs is stricken from this
MSA.
o. In
section 9(e) of the GT&Cs, that if Equinix purports to assign the Agreement
to a company that is a direct competitor of the Customer, being another software
company with the same or substantially similar product focus as the Customer,
then the Customer may elect, upon written notice to Equinix, to terminate the
Agreement with no further liability to Equinix, and provided that the Customer
must exercise that right to terminate the Agreement within 30 days of receipt of
a notice of the purported assignment of the Agreement from Equinix to the
competitor.
p. Notwithstanding
anything to the contrary in section 9(g) of the General Terms and Conditions,
the following descending order of precedence will apply:
a.
the
Order;
b.
any
Attachments to the Master Services
Agreement;
c.
the
Master Services Agreement;
d.
the
Service Level Agreement;
e.
the
Policies; and
f.
General
Terms and Conditions.
Page 2 of
7
A3. For
the avoidance of doubt, this MSA (United States) shall in no way affect any
orders for services provided by any other Equinix Company to any other Customer Company.
Furthermore, Equinix and Customer acknowledge that the terms and conditions
contained in this MSA (United States) are binding upon Equinix and
Customer, but are
not binding upon any other Equinix Company or Customer Company, and that no other Equinix Company
or Customer Company
is required to agree to any of the terms and conditions set forth in this MSA (United
States).
A4. During
regular business hours and no more frequently than once in any consecutive 12
month period, at Customer’s sole expense and on a mutually agreed upon date
(which shall be no less than 10 business days after written notice from
Customer), time, location and duration, representatives of the Customer or its third party
representatives responsible for SAS 70 compliance
matters may perform a confidential audit of the relevant IBX Centers
for the sole purpose to enable the Customer to verify that the Customer is in a
position to comply with its own SAS 70 audit requirements, and
subject to reasonable postponement by Equinix upon Equinix’s request, which
postponement shall not exceed 10 business days. Customer agrees that (i) such
an audit shall not
adversely affect other customers of Equinix or Equinix’s operation of the IBX
Center; (ii) the Customer and its third party representatives shall comply with
Equinix’s Policies during such audit; and (iii) Customer shall ensure that any
third party representatives treat all of Equinix’s Confidential Information
disclosed to such
third party representatives as a result of such audit in the same manner Customer
is required to treat such Confidential Information. Any audit provided for in
this clause shall only consist of a visit to the IBX Center and/or the
Customer and its third party representatives review of Equinix’s
regularly-prepared records regarding the operation of the relevant IBX
Centers.
This
Agreement shall not take effect until signed by both Parties.
Customer
to complete:
Equinix
to complete:
The person
signing below hereby warrants and represents
that he or she has full authority to execute this
Agreement for the Party on whose behalf
he or she
is signing.
The person signing
below hereby warrants and represents that he
or she has full authority to execute this Agreement for the Party
on whose behalf he or she is
signing.
The
remainder of this page is intentionally blank.
Page 4 of
7
Attachment
B
Service
Levels
Power
If a
cabinet containing functioning equipment (“Loaded Cabinet”) in Customer’s
Licensed Spaces is powered by two (2) circuits from different power busses and
both circuits experience a simultaneous interruption in electrical power, such
that the Loaded Cabinet experiences an interruption in power (a “Power Outage”)
then, subject to the exceptions, conditions and notifications below, Customer
will be entitled to a credit under the following circumstances:
•
If
the Power Outage lasts longer than fifteen (15) consecutive minutes,
Customer shall be entitled to a credit equal to 1/30 of the monthly
recurring fee for that Loaded Cabinet (including 1/30 of the monthly power
fee and monthly cross-connect fee for that Loaded Cabinet) for the month
following the month in which the Power Outage occurred,
or,
•
If
the Power Outage lasts for one (1) continuous hour or longer, Customer
shall instead be entitled to a credit equal to 7/30 of the monthly
recurring fee for that Loaded Cabinet for the month following the month in
which the Power Outage occured:
provided,
however, that, notwithstanding the foregoing, for each of Customer’s Loaded
Cabinet(s), in no event shall the maximum credit (i.e., the aggregate amount of
the credits) to which Customer shall be entitled in any given calendar month
exceed 7/30 of the monthly recurring fee for that Loaded Cabinet for the month
in which the credit(s) will be applied (which is the month following the month
in which the Power Outage(s) occurred). For the avoidance of doubt, Customer
shall not be entitled to a credit for any portion of the fees for the month in
which the Power Outage(s) occurred.
IBX
Facility Access
If any
Authorized Person of Customer, who has scheduled an appointment at least
twenty-four (24) hours in advance and who is a registered user of the biometric
hand reader security system in the IBX in question (a “Registered, Advance
Noticed, Authorized Person”), is denied access to Customer’s cage (a “Denial of
Access”), then subject to the exceptions, conditions and notifications below,
Customer wll be entitled to a credit under the following
circumstances:
•
If
the Denial of Access lasts for more than fifteen (15) consecutive
minutes after Customer’s Registered, Advance Noticed, Authorized Person is
cleared by the IBX Center security officer, Customer shall be entitled to
a credit equal to 1/30 of the monthly recurring fee for the Access-Denied
Loaded Cabinet(s) (defined below) for the month following the month in
which the Denial of Access occurred,
or
•
If
the Denial of Access lasts for more than one (1) continuous hour after
Customer’s Registered, Advance Noticed, Authorized Person is cleared by
the IBX Center security officer, Customer shall be entitled to a credit
equal to 7/30 of the monthly recurring fee for the Access-Denied Loaded
Cabinet(s) (defined below) for the month following the month in which the
Denial of Access occurred:
provided,
however, that notwithstanding the foregoing, for each of Customer’s
Access-Denied Loaded Cabinet(s), in no event shall the maximum credit (i.e., the
aggregate amount of the credits) to which Customer shall be entitled in any
given calendar month exceed 7/30 of the monthly recurring fee for that Loaded
Cabinet for the month in which the credit(s) will be applied (which is the month
following the month in which the Denial(s) of Access occurred for that Loaded
Cabinet). For the avoidance of doubt, Customer shall not be entitled to a credit
for any portion of the fees for the month in which the Denial(s) of Access
occurred. For purposes of this Attachment B, the Access-Denied Loaded Cabinet(s)
for any given calendar month are those Loaded Cabinet(s) of Customer in the cage
to which there are Denial(s) of Access for such calendar month.
Page 5 of
7
Heating,
Ventilation and Air Conditioning (“HVAC”)
For
purposes of this Attachment B, the temperature and humidity within any cage is
measured between three (3) and five (5) feet from the floor and no closer than
twelve (12) inches from the cool air intake side of a cabinet.
a. Temperature
If the
Temperature in any of Customer’s cages drops below fifty-five degrees (55°)
Fahrenheit or exceeds eighty degrees (80°) Fahrenheit for more than fifteen (15)
consecutive minutes (“Temperature Irregularities”) on two (2) or more separate
days during a calendar month, then subject to the exceptions, conditions and
notifications below, Customer shall be entitled to a credit equal to 7/30 of the
monthly recurring fee for the Temperature Irregular Loaded Cabinet(s) (defined
below) for the month following the month in which the Temperature Irregularities
occurred; provided, however, that notwithstanding the foregoing, for each of
Customer’s Temperature Irregular Loaded Cabinet(s), in no event shall the
maximum credit (i.e., the aggregate amount of the credits) to which Customer
shall be entitled in any given calendar month exceed 7/30 of the monthly
recurring fee for that Loaded Cabinet for the month in which the credit(s) will
be applied (which is the month following the month in which the Temperature
Irregularities occurred for that Loaded Cabinet). For the avoidance of doubt,
Customer shall not be entitled to a credit for any portion of the fees for the
month in which the Temperature Irregularities occurred. For purposes of this
Attachment B, Temperature Irregular Loaded Cabinets for any given calendar month
are those Loaded Cabinets of Customer in the cage in which the Temperature
Irregularities occurred for such calendar month.
b. Humidity
If the
humidity inside any of Customer’s cages drops below twenty percent (20%) or
exceeds sixty-five percent (65%) for more than fifteen (15) consecutive minutes
(“Humidity Irregularities”) on two (2) or more separate days during a calendar
month, then subject to the exceptions, conditions and notifications below,
Customer shall be entitled to a credit equal to 7/30 of the monthly recurring
fee for the Humidity Irregular Loaded Cabinet(s) (defined below) for the month
following the month in which the Humidity Irregularities occurred; provided,
however, that, notwithstanding the foregoing, for each of Customer’s Humidity
Irregular Loaded Cabinet(s), in no event shall the maximum credit (i.e., the
aggregate amount of the credits) to which Customer shall be entitled in any
given calendar month exceed 7/30 of the monthly recurring fee for that Loaded
Cabinet for the month in which the credit will be applied (which is the month
following the month in which the Humidity Irregularities occurred for that
Loaded Cabinet). For the avoidance of doubt, Customer shall not be entitled to a
credit for any portion of the fees for the month in which the Humidity
Irregularities occurred. For purposes of this Attachment B, Humidity Irregular
Loaded Cabinets for any given calendar month are those Loaded Cabinets of
Customer in the cage in which the Humidity Irregularities occurred during such
calendar month.
Cross-Connects
If the
path, connectors, or other passive physical media that Equinix uses fails for
Cross-Connects due to circumstances caused solely by Equinix (“Media Failure”),
then subject to the exceptions, conditions and notifications below, Customer
will be entitled to a credit equal to the recurring fees for that Cross-Connect
for the month following the month in which such Media Failure occurs; provided,
however, that (i) Customer shall allow Equinix to test all Cross-Connects for
which Customer reports Media Failure; (ii) unavailability of a Cross-Connect
during such testing shall not be considered Media Failure hereunder; and (iii)
for each Cross-Connect, in no event shall the maximum credit (i.e., the
aggregate amount of the credits) to which Customer shall be entitled in any
given calendar month exceed the monthly recurring fee for that Cross-Connect for
the month in which the credit(s) will be applied (which is the month following
the month in which the Media Failure(s) occurred for that Cross-Connect). For
the avoidance of doubt, Customer shall not be entitled to a credit for any
portion of the fees for the month in which the Media Failure(s) occurred. In
addition, in the event that Equinix performs testing pursuant to this paragraph
because Customer has reported Media Failure, and such testing reveals that there
is no Media Failure, Customer shall be charged for such testing at the
then-current Smart Hands hourly rate, except that Customer shall be entitled to
one (1) instance of testing that reveals no Media Failure free of charge per
calendar month.
Notwithstanding
anything to the contrary in the Equinix Service Level Agreement or any other
part of the Agreement, if there is: (i) a “chronic service outage” in that there
is a failure to meet the Service Level Agreement leading to the payment of a
Service Credit there under on 3 separate occasions in a consecutive 3 month
period; or (ii) a “catastrophic failure” in that there is a failure to meet the
Service Level Agreement leading to the payment of a Service Credit that on any
one occasion lasts for more than 8 continuous hours, and such “chronic service
outage” or “catastrophic failure” is due to an act or omission of Equinix,
including without limitation, inadequate provision of power, cooling, and/or
flood/fire preventive measures, then Customer may elect, upon immediate notice
to Equinix, to terminate the Agreement with no further liability to Equinix,
provided that the Customer itself is not in breach of the Agreement and that the
Customer must exercise that right to terminate the Agreement within 30 days of
the end of the event that gives rise to the termination right.
Page 6 of
7
Exceptions,
Conditions and Notifications
The
credits set forth in this Attachment B are Customer’s sole and exclusive remedy
in the event of Equinix’s failure to meet the service levels stated herein.
Notwithstanding anything in this Exhibit to the contrary, for any calendar
month, in no event shall the maximum credit to which Customer shall be entitled
(i.e., in no event shall the aggregate of the credits for such month) exceed the
monthly recurring fee for the Loaded Cabinet(s) (in Customer’s Licensed
Space(s)) for which the service levels set forth herein were not met in the
prior month.
Notwithstanding
anything in this Exhibit to the contrary, Customer shall not be entitled to a
credit if the event or condition that would have otherwise given rise to the
credit was caused by any of the following:
·
acts
of God
·
war
or acts of terrorism
·
labor
strikes or other labor action
·
fire
·
flood,
earthquake, landslide, earth movement, hurricane, typhoon, tsunami,
volcanic eruption or other natural
disaster
·
riot
or civil unrest
·
official
orders from judicial, law or civil
authorities
·
Customer’s
equipment
·
actions
or inactions of Customer or its
representatives
·
actions
or inactions outside of Equinix’s reasonable
control.
Credit
will be given as provided above only if Customer notifies the Equinix Response
Center in writing not later than twenty-four (24) hours after the occurrence of
the event or condition entitling Customer to a credit. Unless otherwise
designated by Equinix, the Equinix Response Center can be reached 1) via email
to support@equinix.com; 2) via telephone 1-888-892-0807 if inside the
United States (Outside US: 650-513-7600), or 3) via websitehttp://ecc.equinix.com.
Page 7 of
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Agreement
Number ______________________
GENERAL
TERMS AND CONDITIONS
Note
regarding use of this document: The purpose of this document is to facilitate
the ability of a Customer Company to procure services from an Equinix Company
anywhere in the world. Once approved by a Customer Company and an Equinix
Company, these General Terms and Conditions can be incorporated into master
service agreements between the various Customer Companies and Equinix Companies
that desire to do business together. However, the General Terms and Conditions
shall not be binding upon and Equinix Company and a Customer Company unless and
until such Equinix Company and Customer Company execute a master service
agreement that incorporates them by reference.
Capitalized
terms used herein but not otherwise defined will have the meaning ascribed to
them in Section 10 of these General Terms and Conditions. The terms “Equinix”,
“Customer”, “Agreement” and “Effective Date” shall be defined in the applicable
master service agreement.
1.
Term of
Agreement
This
Agreement will commence on the Effective Date and will terminate on the date the
last Order then in effect expires or is terminated, or as otherwise expressly
provided herein. If this Agreement is terminated while Order(s) are still in
effect, then such Order(s) will automatically terminate.
2.
Ordering and Provision
of Services
Upon
execution by Equinix and Customer of this Agreement, Customer may request
specific Services from Equinix by placing Order(s). This Agreement and the
Order(s) will govern Equinix’s provision of Services to Customer and Customer’s
obligations to Equinix.
3.
Access and Use of the
IBX Centers, and Use of Customer’s
Equipment
a.
Subject to the terms and conditions of this Agreement, Customer will have access
to the Licensed Space twenty-four (24) hours per day, three hundred sixty-five
(365) days per year.
b.
Customer represents, warrants and covenants that it will comply with all
applicable law and regulations in connection with the performance of its
obligations and exercise of its rights under this Agreement, and that it has
obtained and will maintain throughout the Term the legal right and authority
(including regulatory consents) to operate, configure, provide, place, install,
upgrade, add, maintain and repair Customer’s Equipment as contemplated by this
Agreement, and Customer agrees that Customer will be responsible for all loss or
damage to Customer’s Equipment.
c.
Customer will be responsible and liable for all acts or omissions of Customer’s
Authorized Persons, Accompanying Persons, and Associated Entities, and all such
acts or omissions will be attributed to Customer for all purposes under this
Agreement. Customer will indemnify, defend and hold harmless the Equinix Parties
from any and all liability, damages, costs and expenses (including reasonable
attorneys’ fees and expenses) for (i) claims brought by third parties for
personal injury or damage to tangible property resulting from the gross
negligence or willful misconduct of Customer; (ii) any claim by any of
Customer’s Authorized Persons, Accompanying Persons or Associated Entities or
any employee of Customer other than a claim based on the gross negligence
or willful misconduct of Equinix; (iii) any claim relating
to, or arising out of, Customer’s, or any of its customer’s, services,
equipment (including Customer’s Equipment) or Customer’s use of the Services
provided under this Agreement (including claims relating to interruptions,
suspensions, failures, defects, delays, impairments or inadequacies in any of
the aforementioned services, including the Services from Equinix) (iv) any claim
that Customer has failed to fulfill a contractual obligation with a third party;
and (v) any claim resulting from Customer’s failure to obtain or maintain the
required consents pursuant to Section 3(b).
d.
Customer may sublicense the Sublicensed Space to a Sublicensee provided that (i)
the terms and conditions of such Sublicense will be no less restrictive than
this Agreement; (ii) Customer will not in its dealing with such Sublicensee
act or purport to act on behalf of Equinix or any landlord of Equinix; and (iii)
Customer will require the Sublicensee to abide by the rules set forth in the
Policies. No Sublicensee has any right to sublicense, delegate, assign or
otherwise transfer their rights to use the Sublicensed Space to any other person
or entity without Equinix’s written consent.
e. Under
no circumstances shall Equinix be deemed to have any obligations to any
Sublicensee. Sublicensees do not have any rights, separate and apart from
Customer’s rights, to access their Sublicensed Space. Accordingly, only
Customer’s Authorized Persons at an IBX Center may access the Sublicensed Space
of Sublicensees at such IBX Center. Furthermore, Equinix is not responsible for
restricting a Sublicensee’s access to Customer’s Licensed Space located in a
cage or suite to which that Sublicensee has access. Customer will remain
responsible to Equinix for the performance of all of Customer’s obligations
under this Agreement (including the payment of all amounts owned under this
Agreement) and all other agreements between Equinix and Customer.
f. This
Agreement is a services agreement and is not intended to and will not
constitute a lease of any real or personal property. Customer acknowledges and
agrees that (i) for Services being provided in a common law jurisdiction (e.g.,
the United States), it has been granted only a license to use the Licensed Space
in accordance with this Agreement, and, for Services being provided in a civil
law jurisdiction, it has had the Licensed Space made available and been granted
permission to access and use the Licensed Space in accordance with this
Agreement (in each case, “License”); (ii) Customer has not been granted any real
property interest under this Agreement; (iii) Customer has no rights as a tenant
or otherwise under any real property or landlord/tenant laws, regulations,
or ordinances; and (iv) this Agreement is subject and subordinate to the leases
for the IBX Centers and all superior Instruments to such leases. Equinix will
retain title to all parts and materials used or provided by Equinix or
third parties acting on Equinix’s behalf in the performance and/or
furnishing of the Services.
4.
Warranty Disclaimer,
Limitation of Liability,
Credits
a. ALL
SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN “AS
IS”, “AS AVAILABLE” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS SOLELY AT ITS
OWN RISK. EQUINIX DOES NOT MAKE, AND HEREBY DISCLAIMS, (I) ALL EXPRESS
WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY
WARRANTY THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED. ERROR-FREE,
OR COMPLETELY SECURE, AND (II) ANY AND ALL IMPLIED WARRANTIES WITH REGARD TO THE
SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY
QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY’S
INTELLECTUAL PROPERTY RIGHTS
b. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III)
LOSS OF REVENUES (EXCEPT THAT CUSTOMER SHALL BE LIABLE FOR ANY SERVICE FEES OR
OTHER AMOUNTS OWED TO EQUINIX UNDER THIS AGREEMENT; (IV) LOSS OF DATA OR
INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES;
OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF
APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EQUINIX’S TOTAL LIABILITY TO
CUSTOMER IN THE AGGREGATE FOR THE ENTIRE TERM (AND REGARDLESS OF WHETHER THE
CLAIMS ARE BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING
FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ATTORNEY’S
FEES) WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO EQUINIX FOR THE
THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST CLAIM
AROSE. AS A FURTHER LIMITATION, EQUINIX’S MAXIMUM LIABILITY FOR ANY CLAIMS
RELATING TO SERVICES OFFERED OR PROVIDED BY EQUINIX (I) FOR A NON-RECURRING
CHARGE ONLY; OR (II) AS SMART HANDS SERVICES SHALL NOT EXCEED THE AMOUNT OF THE
SERVICE FEE FOR SUCH SERVICE PROVIDED ON THE OCCASION GIVING RISE TO THE
CLAIM.
d. THE
LIMITATIONS SET FORTH IN SECTIONS 4(b)-(c) WILL APPLY TO ALL CLAIMS AND CAUSES
OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER
THEORY.
e. Equinix
and Customer each waive the right to bring any claim against the other Party
arising out of or in any way relating to this Agreement more than one (1) year
after the date this Agreement expires or is earlier terminated. Each Party
recognizes and agrees that the warranty disclaimers, limitations of liability
and remedy limitations in this Agreement are bases of this Agreement materially
bargained for by Equinix and Customer.
5. Insurance
Customer
agrees to maintain appropriate insurance, at its expense, for each IBX Center
during the entire time this Agreement is in effect, which at a minimum shall
consist of (i) Commercial General Liability Insurance in an amount not less than
One Million U.S. Dollars (US$1,000,000) with a maximum One Hundred Thousand
U.S. Dollars (US$100,000) deductible or self-insured retention, or the local
currency equivalent, per occurrence for bodily injury, death and property
damage, which policy will include contractual liability coverage related to this
Agreement; (ii) Workers’ Compensation and employer’s liability insurance in an
amount not less than that prescribed by applicable law, and (iii) umbrella
or excess liability insurance with a combined single limit of no less than Two
Million U.S. Dollars (US$2,000,000) or the local currency equivalent. Prior to
any use of the Licensed Space at an IBX Center (including, but not limited to,
delivery of any of Customer’s Equipment to an IBX Center), Customer will furnish
Equinix with certificates of insurance that evidence the minimum levels of
insurance set forth herein and which list Equinix and Equinix’s landlord(s) as
additional insureds (but the insurance must only list Equinix’s landlord as an
additional insured if Equinix so requests). In addition, Customer will notify
Equinix of any non-renewal, cancellation, reduction in policy limit or other
material change in Customer’s coverage at
least forty-five (45) days prior to such change in coverage.
6. Termination of Agreement and
Suspension of Service
a. Either
Party may terminate this Agreement by giving written notice of termination
to the other Party if the other Party breaches any material term or
condition of this Agreement and fails to cure such breach within thirty (30)
days (ten (10) days in the case of a failure to pay Service Fees) after receipt
of such notice. If the breach (other than where Customer has failed to pay
Service Fees) cannot be cured within thirty (30) days, the breaching Party shall
be given a reasonable period of time but not to exceed sixty (60) days
after receipt of the notice, to cure the breach, provided that the breaching
Party acts promptly and diligently to cure such breach.
b. Without
limiting Equinix’s rights under Section 6(a), Equinix may suspend the provision
of Services and deny access and removal of Customer’s Equipment to the IBX
Center, if (i) Customer fails to cure any monetary breach of this Agreement
(e.g. fails to pay any amounts owed) within ten (10) days after notice of the
same (or within five (5) days after notice of the same in the event Customer’s
account is past due on two (2) or more occasions during a six (6) month period);
(ii) Customer or Customer’s Equipment interferes with Equinix’s operation or
maintenance of the IBX Center or with one or more of Equinix’s other customers’
use thereof, and within a reasonable time, not to exceed one (1) hour after
being notified by email or phone, Customer fails to (a) cease such interference;
(b) provide a plan acceptable to Equinix to cease such interference; or (c)
authorize Equinix to take action to cease such interference (billed at Smart
Hands rates); or (iii) in Equinix’s reasonable judgment Customer or Customer’s
Equipment has the potential to interfere with Equinix’s operation or maintenance
of the IBX Center or with one or more of its other customers’ use thereof, and
within a reasonable time, not to exceed forty-eight (48) hours after being
notified by e-mail or phone, Customer fails to (a) resolve such potential
interference; (b) provide a plan acceptable to Equinix to resolve such potential
interference; or (c) authorize Equinix to take action to resolve such potential
interference (billed at Smart Hands rates). If Equinix suspends a Service
pursuant to this Section 6(b), unless Equinix has subsequently terminated this
Agreement as permitted under this Agreement, Equinix will resume the
discontinued Service as soon as reasonably practical after it is reasonably
satisfied that Customer has cured the breach(es) which gave rise to the
suspension, and Equinix may charge a reinstatement fee. Further, Equinix may
terminate this Agreement if Customer’s breach referenced in Section 6(b) (ii) or
(iii) continues for at least five (5) days or occurs more than three (3) times
in any twelve (12) month period.
c. Equinix
may terminate this Agreement immediately upon giving written notice to Customer
if Customer becomes unable to pay debts as they become due, ceases to do
business, enters into a deed of arrangement, undergoes judicial management,
commences the process of liquidation, has a receiver appointed or begins winding
up or similar arrangements.
d. Equinix
may terminate this Agreement upon giving written notice to Customer as to any
affected Licensed Space or IBX Center if any portion of the IBX Center in which
the affected Licensed Space is located becomes subject to a government order
having the effect of terminating Equinix’s use of such facility or if Equinix’s
possession is terminated or abated for any reason (e.g., condemnation
proceeding) or Equinix cannot provide Customer with access to the affected
Licensed Space as contemplated herein for a period exceeding thirty (30)
days.
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7. Removal of
Customer’s
Property
a. Upon
expiration or termination of this Agreement, or an Order (or any portion
thereof), all rights of Customer with respect to the affected Licensed Space
(“Terminated Space”), will terminate, and Customer will immediately remove all
of Customer’s Equipment and other items belonging to Customer, Customer’s
Authorized Persons, Accompanying Persons and/or Associated Entities located in
such Terminated Space (“Customer
Property”) but not any wiring, cable or other equipment or property that
does not belong to Customer. Customer agrees that unless Equinix otherwise
agrees in writing, failure to remove Customer Property within ten (10) days from
the expiration of the applicable Order (or Equinix’s termination of the Order
due to Customer’s breach or as otherwise permitted under this Agreement), or
within thirty (30) days if the Order is terminated before expiration due to
Equinix material breach, will constitute abandonment of the Customer Property
and will automatically provide Equinix with the remedies it has under the law of
the jurisdiction where the IBX Center is located in connection with abandoned
property, and additionally, Equinix will be entitled to pursue all available
legal remedies against Customer, including without limitation, any or all of the
following remedies; (i) immediately removing any or all such property and
storing it at Customer’s expense at an on-site or off-site location; (ii)
shipping such property to the address set forth at the end of this Agreement at
Customer’s risk and expense; or (iii) upon thirty (30) days prior written notice
to Customer, liquidating such property and charging Customer for all costs
associated with the liquidation and retain from the liquidation all amounts
necessary to pay Equinix all amounts owed by Customer under this Agreement,
including under this Section 7(a).
b. While
Customer has no right to use the Services provided under an Order after the
Order expires or terminates, if Equinix permits Customer to do so, Customer will
remain obligated under the terms and conditions of the Order (which Order in
such case will be deemed to be still in effect), including, without limitation,
for all payment obligations. Notwithstanding the foregoing, such continued use
will be at Equinix’s sole discretion and may be terminated by Equinix at any
time immediately upon notice to Customer.
c. Neither
Party will be liable to the other Party for properly terminating this Agreement
or any portion thereof in accordance with its terms, but Customer will be liable
to Equinix for any amounts due and payable. Where any Order is terminated prior
to the expiration of the Service Term, except due to Equinix’s material breach,
Customer will immediately be liable to Equinix for all Service Fees which would
have been payable by Customer for the remainder of the entire Service
Term.
8. Confidential
Information
a. Neither
Party will disclose Confidential Information from the other Party without the
prior written consent of the other Party except where (i) the disclosure is
required by applicable law or regulation or by an order of a court or other
governmental body having jurisdiction after giving reasonable notice to the
other Party with adequate time for such other Party to seek a protective order;
(ii) if in the opinion of counsel for such Party, disclosure is advisable under
any applicable securities laws regarding public disclosure of business
information; or (iii) the disclosure is reasonably necessary and is to that
Party’s, or its Affiliates’, employees, officers, directors, attorneys,
accountants and other advisors, or the disclosure is otherwise necessary for a
Party to exercise its rights and perform its obligations under this Agreement,
so long as in all cases referenced above, in this subsection (iii), the
disclosure is no broader than necessary, and the person or entity who receives
the disclosure agrees prior to receiving the disclosure to keep the information
confidential (except with regards to disclosures to a court or arbitrator in
connection with an action to enforce a Party’s rights under this Agreement).
Each Party is responsible for ensuring that any Confidential Information of the
other Party that the first Party discloses pursuant to this Agreement (other
than disclosures pursuant to subsections (i) and (ii) and (iii) (but with
respect to (iii), only with regard to disclosures to a court or similar body
necessary for a Party to exercise its rights under this Agreement) above that
cannot be kept confidential by the first Party) is kept confidential by the
person receiving the disclosure to the same extent that the receiving Party must
keep the information confidential.
b. Neither
Customer nor Equinix grants the other Party the right to use its trademarks,
service marks, trade names, logos, copyrights, or other intellectual property
rights or other designations in any promotion, publication, or press release
without the prior written consent of the other Party in each case.
Notwithstanding the restrictions set forth in this Agreement during the Term.
(i) Equinix may issue a press release announcing Customer’s entry into the IBX
Centers without obtaining Customer’s consent; and (ii) either Party may publicly
refer to the other Party, orally and in writing, as a customer or vendor of
services of or to the other Party, as the case may be, without
obtaining consent from such other Party.
9. Miscellaneous
a. Notice. Except where
otherwise expressly stated in the Agreement, all notices, consents, or approvals
required by this Agreement will only be effective if in writing and sent by (i)
certified or registered air mail, postage prepaid; (ii) overnight delivery
requiring a signature upon receipt; (iii) delivery by hand; or (iv) facsimile or
electronic mail (promptly confirmed by mail), to the Parties at the respective
street addresses, facsimile numbers, or electronic mail addresses set forth and
designated as such in this Agreement or such other addresses or facsimile
numbers as may be designated in writing by the respective Parties. Notices,
consents and approvals under this Agreement will be in writing and be deemed
effective on the date of receipt.
b. Entire Agreement. This Agreement and
all Orders executed at any time during the Term, all of which are incorporated
herein by this reference, constitute the complete and entire agreement between
the Parties with respect to the subject matter hereof, and supersede and replace
any and all prior or contemporaneous discussions, negotiations, proposals,
understandings and agreements, written and oral, regarding such subject matter,
as well as any industry custom. This Agreement may be executed in two or more
counterparts (and the signature pages may be delivered with ink signature or by
facsimile or email), each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
c. Construction. Each
Party acknowledges and agrees that it has reviewed this Agreement, and it
is the Parties’ intent that this Agreement will not be construed against any
Party. The section headings and captions throughout this Agreement are for
convenience and reference only, and will not be used to construe this Agreement.
If any provision of this Agreement is adjudged by a court to be invalid, illegal
or unenforceable, the same will not affect the validity, legality, or
enforceability of the portion of the provision, if any, that is not invalid,
illegal or unenforceable, the application of such provision in any other
circumstances, or the validity, legality, or enforceability of any other
provision of this Agreement. All terms and conditions of this Agreement will be
deemed enforceable to the fullest extent permissible under applicable law, and,
when necessary, the court in any action between the Parties is requested to
reform any and all terms or conditions to give them as much effect as possible.
In these General Terms and Conditions, references to “Section(s)” shall be
references to Section(s) of these General Terms and Conditions.
d. Survival. Sections
3(b), 3(c), 3(e), 4, 6, 7, 8, 9(a), (c), (d), (f) and (h) will survive the
termination of this Agreement, but Section 8 will only survive for three (3)
years after the end of the Term. In addition, all provisions of this Agreement
that can only be given proper effect if they survive the termination of this
Agreement will survive the termination of this Agreement. This Agreement will be
valid as to any obligation incurred prior to termination of this Agreement,
including any Service Fees owed by Customer.
e. Equinix Affiliates,
Independent Contractors, Assignment. Equinix may permit any other Equinix
Affiliates, or any independent contractor or other third party, to perform any
of Equinix’s obligations hereunder, and Equinix may assign this Agreement to any
person or entity at any time. Customer may assign this Agreement without
Equinix’s prior consent (in which event Customer must provide Equinix with prior
notice of the assignment) only where the person or entity to whom this Agreement
is assigned by Customer is either an Affiliate of Customer, or is acquiring all
or substantially all of Customer’s business or assets, and in all such events
the person or entity to whom this Agreement is assigned by Customer agrees in
writing to be bound by all of the terms of this Agreement. This Agreement will
be binding upon and inure to the benefit of all successors and permitted assigns
of Equinix and Customer, who will be bound by all of the obligations of their
predecessors or assignors. Except as set forth in this Agreement with respect to
sublicensing only, and this Section 9(e) with respect to an assignment of the
entire Agreement under the conditions specified above only, Customer will not
assign, delegate, transfer or sublicense all or any part of the Licensed
Space.
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f.
Force
Majeure. Except for Customer’s obligation to pay amounts owed under this
Agreement, including Service Fees, neither Party will be responsible or in any
way liable to the other Party, and neither Party will have any termination or
other rights, arising out of or relating to any failure by the other Party
to perform or any hindrance in the performance of its obligations under this
Agreement if such failure or hindrance is caused by events or circumstances
beyond such nonperforming Party’s control, including acts of God, war, labor
strike, terrorist act, fire, flood, earthquake, health epidemic, any law, Order,
regulation or other action of any governing authority or agency thereof, or
failure of the Internet.
g. Conflicts. All Orders
are at all times subject to all of the terms and conditions of this
Agreement. In the event of ambiguity, conflict or inconsistency among the
documents comprising this Agreement; the documents shall be given a descending
order of precedence as folows: (i) the Order; (ii) the Attachments and Exhibits
to this Agreement, other than these General Terms and Conditions; (iii) the
Policies; (iv) the body of the master service agreement, and (v) these General
Terms and Conditions.
h. General. Except where
otherwise expressly stated herein, and subject to the limitations set forth in
Section 4, the rights and remedies provided for herein are cumulative and not
exclusive of any rights or remedies that a Party would otherwise
have.
Equinix
and Customer are independent contractors and this Agreement will not establish
any relationship of partnership, joint venture, employment, franchise or agency
between Equinix and Customer. Neither Equinix nor Customer will have the power
to bind the other or incur obligations on the other’s behalf without the other’s prior
written consent.
The
Parties agree that there will be no third party beneficiaries to this Agreement,
including, but not limited to, any Accompanying Person, Associated Entity (which
includes any Sublicensee), Authorized Person, end user, customer or the
insurance providers for either Party.
No waiver
of any breach of any provision of this Agreement will
constitute a waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver will be effective unless made in writing and
signed by an authorized representative of the waiving
Party.
10. Definitions
Accompanying Person: Each person (other than an
employee of Equinix) who is accompanied by an Authorized Person while at an IBX
Center.
Affiliate: As to a Party, means any entity
controlling, controlled by, or under common control with such Party, where the
term “control” and its correlative meanings, “controlling,”“controlled by,” and
“under common control with,” means the legal, beneficial or equitable ownership,
directly or indirectly, of more than fifty percent (50%) of the aggregate of all
voting equity interests in an entity.
Associated Entity: Each Individual, company,
partnership or other entity of any type which employs, contracts with, or is
otherwise associated or affiliated with any of Customer’s Authorized Persons or
Accompanying Persons. Without limiting the foregoing definition, each
Sublicensee that has sublicensed Sublicensed Space at an IBX Center will be an
Associated Entity at such IBX Center.
Authorized Person: Each person who is then
included on the most recent list of Authorized Persons given to Equinix by
Customer in accordance with the Policies.
Billing Commencement Date: For a Service
ordered in an Order other than Online Orders or Phone Orders, the date
designated in the Order as the Billing Commencement Date. For a Service ordered
in an Online Order or Phone Order, the date Equinix begins providing the Service
to Customer, unless otherwise agreed to by the Parties to the
Order.
Confidential Information: Information disclosed
by one Party to the other Party that (a) is identified by the disclosing Party,
in writing or orally, as confidential at the time of disclosure, or (b) contains
the disclosing Party’s customer lists, customer information, technical
information, pricing information, pricing methodologies, financial position,
trade secrets, customer communications or proposals, benchmarking information,
satisfaction surveys, or information regarding the disclosing Party’s business
planning or business operations. In addition, (i) the terms of this Agreement
will be deemed Confidential Information of each Party; and (ii) the design
of the IBX Centers, the Services provided and equipment used at the IBX Centers, and the
configuration, interconnection, switching and routing of telecommunication
cables, networks and services at the IBX Centers, all will be considered
Confidential Information of Equinix. Other than the terms and conditions of
this Agreement,
information will
not be deemed Confidential Information hereunder if such information (i) is
known to the receiving Party prior to receipt from the disclosing Party directly
or indirectly from a source other than one
having an obligation of confidentiality to the disclosing Party; (ii) becomes
known (independently of disclosure by the disclosing Party) to the receiving
Party directly or indirectly from a source other than one having an obligation
of confidentiality to the disclosing Party; (iii) becomes publicly known or
otherwise ceases to be secret or confidential, except through a breach of this
Agreement by the receiving Party; or (iv) is independently developed by the
receiving Party. For the avoidance of doubt, the mere placement of materials or
equipment containing information at an Equinix location does not constitute
disclosure of such information to Equinix.
Cross-Connect: A physical or wireless
interconnection within an IBX Center that (i) exits Customer's cage or (ii)
connects Customer to another Equinix customer
Customer Care Website: The customer care
website accessible via the Internet, at a location designated by Equinix, which
it has the right to change from time to time.
Customer Company: A company that is an
Affiliate of Customer.
Customer Cross-Connect: A physical
interconnection, including cable, connections, and other wiring, that (i) does not exit Customer's cage, (ii)
does not connect Customer to another Equinix customer, and (iii) interconnects
(a) Equipment belonging to the Customer or (b) POD Equipment that is provided by
Equinix and that is in Customer’s cage with Customer’s Equipment.
Customer’s Equipment: All network and/or
computer equipment (including wiring and Customer Cross-Connects
between such equipment and Customer’s POD Equipment) that is located in the
Licensed Space, including equipment that is owned, leased, licensed or otherwise
obtained for use by Customer, Customer’s Affiliates, Customer’s Authorized
Persons, Accompanying Persons or Associated Entities (but this does not include
Cross-Connects or POD Equipment that is provided by Equinix and that is located
in Customer’s Licensed Space).
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Customer Parties: Customer and the Affiliates,
owners, officers, directors, employees, and agents of Customer or of the
Affiliates of Customer.
Equinix Company: A company deemed by
Equinix to be an Equinix Company.
Equinix Parties: Equinix and the Affiliates,
owners, officers, directors, employees, and agents of Equinix or of the
Affiliates of Equinix.
IBX Centers: The Internet Business Exchange
Centers in which Customer licenses Licensed Space or receives Services from
Equinix pursuant to an Order.
Licensed Space: The areas which, for Services
being provided in the United States and/or a common law jurisdiction, are
licensed by Customer or, for Services being provided in a civil law
jurisdictions are made available to the Customer with permission to access and
use, in each case under this Agreement and the Orders and as identified in the
Orders as to the amount of space. For each Licensed Space, Equinix will
determine at all times during the Term the exact location in the IBX Centers
where the Licensed Space will be located, and Equinix will notify Customer
accordingly.
Online Order: An Order for Services placed
online via the Customer Care Website, which will be effective only after Equinix
accepts it in accordance with Equinix’s then current procedures or Equinix
begins providing the Services ordered under the Online Order.
Order: A statement of work incorporated into
the Agreement by reference prepared by Equinix that describes the Services. In
the United States, an Order may also be inferred to as a SOW and may be amended
by a SOW Amendment. In the Asia Pacific Region, an Order may also be referred to
as a Sales Order and may be amended by a Change Order. In Europe, an Order may
also be referred to as a Service Order. SOW Amendments and Change Orders will
amend existing Orders but will not replace them unless otherwise agreed
by the Parties in writing. Orders are not valid until signed by both
Parties, except for Online and Phone Orders. Equinix is under no obligation to
accept an Order. Unless otherwise specified, reference to Order(s) shall also
include Online Orders and/or Phone Orders.
Parties: Customer and Equinix.
Party: Customer or Equinix.
Phone Order: An Order for Services placed over
the phone, where available, via an Equinix customer care representative, which
will be effective only after Equinix accepts it in accordance with Equinix’s
then current procedures or Equinix begins providing the Services ordered under
the Phone Order.
POD Equipment: The (i) patch panels, DSX panels
for category 5 twisted pair, co-axial,
single and multi-mode fiber, or (ii) other appropriate (as reasonably determined
by Equinix) point of demarcation equipment
Policies: The procedures, rules, regulations,
security practices and policies adopted by Equinix that are then in effect for
the IBX Centers, and as they may be amended from time to time by
Equinix.
Services: All services, goods and other
offerings of any kind requested under an Order agreed to by Equinix, and to be
provided by Equinix to Customer pursuant to this Agreement.
Service Fees: Charges and fees for Services
charged to Customer by Equinix pursuant to this Agreement, and are exclusive of
Taxes.
Service Term: The period commencing on the
Billing Commencement Date and ending after the term specified on the applicable
Order.
Smart Hands Services: Services that are defined
as Smart Hand Services under the then current Policies.
Sublicensed Space: The portion of the Licensed
Space that, for Services being provided in the United States and/or a common law
jurisdiction, is sublicensed to a Sublicensee by Customer or, for Services being
provided in a civil law jurisdiction, is made available to a Sublicensee with
permission to access and use, in each case pursuant to the terms of this
Agreement.
Sublicensee: A customer of Customer or other
third party who (i) sublicenses all or part of the Licensed Space from Customer,
if such Licensed Space is located in the United States or a common law
jurisdiction, or (ii) is able to access and use all or part of the Licensed
Space as made available by the Customer, if such Licensed Space is located in a
civil law jurisdiction.
Taxes: Sales, use, transfer, privilege, excise,
VAT, GST, consumption tax, and other similar taxes and duties, whether foreign,
national, state or local, however designated, now in force or enacted in the
future, which are levied or imposed by reason of the performance by Equinix or
Customer under this Agreement or by Customer with respect to its operations and
use of the Services, but excluding taxes on Equinix’s net income.
Term: The term of this Agreement as determined
in accordance with Section 1 of this Agreement.
