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As Of Filer Filing For·On·As Docs:Size 8/11/08 Taleo Corp 10-Q 6/30/08 5:1.5M |
Document/Exhibit Description Pages Size 1: 10-Q June 30, 2008 Form 10-Q HTML 846K 2: EX-10.1 Material Contract HTML 30K 3: EX-31.1 Certification per Sarbanes-Oxley Act (Section 302) HTML 14K 4: EX-31.2 Certification per Sarbanes-Oxley Act (Section 302) HTML 14K 5: EX-32.1 Certification per Sarbanes-Oxley Act (Section 906) HTML 10K
1.
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Taleo (Europe) B.V. (the
“Customer”), whose
registered office is at Beech Avenue 54-80, 1119 PW, Schiphol-Rijk, VAT No
NL 8101.66.859.B.01, the Netherlands;
and
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2.
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Equinix Netherlands B.V.
(“Equinix
Netherlands”), whose registered office is at Auke Vleerstraat 1,
7521 PE, Enschede, the Netherlands,
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I.
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Whereas
Taleo Corporation has entered into a Master Services Agreement (“US Agreement”) with
Equinix Operating Co., (“Equinix US”) on April
14, 2006 (Taleo_MSA_v11_clean.doc, Version 8/5/04 as attached to this MSA)
in regard of the Services to be rendered by Equinix US as more fully
described in the US Agreement.
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II.
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Whereas
Customer desires to assume the rights and responsibilities in the US
Agreement in order to make use of the Services to be rendered by Equinix
Netherlands in the data centre at Luttenbergweg 4, 1101 EC, Amsterdam, the
Netherlands (the “Amsterdam Data
Centre”).
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III.
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Whereas
Equinix Netherlands desires to render Services to Customer in the
Amsterdam Data Centre in accordance with the terms and conditions set out
in the US Agreement, unless otherwise stated hereinafter in this MSA. If
there is any inconsistency between the US Agreement and the MSA, the term
of this MSA shall prevail to the extent of any such
inconsistency.
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IV.
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Unless
otherwise defined herein, all capitalized terms used herein shall have the
meaning attributed to them in the US
Agreement.
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1.
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Unless
stated otherwise in this MSA, the terms and conditions of the US Agreement
are incorporated in this MSA and shall govern the Parties’ contractual
relationship constituted under this MSA as of the Effective Date and until
such date this MSA expires, terminates, or be replaced by another
agreement between the Parties hereto. Any Order within the meaning of
Section 2 of the US Agreement shall be referred to herein as Service
Order.
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2.
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Exhibits
B and C to the US Agreement are not applicable to this MSA. An applicable
Service Level Agreement for Europe, including the Amsterdam Data Centre,
is set out in Attachment 2 to this
MSA.
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3.
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Section
2(b) of the US Agreement is not applicable to this MSA. Equinix
Netherlands will not provide a Customer Care Website for the Amsterdam
Data Centre or elsewhere in Europe. Rather, customer care and support for
the Services is obtained by calling the NL ServiceDesk (known in the US as
the ERC) which will raise tickets and answer all issues etc. The contact
information for the NL ServiceDesk will be given to the Customer as part
of the “Welcome Pack” or “Customer User
Guide.”
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4.
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Notwithstanding
anything contained in Section 5 and 6 of the US Agreement, nothing in this
Agreement excludes or limits or purports to exclude or limit a Party's
liability to the other Party for any willful misconduct, gross negligence
or liability under product liability
law.
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5.
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Notwithstanding
Section 9 (n) of the US Agreement, and excluding Customer’s obligations 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 of 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 directly caused by event or circumstances beyond the
non-performing Party's control, including fire, flood, embargo, act of
sabotage, terrorism, riot,
mandatory
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6.
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compliance
with any governmental act, regulation or request, act of God or by public
enemy; provided that, with respect to Equinix Netherlands, Equinix
Netherlands has implemented industry standard measures and safeguards
expected of a competent provider of high availability data centre
services, including but not limited to, implementation of a fall over back
power source, means to address HVAC failures, means to monitor and control
access to the Licensed Space, means to handle security breaches at an IBX
Center, having backup plans in place in the event of a labor disruption
and means to replace hardware in the event of a hardware failure (“Force Majeure Event”).
If Equinix is unable to provide the Services contemplated herein for more
than three (3) consecutive days as a result of a Force Majeure Event,
Customer shall have the right to terminate this Agreement immediately with
written notice, provided Equinix receives such notice of termination no
later than thirty (30) days after the date Customer’s right to termination
arises pursuant to this Clause 5 of the MSA, and in such event, Customer
will be liable only for those Service Fees for Services actually rendered
up to the effective termination date, and not for any early termination,
early cancellation or other charges. In the event a Force Majeure Event
prevents Equinix from providing any Service, Customer’s obligation to pay
the Service Fees for such Service affected by the Force Majeure Event
shall abate during the time period the Force Majeure Event excuses
Equinix’s performance hereunder. Notwithstanding the foregoing, if
Customer is unable to pay amounts owed under this Agreement due to a Force
Majeure Event, Equinix shall not be required to provide Services until
Customer remits payment.
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7.
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For
the avoidance of doubt, Equinix Netherlands will not assume any liability
or obligation other than its own liability or obligations arising under
this MSA and shall not be jointly and severally liable in regard of any
liability and/or obligation of any other Equinix Entity and vice versa.
Notwithstanding the foregoing, Equinix Netherlands shall not be relieved
from liability arising out of the acts or omissions of any third parties
it permissibly engages to provide the Services to
Customer.
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8.
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In
addition to the “Confidentiality and Security Measures” contained in
Exhibit A to the US Agreement, the following terms will apply to the
provision of Services pursuant to this
MSA.
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a.
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This
MSA and any transaction contemplated thereby may be governed by one or
more privacy laws or regulations including the European Union’s Data
Protection Directive 95/46/EC as implemented in the Dutch Data
Protection Act (Wet Bescherming Persoonsgegevens) (collectively, the
“Regulations”). If
so governed, then to the extent not captured already by the definition of
Confidential Information in the Agreement, or required already by the
obligations of the Parties thereunder: (a) the term “Confidential
Information” shall further include all Nonpublic Personal
Information, Protected Health Information, material nonpublic information
and Personal Data as each of those terms is defined in or by application
of each respective Regulation (collectively, the “Regulated Information”);
and (b) either Party shall comply with all requirements of the Regulations
reasonably known to be applicable to the Regulated Information portions of
the Confidential Information actually received by the other Party
including all reporting, audit, access, third party disclosure and onward
transfer obligations and restrictions therefor, if any are so
applicable. If a Regulation applicable to a Party under this
MSA is amended, and/or if any other state or federal law, regulation or
treaty is effected such that a more restrictive standard of
confidentiality or obligation of privacy or security is imposed with
respect to an applicable component of the Regulated Information portions
of the Confidential Information, then such more restrictive standard shall
prevail over the provisions of this MSA with respect to those
portions. By signing below the Parties acknowledge that the
Regulations may prohibit or render ineffective some or all of the
exclusions otherwise available under the
Agreement.
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9.
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Different
to Section 9 (b) of the US Agreement, this MSA shall be governed by and
construed in accordance with Dutch law without regard to any conflict of
law principles. If and to the extent any terms and conditions
of the US Agreement (including the SLA) are not in compliance with
mandatory Dutch law, Dutch statutory law shall apply in lieu, to the extent
necessary, of such terms and conditions not in
compliance.
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10.
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Any
dispute arising out of or in connection with this MSA shall be settled and
adjudicated by the competent courts in Amsterdam, the
Netherlands.
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Taleo
(Europe) B.V.
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Name
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Josh
Faddis
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Position
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Vice
President & Corporate Counsel
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Date
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27th of June 2008 |
Signature
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/s/ Josh Faddis |
Equinix
(Netherlands) B.V.
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Equinix
(Netherlands) B.V.
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Name
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Harro
Beusker
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Eric
Schwartz
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Position
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Managing
Director
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Managing
Director
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Date
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30th of June 2008 | 30th of June 2008 |
Signature
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/s/ Harro Beusker | /s/ Eric Schwartz |
This ‘10-Q’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 8/11/08 | 4 | ||
For Period End: | 6/30/08 | 4 | ||
4/14/06 | 8-K | |||
List all Filings |