EXHIBIT 10.21
Agreement No._________________________
ORDER FORM
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Customer: MCI Worldcom, Inc. Contact: Dennis Muse
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Address: 1 Tower Lane, Suite 2300, Oak Brook Terrace, IL 60181 Phone: 630.203.7381
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Equinix Location Designation: See Attached Agreement dated November 16, 1999. Fax: 630.203.0564
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Billing Address: 1 Tower Lane, Suite 2300, Oak Brook Terrace, IL 60181 E-Mail: dennis.muse@wcom.com
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1. Premises:
Building:
Space shall refer to the items as set forth on the attached quotation. See Attached Agreement dated November
16, 1999.
Fees are as set forth on the attached quotation.
Effective Date:
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2. Premises:
Building:
Space shall refer to the items as set forth on the attached quotation. See Attached Agreement dated November
16, 1999.
Fees are as set forth on the attached quotation.
Effective Date:
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3. Premises:
Building:
Space shall refer to the items as set forth on the attached quotation. See Attached Agreement dated November
16, 1999.
Fees are as set forth on the attached quotation.
Effective Date:
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4. Premises:
Building:
Space shall refer to the items as set forth on the attached quotation. See Attached Agreement dated November
16, 1999.
Fees are as set forth on the attached quotation.
Effective Date:
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This Customer Agreement (hereinafter the "Agreement") is between
Equinix, Inc., a Delaware corporation (hereinafter "Equinix") and the Customer
listed in the Order Form above who wishes to locate certain network and/or
computer equipment (hereinafter "Equipment") within the IBX (as defined below).
This Agreement includes and incorporates the Order Form, the attached quotation
from Equinix, any future Order Form(s) and quotation(s) from Equinix, as well as
the accompanying Terms and Conditions, and all policies published by Equinix
from time to time relating to the use of the Space ("Policies") (a copy of the
current version of such Policies is attached to this Agreement) and contains,
among other things, warranty disclaimers, liability limitations and use
limitations. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, THERE SHALL BE NO
FORCE OR EFFECT TO ANY DIFFERENT OR ADDITIONAL TERMS: (1) OF ANY RELATED
PURCHASE ORDER, CONFIRMATION OR SIMILAR FORM OR (2) ATTACHED BY CUSTOMER NOT
SPECIFICALLY PRE-APPROVED BY EQUINIX IN WRITING. IF CUSTOMER USES OR ORDERS ANY
SPACE, SERVICES, AND/OR LICENSE FROM EQUINIX AT ANY TIME, EQUINIX'S ACCEPTANCE
AND SUCH USE IS EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE
TERMS ARE CONSIDERED AN OFFER BY EQUINIX, ACCEPTANCE IS EXPRESSLY LIMITED TO
THESE TERMS.
Equinix, Inc. Customer:
By: /s/ Albert M. Avery, IV By: /s/ Dennis D. Muse
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Name & Title: Albert M. Avery, IV, Name & Title: Dennis D. Muse,
President President, Telecom
Equinix mailing address:
Equinix, Inc.
901 Marshall Street
Redwood City, CA 94063
Agreement No._________________________
TERMS AND CONDITIONS
1. License Terms and Responsibilities of the Parties.
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(a) Equinix and its affiliates build and provide Internet business and
exchange facilities with related services. Upon payment of the applicable fees
and subject to the terms and conditions herein, Equinix or the relevant
affiliate (i) grants Customer a license ("License") to use that certain area or
cabinet or rack space of the IBX (as defined below) as set forth in the Order
Form attached and as further determined by Equinix (hereinafter "Space") only
for installing, maintaining, and operating Equipment in the manner set forth in
the Policies (as defined below), and (ii) shall provide certain services for
Customer set forth herein and in the Policies ("Services"). If Equinix and
Customer execute an Order Form and/or quotation or enter into any agreement for
the provision of any additional services or licenses or the use of any portion
of the IBX, such additional services, licenses or IBX use shall be subject to
the terms and conditions of this Agreement, and shall be respectively
incorporated into the terms "Services," "License," and "Space." For the purposes
of this Agreement, "IBX" means the facility at the Premises of the Building set
forth in the Order Form, and related facilities (including but not limited to
equipment related to such facility, a parking structure that is related to such
facility, and the rooftop of such Building).
(b) Customer shall comply with Policies and shall obtain prior written
consent from Equinix before engaging in, performing any activity or work, or
making any changes or modifications relating to the Equipment, Space, or IBX,
including but not limited to delivery, installation, connection, or removal of
Equipment. Policies may be changed from time to time by Equinix in its
discretion without notice. Customer shall obtain Equinix's written approval of
Customer's choice of supplier and contractors engaged to perform any services
(including but not limited to services under this Section 1) for Customer
associated with the Equipment, Space, IBX, or Building. Customer may request
Equinix to perform any such services, which Equinix or Equinix's designated
agents may perform at Equinix's discretion. All costs of the services or
activities under this Section 1(b) shall be at Customer's sole expense.
(c) Customer acknowledges that the License is only to use the Space, and
that Customer has not been granted any other rights or real property or other
interests in the Space, the Premises or the Building.
(d) Equinix or its designated agents shall perform services set forth in
Policies which support the overall operation of each Space.
(e) Unless otherwise elected by Equinix in writing (which Equinix may do at
its option), only Equinix or its designated agents shall (at Equinix's sole
discretion) connect or install a connection from the Equipment to any other
equipment, utility, item, or service (collectively, "Interconnection").
2. Additional Terms Governing Use Of Space.
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(a) Sublicense.
(i) Subject to the terms and conditions under this Agreement,
Customer may sublicense any part of the Space; provided that each sublicensee of
Customer (1) shall not sublicense or provide or make available in any manner any
part of the Space to any third party and (2) is an entity that obtains Internet
and/or telecommunications services from Customer at the IBX; and provided that
each such sublicensee agrees in writing to be bound by the terms, conditions,
liability limitations and disclaimers set forth in this Agreement. Customer
shall be responsible for any and all activities of such sublicensee. Equinix
shall have no obligation to assist such sublicensee, and any breach of this
Agreement by such sublicensee shall be deemed a breach of this Agreement by
Customer. Customer shall not make any representations or warranties on Equinix's
behalf. Customer shall indemnify and hold harmless Equinix and its affiliates,
representatives, employees, other customers, contractors, and agents from any
and all liability, damages, costs and expenses (including, but not limited to
attorneys' fees and expenses) arising from or relating to the use of the Space
or any subject matter of this Agreement.
(ii) Equinix and Customer are independent contractors and not
partners, joint venturers or otherwise affiliated and neither has any right or
authority to bind the other in any way. Each party shall make no representations
to the contrary to any third party.
(b) Insurance.
(i) Customer agrees to maintain, at Customer's expense, for each IBX
during the entire time this Agreement is in effect (1) Comprehensive General
Liability Insurance in an amount not less than One Million U.S. Dollars
($1,000,000) per occurrence for bodily injury and property damage, which policy
shall include a broad form comprehensive liability endorsement that specifically
includes contractual liability coverage insuring Customer's activities
contemplated by this Agreement; (2) Worker's Compensation and employer's
liability in an amount not less than that prescribed by statutory limits
covering any of its actions or damage by its Equipment at each IBX; (3)
commercial automobile liability insurance (including owned, non-owned, leased
and hired vehicles), which insurance shall apply to bodily injury and property
damage in a combined single limit of no less than One Million U.S. Dollars
($1,000,000) per accident; (4) umbrella or excess liability insurance with a
combined single limit of no less than Two Million U.S. Dollars ($2,000,000); and
(5) personal property insurance for full replacement value for the Equipment,
and any trade fixtures, personal property or other property while in the care,
custody, or control of Customer, Equinix and/or Equinix's designated agents.
Prior to any direct or indirect use of the Space (including but not limited to
delivery of any Equipment to IBX), Customer shall furnish Equinix with
certificates of insurance which evidence the minimum levels of insurance set
forth herein and which names Equinix and other parties with an interest in the
Space as designated by Equinix, as additional insureds. The requirements in this
Section 2(b) shall be subject to change at Equinix's discretion, upon ninety
(90) days' prior written notice.
(ii) Equinix shall have no obligation to insure or be responsible for
any loss or damage to property of any kind owned or leased by Customer or its
employees, contractors, and agents. Any policy of insurance covering the
Equipment owned or leased by Customer against loss or physical damage shall
contain a waiver by Customer of any and all claims against Equinix and other
parties with an interest in the Space as designated by Equinix, and each of
their directors, officers, employees, affiliates, contractors and agents. In
addition, any property insurance policy carried by Customer covering property
in, on or about the Building shall expressly waive any right of subrogation on
the part of the insurer against Equinix and/or its officers, directors,
affiliates, employees, agents and contractors when acting within the scope of
their employment or engagement.
3. Authorized Access Protection and Related Customer Responsibilities.
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(a) Customer's employees, representatives, and/or agents shall comply
with all Premises, IBX, security and access procedures established from time to
time by Equinix. Customer shall provide a written list of all employees,
representatives, and/or agents of Customer who are authorized to enter the
Space. Customer shall provide written notification of any changes to such list
at least one (1) business day prior to the next entry of Customer to such Space.
Equinix (at its discretion) may refuse entry to any persons who are not named on
such list.
(b) Except for matters in the reasonable control of Equinix, Customer
is responsible for protecting Customer's authorized access (including but not
limited to authorized electronic certificates issued to Customer by Equinix) to
the Space and the IBX, Equinix's web site and systems, and for any authorized or
unauthorized use made with such Customer's authorized access. Customer shall not
permit anyone to access or use anything at the IBX, except (1) for the Building
common areas, the IBX common areas (to be provided by Equinix in its sole
discretion such as a kitchen and conference room), and Space, and (2) in strict
compliance with this Agreement.
(c) Customer acknowledges and agrees that Equinix and its designees
shall at all times have access and entry to the Space to perform the Services
and as otherwise reasonably determined by Equinix. Furthermore, Customer hereby
consents to any entry into the Space by law enforcement authorities.
4. Use of Building by Customer.
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Upon the occurrence of any event set forth in the "Use of Building by
Customer" section of the Policies, Equinix may, in addition to any and all other
remedies available to Equinix under this Agreement or by law or in equity, upon
written notice to Customer, suspend its performance and/or terminate this
Agreement with no further obligation to Customer.
Agreement No._________________________
5. Interruptions in Service.
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Equinix shall use reasonable commercial efforts to maintain the IBX in a
manner that minimizes errors and interruptions in the services provided by
Equinix hereunder. However, Equinix shall not be liable for any errors or
interruption in service, whether within or outside of Equinix's reasonable
control. Service may be temporarily unavailable for scheduled maintenance or for
unscheduled emergency maintenance, either by Equinix or by third-party
providers, or because of other causes beyond Equinix's reasonable control.
Equinix shall use reasonable commercial efforts to provide advance notice in
writing or by electronic mail or by telephone or other electronic means
(including but not limited to pagers and pilots) of any scheduled service
disruption.
6. Term of Agreement, Termination, and Renewal.
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(a) This Agreement shall have a term of one year from the Earliest
Effective Date. For the purposes of this Agreement, "Earliest Effective Date"
means, for each Equinix Location Designation, the Effective Date (as set forth
on the Order Form) for the earliest Space licensed by Customer in such Equinix
Location Designation. Accordingly, the initial term for subsequent Spaces
licensed by Customer in each Equinix Location Designation shall be from the
Effective Date for such Space to the Anniversary. Each year upon the anniversary
("Anniversary") of the Earliest Effective Date, this Agreement shall be extended
for an additional year for all Spaces in each Equinix Location Designation,
unless either party notifies the other party at least sixty (60) days prior to
the Anniversary. Any such extension shall be subject to payment of the
then-current fees.
(b) If either party breaches the terms and conditions of this Agreement
with respect to a particular IBX ("Breached IBX"), the other party may terminate
(at its discretion) this Agreement and all Spaces in the Breached IBX or all
IBXs related to the same Equinix Location Designation as the Breached IBX, upon
thirty (30) days' prior written notice (or ten (10) days in the case of
nonpayment or immediately in the case of any breach of Sections 1(b) or 1(e) or
4 of this Agreement) to the breaching party if such breach is not cured within
such period. Termination is not the sole remedy under this Agreement and,
whether or not termination is effected, except as expressly and unambiguously
limited in this Agreement, all other remedies will remain available. This
Agreement for any and all Spaces may be terminated by Equinix for cause
immediately (i) if Customer ceases to do business, or otherwise terminates its
business operations, or (ii) if Customer shall seek protection under any
bankruptcy, receivership, trust deed, creditors arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against Customer.
If the Premises or IBX becomes the subject of a condemnation action by any
authority or person that has such power or Equinix's possession is otherwise
terminated or abated, Equinix shall have the right to immediately terminate or
abate this Agreement. Equinix will use reasonable efforts to notify Customer of
any threatened termination or possession action when Equinix receives such
notice.
(c) Upon termination of this Agreement with respect to any particular
Space or Spaces, all rights and licenses of Customer with respect to such
Space(s) herein shall terminate, and Customer agrees to remove the Equipment,
other property that has been installed by Customer or Customer's agents or
representatives, and otherwise comply with Policies, no later than ten (10) days
after such termination. If Customer fails to remove the Equipment and other such
property within such ten (10) day period, Equinix shall be entitled to pursue
all available legal remedies against Customer, including, without limitation,
immediately removing the Equipment and other Customer-related property from the
Space, the Premises and/or Building and storing it at Customer's expense at an
off-site location and, at Equinix's option, selling the Equipment and other
property to cover storage and other expenses if Customer fails to retrieve its
Equipment and other property and satisfactorily pay all accrued storage and
other expenses within thirty (30) days after receiving written notice from
Equinix of its intention to effect such sale.
7. Price and Payment Terms.
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(a) With respect to each Equinix Location Designation, the prices set
forth on the Order Form shall remain in effect for the first six months after
the Earliest Effective Date. Thereafter, prices shall be subject to change, at
Equinix's discretion, upon ninety (90) days' prior written notice.
(b) Customer shall pay Equinix the then-current initial charges, monthly
recurring fees (hereinafter "Recurring Fees"), and other charges and deposits
set forth in the Order Form, which include charges for use of the Space. Upon
the Effective Date of each Space listed on the Order Form, Customer agrees to
pay: (1) the pre-paid installation charges as estimated by Equinix, and (2) a
deposit equal to two months' Recurring Fees, and the other charges as specified
on the Order Form for such Space ("Deposit"). For the avoidance of doubt, for
each Space licensed after the Earliest Effective Date, Customer agrees to pay
such additional pre-paid estimated installation charges and Deposit on the
Effective Date of such subsequent Space. Further, if Customer's Recurring Fees
increase, Equinix reserves the right to increase the Deposit on a commensurate
basis, and such additional amount shall be due and payable to Equinix on the
date set forth in Equinix's invoice. The estimated pre-paid installation charges
will be applied against charges due in the first month for such Space. Following
termination of the Agreement for all Spaces, such Deposit will be applied
against any unpaid charges, de-installation and other ancillary costs and other
amounts owed by Customer to Equinix (collectively, "Unpaid Customer Fees") and,
to the extent that such Deposit exceeds such Unpaid Customer Fees, the excess
will be refunded to Customer within thirty (30) days after all Unpaid Customer
Fees then owed to Equinix from Customer arising out of or following the
termination of this Agreement have been accounted for by Equinix. For the
avoidance of doubt, Customer shall continue to pay Recurring Fees and other
charges specified in the Order Form for each Space until the Agreement
terminates for such Space.
(c) Monthly payment of all Recurring Fees and other charges are due and
payable on the date set forth in Equinix's invoice. However, if Equinix at any
time determines that Customer's credit is not satisfactory, Customer shall make
payments in advance as determined by Equinix. Without limiting any other
remedies to Equinix, amounts past due will incur a finance charge at the rate of
1.5% per month of the amount past due or the maximum amount permitted by law,
whichever is lower.
(d) Customer shall pay all taxes, governmental fees, and the third party
charges set forth in the Policies.
8. Warranty Disclaimer and Limitation of Liability.
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(a) CUSTOMER USE OF THE SPACE, IBX, LICENSE, EQUIPMENT, AND ANY AND ALL
OF EQUINIX'S SERVICES, INCLUDING BUT NOT LIMITED TO ANY INTERCONNECTION, ARE AT
CUSTOMER'S OWN RISK. EQUINIX PROVIDES THE LICENSE, IBX, SPACE, AND ANY AND ALL
SERVICES HEREIN ON AN "AS IS, AS AVAILABLE" BASIS AND EQUINIX MAKES NO WARRANTY,
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY
OF A PERSON, NEITHER EQUINIX NOR ANY OF ITS SUPPLIERS (INCLUDING BUT NOT LIMITED
TO ALL EQUIPMENT AND PROPERTY SUPPLIERS), DIRECTORS, OFFICERS, AFFILIATES,
SUBSIDIARIES, AGENTS, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES (COLLECTIVELY,
"EQUINIX AFFILIATES") SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY
CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION
OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR FOR RELOCATION EXPENSES OR LOSS OF
BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS; OR (C) FOR ANY MATTER
BEYOND ITS REASONABLE CONTROL, EVEN IF ANY OF THE EQUINIX AFFILIATES HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL ANY OF THE
EQUINIX AFFILIATES BE LIABLE EITHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER
THEORY, FOR PROTECTION FROM UNAUTHORIZED ACCESS TO CUSTOMER'S TRANSMISSION
FACILITIES OR THE EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT
OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS OR OTHER INFORMATION, WHETHER
THROUGH ACCIDENT, THIRD PARTY OR CUSTOMER FRAUDULENT MEANS OR DEVICES OR ANY
OTHER METHOD OR MEANS, EVEN IF ANY OF THE EQUINIX AFFILIATES HAVE ASSISTED
CUSTOMER WITH ACCESS MANAGEMENT FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO,
ACCESS LISTS AND FIREWALLS. WITHOUT LIMITING THE FOREGOING, EQUINIX AFFILIATES'
TOTAL LIABILITY FOR DAMAGES TO CUSTOMER FOR ANY CAUSE WHATSOEVER, REGARDLESS OF
THE FORM OF ACTION, AND WHETHER IN
Agreement No._________________________
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY SHALL BE
LIMITED TO THE AGGREGATE MONTHLY CHARGES PAID BY CUSTOMER TO EQUINIX HEREUNDER
DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE
TO CUSTOMER'S CLAIM.
9. Miscellaneous.
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(a) Customer shall not assign or transfer the rights or obligations
associated with this Agreement, in whole or in part, without Equinix's prior
written consent except to any acquiror of all or substantially all of Customer's
business or assets or equity securities. Equinix, its successors and assigns may
each assign, transfer, and delegate any of its rights or obligations under this
Agreement without Customer's consent. For the purposes of this Agreement,
"Equinix" shall mean Equinix or any assignee of Equinix.
(b) All notices, consents, or approvals required by this Agreement shall
be (i) in writing sent by certified or registered air mail, postage prepaid, or
by confirmed facsimile, electronic mail, or cable (confirmed by such certified
or registered mail) to the parties at the addresses set forth on the Order Form
or such other addresses as may be designated in writing by the respective
parties or (ii) in any other manner mutually agreed upon by the parties. Notices
shall be deemed effective on the date of mailing.
(c) Except that either party may seek equitable or similar relief from a
court, any dispute, controversy or claim arising out of or in relation to this
Agreement or at law, or the breach, termination or invalidity thereof, that
cannot be settled amicably by agreement of the parties hereto, shall be finally
settled by arbitration in San Francisco, California (which arbitration shall be
binding and enforceable in any court of competent jurisdiction for purposes of
this Agreement only) in accordance with the commercial rules of the American
Arbitration Association (AAA). Equinix and Customer will each select one
arbitrator and a third arbitrator will be selected unanimously by the two
arbitrators selected by the parties. If the two arbitrators selected by the
parties are unable to select the third arbitrator within ten (10) days of the
appointment of the two arbitrators, the parties consent to the selection of the
third arbitrator by the AAA administrator.
(d) Equinix shall not be responsible for any failure to perform its
obligations under this Agreement if such failure is caused by acts of God, war,
labor strike, revolutions, lack or failure of transportation facilities, fire,
flood, lockouts, water damage, earthquake, epidemic, explosion, storm, severe
weather, nuclear radiation, contamination of soil or groundwater with toxic or
hazardous materials, earth slides, freight embargo, fuel or energy shortage,
loss of power or heating, ventilation, telecommunication, and/or air
conditioning (HVAC) interruption, riot or public discord, civil disturbance,
takings, condemnation, laws or governmental regulations or other causes which
are beyond the reasonable control of Equinix. Obligations hereunder, however,
shall in no event be excused but shall be suspended only until the cessation of
any cause of such failure. In the event that such cause or event should obstruct
performance of this Agreement for more than six (6) months, the parties hereto
shall consult with each other to determine whether this Agreement should be
modified. Equinix, upon facing such cause or event, shall use reasonable
endeavors in order to remedy that situation as well as to minimize its effects.
Equinix shall use reasonable efforts to notify Customer of any cause or event
that is the subject of this Section 9(d) within three (3) days after its
occurrence.
(e) This Agreement shall be governed in all respects by the internal
laws of the State of California (as if made and entered into between California
residents and fully executed within California) without regard to its conflict
of laws provisions. The sole jurisdiction and venue for actions related to the
subject matter hereof shall be the state and U.S. federal courts in San
Francisco, California. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be illegal, invalid or unenforceable, that
provision shall be limited or eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full force and effect and enforceable.
Except for the Agreement between Equinix and Customer dated _______, this
Agreement supersedes all proposals, oral or written, all negotiations,
conversations, or discussions between or among the parties relating to the
subject matter of this Agreement and all past dealing or industry custom. This
Agreement shall not be modified except by a non-preprinted written agreement
signed on behalf of Equinix and Customer by their respective duly authorized
representatives and clearly understood by both parties to be an amendment or
waiver of the Agreement, except as expressly and unambiguously provided herein.
No waiver of any breach of any provision of this Agreement shall constitute a
waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver shall be effective unless made in writing and
signed by an authorized representative of the waiving party and clearly
understood by the waiving party to be such a waiver. In any action or proceeding
to enforce rights under this Agreement, the prevailing party will be entitled to
recover costs and attorneys fees. Equinix shall not incur any liability
whatsoever for any damage, loss or expenses of any kind suffered or incurred by
Customer arising from or incident to any termination of this Agreement (or any
part thereof) by Equinix which complies with the terms of the Agreement whether
or not Equinix is aware of any such damage, loss or expenses. Each party shall
comply with all applicable export laws, restrictions, and regulations of any
United States or foreign agency or authority and will not export or re- export,
or allow the export or re-export of any product, technology or information it
obtains or learns pursuant to this Agreement (or any direct product thereof) in
violation of any such laws, restrictions or regulations. Customer represents,
covenants, and warrants that Customer will comply with all applicable laws
(including but not limited to laws related to spamming, spoofing, privacy,
obscenity or defamation). Headings and captions are for convenience only and are
not to be used in the interpretation of this Agreement. EACH PARTY RECOGNIZES
AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN
THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY
HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO
BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO
ENTER INTO THIS AGREEMENT.
(f) Except to the extent expressly provided to the contrary, the
following provisions shall survive the termination of this Agreement: Sections
2(a)(i) (excluding the first sentence), 2(a)(ii), 2(b)(ii), 3(c), 6(b) (only the
sentence: "Termination is not the sole remedy under this Agreement and, whether
or not termination is effected, except as expressly and unambiguously limited in
this Agreement, all other remedies will remain available."), 6(c), 7(b)-(d), 8,
and 9.