Digital Services Agreement
Effective April 11, 2022Download
Table of Contents
This Digital Services Agreement is a binding contract between you (“Customer”, “you”, or “your”) and Equinix, Inc. (“Equinix”, “we”, “our”, or “us”). This Agreement governs your access to and use of the Digital Services. Equinix and Customer may be referred to individually each as a “Party” and collectively as the “Parties.”
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK TO ACCEPT OR BY ACCESSING OR USING THE DIGITAL SERVICES, WHICHEVER IS SOONER. BY CLICKING TO ACCEPT OR BY ACCESSING OR USING THE DIGITAL SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION TO THESE TERMS AND PLACE ORDERS ON BEHALF OF THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE DIGITAL SERVICES.
1 - Definitions
- “Affiliate” means any entity controlling, controlled by, or under common control with a 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.
- “Agreement” means, in relation to each Order, such Order, this Digital Services Agreement and any applicable Product Policy.
- “Authorized User” means Customer and Customer’s (or as applicable, an End User Customer’s) employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Digital Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Digital Services has been purchased hereunder.
- “Business Contact Information” or “BCI” means business contact data (including, but not limited to, data processed in CRM databases and data that may be used to identify Authorized Users) containing personal and/or private information relating to business contact information (mainly first name, last name, business phone numbers, business email and business address) of Customer, its agents, employees or any Authorized User of the Digital Services (including third-party consultants, contractors, partners, and End User Customers with whom Customer has a contractual relationship) and whose use, processing or transfer is regulated by law or regulation as “personal data.” Business Contact Information does not include Customer Data.
- “Confidential Information” means non-public information disclosed between the Parties, including: (a) information identified by the disclosing Party, in writing or orally, as confidential at the time of disclosure; and (b) information containing the disclosing Party’s customer lists, customer information, technical information, pricing information, financial position, trade secrets, customer communications or proposals, benchmarking information, satisfaction surveys, or information relating to its business planning or business operations. The terms of this Agreement are also deemed Confidential Information of Equinix. Information is not deemed Confidential Information if it: (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 confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party.
- “Customer Data” means information, data, and other content, in any form or medium, that is stored, submitted, posted, or otherwise transmitted by or on behalf of Customer, Customer’s end user (as applicable) or any other Authorized User through the Digital Services, but excluding any Business Contact Information.
- “Documentation” means Equinix’s then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for the Digital Service which is made available to Customer.
- “Digital Services” means the digital services, provided either on-demand or as part of a subscription, by Equinix under this Agreement that are reflected in Customer’s Order.
- “Effective Date” means the date designated in the Order as the effective date or if there is no date designated in the Order, then the date on which the Digital Service is provided, unless otherwise agreed to by the Parties in writing.
- “End User Customer” means an entity that is receiving Digital Service(s) as an end user of an Equinix customer through a reseller arrangement as described in Section 3(g).
- “Fees” means the fees and charges under this Agreement including any recurring charges (e.g., monthly recurring charges, (“MRCs”), non-recurring charges (“NRCs”) and usage fees for Digital Services charged to Customer by Equinix, exclusive of Taxes.
- “Intellectual Property Rights” means any intellectual property in any jurisdiction throughout the world, including any (i) trademarks, service marks, Internet domain names, logos, trade dress, trade names, and any other indicia of source, and all goodwill associated therewith and symbolized thereby; (ii) patents, patent applications and patent disclosures, and inventions and discoveries (whether patentable or not); (iii) processes, technologies, trade secrets, and know-how; (iv) copyrights and copyrightable works, moral rights, and mask works; (v) software and software systems (including data, source code, object code, databases and related items such as documentation); and (vi) registrations and applications for any of the foregoing.
- “Order” means any order for Digital Service which may be made via offline documentation, via an API, via an online portal, e-mail or phone and which will be effective only after Equinix accepts it in accordance with Equinix’s applicable procedures or Equinix begins providing the Digital Services ordered.
- “Product Policy” means then-current exhibits and policies specific to a Digital Service which are located online at https://www.equinix.com/resources/product-documents/
- “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into, accessible through or available to purchase with, the Digital Services.
2 - Affiliate Adoption & Order Construction
A Customer Affiliate and/or an Equinix Affiliate may adopt the terms of this Agreement by entering into a separate contract by agreeing to an Order which references this Agreement. The Parties agree that the Customer Affiliate and/or Equinix Affiliate entering into an Order adopt the terms of this Agreement, subject to Exhibit A, if applicable, as if they were the original contracting parties thereto. Each Order that is governed by this Agreement is a separate contract and is only binding upon the Customer (or Customer Affiliate) and Equinix (or Equinix Affiliate) that are actually party to it (each an “Order Party”), and not upon any other Affiliate of Equinix or Affiliate of the Customer. For avoidance of doubt, all references to a Party, Equinix or Customer under this Agreement, shall in the context of an Order be interpreted only to mean the applicable Order Party and aside from each Order Party no other Affiliate of Equinix or Affiliate of the Customer is required to agree to any of the terms and conditions set forth in that Order. The Equinix entity that enters into an Order with Customer is responsible for performing its obligations under this Agreement and no other Affiliate of Equinix shall be jointly or severally liable with such Equinix entity. All Orders placed via API shall be deemed accepted by Equinix upon provision of the Digital Service, and Customer is obligated to pay for such Digital Services for the entirety of the Term selected. All such Orders are governed by the terms of this Agreement and each API call shall be considered a separate Order made on behalf of Customer (or Customer Affiliate) and Equinix (or Equinix Affiliate) for purposes of this Agreement. Customer may not purchase any Third-Party Products via API.
3 - Access and Use
- Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all the terms and conditions of this Agreement, unless otherwise specified herein, Equinix hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Digital Services during the Term solely for internal business operations by Authorized Users in accordance with the terms and conditions herein. Usage is limited to the unit of measure stated in the Order and/or Product Policy. If Customer exceeds the specified unit of measure, Equinix may charge Customer for any such overage.
- Documentation License. Subject to the terms and conditions contained in this Agreement, Equinix hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Digital Services.
- Downloadable Software. Use of the Digital Services may require or include use of downloadable software. Equinix grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software we provide as part of the Digital Services. Such downloadable software may be subject to additional terms and conditions. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 4(d).
- Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Digital Services, any software component of the Digital Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. Except to the extent permitted by applicable law which is incapable of exclusion by agreement by the parties, you shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Digital Services, any software component of the Digital Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Digital Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Digital Services, in whole or in part; (iv) remove any proprietary notices from the Digital Services or Documentation; (v) use the Digital Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule or could cause reputational harm to Equinix; (vi) use the Digital Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Digital Service; (viii) access the Digital Services in order to build a competitive product or service or to copy any features, functions or graphics thereof; (ix) perform stress testing of the Digital Services for malicious purposes; or (x) use the Digital Services to store or transmit libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Equinix may monitor Customer’s use of the Digital Services and collect and compile data and information related to Customer’s use of the Digital Services to be used by Equinix in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Digital Services (“Aggregated Statistics”). As between Equinix and you, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Equinix. For the avoidance of doubt, Aggregated Statistics shall not include Customer Data.
- Reservation of Rights. Equinix reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Digital Services or Documentation.
- Resale. Notwithstanding Section 3(a), if Digital Services are available for resale, Customer may resell and provide access to the Digital Services during the Term to its End User Customers. Customer shall at all times remain Equinix’s only customer of record and Equinix shall have no obligation related to Customer’s End User Customers. Such resale is only permitted if (i) the terms and conditions of such resale are no less restrictive than this Agreement and the applicable Product Policies; (ii) Customer does not act or purport to act on behalf of Equinix; and (iii) Equinix has no liability to any End User Customer. No End User Customer shall further resell any Digital Service. Customer may not resell any Third-Party Products unless expressly allowed to do so directly by such Third-Party Product provider. Notwithstanding any resale arrangement, Customer remains responsible to Equinix for the performance of all obligations under this Agreement including the payment of all amounts owed under this Agreement and all actions of Customer’s, and End User Customer’s, Authorized Users.
- Product Policies. Each Party will comply with the Product Policies. Equinix may modify the Product Policies from time to time effective upon posting to its website. If Equinix modifies a Product Policy in a way that materially adversely affects Customer’s use of the applicable Digital Service, Customer may terminate the affected Digital Service, provided that Customer gives notice of termination within ten (10) days from the date of Equinix’s posting.
4 - Customer Obligations
- Acceptable Use. Customer acknowledges and agrees that Equinix is not obligated to monitor or police communications, Customer Data or any other data transmitted through the Digital Service and that Equinix will not be responsible for the content of any such communications or transmissions. Customer and its Authorized Users will use the Digital Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer will keep confidential and not disclose to any third parties and will ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles.
- Account Use. Unless otherwise agreed, you are responsible and liable for all uses of the Digital Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Digital Services and shall cause Authorized Users to comply with such provisions. With respect to resale, as described in Sections 3(g) you are responsible and liable for all use of the Digital Service by you or any End User Customer you are providing services to or that you have resold Digital Services to.
- Passwords and Access Credentials. You are responsible for keeping passwords and access credentials associated with the Digital Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials. Customer understands and agrees that (i) Equinix assumes no responsibility for the supervision, management or control of Customer’s or Authorized User’s passwords and access credentials; (ii) Equinix assumes no responsibility for any fraudulent or unauthorized use of any portion of the Digital Services through Customer’s account; and (iii) Equinix disclaims all liability arising out of any use of or failure to protect passwords or access credentials or any fraudulent or unauthorized access to or use of any portion of the Digital Service through Customer’s account.
- Third-Party Products. The Digital Services may permit access to or purchase of Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and are not part of this Agreement. Such terms and conditions may be presented to Customer for acceptance within the Digital Services by website link or otherwise or Customer may have agreed to such terms and conditions separately directly with the Third-Party Product Provider. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, purchase or use such Third-Party Products. Customer represents and warrants that it is using such Third-Party Products in compliance with its agreement with such Third-Party Product Provider. In the event that Customer is reselling Digital Services, Customer represents and warrants that its End User Customer is using such Third-Party Products in compliance with this section and with any Third-Party Product Provider agreement and will indemnify Equinix for all losses, claims or damages for End User Customer’s failure to do so.
- Customer’s Responsibilities. Customer will: (a) be responsible for meeting Equinix’s applicable minimum system requirements for access to or use of the Digital Services, as set forth in the Documentation, (b) be responsible for Authorized Users’ compliance with this Agreement and for any other activity (whether or not authorized by Customer) occurring under Customer’s account, (c) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and any End User Customer Data, (d) prevent unauthorized access to or use of the Digital Services under its account, and notify Equinix promptly of any such unauthorized access or use, and (e) provide and keep valid contact information for each Digital Service that includes phone number(s) and email address(es) for both a primary contact and an operational/technical contact (e.g., network engineer or routing engineer) and providing Equinix with technical configuration details upon request. If Customer fails to perform any of its obligations under this Agreement or Equinix is prevented, delayed or otherwise unable to perform any of its obligations due to any other act or omission of Customer (“Customer Default”) then, in addition to any other rights and remedies under other provisions of this Agreement or at law, including the right to claim damages in the event of a Customer Default, Equinix shall be entitled to rely on such Customer Default as relieving it from the performance of any of its obligations and/or invoice Customer for Fees for the Digital Service rendered notwithstanding the Customer Default.
5 - Service Levels
Subject to the terms and conditions of this Agreement, Equinix shall make the Digital Services available in accordance with the service levels available in the applicable Product Policy.
6 - Fees and Payment
- Fees will accrue from the Order’s Effective Date and Customer will be liable for Fees for the full term specified in each Order. Customer will pay in full all invoices from Equinix in the currency stipulated in the Order on the due date set forth on the invoice. Interest shall be charged on past due amounts at the lower of (i) one and a half percent (1.5%) per month; or (ii) the highest rate permitted by applicable law. Unless otherwise specified, Equinix will invoice monthly. Customer may, in good faith, dispute any invoice or any part thereof (a “Disputed Amount”) by submitting a written notice of such dispute along with reasonable supporting documentation within thirty (30) days of the date of the initial invoice on which the Disputed Amount appears, failing which Customer waives all rights to dispute such Disputed Amount and to file any claim. The Parties will work together in good faith to resolve the Disputed Amount within thirty (30) days after receipt of Customer’s notice.
- In addition to the Fees, each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under this Agreement. All fees payable by Customer are exclusive of Indirect Taxes. “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, sales and transactions taxes. Equinix may charge and Customer will pay applicable Indirect Taxes that Equinix is legally obligated or authorized to collect. Customer will provide such information to Equinix as reasonably required to determine whether Equinix is obligated to collect Indirect Taxes. Equinix will not collect, and Customer will not pay, any Indirect Tax for which Customer furnishes a properly completed exemption certificate or a direct payment permit certificate for which Equinix may claim an available exemption from such Indirect Tax. Equinix may rely on Customer’s “Account Country” when calculating and charging Indirect Taxes or may rely on the physical location of the Equinix-owned asset used to provide the Digital Services. Customer’s “Account Country” may be determined based upon Customer’s tax registration number (if provided) which must match Customer’s legal address. If Customer’s tax registration number and legal address do not match, Customer will be liable for any failure to collect or remit Indirect Taxes including any penalties or charges imposed for failure to do so. If no tax registration number is provided then Equinix shall rely on Customer’s legal address and if no legal address is provided, Equinix shall rely on Customer’s billing address. All payments made under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Equinix is equal to the amount then due and payable under this Agreement.
7 - Confidential Information
- Neither Party will use or disclose Confidential Information from the disclosing Party without its prior written consent, except where: (i) the disclosure is required by applicable law or regulation (including securities laws regarding public disclosure of business information) or by an order of a court or other governmental body having jurisdiction after taking steps to maintain its confidentiality where practicable; (ii) it is reasonably necessary to be disclosed to that Party’s, or its Affiliates’, employees, officers, directors, attorneys, accountants and other advisors; or (iii) it is necessary for a Party to exercise its rights and perform its obligations under this Agreement. In any case, the disclosing Party shall ensure that disclosure shall not be broader than necessary, and that the recipient agrees prior to receipt to keep the information confidential to the same extent as under this Agreement (except that such agreement need not be obtained for disclosures to a court, regulator or arbitrator). For the avoidance of doubt, the mere transfer of information via a Digital Service does not constitute disclosure of such information to Equinix.
- Neither Party grants the other Party the right to use its trademarks, service marks, trade names, copyrights, 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 this Section 7, either Party may publicly use the other Party’s name and logo to refer to the other Party as a vendor or customer as the case may be, such use to comply with any applicable usage guidelines that are published or made available by the other Party upon request.
8 - Intellectual Property Ownership; Feedback
As between Customer and Equinix, (a) Equinix owns all right, title, and interest, including all Intellectual Property Rights, in and to the Digital Service and Documentation, related knowledge or processes, and any derivative works thereof and (b) Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data. If Customer or any of Customer’s employees, contractors, and agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Digital Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), all such Feedback is and will be treated as non-confidential. Customer hereby assigns to Equinix, and shall cause its employees, contractors, and agents to assign, all right, title, and interest in, and Equinix is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Equinix is not required to use any Feedback.
9 - Limited Warranty and Warranty Disclaimer
- Equinix Warranty. Equinix warrants that it provides Digital Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY TO, AND EQUINIX STRICTLY DISCLAIMS, ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. Equinix does not make any representations regarding uptime or availability of the Digital Services unless specifically identified in the applicable Product Policy. The remedies set forth in the applicable Product Policy are Customer’s sole remedies and Equinix’s sole liability under the limited warranty set forth in this Section 9(a). This limited warranty does not apply if Customer is receiving Digital Services on a free or trial basis.
- Customer Warranty. You warrant that you own all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data, and that both the Customer Data and your use of the Digital Services are in compliance with this Agreement.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), AND EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, THE DIGITAL SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND EQUINIX SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EQUINIX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EQUINIX MAKES NO WARRANTY OF ANY KIND THAT THE DIGITAL SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10 - Indemnification
- Equinix Indemnification.
- Equinix shall defend Customer against any claims brought against Customer by any third party alleging that Customer’s use of the Digital Services in accordance with the terms of this Agreement infringes or misappropriates such third party’s patent claim, copyright, or trade secret (”Third-Party Claim”), provided that Customer promptly notifies Equinix in writing of the Third-Party Claim, cooperates with Equinix, and allows Equinix sole authority to control the defense and settlement of such Third-Party Claim. Equinix will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement Equinix enters into with respect to these claims).
- Equinix will have no liability for an Third-Party Claim if the actual or alleged infringement results from (a) Customer’s breach of the Agreement, (b) Customer’s modification, alteration or addition made to the Digital Services or any use thereof, including any combination of the Digital Services with other materials not provided or authorized by Equinix, (c) Customer’s failure to use any corrections or modifications made available by Equinix that would not result in any material loss of functionality, or (d) use of the Digital Services in a manner or in connection with a product or data not contemplated by this Agreement. Equinix also disclaims any liability for settlements entered into by Customer or costs incurred by Customer in relation to an infringement claim that are not pre-approved by Equinix in writing.
- If such a Third-Party Claim is made or Equinix reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Equinix, at Equinix’s sole discretion, to (A) modify or replace the Digital Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Equinix determines that neither alternative is reasonably available, Equinix may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10(a) sets forth your sole remedies and Equinix’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims.
- This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer’s breach of this Agreement, Customer Data or Third-Party Products.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at Equinix’s option, defend Equinix and its Affiliates from and against any and all liability, loss, damages, costs and expenses (including reasonable attorneys’ fees and expenses) for third party claims related to (i) Customer Data and End User Customer Data; (ii) Customer’s or any Authorized User’s negligence or willful misconduct or use of the Digital Services in a manner not authorized by this Agreement or (iii) Customer’s use of any Third-Party Products in violation of any applicable third party terms and conditions; provided that Customer may not settle any such claim against Equinix unless Equinix consents to such settlement, and further provided that Equinix will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
11 - Limitations of Liability
- NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND UNLESS PROHIBITED FROM DOING SO BY APPLICABLE LAW, 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 FEES OR OTHER AMOUNTS OWED TO EQUINIX UNDER THIS AGREEMENT); (IV) ANY LOSSES ARISING FROM OR CAUSED BY THE LOSS, 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.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY, EQUINIX’S (OR ITS AFFILIATE’S) MAXIMUM AGGREGATE LIABILITY WILL NOT EXCEED THE FEES PAID (AS INDICATED ON A SPECIFIC ORDER FORM) FOR THE APPLICABLE DIGITAL SERVICE DIRECTLY CAUSING THE DAMAGE GIVING RISE TO CUSTOMER’S CLAIM OR CAUSE OF ACTION FOR THE SIX (6) MONTHS PRIOR TO THE CLAIM OR CAUSE OF ACTION.
- THE LIMITATIONS SET FORTH IN THIS SECTION 11 WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY.
- The Parties each waive the right to bring a claim against the other arising out of or in any way relating to an Order or this Agreement more than one (1) year after the date of the event giving rise to such claim. Each Party recognizes and agrees that the warranty disclaimers, limitations of liability and remedy limitations in this Agreement are materially bargained for by the Parties.
- THE LIMITATIONS IN THIS SECTION 11 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12 - Term and Termination
- Term. This Digital Services Agreement commences on the date Customer accepts it online or the date the Parties last sign below and shall continue during any time(s) Equinix continues to provide Digital Services to Customer unless terminated earlier as otherwise provided for in this Agreement. The “Term” of an Order begins on the date specified in the applicable Order and will continue for the agreed initial term. Upon the expiry of the initial Term the Order will automatically renew for the same term length unless otherwise agreed or either Party terminates the Order by providing thirty (30) days prior written notice of non-renewal to the other Party. If at renewal Customer elects a shorter term length, applicable Fees may increase accordingly.
- Either Party may terminate this Agreement or an applicable Order by giving written notice 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 Fees) after receipt of such notice. If Customer fails to cure a monetary breach, Customer will be responsible for all collections costs including reasonable attorneys’ fees. If the breach (other than where Customer has failed to pay Fees) cannot be cured within thirty (30) days, the breaching Party shall be given a reasonable period of time, but not to exceed an additional thirty (30) days, to cure the breach, provided that the breaching Party acts promptly and diligently to cure such breach.
- Either Party may terminate this Agreement immediately upon giving written notice to the other if the other Party becomes, as applicable under local law, unable to pay its 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.
- Effect of Termination. Upon termination of this Agreement or applicable Order, Customer’s right to use the Digital Services and Documentation shall end. No termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due prior to such termination.
- Without limiting any other right Equinix may have, Equinix may suspend Customer’s and any other Authorized User’s access to any portion or all of the Digital Services if:
- Equinix reasonably determines that (A) there is a threat or attack on any of the Digital Service; (B) Customer’s or any other Authorized User’s use of the Digital Service disrupts or poses a security risk to Equinix, the Digital Service or to any other customer or vendor of Equinix; (C) Customer or any other Authorized User is using the Digital Service for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, is unable to pay its debts as they become due, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Equinix’s provision of the Digital Services to Customer or any other Authorized User is prohibited by applicable law; or (F) Customer is in violation of the use restrictions set forth in this Agreement.
- any vendor of Equinix has suspended or terminated Equinix’s access to or use of any third-party services or products required to enable Customer to access the Digital Services; or
- if Customer fails to cure any monetary breach of this Agreement within ten (10) days after notice of the same (or upon written notice if Customer’s account is past due on two (2) or more occasions during a six (6) month period) (any such suspension described in Section 12(c)(i)(1-3), a “Service Suspension”).
- Equinix shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Digital Services following any Service Suspension. Equinix shall use commercially reasonable efforts to resume providing access to the Digital Services as soon as reasonably possible after the event giving rise to the Digital Services Suspension is cured. Equinix will have no liability for any damage, liabilities, losses (including any loss of profits or data), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
- Without limiting any other right Equinix may have, Equinix may suspend Customer’s and any other Authorized User’s access to any portion or all of the Digital Services if:
13 - Modifications
Unless otherwise agreed to, you acknowledge and agree that we have the right, in our sole discretion, to modify this Digital Services Agreement from time to time, and that modified terms become effective on posting. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Digital Services after the effective date of the modifications will be deemed acceptance of the modified terms.
14 - Export Regulation
The Digital Services utilize software and technology that may be subject to export control laws of various countries, including the laws of the United States. Customer will not submit the Digital Service or Documentation to any government agency for licensing consideration or other regulatory approval and will not export the Digital Service or Documentation to countries, persons or entities if prohibited by export laws.
15 - Business Contact Information
- Customer acknowledges that Equinix and Equinix Affiliates will, by virtue of the performance of the Agreement, come into possession of BCI as a Data Controller (as defined under European laws and regulations or its equivalent under any local data protection and privacy laws). Customer acknowledges and agrees that Equinix and Equinix Affiliates may use, process and/or transfer BCI (i) in connection with the provision of Digital Services; (ii) to incorporate BCI into databases controlled by Equinix and Equinix Affiliates for the purpose of account administration, billing and reconciliation; operational maintenance and support activities; security, fraud detection and prevention; and, subject to BCI being previously anonymized, customer and market analysis and reporting; and (iii) to communicate to Customer by voice, letter, fax or email regarding products and services of Equinix or Equinix Affiliates. Customer may withdraw consent for the use, processing, or transfer of BCI as set out in (iii) above upon written notice to Equinix. Customer acknowledges that it has the right to access BCI upon written notice and have any agreed errors in such BCI rectified or deleted, or to request additional information on the use, processing, and/or transfer of its BCI.
- Where BCI is to be transferred by Equinix and Equinix Affiliates from one country to another (including intra-group transfers to the United States or to any countries located within or outside the European Economic Area (EEA)) for the purposes set out above under this clause, Equinix shall ensure that all appropriate legitimization measures as required under applicable data protection and privacy laws such as (i) the entry into appropriate inter-company data transfer agreements based on the European Standard Contractual Clauses; (ii) the implementation of Binding Corporate Rules as defined under European regulations; and/or (iii) equivalent means of compliance, are in place to afford such transfer of BCI an adequate level of protection.
- For the avoidance of doubt, Customer acknowledges that (i) the provision by Equinix of Digital Services in accordance with the Agreement does not involve any access by Equinix, or use, processing, monitoring, or performance of any operation of, or on, Customer Data and that (ii) as a result, Equinix does not act as Data Processor or Data Controller (as defined under European laws and regulations or its equivalent under any local data protection and privacy laws), with respect to such Customer Data, unless otherwise agreed to in writing by the Parties.
- Customer undertakes to inform its agents, employees or any Authorized Person of the Digital Services such as its consultants, contractors or partners (i) that their BCI may be collected, used, processed and transferred by virtue of the performance of, and in accordance with, the Agreement; and (ii) of their rights regarding the processing of their BCI in accordance with this clause, and where applicable.
16 - Subcontracting and Transfer
Equinix may permit any other Equinix Affiliate, independent contractor or other third party, to perform any of Equinix’s obligations hereunder, provided that Equinix remains primarily liable for the performance of its obligations. Equinix may transfer this Agreement or any of its rights and obligations hereunder without notice to Customer. Customer may transfer this Agreement or any of its rights and obligations hereunder to an Affiliate or to an entity which is acquiring all or substantially all of Customer’s business or assets with prior notice to Equinix, and in all such events the person or entity to whom this Agreement is assigned by Customer must agree 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 transferees of the Parties, who will be bound by all of the obligations of their predecessors or transferors.
17 - Force Majeure
Except for Customer’s obligation to pay amounts owed under this Agreement, including 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 a Force Majeure Event. A “Force Majeure Event” is a failure by the other Party to perform any of its obligations under this Agreement if such failure is caused by an event or circumstance beyond its reasonable control, including, but not limited to, acts of God, war, labor strike, terrorist act, riot or civil unrest, fire, flood, earthquake, landslide, earth movement, hurricane, typhoon, tsunami, volcanic eruption or other natural disaster, health epidemic or any law, order, regulation or other action of any governing authority or agency.
18 - Compliance
- Applicable Law. Each Party will comply with all applicable laws and regulations in connection with this Agreement.
- International Security Concerns. Each Party will comply with (and Customer will ensure that any Authorized User or end user comply with) applicable export/re-export, sanctions, import and customs laws and regulations (including U.S. sanctions and export regulations) (“Sanctions Laws”). In addition, Customer will not be listed on, nor owned or controlled by an entity or person which is subject to, nor located in or organized under the laws of a country subject to, U.S. or E.U. embargo. Notwithstanding any other provision in this Agreement, Equinix reserves the right to terminate this Agreement immediately upon written notice to the Customer if Equinix reasonably determines that Customer is not in compliance with this Section or is causing Equinix to be exposed to violations under Sanction Laws.
- Anti-Money Laundering. Each Party will comply with all applicable anti-money laundering laws. If the bank to which Customer remits payment (“Equinix Bank”) refuses to process a Customer payment for any reason including, but not limited to, a reasonable belief that Customer’s payment may be connected to money laundering (a “Suspicious Payment”), Customer will reasonably cooperate with all requests from Equinix or the Equinix Bank (e.g., requests for additional information in order to process the Suspicious Payment) or remit payment of any outstanding balance using an alternative payment method within five (5) business days.
19 - Entire Agreement
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior or contemporaneous discussions, negotiations, proposals, understandings and agreements, written or oral, as well as any industry custom. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement, but nothing in this Section shall limit or exclude a Party’s liability for fraud.
20 - Conflicts
All Orders are subject to 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 follows (i) the Order; (ii) the applicable Product Policy; (iii) Exhibit A to this Digital Services Agreement, and (iv) this Digital Services Agreement including any attachments and exhibits thereto except for Exhibit A.
21 - Governing Law and Submission to Jurisdiction
Unless prevented from doing so by local law or regulation, this Agreement will be governed in all respects by the governing laws listed below without regard to conflicts of law provisions. Additionally, the Parties irrevocably agree to the exclusive jurisdiction for resolving disputes listed below and waive any right to bring any action against the other Party in any other jurisdiction, forum 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. English language shall be the applicable language and translation of the Agreement and the Order.
Location of Customer’s Account Country
North America, South America (excluding Brazil) or any location not listed in this table
State of California
Courts of San Francisco
Europe, the Middle East or Africa (“EMEA”)
Laws of the Netherlands
Courts in Amsterdam
Asia, Australasia and the Pacific island nations (“APAC”)
Laws of Singapore
Courts of Singapore
Foro Central de São Paulo
22 - Notice
Unless expressly stated in the Agreement, all notices required by this Agreement will only be effective if in writing and sent by (i) certified or registered mail, postage prepaid; (ii) overnight delivery requiring a signature upon receipt; or (iii) delivery by hand; to the Parties at the respective addresses in this Agreement or as otherwise designated in writing by the Parties. Notices, consents and approvals under this Agreement will be in writing and shall be presumed to be received five (5) days after mailing if sent by mail, two (2) days after sending if sent by overnight courier or on the date of dispatch if sent electronically.
23 - No Waiver
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.
24 - Survival
All provisions of this Agreement which can only be given proper effect upon expiration or termination of the Agreement, including those provisions needed to interpret the same by surviving the termination of this Agreement, shall survive the termination of this Agreement; provided, however obligations related to Confidential Information will survive for three (3) years after termination of this Agreement.
25 - General
Except where otherwise expressly stated herein, and subject to the limitations set forth herein, the rights and remedies provided for herein are cumulative and not exclusive of any rights or remedies that a Party would otherwise have.
26 - Relationship
The Parties are independent contractors, and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither Party may bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
27 - Third Parties
There are no third-party beneficiaries to this Agreement.
EXHIBIT A TO THE TERMS AND CONDITIONS
COUNTRY SPECIFIC TERMS
This Exhibit A sets forth specific provisions that are applicable to an Order which is entered into by the Equinix Affiliate specified below and the Customer or Customer Affiliate identified in the Order. Notwithstanding anything to the contrary, this Agreement will be subject to any specific country-specific provisions listed below and which will supersede any conflicting provisions anywhere in the Agreement.
Country applicable to Service Region
Equinix do Brasil Soluções Tecnologia Em Informática Ltda
a. Tendo em vista tratar-se de produto solicitado via Portal pelo próprio cliente e sem intervenção da Equinix, a contratada não se responsabiliza por eventual contratação dissociada das reais necessidades do cliente, tampouco pelo dimensionamento equivocado dos produtos contratados e escolhidos/ selecionados por ele.
b. Para evitar dúvidas, a menos que de outra forma seja expressamente acordado neste contrato, a Equinix não será responsável por perdas ou danos de terceiros, responsabilidade do cliente perante terceiros ou por quaisquer danos que não possam razoavelmente ser previstos pela Equinix.
c. A Ordem Equinix consiste na apresentação em papel timbrado da Equinix, devidamente numerada e datada, contendo a descrição dos serviços a serem prestados pela Equinix ao Cliente e as condições comerciais ajustadas, valendo como Proposta Comercial conforme art. 427 e seguintes do Código Civil Brasileiro.
d. O Contratante declara possuir todos os poderes necessários para realizar a contratação em nome do Cliente, sob pena de aplicação da legislação Civil e Penal Brasileira.
d. O idioma português deverá ser o idioma aplicável quando a contratação ocorrer por empresa brasileira.
Equinix Australia National Pty Ltd
For the purposes of providing or managing the Digital Services in a globally consistent manner, Customer consents and agrees that:
(a) some activities, including but not limited to support activities such as Service Desk support, billing and account management may be undertaken or provided by Equinix via our global locations;
(b) where Customer decides to purchase and use any services from Equinix that may store, enable access to or enable movement of data that the Customer holds on its servers or equipment that is situated at or transiting to and from an IBX, then Customer consents to this data being accessed or (as the case may be) moved to, stored at and/or accessed from an offshore location as part of the provision of those services; and
(c) Equinix, its related entities and their respective directors may be provided with information relating to the Customer and/or its use of the Digital Services.
Effective May 21, 2021Download
Table of Contents
- Your Trust is of the Utmost Importance To Us, and We Will Never Betray It
- Your Contact Data and Your Contact Record are Yours
- Your Private Data is Private
- Your Data is Protected
- Your Data is Portable
Equinix Services, Inc. (“Equinix Metal”) is providing this notice (Updated May 24, 2018) to explain how Equinix Metal collects information when you access our mobile applications, API or desktop site; use our products and services; or open and respond to our communications or advertisements.
Our Privacy Statement explains:
How Do We Collect Information?
You give information directly to us or our service providers (any third party that performs business operations on behalf of Equinix Metal, such as banking services, authentication services, communications services, marketing, servicing, or ad management). For example, when you first sign up for an account Equinix Metal, we collect the following types of information from you:
- Identification Information (e.g., name, address);
- Financial Information (e.g., bank account and routing numbers and credit card account information) that you want to use to make payments; and
- Other information identifying the user (e.g., phone number, email,).
Sometimes we (or our service providers) collect information through cookies (a small data file placed on your hard drive to help us keep records, store your preferences, and improve our advertising) or other web technologies. For example, we may record information:
- About your operating system, browser version, IP address (a number assigned to a device when connecting to the Internet), and/or mobile device; and
- On our applications and sites about the web pages that you view, and information you search for.
We may also collect and store information (including personal information) locally on your device using mechanisms such as browser web storage (including HTML 5) and application data caches for fraud prevention purposes.
How Do We Use Information?
We (or our service providers) use information collected as described in this Statement, sometimes combined with information from other sources, in the following ways:
- For provisioning the services you have ordered and providing you with ongoing support.
- Before permitting use of our services, we may also obtain information about you from third parties such as identity verification services.
- To deliver products and services. For example, to:
- Recognize you when you return to our application(s) or site(s);
- Tell you about updates to products, and services;
- Answer questions and respond to your requests; and
- Make our application(s) and site(s) easier to use.
- To advertise and market our products and services. For example, to:
- Present targeted ads on other sites, as well as in e-mail;
- Analyze the effectiveness of ads; and
- Determine whether you would be interested in new products or services.
- To conduct research and analysis. For example, to:
- Analyze data to prevent fraud and better understand our customers and visitors to our application(s) or site(s); and
- As otherwise required or permitted by law or with your consent.
How Do We Share Information?
We may make certain personal information about you available to service providers that perform work for Equinix Metal in order for us to provide services to you. These service providers may help Equinix Metal verify information, process transactions, deliver services, manage and enhance user data, provide customer service, assess your interest in Equinix Metal’s products and services or conduct user research and surveys. These companies are obligated to protect your personal information and may have their own privacy policies if you link to or access their websites or systems.
We do not share your personal information (information that can identify a person, such as name, address, telephone number, and e-mail address) with anyone else, except that we may share personal information required or permitted by law:
- With your consent;
- To comply with legal orders and government requests;
- To combat fraud or criminal activity, and to protect the rights of Equinix Metal or others; or
- With our vendors (who are required to safeguard personal information) that help us operate our business;
We do not share your email address or phone number with third parties for promotional or marketing purposes.
We may share non-personal information (information that cannot identify a person such as cookie data) for the same reasons as we might share personal information with third-party ad servers to place our ads, and to analyze the effectiveness of those ads.
What Are Your Choices?
You may tell us to stop sending you marketing information. We will still communicate with you in connection with servicing, fulfilling your requests made through any of our services, or administering any promotion or any program in which you may have elected to participate. It may take some time for us to process your request and, consistent with applicable law, could take up to 30 days.
GDPR Compliance on Data Processing
To the extent Equinix Services, Inc. (“Equinix Metal”), processes EU/EEA originating personal data on behalf of the customer, it complies with the provisions of the EU General Data Protection Regulation (GDPR). To that effect, Equinix Metal offers a standard data processing agreement which, inter alia, also includes the conclusion of the EU Commission’s standard contractual clauses for processors. To learn more about GDPR, and Equinix Metal’s data processing agreement, please contact firstname.lastname@example.org.
Equinix Metal is committed to upholding the highest ethical standards in its business practices and strives to collect, use and disclose personal information in a manner consistent with the laws of the countries in which it does business.
Any questions or concerns regarding the use or disclosure of personal information should be directed to the Equinix Metal office at the address given below. Equinix Metal will investigate and attempt to resolve complaints and disputes regarding use and disclosure of personal information in accordance with the principles contained in this Policy. For complaints that cannot be resolved between Equinix Metal and the complainant, Equinix Metal has agreed to participate in the dispute resolution procedures of the JAMS Safe Harbor Program (http://www.jamsadr.com).
How do we keep your personal information safe and secure?
We use reasonable administrative, technical, and physical security measures to protect your personal information. These measures include computer safeguards and secured files and buildings. We do not transfer personal information to other countries.
Children under 13
Our application(s) and site(s) are not for children under 13 years old. We do not knowingly solicit data online from, or market online to, children under 13. If we knowingly receive a child’s personal information, we will delete it from our systems.
Can this Statement change?
We may change this Statement at any time. Changes are effective when we post them on this site
Questions or comments regarding this Policy should be submitted to Equinix Metal by mail as follows:
Equinix Services, Inc.
30 Vesey St, Floor 9
New York, NY 10007
30 Vesey St, Floor 9
New York, NY 10007
Acceptable Use Policy
Effective April 28, 2022Download
Table of Contents
Equinix Services, Inc. has adopted this Acceptable Use Policy (the "Policy") to define the scope of prohibited activities relating to the use of Equinix Services, Inc.'s services (the "Services") by customers of Equinix Services, Inc. (“Customers”) and by users that have gained access to the Services through Customer accounts or who have been granted access to Customer Services via their own accounts (“Users”).
ARTICLE 1 - INTRODUCTION
By using the Services, you acknowledge that you and your Users are responsible for compliance with the Policy. Accordingly, you are responsible for violations of the Policy by any User that accesses the Services through your account. Although Equinix Services, Inc. does not intend to control or monitor any User’s online experience or the content of their online communications, Equinix Services, Inc. reserves the right to edit or remove content that violates (or may violate) the Policy or that otherwise appears to be unlawful, harmful or offensive. The Policy applies to all aspects of the Services. For purposes of the Policy, Equinix Services, Inc. includes Equinix Services, Inc. and all of its affiliates (including direct and indirect subsidiaries and parents). "Equinix Services, Inc. Network" includes, without limitation, Equinix Services, Inc.'s constructed or leased transmission network, including all equipment, systems, facilities, services and products incorporated or used in such transmission network. As used in this Policy, “you” refers to Customers, and any reference to “Users” is intended to encompass, as applicable, both Customers and their Users. This Policy is designed to assist in protecting the Equinix Services, Inc. Network, the Service, Users and the Internet community as a whole from improper and/or illegal activity over the Internet, to improve Services and to improve Services offerings. In situations where data communications are carried across networks of other Internet Service Providers (ISPs), Users of the Equinix Services, Inc. Network must also conform to the applicable acceptable use policies of such other ISPs.
ARTICLE 2 - PROHIBITED USES
2.1 Illegal Activity
Equinix Services, Inc.’s Services shall at all times be used in compliance with all applicable laws. Accordingly, Equinix Services, Inc. strictly prohibits the use of Services for the transmission, distribution, retrieval, or storage of any information, data or other material in violation of any applicable law or regulation (including, where applicable, any tariff or treaty). This prohibition includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade secret, patent or other intellectual property right without proper authorization and the transmission of any material that constitutes an illegal threat, violates export control laws, or is obscene, defamatory or otherwise unlawful.
2.2 Unauthorized Access/Interference
A User may not attempt to gain unauthorized access to, or attempt to interfere with or compromise the normal functioning, operation or security of, any portion of the Equinix Services, Inc. Network. A User may not use the Services to engage in any activities that may interfere with the ability of others to access or use the Services or the Internet. A User may not use the Services to monitor any data, information or communications on any network or system without appropriate authorization. A User may not attempt to gain unauthorized access to the user accounts or passwords of other Users.
2.3 Unsolicited Commercial Email/Spamming/Mailbombing
Equinix Services, Inc.’s Services may not be used to transmit unsolicited commercial e-mail messages or deliberately send excessively large attachments to one recipient. In addition, Equinix Services, Inc. prohibits the use of the Services for any "spamming" or "mailbombing" activities. Use of the service of another provider to send unsolicited commercial email, spam or mailbombs, to promote a site hosted on or connected to the Equinix Services, Inc. Network, is similarly prohibited. Likewise, a User may not use the Services to collect responses from mass unsolicited e-mail messages. Equinix Services, Inc. may in its sole discretion rely upon information obtained from anti-spamming organizations (including for example and without limitation spamhaus.org, spamcop.net, sorbs.net, and abuse.net) as evidence that a User is an active “spam operation” for purposes of taking remedial action under this Policy.
Equinix Services, Inc. prohibits Users from intentionally or negligently injecting false data into the Internet, for instance in the form of bad routing information (including but not limited to the announcing of networks owned by someone else or reserved by the Internet Assigned Numbers Authority) or incorrect DNS information. A User may not attempt to send e-mail messages or transmit any electronic communications using a name or address of someone other than the User for purposes of deception. Any attempt to impersonate someone else by altering a source IP address information or by using forged headers or other identifying information is prohibited. Any attempt to fraudulently conceal, forge or otherwise falsify a User's identity in connection with use of the Service is also prohibited.
2.5 Miscellaneous Prohibited Activities
Equinix Services, Inc. also prohibits Customers and Users from using the Equinix Services, Inc. network for any of the following activities:
- 2.5.1 Intentionally transmitting files containing a computer virus or corrupted data;
- 2.5.2 Attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization, or other methods to document use of Equinix Services, Inc.'s services;
- 2.5.3 Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this Policy, which includes the facilitation of the means to deliver unsolicited commercial email;
- 2.5.4 Any activity that disrupts, degrades, harms or threatens to harm the Equinix Services, Inc. Network or the Service;
- 2.5.5 Any use of another party’s electronic mail server to relay email without express permission from such other party;
- 2.5.6 Any other inappropriate activity or abuse of the Services (as determined by Equinix Services, Inc. in its sole discretion), whether or not specifically listed in this Policy.
The prohibited activities set forth above are not an exhaustive list and Equinix Services, Inc. reserves the right to take appropriate action to remedy any conduct which it deems to be a violation of this Policy or otherwise may be harmful to Equinix Services, Inc.’s Network, its Customers, or Internet users.
ARTICLE 3 - EQUINIX SERVICES, INC.'S RIGHTS
3.1 Suspension or Termination of Services
Equinix Services, Inc. reserves the right to suspend and/or terminate a Customer’s Services or a User's access to the Services in the event that a User engages in conduct which Equinix Services, Inc., in its sole discretion, determines is in violation of the Policy or is otherwise illegal or improper. Equinix Services, Inc. generally will attempt to notify you of any activity which it deems to be in violation of the Policy and will request that you take whatever steps necessary to get the User to cease such activity; however, in cases where the operation of the Equinix Services, Inc. Network is threatened or cases involving unsolicited commercial email/SPAM, a pattern of violations, mail relaying, alteration of your source IP address information, denial of service attacks, illegal activities, suspected fraud in connection with the use of Service, harassment or copyright infringement, Equinix Services, Inc. reserves the right to suspend or terminate your Services or the User's access to the Services without notification. In addition, Equinix Services, Inc. may take any other appropriate action against you or a User for any violation of the Policy. Equinix Services, Inc. also reserves the right to avail itself of the safe harbor provisions of the Digital Millennium Copyright Act. Equinix Services, Inc. does not have any liability to any party, including you, for any violation of the Policy.
3.2 Cooperation with Investigations
Equinix Services, Inc. will cooperate with appropriate law enforcement agencies and other parties involved in investigating claims of illegal or inappropriate activity on the Equinix Services, Inc. Network. Equinix Services, Inc. reserves the right to disclose customer information to the extent authorized or required by federal or state law. In those instances involving child pornography, Equinix Services, Inc. complies with all applicable federal and state laws including providing notice to the National Center for the Missing and Exploited Children or other designated agencies.
3.3 Filters and Service Information
Equinix Services, Inc. reserves the right to install and use, or to have you install and use, any appropriate devices to prevent violations of this Policy, including devices designed to filter or terminate access to the Services. By accepting and using the Services, you consent to allowing us to collect bandwidth statistics, traffic headers and payloads, and routing information in the normal course of our business, and to use such information for general business purposes, including billing, monitoring, network security, and customer service.
3.4 Modifications to Policy
Equinix Services, Inc. reserves the right to modify this Policy at any time with or without notice. We will attempt to notify Customers of any such modifications either via e-mail or by posting a revised version of the Policy on our Web site. Any such modifications shall be effective and applied prospectively from the date of posting.
ARTICLE 4 - CUSTOMER RESPONSIBILITIES
4.1 Notice of Network Security Issues
Users are entirely responsible for maintaining the confidentiality of password and account information, as well as the security of their network. You agree immediately to notify Equinix Services, Inc. of any unauthorized use of your account or any other breach of security known to you. If you become aware of any violation of this Policy by any person, including Users that have accessed the Service through your account, you are required to notify us. In addition, all Users of the Equinix Services, Inc. Network are responsible for notifying Equinix Services, Inc. immediately if they become aware of any other event that may negatively affect the Equinix Services, Inc. Network, including but not limited to, any threatened “denial of service” attack, unauthorized access, or other security events. Customers are financially responsible for all traffic to and from their Equinix Services, Inc. servers, at previously agreed upon rates, including in cases of Denial of Service (DoS) and unauthorized access.
All Users of the Equinix Services, Inc. Network are responsible for configuring their own systems to provide the maximum possible accountability. Equinix Services, Inc. shall not be liable for any damage caused by such system configurations regardless of whether such configurations have been authorized or requested by Equinix Services, Inc.. For example, Users should configure their Mail Transport Agents (MTA) to authenticate (by look-up on the name or similar procedures) any system that connects to perform a mail exchange, and should generally present header data as clearly possible. As another example, Users should maintain logs of dynamically assigned IP addresses. Users of the Equinix Services, Inc. Network are responsible for educating themselves and configuring their systems with at least basic security. Should systems at a User's site be violated, the User is responsible for reporting the violation and then fixing the exploited system. For instance, should a site be abused to distribute unlicensed software due to a poorly configured FTP (File Transfer Protocol) Server, the User is responsible for re-configuring the system to stop the abuse.
In most cases, we will notify our Customer(s) of complaints we receive regarding an alleged violation of this Policy. You agree to promptly investigate all such complaints and take all necessary actions to remedy any violations of this Policy. We may inform the complainant that you are investigating the complaint and may provide the complainant with the necessary information to contact you directly to resolve the complaint. You shall identify a representative for the purposes of receiving such communications.
ARTICLE 5 - PRIVACY
ARTICLE 6 - ADDITIONAL Ts & Cs
6. Additional Terms and Conditions
The use of the Equinix Services, Inc. Network by a Customer of Equinix Services, Inc. is subject to the terms and conditions of any agreements entered into by such Customer and Equinix Services, Inc.. This Policy is incorporated into such agreements by reference.
ARTICLE 7 - COMPLAINTS & CONTACT
7. Complaints and Contact Information
Any complaints, questions, or comments regarding this Policy, prohibited use or other abuse of the Equinix Services, Inc. Network, should be sent to email@example.com. Please include all applicable information that will assist Equinix Services, Inc. in investigating the complaint, including all applicable headers of forwarded messages. Sites experiencing live attacks from Equinix Services, Inc. Customers should call +1 212-933-9785 to submit a complaint as quickly as possible. Please state the urgency of the situation should you need immediate attention.
Effective April 11, 2022Download
Table of Contents
Digital Millennium Copyright Act Policy
Equinix Services, Inc. (“Company”) has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act. The address of the Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is as follows:
Equinix Services, Inc.,1 Lagoon Dr, Redwood City, CA 94065
Equinix Services, Inc.,1 Lagoon Dr, Redwood City, CA 94065
Procedure for Reporting Copyright Infringement:
If you believe that material or content residing on or accessible through Company’s websites or services infringes a copyright, please send a notice of copyright infringement containing the following information as required by Section 512 (c)(3)(A), to the Designated Agent. The following comes directly from the statute:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single Customer site are covered by a single notification, a representative list of such works at that site
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
- Please send the notice of copyright infringement to the Designated Agent, via certified mail (we are not equipped to accept e-mailed submissions):
Equinix Services, Inc.,1 Lagoon Dr, Redwood City, CA 94065
Equinix Services, Inc.,1 Lagoon Dr, Redwood City, CA 94065
Procedure for making a Counter Notification
If you are a Customer of the Company and have had material that you’ve placed online removed pursuant to an infringement complaint and feel that it is not in fact an infringement, you can submit a counter notification. Please send a notice of copyright infringement containing the following information, as required by Section 512 (g)(3), to the Designated Agent listed above. The following comes directly from the statute:
- A physical or electronic signature of the Customer
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled
- A statement under penalty of perjury that the Customer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled
- The Customer's name, address, and telephone number, and a statement that the Customer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Customer's address is outside of the United States, for any judicial district in which the service provider may be found, and that the Customer will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person
The Company is not required to respond to counter notifications that do not adhere to the requirements set forth in Section 512 (g)(3).
The Company’s Designated Agent will deliver the Customer’s counter notification to the original individual who filed the DMCA copyright infringement complaint informing them that the removed material will be replaced within 10 -14 business days following notification. Once the notification has been delivered the Company is authorized as per the provisions set forth in Section 512 to reinstate the removed material and cease disabling access 10 -14 following the receipt of the counter notice unless the Company receives notice that the original individual is proceeding with a court order against the Customer.
Possession of an Injunction
If the Company receives a notification and appropriate accompany documentation from a copyright holder that they are in possession of an injunction that prohibits the Company from providing access to the infringing material, the customer will be informed immediately and the Company will follow all requirements as set forth in the injunction.
It is the Company’s policy to terminate Customers who are deemed to be repeat infringers of the DMCA.