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Digital Services Agreement

Version 4.0

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    Digital Services Agreement
    This Digital Services Agreement (“DSA”) is a binding contract between you (“Customer”) and Equinix, Inc. (“Equinix”). This DSA governs Customer’s 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 DSA takes effect when Customer clicks to accept an “I Accept” button or check box presented with these terms or, if earlier, by accessing or using the Digital Services. By clicking to accept or by accessing or using the Digital Services, Customer: (a) acknowledges that it has read and understands this DSA; (b) represent that it has the right, power, and authority to enter into this DSA and, if entering into this DSA for an organization, that you have the legal authority to bind that organization and place orders on its behalf; and (c) accept this DSA and agree to be legally bound by its terms. Customer may not access or use the Digital Services if it does not accept these terms.
    1. Definitions.
      1. Acceptable Use Policy: Equinix’s acceptable use policy which is located at https://www.equinix.com/about/legal/AUP.
      2. “Account Country” means the country associated with Customer’s Order. Customer’s Account Country may be determined as follows: (a) matching address associated with Customer’s legal address and provided tax registration number address (if provided); then (b) Customer’s legal address if no tax registration number is provided; and then (c) Customer’s billing address if no legal address is provided.
      3. “Account Information”: means information that the Parties exchange whose use, processing or transfer is regulated by law or regulation as ‘personal data.’ For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with Customer’s account, and equivalent information about Equinix which Customer collects as part of its supplier onboarding and management processes.
      4. “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.
      5. “Agreement” means, in relation to each Order, such Order, this DSA and any applicable Product Policy.
      6. “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 the Agreement; and (ii) for whom access to the Digital Services has been purchased hereunder.
      7. “Confidential Information” means non-public information disclosed between the Parties, including information identified by the disclosing Party, in writing or orally, as confidential at the time of disclosure. Confidential Information includes 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 the Agreement are also deemed Confidential Information of Equinix. Information is not deemed Confidential Information if it: (A) 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; (B) 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; (C) becomes publicly known or otherwise ceases to be confidential, except through a breach of the Agreement by the receiving Party; or (D) is independently developed by the receiving Party.
      8. “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 Customer (as applicable) or any other Authorized User through the Digital Services, but excluding any Business Contact Information.
      9. “Digital Services” (or “Services”) means the digital services, provided either on-demand or as part of a subscription, by Equinix under this DSA that are reflected in Customer’s Order.
      10. “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.
      11. “Effective Date” means the date designated in the Order as the effective date or if there is no effective date designated in the Order, then the date on which the Digital Service is provided, unless otherwise agreed to by the Parties in writing.
      12. “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.
      13. “Fees” means the fees and charges under the 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.
      14. “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, sales and transactions Taxes.
      15. “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.
      16. "Notice” shall have the meaning set forth in Section 19.
      17. “Order” means any order for Digital Services which may be made via offline documentation, via an Application Programming Interface (“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.
      18. “Privacy Notice” means Equinix’s privacy notice located at https://www.equinix.com/about/trust-security (and any successor or related locations designated by Equinix), as it may be updated by us from time to time.
      19. “Product Policy” means the then-current description of a Digital Service, including any applicable obligations regarding the of provision or use of the Services, and any service level agreement specific to a Digital Service. Product Descriptions are located online at https://www.equinix.com/resources/product-documents/. A Product Policy may also be referred to as a Product Description.
      20. “Taxes” means any sales, use, transfer, privilege, excise, consumption tax, value added tax or goods and services tax as applicable, and other similar taxes and duties, whether foreign, national, state or local, however designated, levied or imposed (whether as a deduction, withholding or payment) now in force or enacted in the future, which apply to the Digital Services performed by Equinix for Customer or to Customer for its operations and use of the Digital Services, but excluding taxes on Equinix’s net income or payroll.
      21. “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, that are specifically selected by Customer.
      22. “Third-Party Terms” means end user license terms applicable to certain Third-Party Products, which are located online at https://www.equinix.com/about/legal/third-party-eula.
    2. Affiliate Adoption and Order Construction. A Customer Affiliate and/or an Equinix Affiliate may adopt the terms of this DSA by agreeing to an Order which references this DSA thereby forming a separate Agreement. The Parties agree that the Customer Affiliate and/or Equinix Affiliate entering into an Order shall adopt the terms of this DSA, subject to Exhibit A, if applicable, as if they were the original contracting parties thereto. Each Order that is governed by this DSA is a separate contract and is only binding upon Customer (or Customer Affiliate) and Equinix (or Equinix Affiliate) that are actually signatories to it (each an “Order Signatory”), and not upon any other Affiliate of Equinix or Affiliate of Customer. For avoidance of doubt, all references to a Party, Equinix or Customer under this DSA, shall in the context of an Order be interpreted only to mean the applicable Order Signatory and aside from each Order Signatory no other Affiliate of Equinix or Affiliate of Customer is required to agree to any of the terms set forth in that Order. Each Order Signatory is responsible for performing its obligations under the Agreement and none of its other, respective Affiliates shall be jointly or severally liable with such Order Signatory. All Orders placed via API are deemed accepted by Equinix upon provision of the Digital Service. All such Orders are governed by the terms of the Agreement and the API Product Policy, located at https://www.equinix.com/resources/product-documents/. Each Order fulfilled in response to an API call shall be considered a separate Order made on behalf of Customer (or Customer Affiliate) for purposes of the Agreement.
    3. Access and Use.
      1. Provision of Digital Services. Subject to and conditioned upon Customer’s compliance with the terms of the Agreement, unless otherwise specified herein, Equinix hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Digital Services during the Term, or for the period in which Customer uses the Digital Services on-demand, solely for internal business operations by Authorized Users in accordance with the terms and conditions of the Agreement. Equinix will provide the Digital Services in accordance with the terms of the applicable Product Policy, including any applicable service levels agreements. The remedies set forth in the applicable Product Policy are Customer’s sole and exclusive remedies and Equinix’s sole liability for a failure to achieve a service level.
      2. Acceptable Use. All use of Equinix’s infrastructure network and the Digital Services by Customer and its Authorized Users will comply with the Acceptable Use Policy (“AUP”), which is incorporated herein by reference. Equinix may modify the AUP from time to time effective upon posting to its website or other written notification to Customer. If Equinix modifies the AUP in a way that materially impacts Customer’s use of the Services, Customer may terminate the affected Services within thirty (30) days from the date of Equinix’s posting or notification.
      3. Documentation License. Subject to the terms and conditions contained in the Agreement, Equinix hereby grants Customer a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term, or for the period in which Customer uses the Digital Services on-demand, solely for Customer’s internal business purposes in connection with use of the Digital Services.
      4. Downloadable Software. Use of the Digital Services may require or include use of downloadable software (“Downloadable Software”), owned by or licensed to Equinix. Equinix grants Customer a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software Equinix provides as part of the Digital Services. Such Downloadable Software may be subject to additional terms and conditions. For the avoidance of doubt, Downloadable Software does not include Third-Party Products.
      5. Use Restrictions. Customer 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 the Agreement. Except to the extent permitted by applicable law which is incapable of exclusion by agreement by the Parties, Customer 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 the Agreement; (iii) reverse engineer, reverse compile, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component (including source code) of the Digital Services, in whole or in part; (iv) remove any proprietary notices from the Digital Services or Documentation; or (v) 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.
      6. Reservation of Rights. Equinix reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the 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.
      7. Resale. Notwithstanding Section 3.a, if Digital Services are available for resale as described in the applicable Product Policy, 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 End User Customers. Such resale is only permitted if: (i) the terms of such resale are no less restrictive than the Agreement; (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 the Agreement including the payment of all amounts owed under the Agreement and all actions of Customer, End User Customer, and Authorized Users.
      8. 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 provides Notice of termination within thirty (30) days from the date of Equinix’s posting.
      9. Evaluation Terms for Digital Services. From time-to-time, Equinix may make certain Digital Services available to Customer on a trial basis for evaluation purposes (“Evaluation Basis”). All use of any Digital Services offered on an Evaluation Basis shall be in accordance with the terms of the Agreement and the Evaluation Services Product Policy, located at https://www.equinix.com/resources/product-documents/.
    4. Customer Obligations.
      1. Use of Digital Services. 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.
      2. Account Use. Unless otherwise agreed, Customer is responsible and liable for all Authorized Users and all uses of the Digital Services and Documentation resulting from access provided by it, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement will be deemed a breach of the Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the 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 Section 3.f, Customer is responsible and liable for all use of the Digital Service by it or any End User Customer it provides services to or to whom it has resold Digital Services.
      3. Passwords and Access Credentials. Customer is liable for all use of, and is responsible for keeping confidential, all user IDs, passwords, account numbers, and account profiles (“Access Credentials”) associated with the Digital Services. Customer will not share or transfer its Access Credentials to any other person or entity. Customer shall ensure that Authorized Users keep Access Credentials confidential. Customer will promptly inform Equinix of any unauthorized disclosure or use of Customer’s Access Credentials or unauthorized access to Customer’s account. Customer understands and agrees that Equinix assumes no responsibility for the supervision, management or control of Customer’s or Authorized User’s Access Credentials, or for any fraudulent or unauthorized use of any portion of the Digital Services through Customer’s account.
      4. Third-Party Products. The Digital Services may permit access to or purchase of Third-Party Products. All use of Third-Party Products is subject to the applicable Third-Party Terms. Customer must comply with all Third-Party Terms associated with a Third-Party Product. If Customer is using a Third-Party Product for which there are no applicable Third-Party Terms, then the additional terms may be presented to Customer for acceptance within the Digital Services by website link or otherwise, or separately agreed to by Customer directly with the Third-Party Product provider. If Customer does not agree to abide by the Third-Party 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(s) with such Third-Party Product Provider (including any applicable Third-Party Terms), to the extent applicable to the Digital Services. In the event 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(s).
      5. Customer’s Responsibilities. Customer will: (i) 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; (ii) be responsible for Authorized Users’ compliance with the Agreement and for any other activity (whether or not authorized by Customer) occurring under Customer’s account; (iii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and any End User Customer Data; (iv) 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 (iv) 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’s failure to perform any of its obligations under the Agreement prevents or delays Equinix from performing any of its obligations herein (“Customer Default”) then, in addition to any other rights and remedies under other provisions of the Agreement or at law, Equinix may rely on such Customer Default as the basis for 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.
      6. Feedback. Nothing in this Agreement or in the Parties’ dealings arising out of or related to the Agreement will restrict Equinix’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback. “Feedback” refers to any suggestion, know-how or idea for improving or otherwise modifying Equinix’s products or services, business process and policies, and any Equinix websites, portals, systems or tools. The use of Feedback will not impose any confidentiality or other obligations on Equinix relating to the Feedback, except that Equinix shall not reveal Customer as the source of Feedback to third parties without the consent of Customer.
    5. Fees and Payment.
      1. Fees and Usage. Fees will be subject to Equinix’s then-current list price unless otherwise agreed to in an Order. Fees will accrue from the Order’s Effective Date and Customer will be liable for Fees for the full Term specified in each Order. Once an Order is accepted, the Order cannot be cancelled except in accordance with the Agreement. If applicable, usage is limited to the unit of measurement stated in the Order and/or Product Policy. If Customer exceeds the specified unit of measurement, Equinix may charge Customer for any such excess usage, as indicated on applicable Orders. Additionally, on demand Digital Services are billed by the hour, the day or by usage (e.g., per GB basis for bandwidth), as applicable.
      2. Invoices. 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.
      3. Taxes. 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 the Agreement. All Fees payable by Customer are exclusive of Indirect 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 for the purpose of calculating and charging Indirect Taxes or may rely on the physical location of the Equinix-owned asset used to provide the Digital Services. 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. All payments made under the 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 the Agreement.
      4. Customer Purchase Orders. If Customer has to issue a purchase order ("PO") in order to process payment of an invoice, Equinix will reasonably cooperate with Customer to support its PO policy. Before placing an Order, Customer must: (i) inform Equinix of its PO requirements and provide an accurate and complete PO; and (ii) maintain sufficient funds in a PO to pay the Fees for current and future Orders. Customer acknowledges and agrees that its PO requirements will not serve as a basis for any delay in paying invoices when due, nor will the terms of any PO apply to or modify the terms of the Agreement or any Order.
      5. Disputing an Invoice. Customer may, in good faith, dispute any invoice or any part thereof (a “Disputed Amount”) by notifying Equinix in writing 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 notification.
      6. Continued Use of Digital Services. While Customer has no right to continue to use the Digital Services after the expiration or termination of an Order, if Customer continues to use the Digital Services after the termination of an Order for a Term, Customer’s Digital Services will be converted to on-demand and Customer will be billed in accordance with Section 5.b after the termination of the Order at the then-current rates, until such time as Customer has deprovisioned or otherwise discontinued its use of the Digital Services or Customer has signed a new Order for the Digital Services for a new Term. If Equinix permits Customer to continue to use the Digital Services, Customer will remain bound by the terms of the Agreement, including, without limitation, all payment obligations, and such continued use may be terminated by Equinix immediately upon written notification to Customer.
    6. Term and Termination.
      1. Term. This DSA 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 the Agreement. The “Term” of an Order begins on the Effective Date and will continue for the agreed initial Term. Upon the expiry of the initial Term, the Order will automatically renew for successive renewal periods having the same term length as the initial Term, unless otherwise agreed in writing by the Parties; provided, if Customer elects a shorter Term length at renewal, the applicable Fees may increase accordingly.
      2. Notice of Non-Renewal. Either Party may terminate an Order by notifying the other Party in writing of its intent not to automatically renew at least thirty (30) days prior to the end of the then-current Term. Notwithstanding the foregoing, for Orders having a one (1) month Term, neither Party is required to provide advance notification of termination, unless otherwise indicated in the Order. For the avoidance of doubt, Digital Services purchased and/or used on-demand do not have a pre-fixed time commitment or Term, do not auto-renew and a written notice of non-renewal is not required from Customer to terminate such services.
      3. Termination. Either Party may terminate this DSA or an applicable Order by giving Notice to the other Party if the other Party breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after receipt of such Notice.
        1. Notwithstanding Section 6.c, if Customer fails to pay Fees when due, Equinix will notify Customer in writing and may terminate the Agreement if such payment breach is not cured within ten (10) days’ of such notification to Customer. If Customer fails to pay Fees when due, Customer will be responsible for all collections costs including reasonable attorneys’ fees.
        2. Notwithstanding Section 6.c, either Party may, at its election, terminate the Agreement in whole or in part by giving Notice to the defaulting Party if the defaulting Party is not in compliance with Sanctions Laws or is causing the other Party to be exposed to violations under Sanction Laws.
        3. Either Party may terminate the Agreement immediately upon Notice 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.
      4. Effect of Termination. Upon termination of this DSA or an applicable Order, Customer’s right to use the Digital Services and Documentation shall end. No termination of this DSA will affect Customer’s obligation to pay all Fees that may have become due prior to such termination.
      5. Suspension.
        1. 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:

          1. If Equinix reasonably determines that: (A) there is a threat or attack on any of the Digital Services; (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 the Agreement.
          2. In the event of violation of the AUP by Customer or an Authorized User.
          3. If Customer fails to cure any monetary breach of the Agreement within ten (10) days after written notification of the same (or immediately 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 6.e.i, a “Service Suspension”).
        2. Equinix shall use commercially reasonable efforts to inform Customer of any Service Suspension 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.
    7. Limited Warranty and Warranty Disclaimer.
      1. 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.
      2. Customer Warranty. Customer warrants that it owns all right, title, and interest, including all Intellectual Property Rights, or has received the necessary rights from an End User Customer when engaging in resale, in and to Customer Data, and that both Customer Data and Customer’s use of the Digital Services are in compliance with the Agreement.
      3. Except for the limited warranty set forth in Section 7.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 Customer’s or any other person’s or entity’s requirements, operate without interruption, achieve any intended result, be compatible or work with any of Customer’s 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.
    8. Limitations of Liability.
      1. Notwithstanding anything to the contrary in the 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 the 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.
      2. 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) for the applicable Digital Service directly causing the damage giving rise to Customer’s claim or cause of action for the twelve (12) months prior to the claim or cause of action.
      3. The limitations set forth in this Section 8 will apply to all claims and causes of action, regardless of whether in contract, tort, strict liability or other theory.
      4. The Parties each waive the right to bring a claim against the other arising out of or in any way relating to the Agreement after the period for commencing legal proceedings under applicable law has expired, or, if such period does not exist 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 the Agreement are materially bargained for by the Parties. Nothing in the Agreement excludes or limits a Party’s liability for matters for which liability cannot be limited or excluded under applicable law.
      5. The limitations in this Section 8 apply only to the maximum extent permitted by applicable law.
    9. Indemnification.
      1. Equinix Indemnification. Equinix shall indemnify, hold harmless, and, at Customer’s option, defend Customer and its Affiliates from and against all liability, loss, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising from or related to any claim brought by a third-party alleging that Customer’s use of the Digital Services in accordance with the terms of the Agreement infringes or misappropriates such third-party’s Intellectual Property Rights (“Third-Party Claim”); provided, Customer provides prompt Notice to Equinix of the Third-Party Claim, cooperates with Equinix, and allows Equinix sole authority to control the defense and settlement of such Third-Party Claim.
        1. Equinix will have no liability for a 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 the Agreement. Equinix also disclaims any liability for settlements entered into by Customer or costs incurred by Customer in relation to a Third-Party Claim that are not pre-approved by Equinix in writing.
        2. 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 to use the Digital Services. If Equinix determines that neither alternative is reasonably available, Equinix may terminate the Agreement or any impacted Order, in its entirety or with respect to the affected component or part, effective immediately on written Notice to Customer. This Section 9.a.ii sets forth Customer’s sole and exclusive remedies and Equinix’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims.
      2. Customer Indemnification. Customer shall indemnify, hold harmless and, at Equinix’s option, defend Equinix and its Affiliates, from and against all liability, loss, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising from or related to any 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 the Agreement; or (iii) Customer’s or any End User’s Customer’s use of any Third-Party Products in violation of any applicable Third-Party Terms; provided, Equinix provides prompt Notice to Customer of the third-party claim, Equinix cooperates with Customer, 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.
    10. Confidential Information.
      1. 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 the 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 the 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.
      2. 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.
    11. Safeguards and Privacy.
      1. Safeguards. Security and compliance are shared responsibilities between Equinix and Customer.
        1. Equinix will employ appropriate administrative, physical, technical and other safeguards in order to secure the Digital Services. Equinix’s privacy policies and security controls are described in its “Shared Responsibility Model,” located at https://www.equinix.com/about/trust-security (and any successor or related locations designated by Equinix), as it may be updated by us from time to time.
        2. Customer will employ appropriate administrative, physical, technical and other safeguards in order to secure Customer Data. Customer is responsible for assessing the suitability of the Digital Services for Customer’s intended use and employing appropriate data protection tools in support of Customer’s use of the Digital Services. Customer is solely responsible for: (a) managing, backing-up and archiving Customer Data, and (b) removing all Customer Data from the Digital Services (if applicable) on or before the expiry of the Order or the termination of the Agreement.
        3. Customer understands and agrees that the provision of Digital Services by Equinix does not involve any access by Equinix, or use, processing, monitoring, or performance of any operation of, or on, Customer Data by Equinix. Customer further agrees that, in the provisioning of Digital Services, Equinix does not act as Data Processor nor 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.
      2. Account Information. Each Party will exchange Account Information in connection with the creation and administration of Customer’s account and other administrative obligations under the Agreement. Each Party will comply with all applicable laws with regards to such Account Information. Equinix will only use Customer’s Account Information in accordance with the Privacy Notice and Customer will only use Equinix’s Account Information in accordance with its privacy policy(ies). The Privacy Notice does not apply to Customer Data.
    12. 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, Equinix remains primarily liable for the performance of its obligations. Equinix may transfer the Agreement or any of its rights and obligations hereunder without Notice to Customer. Customer may transfer the 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 the Agreement is assigned by Customer must agree in writing to be bound by all of the terms of the Agreement. The 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.
    13. Force Majeure. Except for Customer’s obligation to pay amounts owed under the 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 the 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.
    14. Compliance.
      1. Applicable Law. Each Party will comply with all applicable laws and regulations in connection with the Agreement.
      2. 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.
      3. 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.
      4. Insurance. Equinix will maintain Errors & Omissions (Professional Liability) and Cyber Liability insurance on a “claims made” basis with a limit of USD5,000,000 (or the local currency equivalent) per claim and in the aggregate, which Equinix will maintain throughout the Term and, provided that the coverage continues to be available on commercially reasonable terms, for two (2) years thereafter.
      5. Business Continuity Program. Equinix maintains and follows an established Business Continuity and Disaster Recovery program (“BCDR”), which includes Crisis Management, Emergency Response, Department and IBX Business Recovery, and IT Disaster Recovery. All BCDR program components are subject to annual review and enhancement where appropriate.
    15. Modifications. Unless otherwise agreed to, Customer acknowledges and agrees that Equinix may, in its sole discretion, modify this DSA from time to time, and that such modified terms will be effective upon posting. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued use of the Digital Services after the effective date of the modifications will be deemed its acceptance of the modified terms.
    16. Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter of the 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 the 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 the Agreement, but nothing in this Section shall limit or exclude a Party’s liability for fraud.
    17. Conflicts. All Orders are subject to the terms of this DSA. In the event of ambiguity, conflict or inconsistency among the documents comprising the Agreement, the documents shall be given a descending order of precedence as follows: (a) Exhibit A to this DSA; (b) the Order; (c) the applicable Product Policy; and (d) this DSA including any attachments and exhibits thereto except for Exhibit A.
    18. Governing Law and Submission to Jurisdiction. The Agreement will be governed in all respects by the governing laws listed below and without regard to conflicts of law provisions, except for the application of any mandatory law (or rule or regulation promulgated thereunder) in force from time-to-time which is applicable to the Agreement and the Services provided hereunder (“Mandatory Law”), which Mandatory Law shall apply and prevail over the applicable governing law set forth of below, to the fullest extent required by Mandatory Law. Governing law will be based on Customer’s Account Country at the time the Order is accepted. 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 the 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.
    Location of Customer’s Account Country
    Equinix address for Notices
    Governing law
    Jurisdiction
    North America, South America (excluding Brazil) or any location not listed in this table
    Equinix LLC
    One Lagoon Drive
    Redwood City, California 94065, USA

    State of California
    Courts of San Francisco
    Europe, the Middle East or Africa
    Equinix EMEA B.V.
    Rembrandt Tower (7th floor)
    Amstelplein 1, 1096HA
    Amsterdam, The Netherlands

    Laws of the Netherlands
    Courts in Amsterdam
    Asia (excluding India), Australasia and the Pacific Island nations
    Equinix Asia Pacific Pte. Ltd.
    79 Robinson Road
    #22-01
    Singapore 068897

    Laws of Singapore
    Courts of Singapore
    Brazil
    Equinix do Brasil Soluções Tecnologia Em Informática Ltda
    Rua Dr. Miguel Couto, 58, 5º andar
    Centro – São Paulo – SP

    Brazil
    Foro Central de São Paulo
    India
    Equinix Asia Pacific Pte. Ltd.
    79 Robinson Road
    #22-01
    Singapore 068897

    India
    Arbitration in Singapore administered by the Singapore International Arbitration Centre

    1. Notice. All legal notices (“Notice”) provided under this Agreement must be in writing. Notices will be deemed given when delivered by: (a) certified or registered mail, with proof of delivery; (b) overnight courier, upon written confirmation; or (c) email, without any error or failure notice from the receiving Party. Notice is required for the following: (i) termination of the Agreement; (ii) legal claims; (iii) requests for Indemnification; (iv) bankruptcy or insolvency; and (v) assignment or novation of the Agreement. Notices will be sent to the Parties at the respective addresses in the Agreement or as otherwise designated by the Parties. Customer may send Notices to Equinix via email to: LegalNotices@equinix.com. Customer must maintain up-to-date notices information with Equinix at all times.
    2. No Waiver. No waiver of any breach of any provision of the 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.
    3. Survival. All provisions of the 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 the Agreement, shall survive the termination of the Agreement; provided, however obligations related to Confidential Information will survive for three (3) years after expiration or termination of the Agreement.
    4. 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.
    5. Relationship. The Parties are independent contractors, and the 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.
    6. Third Parties. There are no third-party beneficiaries to the Agreement.

    EXHIBIT A TO THE DIGITAL SERVICES AGREEMENT
    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 Customer or Customer Affiliate identified in the Order. Notwithstanding anything to the contrary, the Agreement will be subject to any country-specific provisions listed below and which will supersede any conflicting provisions anywhere in the Agreement.

    Country applicable to Service Region
    Equinix
    Affiliate
    Additional Terms
    Australia
    Equinix Australia National Pty Ltd
    For the purposes of providing or managing the Digital Services in an Equinix Australia National Pty Ltd IBX location 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 its 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 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 Customer and/or its use of the Digital Services.

    Equinix Australia National Pty Ltd and Equinix Australia Pty Limited
    Notwithstanding the order of precedence provisions set forth in Section 17 of this DSA, the Parties agree that the below provisions related to “small business contracts” will take precedence over any conflicting terms set forth in an Order.

    Prior to entering into an Order, or at least thirty (30) days prior to the date that an Order automatically renews for a subsequent Term, Customer shall notify Equinix in writing if such Order is a “small business contract” as defined in Schedule 2 of the Competition and Consumer Act 2010 (as amended by the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 (Cth) and such further amendments from time to time) (collectively, the “CCA”), and if so, the following terms shall apply to such Order:

    “The Term of the Order begins on the Effective Date and will continue for the agreed initial Term. Upon the expiry of the initial Term, the Order will automatically renew for successive renewal periods of one (1) month unless either Party terminates the Order by providing written notice to the other Party at least thirty (30) days prior to the end of the initial Term, in which event the Order will terminate at the end of the initial Term. For the avoidance of doubt, neither Party is required to provide advance notification of termination for Orders having a one (1) month or shorter Term (including initial Term), unless otherwise indicated in the Order.

    As of the date of this DSA, a “small business contract” is defined under the CCA as a contract entered into by a party that satisfies any or both of the following conditions: (i) employs fewer than 100 persons; and/or (ii) has a turnover for its last income year (within the meaning of the Income Tax Assessment Act 1997) that ended at or before the time when the contract is made, of less than Ten Million Australian Dollars (AUD $10,000,000).”

    Brasil
    Equinix do Brasil Soluções Tecnologia Em Informática Ltda
    (a) As the product is requested through the online portal by Customer and without Equinix intervention, Equinix is not liable for any contracting dissociated from Customer's real need, neither for the wrong dimensioning of the products contracted and chosen / selected by Customer.

    (b) For the avoidance of doubt, unless otherwise expressly agreed in this Agreement, Equinix will not be liable for third-party losses or damages, Customer liability to third-parties or for any damages that cannot reasonably be predicted by Equinix.

    (c) The Equinix Order consists of the presentation on Equinix letterhead, numbered and dated, containing the description of the services to be provided by Equinix to Customer and the adjusted commercial conditions, valid as a Commercial Proposal according to art. 427 and following of the Brazilian Civil Code.

    (d) The Contractor declares to have all the necessary powers to deal with contracting on behalf of Customer, under penalty of application of the Brazilian Civil and Criminal legislation.

    (e) The Portuguese language must be the applicable language when contracting by a Brazilian company.
    India
    GPX India Services Private Limited

    GPX India Private Limited

    GPX India II Private Limited

    Equinix India Private Limited

    With respect to the tax provisions in the DSA, in addition to the Fees, Customer shall be responsible to pay for (i) Taxes related to itsown businessactivities; (ii) Taxes imposed, levied or assessed by any governmental or other authorities; and (iii) all stamp duty payable in connection with this Agreement. If Customer is required to make any deduction, withholding or payment for Taxes on the Fees payable to Equinix in accordance with the provisions of the Income Tax Act 1961 (as amended from time to time), Customer shall (a) deduct applicable withholding taxes or taxes deducted at source (“TDS”), (b) pay Equinix the net amount after deducting the applicable withholding tax or TDS; and (c) deposit such withholding tax or TDS with the relevant governmental authorities in India. Customer shall file a withholding tax return within the prescribed statutory time period and issue the withholding tax certificate (Form 16A) to Equinix within 15 days of the due date for filing such withholding tax return. For the avoidance of doubt, Customer is only permitted to deduct the amount of withholding tax from the Fees payable to Equinix where Customer is an entity incorporated in India.