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CONTRACT 4581 Vender Agreement(GTC_154388) NOTE REGARDING USE OF THIS DOCUMENT: These Global Terms and Conditions (GTC) are intended to be incorporated into country -specific master country agreements, and neither Licensed Space nor Services may be ordered in a country until the GTC and applicable master country agreements are fully executed. i 1. ORDERING AND PROVISION OF LICENSED SPACE AND SERVICES Customer may request Licensed Space and Services from Equinix by placing Order(s). upon agreement of Order(s), Equinix shall provide Licensed Space and Services to Customer pursuant to this Agreement. 2. PAYMENT TERMS AND TAXES a. Fees will accrue from the Billing Commencement Date and Customer will be liable for Fees for the full term specified in each Order, Customer wall pay in full all Invoices from Equinix In the currency stipulated in the Cider wilhin thirty (30) days of the date of Invoice, Interest shall be charged on past due amounts of the lower of (1) one ,and a half percent (1.554) per month; or (ti) the highest rate permitted by applicable' law. Unless othervAsa' mutually agreed, Equinix will Invoice monthly In advance for all recurring Fees and in arrears for usage -based or non-recurring FBes.. Fees will be listed on Orders„ except for Online Orders and Phone Orders which will bo subject to Equinix"s then -current list price unless otherwise mutually agreed. b. If the amount of any Invoice or any part thereof Is disputed by Customer in good faith (bona fldda) ('a 'Disputed. Amount"), then Customer must submit a written notice with reasonable supporting documentation within ninety (90) 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 fife any claim, The Parties will work together in good faith to resolve the Disputed Amount within thirty (30) days after receipt of C'ustomer's notice. c. If Customer'saccount is past due two (2') or more tunes in any twelve (12) month period, Equinix may charge Customer a deposit of three (3) months of the then-dillsble Fees to be held without Interest (the "'Deposit'). Equinix may deduct amounts Clue from the Deposit and wild return or credit any romainder upon termination. d'. All amounts payable by Customer to Ectulnix under this Agreement exclude Taxes. Customer shall be responsible for (I) Taxes related to Its activities and the ownership and operation of Customer's Equipment and (h) Taxes Imposed, levied or assessed lhar000 by any governmental or ofher authorities, If Customer is required to make any deduction, withholding or payment for Tuxes in any jurisdiction on amounts payable Io Equinix, such amounts, will be Increased such that after making such deduction, Equinix resolves an amount equal to wheat It would have received If such doduc'iBon, wilhholding or payment had not been made. 3, ACCESS TO AND USE OF THE IBX CENTERS a. Subject to the terms and conditions of this Agreement, Customer will have access to the Licensed Space twenty-four (24) hours per day, every day of the year. b. Customer will Comply with the Policies. which have been furnished to Customer and are incorporated herein by reference. Equinix may modify the Policies from time to time effective upon notice, Cuslomer may terminate an Order for a Licensed Space if Equinix Equinix GTC November 1, 2012 00 E0UINiX Agreement Number modifies the Policies in a way that materially adversely affects Customer's use of the Licensed Space and the Services in such Licensed Space and Customer provides written notice of termination within ten (10) days from the date of Equinix's notice. c. Customer may sublicense Licensed 'Space to a Sublicensee provided that (i) the terms and conditions of such sublicense will be no less restrictive than this Agreement; (it) Customer will not act or purport to act on behalf of Equinix or any landlord of Equinlx; (ill) Customer will require the Sublicensee to abide by this Agreement and the applicable Policies, and (iv) F-,gq,ulnix shall not be deemed to have any obligations to any Sublicensee. No Subllcense'e shall furlher sublicense any Licensed Space, f+ lohvlthsidndIng any subliconsing, Customer remains responsible to Equl'nN for the performance of all obligations under this Agreement including the payment of all amourtts owed under this Agreement. d, Custorner will be responsible and flable for all acts or omissions of Customer's Authorized Persons, Accompanying Persons, Associated 'Entitles and for any equipment or services not provided by Egvinix. Customer will Indemnify, defend and hold harmless the Equinix Parties from any and all flabilfty, loss, damages, 'costs and expenses (Including reasonable attorneys' fees and expenses,) for thlyd•parly claims brought by, arising from or related to Customer's Authorized Persons, Accompanying Parsons or Associated Entilies. e. This Agreement Is not 'Intended to and does not constitute a lease of any real or personal property or a grant of any other real property interest. Customer acknowledges and agrees that (I) for Licensed Sparse and Services provided in a common taw jurisdiction, It Is granted only a license to use the Licensed Space In accordance with this Agreement, and (ll) for Licensed 'Space and 'Services provided In a civil law jurisdiction, the Licensed Space Is made available and Customer is granted permission to access and use the Licensed Space In accordance with this Agreement. This Agreement is .subject and .su'bordinat'e to the leases for the, IBX Centers and elf superior Instruments to such losses, Customer's Equipment will not be construed as fixtures or fitlfngs. Equlnlx will retain title to all purls and materials used or provided by Equinix in providing the Licensed Space and the performance of the Services. 4. WARRANTY AND LIMITATION OF LIABILITY aa. Each flatly' represents, warrants and covenants that it will complywith all applicable laws and regulations In connection with this Agreement. Equinix reprosems, warrants and covenants that It shall provide the Licensed apace and perform the Services in a professional and workmanlike manner. Customer represents, warrants and covenants thal It will maintain throughout the Term the logo[ right and authority (inctudtng regulatory consents) to operate. configure, Install, maintain and repair Customar"s Equipment as contemptaled by this Agreement. b. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, EQUINIX DOES NOT MARE AND HEREBY DISCLAIM a ALL WARRANTIES INCLUDING BUT NOT LIMITED TO EXPRESS, IMPLIED AND STATUTORY WARRANTIES THAT THE 'SERVICES WILL BE I,INtNTERRUPTED, ERROR -FREE, OR COMPLETELY SECURE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY Equinix Proprietary and Confidential Page f of 7 00 OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. ALL LICENSED SPACE AND SERVICES ARE PROVIDED OR PERFORMED ON AN "AS IS", "AS AVAILABLE" BASIS, AND CUSTOMER'S USE OF THE LICENSED SPACE AND SERVICES IS SOLELY AT ITS OWN RISK. c. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (1) LOST PROFITS; (Il) LOSS OF BUSINESS; (111) LOSS OF REVENUES (EXCEPT THAT CUSTOMER SHALL BE LIABLE FOR ANY FEES OR OTHER AMOUNTS OWED TO EQUINIX UNDER THIS AGREEMENT); (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. d. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EQUINIX'S TOTAL LIABILITY TO CUSTOMER IN THE AGGREGATE FOR THE ENTIRE TERM (REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ATTORNEY'S FEES) WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO EQUINIX FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST CLAIM AROSE, AS A FURTHER LIMITATION, EQUINIX'S MAXIMUM LIABILITY FOR ANY CLAIMS RELATING TO THE LICENSED SPACE AND THE SERVICES OFFERED OR PROVIDED BY EQUiNIX (1) FOR A NON-RECURRING CHARGE ONLY; OR (11) AS SMART HANDS SERVICES, SHALL NOT EXCEED THE. AMOUNT OF THE FEE FOR SUCH LICENSED SPACE AND SERVICES PROVIDED ON THE OCCASION GIVING RISE TO THE CLAIM. e. THE LIMITATIONS SET FORTH IN SECTIONS 4(c) AND 4(d) WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY. f. Equinix and Customer each waive the rtght to bring any claire against the other Party arising out of or in any way rotating to an Order more than one (1) year after the date such Order expires or 1s terminated. Each Party recognizes and agrees that the warranty disclaimers, llmilaUons of liability and remedy limitations in this Agreement are materially bargained for by Equinix and Customer. 5. INSURANCE a. Customer agrees to maintain the following Insurance, at its expense, for each IBX Center during the Term, with insurers having a minimum AM Best rating of A- VII or S&P rating of A: (i) Commercial General Liability or Public Liability Insurance with a limit of US$2,000,000 per occurrence, US$4,000,000 in the aggregate (or the local currency equivalent), provided these limits may be achieved through a combination of primary and excess policies. Such insurance will include coverage for bodily injury and property damage; (ii) Workers' Compensation and Employer's Liability insurance where required by local statute; and (iii) All Risk Property Insurance on a replacement cost basis with limits adequate to cover the value of Customer's Equipment. b. Customer will furnish Equlnlx with certificates of Insurance upon request that evidence the minimum levels of insurance set forth herein, list Equinix as an additional insured or interested party on the Commercial General Liability or Public Liability policy and designate that Customer's insurance is primary and non-contributory. Customer waives its insurers rights of subrogation on all policies referenced above. Customer will provide at least thirty (30) days' prior written notice to Equinix of any non -renewal or cancellation of the policies referenced above. Agreement No. 4581 6. TERM, TERMINATION AND SUSPENSION a. This Agreement will commence on the Effective Date and will terminate on the date the last Order then in effect expires or is terminated. A termination of this Agreement shall terminate all Order(s). b. Either Party may terminate this Agreement 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 or 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 sixty (60) days after receipt of the notice, to cure the breach, provided that the breaching Party acts promptly and diligently to cure such breach. c. Either Party may terminate this Agreement immediately upon giving written notice to the other Party if such other Party becomes unable to pay its debts as they become due, ceases to do business, enters into a dead of arrangement, undergoes judicial management, commences the process of liquidation, has a receiver appointed or begins winding up or similar arrangements. d. Without limiting Equinix's rights under Section 6(b), Equinix may suspend the provision of the Licensed Space and/or the Services, deny access to and the removal of Customer's Equipment from the IBX Center, if Customer falls to cure any monetary breach of this Agreement within ten (10) days after notice of the some (or within five (5) days after notice of the same in the event Customer's account is past due on two (2) or more occasions during a twelve (12) month period). e. Equinix may suspend the use of Licensed Space andfor provision of the Services if (i) Customer or Customer's Equipment interferes with EquinWs operation or maintenance of the IBX Center or with one or more of Equinix's other customers' use thereof, and within a reasonable time, not to exceed one (1) hour after being notified by email or phone, Customer fails to (a) cease such interference; (b) provide a plan acceptable to Equinix to cease such interferences; or (c) authorize Equinix to lake action to cease such Interference (billed at Smart Hands rales); or (11) in Equinix's reasonable judgment Customer or Customer's Equipment has the potential to interfere With Equinix's operation or maintenance of the IBX Center or with one or more of Its other customers' use thereof, and within a reasonable time, not to exceed forty- eight (48) hours after being notified by e-mail or phone, Customer falls to (a) resolve such potential Interference; (b) provide a plan acceptable to Equinix to resolve such potential interference; or (c) authorize Equinix to take action to resolve such potential interference (billed at Smart Hands rales). If Equinix suspends the use of Licensed Space and Services pursuant to this Section 6(e), unless Equinlx has subsequently terminated this Agreement as permitted under this Agreement, Equinix will reinstate use of Licensed Space and resume the discontinued Services as soon as reasonably practical after it Is reasonably satisfied that Customer has cured the breach(es) which gave Has to the suspension; and Equinix may charge a reinstatement fee. Further, Equlnlx may terminate this Agreement if Customer's breach referred to In this Section 6(e) continues for at least five (5) days or occurs more than three (3) times In any twelve (12) month period, T. REMOVAL OF CUSTOMER'S PROPERTY a. Customer will remove all or Customer's Equipment on or before the expiry or termination of the applicable Order. Unless Equinix otherwise agrees in writing, failure to remove Customer's Equipment within ten (10) days from the termination of the applicable Order, or within thirty (30) days if the Order Is terminated due to Equinix's material breach; will constitute abandonment of Customer's Equipment under the laws of the jurisdiction where the abandoned property is located and Equlnlx will be entitled to pursue all available legal remedies, Including, without Ilmllation and at Customer's risk and expense: (i) immediately removing Customers Equipment and storing It at Customer's expense at an on-site or off-site location; (it) shipping it to Customer, or (Iii) upon Equlnlx GTC Equinix Proprietary and Confldentlal Page 2 of 7 November 1, 2012 0 thirty (30) days' prior written notice to Customer, liquidating it, and retalning the proceeds. b. Subject to 'Section 7(a), while Customer has no right to use the Licensed Space or Services after an Order expires or terminates, if Equinix permits Customer to do so in its sole discretion, Customer V011 remain bound by the terms of the Order and this Agreement, Including, without limitation, all payment obligations, and such continued use may be terminated by Equinix immediately upon notice. 8, CONFIDENTIAL INFORMATION a. "Confidential Information" means Information disclosed by one Party to the other Party: 'Including (a) information idenllned by the disclosing Party, in writing or orally, as confidential at the time of disclosure, (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; (c) the terns of this Agreement; (d) the design of the ISX Centers, the Licensed Space, the Services provided, equipment used at the iBX Centers, the configuration of cables, networks and services at the IBX Centers. Information is not. deemed Confidential information If it (1) 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; (fl) 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 disctosing 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. For the avoidance of doubt„ the mere placement of materials or equipment containing information at an Equinix location does not constitute disclosure of such Inf'ormatton to Eq,ulnix. b, Nelther Party will use or disclose Confidential Information from the other, Party without the prior written consent of the other Party except where (i) if in the opinion of counsel, 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 'jurisdicti'on after taking steps to maintain Its confidentiality where ,practicable; or (6) reasonably necessary to be made to that Party's, or IIs Affiliates', employees, officers, directors, attorneys, accountants and other advisors, or (III) necessary for a Party to exercise its rights and perforin its obligations under this Agreement. In any case, the disclosing Party shall ensure that disclosure shall not be broader than necessary, and that the redolent agrees prior to receipt to keep the information confidential to the samo extent as under this Agreement (except that such agreement need not be obtained for disclosures to a court, regulator or arbitrator). c. 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 w1houl the prior written consent of the other Party In each case. Notwithstanding this Seclion 8, (1') Equinix may issue a press release announcing Customers entry into the IBX Centers; (II) Erauinix may display Customer's name, presence In the 10X Centers and other Information uploaded by Customer on the Equinix Marketplace, and ('Ill) either Party may publicly refer to the other Party as a customer or vendor of Licensed Space and Services. 9. MISCELLANEOUS a. Name I L. Unless expressly stated in the Agreement, all notices, consents, or approvals required by this Agreement will onty be effective if In writing and sent by (i) certified or registered mart, postage prepaid„ (It) ovr:nnighi delivery+ requiring a signalure upon receipt, (iii) delivery by hand; or (iv) facsirnite or electronic mail (promptly confirmed by mail)„ to the Parties at the respective addresses or numbers in this Agreement or as designated In writing by the Parties. Notices, consents and approvals under this Agreement will be in writings with either ink or electronic signature, and be deemed effecgve on the date of recelpL Agreement No. 4581 Notwithstanding anything to the contrary in this Agreement, notices relating to Policies sent by Equinix shall be presumed to be received rive (5) days after mailing If sent by mail, two (2) days later If sent by overnight courier or on the date of dispatch if sent by electronic mail. b. Entire Agreement This •Agreement, including these Global Terms and Conditions and the Equinix Service Level Agreement set out in Exhibit 1 to these Global Terms and Conditions, and all Orders, which are incorporated by this reference, constitute the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersede and replace all prior or contemporaneous discussions, negotiations, proposals, understandings and agreements, written or oral, as wall as any Industry custom. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shell have no right or remedy, in respect of, any statement, representation, assurance or warranty other then as expressly set out in this Agreement, but nothing in this Section 9(b) shall limit or exclude a Party's liability for fraud. This Agreement may be executed in two or more counterparts (and the signature pages may be delivered' with ink or electronic signature or by facsimile or email)„ each will be deemed an original, but all together will constitute one and the same Instrument. Except where otherwise expressly stated herein, this Agreement may be amended only by the written agreement of both Parties. c, Construction. Each Party agrees that it has reviewed this Agreement, and this Agreement shall not be interpreted more strictly against the drofting Party. The section headings and captions are for convenience only and will not be used to construe this Agreement. If any provision of this Agreement I's adjudged by a court to be Invalid, Illegal or unenforceable, it will not affect the validity, legality, or enforceability of the other part(s) of the same provision or of the other provisions in this Agreement. d- Survival. Sections 3(d), 4(c) — (q, 7, and 9(d) will survive the termination of this Agreement. Section 8 will survive for three (3) years after termination of this Agreement. e. Sg§cnniractino ondEquinix moy permit any other Equinix Company, independent contractor or other thirdparty, to perform any of Eq'u1nlr s obligations hereunder, Equlnlx may transfer this Agreement or any of Its rights and obligations hereunder with prior 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 pnor 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 bonofit of all successors and permitted transferees of Equinix and Customer, who will be bound by all of the obligations of their predecessors or transferors. f. Force Mpieure. 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„ arlsing out of or relating to a failure by the other Party to perform any of Its obligations under this Agreement if such failure is caused by events or circumstances beyond its reasonable control, These events may Include but not be limited to acts of God, war, labor strike, terrorist act, fire, flood„ earthquake, health epidemic or any law, order, regulation or other action of any governing authority or agency. g.fl�i $% All Orders are subject to the terms and conditions of this Agreement. In the event of ambiguity, conflict or Inconsisloncy among the documents comprising this Agreement, the documents shall be givens a descending order of precedence as follows (1) the Order; ('it) the master country agreement Including attachments and e'xhi'bits to the master country agreement, other than these Global 'Terms and Conditions, (III) the Policies: and (iv) these Global Terms and Conditions. 11, a')R Pf21ectlo% *Contact Crate" means business contact date (Including but not limited to CFtM databases and data that Is set out on access lists at any 10X Center from time to time) containing personal andlor private information of a Party, Its agents, employees or any Equinix GTC Equinix Proprietary and Confidential Page 3 of 7 November 1, 2012 00 authorized user of the Licensed Space and Services (including Sublicensees) and its agents, employees, consultants, contractors or partners provided to or obtained by the other Party by virtue of the performance of the Agreement and whose use, processing or transfer of such data is regulated by law or regulation as "personal data". Customer acknowledges that Equinix, Equlnix Parties and their agents will, by providing the Licensed Space and Services, come into possession of Contecl Data. Customer acknowledges and agrees that Equinix, Equinix Parries and their agents may use, process andfor transfer Contact Data (Including Intra -group transfers and transfers to the United Slates): (t) in connection with the provislon of Licensed Space and Services; (ti) to Incorporate Contact Data Into databases controlled by Equlnix or Equlnix Parties for the purpose of account administration, billing and reconciliation, operational maintenance and support activities, fraud detectlon and prevention, and customer and market analysis and reporting; and (Ili) to communicate to Customer by voice„ letter, fax or email regarding products and services of Equmnix or Equinix Parties or third parties through the Equinix Marketplace. Customer may withdraw consent for such use, processing or transfer of Contact Data as set out In (Ill) above by sending written notice to Equlnix on the prescribed form, available from Equinix. Customer acknowledges that It has the right to access Contact Data upon written notice and have any agreed errors in such Contact Data rectified. I. Imernallonal qecurilv Concernq,. Customer represents, warrants and covenants that Customer: (i) is compliant with appl°cable Sanction Laws; (it) is not listed, or owned or controlled by an entity or person„ on the U.S. Department of Treasury list of Specially Designated Nationals, or located In or organized under the laws of a country subject to U.S. or E.U. embargo (collectively, "Restricted Persons"); (ill) is not providing services in connectlon with this Agreement to Restricted Persons, including any Sub -Licensees; and (Iv) will notuse the Licensed' Space and Services, or allow them to be used, for any purposes prohibited by applicable Sanctlon Lays, including, nuclear, chemical, or biological weapons proliferation, or development of m'Issile technology. Notwithstanding any other provision In this Agreement, Equinix reserves the right to term male this Agreement immediately upon written notice to the Customer 11 Equinix reasonably determines that Customer is not In cornphance with this Section 9(1.) or is causing Equinix to be exposed to violations under Sanction Laws. ), p9n9atL Except where otherwise expressly stated herein, and subject to the limitations set forth in Section 4, the rights and remedies provided for herein are cumulative and not exclusive of any rights or remedies trial a Party would otherwise have.. 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. There will be no third party beneficiaries to this Agreement. No waiver of any breach of any provision of [his 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 wrlting and signed by an authorized representative of the waiving Party. Each master country agreement (i) is only binding upon the MCA Signatories and not upon any other Equinix Company or Customer Affiliate and (11) only affects Orders placed under that master country agreement, For avoidance of doubt, no other Equinix Company or Customer Affiliate except the MCA Signatories are required to agree to any of the terms and conditions set forth In that master country agreement. The Equintx Company that enters Into an Order with Customer for Licensed Space and Services strait provide the Licensed Space and 'Services in accordance with this Agreement and no other Equinix entity shall be jointly or severalty liable with such Equinix Company for the provision of Licensed Space and performance of the Services. Agreement No. 4581 10. DEFINITIONS Capitalized terms used herein but not otherwise defined will have the meaning ascribed to them In this Section 10 or the applicable master country agreement. Accompanying Person: Each person (other then an employee of Equinix) accompanied by an Authorized Person while at an IBX Center. Affiliate; As to a Party, any entity controlling, controlled by, or under common control with such Party, where the term "control" and its correlative meanings, "controlling; "controlled by," and "under common control with," means the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the aggregate of all voting equity interests in an entity. Agreement: The meaning given to such term in the relevant master country agreement into which these Global Terms and Conditions are Incorporated. Associated Entity: Means (t) each individual, company, partnership or other entity of any type which employs, contracts with, or is otherwise associated or affiliated with Customer, Authorized Persons or Accompanying Persons, (li) any of Customer's end users and (iii) Sublicensees. Authorized Person: Each person included on the most recent list of Authorized Persons given to Equinix by Customer In accordance with Equlnlx's then -current form and procedures, who may be authorized by Customer to, for example, access an IBX Center, place Orders on an Equinix customer care website or act as Customer's shipping contact. Billing Commencement Date: For Licensed Space or a Service ordered in an Order (other then Online Orders or Phone Orders), the date designated in the Order as the Billing Commencement Dale or If there Is no date designated in the Order, then the date on which the Licensed Space Is provided or the Service is delivered. For Licensed Space or a Service ordered In an Online Order or Phone Order, the date Equinlx begins providing the Licensed Space or Service to Customer, unless otherwise agreed to by the Parties in the Order. Cross -Connect: A physical or wireless inlerconnection within an IBX Center that (t) exits Customers Licensed Space or (tt) connects Customer to another Equinix customer. Customer's Equipment: AN network, computer and other equipment provided, owned or controlled by Customer, Customer's Affiliates, Customers Authorized Persons, Accompanying Persons or Associated Entities (including wiring and connections between such equipment and Customer's demarcation equipment) excluding Gross -Connects or Equinix's demarcation equipment. Equinix Company: An Affiliate of Equinix Inc. Equinlx Marketplace: A portal established and operated by Equinix whereby the Customer may promote its own, products and services to other customers or prospective customers of Equinix or obtain information about procuring products and services from other Equinix customers, known as the "Marketplace" or such other future marketing medium with a similar purpose aimed at current or potential Equinix customers. Equlnix Parties; Equinix and the Affillates, owners, officers, directors, employees, and agents of Equinix. Fees: Charges and fees for Licensed Space and Services charged to Customer by Equinlx, exclusive of Taxes. IBX Centers: The International Business Exchange Centers In which Customer receives Licensed Space and Services from Equlnix pursuant to an Order. Licensed Space: The areas which, for space in an IBX Center in a common law Jurisdiction, are licensed by Customer or, for space In an Equlnix GTC Equinix Proprietary and Confidential Page 4 of 7 November 1, 2012 00 IBX Center in a civil law jurisdiction, are made available to Customer with permission to access and use, in each case under this Agreement and the Orders, and as identified in the Orders as to the amount of space. For each Licensed Space, Equlnix will determine at all times the exact location in the IBX Centers where the Licensed Space will be located, and Equinix will notify Customer accordingly. MCA Signatories: The Equinix Company and Customer Affiliate that are the signatories to a master country agreement. Online Order: An Order placed via an Equinix customer care website or email, to be effective only after Equinix accepts It in accordance with Equinix's applicable procedures or Equinix begins providing the Licensed Space or the Services ordered under the Online Order, Order:. An order for Licensed Space or Services prepared by Equinix, or an amendment thereto that is incorporated into this Agreement by reference; which describes the Licensed Space or Services. Orders are not vatld until signed 'by both Parties, except for Onllne and Phone Orders. Equlnix is under no obligation to accept an Order. Unless otherwise specified, reference to Order(s) shall also include Online Orders andlor Phone Orders. Phone Order. An Order placed over the phone, where available, will be effective only after Equinix accepts It in accordance with Equinix's applicable procedures or when Equinix begins providing the Licensed Space or the Services. Policies: Equinix's procedures, rules, regulations, security practices and policies for the IBX Centers, as amended from time to time. Sanction Laws: Ali applicable sanction or embargo laws and regulations from time to time, including trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets CUSTOMER TO COMPLETE: Acknowledged and agreed. Customer Company Name: t"tr ( dofa L& f Naos Authorized Signature: AA Printed Name: Title: 4(e .,+t O°'— ID mar:.',fpr.„/ ,M�:'ry By q. C! Segundo Agreement No. 4581 Control ("OFAC") and any other enabling legislation or executive order relating thereto. Services: All services, goods and other offerings provided by Equinix under an Order pursuant to this Agreement. Smart Hands: Equlnlx's onsite technical assistance which may include following Customer's express Instructions relating to remote management, installation or troubleshooting of Customer's Equipment or any other assistance agreed to by Equinix In an Order. Sublicensee: A customer of Customer or other third party who (i) subiicanses all or part of the Licensed Space from Customer. If such Licensed Space Is located in a common law jurisdiction, or (it) is able to access and use all or part of the Licensed Space as made available by Customer, If such Licensed Space Is located in a civil law jurisdiction. Taxes: Sales, use, transfer, privilege, excise, consumption tax, Value Added Tax ("VAT") or Goods and Services Tax ('GST') 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 Licensed Space iprovided or the Services performed by Equlnix for Customer or to Customer for its operatlons and use of the Licensed Space or Services„ but excluding taxes on Equlnix's net Income. Term: The duration of this Agreement, as determined under Section e(s) of this Agreement. Unavailable: The rracenin,g given to such term in the context of a service level specified In the Equlnix Service Level' Agreement set out In Exhibit A to these Global Torms and Conditions, and `Unavailability" will be construed accordingly. EQUINIX TO COMPLETE: Acknowledged and agreed. Authorized Signature: Printed Name: Title: Equinix GTC Equinix Proprietary and Confidential Page 5 of 7 November 1, 2012 0 111X Center in a cavil law jurisdiction, are mad* available to Customer with permission to access and use, in each case under this Agreement and the Orders. and as identified in the Orders as to the amount of space. For each Licensed Space. Equinix will determine at all three the exact location in the IBX Centers where the Licensed Space will be located, and Equinix will no* Customer accordingly, MCA Signatories: The Equinix Company and Customer Afrdlate that are the signatories to a master country agreement. Online Order: An Order placed via an Equinix customer care website or small, to be effective only after Equinix accepts It In accordance with Equine's applicable procedures or Equinix begins providing the Licensed Space or the Services ordered under the Online Order. Order: An order for Licensed Space or Services prepared by Equinix, or an amendment thereto that is incorporated into this Agreement by reference; which describes the Licensed Space or Services. Orders are not valid until signed by both Parties, except $or Online and iPN>ione, Orders. Eq,uirAx is under no obtigabonr to accept an Order. Unless olharawise specified, reference to Crder(s) shall also Include Onlln* Orders and/or Phone Orders. Phone Order, An Order placed over the phone, where avakabla, will be effective only after Equinix apts It In accordance wNh Equinix"s applicable procedures or when Equinix begins providing the L.ioensed Space or the Services. Policies: Equine's procedures, rules, reguta0one, security practices and policies for the IBX Centers, as amended from time to time. Sanction Laws: Al applicable sanction or embargo laws and regulattons from time to lime. Including trade and economic sanctions maintained by the Treasury Deparlment's COO of foreign Assets CUSTOMER TO COMPLETE: Acknowledged and ognred. , Customer Company Name! Authorized Signature: ✓I Printed Name: G red Tide: App . Mar" Attorney By: :)rney Agreement No. 4581 Control ("OFAC") and any other enabling legislation or executive order relating thereto, Services: All services, goods and other offerings provided by Equinix under an Order punsaent to this Agreement. lunar! Hands: Equinlx's onsite la&mldal assistance which may induda following u mer's express Instructions relating to remote managenwi„ Installation or troubleshooting of Customer* Equipment or any other assistance agreed to by Equirsx In an Osier. Subliconsea: A customer of Customer or other third party who (i) subticenses all or part of the Licensed Space from Customer, If such Licensed Space is located in a common law jurisdiction, of (ii) Is able to access and use of or part of the Licensed Space as made available by Customer, H such Licensed Space Is located in a cH law Jurisdiction, Taxes: Sate*, use, transfer, prHags, excise, consumption tax. Value Added Tax ('VAT') or Goods and Services Tax ('GST') as applicable, and other similar taxes and duties, whether forelgn, national, state or local, however designated, levied or imposed (whether as a deduction, withholding or t) now 1n force or eruuted in the future, which apply to the Licensed Space provided or the Senices perdarrnedby Equinix for Custrxner or to Customer for its operations and use of the Licensed Space or Somfoes, but excluding taxes on Equtnix's net Income. Term- The duration of this Agreement, as determined under Sectlon 6(a) of this Agreement, Unavatlabie: The meaning given to such term in the context of a service level $Mclflad In the Equlnlx Service Level Agreement set out In Exhibit A to these Global Terra and Conditions, and 'Unavattlabllltyi will be oonstwed accordingly. EQUINIX TO COMPLETE: Acknowledged and agreed, Authorized Signature: Printed Name: Title: Robert Ponticelli 2013.02. Equinix GTC Equinix Proprietary and Confidential Page 6 of T November 1, 2012 go Agreement No. 4581 EQUINIX SERVICE LEVEL AGREEMENT EXHIBIT A TO GLOBAL TERMS AND CONDITIONS The purpose of this Service Level Agreement ("SLA") is to define the measurable performance levels for the provision of Equinix Services and specify remedies available to Customer if Equinix fails to achieve these levels. Words capitalized but not defined In this SLA will have the meaning defined in the Agreement_ POWER SERVICES Redundant Power at 9 999t% availpbllitv.. This is met by achieving less than five (5) minutes of Unavailability over a twelve (12) month period (-Redundant Power SLA Threshold") per cabinet. For the purposes of this paragraph, a Redundant Power Service is considered Unavailable when a functioning cabinet that Includes Customer provided automatic failover capability Is powered by two (2) power circuits from different power busses, and both power circuits experience a simultaneous Interruption In electrical power such that the cabinet experiences an Interruption in electrical power. Subject to Section 4, if Unavailability exceeds the Redundant Power SLA Threshold, Customer will be entitled to a Service credit equal to 1130th of the Monthly Recurring Charges ("MRC") for the affected power circuits and Licensed Space MRC for the cabinet attached thereto ("Loaded Cabinet MRC"), Further, Customer will be entitled to an additional Service credit equal to 1130th of Loaded Cabinet MRC for the affected Loaded Cabinet for every full hour of Unavailability beyond the Redundant Power SLA Threshold. Non-Redund'ani Power at. 99,99+% avail9k1k This is mel by achieving less than fifty two (52) minutes of Unavailability over a twelve (12) month period ("Non -Redundant Power SLA Threshold") per cabinet. For the purposes of this paragraph, a Non -Redundant Power Service is considered Unavailable when a functioning cabinet i5 powered by one (1) power circuit, and the power circuit experiences an interruption in electrical power such that the cabinet experiences an Interruption In electrical power. Subject to Section 4, if Unavailablity exceeds the Non -Redundant Power SLA Threshold, Customer will be entitled to a Service credit equal to 1130th of the Loaded Cabinet MRC for the affected Loaded Cabinet. Further, Customer will be entitled to an additional Service credit equal to 1130th of Loaded Cabinet MRC for the affected Loaded Cabinet for every full hour of Unavailability beyond the Non -Redundant Power SLA Threshold. 2. LICENSED SPACE ENVIRONMENTAL SERVICES 19moeraturo at 99�99+% avatlabili,)y-., This is met by achieving less than fifty two (52) minutes of Unavailability over a twelve (12) month period ("Temperature SLA Threshold") per cabinet. For the purposes of this paragraph, temperature is considered Unavailable when the temperature drops below 64.4 F 08 C) or exceeds 80.6 F (27 C). Subject to Section 4, if Unavailability exceeds the Temperature SLA Threshold, Customer will be entitled to a Service credit equal to 1/301h of the Loaded Cabinet MRC for the affected Loaded Cabinet. Further, Customer will be entitled to an additional Service credit equal to 1130th of Loaded Cabinet MRC for the affected Loaded Cabinet for every full hour of Unavailability beyond the Temperature SLA Threshold. Humidity at* it . This Is met by achieving less than fifty two (62) minutes of Unavailability over a twelve (12) month period (*Humidity SLA Threshold") per cabinet For the purposes of this paragraph, Humidity Is considered Unavailable when the humidity drops below twenty five percent (25%) or exceeds sixty-five percent (65%). Subject to Section 4, if Humidity Unavailability exceeds the Humidity SLA Threshold, Customer will be entitled to a Service credit equal to 1/301h of the MRC for the affected Leaded Cabinet. Further, Customer will be entitled to an additional Service credit equal to 1130th of Loaded Cabinet MRC for the affected Loaded Cabinet for every full hour of Unavailability beyond the Humidity SLA Threshold. 3. CROSS -CONNECT Cwt" nnect service at 99„ + "p avaltabl6lty, This Is mel by achieving less than fifty two (52) minutes of Unavailability over a twelve (12) month period ("Cross -Connect SLA Threshold") per Cross -Connect. A Cross -Connect is considered Unavailable when the passive physical media that Equinix uses for the Cross -Connects fails and the endpoints of the Cross -Connect are not able to maintain a communication connection due to the failure of the physical media. Subject to Section 4, If Cross -Connect Unavailability exceeds the Cross -Connect SLA Threshold, Customer will be entitled to a Service credit equal to the MRC for the affected Cross -Connect. 4, GENERAL Notwithstanding anything to the contrary in this Attachment or the Agreement the following provisions apply to all Services: The Service credits set forth in this Attachment are Customer's sole and exclusive remedy if Equinix falls to meet the service level thresholds slated herein, and in any calendar month the maximum Service credit to which Customer shall be entitled for any Service will not exceed the MRC for such Service. All periods of Unavailability must be verified by Equinix, and approved credits will be applied by Equinix to the invoice for the month following the month In which the credit was approved. The period of Unavailability Is measured from Customer's notification to Equinix of the incident to the time the Unavailability has been remedied as confirmed by Equtnix. For avoidance of doubt, Equinix measures Temperature and Humidity Unavailability between three (3) and five (5) feet from the near and no closer than twelve (12) inches from the cool air intake side of a cabinet. Customer shall not be entitled to a Service credit If the event or condition that would have otherwise given rise to the credit was caused by any of the following: acts of God, war or acts of terrorism, labor strikes or other labor action, fire, flood, earthquake, landslide, earth movement, hurricane, typhoon, tsunami, volcanic eruption or other natural disaster, riot or civil unrest, official orders from judicial, law or civil authorities, scheduled maintenance windows, Customer's equipment, actions or inactions of Customer or its representatives, actions or inactions outside of Equinix's reasonable control; or If Customer does not request a credit from Equinix in writing at the appropriate country contact specified below within seven (7) days after the incident entitling Customer to a credit has been remedied. Equinix GTC Equinix Proprietary and Confidential Page 6 of 7 November 1, 2012 us Agreement No. 4581 UNITED STATES: unless otherwise designated by Equlnlx, the Service Desk — North America can be reached 1) via email to support@equlnix.00m; 2) via telephone 1 866 EQUINIX (+1.866.378.4649) or 3) via webslte hljgoyAoc.eouinlx.00m. EUROPE; unless otherwise designated by Equinix, the Equinix Service Desks can be reached as follows: COUNTRY United Klnudom France Germany Switzerland - Zurich Switzerland - Geneva The Netharlands TELEPHONE +44 LO 846 373 2999 +33 1 55 87 22 00 +49 1 805 049 556 +41 (0)44 355 69 70 +41 0)22 544 98 98 l) 20 2050777 EMAIL endceDes . equinix.apm ServIcaDesk.IraServiceDesk.D nc,eu.eu,eu,ealnlx,eorn €0, ectuinlx,cum II servicedesk.Zil(�04,,q,g4inix,copq u servlcedesk.GV(�eu.eauintx.ctzrn Servrcedask.nl�au.pquiruiatsca�rrr ASIA -PACIFIC: Equinix Asia-Pacific Network Operations Center can be reached 1) via small to m.eoWnIx,com; 2) via telephone +65.6723.8833. Equinix GTC November 1. 2012 Equlnix Proprietary and Confidentlal Page 7 of 7 0 EMBIT A (MCA 154388) MASTER COUNTRY AGREEMENT Agreement No. 4581 Uft a U I N I X UNITED STATES This Master Country Agreement (United States) (the'MCA (Ute)" which also maybe referred to as *MSK) is entered '*Won io—L5 (the "lffective Cate") by and between the undersigned customer ("Customer') and Equinix Operating Co. Inc., for and on behsl f itself or Its Affhllates, each of whom may protide use of Licensed Space and Services pursuant to an agreed Order from lime to lure (and each referred to herein as 'Equinix'). Customer and EquinN may be referred to collectively as "Parnas' or individually as a'Party". In consideration of the mutual covenants and conditions set forth below, Equinix and Customer agree as follows: 1. This MCA (US) (neoMorales the Global Terms and Conditions attached as Attachment A ("GTCs') and all other attachments to this MCA (US). The term "Agreement' as used in this MCA (US) and in the GTCs shall mean this MCA (US) and everything Incorporated by reference in b This MCA (US) and In the GTCa. Including the Poricies and au Orders. Capitalized (arms used but not defined in this MCA (US) shad have the meaning ascribed to thorn in the GTCs. 2. This Agreement will be governed in all respects by the intemaf laws of On State of California without regard to its eonfllcl of law provisions. The Parties each irrevocably agree to the exclusive juriedlollon of the courts of San Francisco, California, and waive any right to bring any action against the other Party In any other jurlsdiction or courts. If any leges eotlon is brought by either Party arising from, or retailed to, the subject matter of this Agreement, the prevailing Party will be enpUect roan award of Its rsssonskal+r attomeys' lees and costa. 3_ Customer will not Ne a mechanic's lien or stmNa► lien on. or in connection with, the Licensed Space or 1BX Centers. Without limiting the foregoing. In the event a mechanic's lion or similar lien is filed on or in oonnaellon with, the Licensed Space or IBX Centers. Customer wttt be responsible for the immedlate satisfaction, payment or bonding of any such Ilan. In no event will Customer's Equipment be construed as fixtures. Executed as an Agreement, which shall not take affect until signed by both Parties below. Customer warrants and represents that the M& Wual signing below has lull eulh ity to execute this Agreement on behafl of Customer. Customer Name: .i y td A C1n Authorized Printed Name: I.t. /I °u IWAr , Tulle: r t' Street address notices: .3 NAtoS`t. Zj Phone: ' Facsimile number, E t*& warrants and tepnesents that the bnA Wuat sfp*g below has full suN►ority to execute thus Agreement on behafl of Equiaix. O,M Authorized Signature: Pantic& Printed Name:r /6 ;ter f.'rd�i �" 1111x: Street address for notleas: One Lagoon Drive, a Floor 04h00r Redwood City, CalBomis 94065, USA Phone: +1630.598-6000 Facsimile number. +1050-418.1857 Electronic mak address: Incomingdoce6equlnix.corrr Eleclronlc mail address: e3,Wfn e w u- �� f � h Q vatC.t ✓j �j� �� '� � J 0 EauNlx US MCA November 1, 2012 EquWx Proprietary and Confidential Page 1 of 2 D Agreement No. 4581 Attachment A GTCs The remainder of this page is intentionally blank. EQUINIX U5 MCA Equinix Proprietary and Confidential Page 2 of 2 November 1, 2012 IE Shilling, Mona From: Shilling, Mona Sent: Thursday, October 17, 2019 9:59 AM To: Sandoval, Lili; Harada, Patricia Cc: Cerritos, Maria; Kim, Scott; Fennell, Darlene; David King Subject: FW: Equinix Agreements Lili/Patrica, Follow-up regarding IS submittal of two new Equinix Orders associated with existing agreement 4581. Please refer to the email below confirming Equinix existing order numbers associated with the City's agreement no. 4581. This email is my understanding of the current agreement and the two new Equinix Orders. ********** Currently we have an open ended agreement with Equinix, the City's agreement no. 4581. The Equinix order numbers associated with this agreement are as follows; GTC_154388 (Global Terms and Conditions) MCA_154388 (Master Country Agreement), this is identified as "Exhibit A" of the City's agreement no. 4581 154597 (Pricing Agreement), this is identified as "Exhibit B" of the City's agreement no. 4581 S-135767_154412 (LA4 Equinix IBX Order, dated September 26, 2013)) , this is identified as "Exhibit C" of the City's agreement no. 4581 S-135837_154415 (LA4 Equinix IBX Order dated September 26, 2013), this is identified as "Exhibit D" of the City's agreement no. 4581. It is important to note this agreement did not go to Council for approval in 2013. The associated Exhibits listed above do not appear to go over the City Manger's signing authority. Invoices from FY 18/19 total $38,743.52. PO number 25- 000743 and 25-007743 were issued for $49,000.00 and $36,400.00 for FY 18/19. Recently, IS went to the City Council (2019-09-03) to enter into a 5 (five) year lease agreement for a total of amount of $404,185.20 stating the average cost per year will total $79,637.00. Attached are Equinix Order number 1-190876199269. This order reflects a non-recurring charge of 6000.00 with a monthly recurring charge of $6,250.00 and a price increase of 3% per year. Lili checked the calculations and this agrees with the dollar amount approved by Council for a 5 (five) year term. IS has requested our office process this Order as an amendment to agreement no. 4581. In additional IS requested we process Equinix order no. 1-190926018976 as an additional amendment to agreement no. 4581. This order is a non-recurring charge of $9,880.00. This did not go to Council. In discussions with David King he is comfortable with this falling under the City Manager's $50,000. signing authority. ********** Below you will find an email Scott Kim sent to Equinix confirming that the existing billing and associated order numbers with the current billing will not overlap with the new Equinix Order numbers thus not exceeding Councils approval amount or the City Manager's signing authority per Fiscal Year. However, what is possible a concern is the new orders automatically renew for a 12 month term every year if a notice is not provided 90 days to terminate. We will need to reflect the 5 year term only (expiration date approximately October 30, 2024) and the approved dollar amount only in our contract log and Laserfiche of $404,185.20. Lili, based on the staff report the minutes for this reflect a new agreement no. 5768. You will need to canx this agreement number in the contract log and add comments to refer to amendment numbers 4581A and 4581B. We should change the name in Laserfiche from LA4 Equinix to just Equinix. Per Joe Lillio he will provide us a copy of the ICRMA certificate for our proof of insurance to Equinix. Please include this in the agreement folder and Laserfiche. Patricia, IS and the City Attorney's office are aware of the expired separate License Agreement No. 3787 with Equinix. IS was attempting to negotiate at the same time. To date that agreement has not been renewed. In speaking with David, at a minimum the City should maintain current proof of insurance from Equinix for that agreement, also periodically we should continue to follow-up with IS on the expired license agreement. Please include this email with the agreement in the contract log, Lasterfiche and paper file. Any questions or concerns let me know~ Thanks, Mona S -----Original Message ----- From: Kim, Scott Sent: Friday, October 11, 2019 2:11 PM To: Shilling, Mona Cc: Fennell, Darlene; Mallory, Charles Subject: FW: [EXTERNAL] FW: Equinix Contract Mona, Per our conversation this morning here is an email approval from Equinix. Scott Kim IS Manager City of EI Segundo 310.524.2375 -----Original Message ----- From: Mike Hilly <mhilly@equinix.com> Sent: Friday, October 11, 2019 12:51 PM To: Kim, Scott <skim@elsegundo.org> Subject: Re: [EXTERNAL] FW: Equinix Contract Greetings Scott, The below email is correct. Please let me know if you need anything else. Kind regards, Mike Nilly Account Executive EQUINIX PROFESSIONAL SERVICES, CLOUD ` One Lagoon Drive, Redwood City, CA 94065 E mhilly@equinix.com ( T +1 650 598 6027 1 M +1408 306 4011 On 10/11/19, 11:25 AM, "Kim, Scott" <skim@elsegundo.org> wrote: ME Can you please knowledge that Equinix approves the following. Contract 4581 (attached to this email) — EI Segundo will... • Only keeping the Global Terms and Conditions, and Master Country Agreement from contract 4581 • Remove exhibits B (154597), C (5135767-154412), and D (135837_154415) from contract 4581 • Amend Contract 4581 to add the new Sales Order and Parts orders attached to this email When the new sales orders 1-115450393385, 1-190876199269 go active, old sales order (154597, S135837_154415, 5135767_154412) will not be charged. • There will be no overlap of old sales orders (154597, 5135837_154415, 5135767_154412) and the new sales orders 1-115450393385, 1-190876199269 on contract 4581. > Thanks, > > Scott Kim > IS Manager > City of EI Segundo > 310.524.2375 > > <CONTRACT 4581 Vender Agreement.pdf> > <SalesOrder.pdf> > <Parts.pdf> EXHIBIT B (154597) Pricing Agreement Customer Name: CITY OF EL SEGUNDO Term: 36 Months IBX(s): LA4 Agreement No. 4581 M E 0 U I N I X This Pricing Agreement is between Equinix Operating Co, Inc. ('Equinix") and the customer listed above ("Customer"), and is dated as of the date this Pricing Agreement is signed by both parties (the "Effective Date"). Subject to the Master Service Agreement now In effect between the parties (or whatever the agreement between the parties that sets forth the terms and conditions pursuant to which Customer orders products and services from Equinix may be called), Equinix shall charge Customer the prices set forth in Schedule A attached hereto for the products and services set forth therein on all orders placed by Customer on or after the Effective Date until the end of the term designated above, unless otherwise agreed to by the parties in a writing executed after the Effective Dale. Thereafter, Customer shall be charged Equinix's then -current list prices for such products and services unless otherwise agreed to by the parties in writing. Notwithstanding anything to the contrary in this Pricing Agreement, Equinix will waive the MRC for the first three (3) cross- connects Services set forth in Schedule A. purchased within IBX LA4 only for the term of this PA. After the first three (3) cross connects are placed, Customer will be charged the then -current discounted rate as set forth below in Schedule A.. The prices In Schedule A shall only apply to products and services delivered at the IBX(s) designated above. By signing below and initialing each page of Schedule A, the parties agree to be bound by the terms set forth herein as of the Effective Date. For avoidance of doubt, this Pricing Agreement will only be effective after being signed by both Parties. Please allow approximately 10 business days for Equinix counter -signature. Customer to cornple e: -- Submitted by:r ure Printed Name: 4La �m ' Title: Date signed: Reminder: Please fax a signed copy of this Pricing Agreement to (650) 618-1857 or e-mail to incomingdocs@equinix.com. No digital signatures will be accepted. Equinix to complete: Robert Submitted by: Authorized Signature f- o nti Ce l l i Printed Name: !/' -� . 2013.10. !/ 1 01 Tltle: EQU_Pricing Agreement 100108 Equinix CONFIDENTIAL VI r1swo Robert Ponficeffi EQUINK Inifials: -l"' 2013.10.01 EqLAnIx CONFIDENTIAL Page 3 of 3 custa— fravatAb—: ....... ... 12:59:16 -04'00' CD CD (D M Z 0 J�. cn CO Customer Name: CITY OF EL SEGUNDO SRO: 11289968 OP E Q U I N I X PDX 1LOCATION(s) PRODUCTSEGMENT PRODUCT PART NRR I UNIT I MRRIUNFT lwEkt0"NFCT C�Mscoi�W:6� LAZ lsn1w) 3�S,00 LA4 04TERCONNFC1 Cim. - F61$A1 5W.66, $ Jis.u- LA4 A S-9114- 41$ - ---- - Cross c4m.60 - UYp �s 1,60,00 S 225.W' $ S S S .......... 7 Robert Ponficeffi EQUINK Inifials: -l"' 2013.10.01 EqLAnIx CONFIDENTIAL Page 3 of 3 custa— fravatAb—: ....... ... 12:59:16 -04'00' CD CD (D M Z 0 J�. cn CO Agreement No. 4581 00 EQ U I N 1 X EQU_Pricing Agreemenl_100108 Equinix CONFIDENTIAL LA4 EQUINIX IBX@ ORDER EXHIBIT C Price Quotation for Order Number Order Date Valid Until Currency Initial Term (in Months) Renewal Period (In Months) CITY OF EL SEGUNDD767 1544 9P�EPARED BY S•135767 EHLERS, MR. KRISTOFFER September 26, 2013 December 25, 2013 heht rs aquinix. rsm USD 36 Direct 12 Descri lion CA'10001 Shared Area JCAB10001 Cabinet -E -2.4 kVA •� GENERAL TERMS AND CONDITIONS Order Introduction Fax Unit Pricing USD 0.00 0.00 1.500.00 1.000.00 Agreement No. 4581 PREPARED FOR: Larry Klingaman a + 3105242300 Direct Fax Total Charges USD 0.000 00 1,500.00 .1,000.00 .............. j- 1,500.00 1,000.00 This Licensed Space and Service Order (the 'Order") Is between Equlnix Operating Co., Inc. or Equinix, Inc., if the Order is for Licensed Space or Services delivered In Equlnix's Newark or Secaucus IBX Centers (in any case, 'Equinix"), and the customer entity executing this document ("Customer J,who wishes to order the products andlor services set forth above (each product and service a "Servtcel. This Order shall be of no force or effect unless (a) it is executed by both Parties, and (b) the Parties have entered into a Master Country Agreement ('MCA") (defined below) (under which this Order is executed) that is currently in effect as of the Order Effective Date (defined below). This Order is governed by and incorporated by reference into the applicable MCA. Customer agrees that it shall be bound by the terms and conditions contained in the Equinix IBX Center Policies, which can be found at www,equinix,comlibxpolicies. If the entity set forth above ("Equinix Provider') is not currently a Party to the MCA, notwithstanding anything in the MCA to the contrary, the Parties agree that the execution of the Order will automatically (i.e., without further action by either Party) result in the Equinix Provider becoming, as of the Order Effective Date, a Party to the MCA (such that all references to Equinix under the MCA, including, without limitation, references to Bmilatlon of liability and Indemnificatlon, will be deemed to include the Equinix Provider, as well as any afflaates of Equina that were already Parties to the MCA). Order Term This Order shall commence on the Order Effective Date, The Initial Term will commence on the Billing Commencement Dale and will terminate at the end of the month in which the Initial Term expires. For example, if the Billing Commencement Dale is March 5, 2012, and the Initial Term is three (3) years then the Order will terminate on March 31, 2015. For additional Licensed Space and Services installed in the Cage, the term will be concurrent with the term of this Order, and such Services will be incorporated by reference Into and governed by the terms and conditions of this Order. After the Initial Term, the term will automatically renew for additional terms of twelve (12) months each, unless either Party provides written termination notification to the other Party at least ninety (90) days prior to the end of the then -current term, in which event this Order will terminate at the end of then - current term. Notwithstanding anything in this Order or the MCA to the contrary, if the MCA has a date-cerlain expiration date or if either Party notifies the other that it intends not to renew the MCA pursuant to the terms thereto, than this Order will remain in effect after the MCA expires and all of the terms and conditions of the MCA (including all limitation of liability and Indemnification provisions) will continue to apply to this Order and all Licensed Space and Services until this Order expires or terminates at the end of the then -current term. Prices and Bitting Customer's obligation to pay the MRC and NRC for each Service set forth herein shall begin on the Billing Commencement Date. All invoices will be paid In U.S. Dollars (or the local currency equivalent as indicated). Notwithstanding anything in this Order to the contrary, after the first twelve (12) months of the Initial Term and for every twelve (12) months thereafter, Equinix may change the Fees for all Licensed Space and Services at a rate not to exceed five percent (50/6) per year. However, if Equlnix's direct electrical supply costs Increase by more than five percent (59%) per year, Equinix may Increase Customer's Fees for electrical power by such Increased cost. Prices shown above do not include any Taxes, surcharges and shipping charges, which are the responsibility of the Customer. Unless otherwise specllled in the Agreement, If Customer wishes to dispute any charge billed to Customer by Equinlx ("Disputed Amount). Customer must submit a good faith claim regarding the Disputed Amount with documentation as may reasonably be required to support the claim within ninety (90) days of receipt of the initial invoice sent by Equinix regarding the Disputed Amount. If Customer does not submit a documented claim within ninety (90) days of receipt of the initial invoice sent by Equinix regarding such Disputed Amount, notwithstanding anything In this Order to the contrary, Customer do E Q U I N I X Page 1 of 3 LA4 EQUINIX IBX@ ORDER Price Quotation for Order Number Order Date Valid Until Currency Initial Term (In Months) Renewal Period (In Months) CITY OF EL SEGUNDO 8.135767 September 25, 2013 December 25, 2013 USD 36 12 PREPARED BY: EHLERS, MR. KRISTOFFER IS&iflkl@ Direct Fax Agreement No. 4581 PREPARED FOR: Larry IUingaman to +3105242300 Direct Fax waives all rights to dispute the Disputed Amount, and Customer waives all rights to file a claim thereafter of any kind relating to such Disputed Amount (and Customer also walves all rights to otherwise claim that it does not owe such Disputed Amount or to seek any set -offs or reimbursements or other amounts of any kind based upon or relating to such Disputed Amount). If the MCA tnctudes, a provision that specilicalty describes the processes relating to Customer"s ability to dispute billed charges, therm this paragraph will be of no force and eflecl. Power Llmitations Customer may not draw more than the kVA amount set out above (the "Power Cap"). If the power draw exceeds the Power Cap, Equinlx may provide written notification to Customer and/or require Customer to reduce the poo, -r draw to the Power Cap within 72 hours. If Customer does not resolve the situation with a mutually agreeable plan, Equinix may suspend Customer's power until the power draw is equal to or less than the Power Cap. Alternatively, the Parties may agree to amend the Order to increase the Power Cap. Definitions Billing Commencement Bate: For each Licensed Space and Service, the date the Licensed Space is actually provided or the date on which the Services are actually delivered to Customer. Cage. The cage In the IBX Center in which the Licensed Space is provided and the Services are delivered by Equinix. If the cage is a shared cage, "Cage" will refer to the cabinets In the shared cage that are licensed by Customer. IBX Center: The IMemational Business Exchange Center (formerly Internet Business Exchange Center) Identified at the top of this Order. Initial Term (In Months): Thirty -Six (36) Months, MCA:The Master Country Agreement (or the document with a similar function If no document entitled Master Country Agreement has been signed by the Parties, e.g. "MSA') between Customer and Equinlx, or one N its subsidiaries if Equinix is not a signatory, that remains in elfect during the term of the Order. MRC: Monthly -recurring charges. NRC: Non-recurring charges. Order Effective Date: The date this Order is signed by both Parties. Where this Order is signed on different dates by Equinlx and the Customer, the latter date of signature shall be the Order Effective Date. Sending Instructions 1) Fax a signed copy of this Order to (650) 618-1857, or 2) Email to incomingdoco@equlnlx.com. (!f the Elle size /s larger than 10mb, please separate Into mulffple documents or zip riles). Conclusion While E'qulnIx Is under no obl'lgallon to execute this Order, Customer acknowledges that Equinix may refuse to execute this Order If Customer delivers It to Equinlx after the "Valid Until" date set forth above. Digital signatures are not acceptable. Please sign and return all referenced exhibits, addenda and/or policy documents with this Order. Failure to do so may result In a delay In processing. Footer Standard Order_110712 as EQUINIX Page 2 of 3 LA4 EQUINIX 1BX8 ORDER Price Ouatation for Order Number Order Date Valid Unlil Currency Initial Term (in Months) Renewal Period On Months) CITY OF EL SEGUNDO S-136767 September 28, 2013 December 25, 2013 LISO 36 12 PREPARED BY: EHLERS. MR. KRISTOFFER k2hICE692guinly,orn Direct Fax Agreement No. 4581 ........... . CITY OF EL SEG 0 EQUINIX Signature: lifinoi Contact Name: IJJI�) Signature: Name:6 Name: , _.BillingAddrese: Title: dv-,T, Phone Number: ntle: Vote; E-mail Address: Date, PREPARED FOR: Larry Klingarnan LKLIbIQAhdAN(aEL&EQUNQQM ja +3105242300 Direct Fax Robert 3-0 15:4-0:16- -04'00' 0 E 0 U INIX Page 3 of 3 LA4 EQUINIX IBX® CUSTOM ORDER Price Quotation for Order Number Order Date Valid Until Currency Initial Term (In Months) Renewal Period (In Months) ISC10001 I IBC-Innerduct Space CITY OF EL SEGUNDO S-135837 September 26, 2013 December 26, 2013 USD 36 12 GENERAL TERMS AND CONDITIONS Scope of Work EXHIBIT D (S-1 RU�E;1Y415) EHLERS, MR. KRISTOFFER Unit Pricing Direct Fax Agreement No. 4581 PREPARED FOR: Larry Mingaman Sa + 3105242300 Direct Fax Total Charges 0.00 0.00 This Custom Order ("Order") will have an Initial Term, as defined below, which commences on the date this Order is fully executed, After the Initial Term. the term will automatically renew for additional terms of one (1) year each, unless either Party provides written termination notification to the other Party at least ninety (90) days prior to the end of the Then -current term, in which event this Order will terminate at the end of then -current term. Equinix hereby grants to Customer a license to use one Innerduct ("Inoertfuct") from the end point assigned by Equinix, in its discretion, to the Customer's Cage and Cabinet in the IBX Center for the purpose of connecting Customer's Equipment to Customer's telecommunications network In addition, Equinix hereby grants to Customer a license to use the cable management infrastructure (e.g., ladder rack, cable tray, etc.) ('Cable Management Infrastructure") in the IBX Center from the conduit point -of -entry as assigned by Equinix, in its discretion, to the Customer's Cabinet and Cage in the IBX Center for the purpose of connecting Customer's Equipment to Customer's telecommunications network. The licenses granted herein are not transferable or assignable. Notwithstanding anything to the contrary in the Agreement, Customer's licenses set forth in this Order shall be solely limited to Customer's internal purposes and shall not be used In any way to resell Equinix's Services to any third party or to make Equinix's Services available to any third party that does not maintain a physical presence in the IBX Center in which the Cable (defined below) terminates. For the avoidance of doubt, but without limitation, the Innerduct shall not be used to allow any third party to connect to the Equinix Exchange, Cross -Connect any third party to any customer within an IBX Center, or to otherwise make Equinix's Services available to any party that has not licensed space within the IBX Center set forth above. This section shall not prohibit a customer that has located its equipment within an IBX Center under an agreement with Equinix from taking advantage of the Services available to it for its internal purposes with respect to its own Licensed Space within the IBX Center, If Equinix believes that Customer has violated this provision, it shall be grounds for immediate termination of the Licensed Space and Services upon written notice to Customer. Customer shall be responsible for pulling telecommunication cable ("Cable") through the Innerduct, through the Cable Management Infrastructure, as required, and terminating such Cable in a customer -provided demarcation panel located in Customers Cage in the IBX Center at the sole cost of Customer. Customer shall use Equinix-approved labor for the Cable pull, and such Cable pull shall be conducted pursuant to all then -current IBX Center Policies. Customer shall be solely responsible for maintaining, servicing and repairing the Cable, and Equinix shall have no responsibility wllh respect to the Cable whatsoever. Customer shall not access or perform maintenance on the Cable in the 1BX Center without the supervision of Equinix. Notwithstanding anything to the contrary, Customer agrees to indemnify, defend and hold harmless Equinix and its afliales, successors, assigns, directors, officers, agents and employees ("Indemnified Parties") from and against any and all costs, injury, damage, loss or causes of action of every nature whatsoever, including injury to person, loss of life or damage to property, in any manner, directly or indirectly, arising out of Customer's breach of this Order, Customer's use of the Innerduct and/or the Cable Management Infrastructure, Customer's pull of the Cable and/or Customers access to, maintenance, servicing and/or repair of such Cable, including, without limitation, damage to any Indemnified Party or third party equipment, property or cable, or to any connections made to third parties not located in the IBX Center. All access (by Customer or anyone acting on Customer's behalf) to the Innerduct and all work requiring supervision by Equinix shall be subject to Customer opening a SmarlHands request at the standard rate for such Services, unless otherwise agreed 10 by the Parties in writing. Equinix shall not be responsible for troubleshooting Customer's Equipment in the IBX Center except as otherwise provided In the previously signed Master Country Agreement between the Parties ("MCA") (or the document with a similar function if no document entitled Master Country Agreement has been signed by the Parties, e.g. "MSA"). In the event there Is a conflict between the terms of this Order and the terms of the MCA, the terms of this Order shall control. Notwithstanding anything to the contrary in the MCA or this Order, If the MCA terminates, then this Order will automatically terminate as well. The prices stated herein will automatically increase at a rale of five percent (5%) per year, All Capitalized terms that are not defined herein shall have the meaning assigned to them in the MCA. To accept this Order, Customer shall return a signed copy hereof to Equinix no later than thirty (30) days after the dale shown above. If not accepted by Customer, this Order shall expire thirty (30) days after the date shown above. Effective upon Equinix's receipt of a fully executed original of this Order from Customer, Equinix and Customer agree to the terms and Conditions set forth in this Order ("Order Effective pate")_ Customer will use this Innerduct only for the following purpose:Connection Into Data center to provide Enhanced Internet Access and Enhanced Business Continully.(e.g. peering, network peering, network aggregation, enable connectivity for collocation business, etc.) 00 EQUINIX Pagel of 2 LA4 EQUINIX IBX@ CUSTOM ORDER Price Quotation for Order Number Order Date Valid Until Currency Initial Term (In Months) Renewal Period (In Months) Definitions CITY OF EL SEGUNDO S-136837 September 26, 2013 December 26, 2013 USD 36 12 Initial Term (In Months): Thirty -Six (36) Months. Maximum Number of Fiber Strands Installed: 144 Sending Instructions Agreement No. 4581 PREPARED BY: PREPARED FOR: EHLERS. MR. KRISTOFFER Larry Klingaman i Q Direct +3105242300 Direct Fax Fax Sending Instructions 1) Fax a signed copy of this Service Order to the fax number on the first page of this Service Order, 2) Email to incoml ngdocs@equinix.com (if file size Is larger than 10mb, please separate multiple documents or zip file), or 3) II a lully executed original is requested, mail two (2) sets of originals to the Equinix address on the first page of this Service Order, Digital signatures are not acceptable. Please sign and return all referenced exhibits, addenda and/or policy documents with this order. Failure to do so may result in a delay in processing. Conclusion Please sign and return all referenced exhibits, addenda and/or policy documents with this order. Failure to do so may result in a delay in processing. Footer Innerduct (IBID)_110712 CITY OF EL Tr�"..p EQUINIX r = Slgnature:tilling Contact Name: a �'j � signature: " Name: " � Billing Address: .�. ��Name: Title: �� Phone Number: .• « - 2_._ TlHe: Date: - ' r P E-mail Addrcas: Date: 20-1-3,09-30- 15:40:51 01-,0 -315:40:51 -04'00' as EQUINIX Page 2 of 2