Salesforce.com 2005 Annual Report Download - page 195

hand, or (iv) facsimile or electronic mail (promptly confirmed by certified or registered mail or overnight delivery), to the parties at the respective street
addresses, facsimile numbers, or electronic mail addresses set forth at the end of this Agreement or such other addresses or facsimile numbers as may be
designated in writing by the respective parties. Notices, consents and approvals will be deemed effective on the date of receipt. Notwithstanding anything to
the contrary in this Agreement, notices sent by Equinix pursuant to Sections 3(b), 3(c) and 4(c) may be sent by first class US mail, and receipt of such notices
shall be presumed (which presumption shall be rebutable to the extent not actually received) to occur five (5) days after mailing.
b. This Agreement will be governed in all respects by the internal laws of the State of California without regard to its conflict of laws provisions. The
Parties irrevocably agree to the exclusive jurisdiction of the courts of San Francisco, California. If any legal action is brought by either Party arising from, or
related to, the subject matter of this Agreement, the prevailing Party will be entitled to an award of its reasonable attorneys' fees and costs.
c. No Party's directors, officers or employees will have any liability to any other Party with respect to this Agreement. Except as may be specifically
otherwise consented to in writing by an Affiliate of a Party (and none of the other terms of this Agreement shall be deemed to constitute such consent), no
Party's Affiliates will have any liability to any other Party with respect to this Agreement, including with respect to any Orders.
d. Any Order may be amended by a change order that expressly provides it amends such Order, but only if such change order is either executed by
Equinix and Customer, or is prepared by Equinix and agreed to by Equinix and Customer, and Equinix's and Customer's agreement to such amendment to the
Order is reflected in the manner required by the change order. Any Order amended by a change order shall thereafter, as amended, continue to be governed by
the terms and conditions of this Agreement. This Agreement, the exhibits, the Policies then in effect, and all Orders executed at any time during the Term, all
of which are incorporated herein by reference into this Agreement, constitute the complete and entire agreement between the parties with respect to the
subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, proposals, understandings and agreements,
written and oral, regarding such subject matter, as well as any industry custom. This Agreement will be effective only when signed by each Party. This
Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same
instrument. Subject to the next sentence below, this Agreement may be amended only in writing by an instrument signed by each Party. For purposes of
clarification, the prior sentence is not intended to modify or limit Equinix's and Customer's rights to (i) agree to Online Orders or Phone Orders pursuant to the
terms of Section 9(f) below or (ii) enter into a Sales Order executed only by Customer and Equinix.
e. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any
other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party.
f. If Customer and Equinix execute multiple Orders, each additional Order will supplement rather than replace the prior Orders, unless otherwise stated
by the parties in writing. Notwithstanding anything in this Agreement to the contrary, (i) Equinix has no obligation to execute, or to amend, any Order with
Customer, (ii) no Sales Order will be effective unless executed by both parties, (iii) no Online Order or Phone Order will be effective unless made by
Customer and agreed to by Equinix, which agreement by Equinix will be reflected either by Equinix's written confirmation of such Online Order or Phone
Order or by Equinix's commencement of the provision of the Services ordered under the Online Order or Phone Order, and (iv) no amendment to an Order
will be effective unless the change order that is amending such Order is prepared by Equinix, and expressly provides that it amends such Order.
g. Each Party acknowledges and agrees that it has reviewed, and has had an opportunity to have reviewed, this Agreement (including the exhibits and
the Policies), and it is the parties' intent that this Agreement will not be construed against any Party. The section headings and captions throughout this
Agreement are for convenience and reference only, and will not be used to construe this Agreement.
h. If any provision of this Agreement, as applied to any Party or to any circumstance, is adjudged by a court to be invalid, illegal or unenforceable, the
same will not affect the validity, legality, or enforceability of the portion of the provision, if any, that is not invalid, illegal or unenforceable, the application of
such provision in any other circumstances, or the validity, legality, or enforceability of any other provision of this Agreement, provided that Customer
maintains the right to utilize the Licensed Space for its intended purposes. All terms and conditions of this Agreement will be deemed enforceable to the
fullest extent permissible under applicable law, and, when necessary, the court in any action between the Parties is requested to reform any and all terms or
conditions to give them as much effect as possible.
i. Sections 5, 6, 8, 9(b), (c), (e), (g), (i), (j), (n), Exhibit A, and Section (g) of Exhibit B will survive the termination of this Agreement (for a period of
three (3) years after the termination of this Agreement in the case of Exhibit A of this Agreement). In addition, all provisions of this Agreement that can only
be given proper effect if they survive the termination of this Agreement will survive the termination of this Agreement. This Agreement will be valid as to any
obligation incurred prior to termination of this Agreement. Without limiting the foregoing, Customer will pay all accrued amounts owed to the Equinix
Entities under this Agreement, including any amounts that are not due until after the expiration or earlier termination of this Agreement. Each Party
recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement
and that they have been taken into account and reflected in determining the consideration to be given by each Party under this Agreement and in the decision
by each Party to enter into this Agreement. The parties agree that the warranty disclaimers and liability and remedy limitations in this Agreement will survive
and apply even if found to have failed of their essential purpose.
j. Except where otherwise expressly stated herein, and subject to the limitations set forth in Section 6, the rights and remedies provided for herein are
cumulative and not exclusive of any rights or remedies that a Party would otherwise have.
k. The Equinix Entities on the one hand, and Customer on the other hand, are independent contractors and this Agreement will not establish any
relationship of partnership, joint venture, employment, franchise or agency between the Equinix Entities and Customer. Neither the Equinix Entities nor
Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. Neither Customer nor the
Equinix Entities grants the other the right to use its trademarks, service marks, trade names, logos, copyrights, or 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.
l. This Agreement, and the rights of Customer hereunder, are, without any further action by any Party, subject and subordinate to the leases for the IBX
Centers and all superior instruments to such leases (including, without limitation, mortgages or ground leases for the IBX Centers). This Agreement is a
services agreement and is not intended to and will not constitute a lease of any real or personal property. Customer acknowledges and agrees that (i) it has
been granted only a license ("License") to use the Licensed Space in accordance with this Agreement; (ii) Customer has not been granted any real property