Salesforce.com 2005 Annual Report Download - page 191

CONFIDENTIAL TREATMENT REQUESTED
*** Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
c. Through counsel of its own choosing, the indemnified party has the right to participate in (but not control the defense of) any proceeding in which it
is being indemnified under this Agreement, but in such event the indemnified party will be solely responsible for paying the legal fees and expenses for its
own counsel. The indemnifying party will, however, continue to be solely responsible for all other expenses relating to the action, including the legal fees and
expenses of the counsel it selects to defend the claims.
6. Warranty Disclaimer, Limitation of Liability, Credits.
a. NONE OF THE EQUINIX ENTITIES WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-
FREE, OR COMPLETELY SECURE. THE EQUINIX ENTITIES DO NOT MAKE, AND THE EQUINIX ENTITIES HEREBY DISCLAIM, ANY AND
ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE EQUINIX ENTITIES DO NOT
MAKE, AND HEREBY DISCLAIM, ALL EXPRESS WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, ALL SERVICES
PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN "AS IS", "AS AVAILABLE" BASIS, AND
CUSTOMER'S USE OF THE SERVICES IS SOLELY AT ITS OWN RISK.
b. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL ANY OF THE EQUINIX ENTITIES
OR CUSTOMER BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE,
EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF BUSINESS, LOSS OF REVENUES, LOSS OF DATA,
INTERRUPTION OR CORRUPTION OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF
DAMAGES OTHER THAN DIRECT DAMAGES.
c. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE EQUINIX ENTITIES' TOTAL LIABILITY TO
CUSTOMER IN THE AGGREGATE FOR THE ENTIRE TERM (AND 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 ATTORNEYS' FEES), EXCEPT FOR CLAIMS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
EQUINIX ENTITIES, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE [***] PERIOD IMMEDIATELY
PRECEDING THE MONTH IN WHICH THE FIRST CLAIM AROSE OR IF DURING THE FIRST [***] MONTHS OF THE TERM THE AMOUNT
CUSTOMER WILL BE OBLIGATED TO PAY DURING THE FIRST [***] MONTHS OF THE TERM. AS A FURTHER LIMITATION, EXCEPT FOR
CLAIMS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE EQUINIX ENTITIES, THE EQUINX ENTITIES'
MAXIMUM LIABILITY FOR ANY CLAIMS RELATING TO SERVICES OFFERED OR PROVIDED BY EQUINIX (I) FOR A NON-RECURRING
CHARGE ONLY, OR (II) AS SMART HANDS SERVICES, SHALL NOT EXCEED [***] PROVIDED ON THE OCCASION GIVING RISE TO THE
CLAIM.
d. THE LIMITATIONS SET FORTH IN SECTIONS 6(b)-(c) WILL APPLY TO ANY AND ALL CLAIMS AND CAUSES OF ACTION
WHATSOEVER, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY.
e. [Intentionally Deleted.]
f. Nothing in this Agreement will be construed as limiting the liability of either party for personal injury or death or damage to personal property
resulting from gross negligence of a party.
g. Customer shall have no obligation to pay any Service Fees for the Licensed Space or any portion thereof on any calendar day during which the
Licensed Space is not reasonably usable by Customer for any portion thereof; provided that Customer shall continue to be obligated to pay Service Fees for
the Licensed Space if such inability to use the Licensed Space is a result of (i) the actions or omissions of Customer, Customer's Authorized Persons,
Accompanying Persons or Associated Entities; (ii) failure of Customer's Equipment, or the equipment of any of Customer's Authorized Persons,
Accompanying Persons, or Associated Entities; or (iii) a Force Majeure Event. if the Licensed Space is not usable for a period of forty-eight (48) hours
consecutively or for more than forty eight (48) hours in any calendar month or for one (1) consecutive week if the Licensed Space is unusable due to a Force
Majeure Event as defined in Section 9(n) of this Agreement, then Customer shall have the right to terminate this Agreement by written notice given not later
than thirty (30) days after the occurrence giving Customer such right, such termination to be effective on a date specified by Customer in such notice not later
than thirty (30) days after such notice is given, subject in each case to Customer's rights with respect to the Transition Period. Except for the specific remedy
set forth above in this Section 6(g), Customer agrees that the Service Level Agreement attached as Exhibit C shall be Customer's sole and exclusive remedy
for interruptions, suspensions, failures, defects, impairments or inadequacies in any of the Services.
7. Insurance.
a. Customer agrees to maintain, at its expense, for each IBX Center during the entire time this Agreement is in effect, (i) Commercial General Liability
Insurance in an amount not less than One Million U.S. Dollars ($1,000,000), or the local currency equivalent, per occurrence for bodily injury, death and
property damage, which policy will include contractual liability coverage related to this Agreement; (ii) Workers' Compensation and employer's liability
insurance in an amount not less than that prescribed by law; and (iii) umbrella or excess liability insurance with a combined single limit of no less than Two
Million U.S. Dollars ($2,000,000) or the local currency equivalent. Upon Equinix's written request, Customer will furnish Equinix with certificates of
insurance that evidence the minimum levels of insurance set forth herein and which name as additional insureds the Equinix Entities and other parties with an
interest in the Licensed Space or the IBX Center, as designated by Equinix. None of the Equinix Entities have any obligation to insure any property belonging
to or in the possession of Customer.