Salesforce.com 2005 Annual Report Download - page 197

substantially all of an Equinix Entity's business or assets, including through a merger, and in the event of any such assignment, transfer or delegation, and the
assumption by the transferee of the obligations of such Equinix Entity hereunder, such Equinix Entity will be released from any further liability or obligation
under this Agreement arising from and after the date of such assignment, transfer or delegation. Accordingly, the Equinix Entities may assign, delegate or
transfer their rights and obligations under this Agreement to an Equinix Affiliate, or to a party acquiring all or substantially all of the Equinix Entities'
business or assets, including through merger and in the event of any such assignment, transfer or delegation, and the assumption by the transferee of the
obligations of the Equinix Entities hereunder, the Equinix Entities will be released from any further liability or obligation under this Agreement from and after
the date of such assignment, transfer or delegation. In the event that Equinix intends to so assign, delegate or transfer its rights and/or obligations in this
Agreement, Equinix shall provide Customer with written notice of such intent, and unless Customer provides Equinix with written notice of its desire to
terminate this Agreement no later than ten (10) days of Equinix's notice, Customer will be deemed to have agreed to such intended assignment, delegation or
transfer once it is effected.
Customer may assign this Agreement without the Equinix Entities' consent only where the party to whom this Agreement is assigned by Customer is
either an Affiliate of Customer, or is acquiring all or substantially all of Customer's business or assets, including through merger. This Agreement will be
binding upon and inure to the benefit of all successors and permitted assigns of the Equinix Entities and Customer, who will be bound by all of the obligations
of their predecessors or assignors. Except as set forth in Exhibit B of this Agreement with respect to sublicensing only, and this Section 9(m) with respect to
an assignment of the entire Agreement under the conditions specified above only, Customer will not assign, delegate, transfer or sublicense all or any part of
the Licensed Space.
n. Except for Customer's obligation to pay for Services rendered, neither Party will be responsible or in any way liable, and neither Party will have any
termination or other rights, arising out of or relating to any failure by the other Party to perform or any hindrance in the performance of its obligations under
this Agreement if such failure or hindrance is caused by events or circumstances beyond such Party's control, including acts of God, war, third-party labor
strike, terrorist act, fire, flood, earthquake, any law, order, regulation or other action of any governing authority or agency thereof, or failure of the Internet,
(each a "Force Majeure Event"); provided, however, that the Parties agree that performance by Equinix of the Services shall not be excused by reasons of
interruptions of utility services or failure of power to be delivered to the IBX Center(s) by any third party (including any local utility provider).
o. All Orders are at all times subject to all of the terms and conditions of this Agreement. In the event of a conflict between the body of this Agreement
and an Order, the body of this Agreement will control, unless the body of this Agreement or the Order states that the conflicting term in the Order controls.
p. Unless otherwise expressly agreed to by the parties in writing, Equinix and the applicable Equinix Entities will retain title to all parts and materials
used or provided by Equinix or any of the Equinix Entities or third parties acting on Equinix's behalf in the performance and/or furnishing of the Services.
q. The Parties agree that, with the exception of the applicable landlords of any of the Equinix Entities, there will be no third party beneficiaries to this
Agreement, including, but not limited to, any Sublicensee, end user, customer or the insurance providers for either Party.
r. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
s. The Equinix Entities represent that (i) they have the legal right to enter into this Agreement and perform its obligations hereunder; (ii) the
performance of their obligations and delivery by Equinix of the Services to Customer do not violate any applicable laws or regulations; (iii) all requisite action
has been taken by the Equinix Entities and all requisite consents required of the Equinix Entities have been obtained in connection with this Agreement, the
instruments, and documents referenced herein, and the consummation of the transaction contemplated hereby, and no consent of any other party is required;
(iv) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a material breach of or constitute a
material default under any agreement, document, instrument, or other obligation to which the Equinix Entities are a party or by which the Equinix Entities
may be bound, or under any law, statute, ordinance, rule, governmental regulation, writ, injunction, order, or decree of any court or governmental body, as
applicable to the Equinix Entities; (v) there has not been filed by or against any of the Equinix Entities or any Affiliate thereof a petition in bankruptcy,
voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the
United States or any state thereof, or any other action brought pursuant to such bankruptcy laws with respect to Equinix; and (vi) the Equinix Entities are not
in default under any lease affecting any IBX Center in which any Licensed Space is located, nor has any event occurred which, with the giving of notice or the
passage of time or both, would constitute a default by Equinix or the Equinix Entities. Notwithstanding Section 6(c), in the event of a breach of the warranties
set forth in this Section 9(s), Customer shall have all rights and remedies available at law and equity.
t. Upon written request by Customer, Equinix shall negotiate in good faith with one or more reputable telecommunications utility provider(s) or internet
service provider designated by Customer (any such utility or internet service provider, an "Approved Fiber Provider") to license access to, space in and use
of points of entry, risers, conduits and other facilities in an IBX Center so that such Approved Fiber Provider may provide its services to Customer to the
extent that Equinix is permitted to grant such access, space and right of use; provided that Equinix does not reasonably conclude that granting such access
space or right of use is against Equinix's business interests. Equinix agrees that it will provide such access, space and facilities on commercially reasonable
terms as compared with terms Equinix makes available to other similar providers buying similar services at the Equinix Entities' U.S. IBX Centers.
10. Definitions.
Accompanying Person: Each person (other than an employee of an Equinix Entity) who is accompanied by an Authorized Person while at an IBX Center.
Affiliate: As to a party, means 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. Without limiting the foregoing, but in addition thereto, any Affiliate
of, or subsidiary of, Equinix, Inc. shall be deemed to be an Affiliate of Equinix.
Associated Entity: Each individual, company, partnership or other entity of any type which employs, contracts with, or is otherwise associated or affiliated
with any of Customer's Authorized Persons or Accompanying Persons. Without limiting the foregoing definition, each Sublicensee that has sublicensed
Sublicensed Space at an IBX Center will be an Associated Entity at such IBX Center.