Production Environment License Agreement
This Equinix Production Environment License Agreement (“Agreement”) permits the licensee (“Licensee”) to use the software, application programming interfaces, software development kits, tools, libraries, and connectors (including any updates) (“APIs”), and specifications, manuals and other documentation (“Documentation”) and any other materials made available to Licensee by Equinix, Inc. (“Equinix”) in the production environment (“Portal”, collectively, with the APIs and the Documentation, the “Licensed Materials”) other than software and other materials made available in the environment that are expressly provided subject to terms indicated specifically for such materials (e.g. certain Software Development Kits (SDKs) are expressly made available pursuant to Apache-2.0).
BY CLICKING ON THE BOX PRESENTED WITH THIS AGREEMENT OR DOWNLOADING, INSTALLING OR USING THE LICENSED MATERIALS, LICENSEE AGREES THAT THIS AGREEMENT CONSTITUTES A BINDING AND ENFORCEABLE OBLIGATION BETWEEN EQUINIX AND LICENSEE. IF LICENSEE DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT CLICK ON THE BOX PRESENTED WITH THE AGREEMENT OR DOWNLOAD, INSTALL OR USE THE LICENSED MATERIALS. THE LICENSE GRANTED HEREIN IS EXPRESSLY CONDITIONED ON LICENSEE’S ACCEPTANCE OF THESE TERMS. ANY OTHER USE OF THE LICENSED MATERIALS IS NOT LICENSED AND CONSTITUTES INFRINGEMENT OF EQUINIX INTELLECTUAL PROPERTY.
- Trial License. Unless Licensee has executed a Master Services Agreement with Equinix, then, subject to the terms and conditions of this Agreement, Equinix hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free, revocable right and license to download, install and use the Licensed Materials for evaluation purposes only (the “Trial License”). Licensee is prohibited from embedding or incorporating the Licensed Materials into a Developer App other than for internal testing purposes or using them for any commercial or productive purpose unless Licensee enters into a Master Services Agreement with Equinix. Licensee is not entitled to receive any updates to the Licensed Materials under a Trial License. If Licensee does not execute a Master Services Agreement with Equinix within  days of acceptance of this Agreement, the license granted herein expires and Licensee shall cease all use of the Licensed Materials.
- Production License. Upon Licensee’s execution of a Master Services Agreement with Equinix, then subject to the terms and conditions of this Agreement and during its Term, Equinix hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free, revocable right and license to download, install, sublicense (as set forth in Section 2.1) and use the Licensed Materials in accordance with the Documentation (“Production License”). The Production License is expressly conditioned on Licensee’s adherence to the limitations and restrictions set forth in Sections 2.1, 3, 6, 7 and 8.
- License for Redistribution.
- In no event is Licensee allowed to distribute or make available the API’s (a) in any format other than in object form, (b) as a standalone product, or (c) as a part of any product other than Licensee’s Developer App. “Developer App” as used herein, means Licensee’s software applications which: (x) embed or incorporate the API’s, (y) are developed by Licensee’s employees or third party contractors authorized by Licensee to access the Portal and add substantial functionality beyond the functionality provided by the incorporated components of the API’s; and (z) are not commercial alternatives for, or competitive in the marketplace with, the API’s or any other Equinix product.
- The redistribution license granted in this Section 2.1 is conditioned upon Licensees enforcement of the end user license requirements set forth in Section 2.1(a)(iii).
- License for Redistribution.
- License Limitations. Licensee shall not and shall not permit or allow its employees, authorized contractors, agents or representatives to (a) modify, adapt, decompile, disassemble, derive source code from, interfere with, reverse engineer or disable any features or functionalities of any Licensed Materials; (b) create derivative works based on any Licensed Materials; (c) translate or make copies of any Licensed Materials; and (d) transfer or distribute any Licensed Materials or any component of the foregoing to any third party, including any governmental authority, other than as set forth in Section 2 above.
- Term and Termination. This Agreement will continue in effect from the date Licensee has clicked on the box until terminated by a party in accordance with this Section (“Term”). The Trial License may be terminated by either party at any time for convenience. Either party may, by written notice to the other party, immediately terminate this Agreement and the Production License granted hereunder upon (a) the other party’s breach of any of the material terms of this Agreement and the breaching party’s failure to cure such material breach within thirty (30) days of its receipt of notice or (b) termination of the Master Services Agreement and General Terms and Conditions entered into by the parties. Equinix may temporarily suspend or terminate all or any part of the rights granted under this Agreement immediately and without notice if Equinix, in its sole discretion, believes that Licensee has violated or attempted to violate any term, condition or the spirit of this Agreement, engages in illegal or malicious activities, interferes with any other user (i.e., hacking or intrusion), or for any other reason.
- Effect of Termination. Upon termination of this Agreement, all rights and licenses granted herein shall cease, and Licensee shall cease all use or access to the Licensed Materials and shall return to Equinix or destroy all items provided by Equinix hereunder; provided that, any sublicenses granted to End Users in accordance with Section 2.1 of this Agreement shall survive such termination. Licensee is solely responsible for backing up all source code, software, information or other materials uploaded to the Portal. Equinix has no liability for the deletion of such materials after the termination of this Agreement. Notwithstanding any termination of this Agreement, the provisions of Sections 5, 6, 7, 8, 9 and 11 through 25, shall survive the end of the Term.
- Attribution. Licensee shall include and/or not remove all copyright, trademark, service marks and other proprietary rights, notices, or attributions, without modifications of any type, included by Equinix in the Licensed Materials.
- Reservation of Rights. Licensee acknowledges that Equinix retains all intellectual property rights in and to the Licensed Materials, and except as expressly granted, no other licenses or other intellectual property rights whatsoever have been granted, by implication, estoppel or otherwise, by the provisions of this Agreement. Any and all rights in and to the Licensed Materials not expressly granted to Licensee, are reserved and retained by Equinix.
- Confidential Information. “Confidential Information” means the terms of this Agreement and any non-public, confidential or proprietary information relating to Equinix or the Licensed Materials that may be accessed in or downloaded from the Portal, whether or not technical in nature. Confidential Information includes but is not limited to the API’s, any Documentation, pricing or other information that is designated by Equinix as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation or orally or that, by the nature of the circumstances, ought in good faith to be treated as proprietary and confidential. Notwithstanding the foregoing, “Confidential Information” does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of Licensee; (ii) is rightfully obtained by Licensee from a third party without restriction as to disclosure; (iii) is lawfully in the possession of Licensee at the time of disclosure by Equinix and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of Equinix; or (v) is developed independently and separately by either party without use of Equinix’s Confidential Information.
Licensee shall retain any Confidential Information of Equinix received in connection with this Agreement in the strictest confidence (on a need-to-know basis) and shall not disclose Confidential Information to any third party without Equinix’s express written consent, unless as required on a need-to-know basis to an employee, agent, affiliate or professional advisor of the applicable party and expressly undertakes to make no use of such information except under the terms of this Agreement and during the Term. Notwithstanding anything to the contrary herein, the obligation to maintain the confidentiality of Confidential Information shall not apply to the extent Licensee is required to disclose Confidential Information pursuant to law or a legally enforceable order of, or a request for information from, a court or judicial body or any transnational, domestic or foreign federal, state or local, governmental authority, department, court, agency or official, including any political subdivision thereof; provided Licensee provides notice to Equinix to enable it to seek a protective order or injunction.
- Licensee Feedback. If Licensee provides Equinix with comments, suggestions or other feedback regarding the Licensed Materials or any other Equinix products or services (collectively, “Licensee Feedback”), Licensee will be deemed to have granted Equinix for the Term and thereafter a non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, worldwide license under Licensee’s intellectual property rights to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit without restriction of any kind all such Licensee Feedback as Equinix sees fit.
- Support. During the Term of the Production License, Equinix may provide Licensee support from the Equinix API Support team, including updates to the Licensed Materials (and to any other materials made available in the environment that are expressly provided subject to terms indicated specifically for such materials) that may be created and released at the sole discretion of Equinix during the Term. The Trial License does not include any dedicated support, however, Trial License users are entitled to use any of the documentation, forums or other support-related items made publicly available by Equinix on its website.
- Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing under its jurisdiction of organization; (b) it has the right to enter into this Agreement; (c) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party; and (d) the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action on the part of such party constituting a valid and binding agreement of such party.
- Licensed Materials in Beta. Equinix may provide Licensed Materials in Beta form within the Portal from time to time (“Beta APIs”). These Beta APIs may not be used for any commercial purpose by Licensee and are licensed by Equinix to Licensee for internal testing by Licensee only. Beta APIs are in testing and may not operate as expected and Equinix disclaims all liability whatsoever with respect to any damaged caused by Licensee’s use of any Beta API. All other limitations in this Agreement including but not limited to Sections 7, 8, 9, 11, 13 and 14 apply to the Beta APIs. Equinix makes no guarantee about the time that the Beta APIs will be available nor that the Beta APIs will become permanent APIs in the future.
- No Other Warranties; Disclaimer of Warranties. The representations and warranties provided in Section 11 are the only warranties provided by Equinix in relation to the Licensed Materials. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE LICENSED MATERIALS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND EQUINIX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSEE ACKNOWLEDGES THAT EQUINIX DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE AND/OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, IF ANY, AND NO INFORMATION OR ADVICE OBTAINED BY LICENSEE FROM EQUINIX OR THROUGH EQUINIX’S SUPPORT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
- Limitation of Liability. EQUINIX SHALL NOT BE LIABLE FOR ANY DAMAGES RELATED TO OR RESULTING OR ARISING FROM THE LICENSEE’S USE OF THE LICENSED MATERIALS EXCEEDING THE LESSER OF: (I) THE FEES PAID TO EQUINIX IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM ATTRIBUTABLE TO THE LICENSED MATERIALS GIVING RIGHT TO SUCH CLAIM AND (II) $100,000. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER EQUINIX NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, FOR ANY (I) LOSS OF PROFITS, BUSINESS, DATA OR ANY INTERRUPTION OF ANY BUSINESS OR (II) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SIMILAR DAMAGES OF ANY KIND EVEN IF SUCH PARTY HAS BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH IN THIS AGREEMENT.
IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE TO THE OTHER FOR ANY DELAY BY REASON OF A FORCE MAJEURE EVENT.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, EQUINIX’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 14 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- Indemnification. Licensee agrees to indemnify, hold harmless, and defend Equinix from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from (i) Licensee’s use of the Licensed Materials in violation of this Agreement or (ii) the use or distribution of Licensee’s Developer Apps.
- Force Majeure. Neither party will be liable for, or be considered in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of strike, fire, explosion, flood, storm, material shortages, riot, insurrection, declared acts of terrorism, governmental acts, labor conditions, acts of God, war, earthquake, or any other cause which is beyond the reasonable control of such party (each a “Force Majeure Event”); provided that the nonperforming party gives reasonably prompt notice under the circumstances of such condition(s) to the other party, including if such event is foreseeable.
- Bankruptcy. All licenses granted under the Agreement will be deemed licenses of rights to intellectual property for purposes of Section 365(n) of the U.S. Bankruptcy Code, and a licensee under the Agreement will retain and may fully exercise all of its rights and elections under the U.S. Bankruptcy Code.
- Remedies. The parties acknowledge that money damages are not an adequate remedy for any violation of this Agreement and that either party may, in its sole discretion, apply for specific performance, or injunctive or such other relief as a court may deem just and proper, in order to enforce this Agreement or prevent any violation hereof. To the extent permitted by applicable law, each party waives the posting of bond and any objection to the imposition of such relief.
- Amendments and Waivers. Equinix may amend this Agreement or any provision of this Agreement from time to time without prior notice. The current version of this Agreement will be available in the Portal or on the landing page prior to Licensee’s entry into Portal. No failure or delay by any party to exercise, nor any single or partial exercise of, any right, power or privilege hereunder shall operate as a waiver or preclude any other or further exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
- Expenses. Except as expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in connection with the preparation, negotiation, and execution of this Agreement and the performance of its obligations under this Agreement.
- No Beneficiaries. This Agreement is for the sole benefit of the parties hereto and, except as otherwise contemplated herein, nothing herein, expressed or implied, shall give or be construed to give any third party, other than the parties hereto, any legal or equitable rights hereunder.
- Assignment. This Agreement and any rights under this Agreement may not be assigned, sublicensed, whether or not by operation of law, or otherwise transferred by Licensee without the prior written consent of Equinix.
- Entire Agreement. This Agreement, including any attachments and exhibits hereto, or any other instruments, agreements or documents referenced herein, constitutes the entire agreement among the parties with respect to the subject matter hereof and supersede all other prior agreements or undertakings with respect thereto, both written and oral. To the extent the terms of this Agreement conflict with the terms of any Master Services Agreement, the terms of this Agreement shall govern solely with respect to the Licensed Materials
- Construction. Headings are for ease of reference only and shall not form a part of this Agreement. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.
- Severability. If any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
- Conformance with Law. Licensee hereby represents, warrants, and covenants that Licensee and its subsidiaries, owners, partners, officers, directors, employees, agents, representatives, and subcontractors are fully aware of the provisions of the United States Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. §§78dd-1, et seq., as amended regarding, among other things, payments to government officials. In their services under this Agreement, Licensee and its subsidiaries, owners, partners, officers, directors, employees, agents, representatives, and subcontractors shall not pay, offer or promise to pay, or authorize any payment or offer of money or anything of value, directly or indirectly to any foreign government official or employee (including employees or agents of a business which is owned in whole or in part or controlled by a government, and any person acting in an official capacity on behalf of a government entity), any political party or party official, or any candidate for foreign political office or to any other person or entity if doing so would violate the laws of the country in which such payment or transfer was or would be made or the laws of the United States, including the FCPA. Licensee shall maintain accurate books and records and shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that such books and records are accurate. Licensee must immediately notify Equinix if it knows or has reason to believe that a violation of the FCPA or any of the representations, warranties, or covenants in this Section 25 has occurred or will occur. In the event that Equinix has reason to believe that a breach of the representations, warranties or covenants in this Section 26 has occurred or will occur, which belief has not been dispelled following commercially reasonable investigation thereof, Equinix at its election may, notwithstanding any other provision in this Agreement, at any time withhold performance under this Agreement, cancel or terminate this Agreement by written notice of cancellation or termination to Licensee (without further performance under this Agreement by Equinix). Licensee shall further indemnify and hold Equinix and its shareholders, directors, officers, employees, agents and subcontractors harmless against any and all claims, losses, or damages arising from or related to such breach or Equinix’s termination or cancellation of the Agreement, or both. Licensee certifies that it is not, and at all times during the Term of this Agreement will not be, the target of sanctions maintained by the United States Treasury Department’s Office of Foreign Assets Control, and that none of Licensee’s products or services related to this Agreement have been or are the subject of such sanctions. Equinix expects all business related to this Agreement to be conducted in an ethical and lawful manner.
- Choice of Law. This Agreement is governed by California law without regard to conflict of laws principles. Licensee hereby expressly agrees to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to this Agreement.