exv10w38






Exhibit 10.38









MASTER SERVICE AGREEMENT

UNITED KINGDOM



This Master Service Agreement (the “MSA”) is entered into on 1st October, 2008 (the
“Effective Date”) by and between Equinix (UK) Limited (“Equinix”), a company registered in England
and Wales under registration number 3672650 and whose registered office is Quadrant House, Floor
6, 17 Thomas More Street, Thomas More Square, London E1W 1YW, United Kingdom and Zixcorp Global
Inc., a Delaware Corporation (“Customer”), a company registered in United States of America and
whose registered office is 2711 N. Haskell Avenue, Dallas, 75204.




Recitals:





	A.	 	Equinix is an operator of data centre facilities end provider of ancillary services.
Customer wishes to make use of the data centre facilities and receive the ancillary services,
and Equinix agrees to provide such to Customer, on the terms and conditions set out herein.





Agreement:



In consideration of the mutual covenants and terms and conditions set out below, Equinix and
Customer agree as follows:





	1.	 	The term “Agreement” as used in this MSA and in the General Terms and Conditions attached
hereto as Attachment A (“General T&Cs”) shall mean this MSA and all documents incorporated
into this MSA by reference, including the General T&Cs, and all documents referred to in
this MSA and in the General T&Cs as being incorporated by reference into this Agreement,
including the Policies. The specific Services to be provided are described in a Service
Order (“Service Order”) or a Statement of Work (“SOW”) or a series of Service Orders or
SOWs, which are also incorporated herein by reference. Capitalised terms used in this MSA
but not defined in this MSA shall have the meaning ascribed to them in the General T&Cs.
	 
	2.	 	Payment Terms and Taxes
	 
	2.1	 	The Customer shall pay the Service Fees to Equinix on or before the date specified in Clause
2.4. Service Fees may also be referred to as “Charges” under this Agreement and may include
any of the following, “Installation Charges”, “Non-Recurring Charges”, “Monthly Recurring
Charges” or “MRR”, “Advance Charges”, “Usage Charges” and/or “Power Charges”, as these may be
specified in a Service Order or SOW.
	 
	2.2	 	All amounts payable by the Customer to Equinix under this Agreement shall be exclusive of
VAT (if any). Such VAT shall be charged in addition to such amounts. For the purposes of this
Agreement, “VAT” means value added tax as provided for in the Value Added Tax Act 1994, and
any other present or future tax, levy, impost, charge, fee, deduction or withholding or any
nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed.
	 
	2.3	 	If any amount is not paid by the close of business on the date specified in Clause 2.4,
Equinix reserves the right to charge the Customer interest thereon (before and after the
judgment of any Court of competent jurisdiction) at the Interest Rate from the date
specified in Clause 2.4 until such amount is paid. For the purposes of this Agreement,
“paid” shall mean that funds are available for immediate use by Equinix, and “Interest Rate”
shall mean the rate of 4% over the base rate of HSBC Bank pic from time to time.
	 
	2.4	 	The invoicing and payment terms for the Service Fees shall be as follows:






	 	(a)	 	Any installation Charges or Non Recurring Charges shall be invoiced 50%: (i)
on the execution of a Service Order and shall be paid on the date the invoice is
received and, in any event, prior to installation; and (ii) upon completion of
installation as advised to the Customer by Equinix and shall be paid within 30 days
from the date of the invoice.
	 
	 	(b)	 	All Monthly Recurring Charges shall be invoiced monthly in advance on the
first day of the month. Invoices for such Monthly Recurring Charges shall be paid
within 30 days from the date of invoice.
	 
	 	(c)	 	Any Advance Fees shall be invoiced on the date of execution of a Service
Order by Equinix. Invoices for such Advance Fees shall be paid prior to installation
and, in any event, no later than 10 days from the date of the invoice.
	 
	 	(d)	 	Any Usage Charges shall be invoiced monthly in arrears on the first day of
the month following the provision of the Services to which the Usage Charges relate
and shall be paid within 30 days from the date of invoice.





			
	 	 	 
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	2.5	 	Equinix reserves the right to automatically increase the Monthly Recurring Charges in
line with the retail prices index on the first of January each year.
	 
	2.6	 	In addition to its rights under the terms of Clause 2.5 above, Equinix reserves the right
to automatically increase the Power Charges of the first of January and first of July each
year in line with any reasonable and evidenced increases in its direct electrical supply
costs.
	 
	3.	 	Data Protection.
	 
	3.1	 	The Customer acknowledges that Equinix, Equinix Parties and their respective agents will, by
virtue of the provision of Services, come into possession of Customer Data. The Customer
warrants that it has obtained and will obtain all legally required consents and permissions
from relevant parties (including data subjects) for the use, processing and transfer of
Customer Data as described in this Clause 3.
	 
	3.2	 	Equinix shall implement appropriate technical and organisational measures to protect
Customer Data against accidental or unlawful destruction or accidental loss, alteration,
unauthorised disclosure or access and against other unlawful forms of processing.
	 
	3.3	 	The Customer acknowledges and agrees that Equinix, Equinix Parties and their respective
agents may use, process and/or transfer Customer Data, subject to compliance with the U.K.
Data Protection Act and other applicable laws: (i) In connection with the provision of
Services; (ii) to incorporate Customer Data into databases controlled by Equinix or Equinix
Parties for the purpose of account administration, billing and reconciliation, operational
maintenance and support activities, fraud detection and prevention, and customer and market
analysis and reporting, and (iii) to communicate to the Customer by voice, letter, fax or
email regarding products and services of Equinix or Equinix Parties. The Customer may
withdraw consent for such use, processing or transfer of Customer Data as set out in (iii)
above by sending written notice to Equinix in accordance with the prescribed form, available
from Equinix on request. The Customer acknowledges that it has right to access Customer Data
upon written notice and have any agreed errors in such Customer Data rectified.
	 
	3.4	 	For the purposes of this Clause 3, “Customer Data” shall mean data containing personal
and/or private information of the Customer, its agents or employees or any authorised user of
the Services (including Sub-Licensees) and its agents or employees, or other similar such
data provided to or obtained by Equinix in connection with the provision of Services, and
whose use, processing or transfer of such data is regulated by law or regulation as “personal
data” where Equinix, Equinix Parties or their respective agents come into possession of such
Customer Data.
	 
	4.	 	Non-Solicitation
	 
	 	 	The Customer shall not during the Term or for twelve months thereafter solicit or entice
away or endeavour to solicit or to entice away or assist any other person whether by means
of the supply of names or expressing views on suitability or otherwise howsoever solicit or
entice away from Equinix any employee of Equinix or person contracted to tender services to
Equinix.
	 
	5.	 	Modifications to the General T&Cs. The terms and conditions set out in the General T&Cs are
incorporated by
reference info this MSA, with the following modifications:
	 
	5.1	 	In addition to the wording set out in Section 1 of the General T&Cs, the existing second sentence shall become the
third sentence and a new second sentence shall be added as follows:
	 
	 	 	“Each Order once signed by both Parties shall continue until the end of the Service Term,
upon which the Order shall automatically renew for a further period of 12 months unless
either Party has notified the other Party of its intention to terminate the Order as at
the end of the Service Term by providing at least 3 months prior written notice.”
	 
	5.2	 	In addition to the provisions of Section 3 of the General T&Cs, the Customer agrees to
comply at all times with the Policies in relation to access to the IBX Centre and access and
use of the Licensed Space, including but not limited to the Secure Data Centre Access
Procedure.
	 
	5.3	 	Notwithstanding the provisions of Section 4 or 5 of the General T&Cs or any other provision
of this Agreement, nothing in this Agreement excludes or limits or purports to exclude or
limit the liability of Equinix for: (a) death or personal injury resulting from negligence;
or (b) for any damage or liability incurred by Customer as a result of fraud or fraudulent
misrepresentation by Equinix; or (c) for any liability incurred by Customer as a result of
any breach by Equinix of the condition as to title or the warranty as to quiet possession
implied by section 2 of the Supply of Goods and Services Act 1982.





			
	 	 	 
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	5.4	 	Further to Section 10(h) of the General T&Cs, no person who is not a Party to
this Agreement shall have any right under the Contracts (Rights of Third Parties)
Act 1999 to enforce any term of this Agreement.
	 
	6.	 	Governing Law and Jurisdiction. This Agreement Shall be governed by and construed in
accordance with English
law. The Parties Irrevocably submit to the exclusive jurisdiction of the Courts of
England and Wales for the purpose of hearing and determining any dispute arising out
of this Agreement and for the purpose of enforcement of any judgment against their
respective assets.
	 
	7.	 	For the avoidance of doubt, this MSA shall in no way affect any orders for
services provided by any other Equinix Company to any other Customer Company.
Furthermore, Equinix and Customer acknowledge that the terms and conditions contained
in this MSA are not binding upon any other Equinix Company, other than Equinix, or
Customer Company, other than Customer, and that no other Equinix Company or Customer
Company is required to agree to any of the terms and conditions set out in this MSA.
	 
	8.	 	No variation to this Agreement shall be effective unless made in writing and signed by both
the Parties.
	 
	9.	 	This Agreement may be executed in any number of counterparts and by the Parties on
separate counterparts, each of which when so executed and delivered shall be an
original, but all the counterparts shall together constitute one and the same
instrument.




Executed as an Agreement, which shall not take effect until signed by both Parties below.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Customer	 	 	 	 	 	Equinix	 	 	 	 
	The person signing below hereby warrants
and represents to have full authority to
execute this Agreement on behalf of the
Customer.	 	 	 	The person signing below hereby warrants and represents
to have full authority to execute this Agreement on
behalf of
Equinix.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Signature:	 	/s/ John Kalan	 	 	 	Signature:	 	/s/ Wynn Mccabe	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	John Kalan
	 	 	 	 	 	Name:
	 	Wynn Mccabe	 	 
	 

	 	Title:
	 	VP Operations
	 	 	 	 	 	Title:
	 	Sales Director	 	 






	 	 	 
	Address For Notices:

	 	Address for Notices:
	 
	 	 
	Attn. Accounts Payable

	 	Managing Director
	2711 N. Haskell Ave

	 	Equinix (UK) Limited
	Suite 2300

	 	2 Buckingham Avenue
	Dallas TX 75204

	 	Slough Trading Estate
	USA

	 	Slough SL 14NB
	 

	 	United Kingdom
	 
	Fax: 214.515.7385

	 	Fax: +44 (0)1763 828 835
	 
	Email: jkalan@zixcorp.com

	 	Email: As advised by Equinix from time to time.
	 
	 	 
	 

	 	with a copy to:
	 
	 	 
	 

	 	Vice President, Legal
	 

	 	Equinix Group Limited
	 

	 	51-53 Great Marlborough Street
	 

	 	London W1F 7JT
	 

	 	United Kingdom
	 
	 	 
	 

	 	Fax: +44 (0)20 7534 2133
	 
	 	 
	 

	 	Email: As advised by Equinix from
time to time.






			
	 	 	 
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Attachment A

General T&Cs




			
	 	 	 
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Agreement Number 




GENERAL TERMS AND CONDITIONS



Note regarding use of this document: The purpose of this document is to facilitate the
ability of a Customer Company to procure services from an Equinix Company anywhere in the world.
Once approved by a Customer Company and an Equinix Company, these General Terms and Conditions can
be incorporated into master service agreements between the various Customer Companies and Equinix
Companies that desire to do business together. However, the General Terms and Conditions shall not
be binding upon an Equinix Company and a Customer Company unless and until such Equinix Company
and Customer Company execute a master service agreement that incorporates them by
reference.



Capitalized terms used herein but not otherwise defined will have the meaning ascribed to them in
Section 11 of these General Terms and Conditions. The terms “Equinix”,
“Customer”, “Agreement”
and “Effective Date” shall be defined in the applicable master service agreement.




1. Term of Agreement



This Agreement will commence on the Effective Date and will terminate on the date the last Order
then in effect expires or is terminated, or as otherwise expressly provided herein. If this
Agreement is terminated while Orders are still in effect, then the Orders will automatically
terminate.




2. Ordering and Provision of Services



Upon execution by Equinix and Customer of this Agreement, Customer may request specific Services
from Equinix by placing Order(s). This Agreement and the Orders will govern Equinix’s provision of
Services to Customer and Customer’s obligations to Equinix.




3. Access and Use of the IBX Centers, and Use of Customer’s Equipment




     a. Subject to the terms and conditions of this Agreement,
Customer will have access to the Licensed Space twenty-four (24) hours
per day, three hundred sixty-five (365) days per year.



     b. Customer represents, warrants and covenants that it will
comply with all applicable law and regulations in connection with the
performance of its obligations and exercise of its rights under this
Agreement, and that it has obtained and will maintain throughout the
Term the legal right and authority (including regulatory consents) to
operate, configure, provide, place, install, upgrade, add, maintain and
repair Customer’s Equipment as contemplated by this Agreement.
Except as set forth in Section 4 (which is further limited by Section 5),
Equinix will not have any responsibility for any loss or damage to
Customer’s Equipment.



     c. Customer will be responsible and liable for all acts or
omissions of Customer’s Authorized Persons, Accompanying Persons,
and Associated Entities, and all such acts or omissions will be attributed
to Customer for all purposes under this Agreement, including for
purposes of determining responsibility, liability and indemnification
obligations.



     d. Customer may sublicense the Sublicensed Space to
Sublicensees provided that (i) the terms and conditions of such
Sublicense will be no less restrictive than this Agreement; (ii) Customer
will not in its dealing with such Sublicensees act or purport to act on
behalf of Equinix or landlords of Equinix; (iii) Customer will require the
Sublicensees to abide by the rules set forth In the Policies; (iv) the
agreement between Customer and Sublicensee will provide that
Sublicensee has no right to sublicense, delegate, assign or otherwise transfer its rights to use
the Sublicensed Space to any other person or entity without Equinix’s written consent, which
consent may be withheld for any reason whatsoever or no reason, and without such consent any such
sublicense, delegation, assignment or transfer will be null and void; and (v) Customer will cause
all Sublicensees to agree in writing that in consideration for the sublicense, Sublicensees waive,
to the maximum extent permitted under law, any and all claims of any and all types against Equinix
and the landlords of Equinix, at all times, and that in no event will Equinix, or landlords of
Equinix, have any liability to such Sublicensees, including liability to such Sublicensees for any
damages whatsoever, including direct damages.



     e. Under no circumstances shall Equinix be deemed to have any
obligations to any Sublicensee. Sublicensees do not have any rights,
separate and apart from Customer’s rights, to access their Sublicensed
Space. Accordingly, only Customer’s Authorized Persons at an IBX
Center may access the Sublicensed Space of Sublicensees at such IBX
Center. Furthermore, Equinix is not responsible for restricting a
Sublicensee’s access to Customer’s Licensed Space located In a cage or
suite to which that Sublicensee has access. Customer will remain
responsible to Equinix for the performance of all of Customer’s
obligations under this Agreement (including the payment of all amounts
owed under this Agreement) and all other agreements between Equinix
and Customer (“Related Agreements”).



     f. 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) for Services being provided in a
common law Jurisdiction (e.g., the United States), it has been granted
only a license to use the Licensed Space in accordance with this
Agreement, and, for Services being provided in a civil law jurisdiction, it
has had the Licensed Space made available and been granted
permission to access and use the Licensed Space in accordance with
this Agreement (in each case, “License”); (ii) Customer has not been
granted any real property interest under this Agreement; and (iii)
Customer has no rights as a tenant or otherwise under any real property
or landlord/tenant laws, regulations, or ordinances. Equinix hereby
reserves, with respect to the IBX Centers, all rights not specifically
granted to Customer in this Agreement, Including, without limitation, the
right (i) of access to and use of the 1BX Centers for its own use or the use
of others; (ii) to grant additional licenses to other persons or co-location
customers for the use of portions of the IBX Centers; and (iii) to exercise
or grant other rights not inconsistent with the rights granted in this
Agreement. Unless otherwise expressly agreed to by the Parties in
writing, Equinix will retain title to all parts and materials used or provided
by Equinix or third parties acting on Equinix’s behalf in the performance
and/or furnishing of the Services.



4. Indemnification




     a. Equinix will Indemnify, defend and hold harmless the Customer
Parties from any and all liability, damages, costs and expenses (including
reasonable attorneys’ fees and expenses) for claims brought by third
parties for personal injury or damage to tangible property resulting from
the gross negligence or willful misconduct of Equinix.



     b. Except for the claims for which Equinix is providing indemnity
in Section 4(a) and except for claims for credits under the Service Level
Agreement covering the Services being performed under the MSA, the



			
	 	 	 
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Customer will indemnify, defend and hold harmless the Equinix Parties from any and all liability,
damages, costs and expenses (Including reasonable attorneys’ fees and expenses) for (i) claims
brought by third parties for personal injury or damage to tangible property resulting from the
gross negligence or willful misconduct of Customer; (ii) any claim by any of Customer’s Authorized
Persons, Accompanying Persons or Associated Entitles or any employee of Customer other than a
claim based on the gross negligence or willful misconduct of Equinix; (iii) any claim relating to,
or arising out of, Customer’s, or any of its customers’, services, equipment (including Customer’s
Equipment) or Customer’s use of the Services provided under this Agreement (Including claims
relating to Interruptions, suspensions, failures, defects, delays, impairments or inadequacies in
any of the aforementioned services, Including the Services from Equinix); (iv) any claim that
Customer has failed to fulfill a contractual obligation with a third party; and (v) any claim
resulting from Customer’s failure to obtain or maintain the required consents pursuant to Section
3(b).




     c. Through counsel of its own choosing, the indemnified party has the right to participate in
(but not control the defense of) any proceeding relating to an action 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. The
indemnifying party shall not take any action that unreasonably exposes the indemnified party to a
risk of damages, which would not be covered by such indemnity, and may not settle any matter
without the prior written consent of the indemnified party, if the settlement would impose any
liability or obligation on the indemnified party.



5.
Warranty Disclaimer Limitation of Liability, Credits




     a. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, EQUINIX DOES NOT MAKE, AND HEREBY
DISCLAIMS, ALL EXPRESS WARRANTIES WITH REGARD TO THE
SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY
THAT THE SERVICES PROVIDED HEREUNDER WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
EQUINIX DOES NOT MAKE, AND EQUINIX HEREBY DISCLAIMS, ANY
AND ALL IMPLIED WARRANTIES WITH REGARD TO THE SERVICES,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT OF THIRD PARTY’S INTELLECTUAL
PROPERTY RIGHTS. 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 EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR (I) LOST PROFITS; (II) LOSS OF
BUSINESS; (III) LOSS OF REVENUES (EXCEPT THAT CUSTOMER
SHALL BE LIABLE FOR ANY SERVICE 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, OR ANY OTHER TYPE OF
DAMAGES OTHER THAN DIRECT DAMAGES.



     c. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, EQUINIX’S 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 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 SERVICES
OFFERED OR PROVIDED BY EQUINIX (I) FOR A NON-RECURRING
CHARGE ONLY, OR (II) AS SMART HANDS SERVICES, SHALL NOT
EXCEED THE AMOUNT OF THE SERVICE FEE FOR SUCH SERVICE PROVIDED ON THE OCCASION GIVING RISE TO THE
CLAIM.



     d. THE LIMITATIONS SET FORTH IN SECTION 5(C) SHALL
NOT APPLY TO ANY CLAIMS OR CAUSES OF ACTION BY A THIRD
PARTY PURSUANT TO SECTION 4(A) ABOVE



     e. Equinix and Customer each waive the right to bring any claim
against the other Party arising or in any way relating to this Agreement
more than one (1) year after the date this Agreement expires or is earlier
terminated. 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.



6. Insurance



Customer agrees to maintain appropriate insurance, at its expense, for each IBX Center during the
entire time this Agreement is in effect, which at a minimum shall consist of (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
applicable law; and (iii) umbrela 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. Prior to any
use of the Licensed Space at an IBX Center (including, but not limited to, delivery of any of
Customer’s Equipment to an IBX Center), Customer will furnish Equinix with certificates of
Insurance that evidence the minimum levels of insurance set forth herein and which list Equinix
and Equinix’s landlord as additional insureds (but the insurance must only list Equinix’s landlord
as an additional insured if Equinix so requests). In addition, Customer will notify Equinix of any
non-renewal, cancellation, reduction in policy limit or other material change in Customer’s
coverage at least forty-five (45) days prior to such change in coverage.




7. Termination of Agreement and Suspension of Service




     a. Either Party may terminate this Agreement by giving written
notice of termination 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
Service Fees) after receipt of such notice, if the breach (other than where
Customer has failed to pay Service 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, to cure the breach, provided that the
breaching Party acts promptly and diligently to cure such breach.



     b. Without limiting Equinix’s rights under Section 7(a), Equinix
may suspend the provision of Services and deny access and removal of
Customer’s Equipment to the IBX Center, if (i) Customer fails to cure any
monetary breach of this Agreement (e.g. falls to pay any amounts owed)
within ten (10) days of notice of the same (or within five (5) days of notice
of the same in the event Customer’s account is past due on two (2) or
more occasions during a six (6) month period); (ii) Customer or
Customer’s Equipment interferes 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 one (1) hour of being notified
by email or phone, Customer falls to (a) cease such interference; (b)
provide a plan acceptable to Equinix to cease such interference; or (c)
authorize Equinix to take action to cease such interference (billed at
Smart Hands rates); or(iii) 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 of 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
rates). If Equinix suspends a Service pursuant to this Section 7(b),
unless Equinix has subsequently terminated this Agreement as permitted
under this Agreement, Equinix will resume the discontinued Service as
soon as reasonably practical after it is reasonably satisfied that Customer
has cured the breach(es) which gave rise to the suspension, and Equinix
may charge a reinstatement fee equal to the direct out-of-pocket
expenses incurred by Equinix to discontinue and to then resume the



			
	 	 	 
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Service. Further, Equinix may terminate this Agreement if Customer’s breach referenced in Section
7(b) (ii) or (iii) continues for at least five (5) days or occurs more than three (3) times in any
twelve (12) month period.




     c. Equinix may terminate this Agreement Immediately upon giving
written notice to Customer if Customer becomes unable to pay debts as
they become due, ceases to do business, enters into a deed of
arrangement, undergoes judicial management, commences the process
of liquidation, has a receiver appointed or begins winding up or similar
arrangements.



     d. Equinix may terminate this Agreement upon giving written
notice to the Customer as to any affected Licensed Space or IBX Center
if any portion of the IBX Center in which the affected Licensed Space is
located becomes subject to a government order having the effect of
terminating Equinix’s use of such facility or if Equinix’s possession is
terminated or abated for any reason (e.g., condemnation proceeding) or
Equinix cannot provide Customer with access to the affected Licensed
Space as contemplated herein for a period exceeding thirty (30) days.



8. Removal of Customer’s Property




     a. Upon expiration or termination of this Agreement, or an Order
(or any portion thereof), all rights of Customer with respect to the affected
Licensed Space (“Terminated Space”), will terminate, and Customer will
Immediately remove all of Customer’s Equipment and other items
belonging to Customer, Customer’s Authorized Persons, Accompanying
Persons and/or Associated Entities located in such Terminated Space
(“Customer Property”) but not any wiring, cable or other equipment or
property that does not belong to Customer. Customer agrees that unless
Equinix otherwise agrees in writing, failure to remove Customer Property
within ten (10) days from the expiration of the applicable Order (or
Equinix’s termination of the Order due to Customer’s breach or as
otherwise permitted under this Agreement), or within thirty (30) days if
the Order is terminated before expiration due to Equinix material breach,
will constitute abandonment of the Customer Property and will
automatically provide Equinix with the remedies it has under the law of
the jurisdiction where the IBX Center is located in connection with
abandoned property, and additionally, Equinix will be entitled to pursue
all available legal remedies against Customer, including, without
limitation, any or all of the following remedies: (i) immediately removing
any or all such property and storing it at Customer’s expense at
an on-site or off-site location; (ii) shipping such property to the address set forth
at the end of this Agreement at Customer’s risk and expense; or (iii) upon
thirty (30) days prior written notice to Customer, liquidating such property
and charging Customer for all costs associated with the liquidation and
retain from the liquidation all amounts necessary to pay Equinix all
amounts owed by Customer under this Agreement, including under this
Section 8(a).



     b. While Customer has no right to use the Services provided
under an Order after the Order expires or terminates, if Equinix permits
Customer to do so, Customer will remain obligated under the terms and
conditions of the Order (which Order in such case will be deemed to be
still in effect), including, without limitation, for all payment obligations.
Notwithstanding the foregoing, such continued use will be at Equinix’s
sole discretion and may be terminated by Equinlx at any time
immediately upon notice to Customer.



     c. Neither Party will be liable to the other Party for properly
terminating this Agreement or any portion thereof in accordance with its
terms, but Customer will be liable to Equinix for any amounts due and
payable. Where any Order is terminated prior to the expiration of the
Service Term, except due to Equinix’s material breach, Customer will
Immediately be liable to Equinix for all Service Fees which would have
been payable by Customer for the remainder of the entire Service Term.



9. Confidential Information




     a. Except as expressly permitted in this Section 9, no Party will,
without the prior written consent of the other Party, disclose any
Confidential Information of the other Party to any third party.



     b. Neither Party will disclose Confidential Information from the
other Party except where (i) the disclosure is required by applicable law
or regulation or by an order of a court or other governmental body having
jurisdiction after giving reasonable notice to the other Party with adequate time for such other
Party to seek a protective Order; (ii) if in the opinion of counsel for such Party, disclosure is
advisable under any applicable securities laws regarding public disclosure of business
information; or (iii) the disclosure is reasonably necessary and is to that Party’s, or its
Affiliates’, employees, officers, directors, attorneys, accountants and other advisors, or the
disclosure is otherwise necessary for a Party to exercise its rights and perform its obligations
under this Agreement, so long as in all cases referenced above, in this subsection (iii), the
disclosure is no broader than necessary, and the person or entity who receives the disclosure
agrees prior to receiving the disclosure to keep the information confidential (except with regards
to disclosures to a court or arbitrator in connection with an action to enforce a party’s rights
under this Agreement). Each Party is responsible for ensuring that any Confidential Information of
the other Party that the first Party discloses pursuant to this Agreement (other than disclosures
pursuant to subsections (i) and (ii) and (iii) (but with respect to (iii), only with regard to
disclosures to a court or similar body necessary for a Party to exercise its rights under this
Agreement) above that cannot be kept confidential by the first Party) is kept confidential by the
person receiving the disclosure to the same extent that the receiving Party must keep the
information confidential.



     c. Neither Customer nor Equinix 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. Notwithstanding the restrictions set forth in this Agreement during the Term,
(ii) either Party may publicly refer to the other Party, orally and in writing, as a customer or
vendor of services of or to the other Party, as the case may be, without obtaining consent from
such other Party.



10. Miscellaneous




     a. 
Notice. Except where otherwise expressly stated in the
Agreement, all notices, consents, or approvals required by this
Agreement will only be effective if in writing and sent by (i) certified or
registered air mail, postage prepaid; (ii) overnight delivery requiring a
signature upon receipt; (iii) delivery by hand; or (iv) facsimile or electronic
mail (promptly confirmed by mail), to the Parties at the respective street
addresses, facsimile numbers, or electronic mail addresses set forth and
designated as such in this Agreement or such other addresses or
facsimile numbers as may be designated in writing by the respective
Parties. Notices, consents and approvals under this Agreement will be in
writing and be deemed effective on the date of receipt.



     b. Entire Agreement. This Agreement and all Orders executed at
any time during the Term, all of which are incorporated herein by this
reference, 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
may be executed in two or more counterparts (and the signature pages
may be delivered with ink signature or by facsimile or email), each of
which will be deemed an original, but all of which together will constitute
one and the same instrument.



     c. Construction. Each Party acknowledges and agrees that it has ,
reviewed this Agreement, 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. If any provision of
this Agreement 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. 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. In this Attachment A (the General
Terms and Conditions), references to “Section(s)” shall be references to
“Section(s)” of this Attachment A.



			
	 	 	 
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     d. 
Survival. Sections 3(b), 3 (c), 3(e), 4, 5, 7, 8, 9, 10 (a), (c), (d),
(f) and (h) will survive the termination of this Agreement, but Section 9
will only survive for three (3) years after the end of the Term. 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, including any Service
Fees owed by Customer.



     e. 
Equinix Affiliates, independent Contractors; Assignment.
Equinix may permit any other Equinix Affiliate, or any independent
contractor or other third party, to perform any of Equinix’s obligations
hereunder, and Equinix may assign this Agreement to any person or
entity at any time. Customer may assign this Agreement without
Equinix’s prior consent (in which event Customer must provide Equinix
with prior notice of the assignment) 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, and
in all such events the person or entity to whom this Agreement is
assigned by Customer agrees in writing to be bound by all of the terms of
this Agreement. This Agreement will be binding upon and inure to the
benefit of all successors and permitted assigns of Equinix and Customer,
who will be bound by all of the obligations of their predecessors or
assignors. Except as set forth in this Agreement with respect to
sublicensing only, and this Section 11(e) 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.



     f. 
Force Maleure. Except for Customer’s obligation to pay
amounts owed under this Agreement, including Service 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, 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
nonperforming Party’s control, including acts of God, war, labor strike,
terrorist act, fire, flood, earthquake, health epidemic, any law, Order,
regulation or other action of any governing authority or agency thereof, or
failure of the Internet.



     g. Conflicts. All Orders are at all times subject to all of the terms
and conditions of this Agreement. In the event of ambiguity, conflict or
inconsistency among the documents comprising this Agreement, the
documents shall be given a descending order of precedence as follows:
(i) the Order; (ii) the Attachments and Exhibits to this Agreement, other
than these General Terms and Conditions; (iii) the Policies; (iv) the body
of the Master Service Agreement, and (v) these General Terms and
Conditions.



     h. General. Except where otherwise expressly stated herein, and subject to the
limitations set forth in Section 5, the rights and remedies provided for herein are cumulative
and not exclusive of any rights or remedies that a Party would otherwise have.



     Equinix and Customer are independent contractors and this Agreement will not establish any
relationship of partnership, joint venture, employment, franchise or agency between Equinix and
Customer. Neither Equinix 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.



     The Parties
agree that there will be no third party beneficiaries to this Agreement,
including, but not limited to, any Accompanying Person, Associated Entity (which includes any
Sublicensee), Authorized Person, end user, customer or the insurance providers for either Party.



     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.



     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.



11. Definitions


Accompanying Person: Each person (other than an employee of Equinix) 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.



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.



Authorized Person: Each person who is then included on the most recent list of Authorized Persons
given to Equinix by Customer in accordance with the Policies.



Billing Commencement Date: For a Service ordered in an Order other than Online Orders or Phone
Orders, the date designated in the Order as the Billing Commencement Date. For a Service ordered
in an Online Order or Phone Order, the date Equinix begins providing the Service to Customer,
unless otherwise agreed to by the Parties in the Order.



Confidential Information: Information disclosed by one Party to the other Party that (a) is
identified by the disclosing party, in writing or orally, as confidential at the time of
disclosure, or (b) contains the disclosing Party’s customer lists, customer information, technical
information, pricing information, pricing methodologies, financial position, trade secrets,
customer communications or proposals, benchmarking information, satisfaction surveys, or
information regarding the disclosing Party’s business planning or business operations. In
addition, (i) the terms of this Agreement will be deemed Confidential information of each Party;
and (ii) the design of the IBX Centers, the Services provided and equipment used at the IBX
Centers and the configuration, interconnection, switching and routing of telecommunication cables,
networks and services at the IBX Centers, all will be considered Confidential information of
Equinix. Other than the terms and conditions of this Agreement, information will not be deemed
Confidential information hereunder if such information (i) 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; (ii) 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 disclosing Party; (iii) becomes
publicly known or otherwise ceases to be secret or 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 information to Equinix.



Cross-Connect: A
physical or wireless interconnection within an IBX Center that (i) exits
Customer’s cage or (ii) connects Customer to another Equinix customer.



Customer Care Website: The
 customer care website accessible via the internet at a location
designated by Equinix, which it has the right to change from time to time.



Customer Company: A company
that is an Affiliate of Customer.



Customer Cross-Connect: 
A physical interconnection, including cable, connections, and other
wiring, that (i) does not exit Customer’s cage, (ii) does not connect Customer to another Equinix
customer, and (iii) interconnects (a) Equipment belonging to the Customer or (b) POD



			
	 	 	 
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Equipment that is provided by Equinix and that is in Customer’s cage with Customer’s Equipment.



Customer’s Equipment: All network and/or computer equipment (including wiring and Customer
Cross-Connects between such equipment and Customer’s POD Equipment) that is located in the
Licensed Space, including equipment that is owned, leased, licensed or otherwise obtained for use
by Customer, Customer’s Affiliates, Customer’s Authorized Persons, Accompanying Persons or
Associated Entities (but this does not include Cross-Connects or POD Equipment that is provided by
Equinix and that is located in Customer’s Licensed Space).



Customer Parties: Customer and the Affiliates, owners, officers, directors, employees, and agents
of Customer or of the Affiliates of Customer.



Equinix Company: A company deemed by Equinix to be an Equinix Company.



Equinix Parties: Equinix and the Affiliates, owners, officers, directors, employees, and agents of
Equinix or of the Affiliates of Equinix.



IBX Centers: The Internet Business Exchange Centers in which Customer licenses Licensed Space or
receives Services from Equinix pursuant to an Order.



Licensed Space: The areas which, for Services being provided in the United States and/or a common
law jurisdiction, are licensed by Customer or, for Services being provided in a civil law
jurisdictions are made available to the 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 times during the Term the exact location in the
IBX Centers where the Licensed Space will be located, and Equinix will notify Customer
accordingly.



Online Order: An Order for Services placed online via the Customer Care Website, which will be
effective only after Equinix accepts it in accordance with Equinix’s then current procedures or
Equinix begins providing the Services ordered under the Online Order.



Order: A statement of work incorporated into this Agreement by reference prepared by Equinix that
describes the Services. In the United States, an Order may also be referred to as a SOW and may be
amended by a SOW Amendment. In the Asia Pacific Region, an Order may also be referred to as a
Sales Order and may be amended by a Change Order. In Europe, an Order may also be referred to as a
Service Order. SOW Amendments and Change Orders will amend existing Orders but will not replace
them unless otherwise agreed by the Parties in writing. Orders are not valid until signed by both
Parties, except for Online and Phone Orders. Equinix is under no
obligation to accept an Order.
Unless otherwise specified, reference to Order(s) shall also include Online Orders and/or Phone
Orders.



Order Confirmation: A document which may not include signature sent by Equinix that confirms,
among other things, the Services, the quantity of such Services, and the prices of such Services.
Not all Online Orders or Phone Orders require Order Confirmations, and Equinix will in its sole
discretion determine which Online Orders or Phone Orders require Order Confirmations to be
effective.



Parties: Customer and Equinix.



Party: Customer or Equinix.



Phone Order: An Order for Services placed over the phone, where available, via an Equinix
customer care representative, which will be effective only after Equinix accepts it in accordance
with Equinix’s then current procedures or Equinix begins providing the Services ordered under the
Phone Order.



POD Equipment: The (i) patch panels, DSX panels for category 5 twisted pair, co-axial, single and
multi-mode fiber, or (ii) other appropriate (as reasonably determined by Equinix) point of
demarcation equipment.



Policies: The procedures, rules, regulations, security practices and policies adopted by Equinix
that are then in effect for the IBX Centers, and as they may be amended from time to time by
Equinix.



Services: All services, goods and other offerings of any kind requested under an Order agreed to
by Equinix, and to be provided by Equinix to Customer pursuant to this Agreement.



Service Fees: Charges and fees for Services charged to Customer by Equinix pursuant to this
Agreement, and are exclusive of Taxes.



Service Term: The period commencing on the Billing Commencement Date and ending after the term
specified on the applicable Order.



Smart Hands Services: Services that are defined as Smart Hand Services under the then current
Policies.



Sublicensed Space: The portion of the Licensed Space that, for Services being provided in the
United States and/or a common law Jurisdiction, is sublicensed, to a Sublicensee by Customer or,
for Services being provided in a civil law jurisdiction, is made available to a Sublicensee with
permission to access and use, in each case pursuant to the terms of this Agreement.



Sublicensee: A customer of Customer or other third party who (i) sublicenses all or part of the
Licensed Space from Customer, if such Licensed Space is located in the United States or a common
law jurisdiction, or (ii) is able to access and use all or part of the Licensed Space as made
available by the Customer, if such Licensed Space is located in a civil law jurisdiction.



Taxes: Sales, use, transfer, privilege, excise, VAT, GST, consumption tax, and other similar taxes
and duties, whether foreign, national, state or local, however designated, now in force or enacted
in the future, which are levied or imposed by reason of the performance by Equinix or Customer
under this Agreement or by Customer with respect to its operations and use of the Services, but
excluding taxes on Equinix’s net Income.



Term: The term of this Agreement as determined in accordance with Section 1 of this Agreement.





	 	 	 	 	 	 	 
	Customer to
complete:	 	 	 	Equinix to complete:
	Acknowledged and agreed.	 	 	 	Acknowledged and agreed.
	 
	 	 	 	 	 	 
	Customer Name:

	 	ZixCorp Global, Inc.	 	 	 	 
	 

	 	 

	 	 	 	 
	 

	 	(Complete Legal Name)	 	 	 	 






	 	 	 	 	 	 	 	 	 	 	 
	Authorized Signature:

	 	/s/ John Kalan
	 	 	 	Authorized Signature:
	 	/s/ Wynn Mccabe	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	

	 	Printed Name: John Kalan
	 	 	 	
	 	Printed Name: Wynn Mccabe	 	 
	

	 	Title: VP Operations
	 	 	 	
	 	Title: Sales Director	 	 






			
	 	 	 
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