ex10-1.htm


     

     

    EXHIBIT 10.1


     

    Master
Services Agreement

    


    


    This
Master Services Agreement (“MSA”) is entered this 27th of June 2008 (the “Effective Date”)
between:

    


    
      	
              1.  

            	
              Taleo (Europe) B.V. (the
      “Customer”), whose
      registered office is at Beech Avenue 54-80, 1119 PW, Schiphol-Rijk, VAT No
      NL 8101.66.859.B.01, the Netherlands;
and

            


    

    


    
      	
              2.  

            	
              Equinix Netherlands B.V.
      (“Equinix
      Netherlands”), whose registered office is at Auke Vleerstraat 1,
      7521 PE, Enschede, the Netherlands,

            


    

    


    each
hereinafter referred to as a “Party” and together as the
“Parties”.

    


    Background

    


    
      	
              I.  

            	
              Whereas
      Taleo Corporation has entered into a Master Services Agreement (“US Agreement”) with
      Equinix Operating Co., (“Equinix US”) on April
      14, 2006 (Taleo_MSA_v11_clean.doc, Version 8/5/04 as attached to this MSA)
      in regard of the Services to be rendered by Equinix US as more fully
      described in the US Agreement.

            


    

    


    
      	
              II.  

            	
              Whereas
      Customer desires to assume the rights and responsibilities in the US
      Agreement in order to make use of the Services to be rendered by Equinix
      Netherlands in the data centre at Luttenbergweg 4, 1101 EC, Amsterdam, the
      Netherlands (the “Amsterdam Data
      Centre”).

            


    

    


    
      	
              III.  

            	
              Whereas
      Equinix Netherlands desires to render Services to Customer in the
      Amsterdam Data Centre in accordance with the terms and conditions set out
      in the US Agreement, unless otherwise stated hereinafter in this MSA. If
      there is any inconsistency between the US Agreement and the MSA, the term
      of this MSA shall prevail to the extent of any such
      inconsistency.

            


    

    


    
      	
              IV.  

            	
              Unless
      otherwise defined herein, all capitalized terms used herein shall have the
      meaning attributed to them in the US
Agreement.

            


    

    


    In
consideration hereof, the Parties agree as follows:

    


    
      	
              1.  

            	
              Unless
      stated otherwise in this MSA, the terms and conditions of the US Agreement
      are incorporated in this MSA and shall govern the Parties’ contractual
      relationship constituted under this MSA as of the Effective Date and until
      such date this MSA expires, terminates, or be replaced by another
      agreement between the Parties hereto. Any Order within the meaning of
      Section 2 of the US Agreement shall be referred to herein as Service
      Order.

            


    

    


    
      	
              2.  

            	
              Exhibits
      B and C to the US Agreement are not applicable to this MSA. An applicable
      Service Level Agreement for Europe, including the Amsterdam Data Centre,
      is set out in Attachment 2 to this
MSA.

            


    

    


    
      	
              3.  

            	
              Section
      2(b) of the US Agreement is not applicable to this MSA.  Equinix
      Netherlands will not provide a Customer Care Website for the Amsterdam
      Data Centre or elsewhere in Europe. Rather, customer care and support for
      the Services is obtained by calling the NL ServiceDesk (known in the US as
      the ERC) which will raise tickets and answer all issues etc. The contact
      information for the NL ServiceDesk will be given to the Customer as part
      of the “Welcome Pack” or “Customer User
Guide.”

            


    

    


    
      	
              4.  

            	
              Notwithstanding
      anything contained in Section 5 and 6 of the US Agreement, nothing in this
      Agreement excludes or limits or purports to exclude or limit a Party's
      liability to the other Party for any willful misconduct, gross negligence
      or liability under product liability
law.

            


    

    


    
      	
              5.  

            	
              Notwithstanding
      Section 9 (n) of the US Agreement, and excluding Customer’s obligations 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 of 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 directly caused by event or circumstances beyond the
      non-performing Party's control, including fire, flood, embargo, act of
      sabotage, terrorism, riot,
mandatory

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              6.  

            	
              compliance
      with any governmental act, regulation or request, act of God or by public
      enemy; provided that, with respect to Equinix Netherlands, Equinix
      Netherlands has implemented industry standard measures and safeguards
      expected of a competent provider of high availability data centre
      services, including but not limited to, implementation of a fall over back
      power source, means to address HVAC failures, means to monitor and control
      access to the Licensed Space, means to handle security breaches at an IBX
      Center, having backup plans in place in the event of a labor disruption
      and means to replace hardware in the event of a hardware failure (“Force Majeure Event”).
      If Equinix is unable to provide the Services contemplated herein for more
      than three (3) consecutive days as a result of a Force Majeure Event,
      Customer shall have the right to terminate this Agreement immediately with
      written notice, provided Equinix receives such notice of termination no
      later than thirty (30) days after the date Customer’s right to termination
      arises pursuant to this Clause 5 of the MSA, and in such event, Customer
      will be liable only for those Service Fees for Services actually rendered
      up to the effective termination date, and not for any early termination,
      early cancellation or other charges. In the event a Force Majeure Event
      prevents Equinix from providing any Service, Customer’s obligation to pay
      the Service Fees for such Service affected by the Force Majeure Event
      shall abate during the time period the Force Majeure Event excuses
      Equinix’s performance hereunder. Notwithstanding the foregoing, if
      Customer is unable to pay amounts owed under this Agreement due to a Force
      Majeure Event, Equinix shall not be required to provide Services until
      Customer remits payment.

            


    

    


    
      	
              7.  

            	
              For
      the avoidance of doubt, Equinix Netherlands will not assume any liability
      or obligation other than its own liability or obligations arising under
      this MSA and shall not be jointly and severally liable in regard of any
      liability and/or obligation of any other Equinix Entity and vice versa.
      Notwithstanding the foregoing, Equinix Netherlands shall not be relieved
      from liability arising out of the acts or omissions of any third parties
      it permissibly engages to provide the Services to
  Customer.

            


    

    


    
      	
              8.  

            	
              In
      addition to the “Confidentiality and Security Measures” contained in
      Exhibit A to the US Agreement, the following terms will apply to the
      provision of Services pursuant to this
MSA.

            


    

    


    
      	
              a.  

            	
              This
      MSA and any transaction contemplated thereby may be governed by one or
      more privacy laws or regulations including the European Union’s Data
      Protection Directive 95/46/EC  as implemented in the Dutch Data
      Protection Act (Wet Bescherming Persoonsgegevens) (collectively, the
      “Regulations”).  If
      so governed, then to the extent not captured already by the definition of
      Confidential Information in the Agreement, or required already by the
      obligations of the Parties thereunder: (a) the term “Confidential
      Information” shall further include all Nonpublic Personal
      Information, Protected Health Information, material nonpublic information
      and Personal Data as each of those terms is defined in or by application
      of each respective Regulation (collectively, the “Regulated Information”);
      and (b) either Party shall comply with all requirements of the Regulations
      reasonably known to be applicable to the Regulated Information portions of
      the Confidential Information actually received by the other Party
      including all reporting, audit, access, third party disclosure and onward
      transfer obligations and restrictions therefor, if any are so
      applicable.  If a Regulation applicable to a Party under this
      MSA is amended, and/or if any other state or federal law, regulation or
      treaty is effected such that a more restrictive standard of
      confidentiality or obligation of privacy or security is imposed with
      respect to an applicable component of the Regulated Information portions
      of the Confidential Information, then such more restrictive standard shall
      prevail over the provisions of this MSA with respect to those
      portions.  By signing below the Parties acknowledge that the
      Regulations may prohibit or render ineffective some or all of the
      exclusions otherwise available under the
  Agreement.

            


    

     

    
      	
              9.  

            	
              Different
      to Section 9 (b) of the US Agreement, this MSA shall be governed by and
      construed in accordance with Dutch law without regard to any conflict of
      law principles.  If and to the extent any terms and conditions
      of the US Agreement (including the SLA) are not in compliance with
      mandatory Dutch law, Dutch statutory law shall apply in lieu, to the extent
      necessary, of such terms and conditions not in
  compliance.

            


    

    


    
      	
              10.  

            	
              Any
      dispute arising out of or in connection with this MSA shall be settled and
      adjudicated by the competent courts in Amsterdam, the
      Netherlands.

            


    

    


    


    
      	
              11.  

            	
              ISO
      Certification, SAS 70 or National Equivalent
  Audit.

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              12.  

            	 


    

    Upon
request from Customer, Equinix Netherlands shall provide to Customer copies of
Equinix Netherlands’ annual Type II SAS 70, national equivalent or ISO
Information Security Standards reports & certificates for the purpose to
determine the adequacy of Equinix Netherlands’ systems, controls, security,
integrity, fees, and confidentiality.  If there are any testing exceptions
set forth in the Type II SAS 70 or national equivalent reports or issues
preventing sustained ISO certification status, Equinix Netherlands will provide
Customer with a written plan of action, which shall include, at a minimum: (A)
details of actions to be taken by Equinix Netherlands and/or its subcontractors
to correct the testing exceptions or issues and (B) target dates for successful
correction of the testing exceptions and issues, and (C) any subsequent reports
or certification re-activation notices addressing resolution of any testing
exceptions and issues identified.  Equinix Netherlands acknowledges and
agrees that Customer and its independent certified public accountants shall have
the right to interview Equinix Netherlands’ audit personnel, at Customer’s
expense, who did the actual audit work in the event that Customer or its
independent certified public accountants require clarification on the
report.  Equinix Netherlands shall be responsible for its costs associated
with SAS 70 Type II, national equivalent or ISO audit reports and
certifications, correcting any testing exceptions or issues identified and for
the preparation of any other reports required to be delivered under this
provision. Customer shall be responsible for its own costs associated with
audits conducted by it under this provision.

    


    For the
purpose of this MSA, the Parties agree that ISO 27001 certification by Equinix
Netherlands shall be considered equivalent to the Type II SAS 70
auditing standards described above.

    


    Equinix
Netherlands shall use commercially reasonable efforts to obtain ISO 27001
certification within one year of the Effective Date of this MSA.  When
ISO 27001 certification status is acquired by Equinix Netherlands,
this certification will replace the Type II SAS 70
certification described above and Equinix Netherlands shall
provide Customer with an ISO 27001 Certificate.

    


    Additionally
and upon Customer’s request, until full ISO certification is acquired by Equinix
Netherlands, the latter will permit the Customer to view all documentation for
the purpose of determining the adequacy of Equinix Netherlands’ systems,
controls, security, integrity, fees, and confidentiality.

    


    


    IN
WITNESS WHEREOF, the Parties have entered into this MSA as of the Effective
Date.

    


    


    
      	 
      	
              Taleo
      (Europe) B.V.

            
	
              Name

            	
              Josh
      Faddis

            
	
              Position

            	
              Vice
      President & Corporate Counsel

            
	
              Date

            	 
      27th of June
      2008
	
              Signature

            	/s/
      Josh Faddis  


    

    


    
      	 
      	
              Equinix
      (Netherlands) B.V.

            	
              Equinix
      (Netherlands) B.V.

            
	
              Name

            	
              Harro
      Beusker

            	
              Eric
      Schwartz

            
	
              Position

            	
              Managing
      Director

            	
              Managing
      Director

            
	
              Date

            	30th of June
    2008	30th of June
    2008
	
              Signature

            	/s/
      Harro Beusker  	/s/
      Eric Schwartz