CLOUD TERMS OF SERVICE between Rackspace International GmbH (“we“ or “Rackspace”) and the customer who orders Rackspace® services (“you” or “Customer”).
THE AGREEMENT. Your use of the Rackspace cloud services is governed by these Cloud Terms of Service which includes the Country Specific Terms at Schedule 1, the Cloud Acceptable Use Policy, and the terms of your Order. Your Order may have additional terms that apply to the particular services in your Order. When we use the term “Agreement” in any of the Order, Cloud Terms of Service or Acceptable Use Policy we are referring collectively to all of them, including any product specific terms that apply to the Rackspace cloud services. Sections 1 – 36 of these Cloud Terms of Service state the general terms applicable to all Rackspace cloud services, and Sections 37 – 46 state additional terms that will apply only if you elect to purchase the particular services described in those sections. Schedule 1 of these Cloud Terms of Service details additional terms which are specific to the country in which your Rackspace cloud services are hosted. Your use of the Rackspace cloud services includes the ability to enter into agreements and make purchases electronically. You acknowledge that your electronic assent constitutes your acceptance to the Agreement for each electronic purchase or transaction you enter.
If you are entering into this Agreement for an entity, such as the company you work for, you warrant and represent to us that you have the legal authority to bind that entity to this Agreement.
1. DEFINED TERMS
2. RACKSPACE’S OBLIGATIONS
3. YOUR OBLIGATIONS
4. ACCESS TO THE SERVICES
5. SERVICE LEVEL AGREEMENTS
8. TAXES ON SERVICES
9. FEE INCREASES
11. TERMINATION FOR CONVENIENCE
12. TERMINATION FOR BREACH
13. ACCESS TO DATA
14. ACCESS TO YOUR CUSTOMER DATA OR USE OF THE SERVICES
15. PROMISES WE DO NOT MAKE
16. EXPORT MATTERS
17. CONFIDENTIAL INFORMATION
18. LIMITATION ON DAMAGES
21. WHO MAY USE THE SERVICES
22. CHANGES TO THE ACCEPTABLE USE POLICY
23. DATA PROTECTION
25. NO HIGH RISK USE
26. OWNERSHIP OF INTELLECTUAL PROPERTY
27. OWNERSHIP OF OTHER PROPERTY
28. INTELLECTUAL PROPERTY INFRINGEMENT
29. IP ADDRESSES
30. SERVICES MANAGEMENT AGENT
33. SERVICES PROVIDED BY THIRD PARTIES
34. FORCE MAJEURE
35. GOVERNING LAW AND JURISDICTIOM
36. SOME AGREEMENT MECHANICS
37. CONTENT DELIVERY SERVICES
39. TEST SERVICES
40. MANAGED SERVICE LEVEL
41. UNSUPPORTED CONFIGURATION ELEMENTS OR SERVICES
42. DOMAIN NAME REGISTRATION SERVICES
43. CLOUD SERVER IMAGES
44. MAIL SERVICES
45. RACKSPACE API CODE SUPPORT
46. SERVICE OPTIMISATION AND CROWDED HOST PROCESS
47 ROLE-BASED ACCESS CONTROL
SCHEDULE 1: COUNTRY SPECIFIC TERMS
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Acceptable Use Policy that is described in the Country Specific Terms as of the date you submit the Order.
“Affiliate” means any and all legal entities which now or hereafter the ultimate parent of a party to this Agreement controls. For the purpose of this definition, “control” shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
“API” means application programming interface.
“Business Day” or “Business Hour” means 8:00 a.m. – 5:00 p.m. Monday to Friday, excluding public holidays in the location where the Services are hosted, as per the Order.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, non-public information of the parties relating to their business activities or financial affairs, data centre designs (including non-graphic information you may observe on a tour of a data centre), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through breach of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Country Specific Terms” means those terms listed at Schedule 1;
“Customer Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Services.
“Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system.
“Order” means: (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by Rackspace for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the Rackspace Cloud control panel or through an API.
“Personally Identifiable Information” or “PII” means a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s national insurance or social security number or other government issued number, financial account number, date of birth, address, biometric data or mother’s maiden name.
“Services” means the software and services described in the Order and includes any services which you self-provision through the Rackspace Cloud control panel or which you utilise via an API.
“Support” means (i) Rackspace employees with training and experience relative to the Services will be available ‘live’ by telephone, chat and ticket twenty-four (24) hours per day, seven (7) days per week, year round, and (ii) any additional level of support offered by Rackspace applicable to the specific Services ordered by you.
Rackspace’s obligations to begin providing to you the Services and Support described in your Order is contingent on your satisfaction of Rackspace’s credit approval criteria and subject to these Cloud Terms of Service. Rackspace will maintain security practices that are at least as stringent, in Rackspace’s reasonable judgment, as those described in the Country Specific Terms.
You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy, (ii) use software in compliance with Section 20 (Microsoft Software & License Mobility), (iii) pay when due the fees for the Services, (iv) use reasonable security precautions in connection with your use of the Services, including encrypting any PII transmitted to and from, and while stored on, the Services (including the underlying servers and devices), (v) cooperate with Rackspace’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (vi) keep your billing contact and other account information up to date via the online control panel, and (vii) immediately notify Rackspace of any unauthorised use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Rackspace’s reasonable determination shall control. If there is a dispute with respect to any portion of an invoice, you shall pay the undisputed portion of the fees promptly and provide written details specifying the basis of any dispute. Each of us agrees to work together to promptly resolve any disputes.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. Rackspace’s security obligations with respect to Customer Data are limited to those obligations described in Section 2 (Rackspace’s Obligations) above. Rackspace makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services. You must maintain the security of your login credentials and may not share login credentials except as required to establish and authorise users in your account. You are responsible for designating authorised users under your account and limiting access of login credentials associated with your account.
ACCESS TO THE SERVICES.
You may access the Services via the online Rackspace Cloud control panel, the Rackspace Mobile Application or via a Rackspace-provided API. Rackspace may modify its online control panel or API at any time, or may transition to a new API. Your use of any API you download from the Rackspace website is governed by the licence terms included with the code in the file named “COPYING” or “LICENCE” or like caption.
SERVICE LEVEL AGREEMENTS.
The Service Level Agreement(s) listed in the Country Specific Terms are part of this Agreement for those Services you are buying.
Managed Service Level. The Managed Service Level will not be available for purchase after 15 July 2014. If you previously purchased a Managed Service Level for your account (or as part of an Order for the Services), then Rackspace shall continue to support it in accordance with the following terms until such time as we give you notice that it is end of life. Additional Support fees may apply (such as a monthly account fee and an additional incremental fee for Cloud Databases). If you purchased a Managed Service Level, then your use of Cloud Servers shall include the following: (i) use of Rackspace's Cloud Monitoring Service and up to 8 Checks per Cloud Server triggering an alert to Rackspace, at no additional charge (for details of the Cloud Monitoring Service please refer to the section of the Country Specific Terms labelled ‘Service Level Agreements ), and (ii) the Rackspace Cloud Backup Agent at no additional charge provided you will still be responsible for fees associated with your use of Rackspace Cloud Backup. Rackspace must have administrator access to your Services in order to provide Managed Service Level Support. If you use Managed Service Level Services, you are responsible for updating Rackspace about password changes that limit Rackspace's ability to manage or monitor the Services. No credits or refunds will be issued for failures caused by restrictions on Rackspace's root/administrator access to your Services.
Managed Infrastructure. If you purchase Managed Infrastructure Service Level for your account, you shall also receive the Support SLA found here: http://www.rackspace.co.uk/legal/managed-cloud-sla .
5.3 Managed Operations. If you purchase Managed Operations Service Level, then your use of Cloud Servers shall include the following: (i) use of Rackspace's Cloud Monitoring Service and up to 8 Checks per Cloud Server triggering an alert to Rackspace, (for details of the Cloud Monitoring Service please refer to the section of the Country Specific Terms labelled ‘Service Level Agreements), and (ii) use of the Rackspace Cloud Backup Agent at no additional charge provided you will still be responsible for fees associated with your use of Rackspace Cloud Backup. You shall also receive the Support SLA found here: http://www.rackspace.co.uk/legal/managed-cloud-sla and Rackspace will double the applicable credit percentage for the Support SLA and all other Cloud SLA’s, in each case not to exceed 100% of the fees for the applicable Cloud Service for that month’s billing period. Rackspace must have administrator access to your Services in order to provide the Managed Operations Service Level. If you use Cloud Services with a Managed Operations Service Level you are responsible for updating Rackspace about password changes that limit Rackspace's ability to manage or monitor the Services. No credits or refunds will be issued for failures caused by restrictions on Rackspace's access to your Services.
The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one (1) month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one (1) month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow Rackspace’s non-renewal process accessible from the Rackspace Cloud control panel to give effective notice of non-renewal. Please note, it may take up to fourteen (14) days for Rackspace to process the notice of termination. During such time you will not have access to the Services. Rackspace may, but shall not be required to, maintain the data that you have stored on the Rackspace Cloud system for the fourteen (14) day period at no additional fee to you. For avoidance of doubt these Cloud Terms of Service, excluding the Service Level Agreement, shall continue to apply during such period.
For information about the fees and pricing for Services, including applicable minimums and volume discounts, see: www.rackspace.co.uk/cloud/pricing. Rackspace will charge you and you agree to pay when due the fees for the Services in accordance with your Order. Unless you have made other arrangements, Rackspace will charge your credit card without invoice. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Rackspace first makes the Services available to you. Rackspace may suspend all Services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. Rackspace may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Rackspace brings a legal action to collect, or engages a collection agency, you must also pay Rackspace’s reasonable costs of collection, including legal fees and court costs. Unless stated otherwise, fees are stated and will be charged in the same currency as per your Order. Any “credit” that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. If there is a dispute with respect to any portion of an invoice, you shall pay the undisputed portion of the fees promptly and provide written details specifying the basis of any dispute. Each of us agrees to work together to promptly resolve any disputes. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You authorise Rackspace to obtain a credit report at any time during the term of the Agreement.
TAXES ON SERVICES.
Any and all prices applicable to the services that Rackspace provides to its customers are exclusive of taxes. If Rackspace is required by law to collect taxes on the provision of the Services, you must pay Rackspace the amount of the tax that is due or provide Rackspace with satisfactory evidence of your exemption from the tax. You must provide Rackspace with accurate factual information to help Rackspace determine if any tax is due with respect to the provision of the Services.
For those Services provided on a month-to-month term, we may increase fees at any time on thirty (30) days’ advance written notice. If your Order contains Services with a specified term longer than one (1) month, then we may increase your fees effective as of the first day of the renewal term that begins thirty (30) days from the day of our written notice of a fee increase. In addition, if during the initial term or renewal term there is an increase in the price index over the price index reported for the month in which you agreed your Order, we may increase your fees at any time during the term by the same percentage as the increase in the price index provided that we may not increase your fees pursuant to this sentence more often than once per twelve (12) months, and we must give you at least thirty (30) days’ advance written notice of the increase. For the purposes of this section 9, “price index” means the price index stated in the Country Specific Terms.
10.1 We may suspend the Services without liability if:
10.1.1 we reasonably believe that the Services are being used (or have been or will be used) in breach of the Agreement;
10.1.2 we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past;
10.1.3 you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement;
10.1.4 we reasonably believe that the Services have been accessed or manipulated by a third party without your consent;
10.1.5 we reasonably believe that suspension of the Services is necessary to protect our network or our customers;
10.1.6 a payment for Services is overdue;
10.1.7 we are required by law or a regulatory or government body to suspend your Services; or
10.1.8 there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Rackspace network or our other customers.
10.2 We will give you advance notice of a suspension under this clause of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Rackspace or its other customers from imminent and significant operational, legal, or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (at our discretion) upon reinstatement of the Services. If your Services are compromised, then you must address the vulnerability prior to Rackspace placing the Services back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a supplementary service.
TERMINATION FOR CONVENIENCE.
You may terminate the Agreement for convenience at any time provided that any recurring or minimum fees for the month in which you terminate remain due and payable for such month. You must follow Rackspace’s non-renewal process accessible via the online control panel in order to give an effective notice of termination.
TERMINATION FOR BREACH.
12.1 You may terminate the Agreement on written notice for breach if we:
12.1.1. materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure; or
12.1.2. materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
12.2 We may terminate the Agreement on written notice for breach if:
12.2.1. we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete;
12.2.2. you did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
12.2.3. your payment of any invoiced amount is overdue and you do not pay the overdue amount within four (4) Business Days of our written notice;
12.2.4 you have made payment arrangements via credit card or other third party, and the third party refuses to honour our charges;
12.2.5. you fail to comply with any other obligation stated in the Agreement and do not remedy the failure within thirty (30) days of our written notice to you describing the failure;
12.2.6. you breach the AUP more than once even if you remedy each breach;
12.2.7 a credit report indicates that you no longer meet our reasonable credit criteria, provided that we will give you a reasonable opportunity to migrate your environment out of Rackspace in an orderly fashion before we terminate on these grounds;
12.2.8 you use the Services in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice; or
12.2.9. your agreement for any other Rackspace service is terminated for breach of the acceptable use policy applicable to that service.
12.3 Either of us may terminate the Agreement if the other is unable to pay its debts or enters into liquidation or ceases for any reason to carry on business or takes or suffers any action which means that it may be unable to pay its debts.
ACCESS TO DATA.
13.1 You will not have access to your data stored on the Services during a suspension or following termination.
13.2 You have the option to create a snapshot backup of your cloud servers, however it is your responsibility to initiate the snapshot backup and test your backup to determine the quality and success of your backups. You will be charged for your use of backup services as listed in your Order.
13.3 We do not have knowledge of the data you store within the Rackspace Cloud system, including the quantity, value or use of the data. You are therefore responsible to take all reasonable steps to mitigate the risks inherent in the provision of the Services, including data loss. Although the Service may be used as a backup service, you agree that you will maintain at least one (1) additional current copy of your programs and data stored on the Rackspace Cloud system somewhere other than on the Rackspace Cloud system. If you utilise Rackspace Cloud backup services, you are responsible for performing and testing restores as well as testing your systems and monitoring the integrity of your data.
ACCESS TO YOUR CUSTOMER DATA OR USE OF THE SERVICES.
14.1 Rackspace is not responsible to you for unauthorised access to your data or the unauthorised use of the Services unless the unauthorised access or use results from Rackspace’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorised by you.
14.2 Rackspace agrees that it will not use or disclose Customer Data, except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Rackspace agrees not to disclose the Customer Data to any third person except as follows:
14.2.1 to a law enforcement or government agency if requested or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law;
14.2.2 as required by law; or
14.2.3 in response to a court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Customer Data under this subsection (or prompt notice in advance of disclosure, if seven (7) days’ advance notice is not reasonably feasible), unless the law forbids such notice.
14.3 Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
PROMISES WE DO NOT MAKE.
15.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information, and property. Rackspace has no obligation to provide security other than as stated in this Agreement or applicable Order. We disclaim any and all warranties not expressly stated in the Agreement to the maximum extext permitted by law including the implied warranties relating to satisfactory quality and fitness for a particular purpose. You are solely responsible for the suitability of the Service chosen, including the suitability as it relates to your Customer Data and the security of your Hosted System. The Services are provided AS IS subject to any applicable Service Level Agreement (as described at Section 5 (Service Level Agreements) above). Any services that we are not contractually obligated to provide but that we may perform for you at your request and without additional charge is provided AS IS, including any services that are deemed Unsupported (as described at Section 40 (Unsupported Configuration Elements or Services) below).
15.2 Some of the services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those services in a manner that complies with the applicable requirements.
15.3 You are solely responsible for determining the suitability of the Services for your use in light of any applicable regulations such as data privacy laws and data protection regulations.
You represent and warrant that you are not located in or a national of any country that is embargoed or highly restricted under export regulations or are otherwise a person to whom Rackspace is legally prohibited to provide the Services. You represent and warrant and undertake that you will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any information or technical data provided by Rackspace to you under this Agreement in any manner which would cause Rackspace or its Affiliates to breach any applicable export control laws, rules, or regulations of any jurisdiction (including without limitation those under UK and US law). Without limitation, you represent and warrant and undertake that you will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D:4 and D:3 as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations; illegal gambling, terrorism, narcotics, trafficking, or arms trafficking; nor will you provide or facilitate administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations, including but not limited to United States export regulations.
17.1 Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
17.1.1 to each of our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these Cloud Terms of Service;
17.1.2 to a law enforcement or government agency if requested or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law;
as required by law; or
in response to a court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days’ advance notice is not reasonably feasible), unless the law forbids such notice.
LIMITATION ON DAMAGES.
18.1 Subject to clause 18.2, but without prejudice to your right to service credits under the applicable Service Level Agreement:
18.1.1 the maximum aggregate liability of Rackspace for direct loss or damages whether in tort (including, without limitation, negligence), contract or otherwise in connection with the Services shall not exceed the greater of (i) the amount of fees you paid for the Services for the six (6) months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Pounds Sterling (£500.00) or the equivalent sum in the currency applicable to your Order.
18.1.2 neither of us (nor any of our employees, agents, Affiliates, or suppliers) shall be liable to the other for:
184.108.40.206 any indirect, special, incidental or consequential loss or damages of any kind;
220.127.116.11 any loss of profit;
18.104.22.168 any loss of business;
22.214.171.124 any loss of data;
126.96.36.199 any anticipated savings or revenue; or
188.8.131.52 any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages.
18.2 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:
18.2.1 death or personal injury caused by its negligence;
18.2.2 any fraud or fraudulent misrepresentation; and
18.2.3 any claims identified in the applicable Country Specific Terms.
18.3 Unless otherwise provided in the applicable Country Specifc Terms, the service credits stated in the Service Level Agreement are your exclusive remedy for Rackspace’s failure to meet the guarantees for which service credits apply.
19.1 If we, our Affiliates, or any of our or their respective employees, agents, or suppliers (the “Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged negligence, breach of law, failure to meet the security obligations required by the Agreement, breach of the AUP, breach of your agreement with your customers or end users, or breach of Section 16 (Export Matters) of these Cloud Terms of Service, then you will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine, or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this clause include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorised by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. You must also pay reasonable legal fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with Rackspace, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
19.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defence of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld, delayed or conditioned.
You must pay reasonable legal fees and expenses due under this clause as we incur them.
All software that we provide for your use is subject to the terms of this Agreement, including software that we may authorise you to install on devices located outside of our data centre. You may not use any software we provide after the expiration or termination of this Agreement, or the particular service for which it was provided, and you may not copy the software unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide. Unless permitted by the terms of an open source software licence, you may not reverse engineer, decompile or disassemble any software we provide except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days’ advance written notice to us. Any additional restrictions which may apply to software we utilise in the performance of the Services will be specified in the applicable Order.
In addition to the terms of our Agreement, your use of any Microsoft® software is governed by: (i) Microsoft's licence terms that appear at http://www.rackspace.com/information/legal/microsoftlicense.php, for client or redistributable software, (ii) Microsoft’s licence terms at http://www.rackspace.com/information/legal/microsoftlicensemobility for use of Microsoft software on the Rackspace Cloud under the licence mobility program, and (iii) any use restrictions on your use of the Microsoft software as indicated in your Order, such as a limitation on the number of users (a "SAL" licence).
WHO MAY USE THE SERVICES.
You may resell the Services, except as provided below or otherwise restricted by Rackspace. If you resell Services you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. If you resell any part of the Services that includes Microsoft software, then you must include those Microsoft terms described in Section 20 (Microsoft Software & License Mobility) above in a written agreement with your customers as well as the content of Section 25 (No High Risk Use). You may not resell the use of our Role Based Access Control services. Rackspace will provide support only to you, not to your customers, subsidiaries or Affiliates. There are no third party beneficiaries to the Agreement, meaning that your customers, subsidiaries, Affiliates, and other third parties do not have any rights against either of us under the Agreement.
CHANGES TO THE ACCEPTABLE USE POLICY.
22.1 We may change the Acceptable Use Policy to reflect changes in law, regulation or accepted industry practice. If we make a change to the AUP we will publish a revised version of the AUP at the URL referenced in the Country Specific Terms. The revised AUP will become effective as to you on the first to occur of:
22.1.1 the first day of a renewal term for the Agreement that begins at least thirty (30) days after the time that the revised AUP has been posted;
22.1.2 your execution of a new or additional Order for your account that incorporates the revised AUP by reference; or
22.1.3 thirty (30) days following our written notice to you of the revision to the AUP.
22.2 If your compliance with the revised AUP would adversely affect your use of the Services, and you give a written notice of your objection no later than thirty (30) days following the date that the revised AUP would otherwise have become effective as to you, we will not enforce the revision as to you until sixty (60) days following the date the revision would otherwise have become effective as to you, and you will continue to be subject to the prior version. During the sixty (60) day period, you may elect to terminate the Agreement on these grounds by giving written notice. We will not charge you an early termination fee for a termination on these grounds. If you do not elect to terminate during the sixty (60) day period, then the revised AUP will become effective as to you as of the end of the sixty (60) day period. If you terminate your Services under this Subsection, we may decide to waive that change as to you and keep your Agreement in place for the remainder of the term.
23.1 You agree to comply with the law relating to data protection, including the law described in the Country Specific Terms.
You agree that Rackspace may give its Affiliates and subcontractors access to personal data which you store through your use of the Services. For example, we may provide an Affiliate with access to the Services so that the Affiliate may provide support to you during our off business hours. Such Affiliate or subcontractor may be located outside of the country in which your Customer Data is hosted. We will provide access only to those subcontractors or Affiliates that meet the requirements stated below:
23.1.1 for personal data for which we are a “controller” under the Act, the Affiliate or subcontractor to whom we transfer the personal data (i) is located in a country for which the European Commission has made a positive finding of adequacy, or (ii) the Affiliate or subcontractor is located in the United States and has certified to the United States Department of Commerce that it adheres to the Safe Harbour framework developed by the United States Department of Commerce in coordination with the European Union or (iii) has signed the standard contractual model clauses for the transfer of personal data from either: (a) Rackspace to a processor, or (b) Rackspace to a controller who is based in a country outside the EEA that is not recognised as offering an adequate level of data protection; and
23.1.2 for personal data for which we are a “processor” under the Act, except for content delivery services as set forth in Section 36 (Content Delivery Services), the Affiliate or subcontractor that has access to the Hosted System has signed a data processing agreement with us. We have such an agreement in place with all our Affiliates including Rackspace US, Inc., and have posted a signed copy of that agreement at www.rackspace.co.uk/legal/subprocessing/.
Your routine communications regarding the Services, including any notice of non-renewal, should be sent to your Rackspace Cloud account team using your Rackspace Cloud control panel. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first-class post to:
Vice President International, Legal & Company Secretary
Unit 5 Millington Road
Hyde Park Hayes
Rackspace’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, first class post, or overnight courier, except that Rackspace may give notice of an amendment to the AUP by posting the notice on the Rackspace Cloud control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined above, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to the Rackspace Cloud control panel after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
NO HIGH RISK USE.
You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical support devices.
OWNERSHIP OF INTELLECTUAL PROPERTY.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Rackspace during the performance of the Services shall belong to Rackspace unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
OWNERSHIP OF OTHER PROPERTY.
You do not acquire any ownership interest in or right to possess the Hosted System, and you have no right of physical access to the Hosted System. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your Rackspace servers or other devices or media.
INTELLECTUAL PROPERTY INFRINGEMENT.
If Rackspace or any of its customers is faced with a credible claim that the Services infringe the intellectual property rights of a third party, and Rackspace is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Rackspace may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Rackspace in connection with Services, including pointing the DNS for your domain name(s) away from Rackspace Services. You agree that Rackspace may, as it determines necessary, make modifications to DNS records and zones on Rackspace managed or operated DNS servers and services.
SERVICES MANAGEMENT AGENT.
You agree that you will not interfere with any services management software agent(s) that Rackspace installs on your Services. Rackspace agrees that its agents will use only a minimal amount of computing resources, and will not interfere with your use of the Services. Rackspace will use the agents to track system information so that it can more efficiently manage various service issues. Your Services will become “Unsupported” as described in Section 40 (Unsupported Configuration Elements or Services) below if you disable or interfere with our services management software agent(s). You agree that Rackspace may access your Services to reinstall services management software agents if you disable them or interfere with their performance.
Neither party may assign the Agreement without the prior written consent of the other party except that Rackspace may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganisation or a sale of its business. Rackspace may use third party service providers to perform all or any part of the Services, but Rackspace remains responsible to you under this Agreement for Services performed by its third party service providers to the same extent as if Rackspace performed the Services itself.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner that suggests an endorsement or affiliation.
SERVICES PROVIDED BY THIRD PARTIES
Rackspace personnel may from time to time recommend third-party software or other products and services for your consideration and may also make available to you third-party products or services, including third-party applications through deployment or implementation tools. RACKSPACE MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM RACKSPACE. Your use of any such third-party products and services is governed by the terms of your agreement with the provider of those products and services.
Neither of us will be in breach of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labour action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
GOVERNING LAW AND JURISDICTION
Unless otherwise agreed, this Agreement is governed by the law and jurisdiction according to the following:
If your primary address is located in any country other than Australia, Hong Kong or the United States of America, the governing law described in Part B of the Country Specific Terms.
If your primary address is in Australia, the governing law described in Part A of the Country Specific Terms.
If your primary address is in the United States of America, the governing law described in Part C of the Country Specific Terms.
If your primary address is in Hong Kong, the governing law described in Part D of the Country Specific Terms.
SOME AGREEMENT MECHANICS.
36.1 Changes to the Terms on Website. These Cloud Terms of Service may have been incorporated in your Order by reference to a page on the Rackspace website. Although we may from time to time revise the Cloud Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Cloud Terms of Service posted on the effective date of the Order until the earlier of (i) your acceptance of any amended Cloud Terms of Service, (ii) your continued use of the Services after notice of any amended Terms of Service, or (iii) thirty days after the date Rackspace posts amended Terms of Service on the Rackspace website. In addition, if over time you sign multiple Orders for a single account, then the Cloud Terms of Service incorporated into the latest Order posted on the effective date of the latest Order will govern the entire account. Rackspace may accept or reject any Order you submit in its sole discretion. Rackspace’s provisioning of the Services described in an Order shall be Rackspace’s acceptance of the Order.
36.2 Modifications. An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorised individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
36.3 The Agreement constitutes the complete and exclusive agreement between the parties regarding the subject matter and supersedes and replaces any prior understanding or communication, written or oral. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of Rackspace which is not set out in the Agreement.
36.4 Order of Precedence. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Cloud Terms of Service, and the Acceptable Use Policy. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 1, 7, 17, 18, 19, 24, 26, 34 and 35 and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
36.5 No Waiver. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
36.6 Unenforceable Provisions. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the parties underlying the Agreement.
36.7 No Partnership. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other, and neither party has the right to bind the other to any agreement with a third party.
36.8 Changes Not Made Known. If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
36.9 The headings used in this Agreement are for reference only and form no part of the contract between you and Rackspace.
This Agreement is the complete and exclusive agreement between you and Rackspace regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
ADDITIONAL TERMS FOR ELECTED ADDITIONAL SERVICES
CONTENT DELIVERY SERVICES.
You acknowledge that content you distribute using our content delivery services: (i) may not be as secure as content stored on the Cloud. You should use our content delivery services only for content that you intend to distribute to the public via your website; and (ii) will be transferred to locations around the world which may include countries that do not provide an adequate level of protection required under the EU Data Protection Directive (Directive 95/46/EC) for transfers of Personal Data outside the European Economic Area. You agree that if you use our Content Delivery Network services to transfer PII, then such transfer is at your sole risk and, notwithstanding Sub-section 18.1 above, you agree to indemnify and hold harmless Rackspace for any loss (whether direct or indirect/consequential), damage, injury or other costs or expense, (including reasonable legal fees) suffered by Rackspace arising from your unlawful transfer of PII.
38.1 RackConnect is a hybrid solution that allows you to integrate your Rackspace Managed Hosting Services (“Managed Hosting Services”) with the Rackspace cloud services described hereunder. Your use of the RackConnect solution is subject to the following terms:
38.1.1 You are required to agree to a separate Hosting Services Agreement (the “HSA”) for your use of the Managed Hosting Services;
38.1.2 Your Managed Hosting Services must include at least one of the following devices: either 1) F5 Big IP local traffic manager, or 2) ASA5505 with Security Plus License firewall (or better) with at least 512 MB of RAM;
38.1.3 Your Managed Hosting Services solution must be in the same data centre as your Rackspace cloud services;
38.1.4 When utilising the RackConnect services, the bandwidth usage that you incur in the course of your use of the Rackspace cloud services shall be applied against your bandwidth allocation as set forth in your HSA. For clarity, the bandwidth charges of your Managed Hosting Services and the Rackspace cloud services shall be combined to form your cumulative monthly bandwidth usage (“Total Bandwidth Usage”). Any overages of bandwidth usage will be charged at the overage rate as set forth in your HSA; and
38.1.5 Billing for the Total Bandwidth Usage and any overages will be reflected on your Managed Hosting Services invoice.
If you use any services that have been designated as a “Beta” service, limited release, pilot test, early access programme, preview or similar designation, then your use of the services is subject to the relevant terms described in the Country Specific Terms.
UNSUPPORTED CONFIGURATION ELEMENTS OR SERVICES.
If you ask us to implement a configuration element (hardware or software) or cloud-related service in a manner that is not customary at Rackspace, or that is in “end of life” or “end of support” status we may designate the element or service as “unsupported”, “non-standard”, “best efforts”, “reasonable endeavours”, “one-off”, “EOL”, “End of Support”, or with like term (referred to in this Section as an “Unsupported Service”). Rackspace makes no representation or warranty whatsoever regarding the Unsupported Service, and you agree that Rackspace shall not be liable to you for any loss or damage arising from the provision of the Unsupported Service. Service Level Guarantees shall not apply to the Unsupported Service, or to any other aspect of the Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with Rackspace’s other services, such as backup or monitoring.
DOMAIN NAME REGISTRATION SERVICES.
If you register, renew or transfer a domain name through Rackspace, Rackspace will submit the request to its domain name services provider (the “Registrar”) on your behalf. Rackspace’s sole responsibility is to submit the request to the Registrar. Rackspace is not responsible for any errors, omissions or failures of the Registrar. Your use of domain name services is subject to the Registrar’s applicable legal terms and conditions. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any enquiries sent to you by the Registrar.
CLOUD SERVER IMAGES.
If you provision a Rackspace Cloud Server or other Service using a non-standard or non-Rackspace image or installation (even if such image is made available to you by Rackspace during configuration, provided that it is identified as such), then Rackspace shall have no obligation to provide Support for that Service, and any Support provided shall be on an AS IS basis.
43.1 Access. You may access your Mail Services over the web via the Rackspace Cloud control
panel, or via a Rackspace-provided API. Rackspace may modify its control panel or APIs at any time, or may transition to new APIs.
43.2 Management of the Service. Rackspace will provision your initial mail environment, but you are
otherwise responsible for managing your mail service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.
43.3 Filtering. Rackspace will provide email filtering services designed to filter spam, phishing scams,
and email infected with viruses. Rackspace recommends that you employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Email that is quarantined by the filtering system is excluded from the Service Level Agreements. Rackspace will use commercially reasonable efforts to deliver your email messages. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Rackspace and its employees, agents, Affiliates, and third party suppliers from any liability for damages arising from the failure of Rackspace’s filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s email service provider.
43.4 Memory Limitations. Mail that exceeds the storage limit when received may be permanently lost.
You may adjust the storage capacity of your individual mailboxes via the control panel, and it is your obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit of 50 MB (including attachments) may also be permanently lost.
43.5 Content Privacy. Your email messages and other items sent or received via the mail service will
include: (i) the content of the communication (“content”), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the “message routing data”). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Cloud Terms of Service. However, you agree that we may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that we may disclose message routing data to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
43.6 Usage Data. We collect and store information related to your use of the Services, such as use of
SMTP, POP3, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
43.7 Cloud Sites Mail Relays. You agree that if you utilise the Cloud Sites product offering, you will not send bulk or commercial e-mail to more than five-thousand (5,000) users per day, at a rate of two-hundred and fifty (250) messages every twenty minutes.
RACKSPACE API CODE SUPPORT.
If you use Rackspace API Code Support, then the addendum at http://www.rackspace.com/information/legal/apicodesupport as of the date you accept the Order for Rackspace API Code Support is part of the Agreement.
SERVICE OPTIMISATION AND CROWDED HOST PROCESS.
By using the Services, you agree that we may establish new procedures for your use of the Services as we deem necessary for the optimal performance of the Services. By using Cloud Servers, you also agree that we may migrate your data within the same data centre if we determine in our reasonable judgment that server migration is required to remediate service degradation or shared resource constraints. In each case we will give you reasonable advance notice and use all reasonable endeavors to minimise the effect that such change will have on your use of the Services.
ROLE-BASED ACCESS CONTROL
Your designated account administrator is responsible for role administration. You may self-manage role administration via the Rackspace Cloud Control panel or API. When making permission changes with our Role-Based Access Control services, there may be a delay before the implementation of changes, including self-managed changes. Rackspace is not responsible for any loss that may occur due to the delayed implementation of changes.
SCHEDULE 1: COUNTRY SPECIFIC TERMS
PART A: Services provided from Australia
If you have purchased Services that will be provided from data centres or other Rackspace facilities located in Australia, then the following terms shall form part of the Agreement.
The Agreement is governed by the law of New South Wales, Australia and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia except that Rackspace may seek to enforce any judgment anywhere in the world where you may have assets. Each of us agrees that it will not bring a claim under the Agreement more than two (2) years after the event giving rise to the claim occurred.
Service Level Agreements:
The Service Level Agreements described at Section 5 of the Agreement means those conditions and procedures at http://www.rackspace.com.au/company/legal-cloud-sla.php.
Australia Acceptable Use Policy
The Acceptable Use Policy at http://www.rackspace.com.au/legal/cloud-aup is incorporated in the Agreement by this reference and governs your use of any Services provided from Rackspace offices and/or data centres in Australia.
The security procedures described at Section 2 of the Agreement means the security procedures at http://www.rackspace.com/information/legal/securitypractices.php.
You agree that you will comply with the Australian Privacy Act 1988 (Cth - Australia) with respect to all personal information as defined under such law, collected, accessed, processed and used by you, and hosted by Rackspace, including making any required notifications to, or obtaining required consents from, third parties in relation to Rackspace hosting personal information in connection with the Services.
Australia Consumer Law
For the purposes of this section 6, “Australia Consumer Law” means Schedule 2 to the Competition and Consumer Act 2010 (Cth); “Non-excludable Rights” means a condition, warranty, right or guarantee implied by relevant legislation, including the Competition and Consumer Act 2010 (Cth), the exclusion of which from the Agreement would cause part or all of the Agreement to be void. Where Non-Excludable rights apply under Australia Consumer Law, Rackspace’s goods come with guarantees that cannot be excluded by Australia Consumer Law. You are entitled to a replacement or refund for a major failure, and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
The price index described in Section 9 of the Agreement means the All Groups Consumer Price Index as published by the Australian Bureau of Statistics.
The terms that relate to test services as described at Section 39 of the Agreement means those terms and conditions at http://www.rackspace.com.au/legal/beta-services.
The individual who submits an Order for Services warrants and represents that he or she does so on behalf of a business, company or other legal entity and not as a consumer. If the individual placing the Order is a consumer, Rackspace reserves the right to cancel the Order at any time at its sole discretion.
10.Prices applicable to Services
For the avoidance of doubt, any and all prices applicable to the Services are exclusive of Goods and Services Tax (GST).
PART B: Services provided from the United Kingdom
If you have purchased Services that will be provided from data centres or other Rackspace facilities located in the United Kingdom, then the following terms shall also form part of the Agreement.
The Agreement is governed by the English law and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts of England and Wales except that Rackspace may seek to enforce any judgment anywhere in the world where you may have assets. Each of us agrees that it will not bring a claim under the Agreement more than two (2) years after the event giving rise to the claim occurred.
Service Level Agreements:
The Service Level Agreements described at Section 5 of the Agreement means those conditions and procedures at :
Cloud Files: http://www.rackspace.co.uk/legal/cloudslafiles
Cloud Servers: http://www.rackspace.co.uk/legal/cloudslaservers
Cloud Load Balancers http://www.rackspace.co.uk/legal/cloud-load-balancers-sla/
Cloud Databases http://www.rackspace.co.uk/legal/cloud-databases-sla
Cloud Monitoring http://www.rackspace.co.uk/legal/cloud-monitoring-sla/
Cloud Block Storage http://www.rackspace.co.uk/legal/cloud-block-storage-sla/
Cloud Big Data Platform http://www.rackspace.co.uk/legal/cloud-big-data-platform
You agree that you will comply with the Data Protection Act (1998) with respect to all personal data collected, accessed, processed and used by you, and hosted by Rackspace, including making any required notifications to, or obtaining required consents from, third parties in relation to Rackspace hosting personal data in connection with the Services.
Acceptable Use Policy
The Acceptable Use Policy at http://www.rackspace.co.uk/legal/cloud-aup/ is incorporated into the Agreement by this reference and governs your use of any Services provided from Rackspace offices and/or data centres in the United Kingdom.
The security procedures described at Section 2 of the Agreement means those security procedures described at http://www.rackspace.co.uk/legal/security-services/.
The price index described in Section 9 of the Agreement means the Consumer Price Index as published by the National Office for Statistics.
The terms that relate to test services as described at Section 39 of the Agreement means those terms and conditions at http://www.rackspace.co.uk/legal/betaservices/.
The individual who submits an Order for Services warrants and represents that he or she does so on behalf of a business, company or other legal entity and not as a consumer. If the individual placing the Order is a consumer, Rackspace reserves the right to cancel the Order at any time at its sole discretion.
9.Prices applicable to Services
For the avoidance of doubt, any and all prices applicable to the Services are exclusive of Value Added Tax (VAT).
Part C: Services provided from United States of America
If you have purchased Services that will be provided from data centres or other Rackspace facilities located in the United States, then the following terms shall also form part of the Agreement.
In addition to the Disclaimers set forth in Section 15, to the maximum extext permitted by law, we disclaim the implied warranty of merchantability and any warranty of noninfringement.
Limitation on Remedies
The limitations on damages set forth in Section 18.2 and limitation on remedy for Service Level Agreement failures set forth in Section 18.3 shall also exclude claims based on willful misconduct.
3. Governing law
The Agreement is governed by the laws of the State of Texas, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the city in which you reside. The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA") in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from the AAA or a comparable arbitration service, and who is selected pursuant to the applicable rules of the AAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favor. Each of us waives any right to a trial by jury, and agrees that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Service Level Agreements
The Service Level Agreements described at Section 5 of the Agreement means those conditions and procedures at http://www.rackspace.com/information/legal/cloud/sla.
Acceptable Use Policy.
The Acceptable Use Policy at http://www.rackspace.com/information/legal/aup is incorporated into the Agreement by this reference and governs your use of any Services provided from Rackspace data centres in the United States.
The security procedures described at Section 2 of the Agreement means those security procedures at http://www.rackspace.com/information/legal/securitypractices.php.
The price index described in Section 9 of the Agreement means the Producer Price Index for Finished Goods, WPUSOP3000, not seasonally adjusted, and first published as “preliminary” data by the United States Bureau of Labor Statistics in its PPI Detailed Report or successor publication.
The terms that relate to test services as described at Section 39 of the Agreement means those terms and conditions at http://www.rackspace.com/information/legal/testterms.php.
The term “PII” also includes any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1§ 6809(4), and (iii) "protected health information" as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.
Part D: Services provided from Hong Kong
If you have purchased Services that will be provided from data centres or other Rackspace facilities located in Hong Kong, then the following terms shall also form part of your Agreement with Rackspace.
The Agreement is governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”) and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts of Hong Kong except that Rackspace may seek to enforce any judgment anywhere in the world where you may have assets. Each of us agrees that it will not bring a claim under the Agreement more than two (2) years after the event giving rise to the claim occurred.
Service Level Agreements
The Service Level Agreements described at Section 5 of the Agreement means those conditions and procedures at http://www.rackspace.com.hk/legal/cloud-sla.
Hong Kong Acceptable Use Policy
The Acceptable Use Policy at http://www.rackspace.com.hk/legal/cloud-aup is incorporated into the Agreement by this reference and governs your use of any Services provided from Rackspace offices and/or data centres in Hong Kong.
The security procedures described at section 2 of the Agreement means those security procedures at http://www.rackspace.com/information/legal/securitypractices.php
You agree that you will comply with the Personal Data (Privacy) Ordinance (Cap. 486 of laws of Hong Kong) (“PDPO”) with respect to all the personal data (as defined by the PDPO) (“Personal Data”) collected, accessed, processed and used by you, and hosted by Rackspace, including making any required notifications to, or obtaining required consents from, third parties in relation to Rackspace hosting Personal Data in connection with the Services.
If Rackspace requests Personal Data from you, you may decline to provide the Personal Data but in that event Rackspace may decline to provide the Service to you.
The price index described in section 9 of the Agreement means the Consumer Price Index as published by the Hong Kong Census and Statistics Department.
The individual who submits an Order for Services warrants and represents that he or she does so on behalf of a business, company or other legal entity and not as a consumer. If the individual placing the Order is a consumer, Rackspace reserves the right to cancel the Order at any time at its sole discretion.
8.Prices applicable to Services
For the avoidance of doubt, any and all prices applicable to the Services are exclusive of tax.