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CLOUD TERMS OF SERVICE between Rackspace Ltd (“we“ or “Rackspace”) and the customer who orders Rackspace® services (“you” or “Customer”).
THE AGREEMENT. Your use of the Rackspace cloud services (the “Rackspace Cloud”) is governed by these Terms of Service, the Rackspace Acceptable Use Policy, and the terms of your Order. When we use the term “Agreement” in any of the Order, Terms of Service, or Acceptable Use Policy we are referring collectively to all of them. Sections 1 – 30 of these Terms of Service state the general terms applicable to all Cloud Services, and Sections 31 – 33 state additional terms that will apply only if you elect to purchase the particular services described in those sections. The individual who submits an Order does so on behalf of a company or other legal entity and warrants and represents that he or she is not a consumer. The individual further warrants and represents that he or she has authority to bind that company or legal entity to the Agreement.
GENERAL TERMS APPLICABLE TO ALL CLOUD SERVICES
1. Defined Terms
2. Rackspace’s Obligations
3. Your Obligations
4. Access to the Services
5. Service Level Agreements
6. Term
7. Fees
8. Fee Increases
9. Suspension
10. Termination for Convenience
11. Termination for Breach
12. Access to Data
13. Unauthorised Access to Your Data or Use of the Services
14. Promises We Do Not Make
15. Export Matters
16. Confidential Information
17. Limitation on Damages
18. Indemnification
19. Microsoft® Software
20. Who May Use the Service
21. Changes to the Acceptable Use Policy
22. Data Protection
23. Notices
24. No High Risk Use
25. Ownership of Intellectual Property
26. IP Addresses
27. Ownership of Other Property
28. Intellectual Property Infringement
29. Assignment/Subcontractors
30. Publicity
31. Force Majeure
32. Governing Law, Lawsuits
33. Some Agreement Mechanics
ADDITIONAL TERMS FOR ELECTED ADDITIONALSERVICES
34. Content Delivery Services
35. RackConnect
36. Beta Services
1. DEFINED TERMS.
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Acceptable Use Policy posted at www.rackspace.co.uk/rackspace-home/legal/aup/ as of the date you submit the Order.
“Affiliate” means a subsidiary or holding company of either party to this Agreement and any subsidiary of such holding company (where “holding company” and “subsidiary” have the meanings set out in section 1159 of the Companies Act 2006).
“Business Day” means 8:00 a.m. – 5:00 p.m. Monday to Friday, excluding public holidays in the United Kingdom.
“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) for you, all information transmitted to or from, or stored on, the Rackspace Cloud system, (ii) for Rackspace, unpublished prices and other terms of service, audit and security reports, product development plans, 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 (iii) for both of us, 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.
“Order” means either: (i) the online order that you submit to Rackspace via the Rackspace website, or (ii) any other written order (either in electronic or paper form) provided to you by Rackspace for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
“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 number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other “Personal Data” or “Special Categories of Data” as defined in the Directive 95/46/EC and the Data Protection Act 1998.
“Services” means those services described in the Order.
2. RACKSPACE’S OBLIGATIONS.
Rackspace’s obligations to begin providing Services to you is contingent on your satisfication of Rackspace’s credit approval criteria and subject to these Terms of Service. Rackspace agrees to follow security procedures at least as stringent, in Rackspace’s reasonable judgment, as those described at www.rackspace.co.uk/legal/securityservices/.
2.2 Rackspace Cloud Servers with a Managed Service Level. If you purchase Rackspace Cloud Servers with a Managed Service Level, then Rackspace live support will be available to you 24 hours per day, 7 days a week, year round. You may request support by opening a support ticket, or a one-on-one chat, via your Rackspace Cloud Control Panel or by calling your Rackspace Cloud Servers with a Managed Service Level account team.
2.3 Monitoring and Response If you purchase Rackspace Cloud Servers with a Managed Service Level then Rackspace will provide the following monitoring and response services:
2.3.1 Availability Monitoring. Rackspace will monitor up to 2 TCP ports (HTTP, HTTPS, SMTP, POP3, etc.) per server for service availability. General server availability is tested every one (1) minute via ping. You will be alerted via ticket if port or ping monitors fail three consecutive times. You may also configure monitoring for one URL’s content. Port and URL content checks are done every five (5) minutes.
2.3.2 Fault Monitoring. Rackspace monitors status events on servers and network devices including network availability, and backup success/failure.
2.3.3 Notification of Monitoring Alerts. We will notify you of monitoring alerts.
3. YOUR OBLIGATIONS.
You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy, (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in connection with your use of the Services, (iv) cooperate with Rackspace’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date via the online control panel, and (vi) 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.
4. ACCESS TO THE SERVICES.
You may access the Services via the online control panel, or via a Rackspace-provided Application Programming Interface (the “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.
5. SERVICE LEVEL AGREEMENTS.
The Service Level Agreement(s) listed below are part of this Agreement for those Services you are buying:
Cloud Files: www.rackspace.co.uk/legal/cloudslafiles
Cloud Servers: www.rackspace.co.uk/legal/cloudslaservers
Cloud Load Balancers: http://www.rackspace.co.uk/legal/cloud-load-balancers-sla/
6. TERM.
The initial term for each order begins on the date we make the Services available for your use and shall continue in effect until the Agreement has been terminated by either party as provided hereunder. 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 Terms of Service, excluding the service level agreement, shall continue to apply during such period.
7. FEES.
Rackspace will charge you the fees stated in your Order. Unless you have made other arrangements, Rackspace will charge your credit card without invoice provided that Rackspace may wait to charge your credit card until the total aggregate fees due are at least ten pounds sterling (£10). 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. All fees are stated and will be charged in pounds sterling. Any “credit” that we may owe you, such as a credit for failure to meet a service level guarantee, 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.
8. TAXES ON SERVICES
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.
8. FEE INCREASES.
If there is an increase in the Consumer Price Index as published by the Office for National Statistics over the Consumer Price Index reported for the month in which you signed your Order, we may increase your fees at any time during the term by the same percentage as the increase in the Consumer Price Index on forty five (45) days notice 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.
9. SUSPENSION.
9.1 We may suspend Services without liability if:
9.1.1 we reasonably believe that the Services are being used in breach of the Agreement;
9.1.2 you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement;
9.1.3 there is an attack on your Hosted System or your Hosted System is accessed or manipulated by a third party without your consent;
9.1.4 we are required by law or a regulatory or government body to suspend your Services; or
9.1.5 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.
9.2 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 your Hosted System is compromised, then you must address the vulnerability prior to Rackspace placing the Hosted System 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.
10. TERMINATION FOR CONVENIENCE.
You may terminate the Agreement for convenience at any time. You must follow Rackspace’s non-renewal process accessible via the online control panel in order to give an effective notice of termination.
11. TERMINATION FOR BREACH.
11.1 You may terminate the Agreement for breach if we:
11.1.1. 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;
11.1.2. fail to meet The Fanatical Support PromiseTM (subject to the conditions and procedures described at www.rackspace.co.uk/honour/; or
11.1.3. 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.
11.2 We may terminate the Agreement for breach if:
11.2.1. we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete;
11.2.2. the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
11.2.3. 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;
11.2.4 you have made payment arrangements via credit card or other third party, and the third party refuses to honour our charges;
11.2.5. 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;
11.2.6. you breach the AUP more than once even if you remedy each breach; or
11.2.7. your agreement for any other Rackspace service is terminated for breach of the acceptable use policy applicable to that service.
11.3 Either of us may terminate the Agreement if the other is unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or contravenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts.
12. ACCESS TO DATA.
12.1 You will not have access to your data stored on the Rackspace Cloud system during a suspension or following termination.
12.2 We backup the Rackspace Cloud systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups may not be available to you or, if available, may not be useful to you outside of the Rackspace Cloud systems.
12.3 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.
13. UNAUTHORISED ACCESS TO YOUR DATA OR USE OF THE SERVICES.
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. PROMISES WE DO NOT MAKE.
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, Confidential Information, and property. Rackspace has no obligation to provide security other than as stated in this Agreement. 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. The Services are provided AS IS. 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..
15. EXPORT MATTERS.
You may 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, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United Kingdom export regulations.
16. CONFIDENTIAL INFORMATION.
16.1 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:
16.1.1 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 Terms of Service;
16.1.2 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;
16.1.3 as required by law; or
16.1.4 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.
17. LIMITATION ON DAMAGES.
17.1 Subject to clause 17.2, but without prejudice to your right to service credits under the applicable Service Level Agreement:
17.1.1 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).
17.1.2 neither of us (nor any of our employees, agents, affiliates, or suppliers) shall be liable to the other for:
17.1.2.1 any indirect, special, incidental or consequential loss or damages of any kind;
17.1.2.2 any loss of profit;
17.1.2.3 any loss of business;
17.1.2.4 any loss of data;
17.1.2.5 any anticipated savings or revenue; or
17.1.2.6 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.
17.2 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:
17.2.1 death or personal injury caused by its negligence; and
17.2.2 any fraud or fraudulent misrepresentation.
17.3 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.
18. INDEMNIFICATION.
18.1 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 15 (Export Matters) of these 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.
18.2 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.
19. MICROSOFT SOFTWARE & LICENSE MOBILITY.
In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft’s license terms that appear at www.rackspace.com/information/legal/microsoftlicense.php.
If you make use of Microsoft software on the Services which is not provided by Rackspace, then you represent and warrant that you have a written license agreement which permits you to use the Microsoft software in conjunction with the Services. You agree that you will provide Rackspace with evidence of such licensing as Rackspace may reasonably require prior to the commencement of the Services, and from time to time as necessary to update the status of the license. If you fail to provide the required evidence of licensing Rackspace may, at its option, either (i) suspend the Services that were to include such software until the evidence is provided, (ii) provide the Services in reliance on Rackspace's licensing agreement with the vendor, and charge you its standard fee for the use of the software until such time as the required evidence is provided, or (iii) suspend or terminate this Agreement.
If you wish to exercise License Mobility through Software Assurance rights, you must execute the Mobility Verification Form located at www.microsoft.com/licensing/software-assurance/license-mobility.aspx or at its sucessor site, and submit it to Microsoft for verification within 10 days of your deployment of such Microsoft software. Licenses under the License Mobility through Software Assurance program must remain on Rackspace’s shared servers within a single Data Center for no less than 90 days. You may not reassign a particular license within 90 days of the last assignment.
You must cooperate with Rackspace in the event that Microsoft requests Rackspace’s participation in an audit of the software services. You agree that Rackspace can provide Microsoft with (a) the number of Windows Virtual Machine instances provided to you by Rackspace (b) a list of the Microsoft software products which run in such Windows Virtual Machine instances and (c) all copies of your validated Mobility Verification Forms. If Microsoft determines that you are non-compliant with the program requirements for License Mobility through Software Assurance and you do not cure the non-compliance within a time period specified by Microsoft, then Rackspace may terminate this Agreement, the provision of any or all Services to you, or both.
.
20. WHO MAY USE THE SERVICE.
You may resell the Services, but 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 these Microsoft terms described in Section 19 (Microsoft Software) above in a written agreement with your customers as well as the content of Section 24 (No High Risk Use). 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.
21. CHANGES TO THE ACCEPTABLE USE POLICY.
21.1 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 www.rackspace.co.uk/rackspace-home/legal/aup/. The revised AUP will become effective as to you on the first to occur of:
21.1.1 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;
21.1.2 your execution of a new or additional agreement for all or part of your Hosted System that incorporates the revised AUP by reference; or
21.1.3 thirty (30) days following our written notice to you of the revision to the AUP.
21.2 If your compliance with the revised AUP would adversely affect your use of the Hosting 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.
22. DATA PROTECTION
22.1 Each of us agrees to comply with our respective obligations under the Data Protection Act 1998 (the “Act”) as applicable to personal data that it controls or processes as part of, or in connection with, its use or provision of the Services. Specifically, but without limitation, you must comply with the Act as it relates to personal data that you store or transfer in your use of the Services. You agree that, subject to the requirements of this paragraph and Rackspace’s obligations stated in Section 27 (Assignment,Subcontractors), Rackspace may give its affiliates and subcontractors outside of the European Economic Area (EEA) access to personal data you store through your use of the Services. For example, we may provide our US affiliates with access to the Services so that the US affiliate may provide support to you during our out of office hours in the UK.
We agree that we will not provide access to personal data that you store through the Services to any subcontractor or affiliate outside of the EEA unless that person meets the requirements stated below during the entire time that it has access to the personal data:
22.1.1 for personal data for which we are a “controller” under the Act, the affiliate or subcontractor to whom we transfer the personal data is either (i) 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, and
22.1.2 for personal data for which we are a “processor” under the Act, except for content delivery services as set forth in Section 31, 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 Rackspace US, Inc., and have posted a signed copy of that agreement at www.rackspace.co.uk/legal/subprocessing/.
23. NOTICES.
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:
legalnotice@rackspace.co.uk
Vice President International, Legal & Company Secretary
Rackspace Limited
Unit 5 Millington Road
Hyde Park Hayes
Hayes
UB3 4AZ
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 your 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 your 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. IP ADDRESSES.
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.
29. ASSIGNMENT/SUBCONTRACTORS
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.
30. PUBLICITY
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.
31. FORCE MAJEURE
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.
32. GOVERNING LAW, LAWSUITS
The Agreement is governed by English law and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts in England and Wales except that Racksapce may seek to enforce any judgment anywhere in the world where you may have assets. Each of us agrees that we will not bring a claim under the Agreement more than two (2) years after the time that the claim accrued.
33. SOME AGREEMENT MECHANICS
33.1 Changes to the Terms on Website. These 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 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 Terms of Service posted on the effective date of the Order. However, any amended Terms of Service will become effective on the first day of the renewal period that follows the date that the new Terms of Service were posted by at least thirty (30) days. In addition, if over time you sign multiple Orders for a single account, then the Terms of Service incorporated in 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.
33.2 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.
33.3 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, 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, 10, 16, 17, 18, 22, 24, 31, 32, 36 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.
33.4 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.
33.5 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.
33.6 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.
33.7 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.
33.8 Counterparts. Where the Order is made in an electronic or written form, the Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
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 ADDITIONALSERVICES
34. 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 CDN services to transfer PII, then such transfer is at your sole risk and, notwithstanding clause 17.1 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.
35. RackConnect
35.1 RackConnect is a hybrid solution that allows you to integrate your Rackspace Managed Hosting Services (“Managed Hosting Services”) with the Cloud Services described hereunder. Your use of the RackConnect solution is subject to the following terms:
35.2.1 You are required to agree to a separate Hosting Services Agreement (the “HSA”) for your use of the Managed Hosting Services;
35.1.2 Your Managed Hosting Services must include the following devices: either 1) F5 Big IP local traffic manager, or 2) ASA5510 firewall (or better) with at least 512 MB of RAM;
35.1.3 Your Managed Hosting Services solution must be in the same data centre as your Cloud Services;
35.1.3 When utilizing the RackConnect services, the bandwidth usage that you incur in the course of your use of the 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 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
35.1.4 Billing for the Total Bandwidth Usage and any overages will be reflected on your Managed Hosting Services invoice.
36. BETA SERVICES.
36.1 If you elect to participate in any beta test of a Rackspace Service (a “Beta Service”), then your use of the Beta Service is subject to the following terms:
36.1.1 You acknowledge that the Beta Service is a pre-release version and may not work properly.
36.1.2 You acknowledge that your use of the Beta Service may expose you to unusual risks of operational failures.
361.3 You should not use the pre-release version of the Beta Service in a live production environment. You must not use the Beta Service in any hazardous environments, life support, or weapons systems.
36.1.4 We may terminate the Beta Service at any time, in our sole discretion.
36.1.5 The commercially released version of the Beta Service may change substantially from the pre-release version, and programs that use or run with the pre-release version may not work with the commercial release or subsequent releases.
36.1.6 You are not entitled to any service level credits under our service level guarantees for downtime or other problems that may result from your testing.
36.1.7 During the beta test we will provide support for your use of the Beta Service only during our Business Hours, and not 24x7 as with our standard services.
36.1.8 You agree to provide prompt feedback regarding your experience with the Beta Service in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You agree that we may use your feedback for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your testing of the Beta Service shall be owned exclusively by Rackspace.
36.1.9 You agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Service, is “Confidential Information” of Rackspace, as defined in these Terms of Service, and may not be disclosed to a third party or used for any purpose other than providing feedback to Rackspace.
36.2 The Beta Service is provided "AS IS" with no warranty whatsoever.To the extent permitted by applicable law, Rackspace disclaims any and all warranties with respect to the Beta Service including the implied warranties relating to satisfactory quality and fitness for a particular purpose.
36.3. Subject to clause 36.4 and 36.5 below, 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 Beta Service 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).
36.4 Neither of us (nor any of our employees, agents, affiliates, or suppliers) shall be liable to the other for:
36.4.1 any indirect, special, incidental or consequential loss or damages of any kind;
36.4.2 any loss of profit;
36.4.3 any loss of business;
36.4.4 any loss of data;
36.4.5 any anticipated savings or revenue; or
36.4.6 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.
36.5 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:
36.5.1 death or personal injury caused by its negligence; and
36.5.2 any fraud or fraudulent misrepresentation.
5 December 2011
THE AGREEMENT. Your use of the Rackspace cloud services (the “Rackspace Cloud”) is governed by these Terms of Service, the Rackspace Acceptable Use Policy, and the terms of your Order. When we use the term “Agreement” in any of the Order, Terms of Service, or Acceptable Use Policy we are referring collectively to all of them. Sections 1 – 30 of these Terms of Service state the general terms applicable to all Cloud Services, and Sections 31 – 33 state additional terms that will apply only if you elect to purchase the particular services described in those sections. The individual who submits an Order does so on behalf of a company or other legal entity and warrants and represents that he or she is not a consumer. The individual further warrants and represents that he or she has authority to bind that company or legal entity to the Agreement.
GENERAL TERMS APPLICABLE TO ALL CLOUD SERVICES
1. Defined Terms
2. Rackspace’s Obligations
3. Your Obligations
4. Access to the Services
5. Service Level Agreements
6. Term
7. Fees
8. Fee Increases
9. Suspension
10. Termination for Convenience
11. Termination for Breach
12. Access to Data
13. Unauthorised Access to Your Data or Use of the Services
14. Promises We Do Not Make
15. Export Matters
16. Confidential Information
17. Limitation on Damages
18. Indemnification
19. Microsoft® Software
20. Who May Use the Service
21. Changes to the Acceptable Use Policy
22. Data Protection
23. Notices
24. No High Risk Use
25. Ownership of Intellectual Property
26. IP Addresses
27. Ownership of Other Property
28. Intellectual Property Infringement
29. Assignment/Subcontractors
30. Publicity
31. Force Majeure
32. Governing Law, Lawsuits
33. Some Agreement Mechanics
ADDITIONAL TERMS FOR ELECTED ADDITIONALSERVICES
34. Content Delivery Services
35. RackConnect
36. Beta Services
1. DEFINED TERMS.
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Acceptable Use Policy posted at www.rackspace.co.uk/rackspace-home/legal/aup/ as of the date you submit the Order.
“Affiliate” means a subsidiary or holding company of either party to this Agreement and any subsidiary of such holding company (where “holding company” and “subsidiary” have the meanings set out in section 1159 of the Companies Act 2006).
“Business Day” means 8:00 a.m. – 5:00 p.m. Monday to Friday, excluding public holidays in the United Kingdom.
“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) for you, all information transmitted to or from, or stored on, the Rackspace Cloud system, (ii) for Rackspace, unpublished prices and other terms of service, audit and security reports, product development plans, 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 (iii) for both of us, 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.
“Order” means either: (i) the online order that you submit to Rackspace via the Rackspace website, or (ii) any other written order (either in electronic or paper form) provided to you by Rackspace for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
“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 number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other “Personal Data” or “Special Categories of Data” as defined in the Directive 95/46/EC and the Data Protection Act 1998.
“Services” means those services described in the Order.
2. RACKSPACE’S OBLIGATIONS.
Rackspace’s obligations to begin providing Services to you is contingent on your satisfication of Rackspace’s credit approval criteria and subject to these Terms of Service. Rackspace agrees to follow security procedures at least as stringent, in Rackspace’s reasonable judgment, as those described at www.rackspace.co.uk/legal/securityservices/.
2.2 Rackspace Cloud Servers with a Managed Service Level. If you purchase Rackspace Cloud Servers with a Managed Service Level, then Rackspace live support will be available to you 24 hours per day, 7 days a week, year round. You may request support by opening a support ticket, or a one-on-one chat, via your Rackspace Cloud Control Panel or by calling your Rackspace Cloud Servers with a Managed Service Level account team.
2.3 Monitoring and Response If you purchase Rackspace Cloud Servers with a Managed Service Level then Rackspace will provide the following monitoring and response services:
2.3.1 Availability Monitoring. Rackspace will monitor up to 2 TCP ports (HTTP, HTTPS, SMTP, POP3, etc.) per server for service availability. General server availability is tested every one (1) minute via ping. You will be alerted via ticket if port or ping monitors fail three consecutive times. You may also configure monitoring for one URL’s content. Port and URL content checks are done every five (5) minutes.
2.3.2 Fault Monitoring. Rackspace monitors status events on servers and network devices including network availability, and backup success/failure.
2.3.3 Notification of Monitoring Alerts. We will notify you of monitoring alerts.
3. YOUR OBLIGATIONS.
You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy, (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in connection with your use of the Services, (iv) cooperate with Rackspace’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date via the online control panel, and (vi) 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.
4. ACCESS TO THE SERVICES.
You may access the Services via the online control panel, or via a Rackspace-provided Application Programming Interface (the “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.
5. SERVICE LEVEL AGREEMENTS.
The Service Level Agreement(s) listed below are part of this Agreement for those Services you are buying:
Cloud Files: www.rackspace.co.uk/legal/cloudslafiles
Cloud Servers: www.rackspace.co.uk/legal/cloudslaservers
Cloud Load Balancers: http://www.rackspace.co.uk/legal/cloud-load-balancers-sla/
6. TERM.
The initial term for each order begins on the date we make the Services available for your use and shall continue in effect until the Agreement has been terminated by either party as provided hereunder. 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 Terms of Service, excluding the service level agreement, shall continue to apply during such period.
7. FEES.
Rackspace will charge you the fees stated in your Order. Unless you have made other arrangements, Rackspace will charge your credit card without invoice provided that Rackspace may wait to charge your credit card until the total aggregate fees due are at least ten pounds sterling (£10). 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. All fees are stated and will be charged in pounds sterling. Any “credit” that we may owe you, such as a credit for failure to meet a service level guarantee, 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.
8. TAXES ON SERVICES
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.
8. FEE INCREASES.
If there is an increase in the Consumer Price Index as published by the Office for National Statistics over the Consumer Price Index reported for the month in which you signed your Order, we may increase your fees at any time during the term by the same percentage as the increase in the Consumer Price Index on forty five (45) days notice 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.
9. SUSPENSION.
9.1 We may suspend Services without liability if:
9.1.1 we reasonably believe that the Services are being used in breach of the Agreement;
9.1.2 you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement;
9.1.3 there is an attack on your Hosted System or your Hosted System is accessed or manipulated by a third party without your consent;
9.1.4 we are required by law or a regulatory or government body to suspend your Services; or
9.1.5 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.
9.2 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 your Hosted System is compromised, then you must address the vulnerability prior to Rackspace placing the Hosted System 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.
10. TERMINATION FOR CONVENIENCE.
You may terminate the Agreement for convenience at any time. You must follow Rackspace’s non-renewal process accessible via the online control panel in order to give an effective notice of termination.
11. TERMINATION FOR BREACH.
11.1 You may terminate the Agreement for breach if we:
11.1.1. 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;
11.1.2. fail to meet The Fanatical Support PromiseTM (subject to the conditions and procedures described at www.rackspace.co.uk/honour/; or
11.1.3. 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.
11.2 We may terminate the Agreement for breach if:
11.2.1. we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete;
11.2.2. the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
11.2.3. 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;
11.2.4 you have made payment arrangements via credit card or other third party, and the third party refuses to honour our charges;
11.2.5. 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;
11.2.6. you breach the AUP more than once even if you remedy each breach; or
11.2.7. your agreement for any other Rackspace service is terminated for breach of the acceptable use policy applicable to that service.
11.3 Either of us may terminate the Agreement if the other is unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or contravenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts.
12. ACCESS TO DATA.
12.1 You will not have access to your data stored on the Rackspace Cloud system during a suspension or following termination.
12.2 We backup the Rackspace Cloud systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups may not be available to you or, if available, may not be useful to you outside of the Rackspace Cloud systems.
12.3 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.
13. UNAUTHORISED ACCESS TO YOUR DATA OR USE OF THE SERVICES.
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. PROMISES WE DO NOT MAKE.
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, Confidential Information, and property. Rackspace has no obligation to provide security other than as stated in this Agreement. 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. The Services are provided AS IS. 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..
15. EXPORT MATTERS.
You may 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, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United Kingdom export regulations.
16. CONFIDENTIAL INFORMATION.
16.1 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:
16.1.1 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 Terms of Service;
16.1.2 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;
16.1.3 as required by law; or
16.1.4 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.
17. LIMITATION ON DAMAGES.
17.1 Subject to clause 17.2, but without prejudice to your right to service credits under the applicable Service Level Agreement:
17.1.1 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).
17.1.2 neither of us (nor any of our employees, agents, affiliates, or suppliers) shall be liable to the other for:
17.1.2.1 any indirect, special, incidental or consequential loss or damages of any kind;
17.1.2.2 any loss of profit;
17.1.2.3 any loss of business;
17.1.2.4 any loss of data;
17.1.2.5 any anticipated savings or revenue; or
17.1.2.6 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.
17.2 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:
17.2.1 death or personal injury caused by its negligence; and
17.2.2 any fraud or fraudulent misrepresentation.
17.3 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.
18. INDEMNIFICATION.
18.1 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 15 (Export Matters) of these 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.
18.2 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.
19. MICROSOFT SOFTWARE & LICENSE MOBILITY.
In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft’s license terms that appear at www.rackspace.com/information/legal/microsoftlicense.php.
If you make use of Microsoft software on the Services which is not provided by Rackspace, then you represent and warrant that you have a written license agreement which permits you to use the Microsoft software in conjunction with the Services. You agree that you will provide Rackspace with evidence of such licensing as Rackspace may reasonably require prior to the commencement of the Services, and from time to time as necessary to update the status of the license. If you fail to provide the required evidence of licensing Rackspace may, at its option, either (i) suspend the Services that were to include such software until the evidence is provided, (ii) provide the Services in reliance on Rackspace's licensing agreement with the vendor, and charge you its standard fee for the use of the software until such time as the required evidence is provided, or (iii) suspend or terminate this Agreement.
If you wish to exercise License Mobility through Software Assurance rights, you must execute the Mobility Verification Form located at www.microsoft.com/licensing/software-assurance/license-mobility.aspx or at its sucessor site, and submit it to Microsoft for verification within 10 days of your deployment of such Microsoft software. Licenses under the License Mobility through Software Assurance program must remain on Rackspace’s shared servers within a single Data Center for no less than 90 days. You may not reassign a particular license within 90 days of the last assignment.
You must cooperate with Rackspace in the event that Microsoft requests Rackspace’s participation in an audit of the software services. You agree that Rackspace can provide Microsoft with (a) the number of Windows Virtual Machine instances provided to you by Rackspace (b) a list of the Microsoft software products which run in such Windows Virtual Machine instances and (c) all copies of your validated Mobility Verification Forms. If Microsoft determines that you are non-compliant with the program requirements for License Mobility through Software Assurance and you do not cure the non-compliance within a time period specified by Microsoft, then Rackspace may terminate this Agreement, the provision of any or all Services to you, or both.
.
20. WHO MAY USE THE SERVICE.
You may resell the Services, but 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 these Microsoft terms described in Section 19 (Microsoft Software) above in a written agreement with your customers as well as the content of Section 24 (No High Risk Use). 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.
21. CHANGES TO THE ACCEPTABLE USE POLICY.
21.1 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 www.rackspace.co.uk/rackspace-home/legal/aup/. The revised AUP will become effective as to you on the first to occur of:
21.1.1 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;
21.1.2 your execution of a new or additional agreement for all or part of your Hosted System that incorporates the revised AUP by reference; or
21.1.3 thirty (30) days following our written notice to you of the revision to the AUP.
21.2 If your compliance with the revised AUP would adversely affect your use of the Hosting 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.
22. DATA PROTECTION
22.1 Each of us agrees to comply with our respective obligations under the Data Protection Act 1998 (the “Act”) as applicable to personal data that it controls or processes as part of, or in connection with, its use or provision of the Services. Specifically, but without limitation, you must comply with the Act as it relates to personal data that you store or transfer in your use of the Services. You agree that, subject to the requirements of this paragraph and Rackspace’s obligations stated in Section 27 (Assignment,Subcontractors), Rackspace may give its affiliates and subcontractors outside of the European Economic Area (EEA) access to personal data you store through your use of the Services. For example, we may provide our US affiliates with access to the Services so that the US affiliate may provide support to you during our out of office hours in the UK.
We agree that we will not provide access to personal data that you store through the Services to any subcontractor or affiliate outside of the EEA unless that person meets the requirements stated below during the entire time that it has access to the personal data:
22.1.1 for personal data for which we are a “controller” under the Act, the affiliate or subcontractor to whom we transfer the personal data is either (i) 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, and
22.1.2 for personal data for which we are a “processor” under the Act, except for content delivery services as set forth in Section 31, 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 Rackspace US, Inc., and have posted a signed copy of that agreement at www.rackspace.co.uk/legal/subprocessing/.
23. NOTICES.
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:
legalnotice@rackspace.co.uk
Vice President International, Legal & Company Secretary
Rackspace Limited
Unit 5 Millington Road
Hyde Park Hayes
Hayes
UB3 4AZ
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 your 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 your 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. IP ADDRESSES.
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.
29. ASSIGNMENT/SUBCONTRACTORS
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.
30. PUBLICITY
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.
31. FORCE MAJEURE
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.
32. GOVERNING LAW, LAWSUITS
The Agreement is governed by English law and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts in England and Wales except that Racksapce may seek to enforce any judgment anywhere in the world where you may have assets. Each of us agrees that we will not bring a claim under the Agreement more than two (2) years after the time that the claim accrued.
33. SOME AGREEMENT MECHANICS
33.1 Changes to the Terms on Website. These 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 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 Terms of Service posted on the effective date of the Order. However, any amended Terms of Service will become effective on the first day of the renewal period that follows the date that the new Terms of Service were posted by at least thirty (30) days. In addition, if over time you sign multiple Orders for a single account, then the Terms of Service incorporated in 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.
33.2 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.
33.3 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, 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, 10, 16, 17, 18, 22, 24, 31, 32, 36 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.
33.4 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.
33.5 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.
33.6 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.
33.7 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.
33.8 Counterparts. Where the Order is made in an electronic or written form, the Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
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 ADDITIONALSERVICES
34. 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 CDN services to transfer PII, then such transfer is at your sole risk and, notwithstanding clause 17.1 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.
35. RackConnect
35.1 RackConnect is a hybrid solution that allows you to integrate your Rackspace Managed Hosting Services (“Managed Hosting Services”) with the Cloud Services described hereunder. Your use of the RackConnect solution is subject to the following terms:
35.2.1 You are required to agree to a separate Hosting Services Agreement (the “HSA”) for your use of the Managed Hosting Services;
35.1.2 Your Managed Hosting Services must include the following devices: either 1) F5 Big IP local traffic manager, or 2) ASA5510 firewall (or better) with at least 512 MB of RAM;
35.1.3 Your Managed Hosting Services solution must be in the same data centre as your Cloud Services;
35.1.3 When utilizing the RackConnect services, the bandwidth usage that you incur in the course of your use of the 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 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
35.1.4 Billing for the Total Bandwidth Usage and any overages will be reflected on your Managed Hosting Services invoice.
36. BETA SERVICES.
36.1 If you elect to participate in any beta test of a Rackspace Service (a “Beta Service”), then your use of the Beta Service is subject to the following terms:
36.1.1 You acknowledge that the Beta Service is a pre-release version and may not work properly.
36.1.2 You acknowledge that your use of the Beta Service may expose you to unusual risks of operational failures.
361.3 You should not use the pre-release version of the Beta Service in a live production environment. You must not use the Beta Service in any hazardous environments, life support, or weapons systems.
36.1.4 We may terminate the Beta Service at any time, in our sole discretion.
36.1.5 The commercially released version of the Beta Service may change substantially from the pre-release version, and programs that use or run with the pre-release version may not work with the commercial release or subsequent releases.
36.1.6 You are not entitled to any service level credits under our service level guarantees for downtime or other problems that may result from your testing.
36.1.7 During the beta test we will provide support for your use of the Beta Service only during our Business Hours, and not 24x7 as with our standard services.
36.1.8 You agree to provide prompt feedback regarding your experience with the Beta Service in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You agree that we may use your feedback for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your testing of the Beta Service shall be owned exclusively by Rackspace.
36.1.9 You agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Service, is “Confidential Information” of Rackspace, as defined in these Terms of Service, and may not be disclosed to a third party or used for any purpose other than providing feedback to Rackspace.
36.2 The Beta Service is provided "AS IS" with no warranty whatsoever.To the extent permitted by applicable law, Rackspace disclaims any and all warranties with respect to the Beta Service including the implied warranties relating to satisfactory quality and fitness for a particular purpose.
36.3. Subject to clause 36.4 and 36.5 below, 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 Beta Service 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).
36.4 Neither of us (nor any of our employees, agents, affiliates, or suppliers) shall be liable to the other for:
36.4.1 any indirect, special, incidental or consequential loss or damages of any kind;
36.4.2 any loss of profit;
36.4.3 any loss of business;
36.4.4 any loss of data;
36.4.5 any anticipated savings or revenue; or
36.4.6 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.
36.5 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:
36.5.1 death or personal injury caused by its negligence; and
36.5.2 any fraud or fraudulent misrepresentation.
5 December 2011