(Managed Service Level Guarantees)
In addition to the General Terms and Conditions, your use of the Hosting Services (Managed) is subject to the following additional terms and conditions:
1. ADDITIONAL DEFINED TERMS
Some words used in these Product Terms (Managed Service Level Guarantees) have particular meanings:
"Hosting Services" means Rackspace’s provision for your use of the Hosted System described in the Services Description.
"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.
"Service Commencement Date" means the date on which we provide the access codes that enable you to send and receive information from your Hosted System.
"Support" means: (i) the management of the Hosting Services by a service delivery team that includes a team leader, account manager, and support specialists with training and experience in hosted systems; (ii) availability of live support twenty four (24) hours per day, seven (7) days per week, year round; (iii) any specific support services described in the Services Description; and (iv) use of the MyRackspace® customer portal.
2. DEPLOYMENT GUARANTEE
Unless otherwise stated in the Hosting Services Agreement, Rackspace does not guarantee a deployment timeframe but will use reasonable endeavours to deploy the server(s) as described in your Services Description (the "Server(s)") promptly. Rackspace may, from time to time, agree to provide a guaranteed deployment timeframe (a "Deployment Guarantee") for an additional fee. Where such Deployment Guarantee is agreed, Rackspace will deploy the Server(s) by the date stated in the Hosting Services Agreement, provided that you promptly provide all information that we reasonably request from you to complete deployment. Servers are deemed deployed as of the time that Rackspace generates an email message to you that includes the information needed to allow you to transfer information to and from the Server(s). Your sole and exclusive remedy for our failure to meet the Deployment Guarantee shall be a credit equal to the amount of the fee paid for the Deployment Guarantee service. You are not entitled to a credit if you request or cause the deployment delay. This Deployment Guarantee does not apply to any software, other managed services, or hardware devices other than the Server(s). If you request (orally or in writing) that we deploy your servers by a specific date or on an "expedited" basis for no additional fee, then the Deployment Guarantee shall not apply, and we commit only to using reasonable endeavours to deploy the Server(s) by the date requested.
3. ENCRYPTION OF PERSONALLY IDENTIFIABLE INFORMATION
The General Terms and Conditions require you to use reasonable security precautions in light of your use of the Services. For the Hosting Services, this includes encrypting any PII transmitted to or from, or stored on, the Rackspace servers or storage devices you use.
4. SERVICE LEVEL GUARANTEES
4.1 Network. We guarantee that our data centre network will be available 100% of the time in a given month, excluding Maintenance. The data centre network means the portion of the Rackspace network extending from, but not including, the outbound port on your cabinet switch to the outbound port on the border router and includes Rackspace managed switches, routers, and wiring. We will credit your account five per cent (5%) of the monthly fee for each thirty (30) minutes of network downtime, up to one hundred per cent (100%) of your monthly fee for the affected server(s).
4.2 Infrastructure. We guarantee that data centre HVAC and power will be functioning one hundred per cent (100%) of the time in a given month, excluding Maintenance. Power includes UPSs, PDUs and cabling, but does not include the power supplies on your servers. Infrastructure downtime exists when a particular server is shut down due to power or heat problems. Rackspace will credit your account five per cent (5%) of the monthly fee for each thirty (30) minutes of infrastructure downtime, up to one hundred per cent (100%) of your monthly fee for the affected server(s).
4.3 Hardware. We guarantee the functioning of the following Rackspace-provided hardware: (i) switches, firewalls, load balancers and servers; (ii) direct attached storage devices; (iii) network attached storage devices; and (iv) storage area networks ("SAN"). Hardware repair or replacement will begin once we identify the cause of the problem. Hardware repair or replacement is guaranteed to be complete within one (1) hour of problem identification for switches, firewalls, load balancers, servers and direct attached storage devices, and within five (5) hours of problem identification for network attached storage devices. For SAN hardware failures, we guarantee that we will have a technical specialist and necessary parts onsite to begin repairs within four (4) hours of problem identification. We will credit your account five per cent (5%) of the monthly fee per additional hour of downtime (after the initial one (1) hour or five (5) hours for repair or replacement, as applicable, or, for SAN, the additional hour of delay in beginning repairs), up to one hundred per cent (100%) of your monthly fee for the affected hardware. This guarantee excludes the time required to rebuild your system, such as the time required to configure a replacement device, rebuild a RAID array, reconfigure devices from their default settings, reload operating systems, reload and configure applications, and/or restore from backup (if necessary).
4.4 Replication Appliance. If a replication appliance (such as an EMC RecoverPoint appliance) is unavailable due to a hardware failure, Rackspace will have a technical specialist and necessary parts onsite to begin repairs within six (6) hours of problem identification. If Rackspace fails to meet this guarantee and the failure adversely affects your Hosted System, you are entitled to a credit in the amount of 5% of your monthly recurring fee per half hour of delay in beginning repairs for the affected replication appliance, up to 100% of the monthly recurring fee.
4.5 Measurement of Time Periods. For the purpose of determining whether a credit is due, time periods will be measured from the time stamp generated by our ticket system, the time an interruption is recorded in our monitoring system, until network availability is restored or the affected device is powered back on, as applicable. You may open a support ticket to document the start time for a support request or other incident, or if you contact us by telephone to request support, we will open a ticket. If you contact us by phone, there may be a delay between the time of the call and the time we open a ticket.
4.6 Limitations on Credits.
4.6.1 Cumulative Credit Amount. Notwithstanding anything in this Agreement to the contrary, the maximum total credit for any calendar month for failure to meet Service Level Guarantees under this Agreement, including all guarantees, shall not exceed one hundred per cent (100%) of your monthly recurring fee for the affected Hosted System. Credits that would be available but for this limitation will not be carried forward to future months.
4.6.2 Maintenance. You are not entitled to a credit for downtime or outages resulting from Maintenance. For the purposes of the Service Level Guarantee, Maintenance shall mean:
a. Rackspace maintenance windows - modifications or repairs to shared infrastructure, such as core routing or switching infrastructure that we provide notice of at least seventy two (72) hours in advance, that occurs during off peak hours in the time zone where the data centre is located;
b. Scheduled customer maintenance – maintenance of your configuration that you request and that we schedule with you in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades;
c. Emergency maintenance – critical unforeseen maintenance needed for the security or performance of your configuration or Rackspace’s network.
4.6.3 Extraordinary Events. You are not entitled to a credit for downtime or outages resulting from denial of service attacks, virus attacks, hacking attempts, or any other circumstances that are not within our control.
4.6.4 Your Breach of the Agreement. You are not entitled to a credit if you are in breach of the Agreement (including your payment obligations to us) at the time of the occurrence of the event giving rise to the credit until you have remedied the breach. You are not entitled to a credit if the event giving rise to the credit would not have occurred but for your breach of the Agreement or misuse of your Hosted System.
4.6.5 Logical Access. The Service Level Guarantees are contingent on Rackspace having full logical access to your configuration. No credit will be due if the credit would not have accrued but for your restriction of Rackspace’s logical access to your configuration.
4.6.6 Requests/Currency. You must request a credit in writing either via support ticket or by postal mail no later than fourteen (14) days following the occurrence of the event giving rise to the credit. We will contact you within thirty (30) days to approve or reject the claim or to request more information. If the claim is approved, the credit will appear on your monthly invoice following approval. If you are paying for your Services in a currency other than pounds Sterling, then any credit that is expressed above as a fixed number of pounds Sterling will be converted to the currency in which you pay for your Services as of the date of the invoice on which the credit is applied.
The initial term of the Agreement begins on the Service Commencement Date and continues for the period stated in the Services Description. Upon expiration of the initial term, we may offer you the option of renewing the Agreement for one or more additional terms having a fixed number of months. If you do not renew the Agreement for a fixed term, it will automatically renew for successive extended terms of three (3) months each unless and until one of us provides the other with at least ninety (90) days advance written notice of non-renewal. If you add service elements to the Hosted System by a subsequent agreement, we may use the word "coterminous" to describe the initial term of the subsequent agreement for those additional elements. If the term of an agreement is "coterminous," the initial term of that agreement shall expire on the last day of the initial term of the agreement that initially established the Hosted System.
6.1 Your first invoice will include: (i) a Setup Fee (if applicable); (ii) a One Time Fee (if applicable); (iii) a monthly recurring fee; and (iv) a Pre Pay Service(s) fee (if applicable). The monthly recurring fee shall be prorated from the Service Commencement Date to the last day of the calendar month (subject to any free time as agreed between you and Rackspace). We may require you to make a payment ahead of the Service Commencement Date (an "Upfront Payment"). We will offset such Upfront Payment against the initial invoice(s) that we raise against your account. Following Service Commencement Date, the monthly recurring fee shall be billed in advance at the beginning of each calendar month. "Utility Fee”, which refers to those fees that apply to Services priced on usage, such as Virtual Machines, email and apps, bandwidth charges and overages, shall be billed monthly in arrears. If we agree to you prepaying for the whole or any part of the term, such prepay amount is exclusive of all Utility Fees. The term Utility Fees may be used interchangeably with the term “Non-Recurring Fees”.
6.2 If you use Rackspace’s virtualisation services, your virtual server(s) will be active on the Service Commencement Date. Following the Service Commencement Date you are responsible for managing the active or inactive status of your virtual servers via your MyRackspace portal. Rackspace will invoice you for your virtual service in arrears based on the number of calendar days in each billing period that your virtual servers are set to "active". You will be charged a full day’s rate regardless of whether your virtual servers are set to "active" for a full or partial day.
6.3 Fees are due within five (5) days of invoice date. If you have arranged for payment by credit card or direct debit, Rackspace may charge your card or account on or after the invoice date.
6.4 If any amount is overdue by more than thirty (30) days, Rackspace may:
6.4.1 charge interest on overdue amounts at 1.5% per month;
6.4.2 suspend all Services, and services provided pursuant to any unrelated agreement, if you do not pay the overdue amount within four (4) Business Days of our written notice to your billing contact. You agree that if your Services are reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee.
6.5 In the event Rackspace brings a legal action to collect due to late payment of valid invoices, you must also pay Rackspace’s costs of collection, including reasonable legal fees, expenses and court costs.
6.6 If your payment is returned for insufficient funds, we may charge you an administration fee up to the maximum amount permitted by law.
6.7 All payments will be made in the currency in the Services Description at the exchange rate at the date of the invoice.
6.8 Invoices that are not disputed within one (1) year of invoice date are conclusively deemed accurate.
7. FEE INCREASES
7.1 Increase in Consumer Price Index. If during the initial term or any renewal term there is an increase in the Consumer Price Index as published by the National Office for Statistics over the Consumer Price Index reported for the month in which you signed your Agreement, we may increase your fees by the same percentage as the increase in the Consumer Price Index; provided that we may not increase your fees under this subsection more often than once per twelve (12) months, and we must give you at least thirty (30) days advance written notice of the increase. (Example: if the Consumer Price Index for the month in which you sign the Agreement is one hundred and eighty six (186), and then increases in a subsequent month during the term of the Agreement to one hundred and ninety five (195), we may increase your fees by up to 4.8%).
7.2 Increase after expiry of Term. If following the expiration of the initial term or any renewal term you do not sign a renewal of your Agreement, but continue to use your Services on a rolling three (3) month basis as described in Section 5 (Term) above, then we may increase your fees at any time by any amount, in our sole discretion, on ninety (90) days advance written notice.
7.3 Third Party License Fees. In the event that a third party license provider increases the fee they charge Rackspace for your use of such license, we will increase your fees by the same percentage amount, provided we notify you in writing at least ninety (90) days before the effective date of the price increase.
8. TERMINATION FOR CONVENIENCE
You may terminate this Agreement for convenience at any time on ninety (90) days advance written notice.
If after providing notice of termination you would like to request a postponement of your termination date, you must provide at least 30 days’ written notice prior to your scheduled termination date. Any applicable early termination fee shall be adjusted accordingly.
9. EARLY TERMINATION FEE
If you terminate this Agreement for convenience or we terminate this Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the total monthly recurring fees for the remaining portion of the then-current term. You will not be charged an early termination fee under this Section in the event you terminate this Agreement as part of an agreement to establish a replacement for the Hosted System in a different Rackspace service segment, even if the overall fees for the replacement system are less than those for the Hosted System, provided that the replacement system is the functional equivalent of the Hosted System.
You may resell the Hosting Services, subject to the provisions of Section 18 of the General Terms and Conditions. If you resell any part of the Hosting Services, you must require your customers to sign a written contract that includes the following:
10.1 An acknowledgement that such customer will abide by Rackspace’s Acceptable Use Policy found at: http://www.rackspace.com/information/legal/global/aup and shall have no rights against Rackspace in connection with the Hosting Services that you are reselling; and
10.2 If you are reselling Hosting Services that include Microsoft software, the Microsoft licence terms posted at http://www.rackspace.co.uk/legal/microsoft-license ; and
10.3 A prohibition against high risk use of the hosting services: "No High Risk Use. You may not use the [hosting services] in any situation where failure or fault of the [hosting 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 [hosting services] in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices." You may use a term other than "hosting services" in this clause, as appropriate to the language in your contract with your customers.
11. MANAGED BACKUP
Rackspace’s managed backup services are designed to facilitate restoration of data to the server or device from which the data originated in the event the primary data is lost or corrupted. The quality of your backup depends on how your data is organised. If you purchase managed backup services, we recommend that you test your managed backup service promptly following the Service Commencement Date, and then periodically, to determine if it is capturing your data properly. If it is not, we will work with you to maximise the accuracy of our managed backup service for your data and/or help you identify other data backup solutions that may work better for you. In the event your primary server or device hardware fails and is replaced, we may not be able to restore your backed up data exactly as it was configured on the failed device. If this risk is not acceptable to you, then we will help you identify other data solutions that are more reliable in this situation. The "retention" period for your backup refers to the amount of time that we will retain the backup in a useable form for restoration to the server or device from which it originated. If you wish to preserve your backup after the time that this server or device is decommissioned, you must make arrangements with us at least seventy-two (72) hours in advance of the scheduled decommissioning of the server or device. Database duplications or "cloning" for purposes other than a restoration of lost or corrupted data as described in this paragraph are not included as part of your managed backup service, but may be arranged as a Supplementary Service for an hourly fee. We may choose to use either tape or disk to collect your data, in our discretion. Provided that we do not impair the security or reliability of your backup service, you agree that we may from time to time test our backup systems, and may use copies of your data as part of these tests. We will treat duplicate data in accordance with the same security standards applicable to your backup service.
12. RACKSPACE DDOS MITIGATION
If you purchase Rackspace DDOS Mitigation, then the Rackspace DDOS Mitigation Addendum at www.rackspace.co.uk/legal/ddos_mitigation as of the date you sign the order or agreement for the Rackspace DDOS Mitigation service is part of the Agreement.
If you purchase the Rackspace SharePoint service, then the SharePoint Addendum at www.rackspace.co.uk/legal/sharepoint as of the date you sign the order or agreement for the SharePoint service are part of this Agreement.
14. MICROSOFT EXCHANGE (DEDICATED)
If you purchase Microsoft Exchange service on a dedicated server, then the addendum at www.rackspace.co.uk/legal/exchange/ as of the date you sign the order or agreement for the service is part of this Agreement.
15. DATA REPLICATION
If you purchase any services that involve data replication at a geographically separate site (such as our DNAS based replication) then the following applies to your use of that Service: the rate by which the data at the primary site can be transferred to the secondary site will vary depending on the amount and type of data, constraints inherent in your Hosted System, and fluctuations in bandwidth availability. Therefore, at any given time, the secondary site may not be completely up to date. In the event of a failover to the secondary site, the data that has not yet completed the transfer from the primary site will be lost. We may provide you with some guidelines on latency times based on our understanding of your data and system constraints, but these guidelines are not guarantees.
If we host a device that you own in our data centre, then the Colocation Addendum at www.rackspace.co.uk/legal/colocation/ as of the date you sign the order or agreement covering the colocation services is part of this Agreement.
While your virtual servers are in an "inactive" status we will not install any software updates that we may have otherwise agreed to install. We will update your virtual servers when you return them to "active" status, but there could be a delay of up to twenty four (24) hours before the updates are fully installed.
18. VULNERABILITY TESTING
Vulnerability testing services involve inherent risks, such as data corruption and impaired performance of your Hosted System. If you ask Rackspace to provide vulnerability testing services, then you agree that Rackspace is not liable to you for any damages arising from the performance of the Services as agreed.
19. UNSUPPORTED CONFIGURATION ELEMENTS OR SERVICES
If you ask us to implement a configuration element (hardware or software) or hosting 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 in the Services Description (referred to in this Section as an "Unsupported Service"). Rackspace makes no representation or warranty whatsoever regarding Unsupported Service so designated, and you agree that Rackspace shall not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Service Level Guarantees shall not apply to the Unsupported Service, or any other aspect of the Hosting 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.
20. UTILITY NETWORK ATTACHED STORAGE
If you purchased the Utility NAS service, the Service Level Guarantee at www.rackspace.co.uk/legal/unassla is part of the Hosting Agreement.
21. IP ADDRESSES
Upon termination of the Agreement you must promptly release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Services (but not any URL or top level domain or domain name) and you agree that we may take steps to change or remove any such IP addresses.
22. RACKSPACE API CODE SUPPORT
If you use Rackspace API Code Support, then the addendum at www.rackspace.com/information/legal/apicodesupport is part of the Agreement.
© 2013 Rackspace Limited
6 August 2013