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RACKSPACE ANYWHERE SERVICES AGREEMENT

 

This Rackspace Anywhere Services Agreement (this “Agreement”) is between Rackspace US, Inc. (“Rackspace” or “we”) and the customer identified in a Service Order that incorporates this Services Agreement (“Customer” or “you”).  This Agreement is effective as of the date you sign the Service Order which incorporates it by reference (the “Effective Date”).

AGREEMENT

 

1  DEFINED TERMS.  The following words, when capitalized, shall have the meaning stated:

1.1 “Business Day” or “Business Hours” means 9:00 a.m. – 5:00 p.m. Monday through Friday, United States Central time, excluding federal public holidays in the United States.

1.2  “Confidential Information” means all information disclosed by one party to the other, whether before or after the effective date of this Agreement, that the recipient should reasonably understand to be confidential, including the Rackspace Configuration Requirements, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information that Customer may observe on a tour of a data center), any Intellectual Property or proprietary information maintained in confidence (such as unpublished source code or inventions), and information that is marked or otherwise conspicuously designated as confidential.  Information that is independently developed by one party, without reference to the other’s Confidential Information, or that becomes available to one party other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.

1.3 “Customer Configuration” means a computing platform which is the subject of the Services or to which the Services relate.  The Customer Configuration may be hosted in a Rackspace datacenter or located elsewhere, including on Customer premises or in a third party datacenter.

1.4 “Deliverables” means the tangible or intangible materials, including any document, code, website, or Intellectual Property, tangible or intangible, which are prepared uniquely and exclusively by Rackspace or its subcontractors, for your use, in the course of performing the Services and that are specifically identified in the subject of a Service Order as Deliverables and described therein and each labeled as a Deliverable.

1.5 “Intellectual Property” or “IP” means legally protectable rights related to patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property.

1.6 “Personally Identifiable Information” or “PII” means: (i) 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 social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4), and (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act.

1.7 “Rackspace Configuration Requirements” means those specifications identified by Rackspace as required to perform the Services, and which may include hardware, networking, software, operating system configuration and other elements of a Customer Configuration.  The Rackspace Configuration Requirements may be identified in a Schedule to a Service Order. 

1.8 “Schedule” means a supplement attached to or incorporated by reference in a Service Order (which may also be titled as “Exhibit” or “Appendix” or with like mention) which further details obligations or requirements applicable to the Services described on the Service Order.

1.9 “Services” or “Support Services” means the Rackspace support or consulting services identified on a specific Service Order and which may be further described in an attached Schedule thereto. 

1.10 “Recurring Services” means Services which are provided in an on-going fashion, either on a month-to-month basis or continuously over another defined term in an applicable Service Order. 

1.11 “Service Level Agreement” means a guarantee or guarantees identified in a Schedule to a Service Order as a “Service Level Agreement” or “Service Level Guarantee.”

1.12 “Service Order” means a document signed by the parties or agreed to electronically for Services pursuant to this Agreement and which describes the Services, associated fees, and identifies any term or Deliverables if applicable.

 

2  SERVICES 

2.1  General.  Rackspace will provide the Services in accordance with this Section 2 and any support process described in a Schedule to an applicable Service Order.  Rackspace will perform the Services in a good and workmanlike manner (unless the Services are Unsupported Services as described in Section 2.10) and in accordance with applicable law as set forth in Section 16 below.  Rackspace’s obligation to provide Services is contingent on successful completion of Rackspace’s verification that the Customer Configuration conforms to the requirements of this Agreement, the Rackspace Configuration Requirements, and any specification requirements detailed in a given Service Order.

2.2 Excluded Services.  Rackspace is not required to provide any Services directly to Customer’s end users.  You agree that you will not refer your end users to Rackspace directly without Rackspace’s prior written consent.    Depending on the Services purchased, additional examples of specifically excluded services may be detailed in a given Service Order.

2.3 Rackspace Configuration Requirements.  For some Services, Rackspace requires a particular configuration be in place in order to properly deliver support.  Rackspace will provide Services only for Customer Configurations meeting the Rackspace Configuration Requirements in effect at the time the Service Order is accepted.  Rackspace may from time to time UPDATE the Rackspace Configuration Requirements.  Customer is not required to UPDATE the Customer Configuration in response to changes in the Rackspace Configuration Requirements, but shall use reasonable efforts to UPDATE the Customer Configuration to the standards of the then current Rackspace Configuration Requirements at appropriate times in the lifecycle of the hardware, networking and software elements that comprise the Customer Configuration.  Customer shall make its platform design and other documentation available to Rackspace for review at all times during the term of a given Service Order.  Rackspace may terminate any Service Order without liability if the Customer Configuration covered by the Service Order does not conform to the applicable Rackspace Configuration Requirements and Customer fails to cure the non-conformity within thirty (30) days of Rackspace’s notice describing the non-conformity in reasonable detail.  Additional Customer Configuration requirements (such as required software versions and UPDATE cycles) may be identified in a given Service Order or Schedule.

2.5 Rackspace Installed Third Party Support Software.  As part of certain Services Rackspace may install third party software which it has licensed to use and install on the Customer Configuration in order to monitor and support your system(s) (the “Third Party Support Software”).  Unless otherwise permitted by the terms of an Open Source or other license applicable to the Third Party Support Software, you are prohibited from (i) accessing and utilizing the Third Party Support Software and (ii) copying, duplicating, or modifying the Third Party Support Software.  You agree that, upon termination of this Agreement or of an applicable Service Order, you will permit Rackspace to remove the Third Party Support Software from the Customer Configuration at the time of termination.

2.6 Open Source Software.  In the event we distribute any open source software to you as part of the Services (including for example Linux based software, OpenStack software, and software licensed under the Apache, GPL, MIT or other open source licenses, collectively “Open Source Software”) then such Open Source Software is subject to the terms of the applicable open source license.  There are no warranties provided with respect to any Open Source Software and all implied warranties are disclaimed.  In the event of any conflict between the terms herein and the applicable open source license with respect to any Open Source Software, the terms of the applicable open source license shall control. 

2.6 Training & Certification Services.  Details for any training and certification services provided as part of the Services (“Training & Certification Services”) will be specified on the applicable Service Order, including location, attendees, and fee detail, as well as the applicable cancelation, substitution, and dismissal policies. Rackspace retains ownership of all copyright and other intellectual property rights in the course materials provided as part of Training & Certification Services, including any documentation, technical information, and know-how provided in connection therewith. Any information provided to you as part of Training or Certification shall be held in confidence and may not be disclosed or copied, without the express written permission of Rackspace. You may not use a recording or copy device in training or examinations without Rackspace’s prior written consent.  Training, training material, certification exams, and other information provided by or on behalf of Rackspace in connection with Training & Certification Services are furnished on an “AS-IS” basis, without warranty of any kind.

2.7 Third Party Billing Services.  Rackspace may designate on a given Service Order that the Services described therein or on a Schedule thereto are third party delivered services (“Third Party Services”).  Third Party Services may require you to enter into a separate agreement with a third party for the third party to perform such services.  If expressly designated on a Service Order, Rackspace will assist you in integrating and coordinating the Third Party Services with Rackspace hosting services and will reasonably assist you with your escalation of any issue that you are unable to resolve satisfactorily with the third party.  For your convenience, Rackspace may include the third party’s fees on your Rackspace invoice.  If Rackspace includes the fees for the Third Party Services on your Rackspace invoice, you agree that the payment terms for such fees shall be the same as a fee under this Agreement. 

Rackspace provides no warranty and makes no representation whatsoever with regard to Third Party Services.  You agree that your sole and exclusive remedy against Rackspace with respect to any failure by the third party to perform such services will be to terminate the Third Party Services and be relieved of any obligation to pay for those services.

2.8 Scoping Engagements.  If the Services are described on the Service Order as “Determination of Scope of Work” or with like notice, then we agree to perform only such limited Services as are needed to learn facts that will help us prepare a Service Order and/or fees for the Services that you have requested.  You may be asked to sign a separate Service Order for the Services we identify as appropriate based on the scoping engagement. 

2.9 Out of Scope Services.  We are not required to perform any services other than those described in your Service Order or a Schedule thereto.  If we perform additional services at your request (“Out of Scope Services”), we may charge you our standard hourly rate for such services, provided that we have notified you in advance of performing the services that the services will be billable.

Any Out of Scope Services which we perform for you at your request and without additional charge are provided on an AS IS basis without any representation or warranty whatsoever. 

2.10 Unsupported Services.  If you ask us to perform Services of a type that we do not normally offer, or Services that we may not be able to complete due to problems or uncertainties inherent in the Services or the technology that is the subject of the Services, we may designate those Services as “non-standard,” “best efforts,”  “one off,” “reasonable endeavor,” “unsupported” or with like designation (referred to in this Section as an “Unsupported Services”).  You acknowledge and agree that we may not be able to achieve your desired outcome when the Services have been so designated, and that we may not have training or experience with the technology that is the subject of the those Services.  Rackspace makes no representation or warranty with respect to Unsupported Services except that it will use those commercially reasonable efforts as may be expected of technicians having generalized knowledge and training in information technology systems.

 

3 ACCEPTANCE 

You must evaluate and/or test any non-Recurring Services and/or any Deliverables within thirty calendar days of the time that we notify you that the Services are complete and deliver any applicable Deliverables.  If you believe that such non-Recurring Services or Deliverables do not meet the specifications stated in a Service Order, you must give us a written notice describing the failure in the manner described in Section 12 (Notices) within this thirty calendar day period.  If you do not give us written notice within this time, the Services and any Deliverables shall be deemed complete and accepted.  You will allow Rackspace a reasonable period of time to cure any identified failure to meet the specification stated in the Service Order.

 

4  CUSTOMER OBLIGATIONS 

4.1  Access.  Customer will enable Rackspace’s reasonable method for secure access to the Customer Configuration for the purpose of performing the Services (which may include direct access where appropriate, or the use of a remote viewing tool).  Additional requirements for remote access to the Customer Configuration may be detailed in a given Service Order.  If the Services are to be performed at a location managed or operated by you, you must provide free, safe, and sufficient access to your facilities including appropriate computer hardware, software, and communications resources, system and user documentation, ample working space, telephone service, and general office supplies as reasonably necessary for Rackspace to perform the Services. 

4.2 Customer Personnel.  Customer’s technical personnel shall have the skill and experience necessary to interact with Rackspace’s support and technical personnel.  Customer shall designate senior engineering and development staff to interact with Rackspace’s support team under this Agreement, and such personnel shall work with Rackspace in a collaborative and cooperative manner to jointly resolve support issues. 

4.3 Data Backup.  Customer is solely responsible for maintaining backups of all data stored on Customer Configurations on an environment separate from the Customer Configuration.  Unless explicitly stated on a Service Order, Rackspace will not back up data as part of Services and shall have no responsibility for maintaining the integrity of data on the Customer Configuration. 

4.4 Laws Applicable to Customer.  Customer acknowledges that it is solely responsible for compliance with all laws applicable to its use of the Customer Configuration and applicable Services, including data privacy laws and regulations. 

4.5 Export Laws.  Customer shall comply with applicable export laws.  Customer represents and warrants that it is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and is not otherwise a person to whom Rackspace is legally prohibited to provide the Services.  Customer may not use the Services in the design, manufacture, production, stockpiling or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D:4 and D:3, as set forth in Supplement No 1 to Part 740 of the United States Export Administration Regulations, or as otherwise prohibited by law.

4.6 No High Risk Use.  Customer may not use the Services in any situation where failure or fault of the Services or the Customer Configuration being supported could lead to death or serious bodily injury of any person, or to physical or environmental damage.  For example, Customer may not use, or permit any other person to use the Services in connection with the functioning of aircraft or other modes of human mass transportation, nuclear or chemical facilities, or FDA regulated Class II or III medical devices. 

4.7 Security.  Customer must use reasonable security precautions in connection with its use of the Services. If Rackspace’s access to the Customer Configuration under this Agreement may result in the exposure of regulated data (including but not limited to Personally Identifiable Information), Customer shall communicate such to Rackspace in writing and Customer shall take appropriate measures to encrypt or secure such data, or otherwise prevent access to such data by Rackspace.

 

5 INTELLECTUAL PROPERTY

 

5.1 Pre-Existing Intellectual Property.  Each party shall retain ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. For Rackspace, this includes the methods by which the Services are performed and the processes that make up the Services.  If you provide Rackspace with your pre-existing Intellectual Property for the purpose of providing the Services (“Customer IP”), then you hereby grant to Rackspace, during the term of the Agreement, a limited, revocable, worldwide, non-transferable, royalty-free, right and license to use the Customer IP solely for the purpose of providing the Services and represent that you have all rights in the Customer IP necessary to grant this license, and warrant that Rackspace’s use of such Customer IP shall not infringe on the intellectual property rights of any third party. 

5.2 Deliverables and Intellectual Property Used or Created by Rackspace as part of the Services. 

Unless otherwise specifically stated in the applicable Service Order, Rackspace (and its applicable suppliers and licensors) shall own all Deliverables and any Intellectual Property used or created as part of providing the Services or Deliverables, either alone or jointly with you, including all tools and software used to perform the Services, and all intellectual property embodied in, and all other content and items included with or as part of, the Services or Deliverables (but specifically excluding any Customer IP). 

Unless otherwise specifically stated in the applicable Service Order or a Schedule thereto, and subject to your payment in full for the applicable Services, Rackspace grants to you a limited, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use any Deliverables and, during the term of the Service Order, any Intellectual Property (excluding any Third Party Support Software and any Open Source Software) provided to you by Rackspace as part of the Services, solely for your internal use and solely as necessary for you to enjoy the benefit of the Services described in the applicable Service Order and applicable Schedules thereto.

You acknowledge that Rackspace may use any Intellectual Property that it creates as part of providing the Services, either alone or jointly with you, to provide services to other customers, including your competitors, provided that such Intellectual Property does not contain or embody any Customer IP or any of your Confidential Information.  

5.3 Open Source.  Each party acknowledges that Sections 5.1 and 5.2 above may not apply to Open Source Software, and each of us agrees to comply with the terms of an applicable open source license and acknowledges that the terms of an applicable open source license shall supersede Sections 5.1 and 5.2 above.  To the extent a party contributes any Intellectual Property to an open source project, the other party shall have those license rights defined in the applicable open source license.

5.4 Restrictions.  You agree that during and after the term of this Agreement, you will not assert, nor authorize or encourage any third party to assert or assist any third party in asserting, any claim for Intellectual Property infringement (including patent infringement) against Rackspace or any of our affiliates, customers, end users, or licensors, regarding any of the Services or Deliverables or any Open Source software contained or utilized therein.  Without limitation as to other remedies which may be available to Rackspace, any and all licenses granted pursuant to this Agreement shall terminate immediately and without any requirement of notice in the event that you violate the restrictions set forth in this Section 5.4. 

 

6 FEES

6.1 Fees.  Fee amounts are stated in the applicable Service Order. 

6.1.1   Support Fees.  Rackspace will invoice fees as described in the applicable Service Order or Schedule.  For some Services, Rackspace invoices fees based on the number of physical devices included in a Customer Configuration, and Customer agrees to provide Rackspace with reasonable access to the Customer Configuration for purposes of determining the number of devices in Customer Configuration. Customer agrees that performing such a count and to permit Rackspace is permitted to run a service agent on the Customer Configuration to perform such a device count.

6.1.2 Estimated Fees. If any fees are identified in the Service Order as “estimates” or with like notice, then those fees are based on our good faith estimate of the time involved to complete the Services based on the information that we had available to us at the time we prepared the Service Order.  You agree that if we learn that it will take more time to complete any Services for which we provided estimated fees, then we may either complete the Services and charge you an additional amount as reasonably related to the additional time spent, but no more than an additional twenty five percent (25%) of the estimated amount, or may elect not to complete the Services until we have agreed with you on mutually acceptable fees.

6.1.3   Fee Increases.  For Recurring Services, if following the expiration of the initial term or any renewal term you do not renew a Service Order, but continue to use the Services on an auto-renewal or month-to-month basis, Rackspace may increase the fees (but by no more than an additional twenty five percent of the initial term amount) on ninety (90) days advance written notice.

6.1.4   Early Termination Fee.   If you terminate a Service Order for a given Recurring Service for convenience, we may charge you an early termination fee equal to the minimum monthly fee times the number of months remaining in the then current term of the Service Order, including a prorated amount for any partial month.

6.2 Payments.  Invoices are due thirty days from invoice date. Fees must be paid in U.S. Dollars. Rackspace may suspend all Services, and any other services provided to Customer pursuant to other (even unrelated) agreements between the parties if payment of any invoiced amount is overdue and Customer does not pay the overdue amount within ten Business Days of Rackspace’s written notice. 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, Customer must also pay Rackspace’s costs of collection, including reasonable attorney fees and court costs.   

6.3 Taxes. Customer shall remit to Rackspace all sales, VAT or similar tax imposed on the sale of the Services described in this Agreement (but not in the nature of income taxes on Rackspace) that Rackspace is required by law to collect from Customer. 

6.4 Reimbursement for Expenses. For Services which Rackspace performs in person at your location, you agree to reimburse Rackspace for the actual substantiated out-of-pocket expenses of its employees and consultants incurred in performance of the Services, including: airfare, car rental, lodging, parking, meals, etc. Airfare will be reimbursed for economy fares on flights with up to four hours of flight time and for business class fare on flights with four or more hours of flight time.

 

7 WARRANTY DISCLAIMERS

Rackspace makes no representation or warranty whatsoever regarding Open Source and OpenStack Software.

At Customer’s request, Rackspace may provide services that are not required by this Agreement, but any such services shall be provided AS IS, with no warranty whatsoever.

Rackspace disclaims any and all warranties not expressly stated in this Agreement, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement.  

 

8 TERM AND TERMINATION

8.1 Term.  This initial term of this Agreement shall end one (1) year from the Effective Date (the “Initial Term”).  Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one year renewal terms (each a “Renewal Term”) provided that following the Initial Term, either party may terminate this Agreement on thirty (30) days advance written notice.  The term of each Service Order shall be stated in the Service Order, or if no term is stated, the initial term shall be three months from date of your signature.  This Agreement shall survive as to any Service Order that is EXECuted during the Initial Term or any Renewal Term of this Agreement until the expiration or termination of the Service Order.

8.2 Termination for Convenience.  Unless otherwise stated in a Service Order, Customer may terminate any Service Order for Recurring Services for convenience at any time by giving Rackspace at least sixty (60) days advance written notice as provided in Section 12 (Notices) below. Customer shall not be entitled to any refund of fees upon a termination for convenience.

8.3 Termination for Breach.  You may terminate the Agreement for breach if we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) Business Days of your written notice describing the failure.

We may terminate the Agreement for breach if: (i) we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete, (ii) 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, (iii) your payment of any invoiced amount is overdue and you do not pay the undisputed overdue amount within four (4) Business Days of our written notice, or (iv) you fail to comply with any other provision of the Agreement and do not remedy the failure within ten (10) Business Days of our notice to you describing the failure.

8.4 Survival.  The following provisions shall survive expiration or termination of this Agreement:  Intellectual Property, Confidential Information, Indemnification, Limitation on Damages, Payments, Governing Law, Notices, Miscellaneous, and any other provisions that by their nature are intended to survive expiration or termination.  

 

9 CONFIDENTIAL INFORMATION

Each party 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 its legal rights under the Agreement, or as may be required by law.  Each party agrees not to disclose the other’s Confidential Information to any third person except as follows: 

(i)                  to its 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 this Agreement;

(ii)                to a law enforcement or government agency if requested, or if the party reasonably believes that the other’s conduct may violate applicable criminal law;

(iii)               as required by law; or

(iv)              in response to a subpoena or other compulsory legal process, provided that the party subject to the process shall give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.

 

Each party shall use reasonable care to protect the Confidential Information of the other party from unauthorized disclosure.

 

10  LIMITATION ON DAMAGES

10.1  Credits.  The credits stated in any applicable Service Level Agreement or Schedule are Customer’s sole and exclusive remedy for Rackspace’s failure to meet those guarantees for which credits are provided unless the failure is due to Rackspace’s willful misconduct. If Rackspace fails to perform any element of the Services for which a credit is not provided, Customer’s sole and exclusive remedy for shall be to require Rackspace to perform or re-perform the Services as applicable. The maximum total credit(s) for failure to meet any applicable Service Level Agreements for any calendar month shall not exceed 100% of the monthly recurring fee for the related Service Order. 

10.2  Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or for any indirect, special, incidental, exemplary or consequential loss or damages of any kind, whether based on contract, tort (including without limitation, negligence), strict liability, or any other legal or equitable theory, or for 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 off such damages.  In no event shall either of us be liable to the other for any punitive damages.

10.3  Notwithstanding anything in the Agreement to the contrary, except for liability based on fraudulent misrepresentation, and liability for death or personal injury resulting from Rackspace’s negligence, the maximum aggregate monetary liability of Rackspace and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, whether occurring before or after the EXECution of the Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the total amount payable under the Service Order that is the subject of the claim in the twelve months preceding the event that gave rise to the liability.

 

11  INDEMNIFICATION

11.1  If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Indemnitees”) is faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of your agreement with your customers or end users, violation of Section 2.5 (Rackspace Installed Third Party Support Software), or violation of Section 4 (Customer Obligations) of this Agreement, then you will pay the cost of defending the claim (including reasonable attorney 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 subsection 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 Customer Configuration, and any person who gains access to the Customer Configuration as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you.  You must also pay reasonable attorney fees and other expenses we incur in connection with any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.

11.2 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 defense of the claim.  We may not settle the claim without your consent, although such consent may not be unreasonably withheld.  You must pay expenses due under this Section as we incur them.

 

12 NOTICES 

Your routine communications to Rackspace regarding the Services, including any notice of non-renewal, should be sent to your Rackspace account team.  If you want to give 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 United States mail to:

legalnotice@rackspace.com
General Counsel
Rackspace US, Inc.
5000 Walzem Drive
San Antonio, Texas 78218
MAIL STOP:  US109-2301

Rackspace’s routine communications regarding the Services and legal notices will be posted on the MyRackspace portal or sent to the individual(s) you designate as your contact(s) on your account either by electronic mail (including an electronic mail referring you to a ticket posted on your MyRackspace portal), United States mail, or overnight courier.  Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered.  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.

 

13 PUBLICITY, USE OF MARKS

Customer agrees that Rackspace may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer in promotional materials, including press releases.  Rackspace may not use Customer’s name or logo in a manner that suggests an endorsement or affiliation.  Customer may not issue any press release or other publicity regarding the subject matter of this Agreement, or publicly disclose that it is using the Services without Rackspace’s prior written consent, or use the Rackspace name, logo or other identifying indicia without Rackspace’s prior written consent.

 

14 ASSIGNMENT/SUBCONTRACTORS

Neither party may assign the Agreement without the prior written consent of the other party except as part of a bona fide corporate reorganization 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 under this Agreement for work performed by its third party service providers to the same extent as if Rackspace performed the Services itself.

 

15 FORCE MAJEURE

Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its 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 organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.

 

16 GOVERNING LAW, LAWSUITS

The Agreement is governed by the laws of the State of Texas, exclusive of any Texas choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration.  The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the city in which you reside.  The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) in effect at the time the claim or dispute arose.  The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service, and who is SELECTed pursuant to the applicable rules of the AAA.  The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favor. Each of us waives any right to a trial by jury, and agrees that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

 

17 MISCELLANEOUS

This Services Agreement, any applicable Schedules included in a Service Order, and any applicable product or country specific additional terms are incorporated in your Service Order by reference, sometimes to pages on the Rackspace website.  Although we may from time to time revise the Terms posted on those web pages, those revisions will not be effective as to a Service Order that you signed prior to the date we posted the revisions, and your Service Order will continue to be governed by the Services Agreement, Schedules, and terms posted on the effective date of the Service Order until the first day of any renewal or extended term that follows the date we published the revision.  If over time you sign multiple Agreements for a single Customer Configuration –for example to add service elements or support levels, then the version of the  Terms referenced in the last signed Service Order will govern all Services provided for that Customer Configuration unless otherwise agreed in writing.

If there is a conflict between the terms of a Service Order and this Agreement, then this Agreement shall control.  If any part of this Agreement or a Service Order is found unenforceable by a court, the rest of the Agreement or Service Order 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.  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.  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 on any agreement with a third party.  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 means in each case “including without limitation.” Any use in this Agreement of words denoting the singular include the plural and vice versa. The terms of this Agreement may be varied only by a written agreement signed by both parties that expressly refers to this Agreement.  The pre-printed terms of your purchase order or other business form will not become part of this Agreement and shall be void and have no effect.  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 the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous agreement or understanding, whether written or oral.