Opens in a new tab

Rackspace Free Design Session Terms & Conditions

As part of the Rackspace Private Cloud Promotional Offer (the “Offer”), the parties agree that the following terms and conditions apply to the delivery of the Free Design Session (the “Session”).  The Offer is governed by these Rackspace Free Design Session Terms & Conditions (the “Terms”), collectively with the Offer, the “Agreement.” 

Following your acceptance of the Offer, Rackspace will coordinate and schedule a free consulting session to evaluate your technical needs, including application type, system load, and other related matters, and will deliver a report recommendation for a set of Rackspace services which may be appropriate for your system needs.  You acknowledge that Rackspace cannot and does not guarantee that the proposed design will be error free, fit for a particular purpose, or fully resolve your technical needs.

You are under no obligation to purchase Rackspace services as part of the Offer or the Session.

Termination.  Either party may terminate the Offer or the Session at any time with no liability to the other whatsoever, by notifying the other party in writing.

Disclaimers.  To the extent permitted by applicable law, Rackspace disclaims any and all warranties with respect to the Session, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

Confidentiality.  Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Offer or Session, as applicable, the exercise of our respective legal rights under the Agreement, as may be required by law, or as set forth below.   “Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential.  Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.

Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:

  1. to each of our respective service providers, employees, Affiliates, suppliers, agents and representatives, provided that such service providers, employees, Affiliates, suppliers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this General Terms and Conditions;

  2.   to a law enforcement or government agency if either of us reasonably believes that the other’s conduct may violate applicable criminal law;

  3. as required by law; or

  4. in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.

 

Limitation of Liability.  Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind.  In addition, neither of us is liable 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 of such damages.  In no event shall either of us be liable to the other for any punitive damages or for any loss of profits, revenue, customers, contracts or goodwill.

Except for liability based on willful misconduct or death or personal injury resulting from Rackspace’s negligence, the maximum aggregate liability of Rackspace and any of its employees, agents, affiliates, or suppliers, under any theory of law (including breach of contract, tort, strict liability, and infringement) for harm to you arising from the Session shall be a payment of money not to exceed Five Hundred Dollars ($500.00). 

Governing Law.  The Agreement is governed by the laws of the State of Texas, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration.  The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the State and county (or equivalent geographic location) of the non-asserting party’s principal business offices.  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.

Miscellaneous. 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.  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 relationship between us is that of independent contractors and not business partners.  Neither of us is the agent for the other, and neither of us 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 shall be read to mean “including without limitation.”  The words “our” and “us” refers to Rackspace, unless the context clearly indicates another meaning.  The Agreement is effective when you sign it, even though the “initial term” may be defined in the Agreement with reference to the Service Commencement Date or other date.  The following provisions shall survive expiration or termination of the Agreement: Disclaimers, Confidentiality, Limitation of Liability, Governing Law, Miscellaneous and (ii) all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement.

This Agreement will not supersede or replace the terms of any Hosting Service Agreement, Master Service Agreement, Global Service Agreement or other terms applicable to your use of Rackspace services you purchase. 

If you have made any change to the Agreement 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.

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.