TERMS AND CONDITIONS FOR PROFESSIONAL & CONSULTING SERVICES
Rackspace professional and/or consulting services are performed subject to these terms and conditions (the “Terms”).
1. DEFINED TERMS. In these Terms:
“Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States central time, excluding federal public holidays in the United States.
“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to be confidential, including: (i) for you, any proprietary information that you maintain in confidence (such as unpublished source code or inventions), (ii) for Rackspace, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), 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 independently developed by one of us, 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.
“Customer Intellectual Property” or “Customer IP” means source code, trade secrets, inventions, and other proprietary information, and/or copies of your trademarks, service marks and other identifying indicia and/or other intellectual property that you provide to Rackspace for the purpose of enabling Rackspace to provide the Services.
“Customer Systems” means those information technology systems which you provide Rackspace with access to in order to perform the Services.
“Professional Services Agreement” means the Professional and Consulting Services Agreement signed by the parties which incorporates these Terms by reference and details the Services to be provided.
“Service” or “Services” means the consulting or professional services described in a Statement of Work or other written description incorporated by reference into the Professional Services Agreement.
“SLA” means a Service Level Agreement, Service Level Guarantee, Response Time Guarantee, or commitment of like description that includes a dollar credit for failing to meet a defined service level or response time, such as identified in Section 2.4 of these Terms or a specific Statement of Work.
2.1 Services. Rackspace will perform the Services and deliver any deliverables in accordance with the terms and specifications stated in the Statement of Work. If you fail to timely provide information or take other actions as required by Section 3 (Your Obligations) below, then Rackspace’s time for performance of the Services shall be extended by that number of days that Rackspace was unable to begin or complete the Services in a reasonable manner as a result of your delay.
2.2 Services Warranty. Rackspace warrants that the Services will be performed in a good and professional manner, unless Rackspace has designated the Services as “best efforts,” “reasonable endeavors,” or “as is” or with like notice in these Terms or the Statement of Work. Rackspace warrants that all Services will be performed in compliance with applicable law.
2.3 Support Requests. The procedure for requesting support is defined in the applicable Statement of Work, including the contact information for your Rackspace Professional Services Project Manager who will serve as your primary point of contact for Service and support issues.
2.4 Escalation Response Time Guarantee. The Rackspace professional services support team will respond to your support requests within four (4) hours of our receipt of such request during Business Hours, provided that you contact your Rackspace primary contact as identified on the applicable Statement of Work via phone. If the professional services team fails to respond to your escalation request within four hours, you are entitled to a credit of $250 per event, up to 100% of fees for the affected Services for any given calendar month. This response time guarantee does not apply to support requests made via email or ticket. We do not guarantee that we will be able to resolve your issue within a specific time, but we do promise that we will use diligent efforts to resolve your issue in a reasonably prompt manner.
2.5 Out of Scope Services. We are not required to perform any services other than those defined as the “Services” in your Statement of Work. 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 we may perform for you at your request and without additional charge are provided on an AS IS basis.Any Out of Scope Services we may perform for you at your request on an hourly fee basis are provided a BEST EFFORTS basis.
3. YOUR OBLIGATIONS
3.1 General. You must provide information and take actions as described in the Statement of Work, and as Rackspace may reasonably request as required for us to perform the Services. You must appoint a technical contact within your organization to work with Rackspace’s technical personnel. Your technical contact must have familiarity with your information technology systems, and sufficient skill and knowledge in the technical aspects of the Services to interact with Rackspace’s technical personnel.
3.2 Access. You must enable Rackspace’s reasonable method for secure access to Customer Systems as necessary for the purpose of performing the Services. Additional requirements regarding access may be stated in the Statement of Work. You represent and warrant that you have actual authority to grant Rackspace access to any applicable Customer Systems for the purposes of performing the Services.
3.3 Backup. You must create, or arrange for the creation of, a reliable backup of any information on the Customer Systems prior to the time that Rackspace begins the Services.
3.4 Laws Applicable to Customer. Customer acknowledges that it is solely responsible for compliance with all laws applicable to its use of the Customer Systems, including data privacy laws and regulations. If Rackspace’s access to the Customer Systems under this Agreement would result in exposing Rackspace to regulated data (including but not limited to personal data or financial 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.
3.5 Export Laws. Customer shall comply with applicable export laws. Customer represents and warrants that it is not on the Unites 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 Unites States Export Administration Regulations, or as otherwise prohibited by law.
3.6 No High Risk Use. Unless specified in writing in the Statement of Work, Customer may not use the Customer Systems in any situation where their failure or fault could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Customer may not use the Customer Systems in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices.
4. INTELLECTUAL PROPERTY
4.1 Pre-Existing Intellectual Property. Each party shall retain ownership of its Intellectual Property created, authored, or invented by it prior to or after the Effective Date. Any Intellectual Property provided by one party to the other pursuant to this Agreement is licensed for use on a limited, revocable, non-sublicensable, non-transferable basis solely for use in providing or using the Services.
4.2 Intellectual Property Created by Rackspace as part of the Services. Unless otherwise specifically stated in the applicable Statement of Work, Rackspace shall own any intellectual property that it creates as part of providing the Services, either alone or jointly with you, provided that if the creation and transfer of intellectual property is expressly defined as part of the “Services” in the Statement of Work, then upon payment in full of the fees due for the Services, you will have a perpetual, irrevocable, transferable, fully paid, worldwide, non-exclusive license to use such intellectual property listed in the Statement of Work. You acknowledge that Rackspace may use any intellectual property it creates for you, 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 pre-existing Customer intellectual property or any of your Confidential Information.
You must evaluate and/or test the Services and any deliverables within thirty (30) calendar days of the time that we notify you that the Services are complete and deliver any deliverables. If you believe the Services or any deliverables do not meet the specifications stated in the Statement of Work, you must give us a written notice describing the failure in the manner described in Section 13 (Notices) below within this thirty (30) calendar day period. If you do not give us written notice within this time, the Services will be deemed complete and accepted. You will allow Rackspace a reasonable period of time to cure any failure.
6. PROMISES WE DO NOT MAKE
We disclaim any and all warranties not expressly stated in these Terms including the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
Certain Rackspace Services are designed to help you comply with regulatory requirements, payment card industry standards, or other industry security standards that may be applicable to you. However, you are responsible for understanding the regulatory or industry requirements applicable to your business and for selecting and using Rackspace's services in a manner that complies with the applicable requirements. If we agree to provide you with regulatory, PCI compliance, or security related consulting services, then we will help you identify and understand available technologies so that you may better evaluate which technologies are best for you in light of your unique information systems and business requirements; we do not promise to complete a comprehensive compliance review or certify you as compliant with any regulatory or other standard.
7. TERMS APPLICABLE TO SPECIFIC SERVICE TYPES
7.1 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 Service”). You acknowledge and agree that we may not be able to achieve your desired outcome when the Services have been so designated, and/or 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 an Unsupported Service except that it will use those commercially reasonable efforts as may be expected of technicians having generalized knowledge and training in information technology systems.
7.2 Third Party Billing Services. Rackspace may designate on a given Statement of Work that the Services described therein or on an attached addendum 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 designated on a Statement of Work, Rackspace will assist you in integrating and coordinating the third party services with Rackspace hosting services and will provide a live response 24x7, year round to your escalation of any issue that you are unable to resolve satisfactorily with the third party. For your convenience, Rackspace may also 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 the services will be to terminate the services and be relieved of any obligation to pay for the services.
7.3 Scoping Engagements. If the Services are described on the Statement of Work 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 Statement of Work and/or fees for the professional and consulting services that you have requested. You may be asked to sign a separate Professional Services Agreement for the actual professional or consulting services that you requested.
8. TERM AND TERMINATION
8.1 Term. Unless explicitly stated otherwise in the Statement of Work, the Services are non-recurring. The Term of an agreement for non-recurring Services shall begin on the date that each of us has signed the Agreement and continue until the Services are complete. The term of any recurring Services shall be detailed in the Statement of Work.
8.2 Termination for Convenience. Unless otherwise stated in a Statement of Work, Customer may terminate any Statement of Work for convenience upon 15 Business Days advance written notice to Rackspace, in accordance with Section 13 (Notices) below, provided that Customer shall not be entitled to any refund of fees upon a termination for convenience. Customer remains liable for all fees under the Agreement, including those for work not yet performed, unless explicitly stated otherwise in the Statement of Work or otherwise agreed to in writing between the parties.
8.3 Termination for Breach. You may terminate a Professional Services Agreement for breach if we 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. We may terminate the Professional Services Agreement for breach if: (i) your payment of any properly invoiced amount is overdue and you do not pay the overdue amount within four (4) Business Days of our written notice, or (ii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
9.1 Fee amounts are stated in the Statement of Work, and may accordingly be invoiced in advance, upon completion, based on usage or hourly support obligations, or based on milestones specified. Out of Scope Services described in Section 2.5 (Out of Scope Services) above may be invoiced in advance, or in arrears, either upon completion or on a weekly or monthly basis, in our discretion.
9.2 Fees are due within five (5) days of invoice date. If you have arranged for payment by credit card or ACH, Rackspace may charge your card or account on or after the invoice date. 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 costs of collection, including reasonable attorney fees and court costs. If your check is returned for insufficient funds, we may charge you a fee up to the maximum amount permitted by law. Fees must be paid in U.S. Dollars. Invoices that are not disputed within 180 days of invoice date are conclusively deemed accurate.
9.3Estimated Fees. If any fees are identified in the Statement of Work 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 Statement of Work. You agree that if we learn that it will take significantly 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.
10. CONFIDENTIAL INFORMATION
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:
(i) to 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;
(ii) to law enforcement or government agency if requested, or if either of us 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 each of us agrees to 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.
11. LIMITATION ON DAMAGES
11.1 We are not liable to you for failing to provide Services covered by an SLA unless the failure is a breach of the SLA, or results from our gross negligence or willful misconduct. The credits stated in an SLA are your sole and exclusive remedy for our failure to meet those guaranties for which credits are provided unless the failure is due to Rackspace’s willful misconduct. For Services not covered by an SLA, your sole and exclusive remedy for our failure to perform the Services is to require Rackspace to re-perform the Services.
11.2 Rackspace is not liable to you for any irretrievable, damaged, or corrupted data unless (and only to the extent that) you purchase backup services from Rackspace and we fail to provide the backup services as agreed.
11.3 Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, 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 of such damages. In no event shall either of us be liable to the other for any punitive damages.
11.3 Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or 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 Statement of Work that is the subject of the claim.
12.1 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, or violation of Section 3.5 (Export Matters) or Section 15 (Software) of these Terms, 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.
12.2 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.
Your routine communications regarding the professional Services covered by this Agreement, including any notice of non-renewal, should be sent to your Rackspace Professional Services Project Manager, whose contact information will be included on the Statement of Work. 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:
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 sent to the individual(s) you designate as your contact(s) on the Professional Services Agreement, either by electronic mail United States mail, or overnight courier. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time 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.
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, excluding Third Party Billing Services, Rackspace remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Rackspace performed the Services itself.
15.1 General. Allsoftware that we provide for your use is subject to the terms of this Agreement, including software that we may authorize you to install on devices located outside of our datacenter. You may not use any software we provide after the expiration or termination of this Agreement, or the particular service for which it was provided, and you may not copy the software unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us. Any additional restrictions which may apply to third party software we utilize in the performance of the Services will be specified in the Statement of Work.
15.2 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) 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.
16. FORCE MAJEURE
Neither of us will be in violation 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 organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
17. 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.
If there is a conflict between the terms of the Statement of Work and these Terms, then these Terms shall control. If any part of the Professional Services 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 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 word “our” 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 date we begin providing services or another date. The following provisions shall survive expiration or termination of the Agreement: (i) Sections 1, 4, 6, 8, 9, 10, 11, 12, 15, and 17 of these Terms, (ii) all provisions in the Agreement requiring you to pay fees for services provided prior to the time of expiration or termination, or requiring you to pay an early termination fee, and (iii) all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement.
These Terms are incorporated in your Professional Services Agreement by reference to a page on the Rackspace website. Although we may from time to time revise the Terms posted on this page, those revisions will not be effective as to a Professional Services Agreement that you signed prior to the date we posted the revision.
These Terms and the Professional Services Agreement do not modify the terms of any other agreement between us for the provision of dedicated or cloud or other hosting services.
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.
This Professional and Consulting Services Terms and Conditions 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.
Rackspace and MyRackspace are registered trademarks of Rackspace US, Inc.
April 3, 2013 Revision.