RESELLER ADDENDUM TO HOSTING SERVICES AGREEMENT
This Reseller Addendum (this “Addendum”) is an addendum to the Hosting Service Agreement (the “HSA”). Capitalized terms not otherwise defined below shall have the meaning given them in the Hosting Services Agreement.
Subject to the terms of this Addendum and the other portions of our Agreement, and provided that you meet Rackspace’s requirements for participation in the Reseller Program (the “Reseller Program”), Rackspace authorizes you to use the Mail Services, Cloud Drive Services, and/or SharePoint Services to provide services to your end users.
2. MARKETING /PUBLICITY
2.1 Marketing Materials and Activities. If you use information or materials other than those provided by Rackspace to market the Rackspace Services, you must seek our advance approval. Any marketing activities you undertake will be at your sole expense unless otherwise agreed in advance in writing. You must conduct your activities in compliance with applicable laws and regulations.
2.2 Logo. Provided that you have first signed the Rackspace Trademark License Agreement, you may include the “Powered by Rackspace” logo on your tangible and electronic sales materials, except that you may not use this logo as part of any email marketing.
2.3 Email Marketing. You may not use Rackspace’s name or logo in any bulk email whatsoever unless we have given our advance written consent. We may terminate the Agreement if any meaningful spam complaints naming Rackspace result from your marketing activities.
2.5 Publicity. Except as described above, neither of us may issue any press release or other publicity regarding our relationship without the other’s advance written consent. Neither of us may disparage the other in any manner or engage in any conduct that is harmful to the reputation of the other.
3. RELATIONSHIP WITH YOUR END USERS
3.1 End Users. For the purposes of this Addendum, “end users” refers to your customers or other persons to whom you are reselling or providing the Rackspace Services.
3.2 Support. You agree that you will be the first line of support for your end users, and will provide live support to your end users during normal business hours, including basic trouble shooting for the Rackspace Services. Rackspace will provide support to you in connection with your Reseller accounts. Unless you have made special arrangements, Rackspace does not expect to communicate directly with your end users regarding support questions, and you agree that you will not refer your end users to Rackspace for direct support.
3.3 No Third Party Beneficiaries. Your end users are not parties to or beneficiaries of the Agreement between us.
3.4 Written Agreement. You must require your end users to sign a written contract that includes an acknowledgement that they have no rights against your suppliers in connection with the Services that you are reselling. If you are reselling Rackspace Services that include Microsoft software, you must also incorporate by reference in your written agreement those Microsoft license terms that appear at http://www.rackspace.com/information/legal/microsoftlicense.php. You must also include a prohibition against high risk use of the Services: “No High Risk Use. You may not use the [Rackspace services] in any situation where failure or fault of the [Rackspace services] could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug, and Cosmetic Act.” You may use a term other than “Rackspace services” in this clause, as appropriate to the language in your contract with your end user.
3.5 Liability for Fees, Breach of Agreement. You acknowledge that you are liable under the Agreement for the fees due for Services regardless of whether your end users pay amounts due in connection with their accounts with you. You acknowledge that you are responsible for use of the Services by your end users in violation of the AUP or other portion of the Agreement to the same extent as if you were using the Services yourself, and that Rackspace may suspend Services or terminate the Agreement between us for your end users’ violations of the Agreement in accordance with the terms of the Hosting Services Agreement.
3.6 End User Transfers. You agree that if your end user asks Rackspace to transfer its account to another reseller of Rackspace, Rackspace may do so, provided that the end user has paid all fees due you through the requested date of transfer. Upon receipt of a transfer request from an end user, Rackspace will notify you at least five days in advance of the requested transfer date. Rackspace will complete the transfer unless you have notified us in writing before the end of the notice period that the end user has not paid fees due you through the requested transfer date. You acknowledge and agree that your end user is the owner of their content and data hosted by Rackspace and the end user’s content and data may be transferred as part of the transfer of their account.
In addition to the other grounds for indemnification stated in the Hosting Services Agreement, if any of the Rackspace Indemnified Parties is faced with a legal claim by your end user (on any theory) you will pay the cost of defending the claim (including reasonable attorney fees) and any damages awards, fine or other amounts imposed on Rackspace as a result of the claim.
5. CONFIDENTIAL INFORMATION/INTELLECTUAL PROPERTY
You agree that the terms of this Reseller Program and this Addendum are “Confidential Information” of Rackspace as defined in the Hosting Services Agreement. We agree that we do not acquire any interest in any information or intellectual property of your end users.
6. REPRESENTATIONS AND WARRANTIES
In addition to your other representations and warranties stated in the Hosting Services Agreement, you represent and warrant to Rackspace that you have not been and are not currently the subject of any investigation or legal proceeding of any kind in relation to spamming or the violation of any consumer protection or deceptive trade practices law or regulation.
7. RELATIONSHIP BETWEEN THE PARTIES.
We agree that we are independent contractors and that neither of us has any fiduciary duty to the other. Neither party is the agent of the other. Neither party may represent to any person that it has the power to bind the other on any service contract or other agreement or take any action reasonably likely to lead the public to believe that it is the agent or representative of the other. The Agreement is non-exclusive. Either party may provide services of the type described herein to any person, including a competitor of the other party. Neither party agrees to provide the other with any type of exclusivity in any market segment or geographical region.
8. FINAL AGREEMENT
This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.