This Ad-hoc Services Agreement for SharePoint (this "Agreement"
) is between Rackspace US, Inc. d/b/a Rackspace
) and the customer who accepts these terms ("you"
and is effective as of the time that you accept the Agreement as part of Rackspace's online order process.
1. DEFINED TERMS
"Acceptable Use Policy"
means the Rackspace Acceptable Use Policy posted at
as of the date you accept this
Agreement which is incorporated herein by reference.
means any and all legal entities which now or hereafter the ultimate parent of Rackspace controls. For
the purpose of this definition, "control" shall mean an entity, directly or indirectly, holding more than fifty per
cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings,
or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities
of such legal entity.
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.
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for you, any proprietary information that you maintain in confidence (such as unpublished source code or inventions)
and PII, (ii) for Rackspace, unpublished prices and other terms of service, audit and security reports, product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.
"Personally Identifiable Information"
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 found at 45 CFR §160.103.
means the ad-hoc services for SharePoint that we may provide to you at your
requests, excluding any support or services covered by a hosting services agreement or other agreement between us.
Rackspace will perform the Services in accordance with these terms on a best efforts basis. Rackspace agrees to follow
security procedures at least as stringent, in Rackspace's reasonable judgment, as those described at
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 hours/days that Rackspace was
unable to begin or complete the Services in a reasonable manner as a result of your delay.
3. YOUR OBLIGATIONS
You must use reasonable security precautions in connection with your use of the Services and this Agreement, this
includes encrypting any PII transmitted to or from, or stored on, the SharePoint environment. You must comply with the
laws applicable to your use of the Services and the Acceptable Use Policy, if applicable. You must provide information
and take actions as Rackspace may reasonably request. 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. You must create, or arrange for the creation of, a reliable backup of any information
that Rackspace will have access to as part of the Services prior to the time that Rackspace begins the Services. You
are responsible for keeping your account permissions, billing, and other account information up to date using your
portal or via another Rackspace defined process. You shall provide us with a resource who
has the necessary access to the SharePoint environment and can also share their desktop with us via an encrypted system,
that we can provide if requested, and monitor our access of the SharePoint environment during our performance of the
requested Services. You must pay when due the fees for the Services.
4. PROMISES WE DO NOT MAKE
4.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. We do not promise
that data, information and files stored in the environment will not be lost or damaged. You acknowledge that
there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information
4.2 We disclaim any and all warranties not expressly stated in this Agreement including the implied warranties of
merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability
of the Services chosen. Any services that we are not contractually obligated to provide but that we may perform for
you at your request and without any additional charge are provided on an AS IS basis.
Certain Rackspace Services are designed to help you comply with various regulatory requirements that may be
applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business
and for selecting and using those Services in a manner that complies with the applicable requirements.
5. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES
Rackspace is not responsible to you or any third party for unauthorized access to your data or the unauthorized use of
the Services. You are responsible for the use of the Services by any employee of yours, any person you authorize to
use the Services, any person to whom you have given access to the Services, and any person who gains access to your
data or the Services as a result of your failure to use reasonable security precautions, even if such use was not
authorized by you.
6. EXPORT MATTERS
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls
list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Rackspace is legally
prohibited to provide the Services. You may not use the Services for the development, 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 the Part 740 of the United States Export
Administration Regulations, or as otherwise prohibited by law, nor may you provide administrative access to the Service
to any person (including any natural person or government or private entity ) that is located in or is a national of
any country that is embargoed or highly restricted under United States export regulations.
7. INTELLECTUAL PROPERTY
Customer's Pre-Existing Intellectual Property. You hereby grant Rackspace a limited term, non-exclusive, revocable,
non-transferable license to use the Customer Intellectual Property solely for the purpose of performing the Services,
and you retain all other right, title and interest in and to the Customer Intellectual Property. You represent and
warrant to Rackspace that you have all of the rights in the Customer Intellectual Property needed to grant the license
stated in this Section and that Rackspace's use of the Customer Intellectual Property as permitted by the Agreement will
not infringe on the intellectual property rights of any third party.
Rackspace's Pre-Existing Intellectual Property. Rackspace will retain all right, title, and interest in and to its
intellectual property existing prior to the beginning of the Services.
Intellectual Property Created by Rackspace as part of the Services. Unless otherwise specifically agreed to in
writing, 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 of the intellectual property is expressly defined as part of
the "Services", 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. 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 Customer Intellectual Property or any of your Confidential Information.
8. TERM AND TERMINATION
This Agreement is effective as of the date you accept the Agreement as part of Rackspace's online order
8.2 Termination for Convenience.
Either party may terminate the Agreement for convenience on ten (10) days
written notice as provided in Section 15(Notices) below, provided that you are liable for all fees due under the
Agreement for work completed prior to the effective time of termination.
8.3 Termination for Breach.
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 overdue amount within four (4) Business Days of our written notice, (iv) without notice if you
have made payment arrangements via credit card or other third party, and the third party refuses to honor our charges,
or (v) you fail to comply with any other provision of the Agreement and do not remedy the failure within ten (10)
days of our notice to you describing the failure.
Either of us may terminate the Agreement if the other party becomes insolvent or is unable to pay its debts or enters
into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding
seeking relief or protection under the bankruptcy laws of the United States or any similar laws of the United States or
any state of the United States.
You will be charged and agree to pay $250.00 per hour for Services under this Agreement. A minimum of one
hour will be billed and any additional time will be billed in 15 minute increments for the Services contemplated
under this Agreement.
Rackspace may invoice its fees in advance, or in arrears, either upon completion or on a weekly or monthly basis,
in our discretion.
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. Rackspace may suspend all services provided pursuant to
any unrelated agreement, if payment of any invoiced amount is overdue, and you do not pay the overdue amount within four
(4) Business Days of our written notice to your billing contact. 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, 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.
10. TAXES ON SERVICES
If Rackspace is required by law to collect taxes on the provision of the Service, you must pay Rackspace the amount of
the tax that is due or provide Rackspace with satisfactory evidence of your exemption from the tax. You must provide
Rackspace with accurate factual information to help Rackspace determine if any tax is due with respect to the provision
of the Services.
11. 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
12. LIMITATION ON DAMAGES
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost
profits, loss or damage to data, 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.
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, this Agreement, and any act or omission related to the Services or Agreement, whether
occurring before or after the execution of this 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 this
Agreement for the Services that are the subject of the claim.
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, violation of the AUP, failure to meet the security obligations required by the Agreement, violation
of your agreement with your customers or end users, or violation of Section 6 (Export Matters) or Section 7
(Intellectual Property) 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 Indemnities 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 Services, and any person who gains access to the Services 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 dispute
between persons having a conflicting claim to control your account with us, or any claim by your customer or end user
arising from an actual or alleged breach of your obligations to them.
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.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify
you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner
that suggests an endorsement or affiliation.
Your routine communications regarding the Services covered by this Agreement should be sent to your services account
team using your MyRackspace portal. If you want to give a notice regarding termination of the Agreement for breach 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 your services 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 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 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.
17. HOSTING SERVICES AGREEMENT
Nothing in this Agreement modifies the terms of any hosting services agreement(s) between us. Your use of Rackspace
hosting services, including "Support" as defined in the hosting services agreement, is governed by the hosting services
agreement and not this Agreement. Except as expressly provided in this Agreement or a hosting services agreement, neither
party's obligations under either agreement are contingent on the other party's performance of its obligations under the
18. 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.
19. GOVERNING LAW, LAWSUITS
The Agreement is governed by the laws of the State of Texas, exclusive of its choice of law principles, 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. Exclusive venue for all disputes arising out of the Agreement shall be in the state
or federal courts in Bexar County, Texas, and we each agree not to bring an action in any other venue. You waive all
objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you
will not bring or participate in any class action lawsuit against Rackspace or any of its employees or affiliates.
Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim
If there is a conflict between the terms of any other agreement between the parties for the Services contemplated by
this Agreement and this Agreement, then this Agreement shall control. Any preprinted terms and conditions provided by
you on a purchase order or any other form shall be void and of no effect. If any part of this 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 this 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 this Agreement are for
convenience only and are not part of this Agreement. The use of the word "including" in this Agreement shall be read
to mean "including without limitation." The word "our" refers to Rackspace, unless the context clearly indicates
another meaning. The following provisions shall survive expiration or termination of this Agreement: (i) Sections 1,
4.1, 4.2, 7, 8, 9, 10, 11, 12, 13, 15, 17 and 19 of this Agreement, (ii) all provisions in this Agreement requiring
you to pay fees for services provided prior to the time of expiration or termination, and (iii) all other provisions
of this Agreement that by their nature are intended to survive expiration or termination of this Agreement.
This Agreement 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. in the
United States and/or other countries. Microsoft and SharePoint are registered trademarks of Microsoft Corporation.