CLOUD DRIVE & SERVER BACKUP TERMS AND CONDITIONS
In addition to the General Terms and Conditions, your use of the Cloud Drive and Server Backup Services are subject to the following additional terms and conditions:
1. ADDITIONAL DEFINED TERMS
Some words used in these Cloud Drive Terms and Conditions have particular meanings:
“AWS” means the Amazon Web Services S3 storage service.
“Cloud Files” means the Rackspace cloud storage service.
“Server Backup” means the Rackspace server backup service.
“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 found at 45 CFR §160.103.
“Services” has the meaning given in the General Terms and Conditions, and includes the right to use the Software described in the Service Description, and AWS and/or Cloud Files or Server Backup storage.
“Software” means: (i) the Jungle Disk Workgroup Edition and the Jungle Disk Server Edition, and/or any other software that we may provide to you as part of the Services, and (ii) any updates, bug fixes, and successor versions or revisions that we may provide to you from time to time to supplement or replace any of the foregoing.
“Suppport” means such support services as Rackspace may from time to time make available to you.
2. WHO MAY USE THE SERVICES. If you have purchased Server Backup or the Jungle Disk Server Edition of the Services, only you and/or your employees or other agents may use the Services. If you have purchased Cloud Drive or the Jungle Disk Workgroup Edition of the Services, you may also authorize individuals other than your employees or agents to use the Services via the workgroup subaccounts, but you may create a workgroup subaccount only for individual, natural persons and not for a business entity or other organization. Rackspace is not obligated to provide support to your workgroup subaccount users, but may do so in its discretion. You may not resell the Services unless you have been approved as a Rackspace reseller and have executed a reseller addendum to the Hosting Services Agreement. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
3. ACCESS TO CLOUD FILES and AWS. You may access Server Backup, Cloud Files and AWS only via the user interface that is included with the Software, or other means that Rackspace may make available to you.
4.1 Personally Identifiable Information. The General Terms and Conditions require you to use reasonable security precautions in light of your use of the Services. For both the Server Backup and Cloud Drive Services, this includes encrypting any PII transmitted to or from, or stored using the Server Backup or Cloud Drive Service. You may use the encryption feature of the software to encrypt PII, or other encryption method of equal or better strength.
4.2 All Files. Rackspace is not liable for any harm resulting from a data breach or other unauthorized use or disclosure of files that were not encrypted using the Software.
5. LICENSE TERMS FOR JUNGLE DISK SOFTWARE. The Software is licensed not sold. You may use the machine readable version of the Software only in connection with your use of Server Backup, Cloud Files or AWS.
5.1 Per User (Cloud Drive). For Cloud Drive or the Jungle Disk Workgroup Edition, you may authorize use of the Software only by that number of users stated in your Service Description or on-line order quantity. Each user must be an individual, natural person, and not a business entity or organization. Each authorized individual may install and use the Software on as many computers as he or she wishes, but a license for a single user may not be shared by two or more individuals. You may permanently transfer authorization to use the Software to a new individual user within your organization, or if you are using Cloud Drive or the Jungle Disk Workgroup Edition, you may transfer a workgroup subaccount to a new workgroup user.
5.2 Per Server (Server Backup). You may use Server Backup or the Jungle Disk Server Edition on that number of servers stated in your Service Description or on-line order quantity. You may use the management software for Server Backup or the Jungle Disk Server Edition on as many computers as you wish.
5.3 Other License Terms. You may use any documentation included with the Software or otherwise provided to you by Rackspace, such as Help Files and FAQ, only in connection with your use of the Software. You may not copy the documentation except as reasonably incident to your use of the Software as permitted by this Agreement. You may not assign, sublicense or transfer the Software, any documentation, or the license for the Software or documentation. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on the Software or documentation. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble the Software except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten days advance written notice to Rackspace. You must promptly begin using any updated version or new version of the Software that Rackspace provides, and you may not use any prior version after the time that the new or updated version is installed. Rackspace may revoke or terminate this license at any time without liability, except that if Rackspace revokes or terminates the license prior to the expiration or termination of the Agreement, and does not provide you with substitute software that enables you to effectively use the Service, Rackspace shall refund any prepaid fees for the unused portion of the term of your Agreement for the Services. You may not use the Services or the Software in any nuclear, aviation, mass transit or medical application or in any other inherently dangerous applications. You acknowledge that the Software includes a reporting feature that will report usage information (but not the content of your files) to Rackspace via the Internet. Rackspace will use this information only for the purpose of verifying your compliance with the terms of this Agreement. If you use Cloud Drive or the Jungle Disk Workgroup Edition, the Software will require your end users to accept legal terms as a condition to installation. You may not attempt to interfere with or disable this feature, and you may not modify these terms via any separate agreement with your end users. Rackspace retains all rights in the Software except for the rights expressly granted in this Section. Restricted Rights: If the Services are paid for with United States federal government funds or are intended for use within or for any United States federal agency, the Software is provided with “Restricted Rights” as defined in DFARS 252.227-7013, Rights in Technical Data and Computer Software and FAR 52.227-14, Rights in Data-General, including Alternate III, as applicable. You must notify Rackspace in advance if you are a federal government entity or are using federal government funds to pay for your use of the Service.
6. ADDTIONAL OBLIGATIONS. In addition to your obligations stated in the General Terms and Conditions, you agree to do each of the following: (i) immediately notify Rackspace of any unauthorized use of your account or any other breach of security; (i) comply with our reasonable restrictions on the total size of files or objects, and (iii) if you are using Cloud Drive or the Jungle Disk Workgroup Edition, require you subaccount users to comply with the terms of the Terms for Workgroup Subaccounts and with applicable law and the AUP. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Rackspace’s reasonable determination shall control.
7. TERM. The initial term of the Agreement begins on the date we make the Services described in the Service Description or on-line order form available for your use and continues for the period stated in the Service Description or on-line order form. If no period is stated in the Service Description or on-line order form, then the initial term shall be one month. Upon expiration of the initial term, the Services will automatically renew for successive renewal terms of one month, unless and until one of us gives the other a written notice of non-renewal at least thirty (30) days prior to the expiration of the initial term, or then-current renewal term, as applicable.
8. FEES. Rackspace will charge you the recurring and non-recurring fees described in your Service Description. Unless you have made other arrangements, Rackspace will charge your credit card without invoice as follows: (i) for recurring fees, either in advance on or around the first day of each billing cycle, or, at Rackspace’s option, in arrears with your non-recurring fees; and (ii) for non-recurring fees (such as storage) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Rackspace’s option. Unless otherwise agreed, your billing cycle will be monthly, beginning on the date that Rackspace first makes the Services available to you. Rackspace may suspend all services (including services provided pursuant to any unrelated agreement we may have with you) if charges to your credit card are rejected or charged back for any reason. 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, you must also pay Rackspace’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. 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 and if Rackspace is required by law to collect taxes on the provision of the Services, you must pay Rackspace the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. Rackspace may, at its option, require you to make payments through a third party billing service.
9. FEE INCREASES. We may increase fees at any time by posting the new fees on our website or giving you notice of the increase at least forty five (45) days in advance of the fee increase, except that we may increase the fees for AWS storage without notice if Amazon Web Services increases its fees charged to Rackspace.
10. SUSPENSION. We may suspend your Services without liability as described in the General Terms and Conditions. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charges you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
11. TERMINATION FOR CONVENIENCE. You may terminate the Agreement for convenience at any time by giving us a written notice or closing your account via our online account closing process. We will not refund any prepaid portion of the fees for the Services if you terminate for convenience, and we will charge the usage fees through the effective date of termination. We may terminate this Agreement for convenience at any time on at least thirty (30) days advance written notice.
12. TERMINATION FOR BREACH. For your Cloud Files and Server Backup Services, this section supersedes and replaces the section in the General Terms and Conditions captioned “Termination for Breach.”
We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, or we determine, in our reasonable discretion, that there is evidence of fraud in connection with your Services, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Service Description for Services or signed up for the services on-line through the Rackspace website, or if you are an entity or fiduciary, the individual submitting the Service Description for Services (or signing up for the Services through the Rackspace website) 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 three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on this grounds we must give you a reasonable opportunity to migrate your files from Server Backup, AWS or Cloud Files; (v) you use your Service in violation of the AUP, or (vi) 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.
You may terminate the Agreement for breach on written notice if: (i) 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, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
13. ACCESS TO DATA/BACK UPS. You will not have access to your data stored on Server Backup, Cloud Files or AWS during a suspension or following termination. You agree to keep a current and reliable copy of all your stored files. Rackspace has no obligation to help you recover files that you or your users may inadvertently delete or corrupt.
14. RESPONSIBLIITY FOR USE OF THE SERVICES. You are responsible to Rackspace for the violation of the Agreement or the Terms for Workgroup Subaccounts by any employee or agent of yours, your workgroup members, any other person to whom you have given access to the Services, and any person who gains access to your files or the Services as a result of your failure to use reasonable security precautions, to the same extent as if you had commited the violation yourself, even if such violation was not authorized by you. You are responsible to Rackspace for any fees arising from the use of the Services by any of these persons, even if that use was not authorized by you.
15. SERVICE WARRANTY AND REMEDY. We warrant that the Services and the Software wll conform to the documentation we provide either online or with the Software. Your sole and exclusive remedy for our breach of this warranty will be a refund of the fees for the billing period during which you notified us of your warranty claim. Rackspace’s liability for Server Backup, Cloud Files or AWS downtime shall not exceed an amount equal to your fees for Server Backup, Cloud Files or AWS storage for the billing period during which the downtime occurred.
16. EXPORT MATTERS. See the General Terms and Conditions for terms regarding export compliance. The Software contains “strong encryption” that is controlled for export by United States law and the laws of other countries.
17. INDEMNIFICATION. Your indemnity obligations stated in the General Terms and Conditions shall, in addition to the other grounds stated, cover any legal claim by your authorized workgroup member.
In addition to the restrictions on assignment stated in the General Terms and Conditions, you may not sublicense the Software without Rackspace’s prior written consent.
19. EVALUATION USE OF SERVICES. If Rackspace authorizes your use of the Services without charge on an evaluation or trial basis, then notwithstanding anything to the contrary herein, Rackspace provides the evaluation Services “AS IS” with no representation or warranty. You must stop using the Services at the end of your designated trial period or any time that Rackspace revokes your trial use rights.
20. BETA SERVICES. If you elect to participate in any beta test of a Rackspace Service (a “Beta Service”), then your use of the Beta Service is subject to the following additional terms:
i. you acknowledge that the Beta Service is a pre-release version and may not work properly;
ii. you acknowledge that your use of the Beta Service may expose you to unusual risks of operational failures;
iii. you should not use the pre-release version of the Beta Service in a live production environment;
iv. we may terminate the Beta Service at any time, in our sole discretion;
v. the commercially released version of the Beta Service may change substantially from the pre-release version and programs that use or run with the pre-release version may not work the commercial release or subsequent releases.
vi. you agree to provide prompt feedback regarding your experience with the Beta Service in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You agree that we may use your feed back for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your testing of the service shall be owned exclusively by Rackspace.
vii. you agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Service, is “Confidential Information” of Rackspace as defined in these Terms of Service and may not be disclosed to a third party or used for any purpose other than providing feedback to Rackspace.
viii. the Beta Service is provided "AS IS" with no warranty whatsoever.
ix. to the extent permitted by applicable law, Rackspace disclaims any and all warranties with respect to the Beta Service including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement;
x. 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 your use of the Beta Service shall be a payment of money not to exceed Fifty Dollars ($50.00).
© 2011 Rackspace US, Inc.
Rackspace and Rackspace Cloud Drive are registered trademarks of Rackspace US, Inc.; Jungle Disk is a trademark of Jungle Disk, LLC.