RACKSPACE CLOUD: PRIVATE EDITION^TM SERVICES AGREEMENT
 

This Rackspace Cloud: Private Edition, Services Agreement (this “Agreement”) is between Rackspace Ltd (“Rackspace” or “we”) and the customer identified in a RCPE Service Order that incorporates this Services Agreement (“Customer” or “you”).

BACKGROUND

A. Customer has deployed or plans to deploy a cloud computing platform that incorporates software distributed by the OpenStackTM Project located at openstack.org (“OpenStack Software”);

B. Rackspace provides deployment and support services for OpenStack Software.

Customer and Rackspace agree that Rackspace will provide services related to Customer’s use of OpenStack software as defined in this Agreement and subject to the limitations, terms, and conditions stated in this Agreement.

AGREEMENT

1 DEFINED TERMS. The following words, when capitalized, shall have the meaning stated:

1.1 “Rackspace Cloud: Private Edition” or “RCPE” means Customer’s cloud computing platform for which Rackspace is providing Support Services under a Service Order.

1.2 “Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, excluding public holidays in the United Kingdom.

1.3 “Confidential Information” means all information disclosed by one party to the other, whether before or after the effective date of this Agreement, that the recipient should reasonably understand to be confidential, including: (i) for each party, any Intellectual Property or proprietary information maintained in confidence (such as unpublished source code or inventions), (ii) for Rackspace, the Reference Architecture, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information that Customer may observe on a tour of a data center), and other proprietary information or technology, and (iii) for both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is independently developed by one party, without reference to the other’s Confidential Information, that a party develops independently without reference to the Confidential Information of the other party, or that becomes available to one party other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.

1.4“Intellectual Property” or “IP” means legally protectable rights related to patents, copyrights, trade marks, trade secrets, and any other proprietary intellectual property.

1.5 “OpenStack Powertrain” means the portion of RCPE comprising one of the following: (i) a named release of the OpenStack software as distributed by the OpenStack Project, or (ii) the components of the OpenStack Software tagged as “release,” “trunk,” “tip, or “master.”

1.6 “Reference Architecture” means the materials provided to Customer by Rackspace specifying hardware, networking, software configuration and other elements of an OpenStack cloud deployment required for RCPE.

1.7 “Services” or “Support Services” means the Rackspace deployment or support services (or both) defined in Section 2 (Services) and Schedule 1 (Support Process).

1.8 “Service Order” means a document signed by the parties that incorporates this Agreement by reference, and that describes a specific cloud computing platform for which Rackspace is to provide Services under this Agreement.

1.9 “Support Hours” has the meaning stated on Schedule 1 (Support Process).

2 SERVICES Rackspace’s obligation to provide Services is contingent on Customer’s satisfaction of Rackspace’s credit approval criteria. Rackspace will provide the Services in accordance with this Section 2 and the support process described on Schedule 1 (Support Process). Rackspace will perform the Services in a good and professional manner and in accordance with applicable law as set forth in Section 15 below. Terms for specific Services are as follows:

2.1 Deployment. If the Service Order includes “Deployment Services” then Rackspace shall provide remote services to assist Customer in configuring its cloud software architecture to the specifications of the Reference Architecture. Deployment Services shall be provided during Business Hours only. Rackspace personnel are not required by this Agreement to perform any deployment services on site at Customer’s premises. If Rackspace agrees to perform any services on site at Customer’s premises, those services will be governed by a separate agreement between Rackspace and Customer.

2.2 Support Services. Rackspace’s obligation to provide Support Services is contingent on successful completion of a verification by Rackspace, that in Rackspace’s sole discretion the RCPE conforms to the requirements of this Agreement (Reference Architecture and supported OpenStack Software version). If the Service Order includes Support Services, Rackspace will provide technical support for the OpenStack Powertrain portion of RCPE. Rackspace does not guarantee resolution of any support request.

2.3 Excluded Services. Rackspace is not required to provide any support (including Support Services) directly to Customer’s end users. Rackspace’s engineering and development personnel are not required to interact with Customer personnel other than the skilled engineering and technical personnel designated by Customer as provided in Section 3 (Customer Obligations) below. Rackspace is not required to support any element of Customer’s RCPE other than the OpenStack Powertrain; examples of specific exclusions are stated on Schedule 1 (Support Process).

2.4 Reference Architecture. Rackspace will provide Deployment Services only for deployments meeting the Reference Architecture in effect at the beginning of the deployment. Rackspace may from time to time update the Reference Architecture. Following initial deployment, Customer is not required to update RCPE in response to changes in the Reference Architecture, but shall use reasonable efforts to update RCPE to the current standards set forth in the Reference Architecture at appropriate times in the lifecycle of the hardware, networking and software elements that comprise RCPE. Customer shall make RCPE platform design and other documentation available to Rackspace for review at all times during the Term. Rackspace may terminate any Service Order without liability if the RCPE covered by the Service Order does not conform to the applicable Reference Architecture and Customer fails to cure the non-conformity within thirty (30) days of Rackspace’s notice describing the non-conformity in reasonable detail.

2.5 Supported Versions of OpenStack Software. Rackspace will provide Deployment Services only for the version of OpenStack Software that is the latest release as of the beginning of the deployment. Rackspace is not required to provide Support Services at any time under this Agreement for any but the current and one prior major version release of OpenStack Software (e.g., Essex and Diablo), and for the current and up to three prior minor versions of the of the OpenStack Software. Support Services will include all minor version releases within a supported major version. To continue to receive Support Services, Customer must update RCPE from time to time current with OpenStack Software releases. Customer shall be responsible for initiating updates to released versions, but Rackspace Support Services shall include support for updating.

3 CUSTOMER OBLIGATIONS

3.1 Access. Customer will enable Rackspace’s reasonable method for secure access to RCPE for the purpose of performing the Services.

3.2 Customer Personnel. Customer’s technical personnel shall have the skill and experience necessary to interact with Rackspace’s support and technical personnel, shall be active members of the OpenStack community, and shall keep current on OpenStack developments as they related to RCPE. Customer shall designate senior engineering and development staff to interact with Rackspace’s support team under this Agreement, and such personnel shall work with Rackspace in a collaborative and cooperative manner to jointly resolve support issues.

3.3 Data Backup. Customer shall maintain backups of all information stored on RCPE on an environment separate from RCPE.

3.4 Laws Applicable to Customer. Customer acknowledges that it is solely responsible for compliance with all laws applicable to its use of the RCPE, including data privacy laws and regulations. If Rackspace’s access to the RCPE under this Agreement would result in exposure of regulated data, including but not limited to personal data or financial information, in violation of applicable law, 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. You represent and warrant that you will 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, nor will you provide administrative access to the Services to any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under United Kingdom export regulations.

3.6 No High Risk Use. Customer may not use RCPE in any situation where failure or fault of RCPE could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Customer may not use, or permit any other person to use RCPE in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices.

4 RESTRICTIONS ON RESALE

During the Term of this Agreement, Customer may use RCPE for its internal business purposes, and to provide services to its customers. Customer may resell the use of the virtual machines provisioned on RCPE or the use of the RCPE if bundled with Customer’s own service, provided that Customer may not resell the Services , use of the RCPE on a stand-alone basis or resell the RCPE for the purpose of creating a public cloud offering that competes with Rackspace cloud services.

5 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-sublicencable, non-transferable basis solely for use in providing or using the Services; provided, however, if and to the extent a party contributes any Intellectual Property to the OpenStack project, the other party shall have those licence rights defined in the Apache 2.0 licence.

6 FEES

6.1 Fees. Fee amounts are stated on the Service Order.

6.1.1 Deployment Services. The Deployment Services fee shall be stated on the initial Service Order.

6.1.2 RCPE Verification Fee. Rackspace will invoice verification fees in arrears following completion of each verification process under Subsection 2.1.1. Rackspace may charge a verification fee for each separate verification process, including any re-verification process that is performed following a change to a RCPE to bring it into compliance with the requirements of this Agreement.

6.1.3 Support Fees. Rackspace will invoice fees for Support Services monthly in arrears based on the number of physical servers included in RCPE. Rackspace shall select a time during each calendar month to count the servers on a snapshot basis, and this snapshot shall be the basis for the calculation of the fees for that month. Customer agrees that it shall not manipulate the number of servers for the purpose of reducing its fees and shall provide Rackspace access to the RCPE upon Rackspace’s request for the purposes of such count. Rackspace may also utilize a service agent which runs on the RCPE for purposes of conducting such count, and Customer agrees to cooperate with Rackspace to ensure the functionality of such agent.

6.1.4 Fee Increases. If following the initial term or any renewal term you do not renew a Service Order, but continue to use the Services on a month-to-month basis, Rackspace may increase the fees on ninety (90) days advance written notice.

6.1.5 Early Termination Fee. If you terminate a Service Order for convenience, we may charge you an early termination fee equal to the minimum monthly fee times the number of months remaining in the then current term of the Service Order, including a prorated amount for any partial month.

6.2 Payments. Payment of all our invoices shall be due on receipt. If you have arranged for payment by credit card or direct debit, Rackspace may charge your card or account on or after the invoice date. If any amount is overdue by more than twenty eight (28) days, Rackspace may:

6.2.1 charge interest on overdue amounts at 1.5% per month. In the event Rackspace brings a legal action to collect due to late payment of valid invoices, you must also pay Rackspace’s costs of collection, including reasonable legal fees, expenses and court costs. If your payment is returned for insufficient funds, we may charge you an administration fee up to the maximum amount permitted by law.

6.2.2 suspend all Services, and services provided pursuant to any unrelated agreement, if you do not pay the overdue amount within four (4) Business Days of our written notice to your billing contact. You agree that if your Services are reinstated after a suspension for non-payment, you will pay a reasonable reinstatement fee.

6.3 All payments will be made in the currency in the Services Description at the exchange rate at the date of the invoice.

6.4 Invoices that are not disputed within one (1) year of invoice date are conclusively deemed accurate.

6.5 Taxes. Customer shall remit to Rackspace all sales, VAT or similar tax imposed on the sale of the Services described in this Agreement (but not in the nature of income taxes on Rackspace) that Rackspace is required by law to collect.

7 WARRANTY DISCLAIMERS

Rackspace makes no representation or warranty whatsoever regarding the OpenStack Software.

We disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law, including the implied warranties relating to satisfactory quality and fitness for a particular purpose. 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.

8 TERM AND TERMINATION

8.1 Term. This initial term of this Agreement shall end one (1) year from the Effective Date (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one year renewal terms (each a “Renewal Term”) provided that following the Initial Term, either party may terminate this Agreement on thirty (30) days advance written notice. The term of each Service Order shall be stated in the Service Order, or if no term is stated, the initial term shall be six months from date of last signature. This Agreement shall survive as to any Service Order that is executed during the Initial Term or any Renewal Term of this Agreement until the expiration or termination of the Service Order.

8.2 Termination for Convenience. Unless otherwise stated in a Service Order, Customer may terminate any Service Order for convenience at any time by giving Rackspace at least sixty (60) days advance written notice as provided in Section 11 (Notices) below, provided that Customer shall not be entitled to any refund of fees upon a termination for convenience.

8.3 Termination for Breach. Either party may terminate any Service Order, or may terminate this Agreement and all Service Orders, for breach if the other party fails to perform any material obligation under a Service Order or this Agreement and does not cure the failure within thirty days of the party’s written notice that describes the failure in reasonable detail.

8.4 Survival. The following provisions shall survive expiration or termination of this Agreement: Intellectual Property, Confidential Information, Indemnification, Limitation of Liability, Payments, Governing Law, Notices, Miscellaneous, and any other provisions that by their nature are intended to survive expiration or termination.

9. CONFIDENTIAL INFORMATION

Each party 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 its legal rights under the Agreement, or as may be required by law. Each party agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) to its 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 this Agreement;
(ii) to a law enforcement or government agency if requested, or if the party 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 the party subject to the process shall 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.

Each party shall use reasonable care to protect the Confidential Information of the other party from unauthorised disclosure.

10 LIMITATION ON DAMAGES

10.1 Subject to clause 10.2, but without prejudice to Rackspace’s right to the fees for the Services including any early termination fee (if applicable):

10.1.1 each party’s liability to the other for direct loss or damages whether in tort (including, without limitation, negligence), contract or otherwise, is limited to and shall not exceed an amount that is twelve (12) times the monthly recurring fee under this Agreement as of the time of the occurrence of the event(s) giving rise to the claim; and

10.1.2 neither party will be liable to the other in any way for any special, incidental, economic, or indirect loss or damages, or for loss of data, loss of profits, revenues, customers or contracts, wasted management time, increased costs or expenses, whatsoever and howsoever arising including in connection with the performance, non-performance or delayed performance of the Services or otherwise under this Agreement even if that party has been advised by the other or should have reasonably been aware of the possibility of such loss.

10.2 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:

10.2.1 death or personal injury caused by its negligence; and
10.2.2 any fraud or fraudulent misrepresentation.

10.3 Credits. The credits stated in the Support Process Schedule are Customer’s sole and exclusive remedy for Rackspace’s failure to meet those guaranties for which credits are provided unless the failure is due to Rackspace’s willful misconduct. If Rackspace fails to perform any element of the Services for which a credit is not provided, Customer’s sole and exclusive remedy for shall be to require Rackspace to perform or re-perform the Services as applicable.

10.4 Rackspace agrees to have valid insurance cover in place for its own legal liability to you under this Agreement up to the limits set out in this clause 13. As the fees for the Services properly reflect the delineation of risk between the parties, each party agrees to ensure that it will be responsible for making its own arrangements for the insurance of any loss in excess of its accepted legal liability as necessary.

11. NOTICES

Your routine communications to Rackspace regarding the Services, including any notice of non-renewal, should be sent to your Rackspace account team using the MyRackspace portal. 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 post to:

legalnotices@rackspace.co.uk
Vice President International, Legal & Company Secretary
Rackspace Limited
Unit 5 Millington Road
Hyde Park Hayes
Hayes
UB3 4AZ

Rackspace’s routine communications regarding the Services and legal notices will be posted on the MyRackspace portal or sent to the individual(s) you designate as your contact(s) on your account either by electronic mail (including an electronic mail referring you to a ticket posted on your MyRackspace portal), first class post, or overnight courier. Notices are deemed received as of the time posted or delivered, or if that time does not fall on a Business Day, as of the beginning of the first Business Day following the time posted or 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.

12. PUBLICITY, USE OF MARKS

Customer agrees that Rackspace may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer in promotional materials, including press releases. Rackspace may not use Customer’s name or logo in a manner that suggests an endorsement or affiliation. Customer may not issue any press release or other publicity regarding the subject matter of this Agreement, or publicly disclose that it is using the Services without Rackspace’s prior written consent, or use the Rackspace name, logo or other identifying indicia without Rackspace’s prior written consent. Customer acknowledges that the use of the OpenStack name and logo is subject to the OpenStack trade mark policy at www.openstack.org/brand/openstack-trademark-policy.

13. ASSIGNMENT/SUBCONTRACTORS

Neither party may assign the Agreement without the prior written consent of the other party except that Rackspace may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganisation or a sale of its business. We may transfer your Confidential Information as part of any such transaction. 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 Services performed by its third party service providers to the same extent as if Rackspace performed the Services itself.

14. FORCE MAJEURE

Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its 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.

15. GOVERNING LAW, LAWSUITS

The Agreement is governed by the English law and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts of England and Wales except that Rackspace may seek to enforce any judgment anywhere in the world where you may have assets. Each of us agrees that it will not bring a claim under the Agreement more than two (2) years after the event giving rise to the claim occurred.

16. TRADE MARK USAGE

16.1 Limited Licence. Each party wishes to fully protect its rights in its respective names, logos, trade marks, trade names, domain names, and other identifying indicia (“Marks”). Therefore, each party authorizes the other party to use its respective Marks only in the very specific ways authorized in this Agreement, subject to the restrictions stated in this Section.

16.2 Supervision/Revocation. Each party agrees to comply with the other party’s published trade mark usage policies and ongoing instructions and supervision with respect to its Marks, including (i) the context in which the Marks are used; (ii) the substitution of a newer version of a Mark for a version previously authorized; (iii) the size, color, and graphic quality of the display of the Marks; and (iv) all other matters within the reasonable discretion of the owner of the Marks. Either of us may revoke any licence to use one or more of our Marks at any time for any reason within our sole discretion. Each of us agrees to stop using the other party’s Marks as soon as reasonably possible following receipt of a notice of revocation of a licence, or receipt of a notice of non-renewal or termination of the Agreement under Section 8 (Term and Termination) above, and in all events by the effective date of expiration or termination of the Agreement.

16.3 Mark Protection. Any licence to use the other party’s Marks, including as set forth above, is a limited, royalty-free, non-exclusive, non-sublicenceable, and non-transferable licence. Each of us reserves all rights in our respective Marks, including any non-English version of such Marks, except to the extent specifically stated above or in a subsequent written authorization. Each party’s use of the other party’s Marks shall inure to the benefit of the owner of the Mark. Each party acknowledges that there is substantial goodwill and commercial value associated with the other party’s Marks and agrees that it will use commercially reasonable efforts to protect the other party’s Marks. Neither of us will do any of the following in any market or jurisdiction in the world with respect to the other party’s Marks: (i) attack ownership of or rights to any of the Marks, or protectability of the Marks, (ii) file an application for registration of any of the Marks with the trademark office of any country, or file an application to register any of the Marks as a domain name in any country or with any domain name registrar; (iii) use in any manner or file an application for registration of any of the Marks or any mark that is confusingly similar to the Marks; (iv) take any action that would bring any of the Marks into public disrepute; (v) take any action that would tend to destroy or diminish the goodwill in any of the Marks, including using the Marks in a descriptive manner or as generic references for similar services of other providers; or (vi) reverse engineer, disassemble or decompile any of the other’s Marks to the extent such materials are provided in object code format.

17. MISCELLANEOUS

If there is a conflict between the terms of a Service Order and this Agreement, then this Agreement shall control. If any part of this Agreement or a Service Order is found unenforceable by a court, the rest of the Agreement or Service Order 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 party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other, and neither party 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.”Any use in this Agreement of words denoting the singular include the plural and vice versa. References to sections or subsections refer to sections or subsections of this Agreement. The terms of this Agreement may be varied only by a written agreement signed by both parties that expressly refers to this Agreement. The pre-printed terms of each party’s business forms shall have no effect whatsoever. Any exhibits that are referenced in this Agreement are part of this Agreement, and are incorporated herein by this reference. 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 Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous agreement or understanding, whether written or oral.

© 2012 Rackspace Limited
10 January 2012 revision

Rackspace®, MyRackspace® and The Fanatical Support Promise® are registered trademarks of Rackspace US, Inc. in the United States and/or other countries. Microsoft is a registered trademark of Microsoft Corporation. OpenStack is a trademark of OpenStack, LLC

 

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