1. THE HOSTING SERVICES AGREEMENT
The Hosting Services Agreement incorporates the following documents by reference: (i) the Services Description that describes the Services you are buying and related fees; (ii) these General Terms and Conditions containing the general terms and conditions applicable to all Services; (iii) the specific Product Terms and Conditions containing the additional terms for the particular Hosting Services you are buying; (iv) the Acceptable Use Policy; and (v) if your Hosted System will be provided from data centres located in one or more non-Australian jurisdictions, the Country Specific Terms that may be applicable in those jurisdictions. When we use the term “Hosting Services Agreement” or “Agreement” in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the date of the email sent to you by Rackspace expressly confirming acceptance of your order or the date you accept the Agreement as part of Rackspace’s online order process.
2. DEFINED TERMS
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Rackspace Acceptable Use Policy posted at http://www.rackspace.com.au/company/legal-acceptable-use-policy.php as of the date you sign the Agreement.
“Affiliate” means any and all legal entities which now or hereafter the ultimate parent of a party to this Agreement 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. “Australia Consumer Law” means Schedule 2 to the Competition and Consumer Act 2010 (Cth),
“Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, excluding public holidays in Sydney, Australia
“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including: (i) for you, all information transmitted to or from, or stored on, your Hosted System, (ii) for Rackspace, unpublished prices and other terms of service, audit and security reports, product development plans, solution diagrams, data centre designs (including non-graphic information you may observe on a tour of a data centre), 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 breach of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Country Specific Terms” means the addendum or addenda that may be incorporated into your Hosting Services Agreement if a portion of your Services are to be provided from a non-Australian jurisdiction for which we have special legal terms.
“Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system. Depending on the Services you are buying, the Hosted System may consist of a dedicated system for your use only, or the right to use certain parts of a shared system that Rackspace maintains for many customers, or a combination of some dedicated elements and some shared elements.
“Hosting Services” means: (i) Rackspace’s provision for your use of the Hosted System described in the Services Description, and (ii) Support.
“Non-excludable Rights” means a condition, warranty, right or guarantee implied by relevant legislation, including the Competition and Consumer Act 2010 (Cth), the exclusion of which from the Agreement would cause part or all of the Agreement to be void.
“Product Terms and Conditions” means the terms and conditions that are incorporated by reference in your Hosting Services Agreement and that state additional terms and conditions for the particular Hosting Services you are buying.
“Services Description” means a written description of the Hosted System and/or Supplementary Services you are buying from Rackspace, and related fees, that is incorporated by reference in the Agreement, including any “plan” or other name given to a Services description that you submit to Rackspace as part of an online order process.
“Service Level Guarantee” or “Service Level Guarantees” means a guarantee or guarantees identified as a “Service Level Guarantee” or “Service Level Guarantees” in the applicable Product Terms and Conditions.
“Services” means Hosting Services and Supplementary Services, collectively.
“Supplementary Services” means those services you purchase from Rackspace other than the Hosting Services, such as database administration or “DBA” services, and assistance or support for the application that you operate on your Hosted System.
“Support” has the meaning stated in the applicable Product Terms and Conditions.
“The Fanatical Support PromiseTM” means the Rackspace commitment stated at http://www.rackspace.com.au/company/legal-fanatical-support-promise.php. .
3. OUR OBLIGATIONS
Rackspace’s obligation to begin providing Services is contingent on your satisfaction of Rackspace’s credit approval criteria. Rackspace will provide the Hosting Services in accordance with the Services Description, the Service Level Guarantees, and other specifications in this Agreement. Rackspace will perform any Supplementary Services in a good and professional manner. Rackspace will maintain security practices that are at least as stringent as the minimum security practices described at http://www.rackspace.com/information/legal/securitypractices.php, and will provide the specific security services described in your Services Description. Rackspace will perform all Services in accordance with applicable law.
4. YOUR OBLIGATIONS
You must use reasonable security precautions in connection with your use of the Services. You must comply with the laws applicable to your use of the Services and with the Acceptable Use Policy. You must cooperate with Rackspace’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date using your MyRackspace® portal or via another Rackspace defined process. You must pay when due the fees for the Services stated in the Services Description or other agreement between us. If there is a dispute with respect to any portion of an invoice, you shall pay the undisputed portion of the fees promptly and provide written details specifying the basis of any dispute. Each of us agrees to work together to promptly resolve any disputes.
5. PROMISES WE DO NOT MAKE
5.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property.
5.2 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 other than any Non-excludable Rights that may apply. 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 subject to any Non-excludable Rights that may apply.
5.3 We do not have knowledge of the data you store within your Hosted System, including the quantity, value or use of the data. You are therefore responsible to take all reasonable steps to mitigate the risks inherent in the provision of the Services, including data loss. The Services that Rackspace has agreed to provide to assist you to mitigate such loss (if required) are set out in the Services Description, which may include backup services and geographically redundant servers. Rackspace does not promise to back up your data unless you have purchased backup services. If you purchase backup services Rackspace does not promise to retain any data backup(s) for longer than the agreed data retention period as set out in the Services Description. In all events, you release Rackspace from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup and to the extent that any Non-excludable Rights do not apply.
5.4 We will provide Support only to your administrative or technical contacts listed on your account. We will not provide support directly to your end users unless specifically agreed in writing.
5.5 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.
6. UNAUTHORISED ACCESS TO YOUR DATA OR USE OF THE SERVICES
Rackspace is not responsible to you or any third party for unauthorised access to your data or the unauthorised use of the Services unless the unauthorised access or use results from Rackspace’s failure to meet its security obligations stated in Section 3 (Our Obligations) of these General Terms and Conditions or the Services Description. You are responsible for the use of the Services by any employee of yours, any person you authorise 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 authorised by you.
7. TAXES ON SERVICES
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 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.
8. CHANGES TO THE ACCEPTABLE USE POLICY
8.1 We may change the Acceptable Use Policy to add or modify restrictions on our customers’ use of the Services, provided that the changes are reasonable and consistent with hosting industry norms. If we make a change to the AUP we will publish revised versions of the AUP at http://www.rackspace.com.au/company/legal-acceptable-use-policy.php. The revised AUP will become effective as to you on the first to occur of:
8.1.1 the first day of a renewal term for the Agreement that begins at least thirty (30) days after the time that the revised AUP has been posted;
8.1.2 your execution of a new or additional agreement for all or part of your Hosted System that incorporates the revised AUP by reference; or
8.1.3 thirty (30) days following our written notice to you of the revision to the AUP.
8.2 If your compliance with the revised AUP would adversely affect your use of the Hosting Services, and you give a written notice of your objection no later than thirty (30) days following the date that the revised AUP would otherwise have become effective as to you, we will not enforce the revision as to you until sixty (60) days following the date the revision would otherwise have become effective as to you, and you will continue to be subject to the prior version. During the sixty (60) day period, you may elect to terminate the Agreement on these grounds by giving written notice. We will not charge you an early termination fee for a termination on these grounds. If you do not elect to terminate during the sixty (60) day period, then the revised AUP will become effective as to you as of the end of the sixty (60) day period. If you terminate your Services under this Subsection, we may decide to waive that change as to you and keep your Agreement in place for the remainder of the term.
9. SUSPENSION OF SERVICES
9.1 We may suspend Services without liability if:
9.1.1 we reasonably believe that the Services are being used in breach of the Agreement;
9.1.2 you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement;
9.1.3 there is an attack on your Hosted System or your Hosted System is accessed or manipulated by a third party without your consent;
9.1.4 we are required by law to suspend your Services; or
9.1.5 there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Rackspace network or our other customers.
9.2 We will give you advance notice of a suspension under this clause of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Rackspace or its other customers from imminent and significant operational or security risk. If your Hosted System is compromised, then you must address the vulnerability prior to Rackspace placing the Hosted System back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a Supplementary Service.
10. TERMINATION FOR BREACH
10.1 You may terminate the Agreement for breach if we:
10.1.1 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;
10.1.2 fail to meet The Fanatical Support PromiseTM (subject to the conditions and procedures described at http://www.rackspace.com.au/company/legal-honoring-support.php); or
10.1.3 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.
You may also have termination rights under the Australia Consumer Law if we breach a Non-excludable Right and the breach amounts to a major failure
10.2 We may terminate the Agreement for breach if:
10.2.1 we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete;
10.2.2 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;
10.2.3 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;
10.2.4 you have made payment arrangements via credit card or other third party, and the third party refuses to honour our charges;
10.2.5 you fail to comply with any other obligation stated in the Agreement and do not remedy the failure within thirty (30) days of our written notice to you describing the failure;
10.2.6 you breach the AUP more than once even if you remedy each breach; or
10.2.7 your agreement for any other Rackspace service is terminated for breach of the acceptable use policy applicable to that service.
11. CONFIDENTIAL INFORMATION
11.1 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 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:
11.1.1 to each of 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 this General Terms and Conditions; or
11.1.2 to a law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law;
11.1.3 as required by law; or
11.1.4 in response to a court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this clause (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
12. LIMITATION ON DAMAGES
12.1 Subject to clause 12.2 and except for liability in relation to breach of any Non-excludable Rights, but without prejudice to Rackspace’s right to the fees for the Services, including any early termination fee (if applicable) and your right to service credits under the applicable Service Level Guarantee and/or termination for our failure to meet the Fanatical Support Promise:
12.1.1 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:
12.1.1.1 for Hosting Services, 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
12.1.1.2 for Supplementary Services, fees paid for the Supplementary Services that are the subject of the claim;
12.1.2 to the extent permitted by law, neither party will be liable to the other in any way for any special, incidental, economic, consequential or indirect loss or damages, or for loss of data, loss of profits, loss of revenues, loss of 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; and
12.1.3 Where goods or the Services are the subject of Non-excludable Rights and are not of kind ordinarily acquired for personal, domestic or household use or consumption, to the extent permitted by law, the liability of Rackspace in respect of the goods or Services , if any, will be at Rackspace’s option and limited to:
12.1.3.1 in the case of goods:
a) the replacement of the goods or the supply of equivalent goods; or
b) the repair of the goods; or
c) the payment of the cost of having the goods repaired.
12.1.3.2 in the case of services:
a) supplying the services again; or
b) the payment of the cost of the services supplied again
12.2 Nothing in this Agreement limits or excludes either party’s liability for any loss or damages resulting from:
12.2.1 death or personal injury caused by its negligence; and
12.2.2 any fraud or fraudulent misrepresentation.
12.3 Where Non-excludable Rights apply under the Australian Consumer Law, our goods come with guarantees that cannot be excluded by Australian Consumer Law. You are entitled to a replacement or refund for a major failure, and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
12.4 Apart from rights and remedies you may have under law in relation to Non-excludable Rights the service credits stated in the Service Level Guarantee are your exclusive remedy for Rackspace’s failure to meet those guarantees for which service credits apply.
12.5 Apart from rights and remedies you may have under law in relation to Non-excludable Rights, termination of the Agreement is your exclusive remedy for Rackspace’s failure to meet The Fanatical Support Promise.
12.6 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 12. 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.
13. INDEMNIFICATION
13.1 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 negligence, breach of law, failure to meet the security obligations required by the Agreement, breach of the AUP, breach of your agreement with your customers or end users, or breach Section 15 (Software) of this General Terms and Conditions, then you will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this clause 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 authorised by you. You must also pay reasonable legal fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with Rackspace, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
13.2 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 defence of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld, delayed or conditioned. You must pay expenses due under this clause as we incur them.
14. PUBLICITY
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.
15. SOFTWARE
15.1 General. You may not copy any software we provide for your use, unless expressly permitted by this Agreement. You may not remove, modify or obscure any copyright, trade mark, or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software licence, you may not reverse engineer, decompile or disassemble any software we provide for your use 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 Rackspace. In addition to the terms of this Agreement, your use of any Microsoft® software is governed by Microsoft’s licence terms that appear at: http://www.rackspace.com/information/legal/microsoftlicense.php including use restrictions on Microsoft software that is provided for your use under a subscriber access licence or “SAL” or an “anonymous” licence as indicated in your Services Description. If you use any non-Rackspace supplied software on your Hosted System, you represent and warrant to Rackspace that you have the legal right to use the software in that manner. On Rackspace’s request you will certify in writing that you are in compliance with this clause and any other software licence restrictions that are part of the Agreement, and will provide reasonable evidence of your compliance as we may reasonably request.
15.2 Customer Provided Licences. If we have agreed to install, patch or otherwise manage software for you in reliance on your licence with a software vendor (rather than Rackspace’s licence with the software vendor), then you represent and warrant that you have a written licence agreement with the software vendor that permits Rackspace to perform these activities. You agree that you will provide Rackspace with evidence of licensing as Rackspace may reasonably require prior to the scheduled deployment date, and from time to time as necessary to update the status of the licence. If you fail to provide the required evidence of licensing, Rackspace may, at its option, either:
15.2.1 delay the deployment date for the Hosted System that was to include such software until such time as the required evidence is provided;
15.2.2 deploy the Hosted System in reliance on Rackspace’s licensing agreement with the software vendor, and charge you its standard fee for the use of the software until such time as the required evidence is provided; or
15.2.3 suspend or terminate the Agreement.
Your licensed software may not be compatible with our standard process for deploying and repairing Hosted Systems. In addition, in order to install the software, Rackspace may require you to send the physical or electronic media provided to you by the software vendor, both for deployment, and again in the event of a failure of your Hosted System. You agree that Rackspace will not be in breach of any Service Level Guarantee or other obligation under this Agreement that would not have occurred but for the delay resulting from our agreement to use your licensed software.
16. RECOMMENDATIONS
Rackspace personnel may from time to time recommend third party software or other products and services for your consideration. RACKSPACE MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH PRODUCTS AND SERVICES. Your use of any products and services not provided by Rackspace is governed by the terms of your agreement with the provider of those products and services, and is at your sole risk. Apart from any Non-excludable Rights that may apply, Rackspace is not responsible in any way for the third party product’s performance, features nor failures.
17. WHO MAY USE THE SERVICES
You may permit your subsidiaries and affiliated companies to use the Services if you wish. Rackspace will provide support only to you, not to your customers, subsidiaries or affiliates. There are no third party beneficiaries to the Agreement, meaning that your customers, subsidiaries, affiliates, and other third parties do not have any rights against either of us under the Agreement.
18. DATA PROTECTION
You agree that you will comply with the Australian Privacy Act 1988 (Cth) with respect to all personal information as defined in those respective laws, collected, accessed, processed and used by you, and hosted by Rackspace, including making any required notifications to, or obtaining required consents from, third parties in relation to Rackspace hosting personal information in connection with the Services. We may give our affiliates and subcontractors outside of Australia access to your Hosted System. For example, we may provide an affiliate with access to your Hosted System so that the affiliate may provide support to you during off business hours in Australia. We have addressed data protection issues in a Data Processing Agreement with our affiliates and will provide a signed copy of that agreement on request.
19. DATA CENTRES
We are constantly upgrading our data centre facilities and in order for you to benefit from this, you agree that we may relocate your servers within our data centres, make changes to the provision of the Services, URLs and your IP addresses and may establish new procedures for the use of the Services. In each case we will give you reasonable advance notice and use all reasonable endeavours to minimise the effect that such change will have on your use of the Services.
20. TEST SERVICES
If you use any Services that have been designated as a “Beta” service, pilot test, limited release, or with similar designation, then your use of that Service is subject to the terms at http://www.rackspace.com/information/legal/testterms.php.
21. IMPERVA WAF SERVICE
If you purchase an Imperva WAF Service from Rackspace, such service is subject to the terms at http://www.rackspace.com.hk/company/legal-waf-product.php.
22. CRITICAL APPLICATION SERVICES
If you purchase Rackspace's Critical Application Services - Standard Service Level Guarantee, such guarantee is subject to the terms at http://www.rackspace.com.au/company/legal-cas-standardsla.php. Alternatively, if you purchase Rackspace's Critical Application Services - Advanced Service Level Guarantee, such guarantee is subject to the terms at http://www.rackspace.com.au/company/legal-cas-advancedsla.php.
23. SERVICES MANAGEMENT AGENT
You agree that you will not interfere with any services management software agent(s) that Rackspace installs on your Hosted System. Rackspace agrees that its agents will use only a minimal amount of computing resources, and will not interfere with your use of your Hosted System. Rackspace will use the agents to track system information so that it can more efficiently manage various service issues, such as patching exceptions and product life cycles. Rackspace may also use the agents to identify security vulnerabilities. Rackspace will not use the agents to view or capture your content or data. Your Services will become "unsupported" as described in the Product Terms if you disable or interfere with our services management agent(s). You agree that Rackspace may access your Hosted System to reinstall services management software agents if you disable or interfere with their performance.
24. NO HIGH RISK USE
You may not use the Services in any situation where failure or fault of the 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 medical life support devices.
25. EXPORT MATTERS
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 applicable export regulations.
26. NOTICES
Your routine communications 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 postal mail to:
LEGAL DEPARTMENT
Rackspace Asia Limited
Suite 3, Level 7,
210 George Street,
Sydney,
NSW 2000, Australia
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 account either by electronic mail (including an electronic mail referring you to a ticket posted on your MyRackspace portal), postal mail, or overnight courier, except that Rackspace may give notice of an amendment to the AUP by posting the notice on your MyRackspace portal. Notices are deemed received as of the time delivered, or if that time does not fall on a Business Day, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to your MyRackspace portal after the time that the notice is posted. 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.
27. OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by Rackspace during the performance of the Service(s) shall belong to Rackspace unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
28. OWNERSHIP OF OTHER PROPERTY
You do not acquire any ownership interest in or right to possess the Hosted System, and you have no right of physical access to the Hosted System. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your Rackspace servers or other devices or media.
29. INTELLECTUAL PROPERTY INFRINGEMENT
If Rackspace or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and Rackspace is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Rackspace may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
30. 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. Rackspace 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, including its Affiliates and other companies located outside of the New South Wales jurisdiction , 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.
31. FORCE MAJEURE
Neither of us will be in breach 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 organised labour action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
32. GOVERNING LAW, JURISDICTION
The Agreement is governed by the law of New South Wales, Australia and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales Australia 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.
33. SOME AGREEMENT MECHANICS
33.1 Changes to Terms on Website. These General Terms and Conditions, the applicable Product Terms, the Authorised Use Policy and any applicable Country Specific Terms are incorporated into your Agreement by reference to pages on the Rackspace website. Although we may from time to time revise the General Terms and Conditions, Product Terms, Authorised Use Policy and Country Specific Terms posted on these pages, those revisions will not vary the Agreement until the first day of any renewal or extended term that follows the date that we publish the revision. However if over time you sign multiple Agreements for a single Hosted System, for example to add service elements to an existing Hosted System, then the version of the General Terms and Conditions, Product Terms, Authorised Use Policy and Country Specific Terms (if any) referenced in the last signed Agreement will govern the entire Hosted System, unless otherwise agreed in writing.
33.2 Modifications. Unless otherwise expressly permitted in this Agreement, the General Terms and Conditions, Product Terms, Acceptable Use Policy, and Country Specific Terms may be amended only by a formal written agreement signed by both parties. A Services Description may be amended to modify, add, or remove services by a formal written agreement signed by both parties, or by an exchange of correspondence, including via electronic mail or the Rackspace ticketing system, that includes the express consent of an authorised individual for each of us.
33.3 Order of Precedence. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: signature page for the Hosting Services Agreement, Country Specific Terms (if any), Services Description, Product Terms, any addendum to the General Terms and Conditions, the General Terms and Conditions, and the Acceptable Use Policy.
33.4 Unenforceable Provisions. If any part of the 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.
33.5 No Waiver. 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.
33.6 No Partnership. 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 to any agreement with a third party.
33.7 Interpretation. 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 words “our” and “us” refer to Rackspace unless the context clearly indicates another meaning.
33.8 Survival. The following terms shall survive expiration or termination of the Agreement: Sections 7, 11, 12, 13, 15, 20, 26, 27, 28, 29, 31, 32 and 33 of these General Terms and Conditions, all terms of the Agreement requiring you to pay any fees for Services provided prior to the time of expiration or termination or requiring you to pay an early termination fee, and all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement.
33.9 Changes Not Made Known. If you have made any change to the Agreement that you did not bring to Rackspace’s attention in a way that is reasonably calculated to put Rackspace on notice of the change, the change shall not form part of the Agreement.
33.10 Counterparts. 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 General Terms and Conditions represents the entire relationship between the parties and supersedes all previous written or other correspondence and agreements, understandings or communications, whether written or oral, as to the subject matter of this General Terms and Conditions.
© 2012 Rackspace International GmbH
28 August 2012