Archived - August 2015
1. THE AGREEMENT
This SharePoint 2013 Trial Agreement (this "Agreement") is between Rackspace US, Inc. d/b/a Rackspace Hosting ("we" or "Rackspace") and the customer who accepts the Agreement as part of the online order process ("you" or "Customer"). Your use of the Services, as defined herein, is governed by these Terms and any other document(s) incorporated by reference. When we use the term "Agreement," we are referring collectively to these Terms and any incorporated document(s). You accept and agree to be bound by this Agreement by accessing and/or using the Services, including by clicking "Submit." If you do not accept this Agreement, we are unwilling to provide you these services and you must not click "Submit." If the individual who accepts this Agreement does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement. The Agreement is effective as of the date you accept the Agreement as part of Rackspace's online order process.
Each of the following documents is hereby incorporated by reference in this Agreement:
- Rackspace's General Terms and Conditions found below; and
- Rackspace's Acceptable Use Policy found at http://www.rackspace.com/information/legal/aup/php as of 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/information/legal/aup.php as of the date you accept the Agreement as part of Rackspace's online order process.
"Business Day" 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.
"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including: (i) for you, all information transmitted to or from, or stored on, your Hosted System, (ii) for Rackspace, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may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.
"Services" means Rackspace's provision for your use of the Microsoft SharePoint 2013 Trial.
"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.
"Product Terms and Conditions" means the terms and conditions for the particular Hosting Services you are using.
"Service Commencement Date" means the date on which we provide you with access to the Services.
3. OUR OBLIGATIONS
Upon acceptance of this Agreement, Rackspace will provide you with access to Services, including site collection in a hosted multi-tenant environment, which will be available without charge for a period of fourteen (14) days from the date of your acceptance. The Services have limited availability and will be provided AS IS.
4. YOUR OBLIGATIONS
4.1 You must comply with the laws applicable to your use of the Services and with the Rackspace Acceptable Use Policy. You must cooperate with Rackspace's reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement.
4.2 You must provide Rackspace with accurate information, including, but not limited to, account permissions, billing, and other account information, if applicable.
4.3 You acknowledge that the Services are for demonstration purposes only and must not be used for production purposes. You shall not permit or assist others to access or use the Services for any purpose other than to run the Services for internal demonstration purposes. You have no right to copy or distribute the Services.
4.4 You must use reasonable security precautions in connection with your use of the Services. For the Services, this includes encrypting any PII transmitted to or from the Services.
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 express or implied relating to the use of the Services, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. The Services are provided on an AS IS basis. You are solely responsible for your use of the Services.
5.3 We will not back up any data as part of the Services.
5.4 We have no obligation to provide support for the Services. If any support shall be given, it will be given via email only and only with Business Days and Business Hours as defined.
5.5 We do not promise that your use of purchased services will be the same as you experience during this trial of Services and do not promise that Rackspace services will perform in the same manner as the Services.
6. 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.
7. 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.
8. CHANGES TO THE AGREEMENT
Rackspace reserves the right to change the terms of the Agreement, including the Acceptable Use Policy, at any time, in our sole discretion. Rackspace reserves the right to change or modify the term of the Services at any time, in our sole discretion. Any change or modification to the Agreement will be effective immediately upon posting by Rackspace.
9. SUSPENSION OF SERVICES
We may suspend Services without liability at any time at our sole discretion, and may do so at any time. We may provide you with prior notification of any such suspension, but you acknowledge that we are not required to do so. We may suspend your use of the Services immediately if you violate the AUP or any terms of this Agreement.
10. TERM AND TERMINATION
The initial term of the Agreement begins on the Service Commencement Date and terminates on the fourteenth (14th) day following the Service Commencement Date. Upon termination, Rackspace will delete all content unless such data is migrated to a SharePoint solution purchased from Rackspace. You must notify us of your intent to migrate the data prior to the termination of the Services.
We may terminate this Agreement at any time in our sole discretion. We will provide you with written notification in the event we do so.
11. CONFIDENTIAL INFORMATION
Each of us agrees not to use the other's Confidential Information except as required by law; or 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 (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice. We may use your registration information to contact you for marketing purposes.
12. LIMITATION ON DAMAGES
12.1 Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits 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.
12.2 We are not liable to you for lost data.
12.3 Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of Rackspace and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed (ii) Twenty-Five Dollars ($25.00).
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 gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of your agreement with your customers or end users, or violation of Section 7 (Export Matters) or Section 15 (Software) 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 Indemnitees 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.
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 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 may not disclose that we are providing Services to you.
You may not copy any software we provide for your use unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark 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 license, 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 us. In addition to the terms of our Agreement, your use of any Microsoft® software is governed by Microsoft's license terms that appear at http://www.rackspace.com/information/legal/microsoftlicense.php, and any use restrictions on your use of the Microsoft software as indicated in your Services Description, such as a limitation on the number of users (a "SAL" license).
16. WHO MAY USE THE SERVICE
You may not use the Services to provide services to any third party. You may not resell the Services. You are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. 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.
17. 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 Class III medical devices under the Federal Food, Drug and Cosmetic Act.
18. 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 Services shall belong to Rackspace unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
19. OWNERSHIP OF OTHER PROPERTY
You do not acquire any ownership interest in or right to possess the Services we provide you. We do not acquire any ownership interest in or right to the information you transmit while using the Services.
20. 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 access to the Services.
Neither party may assign the Agreement without the prior written consent of the other party.
22. 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.
Your communications to Rackspace regarding the Services should be sent to your Rackspace contact via email. Rackspace's communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account by electronic mail. 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 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.
24. GOVERNING LAW, LAWSUITS
The Agreement is governed by the laws of the State of Texas, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, 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. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the city in which you reside. The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA") in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service, and who is selected pursuant to the applicable rules of the AAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favor. Each of us waives any right to a trial by jury, and agrees that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
25. SOME AGREEMENT MECHANICS
We may from time to time revise the terms of the Agreement.
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: The Terms of Service, any addendum to the Terms of Service, and the Acceptable Use Policy. 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. Each of us may enforce each of our respective rights under the 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 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 word "our" refers to Rackspace. Sections 7, 11, 12, 13, 14, 19, 20, 21, and 25, of these Terms of Service and all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
This SharePoint 2013 Trial Agreement is the final agreement between you and Rackspace regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral, in connection therewith.