Terms of Service

These Rackspace Spot Product Terms (inclusive of all incorporated terms and policies), together with the Rackspace Master Services Agreement (collectively, the “Agreement”), establish the terms of access, offering, and use of the Rackspace Spot Platform (the “Spot Platform”) and the Rackspace Spot Services (the “Spot Services”). You agree to comply with all terms of the Agreement when accessing or using the Spot Platform and the Spot Services (collectively “Rackspace Spot” or the “Services”). The parties to this Agreement are Rackspace and Customer. As may be used in the Agreement, “Rackspace” (or “we” or “us”) refers to Rackspace US, Inc. (1 Fanatical Place, San Antonio, TX 78218), and “Customer” (or “you” or “your”) refers, collectively, to you, and to the business, organization or entity identified during registration for Rackspace Spot.

“Cloudspace” means a deployed infrastructure pool within Rackspace Spot and represents a logical unit of your cloud infrastructure, inclusive of servers, storage, network, and a cloud operating system, such as Kubernetes.

“Compute Server” means a specified and biddable spot instance unit of the Spot Services for a particular Server Class within a particular Server Family and residing within a specified data center {consist of fully managed Kubernetes clusters}

“Master Services Agreement” means the Rackspace general terms and conditions that govern Rackspace Services, as may be updated by Rackspace, and as presently located at the following URL: https://www.rackspace.com/information/legal/MSA.

“Server Class” means the server grade, capacity, processing power, or other performance level designation.

“Services Documentation” means the Rackspace Spot Services description and documentation that details the offerings, the bidding and fulfillment processes, and other information about the Services, as may be updated by Rackspace, and as located at the landing page for the Rackspace Spot Platform at the following URL: https://spot.rackspace.com.

“Server Family” means the purpose, function, or workload specific category of server, e.g., General Purpose, Compute Heavy or Memory Heavy.

2.1. Rackspace Spot Platform. The Rackspace Spot Platform offers competitively and dynamically priced cloud infrastructure, Compute Server instances, for bidding and purchase through an open marketplace auction platform.

2.2. Rackspace Spot Services. The Compute Server instances consist of fully managed Kubernetes clusters, in a variety of Server Families and Server Classes within specified data centers. To optimize the performance and and functionality of the cloud infrastructure, Customers are also provided with ancillary services options for purchase, such as control plane functionality, bandwidth and storage.

2.3. Rackspace Infrastructure. Rackspace Spot Services are hosted within Rackspace's enterprise-grade, data centers, with multiple industry-recognized security and compliance certifications (i.e., ISO/IEC 27001, PCI DSS, etc.) and with operations managed by cloud specialists. Rackspace infrastructure utilizes hardware from leading OEMs (e.g., Dell Technologies, HPE, NetApp, Cisco, Palo Alto, etc.). Redundant, multi-cloud connectivity is established through multiple leading transit providers and through a Rackspace-managed, private internet backbone. For Rackspace Spot, Compute Server instances of Kubernetes containers are deployed using the OpenStack cloud operating system, to fully manage the the compute, storage, and networking resources within the applicable Rackspace datacenters.

As detailed in the Services Documentation, Rackspace Spot Services include Compute Server resources, dynamically pricing through market bidding, and storage, load balancers, and control plane options (for production purposes) available at fixed Fee pricing. Non-production control planes, ingress bandwidth and cross region bandwidth are provided at no cost. Additionally, Customer will receive a fixed allowance for egress bandwidth, proportional to server infrastructure consumed by the Customer, at no cost, with additional per GiB Fees for excess outbound data transfer.

As detailed in the Services Documentation, deployment of the Cloudspace and the bidding process for Compute Server resources proceeds as follows:

(1) Customer initiates the deployment of a Cloudspace by specifying the desired data-center location and by specifying the intended server configuration from available virtual server families (i.e., “General Purpose,” “Compute Heavy” etc.).

(2) Then, Customer bids upon an offered Server Class (within each of intended server families) by specifying (a) the quantity on instances desired; and (b) the maximum bid price for each instance.

Note. Customer also has the option to configure the Cloudspace for “Alert on Pre-emption” to notify Customer of potential preemption due to pricing increase, and Customer has a “High Availability” option for replication and backup to enable availability following a preemption. (Additional options to select the Kubernetes version are expected in future iteration of Rackspace Spot).

(3) Finally, Customer selects a name for the Cloudspace and provides a method of payment.

(4) Following the indicated Customer elections, Rackspace performs a bid validation to ensure that at least one bid is fulfilled to complete the Cloudspace deployment; if none can be fulfilled, Customer is notified to adjust bidding and retry the deployment.

5.1. Pricing and Bidding Fulfillment Rules. As detailed further in the Services Documentation, open market principles determine the pricing and the bidding fulfillment – and the maintenance of instances (or the pre-emption of instances), as follows:

5.2. Bidding Pre-emption and Mitigation. Pricing will fluctuate over time. Although pricing may remain extremely stable at times, there are other times when prices vary quite significantly. To mitigate against workload preemption, Rackspace provides the following recommendations:

5.3. Fulfillment and Pre-emption Terms. Notwithstanding anything in these Product Terms or in the Services Documentation, the operation of the Spot Platform, and the bidding fulfillment and pre-emption determinations are within the sole reasonable discretion of Rackspace.

6. SERVICES PROVISIONING. Following bidding fulfillment, account credentials for the Services will be automatically provisioned via API, and Customer should receive access to the interface for the Services.

7. INVOICING AND PAYMENT. Customer will be invoiced on a monthly basis in arrears for all Compute Server consumption and for other ancillary Spot Services consumed in the preceding month. Notwithstanding anything to the contrary in the Agreement, Customer payment for Services shall be remitted through the Customer’s registered payment method within the Spot Platform and/or Customer shall pay Rackspace by way of invoice if instructed to do so. Customer shall pay Taxes to own name, if required by applicable law. Notwithstanding anything to the contrary in Customer’s Agreement, if there is an error in Customer’s invoice related to Rackspace Spot, Customer agrees to pay any such disputed invoice as due, and Rackspace shall work with Customer in good faith to correct the error. In the event Customer is owed a refund or credit, Rackspace shall remit such refund or credit to Customer’s account once it has been made available to Rackspace. If it is determined that Customer owes Fees in excess of Customer’s initial invoice, Customer agrees to pay Rackspace accordingly. In addition to any other rights and remedies that Rackspace may have under the Agreement, Rackspace may deduct any outstanding debit and any applicable fees from future transaction proceeds.

8. SPOT PLATFORM RESTRICTIONS Customer agrees that it will access and use Rackspace Spot in compliance with the Agreement, and with all applicable laws and will not:

(1) manipulate or circumvent the orderly, fair, and legitimate operation of the Rackspace Spot Platform.

(2) utilize data mining, data extraction, or data gathering tools, or other automated means to access Rackspace Spot.

(3) fail to make timely and complete payment for use of the Services, or interfere with the Spot Platform operations for payment for Spot Services.

(4) interfere with the functioning of Rackspace Spot by submission of bidding or requests of unreasonably large scope or scale, or by submission of bidding or requests for Services without good faith intention to utilize such Services.

9. SPOT SERVICES RESTRICTIONS & LIMITATIONS. Customer agrees that it will only use the Rackspace Spot Services in compliance with the Agreement, and with all applicable laws, and that the following terms apply:

9.1. Obligatory Migration. Customer agrees that Rackspace may migrate the Customer Cloudspace to a different data center than originally specified during the bidding, if Rackspace determines that doing so is necessary to remediate service degradation, shared resource constraints, or for the optimal performance or security of these Services.

9.2. Use of Management Tools. Rackspace does not provide support for any non-Rackspace provisioned management tools. If Customer using tools such tool interferes with any Rackspace Services or Rackspace’s delivery of any Services, then those Services that are adversely affected will be Unsupported Services.

9.3. Resale Prohibited. Customer will use the Servies only for its own business purposes and is prohibited from reselling, leasing, or providing these Services as a service, in whole or in part.

9.4. Compliance. Customer represents and warrants that it will not use the Services in violation of the Rackspace AUP terms or SPP Terms (i.e., as per the “AUP” and the “SPP Terms” incorporated into the Master Services Agreement).

10.1. Suspension and Termination. Customer agrees that the determination as to whether Customer has violated these terms is within Rackspace’s sole discretion. Rackspace reserves the right in its sole discretion, if it suspects or believes that Customer is violating the Agreement in any way, to suspend, or terminate the Customer account and Access to the Services, and without prejudice to any other remedies it may have. Rackspace may suspend or terminate Customer’s access to and use of Rackspace Spot at any time for any reason, upon 30 days’ prior written notice; or immediately and without notice if required to do so by operation of law, by one of its Representatives, or due to commercial impracticality or security risk, as determined within Rackspace sole discretion.

10.2. Effect of Termination. Upon termination of these Services, Rackspace will remove all Services data, and Customer shall assist Rackspace (if requested and required), with removal of all Services data with respect to Spot Services provided to Customer.

11. BETA RELEASE Rackspace Spot, at present iteration, is a pre-release beta release, is considered a Test Service as defined in the Agreement, and is subject to the following additional terms:

11.1. Functionality. Customer acknowledges that Rackspace Spot may not work properly, and may expose Customer to unusual risks of operational failure, data corruption, security vulnerability, or any manner of unknown risk. Customer is strongly discouraged from using the Test Service in a live production environment, and shall not use the Test Service in any hazardous environments, life support or weapons systems nuclear or chemical facilities or aircraft of other modes of human mass-transit.

11.2. Subject to Change. Any Service which Rackspace may subsequently develop, and offer based upon the Test Service may change substantially from the Test Service, and programs that use or run with the Test Service may not work with the Service. Rackspace may terminate the Test Service at any time, in Rackspace’s sole discretion. Customer is not entitled to any credits under the SLAs for downtime or other problems that may result from Customer’s use of the Test Services.

11.3. Feedback. Customer agrees to provide prompt feedback regarding Customer’s experience with the Test Service in a form reasonably requested by Rackspace, including information necessary to enable Rackspace to duplicate errors or problems experienced. Customer agrees that Rackspace may use Customer feedback for any purpose, including product development purposes. On Rackspace request, Customer shall provide Rackspace with comments that Rackspace may use publicly for press materials and marketing collateral. Any intellectual property inherent in Customer feedback or arising from Customer’s testing of the service shall be owned exclusively by Rackspace.

11.4. Confidential Information. Customer agrees that all information regarding Customer’s beta test, including Customer’s experience with and opinions regarding the Test Service, will be Confidential Information of Rackspace, and may not be disclosed to a third party or used for any purpose other than providing feedback to Rackspace.

11.5. Warranty. To the extent permitted by applicable law, the Test Service is provided “AS IS” with no warranty whatsoever; and Rackspace disclaims any and all warranties with respect to the Test Service including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, quiet enjoyment and any warranties arising out of any course of dealing or usage of trade. Rackspace makes no representation or warranty that any content will be secure or not otherwise lost or damaged.

11.6. Liability. Notwithstanding anything in the Agreement to the contrary, and to the extent permitted by applicable law, neither Rackspace or its Representatives are liable in connection with the Test Services for: (i) any indirect, special, incidental or consequential loss or damages of any kind; (ii) any loss of profit; (iii) any loss of business; (iv) any loss of data; (v) any anticipated savings or revenue; or (vi) for any loss that could have been avoided by Customer’s use of reasonable diligence, even Rackspace has been advised or should be aware of the possibility of such damages. Notwithstanding anything in the Agreement to the contrary, and to the extent permitted by applicable law, the maximum aggregate liability of Rackspace and its Representatives in connection with the Test Services howsoever caused, whether occurring before or after the execution of the Agreement, for breach of contract, tort (including negligence) or otherwise shall not exceed one of the following: (i) if Customer is billed in US Dollars, US$500.00; or, (ii) if Customer is billed in a currency other than US Dollars, an amount equivalent to US$500.00 in the currency in which Customer is billed, such equivalent amount to be determined by Rackspace.

12. NOTICES & CHANGES. Notwithstanding anything in the Agreement to the contrary, notices correctly sent by Rackspace through the Rackspace Spot Platform shall also be deemed as effective. Notwithstanding anything in the Agreement to the contrary, Rackspace may amend or update these Rackspace Spot Product Terms at any time and at its sole discretion. Any changes will be effective upon the posting of such changes on the Rackspace Spot Platform, and Customer is responsible for reviewing this location and informing itself of all applicable changes or notices. Customer should refer regularly to the Rackspace Spot Platform o review the current terms. CUSTOMER’S CONTINUED RECEIPT OR USE OF RACKSPACE SPOT AFTER RACKSPACE'S POSTING OF ANY CHANGES SHALL CONSTITUTE CUSTOMER’S ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.

13. PRIVACY POLICY. By accessing and using Rackspace Spot, Customer expressly consents to Rackspace processing their subscription information in accordance with the Rackspace Privacy Statement (https://www.rackspace.com/information/legal/privacystatement). Rackspace group companies may use the subscription information provided by Customer to provide the Services, to send direct marketing messages, and for other purposes.

14. ORDER OF PRECEDENCE. If Customer has an existing Agreement with Rackspace, These Rackspace Spot Product Terms shall take precedence over any other conflicting terms of the existing Agreement. Capitalized terms used herein but not otherwise defined shall have the meaning ascribed to them in the Master Services Agreement. This Agreement constitutes the complete and exclusive understanding between the parties regarding the subject matter contained herein, and shall supersede and replace any prior understanding or communication, written or oral. The individual accepting this Agreement represents to Rackspace that they are authorized to do so on behalf of Customer. By accessing or using Rackspace Spot, Customer accepts this Agreement, including any document or terms referenced herein.

15. COUNTRY UNIQUE TERMS AND CONDITIONS. When applicable to Customers in Australia and Columbia, respectively, the country-unique terms contained in Appendix 1 (“Country-unique Terms”) shall be incorporated into the Agreement, and shall prevail to the extent of any inconsistency.

15.1. Australia Consumers. If Customer is a consumer as defined under the Competition and Consumer Act 2010 (Cth) (“Consumer Law”) then notwithstanding anything to the contrary in the Agreement, the following terms shall prevail as to goods and services (as defined by Consumer Law) to the extent of any inconsistency with any other provision of the Agreement:

(A) Non-excludable Rights. Nothing in the Agreement excludes any implied condition, warranty, right or guarantee if that exclusion would contravene any statute (including Consumer Law) or cause any part of the Agreement to be void (“Non-excludable Right”). Rackspace’s total liability for breach of any Non-excludable Right which may be limited by law, is limited at Rackspace’s option to:

(i) resupplying or replacing or repairing, or paying the cost of resupplying or replacing or repairing, the goods in respect of which the breach occurred; or

(ii) supplying again, or paying the cost of supplying again, the services in respect of which the breach occurred.

(B) Mandatory Wording. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

If Customer is located in Colombia and is a consumer as defined under Law 1480 of 2011 (October 12) Official Gazette No. 48,220 of October 12, 2011 (“Consumer Law”) then, notwithstanding anything to the contrary in the Agreement, the following terms shall prevail to the extent of any inconsistency with any other provision of the Agreement. Nothing in the Agreement excludes any implied condition, warranty, right or guarantee if that exclusion would contravene any statute (including Consumer Law) or cause any part of the Agree- ment to be void. Customer agrees that: (i) the Agreement is for the provision of services, and no goods are purchased or delivered un- der the Agreement; (ii) Customer warrants and represents that Customer is not a minor; (iii) Customer warrants and represents that Customer has had the opportunity to negotiate modifications to the Agreement, and has either done so or rejected the opportunity to do so; (iv) the inherent characteristics of the Services (and those attributed by the information provided to Customer), and the need or needs for which the Services have been produced or marketed, are solely as expressly set out in this Agreement, and Customer war- rants and represents that it is not relying on information which is not presented in this Agreement as to quality or suitability; (v) Cus- tomer warrants and represents that it is receiving a substantial advantage for the Initial Term (including any commitment term and/or Auto Renewal Term) which permits Customer to pay in installments throughout the Agreement, as opposed to paying all actual and esti- mated utility Fees for the Services upfront at commencement of the Agreement; (vi) where this Agreement has been formed by distance selling, the Customer may withdraw from the Agreement within five business days of the Agreement (provided that: (a) Service provi- sion has not commenced, and Customer agrees that Rackspace may provide the Services immediately; or (b) the Services are not sub- ject to market pricing changes, including third party supplier commitments made by Rackspace, outside of the control of Rackspace) by providing notice in accordance with the Agreement, and where Customer validly exercises its right to withdraw under this provision then Rackspace shall refund Fees paid within thirty calendar days of receipt of notice; (vii) the instructions for use of the Services and avail- able technical assistance are as set out in the Agreement; and (viii) Rackspace guarantees that the Services shall conform with the conditions offered and agreed with Customer in this Agreement (which were properly reviewed and negotiated by Customer to ensure they fulfill the suitability, quality and safety required by Customer and mandated by Consumer Law), subject to any available exonera- tion under Consumer Law, failing which Customer may request that Rackspace provide the Services as contracted under this Agree- ment or refund Fees paid for non-conforming Services which do not meet the guarantee. Consumers may file their requests, complaints or claims using the channels included in MSA notice provision. Consumers may file their requests, complaints or claims using the chan- nels included in MSA notice provision, which Rackspace will respond to within a period of 15 business days after receipt.

NOTE: This section has been drafted in both English and Spanish identical version. Notwithstanding the above, in the event of any dis- crepancy between the English and the Spanish version, the English version shall prevail.

Si el cliente está localizado en Colombia y es un consumidor de acuerdo con lo establecido en la Ley 1480 de 2011 (12 de octubre) Gaceta Oficial No. 48,220 de 12 de octubre de 2011 (“Ley del Consumidor”) entonces, sin perjuicio de cualquier disposición en contrario establecida en el Contrato, los siguientes términos prevalecerán en la medida que exista una incon- sistencia con cualquier otra disposición con el Contrato. Nada de lo establecido en el Contrato excluye cualquier condición implícita, garantía legal, derecho o garantía comercial si esa exclusión contraviene cualquier ley (incluida la Ley del Consumidor) o causa la nuli- dad de cualquier parte del Contrato. El Cliente acepta que: (i) El objeto del Contrato es para la prestación de servicios y no se compran ni entregan bienes bajo el mismo; (ii) el Cliente garantiza y declara que no es menor de edad; (iii) el Cliente garantiza y declara que ha tenido la oportunidad de negociar modificaciones en el Contrato, y que lo ha hecho o ha rechazado la oportunidad de hacerlo; (iv) las características inherentes de los Servicios (y las atribuidas por la información proporcionada al Cliente), y la necesidad o necesidades para las cuales se han producido o comercializado los Servicios, son únicamente las que se establecen expresamente en este Contra- to, y el Cliente garantiza y declara que no se basa en información que no se presenta en este Contrato en cuanto a calidad o idonei- dad; (v) el Cliente garantiza y declara que está recibiendo una ventaja sustancial por el Plazo Inicial (incluido cualquier plazo obligato- rio y/o Plazo de Renovación Automática) que le permite pagar en plazos durante la vigencia del Contrato, en lugar de pagar las Tarifas de servicio público actuales y estimadas por los Servicios, por adelantado y al comienzo del Contrato; (vi) dado que este Contrato se ha formado por la venta a distancia, el Cliente puede terminar el contrato dentro de los cinco días hábiles siguientes (siempre y cuan- do: (a) la prestación del Servicio no haya iniciado, y el Cliente acepte que Rackspace pueda proporcionar los Servicios inmediata- mente; o (b) los Servicios no estén sujetos a cambios de precio de mercado, incluyendo los compromisos de proveedores externos re- alizados por Rackspace que estén fuera de su control) mediante notificación hecha de acuerdo al Contrato, y cuando el Cliente ejerza válidamente su derecho de terminación conforme a esta disposición, entonces Rackspace reembolsará las Tarifas pagadas dentro de los treinta días calendario posteriores a la recepción de la notificación; (vii) las instrucciones para el uso de los Servicios y la asistencia técnica disponible son las establecidas en el Contrato; y (viii) Rackspace garantiza que los Servicios se ajustarán a las condiciones ofrecidas y acordadas con el Cliente en este Contrato (las cuales fueron debidamente revisadas y negociadas por el Cliente para garantizar que cumplan con la idoneidad, calidad y seguridad requeridas por el Cliente y exigidas por la Ley del Consumidor), sujeto a cualquier exoneración disponible bajo la Ley del Consumidor, de lo contrario, el Cliente podrá solicitar que Rackspace proporcione los Servicios según lo pactado en el Contrato o el reembolso de las Tarifas pagadas por Servicios no conformes que no cumplan con la garantía comercial. Los Consumidores pueden presentar sus solicitudes, quejas o reclamos utilizando los canales incluidos en la cláusula de notificaciones en el MSA. Los Consumidores pueden presentar sus solicitudes, quejas o reclamos utilizando los canales in- cluidos en la cláusula de notificaciones en el MSA, mismas que Rackspace responderá dentro de un periodo de 15 días hábiles de- spués de haberlas recibido.

NOTA: Esta sección se redactó en español y en inglés siendo ambas versiones idénticas; sin embargo, en caso de interpretación o de dudas que pudieren surgir entre la versión en inglés y la versión en español, el texto en inglés prevalecerá.