Cloud Highway Service TOS

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TERMS OF SERVICE FOR
CLOUD HIGHWAY SERVICE

(Updated 04/15/2019)

WaTech’s Cloud Highway service is subject to and governed by customer’s separate signed Master Services Agreement (MSA) or Customer Service Agreement (CSA) as applicable, with Consolidated Technology Services (CTS), calling itself Washington Technology Solutions or “WaTech” for short. This Agreement is entered into between you and WaTech for the provision of WaTech’s Cloud Highway services. For the purposes of this agreement “you” and “customer” are used interchangeability and mean the entity to which WaTech is providing service.

A.  Service Description

 

  1. WaTech’s Cloud Highway extends the state’s network core into the Seattle Westin’s Colocation ecosystem via high-speed Ethernet circuits; providing customers access to a wide range of cloud-based and Ethernet providers, tools, services, and solutions. By using WaTech’s Cloud Highway service, state agencies can leverage common centralized identity, security, networking, and support services allowing customers to focus on using cloud-based capabilities to improve their line-of business.
     
  2. WaTech’s Cloud Highway service will provide your agency with WaTech-monitored, administered, and managed connectivity. The service provides a transport solution for agencies that choose to take advantage of a WaTech provided agency network security infrastructure that is managed by professional WaTech technical staff. The WaTech service provides network security infrastructure attached to the State Government Network (“SGN”).

B.  Service Availability

 

  1. WaTech will use best efforts to sustain the Cloud Highway service available 24-hours, 7-days-a-week, and 365-days-a-year (24x7x365) with a Service Level Objective (SLO) of 99.90% annually; excluding scheduled and emergency maintenance.
     
    1. Scheduled maintenance in support of the Cloud Highway will occur between the hours of 10:00 pm and 6:00 am PST.
       
    2. WaTech will coordinate emergency maintenance with customers on a best effort basis. WaTech will contact customers as soon as practicable once a need for emergency maintenance is recognized.
       
    3. WaTech shall not be liable for any damages resulting from any service interruptions, downtimes, or any other factor beyond WaTech’s control.
       
  2. Additionally, the Cloud Highway service leverages several underlining WaTech services such Managed Firewall and Network Core and as such is subject to the specific terms and conditions of these services.
     
    1. The WaTech Managed Firewall and Network Core service availability objective is 99.99% measured on a monthly basis (4 minutes and 23 seconds), excluding scheduled and emergency maintenance. WaTech’s Managed Firewall and Network Core is redundant at both the State Data Center and WaTech’s disaster recovery data center in Quincy, WA. This ultimately provides many layers of resiliency and as such the majority of scheduled and emergency maintenance is non-service impacting.
       
    2. The Cloud Highway service also relies on the Customer’s provider of choice to be up and operational to successfully ensure connectivity from the Cloud Highway Off-Ramp. As such, WaTech can only provide service level guarantees within the infrastructure we maintain. Please review your contract with the content provider for the Service Level Agreements it provides to you directly.
       
  3. Change Management
     
    1. All changes to WaTech network environments are managed to promote or provide stability and minimize the impact of the changes to its customers. All changes to the WaTech network environments are implemented in accordance with WaTech Information Technology Service Management Operations Manual Standards and Procedures, located at http://watech.wa.gov/itsmom.
       
  4. Problem Management
     
    1. Problems with the WaTech network environments are managed in accordance with the WaTech Information Technology Service Management Operations Manual Problem Management Standards and Procedures.
       
  5. Security Management
     
    1. WaTech provides a security system infrastructure that reasonably protects its Customers from unauthorized external access to or broadcast on the Internet of customer’s intellectual property, proprietary and confidential data. WaTech shall ensure the security infrastructure is configured and maintained in compliance with OCIO IT Security Policy and Standards as well as the WaTech Information Technology Service Management Operations Manual Standards and Procedures.
       
  6. Incident Management
     
    1. WaTech Support Center (Tier 1)
       
      1. The WaTech Support Center is staffed 24 hours per day, seven days a week and has multiple telephone lines to respond to Member calls. The WaTech Support Center phone numbers are 360-586-1000 or toll-free 855-WaTech1.
         
    2. Reporting Network Outages and Incidents
       
      1. WaTech will actively monitor the Cloud Highway 24 hours a day, 7 days a week. In the event of an outage, WaTech will notify Customer via an Alert email message as well as WaTech’s System Status page at http://support.watech.wa.gov/. The Customer may report any known outages to the WaTech Service Desk. Note, WaTech is not responsible or able to monitor outages within the Customer’s cloud environment.
         
      2. If all lines are busy, the incoming calls are sequenced and answered in order. If technicians are away from the phone, the caller may choose to leave a voicemail message. The technician will automatically be paged, and will return the call. The Customer will receive a trouble ticket log number when an incident is reported. The WaTech Service Desk will refer the problem ticket to NOC technicians.
         
    3. Network Operations Center (NOC) (Tier 2)
       
      1. NOC technicians are present six days a week, 6:00 a.m. through 8:00 p.m., excluding state holidays. Problems reported outside the NOC coverage window, which require the assistance of a NOC technician, will be handled by the assigned on-call NOC technician on a callback basis. The NOC technician is responsible for reviewing the trouble ticket and beginning proper diagnostic action.
         
    4. This TOS will not be in effect during any period of interruption to WaTech’s processing capability caused by a disaster, as declared by the Director of WaTech.
       

    C.  Service Performance

     

    1. Service performance metrics are specific to individual segments and based on several factors including bandwidth, network security, facility security, network policy, fault tolerance, problem management and supportability.
       
    2. The service shall have a maximum jitter of no more than five (5) ms from the network core to WaTech’s Provider Edge (PE) router(s) located in Seattle’s Westin Building Exchange.
       
    3. The service shall have a maximum latency of fifteen (15) ms on a one-minute average from the network core to WaTech’s Provider Edge (PE) router(s) located in Seattle’s Westin Building Exchange.
       

     

    D.  Service Charges

     

    The Cloud Highway service rates can be found on the WaTech website: https://WaTech.wa.gov/solutions/it-services/Cloud-Highway.

     

    E.  WaTech's Responsibilities

     

    1. WaTech shall furnish the necessary personnel, equipment, material, and/or services to maintain the performance of work as set forth below.
       
    2. The Cloud Highway service includes networking, switching, routing, and associated protocols to transmit and segment (isolate) data to and from a customer’s routing table(s) inherent to each Cloud Service environment.
       
    3. WaTech will provide, manage, configure, and secure Cloud Highway underlining architecture which includes, but not limited to:
       
      1. Provider Edge (PE) routing infrastructure (to satisfy isolation and segmentation requirements);
         
      2. Provider Edge (PE) switching infrastructure;
         
      3. VPN termination infrastructure (to satisfy encryption requirements);
         
      4. WaTech’s network edge environment;
         
      5. Network visibility infrastructure;
         
      6. Network security infrastructure (physical and virtual firewalls, virtual and physical segmentation, MPS, IPS/IDS);
         
      7. Cross connect (fiber optical) cabling infrastructure;
         
      8. Network management and monitoring tools; and
         
      9. Security management and monitoring tools (to ensure security compliance).
         
    4. Management and configuration access to WaTech infrastructure is only granted to authorized WaTech personnel.
       
    5. WaTech will be the “Customer of Record” for Cloud Highway contracts and will be responsible for coordination and management of contracted Service Providers.
       
    6. WaTech will comply with State of Washington OCIO IT Security Policy and Standards. URL ref: (https://ocio.wa.gov/policy/technology-policies-and-standards).
       
    7. WaTech will secure the service against known security risks. Any observed security breaches or suspicious activity will be reported to the customer.
       

    F.  WaTech’s Colocation Responsibilities

     

    1. WaTech-leased Data Center Facilities physical security includes 24x7x365 controlled access, permissions, accessibility request methods, managed key and/or access card for access control.
       
    2. WaTech-leased Data Center Facilities service is available 24x7x365 including state holidays.
       
    3. WaTech-leased Data Center Facilities electrical and mechanical infrastructure is concurrently maintainable, so fixed routine maintenance windows are not necessary.
       
    4. WaTech-leased Data Center Facilities provides 24x7x365 staffing, specific environmental, fire alarms/suppression, Uninterrupted Power Supplies (UPS), backup generators, and a number of other elements required by the mission-critical resources it houses.
       

    G.  WaTech's Networking Responsibilities

     

    1. Once customers provide WaTech the appropriate technical data, WaTech shall provision customer cloud interconnectivity (tethering) to include: Cloud Cross Connects, Cloud Virtual Circuits, Cloud Exchange ports, and Cloud “Off Ramps” that enable customer connectivity to Cloud Service Providers.
       
    2. The required technical data to establish connectivity with each customer’s cloud environment includes, but not limited to the following:
       
      1. Cloud provider’s subnet;
         
      2. P address(es) to be routed;
         
      3. Service Provider’s Cage/Suite and Cabinet location in the Equinix ecosystem;
         
      4. Connector type to be used;
         
      5. Cloud Service Provider’s Circuit ID; and
         
      6. Port number(s).
         
    3. Provisioning of customer interconnectivity shall be billed and payable per the terms of the CSA/MSA on a monthly basis, starting thirty days after service provisioning. WaTech shall not provide services until a quote is accepted by the customer.
       
    4. WaTech shall perform Capacity Management functions in support of the Cloud Highway service and raise any capacity related needs, concerns, and recommendations to WaTech’s Cloud Highway Service Owner for consideration.
       
    5. WaTech will manage and troubleshoot Ethernet circuits directly attached to the Cloud Highway, working with the appropriate service provider(s) and customer(s) to resolve network problem(s). Circuit installation and support consists of:
       
      1. Coordinating circuit installation(s);
         
      2. Monitoring, on a continual basis, network circuits for potential problems; and
         
      3. Reporting detected problem(s) to the provider(s) for problem resolution.
         
    6. WaTech will manage and troubleshoot WaTech networking infrastructure servicing the Cloud Highway, working with the appropriate service provider(s) and customer(s) to resolve network problem(s).
       
      1. Coordinating infrastructure troubleshooting with the customer, Providers, and WaTech equipment;
         
      2. Monitoring, on a continual basis, infrastructure for potential problems;
         
      3. Reporting detected problem(s) to the proper contracted hardware maintenance provider for problem resolution; and
         
      4. Reporting problem resolution to customer utilizing WaTech standard procedures.
         
    7. WaTech will coordinate changes with the customer that will/may impact customer connectivity or service availability.
       
    8. WaTech will maintain and backup current configuration files, if and where applicable, which can be used for service restoration should a service failure occur.
       
    9. Pending available funding, WaTech’s Cloud Highway may undergo future enhancements. Descriptions of future Cloud Highway enhancements or developments will be published on the WaTech Website.
       

    H.  Service Exclusions

     

    1. This TOS does not apply to separately branded services made available with or connected to the Cloud Highway or to any customer on-premises software that is part of any connected cloud service.
       
    2. WaTech does not support the following services, protocols, or environments. The following items are the sole responsibility of the customer:
       
      1. Customer support for services, infrastructure, and systems outside the state network(s) with the exception of the Equinix Performance Hub.
         
      2. Customer support for external cloud environments such as Amazon Web Services (AWS) and Microsoft Azure.
         
      3. Implementation and management of customer LAN environment (i.e., firewalls, servers, workstations, etc.).
         
      4. Data encryption within the state Network.
         
      5. Protocols other than Border Gateway Protocol (BGP) and Internet Protocol (IP).
         
      6. WaTech does not offer latency guarantees beyond WaTech’s demarcation in the cloud performance hub as there are multiple variables when the traffic hits the cloud provider’s network(s).
         

    I.  Customer Responsibilities

     

    1. Customers will adhere to security best practices for the applicable industry and comply with the most-current version of the Office of the Chief Information Officer (OCIO) Standard 141.10, Securing Information Technology Assets. The OCIO IT security standards are located at http://www.ocio.wa.gov/policy/securing-information-technology-assets-standards.
       
    2. Customer agrees to complete and have an approved Network and Security Design Review(s) on file with the Washington State Office of Cyber Security (OCS) before Customer applications and other applicable resources to include third-party hardware, software, and services are integrated with (and connected to) the Cloud Highway service.
       
    3. Customer agrees to comply with WaTech policies, standards, and best practices for developing and integrating applications and other applicable resources including third party hardware, software, and services with the Cloud Highway service at all times.
       
    4. Customer agrees that customer shall utilize WaTech’s Cloud Highway service to engage only its authorized servers, cloud services, and networks. Any attempt to utilize WaTech’s Cloud Highway service to access unauthorized servers, cloud services, and networks is strictly prohibited and may result in the termination of service(s).
       
    5. Customer agrees that applications and other applicable resources to include third-party hardware, software, and services will be configured and maintained in a manner that is compliant with regulatory and industry standards, guidelines, and best practices before, during and after integration with the Cloud Highway service.
       
    6. Customer agrees to review any changes to applications and other applicable resources to include third-party hardware, software, and services that are integrated with and could impact the Cloud Highway service prior to making such changes. If recommended, customer agrees to complete and have approved Network and Security Design Review(s) on file with the Washington State Office of Cyber Security (OCS) prior to making such changes.
       
    7. You will be liable for charges, infractions, or legal actions resulting in customer’s failure to adhere to the Terms of Service with their respective cloud Service Provider(s).
       
    8. Customer’s Cloud Provisioning Responsibilities:
       
      1. Customers are responsible to pay for the cross connects, Cloud Virtual Circuits (VC), Cloud Off-Ramps, and Cloud Exchange ports that they require that enable customer connectivity into and out of the Cloud Highway.
         
      2. Customer shall perform capacity management functions (monitoring, management, and oversight) of their Cloud Highway “off-ramps” within their cloud environment(s).
         
      3. Customers shall provide a VPN endpoint(s) to satisfy encryption requirements when and where required by WaTech OCS.
         
    9. Customer will provide technical resources for troubleshooting assistance as needed to expedite service recovery.
       
    10. Customer will provide contact information for use by the WaTech Support Team. Customers will review their contact information at least annually and make appropriate updates.
       
    11. Customer will designate at least one primary and one alternate technical resource (the “Customer Technical Contact”) authorized to execute the following responsibilities:
       
      1. Customer Technical Contact(s) will have the training and expertise required to support the customer’s solution.
         
      2. Customer Technical Contact(s) will submit requests to set up change or remove a solution for their agency by submitting a request to the WaTech Support Team.
         
      3. Customer Technical Contact(s) will be the “central Point of Contact” for questions and concerns relating to the customer’s solution.
         
      4. Customer Technical Contact(s) will report service problems, disruptions, and concerns to the WaTech Support Center.
         
      5. Customer Technical Contact(s) will work in collaboration with WaTech to setup, install, configure and maintain the Customer’s solution.
         
    12. Customer will configure and maintain appropriate local policy settings and security controls for the level of data transmitted, stored, and accessed in accordance with their agency defined Internet use policy as well as regulatory and industry standards, guidelines, and best practices.
       
    13. Customers are responsible for working with their Cloud Service Provider to determine appropriate firewall rulesets.
       
    14. Customer will configure and maintain agency resources to protect against commonly known attack vectors in accordance with regulatory and industry standards, guidelines, and best practices.
       
    15. Customer must complete and submit a Cloud Highway Service Request form for each new connection (“off-ramp”), cloud environment, or modification(s) to an existing connection.
       
    16. Customers are responsible to identify and communicate requirements for compliance with specific security control frameworks associated with Category 4 data types (e.g. HIPAA, PCI, Pub 1075, CJIS). Charges may apply for implementation of additional controls where required.
       
    17. Customer acknowledges that WaTech will not have access to any of its encrypted data/content that may be transported by the Cloud Highway.
       
    18. Customer is accountable and responsible for properly licensing, contracts, and records/data management for any third party vendor provided service(s) that that customers acquire that are connected by WaTech’s Cloud Highway service.
       

    J.  Prohibited Uses

     

    Customer shall not use WaTech’s Cloud Highway:

     

    1. For the transmission of any content that is obscene, pornographic, libelous, invasive of privacy rights, and advocates violence, bigotry, or bias based on race, color, religion, ancestry, national origin, gender orientation, or physical or mental disability.
       
    2. For accessing any data and/or networks to which customer does not have prior authorization to access.
       
    3. For altering, tampering, or otherwise modifying the service, software, and/or equipment used to provide the service.
       
    4. In a manner that interferes with or disrupts the services or the servers or networks connected to the services or disobey any requirements, procedures, policies or regulations of the networks connection to the service, including without limitation, engaging in unauthorized computer or network trespass, obstructing or bypassing computer identification procedures or scanning or probing another computer.
       
    5. To damage, disable, overburden or impair any services or any network connected to the services or interfere with any other party’s use and enjoyment of the services.
       
    6. To gain unauthorized access to any services, other accounts, computer systems or networks connected to any services through hacking, password mining or any other means.
       
    7. To provide or attempt to provide access or use of the service, servers or system to any entity or third-party not previously disclosed by customer and authorized in writing by WaTech.
       
    8. To obtain or attempt to obtain any materials or information through any means not intentionally made available by WaTech through the service.
       
    9. To access or attempt to access the network after termination or expiration of this agreement.
       
    10. To use the service for means other than performing a purpose reasonably related to customer’s business.
       
    11. To upload, post, email, otherwise transmit, or post links to any material that contains software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any customer computer software or hardware, telecommunications equipment, or customer data or to diminish the quality of, interfere with the performance of, or impair the functionality of the service.
       
    12. To access or transmit any data and/or networks outside of the United States.
       

    K.  Security

     

    1. Customer agrees to engage WaTech’s Office of Cyber Security (OCS) to perform a security design review as required by OCIO IT Security Standards 141.10 of the customer’s/contractor’s architecture, including but not limited to any and all changes to the architecture that could compromise the security of the agency or WaTech’s systems.
       
    2. Customer further agrees to assume full responsibility for the on-going secure and compliant operation of the environment as required by OCIO 141.10. This includes restricting access to state assets by policy, rules, filters and/or other reasonable methods including agreements with contractors or other third parties. The filtering shall be documented showing the real customer address(es), the address(es) of the state server(s), and the services (telnet, FTP, WWW, etc.) allowed. In so doing, customers agree to comply with all applicable Washington State IT Security Policy and Standards and shall ensure that each and every contractor or third-party complies with all applicable Washington State IT Security Policies and Standards.
       
    3. Customer shall assure that remote clients and servers will be secured to the highest level appropriate for the sensitivity of the data being transferred, manipulated or accessed.
       
    4. WaTech will govern and support customer’s use of private address space under IETF RFC 1918 associated with Network Address Translation (NAT) throughout WaTech’s computing ecosystem to ensure data segmentation (isolation), computing performance, and security compliance.
       
    5. Customer acknowledges that WaTech is obligated to report any security vulnerabilities that are suspect to the State of Washington Auditor’s Office. Customer acknowledges that the State of Washington Auditor’s Office (SAO) may audit without any advance notice.
       
    6. Customer acknowledges and accepts WaTech’s right to suspend service without prior notice upon detection, confirmation, or notification of any unauthorized access, malicious traffic caused by infection or abuse deemed harmful to the SGN. If unauthorized access, malicious traffic caused by infection or abuse occurs, WaTech and customer will attempt to resolve security issues to the satisfaction of WaTech and customer. If no satisfactory resolution of security issues is identified, WaTech reserves the right to terminate service to customer.
       
    7. WaTech provides a security system infrastructure that reasonably protects its customers from unauthorized external access to or broadcast on the Internet of the customer’s intellectual property, proprietary and confidential data. In the event that WaTech becomes aware of a breach of the security of the system involving personal information, as defined by applicable law, maintained but not owned by WaTech, WaTech shall immediately notify the agency that owns the information. Breach of the security of the system means unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of personal information maintained by the agency.
       

    L.  Termination and Termination Liability

     

    1. Termination of services under this TOS by WaTech shall be communicated in writing, no less than eighteen (18) months prior to provide the Customer with adequate lead-time to migrate to an alternative service without loss of service to the Customer.
       
    2. Termination fees for early termination may apply to Services provided based on underpinning contracts with WaTech’s providers used for services provided in the WaTech quote. Customer agrees to pay any termination liability assessed, in the event of Customer voluntarily requesting service termination – not as a result of vendor’s failure to perform or a material breach by WaTech.
       

    M.  Microsoft Specific Azure Terms

     

    1. For Azure connectivity via Express Route, WaTech’s TOS and applicable Service Levels will not apply to any of the following performance or availability issues:
       
      1. Due to factors outside our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to our data centers, including at your site or between your site and our data center);
         
      2. That result from the use of services, hardware, or software not provided by us, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
         
      3. Caused by your use of a service after we advised you to modify your use of the Service, if you did not modify your use as advised;
         
      4. During or with respect to preview, pre-release, beta or trial versions of a Service, feature or software (as determined by us) or to purchases made using Microsoft subscription credits;
         
      5. That result from your unauthorized action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to our network by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices;
         
      6. That result from your failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your use of the service in a manner inconsistent with the features and functionality of the service (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
         
      7. That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);
         
      8. That result from your attempts to perform operations that exceed prescribed quotas or that resulted from our throttling of suspected abusive behavior;
         
      9. Due to your use of service features that are outside of associated support windows; or
         
      10. For licenses reserved, but not paid for, at the time of the incident.
         

    N.  Amazon Specific AWS Terms

     

    1. Service Levels for the AWS platforms are available: https://aws.amazon.com/legal/service-level-agreements/ which are provided to you directly through your contract with Amazon.
       

    O.  Vendor Pass Thru Terms

     

    1. The Cloud Highway Service uses a third party provider (“Equinix”) as part of the provisioning. As a result, the following Vendor terms are incorporated by reference and applicable to this TOS:
       
      1. Customer will comply with the Policies, which have been furnished to Customer and are incorporated herein by reference. Equinix may modify the Policies from time to time effective upon notice. Customer may terminate an Order for a Licensed Space if Equinix modifies the Policies in a way that materially adversely affects Customer’s use of the Licensed Space and the Services in such Licensed Space and Customer provides written notice of termination within ten (10) days from the date of Equinix’s notice.
         
      2. Customer may not sublicense Licensed Space to a Sublicensee.
         
      3. Customer will be responsible and liable for all acts or omissions of Customer’s authorized persons, accompanying persons, associated entities and for any equipment or services not provided by Equinix. To the extent allowed by law, Customer will indemnify, defend and hold harmless the Equinix Parties or WaTech from any and all liability, loss, damages, costs and expenses (including reasonable attorneys’ fees and expenses) for third-party claims brought by, arising from or related to customer’s authorized persons, accompanying persons or associated entities.
         
      4. This Service Level Agreement is not intended to and does not constitute a lease of any real or personal property or a grant of any other real property interest. Customer acknowledges and agrees that (i) for licensed space and services provided in a common law jurisdiction, it is granted only a license to use the licensed space in accordance with this Service Level Agreement and (ii) for licensed space and services provided in a civil law jurisdiction, the licensed space is made available and Customer is granted permission to access and use the licensed space in accordance with this Service Level Agreement. This Service Level Agreement is subject and subordinate to the leases for the IBX Centers and all superior instruments to such leases. Customer’s Equipment will not be construed as fixtures or fittings. Equinix will retain title to all parts and materials used or provided by Equinix in providing the licensed space and the performance of the services.
         
      5. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, EQUINIX DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO, EXPRESS, IMPLIED AND STATUTORY WARRANTIES THAT THE LICENSED SPACE AND SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. ALL LICENSED SPACE AND SERVICES ARE PROVIDED OR PERFORMED ON AN “AS IS”, “AS AVAILABLE. BASIS, AND CUSTOMER’S USE OF THE LICENSED SPACE AND SERVICES IS SOLELY AT ITS OWN RISK.
         
      6. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES (EXCEPT THAT CUSTOMER SHALL BE LIABLE FOR ANY FEES OR OTHER AMOUNTS OWED TO EQUINIX UNDER THIS AGREEMENT); (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
         
      7. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUT EXCLUDING CLAIMS ARISING FROM WATECH’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, WATECH’S TOTAL LIABILITY TO CUSTOMER IN THE AGGREGATE FOR THE ENTIRE TERM (REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ATTORNEY’S FEES) WILL NOT EXCEED THE LESSER OF (I) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO WATECH FOR THE Twelve (12) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST CLAIM AROSE AND (II) TEN MILLION US DOLLARS (US$10,000,000). AS A FURTHER LIMITATION, WATECH’S MAXIMUM LIABILITY FOR ANY CLAIMS RELATING TO THE LICENSED SPACE AND THE SERVICES OFFERED OR PROVIDED BY EQUINIX (I) FOR A NON-RECURRING CHARGE ONLY.
         

    P.  Export

     

    1. Customer, its employees, agents or other third parties may not download, use, or otherwise export or re-export any Software associated with this TOS or any underlying information or technology except in full compliance with all United States and other applicable foreign laws and regulations. By installing or downloading the Licensed Programs, you represent and warrant that you are not located in, under the control of or a national or resident of any country on the U.S. Treasury Departments Specially Designated Nations list of the U.S. Commerce Department Denied Persons List.