Private Cloud Services TOS

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TERMS OF SERVICE FOR
PRIVATE CLOUD SERVICE
 

Below are the Terms of Service for the CTS Private Cloud Service. By accepting these Terms of Service you attest that you have purchasing authority for your organization.
 

This Service is subject to and governed by the 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. The reference to WaTech means the same as Consolidated Technology Services. This Agreement is entered into between you and CTS for use of CTS Private Cloud Service. For the purposes of this agreement “You” and “Customer” are used interchangeably and mean the entity to which CTS is providing service. For purposes of this Service, federal agencies and tribes may not be Customers.
 

This Service is available for WaTech Customers with access to the State Governmental Network (SGN).
 

A.  Service Description

This service provides customers with an Infrastructure-as-a-Service (IaaS) State owned private cloud located within the State data center. Using a self-service portal, customers have on-demand access to clustered compute resources that can be rapidly provisioned and released as virtual servers on a pay-as-you-go basis. Dedicated resource pools can be made available, but at an increases price, contact WaTech for more information. Clients using the State Private Cloud do not pay egress fees.
 

The CTS Private Cloud shared virtual infrastructure reduces or eliminates the need for capital expenditures by the customers and allows them to realize cost savings compared to physical server environments. Options such as increasing Storage, RAM, and virtual CPU’s are available during and after provisioning.
 

    B.  Availability/Accessibility

    WaTech provides service support 24x7, including State holidays. The system(s) defined in the Terms of Service will be available 24x7 with the exception of scheduled maintenance as defined herein. Scheduled maintenance is established as 1st and 3rd Saturdays of each month, 6:00AM to 6:00PM. This scheduled maintenance window will only be used when necessary (e.g., hardware and software maintenance upgrades, software patches, faulty hardware replacement, application changes).
     

    WaTech will meet Service Level Performance Measurement Targets as defined in the table below:
     

    Measurement Area Service Level Performance Measure Service Level Performance Description Target Performance Area
    Operational Efficiency Private Cloud Portal Availability The % of time that the Private Cloud portal is available excluding scheduled maintenance. 99.9%
    Private Cloud Hosting Infrastructure Availability The % of time that the Private Cloud hosting infrastructure is available excluding scheduled maintenance. 99.9%
    Incident Resolution Private Cloud Incident Response The % of Severity Level 1 major incidents resolved within 4 hours or less. 90%

      C.  Charges

      The Private Cloud service fees can be found on the Private Cloud Service Catalog webpage located at: https://watech.wa.gov/solutions/it-services/private-cloud-service

      D.  Responsibilities

      • WaTech Responsibilities

      1. WaTech provides Tier 1 Service Desk Support 24x7x365.
      2. WaTech provides Tier 2 Technical Support Monday through Friday 8:00 AM to 5:00 PM and on call support after hours.
      3. WaTech staff provides 24x7 electronic monitoring of the Private Cloud environment.
      4. WaTech follows Change Management practices in accordance with WaTech Change Management Policy. All changes to State Data Center computing and network environments are managed to promote or provide stability and minimize the impact of the changes to WaTech customers.
      5. WaTech follows standardized Incident Management practices in accordance with WaTech Incident and Problem Management Policy in order to restore normal service operation as quickly as possible and minimize the adverse impact on business operations.
      6. WaTech provides Security Management processes in accordance with OCIO and WaTech Security Policy.
      7. WaTech provides Physical Environment Management in accordance with best practices so that the service is managed effectively and securely including:
         
        • Rack mounted computer systems;
        • Environmental controls and monitoring of State Data Center physical environment;
        • Fire detection and suppression systems;
        • Conditioned power;
        • Un-interruptible power supply;
        • Raised floor; and
        • Restricted and electronically monitored physical access to the State Data Center.
           
      • Customer Responsibilities

      • Customer agency must:
         
        • Have a signed Customer Service Agreement (CSA) or Master Service Agreement (MSA) with WaTech
        • Be part of the Enterprise Active Directory (EAD)
        • Be connected to the State Government Network (SGN) – Other connections are possible but could result in additional fees which could include but are not limited to; firewall and security.
        • Adhere to OCIO security standards and policies
        • Use only software that is properly licensed to use
           
      • New Customer must complete an on-boarding document located at:
        https://watech.sp.wa.gov/ask/cloud/CloudDocuments/New Customer Information/WaTech Cloud Service Customer Interest Form.docx.
         
      • Customer must provide the names for the following contacts:
         
        • Primary Management Contact
        • Primary Technical Contact
        • Primary Billing Contact
        • Primary After Hours Contact
           
      • Customer will set up Active Directory Group and User accounts for Private Cloud Admin and notification purposes.
         
      • Customer will provide agency account numbers for billing purposes.
         
      • The Customer is responsible for the following support activities (please refer to the RACI which clearly defines the responsibilities of both parties:
         
      1. Following best practices for patch management of the customer’s computing environment as described by WACIRC and implemented by the OCIO
      2. Providing a technical support person and backup that will be the main contact person with WaTech Staff and agency staff for agency questions concerning their provisioned systems;
      3. Purchasing, installing, and managing all customer network resources and firewalls;
      4. Purchasing, installing, and managing virus protection on all customer provisioned virtual servers.

      E.  Special Terms

      1. Universal Service Terms (Applicable to All Services)

         
        1. You may only use the Services to store, retrieve, query, serve, and execute Your Content that is owned, licensed or lawfully obtained by you. As used in these Service Terms, (a) “Your Content” includes any “Company Content” and any “Customer Content”. As part of the Services, you may be allowed to use certain software (including related documentation) provided by us or third party licensors. This software is neither sold nor distributed to you and you may use it solely as part of the Services. You may not transfer it outside the Services without specific authorization to do so.
           
        2. You will provide information or other materials related to Your Content (including copies of any client-side applications) as reasonably requested by us to verify your compliance with the Agreement. We may monitor the external interfaces (e.g., ports) of Your Content to verify your compliance with the Agreement. You will not block or interfere with our monitoring. You will reasonably cooperate with us to identify the source of any problem with the Services that we reasonably believe may be attributable to Your Content or any end user materials that you control.
           
        3. If we reasonably believe any of Your Content violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (“Prohibited Content”), we will notify you of the Prohibited Content and may request that such content be removed from the Services or access to it be disabled. If you do not remove or disable access to the Prohibited Content within 2 business days of our notice, we may remove or disable access to the Prohibited Content or suspend the Services to the extent we are not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, we may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that we remove content without prior notice, we will provide prompt notice to you unless prohibited by law.
           
      2. WaTech Private Cloud Service

         
        1. In connection with your use of WaTech Private Cloud (State Private Cloud) Service (including all instances and instance types, hosts and other on-demand resources and the Services, you are responsible for maintaining licenses and adhering to the license terms of any software you run.
           
        2. We may collect certain information about computing jobs you run using WaTech Private Cloud Service, including CPU utilization, memory usage, IO performance, and error and information messages.
           
        3. You are responsible for all fees incurred from your use of WaTech Private Cloud Service regardless of the results obtained, the quality of the resulting data, or whether a computing job runs successfully.
           
        4. You are solely responsible for monitoring the status of your computing jobs. We may throttle or terminate computing jobs that we determine degrade the performance of WaTech Private Cloud Service, the Services, or any component of the Services. We are not responsible for any data loss or data corruption that occurs as part of your computing jobs.
           
        5. Using Microsoft Software. In conjunction with the Services, you may be allowed to use certain software (including related documentation) developed and owned by Microsoft Corporation or its licensors (collectively, the “Microsoft Software”).
           
        6. If you choose to use the Microsoft Software, Microsoft and its licensors require that you agree to these additional terms and conditions:
           
          • The Microsoft Software is neither sold nor distributed to you and you may use it solely in conjunction with the Services.
             
          • You may not transfer or use the Microsoft Software outside the Services.
             
          • You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft Software.
             
          • You may not reverse engineer, decompile or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law.
             
          • Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services.
             
          • Microsoft is not responsible for providing any support in connection with the Services. Do not contact Microsoft for support.
             
          • You are not granted any right to use the Microsoft Software in any application controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High Risk Use”). Microsoft and its suppliers disclaim any express or implied warranty of fitness for High Risk Use. High Risk Use does not include utilization of the Microsoft Software for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.
             
          • Microsoft is an intended third-party beneficiary, with the right to enforce its provisions.
             
          • For any instance running Microsoft Software (each, a “Microsoft Instance”), you may not use nesting, container or similar technologies to sell or resell multiple instances, portion(s) of an instance, or containers running within the Microsoft Instance, unless (a) you are the ultimate end user of the Microsoft Instance, (b) you have supplemented the Microsoft Instance with your own applications, or (c) you have added primary and significant functionality to the Microsoft Instance.
             
        7. Using SUSE Software. In conjunction with the Services, you may be allowed to use certain software (including related documentation) developed and owned by SUSE LLC or its licensors (collectively, the “SUSE Software”). If you choose to use the SUSE Software, SUSE and its licensors require that you agree to these additional terms and conditions:
           
          • Your use of the SUSE Software is subject to the terms and conditions of the SUSE End User License Agreement (“SUSE EULA”) provided with the SUSE Software currently located at https://www.suse.com/licensing/eula and the SUSE Terms and Conditions currently located at https://www.suse.com/products/terms_and_conditions.pdf. By using the SUSE Software, you hereby agree to be bound by the terms of the applicable SUSE EULA and the SUSE Terms and Conditions.
             
        8. Using Red Hat Software. In conjunction with the Services, you may be allowed to use certain software (including related support, maintenance, and documentation) developed, owned or provided by Red Hat, Inc. or its licensors (collectively, the “Red Hat Software”). If you choose to use the Red Hat Software, Red Hat and its licensors require that you agree to these additional terms and conditions:
           
          • Red Hat disclaims any (i) warranties with respect to the Red Hat Software and (ii) liability for any damages, whether direct, indirect, incidental, special, punitive or consequential, and any loss of profits, revenue, data or data use, arising from your use of the Red Hat Software.
             
          • Your use of the Red Hat Software is subject to the terms and conditions of the Red Hat Cloud Software Subscription Agreement currently located at https://www.redhat.com/licenses/cloud_cssa/ (the “Red Hat CSSA”). By using the Red Hat Software, you hereby agree to be bound by the terms of the Red Hat CSSA.
             
        9. Using VMWare Software. In conjunction with the Services, you may be allowed to use certain software (including related support, maintenance, and documentation) developed, owned or provided by VMWare, Inc. or its licensors (collectively, the “Dell Inc”). If you choose to use the VMWare Software, VMWare and its licensors require that you agree to these additional terms and conditions:
           
        10. Microsoft BYOL Licensing. Under this option, WaTech Private Cloud enables you to provision WaTech Private Cloud instances using your Microsoft Software and Microsoft Licenses (the “BYOL Program”). Unless otherwise specified in your agreement(s) with Microsoft, you can use this benefit only if you comply with the Microsoft requirements, and you (a) use Dedicated Instances or Dedicated Hosts; (b) launch from Virtual Machines (VMs) sourced from software binaries provided by you. You must be eligible to use the BYOL Program for the applicable Microsoft software under your agreement(s) with Microsoft. You are solely responsible for obtaining all required licenses and for complying with all applicable Microsoft licensing requirements, including the Product Use Rights/Product Terms. Further, you must have accepted Microsoft's End User License Agreement (Microsoft EULA), and by using the Microsoft Software under the BYOL Program, you agree to the Microsoft EULA. You agree that you have determined that your use of the BYOL Program will comply with the applicable Microsoft licensing requirements. Usage of the Services in violation of your agreement(s) with Microsoft is not authorized or permitted.
           
      3. WaTech Private Cloud Database Software Use

         
        1. You may only use Private Cloud Service to store, query, retrieve and serve data and other content owned, licensed or lawfully obtained by you. You acknowledge that neither we nor our licensors are responsible in any manner, and you are solely responsible, for the proper configuration of database security groups and other security settings associated with Private Cloud Service.
           
        2. We may terminate your Private Cloud Service database instance if you attempt to access or tamper with any software we pre-load on the database instance, including the operating system software running on the database instance.
           
        3. You are responsible for configuring your backup retention period to give yourself enough time to recover data from your backups in the event of hardware or file system failure.
           
        4. Bring-Your-Own-License” (BYOL). Under the BYOL option, WaTech Private Cloud enable you to provision Microsoft SQL and Oracle Software to WaTech Private Cloud instances and use the management capabilities of WaTech Private Cloud for the database software. You can use the software with WaTech Private Cloud if you meet the following conditions:
           
          • You must have a valid license with “Software Update License & Support” for the Microsoft SQL and Oracle Software you wish to run. The terms of your existing license and support agreement(s) with the vendor continue to apply to your use of the software; and
             
          • You must follow the software vendor’s current policies for licensing database software in the cloud computing environment for the database instances using the Microsoft SQL and Oracle Software with WaTech Private Cloud reside in the WaTech Private Cloud environment.
             
        5. Using WaTech Microsoft SQL Database Software Service
           
          • Licenses and Database are available from the WaTech SQL Services Group. For more information regarding the WaTech Microsoft SQL Database Software Service Terms of Service Agreement.
             
      4. Privacy and Security Regulations

         
        1. WaTech recognizes its responsibility to provide a secure services infrastructure and WaTech strongly encourages Customer to understand its role in providing proper stewardship as well. WaTech strives to assure that its services protect and preserve the confidentiality, integrity, and availability of information technology infrastructure resources that are critical to the provision of enterprise services. WaTech uses best efforts to implement its Security Plan, and other requirements located in the Office of the Chief Information Officer Security Standards.
           
        2. The Customer is responsible for compliance with all applicable legal obligations and regulations. The Parties will execute an amendment to this TOS when the Customer has unique regulatory requirements. The TOS amendment will spell out the requirements and WaTech’s obligations. For example, if a HIPAA Business Associates Addendum is required, WaTech will execute that as an amendment to the TOS.
           
        3. Agencies are responsible for any and all data placed on the WaTech Private Cloud Flexible Service. Agencies must follow all applicable OCIO policy and industry standards to protect all data, including but not limited to private citizen data which an Agency might chose to place on the WaTech Private Cloud Flexible Service.
           
      5. Disaster Recovery

         
        1. WaTech Private Cloud Flexible Services offers a Disaster Recovery option using tools within the Zerto Suite. Disaster Recovery Services are offered for an additional fee, which are located at: http://watech.wa.gov/solutions/it-services/private-cloud-service
           
        2. Additional information regarding Zerto products and security compliances can be located at the Company’s website: https://www.zerto.com/
           
        3. Disaster Recovery Services are located in our Quincy Data Center.
           
        4. Agency’s using WaTech Private Cloud Flexible Service Disaster Recovery are solely responsible for testing their own Disaster Recovery. WaTech is not responsible for Agency’s DR Testing or Compliance.
           
        5. Agency is responsible in informing WaTech of any issues or incidents they may find during a Disaster Recovery Test so WaTech can work with Agency to resolve.
           
        6. An Agency is guaranteed Disaster Recovery Space in Quincy unless the Governor deems other services necessary in a time of crisis. At this point, WaTech will work with an Agency to find other solutions.
           
      6. Data

         
        1. All Data is housed in the State Data Center, which meets industry best practices for data center security and is housed within the State of Washington. All data remains within the custody and jurisdiction of the State of Washington.
           
        2. All data or other records held or stored by WaTech as a result of this TOS shall be considered the property of, and in the custody of, the Customer.
           
      7. Breach

         
        • If there is a security breach involving Customer Data, WaTech will notify the Customer immediately upon discovery and provide the Customer with the information needed about the breach necessary to meet the Customer’s responsibilities and business needs.
           
      8. Data Backup

         
        • Customer shall be responsible to complete backups of their provisioned systems. WaTech WILL HAVE NO LIABILITY FOR LOSS OR RECOVERY OF DATA OR PROGRAMS or loss of use of system(s) arising out of this Service or related support activities. However, WaTech will use best efforts to notify you when it is aware of data loss, and work with you to meet the obligations set forth in the Customer Service Agreement if applicable.
           
      9. Public Records Requests

         
        • If WaTech receives a Public Records request under RCW 42.56 for Customer Records, WaTech will refer the requester to the Customer’s Public Records Officer. Customer is responsible for providing WaTech with current contact information for the Customer’s Public Records Officer.

          At the request of the Customer’s Public Records Officer, WaTech will assist the Customer in fulfilling the request. Such consulting and assistance may include such tasks as: restoring mailboxes, desktop support, advice on processing of Public Records, analysis and redaction of WaTech data within responsive Public Records. For WaTech technical assistance contact the WaTech Service Desk.

          Costs incurred by WaTech in assisting with public records requests are Customer’s responsibility. Prior to undertaking any such requested assistance, WaTech will confirm the Customer request and provide an estimate of the tasks and charges, if any, associated with WaTech’s assistance.
           
      10. Subpoenas, Litigations Hold or other Legal Processes

         
        1. Upon service on WaTech of valid legal process for Customer Records:
           
          1. WaTech will promptly notify the Customer’s Public Records Officer.
             
          2. WaTech will seek advice of, and respond as directed by, WaTech assigned assistant attorney general (AAG).
             
          3. WaTech will encourage its AAG to consult with Customer legal counsel about compliance with legal process. To the extent permitted by law or court order, WaTech will notify Customer’s Public Records Officer of its planned response in advance.
             
        2. If WaTech is contacted by a law enforcement agency in connection with Customer Records, WaTech will refer the law enforcement agency to the Customer’s Public Records Officer.
           
        3. WaTech will respond to a request in connection with an internal Customer investigation or personnel matter only if received from an authorized Customer Representative. Customer is responsible for providing WaTech with current contact information for the Customer representative (s) authorized to make such requests.
           
        4. WaTech will work with you to meet any e-discovery, litigation hold or other special circumstances relating to special treatment of your Data. Such expectations shall be agreed upon between the parties and documented in an amendment to this TOS, which outlines the parties roles/responsibilities.
           
      11. Software Versions

         
        • The Customer will be responsible for the support of the Operating System (OS) Software and other software installed on each virtual server that they provision within the Private Cloud service unless they pay WaTech Server Support for this assistance. Customer agrees to keep patch levels on the OS at current levels to minimize security exposures. Customer will make all attempts to move to newer OS versions on or before the vendor announced Mainstream Support End Date (End of Service) is reached. Customer also agrees not to run any OS version that is past its vendor announced Extended Support End Date (End of Life).
           
      12. Underpinning Contract Requirements

         
        •  
          1. Scope of License. Subject to the terms and conditions of this EULA, VMware hereby grants You, under the Intellectual Property Rights of VMWare and its licensors, during each applicable License Term, a non-exclusive, non-transferable License to use such Software, in executable code form only, within the Territory, for Your internal operations as provided in RCW 43.105, and subject the terms hereof (and notwithstanding any conflicting provisions in any Product Guide, Order and/or the Service Terms, in accordance with (a) the Documentation; (b) the License Type for which You have paid the applicable fees; (c) other applicable limitations set forth in the Order. The License to the Software is limited to the quantities specified in each applicable Order. The Services provided under this TOS shall be solely for Customer’s own internal use and not for resale or service bureau purposes.
          2. Third Party Use. Under the License granted to You in Section 2.1 above, You may permit Your Third Party Agents to access, use and/or operate the Software on Your behalf for the sole purpose of delivering services to You, provided that You will be fully responsible for Your Third Party Agents’ compliance with terms and conditions of this EULA and any breach of this EULA by a Third Party Agent shall be deemed to be a breach by You.
          3. Open Source Software. Notwithstanding anything herein to the contrary, Open Source Software is licensed to You under such OSS’s own applicable license terms, which can be found in the open_source_licenses.txt file, the Documentation or as applicable, the corresponding source files for the Software available at http://www.vmware.com/download/open_source.html. These OSS license terms are consistent with the license granted in Section 2, and may contain additional rights benefiting You. The OSS license terms shall take precedence over this EULA to the extent that this EULA imposes greater restrictions on You than the applicable OSS license terms.
          4. Restrictions. You acknowledge that the Software and the structure, organization and source code of the Software constitute valuable trade secrets of VMware. Accordingly, except as expressly permitted in Section 2 or as otherwise authorized by VMware in writing,; You will not and will not permit any Third Party vendor to: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part the Software or Documentation to any third party (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part; (c) copy the Software, except for archival purposes, as set out in Section 2.3; (d) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software as described in this EULA; (e) translate, modify or create derivative works based upon the Software; (f) permit any use of or access to the Software by any third party; (g) remove any product identification, proprietary, copyright or other notices contained in the Software; or (h) operate the Software on behalf of or for the benefit of any third party, including the operation of any service that is accessed by a third party, except that, for the purposes of this Section 3.1 (h), You may use the Software to deliver hosted services to Your Affiliates, as defined in Section 1 above.
          5. Decompilation. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the Territory give You the express right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, You must first request such information from VMware (at info@vmware.com), provide all reasonably requested information to allow VMware to assess Your claim, and VMware may, in its discretion which shall not be unreasonably withheld, either provide such interoperability information to You, impose reasonable conditions, including a reasonable fee, on such use of the Software, or offer to provide alternatives to ensure that VMware’s proprietary rights in the Software are protected and to reduce any adverse impact on VMware’s proprietary rights.
          6. Ownership. The Software and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of VMware and its licensors. Your rights to use the Software and Documentation shall be limited to those expressly granted in this EULA and any applicable Order. No other rights with respect to the Software or any related Intellectual Property Rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Documentation or any portion thereof except as expressly authorized by this EULA or the applicable Order.
          7. Guest Operating Systems. Certain Software allows Guest Operating Systems and application programs to run on a computer system. You acknowledge that You are responsible for obtaining and complying with any licenses necessary to operate any such third-party software.
          8. Records. You will, during the License Term for any Software licenses acquired under this EULA (and for the statutory time period for records retention purposes, which shall not be less than two (2) years from the expiration of the applicable License Term), maintain accurate records of your use of the Software sufficient to demonstrate Your compliance with the terms of this EULA and all Orders.
          9. Audit Rights. During the period in which You are obligated to maintain such records, VMware, or its third party auditor, may, upon reasonable notice to You, but at a minimum ten business days prior notice, audit such records to verify that You have (a) used the Software solely in the manner authorized herein; (b) paid all applicable license fees; and (c) otherwise complied with the terms of this EULA and all Orders. VMware may conduct no more than one (1) audit in any twelve (12) month period. Audits will be conducted during normal business hours and VMware will use commercially reasonable efforts to minimize any disruption of Your normal business activities. VMware, and any third-party auditor, shall not have physical access to Your computing devices in connection with any such audit, without Your prior written consent. You will reasonably cooperate with VMware and/or its third-party auditor and will promptly pay directly to VMware any underpayments revealed by such audit. You will promptly reimburse VMware for all reasonable costs and expenses incurred by VMware for such audit if: (i) such audit reveals an underpayment by You of more than five percent (5%) of the fees payable by You to VMware for the period audited.
          10. SUPPORT AND SUBSCRIPTION SERVICES. Except as expressly specified in the Product Guide, VMware does not provide any support or subscription services for the Software under this EULA. You have no rights to any updates, upgrades or extensions or enhancements to the Software developed by VMware unless you separately purchase VMware support or subscription services. These support or subscription services are subject to the Services Terms.
          11. Software Warranty. VMware warrants to You that the Software will, for a period of ninety (90) days following delivery (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Software (a) has been properly installed and used at all times and in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than VMware or its authorized representative. VMware will, at its own expense and as its sole obligation, and Your exclusive remedy for any breach of the foregoing warranty, either replace the applicable Software or correct any reproducible error in the Software reported to VMware by You in writing during the Warranty Period. If VMware determines that it is unable to correct the error or replace the Software, VMware will refund to You all License fees and pro-rated maintenance fees for any unused maintenance on the affected Software actually paid by You, in which case the License for the applicable Software and Your right to use such Software will terminate.
          12. Disclaimer of Warranties. THE EXPRESS WARRANTY IN SECTION 7.1 ABOVE IS IN LIEU OF AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE AND ITS LICENSORS DISCLAIM, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE) REGARDING OR RELATING TO THE SOFTWARE, THE DOCUMENTATION, OR ANY MATERIALS FURNISHED OR PROVIDED TO YOU UNDER THIS EULA. VMWARE AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE SOFTWARE WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.
          13. Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL VMWARE AND ITS LICENSORS or WaTech BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. VMWARE’S AND ITS LICENSORS’ LIABILITY UNDER THIS EULA, except for VMWare’s obligations pursuant to Section 8 and WaTech’ liability WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE LESSOR OF (a) TWO TIMES THE TOTAL AMOUNT OF FEES YOU PAID UNDER THE ENTERPRISE LICENSE AGREEMENT, AND (b) $5,000,000. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER VMWARE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
          14. Further Limitations. VMware’s licensors shall have no liability of any kind under this EULA and VMware’s liability with respect to any third party software embedded in the Software shall be subject to Section 9.1.
          15. Definition. “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) which are in tangible form and labeled “confidential.” The following information shall be considered Confidential Information whether or not marked or identified as such: (a) License Keys; (b) information regarding VMware’s, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Software.
          16. Protection. Recipient may use Confidential Information of Discloser; (a) to exercise its rights and perform its obligations under this EULA; or (b) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by the EULA, and, will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of the EULA.
          17. Exceptions. Recipient’s obligations under Section 11.2 with respect to any Confidential Information will terminate if Recipient can show by written records that such information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Information. In addition, WaTech will be allowed to disclose Confidential Information to the extent that it deems such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that WaTech notifies Discloser of such required disclosure promptly and in writing. Notwithstanding the foregoing, all personally identifiable information of any software of WaTech or its Affiliates or used in connection with the Software shall at all times be treated as Confidential Information of WaTech.
          18. Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this EULA. You acknowledge that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) you will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and documentation by the U.S. Government shall be governed solely by the terms and conditions of this EULA.