vXarch Service Package Terms (version 2023.01 through 2024.04)

DLC TECHNOLOGY SOLUTIONS INC. vXarch Service Package Terms

Version 2023.01 through 2024.04

These TERMS OF SERVICE (“Terms”) govern the services and packages known as “vXarch” with version numbers 2023.01 through 2024.04 provided by DLC Technology Solutions, Inc. (“DLC”) to any active customer (“Customer” or “you”). These terms, together with the signed Scope of Work, Quotation and/or Proposal document(s) (“Quotation”) make up the overall terms of service for the relationship between DLC Technology Solutions, Inc. and you, the Client.

(Note that any other service package, resold service or cloud based services, products or applications are not governed by these terms. Please reference your quotation for applicable terms for those products.)

Acknowledgement
By accessing, ordering, paying any invoice, or using service or Service Plan products or services, you (“You” means the legal entity that you are authorized to represent and on whose behalf the product or services are purchased) and other users of the Services (collectively, “Users”) agree to these Terms. If You do not agree to these Terms, you may not access or use the product or services or permit others to do so on your behalf.

Changes

You further acknowledge that these terms may be updated from time to time with or without notice. A current copy of the terms is available at http://www.dlctechnology.com/terms-of-service

1. DEFINITIONS
“Active Customer” shall mean a customer that is currently using the services of DLC and owes no past due amounts to DLC.

“Advanced IT Management” is a service line module that provides a specific set of traditional IT Support services.

“vXarch Cyber Core” is a service line module that provides a specific set of Cybersecurity related services.

“The vXarch Complete Service Package” is a service package comprised of at least two included modules such as the Advanced IT Management and vXarch Cyber Core modules. (also referred to as "The vXarch Service Package")

“vXarch Starter” is a service package consisting of only select Cybersecurity related services and time and materials based services. (also referred to as "vXarch Basic")

“Client” or “Customer” refers to the company requesting, utilizing, and/or purchasing the services described herein;

“Quotation” shall mean the written or electronically signed quote, proposal, scope of work or other document that specifically outlines the products and/or services sold to a Customer. The Quotation may specify terms or prices that conflict with these Terms. In that case, the Quotation shall been deemed valid only for the terms in confict. The remainder of the terms specified in the Quotation and the appropriate Terms documents shall remain in force.

“DLC” refers to DLC Technology Solutions, Inc., the provider of the services discussed herein;

“Server”, “Workstation”, or “Computer Device” shall mean a computing device so described that is running a Microsoft Windows or Mac OSX operating system that is within two major release levels of the currently shipping operating system of that type that is connected to the Client’s network and is owned by the Client.

“Holidays” , “Business Hours” , “Off-hours” and “After-hours” are defined on our Standard Service Rate page on our website located at: https://dlctechnology.com/vxa-billing-rates/

RATES

Standard service rates are posted on our website at : https://dlctechnology.com/vxa-billing-rates/

Each of the rate types below shall be displayed at that website location:

“DLC’s Standard Service Rate” 

“DLC’s After-Hours Service Rate” 

“DLC’s Holiday Service Rate” 

"Cybersecurity Event Response or Assistance Rate" 

"Training Rate" 

"Travel Rate"

Rates (or discounts applicable from the standard rates) specific to the customer’s service package will be indicated on the applicable Quotation.

2. DESCRIPTION OF SERVICES

DLC shall provide one or more of the following component services as part of the service offering or plan. The specific plan selected (if any) and any components included shall be specified on the Quotation. Services listed in this section may only apply if that service is detailed on the Quotation.  In the event of a conflict between these terms and those specified on the Quotation, the Quotation's term shall be in effect.

2a. General Services Terms
DLC shall furnish General IT Support and Management for Client in strict accordance and in full compliance with the terms and conditions hereof, and shall make available said and related services to the Client at the hourly service rates described herein (or on the Quotation), billed in 15 minute (quarter-hour) increments.

All work will be provided on an as-needed basis based on requests made directly by the Client. Support may be provided onsite or offsite via remote connectivity methods. Proper incident submission includes completing of a support request form on the dlchelp.com website, sending an email to support@dlctechnology.com or calling the support hotline at 856-872-2155. Support incident submission methods may be modified at any time by DLC.

Response time shall be best effort, but typically no longer than next business day. Should onsite assistance be needed, travel expenses and travel time shall be chargeable at the travel rate listed above between Client and DLC’s office location (both travel directions). Onsite work is subject to a two hour minimum charge. Offsite or Remote work is subject to a one-half hour minimum charge. Any work occurring on behalf of the Client outside of Business Hours is billable at the “after-hours” rate of one and a half times the discounted rate per hour. The client’s request for support or any automated alert will be considered approval to perform services.

Client acknowledges that diligent efforts will be made to provide Client with a reasonable and accurate estimate of the costs for aforementioned support incidents. Client understands that due to unknown factors and changing circumstances, the actual total costs of the support incident may exceed any amount quoted in the estimate. Client further agrees to reimburse DLC for all travel expense related to DLC carrying out its duties as indicated above, and understands that any estimate does not include any costs for travel expenses or any applicable sales taxes.

• DLC will determine if onsite support is required to best support the Client, and may initiate the same without notice to the Client.
• Service on out of warranty equipment, unsupported Operating Systems or Applications, and/or any product or item that is deemed “end of life” will be supported at best-effort, may incur hourly support charges, and may not be supportable at all. In this case, DLC will advise replacement or other repair to bring the system up to DLC and industry standards.
• Hardware and related hardware repair labor is not included. However if under warranty, coordination with the manufacturer to obtain warranty replacement of defective hardware is included.

2b. Remote Monitoring of systems

This includes the installation of special software on Client’s workstations, servers and/or computer devices which monitors critical system metrics, and reports back to a centralized control center at DLC’s offices. The list of items monitored and numbers of agents and software needing to be installed can change at any time and varies depending on service plan or plan level. A current list of monitored metrics and required agents under the various plans can be requested at any time from the DLC Support desk at support@dlctechnology.com.

For vXarch Starter, the centralized control center alerts DLC and/or the Client when anomalies are detected. The Client must individually request DLC’s assistance on remediating any anomalous conditions that are detected by the system. (There is no automatic repair of any detected anomaly by the system or by DLC staff without the Client’s approval.)

For the vXarch Complete Service Package, the centralized control center alerts DLC Staff when anomalies are detected. DLC Staff will immediately begin work to remedy the issue, and such response will be chargeable to the customer as per the terms of their plan.

Backup monitoring is not included as part of the remote monitoring service.  It is the customer’s responsibility to monitor their own backup solution and either make repairs on their own, or alert DLC to a backup issue and request DLC to repair any such issue.  DLC does not monitor any backups whatsoever, with the exception of backups of server OS based devices using the Datto backup and disaster recovery appliance and associated service.  In the case of a Datto backup of a server class machine only, DLC will monitor backups for health and take automatic action to either resolve the issue or alert the customer to do the same, depending on the service contract type in force at the time between the customer and DLC.

2c. Anti-Virus solution

This includes the provision of one license of Anti-Virus software for each server, workstation and/or computer device that is covered by this Package. Existing Anti-Virus licenses and software (if any) owned by the Client are unsupportable and will be replaced with DLC’s solution. Installation of Antivirus software and/or licenses and Remote Monitoring system agent software will be performed at the start of this Agreement, and will consume support hours under this Agreement, or may be subject to a device onboarding fee.

2d. Online customer portal access  

This includes access to DLC’s customer portal, where service ticket status and other customer data can be viewed by the customer at any time. Passwords for this portal must be requested from the DLC support desk.

2e. Discounted hourly service rates

For vXarch Starter, this includes a minimum discount of 6% off DLC’s standard service rate for any services performed. For vXarch Complete Service Package, this includes a minimum discount of 17% off DLC’s standard service rate for any services performed.

2f. vXarch Starter features:

vXarch Starter provides foundational level protections only with time and materials based IT support at the customer’s direction.  Specific included service items and products are outlined on the Quotation.  At this service level the following additional conditions apply:

• Response time to urgent issues is targeted to be within eight business hours, standard or non-urgent or non-support related requests will be responded to next business day.

• Two hours of consulting per year are included in the package for IT review and planning purposes to be used at the discretion of DLC.

2g. vXarch Complete Service Package features:
The vXarch Complete Service Package includes services grouped into two service modules as follows.  Exact included services, applicable hourly rates and other details will be detailed on the Quotation.

Advanced IT Management Module provides various IT support and project services as outlined in the Quotation.

vXarch Cyber Core Module includes various cybersecurity services, solutions and protections as outlined in the Quotation.

At the vXarch Complete Service Package service level the following additional conditions apply:

• Response time to urgent issues is targeted to be within 2 business hours, standard support requests within 4 business hours, and non-urgent or non-support related requests will be responded to within one business day.

• If Automated maintenance and installation of critical operating system patching and updates of the Client’s servers and workstations is included in the Quotation, the Customer must make systems available for patching and rebooting no less frequently than one time per calendar week.  Should systems be not compatible with the automated patching/updates, DLC shall set systems to auto-update where applicable.

• Virtual CIO services shall include high-level planning, and annual budgeting.  Other consultation services are available as a separately scoped and charged project.

• If unlimited support is included, the following exceptions apply,  Exceptions are chargeable at the hourly service rate and terms specified in the Quotation and herein:
a. Onsite Support outside of a 50 mile radius of DLC Offices in Marlton, NJ
b. Hardware repair or support

c. New installations, moves, adds, changes, and/or “project work”
d. Loss or corruption of data records

e. User training
f. Support due to misuse, abuse, and/or use for a non-standard or non-intended purpose
g. Support or maintenance of custom applications or websites
h. Specialized services that exceed the scope of services provided by DLC, such as, but not limited to, breach response and/or root cause analysis services, penetration testing, vulnerability testing, vulnerability scan remediation, cable plant maintenance, telephony systems etc.
i. Support related to hardware, software, and/or systems implemented or modified against the advice of DLC, by the customer or a third-party, not supported by the manufacturer, and/or without our previous knowledge and acceptance.

j. Any solution or feature that is not specifically listed on a properly executed and in-force quotation or contract with DLC

2h. Any other service shall be billed at time and materials rates or as specified on the quotation

2i.  Any "As a service" offerings included in quotation:

"As a service" offerings including HaaS (Hardware as a service), IaaS (Infrastructure as a service), FWaaS (Firewall as a service), or any product that includes "rental" in the description of the line item or as a subscription are subject to the following additional terms:

 

SILENT DATA CORRUPTION AND EQUIPMENT FAILURE (“as a service” offering)
The provided equipment uses technologies that are beyond DLC or the Vendor’s control. Though unlikely, device failure, data loss or corruption can occur. Customer is strongly advised to use verification processes no less than 1 times per month to verify the integrity of stored data. DLC will be held harmless against the loss of data whether such loss is due to hardware, software or telecommunications failures.  It is recommended that "As a service" offerings be coupled with other backup and support services to mitigate this risk.

Should a hardware failure occur, DLC and / or the appropriate vendor shall make repairs to the product as fast as possible using available vendor product warranty support.  DLC support services required to make replacement or repaired hardware configured and functional may incur additional charges as they are not part of the "As a service" offering.  DLC makes no warranties or guarantees in regard to repair timeline or uptime rates.  DLC reserves the right to replace the equipment in the event of hardware failure or any other reason at any time as long as it is substantially the same configuration and capabilities.

NO LONGER SUITABLE

Should the equipment no longer be appropriate for use (such as the customer's needs are greater than what the device can provide, the device has reached the end of its service lifetime, etc) DLC reserves the right to cancel the service and reclaim the hardware.  In such an event DLC will propose alternate hardware as an upgrade path, which will require a new proposal and additional investment or monthly fees.

 

2j.  Terms regarding additional features or services added per quotation

Some products listed on a sales quotation are subject to additional terms of service.  Please consult http://dlctechnology.com/terms-of-service to identify additional terms by service name.  Some of these products include, but are not limited to:

-Backup and Disaster Recovery solutions such as Datto or SimpleCloud 

-Cloud Services such as Microsoft, Sophos, Axcient, Datto, eFolder or others

-Hosting and related services 

-Telecom Support services

-SDWAN services

2k.  vXarch Plan Versioning

Due to the rapidly changing technology landscape, all vXarch service plans are versioned in order to identify a common set of services and solutions implemented at a customer location.  The version number shall consist of a four digit number representing the year, and a period, and then a two digit number representing the quarter when the service package was released to the market for sale.  As an example, the service package released in Quarter 1 of 2023 is versioned “2023.01”. 

 

The Quotation will specify the version of the service plan the Client is purchasing.  As technology progresses, service plans may need to be discontinued and replaced rapidly. Therefore the Client agrees to work with DLC on migrating between service plan versions as necessary to maintain a secure and reliable IT environment.

2l.  Security Measures

In an effort to maintain a secure computing environment certain security measurements, protections and controls may be implemented and required for customer use of the product(s). These may be updated from time to time without notice to the customer. This includes but is not limited to password changes or complexity requirements, password expiration, multi-factor authentication, encryption levels, and more. Customer agrees to cooperate with any such measures and understands that such measures are for the customer’s own benefit.   At all times the customer will be the owner and be in control of all changes to their environment and passwords to their systems.

3. SERVICE START-UP
To initiate the service, Client will follow installation instructions to deploy/install the DLC Monitoring Software and other related agents on each machine in the customer’s network. An optional onboarding service is available from DLC, and, if purchased, DLC would install the software on the customer’s behalf.

The Client must uninstall (or allow DLC to uninstall) any existing Anti-Virus software or other conflicting software) in order to make use of the Anti-Virus and other related agents or applications supplied as part of this package.   The Client understands that each agent or software component is subject to compatibility restrictions and may not function on all hardware or operating systems.  Should that be discovered DLC will report findings to the Client with a recommendation for remediation or replacement of incompatible systems.

4. DLC SERVICE FEES
As compensation for the services provided by The Service described in these Terms, Client shall pay fees to DLC as detailed on the applicable Sales Quote, Proposal, Agreement, Service Plan Description, or Invoice. Client shall pay fees in U.S. Dollars. Client shall receive monthly statements reflecting the charges accrued, hours spent, travel expenses incurred by DLC related to this agreement and each support incident, and total amount due. Payment by the Client for the total statement amount shall be due within fifteen days of the statement date.
Payments for any recurring monthly Support Package Fee are due in advance each month and must be paid via automated EFT/ACH, credit card or pre-paid annually. (If monthly fees are greater than $2000 per month, they may also be billed monthly). In the case of automated payments, the Client’s credit card or bank information will remain on file with DLC to facilitate automatic payments. DLC will not commence work on a new service plan until the initial fees and/or first month’s services have been paid.

Past due amounts are subject to a 5% monthly late fee or $20 per month, whichever is greater. DLC reserves the right to cease all work and suspend services in progress with no less than 24 hours notice should balances remain unpaid. This includes “as a service” hardware offerings.  Client shall be responsible for all attorneys fees and costs associated with collecting past due amounts.

5. AGREEMENT SCOPE and ADJUSTMENT OF FEES
These Terms, the Quotation, and the associated pricing is only valid for the number of servers, workstations, sites, users, employees, companies or other metrics as specified in the Quotation. Should any of these metrics be exceeded, additional charges for this support solution may apply and will be automatically added to the monthly billing amount. Quantities shall be audited continually. Client agrees that all company owned Desktop, Server and Network devices shall be covered by the service plan. 

DLC reserves the right to adjust service fees at the end of each term and at each 12 month period.  Client understands and agrees that service fees shall increase on the yearly anniversary of each agreement and any such annual increase of 5% or less may be applied without advance or additional notice to the Client.  In the case of a term length greater than one year, increases will be applicable starting at the first year anniversary of the agreement's start date.

6. INDEMNITIES AND LIMITATION OF LIABILITY
DLC provides its services by this Agreement “as is” and cannot make any affirmation of fact or warranty with respect to the hardware and software used under this Agreement, and hereby expressly disclaims all express and implied warranties, including, without limitation, warranties of merchantability, fitness for a particular purpose, and infringement of proprietary interests. While DLC shall make all reasonable efforts to ensure that the services are provided as per the services’ intended functionality and options selected, due to the nature of external forces such as the Internet, third-party companies, and the like, DLC cannot warrant that this will be the case at all times. Therefore, DLC SHALL NOT BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES TO (WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT OR OTHERWISE) OF ANY KIND WHATSOEVER INCLUDING LOSS OF BUSINESS, LOST PROFITS, LOST DATA, LOST MESSAGES, OR FAILURE OF SECURITY ARISING OUT OF OR RELATED TO THE SERVICES OR THE CLIENT’S OR THE PUBLIC’S USE OF OR INABILITY TO USE THE CLIENT’S COMPUTING OR NETWORK SYSTEM(s).

In the event Client is sued or incurs any expense, loss or liability of any kind due to any claim made against Client on the basis of wrongful or improper acts of DLC, DLC shall indemnify and hold Client harmless from any such expense, loss or liability including attorney s fees. In the event DLC is sued or incurs any expense, loss or liability of any kind due to any claim made against DLC on the basis of wrongful or improper acts of Client, Client shall indemnify and hold DLC harmless from any such expense, loss or liability including attorney s fees. This indemnity shall survive the termination of this Agreement. The liability of either party shall in no event exceed the total amounts paid by Client for services under this Agreement in the preceding six month period.

7. USE OF THIRD PARTIES

It is also understood that the services, equipment and software used to provide the services specified in this agreement are the sole intellectual and physical property of DLC Technology Solutions, Inc., and a number of third-party vendors including but not limited to: Microsoft, Speartip LLC, SOCSoter, Solutions Granted Inc., Sophos, Connectwise, Inc., Watchguard, Axcient, Datto, Microsoft, Netrality, CyberQP, and other vendors. In most cases, DLC merely resells third-party cybersecurity and other services in order to provide the related services described and referred to herein.  DLC reserves the right to continually monitor the performance of any third-party vendor and replace them as necessary to maintain a quality product to the Customer. 

While DLC will make every effort to maintain the system’s configuration in order to provide high-levels of service, DLC is not responsible for failures of any third-party’s software or hardware systems, services (including Network Operations Center and Security Operations Center services), data centers, internet connections or business continuity.  When failures occur with upstream or third-party vendors, DLC and Client will look to that vendor for resolution.

7a. ADDITIONAL TERMS

Use of certain downstream vendors require agreement to additional terms. Below are the additional terms you hereby agree to by using any of the specified products below.

8. CYBERSECURITY PRODUCT/SOFTWARE LICENSE

As it relates to any applicable software license (the “Software") contained within Cybersecurity services referred to herein, you are hereby granted a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through authorized personnel of DLC, hereunder, that certain software which is incorporated into and is required for the proper functioning and performance of the Devices (“Software”), solely for the purposes set forth in this Agreement, subject to the terms and conditions set forth in this Agreement.

Any and all of the exclusive rights in and to the Software shall remain with the third-party Cybersecurity vendor at all times and any and all licenses granted hereunder shall automatically and immediately cease upon the expiration or termination of this Agreement, as applicable.

You shall not reproduce, publicly display, distribute, create derivative works of, modify, alter, replace, reverse engineer, or otherwise change the Software or claim any rights in and/or to the Software, other than what has been granted hereunder and/or challenge any of the Third-Party Cybersecurity Vendor’s applications or registrations for protection of its rights in and/or to the Software. In the event that you become aware of any infringement of the Third-Party Cybersecurity Vendor’s rights in and/or to the Software, Provider shall notify the Company of same immediately in writing.

DLC or Third-Party Cybersecurity Vendor shall have the right to, but not the obligation to, access the Software, at any time during the Term, to repair, replace, upgrade, update, patch and/or fix bugs and/or other errors in the Software.

8a. PROHIBITED ACTS

Notwithstanding anything to the contrary in this Agreement, neither you nor any of your personnel, contractors, vendors, agents and/or affiliates shall:

(i)dismantle, modify, alter, reverse-engineer, or in any way disassemble, or permit, help, authorize and/or enable any of its personnel, customers, contractors, vendors, agents and/or affiliates to dismantle, modify, alter, reverse-engineer or in any way disassemble, any of the Cybersecurity related Devices(s) in its possession; or

(ii)retain or maintain possession, either directly or indirectly any of the Cybersecurity related Devices(s) following expiration or termination of this Agreement, unless otherwise expressly permitted to do so, in writing, by DLC.

 

8b. COMPLIANCE WITH LAWS

You shall at all time materially comply with all local, state and federal laws, ordinances, regulations and rules.

8c. COMPANY INTELLECTUAL PROPERTY: COVENANT TO PROTECT

You hereby acknowledge and agree that the Cybersecurity devices and software are protected works of DLC and Third-Party Cybersecurity Vendor(s) and contain and are comprised of many protected intellectual property works.  You hereby covenant and agree not to infringe (whether by unauthorized reproduction, reverse engineering, blurring, tarnishment of the intellectual property or otherwise) upon or help, enable or aid another to infringe upon any of the intellectual property rights. In the event that DLC or Third-Party Cybersecurity Vendor(s) become(s) aware of an infringement of any intellectual property rights, whether by it or any of its personnel or any third party, you hereby covenant and agree to immediately notify DLC of same. You hereby covenant and agree not to interfere with, cancel or oppose registration and/or use of any of DLC and Third-Party Cybersecurity Vendor marks, logos, copyrightable or patentable works or any other intellectual property owned by DLC or Third-Party Cybersecurity Vendor or make a claim of ownership in and/or to same.

 

8d. AUDIT RIGHTS; INSPECTION

DLC shall have the right, with at least twenty-four (24) hours of advanced written notice to you, to audit and inspect your usage of DLC and/or Third-Party Cybersecurity Vendor intellectual property, as permitted hereunder. In the event that DLC and Third-Party Cybersecurity Vendor finds any misuse of its intellectual property by you during such audit or inspection, then DLC shall have the right to immediately terminate this Agreement, in addition to any and all other remedies available to it at law or in equity, including, but not limited to, any and all remedies available to it hereunder.

9. LIMITATION OF ACTIONS

No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has arisen, or, in the case of an action for nonpayment, more than two years after the date the last payment was due.

10. DISPUTES
This Agreement shall be governed by the laws of the State of New Jersey. Any actions, claims or suits arising out of or relating to this Agreement, or the breach of this Agreement, shall be brought only in, and you consent to the jurisdiction of, the Courts of the State of New Jersey.

11. REMEDIES
In the event of a breach of any term or provision set forth in this Agreement, the non-breaching party shall be entitled to all remedies available at law and in equity.

12. EXCUSABLE NON-PERFORMANCE
Neither party shall be in default under this Agreement because of any failure to perform if such failure arises from causes beyond the party’s reasonable control, including, but not restricted to, acts of government, fires, floods, epidemics, quarantine, restrictions, strikes, labor contracts or labor relations, embargoes, inability to secure raw material or transportation facilities, acts or omissions of carriers or third-party vendors, or any and all other causes beyond the reasonable control of either party.

13. CONFIDENTIAL INFORMATION
Client and DLC acknowledge that each has developed and will develop valuable and extensive trade of its services and by virtue of this Agreement, will become familiar with the manner, methods and secrets and confidential information pertaining to their respective businesses. Client and DLC shall not, during or after the term of this Agreement, either use or disclose any methods or trade secrets employed by the other party without the expressed written consent of the party. For purposes of this Agreement, “Confidential Information” shall mean all Client information (other than that which is already in the public domain) revealed to DLC, including, but not limited to, financial data, employee data, contractual obligations with third parties, business, compliance and marketing plans, billing and information systems, and all other information pertaining to the business of Client, its officers, directors and employees. DLC will not disclose or make any use of Client’s Confidential Information except in the course of providing the services and will take all necessary steps to restrict the use and dissemination of Confidential Information. This non-disclosure includes DLC, and all of its employees who access or have access to the Client’s confidential information.

14. TERM and TERMINATION OF AGREEMENT

14a. Monthly Term. This Agreement shall remain in full force and effect for one (1) month unless the Quotation specifies otherwise. At the conclusion of one month, this Agreement will automatically renew for successive one (1) month terms unless either Party gives the written notice to the other Party at least thirty (30) days prior to the expiration of the then-current term of its intent not to renew.

Should the quotation not specify a term length, the term shall be considered to be monthly.

14b. Annual Term. Should the proposal for any plan, product, or item be specified as an ANNUAL (or "1 Year”) price or term on the Quotation, then the term of the Agreement shall be one (1) year, rather than the one (1) month specified above. At the conclusion of one year, this Agreement will automatically renew for successive one (1) year terms unless either Party gives the written notice to the other Party at least thirty (30) days prior to the expiration of the then-current term of its intent not to renew.

14c. Two Year Term. Should the proposal for any plan, product, or item be specified as a TWO YEAR (or "2 Year”) price or term on the Quotation, then the term of the Agreement shall be two (2 years, rather than the one (1) month specified above. At the conclusion of two years, the Agreement or service will automatically renew for successive one (1) year terms unless either Party gives the written notice to the other Party at least thirty (30) days prior to the expiration of the then-current term of its intent not to renew.  Pricing may be adjusted as per the Pricing Adjustments section at the conclusion of the first year regardless of term length.

14d. Three Year Term. Should the proposal for any plan, product, or item be specified as a THREE YEAR (or "3 Year”) price or term on the Quotation, then the term of the Agreement shall be three (3) years, rather than the one (1) month specified above. At the conclusion of three years, the Agreement or service will automatically renew for successive one (1) year terms unless either Party gives the written notice to the other Party at least thirty (30) days prior to the expiration of the then-current term of its intent not to renew.  Pricing may be adjusted as per the Pricing Adjustments section at the conclusion of the first and second years regardless of term length.

14d. Termination.  Regardless of the term length, the following termination provisions apply:

Termination for Convenience:
DLC may terminate this Agreement upon thirty (30) days written notice to the Client for any or no reason.

Termination for Performance:
If Client believes that DLC has failed to perform an obligation DLC is obliged to perform under a Quotation or Agreement that is so fundamental that the failure to perform the obligation defeats the essential purpose of the Quotation or Agreement then the Client must provide written notice directed to DLC’s Project Manager or President describing the alleged failure to perform in reasonable detail. If DLC does not, within 30 calendar days after receiving such written notice, either cure the failure or develop a plan to cure the failure (if the failure is not one that can reasonably be cured within 30 calendar days) and diligently proceed according to the plan until the failure has been cured, then the Client may terminate the affected service, in whole or in part, for cause by written notice to the applicable Project Manager or President of DLC. Prior to termination of a service for cause, DLC management will be afforded an opportunity to meet with a senior management representative of the Client to explain its position. The termination of any particular service, quotation or agreement will not affect the parties’ respective rights, duties and obligations under any other agreement then in effect.

Termination Due to Insolvency:

Either party may terminate this Agreement immediately if the other party (a) becomes or is declared insolvent or bankrupt; (b) is the subject of any proceeding relating to its liquidation or insolvency; (c) makes an assignment for the benefit of its creditors; or (d) enters into an agreement for the composition, extension or readjustment of all or substantially all of its assets.

Termination for Non-Payment:
DLC shall have the option of terminating this agreement for non-payment of any invoices and sums owed to DLC with said termination to be effective immediately.

Payment upon Termination:

Upon termination by either party (whether for Convenience, Performance, Insolvency, Non-Payment, or other means), Client shall receive an invoice for all services and products rendered and travel expenses to be paid within fifteen (15) days of the date of the final invoice. Any monies already paid will not be refunded.

Upon termination by Client (for any reason including but not limited to non-payment or other means) a cancellation fee equal to the sum of all remaining payments in the term is immediately due and payable to DLC. 

In the event of termination for performance, this cancellation fee may be discounted or reduced at the sole discretion of the President of DLC, however in no event shall the cancellation fee for “as a service” offerings be discounted.

Client acknowledges that upon termination of The Service, Client must uninstall all software provided as part of this agreement, including but not limited to DLC Remote Monitoring Agent Software, Anti-Virus software, and/or all other software agents used under this Agreement immediately. The removal of this software from Client machines must be performed by the Client at the Client’s expense. DLC is not responsible for the removal of any software, however such removal service can be provided at DLC’s current hourly service rates. Once removal occurs, Client understands that machines, workstations and/or servers may then be unprotected from viruses and other malware. 

15. DATA DELETION

ANY DATA REMAINING ON THE PRODUCTS WILL BE DELETED ON/AT THE TERMINATION DATE REGARDLESS OF TERMINATION REASON OR CAUSE.  IT IS THE CUSTOMER’S RESPONSIBILITY TO RETRIEVE THEIR DATA BEFORE THE TERMINATION DATE. Assistance in retrieving data is available for an additional charge. Data retrieval charges must be paid in full before the retrieval process will be started and before the deletion date. Once the data is deleted or removed it is no longer accessible to anyone by any method. Should the Client wish to retrieve data or transfer data to another provider, the services under this Agreement must be pre-paid and kept active until the data transfer is completed to avoid data loss.

16. OWNERSHIP

The services (including both “as a service” offerings and other services under vXarch) may require the installation of a hardware product at your site.  You hereby agree to allow the installation of this device in accordance with the then-current requirements of the service, including interconnection into your internal networks as needed.  You also agree to protect, house and shelter the device from harm, theft, and temperature extremes.  Installation and maintenance of this hardware will be provided as part of the services.  Any such hardware device(s) remain the property of DLC (and/or the third-party vendor) and must be returned prior to agreement termination (this includes voluntary termination, termination for default/nonpayment, termination at the conclusion of a contract term, or any other termination).

17. RETURN of EQUIPMENT

Both “as a service” subscriptions and other various services under this agreement may have hardware physically onsite at the customer location. This equipment must be promptly returned to DLC as follows:

In the event any device is not returned within 10 days of the termination date, an equipment fee equal to the higher of: 500% of the monthly rental, services or subscription fee, OR the actual replacement value is immediately due and payable to DLC.  In the case of the Datto NAS equipment, the fee shall equal 1000% of the monthly NAS services fee. Should the hardware device be stolen, damaged in a disaster or other act of god, etc, and it is the customer’s intention to continue with the service, DLC will replace the equipment for 20% above the actual hardware replacement cost. (Installation and shipping fees are not included.)

Equipment may be tagged as "Property of DLC" and the customer is not permitted to remove or deface the tag. Nor is the customer permitted to modify, mark, deface or damage the equipment.  Additional fees for non-working, damaged or defaced equipment may be due at equipment return.  Such fees will be based on actual costs incurred by DLC from the vendor plus 20%.

Upon termination you shall return any hardware to DLC at 777 Route 70 E, Suite G-104, Marlton, NJ 08053 and destroy all copies of any software. DLC shall be entitled to all fees due and owing up to the Termination Date. Some subscription services require a notice period for cancellation and other then-current specific terms. Please inquire before submitting a termination request for details.  DLC shall have no further responsibility for the subscription or device under this Agreement or otherwise, to you after the Termination Date.

DLC shall retain the right to immediately terminate this Agreement and services in the event you commit any act that may negatively affect or harm the server, network, hardware or its users or you attempt to use any services and/or hardware offered under this Agreement for illegal purposes or gains.

 

18. RELATIONSHIP OF PARTIES and INSURANCE
The parties expressly intend and agree that DLC is acting as an independent contractor and not as an employee of Client. DLC retains discretion, control and judgment in the manner and means of carrying out the assignment, except as to the policies and procedures set forth herein. DLC understands and agrees that it shall not be entitled to any of the rights and privileges established for Client’s employees (if any), including, but not limited to, the following: retirement benefits, life insurance coverage, severance pay benefits, paid vacation and sick pay, overtime pay, or any of them. Client shall not pay for, carry or obtain workers compensation insurance, unemployment compensation insurance or other insurance on behalf of DLC, and DLC, if required, shall obtain such insurance. This Agreement shall not be construed as a partnership agreement.

19. ADDITIONAL SUPPORT TERMS
19a. Data Backup and Recovery.
Client is expected and responsible for regular and adequate backups of all data. Client agrees that DLC is not responsible for data loss resulting from attempted repairs or service.
19b. Software Installation.
DLC will only install, re-install, or archive software that is properly licensed. Client agrees that DLC will be presented with original distribution media (or backed-up electronic distribution) and valid serial numbers prior to installation activities. DLC will not install any software that is suspected of being illegally copied or attempted to be installed in a manner in violation of the software’s license agreement(s).
19c. Monitoring, Anti-Virus Software, and other software agent Installation.
Client agrees to permit DLC to install and maintain software on monitored systems for the sole purpose of enabling Anti-virus, Systems Monitoring, Remote Management Solution, and other service functionality under this Agreement and the associated Quotation. This functionality may include the ability to remotely control, access and manage any monitored or managed device. Client understands that the monitoring software may or not be fully compatible with all devices, and as such full functionality cannot be guaranteed. As such, all observed issues or anomalies should always be promptly reported to DLC for repair or service through the service request process.
19d. Equipment Repair.
Hardware is not included as part of this Agreement, however DLC will work with the Client to obtain and propose similarly valued equipment to accomplish a hardware repair. Client agrees that DLC is not responsible for any related downtime while waiting for parts, new equipment or any diagnostic routine. DLC provides no warranty on any component repairs or installations.
19e. Systems and Network Access.
Client represents and warrants that it has obtained permission for DLC to access and use the computer/network environment where the services are to be performed, the data on it, and all hardware and software components included in it, for the purpose of providing these services. If the Client does not already have that permission, it is the Client’s responsibility to obtain it, at the Client’s expense, before the Client asks DLC to perform or install any service, software and/or Packages. Client further acknowledges and approves remote access to each device by DLC and/or its automated solutions for purposes of providing installation, troubleshooting and other support services as required by these Services, Packages and/or requested additional support.

20. DATA INTEGRITY
The customer is fully responsible at all times for the integrity of their data. DLC is not responsible for data integrity or loss of data for any reason, including actions or suggestions of its support staff, documentation, support activities, or any other reason.

21. SILENT DATA CORRUPTION
DLC’s and Client’s systems and services use communication lines and technologies that are beyond DLC’s control. Though unlikely, data loss or corruption can occur. Customer is strongly advised to use verification processes no less than 1 times per month to verify the integrity of stored data. DLC will be held harmless against the loss of data whether such loss is due to hardware, software or telecommunications failures.

22. RETURN OF MATERIALS
Upon the request of either party, but in any event upon termination of this Agreement, each party shall surrender to all memoranda, notes, records, drawings, manuals, computer software, computer hardware, code and other documents or materials (and all copies of same), reports, and other data or materials belonging to the other party. At any time the Client may request a full documentation set, which will be produced within a reasonable timeframe by DLC. Requests for documentation sets that exceed one per year will incur a $200 production fee.

23. MISCELLANEOUS
23a. Severability. In the event that any of the terms, conditions or provisions of this Agreement are held to be illegal, invalid or unenforceable by any court of competent jurisdiction, the legality, validity and enforceability of the remaining terms, conditions or provisions shall not be affected thereby.
23b. All warranties whether expressed or implied regarding the services provided by DLC shall be disclaimed.
23c. Assignment. Neither party shall assign any of its rights set forth in this Agreement without advanced written consent of the other party.
23d. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the contractual relationship. No provision of this Agreement may be altered, amended, waived, revoked or terminated except as specifically and mutually agreed upon in writing and signed by the parties hereto.
23e. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when personally delivered or two (2) business days after deposited with the United States Postal Service, certified or registered mail, postage prepaid, return receipt requested, addressed to the parties.
23f. Applicable Law. This Agreement shall be interpreted, construed, governed and enforced according to the laws of the State of New Jersey.
23g. Acknowledgment. By signing this Agreement, utilizing the services or paying an invoice for the services, the parties acknowledge that they have read this Agreement, that they understand it and intend to fulfill each and every promise, that they understand that this is a legally binding contract, that they have received a copy of this Agreement, and that they have the authority to bind their company to the terms of this agreement.

24. ACCEPTANCE and ACKNOWLEDGEMENT
By using the services on or after the effective date of this Agreement and/or the signed (or otherwise properly executed) Quotation, you acknowledge that: (a) you are a representative of Client with the authority to execute this Agreement; (b) you have read and accepted all the terms and conditions in this Agreement; that you understand it and intend to fulfill each and every promise, that you understand that this is a legally binding contract, that you have received a copy of this Agreement, and that you have the authority to bind your company to the terms of this agreement; (c) all the information provided herein and to DLC is true and complete; (d) you accept the responsibility to promptly inform DLC of any changes to the information provided; (e) DLC is authorized to obtain and use credit history information about Client, unless the selected payment method is with credit card, in which case DLC is authorized to make charges, as stipulated in this Agreement, to the provided credit card account.