Cloud Terms

These terms (the “Terms”) govern the sale and resale of cloud related products and services including any included product support provided by DLC Technology Solutions, Inc. (DLC) to any active customer of cloud based or hosted solutions as specified herein. For DLC Cloud Resale products these terms together with the manufacturer’s terms of service (if applicable -links to each provided below) make up the overall terms for use of the DLC Cloud services or product.

ACKNOWLEDGEMENT

By accessing, ordering or using the Cloud Resale product, Cloud Provided product, or services, you (“You” means the legal entity that you are authorized to represent and on whose behalf the DLC Cloud Services 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 Cloud Resale product, Cloud Provided product or services or permit others to do so on your behalf. You further acknowledge that in the case of Cloud Resale product DLC is merely reselling the product(s) to you, and therefore is passing through the services, support, and terms provided by the originating manufacturer/vendor of the specific product.

DEFINITIONS

Any third-party product which may contain a cloud component and is resold by DLC to its customer, including but not limited to: Microsoft365 / Office365 Suites, Axcient Backup Disaster Recovery Solution (BDR/BCDR), Axcient x360 products including x360Recover, x360Cloud, and x360Sync, Axcient direct to cloud backup, Datto® Backup Disaster Recovery Solution (BDR) including Datto SIRIS, or Alto product, Datto® NAS Products, Datto® SaaS (formerly Backupify) backup solutions, Sophos security products, HIPAA Secure Now, Breach Secure Now, HIPAA Compliance Services, Keeper Security, or DLC Email Protection provided by Appriver/Zix are hereafter collectively and individually referred to as “Cloud Resale product”.

"Cloud Provided product” is a product owned and managed by DLC directly and sold or provided to its customers.  As of 1/1/2022 there are no such products; however this term is retained for potential future use.

“Cloud Product” or “Cloud Services Product” collectively refers to both the “Cloud Provided product(s)” and “Cloud Resale product(s)”.

An Active Customer is one that is currently paying the monthly (or annual) service fee for a DLC Cloud Services product and owes no past due amounts to DLC.

A Vendor is a provider of one or more components of the DLC Cloud Services product that DLC is reselling to you. Whenever “Vendor” is referenced herein, it is meant to represent any or all of the following third parties: Microsoft, Datto, Inc., Axcient, LLC, Activtrak, or Sophos.

CHANGES
DLC reserves the right to change any of the terms of these Terms by posting the revised Terms on the Website (http://dlctechnology.com/cloud-terms) and/or by sending an email to the last email address that the Subscriber has given to DLC. Any such change shall be effective immediately with respect to any new customer and retroactive to the date of notice with respect to any existing customer who does not terminate the Cloud Services Product within 10 days after the earlier of such posting or email.

ELIGIBILITY
DLC requires that any individual customer be at least 18 years of age. Customer warrants that their use of the Cloud Services Product does not violate any law or regulation.

RIGHT TO USE THE SERVICE
Subject to these Terms and proper payment to DLC, DLC grants the Customer a non-exclusive, non-transferable right to use the Cloud Services Products solely for the Customer’s own internal business purposes for the Term and number of users or licenses specified in the Order form or Quotation.

TERM AND PRICING
The types of products and solutions purchased, the exact term and pricing for the purchase and/or use of the same are detailed on the appropriate and corresponding Sales Quote or Proposal document for the DLC Cloud Services products in question, to which these terms are an addendum. Should terms not be provided on the Sales Quote or Proposal, all terms are month to month, with automatic renewals at the end of each term until terminated as per the terms in the termination section of this Agreement. If credit card information is given to DLC for payment, customer agrees that DLC may and is authorized to charge customer’s credit card account for payment in advance each period (monthly, for example) for the Cloud Services Product(s). If any of the vendor’s referenced terms of service (listed elsewhere in the document) specify any detail regarding term length, pricing, or refunds, the details of such specified in the Sales Quote or Proposal document shall take precedence.

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. The highest level of the metric in question during each calendar month shall be considered the amount to be billed for that month’s usage.  Should the vendor's pricing or terms change, any such change shall be passed down to the Customer. When possible, DLC will alert the customer in advance of any pricing changes.

INCLUDED SUPPORT
Active customers receive support of the Cloud Services product limited strictly to the functionality of the Cloud Services product – including its hardware and software components. Support does not include the support of or interaction with any specific server, desktop or other computing devices protected by or interacting with the DLC Cloud Services product, nor does it include any setup or installation activities. In the case of a support issue, DLC will work with the active customer to answer questions related to the normal use of the product however training on the use of the product is expressly not included. Each active customer is required to have at least one competent server support engineer (or similar) adequately trained on the Cloud Services product, its installation and use. In the absence of such a support person, complimentary support will not be provided, however support is available at DLC’s then-current prevailing hourly support rate. (See TERMS OF SERVICE at https://www.dlctechnology.com/terms-of-service or your support agreement for current rates.)

DLC will assist the active customer with diagnosing issues with the Cloud Services product in order to remedy such issues directly, open downstream support requests with the vendor’s second and third level technical support teams and/or [in the case of an onsite unit being included in the service] coordinate the replacement of the device. DLC assumes absolutely no responsibility for the manner of service or support provided by the vendors directly, nor any responsibility or obligation for any response or resolution time. However, DLC will work via its best efforts to get the issue resolved.
All complimentary support is provided only during regular business hours (typically 9am – 4pm Monday through Friday excluding holidays).

EMERGENCY SUPPORT
During emergency situations, such as issues during system down restores, 24×7 emergency support is available. Such emergency support is separately billable at the prevailing emergency or after-hours service rate defined in the TERMS OF SERVICE at https://www.dlctechnology.com/terms-of-service billed in quarter hour increments. Should the customer have an existing support agreement with DLC, the support agreement’s hourly rates will apply.

SECURITY MEASURES
The Cloud Services product(s) have varying levels of security built-in. 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.

MONITORING

The Cloud Services themselves may have varying levels of alerting or monitoring built in to make the customer aware of backup failures and other issues.  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.

OWNERSHIP
If the Cloud Services product includes hardware, including but not limited to the Datto® or Axcient BDR or NAS devices, the hardware device itself remains the property of DLC 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). In the event the device is not returned an equipment fee equal to 500% of the monthly BDR or BDR Rental or services fee 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 and/or Datto will replace the for a one-time fee equal to 200% of the monthly BDR or BDR Rental fee. (Installation and shipping fees are not included.)

TERMINATION
For products with a monthly term period: Either party may terminate this Agreement at any time for any reason upon providing the other party with thirty (30) days written notice of the intent to terminate that shall include the exact date (the “Termination Date”) that service will be discontinued. Termination dates will be effective on the 1st of the month following the specified date. Service is only available in full month blocks, therefore no refunds will be given for partial month usage.

For products with an annual term period (as specified on the Quotation): Either party may terminate this Agreement at any time for any reason upon providing the other party with sixty (60) days written notice of the intent to terminate that shall include the exact date (the “Termination Date”) that service will be discontinued. Termination dates will be effective on the 1st of the annual renewal month following the specified date. Service is only available in full year blocks, therefore no refunds will be given for partial year usage, and a termination mid-year requires the customer to pay the sum total of any remaining monthly payments in a single lump sum payment within fifteen (15) days of termination.   

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. DLC shall have no further responsibility under this Agreement or otherwise, to you after the Termination Date.

Furthermore, 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.

CANCELLATION FOR NON-PAYMENT OR BREACH
Should the customer breach any portion of this agreement or the customer be more than 10 days past due on any invoice, DLC reserves the right to cancel this agreement and the corresponding services with 7 business days notice. Notice will be delivered via overnight courier. If payment for all past due invoices is not received prior to the expiration of the 7 day notice period, DLC will close the customer’s account with the vendor (in the case of Cloud Resale products) or shut off services (in the case of Cloud Provided products).

Once the accounts are closed or services are shut off, any and all data on the cloud (or product or service) will be removed/deleted in accordance with the “Data Deletion” section of these Terms.

In addition, the hardware or BDR device must be returned to DLC via insured courier or common carrier no later than 7 days after the expiration of the notice period. Failure to return the device will result in the equipment fee (referenced in the “Ownership” section above) being immediately due and payable.

DATA DELETION
Specific to Cloud Provided products ANY DATA REMAINING ON THE PRODUCTS WILL BE DELETED SEVEN CALENDAR DAYS AFTER THE TERMINATION DATE REGARDLESS OF TERMINATION REASON OR CAUSE.

Specific to Cloud Resale products 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 IT IS DELETED. 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.

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. Further, the Cloud Services solutions are very flexible based on the needs of the computing environment in which it is installed. DLC will make best effort recommendations based on data provided, but is not responsible for the design of the solution, appropriate sizing, appropriateness of purpose or type, software or hardware compatibility or any other appropriateness or compatibility issue.

Backup solutions including but not limited to Cloud Resale solutions such as Datto and Axcient, and Cloud Provided solutions include storage space to hold backup data as part of the service. Any such backup data will be stored only in one location and not backed up or redundantly stored unless a solution for such is purchased and detailed on the Quotation. At any time the backup data being stored may be unexpectedly deleted or removed as the result of systems errors, systems failures, or other unforeseen causes. While DLC will work diligently to prevent such backup data loss, the customer understands that such backup data loss is possible. In that event, DLC will work diligently to ensure that at least one viable backup exists such that restorations are always possible.

DATA OWNERSHIP
All data stored by the customer in the various Cloud Products remains the property of the customer at all times. The customer can request that data be extracted and downloaded from the Cloud Product to physical media at any time. This will be performed as a separately chargeable special project.

SILENT DATA CORRUPTION
Cloud Services use communication lines and technologies that are beyond DLC or the Vendor’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.

HIPAA PROTECTED INFORMATION INCLUDING PHI
In order to comply with the requirements of regulations promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), which privacy regulations are codified at 45 C.F.R. Parts 160 and 164 and which security regulations are codified at 45 C.F.R. Parts 160, 162 and 164, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH Act”), and as such regulations may be further amended from time to time (collectively, “HIPAA”), Customer agrees to negotiate and execute an appropriate Business Associate Agreement with DLC should the Customer be considered a Covered Entity or Business Associate by HIPAA.

Customer further agrees to not place, store, transmit or otherwise apply any data to any of the DLC Cloud Services that contain unencrypted Protected Healthcare Information(PHI). All PHI must be encrypted by the Customer before being used with any of the DLC Cloud Services. Certain DLC Cloud Services products are properly designed to accommodate unencrypted PHI and on only those specific products, unencrypted PHI is acceptable. The list of specific DLC Cloud Services products where unencrypted PHI is permitted includes only the following:
Datto SIRUS BDR Solutions (with built-in encryption enabled)
Axcient x360Recover and x360Cloud Backup (with built-in encryption enabled)
Appriver/Zix Email protection and encryption
Customer agrees that should unencrypted PHI be placed on these approved systems, that they shall ensure that the built-in encryption settings are always enabled and never disabled while PHI is housed in these systems.

EXPORT RESTRICTIONS
Customer understands that some components of the Cloud Services are subject to regulation by agencies of the U.S. government which prohibit or restrict export or diversion of certain technical products and technical data to certain countries. As such, all Cloud Services products are only to be used in the United States of America by customers who have a base of operations in the United States.

WARRANTIES
For Cloud Resale product(s) DLC’s sole responsibility is to “pass through” to the end-customer the warranties provided by the Vendors. Individually, DLC makes no warranties or representations with respect to advice, guidance, information or other content or product provided by any third party.

For Cloud Provided product(s) DLC makes only limited warranties to Customers regarding the services, and any such specific warranties will be outlined in the specific product sections above or on the Quotation (if applicable).

DISCLAIMER OF OTHER WARRANTIES
YOU UNDERSTAND AND AGREE THAT EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OF THE SERVICES, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DLC DOES NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, ERROR FREE, OR SUCCESSFUL IN RESOLVING ANY ISSUE. DLC MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. ANY CONTENT OR SOFTWARE THAT YOU ACCESS, DOWNLOAD OR USE WITH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH ACTIVITIES.

LIMITATION OF LIABILITY
IN NO EVENT SHALL DLC, ITS SUPPLIERS, VENDORS, PARTNERS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER FROM CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE PRODUCT OR RELATED SERVICES, SOFTWARE, CONTENT OR YOUR DEVICE AND OTHER TECHNOLOGY INCLUDING, WITHOUT LIMITATION, LOST SALES, LOST REVENUE, LOST PROFITS OR OTHER LOSS OF BUSINESS, LOSS OF OR DAMAGE TO DATA, OR COST OF SUBSTITUTE SERVICES EVEN IF DLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL THE TOTAL LIABILITY OF DLC, ITS SUPPLIERS, VENDORS, AND PARTNERS TO YOU IN THE AGGREGATE FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OR YOUR USE OF THE SERVICES, SOFTWARE OR PRODUCT EXCEED THE AMOUNT PAID FOR THE SERVICES AT ISSUE DURING THE PAST ONE MONTH PERIOD FOR THE SPECIFIC SERVICE OR PRODUCT AT ISSUE.

It is also understood that third-party equipment, services, and/or software may be used to construct, provide, or assemble the Cloud Services Product(s) specified in this agreement. Those specific third-party components are the sole intellectual and physical property of third-party vendors. 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, internet connections or business continuity. Customer agrees to hold DLC harmless for the actions of any third-party vendor.

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.

REMEDIES
In addition to any remedies set forth herein, including termination, DLC shall be entitled to all remedies at law and in equity in the event you breach any term, provision or covenant set forth herein. This Agreement shall be governed and construed in accordance with the laws of the State of NJ.

SEVERABILITY
In the event that any of the terms, conditions or provisions of these Terms 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.

ADDITIONAL INCORPORATED TERMS – CLOUD RESALE PRODUCT

The terms of service for each component product within the Cloud Resale product suite can be found at the following internet links, and are included in this agreement by reference. Since DLC is merely reselling these products to you, you agree to be additionally bound to these terms of service for any component service you are accessing.

Sophos: (all sophos products):

https://www.sophos.com/en-us/legal/sophos-end-user-terms-of-use

Microsoft Office365 (all product suites) includes Em:

http://www.microsoftvolumelicensing.com/Default.aspx
HIPAA BAA: https://www.microsoft.com/en-us/TrustCenter/Compliance/HIPAA

Axcient solutions including x360Recover Backup Disaster Recovery Solution (BDR), x360Cloud Saas backup, and x360Sync :
https://axcient.com/legal-notices/
Datto® Backup Disaster Recovery Solution (BDR) including Datto SIRIS, SIRIS Lite or Alto product :
https://www.datto.com/legal/content-owner-terms (Additional Copy Located at: http://dlctechnology.com/datto-EULA )

Datto:  ALL Datto backup solutions including Backup Disaster Recovery Solutions and Cloud Saas Backup solutions are subject to additional terms in Exhibits "A" and "B" at the end of this document.

ActivTrak:

https://activtrak.com/terms-and-conditions/

PII Protect's Secure NOW Products, Including HIPAA Secure Now, Breach Secure Now, HIPAA Compliance Services, Breach Prevention Platform and Compliance Online Training Services:

https://www.breachsecurenow.com/terms-and-conditions/
https://www.hipaasecurenow.com/index.php/tos/ 

Keeper Security:

https://www.keepersecurity.com/termsofuse.html