vXarch (v2022.04 and prior)/ Standalone Cybersecurity Services Terms
DLC TECHNOLOGY SOLUTIONS, INC. vXarch / Cybersecurity Services Terms and Conditions
Updated: 10/14/2018, 1/1/2022 (Added reference to The Modern Stack), 4/1/2022 (clarified service rates), 7/22/2022 (renamed to vXarch), 8/10/2022 (added Solutions Granted terms)
These terms (the “Terms”) govern the services and packages known as "vXarch", "Cybersecurity Services", "Enhanced Security Services", or "The Modern Stack" provided by DLC Technology Solutions, Inc. or its subcontractors or assigns 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 as it pertains to these services. 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, using, or paying invoices regarding the services known as "vXarch", "Cybersecurity Services", "Enhanced Security Services", or "The Modern Stack", you (“You” means the legal entity that you are authorized to represent and on whose behalf the 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 services or permit others to do so on your behalf.
DEFINITIONS
"Cybersecurity Services" or "Enhanced Security Services", is a service line that provides a specific set of advanced Cybersecurity related services.
"vXarch" (formerly called "The Modern Stack") is a bundle of one or more services, products, "Cybersecurity Services" or "Enhanced Security Services". All references herein to "vXarch" are simultaneously meant to refer to "The Modern Stack".
An Active Customer is one that is currently paying the monthly (or annual) service fee for "vXarch", or a "Cybersecurity Services" or "Enhanced Security Services", product and owes no past due amounts to DLC.
"Quotation" is the scope of work, quote, proposal or other signed document between the parties that details the work to be performed or the services or products to be provided.
CHANGES
DLC reserves the right to change any of the terms of these Terms by posting the revised Terms on the Website and/or by sending an email to the last email address that the Customer 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 Service 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 Service does not violate any law or regulation.
DESCRIPTION OF SERVICES
DLC shall provide a variety of Cybersecurity related services under the service names of "vXarch", "Cybersecurity Services" or "Enhanced Security Services." Such services may be added on to an other existing DLC service plan or may be sold separately. The specific Cybersecurity services purchased (if any) and any components or custom terms included shall be specified on the Quotation.
INCLUDED SUPPORT AND SERVICES
Active customers receive the cybersecurity services specified above (in Description of Services) and as specified in the applicable quotation. In the event of a conflict the scope and services listed in the quotation shall prevail.
DLC will receive all reports, alerts and other notifications from the "vXarch", "Cybersecurity Services" or "Enhanced Security Services" products and process them in accordance with the then-current IT services agreement between DLC and you. In the event no such IT services agreement exists, then all support and actions taken by DLC shall be billed separately at then-current hourly rates. Receipt of an alert, report or other notification from the "vXarch", "Cybersecurity Services" or "Enhanced Security Services" shall constitute approval to perform work.
Any included support is provided only during regular business hours (typically 8:30am – 5pm Monday through Friday excluding holidays). Support tickets or alerts/reports received from the "vXarch", "Cybersecurity Services" or "Enhanced Security Services" opened after hours will be handled the next business day unless your IT services agreement or quotation states otherwise.
Hardware, Software, software upgrades, patches, configuration changes, remediation, incident response and shipping costs are not included in the "vXarch", "Cybersecurity Services" or "Enhanced Security Services".
EMERGENCY / AFTER HOURS SUPPORT
During emergency situations, such as active bad actors or threats discovered by the "vXarch", "Cybersecurity Services" or "Enhanced Security Services", 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.
GENERAL SERVICES TERMS
DLC shall furnish "vXarch", "Cybersecurity Services" or "Enhanced Security Services" 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 monthly service rates described herein (or on the Quotation).
All work will be provided on an as-needed basis based on requests made directly by the Client. Support and services may be provided 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 will be charged between Client and DLC’s office location. Onsite work is subject to a two hour minimum charge. The client’s request for support will be considered approval to perform services.
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.
TERM and TERMINATION OF AGREEMENT
This Agreement shall remain in full force and effect for one (1) month. 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.
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 (a.k.a Performance Guarantee):
Client may terminate this Agreement upon thirty (30) days written notice to the DLC for any or no reason.
Termination for Non-Payment:
Provider shall have the option of terminating this agreement for non-payment of any invoices and sums owed to provider with said termination to be effective immediately.
Upon termination by either party (whether for Convenience, Performance, 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.
Annual Option
Should the pricing for the service(s) be specified as an ANNUAL price on the Quotation, then the term of the Agreement shall be one (1) year, rather than the one (1) month specified herein. 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.
The remaining provisions of the section still apply and are in force.
ADJUSTMENT OF FEES
These Terms, the Quotation and the associated pricing is only valid for the number of telephones, lines, DID numbers, servers, workstations, devices, 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.
MODIFICATIONS TO CYBERSECURITY PRODUCTS AND SERVICES
Due to the rapidly changing cybersecurity landscape unforeseen cost changes, product changes, and required protections can occur. As such, DLC reserves the right to adjust service fees, services, products, and/or vendors at any time with at least 30 days notice. Should notice not be possible DLC will prorate any applicable fees to coincide with the end date of the former service or product. Replacement services or products that are at a higher monthly cost shall be approved by the customer before implementation, otherwise DLC will replace/ upgrade the products and services contained within the "vXarch", "Cybersecurity Services" or "Enhanced Security Services" at its sole discretion and best judgement, with or without notice.
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.
CYBERSECURITY SERVICES PROVIDER RELATIONSHIP
All Cybersecurity services provided under the service names "vXarch", "Cybersecurity Services" or "Enhanced Security Services" are provided by one or more third-party cybersecurity company(ies). DLC merely resells their 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 cybersecurity company and replace them as necessary to maintain a quality cybersecurity product. At any time, the identification of the third-parties is available to you upon request.
The third-party company(ies) utilized for the various components of "vXarch" are indicated on the proposal, quote or work order. They may be updated at any time as versions of the solution provided change.
"vXarch", "Cybersecurity Services" or "Enhanced Security Services" 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 Cybersecurity 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). In the event the device is not returned within 5 business days of termination an equipment fee equal to 500% of the monthly "Cybersecurity Services" or "Enhanced Security Services" fee is immediately due and payable to DLC. 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, customer agrees to pay a then-current replacement fee as determined by the third-party Cybersecurity vendor. (Installation and shipping fees are not included.)
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.
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.
Vendor |
Additional Terms |
Solutions Granted |
Blackberry Cylance EULA (https://www.blackberry.com/us/en/legal/consumer-eula) |
Solutions Granted |
|
Solutions Granted |
CODA Intelligence Terms & Conditions (https://www.codaintelligence.com/coda-intelligence-terms-and-conditions/) |
Solutions Granted |
Avanan a Checkpoint Company EULA (https://www.avanan.com/avanan-terms-of-service) |
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.
COMPLIANCE WITH LAWS
You shall at all time materially comply with all local, state and federal laws, ordinances, regulations and rules.
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.
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.
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, designs; improvements; descriptions; evaluations; analyses; business methods; business agreements; customer information; sales techniques; sales figures; market forecasts; inventions; creations; copyrightable works; and other intellectual property and proprietary information; processes; procedures and “know-how;” research and development; customer agreements and lists; customer prospects; advertising; data; documentation; diagrams; flow charts; business plans and strategies; marketing techniques and materials; marketing timetables; other information relating to customers, suppliers or personnel; financial information; or any other information of a similar nature, whether or not reduced to writing or other tangible form; and any trade secrets or other non-public business information; and all notes, analyses, compilations, studies or other documents, whether prepared by the Disclosing Party or others, which contain or otherwise reflect the above-described information, whether written or oral (collectively, “Confidential Information”).
Receiving Party shall not at any time, except as properly required in the conduct of the business of the Disclosing Party or except as authorized in writing by the Disclosing Party, directly or indirectly publish, disclose or authorize anyone else to publish or disclose any Confidential Information or other secret or confidential matter relating in any aspect to the business of the Disclosing Party with which Disclosing Party’s performance hereunder has or may in any way acquaint it.
Notwithstanding the foregoing, Receiving Party agrees that if it is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Interrogatories Demand or similar process) to disclose any Confidential Information, it will promptly notify the Disclosing Party of such request(s) so that the Disclosing Party may seek an appropriate protective order and/or waive Receiving Party's compliance with the provisions of this Agreement. If, in the absence of a protective order or the receipt of a waiver hereunder, Receiving Party is nonetheless, in the opinion of Receiving Party’s counsel, compelled to disclose Confidential Information to any tribunal or else be liable for contempt or be subject to other censure or penalty, Receiving Party may disclose such information to such tribunal without penalty hereunder.
All documents and records (whether in printed magnetic or electrical form) and other property, whether or not pertaining to Confidential Information, furnished to Receiving Party by the Disclosing Party or produced by Receiving Party or others in connection with, related to or arising from Receiving Party's contractual relationship with the Disclosing Party, shall be and remain the sole property of the Disclosing Party and shall be returned by Receiving Party to the Disclosing Party immediately as and when requested by the Disclosing Party. Even if the Disclosing Party does not so request, Receiving Party shall return and deliver all such property upon termination or expiration of this Agreement for any reason and will not take or retain any such property or any reproduction of such property upon such termination.
In the event that the Receiving Party breaches any of its obligations under this Section, both Parties hereby acknowledge and agree that Receiving Party will be irreparably harmed. Accordingly, in such event, Disclosing Party shall be entitled to pursue and obtain injunctive relief in a court of competent jurisdiction, of its choosing, without bond required. Such remedy of injunctive relief shall be in addition to any and all other remedies available to Disclosing Party at law, in equity and/or as set forth hereunder.
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. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY DLC OR ANY OHTER PERSON OR COMPANY ON DLC'S BEHALF, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
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 WAY SHALL DLC BE HELD LIABLE FOR ANY BREACH, MALWARE, CYBER INCIDENT, OR DAMAGE TO PROVIDER’S COMPUTER NETWORK(S), IT INFRASTRUCTURE, COMPUTERS, DATA AND/OR RELATED PERIPHERAL DEVICES AND/OR SMART/MOBILE DEVICES, REGARDLESS OF CAUSE.
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 service(s) specified herein. 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.
DLC will not be liable for events of Force Majeure or acts or omissions by the Customer with are in conflict with these Terms
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.
DLC reserves the right to periodically modify the features and functions of this Service as necessary to continue to provide an up-to-date and appropriate equivalent service offering. Such improvements or modifications are included at no additional charge and are performed solely at the discretion of DLC with or without advance notice.