BigLeaf (SD-WAN) Terms
DLC TECHNOLOGY SOLUTIONS, INC. BigLeaf (SD-WAN Solution) Terms and Conditions
Updated: 1/10/2019, 4/1/2022 (clarified service rates)
These terms (the “Terms”) govern the services and packages known as "SD-WAN Services" or "BigLeaf Services", 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 "SD-WAN Services" or "BigLeaf Services", 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
"SD-WAN Services" or "BigLeaf Services", is a service solution that provides Internet Connection Optimization and Redundancy Services using a combination of resold SD-WAN technologies, services and products from BigLeaf Networks, Inc. and services provided directly by DLC.
An Active Customer is one that is currently paying the monthly (or annual) service fee for a "SD-WAN Services" or "BigLeaf 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 Internet Connection Optimization and Redundancy related services under the service names of "SD-WAN Services" or "BigLeaf Services." Such services may be added on to an other existing DLC service plan or may be sold separately. The specific 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 "SD-WAN Services" or "BigLeaf Services" 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 "SD-WAN Services" or "BigLeaf 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 "SD-WAN Services" or "BigLeaf 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 "SD-WAN Services" or "BigLeaf Services" opened after hours will be handled the next business day unless your IT services agreement or quotation states otherwise.
EMERGENCY / AFTER HOURS 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.
GENERAL SERVICES TERMS
DLC shall furnish "SD-WAN Services" or "BigLeaf 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) year. 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 ninety (90) 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 within the first 30 days of the initial service term for any or no reason, providing that all equipment is returned to DLC before the end of the initial 30 day period.
Termination for Non-Payment:
DLC 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.
Termination Impact:
The Client is hereby alerted that termination of the "SD-WAN Services" or "BigLeaf Services" will cause an immediate shutdown of all Internet traffic requiring customer to reconfigure and reconnect their Internet connectivity. Such termination and disconnection should be performed in a planned manner with DLC or other IT resources on hand to perform the reconnection of Internet circuits. Such reconnection of Internet connectivity following "SD-WAN Services" or "BigLeaf Services" termination is outside the scope of this service.
ADJUSTMENT OF FEES
These Terms, the Quotation and the associated pricing is only valid for the number of telephones, lines, DID numbers, servers, workstations, sites, users, employees, companies, bandwidth (Mbps or Gbps), 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 at then-current pricing. 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. DLC reserves the right to automatically adjust service fees at the end of each term.
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.
"SD-WAN Services" or "BigLeaf Services" PROVIDER RELATIONSHIP
All services provided under the service names "SD-WAN Services" or "BigLeaf Services" are provided by a third-party company, currently BigLeaf Networks, Inc.. DLC merely resells BigLeaf Networks, Inc.'s services in order to provide the related services described and referred to herein. DLC reserves the right to continually monitor the performance of this third-party company and replace them as necessary to maintain a quality SD-WAN product/solution.
The "SD-WAN Services" or "BigLeaf Services" will require the installation of hardware product(s) at your site. You hereby agree to allow the installation of this(these) device(s) in accordance with the then-current requirements of the service, including interconnection into your internal, external, and internet 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) including their software, firmware, and accessories remain the property of BigLeaf Networks, Inc. and must be returned to DLC 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 "SD-WAN Services" or "BigLeaf 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 BigLeaf Networks, Inc. (Installation and shipping fees are not included.)
BigLeaf Networks, Inc. will provide the "SD-WAN Services" or "BigLeaf Services" in accordance with the BigLeaf Services Level Agreement, located at www.bigleaf.net/sla . This describes various rights and obligations of the parties. Should any service credits be applicable DLC agrees to pass through such credits from BigLeaf Networks, Inc. directly to you in the form of a credit on your account.
You agree to comply to the Acceptable Use Policy of BigLeaf Networks, Inc. located here: www.bigleaf.net/aup. Failure to comply to this Acceptable Use Policy will constitute a breach of these terms and this agreement.
You also agree that BigLeaf Networks, Inc. has the right to monitor the "SD-WAN Services" or "BigLeaf Services" electronically at any time and to disclose any information as necessary to satisfy Bigleaf's legal obligations. or to protect itself or its subscribers. Bigleaf reserves the right to monitor any and all communications through or with its network and servers. You agree that Bigleaf and the "SD-WAN Services" or "BigLeaf Services" are not considered a "secure communications medium" for the purposes of any local, state or federal law; and that no expectation of privacy is afforded in the event that such "SD-WAN Services" or "BigLeaf Services" are monitored and/or disclosed.
At BigLeaf Networks, Inc's sole discretion should you be found to be in violation of the Acceptable Use Policy or these terms or this Agreement, Bigleaf and DLC reserves the right to discontinue to limit the "SD-WAN Services" or "BigLeaf Services" in whole or in part, should you not rectify the violation(s) within five (5) business days following notice from BigLeaf. Additionally, in the case of abuse of services, any refunds or credits normally due shall be refused.
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 devices and software are protected works of DLC and Third-Party 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 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 Vendor marks, logos, copyrightable or patentable works or any other intellectual property owned by DLC or Third-Party 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 Vendor intellectual property, as permitted hereunder. In the event that DLC and Third-Party 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 OTHER 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 OF OR DAMAGE TO PROVIDER’S COMPUTER NETWORK(S), IT INFRASTRUCTURE, COMPUTERS 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 (namely, BigLeaf Networks, Inc.). 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.