Terms and Conditions

BLACKBOARD OPEN LMS, INC. SERVICES SCHEDULE
This BLACKBOARD OPEN LMS, INC. SERVICES SCHEDULE (“Schedule”) applies to all contracted for uses of Open LMS , Inc. services (the “Service”) and is entered into by and between the legal entity purchasing the Service (“Customer”) and Open LMS , Inc. (“Open LMS ”) (collectively, the “Parties” and each individually, a “Party”). This Schedule is a “Schedule” as defined in the Blackboard Master Terms (the “Master Terms”) and together with the Master Terms and the Order Form pursuant to which the Service is ordered by Customer (the “Order Form”) constitutes the “Agreement” between Open LMS and Customer. Customer wishes to utilize the Service, on behalf of itself and the students, teachers, administrators and schools that are permitted to use the Service under the Agreement (collectively, “Customer End Users”). The Service will be provided to Customer and Customer End Users subject to and in accordance with the terms and conditions of the entire Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged. Accordingly, the Parties hereby agree as follows:

1. The Open LMS Service. In consideration for the payment by Customer of all fees set forth in the Order Form, Open LMS shall provide Customer and Customer End Users with the Service(s) specified therein. The Service(s) subject to this Agreement may include one or more of the following provided by Open LMS :

a. To the extent purchased by Customer, any Software-as-a-Service provisioned from Open LMS , such as any version of the Joule Learning Management System or any version of the Power Learning Management System (the “SaaS Service”); and/or
b. To the extent purchased by Customer, professional services including Moodle™ hosting, consulting, support, implementation and training services; Moodle™ course conversion services; and/or Moodle™ customization services (“Professional Services”).

c. For the purposes of this Schedule, all references in the Master Terms to Software, shall mean the SaaS Service.

2. Provisions Applicable Only to SaaS Service. The following provisions apply to any form of the SaaS Service purchased by Customer as specified on the Order Form:

a. Web-based License; Reservation of Title. If purchased by Customer as specified on the Order Form, Open LMS grants to Customer and Customer End Users, and Customer and Customer End Users accept, a nonexclusive license and right to use the SaaS Service via the Internet and use the user documentation related to the SaaS Service (the “Documentation”) only as authorized in the Agreement, for its own purpose and operations, during the Term. The SaaS Service will not be provided to Customer or Customer End Users in CD-ROM form (or any other form of media) and will not be installed on any servers or other computer equipment owned or otherwise controlled by Customer or Customer End Users. Instead, the SaaS Service will be hosted by Open LMS and accessed and used by Customer and Customer End Users through the use of the Internet and Customer’s and/or Customer End Users’ computers. The SaaS Service as used by Customer and Customer End Users remains the property of Open LMS and all title to the SaaS Service and Documentation remains with Open LMS , excluding materials, such as code, documentation or services, which are licensed from Moodle™.

b. Use Limitations. The maximum number of Customer End Users using the SaaS Service shall not exceed the “Active User Limit” specified in the Order Form. For this purpose, “Active User” means a user who has an account in the Open LMS Learning Management Platform and is also enrolled in a visible course irrespective of whether the course is then currently in use by Customer. ‘Suspended’ users (a user account that is deactivated so that the user can no longer access the system until the account is activated again by the site administrator). or users with all enrollments suspended shall not be included in the Active User count. Customer’s and/or Customer End Users’ use of the SaaS Service may not exceed the scope of these use provisions without the express written agreement of Open LMS and Customer’s payment of an additional fee as reasonably determined by Open LMS .

c. Storage Limitations. In addition, if Customer exceed its storage limitation set forth in the Order Form, then Open LMS reserves the right to charge Customer for the overage in accordance with Open LMS’ then current rate and take actions necessary to remediate Customer’s usage to the amounts set forth in the Order Form, including but not limited to cessation of Customer’s back-ups or other activities that may result in a SaaS Service outage.

d. Accessibility. Open LMS will provide Customer and Customer End Users with access during the Term to the latest supported version of the SaaS Service via the Internet from a hosting facility that Open LMS , or its delegates, operate on a 24 x 7 basis (excluding Scheduled Downtime, as defined below).
e. SaaS Service Standards. In all events, in performing the Services under this Agreement, Open LMS will use due care and reasonable diligence in accordance with applicable professional standards of practice for like services, as such standards apply (and develop from time to time) in providing comparable services for companies of like size to Customer. In addition, Open LMS will use commercially reasonable efforts to achieve the service levels set forth on Exhibit A to this Schedule.

f. Maintenance. Open LMS may make the SaaS Service temporarily unavailable for purposes of implementing core changes to the SaaS Service generally, including platform upgrades, routine maintenance and back-up, and/or changes to remedy any technical failures (“Scheduled Downtime”). Any core platform changes will be deployed according to a schedule determined by Open LMS in its sole discretion in order to ensure the consistent and stable performance of all platform applications. Open LMS shall provide forty-eight (48) hour advance notice to Customer in the event of any Scheduled Downtime. Open LMS shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Service in connection with downtime, whether or not such downtime is Scheduled Downtime. Customer shall not be entitled to any service credits relating to Scheduled Downtime.
g. Upgrades. Open LMS may deploy periodic updates and releases of the SaaS Service, which are generally made available to its other subscribers, including patches and/or fixes, as they are made available during the Term. Open LMS will solely determine and announce all planned releases.
h. Certain Customer Responsibilities. Customer is responsible for maintaining the desktop computers of Customer End Users and providing Customer End Users network access to the SaaS Service. Customer shall provide connectivity and security for the Internet for its location(s) for purposes of providing adequate access to SaaS Service hosted at the Open LMS hosting facility. Open LMS shall not be responsible for the reliability or continued availability of the communication lines, or the corresponding security configurations, used by Customer in accessing the Internet to access the SaaS Service. Customer shall provide adequate industry “best practice” standards to ensure reasonable security for integration between applications at the Customer site and the SaaS Service hosted by Open LMS . Customer shall advise Open LMS of any changes to Customer’s operations, vendor relationships, primary contact or other information that would require a change in the support, operation or configuration of the hosted SaaS Service. Examples of Customer’s responsibilities include but are not limited to the following: (i) staying within allotted storage space; (ii) course creation; (iii) loading and removing courses; (iv) maintaining user information and modification; (v) loading and/or removing users, such as students, teachers, parents and administrators; (vi) building and managing Customer Content; (vii) selecting features and

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functionality; (viii) determining roles and responsibilities for users, teachers, administrators and parents; and (ix) providing a URL that can be mapped to Open LMS URL, if so desired.

3. Provisions Applicable Only to Professional Services. From time to time, Open LMS and Customer may enter into one or more Statements of Work (each, a “SOW”) for Professional Services. The following provisions apply to any form of the Professional Services purchased by Customer as specified on the Order Form or SOW:

a. Professional Services. Open LMS shall use commercially reasonable efforts to perform the Professional Services as set forth in each SOW. Open LMS shall perform the Professional Services in a professional manner in accordance with industry standards.
b. Issuance of SOW and Modifications. Customer may, at any time during the term of this Schedule, request that Open LMS (a) provide it with new Professional Services or (b) modify the provision of Professional Services contained in any pre- existing SOW(s) (either (a) or (b) the “Proposed Professional Services”) by delivering to Open LMS a written request describing the Proposed Professional Services. Open LMS may prepare an additional SOW or modified SOW upon receipt of a request for Proposed Professional Services, describing the services requested, its proposed fees, costs and expenses payable by the Customer to Open LMS in connection with the performance of such services and any other terms and conditions as Open LMS reasonably deems necessary. Customer, within thirty (30) business days after receipt of the proposed SOW, shall notify Open LMS of its acceptance of such addendum in which case the parties shall enter into a binding SOW. Until Open LMS ’ acceptance, Open LMS shall have no obligation to perform the Proposed Professional Services. Additional SOWs, regardless of whether they relate to the same subject matter as the initial SOW(s), shall become effective upon execution by authorized representatives of both parties.

c. Execution of SOWs. Each SOW (including agreed modifications to pre-existing SOWs) must be signed by a duly authorized representative of each party or must be approved by a duly authorized representative of each party in an electronic mail which clearly identifies the SOW in respect of which approval is being given before it becomes part of this Schedule and thereby becomes binding on the parties.

d. Personnel. Open LMS shall assign employees and subcontractors with qualifications suitable for the work described in a SOW. Open LMS may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors. While on Customer’s premises, Open LMS’ employees and subcontractors will comply with all reasonable security practices and procedures generally prescribed by Customer to the extent that Open LMS has been given advance written notice of such practices and procedures. Open LMS’ employees and subcontractors will not be required to sign any waivers, releases or other documents relating to ownership of intellectual property or changes, modifications, amendments or waivers to any previously agreed to contract provision in order to gain access to Customer’s premises in connection with the Professional Services and any such waivers, releases, or other documents shall be invalid and shall have no effect.

e. Training. Open LMS will provide Training in accordance with Exhibit B, which is attached hereto and incorporated herein.

4. Additional Customer Responsibilities. To the extent reasonably requested by Open LMS , Customer shall provide accurate information to Open LMS and its personnel in connection with the SaaS Service and/or Professional Services provided by Open LMS under the Agreement. Customer shall be responsible for ensuring that any data, information, trademarks, logos, files, images, text or other content that may be provided by Customer to Open LMS or Customer End Users for use in conjunction with the SaaS Service or Professional Services is accurate, is not corrupt in any way, does not contain any viruses, and does not infringe the rights (including intellectual property rights) of any third party.

5. Term; Termination.

a. Term. This Schedule will be effective during the term set forth in any current Order Form, which may be extended in accordance with such Order Form, and which incorporates the Master Terms and this Schedule by reference (the “Initial Term”). Thereafter, except as may be set forth in an applicable Order Form, the Agreement will renew automatically upon the expiration of the Initial Term for successive one (1) year periods (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”), unless either party provides written notice of its desire not to renew at least thirty (30) days prior to the end of the then-current term.

Termination. This Schedule may be terminated as set forth in the Master Terms.
Effect of Termination. In the event of termination or expiration of the Agreement, this Schedule shall automatically
terminate, and Customer will: (i) immediately discontinue access to and/or use of the Service; (ii) pay to Open LMS all amounts due and payable under the Agreement; and (iii) return all documentation and related training materials to Open LMS within a reasonable time at Customer’s cost. Any termination of the Agreement will not affect any rights or liabilities of either Party that accrued prior to such termination. Section 5(c), the first sentence of Section 6(a), the first two sentences of Section 6(b), the last sentence of Section 8, and the last sentence of Section 9 will survive the expiration or termination of the Agreement for any reason.

6. Fees and Expenses.
a. Fees. In consideration for Open LMS ’ performance under the Agreement, Customer agrees to pay Open LMS all fees required by the Order Form, as applicable, which fees will be due in accordance with the provisions of the Order Form or the Master Terms, but in no event later than thirty (30) days after the date of an invoice from Open LMS . In connection with an extension of the Term pursuant to which Open LMS will continue providing the Service, Open LMS expressly reserves the right to change the fees payable under the Order Form for the new Term upon provision of 60 days’ prior notice to Customer. Calculation of the fees for any subsequent Term will be based on Open LMS ’ calculation of the number of Active Users and/or the amount of storage used by Customer and will be set forth in the Order Form.
b. Expenses. In addition to the fees set forth in the Order Form, Customer will reimburse Open LMS for (i) reasonable travel and living expenses incurred by Open LMS ’ employees and subcontractors for travel from Open LMS ’ offices in connection with the performance of Professional Services (if applicable) (ii) international telephone charges (if applicable), and (iii) any other expenses contemplated in the Order Form or applicable SOW. Except as provided above, each party will be responsible for its own expenses incurred in rendering performance under this Schedule, the Order Form and each applicable SOW, including, without limitation, the cost of facilities, work space, computers and computer time, development tools and platforms, utilities management, personnel and supplies. Open LMS does not maintain or provide original receipts for any expense line items under $500. Open LMS will keep reasonable books of account in support of charges under this Schedule. All such records will be open for review or audit by Customer at reasonable times and upon reasonable notice solely to support charges based on expenses, for time

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or materials or similar invoice items. An audit of such records may be made only at Customer’s expense, no more than once a year, by an independent accounting firm as may be reasonably acceptable to Open LMS .

7. Privacy Policy and Acceptable Use Policy. Customer and Customer End Users agree to comply with the then-current Privacy Policy and Terms of Use (collectively, the “Policies”), which are fully incorporated herein by reference, to the extent applicable, which Open LMS reserves the right to modify, from time to time, effective five (5) days after such modified Policies are posted at the relevant link (which can be found at the Open LMS website located at http://www.blackboardopenlms.com/privacy-policy, such posting to constitute effective notice of changes. In the event of an express conflict between the terms of this Schedule and the terms of the Policies, the terms of this Schedule will prevail.

8. Representations, Warranties and Obligations. Customer represents and warrants that: (i) it and Customer End Users will comply with all applicable laws, regulations and contracts in use of the Service; (ii) it will maintain the confidentiality of its password and account information, and agrees to notify Open LMS in the event of an actual or suspected unauthorized access to its account, or if it loses its account information; and (iii) it and Customer End Users will not use the Service in a manner for which the Service was not designed, or in combination with products or services not provided by Open LMS which could cause the Service to infringe on a third party intellectual property right. Customer agrees to defend, indemnify and hold harmless Open LMS against any damages, losses, liabilities, settlements, and expenses (including without limitation, costs and reasonable attorneys’ fees) in connection with any claim or action that arises from Customer’s or Customer End Users’ use of the Service.

9. Miscellaneous. Customer and Customer End Users are expressly prohibited from reproducing, modifying, duplicating, copying, making derivative works, publicly displaying, or otherwise exploiting, in whole or in part, the member pages of the Open LMS website without the express written permission of Open LMS . Open LMS has no obligation to provide any service to Customer or any Customer End User except as is expressly set forth in the Agreement or another written agreement between Open LMS and Customer. By signing the applicable Order Form, Customer represents and warrants that it has read and understands all applicable parts of this Schedule, including the Policies, and that the person who has signed the Order Form for Customer is authorized to execute and deliver the Order Form (which incorporates this Schedule and the Policies by reference) on its behalf. Customer agrees that it is responsible for ensuring that Customer End Users comply with this Schedule with respect to the use by Customer End Users of the Service.

10. Changes to Master Agreement. For the purposes of this Schedule only, the parties agree that Master Agreement shall be modified as follows. In the event of any conflict between this Schedule and the Master Agreement, this Schedule shall govern:

a. “Derivative Works” shall be defined as follows: a work based upon one or more preexisting works, such as a translation customization of software. A work consisting of editorial revisions, code customizations, annotations, elaborations, or other

modifications which, as a whole, represent an original work of authorship, is a “derivative work”. The term Derivative Works shall not include and Open LMS shall not obtain any rights with respect to Customer Property or any Confidential Information of the Customer or any Customer-developed content or other Customer materials that are used in conjunction with the Open LMS Materials but that are not based upon or derived from the Open LMS Materials or any portion thereof.
b. “Open LMS Property” shall be defined as follows: all materials, including, but not limited to any computer software (in object code and source code form or as a hosted solution, and including, without limitation, all interfaces), script, programming code, data, database schema, web use statistics, information or HTML script, design elements, formulas, documentation, Open LMS templates, formatting, CGIs, Javascripts, PL/SQL coding, other applications, content, training materials, software or other technology made, conceived, developed or provided by Open LMS or its suppliers and any trade secrets, know-how, methodologies and processes related to Open LMS ’ products or services, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights therein and any Derivative Works thereof. Open LMS Property shall not include any Moodle™® open source software code, or other Moodle™ proprietary property. For the purposes of this Schedule, there shall be no “Blackboard Property” shall be replaced by “Open LMS Property.”
c. “Third Party Plugin” shall be defined as follows: means any plugin included by Open LMS in its Power or Joule codebase that was not built by Open LMS and is not part of the core Moodle™ offering. Sources for Third Party Plugins include a vendor, community maintainer or Open LMS current or former Customer.
d. The parties agree that nothing in this Agreement shall convey ownership of any Moodle™® open source software code or other Moodle™ proprietary property.
e. Effect of Termination. Upon termination of this Agreement, all Schedules and Order Forms shall automatically and immediately terminate, and all licenses granted under this Agreement shall immediately cease. Upon termination, Customer will immediately discontinue all use of materials licensed under this Agreement, and will pay to Open LMS all amounts due and payable hereunder. Also, in the event of any termination prior to the end of the term of any Schedule or Order Form, Customer shall immediately pay Open LMS all fees which are then due or would become due had no termination occurred. Each Party: (a) will immediately cease any use of the other Party’s Confidential Information, (b) will delete any of the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries (subject to any standard backups performed in the ordinary course for archival purposes; provided that Confidential Information retained pursuant to such procedures shall remain subject to the confidentiality provisions of this Agreement for as long as it is so retained); and (iii) will destroy after 14 days, or at the other Party’s option return to the other Party, all copies of the other Party’s Confidential Information then in its possession provided that with regards to Customer Content, Customer shall provide notice of its decision to have Open LMS return or destroy such data at least 14 days prior to the termination of the agreement. If Customer provides proper notice requesting the return of Customer content, Open LMS shall return Customer content within 14 days with all of the tables and files in the same format and schema as the same version of Moodle™® open source software code that is being used for Open LMS SaaS Service on the day of termination. Return of Party’s data may incur an additional fee, charged on a Time and Materials basis at Open LMS ’ current hourly rate. Without limiting the foregoing, upon termination of any Schedule or Order Form (including upon termination of this Agreement in its entirety), the provisions of such Schedule or Order Form regarding the effect of such Schedule’s or Order Form’s termination shall also apply.
f. EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN ANY RELATED SCHEDULE(S) OR ORDER FORM(S): (A) THE OFFERINGS ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLACKBOARD OPEN LMS AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) NEITHER BLACKBOARD OPEN LMS

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NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SOFTWARE OR SAAS SERVICE, AS APPLICABLE, WILL MEET ANY REQUIREMENTS OR NEEDS CUSTOMER MAY HAVE, OR THAT THE SOFTWARE OR SAAS SERVICE, AS APPLICABLE, WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE OR SOFTWARE-AS-A-SERVICE, AS APPLICABLE, WILL BE CORRECTED, OR THAT THE SOFTWARE OR SAAS SERVICE, AS APPLICABLE, IS COMPATIBLE WITH ANY PARTICULAR COMPUTER SYSTEM OR SOFTWARE; AND (C) BLACKBOARD OPEN LMS AND ITS LICENSORS MAKE NO GUARANTEE OF ACCESS TO OR OF ACCURACY OF THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE OFFERINGS.

References in the Master Agreement to “Blackboard” shall mean Open LMS for all purposes of this Schedule.
Open LMS shall have no liability to Customer under Section 8.1 or otherwise for any claim or action alleging
infringement based upon: (a) any use of the Offering in a manner other than as specified by Open LMS , (b) any combination of the Offering with other products, equipment, devices, software, systems or data not manufactured or provided by Open LMS to the extent such claim is directed against such combination, (c) the Customer Content, or the use of the Customer Content, (d) any modifications or customization of the Offering by any person other than Open LMS or a Open LMS-authorized third party, or (e) any portion of the Offering not created by Open LMS , including, but not limited to, any third party plug-ins (any of the foregoing, separately and collectively, “Customer Matters”).
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Length of Unavailability (per calendar month)
Exhibit A
SAAS SERVICE SPECIFICATIONS

It is agreed and acknowledged that the service credits referred to in this Exhibit A shall be Customer’s sole remedy, and Open LMS ’ sole obligation, with respect to failures of the SaaS Service to meet the specifications and performance parameters set forth in this Exhibit A. Service credits shall be applied to the fees for the affected SaaS Service for the next-succeeding period. In order to receive any service credit, Customer must notify Open LMS within seven (7) days from the time Customer becomes eligible to receive a service credit. Failure to comply with this requirement will forfeit Customer’s right to receive a service credit. In order to be eligible, Customer must be in compliance with the Agreement including the contracted Active User Limit and storage quota. The maximum number of service credits to be issued by Open LMS to Customer during any given calendar month pursuant to this Exhibit A shall not exceed the fees paid by Customer for the affected SaaS Service(s) for such month.

SERVICE LEVEL Security:

  Single point of entry to co-location is guarded twenty-four (24) hours a day with access controlled by an access database and video surveillance.
  Monitoring of the co-location area and only those persons authorized by Open LMS , its subsidiaries, contractors or affiliates access list are allowed past a central point.
  Surveillance cameras located throughout the facility capture activity to help ensure no unauthorized entry to protected areas.

Power:
  State-of-the-art generators clean and condition commercial electrical power to remove irregularities in the signal. Power is run through the generators before being passed into the facility.
  In the event of loss of commercial utility power to the datacenter, the UPS system maintains uninterrupted conditioned power while initiating the ignition of redundant diesel generators each with full-load capability with up to 72 hours of run time and fueling arrangements in place for replenishment

Network:
  Redundant Internet connections through multiple Tier-1 Internet Service Providers.

Startup:

Open LMS is responsible for the setup and configuration of the necessary hardware, software and all components of the platform. This includes but not limited to, the server hardware and software, telecommunications hardware and software, security software and other software that is reasonably necessary to operate and maintain the SaaS Service.

Initial Access Date:

The SaaS Service is typically accessible within seven (7) business days after the applicable Effective Date, and provided that Customer has provided to Open LMS a URL and any other information required by Open LMS . Open LMS shall provide Customer with procedures for access; the procedures may include, without limitation, provision of any access codes, passwords, technical specifications, connectivity standards or protocols, or any other relevant procedures, to the limited extent any of the foregoing may be necessary to enable Customer to permit its Customer End Users to access and use the SaaS Service as contemplated in this Schedule.

Availability/Service Credit:
The SaaS Service is accessible twenty-four (24) hours a day, seven (7) days a week, with a 99.9% targeted uptime. 99.9% uptime means that for 99.9% of the time during any calendar month, the SaaS Service shall be available. Unavailability is a condition in which a Customer End User is unable to access the SaaS Service due to a Open LMS hardware failure or due to sustained packet loss in excess of fifty percent (50%) within the Open LMS hosting facilities for at least fifteen (15) consecutive minutes other than due to scheduled maintenance or the inability of an Active User to connect with the SaaS Service due to Internet or telecommunications problems outside the control of Open LMS .
Service Credit*
1 day of service fees credited (i.e., 1/30 monthly fees)
2 days of services fees credited (i.e., 1/15 monthly fees) 5 days of service fees credited (i.e., 1/6 monthly fees)**

If a System Outage (as defined below) occurs, Open LMS will notify Customer’s designated technical contact via email. This notice will include the reason for the System Outage and estimated time for restoration of SaaS Service if Open LMS knows this information when it gives this notice. For purposes of this Schedule, a “System Outage” shall mean Customer’s complete inability to access the SaaS Service. Following recovery from any particular System Outage, Open LMS will provide Customer with a post-incident summary that will include:

  Cause of the System Outage (if determined)
  Method used to correct the problem
  Measures Open LMS will take to prevent similar System Outages in the future (if any)

Upon receipt of notification of a problem with the Open LMS system or the SaaS Service, Open LMS will investigate the problem and determine if a System Outage exists. If a System Outage exists, Open LMS will provide Customer with a time estimate for resolution of the problem, if known at that time. Open LMS will promptly commence remedial activities and use commercially reasonable efforts to resolve the System Outage within the time estimate provided to Customer.

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Outages:
1 to 4 hours of aggregate unavailability below 99.7%
4 to 48 hours of aggregate unavailability below 99.7%
48 to 96 hours of aggregate unavailability below 99.7%
* Customer is responsible for notifying Open LMS of its eligibility for, and to request, Service Credits. Upon such notice and request, Open LMS shall apply the applicable Service Credits against the invoice for the next period’s SaaS Service fees.
**Each block of ninety-six (96) hours of aggregate unavailability thereafter shall be credited five (5) days of SaaS Service fees.
MONITORING AND PERFORMANCE
Open LMS will provide Customer with reports on SaaS Service usage including storage utilization and observed Active Users via a Customer- facing portal interface. Upon request, Open LMS will provide Customer with a report of System Outages and infrastructure changes for the previous 30 days. That report will include:

Specific System Outage Details:

  Time of outages
  Length of outages
  Affected areas
  Reason for outage (if determined)
  Customer contact notified (if any)
  Remedy to prevent outage reoccurrence (if any)
  Changes in infrastructure

Customer acknowledges and agrees that any of the foregoing reports shall constitute Open LMS ’ Confidential Information for purposes of this Agreement.

CUSTOMER RESPONSIBILITIES

Excluding the configuration details that allow the SasS service to operate in multi-tenancy, Open LMS is not responsible for management and actual use of the features and function of the SaaS Service. Customer has administrative access to the Administrator Menu and bears all responsibility for such management and actual use, including, without limitation:
  Creating/Removing Active Users including Students, Teachers, System Administrators, etc.
  Modifying all Active User Information
  Creating/Removing all Course Websites
  Building and Managing all Course Websites
  Customization to the Website
  System Usage Tracking Reports
  Deciding which product features will be available or unavailable, how much functionality instructors will be allowed, etc.
  Choosing Icon Themes
  All changes to the Open LMS-named URL. All Open LMS Customers are assigned a URL that reads

http://institutionshortname.mrooms.net. The institution is allowed to pick the “institutionname”. However, any re-directs to other URLs are the responsibility of the Customer and not Open LMS . For example, if the Customer chooses the URL http://institutionname.org, the institution is responsible for the redirect to the http://insitutionshortname.mrooms.org site using a CNAME record. Any IP addresses are allocated by Open LMS to Customer in accordance with the American Registry for Internet Numbers (ARIN) guidelines for Internet Numbers and applicable agencies.
  The parties agree that in the event that Customer has purchased they will comply with the Site Administrator Support pursuant to an Order Form, the parties will comply with Attachment A, which is attached hereto and incorporated herein.
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Attachment A to Exhibit A- Open LMS ’ Site Administrator Support Policy
The following is the Customer Support Policy referred to in the Open LMS Terms and Conditions and is applicable only to Customer if Customer has purchased Site Support pursuant to an Order Form, only during the term of such Support as described in the Order Form. This policy is subject to change from time to time, which will become effective upon Open LMS ’ posting a new version on the Open LMS web site and notifying Customer of the new version. For the purposes of this Attachment, “Support” is defined as the Software Support Services as further described in this Schedule. “Customer’s Site Administrator” shall be defined as the trained, designated Customer representative responsible for maintaining Customer’s site, as well as for submitting and managing support cases.

Open LMS Administrator

Limited Point of Contact

Only a Site Administrator (or a designated backup person who is a trained administrator if the Customer’s Site Administrator is ill or on vacation) of Customer may contact Open LMS for Support or to report errors.

Identity

Customer shall advise Open LMS of the identity of the Customer’s Site Administrator. The Customer’s Site Administrator may be changed by notice given to Open LMS by Customer. The new Customer Site Administrator must complete all appropriate Open LMS-related Administrators training as defined by Open LMS , within thirty (30) days of the change.

Support Operations
Support Hours
Open LMS Standard Support Hours are 8:00AM to 5:00PM in Customer’s respective time zone within the continental United States, except weekends and Open LMS holidays. A list of Open LMS holidays is available on the Support Portal. For customers outside of the Continental United States, the Standard Support Hours are 8:00AM to 5:00PM in the following time zone:

  Asia – Pacific Time (PST/PDT)
  Canada – Central Time (CST/CDT)
  Europe – Eastern Time (EST/EDT)
  Latin America – Central Time (CST/CDT)

Support Portal

The Customer’s Site Administrator will be provided a login to access to the Open LMS Support Portal (http://support.blackboardopenlms.com). Use of Support Portal is the most efficient means, and the preferred method, of receiving communications from Customer relating to support. The Support Portal may be accessed either during, or outside of, Standard Support Hours.
Telephone Consultation

The Customer’s Site Administrator may also reach Open LMS Support by telephone for telephone consultation regarding Customer’s questions during Standard Support Hours. It is recommended that a support case be submitted through the Support Portal prior to making a call. Call-in toll-free number (US/Canada): 1-866-444-7134. Call-in toll number: 1-443-478-1777 (“Standard Support Hours”).
Support Process
Support Incident Classifications
Open LMS classifies support incidents as follows:
  “Emergency” is an incident which is any of the following:

  The incident is so severe that the system is completely unavailable;
  System is functioning in such a way as to prevent substantially all users from accessing all or most data or screens;
  System response latency exceeds 30 seconds for 15 or more minutes for > 75% of the users.
  “High” is an incident that is any of the following other than an “Emergency” Failure:

  System is functioning in such a way as to prevent a substantial proportion of users from accessing all or most data or screens;
  As a result of the incident, a material amount of data related to a high-impact feature has been corrupted by System ;
  “Medium” is an error other than an Emergency, High, or Low.
  “Low” is an error that creates an aesthetic problem or performs a feature less effectively.

Notice to Open LMS

When an incident has occurred, Customer should report the error reflected in the application to Open LMS by filling out a new case form at the Support Portal (http://support.blackboardopenlms.com) (“Case Form”). Open LMS requires the same information Customer would require to recreate the problem in a similar environment. Customer should follow these guidelines when preparing a Case Form:

  The Case Form must be completely filled out. Open LMS may be unable to act upon any incident until all information reasonably requested has been received by Open LMS . All information so requested is critical in evaluating the incident report. If the Case Form does not have the required information requested, Open LMS will need to request the additional information, thereby delaying the process. If the additional information is not provided within seven (7) days, the request will be considered withdrawn and the Case closed. Customer may reopen the request at a later date once Customer is able to submit the requested information.
  Customer must designate on the Case Form the incident classification that is appropriate for Customer’s problem. Priority will be given to “Emergency” and “High” incident designations (as further described below).
  Customer must provide on or with the Case Form (or otherwise make arrangements with Open LMS to provide) a full description of the problem, sample of output showing the problem, step to reproduce the problem, expected results, and, when applicable, a copy of the input transaction that caused the problem.
  Customer must maintain necessary account(s) for Open LMS support to access the site. Open LMS has configured a support admin on Customer’s site for this purpose, and Customer shall not remove the support admin without the prior approval of Open LMS .

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Open LMS Response Time

Open LMS will acknowledge receipt of the incident within the time specified below after receipt of the Case Form. Open LMS acknowledgement will be via e-mail and will indicate the type of error Customer indicated. Open LMS may reclassify an incident in accordance with the definitions above, however Open LMS will notify Customer of such change in classification.

Open LMS Investigation of Incident

If necessary, Open LMS will attempt to duplicate the problem at Open LMS facilities. If Open LMS is unable to duplicate Customer’s problem, Open LMS will provide samples of the output from its attempts to duplicate the problem, and Open LMS will make a reasonable attempt to determine the problem and furnish an explanation to Customer. This information will be sent to Customer via the Support Portal. Open LMS Updates

Open LMS will provide updates on its attempts to duplicate the problem and correct the incident to Customer at least as frequently as follows or as mutually agreed:

Open LMS Effort Level

For an “Emergency” incident, Open LMS will continue working on the incident to the best of its ability, irrespective of stated support hours, if Customer requests, until a reasonably satisfactory resolution is achieved but only so long as:

  Customer’s personnel are assisting Open LMS during normal business or outside business hours, on a similar basis;
  At least one of Customer’s qualified employees is constantly available to Open LMS to help resolve problems, and
  Customer provides Open LMS any necessary access to Customer’s system.

Open LMS Support services will be provided without additional charge for the time of its personnel during Standard Support Hours for all errors and all time required hereunder for “Emergency” incidents. If the incident resolution is billable (as defined below), Open LMS will inform Customer promptly and will charge Customer for the time, including research and documentation, incurred to resolve the incident. Open LMS will give first priority to incidents classified as “Emergency” and then to those classified as “High”.

Open LMS will provide support for all incidents other than an “Emergency” during Standard Support Hours. Open LMS will continue to address a “High” incident until a satisfactory resolution is achieved. Open LMS will address “Medium” and “Low” Errors until a reasonably satisfactory resolution is achieved, which may include concluding that further effort is unwarranted. Open LMS will give first priority to “High,” and then to “Medium” and then to “Low.” Not all “Medium” or “Low” Errors will be corrected.

Customer Escalation

Any incident that has not been;

(a)  Acknowledged within the time periods required by “Open LMS Response Time” of this policy or;
(b)  Updates are not provided as required by “Open LMS Update” of this policy or;
(c) Open LMS is not fulfilling its other obligations under “Open LMS Effort Level” of this policy
may be escalated by Customer to the Customer’s Engagement Manager. After Standard Support Hours contact for escalation is only to be made for “Emergency” incident issues.

Error Correction Distribution
Core Moodle™
Open LMS will report core Moodle™ issues via the Moodle™ Tracker (http://tracker.moodle.org). This site is the database for recording and managing bugs, improvements and feature requests for Moodle™. These issues will be triaged by the Moodle™ community and targeted for future release of Moodle™ based on the direction of the community. Open LMS will deploy error corrections received from Moodle™ to Customer in the next appropriate Upgrade. Open LMS occasionally assists the community by correcting bugs and forwarding those fixes to Moodle™ for the benefit of the community. It is in Moodle™’s sole discretion as to whether to include Open LMS ’ fixes in future releases of the Moodle™ platform. Third Party Applications and Custom Plug-ins
Based on the Customer and Open LMS relationship with the third party provider, Open LMS may assist in triage, reporting, and deployment of error correction on a case-by-case basis. Further information regarding Open LMS ’ support, including documentation, Open LMS ’ knowledge, upgrades, and other matters related to third party plug ins is set forth in the Plugin Matrix at http://manuals.blackboardopenlms.com.
SaaS Service
Open LMS will deploy error corrections to Customer site following completion of programming and testing of the error correction.
  Error corrections for “Emergency” incidents will be deployed to Customer site upon completion of testing.
  Error corrections for “High” incidents will be deployed to Customer site, depending on the timing of the next update and subject to

Open LMS reasonable discretion, either upon completion of testing or in the next Upgrade of the SaaS Service.
  Error corrections for “Medium” Errors, which are corrected, will be deployed to Customer site, subject to Open LMS reasonable

discretion, in the next Upgrade of the SaaS Service.
  Error corrections for any “Low” Errors that are corrected will be deployed to Customer site in the next Upgrade of the SaaS Service.

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Incident Classification
Standard Support Hours Response Time
After Standard Support Hours Response Time
Emergency
One (1) hour
Two (2) hours
High
Two (2) hours
Twelve (12) hours
Medium
Next Business Day
Next Business Day
Low
Next Business Day
Next Business Day
Incident Classification
Frequency of Update
Emergency
One (1) hour
High
Two (2) times per business day
Medium
Two (2) times per week
Low
Two (2) times per week
Billable Effort

Open LMS is not obligated to correct the following and all assistance, including research and documentation of the error, provided by Open LMS personnel for the following items may invoice reasonable time invested at Open LMS ’ standard billing rates.
Customer Errors: Customer’s errors in configuring workstations, network or Internet software. Open LMS currently supports the standard hardware/software configuration listed on its web site. This list may be changed by Open LMS , from time to time.

Explanations Contained in Documentation: Explanations of system operation contained in the documentation.
Customer Data: Errors caused by Customer data, including data corrupted by access from programs other than those licensed from Open LMS (whether written by Customer or by third parties) is a billable event and will be invoiced at our prevailing rates. If the faulty or corrupted data is caused by the SaaS Service, correction of the error is not billable.
Incomplete Backups or Lack of Test System: Customer must observe standard data processing practices. All assistance provided by Open LMS related to an incident will be billable if that incident could have been avoided by using a test system or could have been avoided by restoring a backup and rerunning the process that caused the incident.

Customer Data
Use of Information
Open LMS will not use any data obtained from Customer in connection with the provision of support for any purposes other than supporting and improving the SaaS Service.
Privacy and Security Policies
Open LMS agrees to make reasonable attempts to comply with the privacy and security policies of Customer in connection with the provision of support so long as Customer provides Open LMS with specific written guidelines.
Third Party and Custom Plugins: Unless otherwise specified, Open LMS does not support Third Party Plugins and any assistance by Open LMS with respect to these is a billable event and will be invoiced at our prevailing rates. Support for Custom Plugins will also be considered a billable event and will be invoiced at our prevailing rates, unless otherwise covered by an Annual Maintenance Agreement as part of a Professional Services SOW. Open LMS ’ express support policy per plugin, including documentation, Open LMS ’ internal knowledge, upgrades, and other matters related to Third Party and Custom Plugins is set forth in the Plugin Matrix at http://manuals.blackboardopenlms.com. Open LMS may assist in triage, reporting, and deployment of error correction on a case-by-case basis at its sole discretion. Open LMS commits to upgrading the Plugin Matrix within five (5) business days of each new maintenance pack or major release of the SaaS Service.
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Online Courses
Exhibit B
TRAINING TERMS AND CONDITIONS

(only applicable if Customer has purchased training Services)
All online courses not purchased through an Implementation package will be available to the participant for four (4) weeks (28 days) starting from the date of enrollment. Once a participant has requested enrollment to an online course and has been provided login information, that seat is considered consumed. If the course has not been completed by the time of expiration, re-purchase of the course is required.
Once enrolled, if a participant experiences unexpected circumstances (e.g. medical) that would prevent him/her from completing the course within the time period allotted, it is incumbent upon the participant to notify the Open LMS instructor within five (5) business days of the course expiration if they wish to be considered for extended enrollment. Extended enrollment will only be offered if a Open LMS facilitator receives said notice, and each enrollment will only be extended one time per course.

Webinar Courses

Webinars are offered at regularly scheduled times and are available via two modes of purchase – individual seats (which allows participants to choose the time that best fits their schedule) or dedicated webinar (a single session dedicated to a single group of up to 15 participants from the same institution). Dedicated webinars are also scheduled according to the published webinar calendar, but the webinar is dedicated entirely to a single organization with up to 15 participants present. If a prescheduled session is not convenient, dedicated webinars can be scheduled for a preferred date/time for an additional fee.

Webinar enrollment closes one (1) business day prior to the scheduled webinar in order to allow the facilitator adequate time to prepare for the event, create appropriate enrollments and ensure success.
Customer point of contact will be provided with a webinar enrollment password per webinar purchased. This password should only be distributed to participants approved to take that specific webinar. Open LMS does not assume responsibility for confirming self-enrolled participants with a manager on the Customer side. If it is determined by the webinar facilitator that the Customer is exceeding its licensed seat limits for the webinar course, the facilitator may remove the attendee(s) from the webinar.

Face-to-Face Workshops

Open LMS ’ face-to-face workshops require that each participant have a computer available. Each workshop is limited to up to 15 participants; and if more than 15 participants attend or are planned to attend without prior Open LMS written approval, Customer will be charged for an additional trainer at the then current onsite training rate. Open LMS makes reasonable efforts to secure the most cost-effective travel itineraries for workshop facilitators, given that these expenses are billed back to its customers. In order to keep costs down, Open LMS ’ facilitators typically make travel arrangements as soon as workshop dates have been finalized and confirmed in writing by the customer. As such, if Customer wishes to cancel or change the date(s) for an onsite workshop that was scheduled and confirmed, then Customer is responsible for all travel cancellation fees (e.g. airfare, hotel) incurred by Open LMS .

TRAIN Package

In the event that Customer has purchased the TRAIN package as set forth in an Order Form, then Attachment A, which is attached hereto and incorporated herein, shall apply.
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Attachment A to Exhibit B – Additional Professional Services
TRAIN Materials License and Distribution Exhibit (only applicable if Customer has purchased TRAIN package)

Services and/or Services

Open LMS will provide to Customer the TRAINTM s and/or services described in this Attachment A and included in an Order Form.

Fee Structure

Customer will pay Open LMS for the SaaS Service and/or Services in accordance with the fee and payment schedule set forth in the Order Form. Such fee is an annual fee based upon Customer’s Active User Limit under the SaaS Services Schedule and the Order Form, between Customer and Open LMS , and is payable for each year of the SaaS Term for as long as the SaaS Term is in effect. If payments are not made within ten (10) business days from the date due, Open LMS may, at its option, suspend providing Products and/or Services to Client until such time as Client’s account is current. During the aforementioned period of suspension, Client is precluded from using Open LMS Content. In addition, if payments are not made when due, Client will be responsible for all costs incurred by Open LMS in collecting such past due amounts including reasonable attorney’s fees. Purchase orders or similar documents issued by Client relating to this Agreement are for Client’s internal use only and shall not affect this Agreement.

Intellectual Property

All Open LMS publications, materials, events, slide decks, presentations, courses, webinars, documents, demos, reports, research and other products (collectively, the “Open LMS Publications”) and all methodologies, know-how, processes, technologies, software (including related source code, object code and documentation), tools, devices, documentation, ideas, trade secrets, data, discoveries or inventions (whether or not patentable), products, user interfaces, database structure and other materials and information utilized by Open LMS in the performance of this Agreement, including any related modifications, improvements, enhancements or derivative works, which are owned or developed by or on behalf of Open LMS or its licensors prior to the Effective Date, or which Open LMS or its licensors developed or develop for a third party or itself at any time thereafter and whether or not delivered to Customer under this Agreement (collectively “Open LMS Content”) is and shall remain the sole and exclusive property of Open LMS , and all right, title and interest therein or related thereto, including, without limitation, copyrights, trademarks, trade secrets, patents, and other intellectual property or proprietary rights, are hereby exclusively reserved by Open LMS .

Grant of Limited License

Open LMS hereby grants to the Customer a non-exclusive, non-transferable, non-sub-licensable license to use and make derivative works from any Open LMS Content embedded within the SaaS Service and/or Services, as delivered, solely for Customer’s own internal training activities across only Customer’s Active Users as defined in this Schedule. Customer may not: (i) use the SaaS Service and/or Services or Open LMS Content to create any research reports, document, media or other data compilation for use by any third party or to otherwise compete with Open LMS ; or (ii) permit any third party (including resellers and consultants), to have access to the SaaS Service and/or Services or Open LMS Content without the prior written consent of Open LMS ; or (iii) create derivative works therefrom. Upon termination of the TRAIN license, Customer will (a) return all Open LMS Property, including derivative works thereof, and (b) cease all use of any Open LMS Property, including all derivative works thereof and disable all access to such items.

Warranty

Open LMS warrants that any SaaS Service and/or Services provided shall substantially conform to the specifications set forth in their applicable Documentation. Except for this limited warranty, Customer understands that the SaaS Service and/or Services are provided “AS IS”. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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