Master Services Agreement (MSA)
Noderabbit, Inc. d/b/a Appsembler
Last updated: July 17, 2020
Terms and Conditions
- SAAS SERVICES AND SUPPORT
- Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit B. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
- Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
- Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer shall not post, upload, transmit or share any information or other content in connection with the Services (the “Customer Content” that: (a) is obscene or indecent; (b) infringes any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy of any party; (c) is defamatory, libelous, threatening, abusive, hateful, or contains pornography; or (d) contains unsolicited or unauthorized advertisements, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. Customer represents and warrants that Customer has all necessary rights to provide all Customer Consent and for such Customer Content to be made available in connection with the Services. Customer agrees to indemnify and hold harmess Company from and against any damages, liabilities, costs and expenses (including attorneys’ reasonable fees) arising out of any actual or threatened claim by any third party that the Customer Content violates or infringes such third party’s intellectual property.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
- Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
- Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- PAYMENT OF FEES
- Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
- Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
- TERM AND TERMINATION
- Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- WARRANTY AND DISCLAIMER
- Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement, or (vii) that arise from Customer Data or Customer Content. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
- LIMITATION OF LIABILITY
- Notwithstanding anything to the contrary, except for bodily injury of a person, company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
- FORCE MAJEURE
- Company shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of Company, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions.
Exhibit B: Service Level Terms
The Services shall be available 99.5%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of the Monthly Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Exhibit C: Support Terms
Company will provide Technical Support to Customer via electronic mail on weekdays during the hours of 5:00 am through 8:00 pm Eastern Time, with the exclusion of U.S. Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket any time by emailing email@example.com. Company also provides a searchable knowledgebase at http://help.appsembler.com
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within the timeframes outlined below.
|Named Client Contact(s)||1||2||4|
|Critical Issue response times||4 hours or less||2 hours
|Major Issue response times||1 business days||1 business day||4 hours or less|
|Minor Issue response times||2 business days||1 business days||1 business day|
Issue Severity Definitions
Critical business impact. Production Open edX or Appsembler Virtual Labs systems are down, severely impacting or preventing business operations. A large number of users are prevented from accessing the service with no viable workaround.
- Server is down
- LMS is unreachable for a large number of students
- Studio is unreachable for a large number of staff and course authors
- A large number of students cannot launch Virtual Labs containers
- Security breaches, e.g. hack of customer database
Major business impact. Issue on production Open edX or Appsembler Virtual Labs systems causing a partial or non-critical loss of functionality. A large number of users are impacted by the issue but are still able to use the system in a limited capacity.
- Discussion forums are unavailable
- Specific XBlock that has been working properly in the past suddenly stops working correctly in LMS or Studio
- A large number of course authors are having trouble saving their work
Minimal business impact. Issue on a non-production Open edX or Appsembler Virtual Labs system, or a question, comment, feature request, or documentation issue.
- How do I…
- I was wondering if…
- I don’t see…
Exhibit D: Tahoe MAU Overage Policy
MAU Overage policy
If you exceed the number of MAUs included in your plan, there will be no interruption to your service due to this overage, and you will be billed by credit card or ACH at the end of the calendar month an overage fee equal to:
- (a) 1.5x the price per MAU paid under the appropriate tier for your MAU count times…
- (b) the number of MAUs by which you have exceeded the number included in your plan
Overages will automatically be charged to your credit card or ACH during the next calendar month.
Tahoe Starter example:
If you are subscribed to the Tahoe Starter plan at the 100 MAUs tier, and one month your MAUs are 750, then you’d be billed MAU overages at the 501-1,000 MAU tier rate, not at the 100 MAU tier rate.
This means that you are getting a lower rate per MAU, since the higher MAU tiers have bulk volume discounts. On the 1-100 tier, an MAU costs $5 ($500 for 100 MAUs), whereas on the 501-1,000 tier, an MAU costs $1 ($1,000 for 1,000 MAUs).
However, since you’ve exceeded your base tier, you’ll pay a 1.5x surcharge or $1.50 per MAU (instead of $1/MAU if you had been on the 501-1,000 tier). Therefore, it may be advantageous for you to upgrade to the higher tier if you think you’ll have MAU counts falling the range of that tier in subsequent months.
Tahoe Pro example:
If you are on the Tahoe Professional plan at the 501-1,000 MAUs tier, and in a given month you have 2,000 MAUs, you will have exceeded your quota by 1,000 MAUs and would be billed an additional $750 for that month.
- $2,500/mo / 5,000 MAUs = $0.5/MAU/mo (price per MAU on the appropriate tier for your MAU count)
- 1,000 MAUs overage x $0.5/MAU/mo x 1.5 = $750 (price for 1,000 additional MAUs with 1.5x overage fee)
As with the Tahoe Starter example, you’re paying $750 extra for an additional 1,000 MAUs in that given month whereas if you upgraded to the 5,000 MAUs tier, you get an additional 4,000 MAUs for only an additional $500/mo, saving you $250/mo.
Again, if you believe that you’ll exceed the quota on your tier in the next calendar month, it may be advantageous to upgrade to the higher tier as you’ll avoid the surcharges and may benefit from a lower cost per MAU, depending on how many MAUs you have in a given calendar month.
Exhibit E: Virtual Labs MAU Overage Policy
Learner Lab Overage policy
If you exceed the number of Learner Labs in your plan, your learners will continue to be able to activate new Learner Labs but you will be charged a prorated overage fee, during the next calendar month. Overages will be charged according to this formula:
Price/mo on current tier % quota on current tier = overage fee per learner lab
Overage fee examples:
- If you’re on the Starter 0-25 tier, and you exceed 25 Learner Labs in a calendar month, you will pay $20 / learner lab for each additional lab above your quota of 25 Learner Labs.
- Based on the formula: $500/mo % 25 learner labs = $20 / learner lab
- If you’re on the Professional 51-100 tier, and you exceed 100 Learner Labs in a calendar month, you will pay $15 / learner lab for each additional lab above your quota of 100 Learner Labs.
- Based on the formula: $1,500/mo % 100 learner labs = $15 / learner lab
- If you’re on the Premium 101-250 tier, and you exceed 250 Learner Labs in a calendar month, you will pay $12 / learner lab for each additional lab above your quota of 100 Learner Labs.
- Based on the formula: $3,000/mo % 250 labs = $12 / learner lab
- … same formula is continued for higher tiers (Price/mo on current tier % quota on current tier = overage fee per learner lab)
If you believe that you will consistently exceed the number of Learner Labs / mo on your current tier, it may be advantageous to upgrade to the higher tier as the fee per Learner Lab will likely be lower than staying on your current tier, depending on how many Learner Labs in a given month.