These Terms of Service (the “Terms”) guide the legal relationship between Flouzo SARL dba OpenCraft, 78 allée Primavera, Centre Ubidoca, 74370 Annecy, France (“OpenCraft”) and the Customer as described in the offer made by OpenCraft to the Customer (the “Offer”). Together with the Offer, these Terms (and all Appendices, Annexes or other Documents referred to herein) form the Agreement.

OpenCraft provides specific services for the Open edX platform. The Open edX platform is an open-source learning management system (“LMS”), created and maintained by Axim Collaborative, a non-profit initiative of the founding partners Harvard and MIT (in the following the “Open edX Platform”). The Open edX Platform is used to host Massive Open Online Courses (MOOCs) as well as smaller classes and training modules. OpenCraft assists its Customers in running MOOC courses on the Open edX Platform with the services described in this Agreement.

1.1 The following Terms apply to the basic setup, hosting, installation and customization where appropriate or necessary of official releases of specific versions of the Open edX Platform as well as all other services by OpenCraft described in Section 2.

1.2 The Open edX Platform consists of the open-source software Open edX Studio, the Open edX LMS, and a set of problem types based on the LON-CAPA problem types that can be embedded in courses, together with text and embedded YouTube videos and a discussion forum as specified and released by the Open edX project.

1.3 The Open edX Platform itself is open-source software and does not belong to OpenCraft in any other way. Therefore, the provision of the Open edX Platform and granting any kind of rights in it is not part of OpenCraft’s services rendered under the Agreement. OpenCraft shall only download the Open edX Platform from GitHub or other repositories on behalf of the Customer and use its best efforts to provide the services described in Section 2. The Customer shall obtain all rights according to the licences the Open edX Platform is published under directly from the copyright owners. OpenCraft provides no warranty or guarantee regarding the Open edX Platform itself and shall in no way be liable for any fault or defect of the Open edX Platform.

1.4 The services under this Agreement are not provided to consumers within the meaning of Section 13 of the German Civil Code.

OpenCraft shall provide the following services to the Customer.

2.1.1 OpenCraft will download the most current stable version of the Product as well as Open Source databases for the Product on behalf of the Customer from repositories, deploy it to a Kubernetes cluster and configure and customize it as agreed upon with the Customer in the Offer.

2.1.2 OpenCraft makes the Customer's instance on a Kubernetes cluster available under a publicly accessible URL and provides the Customer with the necessary login credentials.

2.2.1 OpenCraft shall host the Open edX Platform for the Customer by storing and running it for the duration of the Agreement on either the Customer's own Kubernetes cluster or a shared Kubernetes cluster. The Customer shall use the Open edX Platform for its own purposes and to store and process its own data. Direct access to the Kubernetes cluster and the cluster configuration is only available to the Customer if the Customer chooses to have its own Kubernetes cluster.

2.2.2 OpenCraft will make the Open edX Platform available to the Customer via the Internet. Hence OpenCraft cannot warrant the condition and connectivity of the Customer's network or any intermediate network between the Customer’s network and the system the Open edX Platforms is hosted on.

2.2.3 OpenCraft will frequently monitor the hosting services for any potential downtime and backup the Customer’s hosted data once every 24 hours. OpenCraft keeps at least the latest backup at any time.

2.2.4 In addition to the support that OpenCraft provides for its services, the Customer can request additional email support, including minor incidents as defined in the SLA (“Additional Email Support”, e.g. for malfunctions of the Open edX Platform itself). The Additional Email Support is billed at an hourly rate as agreed upon in the Offer.

2.2.5 Individual custom work (“Custom Work”, e.g. an export of the data from the databases) can be agreed upon separately and is billed at an hourly rate as agreed upon in the Offer.

2.3.1 OpenCraft shall provide the Maintenance Plan as outlined in Annex A of the Offer.

2.3.2 Unless stated otherwise in Annex A of the Offer, OpenCraft guarantees an average availability of the Open edX Platform of 99% per month. The time necessary for installing updates, upgrades, security releases and/or other services like planned maintenance will be deducted before calculating the average availability. For the purposes of this Agreement, availability is defined as the time during which the virtual machines purchased by the Customer are accessible via the internet at the Handover Point and which was not interrupted by critical or major incidents as described in Annex A of the Offer. Downtime caused by upstream issues of the Open edX Platform are not counted when calculating availability, as outlined in Annex A of the Offer.

2.3.3 Incidents affecting the Open edX instance are generally handled according to their severity level:

Critical incidents: An incident is categorized as critical when the platform becomes globally inaccessible, data is lost, or hosting resources are compromised. Upon notification, either by monitoring services or client staff, OpenCraft will work to restore access to the site, beginning as soon as the notification has been acknowledged, which will happen by 9am EST on the next business day at the latest, and completing the restoration by the end of day. OpenCraft will rebuild the platform instance using spare infrastructure, and/or restoring the latest daily off-site backup if data recovery is required.

Major incidents: An incident is categorized as major when parts of the platform become inaccessible, or user experience is degraded in a major way (for example, significant slowdowns of page loading time). Upon notification, either by monitoring services or client staff, OpenCraft will work to restore normal access to the site, starting as soon as the notification has been acknowledged, which would happen by noon on the next business day at the latest, and completing the restoration by the end of the following business day.

Minor incidents: An incident is categorized as minor when defects do not belong to the critical or major categories, or are general bugs from the Open edX platform code base common to other instance installations. Upon notification by client staff, and depending on client preferences, OpenCraft can either work on solving the issue/bug or wait for the upstream project to publish a solution/fix for the issue. OpenCraft will acknowledge the issue by noon EST on the next business day at the latest, and if the client staff opts to ask OpenCraft to solve the issue itself, OpenCraft will complete the fix and its deployment according to a schedule jointly agreed on by client staff and OpenCraft.

2.3.4 OpenCraft is considered notified when an email has been sent to the designated OpenCraft contact (or in case of unavailability, any backup email mentioned in the auto-reply sent when writing to the designated contact). For major and critical incidents, the notification would also include writing to an emergency contact provided by OpenCraft.

2.3.5 Critical and major incidents are included in the maintenance plan. Minor incidents and operations requested by client staff are charged by the hour. As part of the maintenance plan, OpenCraft will be available for project-related communication and support by email during office hours, with a guaranteed response time of one business day.

2.3.6 OpenCraft hereby informs the Customer that restrictions or disturbances of the services provided under this Agreement may occur, which are beyond the influence of OpenCraft. This includes, but is not limited to, actions of the Customer (for example through their administrative access) or third parties not acting on behalf of OpenCraft, technical conditions of the Internet or the Open edX Platform that cannot be influenced by OpenCraft, as well as force majeure. The Customer's hardware, software and his technical infrastructure may also influence the services provided by OpenCraft. It is not considered a breach of this Agreement if the circumstances described above influence the availability or functionality of the services.

2.3.7 The Customer and OpenCraft are obliged to report outages, disturbances, or interferences immediately and as accurately as possible to each other. If the Customer fails to provide such report, § 536 c BGB applies.

2.4.1 OpenCraft shall provide the Customer with development, training, consulting, and technical support services (that are not maintenance) as described and chosen by the Customer in the Offer.

2.4.2 The Customer may purchase these services either at an on-demand basis or as part of a fixed monthly time budget over a longer period.

2.5.1 OpenCraft grants the Customer the exclusive, transferable, worldwide and perpetual right to use the developed software, its source code and its documentation to the greatest extent possible. This right includes in particular the right to reproduce, the right to comprehensively revise (translate, edit and arrange), the right to distribute the developed software and copies thereof in any form and by any means, the right to make the developed software available to the public via wired or wireless transmission or available in any other way.

2.5.2 The Customer shall license and release the software including its source code under an Open Source Software license (OSS license) of OpenCraft’s choice. OpenCraft has the right to decide on a case-by-case-basis which OSS license shall apply to the software.


2.5.3 In order to be able to contribute the software, its source code and documentation to the development of the Open edX Platform open source project, Customer grants and OpenCraft accepts (i) a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable, sublicensable, and transferable license under all relevant intellectual property rights (including copyright, patent and any other right) and (ii) the same license under any rights you may have, now or in the future, in any patents or patent applications to make, have made, use, offer to sell, sell, and import products containing the Contribution or portions of the Contribution. This license extends to patent claims that are infringed by the Contribution alone or by combination of the Contribution with other inventions.

2.5.4 OpenCraft transfers the right of use to the Customer only after the developed software has been licensed under the OSS license and after the Customer has paid in full. OpenCraft shall tolerate the use of the developed software by the Customer until full payment has been made. OpenCraft may revoke the right if the Customer is in default of payment.

3.1 If necessary, the Customer is obliged to contribute to the services agreed upon and provided by OpenCraft. In particular, the Customer shall provide all necessary information and documents and name a technically qualified and sufficiently authorised contact person for the execution of the Agreement. The information and documents provided by the Customer are an essential basis for the provision of services by OpenCraft under this Agreement. Incorrect or incomplete information is to the detriment of the Customer.

3.2 The Customer is responsible for ensuring that its technical infrastructure meets the necessary requirements to access and use the Open edX Platform.

3.3 The Customer is responsible for ensuring that content made available via OpenCraft’s systems is not unlawful. The Customer is the controller of any personal data under applicable data protection law and is responsible for ensuring that this data is processed lawfully at all times.

3.4 The Customer is responsible for making sure that all data and content it makes available do not infringe the rights of a third party, including any copyright, intellectual property, privacy or other personality rights. Insofar as it is necessary for the specific task at hand, OpenCraft may take notice of the Customer’s content and data during maintenance (for example, to upgrade the data format to a new version of the Open edX platform, to fix a bug with the site or answer a question from the Customer) and for usage statistics and monitoring. In all other cases, OpenCraft will not take any notice of the Customer´s content.

3.5 In the event that the Customer fails to fulfil its obligations as outlined in this Section 3, OpenCraft is also not obligated to fulfil its contractual duties. In such instances, OpenCraft reserves the right to block the Customer’s access to the Open edX Platform, should it be necessary to prevent severe damage. In the event that the Customer breaches the contract negligently or willfully and OpenCraft suffers any damage, the Customer is required to reimburse any such loss.

3.6 In the event that OpenCraft is held liable by a third party, including the Customer's employees, due to an asserted act or omission of the Customer, the Customer is obliged to indemnify OpenCraft against any liability and any costs, including possible and actual legal fees (in accordance with statutory law), if such asserted act or omission was caused negligently or willfully by the Customer. To the extent permitted by law, OpenCraft will inform the Customer of any claims and provide him with an opportunity to defend himself. At the same time, the Customer will provide all available and necessary information about the circumstances giving rise to the claim. Any further claims for damages shall remain unaffected.

4.1 The term of this Agreement commences with the conclusion of the contract.

4.2 Either party may terminate the hosting and maintenance services with effect to the end of each month by sending a termination notice in writing (email to suffice) at least two weeks before the month's end.

4.3 Monthly time budgets for development, training, consulting, and other technical support services are booked for an indefinite period and can only be terminated with the notice period agreed upon in the offer.

4.4 If the Customer terminates the monthly time budget, it will remain in effect until the end of the current period. The Customer shall pay the promised fee for the remaining monthly time budget even if the Customer does not use it. Refunds are excluded.

4.5 The right of both parties to immediately terminate this Agreement for good cause shall remain unaffected. OpenCraft shall have good cause specifically , if the Customer is in delay with more than two (2) monthly payments.

5.1 The Customer shall pay OpenCraft a one-time fee for the basic setup as agreed upon in the Offer.

5.2 The fee for the Hosting and the Maintenance Plan as agreed upon in the Offer shall be paid monthly and is invoiced by OpenCraft at the end of the month. The fee is calculated based on the computational power used. If the Customer uses the shared Kubernetes cluster, OpenCraft will calculate the fee depending on the number of equivalent virtual machines required to host the instance.

5.3 The fee for development, training, consulting, and other technical support services as agreed upon in the Offer shall be paid monthly and is invoiced by OpenCraft at the end of the month. The fees are calculated based on the hours the Customer booked either on demand or within a monthly time budget.

5.4 Prices are exclusive of value added tax and payments are due within 30 days upon receipt of the invoice without any deduction.

5.5 OpenCraft is authorised to adjust prices according to the development of OpenCraft’s own expenses and costs providing the services to the Customer after one contractual year. In the event that an increase is higher than 5%, the Customer shall have the right to terminate the Agreement at the time the increase would start. Such termination must be declared within a period of 14 days following the announcement of the increase.

5.6 In the event that payment is overdue at the beginning of a subsequent month, OpenCraft reserves the right to suspend the provision of its services with prior warning. In the event that partial amounts of a claim are disputed, the undisputed parts have to be paid.

5.7 Offsetting (balancing two claims for payment against each other so that in the end only one smaller payment remains) is permitted only with legally established or undisputed claims arising from the same legal relationship and from a claim which entitles the counterclaim creditor to a right of retention or a right to withhold performance.

6.1 General liability: OpenCraft is liable for any damage (i) that is caused willfully or with gross negligence, (ii) that is caused by a culpable breach of an essential contractual obligation (“Cardinal Duty”, cp. Section 6.2), (iii) that results from the absence of a condition warranted by OpenCraft, or (iv) that results from a culpable infringement of health, body or life, or a violation of the German “Produkthaftungsgesetz” (Product Liability Law).

6.2 “Cardinal Duties” are contractual obligations that must be fulfilled for the contract to be performed properly, on which the other party relies on, and whose non-compliance jeopardises the contract's purpose.

6.3 Liability Limitations

6.3.1 In the event of a merely negligent breach of a Cardinal Duty, OpenCraft’s liability shall be limited to the foreseeable damage that is typical for this type of service and contract. However, this limitation will not apply to the extent that the damage does affect health, body or life.

6.3.2 In the event of an interruption or interference or other damage caused by telecommunications services provided by a third party, OpenCraft shall be liable for damages up to the amount that can be claimed within a right of recourse against the telecommunications services provider. OpenCraft shall not be liable for the operability of the connection cables leading to the servers that are subject of this Agreement. Furthermore, OpenCraft shall not be liable for any power outage, or in case of server outages that are not in the sphere of influence of OpenCraft.

6.3.3 In the event that OpenCraft is found to be liable for the loss of the Customer’s data, OpenCraft shall only be liable for the typical expenditures required for data restoration that would also have been necessary, if the Customer had created with due care regular backup copies.

6.3.4 In the event that OpenCraft cannot fulfil the guaranteed average uptime due to a merely negligent behaviour, OpenCraft shall only be liable for damages up to the yearly sum of the hosting and maintenance fee.

6.4 Exclusion of Liability In all other cases, OpenCraft, its agent’s or other individuals employed by OpenCraft to fulfil its obligations under this Agreement are not liable for whatever reason.

OpenCraft may use subcontractors to perform its services without further notice or approval (unless where otherwise required by data protection laws or agreed upon by the parties).

8.1 The party receiving any information (“Receiving Party”) from or about the other party (“Disclosing Party”) that is marked confidential or is recognizable as a business or a trade secret (“Confidential Information”) shall keep such information strictly confidential. The Receiving Party shall not record or otherwise use such Confidential Information or disclose such Confidential information to any third party unless the Disclosing Party has expressly consented thereto in writing, or the information is required to be disclosed by law, a court order or an governmental regulation.

8.2 Where applicable, the Receiving Party shall ensure by taking the appropriate contractual arrangements with its employees, contractors and any other persons working for it, that such persons do not disclose, use, distribute, or record any Confidential Information.

8.3 Information shall not be considered Confidential Information for the purposes of this Section 8 if the information:

* was disclosed to the Receiving Party prior to the execution of this Agreement and was not then subject to a confidentiality obligation

* is in the public domain or becomes publicly known without any breach of a confidentiality obligation

* is disclosed to the Receiving Party by a third party without any breach of confidentiality

8.4 If the Receiving Party breaches any of the obligations set out in clause 8, the Disclosing Party shall have the right to terminate this Agreement for good cause. The Disclosing Party reserves the right to assert further claims, in particular claims for damages.

8.5 The obligations under this Section 8 shall survive the termination of the Agreement.

Both Parties have the right to reference each other and the respective services on their own website and for advertising purposes. The Parties shall have the right to use the other Parties’ logo and company name (abbreviated if necessary). Furthermore, the Parties have the right to publish a press release about the Agreement.

10.1 To the extent that OpenCraft processes personal data on behalf of the Customer, OpenCraft acts as a processor within the meaning of the applicable data protection laws. For such processing OpenCraft and the Customer conclude the Data Processing Agreement accessible under https://opencraft.com/data-processing-agreement/ and hereby incorporate it into the Agreement. If the Customer resides in a country outside the European Economic Area (EEA), the parties conclude the module 4 of the standard contractual clauses (the "SCC”) for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 (Commission Implementing Decision (EU) 2021/914, published in the Official Journal of the European Union, L; 199/31 of June 7th 2021) whereas section 1 of the Data Processing Agreement shall apply accordingly as description of the transfer (Annex I. B. of the SCC).

10.2 Where not conflicting with the Data Processing Agreement, the Customer grants OpenCraft the right to reproduce the data to be stored by OpenCraft for the Customer for the purpose of executing the contract, insofar as this is necessary for the provision of the services owed under this contract. If not stated otherwise, OpenCraft is also entitled to make changes to the structure of the data or the data format in order to provide any services under this Agreement.

The Customer shall not solicit, recruit, or entice away or attempt to solicit or entice away any person employed or otherwise engaged by OpenCraft.

12.1 These terms shall apply exclusively and supersede all previous agreements between the Parties. Unless OpenCraft expressly agrees to the inclusion of the Customer's terms and conditions, they shall not become part of the contractual relationship between the Parties.

12.2 All amendments and additions to this Agreement must be made in writing (letter, email, or fax). Text form shall also apply to any amendments to this Section 12.2.

12.3 This Agreement is governed by German law. The application of German and European international private law and the UN Convention on Contracts for the International Sale of Goods is hereby excluded.

12.4 The exclusive place of jurisdiction is Berlin.

12.5 Should individual provisions of this contract, including this provision, be invalid in whole or in part, this shall not affect the validity of the remaining provisions or parts of such provisions. The ineffective or missing provisions shall be replaced by the relevant statutory provisions.