Terms Of Service
Agreement for Open edX® hosting
(in the following referred to as : „Customer“)
Flouzo SARL dba OpenCraft
78 allée Primavera
(in the following referred to as: „OpenCraft“).
Subsequently as a whole referred to as “Agreement”
OpenCraft is a service company specializing in specific services for the Open edX platform. The Open edX platform is an Open Source course management system (“CMS”), developed by edX®, a nonprofit online initiative created by founding partners Harvard and MIT and composed of dozens of leading global institutions. The Open edX platform is used to host Massive Open Online Courses (MOOCs) as well as smaller classes and training modules. OpenCraft helps their Customers to run MOOC courses on the OpenStack platform with the services described in this Agreement. The Product (cp. Section 2.2.) and all updates and releases are available for free and OpenCraft helps the Customer to configure, install and host an instance of the Open edX platform with database services as well as official upstream updates and security releases of the Product as described below.
2. Subject Matter
2.1 The following conditions apply to the basic set-up, hosting and installation of official releases of specific Open edX hosting services (the “Product”) by OpenCraft as described in Section 4.
2.2 The Product consists of the Open Source software Open edX Studio, Open edX LMS, a set of problems types that are based on LON-CAPA problem types and that can be embedded in courses, along with text and embedded YouTube videos and a discussion forum as specified and released by the Open edX project.
2.3 The Product itself as an Open Source software does not belong to OpenCraft and is not part of the services hereunder. OpenCraft will download the Product from GitHub or other repositories on behalf of the Customer and use its best efforts to provide the services described in Section 4. The Product itself is not part of the performance of OpenCraft under this Agreement and neither is any warranty, guarantee or liability with regard to the Product.
2.4 The services under this Agreement will not be provided to consumers within the meaning of section 13 of the German Civil Code.
3. Registration and conclusion of the Agreement
3.1 By registering on the website with his name, his email address and his company, the Customer makes an offer to conclude the Agreement.
3.2 OpenCraft will check the corresponding registration and send an email to the Customer containing an activation link (“Activation Email”). The Agreement is considered concluded when the Customer clicks the activation link.
3.3 For the start of the term as well as the free trial, please see Sections 8 and 9.
4.1 Basic setup (included in Basic Fee, cp Appendix 1, Section A)
4.1.1 The Customer can select basic configuration options according to the defined selection options in the registration process.
4.1.2 After entering his information and choosing a password and the configuration settings, OpenCraft will send the Customer the link to activate his account via email. By clicking on the activation link, OpenCraft will set up a user account, configure and deploy the Product.
4.1.3 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 as described in Appendix 1.
4.1.4 OpenCraft then sends the Customer an email with the URL to the Customer´s instance of the Product. The Customer can then access the Product via his user account.
4.2 Continuous Updates, Upgrades and security releases (included in Basic Fee)
4.2.1 In case of regular official version releases (minor “Update” or major “Upgrade”) as well as official extraordinary security releases (“Security Release”) of the Product by the Open edX project, OpenCraft will install the new version on the hosted servers without further notifying the Customer. OpenCraft will however inform the Customer in due time about necessary downtimes.
4.2.2 The Customer is aware that OpenCraft will only install the Updates, Upgrades and Security Releases or provide other services for the respective current stable version of the Product.
4.3 Hosting (included in Basic Fee)
4.3.1 OpenCraft will host the Product for the Customer by storing and running it on commissioned hosting providers for the duration of the contract. The Customer will use the Product for his own purposes and to store and process his own data.
4.3.2 The Customer has the right to use the number of Virtual Machines purchased for the duration of the contract.
4.3.3 OpenCraft will make available the Product to the Customer via the Internet at the interface between the systems of the server operator and the internet (“Handover Point”), subject to any restrictions with regard to availability or other restrictions caused by the server operator. OpenCraft is not responsible for establishing and maintaining the data connection between the Customer’s IT systems and the described Handover Point.
4.3.4 Furthermore, OpenCraft will frequently monitor the hosting services for downtimes and backup the Customers hosted data once per week. OpenCraft keeps at least one backup at any time (the latest).
4.3.5 In addition to the support that OpenCraft provides for its services, the Customer can request additional email support (“Additional Email Support”, e.g. for malfunctions of the Product itself) on additional hourly billing on the conditions in Appendix 2 Section 5.
4.3.6 Individual custom work (“Custom Work”, e.g. an export of the data from the databases) can be agreed upon separately on additional hourly billing.
4.3.7 Furthermore, the Customer can book the use of more Virtual Machines (“Additional Virtual Machine”) on a price agreed upon separately.
4.3.8 Additional Services can be requested via e-mail to email@example.com.
4.4 The details of the included and non-included services are specified in Appendix 1.
5.1 Unless stated otherwise in Appendix 2, OpenCraft grants an availability of the Product of an average of 95% 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 purpose of this Agreement, availability means the time during which the Virtual Machines purchased by the Customer are reachable via the internet at the Handover Point and which was not interrupted by critical or major incidents as described in Appendix 2. Upstream problems of the Product itself do not affect the granted availability, see Appendix 2.
5.2 OpenCraft hereby informs the Customer that restrictions or interferences of the services provided under this Agreement may occur that are out of OpenCraft’s sphere of influence. This includes in particular, but not limited to the following, actions by third parties, acting not on OpenCraft’s commission, technical conditions of the Internet or the Product not open to influence by OpenCraft, as well as force majeure. The Customer’s hard- and software or his technical infrastructure may also influence the services provided by OpenCraft. It shall not be considered a breach of this Agreement, should the circumstances described above influence availability or functionality of the services.
5.3 The Customer is obliged to report outages, disturbances or interferences immediately and as accurate as possible to OpenCraft. If the Customer fails to provide such report, § 536 c BGB applies.
6. Obligations of the Customer
6.1 If necessary, the Customer is obliged to contribute to the services agreed on and provided by OpenCraft. In particular, the Customer provides all necessary information and documents and specifies a professionally qualified and sufficiently authorized contact person for the consummation of the contract. Information and documents provided by the Customer are an essential foundation for the provision of OpenCraft’s services under this Agreement. Faulty or incomplete information will be to the detriment of the Customer.
6.2 Since OpenCraft is not offering the Product itself, the Customer is responsible for meeting the technical requirements to access and use the Product. The Customer is responsible for ensuring that his traffic does not exceed the capacities of the booked Virtual Machines.
6.3 The Customer is obliged not to make content available via OpenCraft’s systems, that is offensive or otherwise unlawful, be that absolute or in relation to a single third party. The Customer is the processor of personal data or information and has to make sure that this data is processed lawfully at all times.
6.4 The Customer is responsible for all processed data and content he makes available, including potentially necessary rights of use. OpenCraft might take notice of the Customer’s content and data only during the course of 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. Otherwise OpenCraft takes no notice of the Customer´s content in any way whatsoever.
6.5 If and insofar as the Customer does not perform his obligations according to this Section 6, OpenCraft is not obliged to perform its contractual duties. In that case, OpenCraft reserves the right to block the Customer’s access to the Product, if it is necessary to prevent severe damage. If the Customer is responsible for his violation of duty and OpenCraft suffers damage, the Customer has to reimburse any such loss.
6.6 If OpenCraft is made liable by third parties, including the Customer’s employees, because of a claimed action or forbearance by the Customer, the Customer is obliged to indemnify OpenCraft against all liability and any costs, including possible and actual legal fees (according to statutory law), if such claimed action or forbearance was incurred culpably by the Customer. As far as it is legally possible, OpenCraft will inform the Customer about the claims and give him the possibility to defend himself. Simultaneously, the Customer will provide all the information available to him about the matter giving rise to the claim. Any further claims for damages remain unaffected.
7. OpenCraft Customer Support/Service Level Agreement
The applicable Service Level Agreement for the services granted under this Agreement is attached hereto as Appendix 2.
8. Term and Termination
8.1 The Initial Term starts on the first day, the Customer has access to the Product (when the email with the URL is sent to the Customer) and will be valid for one month (the “Initial Term”). It will renew automatically for a period of one month (“Renewal Term”) if it is not terminated by notice either by email to firstname.lastname@example.org or by written letter. The notice of termination must be received by OpenCraft by the end of a Contractual Month and becomes effective at the end of the following Contractual Month.
8.1.1 “Contractual Month” is the general term for both an Initial Term and a Renewal Term together. The Initial Period is beginning on the first day the Customer got access to the Product and ending on the previous day at midnight of the following calendar month. For example, if the Customer got access to the Product on March 10, the Customer’s Initial Term lasts from March 10 to April 9, and the first Renewal Period from April 10 to May 9.
8.2 The right to extraordinary termination for cause remains unaffected.
8.3 Irrespective of any right to termination, the Customer has the option to suspend the Agreement free of charge for a period of 1 to 6 full Contractual Months per calendar year after expiry of the Initial Term. The application for a suspension of the Agreement must be received by OpenCraft by the end of a Contractual Month and becomes effective at the end of the following Contractual Month. The break ends automatically at the end of the break duration, which the Customer can shorten by full Contractual Months or extend to the maximum break duration at any time. The Customer can end the break with immediate effect by declaration to OpenCraft. In the event of immediate termination of the break, the monthly fee for the entire Contractual Month must be paid immediately.
8.4 Furthermore, the Agreement can be suspended according to Section 8.5.
8.5 The Customer’s right to use the Product shall lapse when notice of termination or suspension of the contract enters into effect. In such case, the Customer´s access to the Product shall be blocked, and the Customer shall no longer have access to their account or to any stored Application Data.
8.6 If requested so by the Customer, in case of a full or partial termination of this Agreement, OpenCraft is obliged to hand over, or destroy, all data, documents and materials containing business, organizational or technical data or information about the Customer or his customers, unless there is a legal duty to preserve such material or the material is OpenCraft’s intellectual property, or necessary for further liquidation of the contract. This service is to be paid separately according to Appendix 1 Section B.
8.7 If requested, OpenCraft performs all the services necessary for the transfer of the contractual services to the Customer or any third party specified by the Customer (for example migration to another IT-System, providing of adequately qualified employees, conduction of trainings) for a period of up to twelve (12) months after termination (hereafter: “Transition Period”). OpenCraft will cooperate with the Customer and a specified third party to ensure that no service disturbances take place and that the Customer or the named third party is able to carry on the contractual services after the discontinuation of the contract. OpenCraft is obliged to create and surrender appropriate documentation. The Customer has to contribute to this documentation. This service is to be paid separately according to Appendix 1 Section B.
8.8 OpenCraft’s right to remuneration according to this Agreement remains in place until the systems are shut down. In single cases, OpenCraft and the Customer may agree about the reduction or increase of the remuneration per month, the availability of the infrastructure and warranty in individual cases.
8.9 After receiving written notice by the Customer that he is able to read and process all the surrendered data, the data will be eliminated from OpenCraft’s data center and the Customer will be informed.
8.10 Any specific agreements between the parties governing the processing of personal data according to Data Protection Law remain unaffected.
9. Fees and Payment
9.1 The Initial Term is free of charge.
9.2 Monthly Basic Fee:
9.2.1 For each Renewal Period, the Customer will pay a monthly Basic Fee according to Appendix 1 Section A.
9.2.2 Monthly fees are due in advance on the first working day of each Renewal Period.
9.3 Additional Fees
9.3.1 Further services (e.g. Additional Email Support, Custom Work, Additional Virtual Machines) can be purchased and contracted separately.
9.3.2 If not explicitly stated otherwise, the price for Additional Services in Appendix 1 Section B applies.
9.3.3 Invoices for additional Fees will be sent to the Customer at the end of a Contractual Month.
9.3.4 If not explicitly stated otherwise, prices are exclusive of value added tax and payments and are due within two weeks upon receipt of the invoice without any deduction.
9.4 OpenCraft is authorized to adjust prices according to the general price development after expiration of the Initial Term (cp. Section 8.1). If the raise is higher than 5%, the Customer has the right to terminate the Agreement with a notice period of five working days. Termination must be declared within a period of 14 days after the announcement of the raise.
9.5 f payment is overdue at the beginning of a subsequent Contractual Month, OpenCraft reserves the right to suspend the provision of its services with prior warning. If partial amounts of a claim are disputed, the undisputed parts have to be paid.
9.6 Offsetting shall only be allowed with legally established or undisputed claims that originate from the same legal relationship and arise from a claim entitling the counterclaims creditor to a right of retention or a right to withhold performance.
10.1 OpenCraft is liable for damage that is caused willfully or with gross negligence, or that is the consequence of the absence of a warranted condition of the services, or that is caused by a culpable breach of an essential contractual obligation (“Cardinal Duty”, cp. Section 10.2), or that is the consequence of a culpable infringement of health, body or life, or under the legal requirements that are provided for by the German “Produkthaftungsgesetz” (Product Liability Law).
10.2 “Cardinal Duties” are contractual obligations, without the fulfillment of which due performance of the contract would not be possible, in the fulfillment of which the contractual partner may trust, and whose infringement on the other side endangers the achievement of the purpose of the contract.
10.3 In the event of a merely negligent breach of an essential contractual obligation (cp Section 10.2), however, OpenCraft’s liability is restricted to foreseeable damage that can be typically foreseen with regard to contracts such as the one between OpenCraft and the Customer, to the extent the damage is based on slight negligence only and does not affect health, body or life.
10.4 In case of an interruption or interference or other damage causing occurrences that result from telecommunications services by OpenCraft or a third party OpenCraft is responsible for, OpenCraft is only liable up to the amount that can be claimed within a right of recourse against the telecommunications services provider. OpenCraft is not liable for the operability of the connection cables leading to the servers that are subject of this Agreement, or in case of a power outage, or in case of server outages that are not in the sphere of influence of OpenCraft.
10.5 Otherwise, OpenCraft’s or its vicarious agent’s liability, or the liability of the persons employed in the performance of OpenCraft’s obligations under this Agreement, for whatever reason is excluded.
10.6 If OpenCraft is liable, taking into account the above provisions for the loss of the Customer’s data OpenCraft’s liability for a loss of data is limited to typical expenditures required for restoration that would have been avoidable with the regular and due creation of backup copies.
11. Subcontractors, Products of Third Party Suppliers
OpenCraft may use subcontractors to perform its services without further notice or approval.
12.1 The party receiving confidential information (“Receiving Party”) will keep confidential any confidential information of the party disclosing confidential information (“Disclosing Party”) that he is disclosed or will be disclosed in context with this Agreement or otherwise and that is marked as confidential or that is recognizable as a business or a trade secret (“Confidential Information”). The Receiving Party will not disclose such Confidential Information to third parties, record it or use it in any other way, as long as the Disclosing Party has not declared its consent explicitly and in writing, or the information has to be disclosed due to statutory law, a court decision or an administrative order.
12.2 If applicable, the Receiving Party ensures by appropriate contractual Agreements with his employees, contractors and all other persons that work for him, that these persons do not disclose, exploit, distribute, or record any Confidential Information.
12.3 Information is not considered Confidential Information as described in this Section 12 if it:
* has been disclosed to the Receiving Party before the conclusion of this contract and has not been subject to a confidentiality obligation then,
* is publicly known or became known to the public without a breach of a confidentiality obligation
* is disclosed to the Receiving Party without a breach of a confidentiality obligation by a third party
12.4 If the Receiving Party breaches one of the obligations stated in this clause, the Disclosing Party has the right to terminate this Agreement extraordinarily. The Disclosing Party reserves the right to assert further claims, in particular damage claims.
12.5 The obligations according to this Section 12 will survive the termination of the contract.
OpenCraft has the right to reference the Customer and the services provided to the Customer on its own website and for advertising purposes. For this purpose, OpenCraft has the right to use the logo and firm (abbreviated as the case may be) of the Customer. Furthermore, OpenCraft has the right to publish a press release about the Agreement with the Customer.
14. Data Privacy, Right to data processing and data security
14.1 If OpenCraft collects, processes, or uses personal data or information of the Customer during the initiation, conclusion or performance of this Agreement, OpenCraft will comply with applicable data protection and privacy laws and only within the scope of this Agreement.
14.2 The Customer processes personal data or information on IT-Systems OpenCraft is technically responsible for. If it cannot be ruled out that OpenCraft comes into contact with personal data or information the Customer is responsible for during the performance of the services ordered by the Customer, an agreement over a commissioned data processing must be concluded.
14.3 If not stated otherwise in the commissioned 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 the services agreed upon in Section 4.
14.4 This agreement incorporates OpenCraft’s Data Processing Agreement, which can be found at https://opencraft.com/data-processing-agreement/dpa.
The Customer obliges not to employ, recruit or entice away or try to recruit or entice away any person employed or otherwise engaged by OpenCraft.
16. Final provisions
16.1 These terms of the Agreement apply exclusively. The Customer’s General Terms and Conditions do not apply. Counter-confirmations of the Customer with reference to his own General Terms and Conditions are expressly contradicted.
16.2 Any changes and additions to this document require textform (letter, email or fax). Textform shall also apply to any amendments to this Section 16.2.
16.3 This Agreement shall be governed by German law. The application of German and European international private law and UN Convention on Contracts for the International Sale of Goods is hereby excluded.
16.4 Exclusive place of jurisdiction shall be Berlin.
16.5 If any individual provisions of this contract, including this provision, are wholly or partly ineffective, the effectiveness of the other provisions or parts of such provisions shall remain unaffected. The respective statutory provisions shall apply in place of the ineffective or lacking provisions.
Appendix 1: Specifications
A. “Pro & Teacher Hosting Plan”
1 – Fact Sheet
Download of the Product from repositories like GitHub (e.g. https://github.com/edx/edx-platform/)
Download of database services (e.g. MySQL, MongoDB & S3/SWIFT) for up to 1GB/VM
Storage of the Product on third party hosting providers commissioned by OpenCraft (e.g. OVH/So you Start, AWS/S3)
A dedicated virtual machine by the commissioned providers (VM) to run the Product (4GB RAM), RAID SSD (2.4 GHz)
Maximum size of Customer data that can be stored on the Product: 1 GB/VM
Number of simultaneous users: approximately 50 per VM (depending on usage pattern). Regarding the booked capacities and the usage of the Customer, the number can be lower or higher. It is the Customer’s responsibility to check that the capacity is enough for his needs.
Limit for traffic: 100 GB/month
2 – Price for services included in the Pro & Teacher Hosting Plan (“Basic Fee”)
€45 per month for up to 50 Monthly Active Users
€90 per month for up to 100 Monthly Active Users
€225 per month for up to 250 Monthly Active Users
€450 per month for up to 500 Monthly Active Use
€900 per month for up to 1000 Monthly Active Users
3 – Price for Additional Services not included in the Basic Fee
If not stated otherwise, the price for time spent for additional services is 180 EUR/h
B. Institutional Hosting Plan
Similar specifications as in Fact Sheet A.1. Pricing for this plan is custom and is to be determined in a dedicated quote.
Service Level Agreement
1. Open Craft only provides services for the scope of OpenCraft´s contractual duties as described in the Agreement (e.g. OpenCraft causes the slowdown or downtime with a faulty hosting resource) and e.g. not for malfunctions of the Open Source Product itself that result in a bug of the upstream project or which fall under the responsibility of the Customer (e.g. the Customer has too much traffic that the Virtual Machines he is renting cannot handle). In such cases, OpenCraft will ask if the Customer wants support on an additional hourly billing. Furthermore, OpenCraft will charge the Customer with the costs of the measures afterwards, as long as it turns out that the incident does not fall within OpenCraft´s responsibility.
2. Severity level of incidents
Incidents affecting the Product are handled according to their severity level.
2.1 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 Customer 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 off-site backup if data recovery is required. The Recovery Point Objective (RPO) is thus 24h, and the Recovery Time Objective (RTO) is one business day.
2.2 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 Customer 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.
2.3 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 Customer staff, and depending on Customer 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 Customer 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 Customer staff and OpenCraft.
3. Critical and major incidents are included. Minor incidents and operations requested by Customer staff are charged by the hour.
4. Notification of Incidents
OpenCraft is considered notified when an email has been sent to email@example.com (or in case of unavailability, any backup email mentioned in the auto-reply sent when writing to the designated contact).
5. Tier3 Support
As part of the maintenance plan, OpenCraft will be available for project-related communication and support (in English or French), by email during office hours, with a guaranteed response time of one business day. OpenCraft won’t field customer calls or requests, but customer requests can be escalated to OpenCraft as a Tier3 Engineering support.