These Terms of Service (the “Terms”) guide the legal relationship between Flouzo SARL dba OpenCraft, 78 allée Primavera, Centre Ubidoca, 74370 Annecy, France and the Customer as described in the Offer (the “Offer”). Together with the Offer these Terms (and all Appendices, Annexes or other Documents referred to herein) form the 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”), created and maintained by Axim Collaborative, a nonprofit initiative created by founding partners Harvard and MIT. 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.
1.1 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 2.
1.2 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.
1.3 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 2. 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.
1.4 The services under this Agreement will not be provided to consumers within the meaning of section 13 of the German Civil Code.
2.1 Basic setup
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 available under a publicly accessible URL and will provide the necessary login credentials to the Customer.
2.2 Hosting
2.2.1 OpenCraft will host the Product for the Customer by storing and running it on commissioned hosting providers for the duration of the contract either on its the Customer's own Kubernetes cluster or a shared Kubernetes cluster. The Customer will use the Product for his own purposes and to store and process his 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 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 Handover Point.
2.2.3 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).
2.2.4 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 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 on additional hourly billing.
2.3 Maintenance Plan and Service Levels
2.3.1 OpenCraft shall provide the Maintenance Plan as agreed upon in Annex A of the Offer
2.3.2 Unless stated otherwise in Annex A of the Offer, 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 Annex A of the Offer. Upstream problems of the Product itself do not affect the granted availability, see Annex A of the Offer.
2.3.3 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 third parties not acting on behalf of OpenCraft, technical conditions of the Internet or the product that cannot be influenced by OpenCraft, as well as force majeure. The Customer's hardware and software or his technical infrastructure can 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.
2.3.4 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.
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 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.
3.3 The Customer is obliged not to make content available via OpenCraft’s systems, that is offensive or otherwise unlawful. The Customer is the controller of any personal data under applicable data protection law and has to make sure that this data is processed lawfully at all times.
3.4 The Customer is responsible for all data and content he makes available, including potentially necessary copyrights or other rights of use. OpenCraft might take notice of the Customer’s content and data 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.
3.5 If and insofar as the Customer does not perform his obligations according to this Section 3, OpenCraft is not obliged to perform its contractual duties as well. In that case, OpenCraft reserves the right to block the Customer’s access to the Product, if it is necessary to prevent itself from severe damage. If the Customer is responsible for his breach of contract and OpenCraft suffers any damage, the Customer has to reimburse any such loss.
3.6 If OpenCraft is held liable by a third party, including the Customer's employees, due to a claimed 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 (according to statutory law), if such claimed act or omission was culpably caused by the Customer. As far as legally possible, OpenCraft will inform the Customer about the claims and give him the opportunity to defend himself. At the same time, the Customer will provide all information available to him 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 Both parties can terminate the Agreement with effect to the end of each month by sending a termination notice at least in written form (email to suffice).
4.3 Monthly time budgets are booked for the period specified in the offer and can only be terminated at the beginning of the respective period. If not terminated the time budget will automatically renew for another period.
4.4 The right of both parties to terminate this Agreement for good cause shall remain unaffected, whereas good cause shall specifically be given if the Customer is in delay with more than 2 monthly payments.
5.1 The Customer shall pay OpenCraft a onetime payment 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 invoiced by OpenCraft at the end of a 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 how many equivalant virtual machines would be required to host the instance.
5.3 If not explicitly stated otherwise, prices are exclusive of value added tax and payments and are due within 30 days upon receipt of the invoice without any deduction.
5.4 OpenCraft is authorized to adjust prices according to the general price development after expiration of a contractual year. 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.
5.5 If payment is overdue at the beginning of a subsequent 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.
5.6 Offsetting is only permitted 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 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 6.2), 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).
6.2 “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.
6.3 In the event of a merely negligent breach of an essential contractual obligation, 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.
6.4 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.
6.5 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.
6.6 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.
OpenCraft may use subcontractors to perform its services without further notice or approval (except where otherwise required by data protection laws or agreed upon by the parties).
8.1 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.
8.2 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.
8.3 Information is not considered Confidential Information as described in this Section 8 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
8.4 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.
8.5 The obligations according to this Section 8will 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.
10.1 o 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. Fur 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.
10.2 Where not confliciting 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 obliges not to employ, recruit or entice away or try to recruit or entice away any person employed or otherwise engaged by OpenCraft.
12.1 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.
12.2 Any changes and additions to this document require textform (letter, email or fax). Textform shall also apply to any amendments to this Section 12.2.
12.3 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.
12.4 Exclusive place of jurisdiction shall be Berlin.
12.5 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.
