Effective Date: May 17, 2021
Client agrees to comply with this Hosting Services Policy (this “Policy”) and to remain responsible for its Users (as hereinafter defined). Terms not defined herein shall have the meaning set forth in the applicable Master Agreement, Solutions Agreement, or Work Order (each an “Agreement” and collectively the “Agreements”).
1. Hosting Services. Learning Pool (“LP”) will host the Software on physical or virtual servers (the “Host Servers”) so as to provide access to the Software via the Internet at a unique domain or URL to be designated by Client (the “URL”). Except for scheduled Maintenance Windows as described in Section 2 below, “ LP will use commercially reasonable efforts to ensure that the Host Servers will be continuously available twenty-four (24) hours a day, seven (7) days a week, but, except as expressly set forth herein, LP does not represent or warrant that there will be no interruptions in service or that Client and its Users will be able to access the Software at all times without interruption. Client acknowledges and agrees that Client and its Users may experience occasional temporary interruption of service and occasionally may not be able to access and/or use the Software, and Client’s exclusive remedy for any interruption that is caused by LP shall be the issuance of Service Interruption Credits pursuant to Section 3 below. LP shall have sole discretion with respect to all protocols, procedures and technical requirements relating to the hosting of the Software, the hosting environment, the Host Servers, and the design and functionality of the interface and the URL. Except as required by the applicable open-source license(s), LP shall have no obligation to provide any copies of the Software to Client, including without limitation, the source code or the object code of the Software. If Client is entitled to receive copies of any code for the Software under the applicable open-source license(s), LP will provide such code upon Client’s request as a downloadable file. Client is solely responsible, at its sole cost and expense, for procuring all necessary hardware, software, equipment and services necessary for Client and its Users to access the Internet and to access and use the Software via the interface at the URL, including without limitation, the services of an Internet service provider. As used herein a “User” is any account or profile that has a valid username and password and that is capable of logging into the System (as hereinafter defined) and accessing the features and functionality of the System. Once a valid username and password is made available to an individual, that individual is counted as a User and counted as part of the maximum number of Users permitted to access the System. If, however, a username and password are suspended, another User may access the System in that suspended User’s place and such access would count only as access by that subsequent User. As used herein the “System” is any learning management system, open-source software program, application, or platform that are hosted and supported by LP. “Active Users” refers to those users who are registered or access through a shared username and have been active in the Software during (A) the contract period or (B) the most recent twelve (12) month period, whichever is shorter. LP will provide updates on Active User levels upon request.
2. Maintenance Windows. LP may perform system maintenance during scheduled “Maintenance Windows” during which Client and its Users will be unable to access or use the Software. Maintenance Windows will occur as follows: (a) between the hours of 12:00am and 3:00am Eastern Time or 12:00am and 3:00am Pacific Time on the first and third Saturdays of each month; or (b) at a designated time and day provided that, for any Maintenance Window occurring pursuant to this clause (b), LP will notify Client at least five (5) business days in advance of such Maintenance Window. Client understands and agrees that there may also be instances where LP will interrupt the hosting Services without notice in order to protect the integrity of the hosting Services due to security issues, virus attacks, spam issues or other unforeseen circumstances (each or collectively, a “Security Related Interruption”).
3. Availability and Service Interruptions Credits. LP will provide Availability (defined as that access to the Software via the interface at the URL without substantial degradation caused by a failure of LP’s network, network infrastructure or the Host Servers, but excluding lack of access caused by problems with open-source software upgrades or Client network or internet problems) for 99.9% of the Covered Time (defined as the time during a calendar month that excludes Maintenance Windows, Security Related Interruptions, and force majeure events as described in section 9.4 of the Master Agreement). LP will implement commercially reasonable measure to monitor the Availability and downtime and all reasonable determinations and calculations made by LP relating to Availability shall be final and binding on Client. Provided that Client is not in breach of any Agreement between the Parties, if LP provides less than 99.9% Availability during the Covered Time and at the request of Client deemed to be valid in LP’s sole discretion, LP will issue Client a “Service Interruption Credit” consisting of a percentage of those Fees for the impacted services set forth in the applicable Solutions Agreement that are allocable to said calendar month (the “Monthly Hosting Fees”) calculated as follows:
No Service Interruption Credit issued for any such calendar month shall exceed the total amount of Monthly Hosting Fees paid or payable for such calendar month. If Client is entitled to a Service Interruption Credit for any calendar month, such Service Interruption Credit shall be applied against future Monthly Hosting Fees owed by Client pursuant to any Solutions Agreement, or if no future Monthly Hosting Fees are owed, the Service Interruption Credit shall be applied against other future Fees owed by Client pursuant to any Solutions Agreement. If no such Monthly Hosting Fees or other Fees are owed by Client (or if the amount thereof is less than the amount of the Service Interruption Credit owed), the Service Interruption Credit shall be extinguished and LP shall have no obligation to make any payment to Client with respect to such Service Interruption Credit.
4. Back-up and Security. LP will back-up all websites, content, materials and data on LP’s network (collectively, “Client Data”) on an incremental basis at 2-hour intervals and retain such incremental back-ups for 24 hours. LP will perform a daily back-up all of Client’s Data on LP’s network. Each daily back-up will be kept for 7 days. LP will implement commercially reasonable security measures to prevent unauthorized access to Client Data residing on LP’s networks. Pursuant to section 6 below, section 11.5 of the Master Agreement, or if otherwise deemed reasonably necessary by LP for operational reasons, and subject to section 1.5 of the Master Agreement, LP may permanently delete or purge all back-ups of Client Data in which event LP will provide reasonable prior notice of such deletion to Client and will work reasonably to provide Client with a downloadable copy of any such Client Data if requested by Client.
5. Reporting, Monitoring and Compliance. LP will make commercially reasonable efforts to monitor the overall performance of the hosting Services and to maintain systems and network infrastructure as required to maintain Software performance.
6. Storage. As part of the hosting Services, LP may allocate Client a specified amount of storage capacity for Client Data and all back-ups and other materials created by Client while using the Software, said amount to be set forth in a Solutions Agreement (the “Client Storage Capacity”). Client shall be in breach of the applicable Solutions Agreement if Client exceeds the Client Storage Capacity. If Client exceeds the Client Storage Capacity, LP may, in addition to all other rights and remedies of LP, provide reasonable assistance or advice to Client to enable Client to comply with the Client Storage Capacity. LP may elect to relocate or delete materials that LP determines are non-critical to site and application functionality with reasonable advanced notice.
7. Client Responsibilities. Client shall identify and name a contact for each hosting Service with whom LP should communicate matters regarding hosting Services, such as maintenance notifications and escalations, and who has the authority to make hosting Services requests, including release of Client Data, both internally to LP and to Client, restoration of data, and other configuration changes. Client will retain responsibility for administering login information for Client personnel and Users and for providing Client personnel and Users with network access to the hosting Services.
If Client violates this Policy, LP may immediately suspend services with reasonable notice to Client. If LP and Client cannot reach a resolution regarding said violation, LP reserves the right to terminate the applicable Agreement(s) upon 30 days’ notice. Upon the expiration of a Term (as identified in the applicable Agreement) or upon the termination of an Agreement for any reason: (i) the right of Client and its Client Designee, if any, and its Users to access and use Services or Materials pursuant to the Agreement(s) shall automatically terminate; (ii) Client and its Client Designee, if any, and its Users shall cease all access and use of Services or Materials; and (iii) Client and its Client Designee, if any, and its Users shall promptly destroy or securely erase all copies and derivatives of Services or Materials that are in the possession or under the control of Client and its Client Designee, if any, and its Users which exist in any format or on any media. LP may delete all Client data, information, and documents, including back-up copies, no earlier than 30 days after any termination, having provided Client with access to data for duplication and retention.
Summary of changes: Policy now includes an updated naming convention for Learning Pool (LP) (was Remote Learner and RL). Changes also include updates to the definition of an Active User, changes to section titles to better reflect their substance, and simple formatting and editorial updates that have no legal implications.
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