Master Services Agreement (MSA)

Noderabbit, Inc. d/b/a Appsembler

Last updated: January 16, 2024

Terms and Conditions

1. SAAS SERVICES AND SUPPORT
   1. Subject to the terms of this Agreement, the 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, the Customer will identify an administrative username and password for the Customer’s Company account.  The company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
   2. Subject to the terms hereof, the Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
2. RESTRICTIONS AND RESPONSIBILITIES
   1. 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.
   2. 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.
   3. 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 the Company has no obligation to monitor the Customer’s use of the Services, the 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.
   4. 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 harmless the Company from and against any damages, liabilities, costs, and expenses (including attorney’s 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.
   5. 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.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
   1. 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 the Company includes non-public information regarding the Service’s features, functionality, and performance. Proprietary Information of Customer includes non-public data provided by the Customer to the 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.  
   2. The Customer shall own all rights, titles, and interests in and to the Customer Data. Company shall own and retain all rights, 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.     
   3. Notwithstanding anything to the contrary, the Company shall have the right to 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.   
4. PAYMENT OF FEES
   1. The customer will pay the 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.  The company reserves the right to change the Fees or applicable charges and institute new charges and Fees at the end of the Initial Service Term or the current renewal term upon thirty (30) days prior notice to the 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 the Company’s customer support department.
   2. The company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the 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 the Company’s net income.
5. TERM AND TERMINATION
   1. 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.
   2. 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.  The 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.
6. WARRANTY AND DISCLAIMER
   1. The company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that 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, the 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 the 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.
7. INDEMNITY
   1. 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, the 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.
8. LIMITATION OF LIABILITY
   1. 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.
9. FORCE MAJEURE
   1. 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.
10. MISCELLANEOUS
    1. 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 all waivers and modifications must be in 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 the 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 the 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, utilities, or other reasons beyond the 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, the Customer must notify the 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.  The 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

The Company will provide Technical Support to the Customer via electronic mail on weekdays during the hours of 6:00 am through 6:00 pm Pacific Standard Time, with the exclusion of U.S. Federal Holidays (“Support Hours”).

The Customer may initiate a helpdesk ticket any time by emailing support@appsembler.com. The Company also provides a searchable knowledgebase at https://help.appsembler.com

The Company will use commercially reasonable efforts to respond to all Helpdesk tickets within the timeframes outlined below.

Support Feature	Starter	Pro	Premium
Named Client Contact(s)	1	2	4
Critical Issue response times	4 hours or less	2 hours or less	1 hour or less
Major Issue response times	1 business day	1 business day	4 hours or less
Minor Issue response times	2 business days	1 business day	1 business day

Issue Severity Definitions

Critical

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.

Examples:

• 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

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.

Examples:

• 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

Minor

Minimal business impact. Issue on a non-production Open edX or Appsembler Virtual Labs system, or a question, comment, feature request, or documentation issue.

Examples:

• How do I…
• I was wondering if…
• I don’t see…

Exhibit D: Tahoe LMS MAU Overage Policy

This policy outlines the procedure for billing customers who exceed the Monthly Active User (MAU) limit of their current plan. Our aim is to ensure accurate and transparent billing for MAU overages in accordance with the terms of the customer agreement.

Applicability

This policy applies to all customers subscribed to a tiered MAU plan with Appsembler.

Definition of MAU

An MAU is defined as a registered user who interacts with the courseware in any given month.

Overage Determination

1. Monthly Assessment: At the end of each calendar month, Appsembler staff will compile a report of the total number of MAUs for each customer account.

2. Plan Confirmation: We will verify the number of MAUs included in your plan and the corresponding price per MAU based on your subscription tier.

3. Overage Calculation: If the actual number of MAUs exceeds your plan’s quota, an overage fee is applicable. The formula for calculating this fee is:

Overage Fee = (Actual MAUs – Included MAUs) × Price Per MAU × 1.5.

Billing and Communication

1. Billing Update: The overage fee will be updated in our billing system and charged via ACH in the subsequent month, providing a Net30 payment term.

2. Customer Notification: Customers will be notified of the overage through their preferred communication method, along with a detailed usage breakdown and the corresponding overage fee.

3.Transparency: The billing system will reflect the overage charge as a separate line item. This ensures clarity and transparency in billing practices.

Support and Customer Engagement

1. Customer Support: We offer assistance in understanding overage fees and, if necessary, will discuss potential plan upgrades to better accommodate higher MAU usage.

2. Queries and Disputes: Any customer queries or disputes regarding overage fees will be documented and resolved in accordance with company policies.

Privacy and Data Security

All customer data related to MAU calculations and billing will be handled in strict compliance with our privacy policies.

Ongoing Review and Updates

This policy is subject to periodic review to ensure its effectiveness and relevance.

Note to Customers

We encourage you to regularly review your MAU usage. Upgrading to a higher tier may be more cost-effective if your usage consistently exceeds your current plan’s MAU quota.