Exhibit 10.48


 


[***] Confidential
portions of this document have been redacted and filed separately with the
Commission.


 


AMENDMENT TO BLACKBOARD LICENSE AND SERVICES AGREEMENT


 


	
  Blackboard:

  	
   

  	
  Blackboard
  Inc.

  
	
  Customer:

  	
   

  	
  Bridgepoint
  Education

  
	
  Agreement:

  	
   

  	
  BLACKBOARD LICENSE AND SERVICES AGREEMENT (the “Agreement”)

  
	
  Agreement Date:

  	
   

  	
  December 23, 2003

  



 


Extension
of Managed Hosting Services


 


This
Amendment (“Amendment”) amends the following Schedules to the Agreement
between Blackboard and Customer: the ASP Schedule LS-6, Blackboard ASP Schedule
dated March 17, 2005, as amended (the “LS-6 Schedule”) and the
Software Schedule LS-5, Blackboard Learning System/Blackboard Community System
dated March 17, 2005, as amended (the “LS-5 Schedule”) to extend the
period of the services provided thereunder. 
This Amendment shall be effective as of the last signature date below
(the “Amendment Effective Date”).


 


The
terms of both the LS-5 Schedule and the LS-6 Schedule are hereby extended to
terminate on March 31, 2010 (the “Extended Term”).  The fee for the Extended Term is [***],
payable to Blackboard by Customer [***] within [***] business days of the
Amendment Effective Date.


 


Archival
License and Managed Hosting — Archive Environment Server


 


This
Amendment shall also serve to add a new Hosting Archive Environment Schedule
(the “Hosting Archive Schedule”) and to amend the following schedules (i) the
LS-5 Schedule; and (ii) the Blackboard Content System Software Schedule
dated June 20, 2008, as amended (the “Content System Schedule”) as
described below as of April 1, 2010 (the “Archive Effective Date”):


 


Hosting
Archive Schedule:  The Hosting
Archive Schedule attached hereto is added to the Agreement.


 


License
Restrictions:  As of the
Archive Effective Date, the licenses granted under LS-5 Schedule and Content
System Schedule are amended to permit use by Customer solely to archive the
system data stored in the Blackboard Software as of March 31, 2010 for
data retention and retrieval purposes only and Customer may not utilize the
Blackboard Software for any teaching or other purposes.  The maximum number of active users is
10.  As amended by this Amendment, LS-5
Schedule and Content System Schedule together with the Hosting Archive
Schedule, shall be collectively referred to as the “Archival Schedules”.


 


Term: The term of
the Archival Schedules shall commence on April 1, 2010 and shall continue
in effect for a period of [***] (the “Initial Archive Term”), unless earlier
terminated.  The Archival Schedules shall
collectively renew automatically for successive one (1) year terms (each,
a “Renewal Term”) unless either party gives at least thirty (30) days prior
written notice of its intent not to renew. 
The term of the Agreement is hereby extended for so long as the Archival
Schedules continue in effect.  Upon
termination or nonrenewal of the Archival Schedules, the Agreement shall
immediately terminate.


 


The
annual fee for the licenses and services provided under the Archival Schedules
shall be [***] for the Initial Archive Term. 
Thereafter, for any Renewal Term, the annual fee for the Archival
Schedules shall increase by [***] over the prior year’s annual fee.


 


Maintenance
and Upgrades


 


Customer
shall not be entitled to upgrade the Blackboard Software beyond the version
currently in use by Customer as of the Amendment Effective Date.  Maintenance and support services provided
under the software schedules shall be subject to Blackboard’s standard support
guidelines and when the version used by Customer is no longer supported,
Customer will not be entitled to maintenance and support services, except as
otherwise provided under Blackboard’s support guidelines.


 


Fees and
Payment Procedures.


 


Customer
shall pay a total of [***] within [***] business days of the execution by both
parties of this Amendment, in consideration for the extension of LS-6 Schedule
to March 31, 2010 and for the Initial Archive Term.  For any Renewal Term for the Archival
Schedules, the annual fee shall be due to Blackboard within [***] days of the
start of such Renewal Term.


 


Miscellaneous.


 


[***]  Any capitalized terms not defined herein
shall have the meaning ascribed to them in the Agreement.  All other terms and conditions of the
Agreement not amended hereunder remain in full force and effect.


 


IN WITNESS WHEREOF, the parties hereto have
executed this Amendment as of the last date written below.


 

















 


[***] Confidential
portions of this document have been redacted and filed separately with the
Commission.


 




	
  BLACKBOARD
  INC.

  	
   

  	
  CUSTOMER:
  Bridgepoint Education, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Tess Frazier

  	
   

  	
  /s/
  Daniel J. Devine

  
	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
  Daniel
  J. Devine

  
	
  Print Name and Title

  	
   

  	
  Print
  Name and Title

  
	
  Tess Frazier, Vice President

  	
   

  	
  12/7/09

  
	
  Date

  	
   

  	
  Date

  






 

















 


[***] Confidential
portions of this document have been redacted and filed separately with the
Commission.


 


BLACKBOARD HOSTING ARCHIVE
ENVIRONMENT SCHEDULE


 


This
Blackboard Hosting Archive Environment Schedule (“Hosting Archive Schedule”) is
made as of the last date indicated below, by and between Blackboard and
Bridgepoint Education (“Customer”) and is an addendum to the Blackboard License
And Services Agreement between Blackboard and Customer, which includes, without
limitation, the Master Terms and other Schedules incorporated therein.  Capitalized terms used in this Schedule that
are not otherwise defined in this Schedule shall have the meaning set forth in
the Master Terms.  In consideration of
the foregoing promises, and other good and valuable consideration, the receipt
of which are hereby acknowledged, the parties hereby agree as follows:


 


	
  Product Description

  	
   

  	
  Active User

  Capacity

  	
   

  	
  Bandwidth

  	
   

  	
  Storage

  	
   

  	
  Total Price

  	
   

  
	
  Blackboard Managed Hosting — Archive Environment

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Limited to the
  storage utilized as of March 31, 2010, not to exceed [***]

  	
   

  	
  [***]

  	
   

  



 


1.             ADDITIONAL DEFINITIONS


 


1.1          “Active User Capacity” means number of
active users licensed by Customer under this Hosting Archive Schedule, which
shall initially be [***] Authorized End Users.


 


1.2          “Managed Hosting Services” means the
services provided by Blackboard pursuant to this Hosting Archive Schedule.  The initial Managed Hosting Services are
indicated on Exhibit A to the Blackboard Hosting Archive Schedule.


 


1.3          “Authorized End User” means the
administrative staff of Customer and not any teachers or students of Customer.


 


1.4          “Available Date” means, for
purposes of this Hosting Archive Schedule, the date upon which Customer
receives notice from Blackboard that the Hosted Software is available for
access by Customer’s Authorized End Users.


 


1.5          “Hosted Software” means the
Software licensed to Customer pursuant to the Software Schedule for which
Blackboard is to provide the Managed Hosting Services.


 


1.6          “Schedule
Effective Date”
means the later of: (i) the date on which this Hosting Archive Schedule
has been executed by authorized representatives of both Parties; and (ii) the
Amendment Effective Date.


 


1.7          “Software Schedule” means the
Software Schedule that has been executed by Blackboard and Customer for which
Customer seeks to have Blackboard provide Managed Hosting Services, and that is
in effect during the term of this Hosting Archive Schedule.


 


2.  BLACKBOARD RESPONSIBILITES.


 


2.1          Provision of Access to Hosted Software.  As soon as commercially practicable after the
Schedule Effective Date, Blackboard will make access to the features and
functions of the Hosted Software available to Customer’s Authorized End
Users.  Blackboard will specify to
Customer procedures according to which Customer and/or its Authorized End Users
may establish and obtain such access.


 


2.2          Responsibility for Hosting.  Blackboard shall install and operate the
Hosted Software on computer servers and systems under its direct or indirect
control.  Blackboard will also install
and store the Customer Content for purposes of access by the Hosted Software,
provided that nothing in this Hosting Archive Schedule shall be construed to
require Blackboard to provide for, or bear any responsibility with respect to,
the design, development, operation or maintenance of any Web site owned or
operated by Customer, or with respect to any telecommunications or computer
network hardware required by Customer to provide access from the Internet to
any such Customer Web site.  Nothing in
this Hosting Archive Schedule shall be construed to grant to Customer a license
to access and/or use Blackboard’s systems except for purposes of accessing and
using the Hosted Software and except pursuant to the procedures and protocols
specified by Blackboard pursuant to Section 2.1.  Solely to the extent necessary to perform Blackboard’s
obligations pursuant to this Hosting Archive Schedule, Customer grants to
Blackboard a royalty-free, non-exclusive, worldwide license to use, reproduce,
transmit, distribute, perform, display, and, to the extent required by the
Hosted Software, modify and create derivative works from the Customer
Content.  As between Customer and
Blackboard, Customer retains ownership of the Customer Content.  During the term of the Hosting Archive
Schedule, Blackboard shall not destroy or alter any portion of the Customer
Content without express prior written authorization and direction from Customer
provided however that after the termination date of the Hosting Archive
Schedule, Blackboard shall have no obligation to maintain or store any Customer
Content.   Blackboard shall maintain the
confidentiality of all Customer Content that is stored on its servers in
accordance with Section 4 of the Master Terms.  The parties agree that none of the software
customizations previously deployed for Customer’s implementation of the
Blackboard Software shall be included in the instance of the Blackboard
Software hosted under this Hosting Archive Schedule.


 


2.3          Availability and Operational Specifications.  Blackboard will undertake commercially
reasonable measures to ensure that, from and after the Available Date and for
so long as this Hosting Archive Schedule remains in effect, the Managed Hosting
Services provided pursuant to this Hosting Archive Schedule will: (i) be
available and accessible as contemplated in this Hosting Archive Schedule
twenty-four (24) hours per day, seven (7) days per week within the
parameters set forth in Exhibit B; and (ii) conform in all material
respects to the technical specifications and performance parameters set forth
in Exhibit B. Exhibit B may be modified from time to time, upon
notice to Customer. Notwithstanding the foregoing, Blackboard will have no
liability under this Section 2.3 to the extent any nonconformity with the
standards set forth in Exhibit B arises, in whole or in part, from: (i) any
use of the Hosted Software by Customer or any Authorized End User other than in
accordance with the terms and conditions set forth in this Agreement; (ii) any
failure by Customer or any Authorized End User to comply with any procedures,
technical standards and/or protocols specified by Blackboard pursuant to Section 2.1
of this Hosting Archive Schedule; or (iii) any causes beyond the control
of Blackboard or which are not reasonably foreseeable to Blackboard, including
but not limited to, interruption or failure of telecommunication or digital
transmission links and Internet slow-downs or failures. It is agreed and
acknowledged that the service credits referred to in Exhibit B shall be
Customer’s sole remedy, and Blackboard’s sole obligation, with respect to
failures of the Managed Hosting Services to meet the technical specifications
and performance parameters set forth in Exhibit B. Blackboard does not
warrant or guarantee the Managed Hosting Services except as expressly stated in
this Hosting Archive Schedule.


 

















 


[***] Confidential
portions of this document have been redacted and filed separately with the
Commission.


 


2.4          Data Restoration Policy.   Blackboard will back-up and archive Customer
Content at a secure location for the retention period(s) specified in Exhibit B.  In the event that Customer requests recovery
of any lost or damaged Customer Content, Blackboard will exercise reasonable
efforts to restore the relevant data from the most recently archived copies (or
such earlier copies as requested by Customer), provided that such data is, at
the relevant time, still available pursuant to the applicable retention policy
and Customer has provided to Blackboard all information necessary to enable
Blackboard to perform such services. 
Blackboard shall perform up to [***] data restorations at no charge to
Customer; thereafter, except with respect to restoration of data that are lost
or damaged as a result of Blackboard’s error or a failure of the Managed
Hosting Services, Customer agrees to pay Blackboard its then-standard
applicable rates for such restoration services.


 


2.7          Upgrade/Update.  Upgrades and updates to the Blackboard
Software are not included.


 


2.8          Additional Managed Hosting Services.  In the event that Customer desires to receive
Managed Hosting Services in addition to the particular services specified in
the table above, including, by way of example, incremental storage capacity
and/or additional bandwidth capacity and/or higher Active User Capacity,
Customer may submit a written and executed purchase order requesting such
additional Managed Hosting Services. 
Subject to Customer’s payment of all applicable fees required by Section 4,
and further subject to all applicable provisions of this Agreement, including,
without limitation, the Master Terms and this Hosting Archive Schedule,
Blackboard agrees to make such additional Managed Hosting Services available to
Customer for so long as this Hosting Archive Schedule remains in effect after
acceptance of such purchase order.  For
the avoidance of doubt, no such purchase order shall be binding upon Blackboard
unless and until Blackboard accepts such purchase order in writing and further
provided that Blackboard will have no liability to Customer with respect to any
purchase orders that are not accepted or for any terms contained in the
purchase order other than the type of service and the payment amount.


 


2.9          IP Addresses.  Any IP addresses assigned or allocated to
Customer by Blackboard shall remain, at all times, the property of Blackboard
and shall be nontransferable and Customer shall have no right to use such IP
addresses upon termination of this Agreement. 
Any change requested by Customer to the Blackboard allocated addresses
must be agreed to by the Parties. 
Customer understands that the IP Services provided under this Agreement
(including Internet use) may require registrations and related administrative
reports that are public in nature.


 


2.10        Confidentiality.    Each Party will protect any non-public
confidential or proprietary information of the other Party (the “Confidential
Information”), keep such Confidential Information (including the terms of this
Agreement) confidential and shall not use such Confidential Information except
for the purposes set forth in this Agreement. 
Each Party shall use the same care to prevent disclosure of such
Confidential Information as such Party uses with respect to its own
confidential and proprietary information, but in no case less than the care a
reasonable person would use.  The
receiving Party will promptly notify the disclosing Party of any unauthorized
disclosure of the Confidential Information and will cooperate in any litigation
to protect the Confidential Information. 
In the event that Blackboard is requested or required to produce any
Confidential Information or make its staff available by subpoena or request for
information in any legal proceeding, audit, government investigation or similar
investigative process (“Request”), Blackboard will provide Customer with notice
of the Request so that Customer may seek at its own expense a protective order
or otherwise seek to limit such disclosure. 
In the event that Customer is unable to limit such disclosure or
authorizes Blackboard to provide such disclosure, then Customer agrees to
compensate Blackboard for costs and expenses incurred in accordance with
Blackboard standard billing rates.  This Section 2.10
shall survive termination so long as Blackboard retains any of Customer’s data.  The Parties hereto acknowledge that
confidential treatment of the Customer’s Confidential Information is governed
by that certain Vendor Confidentiality Agreement dated [*] between the Parties.


 


2.11        FERPA and Data Privacy.


 


Blackboard’s
maintenance of any educational records containing personally identifiable
student information that is part of the Customer Content pursuant to this
Agreement remains subject to the direct control of Customer.  Blackboard is familiar with, and will comply
with in all material respects, all applicable laws and regulations pertaining
to student educational records and privacy, including without limitation the
Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g and subsequent
codes, and its implementing regulations at 34 C.F.R. Part 99; Blackboard
will promptly notify Customer in the event it receives notice of any
investigation, inquiry or proceeding concerning privacy of student information,
as defined in the implementing regulations at 34 C.F.R. Part 99.


 


Except
as expressly provided for under this Agreement, Blackboard represents to
Customer that during the term of this Agreement and thereafter, it will not,
directly or indirectly, use, disseminate or disclose personally identifiable
student information (including electronic student education record information
and whether originally provided to Blackboard by Customer or by a student, the “Student
Data”) to any person or entity (other than to employees, agents and contractors
who are bound by similar obligations of confidentiality).


 


Customer
acknowledges and agrees that, by granting user identifications and passwords,
Customer controls, defines and manages access to all Customer Content.  Customer is responsible for (a) compliance
with all foreign and domestic privacy and student record laws and regulations
that may be applicable to Customer’s use of the Blackboard system or the Managed
Hosting Services; (b) securing all necessary prior consents (if any are
required) for the collection, storage and use of education records, data and
personal information within the Blackboard system; and (c) the creation
of, and compliance with, applicable policies regarding the access and use by
Customer’s authorized users of personally identifiable information stored on
the Blackboard system.


 


3.             CUSTOMER RESPONSIBILITIES.


 


3.1          General Usage Limitations.  Customer acknowledges that use and operation
of the Hosted Software by Customer and/or any Authorized End User is subject to
the terms of the Hosting Archive Schedule. 
Notwithstanding the Hosting Archive Schedule, for so long as this
Hosting Archive Schedule remains in effect, Customer may not install, host or
operate the Hosted Software, nor may Customer or its Authorized End Users
otherwise use the Hosted Software, except as hosted and made available by
Blackboard under this Agreement.  In the
event that Customer has installed the Hosted Software upon any computer server(s) prior
to the Schedule Effective Date (as defined below), Customer agrees promptly to
remove the Hosted Software from such computer server(s).  Customer agrees that it may not cause or
permit any third parties to access the Hosted Software other than Authorized
End Users, nor may 


 

















 


[***] Confidential
portions of this document have been redacted and filed separately with the
Commission.


 


Authorized End Users in
excess of the then-current Active User Capacity access and use the Hosted
Software at any time, provided that the Active User Capacity may be modified in
accordance with Section 2.8. 
Customer shall refrain from, and shall ensure that Authorized End Users
refrain from, using the Managed Hosting Services in a manner that is libelous,
defamatory, obscene, infringing or illegal, or otherwise abusing the Managed
Hosting Services or the resources available through the Managed Hosting
Services. Customer will take appropriate steps to ensure that it and its
Authorized End Users do not share access information (including user
identification data and passwords) with third parties except as expressly permitted under
this Agreement.  Customer warrants that
its Authorized End Users will comply with the provisions of this Hosting
Archive Schedule in all respects.


 


3.2          Customer Content.  Customer represents and warrants that: (i) Customer
owns or has sufficient rights in and to the Customer Content, including,
without limitation, personal, educational and financial information contained
within the Customer Content, in order to use, and permit use of, the Customer
Content as contemplated in this Hosting Archive Schedule and to grant the
license granted in Section 2.2; and (ii) the Customer Content does
not and shall not contain any content, materials, advertising or services that
infringe on or violate any applicable law, regulation or right of a third
party.  Customer also
acknowledges that Customer Content may be accessed by Blackboard’s support or
Managed Hosting personnel outside of the country of the hosted facility, and
hereby authorizes such access. 
Blackboard only provides access to the Hosted Software; Blackboard does
not operate or control the information, services, opinions or other content of
the Internet.  Blackboard does not
monitor and shall have no liability or responsibility whatsoever for the
Customer Content of any transmissions or communications transmitted or
otherwise disseminated via the Hosted Software. 
Customer agrees that it shall make no claim whatsoever against
Blackboard relating to the Customer Content or content of the Internet or
respecting any information, product, service or software ordered through or
provided via the Internet, and Customer shall indemnify and hold Blackboard
harmless from any and all claims (including claims by governmental entities
seeking to impose penal sanctions) related, directly or indirectly, to such
Customer Content.


 


4.             FEES


 


4.1          In consideration for provision of the
Managed Hosting Services, Customer shall, during the Initial Term (as defined
below) pay to Blackboard: (i) an annual fee in an amount set forth in the
Pricing Summary with respect to the particular Managed Hosting Services
provided under this Hosting Archive Schedule, the first annual installment of which
fees shall be due and payable within 5 business days of Amendment execution; as
well as (ii) any other fees otherwise required by this Hosting Archive
Schedule (for additional services, additional bandwidth, or additional users).  In the event that Customer requests
additional Managed Hosting Services as contemplated in Section 2.8,
applicable fees shall be due and payable from and after the month during which
such additional services are first made available.  All fees payable under this Hosting Archive
Schedule shall be non-cancelable and non-refundable.


 


4.2          Blackboard reserves the
right to temporarily suspend the Managed Hosting Services if Customer’s account
becomes more than thirty (30) days past due. 
The act of suspending Managed Hosting Services does not, in itself,
constitute a termination or suspension of this Agreement nor does such
suspension of Service alleviate Customer’s obligation to pay past, current, or
future charges incurred hereunder.  Once
Customer pays in full the past due fees, Blackboard may resume services.


 


4.3          With respect to each Renewal
Term (as defined below), if any, Customer shall pay to Blackboard the
then-current fees for such Managed Hosting Services upon commencement of the
Renewal Term.  Except as provided above,
each party will be responsible for its own expenses incurred in rendering
performance under this Hosting Archive Schedule, including, without limitation,
the cost of facilities, work space, computers and computer time, development tools
and platforms, utilities management, personnel and supplies.  Except as otherwise required by this
paragraph, all amounts payable under this Hosting Archive Schedule shall be
subject to applicable provisions of the Master Terms.


 


5.             TERM


 


This Hosting Archive Schedule
shall become effective on the Schedule Effective Date, and shall continue in
effect for a period of [***] (the “Initial Term”) or otherwise specified in Exhibit A.  Thereafter, the Hosting Archive Schedule will
renew automatically upon the conclusion of each twelve month period following
the Schedule Effective Date for successive one (1)-year periods (each, a “Renewal
Term”), at Blackboard’s then current pricing for Customer’s then current usage
level, unless either Party provides notice of its desire not to renew more than
thirty (30) days prior to the end of the Initial Renewal Term or then-current
Renewal Term, as applicable.  Upon termination
of this Hosting Archive Schedule, all licenses granted under this Hosting
Archive Schedule shall immediately cease, and Customer will: (i) immediately
discontinue access to and/or use of the Hosted Software under this Hosting
Archive Schedule; (ii) pay to Blackboard all amounts due and payable under
this Hosting Archive Schedule; and (iii) return all Documentation and
related training materials to Blackboard within a reasonable time at Customer’s
cost.  Each party may terminate this
Schedule in the event of material breach upon 30 days prior written notice and
failure by the breaching party to cure such breach within such 30 days, except
in the event of non-payment, the non-breaching party may terminate immediately
upon written notice.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Schedule as of the date
hereof.


 


	
  BLACKBOARD

  	
   

  	
  CUSTOMER:
  BRIDGEPOINT EDUCATION, INC.

  
	
   

  	
   

  	
   

  
	
  /s/
  Tess Frazier

  	
   

  	
  /s/
  Daniel J. Devine

  
	
  Signature

  TESS
  FRAZIER-VICE PRESIDENT

  	
   

  	
  Signature

  Daniel J. Devine

  
	
  Print
  Name and Title

  	
   

  	
  Print Name and Title

  
	
   

  	
   

  	
   

  
	
  Date:  12/7/09

  	
   

  	
  Date:  12/7/09

  



 

















 


[***] Confidential
portions of this document have been redacted and filed separately with the
Commission.


 


EXHIBIT A


MANAGED HOSTING SPECIFICATIONS


 


+ Secure
Socket Layer


 


·                  Secure Socket Layer (SSL) is
an encryption protocol that prevents eavesdropping of data that passes between
a web server and an end-user’s browser. 
SSL enabled websites encrypt data before it is transmitted from the web
server to the end user and from the end user to the web server.  Blackboard’s Learning System 6.1 and higher
versions contain SSL Choice feature, which once turned on allows Customer to
choose which parts of the site should be encrypted and which should not, which
in turn effectively reduces unnecessary CPU usage associated with SSL
software.  In order to take advantage of
the SSL Choice, Customer must have SSL software enabled.


 


Data Restoration Policy — per restore fees are
separately charged per chargeable restore incident


 


Additional Storage and Bandwidth Annual Fees are
separately charged


 


Other services requested or required by Customer not
covered by this Schedule are billable at Blackboard’s standard billing rates.


 

















 


[***] Confidential
portions of this document have been redacted and filed separately with the
Commission.


 


EXHIBIT B


MANAGED HOSTING SERVICES SPECIFICATIONS- As of the Available Date


 


NOTE:    CUSTOMER
ACKNOWLEDGES THAT NOTHING IN THIS EXHIBIT B CREATES ANY ADDITIONAL WARRANTIES
OR GUARANTEES, OTHER THAN AS SET FORTH IN THE HOSTING ARCHIVE SCHEDULE, THE
SOFTWARE SCHEDULE AND/OR THE MASTER TERMS, AS APPLICABLE.


 


SERVICE LEVEL


 


Security:


 


·                  Single point of
entry to co-location is guarded 24 hours a day with access controlled by an
access database and video surveillance


·                  Monitoring of
the co-location area and only those persons authorized by Blackboard’s access
list are allowed past a central point.


·                  Surveillance
cameras located throughout the facility capture activity to help ensure no
unauthorized entry to protected areas.


 


Power:


 


·                  State-of-the-art
generators clean and condition commercial electrical power to remove
irregularities in the signal.  Power is
run through the generators before being passed into the facility.


·                  In the event of
a loss of power from the grid, power backups are utilized in the following
order: commercial utility underground conduits, two-hour battery backup (industry
standard only 15 minutes), diesel generator with full-load capability and
additional fuel supply.


 


Network:


 


·                  Redundant Internet
connections through dual Tier-1 Internet Service Providers


 


Startup:


 


Blackboard
is responsible for the setup and configuration of the necessary hardware,
software and all components of the Customer server(s). This includes but not
limited to, the server hardware and software, telecommunications hardware and
software, security software and other software that is reasonably necessary to
operate and maintain the Hosted Software.


 


Initial Access Date:


 


The
Hosted Software is typically accessible from the hosting site within 7 business
days after execution of the Hosting Archive Schedule, provided that the Master
Terms and the relevant Software Schedule have been executed, and provided that
Customer has provided to Blackboard a URL and any other information required by
Blackboard.  Blackboard shall provide
Customer with procedures for access; the procedures may include, without limitation,
provision of any access codes, passwords, technical specifications,
connectivity standards or protocols, or any other relevant procedures, to the
limited extent any of the foregoing may be necessary to enable Customer to
permit its Authorized End Users to access and use the Hosted Software as
contemplated in this Hosting Archive Schedule.


 


Availability/Service Credit:


 


The Hosted Software is accessible 24/7, with a
99% targeted uptime. 99% uptime means that for 99% of the time during any
calendar month, the Managed Hosting Services shall be available.  Unavailability is a condition in which there
is unavailability of the Hosted Software due to hardware failure OR sustained
packet loss in excess of fifty percent within the Blackboard hosting facilities
for at least fifteen consecutive minutes due to a failure of Blackboard to
provide Managed Hosting Services during such period; unavailability does not
include packet loss or network unavailability due to scheduled maintenance, or
inability of a user to connect with the Managed Hosting Services due to
Internet or telecommunications problems outside the control of Blackboard.  In order to receive any service credit,
Customer must notify Blackboard within seven (7) days from the time
Customer becomes eligible to receive a service credit.  Failure to comply with this requirement will
forfeit Customer’s right to receive a service credit.  The aggregate maximum number of service
credits to be issued by Blackboard to Customer for any and all downtime periods
and performance problems during any given calendar month shall not exceed one
month of service.  For the purpose of
calculating a service credit, any annual fee shall be divided by 12 to
determine the applicable monthly fee.  Service
credits are issued as followed and shall be Customer’s sole remedy for failure
to meet the foregoing service levels:


 


	
  Length of Unavailability (per
  calendar month)

  	
   

  	
  Service
  Credit

  
	
  1
  to 4 hours of aggregate unavailability below 99%

  	
   

  	
  1
  day of service fees credited (i.e., 1/30 monthly fees)

  
	
  4
  to 48 hours of aggregate unavailability below 99%

  	
   

  	
  2
  days of services fees credited (i.e., 1/15* monthly fees)

  
	
  48
  to 96 hours of aggregate unavailability below 99%

  	
   

  	
  5
  days of service fees credited (i.e., 1/6* monthly fees)

  



 






*Each
block of 96 hours of aggregate unavailability thereafter shall be credited 5
days of service fees.


*All
Service Credits shall be applied to the next period’s Managed Hosting fees.


 


Backup and Disaster Recovery:


 


Blackboard
provides comprehensive redundant backups which are stored online and at a
separate facility. Blackboard retains backup data for one month.  In the event of a disaster, Blackboard will
use reasonable efforts to restore service. 
Blackboard will not attempt to restore service if such attempt shall put
Blackboard, its employees or its agents at risk for injury.  Backups will be made only periodically as the
Customer’s data in the system is presumed to be static.


 


Outages


 


If
a system outage occurs, Blackboard will notify Customer’s designated technical
contact via email.  This notice will
include the reason for the system outage and estimated time for restoration of
Managed Hosting Services if Blackboard knows this information when it gives
this notice.


 

















 


[***] Confidential
portions of this document have been redacted and filed separately with the
Commission.


 


Following recovery from any particular system
outage, Blackboard will provide Customer with a post-incident summary that will
include:


 


·                  cause of the system outage (if determined);


·                  method used to correct the problem; and


·                  measures Blackboard will take to prevent
similar system outages in the future (if any).


 


Upon
receipt of notification of a problem with the Blackboard system or the Managed
Hosting Services, Blackboard will investigate the problem and determine if a
system outage exists.  If a system outage
exists, Blackboard will provide Customer with a time estimate for resolution of
the problem, if known at that time. 
Blackboard will promptly commence remedial activities and use commercially
reasonable efforts to resolve the system outage within the time estimate
provided to Customer.


 


MONITORING AND PERFORMANCE


 


Ongoing:


 


The
hardware, software and network are monitored and maintained by Blackboard and
will be accessible twenty-four (24) hours a day, seven (7) days a week, in
accordance with industry standards, except for scheduled maintenance and
required repairs, in advance of which the Customer shall be notified by email.


 


·                  Blackboard maintains responsibility for all
day-to-day server maintenance.  Server
maintenance may include, but is not limited to, hardware upgrades, OS upgrades,
patch installations, database administration, server user administration and
performance tuning.


·                  Blackboard maintains a software monitoring
system to provide real-time information about the Managed Hosting environment
to the Blackboard Network Operations Center (NOC), to assist Blackboard system
administrators proactively monitoring the Managed Hosting environment.


·                  Blackboard maintains the functioning of all
hardware components for which it is responsible under this Exhibit and
will replace any failed components. 
Hardware replacement will begin immediately upon identification of the
hardware failure and if cannot be completed with a reasonable amount of time,
the access to the Hosted Software will be redirected to a temporary server to
reduce downtime.


·                  Blackboard implements a backup strategy of
performing daily backups with a retention period of 1 month.  Where possible, data is replicated to an
offsite location.


·                  Blackboard collects bandwidth usage and web
hit statistics on all Customer-hosted machines. 
This information will be provided upon request.


 


DATA CENTER SPECIFICATIONS


 


Blackboard houses servers in a facility that offers
environment control, security, and backup power, as more specifically described
below:


 


Environment:


 


·                  The data center is designed to maintain a
constant temperature of 681⁄4F, plus or minus 21⁄4F, with humidity of 45%.


 


Server
Setup:


 


The
servers are set up to maintain fail back, redundant connectivity, comprehensive
backups, 24x7 monitoring, and 99% uptime.


 


CUSTOMER RESPONSIBILITES.  Blackboard is not responsible for
management and actual use of the features and function of the Hosted
Software.  Customer bears all
responsibility for such management and actual use, including, without
limitation:


 


·                  The Customer has full access to the
Administrator Menu and is responsible for the following:


·                  Creating/Removing Users including Students,
Teachers, System Administrators, etc.


·                  Modifying all User Information


·                  Creating/Removing all Course Web Sites


·                  Building and Managing all Course Web Sites


·                  Customization to the Site


·                  System Usage Tracking Reports


·                  Deciding which product features will be
available or unavailable, how much functionality instructors will be allowed,
etc.


·                  Choosing Icon Themes


·                  All changes to the Blackboard-named URL.  All Blackboard Customers are assigned a URL
that reads http://institutionname.blackboard.com.  The institution is allowed to pick the “institutionname”.  However, any re-directs to other URLs are the
responsibility of the Customer and not Blackboard.  For example, if the Customer chooses the URL
http://institutionname.org, the institution is responsible for the redirect to
the http://insitutionname.blackboard.com site using a CNAME record.   Any IP addresses are allocated by Blackboard
to Customer are in accordance with the American Registry for Internet Numbers
(ARIN) guidelines for Internet Numbers and applicable agencies.