Additional Service Terms

The following terms apply only to the corresponding Services if and when purchased or used by Client. These Service-Specific Terms supplement the applicable Agreement between D2L and Client and may be updated by D2L from time to time. If Client has separately negotiated terms for a specific product or service set out below, those negotiated terms will prevail in the event of any conflict. Otherwise, in the event of a conflict between these Service-Specific Terms and the Agreement, these Additional Service Terms will control solely with respect to the relevant Service.

Terms by D2L Service

Creator+ with H5P Terms of Service

These terms of service (“Terms”) are issued in connection with integrating the H5P suite of interactives (“H5P Services”) into D2L’s Creator+ offering (“Creator+”). It outlines modifications to the existing Agreement (the “Agreement”) between D2L and Client, specifically addressing security, data residency, and support for H5P Services.

By using the new Creator+ with H5P offering, Client agrees to the terms set out in this Addendum. Except as stated herein, all other terms of the Agreement remain unchanged. These Terms apply exclusively to the H5P Services described above and do not modify or limit D2L’s obligations to Client for other Services under the Agreement.

1. Security. D2L will maintain commercially reasonable and industry standard administrative, physical, and technical safeguards to protect the security, privacy, and integrity of Client Data stored, processed, or accessed in H5P Services. Client acknowledges that H5P Services do not currently have other independent security or privacy certifications (e.g., ISO 27001, ISO 27017, ISO 27018, ISO 27701, TX-RAMP, FedRAMP, etc), except for a SOC 2 Type II report. As a result, D2L does not represent that H5P Services have obtained relevant certifications against the independent security standards described in the Agreement.
2. Data Residency. Client understands and agrees that: (a) the hosting, processing, and storage of data in the H5P Services, including Client Data, may occur in facilities located outside of the Client’s jurisdiction and (b) D2L may use H5P Group AS (“H5P”), a wholly owned subsidiary company of D2L, incorporated in Norway (registration number 912 282 910) having its registered office at Strandgata 9, 9008 Tromsø to deliver or provision the Services, including to process Client Data and personal information.
3. Generative AI Services. Certain Services under the Agreement may include functionalities that can make predictions, recommendations, decisions, generate text, images, or other media through the use of artificial intelligence models (“D2L Generative AI Services”). Client acknowledges and agrees to terms and conditions set out at https://www.d2l.com/legal/d2l-generative-ai-services-terms/ as they relate to D2L Generative AI Services under the Agreement.

In the event of a conflict between these Terms and the Agreement, these Terms shall control for matters relating to H5P Services. All other provisions of the Agreement remain in effect.

D2L Generative AI Services Terms

These terms, together with the existing executed Agreement between the Parties (the “Agreement”), governs terms and conditions between Client and D2L relating to the D2L Generative AI Services (as defined below).

Notwithstanding anything to the contrary in the Agreement between D2L and Client, the following terms apply to Client’s use of all functionalities that can make predictions, recommendations, decisions, generate text, images, or other media through the use of artificial intelligence models (“D2L Generative AI Services”). These terms shall prevail over any conflicting terms set out in the Agreement with respect to D2L Generative AI Services.

Use Limitations

1. If D2L has a reasonable basis to believe that Client’s use of D2L Generative AI Services, or Client data submitted to D2L Generative AI Services (“Client Input”), is inconsistent with the terms of this Agreement, D2L may limit, restrict, or terminate a Client’s access to or use of D2L Generative AI Services. Notwithstanding the foregoing, Client understands and agrees that D2L is under no obligation to monitor Client’s use of the D2L Generative AI Service or the Client Input.
2. D2L prohibits the use of D2L Generative AI Services for generating any text, images, or other media (“Output Content”) that inflicts harm on individuals or society. Client may not use the D2L Generative AI Service for the purposes listed below, or for any illegal or harmful activity, including but not limited to:
   1. Child sexual abuse material or any content that may exploit or harm children
   2. Generation of hateful, harassing, or violent content
   3. Generation of malware
   4. Activity or information that could lead to high risk of physical harm
   5. Activity or information that could lead to high risk of economic harm
   6. Fraudulent or deceptive activity
   7. Adult content, adult industries, and dating apps
   8. Activity or information that violates people’s privacy
   9. Engaging in the unauthorized practice of law, or offering tailored legal advice without a qualified person reviewing the information
   10. Offering tailored financial advice without a qualified person reviewing the information
   11. Telling someone that they have or do not have a certain health condition, or providing instructions on how to cure or treat a health condition
   12. High risk government decision-making
3. Client shall not represent that the Output Content was human generated when it was not.
4. Client shall use commercially reasonable efforts to remove and/or depersonalize any personal information included or incorporated into Client Input. Client shall not include or incorporate personal information of any child under the age of 13 years old in Client Input.
5. Client understands and acknowledges that generative artificial intelligences models may produce text, images, and other media that is inappropriate and/or inaccurate. Client agrees that it will use all reasonable means to validate all Output Content for accuracy and appropriateness.
6. Client warrants that it has sufficient rights in the Client Input to submit it to the D2L Generative AI Service and that such Client Input does not infringe, misappropriate or violate a third-party’s intellectual property. To this end, to the extent permitted by applicable law, Client agrees to indemnify and hold D2L harmless against any third-party claim related to Client’s use of the D2L Generative Service, including claims of infringement related to Client Input submitted to or Output Content generated from the D2L Generative AI Services.
7. Client may not use the D2L Generative AI Services to decompile, disassemble, modify the source code of, or reverse engineer the underlying generative artificial intelligence model(s), including exfiltrating the weights of such model(s). Client may not use the D2L Generative AI Services for web scraping, web harvesting, or similar methods designed to extract data from the D2L Generative AI Service.
8. Client acknowledges and agrees that Client Input (and its associated Output Content) may be processed and/or stored outside of Client’s hosting jurisdiction country.

Intellectual Property

9. Client owns all Client Input. D2L will not use Client Input to train, retrain the underlying generative artificial intelligence models.
10. D2L does not own Output Content. To the extent D2L owns Output Content, D2L grants all its right, title, and interest in and to the Output Content to Client. Notwithstanding the foregoing, Client understands and acknowledges that Output Content from D2L Generative AI Services may not be unique. Therefore, Client’s rights in Output Content (including ownership thereof) may not be enforceable against third parties.
11. Client understands and agrees that D2L and/or its third-party suppliers (who are under obligations of confidentiality with D2L) may temporarily store Client Input submitted to the D2L Generative AI Service, or its Output, for debugging and to monitor for and prevent abusive or harmful uses or outputs of the services.

Warranties

12. Client understands that the D2L Generative AI Service is provided “AS IS” WITHOUT WARRANTY OF ANY KIND.  THE ENTIRE RISK, INCLUDING DIRECT AND INDIRECT DAMAGES, ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT REMAINS WITH CLIENT.  IN NO EVENT SHALL D2L BE LIABLE FOR ANY DIRECT CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF D2L HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Termination

13. D2L may terminate Client’s access to the D2L Generative AI Service at any time by providing Client 30 days written notice. If D2L terminates Client’s access to the D2L Generative AI Service as set out in this section, D2L shall remit to Client a prorated (to the date of termination) reimbursement of any pre-paid fees for such D2L Generative AI Service.

Fees

14. D2L Generative AI Services Offered at No Additional Cost
    • Client shall have reasonable, but not excessive use, of any D2L Generative AI Services that may be made generally available to D2L clients at no additional charge (e.g., as part of a trial or pilot offering). D2L reserves the right, at its sole discretion, to determine what constitutes reasonable use and may limit Client’s access to the Generative AI Services, if Client is excessive in its usage.
15. Paid Offerings of the D2L Generative AI Services
    • For paid features of the D2L Generative AI Services, Client shall be entitled to the number of AI Generations as set out in an Order. If Client exceeds its number of AI Generations during a contract year, D2L may limit Client’s use of the D2L Generative AI Services.

Any obligations which by their nature are intended to survive under these terms, shall survive termination or expiration of these terms or the Agreement. Except as set out in these terms, all other terms of the Agreement remain in full force and effect.

Terms of Use for External Data Support 

These terms of use (“Terms”) are entered into by and between the D2L entity (“D2L”) and the Client entity identified in the Agreement (“Client”). These Terms modify the existing Agreement between D2L and Client (the “Agreement”) solely with respect to the External Data Support feature as described below and apply for the duration of Client’s subscription to or use of Performance+. All other terms of the Agreement remain in full force and effect. 

1. External Data Support 

D2L offers External Data Support (“External Data Support”) as part of its Analytics Builder tool within the Performance+ package. External Data Support enables Client to upload, connect to, and store external data (“External Data”) within Analytics Builder and to analyze such data in conjunction with Brightspace Data Sets. Client may make resulting analyses and dashboards available to non-learner users (e.g., instructors, administrators). 

If Client connects External Data Support with third-party services or data connectors, D2L does not guarantee or assume responsibility for the functionality, security, or compliance of any such third-party services or connectors used in connection with External Data Support.  

2. Client Responsibilities 

Client is solely responsible for: 

1. the accuracy and quality of any External Data it uploads, connects to, analyzes, or stores in Analytics Builder; 

2. compliance with all applicable laws and regulations, including but not limited to privacy and data protection laws, including complying with any right to erasure or right to be forgotten request, and Client’s internal policies; and 

3. refraining from uploading sensitive data, including but not limited to credit card information, social security numbers, passwords, or other data classified as sensitive under applicable law or industry standards (e.g., PCI-DSS, HIPAA). 

3. SPICE Usage Limits 

SPICE (Super-fast, Parallel, In-memory Calculation Engine) is the high-performance, in-memory engine used by certain features within Analytics Builder, including the External Data Support feature. These features may automatically leverage SPICE to perform advanced calculations and quickly serve data to users. D2L allocates up to 1 GB of SPICE usage per 100 users as set out on the applicable Order Form as part of Analytics Builder within the Performance+ package. Clients may monitor their monthly SPICE usage within Analytics Builder. If a Client exceeds its allocated SPICE usage without purchasing additional capacity during the contract year, D2L may charge USD $2 per GB over the limit, plus reasonable administrative fees. If overages persist or grow significantly, D2L reserves the right to restrict access to authoring capabilities (e.g., create new analysis and dashboards) within Analytics Builder after providing customer with advance notice of such overage and a reasonable opportunity to remediate. 

 4. Conflict with Agreement 

In the event of any conflict between these Terms and the Agreement, the Terms shall control solely with respect to External Data Support. All other provisions of the Agreement shall remain in full force and effect.