The Blackboard Master Agreement for All Products and Services is the master contract that Blackboard, now operating under the Anthology and Blackboard names, uses for institutional customers. Together with an Order Form it forms the entire agreement between the customer and the Blackboard entity named in the Order Form.[1] The public copy hosted on Blackboard’s agreements site is headed with the marker “012121 version 27.0” and states no effective date, so this wiki records its effective date as unknown. The Anthology Data Processing Addendum refers to the same arrangement as the Master Agreement between the customer and “the Anthology group entity listed in the Master Agreement and/or relevant order form”.[6]
Document stack and precedence
The agreement covers seven kinds of supply: term or perpetual Software, SaaS Services, Support, Professional Services, Hosting Services, Equipment and Student Support Services.[1] Product-specific terms follow the general sections: Blackboard Learn, Collaborate, Connect, website community products, mobile applications, Smartview, Student Support Services, Ally and Reach.
Order of precedence matters when a contract also includes a Services Guide, a statement of work or a quote. The Master Agreement says that on a conflict between it and the Order Form, Services Guide or statement of work, the Master Agreement governs unless an Order Form expressly provides otherwise, and that terms in a purchase order do not amend the agreement.[1] A footnote adds that where a customer previously bought products from Blackboard, its prior agreements continue to apply to those products unless the new Order Form says otherwise, so a customer may hold more than one version at once.[1] Individual users who log in are covered by separate Terms of Use, which state that a written agreement between the user’s institution and Blackboard controls on conflict.[7]
Licence grants
For SaaS Services and Hosting Services, Blackboard grants a non-exclusive, non-transferable, non-sublicenseable licence for the Term to access and use the service on a remote-access, subscription basis, solely in support of the customer’s operations.[1] For Software, the same three adjectives apply to a licence to use the Software on a Designated Configuration, for the Term or perpetually where the licence is specified as perpetual. A Designated Configuration is a configuration of hardware and software that Blackboard supports, which may be on the customer’s premises or managed by Blackboard.[1]
Three narrower grants sit beside these. An Evaluation License allows one evaluation copy for internal evaluation and not for production or commercial purposes. An API licence, other than the Learn API, is limited, revocable and non-sublicensable, and Blackboard may limit the number or frequency of API requests. Authorized Users are the individuals defined in each product’s terms.[1]
Restrictions
Section 2.6 bars the customer from using more than the usage, storage or other limits in the agreement, and, without written consent, from letting a third party install, configure, access, use or copy the services, from reverse engineering or creating derivative works, from selling, sublicensing, renting or leasing them, from operating them in a time-sharing, outsourcing or service bureau environment or in any manner that supports the business of a third party, from removing intellectual property notices, and from using them in a way that poses a security risk or impairs the hosting environment.[1] The Authorized User definition for Learn includes invited third parties of the customer, but the agreement does not otherwise address use by a separate legal entity.
The Learn terms add a rule about operating mode. SaaS and Hosting Services are designed either to augment in-classroom instruction or to support fully virtual instruction, according to the customer’s primary operations. If the primary mode changes in either direction, the customer must notify Blackboard immediately because the licence will not support the transition and the customer must buy services suited to the new operations.[1]
Fees, overage and renewal
Fees are those on the Order Form. Section 8 reserves the right to change fees for any renewal by giving 30 days’ advance notice before the current term expires or before the right to decline renewal, whichever is earlier. Use in excess of Order Form or support-terms limits is subject to additional fees and may be invoiced monthly, and a late invoice does not waive them.[1] Interest may be charged on overdue amounts at the lower of the highest permissible rate and 18% per annum, charged at 1.5% per month, and delay in payment may result in termination or interruption of service at Blackboard’s sole discretion. Taxes are excluded unless the Order Form says otherwise.[1]
Purchase orders do not bind Blackboard to their terms, and the absence of a purchase order is not a defence to payment. Blackboard may invoice the annual fees for a renewal period even without a purchase order where use continues beyond the contracted term.[1] The customer’s signatory is also stated to have authority to commit to payment of fees for excess usage and excess storage.[1] For a software asset manager the renewal mechanics mean that a lapsed purchase order does not stop invoicing, and that overage can be billed in the middle of a term.
Section 3 adds that support, service levels and overage rates are provided as described in the Blackboard Customer Support Services Guide, and that overages may be charged for usage beyond limits and for additional storage or bandwidth needed to support excess usage. It also says a failure to meet a service level is not a breach and the sole remedy is what the service level document provides.[1]
Term, termination and discontinuation
The Term is defined in the Order Form. Either party may terminate for a material breach not cured within 30 days of written notice, either the whole agreement or the relevant product, but Blackboard may terminate immediately on written notice if the customer materially breaches the licence usage restrictions. Apart from those rights the parties have no right of early termination.[1] After termination or expiry, access ends immediately and, unless termination is due to Blackboard’s uncured breach, all amounts due become payable.
Blackboard also reserves the right to discontinue any Product or Service during the Term for any reason, with notice, and the customer’s sole remedy is a pro rata refund of the unused portion.[1] It may allocate, limit, delay or suspend access where performance becomes overburdened or its economic viability is affected, including after a force majeure event, and may charge for excessive usage beyond reasonable historical norms during such an event, to the extent above its actual costs and with notice.[1]
Older schedules for multi-year terms contain an additional fee. The 2015 self-hosted schedule and the 2016 SaaS schedule both say that a customer that terminates a multi-year agreement before the end of the Initial or Renewal Term must pay a penalty fee equal to the difference of the total discount received for the Term of the terminated products.[2][3] Version 27.0 of the Master Agreement does not repeat this fee, but a customer whose agreement still incorporates one of those schedules should check which document applies.
Audit
Section 14.10 gives Blackboard the right, on reasonable notice and at its own expense, to audit the customer’s use of the Products and Services not more than once per calendar year, solely to ensure past and ongoing compliance.[1] The 2019 and 2016 versions use the same sentence in different section numbers.[4][5] The 2015 self-hosted schedule is more detailed. It requires not less than seven days’ advance notice, normal business hours, no more than one audit every twelve months, quarterly audits after a finding of material breach until the breach is cured, and reimbursement of audit costs by the customer where underpayment exceeds 5% of the total owed for any calendar year.[2] The Master Agreement does not describe an audit method. For SaaS the relevant data is the platform’s own user and storage telemetry, which is why the counting rules in Authorized Users, FTE and storage matter before a review begins. See also the general software licence audit article.
Customer data, content and publicity
Customer Property remains the customer’s. During the term the customer grants Blackboard, its affiliates and third-party service providers a non-exclusive, royalty-free licence to modify, reproduce, display, combine, copy, store, transmit, distribute and otherwise use Customer Property solely to perform Blackboard’s obligations, and authorises processing in countries other than where the data was collected.[1] Blackboard may remove content it determines in good faith to pose a security risk or breach law, and may use the customer’s name and logo to list it as a user of the products until the customer asks in writing that it stop.[1] Personal Information is handled under the Data Processing Addendum; see support, service levels and data terms.
Warranty, liability and disputes
Blackboard warrants that Software or SaaS Services will not contain Software Errors for one year from delivery of Software or for the SaaS term, with remedies that are repair or a work around and, if not remedied, recovery of direct damages subject to the liability cap. Everything else is provided as is.[1] Each party’s cumulative liability is capped at the amounts the customer paid for the affected Products and Services in the twelve months before the first claim, with exceptions that include breach of the licence or content restrictions, the customer’s indemnity and its payment obligations. The customer indemnifies Blackboard for third-party claims arising from use beyond the licence restrictions, customer content, violation of law and unauthorised modifications.[1]
Disputes go first to a 30-day consultation and then to ICC arbitration before three arbitrators in English. The governing law and seat vary by region: New York law and Washington, D.C. for the Americas, Dutch law and Amsterdam for the European Union, Middle East and Africa, English law and London for the United Kingdom, South Australian law and Adelaide for Australia and New Zealand, and Singapore elsewhere.[1] Modifications must be in writing and signed by both parties. Assignment needs consent, except to affiliates, merger successors, a buyer of a majority of voting securities, or a buyer of substantially all assets or of a specific division.[1] The divestitures described in the overview are the context in which that exception is relevant.
Legacy schedules for self-hosted Learn
The 2015 Learning Essentials Bundle Software License Schedule grants one production copy and one unsupported Test Copy of the Software for one installation at the customer’s Designated Server Site, with a single archival copy permitted and no installation elsewhere without consent. It says Blackboard would make the Software available for download for no longer than thirty days after notice.[2] The 2016 SaaS schedule replaces the Learn licence and Managed Hosting schedules when a customer moves to SaaS, and grants access to the SaaS Services plus one unsupported Test Copy.[3] Customers who migrated from self-hosted or Managed Hosting should check which schedule now governs their SaaS use.
Out of scope
This article does not cover prices, Order Form negotiation or the commercial terms of any individual customer. It does not cover the divested Anthology product lines, whose contracts may sit on separate paper.