FULLY_SIGNED_MCSA0089_Renewal_25-27_FINAL_03132025.pdf

Open LMS, Inc. MCSA0089-1, Amendment 2 Page 1 of 8

Version 7/23

MASTER CLOUD SERVICE AGREEMENT (MCSA0089-1)

AMENDMENT 2 AND RENEWAL

This Amendment 2 to and Renewal of contract #MCSA0089-1 (the “Amendment”) is between the State of Ohio, Department of Administrative Services (the “State”) and Open LMS, Inc. (the “Contractor”). This Amendment changes the terms of the Master Cloud Service Agreement (MCSA0089-1) (the “Agreement”).

WHEREAS, the State and the Service Provider entered into the Agreement on December 11, 2020; and

WHEREAS, the State and the Service Provider determined that an amendment is necessary to address certain revisions to the Agreement.

NOW, THEREFORE, the Agreement is renewed and amended as follows:

1. Pursuant to Section 1.5 Agreement - Renewal, the Agreement is renewed for an additional term, effective February 4, 2025 and expiring June 30, 2027.

2. In Section 1.7, Relationship of the Parties and Subscribers, delete the link in its entirety and replace it with the following:

https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf.

3. In Article 1, General Information, add the following new section 1.15, Quarterly Reporting:

1.15 Quarterly Reporting

Contractor must report the quarterly dollar value (in U.S. currency rounded to the nearest whole dollar) of the sales under this Agreement each calendar quarter (i.e., January-March, April-June, July- September and October-December). The dollar value of the sales reported must equal the price paid by all State agencies and Cooperative Purchasing Members for purchases under this Agreement during the reporting period.

Contractor must submit the quarterly sales report to the State via the State’s Ordering System, and when Contractor will be submitting a payment, Contractor must also complete and submit the Quarterly Sales Report and Revenue Share Remittance Form (available at https://das.ohio.gov/revenueshareform) with Contractor’s Revenue Share payment. If no sales occur, Contractor must show zero sales on the report. The report must be submitted 30 days after the completion of the reporting period.

Contractor also must submit a closeout sales report within 120 days after the expiration of this Agreement. For purposes of this subsection, the Agreement expires on the physical completion of the last, outstanding task or completion of an Order of the Agreement. The closeout sales report must cover all sales not shown in the final quarterly sales report and reconcile all errors and credits. If Contractor reported all Agreement sales and reconciled all errors and credits on the final quarterly sales report, then Contractor should show zero sales in the closeout sales report.

If Contractor fails to submit any sales report in a timely manner or falsifies any sales report, the State may terminate this Agreement for cause.

4. In Section 7.6, Cost Recovery, delete it in its entirety and replace it with the following:

7.6 Revenue Share

The Contractor must pay to the State a share of the sales transacted under this Agreement as a fee to the State to cover the estimated costs the State will incur in administering this Agreement and the https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf https://das.ohio.gov/revenueshareform

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Services offered under it (“Revenue Share”). The Contractor must remit the Revenue Share in U.S.

dollars within 30 days after the end of the quarterly reporting period. The Revenue Share that the Contractor must pay under this Agreement equals 2% of the total quarterly sales reported. The Revenue Share must be included in the prices reflected in any order and reflected in the total amount charged to the State, and the Contractor may not add a surcharge to orders under this Agreement to cover the cost of the Revenue Share.

The Contractor must remit any amount due as the result of a quarterly or closeout sales report at the time the quarterly or closeout sales report is submitted to the Department of Administrative Services, Office of State Purchasing. To ensure the payment is credited properly, the Contractor must identify the payment as a “State of Ohio Revenue Share” and include this Agreement number, total report amount, and reporting period covered.

Contractor will pay the Revenue Share by check remittance, both normal and overnight, credit card payment via the State’s epayment portal, or ACH payment, if approved by the State, using the instructions below.

Check remittance: Follow the remittance instructions on the required Quarterly Sales Report and

Revenue Share Remittance Form at the following link, https://das.ohio.gov/revenueshareform.

Credit Card Payments: To pay by credit card, use the following link, https://epay.das.ohio.gov/Payment, select “Revenue Share” as the payment type and follow the on-screen prompts.

ACH Payments: If this payment method is approved by the State, the State will provide payment instructions to Contractor.

If the full amount of the Revenue Share is not paid within 30 days after the end of the applicable reporting period, the non-payment will constitute a contract debt to the State. The State may setoff any unpaid Revenue Share from any amount owed to the Contractor under this Agreement and employ all other remedies available to it under Ohio law for the non-payment of the Revenue Share.

Additionally, if the Contractor fails to pay the Revenue Share in a timely manner, the failure will be a breach of this Agreement, and the State may terminate this Agreement for cause as set forth herein and seek damages for the breach.

5. In Section 9.6, Drug-Free Workplace, delete it in its entirety and replace it with the following:

9.6. Drug-Free Workplace

The Contractor agrees to comply with all applicable state and federal laws regarding drug-free workplace and shall make a good faith effort to ensure that all Contractor employees, while working on State property or performing work on behalf of the State, will not purchase, transfer, use, be under the influence of, or possess illegal drugs, non-medical cannabis (recreational marijuana), or alcohol, or abuse prescription drugs or medical marijuana in any way.

6. In Section 9.13, Prohibition of the Expenditure of Public Funds for Offshore Services, delete it in its entirety and replace it with the following:

9.13 Prohibition of the Expenditure of Public Funds for Offshore Services

No State Cabinet, Agency, Board or Commission will enter into any contract to purchase services provided outside the United States or that allows State data to be sent, taken, accessed, tested, maintained, backed-up, stored, or made available remotely outside (located) of the United States, unless a duly signed waiver from the State has been attained. Notwithstanding any other terms of this Agreement, the State reserves the right to recover any funds paid for services the Contractor performs https://das.ohio.gov/revenueshareform https://epay.das.ohio.gov/Payment

Open LMS, Inc. MCSA0089-1, Amendment 2 Page 3 of 8 outside of the United States for which it did not receive a waiver. The State does not waive any other rights and remedies provided the State in the Agreement.

Further, no State agency, board, commission, State educational institution, or pension fund will make any purchase from or investment in any Russian institution or company. Notwithstanding any other terms of this Agreement, the State reserves the right to recover any funds paid to Contractor for purchases or investments in a Russian institution or company in violation of this paragraph. The provisions of this paragraph will expire when the applicable Executive Order is no longer effective.

The Contractor must complete the Contractor/Subcontractor Affirmation and Disclosure Form affirming the Contractor understands and will meet the requirements of the above prohibition. During the performance of this Agreement, if the Contractor changes the location(s) disclosed on the Affirmation and Disclosure Form, Contractor must complete and submit a revised Affirmation and Disclosure Form reflecting such changes.

7. In Section 9.29, Amendments, delete it in its entirety and replace it with the following:

9.29 Amendments

No change to any provision of this Agreement will be effective unless it is in writing and signed by both Parties. However, the State may document non-material changes in writing and provide notice to the Contractor. Unless specifically provided otherwise in this Agreement or agreed to in writing by the Subscriber, no terms or conditions included on a Contractor’s quote or ordering document will be valid or enforceable against the State and are specifically excluded from this Agreement. Further, no “click-through,” “shrink-wrap,” “browse-wrap,” or other terms that have not been specifically negotiated by the Contractor and the State, whether before, on, or after the date of this Agreement, will be effective to add or modify the terms of this Agreement, regardless of any Party’s “acceptance” of those terms by electronic means. No State employee has the authority to modify, amend, or supplement this Agreement through electronic means.

8. In Section 9.30, Boycotting, delete it in its entirety and replace it with the following:

9.30 Boycotting

Pursuant to R.C. 9.76(B), Contractor warrants that Contractor is not boycotting any jurisdiction with whom the State of Ohio can enjoy open trade, including Israel, and will not do so during the contract period.

The State of Ohio does not acquire supplies or services that cannot be imported lawfully into the United States or transact business with any entity or individual subject to financial sanctions imposed by the United States. The Contractor certifies that it, its subcontractors, and any agent of the Contractor or its subcontractors, will acquire any supplies or services in accordance with all trade control laws, regulations or orders of the United States, including the prohibited source regulations set forth in subpart 25.7, Prohibited Sources, of the Federal Acquisition Regulation and any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control. A list of those entities and individuals subject to sanctions can be found at https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists. These sanctions generally preclude most transactions involving Cuba, Iran, and Sudan, and most imports from Burma or North Korea.

9. In Article 9, Standard Provisions, add the following new sections:

9.32. Legal Representation and Rights

The Ohio Attorney General is the chief law officer for the State of Ohio, its agencies, boards and commissions, and only the Ohio Attorney General has the authority to appoint outside legal counsel to https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists

Open LMS, Inc. MCSA0089-1, Amendment 2 Page 4 of 8 represent the State. Contractor agrees that any provisions in this Agreement or any documents incorporated by reference that provide or allow for outside legal representation to defend or settle claims on behalf of the State or provide for a third party to have sole control of a defense or settlement of a claim do not meet the requirements of state law and are considered stricken. Contractor also agrees that, unless specifically agreed to in writing by the State, any provisions that require or provide for a waiver of any legal rights, remedies, or litigation defenses (i.e., waiver of a jury trial) do not meet the requirements of state law and are considered stricken.

9.33. Statute of Limitations

Statutes of limitations generally do not apply to actions brought by the State and any such provisions in this Agreement or in any documents incorporated by reference are considered stricken.

9.34. OhioBuys

This Agreement may become part of OhioBuys, an electronic procurement system which provides electronic contract and catalog hosting and management services. Ordering Agencies access this system to place orders for the procurement of goods and services using State of Ohio contracts. When the Agreement becomes part of OhioBuys, the Contractor agrees to establish, maintain and support its contract and catalog in OhioBuys.

9.35 Affirmation and Disclosure Form

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This Amendment shall become effective as of the date of the State’s signature and shall remain in full force and effect for the term of the Agreement. Except as modified by this Amendment, all other terms, conditions and pricing of the Agreement shall remain the same and in full force and effect.

IN WITNESS WHEREOF, the parties have executed this Amendment as of the dates appearing below.

OPEN LMS, INC. STATE OF OHIO

DEPARTMENT OF ADMINISTRATIVE SERVICES

By: By:

Name: Bill Conran Name: Kathleen C. Madden

Title: Head of Sales Title: Director

Date: Date:

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SUMMARY OF AMENDMENTS

Amendment Number

Effective Date Description

2 Pending Agreement renewal through 6/30/2027 and updated renewal language.

1 4/1/2024 Assignment and Delegation: Supplier name change from eThink Education, LLC to Open LMS, Inc.

SUMMARY OF AMENDMENTS