This Master Services Agreement (this “Agreement”) is made and entered into as of the Effective Date set forth in the applicable Governing Order, by and between OpenSite AI LLC, an Illinois limited liability company having its principal place of business in the State of Illinois (“Company”), and the client identified in such Governing Order (“Client”). Company and Client are referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Company is engaged in the business of designing, developing, deploying, hosting, and supporting websites and related software applications;
WHEREAS, Client desires to engage Company to provide such services under either a subscription plan or a one-time website purchase plan, and Company desires to provide such services, in each case subject to the terms and conditions set forth herein; and
WHEREAS, the Parties intend that this Agreement establish the general terms and conditions governing all services provided by Company to Client, with the commercial particulars of each engagement to be set forth in a separate Governing Order incorporating this Agreement by reference;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
1.1 “Client Content” means all text, photographs, images, logos, trademarks, service marks, trade names, product descriptions, pricing information, and other materials furnished by Client to Company for incorporation into or display upon the Site.
1.2 “Deliverables” means the Site, together with all designs, layouts, graphics, source code, object code, scripts, configurations, and other work product created, compiled, or configured by Company in the course of performing the Services, but excluding Client Content.
1.3 “Governing Order” means the Website Services Order Agreement, statement of work, or other ordering document accepted by the Parties that references or incorporates this Agreement and sets forth the commercial terms of a particular engagement.
1.4 “Services” means the website design, development, deployment, hosting, maintenance, and support services to be provided by Company as described in the applicable Governing Order.
1.5 “Site” means the website developed, deployed, and hosted by Company for Client pursuant to a Governing Order.
1.6 “Subscription Term” means the initial minimum term and any renewal term applicable to a subscription plan. “Lifetime Hosting Period” has the meaning stated in the applicable Governing Order and applies only to a completed One-Time Purchase Plan.
ARTICLE 2 — ENGAGEMENT AND SCOPE OF SERVICES
2.1 Engagement. Client hereby engages Company, and Company hereby accepts such engagement, to provide the Services in accordance with the terms of this Agreement and the applicable Governing Order.
2.2 Governing Orders. Each Governing Order shall incorporate this Agreement by reference and shall be deemed a part hereof. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of a Governing Order, the terms of the Governing Order shall control, but only with respect to the specific engagement described therein and only to the extent of such conflict.
2.3 Changes to Scope. Any request by Client for services beyond the scope described in the applicable Governing Order shall require a written change order executed by both Parties, specifying the additional services and the associated fees, prior to the commencement of any such work. Company shall have no obligation to perform out of scope work absent such executed change order.
ARTICLE 3 — FEES AND PAYMENT
3.1 Commercial Models. The Governing Order shall identify either (a) a promotional subscription plan under which Company furnishes initial design and development without an upfront development charge in reliance on a minimum commitment, or (b) a One-Time Purchase Plan under which Client purchases the custom Deliverables for the stated one-time price. The Governing Order shall state the selected plan, fees, billing method, ownership treatment, included hosting and support, optional add-ons, and separately payable third-party or pass-through costs.
3.2 Taxes. All fees are exclusive of federal, state, and local sales, use, excise, and other taxes. Client shall be solely responsible for the payment of all such taxes, excluding taxes based upon Company's net income.
3.3 Late Payment and Suspension. If any amount payable by Client remains unpaid for a period of fifteen (15) days following its due date, Company may, in its sole discretion and without further notice to Client, suspend performance of any or all Services, including hosting of the Site. No interest shall accrue upon past due amounts; suspension of Services shall constitute Company's remedy for nonpayment. Company shall have no obligation to restore suspended Services until all outstanding amounts have been paid in full.
3.4 Disputed Charges and Chargebacks. Client shall notify Company in writing of any disputed charge within thirty (30) days following the date of the invoice or charge in question, and the Parties shall negotiate in good faith to resolve such dispute. Client shall not initiate a chargeback, payment reversal, or similar proceeding with any financial institution prior to providing such notice and affording Company a reasonable opportunity to resolve the matter. Any chargeback initiated in contravention of this Section shall constitute a material breach of this Agreement, and Client shall be liable to Company for an administrative fee of Thirty Five Dollars ($35.00) in addition to the disputed amount, together with any costs of collection.
ARTICLE 4 — REVISIONS AND ACCEPTANCE
4.1 Included Revisions. Each phase of work shall include up to two (2) rounds of revisions at no additional charge. For purposes of this Section, a “round” shall mean a single, consolidated set of written comments delivered by Client in one communication.
4.2 Additional Revisions. Revisions requested in excess of those included pursuant to Section 4.1 shall be billed at Company's then current hourly rate. Company shall not be obligated to commence any such additional work until Client has approved the applicable charges in writing.
4.3 Deemed Acceptance. Client shall have five (5) business days following delivery of any milestone or final deliverable within which to reject the same by written notice to Company specifying with reasonable particularity the grounds for rejection. Any deliverable not so rejected within such period shall be deemed accepted by Client.
4.4 Limitations on Rejection. Client shall not be entitled to reject any deliverable on the basis of aesthetic or cosmetic preference, a change in Client's business objectives, or any element previously approved by Client in writing at an earlier stage of the engagement.
ARTICLE 5 — INTELLECTUAL PROPERTY
5.1 Ownership of Deliverables. Under a subscription plan, Company shall own and retain all right, title, and interest in and to the Deliverables, including copyrights, trade secrets, and other intellectual property rights, irrespective of the Subscription Term or aggregate fees paid. Under a completed One-Time Purchase Plan, and only after Company's receipt of the full one-time purchase price, Company assigns to Client Company's right, title, and interest in the custom Site design and custom code created specifically for Client. Company retains all rights in pre-existing materials, reusable tools, frameworks, libraries, templates, know-how, artificial-intelligence systems and outputs used across projects, and third-party components (“Background Technology”). Third-party components remain subject to their own licenses.
5.2 License to Client. Under a subscription plan, and subject to compliance and payment, Company grants Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access, use, and display the Site during the Subscription Term; that license ends with the subscription. Under a completed One-Time Purchase Plan, Company grants Client a perpetual, worldwide, non-exclusive license to use, reproduce, modify, and permit contractors to use any incorporated Background Technology solely as necessary to operate, maintain, modify, or migrate the purchased Site. Client may not extract or commercially exploit Background Technology apart from the purchased Site.
5.3 Client Content. Client shall retain all right, title, and interest in and to the Client Content. Client hereby grants to Company a non-exclusive, royalty free license to reproduce, display, modify, and otherwise use the Client Content solely as necessary to perform the Services during the Subscription Term.
5.4 Client Representations. Client represents and warrants that it owns or has obtained all rights necessary to furnish the Client Content to Company and that the Client Content does not and shall not infringe, misappropriate, or otherwise violate the intellectual property rights, privacy rights, or other rights of any third party.
5.5 Return and Delivery. Upon expiration or termination of a subscription plan, Company shall make Client Content available for export for the period stated in the Governing Order but need not deliver the Deliverables, source code, design files, or configurations. After full payment under a One-Time Purchase Plan, Company shall provide a commercially reasonable deployable copy of the purchased Site upon written request, excluding credentials, Company infrastructure, and tools not required to operate the Site.
5.6 Portfolio Rights. Company shall retain a perpetual, irrevocable, worldwide, royalty free right to reproduce, display, and reference the Site and Client's name and logo in Company's portfolio, marketing materials, website, and case studies. The foregoing right shall apply automatically unless Client has obtained Company's written agreement to a restriction thereon prior to the execution of the applicable Governing Order.
ARTICLE 6 — CONFIDENTIALITY
6.1 Obligations. Each Party shall hold in confidence all non-public information disclosed to it by the other Party and identified as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure (“Confidential Information”). Neither Party shall disclose the other Party's Confidential Information to any third party except to its employees, contractors, and professional advisors having a need to know and bound by confidentiality obligations no less protective than those set forth herein.
6.2 Standard of Care. Each Party shall protect the other Party's Confidential Information using at least the same degree of care it employs to protect its own confidential information of like importance, and in no event less than a reasonable degree of care.
6.3 Exclusions. Confidential Information shall not include information that: (a) is or becomes publicly available through no fault of the receiving Party; (b) was rightfully known to the receiving Party without restriction prior to disclosure; (c) is rightfully obtained by the receiving Party from a third party without restriction; or (d) is independently developed by the receiving Party without reference to the disclosing Party's Confidential Information.
6.4 Survival. The obligations set forth in this Article 6 shall survive the expiration or termination of this Agreement for a period of three (3) years.
ARTICLE 7 — THIRD PARTY SERVICES AND ARTIFICIAL INTELLIGENCE
7.1 Third Party Platforms. Client acknowledges that the Services depend in part upon products and services furnished by third parties, including without limitation hosting providers, domain registrars, payment processors, cloud database providers, and content delivery networks (collectively, “Third Party Platforms”). Company does not control and shall not be responsible or liable for any failure, outage, interruption, error, security incident, price change, or discontinuation of any Third Party Platform.
7.2 Artificial Intelligence Tools. Client acknowledges and consents that Company may employ third party artificial intelligence tools in the course of designing, developing, or producing the Deliverables. Company makes no representation or warranty regarding the output of such tools, and Company shall not be liable for any inaccuracy, bias, intellectual property claim, or security vulnerability arising from or relating to the use thereof.
7.3 No Performance Warranty. Company makes no representation, warranty, or guarantee regarding search engine rankings, website traffic, lead generation, conversion rates, revenue, or any other business outcome arising from or relating to the Site or the Services.
ARTICLE 8 — DISCLAIMER AND LIMITATION OF LIABILITY
8.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT.
8.2 Exclusion of Consequential Damages. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL, OR DATA, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Cap on Liability. COMPANY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE GREATER OF (A) THE AGGREGATE FEES ACTUALLY PAID BY CLIENT TO COMPANY DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED DOLLARS ($100.00).
8.4 Backups. Client shall be solely responsible for maintaining backup copies of the Client Content unless Client has separately purchased a backup service from Company. Company shall not be liable for any loss of or damage to Client Content.
ARTICLE 9 — INDEMNIFICATION
9.1 By Client. Client shall indemnify, defend, and hold harmless Company and its members, officers, employees, and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses, including reasonable attorneys' fees, arising out of or relating to: (a) the Client Content; (b) Client's use of the Site in violation of this Agreement, the Acceptable Use Policy, or applicable law; or (c) Client's breach of any representation or warranty set forth herein.
ARTICLE 10 — TERM AND TERMINATION
10.1 Term. This Agreement shall commence upon the execution of the first Governing Order referencing it and shall continue in effect until all Governing Orders have expired or been terminated in accordance with their terms.
10.2 Termination for Cause. Either Party may terminate this Agreement or any Governing Order upon written notice if the other Party materially breaches any provision hereof and fails to cure such breach within fifteen (15) days following written notice thereof, provided that Company may suspend Services immediately for nonpayment as set forth in Section 3.3.
10.3 Effect of Termination. Upon expiration or termination of a subscription plan, the subscription license ends, Company may take the Site offline, and Client shall pay accrued amounts and any enforceable early termination amount stated in the Governing Order. Ending Lifetime Standard Hosting under a completed One-Time Purchase Plan does not reverse the ownership assignment or perpetual Background Technology license; Client remains responsible for migrating and operating the purchased Site thereafter.
10.4 Survival. Articles 5, 6, 8, 9, 11, and 12, together with any provision that by its nature is intended to survive, shall survive the expiration or termination of this Agreement.
ARTICLE 11 — DISPUTE RESOLUTION
11.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of laws principles.
11.2 Binding Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, shall be determined by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The seat of arbitration shall be Chicago, Illinois. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
11.3 Waiver of Jury Trial and Class Actions. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY AND ANY RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT.
11.4 Equitable Relief. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in a court of competent jurisdiction to protect its intellectual property rights or Confidential Information.
11.5 Prevailing Party. The prevailing Party in any arbitration or proceeding arising under this Agreement shall be entitled to recover its reasonable attorneys' fees and costs.
ARTICLE 12 — GENERAL PROVISIONS
12.1 Non Solicitation. During the term of this Agreement and for a period of twelve (12) months following its expiration or termination, Client shall not, directly or indirectly, solicit for employment or engagement any individual who performed Services on Client's behalf, without the prior written consent of Company.
12.2 No Personal Liability. All obligations, representations, warranties, and liabilities arising under this Agreement are those of OpenSite AI LLC alone. No member, manager, officer, employee, or agent of Company shall bear any personal liability hereunder.
12.3 Independent Contractor. Company performs the Services as an independent contractor. Nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship between the Parties.
12.4 Force Majeure. Neither Party shall be liable for any failure or delay in performance resulting from causes beyond its reasonable control, including acts of God, natural disasters, governmental action, labor disputes, internet or utility failures, or the failure of any Third Party Platform.
12.5 Assignment. Client shall not assign or transfer this Agreement or any Governing Order, whether by operation of law or otherwise, without the prior written consent of Company. Company may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets.
12.6 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed given when delivered by electronic mail to the address of record of the receiving Party, with confirmation of transmission.
12.7 Severability. If any provision of this Agreement is held invalid or unenforceable, such provision shall be modified to the minimum extent necessary to render it enforceable, and the remaining provisions shall continue in full force and effect.
12.8 Waiver. No waiver of any provision hereof shall be effective unless in writing and signed by the waiving Party. No failure or delay in exercising any right shall operate as a waiver thereof.
12.9 Entire Agreement. This Agreement, together with the applicable Governing Order and all policies incorporated by reference therein, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous understandings, whether written or oral.
12.10 Amendment. Company may amend this Agreement from time to time. The version of this Agreement in effect as of the execution date of a Governing Order shall govern that engagement for its duration.
12.11 Acceptance. This Agreement does not require a separate signature. Client accepts and agrees to be bound by this Agreement by executing any Governing Order that references or incorporates it.