Master Services Agreement
This Master Services Agreement (the "Agreement") is made as of [Effective date] (the "Effective Date") between [Service provider (your company)], with an address at [Provider address for notices] ("Provider"), and [Customer (legal entity name)], with an address at [Customer address for notices] ("Customer"). Provider and Customer are each a "Party" and together the "Parties". This Agreement sets the terms on which Provider will perform services for Customer under one or more statements of work, and the Parties agree as follows.
1. Statements of Work
Provider shall perform services (the "Services") and deliver work product (the "Deliverables") as described in one or more written statements of work signed by both Parties (each a "SOW"). Each SOW shall describe the scope of the Services, the Deliverables, any milestones and schedule, the fees and payment schedule, acceptance criteria if any, and any terms specific to that project. Each SOW incorporates this Agreement by reference and forms a separate contract between the Parties governed by this Agreement.
If a SOW conflicts with this Agreement, this Agreement controls, except that a SOW may modify a specific Section of this Agreement for that SOW only if the SOW identifies the Section by number and states expressly that it is modifying it. Changes to a SOW shall be made by a written change order signed by both Parties describing the change and any effect on fees and schedule; Provider is not obligated to perform changed work until the change order is signed.
2. Performance
Provider shall perform the Services in a professional and workmanlike manner, using qualified personnel, in accordance with the applicable SOW and generally accepted industry standards. Provider may engage subcontractors, remains responsible for their work, and shall bind them to confidentiality terms no less protective than Section 6. Provider determines the manner and means of performing the Services, and its personnel are not employees of Customer. Customer shall provide, in a timely manner, the information, materials, access, decisions and approvals reasonably required for Provider to perform, and shall designate a representative with authority to act for Customer under each SOW. Provider is excused from any failure or delay caused by Customer’s failure to meet its responsibilities, and the schedule and fees shall be equitably adjusted.
3. Fees and Payment
Customer shall pay the fees stated in each SOW. Unless the SOW provides otherwise, Provider shall invoice monthly for time-and-materials work and on the milestones stated in the SOW for fixed-fee work, and Customer shall reimburse reasonable, pre-approved, documented expenses at cost. Each invoice is due within [Payment due (days after invoice)] days after Customer receives it. Amounts not paid when due bear interest at [Late payment interest (% per month)] percent per month, or the highest rate permitted by law if lower, from the due date until paid.
Customer shall notify Provider in writing of any good-faith dispute about an invoice within fifteen (15) days of receipt, stating the reason, and shall pay the undisputed portion on time; the Parties shall work to resolve the dispute promptly. If any undisputed amount is more than fifteen (15) days overdue, Provider may suspend Services on ten (10) days’ written notice until paid. Fees exclude sales, use, value-added and similar taxes, which Customer shall pay or provide an exemption certificate for; each Party is responsible for taxes on its own income.
4. Confidentiality
Each Party (the "Recipient") shall hold in confidence all non-public information disclosed by the other (the "Discloser") in connection with this Agreement that is marked confidential or that a reasonable person would understand to be confidential, including business plans, financial information, customer data, technical information, pricing, and the terms of this Agreement and each SOW ("Confidential Information"). The Recipient shall use Confidential Information only to perform or receive the Services, shall disclose it only to its employees, contractors and advisers who need to know it and are bound by written confidentiality obligations, and shall protect it with at least reasonable care. Confidential Information does not include information that is or becomes public through no fault of the Recipient, was known to the Recipient before disclosure, was received from a third party without restriction, or was independently developed. The Recipient may disclose Confidential Information to the extent required by law after giving prompt notice and cooperating with efforts to obtain protection. These obligations continue for three (3) years after this Agreement ends, and for trade secrets for as long as they remain trade secrets.
Notice under 18 U.S.C. §1833(b): An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a federal, state or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other document filed under seal in a lawsuit or other proceeding.
5. Intellectual Property
Upon Customer’s payment in full of the fees attributable to a Deliverable, Provider assigns to Customer all right, title and interest, including all intellectual property rights, in that Deliverable, excluding Provider Materials. "Provider Materials" means tools, software, code, templates, methodologies, know-how and other materials that Provider developed before or independently of the SOW, and general improvements to them made in performing the Services. Provider grants Customer a perpetual, irrevocable, worldwide, royalty-free, non-exclusive licence to use, modify and reproduce Provider Materials to the extent incorporated in a Deliverable, as part of that Deliverable. Provider shall identify in the SOW any third-party or open-source material it intends to include in a Deliverable and the licence terms that apply. Customer grants Provider a non-exclusive licence to use Customer’s materials, trademarks and data solely to perform the Services. Provider may describe the general nature of the engagement in its marketing but shall not disclose Customer’s Confidential Information or use Customer’s name or logo without written consent.
6. Warranties
Provider warrants that (a) the Services will be performed in a professional and workmanlike manner; (b) for [Warranty period for deliverables (days after acceptance)] days after acceptance of a Deliverable, the Deliverable will conform in all material respects to the specifications in the SOW; and (c) to Provider’s knowledge, the Deliverables, excluding Customer materials and third-party materials identified in the SOW, will not infringe any third party’s intellectual property rights. Customer’s exclusive remedy for breach of warranty (a) or (b) is for Provider to re-perform the non-conforming Services or correct the non-conforming Deliverable within a reasonable time after written notice given during the warranty period, and if Provider cannot do so, to refund the fees paid for the non-conforming Services or Deliverable. Each Party warrants that it has the authority to enter into this Agreement. EXCEPT AS STATED IN THIS SECTION, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND DOES NOT WARRANT THAT THE DELIVERABLES WILL BE ERROR-FREE OR ACHIEVE ANY PARTICULAR RESULT.
7. Indemnification
Provider shall defend Customer against any third-party claim that a Deliverable, as delivered by Provider and used in accordance with the SOW, infringes a United States patent, copyright or trademark or misappropriates a trade secret, and shall pay the damages, costs and reasonable attorney fees finally awarded or agreed in settlement, except to the extent the claim arises from Customer materials, third-party materials identified in the SOW, modifications not made by Provider, or use in combination with items not supplied by Provider. If a Deliverable is or is likely to be enjoined, Provider may at its option procure the right for Customer to continue using it, modify or replace it so that it is non-infringing, or accept its return and refund the fees paid for it. Customer shall defend Provider against any third-party claim arising from Customer materials, Customer’s data, or Customer’s use of the Deliverables in breach of this Agreement or applicable law, and shall pay the resulting damages, costs and reasonable attorney fees. The indemnified Party shall give prompt written notice of the claim, allow the indemnifying Party to control the defense and settlement (provided no settlement admits fault or imposes obligations on the indemnified Party without its consent), and cooperate reasonably at the indemnifying Party’s expense.
8. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 4, INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CUSTOMER’S OBLIGATION TO PAY FEES: (A) NEITHER PARTY IS LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITY, ARISING OUT OF THIS AGREEMENT OR ANY SOW, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF ANY SOW IS LIMITED TO THE FEES PAID OR PAYABLE UNDER THAT SOW IN THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM. Provider shall maintain commercial general liability insurance of at least [Provider’s general liability coverage (per occurrence)] per occurrence, and professional liability insurance appropriate to the Services, during the term of this Agreement, and shall provide certificates on request.
9. Term and Termination
This Agreement begins on the Effective Date and continues for an initial term of [Initial term (years)] years, after which it renews automatically for successive one-year periods unless either Party gives written notice of non-renewal at least [Termination notice (days)] days before the end of the then-current term. Either Party may terminate this Agreement or any SOW for convenience on [Termination notice (days)] days’ written notice, unless the SOW provides otherwise. Either Party may terminate this Agreement or the affected SOW immediately on written notice if the other Party materially breaches it and fails to cure the breach within thirty (30) days after written notice, or becomes insolvent, makes an assignment for the benefit of creditors, or is the subject of a bankruptcy proceeding not dismissed within sixty (60) days.
Termination of this Agreement does not terminate any SOW then in progress, which continues to be governed by this Agreement until completed or terminated. On termination of a SOW, Customer shall pay for Services performed and Deliverables delivered through the termination date, and for non-cancellable expenses and commitments reasonably incurred, and Provider shall deliver all work in progress paid for. Sections 3 through 8 and 10 and 11, and any other provision that by its nature should survive, survive termination.
10. Governing Law; Dispute Resolution
This Agreement is governed by the laws of the State of [Governing law (state)], without regard to its conflict of laws rules, and the United Nations Convention on Contracts for the International Sale of Goods does not apply. Before commencing litigation, the Parties shall attempt to resolve any dispute by escalation to an executive of each Party, who shall meet within fifteen (15) days of a written request. If the dispute is not resolved within thirty (30) days after that request, either Party may bring an action in the state or federal courts located in [City for any court action], [Governing law (state)], to whose exclusive jurisdiction the Parties submit, except that either Party may seek injunctive relief in any court to protect its Confidential Information or intellectual property. The prevailing Party in any action is entitled to recover its reasonable attorney fees and costs.
11. General
This Agreement, together with each SOW and change order, is the entire agreement between the Parties about its subject and supersedes all prior proposals, agreements and understandings; pre-printed terms on any purchase order or invoice have no effect. It may be amended only in a writing signed by both Parties. Neither Party may assign this Agreement without the other’s written consent, except to a successor to substantially all of its business, and any other purported assignment is void. Neither Party is liable for delay or failure caused by events beyond its reasonable control, other than payment obligations. The Parties are independent contractors. Notices shall be in writing and delivered by courier or by email with confirmation to the addresses above, and are effective on receipt. If any provision is held unenforceable, it shall be enforced to the maximum extent permitted and the remainder shall continue in effect. This Agreement may be signed electronically and in counterparts, each of which is an original and all of which together are one instrument, and the electronic execution record, timestamps and document fingerprints kept by the signing platform are conclusive evidence of its execution. Each person signing represents that they are authorized to bind the Party for whom they sign.
Signatures
Service provider · Customer