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A reusable master services agreement for a Customer engaging a Supplier to provide recurring or project-based services under statements of work, suitable for Delaware, New York, or California law.
Delaware, United States · New York, United States · California, United States · United States (Federal)
Highlighted blanks are the details your parties fill in.
This agreement is dated the date on which it is signed by the last of the parties.
This agreement is made between [TO BE CONFIRMED — Customer] (the "Customer") and [TO BE CONFIRMED — Supplier] (the "Supplier").
"Services" means [TO BE CONFIRMED — Services].
"Statement of Work" means [TO BE CONFIRMED — Statement of Work].
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"Change Order" means [TO BE CONFIRMED — Change Order].
"Customer Materials" means [TO BE CONFIRMED — Customer Materials].
"Supplier Materials" means [TO BE CONFIRMED — Supplier Materials].
"Fees" means [TO BE CONFIRMED — Fees].
"Payment Period" means 30 days after receipt of an undisputed invoice.
"Expense Policy" means Customer will reimburse reasonable, documented, pre-approved out-of-pocket expenses at cost.
"Late Charge Rate" means 1.0% per month or the maximum rate permitted by law, if lower.
"Initial Term" means [TO BE CONFIRMED — Initial Term].
"Renewal Term" means successive one-year periods.
"Renewal Non-Renewal Notice Period" means 30 days.
"Cure Period" means 30 days.
"Transition Period" means 90 days.
"Confidential Information" means non-public information disclosed by or on behalf of a party that is marked confidential or that a reasonable person would understand to be confidential given its nature or the circumstances of disclosure.
"Residuals Position" means not permitted.
"Work Product" means deliverables, reports, documentation, and other materials specifically created by Supplier for Customer under a Statement of Work, excluding Supplier Materials.
"Personal Data" means [TO BE CONFIRMED — Personal Data].
"Security Requirements" means reasonable administrative, technical, and physical safeguards appropriate to the nature of the Personal Data and the risks presented.
"Liability Cap" means [TO BE CONFIRMED — Liability Cap].
"Cap Measurement Period" means 12 months preceding the event giving rise to liability.
"Carved-Out Claims" means a party's payment obligations, breach of the Confidentiality clause, infringement or misappropriation of the other party's intellectual property rights, and liabilities that cannot lawfully be limited.
"Insurance Requirements" means commercially reasonable insurance customary for the Services, including commercial general liability and, where appropriate, professional liability and cyber liability coverage.
"Non-Solicitation Period" means 12 months after the end of the applicable Statement of Work.
"Force Majeure Event" means an event beyond a party's reasonable control, including natural disaster, epidemic, war, terrorism, civil unrest, labor dispute not limited to that party's workforce, governmental action, or widespread utility or telecommunications failure.
"Governing Law" means the law of [TO BE CONFIRMED — Governing Law].
"Exclusive Forum" means [TO BE CONFIRMED — Exclusive Forum].
"Arbitration Rules" means the Commercial Arbitration Rules of the American Arbitration Association.
"Order of Precedence" means the applicable Statement of Work, this agreement, and then any other document incorporated by reference; provided that a Statement of Work overrides this agreement only if it expressly identifies the provision overridden.
Supplier will perform the Services described in each Statement of Work. Each Statement of Work becomes part of this agreement when signed by both parties. If there is a conflict among the contract documents, the Order of Precedence applies.
In each Statement of Work, Customer and Supplier will identify an individual with responsibility and authority to serve as that party's key point of contact and decisionmaker and another individual with more senior executive authority to serve as that party's escalation contact. Supplier's project lead will provide regular updates to Customer's project lead on the status of the Services and Deliverables, including delivery dates and other timeframes in the applicable Statement of Work. If either party believes the other has failed to perform a required action or the parties disagree about acceptance, a Change Order, or another process, their project leads will meet and discuss the issue in good faith. If they cannot resolve it within 10 days, either party may request a meeting of the escalation contacts, who will use reasonable and good-faith efforts to resolve the matter within 10 days after the request.
Neither party is required to perform a change to a Statement of Work unless the parties agree it in a written Change Order. A Change Order must state the change to scope, Fees, schedule, and any other affected terms.
Supplier will perform the Services in a professional and workmanlike manner, using personnel with appropriate skills and experience and in accordance with the applicable Statement of Work.
Customer will provide timely access to information, systems, personnel, decisions, and approvals reasonably needed for Supplier to perform the Services. Supplier is not responsible for delay or failure caused by Customer's failure to do so, and the parties will reasonably adjust affected schedules and Fees through a Change Order where appropriate.
Customer will review each Deliverable against the acceptance criteria in the applicable Statement of Work within 10 business days after delivery. Customer will either accept it or give Supplier a written notice identifying material nonconformities. Supplier will promptly correct documented nonconformities and resubmit the Deliverable. A Deliverable is deemed accepted if Customer does not timely reject it or uses it in production other than for testing.
Customer will pay the Fees in accordance with the applicable Statement of Work. Supplier may invoice as stated in that Statement of Work. Customer will pay each undisputed invoice within the Payment Period. Customer will notify Supplier promptly of a good-faith dispute and pay the undisputed portion when due.
Customer has no obligation to pay Fees or expenses that Supplier invoices more than 120 days after the Fees or expenses were incurred.
Customer will reimburse Supplier only as provided in the Expense Policy and only after Supplier supplies reasonable supporting documentation.
Fees exclude taxes. Customer is responsible for sales, use, value-added, and similar transaction taxes arising from the Services, excluding taxes based on Supplier's net income, employment, or property. Supplier will separately state applicable taxes on its invoices.
Supplier may charge interest on undisputed overdue amounts at the Late Charge Rate, calculated from the due date until payment. Customer will reimburse reasonable costs of collecting undisputed overdue amounts.
This agreement begins on the agreement date and continues for the Initial Term. It then renews for successive Renewal Terms unless either party gives notice of non-renewal at least the Renewal Non-Renewal Notice Period before the end of the then-current term. Each Statement of Work continues according to its terms unless ended under this agreement.
Either party may terminate this agreement or an affected Statement of Work by written notice if the other party materially breaches it and fails to cure the breach within the Cure Period after receiving written notice describing the breach. Either party may terminate this agreement immediately by written notice if the other party becomes insolvent, makes an assignment for creditors, or enters liquidation or bankruptcy proceedings that are not dismissed within 60 days, to the extent permitted by law.
Either party may terminate this agreement or a Statement of Work for convenience by giving the other party at least 30 days' written notice.
If this agreement expires or is not renewed, each Statement of Work then in effect continues until it is completed or ends under its own terms, and this agreement continues to apply to that Statement of Work until then. If either party terminates this agreement, each Statement of Work then in effect terminates at the same time, unless the terminating party's notice states that a specified Statement of Work continues, in which case this agreement continues to apply to that Statement of Work until it ends.
On termination or expiration, Customer will pay Supplier for Services properly performed and approved expenses properly incurred through the effective date. Each party will return or destroy the other party's Confidential Information as required by the Confidentiality clause. Provisions that by their nature should survive will survive, including payment obligations, the Confidentiality clause, intellectual property provisions, indemnities, limitations of liability, and the General Terms clause.
Each party may retain the other party's Confidential Information in accordance with its standard backup or record-retention policies maintained in the ordinary course of business or as required by applicable law, and the Data Protection and Security and Confidentiality clauses will continue to apply to retained Confidential Information.
At Customer's written request made before termination or expiration, Supplier will provide reasonable transition assistance for the Transition Period at the rates in the applicable Statement of Work or, if no rates apply, at Supplier's then-current rates. The parties will cooperate to minimize disruption and protect Confidential Information.
Each receiving party will protect the disclosing party's Confidential Information using at least reasonable care, will use it only to perform or receive the Services and exercise rights under this agreement, and will disclose it only to personnel, professional advisers, and subcontractors who need to know it and are bound by confidentiality obligations at least as protective as this clause.
Confidential Information does not include information that the receiving party can document: is or becomes public through no breach of this agreement; was lawfully known to it without restriction before disclosure; is lawfully received from a third party without restriction; or is independently developed without use of the disclosing party's Confidential Information.
A receiving party may disclose Confidential Information when required by law, subpoena, or court order, provided it gives prompt notice to the disclosing party when legally permitted and reasonably cooperates, at the disclosing party's expense, with efforts to seek protective treatment.
A receiving party may disclose the disclosing party's Confidential Information to its employees, advisers, contractors, and representatives who have a need to know it, but only if each is bound by confidentiality obligations at least as protective as this Confidentiality clause; the receiving party remains responsible for each person's or entity's compliance with this Confidentiality clause.
The receiving party may not use the disclosing party's Confidential Information retained in the unaided memory of its personnel except as permitted by this agreement. The Residuals Position is not permitted.
Customer retains all rights in the Customer Materials. Customer grants Supplier a non-exclusive, non-transferable, worldwide, royalty-free license during the applicable Statement of Work to use the Customer Materials solely as needed to perform the Services.
Supplier may access and use Customer systems solely to the extent Customer expressly authorizes in a Statement of Work or otherwise in writing, as necessary to provide the Services to Customer and for no other purpose, and in strict accordance with applicable access controls, Customer policies, and Customer's instructions. If Supplier is granted physical access to Customer facilities, Supplier may access them solely to provide the Services and in strict accordance with Customer policies and instructions. As between the parties, Supplier is solely liable for its acts or omissions, including those of its personnel and subcontractors, while at a Customer facility, including those resulting in personal injury or property damage.
Supplier retains all rights in the Supplier Materials. To the extent Supplier Materials are incorporated in a Deliverable, Supplier grants Customer a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to use, reproduce, display, perform, and modify those Supplier Materials solely as incorporated in and necessary to use the Deliverable for Customer's internal business purposes.
Customer may, but is not required to, give Supplier feedback, in which case Customer gives feedback "AS IS." Supplier may use all feedback freely without any restriction or obligation. In addition, Supplier may collect and analyze usage data and may freely use usage data to maintain, improve, and enhance Supplier's products and services without restriction or obligation; however, Supplier may share usage data with others only if the usage data is aggregated and does not identify Customer.
Upon Customer's payment of all applicable Fees, Supplier assigns to Customer all right, title, and interest in the Work Product. To the extent any Work Product cannot be assigned, Supplier grants Customer an exclusive, perpetual, irrevocable, worldwide, transferable, sublicensable, fully paid-up license to use, reproduce, modify, distribute, display, perform, and create derivative works from it. Supplier will obtain from its personnel and subcontractors the rights needed to give effect to this clause.
The licenses granted to Customer under this agreement constitute licenses to intellectual property subject to Section 365(n) of Title 11 of the United States Code, and Customer is entitled to all rights and benefits under that section in accordance with its terms.
Supplier may incorporate third-party materials into Deliverables only if allowed in the applicable Statement of Work and authorized by Customer in writing, including by email. Supplier is responsible for obtaining all rights, licenses, consents, approvals, and authorizations necessary to use and incorporate third-party materials procured by Supplier and incorporated into Deliverables, including rights necessary for Customer to use Deliverables under this agreement. Customer is responsible for obtaining all rights, licenses, consents, approvals, and authorizations necessary to use and incorporate third-party materials procured by Customer and incorporated into Deliverables.
“Open Source” means open source code or libraries of any type. If Supplier includes Open Source in a Deliverable, Supplier will list each individual item, including other code incorporated in it, and provide complete related license and copyright attribution information. Unless the applicable Statement of Work specifically provides otherwise, Supplier will not incorporate into or include with any Deliverable Open Source licensed under a copyleft license that requires source code for that code, a modification or derivative work, or other code combined with or linked to it to be made available under that same license. Customer's license to use Open Source is the applicable Open Source license to the extent that license requires.
Supplier will process Personal Data only on Customer's documented instructions, only as necessary to perform the Services, and in accordance with applicable data protection law. Supplier will implement and maintain the Security Requirements, restrict access to authorized personnel, and require equivalent protections from permitted subcontractors. The parties will enter into a data processing addendum where required by applicable law.
Supplier will notify Customer without undue delay after discovering a confirmed unauthorized access to, acquisition of, use of, or disclosure of Personal Data or Customer systems under Supplier's control. Supplier will reasonably investigate, mitigate, and cooperate with Customer regarding the incident. Supplier will not notify affected individuals or regulators about the incident without Customer's prior written approval unless law requires notice.
Each party represents that it has authority to enter into this agreement. Supplier warrants that it will perform the Services in accordance with the Performance clause. Customer's exclusive remedy, and Supplier's entire liability, for breach of that warranty is for Supplier to reperform the nonconforming Services or, if reperformance is not commercially reasonable, refund the Fees paid for those nonconforming Services.
Supplier represents and warrants that the Services and all Deliverables will be free of viruses, malicious code, and similar harmful materials, and features enabling disabling, timing out, remote monitoring, or collection of data that are not expressly disclosed in the applicable Statement of Work.
Supplier represents and warrants that it has and will have all necessary rights to grant the licenses and make the assignments set out in this agreement, including necessary proprietary-rights agreements with its personnel and subcontractors and licenses with its licensors. Supplier further represents and warrants that neither the Services nor Deliverables, nor any element of them, will infringe a third party's intellectual property rights, incorporate third-party confidential information, or be subject to restrictions, liens, pledges, security interests, encumbrances, or encroachments.
Except for the express warranties in this agreement, each party disclaims all warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Supplier does not warrant that the Services will be uninterrupted or error-free.
Supplier will defend Customer and its officers, directors, and employees against a third-party claim alleging that the Services or Deliverables, when used as permitted under this agreement, infringe a US patent, copyright, trademark, or trade secret, and will indemnify them against damages, costs, and reasonable attorneys' fees finally awarded or agreed in settlement. Supplier has no obligation to the extent a claim arises from Customer Materials, Customer's modification or combination not authorized by Supplier, or use contrary to this agreement. If such a claim is likely, Supplier may procure the right to continue use, modify or replace the affected item, or terminate the affected Statement of Work and refund prepaid Fees for the unusable portion.
Customer will defend Supplier and its officers, directors, and employees against a third-party claim arising from Supplier's authorized use of Customer Materials or Customer's written instructions, and will indemnify them against damages, costs, and reasonable attorneys' fees finally awarded or agreed in settlement, except to the extent caused by Supplier's breach of this agreement, negligence, or willful misconduct.
A party seeking indemnification will promptly notify the indemnifying party of the claim, permit the indemnifying party to control the defense and settlement, and provide reasonable cooperation at the indemnifying party's expense. The indemnifying party may not settle a claim in a manner that admits fault by, imposes liability on, or restricts the indemnified party without that party's prior written consent, not to be unreasonably withheld.
To the maximum extent permitted by law, neither party is liable to the other for indirect, incidental, special, consequential, exemplary, or punitive damages, or for lost profits, revenue, goodwill, or data, arising out of or related to this agreement, even if advised of the possibility of those damages.
Except for Carved-Out Claims, each party's aggregate liability arising out of or related to this agreement will not exceed the Liability Cap, measured over the Cap Measurement Period.
Supplier will maintain the Insurance Requirements during the term and, on reasonable request, provide certificates of insurance evidencing that coverage. Maintaining insurance does not limit Supplier's obligations or liability under this agreement.
Supplier is an independent contractor and is solely responsible for its personnel, including compensation, benefits, supervision, taxes, and legal compliance. Nothing in this agreement creates employment, partnership, joint venture, fiduciary, or agency relationship between the parties.
Each party will comply with laws applicable to its performance under this agreement, including applicable anti-bribery, sanctions, and export-control laws. Neither party will require the other to take an action that would violate applicable law.
During the term and the Non-Solicitation Period, neither party will knowingly solicit for employment an employee of the other party who materially participated in the Services, except through general advertisements not targeted at that employee or where the employee independently responds without solicitation.
Neither party may use the other party's name, logo, or marks in publicity, marketing, or customer lists without the other party's prior written consent.
Notices under this agreement must be in writing and delivered by personal delivery, nationally recognized overnight courier, or certified mail, return receipt requested, to Customer at [TO BE CONFIRMED — Customer Notice Address] and to Supplier at [TO BE CONFIRMED — Supplier Notice Address], or to another address notified in accordance with this clause. Notice is effective on receipt, except that a refusal to accept delivery is effective when delivery is attempted.
Neither party may assign this agreement without the other party's prior written consent, except to an affiliate or in connection with a merger, reorganization, sale of substantially all assets, or change of control, provided the assignee agrees in writing to be bound by this agreement. Supplier may use subcontractors to perform the Services but remains responsible for their performance and compliance with this agreement.
Neither party is liable for delay or failure to perform caused by a Force Majeure Event, except for payment obligations. The affected party will promptly notify the other party, use reasonable efforts to mitigate the effect, and resume performance when practicable. If a Force Majeure Event continues for 30 days and materially prevents performance, either party may terminate the affected Statement of Work by written notice.
The parties will first attempt in good faith to resolve a dispute through escalation to their respective business representatives. If unresolved, either party may bring the dispute exclusively in the Exclusive Forum. Each party consents to that forum's jurisdiction and venue.
This agreement and any dispute arising out of or related to it are governed by the Governing Law, without regard to conflict-of-laws principles that would require applying another jurisdiction's law.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY STATEMENT OF WORK.
This agreement, including each Statement of Work, is the entire agreement on its subject and supersedes prior or contemporaneous understandings on that subject. An amendment or waiver is effective only if in writing and signed by the party against whom it is enforced. If a provision is unenforceable, it will be enforced to the maximum extent permitted and the remaining provisions remain in effect. A waiver is not a continuing waiver. This agreement may be signed in counterparts and by electronic signature, each of which is deemed an original and together form one agreement.
Supplier expressly rejects any terms included in Customer's purchase order or similar document, which may only be used for accounting or administrative purposes.
Except where this agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.
A breach of the Confidentiality clause or violation of a party's intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. Upon an actual or threatened breach of the Confidentiality clause or violation of a party's intellectual property rights, the non-breaching party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.