Master Service Agreement Template
This Master Service Agreement (this “Agreement,”) dated on [Document.CreatedDate] (the Effective Date”) by and between [Sender.Company], a [Sender.State](type of legal entity), having its principal place of business at [Sender.StreetAddress] (the “Company”) and [Client.Company], a [Client.State](type of legal entity), having its principal place of business at [Client.StreetAddress] (the “Client”) who agrees to be bound by this Agreement.
In consideration of the mutual covenants and promises made by the parties of this Agreement, [Sender.Company] and [Client.Company] (to be referred to individually herein as “Party” and collectively as, the “Parties”) agree to the following:
1.1 Confidential Information” shall mean any non-public, proprietary information (whether or not patentable or copyrightable, and whether or not currently patented or copyrighted) which is owned or controlled by a Disclosing Party, whether in tangible or intangible form and including information that is derived through observation or examination of the Disclosing Party’s facilities or operations, including without limitation, the fact that any Party has entered into this Agreement or provided or obtained services from the other, trade secrets, know-how, designs, product samples, product formulations, prototypes, data, processes, formulas, methods, materials, analyses, reports, compilations, research notes, technology, manufacturing techniques, pricing, the identity of and information relating to services, equipment, procedures, customers, suppliers or employees, sales and marketing information, financial information and any other non-public business information.
1.2 Confidential Information shall not include information which (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party; (b) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party as evidenced by the Receiving Party’s contemporaneously written records; (c) is received by the Receiving Party from a third party on a non-confidential basis, unless the Receiving Party knows that the third party is bound by an obligation of confidentiality (contractual, legal, fiduciary or otherwise) to the Disclosing Party or any other party with respect to such information; or (d) is or was independently developed by the Receiving Party without reference to or reliance upon the Confidential Information received from the Disclosing Party as evidenced by the Receiving Party’s contemporaneously written records.
1.3 During the term of this Agreement, the Parties may exchange Confidential Information in furtherance of the performance of their respective duties under this Agreement. Any Party disclosing Confidential Information shall be referred to as the “Disclosing Party” and a Party receiving Confidential Information shall be referred to as the “Receiving Party.
1.4 The Receiving Party shall protect and hold in confidence all Confidential Information of the Disclosing Party, using the same degree of care it uses to protect its own valuable information, providing it shall use no less than reasonable care. The Receiving Party shall limit its disclosure of the Confidential Information to its directors, officers, employees, Affiliates and/or subcontractors (collectively referred to herein as “Representatives”) who have a “need to know” such Confidential Information to carry out the purpose of this Agreement, and who are subject to legally enforceable obligations in connection with such Confidential Information, which are no less restrictive than those imposed on the Receiving Party under this Agreement.
The Receiving Party also shall not attempt to copy the design, samples or prototypes, or any components thereof, of any Confidential Information for any purpose. The Receiving Party shall be responsible for any breach of this Agreement by it or its Representatives.
1.5 Notwithstanding anything to the contrary contained in this Agreement, Confidential Information may be disclosed by a Receiving Party as required by applicable law or legal process, provided the Receiving Party notifies the Disclosing Party prior to such disclosure, except where such notice is impracticable or prohibited by law, so as to afford the Disclosing Party a reasonable opportunity to object or seek an appropriate protecting order with respect to such disclosure. Notwithstanding the foregoing, Confidential Information that is disclosed pursuant to applicable law or legal process shall remain Confidential Information for all other purposes of this Agreement.
1.6 At the written request of the Disclosing Party, the Receiving Party shall return or destroy, at the Disclosing Party’s option, all Confidential Information, provided, however that the Receiving Party may retain one copy of any such Confidential Information as necessary in the ordinary course of business.
2. PERFORMANCE OF SERVICES
2.1 The Parties agree that Client may obtain services through the execution of a Work Order, which will be subject to the terms of this Agreement. Company warrants that all Services provided by it will be performed in good faith, with reasonable skill, care and diligence. If any terms of a Work Order conflict with any terms or conditions of this Agreement, the terms of this Agreement shall govern, unless otherwise expressly stated in the applicable Work Order.
5. ESTIMATED DELIVERY DATES AND TURNAROUND TIMES
5.1 Delivery dates and turnaround times stated in any Work Order are estimates and do not constitute a commitment by Company. Nevertheless, Company shall make commercially reasonable efforts to meet the estimated delivery dates and turnaround times as stated in each Work Order.
5.2 Unless a different delivery method is specific in writing, notice of completion of deliverables shall be sent by email or via other electronic means, where possible. Deliverables shall be made to the attention of the persons indicated by Client in the Work Order, promptly after the Service is completed.
5.3 Company shall not be responsible for any delays in the timely progression of the Services to the extent that any such delay is attributable to Client action or inaction. During the performance of the Services, Client shall use commercially reasonable efforts to provide any approvals required to be given to Company in a timely manner.
6. TRANSFER OF PROPERTY AND INTELLECTUAL PROPERTY RIGHTS
6.1 Company shall be entitled to store, aggregate and use any data generated as a result of the performance of Services. Data means anything information inferred from the furnishing of the Services related to this agreement.
6.2 Client hereby acknowledges and agrees that any and all inventions, discoveries, trade secrets, know-how, improvements, methods, mystems, software programs, practices, procedures and processes, and proprietary materials including but not limited to, structural and functional information and other data, whether or not patentable or copyrightable (“Intellectual Property”) that is owned or controlled by Company as of the Effective Date shall be the exclusive property of the Company.
7. LIMITED WARRANTIES AND RESPONSIBILITIES
7.1 All Services furnished under this agreement shall be performance with a commercially reasonable degree of care. However, Client acknowledges that the quality of Services may be impacted by outside factors outside of the Client’s control. As such, Client should independently verify the accuracy of Services and any related deliverables.
7.2 Each Party hereby agrees that either party (i) has full power and authority to enter into this Agreement and the undersigned is the duly authorized representative; (ii) agrees that this Agree is binding upon execution; and (iii) performance of this Agreement does not conflict with any other legal obligation of either Party.
8. REMEDY FOR INSUFFICIENT SERVICES
8.1 In the event that any Services are improperly or inadequately furnished by Company, Client’s sole and exclusive remedy shall be for Client to either: (i) request that Company re-performan the improper or deficient Service(s), or (ii) request a refund of all amounts paid to Company for the inadequately performed Service(s).
8.2 Objections to performance of Service(s) must be made within thirty (30) days after Client receives the Services.
9. FORCE MAJEURE
9.1 Neither Party shall be held liable for delays, errors, damages or other problems cause by events or circumstances which are unforseen or beyond such Party’s reasonable control.
11. TERM AND TERMINATION
11.1 This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year unless otherwise terminated as permitted by this Section.
11.2 A Party may terminate this Agreement or any Work Order at any time for any reason so long as such Party provides a minimum of sixty (60) days prior written notice to the other Party. This Agreement and all relevant Work Orders may be terminated by either Party effective immediately upon written notice if (i) the other Party commits a material breach of any term of this Agreement or any Work Order which breach is irremediable or, if such breach is remediable, such breach remains uncured thirty (30) days after written notice of such breach (or five (5) days in the case of a failure to make payment of any invoice when due) is received; or (ii) the other Party files a petition or is subject to an involuntary petition filed against it under the U.S. Bankruptcy Code, or any successor statute.
11.3 In the event that this Agreement is terminated while any Work Orders are in force at that time, such Work Orders shall remain in effect and subject to the terms of this Agreement. The termination of any Work Order shall not cause the termination of any other Work Order or this Agreement, which shall remain in full force and effect unless and until terminated in accordance with this Section.
11.4 Upon termination of any Work Order, Client shall pay the Company within thirty (30) days following the effective date of termination, any and all amounts due and owing for Services performed and documented expenses incurred up to the effective date of termination.
11.5 Upon termination of this Agreement as permitted by this Section, neither Party shall have any further obligations except for (i) obligations accruing prior to the date of termination, and (ii) obligations, promises, or covenants set forth herein or in any unterminated Work Order that by their nature are meant to extend beyond the Term. The provisions of this Section together with any other section which is necessary for the interpretation or enforcement of this Agreement shall survive the expiry or termination of this Agreement howsoever arising.
13. GOVERNING LAW
13.1 This Agreement shall be governed by and construed in accordance with the laws of the State of [Sender.State], without regard to its conflict of law provisions. It is the intention of the Parties that in the event disputes should arise over the interpretation and application of this Agreement, the Parties will first attempt to settle such disputes by negotiation and consultation between senior executives of the respective Parties.
14.1 Independent Contractor
It is understood and agrees that Company shall perform its duties as an Independent Contractor and not as an agent, employee, partner or join venture of Client. Neither Party shall have the authority to bind or commit the other Party in any manner whatsoever and shall not, at any time, hold itself out to third parties as having authority to enter into or incur any commitments, expenses, liabilities or obligations of any nature on behalf of the other Party except as permitted in this Agreement, a Work Order, or other document expressly providing such authority.
No provision of this Agreement or related Work Orders may be amended, modified, discharged, or terminated, except by an express written agreement that identifies, with particularity, the amended, modified, added, discharged or terminated provision and is signed by an authorized representative of each of the Parties.
Any notice required or permitted to be given under this Agreement by either Party shall be in writing and shall be deemed given on the date received if delivered personally, electronically or by reputable overnight delivery service, or three (3) days after the date postmarked if sent by registered or certified mail, return receipt requested, postage prepaid to the addresses stated on the first page of this Agreement.
A waiver of any term, provision or condition of this Agreement or Work Order shall be effective only if it is in writing and no waiver, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver or estoppel of any such term, provision or condition or any other term of this Agreement or a Work Order. No failure or delay by either Party in exercising any right or remedy under this Agreement shall constitute a waiver of such right, nor shall it prevent or restrict its further exercise.
If a final judicial determination is made that any provision of this Agreement is an unenforceable restriction against either Party, the provisions hereof will be rendered void only to the extent that such judicial determination finds such provisions unenforceable; and, to the extent possible, such unenforceable provisions shall be deemed replaced by provisions that are valid and enforceable and that come closest to expressing the intention of such invalid or unenforceable provisions, effective as of the Effective Date. A judicial determination that any provision of this Agreement is unenforceable will not render the entire Agreement unenforceable, but rather this Agreement will continue in full force and effect absent any unenforceable provision to the maximum extent permitted by law.
14.6 Entire Agreement
This Agreement and any applicable Work Order sets forth the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior negotiations, agreements, representations, understandings, and commitments with respect thereto.