This MASTER PROFESSIONAL SERVICES AGREEMENT[KAA1](“MPSA”)[KAA2]is entered into[KAA3]as of[KAA4] ______, 200_, is by and between[KAA5]Widget Corporation[KAA6] ("Widget") and ______, (“Vendor[KAA7]”) and provides the terms and conditions[KAA8]pursuant to[KAA9] which Vendor agrees to provide to Widget services (the “Services”)[KAA10] described in the consecutively numbered statements of work (“Statements of Work”)[KAA11] that are attached hereto[KAA12][KAA13] as ExhibitA[KAA14] and incorporated by reference herein[KAA15].[KAA16]
1.0C[KAA17]ONTRACTOR(S)[KAA18]; STAFFING.
1.1Generally.[KAA19]Each individual performing Services for Widgetpursuant to[KAA20] this MPSA is referred to herein as a "Contractor".[KAA21] Widgetwill have the right to[KAA22] request and receive[KAA23] relevant background information and credentials[KAA24] in the possession of Vendor concerning personnel performing, or proposed by Vendor to perform[KAA25], Services. In the event that[KAA26]Widget notifies Vendor that any Contractors performing Services hereunder[KAA27][KAA28] are found to be unacceptable to Widget, Vendor shall promptly take appropriate corrective actions[KAA29] and replace such[KAA30] Contractors with similarly qualified Contractors. Vendor shall remain[KAA31]fully[KAA32] liable for the acts and omissions of all Contractors.[KAA33] All Services provided hereunder[KAA34]shall be performed[KAA35] in the United States.[KAA36]
1.2Independent Contractor. It is the express[KAA37]intention[KAA38] of the parties that[KAA39] Vendor and each Contractor are independent contractors and are not employees, agents, joint venturers or partners of Widgetfor purposes of any federal, state or local income, employment or other[KAA40] taxes[KAA41], or for any other purposes, including, for purposes of participation in and eligibility for[KAA42] benefits under[KAA43] any employee benefit or compensation plan, program or arrangement[KAA44] offered by Widget or its affiliates (collectively[KAA45], “Widget Benefits”)[KAA46]. Vendor shall inform[KAA47] all Contractors that no employment relationship between themselves[KAA48] and Widgetexists, is intended or should be construed[KAA49][KAA50], and that no Widget Benefits will be provided by[KAA51]Widget[KAA52].
1.3Relationship Management; Staffing. Vendor[KAA53]: (a) shall appoint a qualified member of its staff[KAA54]to act as a manager of Vendor’s relationship with Widget[KAA55] and as primary liaison between Vendor and Widgetfor all mattershereunder[KAA56] (the[KAA57] “Relationship Manager[KAA58]”); and (b) shall not remove or redeploy[KAA59] any individual[KAA60] Contractorswhich[KAA61]Widget deems to be important to the[KAA62] continuity of the project[KAA63]outlined in the Statement of Work (collectively referred to, with the Relationship Manager, as “Key Vendor Contractors[KAA64]”) without the prior written consent of Widget, unless such[KAA65]Key Vendor Contractors[KAA66] leave the employment of Vendor[KAA67].
2.0TERM AND TERMINATION.
2.1Term; Termination. Vendor shall begin providing Services to Widgetpursuant to[KAA68] this MPSA on the date set forth[KAA69] in the Statement of Work[KAA70].[KAA71]This MPSA will terminate[KAA72] immediately upon the request of Widget[KAA73]. Each Statement of Work[KAA74]will terminate on the earliest of[KAA75]: (a) Vendor’s successful completion of all Services and, to the extent[KAA76] there are any Deliverables, Widget's Acceptance[KAA77] of all such[KAA78] Deliverables; (b)the[KAA79] occurrence of any termination event specifically[KAA80] provided in such[KAA81] SOW; (c)subject to S[KAA82]ection 2.2.2[KAA83], termination of this MPSA in its entirety[KAA84]; and (d)immediately upon the request of Widget.
2.2Effect of Termination; Survival.
2.2.1U[KAA85]pon[KAA86]termination[KAA87] of this MPSA or any Statement of Work:[KAA88] (a) Widget[KAA89]shallpay[KAA90] Vendor for all[KAA91]acceptable[KAA92] Services performed, and Deliverables Accepted[KAA93] (if any), as applicable[KAA94], up to the date of the notice of termination[KAA95]; and (b) Vendor shall promptly, at no cost to Widget: (i) refund[KAA96] to Widgetthe pro-rata portion of[KAA97] any prepaid and unearned fees[KAA98]; and (ii) return or destroy Widget's Confidential Information (as such[KAA99] term is defined in the Nondisclosure Agreement[KAA100], "Confidential Information"[KAA101]).
2.2.2Unless otherwise specifically[KAA102]provided[KAA103], termination of a Statement of Work shall[KAA104] not affect any other Statements of Work in effect at the time of such[KAA105] termination[KAA106]. Termination of this MPSA shall[KAA107] terminate all Statements of Work in effect at the time of such[KAA108] termination[KAA109], unless such[KAA110] termination notice specifically[KAA111] identifies a Statement of Work that shall[KAA112] survive, in which case the terms of this MPSA shall govern[KAA113]such[KAA114] Statement of Work until termination thereof[KAA115] in accordance with S[KAA116]ection 2.1[KAA117]. The terms of each Statement of Work shall[KAA118] survive termination thereof[KAA119] with respect to each Service Order (as defined below)[KAA120]not terminated at the time of termination of the applicable Statement of Work[KAA121].
2.2.3The following Sections of this MPSA will survive termination of this MPSA: Sections 1.2, 2.2, 7.0, 8.0, 9.0 and 10.0.[KAA122]
3.0STATEMENTS OF WORK.
3.1Provision of Services; Statements of Work. Vendor agrees to[KAA123] provide to Widget, and to any Affiliate (as defined below)[KAA124] of Widget, Services under the terms and conditions of this MPSA[KAA125].[KAA126] For purposes of this MPSA, an “Affiliate” is any person or entity that controls, is controlled by or is under common control with the specified person.[KAA127] Vendor shall provide all Services in accordance with Statements of Work agreed to from time to time[KAA128] by Widget, or the applicable Affiliate of Widget, and Vendor. Each such Statement of Work shall be governed[KAA129] by the terms and conditions[KAA130] of this MPSA. Each Services Order[KAA131]shall be governed[KAA132] by the terms and conditions[KAA133] of the Statement of Work under which it is createdor, if no Statement of Work applies[KAA134], only the terms and conditions of this MPSA.
3.2Ordering Services. Statements of Work may[KAA135] contain descriptions of Services that Widgetmay order[KAA136]from Vendor from time to time[KAA137].[KAA138] In such cases, the Statement of Work shall describe[KAA139] the offered Services, the applicable fees[KAA140] and the term for which the Service may be purchased[KAA141] by Widget on the specified terms and conditions[KAA142].[KAA143] Widget may order such Services by delivering to Vendor a completed, executed[KAA144] counterpart[KAA145] of the Service Order in the form attached hereto as[KAA146]Exhibit B[KAA147] (a “Services Order”) or Widget’s standard form of purchase order. For Services that may be described[KAA148] in summary fashion, Widget may execute and deliver a Services Order[KAA149]or a purchase order that refers directly to this MPSA for the terms and conditions without a Statement of Work.[KAA150]
3.3Order of Precedence[KAA151]. In the event of[KAA152] a conflict between the terms and conditions[KAA153] of this MPSA and the terms and conditions of any Statement of Work, Services Order, purchase order or other notification submitted by Vendor, the terms and conditions of this MPSA shall prevail[KAA154], unless[KAA155]: (i)[KAA156]a provision of[KAA157] this MPSA explicitly[KAA158] provides that a Statement of Work may amend such[KAA159] provision, in which case such Statement of Work shall prevail[KAA160] solely as to such provision[KAA161], or (ii) a separate[KAA162] amendment to this MPSA is mutually[KAA163] agreed upon[KAA164] in writing[KAA165]. The terms and conditions of the Statement of Work shall control[KAA166] over any conflicting terms or conditions in any Services Order[KAA167] thereunder.
3.4 Fixed Fee Costs[KAA168]. Vendor will not[KAA169] increase the rates, however charged[KAA170], for Vendor’s personnel[KAA171] or the Services in the first two (2)[KAA172] years following the date of this MPSA or the effective date[KAA173] of the applicable Statement of Work, whichever is later, and any annual rate increase[KAA174] for any subsequent year will be negotiated[KAA175] between the parties in good faith but in no event[KAA176]will[KAA177]such[KAA178] annual rate increases exceed the lesser of (i) the increase in the Consumer Price Index for Urban Consumers, All Items, as issued by the Bureau of Labor Statistics, U.S. Department of Labor, over the prior[KAA179]twelve (12)[KAA180] month period or[KAA181] (ii) five percent (5%)[KAA182]. Vendor will provide Widget with written notice at least sixty (60) days in advance of any such rate increase.[KAA183] Furthermore[KAA184], Vendor will not charge[KAA185]Widget higher rates for personnel assigned to perform Services for Widget who are promoted by Vendor[KAA186] during the term of the applicable Statement of Work, without Widget’s prior written consent[KAA187].[KAA188] Vendor will disclose[KAA189] to Widgetupon its request[KAA190]the compensation[KAA191] Vendor pays its[KAA192] Contractors for performing the[KAA193] Services.[KAA194]
3.5No Obligation Until Execution. Either Party[KAA195] may provide to the other Party a consecutively numbered draft Statement of Work for proposed Services, but Widget will have no obligation with respect to any draft Statement of Work[KAA196]unless and until[KAA197] it is executed[KAA198] by Widget in accordance with S[KAA199]ection 10.5. By its execution of[KAA200] a Statement of Work,Services Order or purchase order, Vendor indicates[KAA201] its acceptance[KAA202] of the Statement of Work,Services Orderor purchase order and any specifications provided by Widget[KAA203],[KAA204] Vendor shall not[KAA205] assert any claim as to its inability to perform as required by such Statement of Work, Services Order, purchase order or this MPSA due to a physical or technical environment at Widget’s[KAA206] facility which[KAA207] is in accordance with such[KAA208] specifications or plans supplied in response to the request for proposals[KAA209], or as otherwise due to a condition that was known (or should have been known) by Vendor prior to[KAA210] Vendor’s execution[KAA211] of such[KAA212]Statement of Work[KAA213].
3.6Changes to the Services. Vendor shall not deviate from the terms and conditions[KAA214] of this MPSA by substitution, modification, deletion, or additions[KAA215] without the prior written approval or consent to waiver[KAA216] signed by a duly authorized representative[KAA217] of Widget.[KAA218] Changes to a Statement of Work,Services Orderor purchase order shall[KAA219] not be effective against Widget unless contained in a written change order, signed by a duly authorized officer[KAA220] of Widget, in the form attached hereto[KAA221] as Exhibit C (each a “Change Order”). Notwithstanding the foregoing[KAA222], Vendor may not[KAA223] decline to accept any Change Orders solely[KAA224]on the basis that[KAA225]such[KAA226] Change Order (i) reduces the cost of performance, provided that[KAA227] an equitable adjustment in compensation is made[KAA228] for Vendor’s reasonable out-of-pocket costs of any performance or preparation already undertaken or (ii) increases the cost or magnitude of performance, provided that[KAA229] the changes are reasonable[KAA230] in scope and a commensurate increase in compensation is mutually[KAA231]agreed upon[KAA232]. Unless the Services are described in a Statement of Work which has been executed and delivered by a duly authorized officer of Widget, or an Affiliate of Widget, and an authorized representative of Vendor and a Services Order ordering such Services has similarly been executed by authorized officers and/or representatives of both parties, as applicable, Vendor shall not be authorized to[KAA233] commence any other Services and Widgetshall have no obligation[KAA234] to pay Vendor for such Services, whether or not rendered.[KAA235]
4.0DELIVERABLES; ACCEPTANCE.[KAA236] Vendor shall deliver, in accordance with the terms and conditions of this MPSA,each applicable Statement of Work,Services Order, and purchase order, all those goods or services specified as deliverables under suchStatement of Work,Services Order or purchase order, including any items, milestones, goals or objectives as set forth in suchStatement of Workor Services Order to be delivered by Vendor as part of the Services, any and all related Work Product (as defined in Section 9.1) and all materials provided by Vendor in performance of the Services (collectively, "Deliverables").[KAA237]Widgetwill be entitled to[KAA238] perform an acceptance review to determine whether the relevant Deliverables comply with any and all[KAA239]requirements, specifications and criteria[KAA240](the "Acceptance Review[KAA241]")and if Widgetin its sole discretion determines that such Deliverables comply with the foregoing or otherwise decides in its sole discretion[KAA242] to accept the Deliverables, Widgetwill notify[KAA243] Vendor in writing[KAA244]of its acceptance of the Deliverables[KAA245] (“Acceptance”).[KAA246] Payment by Widget of any fees or other consideration to Vendor or use of the Deliverables[KAA247] by Widgetprior to[KAA248] Acceptance will not constitute Widget’s Acceptance of such[KAA249] Deliverables. Unless[KAA250] otherwise set forth[KAA251] in aStatement of Work, if the relevant Deliverable or any portion thereof[KAA252] fails tocomply with the Acceptance Review and is not accepted by Widget[KAA253]: (a)within five (5)[KAA254] business days (or such other time period as mutually[KAA255] agreed upon by the parties)[KAA256] after receipt[KAA257] of Widget’s notice of such[KAA258] failure, Vendor shall correct[KAA259] all deficiencies, at no additional cost to Widget; and (b)within thirty (30)[KAA260]calendar[KAA261] days after such corrections have been made[KAA262], Widgetwill review[KAA263] the relevant Deliverables. If the Deliverables still fail Acceptance Review, Vendor shall be granted[KAA264] an additional five (5) business days to correct the Deliverables, at no additional cost to Widget. If the Deliverables fail AcceptanceReview after the second iteration[KAA265], Widget may, in its sole discretion[KAA266]: (x) grant Vendor additional time to correct the outstanding deficiencies at no additional cost to Widget; or (y)without prejudice to any of Widget’s other rights and remedies under this MPSAor at law or in equity[KAA267], terminate the Statement of Work (or portion thereof), Services, purchase order or,at Widget’s discretion,[KAA268] this MPSA[KAA269] and (1) return the rejected Deliverables to Vendor in which case Vendor shall refund promptly any fees or other consideration paid to Vendor (if any)[KAA270]hereunder[KAA271]; or (2) retain the rejected Deliverables (in which case Widget's rights, title and interest[KAA272] in the rejected Deliverable shall[KAA273] be the same as if it had been accepted) and pay to Vendor a lesser value than would have been paid had the Deliverables been accepted, such[KAA274] lesser value to be mutually[KAA275] agreed to by the parties[KAA276].
Annotated with comments by Kenneth A. Adams, November 21, 2008
[KAA1]Use all lowercase letters; see MSCD 1.14.
[KAA2]Refer instead to “this agreement”; see MSCD 1.84.
[KAA3]Simpler to use “is dated”; see MSDC 1.15.
[KAA4]Inappropriate for a template; see MSCD 1.27.
[KAA5]Use just “between”; see MSCD 1.34.
[KAA6]Using all capitals helps party names to stand out; see MSCD 1.38.
[KAA7]Using the definite article “the” results in prose that is less stilted; see MSCD 1.73.
[KAA8]Redundancy; see MSCD 16.17.
[KAA9]Stodgy lawyerism; see MSCD 16.36.
[KAA10]Place defined-term parenthetical at the end of the definition; see MSCD 5.40.
[KAA11]Place defined-term parenthetical at the end of the definition; see MSCD 5.40.
[KAA12]Suggests that SOWs are agreed to at signing, but section 3.1 states that SOWs can be agreed to after signing. That should be made clearer.
[KAA13]Unnecessary; see MSCD 4.54.
[KAA14]Emphasizing exhibit references doesn’t help the reader; see MSCD 15.31.
[KAA15]Address this in the recitals and the body of the contract, not in the introductory clause.
[KAA16]Unnecessary; see MSCD 4.76.
[KAA17]Omit the zero after article numbers; see MSCD 3.8.
[KAA18]Awkward; see MSCD 16.50.
[KAA19]One space, not two, between sentences; see MSCD 15.50.
[KAA20]Stodgy lawyerism; see MSCD 16.36.
[KAA21]Better to lead with deal terms; see MSCD 3.49. And it would be more efficient to define "Contractor" using an integrated definition; see MSCD 5.33.
[KAA22]Use instead “may” to express discretion; see MSCD 2.86. But rendered moot by following comment.
[KAA23]Phrase as obligation; cf MSCD 2.82.
[KAA24]Use instead "resume"?
[KAA25]Awkward.
[KAA26]Wordy lawyerism; see MSCD 16.36.
[KAA27]Redundant, given the definition of Contractor.
[KAA28]Avoid "here-" and "there-" words unless they add reall value; see MSCD 12.99.
[KAA29]Redundant.
[KAA30]Don't use "such" instead of "this," "that," "these," or "those"; see MSCD 12.349.
[KAA31]Don’t use “shall” in language of policy; see MSCD 2.161. And "remain" is redundant.
[KAA32]Rhetorical emphasis; see MSCD 16.29.
[KAA33]Covered in section 8.
[KAA34]Avoid "here-" and "there-" words unless they add reall value; see MSCD 12.99.
[KAA35]Don’t use the passive voice to express obligations; see MSCD 2.15 and 2.78.
[KAA36]More efficient to build this concept into the definition of Services.
[KAA37]Rhetorical emphasis; see MSCD 16.29
[KAA38]Buried verb; see MSCD 16.7.
[KAA39]InappropriateUnnecessary; see MSCD 2.11. Instead, have Vendor acknowledge; see MSCD 2.190.
[KAA40]Needless elaboration; see MSCD 16.24.
[KAA41]Clearer to address explicitly in section 6.1.
[KAA42]Redundancy; see MSCD 16.17.
[KAA43]Omit?
[KAA44]Redundancy; see MSCD 16.17.
[KAA45]Clarify the scope of the definition; see MSCD 5.44.
[KAA46]This defined term is used only twice, so it's not worth defining; see MSCD 5.74.
[KAA47]In writing?
[KAA48]Say instead “any Contractor."
[KAA49]Could be structured more economically, as this refers to essence of previous sentence.
[KAA50]Redundancy; see MSCD 16.17.
[KAA51]Use the active voice; see MSCD 2.15. Also, use "will not be required to"; see MSCD 2.142.
[KAA52]Move to previous sentence.
[KAA53]Use colon only after full independent clause; see MSCD 3.23.
[KAA54]Why not use "Contractor"?
[KAA55]Redundant?
[KAA56]Be more specific—refer to performance of Services.
[KAA57]Need transitional language; see MSCD 5.52.
[KAA58]Used only once, so not worth defining; see MSCD 5.74.
[KAA59]Word choice.
[KAA60]Redundant.
[KAA61]Use “that”; see MSCD 11.27.
[KAA62]Omit extraneous "the"; see MSCD 16.49.
[KAA63]Only time this word is used; omit.
[KAA64]Used only once, so not worth defining; see MSCD 5.74.
[KAA65]Don't use "such" instead of "this," "that," "these," or "those"; see MSCD 12.349.
[KAA66]Using this defined term doesn't serve to make this clause (b) apply to anyone other than Contractors.
[KAA67]Redundant.
[KAA68]Stodgy lawyerism; see MSCD 13.36.
[KAA69]Stodgy lawyerism; see MSCD 13.36.
[KAA70]Use instead "SoW"? Also, this suggests that there will always be only a singled SOW; that wouldn't seem to be the case.
[KAA71]The preceding sentence seems unnecessary.
[KAA72]Rephrase as language of discretion.
[KAA73]Refer instead to giving notice, as Widget wouldn't be "requesting" anything. Also, specify that notice would be given to the Vendor.
[KAA74]Could be understood as meaning “all Statements of Work"; see MSCD 10.65.
[KAA75]It would be clearer to unbundle Unbundling these four components.
[KAA76]Use “if” instead; see MSCD 16.36.
[KAA77]Unnecessary defined term; see MSCD 5.74.
[KAA78]Don't use "such" instead of "this," "that," "these," or "those"; see MSCD 12.349.
[KAA79]Omit “the”; see MSCD 16.49.
[KAA80]Rhetorical emphasis; see MSCD 16.29.
[KAA81]Don't use "such" instead of "this," "that," "these," or "those"; see MSCD 12.349.
[KAA82]Use small “s”; see MSCD 3.75.
[KAA83]Moving text to this section from section 2.2.2 would allow you to delete this.
[KAA84]Redunddant.
[KAA85]Use "(a)" enumeration hierarchy; see MSCD 3.18.
[KAA86]Add "promptly."
[KAA87]What about payment for services remaining to be performed after termination?
[KAA88]Use full independent clause before colon; see MSCD 3.23.
[KAA89]But services might be performed for an affiliate.
[KAA90]Revise to specify payment of only amounts then unpaid.
[KAA91]What "all" means would depend on what's being terminated; revise accordingly.
[KAA92]This concept would be better addressed elsewhere.
[KAA93]Unnecessary defined term; see MSCD 5.74.
[KAA94]Redundant, given the "if any"?
[KAA95]Say instead "before termination."
[KAA96]What about with respect to Services remaining to be performed after termination?
[KAA97]Redundant, given reference to "unearned."
[KAA98]Too narrow, in that some payments might be for Deliverables?