Navigating the Master Services Agreement

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A Master Services Agreement (“MSA”) is a contract that outlines the terms and conditions under which a company agrees to provide services, goods, and/or equipment to a client. It serves as a foundational document that establishes the overall framework for the long-term relationship between the two parties. Rather than creating a new contract for each project, the MSA streamlines the process by laying out general terms and provisions, including those relating to the scope of work, payments/billing, termination, intellectual property rights, warranties, indemnification, confidentiality, dispute resolution, and others. Thereafter, the parties are left to enter into Statements of Work, Purchase Orders, Work Orders, and other similar agreements (collectively “Orders”) for specific projects or assignments, which are governed by the MSA.   

Pros and Cons of MSAs

When evaluating whether to use or enter into a MSA, you should be mindful of the corresponding pros and cons so that you can make an informed decision on what is best for your company.

Some of the advantages, benefits, or positive aspects of using a MSA are as follows:

  1. Efficiency: MSAs streamline the contract negotiation process, saving time and resources by establishing standardized terms and conditions that can be applied to multiple projects.
  2. Consistency: The consistent terms in a MSA help maintain uniformity across different projects, ensuring that key contractual elements remain the same.
  3. Flexibility: While providing a standardized framework, MSAs can still be flexible enough to accommodate multiple different types of projects and services by incorporating specific Orders or project addendums.
  4. Relationship Building: Establishing a long-term MSA can foster a stronger relationship between the service provider and the client by creating a foundation of trust and understanding.
  5. Cost Savings: Since the negotiation process is streamlined, legal costs associated with drafting and reviewing contracts for each project may be reduced.

Some of the disadvantages, drawbacks, or negative aspects of using a MSA are as follows:

  1. Rigidity: The standardized terms in a MSA may be too rigid for certain projects, requiring additional negotiations or modifications for specific circumstances.
  2. Risk of Misalignment: If not carefully drafted, a MSA may not fully align with the specific requirements of certain projects, leading to potential disputes or misunderstandings.
  3. Upfront Investment: Drafting a comprehensive MSA requires an initial investment of time and resources, which may be seen as a burden, especially for smaller projects.
  4. Complexity: MSAs can become complex documents, and parties may overlook important details or misunderstand certain provisions, leading to complications later on.
  5. No One-Size-Fits-All: MSAs are not suitable for every type of business relationship. In some cases, where projects are highly unique or short-term, a more customized approach might be preferable.

Ultimately, the effectiveness of a MSA depends on the nature of the business relationship, the industry, and the willingness of both parties to adhere to the terms outlined in the agreement. Careful drafting and consideration of the specific needs of the parties involved can help maximize the benefits of a MSA while mitigating potential drawbacks. By establishing a comprehensive MSA, both parties can save time and resources when entering into subsequent projects or work agreements, as they can refer back to the overarching terms agreed upon in the master document. 

Checklist for Drafting/Reviewing

Creating or reviewing a MSA is a crucial task that requires careful consideration of various legal, business, and operational aspects. Here is a checklist to guide you through the process:

  1. Introduction, Overview, and Definitions
  • Ensure accurate identification of the parties involved, including contact information.
  • Clearly define key terms used throughout the agreement or that need specifically defined.
  1. Term
  • Define the duration of the agreement.
  1. Scope of Work
  • Define the work or services to be provided in detail or attach the same as an Exhibit.
  • Specify any limitations or exclusions.
  1. Performance Metrics
  • Define measurable performance metrics and service levels, if applicable, including details of the accepted level of quality of deliverables.
  1. Payment and Billing
  • Outline the payment structure, method, and schedule, including rates and fees.
  • Clarify payment schedules, invoicing procedures, and any penalties for late payments.
  1. Warranties
  • Clearly state any warranties provided by the service provider.
  • Specify the duration and remedies for breaches of warranties.
  1. Changes/Change Orders
  • Outline the process for handling changes to the scope of work, including approvals and associated costs.
  1. Force Majeure
  • Define the circumstances under which either party is excused from performance due to events beyond its control.
  1. Liability and Indemnification
  • Define responsibilities and liabilities in the case of breaches, claims, or damages.
  • Identify any limitations on indemnification or liability.
  1. Termination
  • Specify conditions under which either party can terminate and the notice period.
  1. Intellectual Property Rights
  • Clearly state ownership and usage rights of any intellectual property created during the provision of services.
  • Address the handling of pre-existing intellectual property.
  1. Confidentiality
  • Clearly define what constitutes confidential and proprietary information.
  • Articulate the obligations regarding the protection of confidential and proprietary information.
  • Specify the duration of confidentiality obligations.
  1. Insurance
  • Specify the types and amounts of insurance coverage required.
  1. Dispute Resolution
  • Outline the process for resolving disputes, whether through mediation, arbitration, or litigation.
  • Specify the choice of jurisdiction, venue, and governing law.
  1. Miscellaneous Provisions
  • Include boilerplate provisions such as assignment, governing law, waiver, amendments, and others.
  1. Review and Approval
  • Ensure that the document is reviewed by legal, finance, and/or necessary stakeholders before finalization.
  1. Legal and Contractual Compliance
  • Ensure that the MSA complies with applicable laws and regulations.
  • Have legal counsel draft or review.
  1. Schedule of Attachments
  • List and attach any necessary appendices, exhibits, or additional documents.
  1. Finalize and Execute
  • Confirm that all parties involved have reviewed and approved the final document.
  • Execute the agreement through proper signatures, with identification of the signatory’s title/role, printed name, and date of signing.

REMEMBER – You should modify the above checklist based on the specific needs of your business, industry, and the complexity of the services being provided. Legal advice should be sought when necessary to ensure the agreement aligns with applicable laws and regulations.

If you have questions about this article or would like information about how Oliva Gibbs can assist with identifying potential risks and weaknesses in your Master Service Agreements or other key contracts, please contact one of the authors.

Josh advises on title opinions, division order title opinions, and all aspects of complex upstream oil and gas and minerals transactions, including purchase and sale agreements and due diligence.

Andrew represents companies active in the oil and gas industry in both litigation and arbitration matters, from risk management to trial. He also advises clients on compliance and regulatory issues and handles proceedings in front of administrative agencies / governmental bodies, including the Ohio Department of Natural Resources and the Ohio Department of Commerce.

In addition to his energy practice, Andrew has broad experience in commercial and business litigation, including breach of contract / lease claims, construction disputes, non-compete / non-solicitation disputes, trade secrets, business torts, and real property-related claims. He is OSHA certified in Construction Safety and Health and has drafted and reviewed numerous construction contracts.

Molly advises on all aspects of litigation, from risk mitigation to pre-suit investigation to trial investigation, and has extensive experience conducting depositions and handling motion practice. She represents clients in connection with commercial and industrial accident claims, construction disputes, engineering and design defect cases, contract and indemnity disputes, and general insurance defense litigation. In the oil and gas sector, Molly advises service companies, manufacturers, producers, operators, well interest owners, and others in complex matters before state and federal courts and regional governing agencies.

Patrick represents clients on acquisitions and divestitures, complex mineral titles, pooling issues, lease analysis, joint operating agreements, surface use issues and title curative.

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