BERRY, DUNN, MCNEIL & PARKER, LLC
MASTER SERVICE AGREEMENT
THIS MASTER SERVICE AGREEMENT is entered into on the XXX by and
between XXX LLC (herein “XXX”), a Maine Limited Liability
Company, and _______________________________ of ______________________________
(herein “Subcontractor”) and is effective as of the date written below.
Whereas,XXX desires to contract for the services of Subcontractor as set forth
herein; and, whereas, each of the parties has determined they and the Client would benefit from
this arrangement, and because such an arrangement complements each party’s unique capabilities
and fills voids in each party’s technical and/or production capabilities, the Parties recognize the
efficiency of teaming together; and, whereas, Subcontractor desires to provide services to
BERRYDUNN upon the terms set forth herein; now, therefore, in consideration of the foregoing
promises and the mutual covenants and agreements set forth herein, the parties hereto agree
as follows:
1. 1. AGREEMENT AND STATEMENT OF WORK
1.1 Agreement.
This Agreement contains the general contractual terms and conditions applicable to the
Services to be provided by Subcontractor to XXX.
1.2 Statement of Work (SOW).
1.2.1 The Parties shall, from time to time during the Term of this Agreement, enter
into individual SOWs to govern the specific Services to be performed by
Provider under this Agreement and the terms hereof.
1.2.2 The Parties will determine the content of each SOW in accordance with the
terms set forth in this agreement. Each SOW shall be executed by both
parties. Each SOW shall, upon full execution thereof, be deemed to be a part
of this Agreement and governed by the provisions hereof and the additional
provisions set forth in such Statement of Work.
2. SERVICES TO BE PROVIDED BY SUBCONTRACTOR.
Subcontractor shall provide services to XXX as specified in any
addendum(s)each Statement of Work signed by the parties and incorporated to this
Agreement. Each Addendum Statement of Work must be executed by the parties
and shall incorporate all the terms and conditions of this Agreement as though
fully set forth therein. In the event of a conflict between any of the terms of this
Agreement and the terms of any Addendum, the terms of the Addendum shall
prevail with respect to the specific services subject to such Addendum.
Subcontractor shall not hire, employ, or contract with any subcontractor(s) to provide the
services to BERRYDUNN, as specified in an addendum to this Agreement, without the
prior written consent of BERRYDUNN, whose consent may be withheld in its sole
discretion.
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BERRYDUNN reserves the right to withhold payments to Subcontractor due to late or
unsatisfactory performance of services by Subcontractor; provided, however,
BERRYDUNN shall notify Subcontractor in writing of any disputed invoice within ten (10)
days of receipt of the applicable invoice and Subcontractor will have a reasonable period
of time to correct the nonconforming services as described in the notice.
3. 2. TERM AND TERMINATION.
3.1 This Agreement shall commence on the Effective Date and shall continue, unless
earlier terminated in accordance with the provisions of this Agreement, for a period of
3 years (the “Initial Term”). Unless otherwise provided, the termination or expiration
of a Statement of Work shall not automatically terminate this Agreement, but the
termination or expiration of this Agreement shall automatically terminate all
Statements of Work. Notwithstanding the foregoing, any obligation undertaken
hereunder by either Party that, by its nature or its terms, is intended to extend
beyond the Term shall survive the termination hereof.
3.2 Should a Party wish to continue this Agreement after the Initial Term or the then
existing Term, such Party shall give the other Party a request in writing to renew this
Agreement no later than Two (2) months prior to the expiration of Initial Term or the
then-existing Term, as the case may be. Upon receipt of such request to extend the
Term of the Agreement, the other Party shall have thirty (30) days in which to accept,
in writing, such request for extension. A failure to accept such request within the
specified period shall be deemed to be a rejection, in which case neither Party shall
have any obligation to negotiate any type of extension of the Term of this Agreement.
If the other Party accepts an extension request, the Parties will thereafter negotiate
in good faith the terms and conditions that will apply during the extended term (each
an “Extended Term”) with a goal of reaching mutual agreement at Fifteen (15) days
prior to the expiration of the then-existing Term.
3.3 BERRYDUNN shall have the right to terminate the Master Service Agreement and
any or all Statements of Work immediately in the event (i) BERRYDUNN’s contract
with or work for its client is terminated for any reason or (ii) BERRYDUNN’s client
requests that BERRYDUNN terminate Subcontractor. BERRYDUNN will terminate
such applicable Statement of Work to this Agreement by providing Subcontractor
written notice of such early termination. The Contractor shall be entitled to receive as
his full and sole compensation for work done in discharge of obligations of the
Company to the Contractor under this Agreement.
3.4 Either party shall have the right to terminate this Agreement and any addendum(s)
for breach if, within thirty (30) days’ notice detailing the nature of the breach, the
breaching party fails to cure such breach. Furthermore, either party shall have the
right to terminate this Agreement and any addendum(s) at any time, without cause,
upon thirty (30) days’ prior written notice to the other party. In the event of any early
termination of this Agreement and any addendum(s), Subcontractor shall receive
payment for services rendered through the date of termination, less any deductions
permitted to be made by BERRYDUNN pursuant to the terms of this Agreement.
4. This Agreement shall remain in full force and effect until the completion of all of
Subcontractor’s services to be provided hereunder, unless it is terminated earlier as
permitted herein. BERRYDUNN shall have the right to terminate the Master Service
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Agreement and any or all addendums immediately in the event (i) BERRYDUNN’s
contract with or work for its client is terminated for any reason or (ii) BERRYDUNN’s
client requests that BERRYDUNN terminate Subcontractor. BERRYDUNN will terminate
such applicable addendum to this Agreement pursuant to items (i) and (ii) above by
providing Subcontractor written notice of such early termination.
5. OWNERSHIP OF WORK PROPERTY AND CONTRACTOR PROPERTY
Work Product. Upon completion of Subcontractor’s services hereunder, all work product
custom produced by Subcontractor specifically for BERRYDUNN or its client and
identified as an exclusively owned deliverable in an applicable addendum (the “Work
Product”) shall be owned by BERRYDUNN or its applicable client, including, without
limitation, all trademarks, copyrights, and patents related thereto, and shall become the
sole property of BERRYDUNN or any client or its affiliates, regardless of the medium in
which the Work Product exists.
Either party shall have the right to terminate this Agreement and any addendum(s) for
breach if, within thirty (30) days’ notice detailing the nature of the breach, the breaching
party fails to cure such breach. Furthermore, either party shall have the right to terminate
this Agreement and any addendum(s) at any time, without cause, upon thirty (30) days’
prior written notice to the other party. In the event of any early termination of this
Agreement and any addendum(s), Subcontractor shall receive payment for services
rendered through the date of termination, less any deductions permitted to be made by
BERRYDUNN pursuant to the terms of this Agreement.
5.1
5.2 Subcontractor Property.
3. OWNERSHIP OF WORK PROPERTY AND CONTRACTOR PROPERTY. (a)
Work Product. Upon completion of Subcontractor’s services hereunder, all work
product custom produced by Subcontractor specifically for BERRYDUNN or its client
and identified as an exclusively owned deliverable in an applicable addendum (the
“Work Product”) shall be owned by BERRYDUNN or its applicable client, including,
without limitation, all trademarks, copyrights, and patents related thereto, and shall
become the sole property of BERRYDUNN or any client or its affiliates, regardless of
the medium in which the Work Product exists.
(b) Subcontractor Property. All other deliverables under an addendum not identified
as Work Product shall be owned exclusively by Subcontractor, including all
intellectual property rights contained therein (“Subcontractor Property”). By way of
example and not limitation, Subcontractor Property includes subcontractor software,
tools, processes, devices, methodologies, documentation, reports, templates, know-
how, and other proprietary materials and intellectual property rights, including all
modifications, alterations, enhancements, extensions, configurations, or derivative
works made thereto. Subcontractor Property also includes anything of general
application that subcontractor develops during the term of this Agreement. To the
extent the deliverables include Subcontractor Property, whether provided to
BERRYDUNN or incorporated into the Work Product, Subcontractor grants to
BERRYDUNN (or its client, as applicable) a nonexclusive, nontransferable license to
use the Subcontractor Property for BERRYDUNN’S (or its client’s, as applicable)
internal business purposes and for any other purpose and timeframe expressly
stated herein or in any applicable addendum(s) to this Agreement. For purposes of
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clarity, nothing in this Agreement or any addendum(s) shall prevent or limit
Subcontractor from using or providing Subcontractor Property in the performance of
services to other clients of Subcontractor.
6. 4. SUBCONTRACTOR’S STATUS AS AN INDEPENDENT CONTRACTOR.
Subcontractor shall at all times be and remain an independent contractor and not an
employee of BERRYDUNN. Subcontractor shall provide its own personnel, facilities, and
equipment, including laptop computers, necessary to provide its services hereunder, and
shall determine how and when Subcontractor’s services are provided, consistent with
the provisions of Sections 1 and 2 above. Under no circumstances shall BERRYDUNN
be required to provide any benefits, insurances (including, without limitation, workers’
compensation insurance), or tax withholdings with respect to Subcontractor or
Subcontractor’s employees or permitted agents, and Subcontractor assumes all liability
for any benefits, insurances (including, without limitation, workers’ compensation
insurance), or taxes that may relate to Subcontractor and/or Subcontractor’s employees
and permitted agents.
7.
8. Subcontractor will be issued a BERRYDUNNshall provide an email address to
BERRYDUNN, in which official communication shall be shared to the Contractor by
BERRYDUNN. Subcontractor must use this BERRYDUNN email address at all times for
any communication with the client(s).
9.
10. OR
11.
12. Subcontractor must include their designated BERRYDUNN Project Manager in all email
correspondence with the client by copying the Project Manager on all emails sent to and
received from the client.
13. 5. INDEMNIFICATION. Each party shall indemnify, defend, and hold the other party and
its affiliates, officers, managers, employees, and other agents (the “Indemnitees”)
harmless from and against any and all claims, demands, suits, orders, damages, costs
(including without limitation reasonable attorneys’ fees), and/or other liabilities that the
Indemnitees may incur as a result of any personal injury (including death) or tangible
personal or real property damage caused by the indemnifying party, except to the extent
such claims, demands, damages, costs, or other liabilities are caused by the
Indemnitees.
14. 6. CONFIDENTIALITY. Both parties may, in connection with this Agreement, disclose to
the other party information considered confidential or proprietary information of the
disclosing party (“Confidential Information”). Information shall be considered Confidential
Information if marked confidential or proprietary, identified as confidential in nature by
the disclosing party at the time of disclosure, or which by its nature is normally
considered confidential or provides the disclosing party with a competitive advantage.
The receiving party shall protect the disclosing party’s Confidential Information with the
same degree of care that it regularly uses to protect its own Confidential Information
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from unauthorized use or disclosure, but in no event less than a reasonable degree of
care. No rights or licenses under patents, trademarks, or copyrights are granted or
implied by any disclosure of Confidential Information by the disclosing party. The
obligations under this Section shall survive the termination or expiration of this
Agreement for a period of three (3) years. The obligations of confidentiality under this
Agreement shall not apply to any Confidential Information that: (a) is rightfully received
from a third party without disclosure restrictions; (b) is independently developed by
employees of the receiving party who have not had access to such Confidential
Information; (c) is or becomes publicly available through no wrongful act of the receiving
party; (d) is already known to the receiving party as evidenced by documentation bearing
a date prior to the date of disclosure; or (e) is approved for release in writing by an
authorized representative of the disclosing party.
15.
16. When required by BERRYDUNN’s client, Subcontractor will be required to enter into a
Non-Disclosure Agreement and/or a Business Associate Agreement. These Agreements
will be provided to Subcontractor prior to entering into any Addendum(s).
17. 7. NON-SOLICITATION. Subcontractor accepts, recognizes, and understands that
BERRYDUNN has expended an inordinate amount of time and money in procuring the
Client Contract and that the Subcontractor would likely not be utilized as a Subcontractor
but for BERRYDUNN’s efforts at procuring the Client Contract. Therefore, the
Subcontractor freely accepts BERRYDUNN’s request to not solicit or provide consulting
services to any Client of BERRYDUNN benefitted by Subcontractor’s services provided
under this Agreement for a period of two (2) years thereafter. However, Subcontractor
may request BERRYDUNN waive this condition if Subcontractor wishes to propose on
another contract relating to the Client.
18. 8. COMPLIANCE WITH LAWS AND PROFESSIONAL RULES. Subcontractor shall
comply with all applicable laws, regulations, rules, and requirements in the performance
of its services hereunder, including without limitation all applicable licensing and
reporting requirements throughout the term of this Agreement. Subcontractor shall also
comply with all applicable ethical and professional rules and requirements.
19. 9. WARRANTIES AND LIMITATION OF LIABILITY. Subcontractor will perform the
services called for hereunder in a professional and workmanlike manner. Any services
not performed as warranted, or which do not meet the reasonable requirements set forth
in an applicable addendum(s), will be re-performed by Subcontractor at its own cost,
promptly upon Subcontractor’s receipt of notice of any such deficiency, such notice to be
provided by BERRYDUNN within ten (10) days of delivery of such services under such
addendum(s). BERRYDUNN reserves any and all rights and remedies available to it
arising out of an uncured breach of any of the warranty provisions set forth herein,
including without limitation the right to recover damages.
20.
LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY DAMAGES RESULTING FROM LOSS OF DATA, USE, PROFIT, OR REVENUE,
OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE
DAMAGES, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. A PARTY’S LIABILITY FOR ANY OTHER DAMAGES SHALL NOT
EXCEED THE AMOUNT PAID FOR THE SERVICES UNDER THE APPLICABLE
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ADDENDUM UNDER WHICH SUCH CAUSE OF ACTION AROSE. This limitation of
liability will apply regardless of the form of action, whether in contract or in tort, including
negligence or any other basis. Notwithstanding the above, the above limits of liability
shall not apply to a material breach of Sections Six (6) and Eight (8) by a party or a
party’s indemnification obligations under Section Five (5).
11. 10. GOVERNING LAW/VENUE. This Agreement shall be governed and construed in all
respects under the laws of the State of Maine, without regard to its conflict of law’s
provisions. All legal proceedings reflecting this Agreement shall be brought in the judicial
or administrative forums of the State of Maine. Subcontractor consents to personal
jurisdiction within the State of Maine and agrees not to object to such jurisdiction and
venue.
12. 11. ENTIRE UNDERSTANDING/MODIFICATION. Except as may be expressly set forth
or referenced in this Agreement or any addendum(s) to this Agreement, this Agreement
contains the entire agreement and understanding between the parties with respect to
Subcontractor’s work and services for BERRYDUNN and there are no other oral or
written agreements or understandings. This Master Service Agreement may not be
amended or modified unless both BERRYDUNN and Subcontractor agree in writing to
such amendment or modification. The parties expressly agree that BERRYDUNN’s
(and/or BERRYDUNN’S clients’ and/or agents’) access to and use of the
Subcontractor’s services shall be solely subject to the terms and conditions of the
applicable Client Agreement entered into with BERRYDUNN and its client. Nothing in
this Agreement shall remove, amend, modify, or supersede any of the terms in the
applicable Client Agreement unless expressly agreed to in writing by Subcontractor.
13. 12. SEVERABILITY. Whenever possible, each provision or portion of any provision of
this Agreement will be interpreted in such manner as to be effective and valid under
applicable law. However, if any provision or portion of any provision of this Agreement is
held to be invalid, illegal, or unenforceable in any respect under any applicable law or
rule, such invalidity, illegality, or unenforceability will not affect any other provision or
portion of any provision of this Agreement, and this Agreement will be reformed,
construed, and enforced as if such invalid, illegal, or unenforceable provision or portion
of any provision had never been contained herein.
14.
15.
13. SPECIFIC PERFORMANCE/EQUITABLE RELIEF. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement may cause the other party to sustain damages for which it
would not have an adequate remedy at law for money damages; and, therefore, each of
the parties hereto agrees that in the event of any such breach, the aggrieved party shall
be entitled to seek the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other remedy to
which it may be entitled at law or in equity.
16.
17. 14. REMEDIES. The parties agree that money damages would not be a sufficient
remedy for any breach of this Agreement, and that the adversely affected party shall be
entitled to equitable relief, including injunction and specific performance, in the event of
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any breach or threatened breach of the provisions of this Agreement, in addition to all
other remedies available to such party at law or in equity.
18.
19. 15. WAIVER. The failure of any party hereto to exercise any right, power, or remedy
provided under this Agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other party hereto with its obligations
hereunder, and any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver by such party of its right to exercise any such or other right,
power, or remedy or to demand such compliance.
20.
21.
22. 16. DESCRIPTIVE HEADINGS. The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to affect the meaning
or interpretation of this Agreement.
23.
24.
25. 17. SUCCESSOR IN INTEREST. Except in the event of a sale of all or substantially all
the assets of a party as a going concern to another entity, or merger or consolidation
with or into another entity which shall continue such party’s business substantially
unchanged, neither party shall assign or transfer this Agreement or any of the license or
other rights granted by this Agreement, without obtaining the other party’s written
approval, such approval not to be unreasonably withheld. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their heirs, administrators,
successors, and permitted assigns.
26.
27.
28. 18. INSURANCE. Where indicated by a checked box, the Subcontractor agrees to
acquire and maintain throughout the term of this Agreement the following insurance:
Type of Insurance Coverage: Minimum Limits of
Coverage:
X Professional Liability $1,000,000
X General Liability $1,000,000
X Automotive Liability $ 500,000
X Umbrella $1,000,000
X Workers Compensation $500,000 or statutory
minimum
General Liability must include personal injury and property damage or a separate policy for
personal injury and property damage will be required.
If travel is required as part of any engagement, then all the aforementioned insurance
coverages will be required and an updated COI Acord will need to be provided to
XXX.
The above insurance coverage is the minimum amount required. XXX reserves
the right to require more coverage as may be required by XXX contract with
its client.
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Subcontractor’s insurance coverages will be on an occurrence basis, other than the
Professional Liability which should be on a claims made basis. XXX shall be named
as an additional insured on Subcontractor’s insurance policies except Professional Liability and
Workers Compensation where XXX shall be named as Certificate Holder.
Subcontractor shall provide XXX with one or more certificates evidencing the required
coverages, upon the execution of this Agreement and upon request of XXX thereafter.
The certificates of insurance shall state that XXX will receive at least thirty (30) days
prior written notice of any cancellation or reduction of Subcontractor’s insurance coverage and
must be acceptable to XXX in all respects. Any and all deductibles contained in any
insurance policy shall be assumed by and at the sole risk of Subcontractor.
The insurance requirements herein are minimum requirements for this Agreement and in no
way limits the indemnity covenants contained in this Agreement. XXX in no way
warrants the minimum limits contained herein are sufficient to protect Subcontractor from
liabilities that might arise out of the performance of the work under this Agreement. Insurance is
to be placed with insurers with an A.M. Best rating of at least an A-.
29. 19. PAYMENT(S) TO SUBCONTRACTOR. For the Subcontractor’s services rendered herein,
BERRYDUNN will make payment to Subcontractor using the following process:
Invoices for Subcontractor’s time and documented and approved out of pocket expenses must
be submitted to XXX by the 15 th and 31 st (or last day) of each month using the
XXX Invoice Template. The completed Invoice Template must be emailed to the
Principal overseeing the project and to any designated Project Staff. Each invoice must contain
a detail for each staff person, summarized by day, for each activity/deliverable being invoiced
using service codes which will be provided by the Project Manager. Time should be reported in
1/10 th of an hour, i.e., in six (6) minute increments (e.g.,1 hour and 12 minutes would be 1.2). All
expenses submitted for reimbursement must include an itemized copy of the receipt.
XXX does not reimburse for travel time. Invoices that are on time and properly
submitted and approved for payment will be processed and paid within forty-five (45) days of
submission. XXX reserves the right to withhold payment(s) to Subcontractor due to
late or unsatisfactory performance of services by Subcontractor as determined by the client
and/or XXX. XXX reserves the right to amend the payment schedule as its
business needs dictate. Notice of any changes will be sent to Subcontractor at least thirty (30)
days before any changes are implemented.
OR, for flat fee engagements, delete the paragraph above and use this one:
FLAT FEE PAYMENT(S) TO SUBCONTRACTOR. For the Subcontractor’s services rendered
herein, BERRYDUNN will make payment to Subcontractor using the following process:
The subcontractor will be paid on a Flat Fee Basis in an amount agreed to by the parties for the
scope of work identified in each Addendum to this Agreement. The Subcontractor agrees,
unless outlined as an exception in writing, that this flat fee is inclusive of all the Subcontractor’s
expenses, including, but not limited to, facilities, equipment, travel, rent, utilities, supplies,
insurance, taxes, the cost of any Subcontractor’s employee’s salaries and benefits, and all other
incidental expenses incurred by the Subcontractor. If BERRYDUNN has agreed in writing to pay
any expenses, a list of those expenses must be itemized in the invoice and itemized receipts
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must be included with the invoice submission. XXX does not reimburse for travel
time.
The Subcontractor may submit invoices to XXX on a monthly basis. Each invoice
shall contain a statement of the time expended (if required), the percentage of the project
completed, and a brief description of the services provided. Invoices shall be submitted to
XXX by email to the XXX Project Manager for each project by the 10 th day of
each month. Invoices submitted by the Invoice Submission Deadline and approved for payment
will be processed and paid within forty-five (45) days of submission. XXX reserves the
right to withhold payment(s) to Subcontractor due to late or unsatisfactory performance of
services by Subcontractor as determined by the client and/or XXX. XXX
reserves the right to amend the payment schedule as its business needs dictate. Notice of any
changes will be sent to Subcontractor at least thirty (30) days before any changes are
implemented.
30. 20. COUNTERPARTS. This Agreement may be executed by signatures delivered electronically
where permitted by law and in one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument.
31.
32.
33. 21. EXPIRATION. This Master Service Agreement shall expire on
________________________ and may be extended and amended upon the mutual written
consent of both parties.
By signing below, each of the parties has executed this Master Service Agreement as of the
date written below and agree to all the terms and conditions contained therein.
XXX, LLC Subcontractor:
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
Master Service Agreement, rev. XXX
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