IP Tech Knowledgy

The name and structure of an agreement does not really matter, so long as the content addresses all of the necessary aspects of a relationship. “Master Services Agreements” have been in vogue, especially for technology agreements, as an efficient method of documenting the terms of what is expected to be a continuing relationship that spawns new projects. With the MSA, the service provider, such as a technology or software developer, and the customer, also sign a Statement of Work outlining the details of each new project.  

The same relationship between the parties can be documented in other ways as well. The parties could call the relationship a Software Development Agreement, with an attached Order Form for each task. Or, an entity could have a Project Agreement that it signs anew for every project with an attached standard Terms and Conditions. So long as references to attachments and supplements tie together the language of all components of the agreement as a cohesive whole for one project, many projects or successive projects, it does not matter what aspects come first, which document is executed and which is the attachment, and what they are each called. Remember, at any time, the parties can agree to change their relationship, so a one-time MSA does not have to be the entrenched terms of a relationship, if one party wants to revise certain terms. 

Most development and service documents, no matter how named or structured, should include both specific and general terms. For specifics, include information about the parties, the financial details and terms of the relationship, and other variables of the particular deal or project. General “legal language” – not to be glossed over – should include provisions such as:  representations and warranties, and disclaimers; indemnifications; maintenance requirements; clear delineation of ownership of all aspects of pre-existing creations, new creations, data, and AI-generated material; licenses back-and-forth to use the creations; confidentiality; and the standards of performance – whether for services and/or product performance – such as detailed specifications about the software, performance and specifications of equipment, service level agreements, and details about personnel deployed in connection with the services. Always include a statement specifying which document controls in the event of a conflict.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com