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MSA — Vendor-Side Deep Analysis review

Deep analysis of a Master Services Agreement (or Master Subscription Agreement) from the vendor's perspective. Oriented toward catching vendor-friendly drafting that may not survive customer review: low liability caps, broad disclaimers, narrow indemnities, broad limitation of liability, unbounded feedback license, AI-usage non-disclosure.

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What it checks

Third-party IP infringement indemnity

MSA must address third-party IP infringement indemnification.

Warning · MSA-001

Indemnification procedure (notice / defense / settlement)

Indemnification clause must include procedural mechanics (prompt notice, control of defense, settlement consent).

Warning · MSA-002

Indemnity for breach of confidentiality

MSA should indemnify for breach of confidentiality obligations.

Note · MSA-003

Indemnity for breach of data protection / gross negligence / wilful misconduct

Indemnification must cover breach of data-protection obligations, gross negligence, or wilful misconduct.

Warning · MSA-004

Indemnification carved out of liability cap

Detects when indemnification is excluded from the aggregate liability cap.

Note · MSA-005

Aggregate liability cap present

MSA must specify an aggregate liability cap.

Critical · MSA-006

Liability cap carve-outs (fraud / wilful misconduct / IP indemnity)

Liability cap must carve out fraud, wilful misconduct, IP indemnity, and breach of confidentiality.

Warning · MSA-007

Consequential-damages waiver is mutual

Consequential-damages waiver should apply to both parties symmetrically.

Note · MSA-008

California Civil Code § 1668 problem flag

Flags a liability cap or exculpation that purports to limit liability for fraud, wilful injury, or violation of law where California law may govern — void per Cal. Civ. Code § 1668.

Warning · MSA-009

New York Gen. Oblig. § 5-322.1 anti-indemnity flag

Flags a broad indemnification for negligence in a construction-related MSA governed by New York law — void per N.Y. Gen. Oblig. § 5-322.1.

Warning · MSA-010

Background / foreground IP allocation

MSA must allocate ownership of background IP (pre-existing) and foreground IP (created during the engagement).

Warning · MSA-011

Feedback license may be unbounded

Flags a feedback license that conveys unrestricted, perpetual, irrevocable rights in customer feedback without scope limits.

Note · MSA-012

Workmanlike + conformance + no-malicious-code warranties

MSA must include workmanlike-services / conformance-to-documentation / no-malicious-code warranties.

Warning · MSA-013

Compliance-with-laws + non-infringement warranties

MSA must include compliance-with-laws and non-infringement warranties.

Warning · MSA-014

Implied-warranty disclaimer overreach (UCC alignment)

Flags an implied-warranty disclaimer that may overreach the UCC's conspicuous-disclaimer requirement.

Note · MSA-015

SLA referenced or attached

MSA must reference or attach an SLA where the service is hosted.

Warning · MSA-016

SLA credit as sole-and-exclusive remedy

Flags when service-level credit is stated as the sole and exclusive remedy.

Note · MSA-017

Termination for material breach

MSA must include termination for material breach with cure period.

Warning · MSA-018

Termination for bankruptcy / insolvency

MSA must include termination on bankruptcy or insolvency.

Note · MSA-019

Wind-down period for hosted services

Hosted-services MSA must include a transition / wind-down period on termination.

Note · MSA-020

Data return / portability on termination

MSA must address data return or portability on termination.

Warning · MSA-021

Force majeure is balanced (both parties)

Force-majeure clause should apply to both parties symmetrically; payment obligations should be excluded.

Note · MSA-022

Assignment silent on change-of-control

Flags an assignment clause silent on change-of-control / merger.

Note · MSA-023

Amendment-in-writing and no-waiver

MSA must include amendment-in-writing and no-waiver clauses.

Note · MSA-025

Survival clause + entire agreement

MSA must include a survival clause and an entire-agreement / integration clause.

Note · MSA-026

Order-of-precedence may bury operative terms

Flags when an MSA's stated order of precedence places the MSA above its SOWs or Order Forms while operative terms (indemnity, liability, IP) appear to live in those subordinate documents.

Warning · MSA-027

AI usage clause presence

MSA should address whether the vendor uses AI / generative AI in providing the service.

Note · MSA-028

Texas anti-indemnity (Tex. Ins. Code Ch. 151) flag

Flags an indemnity for the indemnitee's own negligence in a Texas-governed construction MSA — void per Tex. Ins. Code § 151.102.

Warning · MSA-029

UCC § 2-719 limited-remedy fail-of-essential-purpose carve-out

When a limited remedy is the exclusive remedy, the MSA should anchor the UCC § 2-719(2) escape if the remedy fails of its essential purpose.

Note · MSA-030

Every run also applies 115 general checks that belong to any agreement: structure, parties and signatures, defined terms, cross-references, dates, amounts, and one-sided terms.

Sources

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