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Language tweak: Master services agreement customers aren’t obligated to provide X amount of work

In Business Sys. Eng’g v. IBM, No. 08-1081 (7th Cir. Nov. 10, 2008), a subcontractor alleged that IBM had agreed to provide the sub with $3.6 million of work on a project for the Chicago Transit Authority. IBM provided the sub with only $2.2 million worth of work. The sub sued IBM in federal court, claiming that IBM owed it the remaining $1.4 million.

The court granted summary judgment in favor of IBM, and the court of appeals affirmed. One could take the position that all’s well that end’s well. But IBM presumably still had to incur the expense of the discovery phase in this lawsuit (document production, depositions, etc.), because courts are seldom willing to grant summary judgment against a party before the party has had the opportunity for discovery.

With this case in mind, I tweaked the “Statements of work” clause of the Services section. It now reads as follows (subject of course to change without notice):

[[ProviderShortName]] will provide services for [[CustomerShortName]] as described in any written statements of work that may be signed by the parties in their discretion.

(Emphasis added.) The intent is to make it clear that to make it clear that neither party is obligated to agree to a particular number of statements of work or a particular quantity of work.

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