Setting the Scene in Services Agreements

Last week, a reader sent me the following sentence from a services agreement:

Vendor hereby accepts such appointment and agrees to actively and continuously exert its prompt, substantial, and persistent efforts, on Company’s behalf, to provide the Services.

This extract—the lamest thing I’ve seen  since, oh, last week—has already led to my post on actively (here). But two other issues come to mind.

Appointment?

First, appointing someone to a service-providing function (for example, consultant) represents a redundant extra step. Since you have to state what services the service provider will be performing, no purpose is served by also, in effect, sticking on their head a hat with “Consultant” (or whatever) emblazoned on it in big letters. You only appoint someone to a function if by law that appointment comes with a relatively clear set of consequences. One example that comes to mind is appointing someone attorney-in-fact.

Flat Obligation or Efforts?

When stating the obligations of a service provider, you have a choice between stating them as flat obligations (Acme shall put the round peg in the round hole in accordance with the specifications on schedule A) or incorporating a reasonable efforts standard (Acme shall use reasonable efforts to cure cancer).

If you’re able to state exactly what services are to be performed and it’s entirely within the service provider’s power to perform the services, a flat obligation would be appropriate. If that’s not the case, it might well be appropriate to use a reasonable efforts standard.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.