Sterilizing an Attached Service-Provider Proposal

Last week I received the following inquiry from a reader:

I have a frustrating drafting challenge (possible blog topic?) that I suspect beleaguers many in-house counsel who are trying to streamline contracting processes—using a service provider’s proposal to define the scope of work without bringing in the “general” terms and conditions that accompany it. I will not deny that this is an awful way to handle contracting, but the realities of high contract volume, relatively small dollar impact, and limited legal resources preclude a better approach. The classic “to the extent terms conflict, owner’s contract governs” type of provision is defective in my view because the service provider’s proposal may introduce new concepts not directly addressed in the owner’s contract (e.g. adding a limitation of liability). It is, of course, impossible to anticipate every possible inclusion. I’m curious whether you have any words of wisdom for those of us trying to craft a solution that at least provides a modicum of comfort to us lawyer-types!

Below is a weak attempt to draft something (apologies—I just can’t bring myself to use lower-case for “this agreement”):

The Service Provider agrees to perform the services described in the proposal or the scope of work attached as Exhibit A (the “Services”). If the Service Provider’s proposal is attached as Exhibit A, any terms and conditions not specifically defining the scope of the Services to be performed shall be deemed in conflict with this Agreement, whether such terms and conditions directly conflict with this Agreement, or contain representations, warranties, or covenants not directly addressed in this Agreement, and shall not constitute part of this Agreement.

Any thoughts would be appreciated!

I threw together and sent to this reader my preliminary take on this kind of provision:

The Service Provider shall perform the services described in the proposal or scope of work attached as exhibit A (the “Services”). Anything in exhibit A other than a description of the Services does not constitute part of this agreement, regardless of whether it is in conflict with this agreement.

If you’re familiar with this issue, I’d be interest to hear how you handle it.

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.