Software maintenance agreement

The short, mid-length and long versions of our software maintenance agreement template share a close family resemblance. Choose the shortest version containing all the provisions that you need: this will make the editing process easier.

Core software maintenance clauses

These template agreements are designed to cover the provision of software maintenance services to a client. "Software maintenance" is defined in the documents as the supply to the customer and/or application to the maintained software of updates (which may include patches and minor version updates) and upgrades (which may be defined as major version upgrades).

The software maintenance services should be supplied in accordance with the services level agreement, which is included as a schedule to the main agreement. Updates and upgrades are treated separately in the service level agreement, allowing different legal terms to apply to each.

The suggested obligations in relation to updates and upgrades include:

• the giving of written notice before the release of an update/upgrade;
• the provision of copies of each update/upgrade to the customer; and
• the application of each update/upgrade to the maintained software.

When using these templates, you may define the consequences in the event that a customer blocks the application of an update or upgrade to the software.

If the customer does not pay the maintenance fees on time then, following a warning from the service provider, the maintenance services may be suspended.

Basic, standard or premium?

How should you go about choosing between the three versions of this document?

Whilst the maintenance services-related provisions outlined above are the same in each document, there are a number of important differences. As compared with the "basic" document, the "standard" document has more developed provisions concerning liability. As well as including liability caps, which may cap the liability of one or both parties, the standard document includes optional indemnities. The standard document also contains detailed mutual confidentiality clauses, more sophisticated termination provisions, and more detailed boilerplate clauses.

Basic version

1. Definitions
2. Term
3. Maintenance Services
4. Customer obligations
5. Charges
6. Payments
7. Warranties
8. Limitations and exclusions of liability
9. Force Majeure Event
10. Termination
11. Effects of termination
12. Notices
13. Subcontracting
14. General
15. Interpretation

Standard version

1. Definitions
2. Term
3. Maintenance Services
4. Customer obligations
5. No assignment of Intellectual Property Rights
6. Charges
7. Timesheets
8. Payments
9. Provider's confidentiality obligations
10. Customer's confidentiality obligations
11. Warranties
12. Indemnities
13. Limitations and exclusions of liability
14. Force Majeure Event
15. Termination
16. Effects of termination
17. Notices
18. Subcontracting
19. Assignment
20. No waivers
21. Severability
22. Third party rights
23. Variation
24. Entire agreement
25. Law and jurisdiction
26. Interpretation

Premium version

1. Definitions
2. Term
3. Maintenance Services
4. Customer obligations
5. Customer Systems
6. No assignment of Intellectual Property Rights
7. Representatives
8. Management
9. Change control
10. Charges
11. Expenses
12. Timesheets
13. Payments
14. Provider's confidentiality obligations
15. Provider's publicity obligations
16. Customer's confidentiality obligations
17. Customer's publicity obligations
18. Data protection
19. Warranties
20. Indemnities
21. Limitations and exclusions of liability
22. Force Majeure Event
23. Termination
24. Effects of termination
25. Non-solicitation of personnel
26. Notices
27. Subcontracting
28. Assignment
29. No waivers
30. Severability
31. Third party rights
32. Variation
33. Entire agreement
34. Law and jurisdiction
35. Interpretation

If you include this information in the definition of "Provider Confidential Information", then yes (standard and premium documents only).

As regards error-fixing, does the supplier commit to any response times under the support agreement?

A response and resolution time matrix is included with the service level agreement. This classifies each issue into one of four types: critical, serious, moderate and minor. Different response times and target resolution times can be specified in relation to each type of issue.

Can the vendor sub-contract the supply of maintenance services?

The agreement includes an express provision that may either permit or prohibit sub-contracting.

What are the consequences, under the agreement, if the customer does not pay the charges?

A failure to pay will usually be a material breach of contract, and therefore give rise to a right of termination. An optional clause in the agreement allows the supplier to suspend the services in these circumstances, without going so far as to terminate the agreement.

Does the customer get the source code to modifications made under this software support agreement?

The agreement may be adapted so that the customer gets access to the source code.

To what extent can this cover the design and development of new software?

Although there are provisions covering development work, the software maintenance agreement is not suitable for significant development projects, or at least it is not suitable without some serious editing. Under the development services section, which is set out in the service level agreement, the supply of development services can be an obligation for the supplier, or can be conditional upon the further agreement of the supplier in relation to each request for such services.

Is there a cap on the liability of the customer in this template?

There are two different draft liability caps included in the domain name licence.

The first of these limits liability in relation to a particular event. The cap is set at the level of the greater of a specified amount on the one hand, and the total amount paid by the customer to the provider under the agreement during a defined period (eg 12 months) on the other hand.

The second cap limits aggregate liability under the agreement. This cap is set at the level of the greater of a specified amount on the one hand, and the total amount paid under the agreement on the other.

Each of the caps my be drafted to protect the provider, or the customer, or both.

Where one party indemnifies the other, you should specify in the licence agreement whether the indemnity is subject to the cap or outside the cap. A clause is included to help you do this.

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A copy of this software maintenance agreement is included in the following pack:

• Support and maintenance pack (all versions of this document are included in this pack)