Free Software Maintenance Agreement Template

Software Maintenance Agreement

Date: [insert date]

This agreement is made between:

(1) [Insert your company/business name], a company incorporated in [England and Wales] with company number [number] whose registered office is at [address] (the "Service Provider"); and

(2) [Insert client company name], a company incorporated in [England and Wales] with company number [number] whose registered office is at [address] (the "Client").

1. Definitions

1.1 In this agreement, the following definitions shall apply:

(a) "Business Day" means any day which is not a Saturday, Sunday, or public holiday in [England and Wales];

(b) "Confidential Information" means any information disclosed by one party to the other that is designated as confidential or that reasonably should be understood to be confidential;

(c) "Documentation" means the user manuals, technical specifications, and other documentation relating to the Software;

(d) "Maintenance Fee" means the fee payable by the Client as set out in Section 6;

(e) "Maintenance Services" means the services to be provided by the Service Provider as described in Section 2;

(f) "Software" means [describe the software to be maintained, including version number if applicable];

(g) "Term" has the meaning given in Section 10.1;

(h) "Update" means a hotfix, patch, or minor version release of the Software that corrects errors, bugs, or defects;

(i) "Upgrade" means a major version release of the Software that introduces new features or significant enhancements.

2. Maintenance services

2.1 The Service Provider shall provide the following Maintenance Services in respect of the Software during the Term:

(a) monitoring the performance and functionality of the Software;

(b) identifying, diagnosing, and correcting errors, bugs, and defects in the Software;

(c) developing and applying Updates to the Software;

(d) [developing and deploying Upgrades to the Software]; and

(e) updating the Documentation to reflect any changes made to the Software.

2.2 The Service Provider shall perform the Maintenance Services with reasonable skill and care.

2.3 The Service Provider shall use reasonable endeavours to ensure that the Maintenance Services do not adversely affect the performance or functionality of the Software.

3. Updates and upgrades

3.1 The Service Provider shall provide Updates to the Software as and when they become available during the Term, at no additional charge to the Client.

3.2 [The Service Provider shall provide Upgrades to the Software during the Term [at no additional charge / at a discounted rate of [insert percentage]% of the Service Provider's standard pricing / subject to a separate fee to be agreed by the parties].]

3.3 The Service Provider shall give the Client not less than [5] Business Days' notice prior to the release of any Update or Upgrade, together with release notes describing the changes.

3.4 [Updates shall be applied by the Service Provider remotely during scheduled maintenance windows, which shall ordinarily be [specify times, e.g. between 22:00 and 06:00 GMT on weekdays] unless otherwise agreed.]

3.5 If the Client declines to apply or have applied an Update or Upgrade, the Service Provider shall not be responsible for any issues arising from the Client's use of an outdated version of the Software.

4. Service availability

4.1 The Service Provider shall use reasonable endeavours to ensure that the Maintenance Services are available during Business Days between the hours of [09:00] and [17:00] [GMT/BST].

4.2 The Service Provider shall give the Client reasonable advance notice of any planned downtime or maintenance windows that may affect the availability of the Software.

4.3 [The Service Provider shall endeavour to maintain Software availability of not less than [99.5]% during each calendar month, excluding scheduled maintenance windows.]

4.4 The Service Provider may suspend the Maintenance Services in the event that the Client fails to pay any sum due under this agreement, provided that the Service Provider has given the Client not less than [14] days' written notice of its intention to do so.

5. Client obligations

5.1 The Client shall co-operate with the Service Provider and provide such information, access, and assistance as the Service Provider may reasonably require to perform the Maintenance Services.

5.2 The Client shall provide the Service Provider with such access to its computer systems, networks, and premises as is reasonably necessary for the performance of the Maintenance Services.

5.3 The Client shall maintain appropriate backups of its data and systems before any Updates or Upgrades are applied.

5.4 The Client shall promptly notify the Service Provider of any errors, bugs, or defects in the Software.

5.5 The Client shall not modify, adapt, or alter the Software without the prior written consent of the Service Provider.

6. Fees and payment

6.1 In consideration of the provision of the Maintenance Services, the Client shall pay the Maintenance Fee of £[amount] per [month / quarter / annum].

6.2 The Service Provider shall invoice the Client [monthly / quarterly / annually] in advance. The Client shall pay each invoice within [30] days of the date of the invoice by [bank transfer].

6.3 All amounts payable under this agreement are exclusive of VAT, which shall be added at the prevailing rate where applicable.

6.4 The Service Provider may increase the Maintenance Fee at the start of each Renewal Term by giving not less than [30] days' written notice, provided that any such increase shall not exceed [the greater of [5]% and the percentage increase in the Retail Prices Index over the preceding 12-month period].

6.5 If the Client fails to make any payment due under this agreement by the due date, the Service Provider shall be entitled to charge interest on the overdue amount at the rate of [4]% per annum above the base rate of the Bank of England.

7. Intellectual property

7.1 All Intellectual Property Rights in the Software, Documentation, Updates, and Upgrades shall remain the property of the Service Provider (or its licensors).

7.2 Nothing in this agreement shall transfer any Intellectual Property Rights from one party to the other.

7.3 The Client shall not reverse engineer, decompile, or disassemble the Software, except to the extent expressly permitted by applicable law.

8. Warranty

8.1 The Service Provider warrants that:

(a) the Maintenance Services will be performed with reasonable skill and care;

(b) any Updates and Upgrades provided under this agreement will not materially diminish the functionality of the Software; and

(c) all Updates and Upgrades will be free from viruses, Trojan horses, worms, or other malicious code at the time of delivery.

8.2 If the Client notifies the Service Provider of a breach of warranty under Section 8.1, the Service Provider shall, at its option, re-perform the relevant Maintenance Services or provide a corrected Update or Upgrade.

8.3 Except as expressly provided in this agreement, all warranties, conditions, and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.

9. Limitation of liability

9.1 Nothing in this agreement shall limit or exclude either party's liability for:

(a) death or personal injury caused by its negligence;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability which cannot be limited or excluded by applicable law.

9.2 Subject to Section 9.1, neither party shall be liable to the other for any indirect, special, or consequential loss or damage, including but not limited to loss of profit, loss of data, loss of business, or loss of goodwill.

9.3 Subject to Section 9.1, the total aggregate liability of the Service Provider under or in connection with this agreement shall not exceed [the total Maintenance Fees paid by the Client in the 12-month period immediately preceding the event giving rise to the claim / £[amount]].

10. Term and termination

10.1 This agreement shall commence on [insert date] and shall continue for an initial period of [12] months (the "Initial Term"), unless terminated earlier in accordance with this Section.

10.2 After the Initial Term, this agreement shall automatically renew for successive periods of [12] months (each a "Renewal Term"), unless either party gives to the other not less than [30] days' written notice to terminate, such notice to expire at the end of the Initial Term or any Renewal Term.

10.3 Either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of this agreement which is irremediable or, if remediable, fails to remedy that breach within [14] days of being notified in writing to do so; or

(b) the other party becomes insolvent, enters into administration, receivership, or liquidation, or takes or suffers any similar action.

10.4 On termination, the Client shall pay all outstanding Maintenance Fees and other sums due under this agreement up to the date of termination.

10.5 Termination shall not affect any rights, remedies, obligations, or liabilities that have accrued prior to the date of termination.

11. Force majeure

11.1 Neither party shall be in breach of this agreement or liable for any failure or delay in performing its obligations where such failure or delay results from a Force Majeure Event.

11.2 A "Force Majeure Event" means any event beyond a party's reasonable control, including but not limited to acts of God, fire, flood, earthquake, storm, epidemic or pandemic, war, terrorism, industrial action, failure of utility services or telecommunications networks, or acts of government.

11.3 The affected party shall promptly notify the other party of the Force Majeure Event and shall use reasonable endeavours to mitigate the effects of such event.

11.4 If the Force Majeure Event continues for a period of [60] days or more, either party may terminate this agreement by giving [14] days' written notice to the other party.

12. General provisions

12.1 Entire agreement. This agreement constitutes the entire agreement between the parties and supersedes all previous agreements and understandings relating to its subject matter.

12.2 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties.

12.3 Waiver. No failure or delay by a party to exercise any right or remedy shall constitute a waiver of that right or remedy.

12.4 Severability. If any provision of this agreement is found to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.

12.5 Assignment. Neither party shall assign or transfer this agreement without the prior written consent of the other party.

12.6 Notices. Any notice required under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery to the other party at its registered office address.

12.7 Third party rights. This agreement does not confer any rights on any person or party other than the parties to this agreement.

13. Law and jurisdiction

13.1 This agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of [England and Wales].

13.2 Each party irrevocably agrees that the courts of [England and Wales] shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement.

Signed for and on behalf of the Service Provider:

Name: [authorised signatory name]

Position: [position]

Date: [date]

Signature: ___________________________

Signed for and on behalf of the Client:

Name: [authorised signatory name]

Position: [position]

Date: [date]

Signature: ___________________________

This document was created using a free template from SEQ Legal.