Software Maintenance Agreement

Written by Sudipta Bandyopadhyay, Lawyer

Introduction

Software is a term that is used to refer to applications and programs that run on a computer. Anti-virus which runs in our computer needs to get renewed after a certain period. Without an anti-virus, a computer gets corrupted. Technologies are also advancing with the change in time. Thus, software needs maintenance. Software maintenance helps professional fields to run smoothly. The service of software maintenance comes into effect through a legal agreement.

The necessity of software maintenance

• Modify and update the software.

• To help in functioning properly.

• Legalizing software.

The study of computer science says that the maintenance of software is of different types. They are corrective software, adaptive software, perfective software, and preventive software. These are the areas where maintenance is required technically. The world is connected to the internet. Software companies are there in every corner of the world, providing service to users. A proper agreement binds them legally. Indian Contract Act, 1872 is followed to draft an agreement in India. Other clauses are included according to the proposals, and acceptances of offers take place between the parties.

Clauses to be included in an agreement

• Name of both the parties

One party will be referred to as “Customer”/ “Recipient”/ “Client”, and another party will be mentioned as the “Company”/ “Service Provider”/ “Support Organization”.

The Customer and Provider must be in a relationship where the customer uses the licensed software of the company, and the latter is bound to provide service for the maintenance of the product according to the clauses of the agreement.

• Definitions

Both parties must follow the definitions accordingly regarding software and its maintenance and other legal definitions.

• Terms of Agreement

The agreement shall mention the starting and duration of the time for which the agreement will be in force.

• Support services

Company or service providers will inform the client of the news of Software Updates via secure mailbox or professional emails.

Technical customer support will be given by the support organization.

Providers will give onsite support with a mutually agreed time frame between the parties.

• Services not covered

Services that are not covered by the agreement can be provided by the company by a mutual agreement at the request of the customer at charges based on the company’s current price list.

• Customer Obligations

The customer must have a valid license to use the software from service providers or an authorized seller. The customer shall notify the service providers of any software problem together with complete information concerning the failure within the time after the problem has occurred. The customer shall be responsible for the security of its confidential, proprietary information as well as for the maintenance of backup procedures for files.

• The Customer will provide the service provider, if requested, with the following details for getting maintenance.

Access to the software and the computer and access to use of all information necessary to service the software.

• Intellectual Property Rights

By entering into an agreement, the buyer or customer gets the license to use the software sold by the seller or service provider. Customers can enjoy the rights of trademark, and copyright, related to the software.

• Maintenance fee and payment terms

The agreement will mention the maintenance charges or fees for the service provided by the service providers. The fees must be paid within the time.

• Warranty

The agreement must mention the period of warranty under which the customer will get free service from the provider, subject to certain conditions.

• Notice

Any offer, request, demand, approval, consent or other communication provided or permitted hereunder shall be given through notice in writing. It should be given by personal delivery or by registered mail or by ordinary mail, postage prepaid or telefax addressed to the party for which it is intended.

• Amendments to the agreement

No amendment to this agreement shall be effective unless it is in writing and duly signed by authorized representatives of both parties.

• Termination

The parties can terminate the agreement with a written notice on the grounds of breach of or violation of any of the conditions of the agreement.

• Enforceability

The agreement should be enforceable by law. It should not oppose public and privacy policies.

• Renewal of agreement

The time of renewal should be mentioned in the agreement so that the customer can get

smooth service from the providers.

• Force Majeure

Service providers shall not be responsible or liable for failure to perform or observe or for the delay in performing or observing any obligation under this agreement where such failure or delay arises from any act of God.

• Entire Agreement

Each party must read the agreement and sign the document with free consent.

Conclusion

Every professional field is interrelated with each other. The technology of software is one of the main reasons behind this relationship. A well-drafted legal agreement can help even prosper more than before, which is helpful for generations to come.

References:

1. Contracts Counsel, Software Maintenance Agreement (Contractscounsel)

2. CAST, The Four Types Of Software Maintenance & How They Help Your Organization (Cast Software)

Follow us on LinkedIn, Facebook, and Instagram for regular updates.