VIEWS: 139 PAGES: 6 CATEGORY: IT Service Agreements POSTED ON: 12/5/2011
This maintenance agreement specifically governs the relationship between a user or owner of software and a service company. It contains the material terms of the service agreement including the scope of services, manner of payment and a limitation of liability. The document contains both standard clauses and opportunities for the use of optional terms and conditions making it fully customizable to fit the needs of the contracting parties. This form should be used to assure that the terms of the agreement between the contracting parties is adequately and unambiguously set forth in writing.
This maintenance agreement specifically governs the relationship between a user or owner of software and a service company. It contains the material terms of the service agreement including the scope of services, manner of payment and a limitation of liability. The document contains both standard clauses and opportunities for the use of optional terms and conditions making it fully customizable to fit the needs of the contracting parties. This form should be used to assure that the terms of the agreement between the contracting parties is adequately and unambiguously set forth in writing. Agreement for Maintenance of Software This maintenance service agreement (“Agreement”) is made between ____________________, located at ____________________ (“Service Company”), and ____________________, located at ____________________ (“Purchaser”) agree: REPRESENTATIONS AND WARRANTIES: PURCHASER represents and warrants that Purchaser is an authorized user or owner of the software system named ____________________. SCOPE OF SERVICES: Service Company shall supply all the needed assistance to make the software perform pursuant to its listed specifications. Service Company is not required to correct deficiencies which are results of third party’s errors in programming, or failure to program. Maintenance shall include reconfiguration of the software if reasonably required to accomplish tasks within the capability of the program. If Purchaser obtains a new version of the software (upgrade), Service Company shall reconfigure the system and convert the date to the new version. However, the parties agree to negotiate in good faith a new one-time charge for re-installation if complete re-installation is needed. On-site service will be provided at each contracted site in response to calls received during the hours _____________ and _____________. [set forth hours of operation] Maintenance Service shall not include (i) damage caused by unauthorized unauthorized persons to attempting to repair or maintain the software; (ii) maintenance or repairs resulting from misuse, natural disaster (including lightning damage), neglect or negligence of the Purchaser, or external causes such as, but not limited to, failed or faulty electrical power; or (iii) repairs caused by unauthorized modifications or alterations. At no additional charge, Service Company shall provide to Purchaser _______ hours of initial training to use the software, and training to refresh the knowledge of employees that have previously received the initial training. Such training shall take place at _____________________, unless otherwise agreed upon by the parties. Purchaser may buy additional training in excess of the hours contemplated in this section at a cost of ______________ dollars ($______________) per hour. SERVICE BY PARTIES NOT AUTHORIZED BY SERVICE COMPANY: Purchaser shall not authorize or cause maintenance or repairs to be made to the Software by its employees or contractors, unless Service Company’s written consent is obtained prior to such maintenance. CHARGES: Purchase shall pay to Service Company ______________ dollars ($______________) on ________________ [date]. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 WARRANTY OF SERVICE COMPANY: Service Company warrants that the services provided under this agreement will be performed in a timely and workmanlike manner, using only qualified maintenance technicians, familiar with the software and its operation. Service Company warrants that no liens or encumbrances will result from the performance of the services contemplated hereunder, and that such performance will not create or constitute an infringement of any copyright, trade secret, trademark, patent, invention, or proprietary rights of any third party. Service Company makes no other express or implied warranties with respect to this agreement or the materials and services contemplated hereunder. LIMITATION OF LIABILITY FOR SERVICE COMPANY: Service Company's total liability under this remedial maintenance service agreement shall be limited to the total paid to Service Company up to the date of the loss under this remedial maintenance service agreement. in no event shall Service Company be liable for any indirect, special, punitive, or consequential damages arising from or relating to this agreement, including but not limited to loss of profits or revenue, damage to business or business relations, loss of use of equipment, cost of capital, cost of substituted facilities or services, down-time costs, or claims by buyers of Service Company's Purchaser. TERMINATION: This agreement may be terminated under two conditions: 1) a breach of the contract, 2) termination without a breach of the contract If a Purchaser commits a breach of the contract, the Service Company shall give a written notice specifying the alleged breach. The Service Company must allow the Purchaser to cure the breach within fifteen (15) days. If the Service Company has already given notice of a similar breach, the Service Company may either: a) allow a period of five (5) days to cure the breach; or, b) give a notice of immediate termination. If the Service Company commits a breach, the Purchaser shall send written notice to the Service Company, which specifically sets forth the alleged breach. Purchaser must allow the Service Company fifteen (15) days to cure the breach. If the Purchaser has already complained of a similar breach, the Purchaser may either: a) allow a period of five (5) days to cure the breach; or, b) give a notice of immediate termination. The following actions are some examples of what will constitute a breach by the Purchaser: a) the Purchaser altering the software or hardware without the prior written consent of the Service Company; b) Purchaser’s refusal to cooperate with reasonable requests of Service Company; c) Purchaser’s failure to provide a proper electrical supply. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 Either party may terminate this Agreement with respect to such site upon sixty (60) days prior written notice without cause. WAIVER OF BREACH. The waiver by party of any specific breach by the other of any provision of this Agreement shall not be deemed a waiver of any future breach or noncompliance. NO THIRD PARTY BENEFICIARIES. The parties do not intend that this Agreement benefit or create any right or cause of action in any third person. SUBCONTRACTING. Service Company retains the right to subcontract any service described herein to the qualified subcontractor(s) of Seller's choosing. Notwithstanding such subcontracting of service, Seller shall remain fully liable for the faithful performance of its obligations under this Agreement. ASSIGNMENT. Neither party shall assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other, which consent shall not be unreasonably delayed or withheld; any prohibited assignment or delegation shall be void. GOVERNING LAW. Any and all matters of dispute between the parties to this agreement, whether arising from the agreement itself or arising from alleged extra contractual facts prior to, during or subsequent to the agreement, including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of the contract, shall be governed by, construed and enforced in accordance with the laws of the state of ____________________, not including its choice of laws rules but including its statutes of limitations, regardless of the legal theory upon which such matter is asserted. NOTICE. Any notice required to be given hereunder shall be sufficient if sent by certified or registered mail to either party at its address as shown herein or as either party subsequently designates in writing to the other, and shall be effective as of the date of receipt thereof. ENTIRE AGREEMENT. This Agreement, including its attachments and executed Schedule(s), constitutes the final, complete, and fully integrated expression of the parties with respect to its subject matter and supersedes any prior Agreement, representation or understanding with respect to the same. This Agreement may be modified or amended only by a writing executed by both parties. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 Dated: ______________________ Purchaser ____________________________________________ By ____________________ Its ____________________ Service Company _____________________________________________ By ____________________ Its ____________________ © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5
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