Maintenance Agreement Contract Template

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Maintenance and Support Agreement

 

This Maintenance and Support Agreement ("Agreement") is entered into on the date of last signature below by and between Party A and Party B (each a "Party" and together the "Parties"). Party B will refer to the company hiring the services of Party A.

 

  1. Maintenance and Support. Party A shall provide the maintenance and support services set forth in Exhibit A (the "Services") to Party B during the term of this Agreement. Party A reserves the right to modify the Services from time to time, provided that any such modifications do not result in a material decrease in the overall quality of the Services.

 

  1. Term and Termination. The initial term of this Agreement shall begin on the date of last signature below and continue for one (1) year (the "Initial Term"). Thereafter, the Agreement shall automatically renew for additional one (1) year terms (each a "Renewal Term", and together with the Initial Term, the "Term") unless either Party gives notice of its intention not to renew at least sixty (60) days prior to the end of the then-current Term. Either Party may terminate this Agreement for cause:

 

(i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or

(ii) if the other Party ceases operation without a successor or becomes subject to insolvency proceedings and such proceedings are not dismissed within ninety (90) days.

 

  1. During the period of 3 months following the termination of the agreement for service, Party B must continue to provide assistance on a need basis to the team at Party A in order to achieve a smoother transition.

 

  1. Fees and Payment. Party B shall pay Party A the fees set forth in Exhibit A (the "Fees"). All invoices are due and payable within thirty (30) days of receipt.

 

  1. Party B must maintain one personnel who will act as Party A’s point of contact and can be readily available in all instances where service or maintenance will be required for Party A. Party B must also conduct regular inspections for locating issues to be solved in the Software.

 

  1. Confidentiality. The Parties acknowledge that in connection with this Agreement they may have access to or learn of information that is confidential to the other Party ("Confidential Information"). The Parties agree that they will not use or disclose any Confidential Information of the other Party without the prior written consent of the other Party. The Confidential Information of each Party shall include, without limitation, the terms and pricing under this Agreement and the Services provided hereunder. Notwithstanding the foregoing, Confidential Information shall not include any information that is:

(i) publicly available at the time of disclosure or subsequently becomes publicly available through no fault of the receiving Party;

(ii) discovered or created by the receiving Party before disclosure by the disclosing Party;

(iii) learned by the receiving Party through legitimate means other than from the disclosing Party or the disclosing Party's representatives; or

(iv) is disclosed by the disclosing Party with the prior written approval of the receiving Party. Each Party agrees to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. These measures shall in all cases not be less protective than the measures the Party uses to protect its own confidential information of a similar nature. Notwithstanding the foregoing, each Party may disclose Confidential Information of the other Party if required to do so by law or court order, provided that the Party required to make such a disclosure gives the other Party reasonable advance notice to allow the other Party to contest such disclosure.

 

  1. Intellectual Property Rights. The Parties acknowledge that all right, title and interest in and to the Confidential Information and any intellectual property rights relating thereto shall remain with the disclosing Party. Nothing contained in this Agreement shall be deemed to grant either Party a right or license to the Confidential Information or intellectual property of the other Party except for the limited right to use such Confidential Information or intellectual property to perform its obligations under this Agreement.

 

  1. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.

 

  1. Indemnification.
  2. By Party A. Party A shall defend, indemnify and hold harmless Party B, its affiliates and its and their respective directors, officers, employees, agents and representatives from and against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses (including reasonable attorneys' fees and costs) and judgments arising out of any third party claim arising out of or relating to:

 

(i) any breach of Party A's obligations under this Agreement,

(ii) any gross negligence or willful misconduct by Party A, or

(iii) any infringement or misappropriation by Party A of any third party intellectual property right.

 

b.By Party B. Party B shall defend, indemnify and hold harmless Party A, its affiliates and its and their respective directors, officers, employees, agents and representatives from and against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses (including reasonable attorneys' fees and costs) and judgments arising out of any third party claim arising out of or relating to: (i) any breach of Party B's obligations under this Agreement, (ii) any gross negligence or willful misconduct by Party B, or (iii) any infringement or misappropriation by Party B of any third party intellectual property right. c. Procedure. The indemnifying Party shall have sole control of the defense and all related settlement negotiations and, except as provided in this Section 7, the indemnified Party may not settle any indemnifiable claim without the indemnifying Party's prior written approval, which shall not be unreasonably withheld. The indemnified Party shall reasonably cooperate with the indemnifying Party in the defense of any indemnifiable claim at the indemnifying Party's request and expense.

 

  1. Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED IN ADVANCE BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY THE OTHER PARTY.

 

  1. Force Majeure. Neither Party shall be liable for any delay or failure to perform any of its obligations under this Agreement if such delay or failure is caused by a force majeure event, such as an act of war, terrorism, riot, natural disaster, governmental action or cyberattack.

 

  1. Assignment. Neither Party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that a Party may assign this Agreement in its entirety in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets.

 

  1. Relationship of the Parties. Nothing contained in this Agreement shall be deemed to constitute either Party a partner, joint venture or employee of the other Party for any purpose.

 

  1. Waiver. The failure of either Party to require performance by the other Party of any provision of this Agreement or to exercise any right provided for herein shall not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance.

 

  1. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

  1. Integration Clause. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. 15. Amendments. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party.

 

  1. Governing Law; Arbitration. a. Governing Law. This Agreement shall be governed by the laws of the State of [State], without regard to its conflict of laws principles. b. Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in [City, State]. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. Notwithstanding the foregoing, the Parties shall be entitled to seek injunctive or other equitable relief in court to prevent the actual or threatened infringement, misappropriation or violation of a Party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. [Signature page follows]

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective authorized representatives as of the date first written above.

 

Party A:

Signature: ____________________________

Typed or Printed Name: ___________________

Title: _______________________________

 

Party B:

Signature: ____________________________

Typed or Printed Name: ___________________

Title: _______________________________