US Maintenance and Support Agreement template

Overview

A maintenance and support agreement governs the ongoing upkeep of software, a website, or an IT system after initial delivery, typically as a follow-on to a development or licensing engagement. There is no dedicated federal statute governing maintenance contracts in the United States; the agreement is a services contract under state common law, and its enforceability and interpretation depend on the governing state chosen. The commercially important terms are service levels — response times, resolution times, and uptime commitments — and how failures to meet them are remedied. Unlike some EU jurisdictions with statutory default warranty periods for defective software, US law generally leaves service levels entirely to contract; there is no default statutory floor, so a maintenance agreement that is silent on remedies for missed service levels leaves the client with only a general breach-of-contract claim, which is a weaker and slower remedy than a specified service credit. When to use it: after a software build, website launch, or system implementation, to formalize ongoing bug fixes, updates, and support beyond any initial warranty period. Parties: the client (who owns or licenses the software/system) and the service provider (who performs maintenance and support, often but not always the original developer). Key clauses: scope of maintenance (bug fixes, security patches, minor updates — distinguished from new feature development, which is usually out of scope and billed separately); support channels and hours of coverage; service level targets (response time by severity level, resolution time targets, and any uptime commitment); service credits or other remedies for missed service levels; fees, typically a recurring maintenance fee as a percentage of the original license or development fee, or a fixed periodic retainer; term and renewal; escalation procedures; exclusions (damage from client misuse, unauthorized modifications, or third-party integrations); data backup responsibilities; and termination, including transition assistance obligations if the client moves to a new provider. Pitfalls to avoid: leaving service levels undefined or aspirational ("commercially reasonable efforts") without a specific numeric target and a defined remedy for missing it, which in practice makes the service-level promise unenforceable in any concrete way; failing to distinguish maintenance (included) from new development (billed separately), a frequent source of scope disputes; and omitting a data backup and disaster-recovery allocation of responsibility, since US law imposes no default obligation on a maintenance provider to back up client data absent an explicit contractual commitment.