Professional Services Maintenance Agreement

Professional Services Maintenance Agreement

This Professional Services Maintenance Agreement (the "Agreement") is made effective as of by and between Client Name: ("Client") and Service Provider Name: ("Provider"). Each of Client and Provider may be referred to herein as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Provider is engaged in the business of providing professional maintenance, support, and related technical services to software, systems, and equipment; and

WHEREAS, Client desires to procure, and Provider desires to perform, maintenance and support services in accordance with the terms and conditions set forth in this Agreement; and

WHEREAS, the Parties intend to define the scope, service levels, fees, and responsibilities applicable to ongoing maintenance services.

NOW, THEREFORE

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. SCOPE OF MAINTENANCE SERVICES

1.1 Services. Provider shall perform maintenance and professional support services as described in the Service Description below and any Statement(s) of Work executed under this Agreement. Services may include corrective maintenance, preventive maintenance, updates, patches, and technical consultation.

1.2 Exclusions. Provider shall have no obligation to provide services to the extent required by failure caused by Client negligence, misuse, unauthorized modifications, third-party products not covered by this Agreement, or disasters. Any excluded work may be provided as paid services at Provider's then-current rates.

2. TERM AND TERMINATION

2.1 Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for a period of months unless earlier terminated in accordance with this Agreement. Thereafter this Agreement shall automatically renew for successive month periods unless either Party provides written notice of non-renewal at least days prior to the end of the then-current term.

2.2 Termination for Cause. Either Party may terminate this Agreement for material breach if the breaching Party fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach. Termination for cause shall be without prejudice to any other remedies available at law or in equity.

2.3 Termination for Convenience. Client may terminate this Agreement for convenience upon providing Provider with days' prior written notice and payment of any unpaid fees for services performed up to the effective date of termination.

3. FEES, EXPENSES AND PAYMENT

3.1 Fees. Client shall pay Provider the fees set forth in each applicable Statement of Work. The Base Monthly Maintenance Fee shall be per month, payable in advance unless otherwise agreed in writing.

3.2 Invoicing and Payment. Provider shall invoice Client in accordance with the billing schedule. Unless otherwise stated, payment is due within thirty (30) days of invoice receipt. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law.

3.3 Taxes. Fees are exclusive of taxes, duties, and assessments. Client shall be responsible for all sales, use, value-added and other taxes imposed on the fees, except for taxes based upon Provider's net income.

4. CHANGES; ADDITIONAL SERVICES

4.1 Change Requests. Any change to the scope of Services shall be documented in a written change order signed by both Parties. Provider shall not be required to perform extra work except pursuant to such a signed change order.

4.2 Additional Services. Services requested by Client that are outside the scope of the Service Description shall be charged at Provider's then-current hourly rates unless otherwise agreed.

5. SERVICE LEVELS AND RESPONSE TIMES

5.1 Response and Resolution. Provider shall use commercially reasonable efforts to respond to incidents in accordance with the following target response times: Critical incidents: within hours; High priority: within hours; Normal: within hours.

6. CLIENT OBLIGATIONS

Client shall provide Provider with reasonable access to systems, personnel, documentation, and facilities as necessary to perform the Services. Client is responsible for maintaining backups of all data prior to any maintenance activity. Provider shall have no liability for loss of data where Client has failed to maintain adequate backups.

7. CONFIDENTIALITY

7.1 Definition. "Confidential Information" means non-public information disclosed by one Party to the other that is designated confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

7.2 Obligations. Each Party agrees to maintain the confidentiality of the other Party's Confidential Information, not to disclose it to third parties except as permitted, and to use it only to perform its obligations under this Agreement. The foregoing obligations shall not apply to information that is: (a) publicly known through no fault of the recipient; (b) rightfully received from a third party without restriction; or (c) independently developed.

7.3 Survival. The obligations of confidentiality shall survive termination or expiration of this Agreement for a period of three (3) years, except with respect to trade secrets which shall be protected for so long as such information qualifies as a trade secret.

8. INTELLECTUAL PROPERTY

8.1 Client Data. Client retains all right, title and interest in and to Client's data and materials provided to Provider. Provider is granted a limited, non-exclusive license to use Client Data solely to perform the Services.

8.2 Provider Materials. Provider shall retain all right, title and interest in any pre-existing intellectual property, methodologies, tools, know-how, templates and software used or developed by Provider in the performance of the Services, including any general improvements made during the engagement, provided that Provider grants Client a non-exclusive, non-transferable license to use deliverables solely for Client's internal business purposes.

9. WARRANTIES; DISCLAIMER

9.1 Provider Warranty. Provider warrants that it will perform the Services in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty, Provider's sole obligation and Client's exclusive remedy shall be re-performance of the nonconforming Services, or if Provider cannot substantively cure such breach within a reasonable period, Client may recover fees paid for the deficient Services.

9.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY IN SECTION 9.1, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

10. LIMITATION OF LIABILITY

10.1 Exclusion of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR INDEMNIFICATION OBLIGATIONS, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

11. INDEMNIFICATION

11.1 Provider Indemnity. Provider shall indemnify, defend and hold Client harmless from and against any third party claim arising out of Provider's gross negligence, willful misconduct, or material breach of this Agreement, including reasonable attorneys' fees.

11.2 Client Indemnity. Client shall indemnify, defend and hold Provider harmless from and against any third party claim arising out of Client's misuse of the Services, breach of Client's obligations, or infringement of third party intellectual property rights caused by Client materials.

12. INSURANCE

Provider shall maintain insurance coverage customary for its industry, including commercial general liability and professional liability/errors & omissions insurance in commercially reasonable limits. Provider shall provide certificates of insurance upon request.

13. NOTICES

All notices required or permitted under this Agreement shall be in writing and shall be delivered by hand, overnight courier, or certified mail, return receipt requested, to the addresses below or to such other address as either Party may designate by notice in accordance with this Section. Notices are deemed given upon receipt.

14. ASSIGNMENT

Neither Party may assign or delegate its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement in connection with a merger, sale of substantially all assets, or corporate reorganization provided the assignee assumes the assigning Party's obligations hereunder.

15. GOVERNING LAW; DISPUTE RESOLUTION

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflict of laws principles. The Parties shall attempt to resolve disputes promptly by good faith negotiation. If unresolved within forty-five (45) days, disputes shall be resolved by binding arbitration before a neutral arbitrator in accordance with the arbitrator's rules, and judgment on the award may be entered in any court of competent jurisdiction.

16. ENTIRE AGREEMENT; SEVERABILITY; AMENDMENTS; WAIVER; COUNTERPARTS

16.1 Entire Agreement. This Agreement, together with any Statements of Work and change orders executed hereunder, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, written or oral.

16.2 Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect to the fullest extent permitted by law.

16.3 Amendments and Waiver. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. The waiver of any breach shall not constitute a waiver of any subsequent breach.

16.4 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Facsimile or electronic signatures shall be deemed original signatures for all purposes.

SIGNATURES

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