software maintenance contract

1. Subject matter of the contract

The subject matter of the software maintenance contract (or “software maintenance contract”) is the maintenance/restoration of the operational readiness of the software, updating, consulting and 

2. maintenance of the software.

The maintenance usually also extends to the documentation. Faults and damage caused by incorrect operation or improper handling by the customer are excluded.

3. Scope of services

In the scope of services, the number of hours to be provided is precisely defined. The response times are also agreed depending on the severity of the malfunction (see “Error term” below).
Whether remote maintenance is possible and whether advice can be given by telephone/mail is also determined here. In any case, it is important for the service provider to have access to the software.

4. Error term

The term “error” is defined differently in software maintenance contracts. It is important that the wording is clear and understandable for both parties. The contractor’s response times then also depend on the error term.
Errors can be formulated as follows:

  • Blocking errors (work impossible): Immediate reaction.
  • Critical errors (work possible with restrictions): reaction within two hours
  • Cosmetic errors (only slightly disturbing ongoing operation): Remedy with the next update

5. Contact person

Again, it is important for the customer to know who his exact contact person is. The availability should be precisely formulated in the software maintenance contract (telephone/e-mail/business hours).

6. Rights of use

The customer should ensure that he also receives the contractual rights of use to the updates and that these are named in the software maintenance contract.

7. Remuneration

Remuneration can be specified in the software maintenance contract as a lump sum, according to time or a combination of both.

8. Warranty, liability

Although the warranty is governed by statutory law, it is not uncommon to find provisions on this in the contracts. Liability can only be limited for cases of slight negligence and for non-bodily injury.

9. Term of the contract, termination options

According to case law, the maximum permissible term of a software maintenance contract is two years. The contract concluded for an indefinite period may be terminated with six weeks’ notice to the end of the year in the case of quarterly remuneration. Tacit extensions may not last longer than one year. In addition, there is also the right to terminate without notice for good cause in the event of a breach of contractual obligations under section 626 BGB.



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