We publish three different versions of an agreement covering the provision of support services in relation to software. Each support services document includes a service level agreement setting out the specific standards which the support services must meet.
Whilst the core provisions of these three documents are shared, there are many differences. The "standard" agreement is more detailed and flexible than the "basic" agreement, whilst the "premium" agreement is more detailed and flexible than the "standard" agreement.
The software support-specific provisions are identical across the three documents. The service provider is expected to ensure that the services meet a defined standard, and to provide them in accordance with the service level agreement (SLA), which is attached as a schedule to the agreement. Optionally, the service provider may be permitted to suspend the support services if the customer is late in making a payment.
The "meat" of the support provisions can be found in the SLA. The SLA says that the service provider must make available a helpdesk, defines the means by which the helpdesk may be contacted, and sets out the purposes for which the helpdesk may be used.
Typical provisions dealing with the categorisation of issues raised through the helpdesk (the suggested categories are: critical, serious, moderate and minor) are include, as are response and resolution time provisions.
The SLA assumes that support services will be provided remotely, at least by default.
The SLA may incorporate express limitations on the services, eg where the customer has been using the software in an improper manner or has made unauthorised changes to the software.
Other shared provisions
In addition to sharing the support services provisions, the three documents also share provisions dealing with: (i) the term of the agreement; (ii) customer assistance obligations; (iii) charges and payments; (iv) standard exclusions of liability; (v) force majeure events; and (vi) subcontracting.
What are the differences between the 3 documents?
Standard software support agreement
The "standard" document contains the following sections, in addition to those in the "basic" document.
- Mutual confidentiality obligations. Whilst the customer's confidentiality requirements may be obvious, the service provider may also wish to protect its confidential information. For instance: the financial terms of the agreement may be confidential to the service provider.
- Mutual indemnities, providing for compensation upon an indemnity basis in the event of defined breaches of the agreement (eg breaches of the confidentiality provisions).
- Liability caps. In addition to the exclusions covering specified classes of loss (eg consequential, data, profit) the standard document includes liability caps relating to both event-specific and aggregate liabilities.
- A requirement that the service provider keep timesheets in respect of service provided on time-charged basis, and provide those timesheets to the customer upon request.
- An express exclusion of any transfer or assignment of intellectual property rights under the agreement.
In addition to the above, the standard document includes more detailed (and more flexible) termination, notices and boilerplate provisions.
Premium software support agreement
The premium document contains all the provisions of the standard document. In addition, it contains the following provisions.
- A provision requiring that the customer's computer systems and networks meet defined standards, and continue to do so.
- Management-relate provisions requiring that some or all instructions from one party to another come via an appointed representative, that the parties hold regular management meetings, and that changes to the agreement (or the scope of the services) must be made using a defined change control procedure.
- A section dealing with expenses incurred by the service provider, allowing for their recovery from the customer in certain circumstances.
- Publicity provisions, which may prohibit press releases and similar public disclosures, except with the prior consent of the other party.
- A data processor clause, which may help the customer to comply with data protection legislation if it discloses personal data to the service provider in relation to the agreement.
- Prohibitions on the poaching of personnel.