The Maintenance Service Agreement is a type of agreement under which a company provides maintenance services to a client. Designed from the provider´s point of view, this agreement is used in the United States for small- to medium-sized businesses seeking a standard contract template for a number of clients. The contract can be used for maintenance of equipment, computers, machinery, etc.

The contract is adapted to the commercial uses and practices in the USA and is designed for use in particular when US law applies. This contract is intended for use in any state in the United States. A Guide for Negotiating Contracts in the USA is provided with the contract.

LEGAL WARNING

Depending upon your particular situation this contract might not meet your needs and requirements. In case of doubt, you should consult a legal advisor.Global Negotiator as publisher and copyright holder of this contract disclaims all warranties, whether express or implied, respecting the legal content of this contract. For any claims arising out or in connection with the use of this contract, Global Negotiator shall be limited to a refund of the purchase price.

INDEX

PartiesProvisions

1. Term of the Agreement

2. Equipment Eligible for Service

3. Service Location4. Charges & Payment5. Exclusions6. Services not Provided7. Limited Warranty &

Limitation of Liability8. Assistance to

Customer Representative

9. Suspension of Service10. General Provisions

Signatures

MAINTENANCE SERVICE AGREEMENT (USA)

Nº OF PAGES: 7 + 6 (GUIDE TO NEGOTIATING CONTRACTS IN THE USA)FORMAT: WordLANGUAGE: English

MAINTENANCE SERVICE AGREEMENT (USA)

EFFECTIVE DATE: [Date]

BETWEEN: [COMPANY NAME], (the "Company"), a corporation organized and existing under the Laws of [State/Country], with its head office located at [complete address]

AND: [CUSTOMER NAME], (the "Customer"], a corporation organized and existing under the Laws of [State/Country], with its head office located at [complete address]

[Company] agrees to Service and provide all labor and furnish all parts necessary to maintain Customer’s equipment (hereinafter referred to as “Equipment”) listed on Attachment A, in proper operating order according to the following terms and conditions:

1. TERM OF THE AGREEMENT

1.1 This Agreement shall commence on the Effective Date and shall remain in full force and effect for a Term of [xx months/years] and automatically renew for an additional [xx months/years] unless notice of termination is provide in writing by either party prior to 30 days from the end of the Term], or until terminated according to the provisions of this Agreement.

1.2 If either party shall neglect or fail to perform any of its obligations under this Agreement, and such failure continue for a period of ten (10) calendar days after written notice of complaint, the other party shall have the right to immediately terminate this Agreement.

1.3 [Company] may, at its option, immediately terminate this Agreement, or temporarily suspend all of its responsibilities stated in this Agreement, for payment delinquency in any amount in excess of thirty (30) calendar days.

2. EQUIPMENT ELIGIBLE FOR SERVICE

All Equipment to be included under this Agreement, along with the charge for this Agreement, is listed on Attachment A.

3. SERVICE LOCATION

3.1 The Equipment to be Serviced must be delivered by the Customer to [Company] repair

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facility during Company's normal business hours.

3.2 All interconnecting cords and cables must accompany the Equipment to be Serviced.

4. CHARGES & PAYMENT

4.1 Monthly Service Charges for this Agreement shall be reflected on the monthly lease invoice. Payment shall be made by Customer to [Company]. Monthly Maintenance Charges for the first month of the term of this Agreement (plus any pro rata portion) shall be due on the first day of the month following the date of delivery of the listed Equipment, with all subsequent payments due in advance on the first day of each subsequent month during the term of this Agreement.

4.2 If the location of the equipment is changed by the Customer such re-location may involve an alteration of maintenance charges.

5. EXCLUSIONS

[Company] shall not be obligated to provide the Services required by this Agreement:

5.1 If the Equipment has been modified or repaired by anyone other than an authorized [Company] Service Center, or if the Equipment contains non-[Company] parts.

5.2 If the Equipment requires repair of damages caused by external factors, including, but not limited to: loss or damage resulting from the elements, misuse, abuse, or the operation of the Equipment in improper environments, such as, but not limited to, locations having defective or inadequate power source, static electricity, or excessive interference caused by external sources.

5.3 If extra Service is required to comply with changes in the regulations of any governmental body or agency.

5.4 If the serial numbers of the Equipment have been tampered with or are missing.

6. SERVICES NOT PROVIDED

This Agreement shall not require [Company] to provide:

6.1 Routine maintenance, such as, but not limited to [insert specific situations such as: periodic cleaning of printer heads, ribbon replacement, blotter replacement or blotter roller replacement].

6.2 Replacement of everyday products or consumable items such as [insert specific items

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such as: ribbons, diskettes, oil, fuel, water, tapes, toner, lamps, tires, etc.]

7. LIMITED WARRANTY & LIMITATION OF LIABILITY

7.1 [Company] agrees to use its “best efforts” to provide the maintenance required under this Agreement in a prompt manner, but in no event shall [Company] be liable for any damages or liabilities, directly or indirectly caused by the Equipment not being repaired properly, by length of down time, temporary shortages or unavailability of the replacement parts, or temporary unavailability of qualified Service personnel at [Company]’s Service Center.

7.2 All replacement parts, components, modules, or units (hereinafter collectively referred to as “part[s]”) supplied under this Agreement are warranted against defects in workmanship and material. If this Agreement is still in effect, [Company]’s sole responsibility under this warranty shall be to repair or replace any part(s), discovered to be defective. If within thirty (30) calendar days from the date of installation of parts(s), this Agreement is not in effect and a defect is discovered, [Company]'s sole responsibility will be to provide replacement part(s) at no cost, but labor provided will be charged to Customer at [Company]'s Service rates and terms in effect.

7.3 Except for the limited warranties stated above, [Company] disclaims all warranties of any kind with regard to the subject matter hereof, the Service to be provided by [Company], and parts and other material to be supplied by [Company], including without limitation, any implied warranty of merchantability or fitness for a particular purpose.

7.4 [Company] shall have no liability or responsibility to the Customer or any other person or entity with respect to any liability, loss or damage caused or alleged to be caused directly or indirectly by [Company] computer equipment or software sold or Service provided by [Company], including, but not limited to, any interruption of Service, loss of business or anticipatory profits or consequential damages resulting from the use of operation of the equipment. In no event shall [Company] be liable for loss of profits, or any indirect, special, or consequential damages arising out of any breach of this Agreement or any warranty provided herein.

7.5 Some states do not allow the limitation or exclusion of incidental or consequential damages, so the above limitation(s) or exclusion(s) may not apply to the Customer.

7.6 The warranties granted herein give the Original Customer specific legal rights, and the Original Customer may have other rights which vary from state to state.

8. ASSISTANCE TO CUSTOMER REPRESENTATIVE

The Customer agrees to give all reasonable assistance to The Company's representative and in particular will ensure and allow him to satisfy himself that the conditions in which he will be

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working will be safe.

9. SUSPENSION OF SERVICE

[Company] reserves the right to suspend all cover under this agreement if any amount due to [Company], whether in connection with this agreement or not, are overdue under Company's terms and conditions of sale which shall prevail in all matters relating to this agreement.

10. GENERAL PROVISIONS

10.1 Independent Contractors

The relationship between both parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such relationship upon either party.

10.2 Governing Law & Jurisdiction

This agreement and the parties’ actions under this Agreement shall be governed by and construed under the laws of the state of [State], without reference to conflict of law principles. The parties hereby expressly consent to the jurisdiction and venue of the federal and state courts within the state of [State]. Each party hereby irrevocably consents to the service of process in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth in the preamble of this Agreement, such service to become effective thirty (30) days after such mailing.

10.3 Entire Agreement

This Agreement, including the attached exhibits, constitutes the entire Agreement between both parties concerning this transaction, and replaces all previous communications, representations, understandings, and Agreements, whether verbal or written between the parties to this Agreement or their representatives. No representations or statements of any kind made by either party, which are not expressly stated in this Agreement, shall be binding on such parties.

10.4 All Amendments in Writing

No waiver, amendment or modification of any provisions of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom

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such waiver, amendment or modification is sought to be enforced. Furthermore, no provisions in either party’s purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement.

10.5 Notices

Any notice required or permitted by this Agreement shall be deemed given if sent by registered mail, postage prepaid with return receipt requested, addressed to the other party at the address set forth in the preamble of this Agreement or at such other address for which such party gives notice hereunder. Delivery shall be deemed effective three (3) days after deposit with postal authorities.

10.6 Costs of Legal Action

In the event any action is brought to enforce this Agreement, the prevailing party shall be entitled to recover its costs of enforcement including, without limitation, attorneys’ fees and court costs.

10.7 Inadequate Legal Remedy

Both parties understand and acknowledge that violation of their respective covenants and Agreements may cause the other irreparable harm and damage, that may not be recovered at law, and each agrees that the other’s remedies for breach may be in equity by way of injunctive relief, as well as for damages and any other relief available to the non-breaching party, whether in law or in equity.

10.8. Arbitration

Any dispute relating to the interpretation or performance of this Agreement shall be resolved at the request of either party through binding arbitration. Arbitration shall be conducted in [County], [State] in accordance with the then-existing rules of the American Arbitration Association. Judgment upon any award by the arbitrators may be entered by any state or federal court having jurisdiction. [Company] and [Customer] intend that this Agreement to arbitrate be irrevocable.

10.9 Delay is Not a Waiver

No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, shall operate as a waiver of any such right, power or remedy.

10.9 Force Majeure

In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any Act of God, strike, fire, flood, governmental acts, orders or restrictions, Internet system unavailability, system malfunctions or any other reason

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where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party (a “Force Majeure Event”), the party who has been so affected shall give notice immediately to the other party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of nonperformance exceeds sixty (60) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Agreement effective immediately upon such notice or at such later date as is therein specified.

10.10 Non-Assignability & Binding Effect

Except as otherwise provided for within this Agreement, neither party may assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written permission of the other. Any such assignment is deemed null and void.

10.11 Certain Sections Invalid

If any provisions of this Agreement are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.

10.12 Headings

The titles and headings of the various sections and sections in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.

10.13 Survival of Certain Provisions

The warranties and the indemnification and confidentiality obligations set forth in the Agreement shall survive the termination of the Agreement by either party for

UNDERSTOOD, AGREED & APPROVED

We have carefully reviewed this contract and agree to and accept all of its terms and conditions. We are executing this Agreement as of the Effective Date above.

For and on behalf of [Company] For and on behalf of [Customer]

_______________________________ ___________________________________Mr./Ms. ................................................ Mr./Ms. .......................................................

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.............................................. [position] ........................................................position]

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ATTACHMENT A.

1. [Equipment A] $[100] per month

2. [Equipment B] $[100] per month

3. [Equipment C] $[100] per month

4. [Equipment D] $[100] per month

© Copyright Global Marketing Strategies

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Foreign companies doing business in the USA often consider using the same contract templates as in other Western countries, especially those governed by the Common Law system, given that, due to historical and political ties between the USA and United Kingdom, the American legal system is based on the British Common Law System.

This guide contains an outline of the legal System in the USA and the Contract Law related to the British Common Law as well as the contract templates most commonly used with foreign companies in the USA; it also offers the reader key issues for negotiating and drawing up contracts in the USA.

THE LEGAL SYSTEM IN THE USA AND CONTRACT LAW

Contract law in the USA is governed by three main sources:

Common law, created by courts through the interpretation of prior facts and circumstances. This is the primary source of contract law in many countries, as courts generally interpret and define the other sources as well; and

Specific statutes in each jurisdiction, generally at the state level. For example, the Uniform Commercial Code (“UCC”) of each state in the United States governs contracts pertaining to the sale of goods in that state.

Federal law that is uniform in application, and governs in areas in which national consistency is seen as more important (e.g., federal taxation, patent law and copyright law).

For most contracts involving commercial transactions, all fifty states have enacted, at least partially, a body of statutory law (UCC), which governs a variety of commercial relations involving consumers and merchants, among others, Article 2 of the UCC governs the sale of goods, which are defined by the code as items that are "movable" at the time of the contract. Related to exclusive distribution agreements, there are some exceptions such as the states of Louisiana and Wisconsin and the associated state of Puerto Rico, which have statutes strongly protective of local distributors.

Nevertheless, English and American law have some important differences, especially with regard to business contracts. Although both countries share the common root of the Common Law, its evolution has been different and because of that, certain legal and jurisprudential developments have appeared in the United States. Perhaps the greatest difference is the absence in English law, of an implied duty of good faith when negotiating a contract. This duty, however, does exist in American law, which is aligned, in this sense, with most European legal systems, such as the French or Spanish systems, even with other systems of the Common Law and the Australian system, which do require bargaining in good faith by the parties and,

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GUIDE FOR NEGOTIATING CONTRACTS IN THE USA

therefore, the obligation to maintain confidentiality, or the transparent use of information and the responsibility for a sharp break from negotiations.

Besides these legal differences, there are also some linguistic differences between legal English in the United States and in the United Kingdom: there are some words that mean the same but spelled differently in the two countries (USA: labor / UK: labour) (USA: offense / UK: offence) (USA: defense / UK: defence). There are also specific legal expressions which vary from one country to the other, for example, the expression "best endeavours" - commonly used in Great Britain - to indicate that the parties will do everything in their power to achieve a particular result, in the United States it is replaced by the expression "best efforts". The same circumstance is found in the American expression "merchantable quality" to be used in contracts for the sale of goods to ensure (or not) product quality, meanwhile in United Kingdom the equivalent expression is "satisfactory quality"

THE MOST COMMONLY USED COMMERCIAL CONTRACTS

In commercial relations between foreign companies and US companies, it is usually the American company which take the initiative to draw up contracts, which, therefore, should be adapted to US practice and laws.

The contracts most commonly used for foreign companies doing business in the USA are:

Exclusive Distribution Agreement : when a company appoints a Distributor to distribute its products to authorized dealers or others who then sell them to their end-users. Because of the exclusivity of the relationship, the agreement contains marketing commitments by the Distributor to the Supplier.

Non-Exclusive Distribution Agreement : the Supplier promotes and sells its product in the American market through Distributors working on a non-exclusive basis. The Supplier should complete one of this type of agreement for each of its Distributors in the USA

Authorized Dealer Agreement : used for the distribution of certain products (consumer electronics, appliances, heating and cooling systems, etc.) that require special knowledge or expertise to sell them.

Sales Representative Agreement : when a company appoints an independent sales representative to promote and sell its products or services in the USA. The company appoints an individual or a legal entity to seek clients and carry out transactions, normally in a certain states of the country. The representative receives its fees through commissions on the sales it achieves.

Consulting Services Agreement : used by independent consultants or consulting firms to establish the conditions of its service proposal to its customers.

Maintenance Service Agreement : in this contract a company provides maintenance services for products such as equipment, computers, machinery, etc.

Manufacturing Agreement : used for companies which subcontract in the USA the manufacturing of its products to a manufacturer based in the country which has to satisfy a number of specifications such as the materials used and which also undertakes to keep

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the information strictly confidential and to comply with the intellectual property rights (patents, trademarks) of the company which hires it.

Trademark License Agreement : this contract permits another party (the Licensee) to use one or more of the Licensor´s trademarks in a designated territory

Confidentiality Agreement : used for companies which do business in the USA and which need to safeguard certain confidential information (in particular commercial and technological secrets) which are submitted during on-going negotiations.

KEY ISSUES FOR NEGOTIATING CONTRACTS IN THE USA

Some of the key issues relating to negotiate contracts in the USA are explained below. It should be borne in mind that several of the points that are made in this legal context also have relevance to the negotiation of commercial agreements in general. Contracts in writing

In the United States, “freedom of contract” is a very important legal principle, and in the absence of strong public policy to the contrary, courts will usually enforce written agreements. Accordingly, you should document your commercial relationships in writing, even if using “boilerplate” contracts such as standard terms and conditions of sale. Be warned, though, that US lawyers tend to be more verbose than other lawyers and frequently produce long and comprehensive contracts. Nonetheless, “Plain English” in legal documents has gained popularity over time.

Date

The date usually appears at the beginning of the document but it is normally the last item to be completed as it will usually be dated when it has been signed by all parties. Sometimes, however, work under an agreement will start before - or perhaps some time after - the date which appears in the agreement. This can be dealt with in the language of the contract. For example, in the Exclusive Distribution Agreement, the term "Commencement Date" is defined as which is the date upon which performance of agreement commences.

Parties

Be sure to insert full and accurate details here. The details will vary depending on whether a party to the contract is a company, partnership, individual or some other entity, and whether the party is based in the United States or another country. Unlike contracts in Europe or other countries, in the United States it is not necessary to specify in this section of the contract the name and position of the person who actually signs the contract in representation of each of the companies.

Sometimes the official address which appears on page 1 on the contract after the name of a party will be different from the address at which that party conducts its operations under the agreement.  In that case, the "Notices" clause in the contract can refer to the address for routine communications.

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General Provisions

Most contracts in the USA have a General Provisions clause that incorporates other clauses (Governing Law & Jurisdiction, Entire Agreement, Notices, Costs of Legal Action, Arbitration, Force Majeure, etc.) that in other countries are drawn separately.

Signature

Always ensure that whoever signs the contract has the authority to do so. In the case of a Corporation or a Limited Liability Company (LLC), the Bylaws or Operating Agreement may specify who can sign. Under US law, the signature of a director or executive officer can normally be relied upon by the other party as a director or executive officer will usually have ostensible authority with which to bind the entity of which he/she is a director or executive officer; in the case of a Partnership it is usually not practical to get all the partners to sign, so check to ensure that the partner or partners who sign have authority to do so; when the other party is a Sole Proprietor the individual who owns the business should sign; if it were an individual, clearly the individual should sign personally.

Notarization

The underlying purpose of having a signature notarized is for evidentiary reasons. The notary’s stamp serves as proof that the signature on the agreement is indeed the signature of the party whose name appears.

In the United States, most contracts can be effective without any signatures being notarized; notarization is normally only required in respect of documents that are being registered (such as transfers of land, etc.). However, different jurisdictions have different rules, so always check the rules before finalizing the contract.

Number of Original Contracts

It is usual for each party to a contract to retain one original. Thus, where there are two parties, two original copies should be signed and one retained by each party. A contract can only be effective if the necessary formalities to create a binding agreement between the parties have been observed. If in doubt, obtain legal advice from lawyers in the appropriate jurisdiction.

Governing Law, Jurisdiction and Arbitration

In commercial contracts drawn in the United States between foreign companies and American companies, it is usual to refer disputes to US Contract Law and, specifically, to the law of the specific state where the American party is located. Besides, it is usual to go Arbitration Courts to resolve conflicts. An example of Arbitration provision is as follows:

Any dispute relating to the interpretation or performance of this Agreement shall be resolved at the request of either party through binding arbitration. Arbitration shall be

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conducted in [County], [State] in accordance with the then-existing rules of the American Arbitration Association. Judgment upon any award by the arbitrators may be entered by any state or federal court having jurisdiction. Both parties intend that this Agreement to arbitrate be irrevocable.

Negotiation procedure

Begin contract negotiations with the following steps:

Understand what it is you want to accomplish with the contract and what the other party wants to accomplish;

Identify your position and the other party’s position (strengths vs. weaknesses); Be prepared and provide room for negotiation; and Bring solutions to the table – try to work towards resolution of disagreements rather than

just butting heads! Until a final definitive agreement is reached, all draft agreements, term sheets or letters of

intent should clearly state the following:

This document is not intended to create or constitute any legally binding obligation between the parties hereto, and no party shall have any liability or obligation to another with respect to this document until a fully integrated definitive agreement is prepared, authorized, executed, and delivered by all parties.”

In some circumstances, a party will insist on using its form contract and will not be willing to negotiate terms. This is called an “adhesion contract” and the other party will not be able to obtain the desired product or service unless it acquiesces to the form contract. This could be the case of the Authorized Dealer Agreement. Adhesion contracts may not be enforceable to the extent they contain unreasonable terms.

When dealing with government entities or political subdivisions such as cities and towns, be aware of legal requirements applicable to those entities, including public bidding requirements, fair wage laws, open door laws and others.

Drafting a contract

Once the basic outline of terms is negotiated, contract drafting may begin. When given the opportunity, it is generally best to be the party that drafts the contract. Advantages of “controlling the draft” are that it:

Provides extra control over the negotiations; Allows you to define the issues Prevents hidden or surprise issues; Enables the deal to be structured on your terms; and Helps you influence the timing of the drafting process.

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From the key issues that have been mentioned above it is evident that as far as drawing up and signing international contracts in the USA is concerned, commercial practices are fairly similar to those in Western countries (mainly the United Kingdom) and based on the basic principles of Common Law, although some significant differences appear; it should also be noted that when specific issues or questions between the parties arise, legal advice should be sought.

LEGAL WARNINGDepending upon your particular situation this contract might not meet your needs and requirements. In case of doubt, you should consult a legal advisor. Global Marketing Strategies, S.L. as publisher and copyright holder of this contract disclaims all warranties, whether express or implied, respecting the legal content of this contract. For any claims arising out of or in connection with the use of this contract, the potential liability of Global Marketing Strategies shall be limited to a refund of the purchase price.

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