Drafting a service and maintenance agreement: what belongs in it

Drafting a service and maintenance agreement involves concretely defining the scope, maintenance schedule, breakdown service with response times, costs, and duration. Remaining vague on these points is the main cause of subsequent conflicts. The contract combines preventive maintenance, corrective maintenance, and support, and covers both physical objects and associated software. For example: an installation company maintaining a production line with control software at a manufacturer must know exactly what is and is not covered by the contract.

The short answer

1. Scope and objects: which machines, installations, and software fall under it.
2. Preventive maintenance schedule: frequency and content of the inspections.
3. Corrective maintenance and breakdown service: how and when a breakdown is resolved.
4. Response times: reaction time and recovery time, optionally in an SLA appendix.
5. Parts and call-out charges: what is included in the reimbursement, what is invoiced separately.
6. Version and update management: who performs updates and when.
7. Exclusions, term and termination: limits and end of the contract.

Drafting a service and maintenance agreement: the core

The foundation is a precise description of the objects. For each machine, installation, or software component, specify what falls under it, including type and serial numbers where possible. For the installation company, this means: the production line itself, the drive, the sensors, and the control software, each named separately. Anything you do not mention falls outside the contract, which prevents disputes regarding the limits of your obligations.

Additionally, establish that this concerns a mixed agreement. Inspection, advice, and support have the character of a contract for services within the meaning of Article 7:400 of the Dutch Civil Code, involving a best-efforts obligation. Repair and replacement of parts resemble a contract for work within the meaning of Article 7:750 of the Dutch Civil Code, involving a result obligation. Be explicit about which obligation you are undertaking, as this determines what the client can hold you accountable for.

Record preventive and corrective maintenance

Clearly divide the maintenance into two parts:

• Preventive maintenance schedule. How often per year, what is inspected, which wear parts are replaced as standard, and which software updates are included. Specifically: four scheduled inspections per year, with a checklist for each inspection.
• Corrective maintenance and breakdown service. How the customer reports a fault, what availability applies (office hours or extended), and within what timeframe a response and repair will be provided. Also regulate what happens outside office hours.

Response times, parts and call-out charges

This is where money and expectations meet. Rule at a minimum:

• Response time: within how many hours do you respond to a report.
• Recovery time: target time or hard deadline to be operational again.
• Components: which components are included in the fixed fee and which are invoiced separately.
• Call-out charges: included or not, and which rate applies outside office hours.
• Additional work: how to invoice work that falls outside the scope.

If you want strict service levels with a penalty clause, include this in an SLA addendum to the contract. Bear in mind that a penalty clause may be mitigated by the court pursuant to Article 6:94 of the Dutch Civil Code, so formulate a reasonable penalty that is proportionate to the damage.

Version control, exclusions and duration

The final building blocks determine the contract's sustainability:

• Version and update management. Who installs software updates, at what frequency, and whether major upgrades fall within the contract or qualify as additional work.
• Exclusions. Damage caused by misuse, interventions by third parties, force majeure, or modifications beyond your control falls outside the coverage. State this explicitly.
• Term and termination. A fixed initial term, followed by tacit renewal with a clear notice period. Also arrange for early termination in the event of non-payment or bankruptcy.
• Price indexation. An annual adjustment, for example linked to an index, prevents the compensation from eroding.

Pitfalls in drafting

Most problems arise from a few recurring errors:

• Scope too broad or too vague, causing the client to expect more than you promised.
• Stating response times without regulating what happens if you don't meet them.
• Failure to clearly define parts and call-out charges, leading to disputes over every invoice.
• Forgot software: just arrange the physical object and leave version management aside.
• Ignoring the GDPR while processing personal data during maintenance, for which Article 28 of the GDPR requires a data processing agreement.

Honest recommendation

If you provide recurring, straightforward maintenance to regular customers and there is little risk of downtime damage, you can easily draw up a template yourself. Just ensure that the scope, maintenance schedule, costs, and duration are concrete, and you will get a long way without needing a lawyer.

Do seek assistance as soon as you start working with strict response times and penalties, as soon as downtime at the customer's site could cause significant damage, or as soon as personal data is being processed. It is precisely the combination of a results-based obligation regarding repairs and a penalty clause in the SLA that requires careful wording, as this is where the liability risk lies.

Also read what a service and maintenance agreement is and have a service and maintenance agreement drawn up. You can get started immediately with the service and maintenance agreement.

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