|
JANUARY 2004
Back to Newsletter
Maintenance and Support Agreements:
Vital and Often Overlooked!
by William S. Wyler
Schwartz, Manes & Ruby
Maintenance and support are among the most important issues to consider in the purchase of technology products, after the product itself. Yet maintenance and support ("M&S") issues are often treated as an afterthought, if they are considered at all. In every acquisition of technology products, whether a simple PDA, web site or a complex system, M&S issues should never be ignored, even if it involves no more than the decision to buy a twelve month extended warranty for a PDA (for the most part, extended warranties may not be a good use of dollars). For a complex system, custom or semi-custom software or complex web sites, the issues are more complex and more crucial.
It should be understood that maintenance and support are different, even though they are often lumped together. Understanding the differences will help shape the nature of the M&S which is best for your business. "Maintenance" means maintaining, repairing or upgrading of the technology product. "Support" is assistance for the people using and operating the technology products. "Support" refers to the initial and ongoing training, for both new and experienced personnel, as well as providing assistance to operators who have operational issues, when problems or questions arise.
Technology products have remade the workplace and are now remaking the home, travel and almost every other aspect of our lives. Given the control which we have given to technology products, the possible damaging effects of the technology being unavailable or producing errors, should be, but often is not, a primary concern. A simple, inexpensive, off the shelf accounting program could put a company out of business if it fails to provide accurate data. Bad data can result from a technology malfunction (a maintenance issue); the result of poor training (a support issue) or a poorly designed or overly complex technology product (an acquisition issue). In any case, failure to have a rapid solution and method for correcting matters could lead to disaster. Making a poor acquisition is not the focus of this article (see July 2003 ITechLaw).
In choosing a technology product, careful consideration should be given to the nature of the M&S services offered by the product vendor. Some vendors provide M&S services in-house, with their own staff. Other have contractual arrangements with 3rd party maintenance provider organizations for ongoing maintenance and support. If the vendor recommends a 3rd party maintenance provider, such as TRW, be sure to find our how closely the provider and the vendor work together and how long the provider has supplied that service.
Do not take the vendor's word for the capability of the M&S services offered. When calling references about the acquisition of the technology product, include questions about the M&S services. Among the important issues, always explore maintenance response time, the hours of service, and what services are covered by the M&S contract and what is not. It is amazing at how often a company will receive an M&S agreement, only to find that, as a practical matter, the services offered are of little benefit or help for the issues likely to arise. For services which are not covered by the agreement, always ask about the time and materials charges. You want to make sure those charges are appropriate, should you ever need them. Once the acquisition of a technology product has been made, the vendor has considerable leverage when it comes to M&S issues. If something goes wrong, continued use of the technology product will depend on receiving adequate maintenance and support services. At that point, the service provider has all the leverage and could ask for an unreasonable amount. Dealing with the issue up front could prevent being taken to the cleaners.
At the beginning of negotiations for the technology product, always ask for a copy of the vendor's M&S services agreement (along with vendor's other agreements), so that legal counsel has time to review the documents and prepare for negotiating the agreement while the discussions on selecting the technology product are still ongoing. Giving counsel the documents to review one day before closing on the product does provide the attorney with the necessary background to develop a successful negotiating approach. By then, it is generally too late for counsel to be an effective advocate without postponing the closing. Negotiating an M&S agreement is not rocket science, but it does require experience, study time and client input, to be successful.
Next month we will explore specific issues which are important to consider when contracting for M&S services.
Back to Top of Page
Back to Newsletter
|
