What should a Software Maintenance and Support Agreement include under Thai law?

1. Definitions and Interpretation
2. Services
3. Defects and Enhancements
4. Incidents, Severity and Service Levels
5. Enhancements and Included Hours
6. Client's Responsibilities
7. Access, Security and Change Control
8. Monitoring and Backups
9. Fees and Payment
10. Taxes
11. Intellectual Property
12. Warranties
13. Confidentiality
14. Personal Data
15. Liability
16. Term, Termination and Handover
17. Force Majeure
18. Notices
19. Governing Law and Disputes
20. General

• A paid maintenance and support service is treated as a hire of work (Instrument 4 of the Stamp Duty Schedule). Duty is 1 THB for every 1,000 THB or part of 1,000 THB of the fees. On the Contract Value you entered, the duty on the original is the amount the system calculates from the figures entered, and each counterpart carries the amount the system calculates from the figures entered.Because the fees are in …, convert the Contract Value to Thai Baht at the exchange rate on the date of signing and calculate the duty on the Baht amount. Each counterpart carries 5 THB, or 1 THB if the duty on the original is 5 THB or less.
• By law the Provider pays and cancels the stamp duty (Clause 10.3). The Contract Value is an estimate; when extra hours or a renewal increase the fees received, the Provider pays the additional duty.
• If the Contract Value is 1,000,000 THB or more, the duty must be paid in money to the Revenue Department; an electronically signed agreement is stamped through the e-Stamp Duty system. An unstamped agreement cannot be used as evidence in a Thai civil court until the duty and a surcharge are paid (Revenue Code section 118).

• A Thai Provider registered for VAT charges VAT and issues tax invoices (Clause 10.1). A Thai company paying a Thai Provider normally withholds 3% on service fees and gives a withholding tax certificate (Clause 10.2).
• If the Provider is abroad, the Thai Client may have to withhold income tax at a different rate and pay VAT to the Revenue Department on the Provider's behalf. A double tax treaty may reduce the withholding. Ask an accountant before the first payment, especially because you ticked gross-up.

• If someone else wrote the software, ask the Provider for a short written health check of the Supported System at the start. It records existing problems and reduces arguments later about what is a Defect.
• Create named accounts for the Provider with only the access it needs. Keep the owner accounts for the domain, hosting and repository in the Client's name (Clause 7.1).
• Agree who reports Incidents and approves Work Orders, and put the support channels in Schedule 1.

• Report Incidents through the support channels and state the severity. Response and fix times run only during the Support Hours you chose.
• Approve each Enhancement estimate in writing before work starts. If the Provider starts work without saying it is an Enhancement, it cannot charge for it later (Clause 3.2).
• Check the monthly report and the hours used (Clause 4.4). Credits for missed service levels are deducted from the next invoice (Clause 4.5).
• If you keep accepting late fixes without objecting, a Thai court may treat the deadlines as no longer essential. Object in writing when a service level is missed.
• Ask for the quarterly restore test result (Clause 8.2). A backup that has never been restored may not work.

• A Provider that can see customer or employee data in the system is your data processor (Clause 14.2). The Personal Data Protection Act requires a processor to act only on your instructions, keep the data secure and report breaches (section 40). You must usually notify the Personal Data Protection Committee within 72 hours after becoming aware of a breach (section 37).
• Accessing or storing the data outside … needs your written consent and must meet the Act's rules on transfers abroad (sections 28 and 29).

• When the Agreement ends, the Provider must put all code and documentation in your repository, return credentials and give up to … hours of free knowledge transfer (Clause 16.6). Remove its access and change shared passwords the same day. Accessing a computer system after the right of access has ended may be a criminal offence in Thailand.
• The Agreement renews every 12 months unless a notice of non-renewal is received at least … days before the end of the current period (Clause 16.2).

• A company should sign through the director or directors authorised in its latest company affidavit, with the company seal if required.
• Clause 20.8 allows electronic signatures and signed PDF copies. Keep the signed file, Schedule 1, every Work Order, the monthly reports and the ticket history.

• A Thai court works in Thai. English documents need a certified Thai translation. Budget for this cost.
• A Thai judgment may be hard to enforce against a party with no assets in Thailand. Paying monthly limits what either side can lose.

Compiled from the notes that accompany the English contract templates on this site, published by Phuwara Krobtaku (ภูวรา ครอบตะคุ), Thai attorney-at-law, licence no. 477/2558. The short answer and summary at the top of this page are put together by the site from the template's clause headings and notes. Statutes are quoted only in the official Thai text: Thai is the only official language of Thai legislation, and an unofficial translation can mislead. Article registry OKC-04BC05. If you reuse this content, please credit the author and link to the original.