Failure to perform software maintenance as committed often leads to operational disruptions, security risks, financial losses, and legal disputes between parties. It is a concerned issue in the current context, where the demand for software services continues to increase significantly while monitoring and enforcement mechanisms in contractual commitments remain inadequate. The following analysis by NPLAW will provide clients with insights into current legal regulations and practical issues concerning non-compliant software maintenance.
Failure to perform software maintenance as committed often leads to operational disruptions, security risks, financial losses, and legal disputes between parties. It is a concerned issue in the current context, where the demand for software services continues to increase significantly while monitoring and enforcement mechanisms in contractual commitments remain inadequate. The following analysis by NPLAW will provide clients with insights into current legal regulations and practical issues concerning non-compliant software maintenance.
I. Current situation of non-compliant software maintenance
In practice, non-compliant software maintenance has become increasingly common, particularly in information technology service contracts between enterprises and software providers.
1. Definition of non-compliant software maintenance
Maintenance (or warranty) refers to the responsibility of organizations or individuals to remedy defects, ensure that products, goods, and services continue to function normally, and maintain quality as committed (Article 30 of the Law on Protection of Consumer Rights 2023).
Accordingly, non-compliant software maintenance means that the provider does not fully perform its maintenance obligations regarding the agreed duration, scope, quality, or technical standards, thereby infringing upon the user’s rights and violating statutory provisions.
2. Classifications of non-compliant software maintenance
Non-compliant software maintenance may take several common forms as follows:
- The provider delays, neglects, or refuses to perform maintenance despite receiving a valid request from the user;
- The maintenance process fails to remedy defects thoroughly, resulting in continued errors or unstable software performance;
- The maintenance fails to comply with technical standards, procedures, or sectoral regulations on safety, security, or compatibility.
II. Legal regulations governing non-compliant software maintenance
To fully understand the parties’ rights and obligations in software maintenance activities, it is necessary to consider current legal provisions governing breaches of maintenance commitments.
1. Impacts of non-compliant software maintenance
Non-complaint software maintenance may result in several consequences, including:
- Delayed or improper maintenance may cause system downtime, data loss, and disruption of business processes, affecting operations;
- Wrong maintenance may lose customers and partners trust, damaging corporate reputation, partnership opportunities, and market value;
- Non-performance as agreed constitutes a contractual breach, which may result in demands for rectification, compensation, or termination of contract.
2. Relevant legal provisions
- Civil Code 2015: Articles 446–449 provide that within the warranty period, if defects are found, the purchaser is entitled to request the seller to repair the product without charge, reduce the price, exchange the product, or return it for a refund. Additionally, the purchaser may claim compensation for damages caused by such defects during the warranty period.
- Law on Protection of Consumer Rights 2023: Articles 30–35 (as guided by Chapter V of Decree No. 55/2024/NĐ-CP) prescribe that business organizations or individuals must repair, replace, or recall defective goods and refund consumers if defects cannot be overcame, as well as take necessary measures to safeguard consumers’ rights.
- Commercial Law 2005: Article 49 states that the seller is obliged to warrant goods and take related expenses.
3. Conditions related to non-compliant software maintenance
Conditions relating to non-compliant software maintenance include:
- The maintenance contract must specify scope, duration, procedures, technical standards, and liability for breach;
- There must be acceptance records, maintenance reports, or stored electronic information proving performance of obligations.
4. Remedies for non-compliant software maintenance
Upon detecting non-performance or improper maintenance, enterprises or consumers may adopt the following measures:
- The parties may negotiate and request re-performance of maintenance in accordance with technical standards and duration in the contract;
- It is necessary to set up a written record of violation and notice in writing to establish legal grounds for compensation or termination if necessary;
- The injured party may claim compensation for actual damages, including losses of reputation, data, time, and remedial costs;
- In cases of non-cooperation, the provider may be fined from 5 million VND to 100 million VND depending on the severity and transaction value (Article 56 of Decree No. 98/2020/NĐ-CP as amended by Clause 5 Article 1 of Decree No. 24/2025/NĐ-CP), be subject to administrative complaints, or take legal proceedings before courts or commercial arbitration.
III. Legal questions regarding non-compliant software maintenance
Below are some legal questions to help parties better understand their respective rights and responsibilities.
1. How does non-compliant software maintenance affect the supplier’s warranty obligations?
Non-compliant maintenance not only affects product quality but may also raise warranty and compensation liabilities for the provider:
- It reduces product quality, leading to technical faults or premature damages;
- It constitutes a breach of warranty obligations, as the provider fails to maintain the agreed quality under the contract (Article 30, Law on Protection of Consumer Rights 2023);
- If it causes data loss or information security breaches, consumers are entitled to claim compensation under Article 11 of the Law on Protection of Consumer Rights 2023;
- The provider must compensate for damages if software defects cause harm to the consumer’s life, health, or property (Clause 1, Article 34 of the Law on Protection of Consumer Rights 2023).
2. If the contract does not specify, is non-compliant software maintenance unlawful?
Under Clause 1, Article 30 of the Law on Protection of Consumer Rights 2023, products, goods, components, and accessories are warranted as agreed by the parties unless otherwise provided by law.
Therefore, non-compliant software maintenance is not per se unlawful if the contract does not expressly provide for it, as it is not a legally mandated obligation.
3. What are the legal liabilities if non-compliant software maintenance causes a security breach?
According to Article 19 of the Law on Protection of Consumer Rights 2023, business organizations or individuals must ensure the safety and confidentiality of consumer information and adopt preventive measures. If improper software maintenance leads to a security breach and causes damage, the violator is liable for full compensation for both material and moral damages (unless otherwise agreed) under Article 360 of the Civil Code 2015.
4. Is there a mandatory timeframe for rectifying non-compliant software maintenance?
Currently, the law does not specify a fixed timeframe for software maintenance; such timelines depend on the contractual agreement between the parties (Clause 1, Article 30, Law on Protection of Consumer Rights 2023).
5. Can compensation for reputational damage be claimed due to non-compliant software maintenance?
The injured party may claim compensation for reputational damage if it can prove that non-compliant software maintenance adversely affected its image, reputation, or business operations (Clause 5, Article 4, Law on Protection of Consumer Rights 2023, and Article 592, Civil Code 2015).
V. Why consult a lawyer regarding non-compliant software maintenance?
Legal consultancy services regarding non-compliant software maintenance can assist clients in:
- Drafting, reviewing, and amending agreements or contracts to ensure legal compliance and optimal protection of parties’ rights;
- Preparing violation records and legal notices as evidence for complaints or legal action if required;
- Filing complaints or initiating proceedings before competent authorities where the provider fails to rectify the breach.
For any inquiries or legal consultation regarding non-compliant software maintenance, please contact NPLAW for direct advice and assistance from our legal team.
