Support and maintenance terms of service
1. Interpretation
1.1 The following definitions apply to this agreement:
“Authorised Users” means up to four designated users that have authority to request work on behalf of the Client in relation to the site or any other individual that can provide satisfactory evidence that they have authority.
“Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day.
“Change Request” has the meaning ascribed to it in paragraph 4.2.
“Client Cause” means any of the following causes whether caused by the Client or any person acting on behalf of the Client:
(a) any improper use, misuse or unauthorised alteration of the site or Software by the Client;
(b) any use of the site or software by the Client in a manner inconsistent with the instructions of the Supplier;
(c) the use by the Client of any hardware or software not provided by the Supplier or approved by the Supplier in the specification for use by the Client in connection with the site or Software; or
(d) the use of a non-current version or release of the site or software.
“Help Desk Support” means any support in respect of the rectification of Bugs provided by help desk technicians sufficiently qualified and experienced to identify and resolve Bugs.
“Out-of-scope Tasks” means as described in paragraph 6 of this agreement.
“Security Maintenance” means updates on the Client’s Site which includes (but is not limited to) software updates and WordPress/Laravel core minor updates (if applicable) but not the rectification of Bugs.
“Service Credit” means an amount equal to 5% of the-then current monthly Support Fees for each whole hour (not to exceed 20 hours) that the Supplier fails to provide a Solution for that month.
“Solution” means either of the following outcomes:
(a) correction of a Bug; or
(b) a workaround in relation to a Bug (including a reversal of any changes to the Software if deemed appropriate by the Supplier) that is reasonably acceptable to the Client.
“Support” means the availability of the Supplier’s support team to complete Change Requests.
“Support Fees” means in the fees set out on http://www.10degrees.uk in accordance with the agreed Support Plan.
“Support Request” means a request made by the Client in accordance with this agreement for Support in relation to rectification of a Bug.
“Support Services” means:
(a) the provision of Help Desk Support; and
(b) the provision of services to resolve the Bugs,
each in accordance with the terms of this agreement.
“Support Plan” means the plan set out in the relevant Statement of Works or any other plan agreed between the parties from time to time each as described at https://www.10degrees.uk
“Support Services” means services made available to the Client under this agreement, being completion of Change Requests, Security Maintenance and Support Services and the other services described in the relevant Support Plan.
2. Commencement and duration
2.1 This agreement where relevant shall commence on the date when the Statement of Works has been signed by all of the parties and shall terminate in accordance with clause 15 of the Agreement.
2.2 The Supplier shall provide the Support Services to the Client in accordance with this agreement.
3. Charges and payment
3.1 In consideration of the provision of the Support Services by the Supplier, the Client shall pay the Support Fees.
3.2 The Supplier shall invoice the Client monthly in advance.
3.3 The Client shall unless the Supplier otherwise agrees, pay monthly by direct debit and the amount of any invoice will be collected by the Supplier within [7] days of the date of the invoice by direct debit. The Client:
3.3.1 authorises the Supplier to debit from the Client’s bank account the amount due monthly under the Support Plan;
3.3.2 is obliged to maintain a valid direct debit allowing the taking of such payment; and
3.3.3 will be liable to pay any sums due immediately upon request if any direct debit payment fails for any reason.
3.4 Where the Supplier agrees for the Client to pay other than by direct debit the Client shall pay each invoice submitted by the Supplier:
3.4.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Client; and
3.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier,
time for payment shall be of the essence of this agreement.
3.5 All amounts payable by the Client under this agreement are exclusive of amounts in respect of VAT.
3.6 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any sum due under this Agreement on the due date:
3.6.1 the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this paragraph 3.6.1 will accrue each day at 8% a year above the Bank of England’s base rate from time to time;
3.6.2 the Supplier may immediately and without incurring any liability to the Client suspend all or part of the Support Services until payment has been made in full together with any accrued interest and the Supplier may recover from the Client its reasonable costs and expenses incurred as a result of the suspension, such sums being recoverable by the Supplier from the Client on demand and as a debt;
3.6.3 if payment is not made within 30 days of the due date terminate the applicable Statement of Work immediately upon written notice to the Client; and
3.6.4 the Supplier shall be entitled to recover any costs reasonably and properly incurred associated with the Client’s failure to make payment when due including legal expenses and other costs incurred in pursuing the debt calculated on a full indemnity basis.
3.6.5 All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4. Change Requests
4.1 The Client may through an Authorised User request Change Requests from the Supplier.
4.2 The Client may through an Authorised User request any of the following:
4.2.1 development requests for code changes to the Client’s site;
4.2.2 requests to fix Bugs falling outside of the Warranty Period including any instances of Support Services;
4.2.3 requests for design of new sections within existing pages; and
4.2.4 any improvement, update, or change to the Client’s site,
together known as “Change Requests”.
4.3 Any requests which fall outside of paragraph 4.2 will constitute an Out-of-scope Task.
4.4 The Supplier shall keep records of the Change Requests for reporting purposes. The Client may make reasonable requests for copies of the records of Change Requests the Client has made.
4.5 The Supplier shall not be required to action or respond to any Change Requests issued by anyone other than an Authorised User.
5. Ongoing advice
5.1 The Supplier will use reasonable endeavours to provide access to ongoing advice in relation to the site during Business Hours by means of:
5.1.1 Email at [email protected] and
5.1.2 Telephone on 0118 3913911.
PROVIDED THAT such advice shall not apply to the rectification of Bugs which are subject to the provisions of paragraphs 4 and 6 of this agreement.
6. Out-of-scope Task
6.1 The Supplier shall not, unless the parties otherwise agree (including agreeing additional fees payable in respect of Out-of-scope Tasks) be required to provide any Out-of-scope Tasks.
6.2 The following shall be considered Out-of-scope Tasks:
6.2.1 Change Requests which require the provision of any services outside of Business Hours;
6.2.2 requests which fall outside of the definition of Change Requests;
6.2.3 any services provided in connection with any apparent problem regarding the Software reasonably determined by the Supplier not to have caused by a Bug, but rather a Client Cause, or a cause outside the Supplier’s control (including any investigational work resulting in such a determination);
6.2.4 rectification and investigations of Support in respect of Bugs caused by:
6.2.4.1 any actions of the Client or any person acting on the Client’s behalf, including any attempts by the Client or any person appointed by the Client to act on behalf or to provide services to the Client to modify, reverse engineer, disassemble, decompile or update or upgrade or in any other manner decode any of the Software on the Site;
6.2.4.2 any network or electricity or power failure;
6.2.4.3 any downtime caused by a hosting provider (where not the Supplier);
6.2.4.4 any downtime resulting from our suspension of the Works pursuant to clause 3.6.2.
together known as “Out-of-scope Change Requests”.
6.3 Out-of-scope Change Requests shall not form part of the Support outlined in this agreement. Out-of-scope Change Requests shall be agreed between the parties separately in writing.
7. Submitting Support Requests and access
7.1 The Client through an Authorised User may request Change Requests and Support Services by way of a Support Request.
7.2 Each Support Request shall include a description of the Change Request or the Bug and, where relevant, the start time of the incident.
7.3 The Client shall provide the Supplier with:
7.3.1 detailed description of any Change Request or Bug which the Client requests;
7.3.2 prompt notice of any Bugs which it becomes aware of; and
7.3.3 such output and other data, documents, information, assistance and (subject to compliance with all Client’s security and encryption requirements notified to the Supplier in writing) remote access to the Client’s system, as are reasonably necessary to assist the Supplier to reproduce operating conditions similar to those present when the Client detected the relevant Bugs and to respond to the relevant Support Request.
7.4 The Supplier shall not be required to action or respond to any Support Requests submitted by any person other than an Authorised User.
8. Service Levels
8.1 This paragraph 8 shall apply to valid Support Requests which are submitted for Support Services only.
8.2 The Supplier shall prioritise all Support Requests based on its reasonable assessment of the severity level of the Bug reported.
8.3 The Supplier shall use reasonable endeavours to:
8.3.1 respond (meaning to provide an acknowledgement) to all Support Requests in accordance with the responses times specified in the table set out below; and
8.3.2 rectify all Bugs in accordance with the rectification times specified in the table set out below.
8.4 The parties hereby agree and acknowledge that any downtime of the site, this may include but is not limited to downtime for maintenance or agreed downtime in advance, will not:
8.4.1 constitute a Bug; or
8.4.2 benefit from the Service Levels in respect of any such downtime.
9. Service Credits
9.1. If the Supplier fails to use reasonable endeavours to provide a Solution within the relevant Service Level response time or rectification time, the Client shall become entitled to the Service Credit provided that the relevant Bug or other problem relating to the Software:
9.1.2 did not result from a Client Cause or a cause outside the Supplier’s control; and
9.1.3 does not amount to an Out-of-scope Task;
9.1.4 any downtime caused by a hosting provider (where not the Supplier);
9.1.5 any downtime resulting from our suspension of the Support Services pursuant to paragraph 3.6.2.
9.2 The parties acknowledge that each Service Credit is proportionate when considering the Client’s legitimate interest to address and resolve all Bugs as quickly as possible.
9.3 The provision of a Service Credit shall be a sole and exclusive remedy for a particular Service Level failure.
9.4 The Client may request the Service Credit in writing via email at [email protected] within 30 days of the Supplier failure to provide a Solution within the relevant Service Level response time or rectification time. Failure to make a request within 30 days will result in the Client forfeiting its rights to Service Credit.
9.5 In the event of termination or expiration of the Agreement all outstanding Service Credits will expire and cease to become payable.
9.6 Service Credits shall be shown as a deduction from the amount due from the Client to the Supplier in the next invoice then due to be issued under this agreement. The Supplier shall not in any circumstances be obliged to pay any money or make any refund to the Client.
10. Other remedies
10.1 If a Solution is not provided within the relevant Service Level response time, the Client may escalate the Support Request to the Supplier’s senior management identified below:
Jonny Vaughan
Technical Director
[email protected]
0118 391 3911
2 Forest Court
Oaklands Park
Wokingham
RG41 2FD
11. Maintenance and Staging Maintenance
11.1 The Supplier shall perform monthly Security Maintenance on the Client’s live Site.
11.2 The Supplier is under no obligation to provide a minimum number of software updates in any one calendar month, and the provision of such software updates are completed in the Supplier’s sole and absolute discretion.
11.3 Minor updates will automatically apply as they are released but if in the reasonable opinion of the Supplier the Security Maintenance constitutes a major update the Supplier will use a Staging Environment to test the updates.
11.4 To test major updates the Supplier will create an exact copy of the Client’s live site (“Staging Environment”). The Supplier will use the Staging Environment to test the updates without causing disruption to the Client’s live site.
11.5 During the Staging Environment the Supplier may request all users of the live site to be locked out (“Lock Out Period”).
11.6 If the Supplier requires a Lock Out Period the Supplier will provide the Client with as much notice as reasonably practicable.
11.7 The Supplier will use reasonable endeavours to ensure that the Lock Out Period last no more than 2-4 Business Hours.
11.8 Once the Supplier has completed its testing the Supplier will either:
11.8.1 copy the Staging Environment back to the live environment in its entirety; or
11.8.1 apply the updates that the Supplier tested to the Client’s live site.