Website Support & Maintenance Agreement
In consideration of you, the customer, engaging the services of Akiko Design to support & maintain your website and by making use of our services you acknowledge that you have read, understood, and agreed to the terms and conditions set out in this agreement to the exclusion of all others.
- Parties to this Agreement
- Definitions & Interpretation
- Availability of Service & Service Requests
- Fees & Payment
- Changes to this Agreement
- Client Undertakings & Obligations
- Security & Data Privacy
- Intellectual Property & Proprietary Rights
- Warranties & Disclaimer
- Indemnities & Limitation of Liability
- Force Majeure
- Term, Renewals & Termination
- Joint Venture or Partnership
1. Parties to this Agreement
This Agreement is between:
a) Akiko Design Ltd, Registered at Suite 13 Bramley Business Centre, Station Road, Bramley, Surrey GU5 0AZ (“the Agency”) and
b) The Customer (or you), being the legal person or entity that has requested the Services in accordance with the Order (“the Client”)
a) The Agency is a digital design and development agency offering branding, website design, development, support & maintenance, search engine optimisation, and hosting services to clients using appropriate hardware & software providers connected to the world wide web via the internet.
b) The Client wishes to use the Agency’s services to support & maintain the client’s website and by accepting a Proposal or making use of the Services or making a payment of invoice to use the services supplied, the Client acknowledges that they have read, understood, and agreed to these Terms and Conditions to the exclusion of all others.
It is agreed as follows:
2. Definitions & Interpretation
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Account” means the details of the Client that are required and held by the Agency to facilitate the provision of the Service to the Client including, but not limited to, identification and location details, payment details, username and password, and details of the Service provided to the Client;
“Business Day” means a day (that is not a Saturday or Sunday) on which banks are open for business in the UK.
“Client Website” means the website that the Agency is supporting for the Client and refers to all parts of that website including, but not limited to, frameworks, content management systems, themes, plugins, component files and databases;
“Fee” means the sum payable by the Client to the Agency in order to receive the Agency’s Service;
“Intellectual Property” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world as at the date of the Contract or in the future.
“Order” means an order placed by the Client with the Agency for the provision of the Service; and
“Service” means the collective components of the Agency’s support & maintenance service which includes, but is not limited to, telephone support, monitored email support, online support portal, remote assistance using remote desktop and/or a virtual private network where available, planned or emergency onsite assistance, backups, monthly plugin & framework updates, SSL management, uptime monitoring, and security scanning. The Client’s chosen Support & Maintenance Package can refer to these components as a whole or to specific parts as the context may require. The clause headings used in this Agreement are used for convenience only and are not intended to affect the meaning or interpretation of the terms of this Agreement.
“Software” means all software used by the Agency in the provision of the Service;
“Support & Maintenance Package” means one of the Service packages offered by the Agency and generally refers to the package selected by the Client;
“UK GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act of 2018;
Once the Client’s Order has been placed and processed, the Agency will use its best endeavours to commence provision of the Service as soon as reasonably possible. In any event the provision of the Service will commence no later than 20 Business Days after acceptance of the order, or upon completion and approval of the Client’s Website.
The Agency is under no obligation to provide any Service that is not set out in the Client’s Order and the relevant Support & Maintenance Package unless the Agency and Client enter into a new written Agreement for the provision of additional services.
The Agency may, in its sole discretion, alter, improve or otherwise modify the Service; provided that any such change will not significantly alter the provision of the Service to the Client or result in the removal of any features or services and the Client will receive full documentation of any action required on their part.
No alterations to the Service shall affect the Fees payable by the Client during their contractual period.
For the avoidance of doubt, this agreement includes:
- Editing, revising, updating or creating new textual / graphical content.
- Consultation and guidance on the use of the website.
- On page SEO such as Meta Tags (title, description, keywords), Alt Tags, H1, H2, H3.
- Website & Database Backups
- WordPress Core Updates (if applicable)
- Plugin & Framework Updates
This agreement does not include website redesign, re-alignment or re-development equalling more than 50% change to a web page, web site, or web graphics on the website.
The Agency may take any action necessary to address or repair urgent or business critical faults on the Client’s website without any prior notice to the Client. If such faults or remedial action results in website downtime, the Client will be notified at the Agency’s earliest convenience.
4. Availability of Service & Service Requests
Effective provision of in-scope services is the result of maintaining consistent service levels. The following sections provide relevant details on service availability, monitoring of in-scope services and related components.
4.1 Telephone Support
The Agency will provide telephone support for ‘Urgent’ requests between the hours of 9.00am and 5.00pm Monday to Friday, excluding Bank Holidays.
4.2 Online Support Portal
The Agency will provide support between the hours of 9.00am and 5.00pm Monday to Friday, excluding Bank Holidays, via an online ticketing portal. Requests received outside of these hours will be collected, however no action can be guaranteed until the next working day.
4.3 Onsite Assistance
Where onsite assistance is required the Agency will provide this within 5 working days, subject to additional charges.
4.4 Service Requests
In support of services outlined in this Agreement, the Agency will commence working on service related incidents and/or requests submitted by the Client within the following time frames:
Urgent: 1 Hour
High: 8 Working Hours
Medium: 2 Working Days
Low: 5 Working Days
Upon receipt of new service related incidents and/or requests by the Client, the Agency will assign an appropriate level of priority based upon the below guidance:
Urgent: An issue that is business critical and results in multiple users being unable to use the services, including but not limited to, website downtime.
High: An issue that results in a single user being unable to use the services, or a fault with a non-business critical service that impacts multiple users.
Medium: A non-business critical component is impaired, but users can continue to use the services.
Low: A request to make a change to the service, system or platform, such as adding or removing content, changing permissions, granting access etc. These are requests that can normally be predicted and therefore planned in advance.
The Agency will assign a minimum of 15 minutes to each service related incident received.
5. Fees & Payment
Fees for the Support & Maintenance Packages offered by the Agency are as quoted in correspondence or email to the Client. All charges payable by the Client shall be in accordance with the information quoted.
For the first period of Service provision in some cases the payment of fees due shall form part of the Order process, for all subsequent periods of Service provision the Client will be sent an invoice upon the expiry of the current period.
Payment must be made within 30 days in order for provision of the Service to continue without interruption.
The Agency may at any time change the price of its Support & Maintenance Packages, however the Client will not be subject to any additional charges or refunds during the existing period of Service provision.
Any change in fees will be reflected in subsequent renewals of the Service provision.
All fees payable by the Client to the Agency shall be paid in full, without set off or deduction.
Payments may be made by BACS or cheque, or for overseas Client’s via Pound Sterling International Money Orders or previously agreed electronic funds transfer. The Company reserves the right to charge the Client any fees encountered as a result of such transfer.
Returned cheques will incur an additional fee of £50.00 + VAT per returned cheque. The Company reserves the right to consider an account to be overdue in the event of a returned cheque.
The Agency reserves the right to suspend the Service or cancel the Client’s Order if fees are not paid on or before the due date.
Where an account requires litigation to collect an overdue debt an administration fee of £250.00 plus VAT at the prevailing rate will be payable. Client’s whose accounts become overdue agree to pay the Agency reasonable legal expenses and third-party collection agency fees in the enforcement of these Terms and Conditions.
Interest shall be payable on overdue payments at the rate of 8% plus the Bank of England base rate to run from the due date for payment thereof until receipt by the Agency of the full amount whether or not after judgement.
6. Changes to this Agreement
The Agency reserves the right to change the terms of this Agreement and all other terms and conditions and policies which may affect Clients in order to comply with changes in the law.
The Client will be informed of any such changes and shall be deemed to be bound by them 1 calendar month after receiving the notice.
If the Client does not agree to be bound by the changes they may terminate this Agreement in accordance with the Term and Termination clause of this Agreement.
7. Client Undertakings & Obligations
The Client may not use the Service or any Software for any unlawful or otherwise inappropriate purposes. This includes, but is not limited to:
a) Distribution of viruses, spyware, malware, or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent;
b) Distribution of pirated material including, but not limited to software, movies, music and written works; and Distribution of obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities;
c) Distribution of large volumes of unsolicited email (spam) to recipients. All complaints made to the Agency of such activity will be investigated and may result in immediate suspension or cancellation of service at the Agency’s sole discretion;
d) The Client may not use their website to link to any other sites or systems hosting any material described above;
e) Use of the Client’s Website in any manner which is a violation or infringement of the rights of any individual, firm or company within the United Kingdom and elsewhere.
The Client will monitor and supervise any and all third-party activity on their website (including communications systems such as forums). Any third-party activity that may fall within the criteria above must be stopped or removed, as appropriate.
The Client must ensure that any and all activity conducted through the Client’s Website in relation to the collection of personal information complies with the provisions of the Data Protection Act 2018 and UK GDPR.
The Client is responsible and accountable for all activity relating to the Client’s Website and the Service that is carried out by third parties on their behalf.
The Client will use its best and reasonable endeavours to supply all information required to facilitate the provision of the Service to the Agency in a timely fashion.
8. Security & Data Privacy
The Agency will maintain commercially reasonable technical and operational measures designed to protect their hardware and software from malicious activity and provide for the security and integrity thereof. The Client acknowledges that the Agency is not responsible for any loss or harm suffered by the Client resulting from a security incident. The Client is responsible for determining whether the Services meet applicable regulatory standards and otherwise comply with their own security requirements. The Client agrees to configure their use of the Services in such a way as to maintain the security of the Services (e.g. by only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords).
Where applicable under the data privacy laws of the United Kingdom, the Agency is the data controller for the personal data belonging to the Client and their authorised users which is provided or made available to the Agency. For all other personal data collected by the Client from their employees, customers, or end users or otherwise stored, transferred, or processed by any part of the Services, the Agency is the data processor. Where the Agency is the data processor, the Agency will use such personal data only as instructed by the Client or required by law, and not for any other purpose. In all cases, the Parties agree to comply with the terms and obligations of the Data Processing Agreement throughout the term of this Agreement.
9. Intellectual Property & Proprietary Rights
The Client will not acquire ownership rights over any of the Agency’s Intellectual Property in or in relation to the Service or in relation to any other property owned by the Agency.
The Agency will not acquire ownership rights over any of the Client’s Intellectual Property in the Client’s Website or any other material belonging to the Client. In consideration of the Fees and Payment paid in full by the Client to the Agency, the Agency grants to the Client a non-exclusive licence to use any Agency Software issued and authorised by the Agency for use by the Client for the Client’s Website.
The Client may not use the Agency Software for any other purpose other than as specified in this Agreement without the prior written consent of the Agency and the Client acknowledges that additional fees may be payable on any change of use approved by the Agency.
The Client agrees to fully indemnify the Agency against all costs, expenses, liabilities, losses, damages, claims and judgements that the Agency may incur or be subject to as a result of the infringement of any Intellectual Property infringement owned by third parties arising from:
a) The Client’s failure to obtain the necessary rights and permissions from third parties in order to enable the Agency to legally provide the Service;
b) The provision of the Service by the Agency based upon information and material provided by the Client.
The Agency shall not be liable to the Client or to third parties for:
- Any losses resulting from interruptions or downtime to the Service;
- Any inability, on the part of the Client, to use the Service;
- Any damage or loss resulting from the loss of confidentiality caused by the storage of information on the internet.
Nothing in this Clause shall exclude the liability of the Agency for death or personal injury resulting from the Agency’s negligence or that of its employees or agents.
Nothing in this Clause or in this Agreement shall exclude the liability of the Agency for fraudulent misrepresentation.
11. Warranties & Disclaimer
Both Parties to the Agreement represents and warrants that they are authorised and permitted to enter into the Agreement and have obtained all necessary permissions and approvals.
Both parties warrant and undertake that they are not aware as at the date of the Agreement of anything within their reasonable control which might or will adversely affect their ability to fulfil the obligations under the Agreement, and that they will comply with all laws and regulations applicable to its performance under the Agreement.
12. Indemnities & Limitation of Liability
The Client will fully indemnify the Agency against all costs, expenses, liabilities, losses, damages and judgements that the Agency may incur or be subject to as a result of any of the following:
- The Client’s misuse of the Service;
- The Client’s breach of this Agreement;
- The Client’s negligence or other act of default;
- The Activities of third parties conducted on the Client’s website using facilities such as blogs, forums and chat.
Although the Agency will perform regular backups of the Client’s website and Customer Content (as described in the Order), the Agency does not guarantee there will be no loss or corruption of data. Corrupt or invalid backups may be caused by, among other things, content that is corrupted prior to being backed up or that changes during the time a backup is performed. The Agency will provide support to the Client and attempt to troubleshoot any known or discovered issues that may affect these backups, but the Client acknowledges that the Agency has no liability related to the integrity of such backups or the failure to successfully restore the content to a usable state. The Client agrees to maintain a complete and accurate copy of any Customer Content in a location independent of the Services.
Except as expressly provided in this agreement, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and the Agency and its licensors specifically disclaim all implied warranties including, but not limited to, any warranties of merchantability, fitness for a particular purpose, non-infringement, uninterrupted or error free service, availability, accuracy, and any and all implied warranties arising from statute, course of dealing, course of performance, or usage of trade to the maximum extent permitted by applicable law. Other than as expressly set out in this agreement, the services are provided as-is, as available, and with all faults.
In no event shall the Agency’s liability arising out of or related to the agreement for any reason (including, but not limited to, contract, tort, or any other theory of liability) exceed in the aggregate the amount of fees paid or owed by the Client to the Agency in the 12 months preceding the claim.
In no event shall the Agency or their licensors have any liability for indirect, special, incidental, consequential, or punitive damages, nor any cover for lost profits, however caused, arising out of or in any way connected with this agreement whether or not the Agency have been advised of the possibility of such damages.
The Client agrees to indemnify the Agency against any claims, damages, losses, costs and expenses which the Agency may sustain or incur in relation to any content and materials which the Client provides, such indemnity applying in respect of any claims for any breach of applicable law or regulation or any infringement of any intellectual property rights.
The Agency agrees to indemnify the Client against any claims, damages, losses, costs and expenses which the Client may sustain or incur in relation to breaches of the Confidentiality and Intellectual Property Rights clauses of this Contract committed knowingly by the Agency.
Nothing in this Contract shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees.
13. Force Majeure
Neither the Agency nor the Client shall be liable for breaching this Agreement where that breach results from Force Majeure.
Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to, acts of God; acts of war; national emergencies; governmental action; union action; civil unrest; fire; explosion; flood and theft.
14. Term, Renewals & Termination
14.1 Initial Period of Service
The initial period of Service will commence on the date that the Client’s Website goes live, or the Client’s Order is processed. This term shall last for a period specified in the order, subject to the termination provisions below.
Upon expiration of the initial period of Service, this Agreement will renew for successive Renewal Terms, each equal to the immediately preceding term, unless one Party notifies the other in writing of its intent not to renew no later than 30 days prior to the expiration of the then-current term. Subsequent periods of Service will follow on from a previous period, without interruption, subject to the fulfilment of the Client’s obligations under the Fees and Payment Clause of this Agreement. All subsequent periods are subject to the termination provisions below.
14.3 Termination by Either Party
Either party may terminate this Contract immediately in the event that:
- Either party commits a serious, grave or material breach or persistent breaches of this Contract including non-performance, default or neglect of its duties, responsibilities and obligations under this Contract, and
- Such breach remains unremedied for a period of 30 days from written notice given by the other party specifying the breach and requiring its remedy; or
- Such breach is not capable of remedy.
14.4 Termination by the Agency
The Agency reserves the right to terminate this Agreement at any point with one months’ written notice at the Agency’s discretion, or the Agency reserves the right to terminate this Agreement or to suspend the Service with immediate effect in the following circumstances:
- If the Client fails to pay fees due under the Fees and Payment Clause of this Agreement; or
- If the Client is in breach of the terms of this Agreement; or
- If the Client becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986; or
- If the Client is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
- If the Client has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
14.5 Termination by the Client
The Client may request the termination of the Service and this Agreement at any point with one months’ written notice. The following shall apply to such situations:
- Any issuing of refunds is at the sole discretion of the Agency.
- If the Client wishes to terminate during the course of a period of Service provision the Service will end 1 month after the Agency receives the Client’s written notice.
- If the Client sends a termination notice in error or changes their mind, the Agency must be informed within 2 months of the notice that the Client wishes the Service to be restored. Any notification outside of this period will require a new Account to be set up, with the Client being required to pay for a new Support & Maintenance package.
- The Client will be required to pay a re-activation fee of £100.00 plus VAT.
Upon termination of this Contract the following shall become immediately due:
- Any and all outstanding invoices; and
- Any costs accrued up to termination date not already subject to invoice; and
- Any costs incurred by the Agency upon termination of the contract; and
- Removal of the Agency’s software, and all related material, from the Client’s website.
The Agency reserves the right to assign or otherwise transfer any rights or obligations under this Agreement.
The Client may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agency.
In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The waiver by either party of any provision of this Agreement will not operate or be interpreted as a waiver of any other provision or a subsequent breach of any provision.
Both parties shall keep in strict confidence all information which are of a confidential nature and have been disclosed by one party to the other party and shall procure that the receiving party’s employees, agents, consultants or subcontractors keep in strict confidence all such information other than for the purposes of performing its obligations under this Agreement.
Any notice given by either of the parties under this Contract shall be served on the other party and addressed to that party’s signatory by email, personal delivery, pre-paid recorded delivery or first-class post to the receiving party as set out in this clause.
Any such notice shall be deemed to be effectively served as follows:
a) In the case of service by pre-paid recorded delivery or first-class post 48 hours after posting; or
b) In the case of service by email on the next working day
19. Joint Venture or Partnership
Nothing in this Agreement shall be construed as creating a partnership, joint venture or an agency relationship between the parties and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party.
Failure by either party to enforce any accrued rights under this Agreement is not to be taken as or deemed to be a waiver of those rights unless the waiving party acknowledges the waiver in writing.
It is hereby declared that the foregoing paragraphs, sub-paragraphs and clauses of this Agreement shall be read and construed independently of each other.
Should any part of this Agreement or its paragraphs, sub-paragraphs or clauses be found invalid it shall not affect the remaining paragraphs, sub-paragraphs and clauses.
No addition to or modification of any clause in this Agreement shall be binding on the parties unless made by a written instrument and signed by the signatories to this Contract or their duly authorised representatives.
This Agreement sets out the entire contract and understanding of the parties and is in substitution of any previous written or oral Agreements between the parties.
This Agreement shall be interpreted construed and enforced in accordance with the laws of England and Wales.
The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England over any claim or matter arising under or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
If at any time any question, dispute or difference whatsoever shall arise as to the formation, meaning, operation, validity or effect of the Agreement or the rights, duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of the Agreement, either party may give to the other notice in writing of the existence of such question, dispute or difference and the same shall be referred to a mutually agreed Third Party Mediator within 14 days of such notice.
If an attempt at mediation as in the above clause should fail then the dispute or difference shall be referred to the arbitration of a single arbitrator to be agreed upon by the parties within 14 days of the failure of such an attempt, or in default of such agreement, to be nominated by the President for the time being of the Law Society of England and Wales such arbitration to be conducted in accordance with the Arbitration Act 1996.
The headings in these Terms and Conditions are for convenience only and are not intended to have any legal effect.
20.5 Third Party Rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.