Terms & Conditions
Fishtank Agency Terms & Conditions - Updated December 2021
Fishtank Agency is a trading name of Fishtank Creative Ltd whose registered office is at Suite 8, 1812 Building, Wheatley Park, Mirfield, West Yorkshire, WF14 8HE, UK. You should ensure that we are informed from the outset the legal status of your business whether you are a sole trader, partnership, LLP, Limited Company, PLC. We reserve the right to carry out credit checks and verification of your business before proceeding with your instructions.
These Terms of business may not be varied unless agreed in writing and signed by the Managing Director of Fishtank Agency. These terms of business should be read in conjunction with the accompanying letter of engagement which provides the specifics of our project with you.
Details of our fees and charges and the agreed frequency of billing, and terms for payment are contained in the accompanying engagement letter. We reserve the right to cease to carry out work for you in the event that our payment terms are breached by delayed or none payment. Where this agreement is terminated all fees, expenses and charges remain payable by you.
Our Duties to You
You can expect to receive from us:
A prompt efficient and professional service
Utmost confidentiality in respect of all information shared with us, even after the termination or ending of this agreement.
Confirmation from us where a conflict of interest has arisen between our acting for you and another client or clients. In order to maintain our other clients’ confidentiality we may not disclose the details of such conflict to you, simply that one has arisen. We will confirm whether we consider the conflict to be material or immaterial to our relationship. We will confirm to you if we opt to terminate our agreement. Equally you will be free to terminate our agreement, without penalty in such circumstances.
Your Duties to Us
We expect to receive from you:
All necessary information and data in order to provide an effective service to you
Prompt response to request for information, approvals and instructions in order to maintain the quality of our service to you.
The terms of our agreement will continue upon the basis of these Terms of Business, until we cease to act for you. From time to time as your instructions change and we work on different projects and briefs for you we will supply a further client engagement letter detailing your instructions, which should always be read in conjunction with these Terms of Business. We reserve the right to terminate this agreement with you upon our giving you notice seven days in writing.
All records held by Fishtank Agency, save those required for our own financial and business records, will be returned or destroyed upon the termination of our agreement once all fees and charges are paid.
Reimbursement of Expenses
From time to time it will be necessary for us to incur expenses on your behalf in order to fulfil our instructions from you. We will invoice you for these expenses periodically and when it is incurred and expect you to discharge these invoices within 14 days of receipt.
Relationship of Parties
The accompanying letter of engagement makes it clear as to the nature of the work we are required to undertake on your behalf. In certain situations we will be acting as an agency on behalf of you, we will not be an employee nor will employees of Fishtank Agency become your employees or our subcontractors under the terms of this engagement.
All notices under this agreement shall be sent by recorded delivery mail via Royal Mail to our Registered Office. Where we serve any notice upon you, we will do so, and it will be considered effective for the purposes of this agreement for us to send this to the last address we hold on our records for you.
Fishtank Agency will always use its best endeavours to provide an excellent quality service to our clients, including wherever possible to comply with time limits and requested delivery dates asked of us by you, however for the avoidance of doubt, time shall not be of the essence in respect of our agreement unless agreed in writing by ourselves.
We cannot and will not be held liable for any delay, loss or action arising out of your failure to respond promptly to requests for approvals, information or instructions.
All material supplied by you we accept on the basis that you own the copyright or have the necessary permissions of the copyright holder. All material prepared by us for you, copyright of such produced material will pass you upon payment of our invoices in respect of such work. Where we produce material and you do not settle all invoices in respect of all our work for you, copyright in such material will remain with Fishtank Agency.
You will Indemnify Fishtank Agency against all actions, claims and disputes, arising from or brought about by information provided by you. Fishtank Agency holds professional indemnity insurance with Aviva.
These Terms of Business and the accompanying letter of engagement together with any further and subsequent letters of engagement shall form the entire agreement between us. No verbal promises or representations by either party, unless confirmed in writing in accordance with these terms of business will serve to amend our agreement.
If any provision of this agreement is held to be invalid or unenforceable, then this agreement shall be construed as if such clause were removed, and no unenforceability of a single clause shall cause this entire agreement to fail.
These Terms of Business shall be governed by and interpreted in accordance with English law. Any disputes or claims under this agreement shall be dealt with only by the courts of England and Wales.
Websites & Hosting – Service Level Agreement (SLA)
This web site availability service level agreement (SLA) applies to you if you have a hosting plan (“service”) and you are in good financial standing with Fishtank Agency.
Fishtank Agency endeavours to have network connectivity available for http access by third parties 99% of the time (“web site availability”). We simply endeavour to achieve this goal and in the past 12 months we have achieved this on all our servers. However, we cannot offer any guarantees. If you require a guaranteed service we recommend looking elsewhere. We cannot be held responsible financially or otherwise should your website not be available for a period of time.
In the event that there is no website availability, Fishtank Agency will credit the monthly service charge for the service as calculated below and as measured 24 hours a day in a calendar month. The maximum credit is not to exceed the monthly service charge for the affected month (total yearly cost paid minus domain cost if applicable divided by 12):
Website availability credit
95% to 99% = 25%
90% to 94.9% = 50%
89.9% or below = 100%
In order for you to receive a credit on your account, you must request such credit within five (5) business days after you experienced no web site availability so that we may check our stats and your stats. You must request credit by contacting our support team via email on firstname.lastname@example.org. For security, the body of this message must contain your domain name, the dates and times of the unavailability of your web site, and such other customer identification requested by Fishtank Agency. Credits will usually be applied within sixty (60) days of your credit request. Credit to your account shall be your sole and exclusive remedy in the event that there is no web site availability.
Credits shall not be provided to you in the event that you have no web site availability resulting from (i) scheduled maintenance, (ii) your behaviour or the performance or failure of your equipment, programs or applications, or (iii) circumstances beyond Fishtank Agency reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike, pandemics, endemic, illnesses & diseases or other labour disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your website.
Online problems occur continuously. There might come a time when you cannot access your website or any other service. This is not necessarily due to Fishtank Agency. Perhaps your ISP is experiencing technical difficulties, or there might be a routing problem between your ISP and the data centre utilised by Fishtank Agency, making communication difficult or impossible. We cannot bear the responsibility of such problems. Our monitoring agents determine the uptime of our service, and not any one client’s experience.
POP Checks Per Hour
In a shared hosting environment, having a few hundred POP3 accounts check mail every minute is abusive to the server and can increase server load. If you do not need to auto-check your mail accounts, please disable the feature in your email client and manually check your mail when needed. Because of users that do need to check their mail very often, we have to impose a mail policy for everyone’s sake. This portion of our mail policy deals directly with POP checks per hour, per domain. Our default allowance per domain is 60 checks per hour. This can allow one account, for example: email@example.com to check every 1 minute. If you have two accounts: firstname.lastname@example.org and email@example.com, the checks can be spread out between those accounts equally at 2 minute intervals. If you have more than two accounts, you can increase the intervals as needed. Please also remember that you can use email address forwarders; they can be extremely useful for you if you need to have multiple email addresses in use.
While we would like to let everyone poll the server as many times as they want, and for as many accounts that they have, we have to impose limits on our servers. We have to be realistic since the performance of the server is very important. It would be easier to have policies than to be on a server that is timing out on web requests, or having trouble queueing mail at all due to load spikes.
As covered earlier, we understand that in some cases you will have numerous people checking firstname.lastname@example.org, email@example.com and firstname.lastname@example.org. If you have many mail accounts under one domain, the policy will still have to apply as is. We cannot permit many accounts checking every minute, especially under ownership of one account, when there are ways to alleviate the effects. We will review this policy and increase the limit if server load appears not be being affected.
If you have popped your mail more than the amount of times allowed, your password will be rejected and you will see a message such as this:
There was a problem logging onto your mail server. Your Password was rejected. Protocol: POP3, Server Response: ‘-ERR You have exceeded the number of connections you are permitted to make per hour. Please wait a couple of minutes and try again.’
If this occurs, you can check your webmail at: http://webmail.YOURDOMAIN.com/**
** Replace ‘YOURDOMAIN’ with your specific domain name
It is important to note that at times a server’s limits will be changed from what they were set to previously. Accounts on an individual server have different (and sometimes unpredictable) needs and perform varying activities. We can state that the limits will remain at X and Y, but if a server is showing signs of trouble, we will need to cut additional corners on what processes are using the most CPU time. On the flip side, if we see a server is performing perfectly as is for months, we can then expand the limits gradually until a new comfortable but safe zone is reached. However, this mantra can be applied to many aspects of server use policies, not just mail.
If email accounts hosted by Fishtank servers are identified as being compromised, Fishtank reserves the right to suspend any or all email services provided until further notice. Fishtank also reserves the right to suspend any or all email services if they are found to be sending spam, phishing and/or unsolicited emails intentionally or unintentionally. Email services proved my Fishtank are not to be used for mass email for marketing or any purpose can also lead to suspension of service.
Opt-in Email Marketing
If you choose to engage in marketing your site and/or services via email please heed the following. The only permitted form of email marketing is that in which the list is “opt-in”. By definition, opt-in is where people provide you with their email address specifically requesting to be on your email list for information about your site and/or service. Even opt-in has its share of issues, so we cannot guarantee we will host this type of site on our network. If we find your account transmitting email to persons that did not authorise such activity, that is grounds to suspend and terminate your site.
Note: The joining of an opt-in email list does not guarantee the legitimacy of such a list. Please contact us before joining any such list so that you will not be a victim of spam from second and third parties of such lists. We would be happy to help you determine if a list looks legitimate.
Due to the nature of the internet your site can be accessed by individuals outside of our or your control. Fishtank Agency take active steps to ensure that websites created and hosted by Fishtank Agency are protected from attacks of a malicious nature. In spite of these steps sometimes a site can be compromised through no fault of Fishtank Agency. Fishtank Agency accepts no responsibility should such attacks occur which either result in damage or downtime to the website or associated links. Should you wish to host your website on a server provided by another supplier, Fishtank Agency accepts no responsibility or liability should your website fall victim to an attack or hack.
For terms and conditions specific to your maintenance agreement please refer to your signed contract.
Maintenance contracts run on a monthly allowance of allotted time. The time is used for necessary functional and/or security updates completed on:
- the hosting server
- associated website code
These are checked on a monthly basis on the 1st of every month or soonest working day thereafter. If, after our monthly updates are completed, your maintenance plan still has remaining time, this can be requested to be used for additional work on the website.
Additional work covered by maintenance agreements include:
- CMS content management
- Amends or additions to existing templates or functionality
- Browser compatibility & functionality bug fixes
Website maintenance plans do not cover the following areas:
- Work exceeding 1 working day (7.5 hours)
- New templates or functionality
- New websites
- Working on external websites outside the maintenance contract
Additional work requests will be quoted for with the amount of time it will take to complete and will be booked in for completion to the Development Studio schedule and you will be advised of the date by your Account Manager. Emergency requests will be completed sooner if:
- The website is down/non-functional
- The server is down/non-functional
- Integral website design and /or functionality is non-functional
Work completed will be deducted from your monthly allowance managed via a shared maintenance log. Fishtank reserve the right to complete any emergency maintenance work and deduct any time for work completed in the case of security updates and/or malicious attacking.
Having a monthly plan with any hours not used in a month period, the balance will then carry over for one month only. Please note that hours can only carry over within a 1 month period at a time and can not be accumulated over a longer period. We reserve the right to update this and amend as required by the business. Additional maintenance work requests will be deducted from the current month’s allowance until depleted and then from any subsequent rollover from the previous month.