Understanding Hosting Terms of Service: Part One

For our new series on understanding hosting company’s terms of service agreements, we’re going to start with the basics. This series will clear up common misconceptions about hosting agreements, cut through hard-to-understand jargon and help you find out what terms you are really agreeing to follow. Each common provision of these agreements will be presented and thoroughly examined.

For our examples we have used a standard Terms of Service agreement from one of the hosting industry’s leading providers. Please keep in mind that these agreements may vary with different hosting companies. If you don’t understand a specific provision of an agreement, you should always check with the hosting company before signing.

The Introduction
(Date TOS Agreement Was Modified and/or Created)

This document (the “Agreement”) sets forth the principles, guidelines and requirements of the Terms of Service of ______, a (state name here) incorporated company (the “Company”) doing business as hosting.com governing the use by the customer (“Customer”) of Company’s services and products (“Services and Products”). These Terms of Service have been created to promote the integrity, security, reliability and privacy of Company’s facilities, network, and Customer data contained within. The Company believes it provides the best services in the industry, and provides the following policies in the best interests of the Company and the Company’s clients. The Company retains the right to modify these Terms of Service at any time and from time to time and any such modification shall be automatically effective as to all customers when adopted by Company and published at (company’s location of TOS file). Company shall be the sole and final arbiter as the interpretation of the following. By utilizing the Company’s services and products, the Customer agrees to be bound by the terms herein outlined.

Questions or comments regarding this document should be forwarded to the Company at the following address: ____ or by Facsimile: (___-___-____)

This section is a general introduction to a TOS agreement and should include the actual name of the company, their status of incorporation, and how they will be referred to in the remainer of the agreement. The date that the agreement was drawn up or modified is normally included in this section. It is a good idea to check back with a hosting company’s TOS to see if any provisions have been modified. In most cases, current hosting customers will be notified when a provision changes, but it doesn’t hurt to keep checking back.

How you, the customer, will be referred to in the remainder of the document is also included in this section. Although it may seem strange to refer to a hosting company as “The Company” and you, the customer as the “Customer” it helps a company quickly create a document that doesn’t need much modification.

This section should also include the actual physical location of the company. This particular agreement uses only the state where the company is physically located, but most TOS agreements should contain the actual physical address. This can help you in the event that you need to track down the company in the future or in the event that you need to pursue legal action against them. If a company does not include their physical address or at least their state of residence, you should be wary.

The state laws where the company is doing business will most commonly be the laws that are used to intrepret this document. Since state laws can vary widely, this is done to make the agreement more clear and to provide a firm foundation for its terms. It can also be very confusing for customers, since they may not be familiar with another state’s laws. Another important point to this provision is that in the event that you need to file a legal claim against the company, it will need to be filed in the company’s state of residence. If a company has multiple data locations, this may mean that the agreement is subject to several state’s laws, and you may need to find the appropriate location in order to file a legal claim.

Finally, this provision should contain contact information such as an email address, phone or a fax number where the company can be reached. This is the contact information that you should use in the event that you don’t understand a specific provision of the agreement or if you need further clarification. This can also be the point of contact in the event that there is a dispute.

Compliance with the Law

Customer shall not post, transmit, re-transmit or store material on or through any of Services or Products which, in the sole judgment of the Company (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, “Persons”) or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other software products that are not appropriately licensed for use by Customer. The Customer agrees to indemnify and hold harmless the Company from any claims resulting from the use of the services which damages the Customer or any other party. Customer shall be responsible for determining what laws or regulations are applicable to its use of the Services and Products.

This provision is used to protect the hosting company in the event that you post content which violates specific laws and/or their TOS agreement. This provides the company with legal indemnification from your actions. By your action of signing this agreement, the hosting company cannot be held liable for any laws that you break through any of the actions listed in the provision.

As the battle for privacy rages throughout the internet, hosting companies have been very careful to distance themselves from any liability that they may face from their customers. Other concerns for hosting companies include copyright infringement. If they did not put this provision in their TOS agreement, there are legal precedents in place which could lump them into a lawsuit filed by the copyright holder if you violate copyright law.

For most customers, this is not an area of concern. However, it is important to understand that your agreement to the TOS means that the hosting company cannot be held liable for anything that you do with your site.

Our next article in this series will cover one of the most complicated parts of a TOS agreement, the Prohibited Uses of Services and Products.

Related Posts:
03/13/2006 Web Hosting Information Podcast
Understanding Hosting Terms of Service: Part Two
Understanding Hosting Terms of Service: Part Three
Hosting Industry Daily Briefing for 03/14/2006
Benefits of Understanding HTML

Posted on 03/2/06 3:29 AM

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