LAW4IT.COM NEWSLETTER                            [2002] LAW4IT.COM 02

Law For Information Technology Newsletter Web Site Hosting

In the event businesses wishing to create web sites do not have their own servers, it is necessary to search for a company to host the web site. A web site hosting agreement should be executed to protect both the Host and the end user for which the web site is being hosted. The end user will want to ensure that the Host will assist should it want to change to a different Host as well as ensure a specified level of security. Also, the Host will the end user to agree to its rules which will prevent the end user from publishing obscene or unlawful materials and the Host will seek an indemnification from the end user to protect itself from legal action due to the materials that the end user uploads onto its web page. Therefore, it is very important for both parties to have an agreement in place.

The following are the major issues that arise in a web site hosting agreement:

Preamble Clauses: provides necessary background information.
Duties: defines what each party is required to do in connection with the hosting of the web site. For example, it would define what the host is providing such as the amount of permissible storage and who is responsible for maintaining the HLML code as well a description of any services to be provided by the Host.
Fees and payment: defines the fees that the end user will pay and when and how payment is to be made.
Rules:The host will request that the end user agree to its reasonable rules which it can change from time to time upon reasonable notice.
Compliance with Laws: The host will want to ensure that the end user complies with all laws and that the end user does not post any prohibited material that is obscene or infringers any copyright or trade mark. Also of concern is that, due to the difficultly of determining jurisdictional issues, material that offends foreign jurisdiction such as those of the United States should be considered. .
Limitation of Liability & Indemnity: The host will want to define and limit its liability with respect to down time and will seek an indemnification from the end user. The end user will seek the opposite
Back up: defines if the host is responsible for backing up the system.
Confidentiality and Non-Disclosure: The end user will want to ensure that its confidential information is protected and not shared with its competitors while the host will not want to be not unduly restricted.
Intellectual Property and Ownership It is important to define ownership of the result of the web page .
Warranties and Representations: The end user will want warranties from the host but it needs to limit its liability to a reasonable level.
Term and Termination: The parties will want to define the length of the contract and what events will result in termination for cause or otherwise.
General Terms: The contract will contain general legal terms that provide for such items as jurisdiction and that the written contract is the complete contract. As can be seen from the foregoing, it is very important for both web site host and end users to have an agreement executed.

Disclaimer:

This information is provided as general information only. It is not intended to be provided as legal advice. The reader is advised to seek independent legal advice.