Create a Watertight Web Hosting Agreement
The Web site is an online business's livelihood. It is an e-business's storefront, cash register, sales staff and corporate image all in one.
Careful consideration should be put into contracting with a developer to design and build an ecommerce site.
Of equal importance to the development of a Web site is the selection of a suitable hosting service that can provide a reliable, secure, uninterrupted, high-speed and redundant environment for that Web site. An understanding of how such facilities operate and the services they provide will aid in selecting a suitable host.
Not all Web hosting services and facilities are created equal. Some might rely upon one primary "peering relationship" or network access point (NAP), while others might have backup or multiple access points.
Just as the majority of Internet traffic travels via high bandwidth carriers on cables that connect at multiple strategic points, it is preferable for a Web site to be accessible via several different routes in case one is unavailable.
Hosting facilities that maintain numerous public and private peering relationships are best suited for high-traffic Web sites. Through such peering redundancy, downtime caused by Internet traffic load or failed or disrupted carrier deliveries is reduced.
If Web site owners seek access to the Internet and want to monitor the performance of server equipment or change site content in-house, they should consider a co-location agreement.
Establishing a proper co-location relationship typically involves issues such as direct or remote access to servers and programs, direct connections to co-located servers and network, and technical maintenance and support.
In a full service hosting relationship, the hosting facility provides servers, Internet connection and some software. In a co-location relationship, the hosting facility provides only Internet connectivity and a few other monitoring services.
Regardless of whether the hosting relationship is co-locational or full service, counsel should be prepared to address certain issues.
Service level agreements are common with large hosting providers and large telecom service providers. Typically, these providers guarantee a certain amount of uptime -- such as 99.99 percent -- or response time limits for when a server goes down.
If downtime is the result of failure to properly manage the servers, connectivity disruptions or ineffective traffic load balancing (called traffic engineering), Web site owners should be entitled to a reduction in that month's hosting cost.
In addition to uptime and response time guarantees, the hosting providers should guarantee server performance and bandwidth capacity.
Basing decisions on design and development specifications, Web site owners should specify what software and hardware is to be used. From the amount of storage space, processing power and platform compatibility required to the type of ports, switching and routing components needed, the hosting agreement should detail the hardware and middleware requirements of the Web site.
Minimum bandwidth requirements should be required from the hosting provider. Bandwidth is the amount of data that can be transmitted in a given communications channel in a fixed amount of time. Such bandwidth should be fully dedicated, switched and redundant through all Internet access points.
The hosting facility should also be obligated to provide such additional or burstable bandwidth as might be required from time to time. Although Web site owners will be required to pay for additional or burstable bandwidth, it will ensure accommodation of sudden bursts in user traffic to keep the site accessible.
Typically, hosting services include maintenance and customer support services, such as real-time Web site performance and security monitoring, load balancing and traffic routing.
To address future performance capabilities that might arise due to rapid Web site traffic increase, the parties can agree to an escalation process. It would outline certain defined steps that the hosting company would take to correct server and/or traffic anomalies.
The escalation process should always include immediate notification of the site owners of the trouble identified by the hosting facility, a tracking system that tracks the status and correction process taken for each error, and guarantees that only certified technicians will correct any software-based server errors.
If the hosting facility provides user support, the hosting agreement should include the host's responsibilities for addressing user inquiries, and it should stipulate the manner in which user responsibilities are to be handled by the Web host.
The agreement should set standards for timeliness of response to user inquiries and professionalism in handling those inquiries. These standards decrease the risk of irreparable damage to Web site owners' reputations by rude or ineffective responses by a hosting facility's customer support representative.
The hosting facility should be required to maintain and deliver server logs to site owners at regular intervals -- daily, weekly and monthly.
These logs should contain information useful to owners. Information should include traffic, bandwidth, error and user information, network statistics -- packet loss or latency and total uptime -- server statistics and any required protocol information.
Some service providers require that a Web site not be used for any unlawful or inappropriate purposes. Such unlawful or inappropriate purposes include, but may not be limited to, the infringement of any third-party intellectual property rights, the intentional disruption of other network users, the dissemination of obscene or libelous material, and/or the dissemination of unsolicited e-mail.
Because site owners are typically responsible for site content, they will be asked to indemnify and hold the hosting facility harmless from and against any and all claims and/or damages created by its conduct.
A Web hosting agreement should also address Web site owners' rights to user data collected by the hosting facility. This information, typically contained in the server logs, is considered proprietary to Web site owners, as it can detail data critical to the continued success of the site.
Although some hosts will demand shared rights in the user data they collect, Web site owners should insist on exclusive ownership. After all, unless the site owners maintain sole ownership of user data, the hosting facility can, among other things, market the collected user data to the site owners' competitors. This ownership right should be coupled with a nondisclosure provision.
Most hosting agreements do not set forth the hosting facilities' post-termination responsibilities. If not clearly addressed, this can expose Web site owners to extreme delay and/or unethical host tactics that can wreak havoc with their sites and, in turn, ruin their businesses' reputations.
To minimize post-termination transition concerns, the agreement should obligate the hosting facility to turn over Web sites and any unsent user logs to their owners within a set number of days or hours after termination, regardless of whether the owners are in breach of the hosting agreement.
To prevent any chance of delay in this transition, it is advisable that Web site owners require the hosting facility to provide daily backups of the entire site. Clearly, if the owners possess a backup copy of the entire site, chances of post-termination delays are greatly minimized.
Of course, to diminish transition delays, the site owner should be listed as the technical, billing and administrative contact at the time the Web site domain name is registered.
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