Hosting Accommodation Contracts

Websites multiplying from days to days on the web, the need for web hosts is becoming more and more pressing. It should be known that for a hosting of site it is necessary to enter into a contract with the host, like any serious activity these days. The hosting of a site therefore necessarily requires a hosting contract.

Web hosts today occupy a place of choice on the web. Therefore, it is important to study the hosting contract that is between a user and a company with the server. Knowing the obligations related to hosting contracts will therefore be an asset for any other party.

Definition

The hosting contract is a contract between a user and a company with a server, whereby the provider hosts the user's website on his own machines.

The hosting server receives and stores the information provided by the user and makes it accessible to other users on the network. It may be an extension of the access provision contract when the access providers offer their customers the hosting of internet pages.

The site hosting feature is therefore something particularly important especially in our new era. Accommodation contracts will have to be seriously established.

Hosting contracts must contain several clauses, such as security clauses or confidentiality clauses. Other clauses may be required. These hosting contracts, signed between the parties will protect both the provider but also the customer. The different clauses of hosting contracts will also affect the protection of Internet users visiting hosted sites.

The preamble

It must make it possible to recall the general functioning and the constraints generated by an open network such as the Internet.

On this occasion, the supplier can state the main definitions relating to the benefit in question.

Characteristics of the accommodation

The host must make available to its subscriber, for remuneration, a storage space on a computer server.

It should be noted that the server is a software or hardware computing resource that is capable of delivering information or performing on-demand processing of other software or computers. Thus, a hardware server can host various software servers (web server and e-mail server).

The volume of this space must be able to vary as the hosting server must be able to accommodate data and software applications in case of future developments (special clause of guarantee of evolution according to the future needs of the hosted).

It is therefore for the parties to agree precisely on the evaluation of the memory capacity offered in the context of hosting and the availability of this space.

The host must also be able to offer a sustainable supply of adequate bandwidth, again with an evolution clause taking into account the future needs of the tenant (individual or business).

The combination of these two criteria will predict the number of simultaneous accesses that the website will be able to accommodate.

The parties will also have to contractually determine the terms and conditions for sharing the resources available at the hosting company vis-à-vis its various clients.

It will be a question of choosing between a server shared between several different applications coming from different clients too (shared server) and a server reserved exclusively for the applications of a company (dedicated server).

Declarations of websites

The various declarations relating to the websites are in principle devolved to the authors, but can be delegated to the accommodation provider.

The main statement remains the declaration to the Commission Nationale Informatique et Libertés ( CNIL ) relating to the automated processing of data.

The professional sites must include certain mentions (name of the publisher, of the editorial manager, ...) which will be inserted on the site by the authors of this site.

The hosting contract can provide that the declarations are made by the hosting provider, especially if it manages the statistics of the site, and information on the customers (electronic payment, ...), because in this hypothesis it is the most informed of the measures to declare to the CNIL.

Other services can be done by the host, for example the registration of the domain name.

In all these cases it will be necessary to provide in writing these services by specifying the modalities in order to avoid later disputes on the ownership of a domain name for example.

The accommodation provider who will carry out formalities in the name of his client will of course have to inform him of the progress of the procedures and when they have succeeded in giving him the supporting documents.

Confidentiality and content security clauses?

The confidentiality clause is neither mandatory nor always necessary, it may depend on the type of content hosted.

Since the hosting provider has access to information such as the names of clients and business partners, it is necessary to draft a confidentiality agreement concerning this sensitive information.

We will then take care to specify the protected information, the methods of storage and delivery or destruction of this information.Concerning the security of the content, this clause is essential, it must specify the modalities implemented to ensure the security of the data and the site.

For data security, it may be necessary to specify the frequency and extent of data backups, possibly the support of these backups.

For the security of the site, it is here to ward off external attacks. This clause must provide for the encryptions used in the context of electronic commerce , the passwords and means of access to the site by the managers of the hosted site, and the technical means implemented to protect the site against piracy act of software or material measures.

When it is a dedicated server, protection measures can be taken care of by the hosted, in this case, the host may be discharged of its responsibility in case of hacking if the security means n ' were not enough.

With regard to the security of the site, its management must be considered from the angle of physical and logical security.

In the first case, it will be necessary to determine the conditions of access to the server as computer hardware; this implies that the host puts in place a secure environment concerning the access of the people, a specific system of surveillance to prevent any physical intrusion in the space where the server will be located, the conditions of intervention in case of breakdown and the provision of on-call staff according to defined deadlines and rates.

In the hypothesis of logical security, that is to say the data transiting through the website and their protection against any form of computer intrusion, the service provider must ensure the establishment of computer protection systems (also called firewall ) conform to available technologies.

In this context, it will be impossible to oblige the supplier to an obligation of result; only an increased obligation of means will be possible and that will have the effect of forcing the provider to prove that he did not breach the normal obligations incumbent upon him, in case of unauthorized computer intrusion.

This dual aspect responds to the concern to ensure the confidentiality of the information contained on the site.

We also need to look at the status of hosted data. The contract must provide that these data remain the exclusive property of the host and as such they will be fully returned to their holder at the end of the contract.

Downloading and modifying sites: which reliable techniques should the customer demand? How should the provider protect himself from uncontrolled changes?

The terms of access to the site for downloading or modification must be provided as of the original contract: it may be access via the FTP protocol or by administrative interfaces or by specific software.

It may also be necessary to provide telephone technical support in order to obtain help when accessing the site.

The update of the site can be done physically at the server, this requires a move to the headquarters of the servers but is a guarantee of security, since the update can not be done remotely.The provider may also limit updates to the site, but in this case it must provide for it in the contract. This limit can be quantified in frequency of modification of the site, in quantity of data, ...

How to guarantee fast access for users to hosted content?

It is necessary to distinguish according to the type of hosting: shared hosting or dedicated server.

Shared hosting is the entry level of the majority of providers, it consists of the rental of a machine whose resources are shared by several sites, each of the customers can exploit some of the resources of the machine.The dedicated server is a more expensive service, the host hires a machine that is totally dedicated to the customer site. (Sometimes, even the host only rent the connection, the machine is provided by the customer)

In the case of shared hosting, the different clients sharing the resources of the machine, when one of the customers misuses the resources, it reduces those of the other customers.

In the case of shared hosting, the hosting provider must specify in its hosting contract the resources used by the sites hosted and provide for the possibility of sanctioning customers who abuse these resources, it must in exchange allow its customers to check the use of resources.

For the dedicated server, the problem does not arise in these terms, since the server has its own resources.

In both cases, the host must contractually specify the technical possibilities offered by its hosting: number of possible simultaneous visitors, bandwidth, availability rate, ...

The host must then ensure the effectiveness of these features, otherwise it may be contractually liable.

What statistics to require by contract? How to ensure that the contract will be followed by effects?

The statistics needed depend on the type of site exploited, all the sites do not claim the same statistics, some may be indispensable for some and useless for others.

In the most common statistics there are the number of hits, the number of visits, the number of visitors, the page views, the frequency of visits, visiting hours, ...

It may be possible for the most demanding sites to request statistics updated more frequently (hourly, or even in real time), statistical statistical tools (studies on a day, a month, a year, ...), or even specific tools that meet a particular need.

All these tools must be planned from the beginning because the subsequent addition may result in a change in the price of accommodation.

What special provisions regarding cookies?

The setting up of cookies can be decided by the host or the host.

The establishment by the host responds in general to statistical needs, the host should inform the host of the implementation of such processes including to inform visitors of their rights under the law and freedoms.

This obligation to inform the visitor remains in place when the establishment of cookies is the result of the will of the host, but the contract may provide that this implementation passes through the information of the host, or even submit to his agreement.

Under what conditions can accommodation be suspended?

The contract may provide for a certain number of suspension of contracts, particularly in the event of breach of contractual obligations, making illegal content available on the Internet, etc.

It will then be necessary to provide in the contract the terms of this suspension. In general the suspension is preceded by a warning which if not followed by effects will be followed by a suspension. The duration of the suspension can be planned in advance or be limited to the regularization of the problem.

What plan of reversibility to envisage in case of change of provider?

The transfer of the website hosting and or domain name (s) at the end of the contract must absolutely be included in the contract. It is indeed more prudent to set the terms of these transfers.

Care should be taken to specify deadlines for the return of data in order to prevent the host from voluntarily dragging out this transfer, but also to set a deadline for the customer to come and retrieve this data in order to avoid blocking storage units.

This return must be made within an imperative deadline in order to guarantee the continuity of the website.

It is up to the host to be careful that no clause in his contract prohibits him from being hosted by a company competing with his original provider.

Can the host provide for clauses limiting his liability? Are they legal?

The clauses relating to the liability of the host are possible but some will be null:

Valid clauses: clauses that limit the liability of the host to his co-contractor are valid, it is the exercise of freedom of contract. However, when the contract is with a (non-professional) consumer, certain clauses can be described as abusive by a judge.

Illegal clauses: all clauses that derogate from the legal liability established by the law of August 1, 2000 are considered null and unwritten, in this case the host cannot escape his responsibility.

What are the types of content deemed objectionable by law?

It is all the contents of which the law sanctions the existence, that it is about the penal or civil law.It may be content criminally sanctioned that is to say when a criminal law prohibits content: this is the case of racist content, discriminatory, defamatory, pedophile, or content constituting counterfeits, ...

But it may also be content that may be the subject of a civil remedy, when a content causes a civil damage punishable to another person.