This is a checklist that is useful to ensure a company has completed all of the proper steps before entering into a web hosting agreement. This checklist includes preliminary matters, responsibilities of the host, responsibilities of the client, copyright act compliance, term and termination, hosting fees, and the warranties of the host. This checklist should be used by small businesses or other entities that have not entered into a web hosting agreement before and want to ensure they are undertaking proper procedure.
This is a checklist that is useful to ensure a company has completed all of the proper steps before entering into a web hosting agreement. This checklist includes preliminary matters, responsibilities of the host, responsibilities of the client, copyright act compliance, term and termination, hosting fees, and the warranties of the host. This checklist should be used by small businesses or other entities that have not entered into a web hosting agreement before and want to ensure they are undertaking proper procedure. WEBSITE HOSTING AGREEMENT [CHECKLIST] I. PREAMBLE The general purpose of this Web Hosting Agreement (hereinafter the “Hosting Agreement”) is _________. II. PRELIMINARY MATTERS Matters generally contained in the opening paragraph and in the Preamble to the Hosting Agreement. a. Be certain to accurately describe the parties. Are the parties corporations, individuals, partnerships, or other entities? It is important that the parties with the rights to the relative products and pages be the actual parties to the Hosting Agreement. Who owns the copyrights? Make sure all parties with rights who are affected are made parties to the Hosting Agreement. b. Describe the purpose for entering into the Hosting Agreement. c. Generally describe the services to be provided by the host, such as locating the web site on the host’s server and making it available to Internet users. d. Describe the general business of the pages to be hosted. What is the scope of each page? e. Identify the URL locations of the various pages. III. RESPONSIBILITIES OF HOST a. Hosting Services i. How much server space is being made available? This may tie into pricing of monthly hosting fee. Attach the schedule of fees by allocated disc space to the Hosting Agreement. ii. Is there a dedicated bandwidth requirement? How much bandwidth is available? iii. Is there a requirement that the server be a certain type? (e.g., UNIX, etc.) iv. Is there a warranty that server software will be kept up to date? v. If web design is also included in services under the Hosting Agreement or a separate agreement, is there a copyright license tied to continued hosting? © Copyright 2013 Docstoc Inc. 2 vi. Is there a warranty regarding the minimum hosting speed? Is T1 required? vii. Is there a limit on T1 and/or bandwidth sharing? viii. Are there standards for permitted downtime of the server? Is periodic maintenance and backup downtime provided therefore? Are there required response times if a server problem arises? ix. What are the required hours of operation and customer support hours? x. Are mirror sites required/permitted? If so, what server can they be on? Separate server/location? xi. What are backup responsibilities? How frequent? Where must backups be stored? xii. Does client have FTP access, secured or otherwise? Is host liability limited? What policies and procedures apply of client has FTP access? Must client notify host of new material on server? xiii. Can owner access the site to make changes? Is access secure, password protected, etc.? xiv. Are Email Accounts included? How many? Are they Web based? b. Other Services Generally include these in a separate agreement. Things to note: Is performance and payment under any separate agreement(s) tied to the Hosting Agreement? Does default under one trigger default under any or all others? Can default under design, marketing, etc. be used as a defense to paying for the Hosting Agreement? Other services may include: i. Web Development ii. Email Accounts iii. Search Engine Placement iv. Monitoring and Reporting v. Storefronts vi. E-Commerce Solutions vii. Credit Card/Merchant Accounts © Copyright 2013 Docstoc Inc. 3 viii. Marketing ix. Links and Advertising x. Other IV. RESPONSIBILITIES OF CLIENT a. Restrictions regarding content (such as adult sites, obscene materials, other materials). b. Limit(s) to any specific site(s) presented for hosting. c. Assurances that material does not infringe. d. Assurances that material not illegal. e. Acknowledgment of host policies such as anti-spamming, bulk mail marketing, etc. f. Establishing whether host has the right to monitor the site reserved. V. COPYRIGHT AND DIGITAL MILLENNIUM ACT COMPLIANCE a. Client should represent and warrant that the material to be hosted does not infringe on the proprietary rights of any other party. b. Is host held harmless to the fullest extent allowed by law? c. Does client acknowledge Digital Millennium Act procedures? If a claim of infringement arises, Hosting Agreement should state that host has the right to shut the site down. d. The Hosting Agreement should specifically prohibit infringing material to be located on the site and any such material should be made grounds for terminating the Hosting Agreement. VI. TERM AND TERMINATION a. Is there a defined term to the Hosting Agreement? b. Can client transport their site upon termination? Who owns the copyright to the site? Issues may arise if host also developed site. c. Can the Hosting Agreement be terminated before the end of term without cause? © Copyright 2013 Docstoc Inc. 4 d. Under what circumstances can Hosting Agreement be terminated with cause? Default? e. Even before termination, can client transport site to another host? f. How does termination tie in with hosting fee? g. Is there an early termination fee or penalty? h. When does the term commence? Immediately, upon delivery of site, or otherwise? If host also develops site, upon substantial completion of such site? Or does hosting fee commence during site development? VII. COMPENSATION—HOSTING FEES a. What is the fee structure for hosting and other services? b. Hosting fee limited to hosting services? Other services require separate fee or included within hosting fee? c. What are the payment terms? Monthly in advance? Acceptable form(s) of payment? d. Does payment vary depending upon disc space, dedicated bandwidth, etc.? e. How long does fee last? Can it be changed during the term? Does it escalate upon renewal? f. Can site be shut down if hosting fee is not paid? The Hosting Agreement should specify whether the host will be held harmless from business losses to client if site is shut down for non-payment? VIII. WARRANTIES OF HOST a. Are host’s warranties limited to those specified in the Hosting Agreement? b. Are any/all other warranties disclaimed, incidental and consequential damages, and warranties of merchantability and fitness for a particular purpose disclaimed? c. Limit possible damages recoverable to the amount paid for the hosting service. IX. MISCELLANEOUS a. Can the Hosting Agreement be assigned by either party? Is sale of either party’s business or stock considered assignment? © Copyright 2013 Docstoc Inc. 5 b. Can the Hosting Agreement be amended? Is any such amendment limited to writing(s) signed by the parties? c. Governing law d. Notice addresses e. Entire Agreement. Merger clause. © Copyright 2013 Docstoc Inc. 6
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