Hosting Company Terms of Service (TOS), Part One: Introduction & Legal Compliance

 

New Facebook Terms Allows Confiscating Furniture
New Facebook Terms Allows Confiscating Furniture (Photo credit: HubSpot)

Let’s talk terms of service, y’all. What’s the TOS? It’s a legal document you are signing when you create a web hosting account (typical for most online services, such as the increasingly popular Internet babysitter application).

To put this in context, this piece on the TOS is a follow-up to a two-part series on the service level agreement (SLA). To review, there are essentially four ways in which the relationship is established between a hosting company and a client:

  1. Sales copy – the informal offers & guarantees established on the homepage, in advertisements, etc.
  2. Service level agreement (SLA) – a brief explanation of the rights and responsibilities of the web host and of the client
  3. Terms of service (TOS) – a thorough explanation of the legal relationship between host and client
  4. Love letters/postcards – often a hosting company will send sweet nothings (such as elaborate epic poetry featuring dense, esoteric technical jargon) sealed with a kiss to their clients, via postal mail.

 

Obviously the sales copy is very punchy and inviting. The SLA is a little bit more balanced, with more focus on potential client violations that can result in termination of contracts, etc. The TOS is the most verbose and stringent, essentially CYA paperwork for the hosting company that does not usually come into play. Finally, the only rule of love notes is that there are no rules, baby.

Regardless of the fact that the TOS is complex, written in legalese, and doesn’t usually come into play, we will give you a basic sense of what’s in these standard industry contracts below. Perhaps it’s worth something. The content of our love letters to our clients, needless to say, is staggeringly valuable (as proven by the sale of our romantic postcard archives at a Sotheby’s auction in New York for $9.7 trillion to a Saudi Arabian Prince).

Introduction

Let’s look at typical hosting TOS clauses. Obviously these differ from one company to another, but they’re fairly standardized. First, let’s look at the introduction. The introduction establishes the basic what and where, along with parameters for identification:

  1. Name of company & incorporation status
  2. How the document refers to you and to the company (such as “The Customer” & “The Company”); these broad terms simplify the language (well, a little) and allow the contract to apply to each individual customer
  3. Date that the contract was originally created and/or (if applicable) date it was last modified; you should be notified by the hosting company if any provisions in the terms of service change
  4. Physical address of the company – which you can of course also find in the return address on the love letter envelopes I’ve been sending you
  5. Contact details, which are typically an e-mail address and/or phone number – for clarification, disputes, etc.
  6. State laws referenced – Any legal contract falls under the laws of a specific state or territory, so the TOS will typically indicate what state that is
  7. I love you – The terms of service may or may not state explicitly, “Look… I feel this is a bit unprofessional, but I just have to say it… I love you. Please refer to article 6, section D, to find out how much I love you, and why.”

Legal Compliance

Man: “Will you marry me? Will you fulfill this contractual obligation? Will you legally comply?”

Woman: “Do I get to keep the ring if you become professionally unsuccessful?”

Man: “You are twisting my arm, but sure.”

Woman: “All right, then I am a strong maybe. I’ll text you later with my answer.”

The section on compliance with the law states that if you do anything that is illegal through your website or that does not agree with the terms of service, the hosting company is indemnified. Essentially this provision means that you are responsible if you are found to be breaking the rules/laws; the hosting company will not suffer any loss or other damages, financial or otherwise, as a result of your actions. This clause says, “I still love you, but I need you to go out and experience the full weight of the American judicial system by yourself, honey.”

An example, which might be stated explicitly, is if you are republishing copyrighted content. Come on, dude. Seriously? Who are you, Carlos Mencia (if so, hi, I love “your” “work”)? With intellectual property as an example, you can see why hosting companies need to protect themselves from potential lawsuits resulting from client behavior.

Probably you also can see that the terms of service document is essentially stating the obvious. Most people do not need to worry about it, unless they are the type of people who videotape their television set and then publish the video on YouTube (assuming their viewpoint of the TV is their intellectual property?).

Conclusion

So, we have made our initial ascent toward the summit of the mountain that is the terms of service. Fear ye not that it be a volcano! It is a humble, well-intentioned, snow-capped mountain of glorious beauty and wonder.

Again, today we covered two sections:

  1. the introduction (basically who the company is, where it’s located, how you and the company will be referenced in the document, etc.)
  2. legal compliance (making the hosting company unaccountable if you do anything illegal or that is outside of its codes of conduct within the TOS).

Okay, so two more parts to go in this series. By the way, I’m sorry I haven’t sent you a love letter recently. I’ve been very busy with my soap sculptures of poultry – which, as you know, I am passionate about.

by Kent Roberts and Richard Norwood

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