Hosting service agreements are gaining popularity. It's important to properly protect your legal interests when entering into one. In this article, we'll discuss what a hosting agreement is, what elements it includes, and what to look for to avoid unpleasant surprises.
Definition of a hosting agreement
A hosting agreement is a civil law contract in which an internet service provider (hosting provider) provides a client (hosting user) with space on their server. The client can store data there and share it with others, such as customers of their online store. The parties to the agreement are:
- Hosting provider : a company providing internet services,
- Hosting user : an entrepreneur who uses these services to run their online business.
What is a server?
Since there are many definitions of what a server is, let's assume a server is a specialized computer connected to the Internet, equipped with software that allows it to transmit information on demand. A server can:
- Store files accessible from anywhere in the world,
- Create company mailboxes,
- Place websites and sales platforms.
Legal framework of the hosting agreement
In the Polish legal system, hosting agreements are not explicitly regulated. They are primarily based on the provisions of the Civil Code regarding service contracts, but they also draw heavily on provisions regarding mandate contracts. Relevant legal acts include:
- GDPR Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation): concerning the protection of personal data,
- Act on the provision of services by electronic means (Act of 18 July 2002 on the provision of services by electronic means): regulates the provision of services via the Internet.
Provision of electronic services
The provision of electronic services involves the remote provision of services through the transmission of data at the customer's request. In the context of a hosting agreement, this means using the internet as a medium for providing these services.
Key Responsibilities of a Hosting Provider
A hosting provider must meet the following obligations:
- Inform customers about the risks associated with using its services,
- Provide terms and conditions for the provision of services,
- Determine the functions and purposes of software installed on the client server.
Things to look out for in a hosting contract
From the client's perspective, a hosting agreement should contain the following elements that will protect his interests:
- Contract duration and termination conditions: The contract should clearly specify the duration and the conditions under which it can be terminated.
- Service availability guarantee: This should include the hosting provider's commitment to ensuring service continuity and specify liability in the event of a server failure.
- Payment Terms and Additional Fees: The contract should specify what fees apply and whether additional costs may arise.
- Data security: It is crucial that the contract includes information about security measures such as SSL certificates and SSH protocols that protect customer data.
- Server speed and capacity: It is important that the server is fast and large enough and has the ability to scale resources in case of increased traffic.
- Dedicated IP address: Having your own dedicated IP address increases security and eliminates the risks associated with shared hosting.
- Programming Language Support: The contract should specify which programming languages and databases are supported.
- Backups: Regular data backups are essential to ensure your data is safe in the event of a disaster.
- Anti-spam and anti-virus protection: The contract should guarantee protection against spam and viruses.
- Performance Monitoring: The client should be able to monitor server and email performance.
- Remote access to the administration panel: The customer should be able to manage the services independently.
- No limits on the number of simultaneous HTTP connections: The contract should provide enough simultaneous connections to keep the site running smoothly even with heavy traffic.
- Possibility of extending the contract: The customer should have the option of extending the scope of the contract in the event of increased needs.
- Withdrawal Options: The contract should specify the conditions for withdrawing from the contract at any time.
Personal data processing agreement
As part of the hosting agreement, it is also important to regulate the processing of personal data in accordance with GDPR regulations. The data processing agreement should include:
- Subject matter and duration of processing: Specification of what data will be processed and for what period.
- Nature and purpose of processing: Explanation of why the data is processed and for what purpose.
- Types of personal data and categories of persons: Information about what data is processed and who owns it.
- Data Controller Obligations and Rights: This agreement defines the data controller's obligations and the rights of data subjects whose data is processed. This agreement should ensure data security through measures such as pseudonymization, encryption, and mechanisms for restoring access to data in the event of a failure.
Summary
When entering into a hosting agreement, it's important to carefully review its content and ensure it protects your interests. Key elements of the agreement and issues related to personal data security should be clearly defined to avoid future problems.
This alert is for informational purposes only and does not constitute legal advice.
Legal status as of July 18, 2024
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