Does anyone have a good source for "templates" for the mentioned forms? I've searched here and through google without any clear answers. I don't want to copy anyone else's who may have paid their lawyers to write it up (I guess that would be my next step to contact mine if I have to) :)

I'm hoping there is a site that openly offers pre-written ones.

Any ideas?
Thanks!

Jason

Don't let my screen name fool you. I haven't been a teenage game player in a LONG time. ;)


My advice would be this...

On the Internet, locate a bunch of the most organized, well established companies which offer services most identical to what you're offering, and make a copy of their legalese (ToS, EULA, Privacy Statement, etc.). Do this with about a dozen companies.

Read through the first one, then make a copy of it to use as your template.

Now, open each additional one, and copy & paste the things that you feel are important onto the first one, nearest the provisions that appear most related. When you're finished, the 'good stuff' from all of them will be on your copy of the first one. We'll call this your "master copy".

Now, Slowly go through your master copy and edit out the easily identifiable redundant things. Basically trimming it up.

The idea here is to take all of the good things from the other forms and merge them into one larger, more comprehensive form.

When you feel satisfied with your work, contact an attorney whose practice is in the field of Internet ToS and EULAs. Also, this attorney's place of practice should be in the same county & state that your primary business location is.

In other words, when you start your business, you'll need to submit the information to your Secretary of State. The address that you submit (your business' address) is the one that you should go off of when looking for an attorney who practices in the same county & state.

Now, if there isn't a qualified attorney that you're comfortable with near that location, then at least try to find one that is located and practices in the state.

Reason being, is that if your business were to ever be subject to a civil lawsuit, it'll be filed in the county courthouse of whatever county & state your business is located.


Anyways, bring your master copy (printed) to the attorney, along with any additional notes, questions and concerns that you may have. Carefully, completely and truthfully explain to the attorney what you want. Ideally, you'll have written all of this down and organized it into a clear & concise set of papers that you can hand to the attorney for their review after you've left the office.

Then give the attorney time to prepare a first-draft of the agreements you want. When finished, return to the office and carefully go over EVERY word. It's important that you, the owner, fully understand what is stated and covered in your own company's business agreement(s).


By the way, the ToS, EULA and Privacy Statement can be a single form. I would suggest this. All provisions on a single form for customers to review makes for a less likely chance that any potential conflicts between multiple forms may result in a suit & judgment against your company.


Also keep in mind that contracts are held against their creators.

What this means, is that if I wrote a contract, and you read it and signed it. Then later you and I had a dispute over a provision in the contract. And a judge were do decide that the provision did not clearly allow for which of us was right, then by default, the judge would most likely rule against me and in your favor.

Why ??
Because I wrote the contract (agreement). And as the creator (author) of the contract, it is my legal responsibility to make the agreement as clear and whole as is reasonably possible.

This is important for you to remember, as the burden of being the agreement's creator will be yours (not your attorney's) each and every time a customer agrees to it and uses your service(s).


Also, I would suggest arbitration as a means to settle civil complaints. Technically, it's not a civil suit if it's arbitrated and doesn't go to court. This helps to reduce court costs, attorney fees and long procedures. The only downside to this, is that the ruling cannot be appealed, like in a civil suit.


I'll let you in a well ignored factoid....

Anybody can sue anybody, for any reason in America. Actually getting the case to trial and winning is a whole other matter.

That is why I strongly urge that you consult legal counsel in regards to drafting a proper ToS agreement that will protect you, while adequately preserving the legal rights of your customers.

And that's important. Because an agreement which violates the law is unenforceable in court.

For example, if a prostitute in Chicago signed a contract with a person to perform sexual 'service' in exchange for money, and the prostitute was not paid after performing said service, then the prostitute cannot sue the person for monetary damages. This is because prostitution in Chicago is illegal.

This is relevant to you, because unless you are well aware of contract law, and the provisions that would go into a good ToS for your business, then you'd be wise to consult with a qualified attorney.

And by "qualified attorney", I don't mean just any lawyer who's a member of their state BAR Association. Lawyers are like doctors, in that some of them specialize in particular fields of work. You wouldn't go to a general practitioner for open-heart surgery would you? No, you'd go to a specialist. Same is true with attorneys. You should find one who specifically works in the area of service providers on the Internet.

As a side note: A contract, by legal definition, is "a meeting of the minds". In other words, everything is just an offer until it has been agreed upon. Only AFTER it has been agreed upon does the offer become what's legally known as an actual contract.


And not to throw too much at you, but people running businesses, yet don't use attorneys, almost always forget that in the US, all 50 states have incorporated the Uniform Commercial Code (UCC) into their state laws. The UCC is slightly different in each state, but the basic principles are the same.

An important part of the UCC is the "implied warranty of merchantability." This is an implied warranty that *CANNOT* be disclaimed. This means that you cannot have a shrinkwrap license or anything else that says the implied warranty of merchantability does not apply. Companies try this, but the courts NEVER accept it. Courts deem any such attempt to disclaim this implied warranty to be contrary to public policy.

The implied warranty of merchantability ensures that the product or service that people buy actually functions.

For example, if you buy any product, take it home, and find out that it does not operate as advertised, you can return it for a refund. Not a store credit, not a discount on other products, a FULL refund. Furthermore, signs which state things like "all sales are final" do not apply if the product is faulty.

There is also an implied warranty of fitness for a specific purpose that is somewhat applicable here as well. This implied warranty also cannot be disclaimed, and it ensures that the product or service you buy will work for the intended purpose.

For example, if you buy a coffee maker and it can heat water but cannot brew coffee, the person who sold it to you cannot claim that you bought a water heating appliance and refuse a refund. The product has to be able to perform the functions it is intended to perform.


Now I know that most every web hosting service tries to disclaim any liability for loss of service, or outages in their ToS. And I know that it's usually the lawyers suggesting this.

Lawyers do that kind of thing to scare away potential problems. Even if it wouldn't hold up in court. No, it's not unethical. It's part of their job in working to protect their client's interests (in this case, you).

But if a judge were to determine that the loss of service to a customer could have been 'reasonably' prevented by the host, or that the host was aware of a problem and did not take 'reasonable' steps to rectify it, then the judge (or arbitrator) may very well rule against the hosting company.

And by "reasonable", I mean that such things are often left up to the judge's personal opinion based on the information s/he has. "Reasonable" is a legal gray area, kind of like a football. Once it's in the air, it's anyone guess which direction it'll bounce in.


Granted, a web hosting service being sued for too many outages and not enough 'reasonable' steps being taken to rectify the problem is a very rare thing. This is usually because for what web hosting services charge, it's generally not worth the hassle and costs of a lawsuit.

But that shouldn't be an excuse for you not to take adequate measures to protect yourself.


If you are having any trouble locating a qualified attorney, try checking FindLaw.com

Dear God. I hope you cut/pasted that from somewhere :)

I appreciate the time taken for that response. It was helpful. I may do some of those steps in creating one. Luckily, I have family members in the legal profession - might drop them a line.

Regards,
Jason

Here's another thread on this same topic:
http://www.webhostingtalk.com/showthread.php?s=&threadid=213711

I was just passing by, but thank you very much Gaim Mastr, that was very informative.

Originally posted by Charlottezweb
Dear God. I hope you cut/pasted that from somewhere :)

I appreciate the time taken for that response. It was helpful. I may do some of those steps in creating one. Luckily, I have family members in the legal profession - might drop them a line.

Regards,
Jason
No, I don't copy text from any source, unless it's clearly disclosed. And I don't have a personal folder of web hosting advice premade. ;)


I ususally offer consultations to tenants/landlords, home buyers/sellers/, real estate investors, etc. As my primary vocation is centered in that area. I was considering working as an attorney, so I'd taken several law classes. But then I decided that attorneys don't get paid enough. So I became a real estate investor instead.


I'll tell you one thing for certain. While we all wish that contracts (including ToS agreements) were short & sweet, that's where we leave ourselves open to the most trouble.

As unfortunate as it is, in most cases, the longer, more complete and comprehensive a contract is, the fewer loopholes & gray areas there are. This serves to protect the interests of all parties to the contract.


But you're welcome. I wish you the best of luck !!

damn - your keyboard must take a battering

nice info th thx :D

Gaim Mastr, you might want to think of writing an article and submitting it to the PingZine (http://www.pingzine.com/) magazine, this looks like something they would be interested in.

Originally posted by Gaim Mastr
Don't let my screen name fool you. I haven't been a teenage game player in a LONG time. ;)
My advice would be this...


GM, jeez!
Very good post. Indeed.

Tnx for your time m8.

Gaim Mastr,

Thanks for this very insightful information.

There seems to be one small but very important item missing from all this (unless I missed it myself). As a web host you are going to be operating under another provider's TOS. It may be another host, a datacenter or main carrier but it will be someone upstream that has a TOS/AUP that you must abide by. It really won't matter what you write up, copy or initiate into your own TOS if it violates the one you have to operate under.

Start with your upstream provider's TOS/AUP ....

For the sake of argument, let's say that there is some other service supplier, which your hosting company relies on. Certainly, it would be true that you, their customer, would be required to abide by any agreements made between your hosting company and any service suppliers of which you rely upon.

However, when a customer makes an agreement between your company and his/herself, then said customer is not bound by any other civil agreements or contracts (relatively speaking). In other words, it doesn't matter what exists in the ToS between your company and any other company, insofar as your company's clients are concerned, or bound to.

Let me put it to you another way. Let's say that a customer of yours performs an act through your hosting service, which does not violate the ToS of your hosting company, but does violate the ToS that exists between your company and whatever third-party service your company relies upon.

Who then is responsible to the third-party service provider ??

Your company is responsible, but your customer, who'd committed the violation, is not.

Why ??

Because, no agreement or contract was made between your customer and the third-party service provider. Any such agreement would have to be bilateral. Unilateral demands wouldn't hold up to any civil action in this situation (and most any others).

Remember, a legally binding agreement (contract) is a "meeting of the minds". Such a thing does not exist via unilateral action.

For example, let's say that you were to take your car into an auto shop and order an oil change and lube. An hour later you came back and saw that aside from the agreed upon work, your car had also been detailed. The shop's manager adds the cost of the detailing onto your bill. Do you have to pay it ??

No. Because the detailing work on your car was a unilateral action made by the auto shop. No prior bilateral agreement was made between you and the shop for any additional work. So in the end, you would have just gotten your car vacuumed and washed for free.

Therefore, by it's very nature, it absolutely does matter that your hosting company have some form of agreement with its customers. And those agreements are generally referred to as the Terms of Service (ToS) or End User License Agreement (EULA). As the web host owner, you want there to be a clear and concise agreement between your company and your customers in regards to limitations, expectations, responsibilities and remedies (LERR).


Now, there may be some provisions in the ToS between your company and any third-party service providers, which directly affect the LERR between your company and your customers. Generally, one of two actions are taken to help protect your company. You can include a provision which directs your customers to the ToS between your company and any third-party service providers. Or, you can take any relevant provisions from the ToS between your company and any third-party service providers and include them into your own ToS for your customers.

For example, let's say that a customer of yours (Tom) sets up a website. And let's say that somewhere along the lines your customer commits an act which violates the ToS between your company and your own service provider (we'll call them Company Z).

Irrelevant of whether or not Tom was previously notified of certain restrictions that exist in the ToS between your company and Company Z, guess who's going to bear the initial brunt of any civil action? Your company will, not Tom.

It's sometimes referred to as the chain of liability.

Even if Tom violates a provision, which you'd specifically stated is a provision of Company Z, the fact is that no bilateral agreement has ever been made between Tom and Company Z. Only two contracts were made. One between Tom and your company. The other between your company and Company Z.

So, the chain of liability is this...

Tom commits an act that violates the ToS between himself and your company.
This act also violates the ToS between your company and Company Z.
If Company Z seeks a remedy, they usually have grounds to go after Tom, because no contract exists between them and Tom.
So, Company Z would go after your company for restitution.
And in turn, your company is the one that would have to seek restitution from Tom.

Aside from the discontinuation of service, let's say that the remedy included monetary restitution. In that case, your company would first settle the civil action with Company Z. Once that has been satisfied, your company can then go after Tom for monetary restitution based on your settlement with Company Z.

In other words, if Company Z were to sue your company for $10,000, your company wouldn't turn around and sue Tom for the same $10,000 right away. You have to prove damages before you'll win the suit. You'd have to wait to settle the claim with Company Z. Once that has been done, then you can prove damages (via a settled claim), and go after Tom for restitution of the $10,000 (and any other adverse costs which arose from Tom's actions).


I'm sorry if this seems a little off the path, or a little confusing. Frankly, if you don't fully understand what I'd just said, it should be a big red flag indicating that you need to consult with an attorney and have them explain it to you in better detail.

But it's all to express a point. Watcher's statement that, "It really won't matter what you write up, copy or initiate into your own TOS if it violates the one you have to operate under." is what I'd call half of a complete explanation, at best.

True, if Tom (from the example above) violates a provision of the ToS that exists between your company and Company Z, you're still the only one liable to Company Z, not Tom. But you do want to ensure that you have the right to go after Tom for restitution. And therefore, it absolutely does matter what you put into your own ToS. Because if it's not in your own agreement with Tom, and there aren't any previously existing statutes or legal precedence, then your company would most likely have no grounds to go after Tom to recover any damages resulting from civil action between your company and Company Z.



For the record, just in case there isn't enough verbiage in this post yet, there are circumstances in which Company Z could go after Tom directly, such as malicious intent to cause harm. But I'm speaking in more general terms.

Such as if Tom were to run a site for pornography. If the ToS between your company and Company Z stated that your company would not host pornographic adult websites. And therefore the ToS between your hosting company and your customers stated that pornographic sites weren't allowed. Then Company Z can't go after Tom directly, because the ONLY agreement made with Company Z was with your company.

So Company Z might go after your company. And then your company would go after Tom.



The long & short of it is this....

If your hosting company has an agreement with any other company, you'll want to make sure that your clients don't do something that would get your company into trouble. And if they do, you want to reserve the right to seek remedies against them.



Now, I'm setting up another website for myself soon. It will have a ToS agreement between myself and any registered members. In that ToS will be a provision stating that aside from my own ToS, members agree that they are bound by and will not violate the ToS of the web hosting service that I use. I will include the name of the hosting company, a link to said company's ToS page(s) and the same (these terms may change) notice specifically relating to the hosting company's ToS.

This helps to cover my butt in the event that a member were to do something that got me into trouble with my hosting company. Worse comes to worse, the hosting company would take action against me for something that one of my members did on or through my website. But I will have also reserved the right to seek restitution from that member for any such violations. And so the chain of liability has been clearly established.



Of course, there are certain (sometimes very obscure and rarely seen) exceptions to all of this. Particularly in the area of criminal actions, legal gray areas, and legal precedence. Which is why I will once again reiterate my stance that you truly need the counsel of an attorney for drafting the ToS, which will serve as the contractual agreement between your company and your clients.


If you were to go out and buy your first home, you could use a general purchase agreement found at most office stores. But you'd be leaving yourself open to a lot of potentially serious trouble. It would be far better for you to seek the advice of a professional. Same is true of running a business. You could do it without professional advice, but you'd only be leaving yourself much more open to problems that can result in financial ruin.

Originally posted by Joseph
Gaim Mastr, you might want to think of writing an article and submitting it to the PingZine (http://www.pingzine.com/) magazine, this looks like something they would be interested in.
Thank you for the vote of confidence.

But due to the nature of articles placed in published periodicals, versus the nature of opinion posts on Internet forums, I would have to respectfully decline.

While an article of a similar nature may be a worthy addition to the magazine. I would have to strongly recommend that the magazine seek such an article drafted only by a qualified and experienced attorney.

Liability issues and all. ;)

However, when a customer makes an agreement between your company and his/herself, then said customer is not bound by any other civil agreements or contracts (relatively speaking). In other words, it doesn't matter what exists in the TOS between your company and any other company, insofar as your company's clients are concerned, or bound to. I strongly disagree, it certainly does matter what agreements are in place between you and your upstream provider. By not acknowledging this fact you could be exposing your company to great risk.

Here is an example for you:

Let's say my upstream provider has a "No Adult Content" clause in their TOS and I decide to accept a client who runs an Adult site. This new client gets their business off the ground and they are making tons of money. Then without notice my upstream provider pulls the plug on their site as per their TOS. In addition my upstream provder issues a bill to me for $1000.00 per violation of the "No Adult Content" clause in their TOS. Now if you do not think that client would be able to prevail in a civil claim against my company then you are sadly mistaken...

When creating a TOS, the place to start is with your upstream's TOS first. Then add your unique clauses and have your Attorney review the document. Anything less are unnecessary risks IMO

That's not what he was saying...reread the post. He's not saying it doesn't matter per se, it just wouldn't stand up legally if you were to get in trouble unless you spelled it all out.

Regards,
Jason

I understand exactly what he is saying. My opinion that the very best starting point for a TOS is your upstream provider remains unchanged. If you copy someone else's TOS *template* (as you stated in the first post) you are just asking for trouble......

Oh, I agree, and I agree with you on the upstream TOS -- that will be my starting point tonight.

I think he was basically explaining that in court, you would need to have that upstream TOS spelled out exactly (or referenced/linked clearly) in your own TOS so that there is no confusion. I gathered that you can't just assume it's in place without putting it in your own. That's what I take from it at least.

Regards,
Jason

I agree, your client is only responsible to abide by your TOS. If it is not clearly stated in your TOS then they cannot be held accountable for violations. It is your responsibility to make sure that there are no conflicts between what your TOS states and what that of your upstream states. Those possible conflicts are what can place you at risk.

Watcher, you're adding a new/different scenario to my post and then claiming my advice to be wrong.

We could sit here from now to eternity adding countless "what ifs" and "if this happened..." And it serves no beneficial purpose here.

Let's say my upstream provider has a "No Adult Content" clause in their TOS and I decide to accept a client who runs an Adult site. This new client gets their business off the ground and they are making tons of money. Then without notice my upstream provider pulls the plug on their site as per their TOS.
Your expample assumes two things...

1. That not just your company, but some other third-party company actually retains the right to go into YOUR company's servers and start shutting down the websites of YOUR clients.

2. Furthermore, your example assumes that YOUR company, either through malicious act or negligence, violated the ToS between YOUR company and some other third-party company.


Again, it's pointless to sit here tossing out specific examples of what could go wrong if your company violates its agreements with other companies. Reason being, is that my posts are based on the assumption that as a web hosting company, you're going to do your best to avoid violating your own contracts. :p


And in the end, it really doesn't matter who's ToS you start with. My suggestion was only to review the ToS agreements from other companies that offer similar services to what you're wanting to offer. Then, (and this is the most important part) consult with a qualified attorney who will represent your company's best interests.



Just as an aside, because I don't think we should be thread-jacking here, can you (Watcher) give me a real world example of a third-party company that a web hosting company would use, which also clearly states in its ToS that said third-party company retains the right to go into your servers and shut down the websites of your clients, without the benefit of due process beforehand ??

Your expample assumes two things...

1. That not just your company, but some other third-party company actually retains the right to go into YOUR company's servers and start shutting down the websites of YOUR clients.That is no assumption on my part. Whether or not you use a Reseller account from a small web host or purchase OC-12s from a top tier provider you are still obligated to conduct business under someone else's TOS. If I purchased connectivity through Verio, ATT or Sprint ( or anyone else) and a client of mine violated their TOS, they could still shut me down. So yes, there is always someone upstream that can *turn you off* so to speak.
2. Furthermore, your example assumes that YOUR company, either through malicious act or negligence, violated the ToS between YOUR company and some other third-party company. This is exactly why it is important to start with your upstream provider's TOS. Just because you don't list a violation in your TOS does not meant that your upstream will not be able to disconnect you from their service if one of your clients violate their TOS. And in the end, it really doesn't matter who's ToS you start with. Would you study Florida Law and then take the Bar exam in New York? It is my opinion that this advice is wrong.

Now you can safeguard everything posted here by saying check with an Attorney (which you have) but it certainly does matter who's TOS you use as a guideline. If you miss a clause in your own TOS that you are obligated to operate under from your upstream provider then you place your company at risk.

If I purchased connectivity through Verio, ATT or Sprint ( or anyone else) and a client of mine violated their TOS, they could still shut me down. So yes, there is always someone upstream that can *turn you off* so to speak.
This doesn't match the previous example you'd given. In the example you gave, you talked about them shutting your cutomer's website down, not your entire business. And therefore being sued by your customer.

but it certainly does matter who's TOS you use as a guideline.
I'd recommended looking at several ToS agreements. Clearly, whichever ToS agreements are most pertinent to your business should be considered


As far as third-party ToS agreements between a web hosting company and how they do or don't relate to customers of the web host and not the third-party......

I'm not going to get into those. Because they vary greatly upon what third-party you use and a great myriad of other circumstances.


Watcher, it seems like you're trying to start an argument where one needn't exist.

Yes, if my hosting service is operated through AT&T lines. And my agreement with AT&T states that all of my customers need to take turns mowing the lawn in front of AT&T's CEO's house. And one of my customers forgets to take his turn with the mower. Then yes, there could be a problem. :rolleyes:

My previous posts were made on the assumption that Charlottezweb, and everyone else, would automatically adhere to whatever contracts they'd made with whatever third-party service/product suppliers. Clearly, my posts were referring only to the ToS between the hosting company and their own customers aside from third-party obligations.


I'm not interested in continuing a pointless back-n-forth with you or anyone about this. 90%+ of my posts merely gave reasons and examples for why a startup web hosting company should consult with a qualified attorney when it comes to drafting the ToS agreement between their company and their customers.

Take my advice, or leave it. It's up each person to decide what's best for themselves and their companies.


That's it....... buh-bye. :wavey:

No one is trying to start an argument, I'm trying to point out that the most relevant TOS there is would be the one you have to operate under, not just any TOS that happens to be floating out there in the Internet. Advising someone to grab a bunch and use what works for them is not good advice This doesn't match the previous example you'd given. In the example you gave, you talked about them shutting your cutomer's website down, not your entire business. And therefore being sued by your customer. It certainly does match the example. My upstream cannot terminate a single website for a TOS violation they terminate my server or account The larger you are the more damage a TOS violation causes. I recall Cogent shut down FDC servers for a TOS violation of one of their clients sometime last spring. Took their whole business off the internet for several days as far as I can remember.

I'll leave it at that as well....

Just on a note of making sure you don't "steal" tos, etc, that another company may have paid good money for... I went to one reputable hosting company (don't remember which), had a look at their legal docs, pasted some generic lines (i.e. the stuff without company names) into google, and got tons of results.

I doubt therefore that anyone would have a legal case if they said you had stolen their docs, as I doubt there is a clear case as to who had that wording first.

I may be mistaken, and am in no way a trained legal professional, so this should not be taken as legal advice :-)

I am guessing that hundreds or thousands of small companies have used bigger companies TOS docs. They change a few words and of course "name change" and they have a TOS doc.

The cost to the big company to hire trained legal professionals to stop every 16 year old who wants to start a business would be
very expensive.

This might help you make a privacy statement.

http://www.truste.org/bus/index.html

Originally posted by jonMEGA
This might help you make a privacy statement.

http://www.truste.org/bus/index.html

Thanks!

Jason