Fine Print Friday is a weekly column where I examine and analyze Contracts that affect many of us in our daily lives. Each installment will point out a few interesting provisions the average reader may not have noticed.
Fine Print Friday: A2 Hosting’s 99.9% Uptime Guarantee
As so much of our communication today is dependent on the internet, website uptime (the time when a website is accessible by the public) is vital to businesses and organizations. Anyone who has developed or run a website knows just how important it is to have a reliable host–both for support and to ensure reliable website access. Consequently, many web hosts advertise their uptime percentage and some guarantee a certain amount of uptime.
From a legal standpoint, a guarantee consists of a seller assuming responsibility for the performance of some benefit to the buyer. In the case of A2 Hosting, their 99.9% Uptime Guarantee acts in effect as a contract in which they engage when a website owner uses A2 as his or her web host. However, what one would assume the guarantee would encompass (based on the guarantee’s title) is quite different from what is actually guaranteed via the language in A2′s Uptime Guarantee.
The following are notable points in A2 Hosting’s 99.9% Uptime Guarantee that may give potential customers pause:
1. Downtime Possibility: 99.9% by their calculations equates to 8,751 hours and 14 minutes per year. There are 8,760 hours in a year. This means that their guarantee still allows them to drop your service for 8 hours and 46 minutes per year.
2. Limited Liability: A2 limits the bounds of their guarantee to those things within their immediate control. Perhaps this makes sense. But they do nothing to define how these limitations (such as “Problems with your ISP’s network”) will be determined if downtime occurs.
3. Scheduled Downtime: Any scheduled maintenance to A2′s servers that involves downtime is exempted from the guarantee. Why they cannot spread out the maintenance of their servers in order to avoid downtime is not addressed. But if your site is down due to their server maintenance, you have no recompense.
4. Time Requirement: In order to qualify for a refund according to the guarantee, your site must be down for at least 0.1% of the time per month. For a 30-day month that is 0.72 hours, or 43 minutes and 12 seconds. There is no explanation as to whether that is cumulative or per episode of downtime. If it’s the latter, then according to the guarantee it is feasible that a site could have downtime of 40 minutes every day and still not qualify for any refund according to the language of this guarantee.
5. Refund Requirements: If a website hosted by A2 experiences downtime sufficient to trigger the guarantee, that downtime must still be confirmed by a staff member of A2′s support team. No further information is given regarding this process or what the staff member will investigate to determine whether A2 is responsible for the downtime at issue.
6. Refund Amount: Once all the hurdles discussed above have been cleared, refunds will be issued at the level of 5% of the monthly fee for every hour of downtime. That means that if a website owner is paying $12 per month for hosting services, the refund for one hour of downtime will be $0.60. An alert reader will notice that the guarantee is triggered at 43 minutes and 12 seconds, but a refund only occurs after one hour. There is no indication that there is a pro-rated refund for the time periods between 43-minutes-and-12-seconds and one hour. Also note that the refund is only 5% of the monthly hosting fee, not any additional services (like domain registration, private IP address, extra bandwidth, etc.).
7. Maximum Refund: The maximum refund will be for the full amount paid for the month, and would require 20 hours of downtime. At that point, I think any website owner would be looking for a different host.
Takeaway
A thorough read-through of A2′s 99.9% Uptime Guarantee is a great lesson in why you should read the entire contract (or guarantee, or terms and conditions, etc.). The title of the guarantee makes it seem great, but after reading through it, it’s clear that A2 has done its best to disclaim any downtime and to make it almost impossible for a customer to collect a refund for any downtime.
The second lesson is to think through the real-world implications of the terms of a contract. The use of large numbers (the hours per year that are guaranteed uptime according being 8,751) and small numbers (the guarantee is triggered for only o.1% downtime per month) makes the guarantee sound really impressive upon the first read-through. But after crunching those numbers, comparing them, and thinking about what a website owner would actually want with regards to uptime guarantees, it is no longer all that attractive.
Keep these lessons in mind each time you encounter a contract, guarantee, or terms and conditions. They will save you from disappointment and surprise, and also inform you of what you are actually signing up for.
Thanks for reading. Please leave any comments or suggestions for future Fine Print Friday subjects in the Comments section below.
About Graham Martin
Graham Martin is a solo practitioner focusing on Contract law (including drafting, review, and litigation). He operates Martin Legal Services, LLC in the Minneapolis-St. Paul area.
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So, would you say this is a good contract, or a bad one?
Sam–
I would say that it depends on what you are looking for. If all a person is looking for is a host that will be up most of the time, and that person isn’t relying on his or her site for income purposes, then it’s probably fine.
But if you are like me, and you’re using a website as a way to drive business then uptime is critical. The amount of money a website has the potential to generate in a single hour far surpasses the 5% refund that an A2 customer might receive. So in my case, the 99.9% Uptime Guarantee is a terrible contract; it gives me nothing of value and gives A2 every possible way out of honoring the guarantee.
Another good way to think about these things is to compare them to situations you might experience in other settings. When you get your hair cut, if the stylist leaves a chunk uncut, just draping down your shoulder, you don’t expect to pay for it at all, much less 95% of the price. And you don’t have to let another member of the staff agree that it’s not right prior to agreeing to the measly discount. If I had the same “guarantee” from all my service providers (lawyers, doctors, hair stylists, teachers, clergy–can you imagine only being partially absolved after tithing!?), I wouldn’t be nearly as excited to hire people to perform those services for me.
So I would say it is a mostly-bad contract, and, personally, I never would have signed off on it unless I knew that A2 was specifically trying to ensure that their guarantee would never actually be utilized by anyone.
Hey I saw your tweet, what’s your take on the idea that uptime is basically a useless statistic for measuring a website’s effectiveness?
http://gigaom.com/2009/02/18/when-it-comes-to-social-networks-uptime-doesnt-matter/
Mostly Harmless–
I could see uptime not being of extreme importance in the cases of sites that are not commercially oriented. I also understand that far more is taken into account when determining overall website effectiveness, such as quality and usability of the site, effective calls to action, useful information, and accessibility via referring sites.
That said, none of those other effectiveness characteristics matter if the site can’t be accessed. Additionally, for those using a website for commercial endeavors (either for direct sales or driving traffic to another location to conduct business), any time that a site is not up is a time it is not available to customers. Although no one can guarantee that a site would be producing sales during downtime, there is at least a possibility that sales are being lost due to downtime.
To answer your specific question, however: I would say that uptime itself is not a good measure of website effectiveness unless the other aspects of that site are functioning optimally (or even just adequately).
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