Hi all,

Great fourm! I run a matchmaking website at http://www.searchpartner.com.

This is my first post and need advice! My hosting company Digi-Wave (http:/www.digi-wave.com) screwed up and my site was down for 4 days. After restoring it yesterday, they have *FAILED* to restore 2000+ images and say they were contaminated by virus.

They promise 99.9% uptime and 24x7 support. Repeated calls/e-mails were never answered in a timely manner.

What are my legal options? Please also recommend any Attorney who'd be interested to bring them to justice.

Thanks

#1 - You should have a backup of your data. That is the most important rule as a web site owner.

They promise 99.9% uptime
The most you can get back is either what you paid for the month or year. You will not get lost income for this.

24x7 support
If you can prove they advertise this and do not provide it, then you can get them with false advertising. However, you will find that most host hide behind the fact e-mail can be sent 24/7/365, therefore they provide 24/7 support.

they have *FAILED* to restore 2000+ images and say they were contaminated by virus.
Wow, this one is fishy. Especially if you were hosted on a Linux machine. This almost seems to me to be an excuse for the fact they deleted your site or suffered HD failure and didn't have back ups.

Please also recommend any Attorney who'd be interested to bring them to justice.
Attorney's love money. I do not see one talking this because there is no money in it. But that is just my opinion.

The best thing you can do is write the BBB and state attorneys office to file complaints. Who knows, maybe others have done this already and you have a group of customers suffering similar problems.

Originally posted by spartner
What are my legal options? Please also recommend any Attorney who'd be interested to bring them to justice.
Sadly, your legal options probably aren't very strong. Their statement about that uptime guarantee is vague in that they don't say what they'll give you if they fail to meet it. They say "your money back," but would that be the prorated amount for the four days you were down? The full amount you paid them? Really a lesson there -- a guarantee worded the way the one at digi-wave is worded is pretty much worthless.

I also didn't find any policy on backups, but typically a host won't make any guarantees that they'll be able to restore your files, or even any guarantees that they won't mess them up themselves. The lesson there: always back up your site yourself!

Maybe you could find a lawyer who'd pursue something, but I think that if you can't establish some real negligence you'll have a hard time getting anything beyond some sort of refund.

Originally posted by UmBillyCord
[BWow, this one is fishy. Especially if you were hosted on a Linux machine. [/B]Looks from their site like they do only NT hosting. Which, however, doesn't make the claim that the image files were damaged by a virus much less fishy.

It's the only thing that helps. My first web site was with www.digitalfrog.net. They also had 99% uptime. My, that server went down for a week at a time.

I emailed them twice a day. Finally a reply. He was unable to reboot the server and don't know what is wrong with it. My heart went out to him. Shame. He was a host and was totally lost.

Now to add insult to injury, that server went down on average for a week at a time every 2 months. But, to my surprise one night while surfing, I saw they had a ISP guarantee emblem on their site. Then 8 months later they deleted my site because they said I did not pay. After scanning my credit card account and emailing it as proof, the site was back up - except I had to upload all my files again. Not so much as a sorry.

Take good advice, don't throw good money after bad.

I think I'm with Fusion on this one...

Either
a) they didn't have a proper backup and blew half your site

or

b) they didn't have a virus scanner running on the server and really did blow your images...

Thinking of (b) that'd have to be NO scanner at all cos all scanner DAT files have had the necessary detection info for the nasty bugger that did all the images damage, like years ago... (I think!).

Not good either way.

With the time, effort, stress and money spent in litigation on this issue you could be up and running again with a new host and making positive cash flow. Better for the stress level and more profitable to move on.

You will waist more money on your car fuel getting to the court house then winning money from digi-wave.

Originally posted by Scott
With the time, effort, stress and money spent in litigation on this issue you could be up and running again with a new host and making positive cash flow. I just want to point out -- since I don't like that people sometimes think they shouldn't pursue things when they really are wronged because it'll cost too much -- that something like this would be suited to small claims court. Depending on the jurisdiction, it'd be pretty cheap even if you lose, and the loser would pay the fees if you win. There wouldn't have to be thousands of dollars in attorney's fees.

(And I say that, by the way, as someone who was once sued for half a million dollars for a minor incident that was tossed out of court. So I'm not enouraging frivolous lawsuits, which I abhor, but I am encouraging "regular people" being as able to use the system as are huge corporations.)

For this particular case though, as I said, I don't think there's a legal basis for a suit anyway.

move a host and Just forget about it...

not much chance of winning in this situation.

Your chances of getting any satisfaction are slim to none. But don't just roll over! Move your site, then file complaints with the Better Business Bureau and Attorney General of their state, and with the FTC.

As for the files being contaminated by a virus, sounds like the old "your backups were corrupted" scam that many hosts who claim to have backups employ when their clients actually need them. See the last link in my signature.

By sueing them you will do them a BIG favor and give them more publicity and that means better for them, so who are you hurting here?

I will ditto what JayC said about small claims court. Cheap filing fees, no lawyers required (where I am, it's discouraged), set maximum claim limit and best of all, relatively quick filing-serving-court date.

Can you tell that I've been through the process? :)

Another good thing about small claims (where I am) that prior to trial you must attend a mediation meeting with the other party. Often a retired judge or senior lawyer is the mediator and the attempt is to find a resolution prior to going to trial. In our case, we had a sitting judge who heard our evidence, listened to the defandant and made it clear that we had a convincing case. Unfortunately the other party did not heed the judge's words.

Anyway, all that said, you should decide if all the aggrevation of a trial and all the time and preparation involved is worth it. You may feel wronged but it's not like they set out to harm you on purpose. That is, it's not a personal slight to your good name, my good man :D

Read their contract and T&C and you may just find that there are clauses about force majeur (sp?) and virus' infecting systems that absolve them from liablity. And even if liable, they would likely have a clause about not being liable for lost business. Oh, and if they're smart, they have a clause about any lawsuits being brought and governed in their State/Province, not just anywhere that is convenient for you. If they're in California and you're on the East Coast (for example) ...

well...

Find a new host or call this one and have a calm, rational discussion with them about your concerns and what they have to do to make it right.

Good luck to you!

Marc