Hi,
Few days ago i had problems with my hosting due to Burst errors.
Can my hosting clients sue me for 4-5 hours downtime?

Thank you,
Alexdio

That depends, I guess.

I can't imagine that you could be in trouble there, but I don't know what your SLA/Terms of service states.

You came here for legal advise? Go ask your lawyer. If you are located in United States you can get sued for almost anything.

so all depends on my SLA/TOS?

Could be.

If you're just worried about the possibility; don't. Because, as has been mentioned, you can be sued for anything. Doesn't mean the other party would win. But, you can be sued.

So, to answer your question; yes. The client can sue you.

Can they prevail? Ask your attorney.

nowadays, anything is possible. They can probably create a case.
Will they be victoriious? I don't know.

I can't seem to find any terms of service on your site. It all comes down to whether or not you've covered yourself in your terms, which appears to be non-existant.

Anyone can sue anyone for anything in America.

Whether their suit is thrown out of court is another matter, and you'll still need to expend resources to defend against it.

But you definitely need a TOS/SLA that protects you!

a TOS/SLA which does not stand up legally will not protect you at all.

big myth floating around here is that you can make up any terms you want and they will be enforceable in a court of law.

actually quite the opposite is true.

Originally posted by LaurenStephens
big myth floating around here is that you can make up any terms you want and they will be enforceable in a court of law.
i know in many states (like here in NC) it will be accepted as your legally binding agreement with the customer about the service you provide. and it is not important how it is written or by whom.

alexdio, yes you can be sued. i doubt that would happen though. not for 4-5 hours of downtime.

TOS/AUP/SLA are important. Having customers accept the terms outlined in those documents is very important.

That is all I have to say here.

First of all, you should really get yourself a TOS/AUP type of document. As far as the client is conserned, just tell them you will give them credit towards next month. If that fails, kindly remind them that it can cost hundreds to thousands to go to court, and they are better off taking the refund.

Things like this happen all the time to ecommerce businesses. It usually turns out to be a hothead behind his computer just typing, and he will never go past that.

So many americians sue people in america, its unfair. I am with Josh Stein, if you don't have those documents, you can be sued.

Originally posted by Stacie
If you are located in United States you can get sued for almost anything.

He does have a point there.

Out of interest, how much does he want to sue you for 4-5 hours downtime? surely it wouldn't be worth his time

>>alexdio, yes you can be sued. i doubt that would happen though. not for 4-5 hours of downtime.

Good. Anyway i'll sue Burst.net/noscster if some one will try to sue me.

Originally posted by alexdio
>>alexdio, yes you can be sued. i doubt that would happen though. not for 4-5 hours of downtime.

Good. Anyway i'll sue Burst.net/noscster if some one will try to sue me.

You've got to be kidding me. Do you even know what Burst.net/nocster's SLA is? I would sure hope you investigated this information if you are providing hosting services.

Anyways, a few hours of downtime on the plan that the person has with this guy probably equates to less than $20. Therefore not even a small claims court would take the case for pure monetary damages. The only way the person could get anything is if they sue for other damages such as lost business or pain and suffering, etc.

Ok,

Get yourself some water tight terms written IMMEDIATELY. Do not delay. It is extremely important that you:

a) Protect you and your company
b) Limit your liability by covering consequential loss and compensation terms.

You should have covered yourself in your TOS, by stating the following (in psdeuo talk):

We (host) accept no responsibility for loss arising as the use of our services.

Compensation is at the discretion of (host) and shall not exceed what you (client) pay per month.

Compensation is limited to the maximum value of the hosting account. I.e. if they are paying $20 a month, the maximum you will compensate them a of maximum $20.

Compensation may take the form of extension of a defective service (i.e. you give them a month free), or equivalent cash value (which would equate to $20).


I'm no lawyer, so do not act upon this advice. I'd recommend you have your lawyer go write you some water-tight terms.

My final recommendation is to avoid legal-speak. Put it in real life terms, so the customer understands what they are agreeing to.

Good luck.

Originally posted by alexdio
>>alexdio, yes you can be sued. i doubt that would happen though. not for 4-5 hours of downtime.

Good. Anyway i'll sue Burst.net/noscster if some one will try to sue me.

:rolleyes:

Originally posted by alexdio
Good. Anyway i'll sue Burst.net/noscster if some one will try to sue me.

You do realize that by making such a moronic statement in a public forum, they could just pull the plug on you for the legal threat?

You don't have any form of liability contracts with your clients, none that I can see on your site anyways. Nocster however does. If I were you I'd hope they don't come across this thread.

Indeed. Most companies will cease any service once any legal threat is made.

I'd suggest for the sake of you and your company, you try to be careful what you say- particularly in an open and public forum.

Originally posted by [inx]Olly
Indeed. Most companies will cease any service once any legal threat is made.

I'd suggest for the sake of you and your company, you try to be careful what you say- particularly in an open and public forum.

Ditto. If I ever had a customer threatening me with legal action, bye-bye they go. I don't have to do anything for them once the threat is made. They can take it to the next level (court) if they so please, but they won't get too far on a matter of this sort. I have never had a problem though. My TOS/AUP/SLA have been available from day one and all customers must accept the terms listed.

The idea of getting sued for 4-5 hours of downtime seems so strange. My old host was regularly down for 12 hours a day. Usually they don't even apologize, but I never thought for a second to sue them, my own fault for using a sucky host. (I see they are still advertising here... LOL.)

Suing a host for 4 to 5 hours of downtime sounds a little strange. Lets see.. $10 a month $0.35 a day and $0.014 per hour... which makes it less than $0.10 for 5 hours....

Would be better off choosing another host if it were me.
Get your TOS out and make them accept it before they can sign up would be a good choice.
And for your existing customers email them the new generated TOS and state that if they accept and don't cancel their monthly subscription would mean that they fully accept the TOS. :)

It does depend on your country whether it depends all on the TOS. Here in Germany if you have an SLA of 50% that would not be legally valid and because of that you would be reliable for any damages caused if you do not provide 100% uptime. Therefore it is important to contact a lawyer and ask them how much you can limit your SLA.

EDIT: @galacnet: Yes, uptime

do not provide 100% downtime
You mean uptime? :P

Something that everyone of you guys should know:

If the site is down for 4 to 5 hours and because of that your client looses a customer who wanted to spend $10.000 you have to pay these $10.000 if the client can prove that he lost the money due to the downtime !! You do not just pay a certain percentage of the webhosting fee unless:

1a. You have limited your liability to the amount you charge for the hosting in your TOS.

and

1b. This limitation is legal in your country.

or

2a. You have limited your liability to a certain amount of time (i.e. 99%)

and

2b. That limitation is legal in your country.

Without a legally valid limitation you are liable for ANY DAMAGES CAUSED ! Not just for the amount the hosting costs during 4 hours !

Almost nobody of the small companies seems to know that and that is real ****ing dangerous because it can ruin you.

...and now don't tell me that`s not true and stuff. I do not care whether you believe me. GO ASK A LAWYER and have him write your terms ! It can save your *** !

By the way...this:

>Ditto. If I ever had a customer threatening me with legal action,
>bye-bye they go. I don't have to do anything for them once the
>threat is made.

might also be wrong for most hosting contracts. Once you have a contract with your client you are obligated to host this person unless you cancel the contract. If you cancel the contract you have to wait until it ends. I.e. if you have a yearly contract you have to wait until the end of that year.

If the client threatens to take legal action and this threat is not illegal you are still obligated to host the client until the contract ends.

If you terminate his account before that you are liable for any damages caused.

Originally posted by thomas.smith
If the client threatens to take legal action and this threat is not illegal you are still obligated to host the client until the contract ends.

If you terminate his account before that you are liable for any damages caused.

Not true, you can terminate a client's account if covered in your TOS provided you give a refund for the remaining hosting time.

Originally posted by Amdac
Not true, you can terminate a client's account if covered in your TOS provided you give a refund for the remaining hosting time.

Ok, that's right. If you have that in your TOS and that agreement is legal in your country you can terminate the account at any time. But I do not think most companies have that in their TOS and I don't think it would be legal in many countries. At least I would never order a hosting account if the company could shut it down at any time without giving any reasons for it.

Originally posted by thomas.smith
But I do not think most companies have that in their TOS and I don't think it would be legal in many countries.

I don't mean specifically saying "if you sue us we'll cancel your account", but most well written disclaimers will have something along the lines of "We reserve the right to refuse service and/or suspend accounts if deemded necessary." The general condition would be a partial refund for unused time. It should be a requirement to have something in your TOS to prevent issues such as this, otherwise clients can sue you for suspension for just about any reason.

Originally posted by thomas.smith
Ok, that's right. If you have that in your TOS and that agreement is legal in your country you can terminate the account at any time. But I do not think most companies have that in their TOS and I don't think it would be legal in many countries. At least I would never order a hosting account if the company could shut it down at any time without giving any reasons for it.

This has nothing to do with no reason. It has to do with being threatened with legal action or resources being taken up for non-sense. As long as the TOS states that something like this can be done and you refund the person for the remainder of the hosting, there should be no major legal implications.

Originally posted by Amdac
I don't mean specifically saying "if you sue us we'll cancel your account", but most well written disclaimers will have something along the lines of "We reserve the right to refuse service and/or suspend accounts if deemded necessary." The general condition would be a partial refund for unused time. It should be a requirement to have something in your TOS to prevent issues such as this, otherwise clients can sue you for suspension for just about any reason.

You are right: Any company reseves the right to terminate an account for important reasons like AUP violations or if the customer refuses payments etc.. However, if you write "if deemded necessary" that means that you have to justify it in case the customer sues you and if it goes to court you must be able to convince the judge that it was neccessary. What I wanted to say is that you can not just suspend an account for any reason. Some people on WHT think you can...I've often read things like: "I can kick the client at any time" etc. That's not true. There might be some countries where you can have a "I can kick you at any time" agreement in your terms but if you don't have it in the terms or its not a legal agreement you can't suspend someone just because he threatens to sue you etc.

Originally posted by Josh Stein
This has nothing to do with no reason. It has to do with being threatened with legal action or resources being taken up for non-sense. As long as the TOS states that something like this can be done and you refund the person for the remainder of the hosting, there should be no major legal implications.

It depends on your country's laws. I do not think there are many countries where you can have an agreement in your terms saying: "We can terminate your account as soon as you threaten to take legal action against us". Threatening to take legal action against someone because you believe he violated your rights from a contract you have with him is totally legitimate. That is what that part of the law is for actually. If you have that in your term it would be rather surprising and probably invalid in many countries. It depends on your country's laws.

Originally posted by thomas.smith
Some people on WHT think you can...I've often read things like: "I can kick the client at any time" etc. That's not true. There might be some countries where you can have a "I can kick you at any time" agreement in your terms but if you don't have it in the terms or its not a legal agreement you can't suspend someone just because he threatens to sue you etc.

In North America, the web host chooses who they allow service to and this is made clear in their disclaimer. If a client threatens legal action, I wouldn't host their account any longer as it just opens them up to more legal threats. I'd suspend the account and provide a refund, my disclaimer allows me to do this as it's part of the contract established with the client at the time of sale.

Hm...I'm sceptical about that. I mean if you provide your services the way you owe them how would that open you up to more legal threats ?

Originally posted by alexdio
Hi,
Few days ago i had problems with my hosting due to Burst errors.
Can my hosting clients sue me for 4-5 hours downtime?

Thank you,
Alexdio

You can basically be sued for anything. The part to worry about is regarding the lawsuit having any merit. For that, you need to have legal counsel in house, on retainer or as a member of your softball team. =)

Originally posted by thomas.smith
Hm...I'm sceptical about that. I mean if you provide your services the way you owe them how would that open you up to more legal threats ?

thomas -

Here is part of my TOS:

Suspension of Service or Cancellation: Interjuncture reserves the right to suspend network access to any customer if in the judgment of the Interjuncture network administrators the customer's server is the source or target of the violation of any of the other terms of the AUP or for any other reason which Interjuncture chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer's sites were suspended.


Note the "or for any other reason which Interjuncture chooses" phrase. I've never had reason to summarily terminate a customer, but this paragraph gives me the ability to do so should it become necessary. I've never had anyone complain about it and I'm doing pretty good business. :)

Most litigatoin is designed to elicit an out of court settlement, so the issue of whether they stand a chance of winning in court is irrelevant.
Its whether your insurers will pay out to avoid going to court and most will.
People make a living out of this sort of thing.