I just learned that Rochenhosting.com's User Agreement contains a clause that states that they will charge you for six months of service, even if you cancel your account after only a couple of weeks!!! Here's the story:

In mid-February, lured by an offer on these forums from Chris Adams of Rochenhost.com, I signed up to have my two domains hosted at Rochenhost.com. I then waited until Spring Break in mid-March to actually transfer my teaching domain to Rochenhost, so that the DNS could propogate while my students were gone.

Within days of the DNS propogation, I was unhappy with Rochenhost's service. I sent them several messages, describing what I thought were way too many downtimes. They answered some of them, but they didn't answer others. If I wrote to them late at night, I'd often have to wait until the next morning or even afternoon before they'd reply. So I ran one of those free 8-hour Web site tests at NetMechanic.com, which rated Rochenhosting.com's main server "Poor" compared to other servers it had tested. I wrote to Chris and sent him a copy of that report. In reply, he tried to convince me to not believe NetMechanic's tests.

So, I moved my domains to Ventures Online, where they are currently loading very quickly with no noticeable downtime at all. BTW, NetMechanic.com's tests rated the VO server as "Very Good" compared to other servers it had tested. Then I cancelled my Rochenhost account, only about 2 weeks after my DNS info had propogated to them.

The problem is, Rochenhost now tells me that their "shrinkwrap" User Agreement states that they will charge every user for a minimum six months of service, even those like me who cancel their accounts after a couple of weeks!

The following email from Rochenhost's Chris Adams (with a copy to his "legal department!!!"), basically asks me to "prove" that I was unhappy with Rochenhost's service!



-----Original Message-----
From: Christopher Adams [mailto:cadams@rochenhost.com]
Sent: Tuesday, March 26, 2002 1:01 PM
To: 'xxxxxxxx'
Cc: billing@rochenhost.com; mma@rochenhost.com; legal@rochenhost.com
Subject: RE: Cancellation.


Hi xxxx,

Thank you for your mail.

I note your reason for wishing to cancel your account with us results from your impression that the server providing your service failed to perform and had excessive downtime. We would dispute this. Our logs for the server show the following:

24 Feb 2002. 20:29 GMT. - Server restarted. This was due to the
installation of Linux PAM resource limiting software - downtime 5
minutes

28 Feb 2002. 06:16 GMT. - Bogus DNS Issue - downtime 13 minutes

7 Mar 2002. 01:35 GMT. - Server rebooted, high loads - downtime 12 minutes

8 Mar 2002. 09:53 GMT. - Kernel upgrades - downtime 15 minutes

21 Mar 2002. 11:23 GMT. - Reboot, high loads. Site running banned script - 30 minutes

Since you signed up on the 18th of February the servers have had a total downtime of 75 minutes. This gives server uptime of 99.85%. We believe this provides an excellent level of service.

We make note of your email of 21st February where you stated "so I count on your claims of 99.9% uptime to be true." Please advise where this claim is made.

With regard to our response times to emails, I am not aware from our logs that any communication addressed to our Technical Support Department which took in excess of 12 hours, as you state. To help me further investigate this matter, I would be grateful if you could send a copy of the relevant emails along with full email headers.

I note that you state in your mail that you claim to have signed up with Rochen Hosting on a "month-by-month" basis. Please forward a copy of any Rochen Hosting communication where we state this option. Customers are billed on a recurring monthly basis with a minimum contract period of 6 months.

For you to have successfully completed the signup process, you will have clicked a "Yes" option to indicate your agreement to the Rochen Hosting terms of use. If you had selected "No" the signup process would have failed and you would have not become a customer. Your acceptance of our terms of use is electronically logged. Should you still wish to contact your credit card company please feel free to do so.

We note from your website certain remarks with regard to our service. We would dispute all of these. Please note we are not an ISP. At this time we would ask you to remove all defamatory comments with regard to Rochen Hosting, otherwise we will pass the matter into the hands of our legal advisors.

Of all our many customers you are the only one to castigate our level of service.

I wish you well with your new hosting company.

Best Regards,

Chris Adams
Team Leader, Rochen Hosting



And here's my reply to him:


Hi Chris,

I am not going to argue your points with you and I don't have to "prove to you" that I was unhappy with your company's service. All I have to do is TELL you that I was unhappy, and you should be professional enough to cancel my account and stop billing me.

The fact is, whether or not they show up in your server logs, I sent you several email messages, documenting time after time that my x*********** Web site (and indeed ALL of Rochenhost.com) was totally unreachable during the two weeks or so that I actually used your service after the DNS propogated. You acknowledged some of my email messages, you sometimes gave me reasons for the downtimes (i.e. a DOS attack), but other times, you didn't respond to my messages at all, possibly because Rochenhost.com's email system had lost my messages during the same times that its Web sites were unreachable.

If you choose to fight this out instead of stopping your billing immediately, you will certainly lose the battle. Whether or not you hide a "six-month minimum contract length" clause in your User Agreement, you and I corresponded several times before I signed up with Rochenhost -- when I asked if I could get a 30-day trial, you told me that you don't offer them -- don't you think that would have been the time to tell me that Rochenhost requires users to pay for 6 months of service even if they leave after one month??? Instead, you chose to remain silent on the issue and let one sentence, hidden in the middle of your user agreement, speak for you. To me, that is a very deceptive practice.

There is no way that I (or ANYONE for that matter) would knowingly sign up with a hosting company that clearly and honestly states up front that it will charge me for six months of service even if I am unhappy with the service and cancel my account after a few weeks.

Regarding my comments about your company on my Web site, please tell me specifically what you think is "defamatory" about what I wrote: "Rochen Hosting - I cancelled my account about two weeks after I switched my domain to their server, because on their server, my Web site seemed to have more downtime than on any Web host I had ever used, and it often took them several hours to reply to my support requests. They seemed to be a very small but sincere company that had a lot of technical problems and just couldn't keep up with answering their support requests. Based on my experience with them, I don't recommend Rochen Hosting."

I ask you to reconsider your decision, and stop billing me immediately. Thank you.

My personal opinion is that that is horrible downtime, and to only offer a six month long contract is pretty unbelievable. It seems unfair to have service agreements that only benefit the host, and not the customer as well.

But it sounds like you entered into the agreement, even if you didn't read it.

It is totally your right not to authorize them to bill your credit card for the remaining months, unless you already have authorized them to do so in the contract.

However, just because you don't authorize them to bill your credit card for the debt won't mean that you don't still owe them the money. They will probably continue to pursue you.

I have to agree with Bitserve, this could have easily been avoided by completely reading anything you have to agree to. Don't just assume that it mirrors everything on their site.

It is still pretty shady business practice.

I feel for you but....
Next time you should read everything of what you sign, this would have been avoided. If they were able to provide acceptable service, there should be no reason to go against the contract. Did they guarantee within 24 hour response? A few hour response time isn't too bad.. They want proof before they refund your money, I can understand that. Giving them proof could be used to help better their services of when and what fell through the cracks.

I think they should put up front that their is a 6 month contract, but they aren't legally required to do so. You press the submit button that states you read the contract and agreed to it.

I didn't remember reading anything about a minimum 6-month contract when I signed up for Rochenhost.com, so I just did some testing...

I just went to Rochenhost.com and did a search for "Agreement" (no documents found). So I did a search for "Terms," and it found several documents, but none that were relevant.

So, I started clicking on every link I could find on the Rochenhost.com Web site, trying to find ANY mention of their "minimum 6-month commitment" but I couldn't find it anywhere.

So, I went through the process of signing up for another Rochenhost account. Their registration wizard took me through several screens that asked me to make choices about what services I wanted. I did not see any link to Rochenhost's Terms of Service on any of those pages. I went through the registration process all the way to the screen that asked whether I wanted to use PayPal or a Credit card to pay for Rochenhost's services, and I never saw anything that would tell me that Rochenhost requires a user to pay for a minimum of 6 months of service. In fact, one of their very first registration screens asked me if I wanted to sign up for monthly billing or yearly billing -- again, with NO mention that their monthly billing has a 6-month minimum.

It appears to me that Rochenhost's registration process does not make ANY EFFORT at all to tell a new user anything about their 6-month minimum contract policy. In fact, it makes it appear that the user is signing up for normal "month-by-month" billing.

Then, if a user is unhappy with their service and tries to cancel their account, they are directed to the "gotcha" six-month minimum contract language that Rochenhost keeps hidden inside a document that I couldn't even find by searching their Web site.

Whether it is on purpose or intentional, that is a deceptive business practice at best. And unless Rochenhost chooses to do the right thing and immediately stop billing me, I think my Visa company will agree with me.

BTW, Chris Adam's version of Rochenhost's server logs (in red, in his reply to me above) is also very deceptive, because it only lists the times that the server was actually down. He didn't even mention the fact that the Rochenhost server was unreachable for SEVERAL HOURS one day, due to (he later claimed) a denial of service attack. Then it was unreachable for I don't know how long at a time several other times for a few days after that -- it seemed like every other time I checked them, my sites (and Rochenhost.com) were totally unreachable, and I sent Chris email messages telling him each time I saw that my sites were unreachable. It got so that I felt like I was working for him instead of him providing a service to me.

So, if anyone wants to calculate Rochenhost's TRUE uptime percentage during the less than two weeks that my DNS actually pointed to its servers, you'll have to include all the HOURS that the Rochenhost server might have been "running," but it was totally unreachable.

And when you realize that all that downtime happened in less than two weeks, you can begin to understand my frustration with Rochenhost and why I chose to cancel my account and move my domains to a different hosting company.

They do have it hidden, but I saw it first time.
Go to their main site, and look at where the column that has "search rochen" and "welcome to rochen" on the far left. Below that is Terms of use, underlined in red letters.

That sends you to http://www.rochenhost.com/hostingservices/terms.htm

Then user agreement
http://www.rochenhost.com/hostingservices/termslinux.htm

where you find

CANCELLATION AND REFUNDS
Rochen Hosting reserves the right to cancel the service at any time. If a customer contravenes Rochen Hosting' terms of service a refund will not be issued in the event of a cancellation.

Customers may cancel their account at any time. There is a minimum contract of six months from the date of the account's activation. If a customer cancels their account before the six months has ended they will be charged for the remaining time of the contract. Fees charged are non-refundable.

It is tricky to find though

Customers may cancel their account at any time. There is a minimum contract of six months from the date of the account's activation.
Don't those two sentences contradict each other? If a customer can cancel at any time, then how can there also be a six month minimum contract?

You didn't read: "If a customer cancels their account before the six months has ended they will be charged for the remaining time of the contract."

This isn't too far out.. alot of ISPs practive this business model. For instance, Earthlink did this to me after I had been with them on a 1 year contract. I signed up at $20/month and then they changed it to $25/month without telling me. So when I went in to cancel my account due to the price increase, they charged my card for the remainder of time I had left with them (3 months).

It isn't really bad business practice, it's just a different business model. You agree to it when you sign on to the service, so you have to stick with it. I also have this type of agreement with my pager.. I signed on to a years service.. if I cancel before the year I will be charged a cancellation fee equal to the time remaining on my contract. It's the price you are willing to pay, I believe... if you trust the service will be good from recommendation take the plunge, if you think there may be a chance of not having a good experience.. go with a host you know does not impose contracts and will give you a 30 day money back guarantee.

Always read the TOS, AUP and privacy policies! Don't think that all providers are going to be nice enough to e-mail you to let you know there has been a change made to them either. I always check at least every 15 days to make sure I still agree with any changes that may have been made to an agreement I've made with any business. It's being a smart consumer.. you have to constantly cover your @$$

That's my 2¢

I've seen webhosts with no TOS/AUP anywhere on their site at all... how's that for scary? So I guess if you're checking up on potential hosts, look for the TOS/AUP as well. If there isn't one, RUN, as fast as you can. ;)

Yoinks....

I just did a website change, and guess which file I forgot to change over....OOOPs...been going a week sans AUP...

B

godfather,
I thought you might have a point, and I started going through their signup process, looking for where it said that you agree to their TOS, and it doesn't say that. The closest it has is the following at the bottom of the order page:


Transaction Notes:
Review Rochen Hosting's Terms and Conditions.


It was a link, so basically it's saying "Click here to Review Rochen Hosting's Terms and Conditions".

It should really say something like "To order, you must agree to Rochen Hosting's Terms and Conditions, click here to read them".

It could have just have easily said "Click here to review your windows manual". Or "Click here to go to google.com". This doesn't become part of the agreement, just because it's a link.

I'm not a lawyer, but they definitely messed up. Just because they have a link to a document on their web site doesn't mean that you automatically are agreeing to it.

Anyway, you might go to archive.org to see what it said when you signed up, if it's there. Probably not, because it looks like pretty dynamic java stuff. But you should usually save a copy of an agreement that you enter into.

Good luck.

BTW: What in the hell is a rochen?

Thanks, bitserve!

Originally posted by bitserve
BTW: What in the hell is a rochen?
Based on my experience with Rochenhost.com, I could sure make a few educated guesses...

I don't know if this has just been placed there, but on the part where you enter your CC information, near the bottom there is a blank for "Do you agree to the Rochen Hosting terms of use?:" and then the last line of the page has the "Review Rochen Hosting's Terms and Conditions." If it's new, at least they are doing something about it instead of continuing to "deceive" people.

While it is sneaky to hide things like that in the TOS/AUP, I really don't see anything illegal about it. They are still billing you monthly, like you requested, but you're on a 6-month contract. It clearly states it in the Cancellation section of the TOS as of Feb 4, 2002. I also found the TOS link on the left hand side very easily. It sticks out if you're looking for it. Those types of links are usually put in the lower left, center, or right parts of a company's website (usually the home page).

I guess the question is are you legally bound to their TOS because you never had to "formally agree" to it (or so you think).

At least a lesson was learned, hopefully by more than one person here...

Originally posted by allera
I don't know if this has just been placed there, but on the part where you enter your CC information, near the bottom there is a blank for "Do you agree to the Rochen Hosting terms of use?:" and then the last line of the page has the "Review Rochen Hosting's Terms and Conditions." If it's new, at least they are doing something about it instead of continuing to "deceive" people.

While it is sneaky to hide things like that in the TOS/AUP, I really don't see anything illegal about it. They are still billing you monthly, like you requested, but you're on a 6-month contract. It clearly states it in the Cancellation section of the TOS as of Feb 4, 2002. I also found the TOS link on the left hand side very easily. It sticks out if you're looking for it. Those types of links are usually put in the lower left, center, or right parts of a company's website (usually the home page).

I guess the question is are you legally bound to their TOS because you never had to "formally agree" to it (or so you think).

At least a lesson was learned, hopefully by more than one person here...


Yup check and see if you had to agree to the terms or a notice on your contract/signup where the gave you the link to read them if not you mayhave a way out

If Rochenhost had deceptively hidden a clause in their TOS, stating that they have a minimum 10-year contract, would I now be required to continue paying them for 10 years of service?

What about the fact that, with their hours of down time, Rochenhost did not provide me the service that they had stated they would provide? The whole reason I signed up with them was because I was having technical problems with my old hosting company, and Chris Adams of Rochenhost left messages here, saying that Rochenhost's uptime is 99.5% and higher. The whole reason I cancelled my account with them after only a couple of weeks was because they had HOURS of downtime in the less than 2 weeks that my DNS info pointed to their servers. Hours of downtime during that less-than-2-week period hurt my Web site's reputation, and made Rochenhost's services less than worthless to me.

In order for a TOS to be valid, doesn't the hosting company have to actually provide the service that customers contract them to provide? It can't possibly be true that a hosting company can put up a Web page, sign up customers, provide intermittent and unreachable Web services, and then use their TOS as a weapon to force customers to pay them for months after the customer has left in frustration and disgust.

Originally posted by godfather
What about the fact that, with their hours of down time, Rochenhost did not provide me the service that they had stated they would provide?
That's your primary weapon. :) Hang on to your NetMechanic readings if you still have them, just in case. Let your credit card company know that you didn't get the service you paid for and should you have stayed the remainder of the 6 months, you probably would get similar service. That, with the "deceptive" signup process you claim they had before should make them side with you.

I love credit cards for this exact reason.

I hate getting involved with these types of discussions because generally it only upsets people, but I think it is important to clarify some things about contract law here because Godfather doesn't seem to be aware that a Terms of Service agreement *is* indeed a contract.

Before I get into specifics of this reply, let me first state that, in my opinion, Rochen Host should have absolutely cancelled the service and given Godfather back his money. The bad publicity of something like this just isn't worth the minimal amount of money they will have gotten. So from a strictly business and ethical standpoint, the contract should never have even been mentioned in this specific instance.

BUT, since it was, and since Rochen Host has decided to play hardball, I think it's important for Godfather to be aware of his own misconceptions. Please don't shoot the messenger.

Here we go...

Originally posted by godfather
If Rochenhost had deceptively hidden a clause in their TOS, stating that they have a minimum 10-year contract, would I now be required to continue paying them for 10 years of service?

Yes. There's nothing deceptive about putting clauses in a contract - and that's what a TOS document is, it's a contract. And when you signed up, *IF* you agreed to that contract (and I say if because you indicate it didn't ask on the signup form) then you have to abide by it. If indeed you weren't asked by the signup form to agree to their TOS, however, then you'd have a good argument that you did not actually agree to that contract. But if you agreed to it, then you agreed to it. It's a contract.

What about the fact that, with their hours of down time, Rochenhost did not provide me the service that they had stated they would provide? The whole reason I signed up with them was because I was having technical problems with my old hosting company, and Chris Adams of Rochenhost left messages here, saying that Rochenhost's uptime is 99.5% and higher.


I see no where on their site or in their Terms of Service document that they guarantee 99.5% uptime. If they advertised it somewhere, you might have a claim of false advertising, but since it didn't state it in the contract they don't automatically need to provide it. In fact, Rochen Hosting specifically states to the contrary in their TOS - it says "Rochen Hosting makes no warranties of any kind, expressed or implied for services we provide. Rochen Hosting disclaims any warranty or merchantability or fitness for a particular purpose." This basically means "Unless otherwise indicated in the agreement, we don't guarantee anything." And the agreement didn't contain any guarantees. So it's irrelevant what their advertising might have said.

In addition to that, from what you indicate above (I didn't see the original post so I'm going on what you wrote about the ad you saw) the advertising indicated they *have* 99.5% uptime, and *not* that they *guarantee* that level, merely that that's the level they have. There's a big difference between advertising "we currently have 99.5% uptime" and "we guarantee 99.5% uptime for your site." It's a big difference.


In order for a TOS to be valid, doesn't the hosting company have to actually provide the service that customers contract them to provide?

No. In order for the TOS to be valid, the customer must agree to it. That's basic contract law. *If* you agreed to it, it is valid, unless something within the contract is found to be unlawful (but, unfortunately, having a bad service isn't illegal).

If the contract had language in it that said (again, I'm paraphrasing) "If the company doesn't offer adequate service the customer may cancel with no penalty" that'd be one thing - but the contract doesn't say that. The contract says there's a 6 month minimum length, and doesn't give any "out" clause at all.

Bottom line is that you should always always read and understand any contract you are agreeing to.

Now, I will give you the point that any reputable business who cares about their customers would and should have said "ok, we're sorry, here's your money back" and left it at that. It is very, very surprising that a company would pull out their contract in this type of a situation and try to enforce it. You get more bees with honey than with vinegar, and I think the vast majority of hosting companies would absolutely give you your money back no matter what their contract states.

But, the fact remains, that if Rochen Hosting decides they want to enforce the contract, that is their right to do if they can prove you affirmatively agreed to abide by it.

Jason

Originally posted by allera
I don't know if this has just been placed there, but on the part where you enter your CC information, near the bottom there is a blank for "Do you agree to the Rochen Hosting terms of use?:" and then the last line of the page has the "Review Rochen Hosting's Terms and Conditions." If it's new, at least they are doing something about it instead of continuing to "deceive" people.

I went there again, and it took me awhile to find this. I was like, "hanh? I don't see that." But then I saw it right before I was going to click off. I wasn't looking for a form field where you had to type "yes or no". I was expecting a button to continue or a checkbox. So I might have missed it before.

How are you supposed to agree to their terms of use, when they only have Terms and Conditions? That link should definitely be up where you enter the "yes or no". They need to rethink that.

Anyway, it's definitely there now, although it could be a lot less confusing with a few changes.