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  #1  
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gregar vs. serverbeach ... some lessons...


Well I will post my opinion regarding that situation. First of all, for those wanna be lawyers please note that Laws have a very own interpretation in court for each situation. In court there is an evaluation of 'malice', ' 'negligence', 'incompetence' and the like. Thats mean that what is written not necessarily prevails all the time.

1st Lesson: Read carefully AUP and TOS

If you notice it to give too much power to the provider get out of it no matter how attractive are their offers.

One thing is to not tolerate spam etc and another thing is allowing DAMAGE to a customer. Thats is unfair

2st Lesson: Provider MUST research when a complaint is presented

The attitude to pull - off a server without serious and responsible research is IMO not acceptable .

3rd Lesson:
It is better to pay a little more and have a more reasonable provider than going cheap and them when your business is growing be affected by those highly restrictive TOS.

In the particular situation, gregar should GO AHEAD. I am very angry and full emphasize with him. How a company thats is doing very well in eCommerce risk his business just to spam?

Serverbeach is not going to be an alternative for me NEVER. NEVER. I have been reading this forum for 6 months and from time to time there is one company being shut off by a provider just because one of their accounts's spam. Damn, on first fault by an account my business could be gone!. Provider should take a Proactive Position and encourage hosters to install programs to prevent spam and have let's say a little more flexible policy to those that make their best to avoid their customers to spam. But the 'you are off' on the first fault is NOT acceptable IMO. So when your business starts to flourish you could be shutoff easily

gregar was affected by a 'company' he is not the culprit, he is the victim. Even spamcop reply serves as 'expert opinion' ...' when they asserts serverbeach decision as a bad call... But no stop at server beach, spamcop could have some liability here too.

Feel free to add your 'lessons' or opinions.

Regarding serverbeach is 'protected' or would prevail because gregar said he would spam with serverbech in content thats is funny. So if I say I am going to steal something police will have reason to arrest me? ... there is a BIG difference beetwen words and actual actions...

Finally, not forget that serverbeach is a big boy here and advertise here. So WHT will allow a fair discussion of this matter of will have preferrence for its advertiser?

Gregar go to your lawyer and keep us updated.


Last edited by carpintero03; 07-02-2003 at 11:36 AM.


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  #2  
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I agree with you that ServerBeach acted hastily and went too far.

But, when he made the threat to them, even though it was ment as a sarcastic example, that he was GOING to spam under their name, that IS grounds for termination. It could easily be considered a thread of damage to them.

I personally would not have acted as hastily BUT what he did was wrong and WILL hurt any case he brings against them.

As I recommended to him, and I will say again, if he calms down and TALKS to them, he's make alot more progress than he is now. He could very possibly get his sites back online if he took this approach. Isn't that the ultimate goal?

Talk to them in a CIVIL manner, get your site's back online, THEN take whatever legal actions you wish. Otherwise, it only appears that there's more to it than is being said.

If it were ME in his situation, I'd do WHATEVER I could to get the sites back online so lost revenue is kept to a minimum, THEN I sould persue any legal actions that may be available to me. I would NOT start flaming them publicly which only makes the situation worse and will make me look worse when/if it ever goes to court.

Just my opinions. Take them however you will.

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  #3  
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Re: gregar vs. serverbeach ... some lessons...

Quote:
Originally posted by carpintero03
Regarding serverbeach is 'protected' or would prevail because gregar said he would spam with serverbech in content thats is funny. So if I say I am going to steal something police will have reason to arrest me? ... there is a BIG difference beetwen words and actual actions...
In regard to this,

YES, communicating a threat IS illegal in most places. At least it was when I left my law enforcement career 1 1/2 year ago.

Intent is a factor, but you can't go around threatening to do something that is both illegal in act (ie Spamming) AND illegal in threat (depending on jurisdiction).

I promise you if you THREATEN to kill someone, or Hijack a plane, steal a car or even break into a house, you may not be arrested immediately but you WILL be constantly watched even if you didn't mean it.

I'm not a lawyer. I just know what I had to deal with in my previous career in the law enforcement field and saw the actions taken against people who communicate threats on many occasions.

Of course, how such things are delt with varies by jurisdiction. So, this may not apply to everyone.

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  #4  
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I disagree. gregar post was to 'prove' his point. How it could be interpreted in court is something we will not know unless this actually goes to court...

I respect your opinion, but it give the impression providers are 'untouchables' ... and IMO no they have responsibilites that have to be competent...

My point is that gregar have very good chance of a case. Period.

and this is my opinion too. I could be wrong or right.

Later

  #5  
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Trust if you threaten bodily harm or damage to property and the same are reported to the police you will receive a visit from authorities 9 out of 10 times.

However I do not agree with the immediate termination of a server because of the actions of any account on the same.

I believe the site in question should be shut off and the server only affected if/when the server owner/leasee demonstrates an indifference to the site's actions by turning the same back on.

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  #6  
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A guy cuts you off in traffic and you say "I could just kill that guy". I doubt that remark would warrant an FBI agent following you around there.

Gregar's remark would be taken as he intended it, as an illustration. Despite some recent Court rullings common sense still does play a role in decisions and to intrepret that remark as a viable threat is ridiculous. Bottom line is what i posted in the other thread, Gregar suffered finanncial loss as a direct result of inappropriate actions taken by serverbeach. That is enough to warrant a visit to the lawyers office to discuss options...

  #7  
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I completely understand what you are saying. And, like I said, I think ServerBeach went too far. But I have seen a similar situation involving a different type of business where a sarcastic threat made only to prove a point resulted in both the termination of the person's account with the business AND legal actions agains HIM for the threat. He lost.

As for the providers being untouchable, I disagree there. There SHOULD be and ARE laws in place to protect consumers. But, there are reasons for TOS and AUP. It is to protect the suppliers. Otherwise, the consumers could run rampant and suppliers would have no recourse.

It all boils down to who did the worst. I agree that ServerBeach should have taken the lead and understood that he was just angry and trying to prove a point (as I said in another post). They should have stepped up and helped him deal with the situation. That's what customer service is all about. But, when he made the threat, even in sarcasm, it did give them reason to act if they wanted to. Which is what they did.

They should have acted differently though.... and HE should ave kept his composure and delt with it more professionally.

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  #8  
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It is not likely that remark would be heard by the person involved or reported to the police.

Quote:
Originally posted by Watcher_TVI
A guy cuts you off in traffic and you say "I could just kill that guy". I doubt that remark would warrant an FBI agent following you around there.

Gregar's remark would be taken as he intended it, as an illustration. Despite some recent Court rullings common sense still does play a role in decisions and to intrepret that remark as a viable threat is ridiculous. Bottom line is what i posted in the other thread, Gregar suffered finanncial loss as a direct result of inappropriate actions taken by serverbeach. That is enough to warrant a visit to the lawyers office to discuss options...

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  #9  
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Just typing it up in a TOS/AUP/SLa does not necessarily make it the law. Even when you have Lawyers writing those documents up for you!

That my friends is why we still have Court and try cases.

  #10  
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Quote:
Originally posted by Two_A_T
I completely understand what you are saying. And, like I said, I think ServerBeach went too far. But I have seen a similar situation involving a different type of business where a sarcastic threat made only to prove a point resulted in both the termination of the person's account with the business AND legal actions agains HIM for the threat. He lost.

As for the providers being untouchable, I disagree there. There SHOULD be and ARE laws in place to protect consumers. But, there are reasons for TOS and AUP. It is to protect the suppliers. Otherwise, the consumers could run rampant and suppliers would have no recourse.

It all boils down to who did the worst. I agree that ServerBeach should have taken the lead and understood that he was just angry and trying to prove a point (as I said in another post). They should have stepped up and helped him deal with the situation. That's what customer service is all about. But, when he made the threat, even in sarcasm, it did give them reason to act if they wanted to. Which is what they did.

They should have acted differently though.... and HE should ave kept his composure and delt with it more professionally.
Don't get me wrong, TOS and AUP have their purpose. These are good for tho whole webhosting industry. Being tough on Spam is good -- it help keep bw cost at affordable levels. But it should be a BALANCE. So far I find many TOS and AUP to be too restrictive.

Also, another point is that big providers (those with hundred or thousand of servers take a customer just like another one). There is no space for personalization of the service. Where are the 'we care...' provider. Actually, the use a 'we don't care..." philosophy.

Maybe there is a space in this undustry for smaller providers that are more customer - oritented and have the capability to care about your business... But there is a tradeoff how you know they will be here for a long time? It is somehow difficult.

But in gregar case, I still have the opinion that both serverbeach and spamcop may be liable. It is a very particular situation.


Last edited by carpintero03; 07-02-2003 at 12:48 PM.
  #11  
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Thanks fellows. The analogy for this situation I came up with is this.

A guy goes to the airport check-in counter. The ticket agent asks if his suit case has been out of his possession. He replies, you know I went to the restroom and left my suit case right outside the door. The ticket agent presses a button. The SWAT team arrives. Throws the guy to the ground, handcuffs him and hauls him away. The airport is cleared. All flights are cancelled. The suit case is hauled to the tarmac and blown up.


Status update: Serverbeach is refusing to turn my servers back on so I can retrieve my data because of the posts I made here.

  #12  
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Quote:
Originally posted by Gregar
Status update: Serverbeach is refusing to turn my servers back on so I can retrieve my data because of the posts I made here.
That is what I was afraid they would do.

I'm sorry to hear that, Gregar. I was hoping you could get it worked out before it went that far.

Like I said earlier, You may have a case. It's a grey area. In some jurisdictions, you wouldn't but it varies.

I find myself hoping that you do because of the way ServerBeach has handled all of this. They should have gone to your defense when you were upset. What originally started it all was NOT your fault. They should have recognised that and helped you out. That's what I would have done. But, they decided to take the stance that tey are right and that's all there is to it. Such a shame. THEIR actions are going to hurt them in the long run.

Good luck and keep us updated.

PS: I sure hope for their sake that they do not destroy your data. You may want to include something in your law suit (if you can get one going) that prevents/restrains them from any actions that would destroy your data until the outcome is determined by the courts. That way, if they loose, they have to turn over your data or else pay additional damages to you.

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Quote:
Originally posted by Gregar
A guy goes to the airport check-in counter. The ticket agent asks if his suit case has been out of his possession. He replies, you know I went to the restroom and left my suit case right outside the door. The ticket agent presses a button. The SWAT team arrives. Throws the guy to the ground, handcuffs him and hauls him away. The airport is cleared. All flights are cancelled. The suit case is hauled to the tarmac and blown up.
Ahh yes, but try making an inappropriate joke about a bomb when you're next flying somewhere. Chances are you'll be arrested as soon as the plane hits the tarmac. Seriously, it happens.

Okay maybe that was a little off-topic, but the point is that threats, joking, illustrative or not, *can* be taken seriously and are often treated as such. There are so many people that follow through with crazy talk that you simply can't take the chance. I personally think ServerBeach did act WAY too quickly in this case, judging by your side of the story. Very much a case of shoot first, ask questions later! I do think though that they should be (as opposed to WILL BE) protected by their TOS/AUP etc. If not, where is our protection as hosts?

What I can't understand - like a few others - is why you would choose to host such critical sites at such a relatively new and unproven BUDGET server shop? I think that's the biggest crime of all.

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Quote:
Originally posted by HostIt



What I can't understand - like a few others - is why you would choose to host such critical sites at such a relatively new and unproven BUDGET server shop? I think that's the biggest crime of all.
Bad decision to try and help a little guy become a big guy and save money in the process. It turned out their servers were lousy.

  #15  
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Quote:
Originally posted by Gregar
Bad decision to try and help a little guy become a big guy and save money in the process. It turned out their servers were lousy.
You live and learn, huh. Actually, I know the feeling well. I tend to go the other way and order servers and other items of "infrastructure" that are far too expensive to ever make money

There has to be some middle ground there, here's hoping we both find it

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