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  1. #1

    Fine $100 per each spam sent by reseller or even his client!!!???

    There is something really worrying in JodoHost (and also DiyHosting) END USER LICENSE AGREEMENT. What do you - resellers think about?

    This is citation from JodoHost TOS (Terms Of Service)
    --------------------------------------
    If Customer resells the Services he or she is paying for, the Customer will be responsible for his or her Clients. JodoHost only recognizes the Customer who is paying for the Services and not his or her clients.

    The following activities are considered as email abuse and are prohibited:
    1. Unsolicited bulk emailing. This includes, but not limited to commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts. Such emails may only be sent in if the receiver explicitly requested such information directly from you.
    (...)

    Emailing abuse carries a fine of up to $100 USD per email message sent, depending on the severity of the violation. Email abuse is also grounds for immediate suspension of your Service Account and an appropriate legal action.
    -----------------------------------------

    ...so if i resell JodoHost services and one of my client will send 100 commercial advertising e-mails, I may be charged 100*$100 = $10.000 USD for it???? I really dont like to take responsibility for my clients, especially if I have no possibility to control their actions.

    I have written post on JodoHost pre-sales forum and received an answer:

    -----------------------------------------
    We have never applied that fine..

    What we practise may be far different from one is written in the TOS... The TOS simply allows us to apply a particular clause in the rare case we have to

    For example, if we get a professional spammer that has directly signed up with us and causes damage to our network and servers (overload, network blacklisting), we can seek damages under this clause

    In a normal situation, if your customer spams, we'll inform you and ask you to take action, or suspend that sub account and then inform you, depending on the severity of the abuse. We only very rarely will suspend your entire reseller account if we receive no cooperation from you or you are actually aiding the spammers.
    -------------------------------------------

    But this is only assurance. What if my client will send 1000 of emails and JodoHost (or DiyHosting) will suddenly change their mind? ...well the TOS authorize them to claim for $100.000 USD!!! In my opinion it's not acceptable. Hosting in reseller scale is not so big bussines to risk such a consequence.

    Please let me know what you think?

  2. #2
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    If you are worried about that, add that clause in your own TOS, then you can go after the client yourself for those damages, and pay Jodohost when the client pays you whether mutually or through court.

    It's quite normal for hosts to charge spammers.

    You, as a reseller, have to take responsibility for monitoring your own customers.

  3. #3
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    Originally posted by ScreamingEaglePC
    You, as a reseller, have to take responsibility for monitoring your own customers.
    It is kind of hard to monitor your customers with only a reseller acct though.
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  4. #4
    Originally posted by ScreamingEaglePC
    If you are worried about that, add that clause in your own TOS, then you can go after the client yourself for those damages, and pay Jodohost when the client pays you whether mutually or through court.
    yes, but if my client is insolvent (it may be 15 years old spammer) I will be charged for example $100.000 USD and I will get nothing from my client.

    Originally posted by ScreamingEaglePC
    It's quite normal for hosts to charge spammers.

    You, as a reseller, have to take responsibility for monitoring your own customers..

    The problem is that potential consequence of email abuse of my clients ($100 x count of spam) is disproportionate to scale of reseller bussines. The responsibility in that case should be limited.
    And the second problem is that i have no control over masages sent by my clients (I had to read them all).

  5. #5
    It says up to depending on severity. I think for the most part a company would be mindful of circumstances, etc... Just cover yourself with the same in the TOS like ScreamingEaglePC suggested.

  6. #6
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    Originally posted by opos
    [B]yes, but if my client is insolvent (it may be 15 years old spammer) I will be charged for example $100.000 USD and I will get nothing from my client.
    If he's a 15 year old spammer, he shouldn't be purchasing hosting on his own, lawfully, anyway..

    In which case his parents are responsible for his activity.

  7. #7
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    Yes, our policy is correct, and will always be in place.

    The reason the reseller kit has the AUP generator is because it makes it literally a 2-3 second job for you to have an entire AUP/TOS in your own companies name, that mirrors ours.

    This means your customers are abiding to the same policies and guidelines as yourself.

    If your customer sent a bunch of spam he would first be removed from the servers, and we would ask that you execute your spam policy accordingly.

    That policy has thankfully only had to be executed four times in the past two years. Two of those were resellers fining their customers.

    Please take note also that is states between $1 and $100 depending on severity.

    Simon
    EIRCA Ltd, home of The Genius Network.

  8. #8
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    We have never had to execute a fine of upto $100 per email, although we do reserve the right to.

    In all practical situations, unless the reseller was directly involved in a major spamming operation on our server, we wouldn't apply it. In the cases where the reseller has spammed or was directly involved in the spamming, we will and have applied that clause but have not fined anywhere near the amount we could fine.

    If your client has spammed, we will expect you to cooperate with us and act on this and act on our advice. Only if we find evidence that you were directly involved in the operations would we apply our clause...

    This is what we practise and the way you can expect us to handle such a situation, although we do continue to reserve the right to apply that clause in extreme cases we feel it is necessary.

    We have plenty of safe guards on our servers to prevent major spamming incidents so you need not worry. You must however educate your customers about spam and continue to be proactive with whowever you signup.

    And as DIY rightly said, you have the right to enforce equal fines against your own customers.
    Last edited by Yash-JH; 06-07-2005 at 11:26 AM.
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  9. #9
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    Also opos, as a company, our credibility also matters. We'd never fine anything as major as $10,000 or more unless there is an extreme situation that warranted it.
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  10. #10
    Originally posted by Yash-JH
    Also opos, as a company, our credibility also matters. We'd never fine anything as major as $10,000 or more unless there is an extreme situation that warranted it.
    Could you please describe the cases, where you had to fine someone as major as $1,000 or more?

  11. #11
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    We normally fine no more than $100 or $200..

    All these were in cases where the reseller's account was suspended for him spamming (they claim that they thought their email was not spam) and their account was reinstated after they agreed to pay the fine and sign some documents...

    We have had only one case of severe spamming by a professional (direct customer of our's) that took us days to track down.. I won't go into the details of that but for us, that was an extreme case that warranted us taking strong action..
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  12. #12
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    Originally posted by opos
    Could you please describe the cases, where you had to fine someone as major as $1,000 or more?
    Now, don't get me wrong..

    But to me, a person who asks too many questions, may be involved in the incident..

    If you stay proactive against spam and your clients are aware of it, you'll never have to know..

    Though you are making yourself look to be the spammer, the more questions such as the one quoted.

  13. #13
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    I don't think this is the only host who does that. There must be many others that have the same rules.

    Here are 3 examples at random. I am not related to these sites in any way.

    http://www.youbuildawebsite.com/tos.htm

    http://www.efaizent.com/ptos.php

    http://www.gbehost.com/tos.htm

    In fact, it seems that most hosts have similar TOS. Some even same almost word for word with just the host name being changed.

  14. #14
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    I don't think this is a very big issue, be reactive when you get spam complaints from ANY upstream(let's face it, almost everyone is a reseller to some degree), deal with them swiftly, and move on. As I said on our own forums where this was brought up, many hosts have this clause, and many never use it, but it is there for protection.

    Spam can cost hosts a lot of money in refunds, etc, and the right is reserved to charge for the loss if it is that severe.

  15. #15
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    We have the same in our TOS and the reason is simple.

    We have had spammers sign up spam like crazy then when we shut them down they have the nerve to try and do a charge back.

    With that in the TOS we can then go after them and sue them, not too many lawyers will take a case for a $20.00 account. However if I add a $200.00 fine for each mail sent and they sent 500 emails that I can prove, I can get a lawyer to go after them and not only in small claims court any longer.

    Seems once this is explained to a spammer they quickly drop the idea of doing a charge backand move along quietly.

  16. #16
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    Re: Fine $100 per each spam sent by reseller or even his client!!!???

    This is difficult to understand. How do you fine someone for doing something that's legal? -- i.e. sending mail, which
    ...includes, but [is] not limited to commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts. ...
    What if you don't want the color red in your customers ' websites, and I sign up and create a totally red site. Could you fine me for that?

    -- >

  17. #17
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    Re: Re: Fine $100 per each spam sent by reseller or even his client!!!???

    Originally posted by < ! --
    This is difficult to understand. How do you fine someone for doing something that's legal? -- i.e. sending mail, whichWhat if you don't want the color red in your customers ' websites, and I sign up and create a totally red site. Could you fine me for that?

    -- >
    -- > You're looking at it too literally mate,

    All of the above are forms of SPAM!

    -------------------------------
    ...includes, but [is] not limited to:
    commercial advertising: Unsolicited Spam advertising your company,

    informational announcements: Unsolicited Spam announcing sales you have for your company,

    charity requests: Unsolicited Spam requesting donations,

    petitions for signatures: Unsolicited Spam requesting signatures on a petition that the particular person isn't apart of,

    and

    political or religious tracts: Unsolicited Spam trying to get a person to vote a certain way, or change their religion.

    ------------------------------

    If they are NOT on a list that THEY signed up to be on, then it's Unsolicited Spam and illegal, and the spammer will be prosecuted.
    Last edited by swflnetworks; 06-10-2005 at 11:33 AM.

  18. #18
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    Yes, Eagle, you are right; I was looking at it literally, because I don't understand. I am merely trying to differentiate between a host's TOS and the law.

    From what I've read, sending unsolicited mail, as defined in the above quote, is not illegal. This makes me wonder how such a fine could be imposed.

    -- >

  19. #19
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    Originally posted by < ! --
    Yes, Eagle, you are right; I was looking at it literally, because I don't understand. I am merely trying to differentiate between a host's TOS and the law.

    From what I've read, sending unsolicited mail, as defined in the above quote, is not illegal. This makes me wonder how such a fine could be imposed.

    -- >
    To be correct, it is illegal. The only way you can legally do the above is to offer an unsubscribe link at the bottom of every email that mail list sends out, and it MUST be a working unsubscribe.

    If not, all the above can be prosecutable, and the host will be the people the government will go after in eliminating it if the host doesn't take care of it first.


  20. #20
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    Originally posted by ScreamingEaglePC
    To be correct, it is illegal. The only way you can legally do the above is to offer an unsubscribe link at the bottom of every email that mail list sends out, and it MUST be a working unsubscribe.
    Even if you have an unsubscribe option, if you sent an e-mail to somebody who didn't ask for it solictating your services ETC, it is spam!
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  21. #21
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    Originally posted by < ! --
    Yes, Eagle, you are right; I was looking at it literally, because I don't understand. I am merely trying to differentiate between a host's TOS and the law.

    From what I've read, sending unsolicited mail, as defined in the above quote, is not illegal. This makes me wonder how such a fine could be imposed.

    -- >
    A fine indicates a violation of the rules/TOS at hand. If the user agrees that they abide by the rules, and thus agree that they or their users may be subject to stated penalties should they violate them, then it is a legally binding contract.

    It would then be up to the courts to decide if they feel the compensation requested for such an act is fair. In our case; our legal contracts are backed by three governmental bodies, in three countries, and thus deemed fair and just.


    A fine is not only a way to compensate for the clients actions, but it can also act as a great deterent.


    For the compensation aspect; Imagine if this spam cripples an email server for an hour or so; the host in question could have hundreds of clients all demanding SLA refunds/credits. Even a spam ATTEMPT can cripple an email server for a short period of time.


    It could/would also be used to hire someone/contract someone specialising in removal of domains/IP's from RBL's, pay solicitors fee's, and pay any respective bandwidth fees, etc.


    Simon
    EIRCA Ltd, home of The Genius Network.

  22. #22
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    Originally posted by ScreamingEaglePC
    To be correct, it is illegal. The only way you can legally do the above is to offer an unsubscribe link at the bottom of every email that mail list sends out, and it MUST be a working unsubscribe.

    If not, all the above can be prosecutable, and the host will be the people the government will go after in eliminating it if the host doesn't take care of it first.

    Yes, but the TOS quote above does not mention the requirement of having an 'unsubscribe feature,' does it? It says the host forbids sending (types of) mail, which is actually legal whether the recipient requested said mail or not.

    If the customer exceeds his bw, then he should pay for it, but I can't believe anyone would pay fines to a host for disobeying the TOS. Why not just terminate his account? I mean, if the host says 'no adult sites' and you put one up, do you then pay some fines or go to court over it? Of course not. Your account is terminated and you find a new host.

    -- >

  23. #23
    A TOS is a legal and binding document. If the Client agrees, which he has to in order to gain the service, then he is bound by that agreement. That being said it would appear to me that the TOS in question because it does not dictate what it views as spam will be relying on the legal description of spam for any infraction to be collected upon.

    If the e-mailings in question under that TOS do not match that of the legal description then I would find them hard pressed to collect any money from thier client.


    Thats just how I see it.

  24. #24
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    Let's see. There's another way of looking at the fine that makes it a protection for you, opus. Essentially, it's protecting you as a co-inhabitant from other irresponsible acts by other inhabitants on the server. So, if you're willing to be responsible for your accounts, you should be comfortable knowing that others are as well making the server a much better hosting environment.

    Spammers on servers cost JodoHost and DIYhosting a lot - if not financially, then credentially. Imposing policies like this are fair and encourage responsible hosting. It's why they're considered high quality hosting companies with few problems. :-)

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  25. #25
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    Re: Re: Fine $100 per each spam sent by reseller or even his client!!!???

    Originally posted by < ! --
    This is difficult to understand. How do you fine someone for doing something that's legal?
    This is a variation on the "We reserve the right to refuse service to anyone" theme, which you'll find in pretty much everyone's TOS. The hosts are saying, "We don't want to provide service to spammers, if you agree to this and send out spam you agree that we can enforce punitive fines against you." Nothing wrong with that.

    There is no "right to spam" which any host has to honor, therefore refusing to host spammers does not constitute illegal discrimination, even if you believe spamming is 'legal'. No fraud has been perpetrated by enforcing a spamming fine, nor have anyones' rights been violated.

    Originally posted by kaidok.net
    If the e-mailings in question under that TOS do not match that of the legal description then I would find them hard pressed to collect any money from thier client.
    Whatever the legal description of spam is (AFAIK, none actually exists, believe it or not) is irrelevant to the definition laid out in the contract. Assuming it depends on the legal definition of spam assumes an inherent "right to spam" which doesn't exist.

    It's possible the courts could determine the definition in the contract too vague to be enforceable, but I doubt Simon would have enacted that policy without proper legal advice, or its enforcement probably would have been challenged by now.
    Last edited by BigBison; 06-12-2005 at 03:48 AM.
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