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  1. #1

    How not to write your TOS or one more reason to have a real lawyer write yours!

    This is really long so I just cut and paste some of the golden nuggets of goodness from the entire transcript. My edits are in bold. These quotes are exact and no editing has been made save the cut and paste and my comments. This is another Cyberwings thread for those of you wishing to move on. Cyberwings just refuses to die and refund money.

    Terms Of Service

    IMPORTANT NOTICE: *All Payments To Cyberwing Communications Are Non-Refundable except as approved by Management*
    This notice has changed a lot in the last few days and originally just stated that all payments are nonrefundable. That was likely the more appropriate statement given all the folks out of money right now

    Cyberwing Communications ("The Company") agrees to furnish services to the Subscriber, subject to the following TOS (Terms of Service).
    Services, which if you read on don't have to be given and are not guaranteed in any form due to the nature of the industry. And you are not entitled to any refund for such a lack of service.

    All provisions of this contract are subject to the TOS (Terms of Service) of Cyberwing, Inc. and AUP (Acceptable Use Policy). The AUP may be changed from time to time at the discretion of the Company. Subscriber understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment.
    Malarkey, you have changed these TOS at least 3 times in the last 4 days.

    Service Rates: Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Subscriber. Subscriber is aware that the Company may prospectively change the specified rates and charges from time to time. The promotional offer is contingent upon Company achieving and maintaining its cost of service goals including but not limited to rates charged to company by its suppliers.
    Bait and Switch (edited per Mike's suggestion)

    Payment: Establishment of this service is dependent upon receipt by the Company of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month's service. All accounts and services provided by Cyberwings are subject to the current tax rate as imposed by the City of Old Orchard Beach, State of Maine which is currently (not being charged). 80% of the monthly service charge is subject to the (not being charged) tax rate, while the remaining 20% of the monthly service charge is not taxed. 100% of the setup fee is subject to the (not being charged) tax rate. The above applies to all accounts and services provided by Cyberwings.
    What kind of City is Old Orchard anyway, look at those tax rates, unbelievable. Who could do business there without an accountant on hand. Way to go Shawn, why not make up a federal Internet excise tax while you are at it (not currently charged)

    Refund and Disputes: All payments to Cyberwing Communications are nonrefundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in Cyberwing's sole discretion is a valid charge under the provisions of the TOS and /or AUP, you agree to pay Cyberwings an "Administrative Fee" of not less than $50 and not more than $150. Cyberwings will fight all chargebacks that we deem to have been valid charges. If you use our service, we will fight chargebacks all the way.
    This part of the terms has changed a lot in the last week. This is the latest revision where you have to pay CW between 50-$150 if you want a chargeback issued and they dispute it. Hillarious. I hope all you other budding host companies are taking notes

    Failure to Pay: The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
    reasonable interest and collection fees? Hey Shawn, how about some freaking reasonable interest on all the money you owe current subscribers, Lightship and Rackshack. I know more than one past customer has even offered a decent collection fee for information that would put you in court.

    Account Cancellation: All requests for canceling accounts must be made in writing with at least 30 days notice but not more than 60 days prior written notice and sent to Cyberwings Attn: Cancellations, PO BOX 1052, Old Orchard beach, Me 04064, or you can call. You must have all account information to cancel.
    I am sure there are hundreds of people still waiting for refunds who would like this mysterious phone number. 30 days notice? Hillarious.

    Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of the company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, subscriber agrees that the company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of the company. Subscriber further acknowledges that the company's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall the company be liable for any special or consequential damages, loss or injury.
    I am not accountable for anything, give me yor money

    Support Boundaries: Cyberwings, provides 24 x 7 e-mail, online technical support to our subscribers. We limit our technical support to our area of expertise.A few days ago there was also a contradictory statement in this text that said Cyberwings service is sold as-is and no technical support is offered. It seems that was the more correct statement and it was the more correct of the two given that there is ZERO tech support right now.

    SPAM and Unsolicited Commercial Email (UCE): ...
    First violations of this policy will result in an "Administrative Fee" of $50 and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $100 and immediate termination of your account. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $75 per hour that Cyberwings personnel must spend to investigate the matter. PLEASE, DO NOT SPAM from your account.
    A former spammer Shawn J White is now a white hat cursader against those following in his footsteps. Thankfully Shawn's original provider was more laxe when he was reported last year.

    As our Customers are ultimately responsible for the actions of their clients over the Cyberwing network, it is advisable that Customers develop a similar, or stricter, policy for their clients.

    Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
    This might be Shawn's way of claiming all of those pyramid schemes and spam money generators he was guilty of conducting in the past were somehow all forged

    Attempting to couple many hosting packages together to take advantage of massive space or bandwidth allocations. Each hosting package purchased is unique to a domain name and use - please do not purchase multiple "plan 1's" for instance to get the combined bandwidth & space. Cyberwings will stop such transactions and label them as deceptive. We have an upgrade path for all services and we can often times work out special deals for users if they ask us for the assistance.
    Shawn actually encouraged people to bundle together plans in the past.

    Cyberwing reserves the right to amend its policies at any time. All Sub-Networks, resellers and managed servers of Cyberwing must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation. You will be held responsible for the actions of your clients in the matter described on these Terms and conditions. Therefore, it is in your best interest to implement a similar or stricter Terms and conditions or otherwise called Acceptable Terms of use policy.
    What exactly could be a stricter policy than you send us money and we have no guarantee for any service in return and you have no right to a refund

    Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber. Company reserves right to cancel customers rights under this contract at anytime without further obligation.
    CW will try to impose this agreement on top of previous users who were previously guaranteed a certain % reliability and refunds

    Cyberwings is not responsible for any damages your business may suffer. Cyberwing does not make implied or written warranties for any of our services. Cyberwing denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Cyberwings.

    Responsibility for Content: You, as Cyberwing's customer, are solely responsible for the content stored on and served by your Cyberwing server.
    no backups... ever

    This revised TOS looks to me like Shawn J White's attempt to get out of paying back the estimated 10 grande he owes to existing customers who have not had service in months.
    Last edited by taoofbean; 08-26-2002 at 02:40 PM.

  2. #2
    Join Date
    Aug 2001
    St. Louis, MO


    I love it. What a moving target.

    Most of what he says is in other hosting service's TOS, they just never draw attention to it.

    And the refund status stands at $13487.61.

  3. #3
    Join Date
    Aug 2002
    Baltimore, Maryland

  4. #4
    Join Date
    Aug 2002
    wow thats a nice scam.

    Nice job picking out the individual sections of the TOS.

  5. #5
    I looked at my current hosts TOS closely and they actually look nothing like this example. I cannot imagine Shawn would just write this on his own, He must have pulled sections from other hosts because some of it sounds very legalese while others are definately his additions. If only I knew where he pulled the sections. Since he is borrowing graphics form lightninghost he might have just borrowed some of their TOS as well.

    eek, I wish this guy would just end up in court/jail already.

  6. #6
    Join Date
    Aug 2002
    file a class action, or some form of lawsuit provide evidence.

  7. #7
    Hmm this looks kind of familiar...

  8. #8

    Re: How not to write your TOS or one more reason to have a real lawyer write yours!

    Originally posted by taoofbean
    I am not accountable for anything, give me yor money
    The sad thing is, that is so very true.
    I am glad I never ended up signing up with them.

    Cyberwings: Hackz0rz WarEz Hosting
    Only a DIME a YEAR!
    You must follow our TOS and AUP. We reserve the right not to tell our clients where these policies can be found.

  9. #9
    Join Date
    Aug 2002
    Jake, that is the funniest thing i've seen all night. hahaha
    Geek 3 Computer Repair

  10. #10
    Join Date
    Aug 2002
    LOL .

  11. #11
    Join Date
    Mar 2001
    Connecticut, US

    Re: How not to write your TOS or one more reason to have a real lawyer write yours!

    Originally posted by taoofbean
    ...Bait and Hook...

    The term is Bait and Switch and what you cite is not an example of that.

    Bait and Switch occurs when a certain product is offerred for a low price. When the customer goes to buy that product, it is no longer available. But a more expensive product is available.

    You bait them with the cheap price, then switch them to the more expensive product.

    The section you cite merely states that the current prices is not forever. Nothing unreasonable there.

    There are other errors in your "analysis", but I'll stop there. Perhaps you should get a lawyer to help you read the ToS's.
    This space for let.
    Inquire within.

  12. #12
    Why do people always feel that lawyers know more than everyone else? Moreover, why do people pay them tens of thousands of dollars for something that can be done yourself? Writing contacts and TOS agreements has to be one of the easist things to do, and I could do it all day long.

    You simply have to think about what you are writing, and think of any loopholes in it, and then close them with a disclaimer or something similar.

  13. #13
    Join Date
    Aug 2001
    St. Louis, MO
    Lawyers not only are good at drafting legal documents they also act as a buffer for you in case there are issues. You can hold a lawyer accountable for errors in their work.

  14. #14
    Mike the Newbie, please don't stop with your incredibly illuminating rebuttal. You are correct about the one section I pointed out but what I intended was that Shawn's use of a Bait and 'Switch' in this situation is that he baited you to pay and then switched for no service at all, kind of a pun on the classic version that you defined so well. I would love to see how you feel the rest of Shawn's TOS stack up, though, since you may be more well informed than I as to what constitutes a solid TOS.

    Why should a lawyer write yours? There are a thousand reasons and only one I can think of against, cost. Foremost, a lawyer licensed in your state should be aware and ensure you address regional statutes and business regulations that need to be addressed in your TOS to protect you and your customers. Lawyers odn't necessarily know more than everyone else but they know more about the law, which your TOS and contracts are subject to.

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