I have had a bad run of problems with my choice of hosting companies. Typically this has ment frequent down times or bad support. However this year 2 of my hosting companies actually lost $1000's worth of data (i have membership subscription sites). Their TOS state they are not liable for loss of data, however their marketing states that they do offer adequete auto backup tools that should have prevented this large loss (over 1 months worth of data). My basic legal understanding is that regardless of what a contract (their tos) says, if they explicatly state in marketing materials that they include a service and then don't that are still legally liable. Any thoughts on this?
Well they should have Company Policies somewhere. http://bundledtech.com/ - My Company Company Policies * Acceptable Usage * Service Agreement * Privacy Policy They should have the following on request.
what im reffering to is the existance (or lack therof) of any laibility inspite of their tos or company policies. Its a statutory law issue.
Contracts frequently contain terms that are not actually enforcable either because they have been created without input from a solicitor or intentionally to make the lay person not pursue a case because they believe the term makes their case unwinable as many people dont think it is worth getting professional advice A solicitor would really have to review both the marketing materials, the contract and any other terms of service to decide if the term is enforcable or not. It is possible for a backup service to run but both the live and backups be lost due to a catastrophic failure/ loss which is where the other T&Cs kick in.... when you queried the backups what did they say? that they dont run them or that they too were lost in the problem?
Take note of this portion from yourihost's service agreement: http://bundledtech.com/sa.html If the host's TOS is written similarly, and if they've taken all reasonable steps to try to secure and backup your data but no dice, you're in for a tough time. While some hosting providers advertise they provide backup services, mostly they'll also state their disclaimers and limits on them. IMHO, only a licensed legal professional with real-world experience to assess any and all facts of your situation can truly tell you whether you can hold the host liable or not.
Any hosting company who knows what they're doing will make sure their TOS clearly states you are responsible for backups and they're also not liable for any losses of money when using their services.
After the loss I contact then in both cases, the result was they refused to answer why the data loss had occured. They also reffered me to their tos, I reffered them to their marketing claims to which they didnt even respond. Im pretty sure that most western societies use a lagl system that prevent businesses from making marketing claims and then avoiding the fulfilment of these claims with a contract. Certainly in the Uk this is mis representation and is considered fraud. I did reffer it to a lawyer at the time who advsied it would be a min of $3000 to persue the claim and didnt offer any idication of the probablity of success. I guess what Im really looking for is to find if anyone has been successful with such claims in the past. Thanks for your feedback.
It comes down to this you've learned do not depend on a hosting company for doing backups no matter how big they are. They could be doing backups and they end up with corrupted backups for whatever reason. Or some freak accident resulting in the backups not working at all. It's always best to make your own copies as well just in case something really bad happens. As for legal means I doubt you'll be able to get anywhere with it due to the fact their terms will most likely say we are not responsible for your backups we make no guarantee of them. Then if that's not safe enough then the fact it'll say they are not responsible for loss of data or money.
Even if they are liable, you would have to prove damages. What did the loss of data actually cost and can you prove it. In addition, you would likely have to show that you attempted to mitigate such damages by performing your own backups. Despite your best efforts, the data was lost. If you specifically paid for their backup services and they failed to provide those services, that would be a different story.