Forum Moderators: LifeinAsia
Nevertheless, the customer is threatening to seek legal recourse and drag us to small claims court. His take is that our Terms of Services are small (fine) print and completely out of sight and illegible for a common visitor to notice and/or understand. To him, our terms of services are vague and his
Please help with how to grapple with this (almost terrorist) threat.
Regards
Prominentum
Please help with how to grapple with this (almost terrorist) threat.
I think the term terrorist is being used a bit too lightly these days.
I am not a lawyer and you should always seek legal advice from a professional. However (from a customers point of view) I would say that if you "guarantee" 99.99% uptime then you should provide 99.99% uptime regardless of your small print and I would provide him with a refund for that months hosting cost. I would not refund him for a years worth of hosting that is reaching a bit too far even for Mr. Nice guy me.
RJ
The more enhanced concern here is: how to actually make online terms of service (and customer's agreement thereon .. albeit with a checkbox and submit button action) legally tenable? That's the question.
Heck with that crap when we begin to fight them then this kind of nonsense will stop.
Your terms of service are posted so it is a done deal not your fault he can't look around and find it.
There is an old saying ignorance is not an excuse, commit a crime and try to tell the judge the print was to small to read.
If he marked that he did read and understand the ToS, then it seems like he doesn't have much of a leg to stand on.
I agree that anything more than 1 months' refund is too excessive. Most companies would most likely refund a prorated amount (i.e., 4/30 or 4/31 of the monthly payment, depending on the number of days in that month).
Also, what is the reason the site was down? Was it actually something that was your responsibility (e.g., power, network connectivity, etc.) or something under the customer's control (he uploaded a code change that crashed the server)? If it's something the customer did, I wouldn't issue any refund at all.
Although our terms of service clearly state 99.99% network uptime guarantee, we clearly mean that server's going down is beyond our control and that doesn't qualify him for a refund.
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His take is that our Terms of Services are small (fine) print and completely out of sight and illegible for a common visitor to notice and/or understand. To him, our terms of services are vague and his
Wait. Wait. Wait. Hold the presses! Are you trying to tell me that your customer says the ToS were too small for him to see, but that, per your ToS, he deserves a full refund?!?!
If I am reading this correctly, I'd tell the guy he is two brain cells short of a pair as he clearly! saw the ToS in order to quote them back to you! Even if he saw them after the problem occurred, the ToS couldn't have been too small, too fine, too vague, or too well hidden as he damn well found them when he looked! I'd say prorate his refund...or, if you really want to try and win him over, provide him with some sort of a "credit" i.e. 2 free months hosting, some sort of quid pro quo work, etc.
However, if I am completely off basis, please disregard my opinion.
Although our terms of service clearly state 99.99% network uptime guarantee, we clearly mean that server's going down is beyond our control and that doesn't qualify him for a refund.
Does your TOS clearly state (not "mean") that a 'server going down is beyond your control' means they don't get a refund?
I agree with what LifeinAsia is saying if it was the clients fault then no refund should be given. However in my eyes a power problem / server going down / software issue etc then it is your responsibility to ensure you have the necessary back ups in place to fulfill your guarantee of 99.99% no less would be IMO false advertising or something along those lines.
Now with all that being said this customer sounds like a right pie and you should not give him all that he wants. However a compromise sounds like a good option maybe one month refund or credit his account with an extra month of hosting costs.
PS. I also hate talk of lawyers & sueing it seems that most customers turn into keyboard gangsters & quick to talk about lawyers these days. Sad times.
Too bad that nowadays one cannot make a move w/out placing a call to an attorney
But is attorney proofed!
Although our terms of service clearly state 99.99% network uptime guarantee, we clearly mean that server's going down is beyond our control and that doesn't qualify him for a refund.
I'm confused by this, do you or do you not guarantee 99.99% up toime, if you do what is the guarantee (i.e. is it "guaranteed or your money back".
Where do you state that a server going down is beyond your control and doesn't entitle someone to a refund, is this in the TOS agreed to before payment, and if so how (in your TOS) do you reconcile that with your guarantee?
As a consumer (albeit a fairly educated one) if the site clearly stated 99.99% uptime guaranteed, and my site wern't down for 4 days, I would definitely expect a refund. I would accept a limited liability clause in the TOS if I had been obliged to agree to such before purchasing, but not a statement along the lines of "well we only guaranteed that we wouldn't do anything to make the site go down, not that your hosting would be actually avaialble 99.99% of the time" because whichever way you look at it that statement means you have deliberately mislead the customer.
As others have said before me, it very much depends on exactly what your website and TOS say, and whether the customer agreed to those TOS, but either if you have not provided the customer with what you guaranteed to provide them with, you are in the wrong, and no matter how much of an idiot they are being you may have to just swallow the responsibility for not being honest and upfront about the service in the first place (and remove the "guarantee statement)
The month it didn't hit 99.99%? An extra month as well as a "Sorry"? Surely not a year, or the entire time the customer has hosted with you (3 years)?
You have to refund something, there's no escaping that. But the customers request "for full refund of all his past payments" is absurd imho.
This customer does deserve in my eyes a refund of a month or credit a month.
Let us know what has been happening?
