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Can I sue a hosting provider for lost revenues during downtime?

Brooklyn, NY |

Yesterday, I began some service on my website. I was trying to transfer away the domain, and update some of the server settings. The result was that my website went down (not a fault of my own, but a fault of their poor system design). They told me that they recognize that the problem is in their system, but the website will be down for at least 5 days, and there is nothing that I can do about it.

Additionally, I spent 7 hours on the phone with customer service, and also lost access to all of the email addresses associated with my domain for that 5 day period.

There is a possibility the site can be down for 30+ days.

Based on value/visitor estimates of my losses will be $220-$3000/day of downtime. Is there any way I can pursue compensation?

Attorney Answers 3

Posted

You will need to check your agreement with the host. I suspect that they specifically disclaim such claims.

The answer to this question is for informational purposes only and does not form an attorney-client relationship.

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3 comments

Asker

Posted

This is all it says in their T&Cs about their liability THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL 1&1, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE 1&1 SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, 1&1'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, 1&1 DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE 1&1 SERVICES, AND 1&1 WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE 1&1 FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF 1&1 FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO 1&1 IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $150,000.

Asker

Posted

Seems to me like it is possible then?

John P Corrigan

John P Corrigan

Posted

not at all - you gave them a complete pass with the above waiver you agreed to. Check with your insurance broker to see if your CGL policy has a business interruption endorsement providing for such kind of damage.

Posted

I suggest you read your contract to see what it says about this situation. I suspect that it is written to protect the hosting company.

The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.

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Posted

Those are consequential damages. per the TOS, you can't get them.

I am an Attorney-at-Law, licensed to practice law only in the state of California. Unless we have both signed a formal retainer agreement, you are not my client, and my discussion of issues does not constitute legal advice. Opinions expressed herein are those of the author, and do not necessarily represent the opinions of those who hold other opinions.

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