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  1. #26
    SitePoint Wizard silver trophy Jeremy W.'s Avatar
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    Just to reiterate... HIRE A LAWYER.

    The opinions here are great, and updating your ToS to reflect your host's, not hosting evil clients, and *not* working on his script without liability protections are all well and good.

    But have a lawyer ready.

    What you're looking for from a lawyer is:

    1. A free case evaluation to ensure you aren't crazy.
    2. Someone to fall back on, at a reasonable rate, that will be happy to counter-sue on contingency should something arise.

    You'll need to pay the primary legals on this, but many lawyers will take counter-suits on contingency, since they can win pretty damned easily once they get the the primary case (the one they were paid for) thrown out.
    SVP Marketing, SoCast SRM
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  2. #27
    Life is short. Be happy today! silver trophybronze trophy Sagewing's Avatar
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    That's ridiculous. Hire a lawyer when you need one, not when you think that you might get wrongly sued but haven't been yet.
    The fewer our wants, the nearer we resemble the gods. — Socrates

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  3. #28
    SitePoint Wizard silver trophy Jeremy W.'s Avatar
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    Quote Originally Posted by Sagewing View Post
    That's ridiculous. Hire a lawyer when you need one, not when you think that you might get wrongly sued but haven't been yet.
    Hi, nice to meet you "sagewing". (note: edited out unintentional sarcasm)

    Basic rule of thumb: if you're threatened with a lawsuit, hire a lawyer. Always. Asking on a forum is great for getting some perspective on what might happen.

    But as soon as you're threatened, have a lawyer ready. Doesn't cost you anything to have one ready, and he can give you simple advice on how to completely avoid a lawsuit.
    SVP Marketing, SoCast SRM
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  4. #29
    SitePoint Wizard lorenw's Avatar
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    sigh, I will contact a lawyer. this is sooo not right.
    and I am a stupid idiot to agreeing with his terms. I totally and stupidly belieive that things should work no matter what. That was over 2 years ago, youtube and myspace were only a blip.

    php 4 is dead and buried, just that and his scripts are doomed, on top of that running php as a cgi and his scripts are doomed.

    add to that his scipts were hacked and need updating, I do need to contact an attorney, question is now, when he files suite?
    Edit:


    should I wait till he files suite? or just beat it and stete the above exceptions?





    I want this behind me before it starts, I have never hired a attorney before and am totally new to this and will never again host a non reccomended account.

    Edit:


    after my searching can any one recommend the type of attornery I need?
    Last edited by lorenw; Nov 18, 2007 at 21:43.
    What I lack in acuracy I make up for in misteaks

  5. #30
    SitePoint Wizard silver trophy Jeremy W.'s Avatar
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    Just to give you some peace of mind, I'm pretty damned confident he won't file suit. He sounds like a bully who doesn't know his rectum from his globals.

    But contacting a lawyer is a must, if for no other reason than to save you time and stress if he does sue.

    Realistically, though, he won't. It'd cost him 5-10K just to get it going, plus legal fees, and any sane lawyer would tell him he's wasting his time (if for no other reason than it sounds like you don't really have any assets... no offence!).

    Anyways, good luck. I probably won't be back on SPF for another year, but if I can help, email me, k?
    SVP Marketing, SoCast SRM
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  6. #31
    Programming Since 1978 silver trophybronze trophy felgall's Avatar
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    Your best option at this point is to find a lawyer in case it turns out you need one but don't take any actual action unless the client actually does sue. Since the language their site is written in will be dead in six weeks time it is extremely unlikely that they will be able to take any action against you since you have absolutely nothing to do with the death of PHP4 and it is that rather than any action or inaction on your part that will stop their script from working. Once they realise that PHP4 is dead it should be extremely clear to them that they don't have a case against you for anything. It would only be if they manage to locate a lawyer who doesn't understand anything about how computers work that they will be able to sue and if they do then you then contact your lawyer explain the situation to them and get them to put your client's lawyer in the picture as to what the situation is. The client lawyer would then need to be totally braindead to want to proceed with a case that they can't possibly win - they'd have more success in suing the US President for allowing PHP4 to die since he probably has more money than you do.
    Stephen J Chapman

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  7. #32
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    Quote Originally Posted by Sagewing View Post
    That's ridiculous. Hire a lawyer when you need one, not when you think that you might get wrongly sued but haven't been yet.
    Agree 100%. Don't waste your time and money hiring lawyers until it is clear you need one. YOU DO NOT NEED ONE AT THIS MOMENT IN TIME. As a budget web host, you're going to get a lot of these situations arise, so get used to it - people will always be huffing and puffing and spitting out their dummies to get what they want, that's life.

    But if you do go to see a lawyer, have him draft you a proper set of terms.

  8. #33
    SitePoint Enthusiast guioconnor's Avatar
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    Quote Originally Posted by lorenw View Post
    sigh, I will contact a lawyer. this is sooo not right.
    and I am a stupid idiot to agreeing with his terms.
    Quote Originally Posted by Jeremy W. View Post
    Just to give you some peace of mind, I'm pretty damned confident he won't file suit.
    I don't think he will sue you, and if he does, I doesn't seem he can do you any major harm, once you have taken measures and notifying him of what you are going to do, within your legal possibilities.

    But you need to put yourself together and regain control of the situation. If you have the legal protection of a contract, the lawsuit would be one of this distastes on life we are all subject to.

    Quote Originally Posted by lorenw View Post
    a) Keep hosting his website, it will not work after the upgrade and is his responsibility to keep his scripts updated and working for his business. I cannot prevent the server upgrade and use that as my defense.

    b) Take the security issue to task and notify him that he has x ammount of time to resolve the issue. it has been a year since he was hacked however if no attempt to determine the cause or implement a fix has happened, the vulnerability is still there and could potentially compromise the server. This puts the burden directly on his shoulder.
    I don't know why would you like to keep a client like this in option (a). If it were me on this situation, I would formally notify him
    • about the upgrade situation within legal time for that
    • (in a gentle way) that is the client's responsibility to keep the site updated, once you don't have a contract for the site development
    • you are not interested in the contract anymore and that he has X days to move.


    I would kindly offer to help him with the move and wish him good luck with his business.

    And again: Get legal advice from a professional. He is the one who could tell you the details of how much of a headache this could be and how to proceed. Yes, it may cost you money, but can avoid you further trouble.

    By the way, once you are in the realm of it. Take legal advice to build your new ToS and get it explained to you, so you know in advance your duties and rights in situations like this.
    Guilherme Zühlke O'Connor
    www.z-oc.com

  9. #34
    SitePoint Wizard lorenw's Avatar
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    And again: Get legal advice from a professional. He is the one who could tell you the details of how much of a headache this could be and how to proceed. Yes, it may cost you money, but can avoid you further trouble.

    By the way, once you are in the realm of it. Take legal advice to build your new ToS and get it explained to you, so you know in advance your duties and rights in situations like this.
    I just got a (free) consultation scheduled for tomorrow, I called several places and pretty much got the response that he does not have grounds and this is beyond anyones control.
    Thanks everyone, I am feeling better about this and will make the changes to avoid this in the future.
    What I lack in acuracy I make up for in misteaks

  10. #35
    King of Paralysis by Analysis bronze trophy
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    Quote Originally Posted by lorenw View Post
    It does state that "in the event of any dispute, (between us) that the customer be allowed the continuing and uninterupted use of his website."
    Here's your dispute... You want him gone and he wants to stay. He wins according to your contract...

    "said intellectual property will not be removed, shut down, made inoperable or interfered with in whole or in part or in any way."
    You upgrade the server or turn off what he needs and you've just made his site "inoperable".

    It also states that if my server just goes away that I will relocate his site to another server for no fee.
    Depending on how you've phrased exactly in your contract you've just agreed that if your server "goes away" then you will provide them with free hosting for life on another server (which you may or may not own). A lot of that would depend on how a judge interprets "relocate".

    It sounds to me like you've signed a horrible contract as far as your rights as the hosting provider go. Originally I said not to worry but I'd start to get worried based on the contract clauses you've quoted here.

  11. #36
    Life is short. Be happy today! silver trophybronze trophy Sagewing's Avatar
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    Then again, the contract wasn't exactly 'signed' and since there was no termination language in it there is nothing stopping anyone from simply terminating the contract which is standard business procedure. With no term stated on the contract, you could make a strong argument that within the context of the business arrangement it's ordinary and reasonable for the agreement to have a termination clause, and that's it's unreasonable to assume that a contract (if there even is a legal contact here, which is debatable) will be in force 'forever'.

    What's the worry?
    The fewer our wants, the nearer we resemble the gods. — Socrates

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  12. #37
    SitePoint Wizard lorenw's Avatar
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    He and I have never had a dispute, I never asked him to leave, I only informed him that a server upgrade was eminent and he will need to upgrade his scripts. Thats where it stands right now, we will have a dispute when his site goes down.

    He is a strange one and in light of this threat I have always thought I would host his site pretty much forever. I have no problem with that.

    I did not ever forsee that running php as a module would ever dissapear. My hosting company offers both, well they did. Virtually all servers I have worked on run as a module. I was aware that there was a cgi version but why do most people run as a module? I mistakenly thought that was the industry standard and would be with as long as we had php.

    I told the attorney that I basically wrote a contract with a guy to provide leaded gasoline for life. well now we cannot provide leadded gasoline anymore and he is threatening to sue me. I then explained the web thing.

    One attorneys office worker said I could write a contract guaranteeing that the sun will not rise tomorrow. Its not enforceable.

    His site will be inoperable but from a php standpoint it just needs to be modded by his programmer, I would do it but he has a pear directory above the www dir as well as other "stuff". When it comes to pear, my eyes kind of glaze over.
    What I lack in acuracy I make up for in misteaks

  13. #38
    SitePoint Evangelist
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    As others has mentioned, simply terminate the contract, give him x days to move his app, then move on.

    If you want to give him an explanation say that you don't work with people threatening you and that you've already seen a lawyer who says he has no case. Show him some muscles.

  14. #39
    SitePoint Wizard lorenw's Avatar
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    I did speak with an attorney and he said that I could teminate his account and not to worry about it.

    He used the analogy that I contracted to move a huge pile of sand for x ammount. I come back a few days later and someone has put up a wall between the road and the sand. The barrior is beyond my control and the contract is either deemed null and void or it's renegociated to come in from the otherside of the property.

    I sent the client a certified letter based on the attorney's feedback.

    While I was writing this his attorney called and he came to the conclusion that I can do nothing to avoid this. He also understands that there will not be another hosting company that would handle his insecure scripts.

    Woo Hoo, we just got divorced, his files are still on the server and he can get someone to download and fix everything and find a new home.

    I hope no one here sues me because I did quote a number of your responses in my letter . Thanks for all of the replies, you gave some great amunition.

    SitePoint forums and you guys rock.

    Cheers to all.
    Lorenw
    ps my terms will be updated.
    What I lack in acuracy I make up for in misteaks

  15. #40
    SitePoint Evangelist dev_cw's Avatar
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    I guarantee you that my hosting provider would drop me like a lead weight if I had a vulnerable applications and refused to upgrade. I have seen it happen all the time. Just send him a 48hr notice and drop him.

    If for whatever reason you want to keep the client then communicate with them that if their site is making 10K (per day, week or month) that they should really invest in a dedicated server which would give them the freedom to do whatever. Anyone bringing in that kind of change from their site and depend on unusual configurations should have a dedicated server.

    However based on the exchange I would just drop them. If you don't want to assume the responsibility just tell them that you are being dropped by the host that you host from and you have no choice (which is the case), either you drop them now or they will drop you and all your other clients for which you have a responsibility to.

    Edit: just read the last post, good to see you took the next step.
    "You can just hang outside in the sun all day tossing a ball around...
    Or you can sit at your computer and do something that matters."
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  16. #41
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    Quote Originally Posted by lorenw View Post
    I did speak with an attorney and he said that I could teminate his account and not to worry about it....I sent the client a certified letter based on the attorney's feedback.
    Isn't this the advice we all gave you in the first place?

  17. #42
    SitePoint Wizard lorenw's Avatar
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    Isn't this the advice we all gave you in the first place?
    yes it is and thank you, everyone for your help and advice, you saved my bacon so to speak.

    Happy Thanksgiving to all even if you don't celebrate it, I am totally thankful today thanks to all of you
    What I lack in acuracy I make up for in misteaks

  18. #43
    SitePoint Enthusiast guioconnor's Avatar
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    Quote Originally Posted by dev_cw View Post
    If for whatever reason you want to keep the client then communicate with them that if their site is making 10K (per day, week or month) that they should really invest in a dedicated server which would give them the freedom to do whatever.
    One must really like to live on the bleeding edge to keep a client that threatens to sue you because of his "right to not upgrade" but, yeah, a dedicated server could do the trick.
    Guilherme Zühlke O'Connor
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  19. #44
    SitePoint Evangelist
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    Hey, doesn't life feel good when a burden lifts off your shoulders? Put on your favorite tune, sit back and enjoy life.
    George Skee
    Follow me at GeorgeSkee.com

  20. #45
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    Quote Originally Posted by lorenw View Post
    These are my terms.
    http://wlmark.com/Web_Hosting-Terms/

    I might be paranoid but feel he would sue anyone for anything. I think he made his money by suing or leveraging people.
    I mean this very nicely, but I do intend to be blunt: Those terms are horrible.

    Sit down and craft proper web hosting terms & conditions, and an AUP, immediately. Ensure that the terms handle your business activities the way you want them handled.

    For instance, if you want the ability to disable an insecure script immediately, specify that insecure scripts will be disabled immediately (and you choose - with or without prior notice?).

    What you cited above ^^^ are NOT web hosting terms and conditions. Your butt is hanging way out there. As they say in court, "if it's not in the report, it didn't happen." If you want to be able to handle a particular situation a specific way, you have to define that right in your TOS/AUP. If it's not in there, you can't do it.

    Oh, and proper English and proper contracts Do Not Capitalize The First Letter In Every Word. Please STOP doing that. It only confuses the reader, and in this case, a confused reader is not a good thing.

    *$0.02*

    Bailey

  21. #46
    SitePoint Wizard lorenw's Avatar
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    @ Bailey

    I will be changing this over the weekend, my clients are all word of mouth or through other web design companies and are covered in a seperate signed contract. My website is in so much need of overhaul, I have not changed it in 4-5 years OMG. When I posted that link my reaction was "when was the last time I even looked at my own site".

    I rank good for my search terms and this client is the only one that I just provide hosting for, all of the rest I design for or they are on another server.
    What I lack in acuracy I make up for in misteaks

  22. #47
    SitePoint Wizard lorenw's Avatar
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    Do Not Capitalize The First Letter In Every Word. Please STOP doing that. It only confuses the reader, and in this case, a confused reader is not a good thing
    I removed the style that did that.

    Thanks to everyone and I now have new terms uploaded.

    @Baily, thanks for your *$0.02* I will use it to buy a virtual
    What I lack in acuracy I make up for in misteaks


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