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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 89126
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have a problem with Dex One, who was hosting my business

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I have a problem with Dex One, who was hosting my business website. On January 9, my website disappeared from the server, which I figured out the next day. When I was finally able to get ahold of anyone who could figure out what was going on (2 days later) they told me that either "by accident or on purpose" my website was "cancelled" even though I have a signed contract stating I wanted to renew it. The botXXXXX XXXXXne ended up being that my rep make a mistake, but I was without a website. And for some reason still unclear to me, they had no backup copies, and told me that they were unable to retrieve it or put it back online because the company who provided the template for my website was no longer doing business with them. It took over a week to get to this point. I kept getting the run around, with a lot of excuses. But I was without a website, and could not be given an answer as to why they couldn't get it back online; I was only told that they couldn't do it, and that my website would have to be rebuilt, which could take up to 45 days. (This meant, by the way, that I would have to rebuild my entire website, as I had built it myself over the course of the last 6 years - and it was all gone).

Of course by this time, I was not only extremely frustrated, but I was losing business as well as my hard earned ranking in the search engines. With them not able to provide any answers or solutions about my website, I no longer had faith in them to host my website, and I began working with someone to have my domain transferred to another host.

Five days later, they somehow were able to find my website and get it back online "for a very limited time" - long enough for them to gather the information from the website. They wanted me to contact the web design department to start rebuilding my website. This would supposedly be a much better website - because the one I had was apparently outdated in terms of "all the bells and whistles" they could now offer me (yet I was paying full price for it). They offered to rebuild this for me for "free."

I sent an email to the person I had been talking with (the superior of my rep who cancelled my website in the first place) and told him that due to their mistake and my resulting lack of confidence in their ability to take care of my needs, I was taking my business elsewhere. I also contacted the web design department and told them not to do any work on my website. That I was moving it to a different host.

This has been going on for 7 weeks now. Supposedly the person I have been working with says he has been trying to talk to whoever it is he talks to - to try to come up with a settlement for me. So here's what they came up with - 25% off my bill for 3 months. AND I'm still responsible for paying for my website hosting with DEX. They won't let me out of the contract.

It is my contention that THEY breeched the contract first, so I am well within my rights to take my business elsewhere and not have to pay them. I also believe I am due some sort of compensation beyond just not having to pay for what I didn't get. They disagree. And no one who has any authority will tell me anything. I've been handed off to the claims department.

I would like to pursue this in small claims court. Do I stand a chance. Or am I stuck?
Submitted: 2 years ago.
Category: Legal
Expert:  Ely replied 2 years ago.
Hello and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow ups and my replies because I am typing out my answer, or taking a quick break.

I am sorry for your situation. Do you get a more or less stable income from the website that can be broken down by day, or is it unpredictable? How long is the contract with them for, how much do you pay, and is it per month, or a one time fee? Prepaid or installment?
Customer: replied 2 years ago.
Good questions. The reason I suspected there was a problem with my website in the first place was because I was receiving NO phone calls, whereas I typically receive 3-6 inquires a day off my website. I unfortunately don't track my calls enough to know exactly how many convert to clients and how many don't. But I can say that I went 2 full weeks with only 5 phone calls from potential new clients. (The following week when they got my website back online I received 14 calls from potential new clients). My new clients in January of 2011 were 11, compared to January of this year there were 5 (with the website down for 2 weeks). I'm a therapist. My rate is $130 per hour, so volumne in potential new client calls is important due to conversion rate.

The contract is for a year, and just renewed either at the end of December or the beginning of January. My rep put in to cancel my website, even though I have a signed contract. I apparently was cancelled (and disappeared from online) on the last day of the billing cycle that had already been paid for upfront. The rate for their website hosting is $230 per month, which includes some new thing they sold me this year for their online yellow pages marketing system (which was of course tied to my website). I believe the website hosting, by itself, is $150 per month. I am billed monthly. I also have a yellow pages ad in the book itself, which is $650 per month.
Expert:  Ely replied 2 years ago.
Thank you. I am going to break your question down into two parts.

Can You Cancel
The answer is yes - you can try. A breach of contract can mean either a minor breach or a material breach. A minor breach is when the work is done, but done shabbily and not up to standard. However, it is not enough to void the contract. Material breach is when the work is not done at all, or done so bad that it effects the "core" of the contract. In other words, if they were intermittent a few times in their hosting, that is a minor contract. If they constantly have the site lost, it is a material contract. And a material breach of contract releases the other party from their duty (i.e. in your case, paying). Here, arguably that is around $6,500 if you have ten more months to go, and you can file in Small Claims Court (ceiling is $10,000) ask the Court to void the contract.

What you first would do is to send a certified letter demanding that they release you. However, since you have already done that (more or less speaking), and they have not, you'd need to file in Court to do so.

Can You Seek Damages
If you can prove that you have the right to break contract due to their material breach, then you have the right to request the difference between what you'd be paying them and what you would be paying someone else (i.e. the damage you are taking due to their failure to keep up the contract), plus your reasonable legal costs. An attorney is recommended.

The only downside is that if/when you file, it may take a while for the matter to be heard and meanwhile, if you stop payment, it may go to collections.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

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Customer: replied 2 years ago.
Given that Dex is such a huge corporation, who would you recommend I send a certified letter to. Do I send that to their registered agent, or to the person I have been talking with at Dex, or to the claims department - along with a letter outlining my position. Also, based on what I have said, would you consider this a material breach or just a minor one?
Expert:  Ely replied 2 years ago.
All three. Send it to all three, or rather, one and CC the other two. Also send one to the legal department if you know their contact information. Give them 5 days (from their receipt of the letter - send certified) to provide you with a written release from the contract or else you'd sue...

I do not guarantee this will work and you may have to. Actually, you can simply file and not even send a letter, but it is always best and try to resolve it without having to litigate.

If you have an attorney do this for you, the letter may carry for more gravitas.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/
Customer: replied 2 years ago.
I had asked if you consider this a material breach or a minor one. Thank you
Expert:  Ely replied 2 years ago.
Hello,

My apologies, I did not see this. If this were a minor breach, you would not be able to break contract. Only a material breach allows you to break contract.

The difference the two is subjective. Individuals in your situation are likely to claim major breach, but you have to prove it. The Courts traditionally take several elements into account, some of which are (via Second Restatement of Contracts §241):

1. The extent to which the injured party will be deprived of an expected benefit
2. The extent to which the party can be adequately compensated.
3. The extent to which the breaching party will suffer a loss.
4. The likelihood that the breaching party will continue this behavior
5. The good faith of the breaching party.

It is in your best interest to argue that this was a material breach if you want to be let out of the contract.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 89126
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Ely
Ely
Counselor at Law
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Private practice with focus on family, criminal, PI, consumer protection, and business consultation.