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Delta-Lawyer
Delta-Lawyer, Attorney
Category: Legal
Satisfied Customers: 3546
Experience:  10 years practicing IP law and general litigation
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I signed a contract with a video hosting company

Customer Question

I signed a contract with a video hosting company for our subscription video business. I had multiple complaints from users and in the end was told there was nothing they could do to help. After I asked for a termination of my contract due to them impairing my business, they came up with a solution. However, it was after I changed to a new hosting company. Is there any way to get out of the first contract due to their non performance?
Submitted: 11 months ago.
Category: Legal
Expert:  Delta-Lawyer replied 11 months ago.

I hope this message finds you well, present circumstances excluded. I am a licensed attorney with over a decade of experience handling matters like this one. It is a pleasure to assist you today.

The answer to your question depends on the wording of the contract that you entered into with this hosting company. That said, in all likelihood you can get out of the first contract based on breach of contract for non-performance.

So, you need to look at the notice provisions for termination in the original contract that you signed with them. It is best to follow the requirements if possible. That said, the company breached the contract, and as such, you can and should be able to get out with proper written notice to them.

You simply need to send them a certified letter with a return receipt in which you cancel the contract based on their material breach. If possible, follow any notice provisions in the contract and cite those provisions as to the length of time notice should be given in the event of a breach. If there are none, then you can simply cancel, effective immediately based on the issue at hand which constituted a material breach.

Ask that they respond to your letter in writing with an acknowledgement either via email or letter within 5 business days of the post mark.

In short, if you can use language in the contract in your letter, it is best. However, if you cannot, at the end of the day, they effectively nullified the contract with their breach anyway.

Let me know if you have any other questions.

Please also rate my answer positively (three or more stars).

Best wishes!

Customer: replied 11 months ago.
There are no provisions for me terminating- only them. The only clause that I can find is "enterprise edition and ads edition terms of service shall not be terminable for convenience by either party". Otherwise it is only how they can terminate. One of those is for non payment. I have suspended my payment to them.
Expert:  Delta-Lawyer replied 11 months ago.

Good deal. I appreciate you taking a look at the provisions. Either way, they have materially breached the contract. They extended an offer for a service and you accepted and paid for the service, under the logical assumption that they would fulfill their obligation. They did not, and thus are in breach of contract. You can give them written notice (certified with return receipt) and be done with it.

Let me know if you have any other questions or comments and please also rate my answer positively (three or more stars).

Happy Holidays!

Expert:  Delta-Lawyer replied 11 months ago.

Just checking in with you to see if you have any additional questions. I want to make sure you are as comfortable as possible moving forward!

Customer: replied 11 months ago.
when I write the letter, I just say that they failed to fulfill the service that I paid for and list the fact that we had complaints, loss of business and no help from them until we notified them of cancellation, therefore breaching our contract. Is less more in this case or should I bullet point their failures?
Expert:  Delta-Lawyer replied 11 months ago.

That is precisely correct and, as is the case with contracts too, less is more. Paint with broad strokes, just as you did in your response. They know they are in breach and you will properly point that out to them in this letter. They have breached and you are giving proper notice.

Let me know if you have any other questions. Please don't forget to rate my answer positively on the interface on your side as well.

Best wishes and Happy New Year!

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