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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 41221
Experience:  Run my own successful business/contract law practice.
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in 2006-early 2009 we had a service contract with an IT company.

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in 2006-early 2009 we had a service contract with an IT company. Last week our server went down and our automated back up system had not worked since 2006. The company was able to recover the data and wants to charge me for the recovery. They said it was my fault the back up system was not working even though we had them in on numerous service visits where I would ask if everything was OK. I understand I should be responsible for the timeframe from which the service contracted ended, but shouldn't they be responsible for the data during their time of service. Instead, I was told to prepay their bill before they will return our server with the data. I spent 3 days under stress and am paying for a service they were already supposed to be performing. Can I sue them for Breach of Contract for the years we had them service our IT?
Submitted: 7 years ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 7 years ago.
Thank you for your question.

Did the server go down while they serviced your company? (that is, before early 2009)
Customer: replied 7 years ago.
We had issues prior, but no. We purchased a RAID dual hard drive system with a secondary hard drive external automated back up, my issue is that if the back up system was working properly , we would have not had to due as an extensive recovery costing me less. Even though the contract was in place and I was told the system was working properly during our service agreement, it was not. Therefore, the Breach of Contract issue. The IT company has been very difficult to work. Their service technician told me to speak to the owner due to the back up drive not working properly since 2006.
Expert:  Dimitry K., Esq. replied 7 years ago.
Oh, I see. Do you by any chance have the comments of their service technician in writing (the admission that the backup did not work properly for so long, that is).
Customer: replied 7 years ago.
No I do not, but the owner of the company spoke with me and confirmed that the backup systems last recorded date was back in 2006. The recording hard drive had a White indicator light that we were told would go off if there was an issue. The light has been White for almost 4 years. Each time the techs would come in for service or upgrades, I would ask if the system was working properly in addition to if we need additional hardware space etc., always told everything was fine. My expertise is not in computer IT, that is why I contracted this company to handle our system. The technician will be back out Tuesday at my location, I can prepare a statement paper for him to sign, not sure if he will.
Expert:  Dimitry K., Esq. replied 7 years ago.
Thank you for your patience.

The reason I was asking follow-up questions is because in your situation you will have to claim and prove that the back-up never worked, as otherwise there is no legitimate breach of contract. Then yes, you do have a claim based on the fact that the job was improperly done from the beginning, and you also have an additional claim based on fraud, which would then permit you to seek damages that you incured due to their fraudulent assurances that the backup was working properly.

Fact is, that back-up is your business, pure and simple. Without it you are not able to exist--if they did not set it up properly and you only just found out today, then you can definitely demand that they cover your losses or your expenses due to their improper installation from the start. (And yes, getting such an admission in writing would be priceless).

Good luck.

Edited by Dimitry Alexander Kaplun on 4/5/2010 at 2:20 AM EST
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