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AitchB

I need an answer to this question for a legal argument. Website Storage on a server.

Question

This concerns the hosting of a website on a server owned by a French company selling "almost ready made websites". We are tryng to prove that the "delivery confirmation" note is flawed. They make the client sign the same day as the contract saying "the client has received the hosting space : www name of the server/www domain name not yet purchased".

Q: On a server is it possible to reserve or see and thus accept that you have seen, the space where a future website will be stored?

I say "no" because:

  1. Unless a sector has live data in it the space that it would used is empty.
  2. You cannot "see" an empty sector
  3. It is impossible to say these sectors will be hosting your webpage as they get used and unused in a flash.

In France there are about 30 000 victims of this selling method called "One-Shot". Each victim has paid between 6000 and 10000 Euros for a 4 or 5 year lease on space on a server. Total scam 200M€+

Thanks to anyone who wishes to offer some help.

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Interesting argument

Actually the empty sectors can be seen for diagnostic purposes by the company who runs the server. It’s true that customers don’t normally have access to such low level information but it’s not relevant to customers anyway because as you say in point 3. It’s impossible to say what sectors will be hosting the webpage.

A customer’s data will never be assigned to a specific group of sectors on one hard drive. Normally it won’t even be assigned to a specific server and for best practice data should be kept on different servers at different sites for backup purposes.

So in answer to your question the customer does not see the space that will hold his data it’s just not possible, the company itself will decide how and where the data is stored as and when it is uploaded.

As for accepting the space or accepting anything for that matter, you don’t need to see something to accept it.

The customer presumably has some sort of agreement with the company stating how much space the customer gets and for how long. This might be in writing or it might be an online type of agreement between the 2 parties.

When the customer gets this agreement or sees it online then delivery can legally be said to have taken place. That’s how it works in the Uk anyway.

What other way could you say that delivery has been taken when the space is not actually physically delivered.

I have never heard of this scam you talk about. Are you saying that the people sign up for the storage space and do not receive it. Or is it just a technical point about the wording of the delivery note.

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Interesting argument

Actually the empty sectors can be seen for diagnostic purposes by the company who runs the server. It’s true that customers don’t normally have access to such low level information but it’s not relevant to customers anyway because as you say in point 3. It’s impossible to say what sectors will be hosting the webpage.

A customer’s data will never be assigned to a specific group of sectors on one hard drive. Normally it won’t even be assigned to a specific server and for best practice data should be kept on different servers at different sites for backup purposes.

So in answer to your question the customer does not see the space that will hold his data it’s just not possible, the company itself will decide how and where the data is stored as and when it is uploaded.

As for accepting the space or accepting anything for that matter, you don’t need to see something to accept it.

The customer presumably has some sort of agreement with the company stating how much space the customer gets and for how long. This might be in writing or it might be an online type of agreement between the 2 parties.

When the customer gets this agreement or sees it online then delivery can legally be said to have taken place. That’s how it works in the Uk anyway.

What other way could you say that delivery has been taken when the space is not actually physically delivered.

I have never heard of this scam you talk about. Are you saying that the people sign up for the storage space and do not receive it. Or is it just a technical point about the wording of the delivery note.

 

Simon, how nice to get such a great answer and so quickly. The key really is, and bearing what you have said, "When the customer gets this agreement (how much space the customer gets and for how long) or sees it online then delivery can legally be said to have taken place."

No detail of how much space etc. only the length of the lease. As far as the computer screen they showed nothing! Not even a dummy webpage with a name or contract number on it. So easy to do :)

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There has to be some sort of information somewhere, anywhere, which tells the customer what they are getting.It doesn’t necessarily have to be in the signed agreement or delivery note. Sometimes there will be further details on the website itself of the amount of space you get included in a lease or a certain package that you take with a company.

The delivery note certainly lacks detail but signing it means you are agreeing to the terms set out on the website or wherever they may be.

The problem with focusing on the delivery note is that a contact can be legal even if it’s just agreed verbally, signed contracts are normal practise in order that both parties can, if necessary prove legally what was agreed but they are not required under contract law.

This means that even if you manage to prove the delivery note to be flawed which for the purposes of proving what was legally agreed it may well be, this may make no difference to the contract / agreement.

I would ask, are all 3 required elements there for a legal contract, in the Uk these are:

  1. Offer, in this case the offer of space on a server
  2. Acceptance, in this case the customer accepts the terms of the lease on server space.
  3. Consideration, basically each party has to know what they will get in exchange

The customers are told they have the lease on space for 5 years but if they are not told anywhere about how much space they are getting then how can there be any consideration or acceptance.

If there are no terms and conditions given to the customer then how can they legally accept the contract?

They can’t because they have to know what they are accepting in order to consider it and accept it.

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There has to be some sort of information somewhere, anywhere, which tells the customer what they are getting.It doesn’t necessarily have to be in the signed agreement or delivery note. Sometimes there will be further details on the website itself of the amount of space you get included in a lease or a certain package that you take with a company.

 

The delivery note certainly lacks detail but signing it means you are agreeing to the terms set out on the website or wherever they may be.

The problem with focusing on the delivery note is that a contact can be legal even if it’s just agreed verbally, signed contracts are normal practise in order that both parties can, if necessary prove legally what was agreed but they are not required under contract law.

This means that even if you manage to prove the delivery note to be flawed which for the purposes of proving what was legally agreed it may well be, this may make no difference to the contract / agreement.

I would ask, are all 3 required elements there for a legal contract, in the Uk these are:

  1. Offer, in this case the offer of space on a server
  2. Acceptance, in this case the customer accepts the terms of the lease on server space.
  3. Consideration, basically each party has to know what they will get in exchange

The customers are told they have the lease on space for 5 years but if they are not told anywhere about how much space they are getting then how can there be any consideration or acceptance.

 

If there are no terms and conditions given to the customer then how can they legally accept the contract?

They can’t because they have to know what they are accepting in order to consider it and accept it.

 

Simon, thanks for your time. It really helps. They say this in the contract:"The company engage to have hosted the client's website... Putting in place the volume of stockage necessary to host a website limited to 100MO... The client signs a PV de réception (delivery note) of the hosting space justifying the realisation of the said service."

Verbal contracts are not worth the breath... If there is a written contract that is all the court will look at. in 1,2,3 above 2 the acceptance again in France if it is flawed or wrong then that can invalidate the contract which is waht thousands want to happen. The "delivery note" IMO is flawed for the reasons above.

If you have time .....

I think a fuller exposé is needed here ! My story is typical of thousands of other « victims »Some years ago someone had the great idea of selling websites made form templates. However several French companies including Cortix, decided to use a sales method called « One-Shot ». Briefly it goes like this. They target what is known in France as TPEs or (très petites Enterprises – very small companies) mostly 1 to 3 people, Husband and wife etc. A cold call offering a partnership and a free website followed by a salesperson at your home. They take about 3 to 4 hours to explain how it includes referencing, the partnership (non-existant). They show you a few websites they have done. They call their next client twice to say they are late. Then take out the contrats, after 4 hours it’s time to get them out so you agree and sign. You discover several things after they have gone : the cost was in my case 167€ per month over 4 years. No comments on this please as perhaps as many as thirty thousand TPEs have been talked into signing such contracts. 30k x 8000 = 240M€ The finance company give the website company a percentage of the income. The Managing Director of Cortix formed another company 2H Tecjnologies and « Billed » Cortix. 2H T ended up with 2M€ and Cortix went down the pan. Nice.Then this is where the beauty of the « One-Shot » sale becomes evident. The rights of the contract are ceeded to one of 3, but not limited to 3, finance organisations. They try to split the contract so that the finance part is rock solid. The rest, building the website, referencing is to all intents and purpose, free. The law of consommation in France allows a mandatory 7 days cooling of period BUT as we are all TPEs, we are considered Professionnels and do not have any cooling off period. The contract states « Stop paying and we will demand the total of your lease payments up front plus a 10% penalty something that has caused people to lose their businesses, their houses and worse. In France the cost of lawyers for even small cases is prohibative. Suing Cortix or a similar company will cost between 5000€ and 8000€. I felt the chances of winning were not good enough and did not merit gambling that sort of money. Nearly all these websites, when they eventualy are online, are made with very basic poor templates and are never referenced, which of course is virtually impossible to prove ! Various lawyers here have said that : The contract is rock solid, impossible to be cancelled, that they can get it cancelled etc. I saw a lawyer who said there was nothing to do and sent me his bill for 500€. In the end I learnt Dreamweaver very quickly, re-wrote my website and 9 months into the contract they used my HTML pages. They were a complete waste of space.In January 2012 I eventually agreed with Cortix that I could recover my domaine name and the agreement was if I paid the rest of the lease payments the contract would be considered finished as at January 2013 and my lease payments would stop. I have a contract signed by Cortix.Then 9 months later the company Cortix, went bankrupt. The liquidator « sold » all the contracts to PUBLICIS, a top quoted public company, for 600K€. Lo and behold the finance company want me to continue for a year more and will not recognize the « protocol » to the contract. On the phone an angry employée of LOCAM said « Cortix is Dead. They have nothing to do with us. Pay » My lawyer is handling that.In between time many groups were formed, all by victims of this scam. It has been in the press, Lawyers have blogged about its being a DOL- a manouver to cheat, etc. Some have had their contracts cancelled but no-one will say how !!!!

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There has to be some sort of information somewhere, anywhere, which tells the customer what they are getting.It doesn’t necessarily have to be in the signed agreement or delivery note. Sometimes there will be further details on the website itself of the amount of space you get included in a lease or a certain package that you take with a company.

 

The delivery note certainly lacks detail but signing it means you are agreeing to the terms set out on the website or wherever they may be.

The problem with focusing on the delivery note is that a contact can be legal even if it’s just agreed verbally, signed contracts are normal practise in order that both parties can, if necessary prove legally what was agreed but they are not required under contract law.

This means that even if you manage to prove the delivery note to be flawed which for the purposes of proving what was legally agreed it may well be, this may make no difference to the contract / agreement.

I would ask, are all 3 required elements there for a legal contract, in the Uk these are:

  1. Offer, in this case the offer of space on a server
  2. Acceptance, in this case the customer accepts the terms of the lease on server space.
  3. Consideration, basically each party has to know what they will get in exchange

The customers are told they have the lease on space for 5 years but if they are not told anywhere about how much space they are getting then how can there be any consideration or acceptance.

 

If there are no terms and conditions given to the customer then how can they legally accept the contract?

They can’t because they have to know what they are accepting in order to consider it and accept it.

 

Part 2...

PART 2 Google <cortix, locam, scam, avocat »I was quite prepared once my contract was finished to try and forget this but, with LOCAM insisting that I carry on, my ideas have changed. If LOCAM insist on the extra year’s payment then I will go to court but I will go for cancellation from the begining with damages as they insist that the contract is theirs and that it is still valid. What makes this so confusing is that the contracts were sold to PUBLICIS but if LOCAM is correct PUBLICIS effectively purchased nothing, which I strongly feel they will not agree to.The law of contract is not the same as in the UK. 2 lawyers have told me that, in order for the contract to be cancelled by the court they have to be shown an error and the signed delivery is the clue. Hence my original question and I do not think that anyone has yet tried that tactic. I have three points of attack. 1 The impossibility of accepting something that does not exist, knowing that it is possible to upload a temporary website with the contractor’s name on it. 2 That no terms and conditions of the finance companies proposed were shown in the contract and that as they said there could be several others this too was also impossible to do. 3 That the contracts were not split as they said in their contract (this is very French) and gets very complicated. Either Cortix gave up all rights in the contract. That LOCAM is the sole contractor . That PUBLICIS purchased nothing. OR Cortix gave up some rights in the contract. That LOCAM is the NOT sole contractor . That PUBLICIS purchased a valid contract. There you have it. Henry

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I didn’t actually realise until now that you were talking about salespersons calling to the house. I thought this was about an online sale where people were signing up over the internet.

From what you have now said, I totally agree with you that the delivery note is flawed.

Am I still missing something because this now seems to be an open and shut case.

  1. The contracts are signed with either no knowledge or a false expectation of the cost. This means no consideration.
  2. The cost, once discovered after the salesperson leaves, is disproportionate to what is generally accepted for such a service. This is an unfair contract.
  3. The contracts are signed under duress / pressure to get someone out of your home. Perhaps difficult to prove although with so many victims who are all eye witnesses to this scam and the unfairness of the contract it would be unreasonable for a court not to believe what they are all saying.

No one would knowingly sign up to such a one sided deal as this and as I said in my last post, due to the lack of detail in the delivery note, I don’t see how it could be used by the company to prove in court what was agreed.

The company may argue that the customer was made aware of the disproportionate charges but how can they prove this when as you say, the signed paperwork has no detail.

The company may argue that the customer was notified of the charges verbally at their home but as you say verbal contracts won’t hold up in court.

As I see it the delivery note is not only flawed, it also serves as evidence to prove that the customer was kept in the dark or misled about the disproportionate charges.

Also regarding the finance companies you talk off, in the UK we have the “Consumer Credit Act” which protects customers. Basically the finance company is liable for things such as unfair or unfulfilled contracts and it’s up to them to rectify the issue or compensate the customer. Is there anything similar in France.

Is it possible to get a large number of customers together and make a case against these companies or bring about a change in the law.

One thing that would put these scammers out of business is a change in the law. It seems crazy that just because you are a professional you don’t have a cooling off period.

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I didn’t actually realise until now that you were talking about salespersons calling to the house. I thought this was about an online sale where people were signing up over the internet.

From what you have now said, I totally agree with you that the delivery note is flawed.

Am I still missing something because this now seems to be an open and shut case.

  1. The contracts are signed with either no knowledge or a false expectation of the cost. This means no consideration.
  2. The cost, once discovered after the salesperson leaves, is disproportionate to what is generally accepted for such a service. This is an unfair contract.
  3. The contracts are signed under duress / pressure to get someone out of your home. Perhaps difficult to prove although with so many victims who are all eye witnesses to this scam and the unfairness of the contract it would be unreasonable for a court not to believe what they are all saying.

No one would knowingly sign up to such a one sided deal as this and as I said in my last post, due to the lack of detail in the delivery note, I don’t see how it could be used by the company to prove in court what was agreed.

The company may argue that the customer was made aware of the disproportionate charges but how can they prove this when as you say, the signed paperwork has no detail.

The company may argue that the customer was notified of the charges verbally at their home but as you say verbal contracts won’t hold up in court.

As I see it the delivery note is not only flawed, it also serves as evidence to prove that the customer was kept in the dark or misled about the disproportionate charges.

Also regarding the finance companies you talk off, in the UK we have the “Consumer Credit Act” which protects customers. Basically the finance company is liable for things such as unfair or unfulfilled contracts and it’s up to them to rectify the issue or compensate the customer. Is there anything similar in France.

Is it possible to get a large number of customers together and make a case against these companies or bring about a change in the law.

One thing that would put these scammers out of business is a change in the law. It seems crazy that just because you are a professional you don’t have a cooling off period.

 

Oh that it were an open and shut case. I agree on 1, 2 and 3 but they hold little weight in the French Courts. The monthly charges are somewhere but it doesn't sink in at the time. It's amazing how easily it is to get duped. Also most victims do not have the foresight to check the company out with the simple Google of "Company Name + scam" etc. It's too late when the salesperson has left. There is certainly a sort of Consumer Credit Act but it is all part of a larger sales law. No I think that the Delivery note is the weakest part together with "no T&C for the finance companies". Keeping the client in the dark is a good line of attack if we can get that told in court.

As to getting a group together, I now understand why so far it's them 30,000, us nil. Groups have been formed but die because the founders have paid and want to get on with their lives. I have tried everywhere but I have had no action. It is pathetic. Now I know why the companies are so succesful.

Changing the law is exactly what I said was needed and it will happen eventually. Trouble is getting the palimentary listeners to listen and the groups to put pressure on them.

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