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1and1Investigator
May 28, 2009
www.1and1.com Business Practices
www.1and1.com has lots of complaints about their insane billing practices, not only on this complaint board but on the internet. Simply google "1and1". However, their power to run roughshod over customers stems from implicit agreement with their terms and conditions, available at this address:
http://order.1and1.com/xml/order/Gtc;jsessionid=267F17E78A3A61A2787B93B79ED2DAAC.TC60a?__frame=_top&__lf=Order-Tariff
This contract, which you implicitly agree when you sign up with them, gives them complete power and you none – except not to do business with them.
In my experience with 1and1, they do exactly what they say they will in these contract clauses. So BUYER BEWARE. They also say that email is the only method they use to contact you and that their records of email contact are final. If they say they sent you a notice via email, you cannot challenge the fact that you did not receive it. If your monthly automatic credit card debit is not processed by their system for any reason and you do not correct this immediately, they turn you over to a collection agency. The contract you have agreed to says that you agree to pay all collection fees. Once turned over to the collection agency (NCO is the one they use), 1and1 will not discuss billing, payment, etc. They lock your account so that you cannot use it and simply tell you to contact NCO. If you do not contact NCO, NCO will report you to credit reporting agencies and ruin your credit. Yes, even a $15 collection item on your credit report can reduce your credit score 75 points!!
If you are considering using 1and1 or are an existing customer and have not read the agreement, you should. You cannot sign up for their services without implicitly agreeing to the contract whether you have read it or not. It gives them complete power, even to the extent that they don't have to deliver a service to you (covered in clauses 5 & 6 shown below). They don't promise to deliver anything specific. If they don't deliver, according to their contact you can do nothing except stop using them (which would be a pretty sane thing to do starting right now). Take them at their word. When you sign up, you agree that they don't have to deliver anything to you in exchange for your payments.
5. NO WARRANTIES BY 1&1.
THE 1&1 SERVICES AND 1&1 SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE 1&1 SERVICES IS AT YOUR SOLE RISK. 1&1 DOES NOT WARRANT THAT THE 1&1SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES 1&1MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE 1&1SERVICES. NO WARRANTY IS MADE BY 1&1 REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND 1&1 HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER, INCLUDING BUT NOT LIMITED TO YOUR SERVICES AND YOUR WEB SITE; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 1&1 DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE 1&1 SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON'S OR ENTITY'S WEB SITE OR WEB PAGE.
6. 1&1'S LIMITED LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL 1&1, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE 1&1 SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, 1&1'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, 1&1 DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE 1&1 SERVICES, AND 1&1 WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE 1&1 FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF 1&1 FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO 1&1 IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $150, 000.
Even more unbelievable, and something that puts you at unknown risk for dealing with them is clause 9 in which you agree to the costs of defending them against unknown future actions taken by anyone against them. Read it for yourself. Have your lawyer read. Note that is says they will choose a lawyer and YOU will pay to defend them.
9. YOUR INDEMNIFICATION OF 1&1.
You agree that you shall fully defend and indemnify 1&1, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 7 or your violation of a third party's intellectual property rights. You further agree to defend, indemnify and hold harmless 1&1, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that 1&1 shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
And then there are fees. See the clauses below:
3. FEES
3.1.
Certain 1&1 Services are subject to set-up, service, and domain service fees, pursuant to the Fee Schedule, and by registering for such 1&1 Services you authorize 1&1 to debit your Payment Account for any and all such fees.
3.2.
The Fee is due monthly, in advance of the provision of services, not later than the first of that month. In the event that 1&1 determines that the services of a collection agency are necessary or appropriate to collect amounts due under this paragraph, which determination shall be made in 1&1's sole and unfettered discretion, any and all collection agency fees and other costs of collection shall be added to any amounts due under this provision. [Most complaints I have seen on the internet have to do with 1and1's heavy handed and quite liberal use of a brutal collection agency called NCO and NCO's liberal reporting of 1and1 debts to credit reporting agencies as a collection matter. This instantly ruins your credit.]
3.3.
All Fees must be paid in United States Dollars in advance of the provision of services. 1&1 will charge the monthly fee and any additional fees to the Payment Account unless specifically provided otherwise. You also agree that 1&1 may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to Your Services or Your Website, including but not limited to fees for excessive bandwidth use or other surcharges for services in excess of those included within Your Services or Your Web Site. If payment in full is not received by 1&1 from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for Your Services upon demand by 1&1.
3.4.
1&1 may offer subsequent promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for Your Services. Any such promotions or modifications shall not effect your obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Promotional fees and special offers may not be combined.
3.7.
You shall pay all costs of collection, including reasonable attorney's fees and costs, in the event any invoice requires collection efforts. All accounts referred to a collection agency shall be subject to an additional fee of $18.95, which must be paid in full before the account is reactivated.
BUYING BE WARE!!!
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