Can a company fire you for being a bad customer?

By | March 14th, 2016

This is not a story about David Dalka’s web hosting provider. Technically, it’s about the terms of Dalka’s service, how his hosting company interpreted and how it executed them.

And also why it unceremoniously discontinued his service.

Lawyers insert all kinds of clauses in the wacky adhesion contracts you’re forced to sign when you subscribe to a product like cable TV, wireless service or an Internet service provider. Most people ignore the fine print because they figure, “What choice do I have?”

But pay attention. Contracts can be littered with vague restrictions that are subject to any kind of interpretation. That’s what likely happened to Dalka when he signed up for service last May through a company called A2 Hosting.

“They promised better service and a critical webmaster staging feature, but never delivered.” he says. “Instead, I got the runaround, excuses, poor service, and hard upsells constantly.”

Finally, after many complaints, and hours on the phone, an A2 representative suggested “I might go elsewhere.”

And then his server stopped working.

“When I complained about that, they terminated my account,” he says.

Hmm. Terminated for complaining? Can they do that?

Actually, yes. Here are the terms:

5. Termination

Either party may terminate the services by providing written notice to the other no later than 25 days from the expiration of the Initial Term or Renewal Term.

We reserve the right to immediately terminate this TOS, and suspend or cancel the Services: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights.

Upon termination, your account will be closed. We have no responsibility to forward e-mail, or other communications, for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your e-mail or other communications.

One party may also terminate this TOS upon the occurrence of a material breach, which has not been cured by the other party within 10 days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in Internet business. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.

Does anyone know what a “material breach” is? Neither do I. It’s all gibberish to me.

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Dalka wants a full refund of his purchase amount. “They have wasted hours and hours of my time,” he says.

It sounds as if the relationship between Dalka and A2 Hosting is irreparably damaged, and I’m sure by now, he’s backed up all of his data and is migrating to a new hosting provider.

I could tell you stories about web hosting that make this incident look downright civil. Several years ago I was involved with a company that had a spectacularly dysfunctional relationship with its hosting provider.

After one particularly ugly disagreement over billing, the hosting company angrily transferred all of the company’s domain names to itself and deleted data from its server. Both the domains and data were eventually returned, but the hosting company had made its point; it was time to move on. (Fortunately, I was only a spectator).

So can a company fire you for being a bad customer?

You bet. And it happens all the time. Car rental companies have “do not rent” lists, for example. Small businesses like bars and restaurants informally keep lists of problem customers they refuse to serve. Heck, I even have a list of news outlets I’ve stopped working for and I’d never work for again (even though they probably think they fired me – an old journalism Jedi mind trick!)

Perhaps the lesson of Dalka’s case is: Don’t complain too much or you and your data could be kicked out the virtual door. Or something to that effect.

I’m not sure if there’s any money to be recovered for this customer. Did A2 breach its contract? Probably. Did Dalka? Possibly. A credit-card dispute could be the best way to reach a quick resolution.

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A consumer advocate? Maybe not.

Should I take David Dalka’s case?

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Update: Dalka has followed up with a few additional thoughts. (Although I mentioned at the beginning of this story that this isn’t a story about him.)

All of these items were not covered at all which led to an inaccurate hearing of the facts:

As I stated in my original note, they never provided a stable service (the article did not mention that), they made every problem a bogus upselling opportunity (the article did not mention that), they misrepresented the staging features they were adding (the article did not mention that) and numerous people reported not being able to reach my web site due to a serious routing issue which they refused to professionally solve (the article did not mention that).

Because these items weren’t covered, the post is not complete and therefore just stating that I was terminated putting up a highly inappropriate picture to make my serious problem look like a complete trivial joke is frustrating and insulting to me. It is not accurate. Worse, it may cause future companies to take a wrong and false view of me.

I appreciate the opportunity to update the story with Dalka’s perspective.

  • KennyG

    I dont think we have enough information to make an informed vote. Did Dalka withhold any payments because of his service complaints for example? Was Dalka making any kind of threats, for example, denial of service attacks against the company. Was his website generating more data flow than he had contracted for? etc etc. Have yo received any hard copy of any of the interaction between Dalka and the company? Not sure what additional information you may have that has not been posted, but IMHO too many unanswered questions to even vote. Also, just wondering if the Trump picture is a political statement [given the current political climate] or simply coincidence.

  • Mel65

    Frankly, I’m not sure I even understand what the case is. Sounds like he didn’t like his service, he complained about it a lot; they said if you don’t like your service take your business elsewhere and cancelled the service. If he doesn’t like their service he needs to stop using it and move on to another service he likes better and consider himself lucky to be out of a bad business relationship You don’t go to a restaurant order the steak, start eating the steak, complain to the waiter that you don’t like the steak, but keep eating it, and then complain when the bill comes that you didn’t like the steak, refuse to pay for it AND ask the restaurant to reimburse you for the time that you spent eating the steak.

  • Ben

    Based on David’s version of the story, more like he pre-paid for a full steak dinner, received chicken, and was thrown out when he asked them to deliver the steak; now he’s out his money and all the time wasted sitting in the restaurant for food that was never coming.

    I’m not taking sides quite yet, though, as we only have half of the story and we don’t really know exactly what David was promised and what A2 delivered. If the company didn’t deliver, he is due a full refund. But, there may be more nuance to it, perhaps he misunderstood the features or was a problem customer. I voted yes so that we can find out.

    In any case, sounds like neither party wants to do business with the other going forward, and that’s fine. Businesses are certainly entitled to ‘fire’ customers for a variety of legitimate reasons.

  • Alan Gore

    Hosting a highly competitive business (I deal with it a lot in my line of work) making it incredibly easy to go elsewhere if you’re not satisfied. A hosting arrangement is unique in that the customer holds total power in the business relationship: you’re not over a barrel because you’re trapped away from home, and a hosting service holds nothing of yours that you don’t have. You have uploaded a copy of your content to the service, which can be erased at any time, and which can be sent to another service if problems arise.

    I’m guessing that “webmaster staging” is a sandbox area on your site that you can test new content in before making it public. You can do the same thing on any host by setting up a secret directory that is not linked to the rest of your site.

  • taxed2themax

    On the larger issue of can (or even “should”) a company ‘fire’ a customer? Unless it’s one of those regulated businesses (like your local utility where due to regulation there is only one provider) I think both sides should be free to do business with whomever they please — so long as there is no discrimination or other illegal acts used to get to that decision.
    To me, it’s somewhat like a human relationship; sometimes two people just don’t click. That may be due to things like misunderstandings, past issues (on either side) future expectations, etc. I think this is probably rare, but not unheard of.
    In the end, I think sometimes it is in both parties better long term interests if they don’t engage in future business. I don’t think a business should use this avenue as a first course action, but I do think that there can come a point where things are just not going to work out, or there really is no reasonable expectation that it be mutually agreeable… and keeping both parties engaged, to me, just seems like a waste of both parties time and only going to lead to negatives.

  • William Leeper

    The trump photo was used because…well…”Your Fired!”

  • William Leeper

    Don’t even get me started on the utilities. Where I live and in most areas of the country, there is only one electric provider, and that company is a member owned cooperative. That being said we had an incident in the county where a threat was made against an employee of the cooperative (he showed up on someone’s land, didn’t identify himself, and promptly had a gun in his face for it.) and the company disconnected and refused to reconnect service to that member. Our Public Service Commission ruled their actions were legal and consistent with the commission’s rules.

  • KennyG

    Yes.. the reference was reasonably obvious.. and I am not a shill for Trump by any means, just in the current heated [to put it mildly] climate, it kind of jumped out at me. Chris also responded to me privately as well.

  • flutiefan


  • flutiefan

    I just love how this site continually uses the term “forced into contracts”. Really, forced? No, these people chose the contracts willingly. Stop it with the hyperbole.

  • Éamon deValera

    No one is forced to sign a contract. Many contracts are adhesion contracts, there is nothing wrong with them. Drop your car at the valet. That is an adhesion contract.

    Take your clothing to the dry cleaner’s, that too is a contract of adhesion. The Court does take into consideration the bargaining position of those presented with contracts of adhesion. Courts carefully scrutinize adhesion contracts and sometimes void certain provisions because of the possibility of unequal bargaining power, unfairness, and unconscionability. Factoring into such decisions include the nature of the assent, the possibility of unfair surprise, lack of notice, unequal bargaining power, and substantive unfairness. Courts often use the “doctrine of reasonable expectations” as a justification for invalidating parts or all of an adhesion contract: the weaker party will not be held to adhere to contract terms that are beyond what the weaker party would have reasonably expected from the contract, even if what he or she reasonably expected was outside the strict letter of agreement.

    We enter them every day – parking, getting a meal at a restaurant, going to the barber or beauty shop, a movie ticket, having a package delivered by a courier service, these are all adhesion contracts that can cause problems, but seldom do.

    A material breach is a failure to perform that permits another party to compel performance or collect damages. If I say I will do A and B, but only do B that is a material breach. You could force me to do A, or you could sue me to collect damages (a refund for service A and perhaps consequential damages for my not having done A)

    It seems there was indeed a material breach on behalf of the vendor, however if the consumer failed to notify the company about it within 10 days it is too late for him to complain about it now. It is like the family fight where one party brings up the drunken lampshade dance from a decade ago – entertaining but too long ago to make a difference.

    A non-material breach would be something fairly inconsequential, the package being delivered successfully but no signature obtained, The movie projector stopping for 5 minutes to change a bulb (do they still have bulbs?) A train or plane being a few minutes late.

    Black’s Law Dictionary is an excellent source, it is however not freely available online (an ancient out of copyright edition is, but that is obviously not current).

  • Retired

    Great explanation! Thank you.

  • Fishplate

    I knew that there were plenty of people that know what a “material breach” is.

    Now, if Chris wants to start talking about legal language in general, that would be a good discussion. But I believe most contracting terms are well understood by those who make it their business to read, understand, and advise on contracts.

    That we need those people, though, is a point of contention for many. But, if one plans to go all Dick the Butcher on us, then one should propose an alternative that is equally distinctive as regards meaning, and also protects both parties while telling them exactly what to expect in all (or most) situations.

  • taxed2themax

    That sounds ugly at minimum.. Your example I think is more legal than anything else. I think it started with a common ‘service’ kind of event – like you might find with a cable company, airline or whatever… but due to several reasons and actions, it seems to have morphed into something that would now be regulated more by applicable criminal code (.. “a threat was made”… and “…had a gun in his face for it”) than your classic commercial contract type events..

    My issue with the “regulated” business comment was to acknowledge that in some cases and places there can literally be no alternative possible due to the regulatory structure in place for that industry in that location.. If that’s the case, then I take a slightly different approach to the “can you fire a customer” conversation.

  • taxed2themax

    I agree… I also think that when most people (most, but not all) write, read or even listen; they do so thru a ‘filter’ of emotion.. and words like “forced” harness the listeners emotion.. I’m not saying it’s overtly wrong, but largely it’s how most of us write, speak and often listen. I think one of the keys in these kinds of cases is the ability to be a little dispassionate and assess things from a more purely factual basis, and less of an emotional one.

  • Sue the company, the contract will probably be voided by the courts as they failed to provide reasonable service, and act in good faith, regardless of the written agreement. I feel that David should be reimbursed for his expenses, and mental anguish caused by this badly run company, and the Better Business Bureau should shut them down if they also are doing this to other customers, retaliation for being a Whistle Blower should be punished.

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