Hello,

One of my clients had an issue with the hosting comapny he's hosting
with in relation to marketing campaigns they're running.

The marketing campaigns are high in traffic, but legal.

Due to the high traffic, a number of bounces came back as a reply to
the FROM address which is genuine.

The original number of e-mails was around 1.5 million, the bounced
messages due to unavailable space and accounts that do not exist
anymore came to 10k bounces. Isn't that roughly a 0.7% of the mail
sent out.

The hosting company shut down the website and e-mail and asked that
the client do one of two things, and I quote here:

Helpdesk: "I've check with our manager, looks like you are sending out
massive amounts of emails to your clients and many of those are
invalid address. Because of that, we are getting over 10,000 bounce
back email and cuasuing a jam on our mail server.

Therefore we've stopped your website and your account will be
terminated if you cannot agree with this:

1) Either host your email else where and leave your site with us 

OR 

2) Continue to use our service but DO NOT use your real email address
"update@hotmsg.com" as the FROM email when you send to your user. You
can use something@hotmsglist.com as the FROM address. We need to make
sure email doesn't bounce back to our mail server and jam our
server.".

MyClient: "After a long meeting with my colleagues, here is the
conclusion.
Yes we are LEGALLY contacting our prospects to update their profiles
and that is why we are using the Email Marketing technique.  If I use
a different email like you are suggesting "something@hotmsglist.com!!"
this means you are asking us to turn into SPAMMERS!  As for the
massive bounce to your servers, we are positive that this was due to
the previous problem we reported related to our mailing system (at
your servers) which has stopped functioning for almost 3 days during
which, the system was emailing our newsletter.

We are usually receiving bounce back emails directly to our local
servers forwarded (and not saved in) from your servers. But since our
email system at your hosting company was off for 3 days and for
unknown reasons! It is very natural that all incoming emails will be
forwarded to yours.  Another issue is, if you claim that 10,000 bounce
back emails were diverted to you then, you are aware that a bounce
email is not more than 1kb in size and therefore how could a total of
10 Mb jam your system?

We've been your client since quite some time now, and you are simply
asking us to leave for a problem that started from your side 3 days
ago?

Anyway, We are still in the process of negotiating this issue and
therefore please leave this ticket opened till we get back to you with
our final decision soon. But meanwhile consider the above reply and I
hope I get a soon follow up from your side admitting your
responsibility for what happened.

We already had our system stop sending the emails. Could be KIND now
and put our site online NOW and stop our losses until we both reach an
agreement?

Thank you"

The hosting company didn't respond beyond this point and the site and
its e-mail are still down.  What my client would like to do is not let
them off easy. :-)

This can go into hiring a lawyer to rough them up as well and recover
lost business and incovenience as well as addressing the encouragement
to be a spammer which would be a stupid move by the hosting company or
them trying to entrap them.

The hosting company is incorporated in California if that's any help.
I'm also quoting the terms of service of the hosting company below.

I would like to know what does my client have in terms of rights and
what he could possibly and rightfully ask for from a theoretical point
of view.

I would like to be assisted in locating a few attornies who may help
take this further as suggestions.  Three references to websites or
listings of attornies whom are in this field and can take action in
that state and seem to be geared to help 'small' business would be the
second deliverable.

That's it. :-)

/Lizardnation

Hosting comapny Terms of use:

I am of legal age, in the state of my residency to enter this
agreement.
 This Application and Agreement shall constitute a binding agreement
between <Hosting Company Name> and myself at such time as this
application is received and approved by <Hosting Company Name>'s
headquarter.
 I MAY CANCEL THIS AGREEMENT AT ANYTIME EFFECTIVE UPON WRITTEN NOTICE
TO <Hosting Company Name>.  There is a no contract to all of our
hosting service plans.  You might cancel with within the first 30 days
with full refund.  Setup fees are non refundable.  <Hosting Company
Name> may immediately terminate a member who discredits the company’s
name, misuses, misrepresents or violates any requirement contained in
this Agreement, Polices and Procedures.
 <Hosting Company Name> reserves the right to revise our policies at
any time. Additionally, <Hosting Company Name> reserves the right to
discontinue service for any account that we determine is being
inappropriately or unlawfully used, and reserves the right to refuse
service at our discretion.
 Web site construction and management is the responsibility of the
client. <Hosting Company Name> is not responsible for web site
management or files lost or damaged by users. Backup of all site files
is recommended, and should be maintained by the client on a machine
outside of the <Hosting Company Name> network.  A fee of $60 is
required should a client request any files from our back up systems,
which are intended for disaster retrieval only. <Hosting Company Name>
does not guarantee that the files contained in our backup systems will
be the most current copy of a client's web site.
 If an account is used unlawfully or is in violation of the user
policy, <Hosting Company Name> reserves the right to terminate the
account without notice and without refunds. Files that violate the
user policy are subject to deletion without notice. Clients violating
the user policy will be held responsible for damages to <Hosting
Company Name>, including but not limited to, <Hosting Company Name>'s
systems, servers, connectivity, reputation, business, service,
network, operations, or equipment. Determining what constitutes a
policy violation is the sole discretion of <Hosting Company Name>, and
includes, but is not limited to, the following:
AntiSpam Policy - <Hosting Company Name> strictly prohibits members
from sending unsolicited mass emails or Spam, whether via email,
Usenet or any other form. Any member using spamming techniques for
soliciting referrals will be immediately terminated. In addition,
their mailing address will be ineligible for opening a new membership
account.
System Abuse - Includes, but is not limited to, excessive use of CPU
resources or disk space, installing IRC bots, CGI scripts sharing with
domains outside of <Hosting Company Name>, excessive use of data
transfers leading to the decrease of the system's performance or other
CGI scripts that use a disproportionate amount of system resources.
<Hosting Company Name> will determine what constitutes system abuse.
Software/Multimedia Distribution - Accounts cannot to be used to
distribute "cracked" versions of copyrighted software (a.k.a. warez),
serial numbers for copyrighted software or copyrighted multimedia
files (i.e. music files or MP3's). Sites that contain links to pirated
software or illegal contraband are also prohibited.
Adult Content - Sites containing adult material, links to adult
material, or adult-oriented merchandise must be approved by <Hosting
Company Name>. The final determination of what constitutes "adult
content" is made by <Hosting Company Name>.
Security Violation - Attempts to manipulate <Hosting Company Name>
servers or client web sites are prohibited. This includes, but is not
limited to, attempting to gain unauthorized access to <Hosting Company
Name> servers, mail bombing, or other means of deliberately
overloading systems.
 
 Setup and service fees are required to activate you account with
<Hosting Company Name>.  Setup fees are non-refundable.
 All shared hosting plans canceled within 30 days will receive a full
refund on the hosting fee.
 If any Basic, Advance and Premium Plan are canceled after 30 days,
the customer will receive a prorated refund for the remaining hosting
fees.  There's no annual contact on these hosting plans.
 'Life-Time' hosting plan are non-refundable after 30 days.  Note that
we are no longer offering this hosting plan as of 12/31/2002.
 <Hosting Company Name> web site properties may contain technical
inaccuracies or typographical errors. Changes to the <Hosting Company
Name> web site properties may be made periodically. Every good faith
effort will be made to keep the web site content accurate and up to
date. <Hosting Company Name> reserves the right to make improvements
and/or change our web site at any time without notice.
 USE OF <Hosting Company Name> WEB HOSTING SERVICE IS AT THE CLIENT'S
SOLE RISK. <Hosting Company Name> SERVICES ARE PROVIDED ON AN "AS IS,
AS AVAILABLE" BASIS. Neither <Hosting Company Name>, its employees,
affiliates, third party services, merchant licensors or the like,
warrant that <Hosting Company Name> web hosting service will not be
interrupted or error free. <Hosting Company Name> will make every good
faith effort to ensure that its web servers are available to as many
Internet users as possible and that there is minimal interruption of
service as possible
 Under no circumstance will <Hosting Company Name>, its partners, its
employees, or its affiliates be liable for any claims, any action
either direct, indirect, special, incidental, or consequential, or any
damages either punitive or alleged to have resulted, including loss of
profits, from the use of or inability to use <Hosting Company Name>
service, from service interruptions, from customer errors or problems
with their Internet connectivity, from the client's equipment or
available technology, from unauthorized access to <Hosting Company
Name> servers, from communication failure, from bandwidth congestion
or interruptions, or from acts of God
 This Agreement is governed by the laws of the state of California.  
 This Agreement is not effective until accepted by <Hosting Company
Name>.

If this is a smaller ISP and your client:
1. Pushed 1.5 million emails through their system without warning, and
without spreading it out in chunks over a longer time period.
2. Received 10000 bounces in fairly rapid succession.

...then I can see why the ISP is a bit cranky. If their mail servers
went down while your client was pumping a continuous stream of email
through their system, your client may have *caused* the downtime.

Keep in mind that, even if the emails themselves are small, each and
every outgoing message and returned message causes lines to be written
to a log file and also causes a queuing request. The 10MB of returned
emails stacked up 10000 requests in the mail queue! Never mind the
giant stack of outgoing. It's likely that everyone on their server was
having a difficult time sending and receiving email while this was
going on. Sort of like having a teenager on the phone. Even if they
are not saying much, it still prevents others from using the phone.

There is an ISP near me who had a spammer trying to break into their
mail server by hitting it over 50 times per second. The log file
quickly filled the entire hard drive and no one could receive mail.

Perhaps your client needs a large mail host that is prepared for such
a high volume of email traffic.

- Hammer

Perhaps the right solution is to clean up the mail list first.

 Sending just few thousands  very short mails a day,
 asking customers to confirm they do want recieve
 the full information and that
 the their adress is valid.

 It sure may look to an ISP like a spam otherwise.

  Legal, ethical, issues and issues of
 what is sensible and expedient will become much more 
  simple once customers confirm that they indded 
 opted 'IN'.

hedgie

Glad to hear from you and I sure missed those points.  I went back and
checked the hosting company and sure enough what you said was true,
they offer $5 to $20 per month packages for virtual hosts and that's
what my client mentioned he was using.

I had a different impression and as such I'm going to advise them to
cool things down and to give them a break and to take things for what
they are.

Thank you for the enlightenment. :-)

/Lizardnation