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 诉讼法律文件之二：给被告亚瑟公司 Commercial Scientific Corp.的复信 |
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狼协
[博客]
[个人文集]
加入时间: 2004/02/14
文章: 5215
经验值: 12262
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作者：狼协 在 众议院 发贴, 来自 http://www.hjclub.org
Mr. Leonard G. Gordon, CEO
Commercial Scientific Corp.
1880 Century Park East, Suite. 1420
Century City, CA 90067
November 11, 2004
Mr. Gordon:
I just came back from my oversea trip and read your letter of February 20. Here is my response to it.
Part I
1. We don’t owe ANY of your hosting fees. You have to provide evidence to the Judge for what you claim, and we believe that you will not be able to do it, because you know very clearly this is just a lie. You mention here that Mr. Yu Xiong is a “contractor” instead of your employee. But to my knowledge, Mr. Xiong is a H-1 Visa holder, and a H-1 Visa holder can only be a fulltime employee and can only work for the company which sponsors the H-1 Visa for him. So if he works for you as a part time “contractor” but you are not his H-1 Visa sponsor when he works for you, you both seriously violate the immigration law and labor law. You both will have to provide your tax records to the Judge, IRS and INS officers to prove that you did not involve into an illegal employment.
2. We NEVER asked Mr. Yu Xiong (Arthur) to use any of his paid working hours to do anything for HJclub, Inc.. If you found that he did anything for anybody in his paid working hours, you should sue Mr. Xiong instead of holding your customer’s property. In fact, we have evidence that Mr. Xiong claimed in hjclub.com that he worked “extra hours” for your company for free, in exchange of the “favorable rate” for the server hosted by you (as we indicate below, the rate is not “favorable” at all and actually much higher than the market price).
3. You have to hire a more professional lawyer who knows better IT business. You obviously do not know what is “co-location hosting” and its market price. Co-location hosting means that the hosting company only provides the internet connection for customer’s server in his location, and does not limit how many websites are hosted on the server. The customer can host as many websites on the server as he wants. The price is determined by the number of SERVERS, not the number of WEBSITES. Let me tell you what we have now. We now have our new server hosted in a professional hosting company, with more than 5 IPs and UNLIMITED numbers of websites on the server, for a monthly service fee which is only half of yours. That means your company charged a much higher service fee than the market rate, but provided VERY poor service. So you have no reason to charge us more money because of the number of websites on the server.
4. We never accepted the $120 monthly fee you proposed for the year of 2004. As I pointed out above, your rate is much higher than the market rate, we by no means will accept a higher rate than that. If we couldn't reach a mutual agreement for the price, the only way is to have a formal procedure and written document, to terminate the service and return our server. What you did, however, was to illegally terminate your service without informing the customer in advance, and hold their server. With all of data of the websites on the server, we had no way to re-setup these websites in another place for months. You have to take the full responsibility for the loss.
5. We have evidence for the terms of the payment. Each time we paid the hosting fee at the end of every three months. Therefore in January 2004, when you cutoff the connection of our server and closed our websites, there was no balance due (it would be due in March 2004 instead). Also we did not receive any written document from you for any bill payment then. You cut off the connection of our server and closed all our websites without any written notification, this is a serious illegal action according to FCC regulations.
6. On the server there were commercial websites for our customers. They have evidences that because you illegally closed their websites and held our server, our customers lost more than $250,000 income from their commercial websites in the past 10 months. You shall not only be responsible for the cost of the new server we have to buy, for which we paid more than $1600, but also for the loss of HJclub, Inc. with its website, for more than $50,000 because of our sites was illegally closed down, and all of our customer’s business loss for more than $250,000.
Part II
It was HJclub, Inc., not Mr. Yu Xiong (Arthur), who paid Commercial Scientific Corp. for the hosting fee of the server for one year, and Commercial Scientific Corp. issued invoices to HJclub, Inc. each time. Therefore we formed the legal binding and virtual agreement as the hosting service company and its client. We have all of the evidences that HJclub, Inc. is the only owner of the server. You should only be responsible for the property (the server and all of the data and intelligent property in it) of your client which is hosted in your company. Anybody else who claims the ownership of the server has to provide his evidence to the court for any ownership dispute. You have no right to hold your client’s property according to your own employee’s claim. Because the legal relationship between us as the hosting service company and its client, the legal action should be taken mainly between Commercial Scientific Corp. and HJclub, Inc.. You, as the hosting service company, have the major responsibility for the loss of HJclub, Inc. and its website customers, although we will also take legal action against Mr. Yu Xiong.
Finally, we have evidence that a new website, www.haichuan.net, has been setup and hosted in your company using the same IP address which hjclub.com use to have. This website not only has the similar look and feel to our destroyed hjclub.com, but also has the same database. Therefore, you are suspected to rob our server with all of the information in it, to setup and host an illegally competitive website. This is a serious crime and we will launch a criminal lawsuit against you.
Our request to your Corporation is to release and return our server with all of the data UNCONDITIONALLY. The procedure is as the following:
1) You have to issue a written document to us indicating that you are willing to return our server with all data unconditionally;
2) We will send a representative to your company, with our authorization, to inspect the server, and make sure it is in a good condition, and all of the data in it are intact.
3) If the server is in good condition with all of the data, our representative will sign an Inspection Report and take the server from your company.
If in one week we have not received the letter from your company, we will take the legal action immediately. Because the operation base of HJclub, Inc. is in New Jersey, the lawsuit will be taken in the Federal Court of New Jersey.
Sincerely Yours,
Kangyuan Fu
Chairman
HJclub, Inc.
作者：狼协 在 众议院 发贴, 来自 http://www.hjclub.org |
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