Mehmet v. Add2net, Inc., — N.Y.S.2d —-, 2009 WL 3199876 (N.Y.A.D. 1 Dept. October 8, 2009)
Plaintiff website operator didn’t pay his monthly hosting fees on time. He called the hosting company and said he’d be sending a check, but in the meantime the web host exercised its right under the hosting agreement to suspend Plaintiff’s account for nonpayment. Plaintiff called and left a nasty voicemail, using an obscene word to threaten to sue the hosting company if his website was not reactivated.
In response to this angry voice mail, the web host terminated Plaintiff’s account. He sued for breach of contract. The web host moved to dismiss at the trial court level and the court granted the motion. Plaintiff sought review. On appeal, the court affirmed the dismissal.
Of particular importance was a provision in the hosting agreement that incorporated by reference an Acceptable Use Policy (AUP), and provided that any breach of that policy would be grounds for suspension or termination of plaintiff’s account. Under the AUP, plaintiff agreed “not to abuse whether verbally or physically or whether in person, via email or telephone or otherwise … any employee or contractor of [defendant].”
The nonpayment coupled with this violation of the web hosting acceptable use policy undercut Plaintiff’s breach of contract claim.