COME NOW PLAINTIFFS, by and through the undersigned attorneys, bring this individual and class action against Defendant Creative Innovations, d/b/a CI Host and Hosting Services International, Inc. (hereinafter referred to as Defendants) and in support hereof would show the following:

I

In accordance with T.R.C.P. 190.2 (a), Plaintiffs hereby allege this matter shall fall under Level 3 Discovery Plan.

II
INTRODUCTION

Defendants operate a website and internet  hosting service.  Plaintiffs are currently, or have been in the last 24 months, customers of Defendants.  These Plaintiffs currently use, or have used, website hosting services provided by Defendants.

Defendants offer 100% Satisfaction Guaranteed.  In addition, Defendants guarantee that certain websites for which they provide hosting services will be fully operational 99.9% of the time.  Defendants also, at times relevant hereto, guaranteed that all of the data stored for their customers as part of their website hosting service was "backed up" or "saved" on a daily basis.  This is a critical component of the services offered by Defendants since there is a heavy volume of important data which enters a website domain on a daily basis.  Defendants also offered a refund for certain websites if they were not fully operational within 12 hours. Defendants have violated a number of the promises and guarantees as set forth on their website.   In addition, on or about December 28, 1999 Defendants, in an apparent attempt to change servers, interrupted service to all of its customers (the proposed class herein) for a period of several days.  This server crash was a violation and breach of promises and guarantees made by Defendants to Plaintiffs and the proposed class for which Plaintiffs now sue.  The server crash also caused damages to Plaintiffs and the Class for business interruption, harm to business reputation, and the loss of critical data from Plaintiffs' (and the Class') websites.

Plaintiffs and each class member have suffered actual damages.  This action seeks to recover these actual damages on the losses suffered by each customer of Defendant CI Host as a result of the Defendant's misrepresentation and breach of promises made to  Plaintiffs.

In addition, Plaintiffs seek damages, individually and on behalf of the entire class or subclass for overcharges made to Plaintiffs' accounts and paid by Plaintiffs.  These damages include interest charged by Plaintiffs' credit card companies for wrongful charges and/or overcharges made by CI Host.  Finally, Plaintiffs and the class or subclass have suffered actual damages by paying monthly fees for services which were not provided in accordance with the representations, promises and/or guarantees made by Defendant CI Host.

III
PLAINTIFFS

a. Plaintiff Tom Speer owns and operates a web design and hosting services website.

His company, Fortress Web Design and Hosting is a sole proprietorship with the principal place of business in     Florida.  He has been a customer of CI Host since March, 1999.  He primarily designs websites and resells hosting services provided by CI Host.  Since March 1999, Plaintiff Speer has been billed by Defendants for services that were neither purchased nor received and as a result has suffered damages. In addition, Plaintiff Speer suffered damages and losses as a result of Defendants' server problems in December of 1999.   Beginning December 28, 1999 and over the next 10 days, Plaintiff Speer's site(s) and likely the majority of the websites hosted by CI Host were inaccessible.  Defendants' server problems caused Plaintiff Speer and the putative class or subclass damages in having to recreate customer records.  Further, Plaintiff Speer and the class or subclass have experienced damages as a result of business interruption and damage to business reputation as a result of the server problems and the failure of Defendants to provide daily site backups.

b. Plaintiff Kathleen Forden owns and operates a website design and web hosting company called Limits Unknown. Plaintiff Forden has been systematically and routinely charged $299 per month for services that were substandard and/or not provided at all.  Based on information and belief, Defendants have engaged in a systematic and continuous practice of wrongful charges or overcharges to customers for which the Class now seeks recovery. 

In addition, Plaintiff Forden has suffered damages as a result of Defendants' failure to backup data deleted by CI Host to one of Plaintiff Forden's websites.  As a result of Defendants' wrongful deletion and failure to backup, Plaintiff Forden has suffered damages in the amount of at least $5,000 in having to recreate and reprogram the data for the deleted website.  It is believed that the wrongful deletion and/or failure to backup data by CI Host is a widespread breach which has caused damages to the Plaintiff and the Class.

c. Plaintiff Henri Boll owns and operates four website domains known as:

  (a) 123done.com
  (b) go2museum.com
  (c) colorsunlimited.com
  (d) 123dot.com

Plaintiff Boll has purchased web hosting services from Defendants for these website domains.  On three separate occasions one or more of Plaintiff Boll's websites have been shut down and rendered completely inaccessible.  Before agreeing to restore service, Defendants attempted to force Plaintiff Boll to purchase additional gigabytes.  In addition, Plaintiff Boll has been charged for services he did not order.  Finally, the website domains owned and operated by Plaintiff Boll have been inaccessible since December 28, 1999.  As a result Plaintiff Boll has lost sales, lost business opportunities and suffered damage to his business reputation by the unlawful conduct of Defendants as described more fully herein for which Plaintiff Boll seeks damages individually and on behalf of a class or subclass of persons similarly situated.

IV
DEFENDANTS

Defendant Creative Innovations, Inc., d/b/a CI Host is a Texas Corporation with its principal place of business in Tarrant County, Texas  and can be served with process by serving its registered agent as follows:

Chris Faulkner, 1851 Central Drive, Suite 110, Bedford, Texas 76021.

Defendant Hosting Services International, Inc. is a Texas Corporation with its principal place of business in Tarrant County, Texas and can be served with process by serving its registered agent as follows:

Chris Faulkner, 1851 Central Drive, Suite 110, Bedford, Texas 76021.

V
JURISDICTION AND VENUE

Venue is proper in Tarrant County, Texas because Defendants have their principal place of business in Tarrant County, Texas.

VI
CLASS ACTION ALLEGATIONS

Plaintiffs bring this class action on behalf of themselves and all other individuals or entities similarly situated as members of a proposed class or subclass pursuant to Tex. R. Civ. P. 42.  This action satisfies the numerosity, commonality, typicality, adequacy and predominance and superiority requirements of those provisions.  The class or subclasses are defined as follows:

Defendants are liable for damages to Plaintiffs and the Class in the following categories or subclasses:

Subclass 1: That class of entities who seek a complete refund of all monthly service fees for Defendants' failure to provide services as promised;

Subclass 2: That class of Plaintiffs who seek a complete refund (plus interest) of all improper charges made by Defendants to Plaintiffs' credit cards and/or checking accounts;

Subclass 3: That class of Plaintiffs who seek a complete refund to Plaintiffs and all injured class members of monies owed for Defendants' failure to honor certain guarantees (i.e. set up time guarantee, complete satisfaction guarantee, and 99.9% up time guarantee);

Subclass 4: That class of Plaintiffs who seek damages for business interruptions, loss of business profits and harm to business reputation as a result of Defendants' failure to keep websites fully operational and accessible;

Subclass 5: That class of Plaintiffs who seek damages due to lost data as a result of Defendants' failure to perform site backups on a daily basis;

Subclass 6: That class of Plaintiffs who seek damages to those class members adversely affected by Defendants' exposure of sensitive and confidential credit card numbers.

The class (or subclass) is comprised of thousands of individuals and entities across the country and the world, thereby making joinder impractical.  The disposition of the claims of these class members in a single class action will provide substantial benefits to all parties and to the Court.  There is a well defined community of interest among members of the Class.  Plaintiffs, like all class members received services offered by Defendants and were damaged by the false guarantees and misrepresentations made by Defendants.  Class members have also been damaged by overcharges (including interest) made by Defendants to Plaintiffs and other class members.

The representative Plaintiffs, like all class members, have suffered actual damages as a proximate result of the false guarantees and misrepresentations made by Defendants as well as court costs and reasonable attorneys fees.  The factual bases of Defendants' misconduct is common to all class members and represents a common thread of systematic misrepresentations, overcharges and failure to provide services as promised.

There are numerous questions of law and fact common to Plaintiffs and the Class, and those questions predominate over any questions that may affect individual class members, and include the following:

whether Defendants breached the promises made to its customers with regard to its website and internet hosting services;

whether Defendants made unauthorized charges to credit cards of Plaintiffs and other class members;

whether Defendants lost vital data for Plaintiffs and other class members by failing to perform daily backups of the data received by Defendants as part of their internet and website hosting services;

whether Defendants failed to properly refund charges Plaintiffs and other class members after Defendants violated their guarantees and promises;

whether Defendants failed to properly refund setup fees to Plaintiffs and other class members after Defendants violated their guarantee to have a website fully operational within a guaranteed time frame.

Plaintiffs will fairly and adequately protect the interests of the Class.  Plaintiffs have retained counsel with experience in protecting consumer class actions involving wrongful conduct.  Plaintiffs and undersigned counsel are committed to vigorously prosecuting this action on behalf of the class and have the financial resources to do so.  Neither Plaintiffs nor their counsel have any interests adverse to the interests of the class.

Plaintiffs and members of the class have suffered and will continue to suffer harm and damages as a result of the unlawful and wrongful conduct of Defendants.  A class action is superior to other available methods for the fair and efficient adjudication of this controversy.  Absent a class action, most members of the class would find the cost of litigating their claims prohibitive and will have no effective remedy at law.

Absent a class action, class members will continue to incur damages and the misconduct of  Defendant will proceed and continue without remedy.  The class treatment of common questions of law and fact is also superior to multiple individual actions or piecemeal litigation in that it conserves the resources of the courts and the litigants and promotes consistency and efficiency of adjudication.

VII
FIRST CAUSE OF ACTION
Application For Temporary Restraining Order

The Plaintiffs as owners of certain website domains are threatened with irreparable injury by the conduct of Defendants.  Specifically, Defendants control information vital to the prosecution of Plaintiffs' claims.  This information can only be retrieved by Defendants and is critical to Plaintiffs' proving the allegations herein.  In addition, Plaintiffs, Individually and as putative class representatives, will likely be met with retaliatory conduct by Defendants for filing this suit and making the allegations herein.

 The deletion or disposal of critical information including e-mails, billing data and other internal, non-privileged memoranda would irreparably harm Plaintiffs in the prosecution of this suit.  Any retaliatory conduct by Defendants to the websites owned or controlled by Plaintiffs would also irreparably harm Plaintiffs.  The conduct above described would work continuous damage and injury to Plaintiffs for which Plaintiffs would have no adequate remedy at law.  The rights involved are unique and irreplaceable so that it would be impossible to accurately measure the damages caused by Defendants' conduct.

It is essential that the Court immediately and temporarily restrain the Defendants from performing the conduct described in the preceding paragraph.  It is essential that the Court act immediately, prior to notice to the Defendants and a hearing on the matter, because the Defendants are likely to act in the very manner sought to be restrained once the Defendants are served with this suit.

In order to preserve the status quo and the rights of the Plaintiffs during the pendency of this action, Defendants should be cited to appear and show cause why Defendants should not be temporarily enjoined from the activity described above during the entire pendency of this action.

VIII
SECOND CAUSE OF ACTION
Action For Declaratory Judgment

Plaintiffs incorporate and re-allege each of the preceding paragraphs as if set forth at length.  Defendants, as a prerequisite to providing hosting service, request that users, such as Plaintiffs and the putative class or subclass,  agree to certain Terms, Policies and Conditions as follows:

Indemnification

Customer agrees that it shall defend, indemnify, save and hold CI Host harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against CI Host, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be preformed or any product sold by customer, its agents, employees or assigns.  Customer agrees to defend, indemnity and hold harmless CI Host against liabilities arising out of (1) any injury to person or property caused by any products sold or otherwise distributed in connection with CI Host's server; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customer from CI Host's server.

Disclaimer

CI Host will not be responsible for any damages your business may suffer.  CI Host makes no warranties of any kind, expressed or implied for services we provide.  CI Host disclaims any warranty or merchantability or fitness for a particular purpose.  This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by CI Host and its employees.  CI Host reserves the right to revise its policies at any time.

All Sub-Networks, resellers and dedicated servers of CI Host must adhere to the above policies.

Failure to follow any term or condition will be grounds for immediate account deactivation.

These provisions do not meet the express negligence test.  Further these provisions do not  meet the conspicuousness requirements.  Finally, these provisions violate public policy given the disparity of bargaining power between the parties thereto.  As a result, these provisions, as written and displayed are unenforceable and void and Plaintiffs seek a ruling from this Court declaring these provisions to be unenforceable and void.

Pursuant to the Texas Declaratory Judgment Act, Plaintiffs also request and show that they are entitled to attorney's fees in this matter.

IX
THIRD CAUSE OF ACTION
Breach Of Contract

 Plaintiffs and Defendants as established by their representations,  promises and conduct, agreed that Defendants would supply web hosting services to Plaintiffs and the class in return for certain fees.  Accordingly, Defendants have breached their contract to properly provide certain web hosting services.  Defendants have breached their contract by failing to provide guaranteed up time; failing to provide daily backup of data; failing to install websites within a guaranteed time frame;  failing to properly charge for services provided; failing to properly credit accounts when overcharges were brought to Defendants' attention; and failing to maintain accessibility to websites owned or operated by Plaintiff and the class.

 Plaintiffs and the class or subclass have either fully performed their obligation under the contract or their duty to perform all conditions precedent to Defendants' liability were waived and excused by Defendants' failure to honor the agreement.

 Plaintiffs and the class have been damaged by the Defendants' breach of contract in an amount to be determined by the trier of fact.

X
FOURTH CAUSE OF ACTION
Negligence

Defendants, at all times relevant hereto, owed Plaintiffs and the class a duty to act as a reasonably prudent website hosting business.  Defendants breached this duty in the following respects:

failing to properly calculate and charge Plaintiffs and the class for web hosting services;

failing to take proper precautions to prevent the interruption of accessibility to websites owned by Plaintiffs and the class;

failing to perform daily site backup of sites owned by Plaintiffs and the class in order to preserve critical data;

failing to take proper security precautions to prevent the dissemination of confidential financial information including credit card numbers of Plaintiffs and the class.

As a direct and proximate result of these breaches of duty by Defendants, Plaintiffs and the class have suffered damages as further outlined herein for which Plaintiffs now sue and for which Plaintiffs seek class certification.

WHEREFORE PREMISES CONSIDERED, Plaintiffs on behalf of themselves and all others similarly situated, ask the Court to enter judgment against Defendants, jointly and severally in favor of Plaintiffs and award  the following relief: