Welcome!

SDN Journal Authors: Elizabeth White, Pat Romanski, Lori MacVittie, Greg Ness, Carmen Gonzalez

Related Topics: Cloud Expo, SOA & WOA, Virtualization, Web 2.0, Security, Big Data Journal, SDN Journal

Cloud Expo: Article

Ignoring the Harmless Looking “Force Majeure” Clause in a Cloud Agreement?

Maybe it's not so harmless....

“Force Majeure” – An event that is a result of the elements of nature, as opposed to one caused by human behavior.

This nugget is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term “act of God” (such as hurricane, flooding, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract.

Having a landscaper or electrician be excused from performing his services due to a hurricane is reasonable, and not an objectionable use of a force majeure clause in a contract with one of these types of service providers.  Many cloud service providers would also want you to believe that it’s reasonable for them too, along with their uptime service level guarantees. Should you?

We’ll assume that your cloud service provider is providing you with a spiffy service level uptime guarantee.  If your company has done its due diligence with the cloud service provider, you’ve learned about their business continuity and disaster recovery plans to give you comfort about how the provider will handle a disaster.    You’re feeling pretty good that if there is an outage, you’ll be entitled to receive credits against the monthly service fee your company is paying the provider.

But wait – you notice that the provider has also included a force majeure clause in its contract, which may read something like this:

“Provider shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.”

So now, in the event of nearly any event outside of the provider’s reasonable control which affects the system’s uptime, the force majeure clause has just swallowed any right your company had to receive a service credit for the downtime.  Your company can avoid this problem by either negotiating the removal of this clause from the contract, or to create exceptions for the granting of service credits in the event of a force majeure event.  Careful planning can ensure that a couple of Latin words don’t destroy your company’s rights under service level guarantees.

More Stories By Dan Pepper

Dan Pepper is the managing member of Pepper Law Group, LLC, a boutique technology law firm, and has spent nearly 20 years in the information technology law field, including acting as in-house counsel for Oracle Corporation. He presents at conferences worldwide on the legal risks associated with cloud computing.

@CloudExpo Stories
Compute virtualization has been transformational, yet security policy implementation and enforcement has lagged behind in agility and automation. There are a number of key considerations when implementing policy in private and hybrid clouds. In his session at 15th Cloud Expo, Holland Barry, VP of Technology at Catbird, will discuss the impact of this new paradigm and what organizations can do today to safely move to software-defined network and compute architectures, including: How normal ope...
Can we look to the paradigm of cloud computing from a completely different perspective? In his General Session at 15th Cloud Expo, Gundars Kulups, Sales Director at DEAC, will discuss what we can learn from our dining habits when choosing a cloud solution. Gundars Kulups is Sales Director at DEAC, full service data center operator. An IT expert, he specializes in European countries and has worked in the IT industry since 1992. He graduated from Riga Technical University (RTU) in Latvia and com...
SYS-CON Events announced today that SOA Software, an API management leader, will exhibit at SYS-CON's 15th International Cloud Expo®, which will take place on November 4–6, 2014, at the Santa Clara Convention Center in Santa Clara, CA. SOA Software is a leading provider of API Management and SOA Governance products that equip business to deliver APIs and SOA together to drive their company to meet its business strategy quickly and effectively. SOA Software’s technology helps businesses to accel...
As cloud gives an opportunity to businesses to buy services externally - how is cloud impacting your customers? In his General Session at 15th Cloud Expo, Fabio Gori, Director of Worldwide Cloud Marketing at Cisco, will provide answers to big questions: Do you see hybrid cloud as where the world is going? What benefits does it bring? And how does Cisco connect all of these clouds? He will also tell us everything about Intercloud and Cisco investment on it.
SYS-CON Events announced today that TMCnet has been named “Media Sponsor” of SYS-CON's 15th International Cloud Expo®, which will take place on November 4–6, 2014, at the Santa Clara Convention Center in Santa Clara, CA. Technology Marketing Corporation (TMC) is the world's leading business to business and integrated marketing media company, servicing niche markets within the communications and technology industries.
SYS-CON Events announced today that Aria Systems, the recurring revenue expert, has been named "Bronze Sponsor" of SYS-CON's 15th International Cloud Expo®, which will take place on November 4-6, 2014, at the Santa Clara Convention Center in Santa Clara, CA. Aria Systems helps leading businesses connect their customers with the products and services they love. Industry leaders like Pitney Bowes, Experian, AAA NCNU, VMware, HootSuite and many others choose Aria to power their recurring revenue bu...
SYS-CON Events announced today that Parasoft will exhibit at SYS-CON's 15th International Cloud Expo®, which will take place on November 4–6, 2014, at the Santa Clara Convention Center in Santa Clara, CA. For 27 years, Parasoft has researched and developed software solutions that help organizations deliver defect-free software efficiently. By integrating Development Testing, API/cloud/SOA/composite app testing, and service virtualization, we reduce the time, effort, and cost of delivering secur...
The Internet of Things (IoT) promises to evolve the way the world does business; however, understanding how to apply it to your company can be a mystery. Most people struggle with understanding the potential business uses or tend to get caught up in the technology, resulting in solutions that fail to meet even minimum business goals. In his session at Internet of @ThingsExpo, Jesse Shiah, CEO / President / Co-Founder of AgilePoint Inc., will show what is needed to leverage the IoT to transform...
SYS-CON Events announced today that Utimaco will exhibit at SYS-CON's 15th International Cloud Expo®, which will take place on November 4–6, 2014, at the Santa Clara Convention Center in Santa Clara, CA. Utimaco is a leading manufacturer of hardware based security solutions that provide the root of trust to keep cryptographic keys safe, secure critical digital infrastructures and protect high value data assets. Only Utimaco delivers a general-purpose hardware security module (HSM) as a customiz...
One of the biggest challenges when developing connected devices is identifying user value and delivering it through successful user experiences. In his session at Internet of @ThingsExpo, Mike Kuniavsky, Principal Scientist, Innovation Services at PARC, will describe an IoT-specific approach to user experience design that combines approaches from interaction design, industrial design and service design to create experiences that go beyond simple connected gadgets to create lasting, multi-devic...
Until recently, many organizations required specialized departments to perform mapping and geospatial analysis, and they used Esri on-premise solutions for that work. In his session at 15th Cloud Expo, Dave Peters, author of the Esri Press book Building a GIS, System Architecture Design Strategies for Managers, will discuss how Esri has successfully included the cloud as a fully integrated SaaS expansion of the ArcGIS mapping platform. Organizations that have incorporated Esri cloud-based appl...
Dyn solutions are at the core of Internet Performance. Through traffic management, message management and performance assurance, Dyn is connecting people through the Internet and ensuring information gets where it needs to go, faster and more reliably than ever before. Founded in 2001 at WPI, Dyn’s global presence services more than four million enterprise, small business and personal customers.
Once the decision has been made to move part or all of a workload to the cloud, a methodology for selecting that workload needs to be established. How do you move to the cloud? What does the discovery, assessment and planning look like? What workloads make sense? Which cloud model makes sense for each workload? What are the considerations for how to select the right cloud model? And how does that fit in with the overall IT tranformation? In his session at 15th Cloud Expo, John Hatem, head of V...
IBM and Tencent Cloud signed a business cooperation memorandum to collaborate on providing public cloud with Software-as-a-Service solutions for industries. Both parties agreed to focus on emerging small and medium enterprises in the smarter cities and smarter healthcare industries as well as other fields. This will enable these industries to utilize mobile, cloud computing and big data tools to transform internal processes and operations, thus achieving cloud transformation in the era of mobili...
SimpleECM is the only platform to offer a powerful combination of enterprise content management (ECM) services, capture solutions, and third-party business services providing simplified integrations and workflow development for solution providers. SimpleECM is opening the market to businesses of all sizes by reinventing the delivery of ECM services. Our APIs make the development of ECM services simple with the use of familiar technologies for a frictionless integration directly into web applicat...
European data center operator DEAC is the largest in the Baltics. The activities are orientated to provide data center services and IT outsourcing on Eurasia and America scale in order to create the primary or backup or additional data center for customer in the EU, to protect its business and, most importantly, reduce costs up to 40% within 3-5 years. DEAC is an IT outsourcing services and solutions company whose highly experienced and qualified employees offer various groups of services and...
The Internet of Things will greatly expand the opportunities for data collection and new business models driven off of that data. In her session at Internet of @ThingsExpo, Esmeralda Swartz, CMO of MetraTech, will discuss how for this to be effective you not only need to have infrastructure and operational models capable of utilizing this new phenomenon, but increasingly service providers will need to convince a skeptical public to participate. Get ready to show them the money! Speaker Bio: ...
Samsung VP Jacopo Lenzi, who headed the company's recent SmartThings acquisition under the auspices of Samsung's Open Innovaction Center (OIC), answered a few questions we had about the deal. This interview was in conjunction with our interview with SmartThings CEO Alex Hawkinson. IoT Journal: SmartThings was developed in an open, standards-agnostic platform, and will now be part of Samsung's Open Innovation Center. Can you elaborate on your commitment to keep the platform open? Jacopo Lenzi: S...
The major cloud platforms defy a simple, side-by-side analysis. Each of the major IaaS public-cloud platforms offers their own unique strengths and functionality. Options for on-site private cloud are diverse as well, and must be designed and deployed while taking existing legacy architecture and infrastructure into account. Then the reality is that most enterprises are embarking on a hybrid cloud strategy and programs. In this Power Panel at 15th Cloud Expo, moderated by Ashar Baig, Research ...
Things are being built upon cloud foundations to transform organizations. This CEO Power Panel at 15th Cloud Expo, moderated by Roger Strukhoff, Cloud Expo and @ThingsExpo conference chair, will address the big issues involving these technologies and, more important, the results they will achieve. How important are public, private, and hybrid cloud to the enterprise? How does one define Big Data? And how is the IoT tying all this together?