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2.3.5
Specific contract considerations
Cloud Computing contracts may, from a legal point of view, not constitute a
new, separate type of contract. However they have some characteristics,
which need to be taken into consideration when drafting a contract.
Vendor Lock‐in
An aspect which is rarely taken into consideration when drafting a contract
is whether one can, at a later date, change the Cloud provider or whether
this is not economically achievable, e.g. due to excessive migration costs,
whether one is more or less bound to a Cloud provider for good (vendor
lock‐in). In contrast to changing a manufacturer or supplier, when changing
a Cloud provider, it does not suffice to merely cancel the contract and look
for a new provider. In addition, it is important to consider if all data,
including historical transactions need to be transferred from the previous
provider to the future one, and if the same applications functionality and
usability of the transferred data needs to be assured by both parties
involved in the transition of the service.
To avoid a vendor lock‐in it is therefore essential to either formulate the
technical requirements with a view to open standards.
Availability of data
Availability is usually presented as a percentage of availability within a
contractually agreed period. Assurances beyond the 99%‐mark are common.
However it should be noted that these numbers are usually based on at
least one of two factors. Firstly the wide geographic dispersion of the data
and/or the measuring of availability only up to the borders of the server
centre. However, most respectable Cloud service providers are much better
connected to the power grid and the internet than any customer, as is it
preferable for such connection problems to occur on the user’s side than
the provider’s.
Cancellation of contract
For most lawyers it is highly unusual to stipulate detailed provisions
regarding the cancelation of a contract, apart from periods and reasons,
when drafting a contract. This is however essential for any Cloud Computing
contract, just as is the case with IT Outsourcing in general, in that the user
will divest often an important, and sometimes indispensable part of his
business with the external service provider. The data and applications
migrated into the Cloud must therefore be either transferred back to the
user or to another provider upon cancellation of the contract. Therefore
