Information Technology Reference
In-Depth Information
tiations.
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This statement is clearly unrealistic given the fact that, in most cases, the
Grid/Cloud provider is a big international player and the customer might be an
SME or even a micro-enterprise. The latter, of course, will have little or no power
to negotiate more favourable clauses and the only option is to sign or not to sign
the contract drafted by the technology provider. Nevertheless, the customer should
check whether this contract is too risky, in the sense, for instance, that the provider
does not take any liability and the customer does not have the right to enforce the
contract, or the scope for such enforcement is very limited.
This means that the non-legal categories of trust and reputation will play a
pivotal role and will guide potential investors to opt for a Grid or Cloud provider
instead of its competitors. Trust and reputation, although very important, are not
enough: the customer, in other terms, does not have to be impressed by the brand
of the Grid/Cloud provider but should verify whether he gets enough protection
under the contract offered to him. Things are different, of course, if the parties are
in the position to really negotiate the content of the agreement(s), and in this situ-
ation they should balance risks and liabilities between them. It is advisable that
the contract(s) is as complete and balanced as possible, in the sense that it should
encompass possible situations like non-compliance, litigation, etc and should moti-
vate both parties to respect it.
In other terms, a contract which is too unbalanced in favour of the provider, for
instance, is likely to offer him reasons not to supply the services at the promised
quality and to favour bigger and/or more 'important' clients. Selection and differ-
entiation between clients is an obvious practice from the business perspective, but
it should not damage or discriminate against a certain group of customers. The law
and economics literature showed, in fact, that one of the purposes of contract law
is “to secure optimal commitment to performing” and, in particular, that “when
liability is set at the efficient level, the promisor will perform if performance is more
efficient than breaching, and the promisor will breach if breaching is more efficient
than performing” (Cooter and Ulen 2004).
In light of these considerations, the first issue to address regards the contracts
made by a Grid or Cloud provider and a customer to regulate their business relation-
ship. Special attention will be dedicated to the Service Level Agreement (SLA) and
to its potentially related agreements.
7.2 The Contractual Relationship between Grid/Cloud Provider and
Customer: the Contract
The provision of Grid or Cloud services by a technology supplier shall obviously
be regulated by a contract, or a group of contracts, that will govern the specific
1
The literature pointed out, as regards civil procedure (but the statement is true also as
regards other legal issues), that “because the consumer is the weaker party, who often pays
in advance for the transaction to take place and cannot influence the unilateral terms of
contract that are offered, the balance in relation to jurisdiction leans towards the consumer.”
(Storskrubb 2008)
