Information Technology Reference
In-Depth Information
in a pop-up window that can be printed and saved as an html, doc or pdf file” (Leible
2006). In practice it is advisable that the Grid/Cloud provider adopts this technique
in order to avoid any doubt as regards the validity of the contract.
Finally, we want to highlight that very often the SLA or other contract drafted
unilaterally by big international technology providers state that the competent court
will be an American court, for the very fact that these companies are established in
the United States. These clauses are not negotiable and this means, in practice, that
the customer may not be able to enforce his rights due to the high cost of overseas
litigation
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, given the fact that “to decide whether to initiate a suit, a rational plain-
tiff compares the cost of the complaint and the expected value of the legal claim”
(Cooter and Ulen 2004).
7.3.2 Liabilities of the Grid/Cloud Provider
One of the most important issues for the customer is the liability of the Grid/Cloud
provider, i.e. when he will be liable and for what. The basic legal principle, if not
stated otherwise in the agreement, is that the supplier will be liable if he does not
deliver the promised services at all or if he does not achieve the contracted QoS.
Therefore, in these cases, he shall pay damages (direct, indirect, consequential, etc
according to the applicable legal framework), if any, to the customer, and the parties
can state that the provider will pay a certain amount of money in case of non-
compliance, even if the client did not suffer any real and measurable damage.
However, the application of the legal principle of liability (expressed, for
instance, by Art. 1218 of the Italian Civil Code, Art. 1142 of the French and Belgian
Civil Code, § 280(1) of the German Civil Code), can be limited by the parties in
their agreement, and this is (very usually, if not always) the case in point in the
contracts (SLAs, Customer Agreements, etc) unilaterally drafted by big interna-
tional technology providers. The customer should read very carefully the clauses
on liability and above all those regarding limitation of liability, for the very fact
that in practice the supplier can be in the position to decide if and to what extent it
is convenient for him not to respect his contractual obligations without the risk of
having to pay damages. The importance of these clauses as regards security issues
will be more specifically assessed
infra
.
Before analysing the limitation of liability frequently imposed by the big tech-
nology providers, it is important to point out that, even if no contractual limitations
are set forth in the agreement, the supplier will not be liable if (i) he did not have the
possibility to respect his contractual obligations or if (ii) the customer, with his posi-
tive or negative behaviour, made the delivery of the service impossible or extremely
difficult. In other words, if the Grid or Cloud provider cannot supply the service due
to, for instance, a power outage, Internet failures, a natural disaster like an hurricane
or a violent storm, etc - in the English-speaking countries, these facts are called 'acts
of God', and often the French expression
force majeure
is widely used - (Beale et al.
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“In America, each side usually pays his own legal costs. In Europe (and much of the rest of
the world), the loser usually pays most of the winner's legal costs.” (Cooter and Ulen 2004)
