04.05.2013

Review of cloud providers' standard agreements used in Germany by Bird&Bird

Somewhat older: A very interesting review of cloud providers' standard agreements by Bird&Bird, Cloud for the German Market – Are we getting there? A Rough Line Legal Comparison (pdf):

Cloud Computing raises a lot of questions as to the contractual requirements under German law. The issues around licensing usage rights, warranties and liability, data protection and exit management are core to any cloud services, be it IaaS, PaaS, SaaS, Process as a Service or any other cloud offering.
How do some of the large providers handle these issues? Do they meet the expectations of German statutory law? Are B2B users reasonably well protected? As part of the “Trusted Cloud” event of the Federal Ministry of Economic Affaires and Technology on 9 November 2012, we have compared some of the prominent offerings addressing the German market.
[...]
We do not claim to have made a full review. But our rough line analysis shows: Cloud providers are struggling to meet proper expectations against the background of German law. And those who are contracting under German law keep a considerable number of important, but unenforceable provisions in their t&c. [...]
As regards data protection issues (including “commissioned data processing agreements” [Auftragsdatenverarbeitungs-Vereinbarung], in Austria "Dienstleistervertrag") the authors conclude that "All in all, there is significant room for providers to improve their efforts in documenting data protection compliance. ..."
They come to the following Conclusion
• Licensing clauses in part not very explicit
• Warranties and liability widely incompliant with t&c law
• Conformity with t&c law poses challenges to the business model
• Data protection documentation considerably underdeveloped
• Exit terms largely underdeveloped and worrying for user’s perspective
• T&c generally to be improved – best practice yet to come 


Update 12.05.2013: Cloud Standards Customer Council, Public cloud service agreements - What to expect and what to negotiate