Thomas Trappler is Director, UCLA Software Licensing, UCLA. He is the Manager (and I believe he is also the Founding Member) of “Software Licensing Professionals”, a group on LinkedIn which I am a member. Tom has a wealth of experience and his articles and commentary have been an excellent resource for me during my research on Cloud Computing and many other software licensing related topics. His current article in Computerworld entitled “The Cloud Contract Adviser: Service-level agreements” will be very helpful to those of you considering moving some or all of your computing to the Cloud.
He begins his article by breaking down SaaS, IaaS, and PaaS to its simplest terms, and that is “Service”. As Trappler points out, the key concern for the licensee should be “Uptime”. The service availability should be memorialized in the contract itself. Trappler cautions us about the vendor’s claims of 99.9% uptime. As he comments, the initial impression to the licensee to such a claim is favorable, but as the cliché goes, read the fine print. Such service availability and the vendor’s responsibility for downtime are not always computed as part of the 99.9% claims if your internet connection is lost. Also not included in the percentage is scheduled maintenance. Trappler also suggests that in the contract definition of service availability the percentage can be affected if it is measured by consecutive minutes or such downtime is spread over a certain period of time. Any or all of these components can be included in the contract definition of service availability or downtime.
Trappler’s section in his article on the remedies built into the contract is very useful. He states that this is the place where the draftsman builds in certain incentives to help assure compliance with the 99.9% uptime claims. These incentives usually come in the form of credits to be applied to future billings. I’ve been practicing law for close to 25 years and I have a particular angst when I hear my opposing counsel say something like “I’ve never heard of that before”, but I have to admit I was not familiar with one of the suggested remedies, as Trappler labels it, the reputational remedy. Apparently, one might consider including a remedy which would require the vendor to take out a full page ad in a newspaper of general circulation announcing missed service levels. A strong motivator, no doubt; but getting it into the contract itself might be a bit tricky.