Towards a Successful ASP Agreement, Pt. 2

Where Has All My Data Gone?

Microsoft and T Mobile are currently receiving lots of bad press relating to the loss of data from users of T Mobile's Sidekick device. Because Microsoft was essentially acting as an ASP for those users – storing data for them – this event raises some interesting questions.

What happens if my ASP loses my data?

That depends on whether the data is critical to the operation of your business. If you were using thousands of Sidekicks to run a world-wide enterprise, you would probably be out of business. In a more likely scenario, if you had out-sourced complex calculations or processing of a large volume of information, you might still face a serious business interruption. Orders may not be filled correctly, or on time, trading (or reporting) deadlines might slip past or payroll checks might not issue on time.

Of course “What happens if my data is lost?” is the obvious question. A better one is “What is the appropriate response to such a loss?” While the answer is obvious – restore the data – it begs a number of questions:

Who is responsible for the restoration?
Who will pay the cost?
Where will the information for the restoration come from?

According to media reports, in the Sidekick case both the main and backup databases were lost due to a server malfunction. From that it would appear Microsoft observed one of the main commandments of computing: Back up your data. Whether the back ups were made in an appropriate manner is not clear from published reports. For example, were the main and back up files stored on the same server, meaning that one failure would interrupt access to both?

User difficulties were apparently compounded by the fact they did not have copies of their data on their PCs or their Sidekick devices. They could not simply update Sidekick from PC (or vice versa) and continue with their lives while Microsoft and T Mobile sorted things out. They had put “all their eggs in one basket,” and lost the basket.

The lessons are not new:

Back up your data
Observe appropriate back up protocols (e.g. off-site storage of back up data)
Keep your own copies, just in case

What safeguards should I observe?

The first safeguard has just been mentioned – keep your own copies. The second is to require the provider to keep its own back ups, and to observe appropriate processes and protocols. At a minimum the contract should require back ups, and specify the protocols to be observed. Failure of provider to meet these obligations should be defined as a material breach of the agreement, constituting grounds for subscriber to terminate the contract. But mere words on the page may be insufficient, particularly if the data is critical, sensitive or protected by law. After all, the ink on the page will not rise up and compel provider to perform. Even a court order enforcing the written words might come only after significant, if not irreparable, harm, has been done to your business. The more important the information is to your business, therefore, the more important it is to verify provider's data protection practices before the contract is signed, and to inspect provider's facility periodically to ensure compliance during the contract term. To avoid any doubt or dispute on the question, the right to inspect should be written into the agreement.

Yet the ASP model contains an exposure not presented by the Sidekick occurrence – loss of functionality. Users could still access the various functions of their devices, but could not retrieve their stored data. But what if the software that enabled each device to communicate with the servers had failed? What if software used by your payroll processor abruptly doubles everyone's salary?

Mitigating this exposure in the ASP context requires a bit of care. Should subscribers require their providers to have off-site back up facilities, able to begin processing in the event a disaster strikes the primary site? Absolutely, if the provider is providing services critical to subscriber's business. Again, the need for careful drafting by counsel and due diligence by business personnel rises in direct proportion to the importance of the services. If provider cannot, or will not, provide such a mirror back up site, consider creating one of your own, complete with copies of the necessary software, licensed for use in the event of catastrophic failure by provider. (Care would also be needed to define what constitutes a “catastrophic failure”.) But if subscriber is compelled to create its own emergency back up site, is the ASP investment cost effective?

What are my remedies?

“What are my remedies?” is simply a polite way of asking “What does my provider owe me?” Assuming the contract has been properly researched, drafted and enforced, the answer should be “Nothing.” A failure at provider's facilities should pass virtually unnoticed by subscriber, certainly without loss of critical information or functionality. That would be an excellent example of a contract that works. After all, even if a court eventually orders provider to hand over a sack of money equal to the value of the interrupted services, it may be too little and too late to pay for your attorneys, lost business and loss of goodwill.

COMING SOON: Part 3 - When is a warranty of 99.7% availability a bad deal?