Among the elements for which a party (usually the provider but, in some circumstances, the customer) has an indemnification obligation in cloud computing contracts are usually: what forms of cloud computing contracts are normally accepted in your jurisdiction, including the supply chains of cloud providers (if any)? Customers typically want their data backed up by the cloud provider, with an overview of the process and geography that backup entails, and obligations (i.e., safeguards) in terms of frequency, recovery point, recovery goal, and regular recovery testing. As a general rule, upon termination of the contract, cloud providers are required to immediately return all data to the customer in an agreed format (preferably a standard format) or to confirm in writing the destruction after the data has been returned and the customer confirms that the data is accessible. During a traditional software license or hardware purchase, the vendor installs the software or equipment in the customer`s environment. The customer can configure the software or hardware to meet their specific business needs and retain control of their data. In a cloud computing environment, the customer`s software, hardware, and data are hosted by the provider, typically in a common environment (i.e.: Many clients per server), and the software and hardware configuration is much more consistent for all clients. As a result, the customer`s top priorities shift from configuration, implementation, and receipt to service availability, performance (i.e., service levels), and data security and control. However, as with a typical software license agreement or hardware purchase agreement, provisions such as insurance, indemnification, intellectual property, limitations of liability, and warranties remain important. You should continue to think about the cloud provider`s ability to fulfill investigation obligations and disputes if the data held by the service provider is requested as part of a lawsuit or investigation. If so, the agreed process should be included in the agreement. When there is development or adaptation work, the parties usually negotiate property rights.
As a general rule, the customer owns all rights, title and interest in all work products created especially for the customer under the agreement, and the seller will designate the customer as „the person for whom the work is prepared“ and will qualify the work product as „temporary work“. Seller must also assign to the Customer all rights, title and interest in and to such Work Product if a Work Product does not meet the legal requirements of being a „rental factory“ and provide other assurances from it and its employees, to the extent necessary, to transfer ownership rights to the Customer. Typically, the vendor also licenses one of its core technologies used in the work product. In the United States, it is customary to choose, as the law of a B2B public cloud contract, the law of the state in which one of the parties, typically the provider (i.e. where the party has its registered office or headquarters) is located. As a general rule, the current provision also contains a specific statement that the choice of law principles of that State should not apply. This statement is important because, in the present circumstances, the principles of legal choice of one State may require the application of the laws of another State, which would undermine the intention to choose the law of the State. It is also customary to include an explicit statement that the UN Convention is not applicable, usually because the parties are more familiar and familiar with US case law. As an alternative to the law of the State in which one of the parties is located, the parties may choose the law of a neutral State. .