Hurricane Sandy provided the ultimate opportunity to test how
cloud services fare in disasters, and reports indicate that cloud
services held up well.
The US Government's 'cloud first' policy paid off,
with the General Services Administration announcing that its
cloud-based email, collaboration and business systems operated
effectively throughout the event.
We have more than our own share of natural disasters in
Australia, so avoid legal disasters by checking how your cloud
service contract deals with the issues below.
'Disaster' means different things to different
There is no one-size-fits-all definition of 'disaster'.
The trigger for disaster recovery and business continuity measures
should take into account the level of downtime your business can
tolerate. For a system that processes a dozen transactions a day, a
one-hour outage may be an inconvenience. For a system that
processes thousands of transactions a day, it may be a
Your contract should deal with disasters affecting your own
premises as well as your cloud service provider. This will ensure
you get the full benefits of cloud computing – unlike some
New York businesses, whose own backup data centres were located in
the same hurricane-devastated city.
What will the provider actually do? How do you know the
solution will work?
Have you reviewed the provider's procedures and included
them in the contract? The contract should require regular testing,
dry runs and reporting, including when you make changes to your own
Where will your data go?
If you care where your data is usually held for security and
privacy purposes, it's just as important to know where it will
be backed up or transferred in case of a disaster –
particularly when privacy legislation restricts cross-border
What if disaster recovery fails?
Standard exclusion of liability clauses can leave you with
little or no recourse against the provider. Providers may try to
exclude liability for loss of data and rely on standard 'force
majeure' clauses excluding liability in case of fire, flood,
earthquakes and more. These provisions should be challenged.
What Hynes Lawyers can do
Our lawyers can assist with all transactions and disputes
concerning cloud computing. We can prepare agreements using our
extensive templates, review third party agreements to protect your
interests, or supplement standard terms and conditions such as the
Government Information Technology Contracting (GITC) framework.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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