December 19, 2012
By Zenith Infotech 1
Our 10th and final point, “Force Majeure,” is your catch-all phrase that has a solid basis in most contracts. In light of recent events, such as Superstorm Sandy, this clause could save your business!
Disclaimer: Take these as basic starting templates and get local legal advice, as local jurisdictions may require specific changes.
Force Majeure? Wikipedia defines Force Majeure as:
“ … a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term act of God (such as hurricane, flooding, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract. In practice, most force majeure clauses do not excuse a party's non-performance entirely, but only suspends it for the duration of the force majeure.”
This is the “catch-all” section that can get you out of conflicts when the major, all-encompassing acts occur. You should work with your local attorney to put the appropriate clause into your contract(s).
So I am off the hook, right? No! What it really does is put a suspension on what you must deliver. If the only copy of its data a company had was onsite and it had “opted” out of your offsite disaster recovery program, then they are out of luck!
However, if you have a copy offsite (and outside the Force Majeure area), you still may be obligated to respond to requests for restoration of critical servers, even though your own business is gone.
Therefore, make sure your Force Majeure clause covers your ability to respond, as well. You need to consider the logistical issues of your ability to perform when under Force Majeure.
Bottom Line: There are a lot of things to think about contractually (and practically) from a backup perspective. I sincerely hope that those of you who read this take some time to sit down with your local attorney and make sure your contracts cover you and your business properly. (If your local attorney has never reviewed a technology contract, now might be the time to find someone who has this experience.)
If you have enjoyed this series, tell others about it; if not, don’t tell anyone! Good luck as you continue to move forward with your business.
If you are interested in finding more about Zenith’s TigerCloud with built-in business continuity, click HERE.
Rich ReifferRich Reiffer is VP of Cloud Practice at Zenith Infotech. Rich has been in the business of technology since the dark ages starting with Burroughs Corp., spending time with Steve Jobs (NeXT) and Ray Noorda (Novell). Rich has been in the VAR channel since the mid 80's with companies like Inacomp and Businessland finally forming his own company, Trivalent, in 1991. After 20 years of building data centers, etc. Rich has come on board with Zenith to head up the Cloud group. Monthly guest blogs such as this one are part of Talkin' Cloud's annual platinum sponsorship.
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