You might see the “force majeure” clause in quite a few different contracts in your lifetime. This clause is essentially an “act of God” clause, spelling out that neither party is liable if something beyond human control is involved. This might be inclement weather, war, a riot, or even a crime.
This might work well for the majority of services out there, but what about your web host? Yes, it makes sense for the contractor working on your roof to take the day off due to pouring rain, but your cloud host? Really?
That Tricky Force Majeure
Your dirt cheap hosting provider has an excellent up-time guarantee. You chose them for that exact reason. In fact, you made sure to scrutinize this dirt cheap hosting provider. You know all about how they operate, even how they react in disasters. In fact, this is why you decided to sign on with them. Per their agreement, for example, you know that if there is any downtime, your company will receive credits to go towards next month's service charges.
Then, you stumble upon the fact that dirt cheap hosting provider has a force majeure clause. Normally, it will say something to the effect of:
“Provider shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.”
So all of those disaster recovery credits you were promised by that dirt cheap hosting provider are almost like a myth. With all of the events listed above (it seems they've really covered the bases for just about any disaster, haven't they?), the truth is, you probably won't ever receive any credits whatsoever if you experience downtime that is out of you or the provider's hands.
What You Can Do
So now you realize your dirt cheap hosting provider probably wasn't the best choice after all. Is there anything you can do in the future to prevent against this?
- Read all the fine print. When you choose a hosting provider, you should read the fine print very carefully. Try to find a hosting provider that does not have a clause like this whatsoever. If you like a company that has a force majeure clause and want to consider them, go through the force majeure clause to see how they define it. Anything listed should be out of the providers control. In some cases, you might see a clause that includes labor disputes or supplier non-performance. This is cause for concern, and should be avoided if possible.
- Negotiate to remove the clause from the contract altogether. Sometimes, if you push hard enough, you can get them to remove the clause just to get your business. You might not succeed in removing it with a dirt cheap hosting provider, but it doesn't hurt to try.
- Negotiate to alter the clause. If your dirt cheap hosting provider doesn't want to remove the clause entirely, you can ask that they at least grant service credits in the case of a force majeure.
Doing your due diligence includes reading all fine print prior to signing with any dirt cheap hosting provider. There are numerous options, so don't settle on something you'll regret in the long run.
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