MSP Contract - Customer Quesitons/Comments

[freedomit]

We have a Support+ MSP contract with the usual included stuff (remote,phone,onsite etc + monitoring) and have many customers already signed up to it. So I finally got round to migrating one of our very first clients over to this new contract (we started with something called Gold Support) and they have come back with a list of comments/issues. When i first started out my first contract (that they signed) was just one page long and i just wrote it myself with very few clauses. As we have grown i have used the Technibble MSP contract and a few others i have acquired and merged them into one contract, i then had a law friend quickly read it over so its better than the original but not perfect.

The main clause they have issues with is this...

6. BACK-UP AND DATA LOSS WAIVER
Any additional labour incurred in attempting to recover lost files caused by the Client not maintaining proper backup procedures will be charged at the Service Provider’s standard rates in effect at the time of service. The Client is solely responsible for their data and will not, regardless of circumstances, hold the Service Provider liable for any data loss. Data loss experienced during any procedure performed by the Service Provider will be restored from the Client’s backup, if available, to its original location at no additional charge. At no time during the recovery or maintenance procedures will the Service Provider be responsible for data loss, downtime, or loss of business.

Now there argument is that this is me washing my hands of all responsibility and liability if anything happens to there data which is there business. Should for instance the Server fail and during the restore of data I wipe the tape/hard drives and lose everything, then im saying its not my fault or responsibility. I have explained the clause it there to protect us from things like them not swapping hard drives (or losing them), or unknown issues with the backup software.

What are peoples opinion on this? Even with this clause could they sue me in the event I lost there data and it was my fault?

 

[Uf-Dah]

Anyone can sue for any reason. We don't accept responsibility for anyone's data either. We do offer bi-annual/quarterly data backup checkups where we test the data backups for recover-ability, plus we use two different imaging technologies and two different file/folder level backups, while following the 3-2-1 plan. We spell out the client's responsibilities very clearly. We can't be held responsible for acts of god, fire, flood, theft, goofy secretaries unplugging a server while it's shutting down (that one still hurts).

The services we provide are maintaining & managing a computer. We can show them how to automate the data backups, we'll even do it for them, but then we have the client's schedule the data backup checkups. If they don't schedule the check ups, that's on them.

We use a service called Calendly which ties into our working Google Calendars that show's available appointment times. Then we use Followupthen.com service to automate quarterly reminder emails that contain a link to our Calendly page with our availability and instructions, reminding them that they need to schedule these appointments.

This puts the ownership back on the client while making us look like we're going the extra mile for our clients. Plus, we stagger these throughout the quarter so we don't have a hundred people trying to schedule the same day.

 

[oldtech]

Our liability section explicitly limits our total liability to any amount(s) paid for the time period or product in question. It also includes lost or corrupted data.

Will this stop them from suing for more? Of course not but it gives us legal standing to limit the damages. Has not been raised as an issue to date. Verbatim below.

"Under no circumstances shall the Service Provider, Officers, Employees, Subsidiaries, Affiliates, Agents or Third Party Service Providers be liable to Client or any other entity for any damages, including without limitation , any indirect, incidental special or consequential damages, expenses, costs, profits, lost savings or earnings, lost or corrupted data, or other liability arising out of, or related to, the services and products provided by the Service Provider and/or its third party service provider, whether such liability is asserted on the basis of contract, tort or otherwise. In no event will any amount recoverable by the Client against the Service Provider in any action arising under or related to this agreement exceed the sum of payments actually made to the Service provider for the services found to be the proximate cause of the damage."

 

[Markverhyden]

What are peoples opinion on this? Even with this clause could they sue me in the event I lost there data and it was my fault?

Best have a quick consult with your lawyer friend to be sure. But I'm pretty sure the responsibility of the loss of data resides with the owner of the data and not the steward(s). Yes, as mentioned, anyone can pretty much sue anyone. Lawyers have no problem filing them since they usually expect to collect a go away/nuisance fee because they know the defense lawyer will demand to be paid hourly to do anything. I remember an article years ago that discussed actual case law, claims that were litigated, and the defendants almost always one. Of course if they can prove malice or willful neglect that may be different.

But do not confuse that with data breaches. That is a completely different matter. And who ever has control of the data when it is breached is responsible as I understand it.