COMMENTARY ON MICROSOFT WINDOWS SERVICE OUTAGE
On 19th July 2024, a failed software update by global cybersecurity firm CrowdStrike, triggered systems problem that affected Windows Computers and grounded flights, forced broadcasters off air, affected train booking services and left customers without access to services such as health care and banking worldwide. Though this might be seen as a small technical glitch, its broad economic and societal impact on business enterprises that run most of their critical services online has been triggered with most entities propelled to check whether they can claim compensation for the loss incurred during the service outage period.
From a critical look at the below provisions of the Microsoft Services Agreement, it may be difficult for affected enterprises to claim compensation as they are bound by these mandatory terms of the agreement.
Clause 6 (b) on Service Availability.
We strive to keep the Services up and running; however, all online services suffer occasional disruptions and outages, and Microsoft is not liable for any disruption or loss you may suffer as a result. In the event of an outage, you may not be able to retrieve Your Content or Data that you’ve stored. We recommend that you regularly backup Your Content and Data that you store on the Services or store using Third-Party Apps and Services.
Clause 7 (b) on Updates to the Services or Software, and Changes to These Terms.
Sometimes you’ll need software updates to keep using the Services. We may automatically check your version of the software and download software updates or configuration changes. You may also be required to update the software to continue using the Services. Such updates are subject to these Terms unless other terms accompany the updates, in which case, those other terms apply. Microsoft isn’t obligated to make any updates available and we don’t guarantee that we will support the version of the system or device for which you purchased or licensed the software, apps, content or other products.
Clause 12 on Warranties.
MICROSOFT, AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SERVICES ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” YOU BEAR THE ENTIRE RISK OF USING THE SERVICES. MICROSOFT DOESN’T GUARANTEE THE ACCURACY OR TIMELINESS OF THE SERVICES….
Clause 13 on Limitation of Liability.
If you have any basis for recovering damages (including breach of these Terms), you agree that your exclusive remedy is to recover, from Microsoft or any affiliates, resellers, distributors, Third-Party Apps and Services providers, and vendors, direct damages up to an amount equal to your Services fee for the month during which the loss or breach occurred (or up to $10.00 if the Services are free). You can’t recover any other damages or losses, including direct, consequential, lost profits, special, indirect, incidental, or punitive.
Clause 14 (b) (ii) on Service-Specific Terms.
Microsoft will automatically check for and download updates to your applications, even if you’re not signed into the relevant Store. You can change your Store or system settings if you prefer not to receive automatic updates to Store applications. However, certain Office Store applications that are entirely or partly hosted online may be updated at any time by the application developer and may not require your permission to update.
Clause 15 on Binding Arbitration and Class Action Waiver
If You Live In (or, If a Business, Your Principal Place of Business Is In) the United States. We hope we never have a dispute, but if we do, you and we agree to try for 60 days, upon receipt of a Notice of Dispute, to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury.
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