Bound by the terms of use
When working with many different parties in BIM, for example, remote access is crucial for good collaboration. Builders enter into a license and usage agreement with the Cloud service provider and then gain access (from anywhere) to software in the Cloud. The license and usage terms include the rights and obligations of the buyer (the builder) and of the Cloud service provider. Often these terms are non-negotiable or very limited. Nevertheless, it is important to have a clear understanding of the risks of the terms and conditions before accepting them. That way, a conscious decision can be made to take certain risks.
Bring the risks into focus
Some important aspects to examine are:
Uptime
Software availability is critical to the progress of a construction project. But what if the software is unavailable for days or even weeks? These are important questions when assessing uptime. Uptime represents the number of hours the software should be accessible in the Cloud in a given period of time. A guarantee of 100% uptime will actually never be possible because access must be restricted in a certain period of time, for example, due to software maintenance. Also, access to the Cloud may be (temporarily) impossible due to an outage. So check how much uptime is guaranteed and what consequence (such as a contractual penalty or a discount) is attached to not achieving the promised uptime.
Cybersecurity
Whereas the physical construction site is neatly locked down at the end of the workday so that unwanted guests cannot access it, little thought is given to this for the digital construction site. This may stem from the misunderstanding that users assume that the Cloud service provider has secured the software. This is not necessarily the case: it depends on the agreements made and what the parties could expect from each other. It is therefore important to make clear agreements about which party is responsible for security. If there are no (clear) agreements about this, in principle the user bears the risk and therefore the liability.
Should the Cloud service provider not take care of cybersecurity, look into claiming the SME cybersecurity grant. This subsidy is available to companies with up to 50 employees and an annual turnover of at least €10 million. The grant can be used to purchase resources that better protect the company from digital incidents.
Backups
It is important to determine whether the Cloud service provider periodically backs up the construction project data, or whether backups must be made in-house. Due to a failure, all construction project data not stored outside the Cloud can be lost. A backup is therefore of great (financial) importance. Keep an eye on who is responsible for backups and act accordingly.
Liability
If a construction project stalls or delays, it causes damage. The question then becomes whether the damage is recoverable from the Cloud service provider if the inaccessibility is not resolved in a timely manner. The Cloud service provider's liability for loss of data or violation of minimum uptime is often limited or even completely excluded in the license and terms of use. It is therefore important to assess the (financial) risks of this prior to entering into the contract and to include this risk in the decision on whether or not to enter into the agreement.
Tips for practice
In practice, working in the Cloud is desirable and necessary so that all parties can easily collaborate digitally (remotely). When working in the Cloud, it is important to identify (at least) the following risks:
- How much uptime is provided and what is the penalty for not achieving the agreed uptime;
- What arrangements have been made for security;
- Which party is responsible for making backups;
- To what extent has the Cloud Service Provider excluded its liability and is this limitation of liability acceptable.
Be aware of the risks of working in the Cloud and digitization so that the only "bugs" you encounter are of the digital kind.
