Friday, January 15, 2010

SLAs for Microsoft Public Clouds Go Private with NDAs

• Update 1/15/2010: Gavin Clarke asks “Bad choice of words?” in his Microsoft plucks Azure SLAs from cloud of secrecy article of 1/15/2010 for The Register (see below)

On or about 1/13/2010, Microsoft’s new Server & Cloud Division hung a veil of secrecy over the following agreements for Windows Azure Platform components:

To download from the public Internet or read any of these agreements, you must agree to the following:

The Service Level Agreements (“SLAs”) posted on this site are the confidential information of Microsoft. You may view the SLAs if you have purchased or are considering the purchase of Online Services from Microsoft. You agree not to disclose the SLAs to any other third party or to make use of the information for purposes not related to the your purchase or prospective purchase of Online Services from Microsoft. By downloading or viewing this document, you agree to these terms.

or the equivalent in Japanese, Spanish, German or French versions. Surprisingly, a Chinese version of the agreement is missing from the download pages.

Designating the guarantee of availability of a service offered to the public as “confidential information” appears to be to be momentous over-reaching. Further, Microsoft’s Senior Directory of Business Strategy, Dianne O'Brien, presented a session entitled The Business of Windows Azure: What You Should Know About Windows Azure Platform Pricing and SLAs at the Professional Developers Conference in October 2009. At 00:24:00, Dianne outlined the SLAs for five services with this PowerPoint slide:


In her narrative, Dianne noted that failure to comply with the SLA uptime percentages would result in a 10% or 25% discount on the monthly billing for the element, depending on the degree of the failure.

Wikipedia’s definition of a non-disclosure agreement (NDA) or confidentiality agreement, based on English law, is here. I am not a lawyer (IANAL), but the “agreement” appears to me to lack several common attributes (from the Wikipedia article) of NDAs that I’ve signed for pre-release software:

The exclusions from what must be kept confidential. Typically, the restrictions on the disclosure or use of the confidential data will be invalid if

  • the recipient had prior knowledge of the materials;
  • the recipient gained subsequent knowledge of the materials from another source;
  • the materials are generally available to the public; or
  • the materials are subject to a subpoena. In any case, a subpoena would more likely than not override a contract of any sort;

The term (in years) of the confidentiality, i.e. the time period of confidentiality;

The term (in years) the agreement is binding;

Unless the SLAs’ terms have changed substantially since PDC, which event(s) Microsoft should disclose publicly, it would appear that anyone who attended Dianne’s session or listened to the video segment would have “prior knowledge of the materials.”

The only motive I can attribute to Microsoft’s desire to seal the SLA terms is an attempt to prevent comparative reviews of SLAs for public cloud computing offerings. The NDA requirement will undoubtedly be an EPIC #FAIL and an embarrassment to the newly minted Server & Cloud Division.

I won’t be downloading the SLA documents until Microsoft removes the NDA requirement.

Update 1/15/2010: Gavin Clarke reports Microsoft plucks Azure SLAs from cloud of secrecy:

Microsoft will revise the wording on its Azure cloud service level agreements (SLAs) following a trip into a Kafkaesque world of secrecy.

The company promised The Reg that it will update the wording on the site for its Windows Azure Compute, Azure Storage Service, SQL Azure, and AppFabric Service Bus and Access Control services, after a change that meant you had to agree not to tell another soul about the contents of the SLAs before you could even download or read the SLAs.

Roger Jennings of the OakLeaf System blog flagged up the change here.

The wording led Jennings naturally to speculated about why exactly Microsoft was pulling its SLAs back behind the iron curtain, when other cloud providers like Amazon (here and here) are open and upfront about their SLAs. Indeed, it's considered a positive plus to publish your SLAs so potential customers can make an informed choice and potentially use your service.

"Designating the guarantee of availability of a service offered to the public as 'confidential information' appears to be to be momentous over-reaching," Jennings wrote.

A Microsoft spokesperson told The Reg the Azure SLAs are not bound by an NDA, only individual customer SLAs that differ from the general SLAs. She said Microsoft world clarify the language on the website Friday and thanked Jennings for pointing out the issue.

The spokesperson was unable to explain how, or why, the wording appeared.

I’m surprised not to have heard from Microsoft’s “spokesperson”.

As of 1:13 PM PST Friday, only the Windows Azure Compute Service Level Agreement (SLA) download page had the NDA wording excised. The other three download links threw custom ASP.NET error pages.


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