Backup Service EULAs Warrant a Closer Look

It comes as no surprise when you read a EULA to see it disclaims all warranties and excludes all damages. But one reader recently got to thinking about this in regards to the online backup services he was evaluating for purchase. Since backup vendors are in the reliability business, would the good ones perhaps be less prone to disclaiming all responsibility? "I'm discouraged that the there is virtually no recogn

It comes as no surprise when you read a EULA to see it disclaims all warranties and excludes all damages. But one reader recently got to thinking about this in regards to the online backup services he was evaluating for purchase. Since backup vendors are in the reliability business, would the good ones perhaps be less prone to disclaiming all responsibility?

"I'm discouraged that the there is virtually no recognition of EULAs as differentiators," the reader wrote. "Consequently, companies have nothing to fear absolving themselves of responsibility for their products. This is perhaps a redundant complaint, but I was reminded of this situation in my recent search for an online backup service."

"Online backup services must be considered as a type of mission-critical application, even for non-business customers. The only reason that someone would pay for such a service is for the promise that the data will be there when it's needed, typically as a last resort. The availability of data, in essence, completely defines the service itself. Yet, all of the online backup companies I surveyed expressly disclaim any responsibility for actually delivering on the service they claim to offer. What's more, many of these companies also disavow any responsibility for keeping the customer's data secure."

The reader looked at the terms for five services: Mozy, Iron Mountain, Carbonite, Xdrive, and SOSonlinebackup. (SOSonlineback's terms of service were not to be found on its website -- always a bad sign -- so the reader downloaded a trial version and examined the EULA from it.) There weren't as many differentiators between the EULAs as he might have hoped.

The reader found that all five disclaimed the warranty of merchantability, fitness for purpose, and all damages beyond price paid. All disavowed that the product had to actually function at all except Iron Mountain, which in its warranty promises to at least try to fix bugs, and only Iron Mountain doesn't say the product is sold "as is." Mozy, Iron Mountain, and SOS disavow damages even for negligence on their part. SOS and Xdrive disclaim responsibility for making sure their product is virus-free, and SOS also refuses to be responsible for any duty of good faith or reasonable care. (From what the reader sent me, in fact, it looks like the SOSonlinebackup EULA has some very original disclaimers, so we may have to take a look at it in more detail at a later date.)