Cloud Computing and Its Agreement for Turkish Legal System

What is Cloud Computing?

Cloud Computing is the general name of internet-based information services for computers and other devices, providing computer resources that can be used at any time and shared between users. Cloud computing is not a product in this aspect, it is the service. Providing the sharing of software and information in the main source, it is used the IT service via computers and other devices over the Internet / IT network.

Cloud Computing Agreement

The parties to the Cloud Computing Agreement are service providers and users. The Cloud Information Agreement is a type of contract that is not specifically regulated by the law. Although a technological service structure which is constituted the sphere is offered, it will not be the right approach to qualify this type of contract as a service contract.

Similarly, the general storage agreement issued in article 561 of the Turkish Code of Obligations No. 6098 (TCO) also cannot fully meet the specifications of the Cloud Information Agreement. Even if the concept of portability is interpreted to cover the data stored within the scope of cloud computing, As a matter of fact, in ‘General Storage Contracts’ where a movable property is protected in a safe place, this regulation, which is included in the scope of TCO, is not in a level to meet the needs arising from the cloud information contracts legally. In some cases, various contractual provisions (such as the lease agreement, contract of work and attorney agreement) may be required to implement the Cloud Agreements. Therefore, it is possible to say that the Cloud Computing Agreement is a type of contract (sui generis) which is a combined or mixed type in which the elements of more than one type of contract come together with the will of the parties.

Points to Consider in the Cloud Computing Agreement

In the Cloud Computing Agreements, it is essential to surely included to the matter which is formed under the following issues;

• Personal Data Protection and Data Transfer:

The security of the data stored under the Cloud Computing Agreement is one of the most fundamental issues in the field of Cloud Computing. At this point, it is necessary to give detailed information about the consent of the transfer of the data to the service providers and data centers, the consent for the processing of the data, the conditions for the transfer of the data to the official authorities. In this context, in the preparation of the Cloud Informatics Contracts, it is necessary to act in accordance with the Law on the Protection of Personal Data No. 6698. On the other hand, if one of the parties to this contract is a company. Board members and supervisors have the authority to access data and they should be carefully evaluated and regulated in the context of ‘’the audit of joint stock companies’’ which is formed in Article 401 of the Turkish Commercial Code No. 6102.

• Risk and Liability Insurance:

Due to the nature of cloud computing services, there are always risks such as system failure, slowdown, loss of performance or loss of data. In such cases, the responsibility issue also comes into play. As a precaution against such circumstances, liability insurances can be made by service providers, in particular with regard to the liability insurance provisions of Article 1472 of the Turkish Commercial Code No. 6102.

• Responsibility Relationship:

The Cloud Computing service can also be received by end users through sub-service providers. In such cases, the direct or indirect responsibility relationship between the Cloud Computing Provider and the sub-service providers must be determined in absolute terms. In cases where the Cloud Computing Agreements are prepared as a model contract or general transaction requirement, irresponsible agreements that eliminate or limit the responsibility of service providers are found. But these provisions are deemed  invalid against the provisions m. 115 and m. 116 of TOC.

• Confidentiality:

The confidentiality provisions found in many types of contracts are of great importance, particularly in terms of Cloud Computing Agreement.

• Applicable Law:

Especially in the Cloud Computing Agreements; the data storage location, the backup center, the service provider center, the residence addresses of the parties often may appear in more than one country. In many instances, even where the data is stored does not exist on a single country, and the data for a single user can be scattered across centers in more than one country. Therefore, it is of great importance to decide on the law to be applied in the Cloud Informatics Conventions which have a majority element of foreignness.

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