Brad Gross of Law Offices of Bradley Gross

[00:00:02] Hello, ladies and gentlemen welcome to an August 22nd edition of the MSP Initiative MSP Talk

[00:00:10] Not in my normal days, but that's okay. I know what's going on MSP initiative dot com

[00:00:15] That's where you get to find everything that we do including a recording of this very session and every other session

[00:00:20] We are about you will find that on the discussions tab of MSP initiatives commas

[00:00:24] As well as our YouTube page and our podcast capture and audio video, you know all of it

[00:00:29] In download subscribe share forward. You know what to do definitely get it out there because we like to do these for you

[00:00:36] Also an MSP initiative dot com is the MSP community minds event. We did one of these back in Nashville early in the year

[00:00:43] And we are coming up to our second MSP community minds which is entirely educational event just for IT men services companies in Denver

[00:00:51] 25 and 26 so literally not 39 99

[00:00:56] 99 1299 how about zero other than you have to get there, which I understand takes time and money

[00:01:01] But what else do you have to do if you need a fan watch from down the street get a take time and money to you

[00:01:06] So it's entirely education focus. We have MSP panels with people like you who have figured a thing or two out

[00:01:12] They may help you and

[00:01:14] Experts let the person we're going to be talking to today in this session

[00:01:17] We're going to actually do more than a 45 minute death by PowerPoint trying to sell you something with the credit card

[00:01:23] So I put the end of it. They're going to take a two hour workshop and actually get through something with you which

[00:01:30] Is more than you probably got an almost every conference that you probably go on to so

[00:01:34] MSP community minds Denver

[00:01:36] 25 26 check it out again totally for you totally educational what he got to lose other than you don't want to learn anything

[00:01:43] That's cool. You can network we do that too

[00:01:45] Then we have five not two not four but five remaining. Oh, that's right

[00:01:51] We just finished one of those five last night

[00:01:53] So if she came out to our teenage and Sydney last night in

[00:01:58] Darling Harbor in Australia. We hope you had a great time. I saw the photos. I wish I was there look like a blast

[00:02:04] Where cargo bar and

[00:02:06] Looks like we've be we brought our fame in

[00:02:10] Block party digs and made it happen down under however

[00:02:13] We have one more of those to stand stay tuned for the rest of the year. We have the remaining four

[00:02:17] That's right for block parties remaining one fact day beyond Berlin so if you are headed to

[00:02:24] Germany will be we'll be doing one there then we have data con in Miami

[00:02:29] So if you headed to the fountain blue on South Beach we're doing one there

[00:02:33] Then we have

[00:02:34] I teenage and connect which is the big one we'll do every year and you know we usually bring a radio recognizable artists

[00:02:40] We will announce one soon stay tuned but that is scheduled for this year and then remember

[00:02:46] I said we're coming back to Sydney we'll be closing out the year in November

[00:02:49] In Darling Harbor bunny enough at the same hotel than you or right next door

[00:02:55] At data con Sydney which will close out the year. So if you like something that working

[00:03:01] Maybe a few beverages and some food

[00:03:04] Offer free all for you them a spade then you could head over to MSB initiative a calm go to block parties register

[00:03:10] ahead of time so we offer remind you as you're standing in front of the door one of these places

[00:03:15] We also have

[00:03:17] Some deals and offers that are sitting on the webpage if you can take advantage of them and the industry calendar goes until that very end of the year

[00:03:24] Which if you haven't been out in the road September October November of any year

[00:03:28] Like forget the COVID years, but every normal year that's when like we call it the gauntlet in IT MSB land because everything is happening at once

[00:03:36] And if you didn't want to be home for three months

[00:03:38] You could actually not be home for three months

[00:03:41] So that is all of the house keeping an MSB initiative calm

[00:03:44] You can go check it out. I usually share my screen but not in the normal place so

[00:03:48] Go ahead and check it out on your own looks like we already have a question will you have Elvis in the Cowboys cheerleaders

[00:03:54] I know who that's from Keith now said I will have neither the Cowboys cheerleaders or Elvis because nobody knows where Elvis is but

[00:04:01] Some suspect he's still on

[00:04:03] So without further but Keith Keith should feel free to come and dress as a cheerleader if he wants I mean that's you

[00:04:12] And don't put it past them

[00:04:14] Over all of this

[00:04:15] Or else

[00:04:17] Without further do we bring somebody who's been on this podcast many

[00:04:22] It's talking about many of thing and hearing me rant about my George is them from time to time although he does build me for that that time sometimes

[00:04:31] Here is the IT channels

[00:04:34] Probably most famous in well-known attorney in our fan box at least mister Brad Gross

[00:04:40] How you doing today? Thank you George doing well doing well so

[00:04:43] It looks like you're in a asylum right now

[00:04:46] With that background there

[00:04:48] You got the exit sign the light. That's good

[00:04:53] It's a death and a place where I can sit down and do this so that's yeah work work from anywhere

[00:04:57] That's it. I'd be proud of you if you're at an asylum. That's fine

[00:05:01] That's fine. That's fine. I might be cool kind of cool right?

[00:05:04] Except if you're the guy inside the padded room. Yeah, well that's true

[00:05:07] Maybe that would be a problem

[00:05:09] Not not to go too crazy down that bad

[00:05:12] So we break so Brad other than had it been around for a long time and in our industry was also at not

[00:05:19] One but two MSP community minds events one last year and Denver now now now we go back to Denver

[00:05:26] We'll be joining us September 25th 26 and

[00:05:30] It's written and I'll tell you why I'm gonna cut you off and tell you why it's a great event. It's a great event because you're giving

[00:05:39] Speakers including me the time and the venue to actually delve into things

[00:05:46] That you don't otherwise have time to delve into when you're only given a 40 minute time span right?

[00:05:51] We're even a one hour if you know, it's a me you know one hour by the time you're introduced and you take questions and so on

[00:05:58] It's really like 40 minutes

[00:06:00] And while that's okay in some circumstances if you really want to get into

[00:06:06] In depth questions really the kind of hard hitting

[00:06:11] You know this is what's keeping me up at night

[00:06:13] And I'd like to talk about it not just with you, but others in the room and collaborate

[00:06:17] Well then you need more time and that's what you've done. You know you've given everyone

[00:06:22] Like you said two hours to jump in and just

[00:06:26] Tackle things head on in a substantive way so I think it's a great event and I'm happy to participate

[00:06:32] Then and thank you for having me

[00:06:34] No, thank thank you for you know spending a little bit of time with us now

[00:06:37] In these two day you know

[00:06:40] Many my events you get it Brad those two two hours so if you want to four hours the Brad

[00:06:45] Which I know what his bill of all rate is won't share it here?

[00:06:48] That's not cheap. I think you should take advantage of it if you can get it

[00:06:52] Which funny enough our friend Keith Nelson has asked the question he said can we engage Brad to evaluate a

[00:06:58] Contract in MSA written by another attorney that was supplied by a client

[00:07:02] Of course that's what we do all the time right and it's interesting that I

[00:07:07] You know you assume sometimes people assume that when they send in contracts for us to review

[00:07:13] They're oh we're gonna mark it up. We're gonna destroy it and so on

[00:07:16] I've stopped trying to predict what the future holds

[00:07:19] I have received contracts from

[00:07:22] From clients when they say you know and attorney wrote this so it's probably pretty good you'll just review it

[00:07:29] Okay, and it turns out to be the big piece of junk you guys. I'm just horrible

[00:07:33] Okay, usually because the attorney doesn't understand the industry but that's another story

[00:07:39] Then sometimes we'll get contracts from people that will say lists and I piece this together from this place in that place in this place

[00:07:46] And I'll look at it. I'll think what you know what this is pretty good. This isn't so bad

[00:07:50] So yes Keith send it on through or call me contact me

[00:07:54] We'll we'll take care of you and we'll see maybe it's a

[00:07:59] Horrible piece of a authorship or maybe it's not so bad

[00:08:03] Or if you had your contract written by chat GPT then you could definitely have it

[00:08:09] Chat GBT. Yes, there's a lot of stuff on AI right now going on about

[00:08:15] Implementing chat GBT into your

[00:08:18] Your your company lawyers are being pitched for chat GBT all the time as well and

[00:08:23] Oh we could talk about chat GBT if you'd like just for a while

[00:08:27] I mean listen, I've seen things passed by my mailbox where

[00:08:32] The chat bot of the company gives the wrong information which led to a lawsuit and they were the person who brought the lawsuit

[00:08:41] what the

[00:08:43] The information that's being offloaded to the AI system

[00:08:50] You never got permission to offload it to the third party who now has

[00:08:55] Prop up that data and now that data could be out in the ether like everything else on the internet and not private

[00:09:00] And also like there are you know

[00:09:04] Every time we talk about technology the law always is behind the rate of change of technology

[00:09:11] Yes, I'm disputed right yeah, but

[00:09:15] And I'm all for the next this thing the next three years is gonna be the AI just revolution

[00:09:21] You know like you know back in the industrial revolution. It'll be the AI revolution. Okay, that's great and like I'm all for bleeding edge cutting edge efficiency

[00:09:31] all that jazz but

[00:09:35] What you know do you put yourself even unknowingly?

[00:09:39] Which is usually what happens you didn't realize you're in a bad place in

[00:09:42] Farm away by adopting this and putting your data and your customer data through it and then all of a sudden a year from now we found out

[00:09:51] Oh, well, you know that was effectively like leaving your front door open and you just if you know put it online for the world

[00:09:56] Yeah, so it's a great point that you bring up in fact. I'm I was aiming for a different way of looking at the AI

[00:10:02] But let's hit yours first

[00:10:04] You know if you actually look at the privacy policies the terms and conditions and so on of all of the major AI platforms from Google from

[00:10:12] Microsoft and so forth what you'll find is that there's a very there's a chance

[00:10:17] I'm not gonna say very good chance that that's disingenuous, but there is a chance that the data that you enter into the AI model will end up in somebody's

[00:10:26] Else's AI results and there are ways to shut that off

[00:10:30] Okay, there are ways that you can go into the control panel of each AI model and

[00:10:35] Turn it off so the risk of that happening has been mitigated

[00:10:39] But most people don't know that so you're right a lot of people are entering in data into AI models right now

[00:10:45] Not understanding that at some point there may be a reckoning in which you're gonna see that data in somebody else's

[00:10:52] AI results

[00:10:54] Yes, you know if you're using it for that

[00:10:57] way of doing things right now

[00:10:59] I suggest you go into the control panels turn off and you could Google do a search for how to turn off the data sharing aspects of

[00:11:08] I have of co-pilot whatever you're using and I suggest you do it for sure

[00:11:14] You know money go ahead

[00:11:16] So so the other example was the company getting

[00:11:19] Dude by their customers because the pot like was an airline actually

[00:11:24] The example was an airline their policy was one thing somebody went on to their website

[00:11:29] It forced them into a chatbot and the chatbot gave them an empowering information to the policy

[00:11:35] Which then resulted in loss right financial loss to the customer

[00:11:40] The customers like while your system pulled me the in-actored information here's what's in writing

[00:11:46] Here's what's your term say here's what your chatbot said and now I'm out and their airline kind of struggling said

[00:11:52] Oh, well, well turn into a lawsuit that they'll also bear it

[00:11:55] Right there is definitely an

[00:11:58] In congruence there's a dissonance between

[00:12:02] How companies are implementing AI and their policies and procedures that they were following prior to the AI

[00:12:08] Implementation and so which we're finding is just exactly what you're talking

[00:12:11] What you're saying that that dissonance at disconnect is causing

[00:12:16] mismanaged expectations

[00:12:18] Information to be leap where it shouldn't be and that causes liability

[00:12:22] So you know again, I'm not saying that the AI

[00:12:26] Technology in the revolution is uh is not going to be upon us

[00:12:31] But what I am saying is that it should be taken in steps not just I'm gonna jump into this pool and go all in

[00:12:38] Don't go all in so quickly because you still need the foundation to support it from a legal perspective

[00:12:43] From a logistics perspective from a data sharing and privacy perspective for sure

[00:12:49] So what happens if you know we've seen PSA's arm m different tools in the MSP IT industry who

[00:12:57] Have added functionality right like hey you can ask the AI chat to be to write a script three arm m

[00:13:04] It was good, but we you can truly do it. They now offer that

[00:13:08] I'm still like now all of a sudden or hey now I'm gonna start taking all of my ticketing data

[00:13:13] I'm gonna rout it through some AI engine that now has all your notes all your communication and maybe

[00:13:18] Fastwords in there which maybe not the best way that's share fastwares, but maybe they're in there and then like what about the people who are like

[00:13:26] I'm suing you because you took my data that I understood to only be between me and you

[00:13:31] And you're now sending it to a third party without mine. I know and I didn't give you permission to do that

[00:13:36] Now what happens in that situation

[00:13:38] So the problem about is exactly what we were what I was implying earlier about the legal ramifications of using AI

[00:13:46] You know

[00:13:48] MSPs any any industry

[00:13:50] Any any any service provider, but

[00:13:53] Obviously we focus on managed service providers MSPs TSPs

[00:13:57] They would be well advised

[00:13:59] Okay to update all of their service agreements and they're they're the customer facing documents if they're

[00:14:06] Thinking about doing exactly what you just said implementing AI solutions because there are no enriscs

[00:14:12] And then there are unknown risks and all which at least should be discussed with the customers

[00:14:16] This idea by the way of an MS people saying well, you know what this is great

[00:14:22] I'll update my document and I'll post it and that's it

[00:14:27] Right to that's it. I'm just gonna update my document. I'm gonna send them all all my customers in email

[00:14:31] We've updated these terms by the way and this is what governs our relationship now

[00:14:35] Okay, you can't do that. Okay, so on the one side

[00:14:40] You have your well advised update your agreements on the other side you have people with punt it's even legal punt it's in the industry

[00:14:46] Unfortunately saying you have work just update your agreement and and your customers they have to check back to make sure that they understand

[00:14:53] the what no no no no

[00:14:56] One party cannot unilaterally cannot unilaterally change the material terms of a contract

[00:15:03] And then force it on the other side without the other parties consent

[00:15:07] They'd say but credit card companies do that right Microsoft all these companies do it

[00:15:13] They update their terms. I say here we go

[00:15:15] They don't they don't what they do is something more nuanced what they do is they say in their agreements they say look

[00:15:23] We can update our terms by providing you with advanced notice of those changes and

[00:15:30] Your continued use of the service after that notice in the future after that notice state in the future

[00:15:36] Indicates your acceptance however, and this is the big however, and this is what MSPs need to think about

[00:15:42] As they're updating their agreements to accommodate AI

[00:15:48] However, if the these companies always say if you don't agree with the updated terms

[00:15:54] Right then you have the ability to terminate your relationship with us without further liability

[00:15:59] You pay us what you owe us under the old agreement and you're out right if it's credit card company

[00:16:04] They'll say pay us what you owe us up to that date stop using our card. We're done stop using our software after this date

[00:16:11] We're done the problem. Okay, with MSPs doing that is it doesn't translate well into the service industry

[00:16:20] Why because MSPs are unique in that they have upstream providers to whom they have made promises

[00:16:27] They have made commitments right without

[00:16:30] endorsing I'm not endorsing but right data might require a long-term commitment Microsoft NCE Cisco morockey all of these

[00:16:41] These paradigms require MSPs to get locked in upstream

[00:16:46] You don't then want to turn around until your customer in month five of a 36-month agreement

[00:16:52] That in month six you're gonna update your terms to include AI and so forth, and if you don't like it get out

[00:17:00] Because you know what they might do they might go by by and get out and now you the MSP your stuck

[00:17:06] Pain all those fees from on six seven eight nine to all the way to the end because you let them out

[00:17:11] So as MSPs update their terms to accommodate AI

[00:17:16] Which they should be doing they need to ask for the parties?

[00:17:20] Their customers consent they need to do it through natural touch points, maybe renewals right and that's when you can implement these new

[00:17:27] Documents but he can't just will he nearly jump in and update your terms and say this is how it is

[00:17:34] Interesting because

[00:17:35] There are other people in MSP I T-Lin who have adopted this idea

[00:17:40] You know and I agree with you. I would say that more MSPs have adopted a term to relationship rather than an ongoing

[00:17:48] Get out whenever you want relationship

[00:17:50] I know that they both did this but I would say

[00:17:53] Majority have now switched on to a clock because they are you know being forced on a clock upstairs like you just man

[00:18:00] Yeah, so at then the day

[00:18:04] You know what you're saying is that you have to have a fractured

[00:18:07] Implementation because your customers may take a 36-month or 46-month or 50-thick-month or however long it takes for all of your contracts

[00:18:15] They're all over in that methodology before they can implement it across the board right

[00:18:21] In fact should approach works or you know MSPs can also just not leverage the volume discounts or the

[00:18:27] The subscription discounts that they get for things like nce by going month to month

[00:18:33] Okay, well then you don't care right then you can update your terms and say if you don't like get out

[00:18:37] Well, you had a month to month anyway, but

[00:18:40] When you're when you're bound to upset you know

[00:18:42] MSPs are quick to forget that they have commitment upstream and that those commitments are gonna be fulfilled

[00:18:49] Right pack 8 all kinds of commitments upstream

[00:18:52] Those are gonna be fulfilled by the MSP whether it has its customer or not

[00:18:56] So you don't want to give the customer a back door to get out

[00:18:59] And that relates to AI and every other change that you make to your agreement

[00:19:03] That's fair that's fair. I want to pivot real quick. Maybe nobody wants to hear the work crouch strike anymore, but I'm at a chance

[00:19:10] Talk to a legal person about it so here's our chance

[00:19:12] So you said I've heard you say myself in you know many times

[00:19:17] Hey, you know like

[00:19:19] Packing and updating and making sure that you have you know everything on the current up-to-date version is important

[00:19:25] And you advertising those services and not doing that. It's gonna come back and bite you and this is what your contract needs to say

[00:19:31] You know because you know you are delivering that service, etc

[00:19:34] etc

[00:19:35] Well how about everyone who did deliver that service and did update and then cracked it

[00:19:40] Yeah, man. I crashed. Yeah. It's a problem right? Maybe maybe and I'll tell you why so we have to first divester self of the

[00:19:49] The notion that just because something goes wrong. There's going to be liability on the MSP's part

[00:19:55] We're gonna have to get rid of that idea. I don't know who convinced the industry that if something goes wrong

[00:20:02] It's definitely your fault you're gonna have liability MSP

[00:20:06] Maybe it's the vendors right who are selling their products and their solutions saying we can prevent things from going wrong because if anything goes wrong

[00:20:14] Your you know your ass is on the line okay

[00:20:17] I think that that isn't we have to get rid of that idea

[00:20:23] The concept okay that we're gonna focus on just for a minute and talking about this issue and crowdstrek in particular is that

[00:20:31] MSPs have a

[00:20:33] Standard of care that they have to adhere to

[00:20:36] Whatever the standard they have established but it's a reasonable standard they have to provide the services that they

[00:20:42] Said they're gonna provide or facilitate in a reasonable manner. Okay

[00:20:47] And we can argue about what's reasonable what's not reasonable and so forth but for the moment let's assume

[00:20:52] That you have an MSP that's providing an RMM BDR

[00:20:56] You know and EDR solution with some security awareness training and so on it's all there right comprehensive plan

[00:21:03] And everything is running as it should

[00:21:06] Everything is installed

[00:21:07] If you use a crowd strike the agents are in there. It's running as it should a patch is is

[00:21:17] Happened not from what you did before from the upstream provider

[00:21:21] Okay, we're gonna start off by saying that

[00:21:25] MSP doesn't automatically have liability why because it's following a standard a reasonable standard of care well

[00:21:32] Did it

[00:21:34] Implement the solution yes, is it a good solution. Yeah, it is a good solution right okay

[00:21:39] Um

[00:21:41] Did you MSP have something to do over the end following industry norms of updating critical patches and so forth other than that

[00:21:49] Did you do something to crash the system to cause this problem? No, right it was the upstream provider. Okay

[00:21:55] So where's the breach of your duty? There is no breach right you're you're adhering to the standard of care that you should be

[00:22:04] You're acting reasonably you're implementing the solutions you're updating them when they're supposed to be

[00:22:09] But something happened upstream if you're if you are

[00:22:14] Immediately thinking that well now I'm gonna have liability because this happened. No, you're not and that's you know

[00:22:20] That's just people trying to get you scared

[00:22:24] You know your better off

[00:22:27] Following the industry norms implementing patches doing what the upstream providers tell you to do

[00:22:32] Because if you didn't that would be a deviation now you're breaching a standard of care

[00:22:37] But assuming that you're doing everything right and everything is running properly. No, I'll take it to the

[00:22:42] I'll take it to the mad old day long that MSP won't have liability

[00:22:46] Okay, but it does tails into a different

[00:22:51] I'm sorry a related issue which is what is your agreement say about that?

[00:22:57] Does your agreement?

[00:22:59] Specifically tell its customer your customers that you are using third party provider

[00:23:05] Solutions and those solutions can fail they might fail right and if they do

[00:23:12] We the MSP we're not taking liability for that

[00:23:16] We're not gonna take liability for in the same way for an upstream providers service as we would for a service that we actually provide ourselves

[00:23:25] Okay, by way of example

[00:23:27] It doesn't look hard on doesn't just get money all right so that MSP

[00:23:32] chose the pollution now implemented the solution did everything you're supposed to then crowd strike happens

[00:23:39] They now need it takes them a month

[00:23:41] To touch all their customers now because your zone is so many employees

[00:23:46] There's more less employees than there are customers being service now all of a sudden

[00:23:51] It's going to take an exuberant amount of time to get back to functional right?

[00:23:55] So now that scenario that there's a wrinkle where well that part of the service remediation is part of what you do

[00:24:02] And so even though somebody else calls the root problem

[00:24:06] I still need you to resolve that problem within a timely manner and you can't get it done fast enough for me

[00:24:12] Right, well first of all your your point which is a good one

[00:24:17] Also assumes that remediation is part of a service and again I would caution MSPs that when they're

[00:24:24] Drafting their statements of work they're proposals and so on make it very clear whether

[00:24:29] Diagnosis and remediation is included or diagnosis is included and remediation will be discussed

[00:24:36] And you know a separate scope of work will be determined for that because you know MSPs that I always find

[00:24:43] Acurious when they they include

[00:24:45] For this critical level we will remediate within this period of time

[00:24:50] How could you possibly say like you just said what if crowd strike

[00:24:54] Instant happens you're not remediating within that period of time so I would always caution MSPs to not

[00:25:00] Go down that road but

[00:25:03] What you're saying is and I'm gonna repeat it so we're all on the same page is that while the MSP might not be

[00:25:10] Responsible for crowd strike crashing okay or crashing systems

[00:25:15] It is responsible potentially for creating a workaround getting the customer up and running with some other

[00:25:22] Solution in some period of time and you're right and you're right and that gets down to

[00:25:28] What your MSA your agreement with your customer says?

[00:25:34] You can say we're not responsible for an upstream provider to failure

[00:25:37] Okay or the consequences of that okay, but

[00:25:42] I'm still your customer right I still need an endpoint protection solution. I need something

[00:25:47] Yeah, what is your agreement say about that does it say we will try to implement to work around as promptly as as we can

[00:25:55] Because it leave it silent if you've left it silent then you're right you're gonna have the customer saying well

[00:26:00] Fix it like you have fixed crowds right well fix it with something

[00:26:04] All right and if you can't act quickly enough

[00:26:07] Yeah, then it might be viewed as reaching some sort of standard of care for sure. That's why

[00:26:13] That is why I preach

[00:26:16] I preach this for 23 years in the industry and I continue to

[00:26:21] MSP is when they're thinking about these customers need to think about reality-based contracting reality-based

[00:26:28] And you just brought it up judging you hate it right on the head

[00:26:31] It's one thing to say well

[00:26:33] Legally I'm not responsible for a crowd strike screws up. Okay, that's legal

[00:26:39] But what about the reality of something needs to be done?

[00:26:42] Right the reality of you've made promises that you're my trusted IT advisor

[00:26:47] You're not gonna leave me hanging now what that's reality and so when you're thinking about these contracts and scobes of work

[00:26:55] I implore MSPs to think about realities worst case scenario and address those because that's

[00:27:03] That's usually more important candidly than the legal stuff. Well, I'm gonna get back to a response to that real quick or follow up

[00:27:09] Keith Nelson charms in he's like can you write up and up time warranty or some sort of exclusion for things like you know

[00:27:19] Act of God power outages internet provider outages

[00:27:23] Ecclesiplis failures etc. Sure well what you're talking about teeth is a force major right active god war sabotage and so forth

[00:27:30] And again that gets back to well that would prevent someone from saying

[00:27:37] A third party messed up in Europe. It's on you. Okay

[00:27:42] That's a force major we couldn't stop that from happening. We were doing the right thing and so forth. Okay, but it is not a force major

[00:27:50] Where you have promised a customer prompt work around or prompt remediation

[00:27:56] You can say well it's a force major a crowd strike screwed up

[00:28:00] Okay, well there are other vendors or other solutions. I sort of have to wait until crowd strike results. It's a no no no

[00:28:08] That's not a force major a force major impact the initial

[00:28:11] Assessment of the situation put moving forward

[00:28:14] You have lots of options as an MSP and you're not gonna be able to resolve them or rest on

[00:28:20] It's a force major that happened way back when so now we're just gonna sit in wait. Oh, no, no

[00:28:25] That's not a force major that's just the MSP failing to live up to its contractual

[00:28:31] obligations. I mean so back to again using crowd strike like this was advertised as the largest global

[00:28:40] IT outage in the history of recorded history

[00:28:44] Is there an argument to be said if never happened before we didn't plan for it because it's never

[00:28:50] It's never even been in the spectrum of planning. It's never out

[00:28:55] So that makes it a force major the initial assessment. Let me let me give you

[00:29:00] more down to earth an analogy. Okay, what if I said to you that as long as you're in my house

[00:29:08] You will be able to walk from the bedroom okay to the front door without crashing into things

[00:29:16] As long as you're there okay and what happens at night? Well turn on the light right light the

[00:29:22] Light switch is available and so on okay now the lights go out

[00:29:26] The there's a lightning strike force major active god takes out the transformers in the in the neighborhood

[00:29:33] Light should not work there's nothing I can do about that right okay so you might say at this point hey at this moment

[00:29:39] I can't walk to the front door. I'm gonna crash into things that's a force major but

[00:29:46] What other options are available to me flashlight

[00:29:51] Candles

[00:29:53] So if you say to me Brad you have flashlight no

[00:29:56] Candles no that's a problem now I've breached the standard of care okay because I'm not even

[00:30:03] I've made you a promise and I'm not implementing reasonable work around set are obviously available to me

[00:30:10] What do we guys am just gonna wait for the electric on these hard George?

[00:30:12] No, at some point it leaves the spectrum of force major and enters the spectrum of

[00:30:18] You're just not doing the right thing here and so to your point when crowd strike occurs

[00:30:23] All right the crowd strike instant occurs at that moment maybe for a period of time after that

[00:30:30] While everyone's trying to get organized and figure out what's going on

[00:30:33] That's a force major

[00:30:34] But clients are not going to sit back nor should they be expected to sit back and wait for that to resolve itself

[00:30:42] US and MSP you have to come up with a workaround some work around

[00:30:46] It might not even be as good as what you promised crowd strike but you got to come up with something

[00:30:52] So is you know and

[00:30:54] This goes back more to just general stuff, but I'm just gonna continue down the line of thinking

[00:30:59] So I wrote up my agreement my sir by scope of work and my MSN away that says I will do this

[00:31:06] Best effort

[00:31:06] I'm not going to give you a timeline because I just don't know what the situation is so because I don't know

[00:31:11] The future I'm not going to give you something that you know a guarantee or a promise because I just don't know

[00:31:18] So it's just best effort, but if my best effort is a month from now

[00:31:23] Technically I may not be against what the agreement says

[00:31:27] But my customer may say this is good enough for me and now I went out

[00:31:31] So what you're doing is you're relying on ambiguous wording

[00:31:35] Right that might be in the agreement about I'm gonna do my best efforts well understand this in every agreement

[00:31:43] In the in the in both the consumer space and the commercial space. Okay business to business business consumer there is a

[00:31:53] An obligation of reasonableness built in it is even if it doesn't say it

[00:31:58] There's an obligation of reasonableness built into every contract in the US that is contract will all one-on-one

[00:32:04] So you say I'm gonna do my best efforts

[00:32:07] Well, what are best efforts?

[00:32:11] You have to act reasonably if in this case going back to my

[00:32:14] Light-outage example my best efforts might be hey look the lights are out

[00:32:20] I know I have candles here somewhere you gotta give me a couple hours to find them

[00:32:25] Right and then I actually try to find them in the meantime you can't walk because you're gonna hit some that's best efforts

[00:32:31] Right that's reasonable everyone's acting reasonably best efforts would not be me sitting on a chair

[00:32:37] Well, lights are out. Let's see how it goes in a week or two

[00:32:42] That's not best efforts right you'd say well

[00:32:46] You know, that's my version of best efforts because I don't want to walk and fall down either

[00:32:51] No, that's where the friction occurs

[00:32:53] That's where you're gonna get lawyers letters and so forth

[00:32:56] So I think that even when you're using best efforts

[00:32:58] That means that you still have to get up and do something try to do something

[00:33:04] I should say it may not be successful right I might look around in the cupboard camp find a candle

[00:33:10] Might look around for hours can't find a flashlight and meantime you can't walk across the house

[00:33:14] That's best efforts is no breach there

[00:33:17] But sitting on your butt doing nothing or waiting for a third party to resolve itself while your customers sit there and fly out

[00:33:24] No, that's not best efforts. That's gonna be really good in my ver in my view

[00:33:29] That's gonna be a breach of standard of care. Okay, but let back the crowd strike real world

[00:33:34] This was during the day wasn't really remediated

[00:33:38] Remediable

[00:33:39] Remotely and most cases you had to touch like I I was in airports

[00:33:43] I saw people getting up on letters to connect to the little computer on the back of the TV that tells you what they're

[00:33:48] Unless you're in southwest

[00:33:51] Yes, unless you're flying southwest

[00:33:54] What they were starting on windows three point one and they were out of fact

[00:33:58] We'll get to that in a second but bottom one is you know like this was hey

[00:34:03] Especially the MSPs who are taking on clients that are not geographically close to them or maybe you're

[00:34:09] Taking fine-torn and multiple states, right? And you're trying to your largely handling that remotely

[00:34:14] You're not geographically near them

[00:34:17] Maybe it's just I don't have the capacity to get to a hundred percent of my clients in a short period of time

[00:34:24] Which I argue for most MSPs bread is actually the case

[00:34:28] Yeah, you're right and

[00:34:30] Depending on the circumstances like I said best efforts changes. He's not a clear cut definition of what's best efforts in one scenario is the same or or or

[00:34:40] Transposas to another scenario and you're correct that if an MSP has a relationship with a geographically distant

[00:34:47] client and

[00:34:49] Remote access a remote remediation is not available then you're right best efforts in that scenario

[00:34:56] Might be to either wait for a

[00:35:00] A workaround or wait until we could get a technician out to your location to figure out something else

[00:35:05] You're you're 100% correct and and what your point really is is that it's faccensative

[00:35:10] Is what you're saying and I agree it's faccensative

[00:35:13] But what you'll often see or you hear as horror stories about is MSPs that try to take advantage of that language

[00:35:20] And sit back and do nothing maybe they're not maybe they're paralyzed in fear

[00:35:26] Maybe they're paralyzed because they don't know what the hell they're doing

[00:35:29] Okay, and they don't implement a proper solution in time the way

[00:35:34] They're not always gonna be able to claim best efforts

[00:35:36] But you're right sometimes you can sometimes you can't

[00:35:41] What about the

[00:35:43] Follow the money

[00:35:44] Situation let me explain a little bit further, right?

[00:35:47] I decided what vendors I put into my bundle of services my customer said

[00:35:52] I truck you the professional if you say I need this then I'm gonna buy that well now

[00:35:58] You know, proud strike let's say in this case they're like well

[00:36:02] I did never payed crowd strike directly. I paid you and you paid them so now I need to come to you

[00:36:08] And we need to have an issue so that you can turn around and go to them and you know like follow the money, right?

[00:36:15] So like

[00:36:16] Isn't that how it usually works or do I got a rock? No you you have it right what you're

[00:36:22] Focusing on for those who are law oriented is a concept called privity, right?

[00:36:28] Privity means the relationship the contractual relationship between two parties

[00:36:33] Privity is a direct relationship if if you and I are in a contract

[00:36:38] Okay, and you're providing phone service to me and

[00:36:43] If my phones don't work and as there's not my customer can't reach me

[00:36:48] My customer go after you no why because they're you're not the in privity with that customer your in privity with me

[00:36:55] So what your point is is that if you have crowd strike as an upstream provider and you're the MSB

[00:37:01] That you have the relationship with crowds strike and crowds strike goes down in your

[00:37:06] customer

[00:37:08] Has a problem can the customer go directly to crowds strike?

[00:37:12] Probably not because there's no privity and crowds strike likely wouldn't accept that kind of relationship anyway

[00:37:19] So you right, they would have to go through the MSP to get to crowds strike

[00:37:23] However, the MSP could turn around and say hey in our contract we say that we're relying on third party contractors

[00:37:29] Third party

[00:37:31] Service providers and

[00:37:34] If they fail or something goes wrong with them

[00:37:37] Assuming we didn't cause it we are not liable

[00:37:41] Okay, so what remedy the to your customer have and the answer is very limited

[00:37:48] Very limited and that's the way it is you know if though if the customer's lawyer configure

[00:37:53] Add some fancy way to somehow circumvent the privity argument go to crowds strike

[00:37:58] There are a fleet and great but you are a hundred percent correct in that

[00:38:03] Remedy's are limited in this type of model everyone is protecting themselves at every stage

[00:38:09] So the person the end user the end customer has if everyone else has done their job correctly

[00:38:15] The lawyers have done their job that end customer has very limited options to go after the MSP or crowds strike

[00:38:22] Okay, so let me ask you you always say never back to this exact conversation never open yourself up to liability that your upstream provider has

[00:38:33] You know reduced meaning if crowds strike service agreement says that you can only go after them for one

[00:38:40] Mom of

[00:38:41] Billing whatever the bill the invoice is for one month of service

[00:38:46] So that's a thousand dollars even though there's ten thousand dollars of business interruption

[00:38:51] You can only come back and ask for a refund or you can only come after us legally based on the what the contract says for one month of service

[00:38:59] Why wouldn't MSP implement the similar strategy to their customer limiting what they can come after them for?

[00:39:06] Well, they should they should first of all it's interesting that you are your analogy of one month of service

[00:39:11] Even then I don't know that crowds strike does that okay, but let's say they did

[00:39:16] It's likely an uninforable

[00:39:18] What mutation there's a case exactly on this point out of California from about five years ago in which Yahoo

[00:39:26] It's called in Ray Yahoo for those who want to start Googling it in which Yahoo

[00:39:31] Experience a series over about a decade a series of security breaches in its

[00:39:37] Yahoo mail it's email service and those breaches led to some pretty

[00:39:42] Disasters consequences and so consumers who are using Yahoo services sued Yahoo

[00:39:49] And said your sponsor for all these damages and by the way you've known about these problems in 2010 in 2012 in 2004

[00:39:57] You knew about it

[00:39:59] Yahoo's primary defense was you guys signed a Ula

[00:40:03] Or accepted a Ula and it that Ula says that our liability is virtually zero should these kinds of things happen

[00:40:11] Virtually zero it's nominal so as a result they argued to the court this case should be thrown out because there are no real damages

[00:40:18] Even if we did what they said there's no damage. They can't collect anything the court turned around and said no good

[00:40:24] No, no, no, no you provide such an important service that has so many ramifications to it

[00:40:32] That we as a society we are not going to allow you to limit your liability to the point where you have no liability

[00:40:39] Okay, and they sent the case back down to the court to now figure out damages

[00:40:44] This is also by the way being echoed in

[00:40:49] That executive order that came out about a year ago. We're so from the Biden White House in which they talked about the fact that

[00:40:58] That it's going to be a policy that at least

[00:41:02] His administration and maybe comma Harris's administrative y'all whoever goes to it

[00:41:08] If it's a different administration, I don't know if it's going to happen but

[00:41:12] They announced it's a policy that they are not going to allow upstream providers to get out of liability through

[00:41:19] You know complex or hidden language in contracts. It's not right

[00:41:25] Okay, that's as far as it went so far that that was actually a policy that was sent out by the the White House

[00:41:31] So my point is is that

[00:41:34] And MSP is not necessarily going to say

[00:41:38] We're only liable for a month of service or a few weeks of service

[00:41:42] Fees it's probably gonna be deemed unenforceable that said all of that now let's go back to your question

[00:41:49] upstream provide a limits its liability right you as an MSP should real highs

[00:41:54] That if you don't have a remedy upstream

[00:41:56] You better sure as hell look at your documents to make sure

[00:42:00] Your gut strength customer can't come after you for more or at least too far in excess of what you're going to have to pay up

[00:42:08] So you know you're you're gonna get upstream

[00:42:11] Yeah, we'll see it often

[00:42:13] You know they don't read their upstream provide a contrast

[00:42:16] They don't and as a result they don't disclaim or exclude things in their own agreements

[00:42:21] And when the customers come after them they look up and like for the first time they realize oh my god

[00:42:26] Did I limit your liability did I agree you're not responsible for all these things shoot now what well now you have an insurance claim don't you

[00:42:35] That's probably I got one more for you the condolves along this conversation so

[00:42:41] Did you hear last week

[00:42:43] A man took his wife on vacation to Disney

[00:42:47] She told them that she had an allergy at one of the Disney restaurants

[00:42:51] They swore up and down that they were excluding anything in the meal preparation that would you know fall within her allergy

[00:42:58] You know requests and they screwed up and she died and now Disney thing that

[00:43:04] When you signed up for a trial for Disney plus five years ago on your PlayStation husband

[00:43:10] You agreed that any Disney company would be held

[00:43:13] How the harmless

[00:43:16] I was like oh yeah, I signed up for a digital streaming service. What does that have to do with your park

[00:43:22] Which is probably a separate company on by the way like you were very negligent right like I asked you I asked you

[00:43:29] Asked you and you told me yes and now I die. Do now

[00:43:34] I agree with you. That's just all into the same thing of course it does and look what you just saw was

[00:43:43] Legal acrobatics right it was the legal circuit to sole of

[00:43:48] Excuse is about how Disney is trying to exclude itself from liability

[00:43:53] You know

[00:43:54] At some point reasonable as

[00:43:58] Acrobatics have to yield to reasonableness and logic and that's what you're going to see

[00:44:02] This case isn't ever going to be dismissed on the basis that they signed an agreement for something entirely different with a company that may or may not even exist

[00:44:10] At the time that they signed that agreement right Disney always has these new entities that there are four things for you know

[00:44:18] A single purpose

[00:44:20] entities and so forth and

[00:44:22] To think that a customer is now going to have to take the due diligence

[00:44:27] And every time it deals with Disney in any capacity no matter how disparate no matter how

[00:44:33] Distance it is from the original service

[00:44:36] They now have to be or what the ownership is and so on it's utterly ridiculous

[00:44:42] It was something that was interesting and fun to read about if you're doing some sort of mental acrobat there, but in reality

[00:44:50] Yeah, I wouldn't I wouldn't bet honnacle

[00:44:53] Okay, so we'll follow that one

[00:44:55] So I here you decided to get into the software business tell us what you're cooking up over there

[00:45:03] The software platform business yes, I did and by the way I I readily admit

[00:45:08] I've told you in private and I will say it in public you're one of the reasons why I did that

[00:45:14] So you convinced me that I that I should be that I that that there's a need and I saw the need to but you

[00:45:21] In talking with you you were definitely one of my people that advised me on that and so thank you for that

[00:45:27] You are

[00:45:28] Well beyond your years as far as

[00:45:32] For sight and experience and I mean that

[00:45:34] So so what are we talking about we're talking about MSP terms MSP terms is a platform that I have created

[00:45:41] That is

[00:45:43] Launched but we are

[00:45:45] Going to be doing demos of it and then having registrations starting next week

[00:45:50] It is a legal the document platform engineered for MSPs

[00:45:56] Under the basis that I understand the unique contract challenges that MSP's face right from

[00:46:04] Negotiated service

[00:46:05] Service agreements to ensuring that

[00:46:08] Agreements are tracked and log to ensuring that they are offered to customers when they should be offered and that

[00:46:15] That they say what they're supposed to say and so forth. So what we've done

[00:46:20] is we have created this platform

[00:46:23] That is going to give its subscribers a whole lot of options a whole lot of a functionality first

[00:46:32] It will allow its subscribers to

[00:46:35] Post documents on their own

[00:46:39] into what I'll call like parking spaces online parking spaces and

[00:46:44] Each space will have

[00:46:46] Does have I shouldn't say will I'm so used to saying will but now it's developed and it's up and running

[00:46:52] Each space has its own

[00:46:54] Access level its own security and as an MSP you can then send your customers to view those documents with

[00:47:02] Access privileges the idea being that I might have document up there for an MSA

[00:47:09] For for all of my MSP clients

[00:47:12] Okay

[00:47:13] Maybe I also have a copy or business on the side and I want a different MSA for that great you're gonna have that

[00:47:20] Post it on this side as well with its own access level and the concept is is that you're going to say to your customers

[00:47:27] If you want to see our MSA, it's located here

[00:47:30] Boom MSPterms.com

[00:47:32] Forward slash your company's name with a password and when they get to that you are

[00:47:38] All they're gonna enter the password boom the contracts gonna appear they can view it they can accept it

[00:47:43] one of the other unique features of this

[00:47:47] platform

[00:47:49] Is that your customers are also gonna benefit from this how right how is it? How do they benefit well? What we have found what I have found over the years is that customers

[00:48:00] Are sometimes weary of online contracts why because how do I know the contract that I accepted on your website is the same one that I accepted

[00:48:10] Six months ago, right how do I know you didn't change it what happens if you're linked disappears

[00:48:15] Now I don't even know what I agreed to

[00:48:18] Well MSP terms addresses that issue

[00:48:21] By giving every customer who is asked to view or accept a document from an MSP it's own free

[00:48:30] It's own free platform it's own free account and every document that it is that it views

[00:48:37] accepts

[00:48:37] Parents anything from the MSP goes into the customers account and that customer account is like a lockbox

[00:48:45] The MSP cannot touch it the MSP cannot change it so for example if a customer accepted your document

[00:48:53] Right, it would go into that customers account now. Let's say I know you change your document you post other things

[00:48:58] The customer always can see that document that they've accepted it can print it it has

[00:49:03] Access to it it will know when it viewed it. It'll have log in tracking abilities as will you

[00:49:08] As the MSP you can log in track when your customer views this document even in the future

[00:49:15] When I've accepted document when it prints the document all of that's gonna be tracked so we have this

[00:49:21] Incredible document management platform. Okay, that's the primary

[00:49:28] Offering it also has a library of pre-built customizable templates all curated by me

[00:49:36] Okay, not hand me down document hand me down templates general junky documents that only tangentially apply to the MSP industry now

[00:49:46] These are curated documents from Brad Gross applicable to the MSP industry each can be downloaded modified and then

[00:49:54] Uploaded to your account the MSP is account and offered to its customers again with privileged and access levels

[00:50:01] Then there's also a

[00:50:03] Educational component so

[00:50:06] Interim component has billion who's that it

[00:50:23] Think I think we maybe we lost me a lot of technical difficulties. Yeah, yeah

[00:50:29] address business needs is 20 seconds what's that

[00:50:33] What we lost you there for a few seconds Brad three long for them okay? Where did your last lose me?

[00:50:41] Educational

[00:50:42] Educational component. Oh, sorry about that you missed everything

[00:50:46] As an educational component where we're going to have videos that address the business points that

[00:50:53] Often confuse or are very vaccine to MSPs okay such that you know an example might be

[00:51:01] How do you negotiate

[00:51:03] A situation in which your customer says I want you to get rid of your limitation liability

[00:51:08] Or I want you to change it. I want you to take on more what should you do?

[00:51:14] It's good question we have a video on that issue have a pricing increase

[00:51:19] How do you negotiate those terms? How do you put it into your documents to make sure you're always protected

[00:51:25] video on that

[00:51:27] How do you implement governing documents like a shareholder's agreement an operating agreement for your company

[00:51:32] How do you treat you something like a company?

[00:51:34] We have the video on that so not only do we have this platform in which you can

[00:51:40] Store access offer documents to your customers not only do you have a repository of Brad Gross curated documents

[00:51:47] But now you have an educational component as well so

[00:51:52] That is the the platform and if anyone wants a demo of it

[00:51:58] If they want demo of it send an email to info at MSPterms.com

[00:52:05] We're going to start doing demos next week and again George I really appreciate you not only bring it up

[00:52:11] But you would definitely one of the motivations for me jumping into that so it's fun. I'm happy that I

[00:52:19] Talk to an expert and sometimes experts really good at what they do but I could add some some some

[00:52:25] Mentor-esting ideas into the mix that makes me feel good

[00:52:29] Sure and I never said I was next for anything. I just come up with a good idea

[00:52:33] It's from time to time but one thing for sure Keith Nelson

[00:52:37] I think I'm an expert in Philadelphia sports

[00:52:40] So is does my views of the NFL get included in Brad's educational track now? You can come here to MSP initiative podcast

[00:52:47] And we'll tell you all about what I think about football or will we just be willing to do that

[00:52:51] video on that or or we can just do it over beer either way either way

[00:52:56] That is a pothos for sure and a reminder that the NFL season opens up in Brazil

[00:53:02] Eagles backers just just let you out

[00:53:05] And I know we could Photoshop this video to remove just the emblem on your shirt and then you're wearing gang green baby

[00:53:13] You wear gang green okay

[00:53:16] J E T S

[00:53:18] Just

[00:53:19] Not that I would do it, but you know there is AI that could probably work this out. I'm just

[00:53:24] Well, this session was absolutely recorded if you want more of this by the way

[00:53:29] I could talk to Brad for a long time sometimes comes to the bill sometimes it doesn't all that being said how about I give you Brad's time

[00:53:36] For free

[00:53:37] You come to Denver

[00:53:39] September 25th 26

[00:53:41] This guy's gonna be in front of you. He'll take any topic. He'll go through it will work or work through the whole theme

[00:53:47] He has two workshops two hours at a piece four hours a time

[00:53:51] I was like I know exactly what that cost now that doesn't include the fact that we had to ship Brad to Denver and that has a cost too

[00:53:57] But that that being said take advantage of the fact that

[00:54:02] You have an expert and experts in front of you

[00:54:05] And we're literally giving you the ability to talk to the people that are in business doing what you do with the experts that understand this business

[00:54:12] Which I would argue and a lawyer that knows a lot about our specific industry

[00:54:18] Virtus. The lawyer that does a channel practice with everybody you get to get a different answer

[00:54:23] You get a different document. You get a different advice

[00:54:25] That's what I think's gonna happen. You know, we'll see

[00:54:28] But I challenge you to find your way to Denver to December 25th 26

[00:54:32] For sure and and if they think by the way if they think that they're just gonna hear oh well

[00:54:37] It's about a remincin all I could tell you because you've given the venue you've given us the ability to talk about anything

[00:54:43] That's on their mind legally oriented last time we were there we had discussions about trade

[00:54:48] About trade marking a MSP's name how can be enforced right we had discussions about non-competent non-solicitation agreements

[00:54:57] It wasn't just about you know in MSA so

[00:55:01] The benefit is you get two hours

[00:55:04] And anything is on the table

[00:55:06] So

[00:55:07] Thank you for coming Brad can't wait to see you and I'm sure I probably see you more of Denver

[00:55:12] But if not I'll see you in Denver and

[00:55:13] Yeah, if you were stuck in Crowdstrike land and you're in the middle of

[00:55:17] Some sort of crazy situation with your customer if you haven't already talked to a lawyer

[00:55:22] Might be a good idea to talk to one and check out MSP terms.com brand new

[00:55:27] Check it out what do you know is it better than what you're doing is it the same as a different

[00:55:32] Learn what you got to lose check it out

[00:55:35] This time was your court you find a MSP initiative.com under session. Thank you for stopping by and we'll catch you on the next one. Thanks Brad. Thanks George