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Microsoft Viva Preview Agreement

  • Articolo

This Microsoft Viva Preview Agreement (“Agreement”) is between you (“Participant,” “you” or “your”) and Microsoft Corporation (or, based on where you are located, a Microsoft Affiliate) (“Microsoft, “we,” “us,” or “our”). This Agreement governs your participation in and use of Viva Previews. Viva Previews are not subject to the Microsoft Product Terms, the Microsoft Products and Services Data Protection Addendum, or your Microsoft volume licensing agreement. By accepting this Agreement, you represent that you are acting on behalf of your organization and have the authority to bind your organization and to participate in the Viva Previews on its behalf.

Definitions

  1. “Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party, where “own” means having more than 50% ownership or the right to direct the management of the entity.

  2. “Confidential Information” means non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, the terms of this Agreement and Participant’s account authentication credentials. Confidential Information does not include information that:

    1. becomes publicly available without a breach of a confidentiality obligation;
    2. the receiving party received lawfully from another source without a confidentiality obligation;
    3. is independently developed; or
    4. is Feedback.

  3. “Feedback” means, collectively, suggestions, comments, feedback, ideas, or know-how, in any form, that Participant provides to Microsoft about Microsoft’s business, products, or services.

  4. “Participant Data” means all data, including all text, sound, video, or image files, and software, that are provided to Microsoft by, or on behalf of, Participant through use of Viva Previews.

  5. “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.

  6. “Viva Preview” means the pre-release versions of Microsoft Viva services or software, including any technology, information, documentation, materials, Internet-based services, supplements, or updates, that Microsoft is making available to Participant through its participation in a Viva Preview.

  7. “Sub-processor” means other processors used by Microsoft to process Personal Data.

Feedback

  1. Providing Feedback about Viva Previews is voluntary. Microsoft is under no obligation to post or use any Feedback. By providing Feedback to Microsoft, Participant (and anyone providing Feedback through Participant) irrevocably and perpetually grant to Microsoft and its Affiliates, under all of its (and their) owned or controlled intellectual property rights, a worldwide, non-exclusive, fully paid-up, royalty-free, transferable, sub-licensable right and license to make, use, reproduce, prepare derivative works based upon, distribute, publicly perform, publicly display, transmit, and otherwise commercialize the Feedback (including by combining or interfacing products, services, or technologies that depend on or incorporate Feedback with other products, services, or technologies of Microsoft or others), without attribution in any way and for any purpose.
  2. Participant warrants that:
    1. it will not provide Feedback that is subject to a license requiring Microsoft to license anything to third parties because Microsoft exercises any of the above rights in Participant’s Feedback; and
    2. it owns or otherwise controls all of the rights to such Feedback and that no such Feedback is subject to any third-party rights (including any personality or publicity rights).

Previews

  1. Viva Previews may not work correctly or in the manner that a commercial service may function. Unless otherwise noted in a separate agreement, Viva Previews are not included in the Service Level Agreement for the corresponding Online Service and may not be covered by customer support. We may change or discontinue Viva Previews at any time without notice. We may also choose not to make a Viva Preview generally commercially available. We may update Viva Previews at any time and for any reason, which may result in the deletion of Participant Data.
  2. Participant’s use of Viva Previews in a live production environment is at Participant’s sole discretion and own risk. Participant acknowledges that Viva Previews may contain bugs or other errors that could cause Viva Previews, any system they run on, and any applications running on them to malfunction or experience impaired performance, including the loss of Participant Data.

License

  1. License. Viva Previews are licensed and not sold. Subject to Participant’s acceptance of this Agreement, Microsoft grants Participant a nonexclusive, nontransferable, limited license to use Viva Previews. All use is subject to Participant’s compliance with this Agreement, any policies and procedures governing the use of the Viva Previews, and any limits we may set on the number of users who may access or use Viva Previews.

  2. Reservation of Rights. Microsoft reserves all rights not expressly granted in this Agreement. No additional rights (including implied licenses, rights, or covenants) are granted by implication, estoppel, or otherwise. Except as expressly set forth herein, this Agreement does not provide Participant with any license or rights to use any data, software programs, or services, or to any related or enabling technologies that may be necessary to use such data, software programs, or services. Any license or other terms associated with any data, software programs, or services that access or use Viva Previews do not apply to or bind Microsoft. Participant has no right of ownership or of control over Viva Previews.

  3. Restrictions. Participant must not (and is not licensed to):

    1. reverse engineer, decompile, or disassemble any Viva Preview, or attempt to do so;
    2. install or use non-Microsoft software or technology in any way that would subject Microsoft’s intellectual property or technology to any other license terms;
    3. work around any technical limitations in a Viva Preview or restrictions in Viva Preview documentation;
    4. separate and run parts of a Viva Preview on more than one device;
    5. distribute, sublicense, rent, lease, or lend any Viva Preview, in whole or in part, or use them to offer hosting services to a third party.

  4. Acceptable Use Policy. Violation of this Acceptable Use Policy may result in suspension of Viva Previews. Neither Participant, nor those who access Previews through Participant, may use a Viva Preview:

    1. in a way prohibited by law, regulation, governmental order or decree;
    2. to violate the rights of others;
    3. to try to gain unauthorized access to or disrupt any service, device, data, account, or network;
    4. to spam or distribute malware;
    5. to mine cryptocurrency without Microsoft’s prior written approval;
    6. in a way that could harm the Viva Preview or impair anyone else’s use of it;
    7. in any application or situation where failure of the Viva Preview could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage; or
    8. assist or encourage anyone to do any of the above.

Confidentiality

The information shared under this Agreement (except Feedback) is Confidential Information subject to the Non-Disclosure Agreement ("NDA") between you and Microsoft. If there is no NDA, or the NDA is terminated or otherwise ceases to be in effect, the following terms shall apply:

  1. Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Affiliates, employees, contractors, and Agents (“Representatives”) and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
  2. Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
  3. Residual information. Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
  4. Duration of Confidentiality obligation. These obligations apply:
    1. for Participant Data, until it is deleted from Viva Previews; and
    2. for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

Data Protection and Processing

  1. Participant Data Processing. Participant is solely responsible for Participant Data. Microsoft has no obligation to hold, export, or return any Participant Data. Microsoft has no liability for the deletion of Participant Data.
  2. Personal Data Processing. If Participant collects, stores, or processes Personal Data when using Viva Previews, Participant agrees to comply with all privacy and data protection laws, taking into account the nature of the information to be processed, as well as the features and limitations of Viva Previews as described in this Agreement or as otherwise provided to Participant. Participant affirms that it has obtained or will obtain any required consents from data subjects who may use Viva Previews.
  3. Microsoft Privacy Statement. Some features of Viva Previews send, receive, or otherwise process Participant Data, including Personal Data. Learn about how Microsoft uses and protects your data in the Microsoft Privacy Statement, available at https://privacy.microsoft.com/en-us/privacystatement or a successor location. Please read the Microsoft Privacy Statement carefully. This Agreement incorporates the Microsoft Privacy Statement by reference. By using Viva Previews, you consent to Microsoft’s collection, use, and disclosure of Participant Data as described in the Microsoft Privacy Statement.
  4. Security. Microsoft may apply security technologies and procedures to help protect against unauthorized access to or use of Viva Previews. Microsoft does not guarantee the success of such technologies and procedures. Participant is solely responsible for the security, protection, and backup of Participant Data, and any other data, software, or services it uses in connection with Viva Previews.
  5. Information Use and Disclosure. With respect to Viva Previews, Microsoft may access or disclose information about Participant, its account, and the content of its or its users’ communications in order to:
    1. provide, operate, and improve Microsoft services;
    2. comply with the law or respond to lawful requests or legal process; or
    3. protect the rights or property of Microsoft or our customers, including the enforcement of Microsoft’s agreements or policies governing the use of Viva Previews.
  6. Data Processing and Transfers. To the extent Microsoft is a processor of Personal Data subject to the European Union’s General Data Protection Regulation (“GDPR”), the GDPR Terms govern that processing and the parties also agree to the following terms:
    1. Processing Details. The parties acknowledge and agree that:
      1. The subject-matter of the processing is limited to Personal Data within the scope of GDPR;
      2. The duration of the processing shall be for the duration of the Participant’s right to participate in Viva Previews and until all Personal Data is deleted or returned in accordance with Participant instructions or this Agreement;
      3. The nature and purpose of the processing shall be to provide Viva Previews pursuant to this Agreement;
      4. types of Personal Data processed by Viva Previews include those expressly identified in Article 4 of the GDPR to the extent included in Participant Data; and
      5. The categories of data subjects are Participant’s representatives and end users, such as employees, contractors, collaborators, and customers.
    2. Data Transfers.
      1. Participant Data and Personal Data that Microsoft processes on Participant’s behalf may be transferred to, and stored and processed in, the United States or any other country in which Microsoft or its Sub-processors operate. Participant appoints Microsoft to perform any such transfer of Participant Data and Personal Data to any such country and to store and process Participant Data and Personal Data to provide Viva Previews.
      2. All transfers of Participant Data and Personal Data out of the European Union, European Economic Area, United Kingdom, and Switzerland to provide Viva Previews shall be governed by the 2021 Standard Contractual Clauses implemented by Microsoft. In addition, transfers from the United Kingdom shall be governed by the IDTA implemented by Microsoft. For purposes of this Agreement, the “IDTA” means the International data transfer addendum to the European Commission’s standard contractual clauses for international data transfers issued by the UK Information Commissioner’s Office under S119A(1) of the UK Data Protection Act 2018.
      3. Microsoft will abide by the requirements of European Economic Area, United Kingdom, and Swiss data protection law regarding the collection, use, transfer, retention and other processing of Personal Data from the European Economic Area, United Kingdom, and Switzerland. All transfers of Personal Data to a third country or an international organization will be subject to appropriate safeguards as described in Article 46 of the GDPR and such transfers and safeguards will be documented according to Article 30(2) of the GDPR.
      4. In addition, Microsoft is certified to meet the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks and the commitments they entail, , although Microsoft does not rely on the EU-U.S. Privacy Shield Framework as a legal basis for transfers of Personal Data in light of the judgment of the Court of Justice of the EU in Case C-311/18. Microsoft agrees to notify Participant in the event that it determines that it can no longer meet its obligation to provide the same level of protection as is required by the Privacy Shield principles.

Defense of Third Party-Claims

Participant will defend Microsoft and its Affiliates against any third-party claim and pay the amount of any resulting adverse final judgment or approved settlement to the extent the claim alleges that:

  1. any Participant Data or Non-Microsoft Product hosted in a Viva Preview by Microsoft on Participates behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or
  2. Participant’s use of any Viva Previews, alone or in combination with anything else, violates the law or harms a third party.

Disclaimer of Warranty

Microsoft makes no representations or warranties with respect to Viva Previews. To the extent permitted under applicable laws, Microsoft excludes the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

Limitation of Liability

To the maximum extent permitted by law, in no event will either party be liable for any: indirect, incidental, special, punitive, consequential, or exemplary damages; loss of revenue, profits, or anticipated savings (whether direct or indirect); or loss of use, loss of business information, or interruption of business, arising out of or relating to this Agreement or its performance. This exclusion will apply regardless of the legal theory upon which any claim is based, whether the parties were advised of the possibility of such damages, whether damages were reasonably foreseeable, or whether application of the exclusion causes any remedy to fail of its essential purpose. This exclusion will not apply to any breach of confidentiality obligations or violation of the other party’s intellectual property rights.

Miscellaneous

  1. Links to Third-Party Sites. Viva Previews may include links to third-party sites. Microsoft does not control such sites and Microsoft is not responsible for the content of any linked site, any links contained in a linked site, or any changes or updates to such sites.

  2. Modifying this agreement. Microsoft may modify this Agreement at any time and will provide notice of any modifications. If you do not agree to any modifications, you must immediately stop using Viva Previews. Your continued use of Viva Previews constitutes acceptance of the modified Agreement.

  3. Notices. Microsoft may provide Participant with notices in any manner Microsoft chooses, including by email or posting any such notices on a Microsoft Teams channel for Viva Previews. Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. Notices provided via posting will be deemed given on the date they are posted.

  4. Term and Termination. This Agreement will remain in effect until terminated by Microsoft or Participant. Microsoft may suspend or cancel Viva Previews or terminate this Agreement at any time for any reason. Upon cancellation, suspension, or termination, Participant’s right to use Viva Previews stops immediately. Participant may stop using and accessing Viva Previews at any time without further obligation, whether or not it deletes or extracts it Participant Data. Your license to use a Viva Preview will end on the earlier of:

    1. the date specified in any notice Microsoft provides to you;
    2. the date you notify Microsoft that you wish to cease to participation in the Viva Preview or wish terminate this agreement; or
    3. the commercial release of the Viva Preview.

  5. No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights.

  6. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

  7. Interpreting the Agreement. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect. This Agreement, including any other policies or terms incorporated by reference, is the entire agreement between the parties regarding Viva Previews. It supersedes any prior agreements or statements (whether oral or written) regarding Viva Previews and is separate and independent from any other agreement(s) that may exist between the parties. Notwithstanding the foregoing, Microsoft may, at its discretion, require you to agree to additional or different terms in order to participate in some Viva Previews.

  8. Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.

  9. Independent Contractors. Each party is an independent contractor. This Agreement does not create an employer-employee relationship, partnership, joint venture, franchise, or agency relationship.

  10. Jurisdiction and Governing Law. The laws of the State of Washington, excluding conflicts of law provisions, govern this Agreement. If federal jurisdiction exists, then each party consents to exclusive jurisdiction and venue in the federal courts in King County, Washington. If no federal jurisdiction exists, then each party consents to exclusive jurisdiction and venue in the Superior Court of King County, Washington.

  11. U.S. Export Jurisdiction. Viva Previews are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to Viva Previews. These laws include restrictions on destinations, end users, and end use. For additional information, see https://www.microsoft.com/exporting.

GDPR Terms

For purposes of these GDPR Terms, Participant and Microsoft agree that Participant is the controller of Personal Data and Microsoft is the processor of Personal Data, except when Participant acts as a processor of Personal Data, in which case Microsoft is a Sub-processor. These GDPR Terms apply to the processing of Personal Data, within the scope of the GDPR, by Microsoft on behalf of Participant. These GDPR Terms do not limit or reduce any data protection commitments Microsoft makes to Participant in other agreements between Microsoft and Participant. These GDPR Terms do not apply where Microsoft is a controller of Personal Data.

Relevant GDPR Obligations: Articles 28, 32, and 33.

  1. Microsoft shall not engage another processor without prior specific or general written authorisation of Participant. In the case of general written authorisation, Microsoft shall inform Participant of any intended changes concerning the addition or replacement of other processors, thereby giving Participant the opportunity to object to such changes. (Article 28(2))
  2. Processing by Microsoft shall be governed by these GDPR Terms under European Union (hereafter “Union”) or Member State law and are binding on Microsoft with regard to Participant. The subject-matter and duration of the processing, the nature and purpose of the processing, the type of Personal Data, the categories of data subjects and the obligations and rights of the Participant are set forth in Data Protection and Processing above, including these GDPR Terms. In particular, Microsoft shall:
    1. process the Personal Data only on documented instructions from Participant, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by Union or Member State law to which Microsoft is subject; in such a case, Microsoft shall inform Participant of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
    2. ensure that persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
    3. take all measures required pursuant to Article 32 of the GDPR;
    4. respect the conditions referred to in paragraphs 1 and 3 for engaging another processor;
    5. taking into account the nature of the processing, assist Participant by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Participant’s obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR;
    6. assist Participant in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of processing and the information available to Microsoft;
    7. at the choice of Participant, delete or return all the Personal Data to Participant after the end of the provision of services relating to processing, and delete existing copies unless Union or Member State law requires storage of the Personal Data;
    8. make available to Participant all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections, conducted by Participant or another auditor mandated by Participant.
  3. Microsoft shall immediately inform Participant if, in its opinion, an instruction infringes the GDPR or other Union or Member State data protection provisions. (Article 28(3))
  4. Where Microsoft engages another processor for carrying out specific processing activities on behalf of Participant, the same data protection obligations as set out in these GDPR Terms shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR. Where that other processor fails to fulfil its data protection obligations, Microsoft shall remain fully liable to the Participant for the performance of that other processor's obligations. (Article 28(4))
  5. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Participant and Microsoft shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
    1. the pseudonymisation and encryption of Personal Data;
    2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
    3. the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
    4. a process for regularly testing, assessing, and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. (Article 32(1))
  6. In assessing the appropriate level of security, account shall be taken of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored, or otherwise processed. (Article 32(2))
  7. Participant and Microsoft shall take steps to ensure that any natural person acting under the authority of Participant or Microsoft who has access to Personal Data does not process them except on instructions from Participant, unless he or she is required to do so by Union or Member State law. (Article 32(4))
  8. Microsoft shall notify Participant without undue delay after becoming aware of a Personal Data breach. (Article 33(2)). Such notification will include that information a processor must provide to a controller under Article 33(3) to the extent such information is reasonably available to Microsoft.