Microsoft Data Privacy Policy

MICROSOFT DATA PRIVACY POLICY

1. Document Preamble & Recitals

This Microsoft Data Privacy Policy (hereinafter the "Agreement" or "Policy") is entered into and made effective as of [Effective Date] (the "Effective Date"), by and between:

Microsoft Corporation, a Washington corporation, having its principal place of business at One Microsoft Way, Redmond, Washington 98052, USA (hereinafter referred to as "Microsoft", "Vendor", or "Data Processor"),

and

[Company Name], a [Jurisdiction of Incorporation] corporation, having its principal place of business at [Company Address] (hereinafter referred to as "Customer", "Client", or "Data Controller").

Recitals

WHEREAS, Microsoft provides cloud computing services, software, enterprise solutions, and associated technical support (collectively, the "Services");
WHEREAS, in the course of providing the Services, Microsoft may Process Personal Data on behalf of Customer;
WHEREAS, the Parties intend to establish robust data protection standards, operational protocols, and legal frameworks to ensure compliance with applicable Data Protection Laws;
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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2. Operational Definitions

For the purposes of this Agreement, the following terms shall have the meanings ascribed below:

1. "Applicable Data Protection Laws" means all laws and regulations, including data protection and privacy laws, applicable to the Processing of Personal Data under this Agreement, including, without limitation, the General Data Protection Regulation (Regulation (EU) 2016/679) ("GDPR"), the California Consumer Privacy Act ("CCPA"), and any applicable national implementing legislation.
2. "Customer Data" means all electronic data, text, audio, video, images, or software submitted, stored, or processed by or on behalf of Customer and its End Users through the use of the Services.
3. "Data Controller" means the natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
4. "Data Processor" means a natural or legal person, public authority, agency, or other body which processes Personal Data on behalf of the Data Controller.
5. "Data Subject" means an identified or identifiable natural person to whom Personal Data relates.
6. "Personal Data" means any information relating to an identified or identifiable natural person processed by Microsoft on behalf of Customer pursuant to the Services.
7. "Processing" means any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
8. "Security Incident" means a confirmed accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data transmitted, stored, or otherwise Processed by Microsoft.
9. "Services" means the commercial cloud services, software subscriptions, and professional services provided by Microsoft to Customer under the primary master services agreement or licensing agreement.
10. "Subprocessor" means any Data Processor engaged by Microsoft or any further downstream subcontractor to assist in fulfilling Microsoft's obligations under this Agreement.

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3. Substantive Terms & Obligations

3.1 Scope and Roles of the Parties

The Parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Data Controller, Microsoft is the Data Processor, and, where applicable, certain third-party entities engaged by Microsoft act as Subprocessors. Microsoft shall Process Personal Data only as a Data Processor acting on behalf of, and in accordance with, Customer’s documented instructions.

3.2 Microsoft Obligations and Performance Metrics

1. Lawful Processing: Microsoft shall Process Personal Data exclusively for the purpose of providing the Services in accordance with Customer’s documented instructions, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by Applicable Data Protection Laws to which Microsoft is subject.
2. Confidentiality: Microsoft shall ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
3. Security Measures: Microsoft shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including pseudonymization and encryption of Personal Data, measures to ensure ongoing confidentiality, integrity, availability, and resilience of processing systems, and processes for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures.
4. Subprocessing: Customer provides general authorization to Microsoft to engage Subprocessors. Microsoft shall maintain a list of Subprocessors and shall notify Customer of any intended changes concerning the addition or replacement of Subprocessors, thereby giving Customer the opportunity to object to such changes. Microsoft remains fully liable to Customer for the performance of the Subprocessor's obligations.
5. Data Subject Rights: Microsoft shall, to the extent legally permitted, promptly notify Customer upon receipt of any request from a Data Subject exercising their rights under Applicable Data Protection Laws. Microsoft shall not respond to such Data Subject request directly except on documented instructions from Customer or as required by applicable law.
6. Assistance and Audits: Microsoft shall make available to Customer all information necessary to demonstrate compliance with this Agreement and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer, subject to reasonable prior notice and confidentiality constraints.

3.3 Customer Representations and Warranties

Customer represents, warrants, and covenants that:

1. It has complied, and will continue to comply, with all Applicable Data Protection Laws in respect of its collection, processing, and transfer of Personal Data to Microsoft.
2. It has obtained all necessary consents, permissions, and provided all necessary notices to Data Subjects to enable Microsoft to lawfully process Personal Data for the performance of the Services.

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4. Default, Termination, and Remedies

4.1 Breach Classifications

A material breach of this Agreement shall include, but is not limited to:

1. Any unauthorized disclosure, exfiltration, or intentional misuse of Personal Data by Microsoft or its authorized Subprocessors resulting from gross negligence or willful misconduct.
2. Failure by either Party to implement and maintain the mandatory technical and organizational security measures specified herein.
3. Persistent or repeated failure by either Party to comply with any operational obligations outlined in Section 3.

4.2 Notice and Cure Periods

In the event of a material breach of this Agreement, the non-breaching Party shall provide written notice to the breaching Party detailing the precise nature of the breach. The breaching Party shall have a period of thirty (30) business days from the date of receipt of such notice to cure the identified breach to the reasonable satisfaction of the non-breaching Party.

4.3 Termination and Legal Recourse

1. Termination for Failure to Cure: If the breaching Party fails to cure the material breach within the thirty (30) business days cure period, the non-breaching Party may terminate this Agreement and the underlying primary Services agreement immediately upon written notice, without penalty or further liability.
2. Return or Deletion of Data: Upon termination or expiration of this Agreement, Microsoft shall, at the choice of Customer, delete or return all Customer Data to Customer, and delete existing copies unless Union or Member State law requires storage of the Personal Data.
3. Damages and Remedies: Subject to any limitations of liability set forth in the primary enterprise agreement between the Parties, the non-breaching Party reserves all legal and equitable remedies available under law, including injunctive relief and recovery of direct damages up to [Dollar Amount] or the total fees paid by Customer in the preceding twelve (12) months, whichever is greater.

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5. Boilerplate Legal Provisions

5.1 Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid and enforceable. If modification is not possible, the provision shall be deemed severed, and the remaining provisions of this Agreement shall remain in full force and effect.

5.2 Entire Agreement

This Agreement, together with any applicable Data Protection Addendum, primary licensing agreements, and associated enterprise contracts, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior contemporaneous negotiations, commitments, representations, and understandings, whether written or oral.

5.3 Force Majeure

Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay arises from acts of God, war, terrorism, civil unrest, labor disputes, pandemic, utility or telecommunications outages, or other causes beyond the reasonable control of the affected Party, provided that the affected Party uses commercially reasonable efforts to mitigate the effects of the event.

5.4 Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of [Jurisdiction], without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

5.5 Dispute Resolution

Any dispute, controversy, or claim arising out of or relating to this Agreement, including its formation, breach, termination, or validity, shall be finally settled by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules. The place of arbitration shall be [City, State/Country], and the proceedings shall be conducted in the English language before a single arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction.

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6. Formal Execution Block

IN WITNESS WHEREOF, the Parties hereto have caused this Microsoft Data Privacy Policy to be duly executed by their respective authorized officers as of the Effective Date.

FOR MICROSOFT CORPORATION (Data Processor):

Signature: ____________________________________________________
Name: [Authorized Signatory Name]
Title: [Authorized Signatory Title]
Date: [Date]

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FOR [Company Name] (Data Controller):

Signature: ____________________________________________________
Name: [Authorized Signatory Name]
Title: [Authorized Signatory Title]
Date: [Date]