These terms of services (the "General Terms") govern the use of Sharegate Office 365 Extension provided by Groupe Sharegate Inc. ("Sharegate") as an add-on feature on the Sharegate desktop application. By accessing Sharegate Office 365 Extension, you agree to the General Terms on behalf of the organisation that you represent ("Customer").
1. DEFINITIONS AND INTERPRETATION
1.1. The following capitalized terms shall have the meaning ascribed to them below:
- (i) “Office 365” means the Office 365 platform provided by Microsoft;
- (ii) “Parties” means Sharegate and Customer;
- (iii) “Sharegate Office 365 Extension” means the add-on feature on the Sharegate desktop application commercialized by Sharegate as “Sharegate Office 365 Extension” that identifies possible optimizations in the management of environments (including Office 365 groups and sites) in Office 365;
- (iv) “Services Data” means any data that Customer or Customer’s Office 365 site or group owners transfer to Sharegate in conjunction with the Services, including without limitations, the API Security Tokens (as defined at Section 2.2), the contact information of Customer’s Office 365 site or group owners and the information regarding the activity or inactivity of an Office 365 site or group;
- (v) “Website” means Sharegate’s website at https://en.share-gate.com/.
1.2. The term "including" is not limiting and means "including, without limitation".
2. ACCESS AND USE OF SHAREGATE OFFICE 365 EXTENSION
2.1. Services. During the Term (as defined at Section 7.2), Sharegate grants to Customer, which has purchased a valid license for Sharegate desktop application, the right to access and use Sharegate Office 365 Extension, and any related services, in accordance with the General Terms (the “Services”). Services are further described on the Website.
2.2. Access to Customer’s Office 365. Customer understands and agrees that in order for Sharegate to perform the Services, Sharegate must be granted access to Customer’s Office 365 SharePoint Online, Microsoft Azure Directory and Microsoft Graph and that Sharegate will host the security tokens to access those APIs (the “API Security Tokens”). Customer confirms that it has granted such access to Sharegate. Customer understands and agrees that this access includes the access to the content of the files stored by Customer in its Office 365, although Sharegate does not intent on accessing such content. Sharegate has implemented technical, organizational and administrative systems, policies, and procedures to mitigate the risk of unauthorized access to or use of Customer’s Office 365. Nonetheless, Customer acknowledges and agrees that in accessing and using Sharegate Office 365 Extension, Customer’s Office 365 is subject to risks of unauthorized disclosure, loss or exposure. To the extend authorized by law, Sharegate offers no representation, warranty or guarantee that Customer’s Office 365 shall not be subject to unauthorized use or disclosure.
2.3. Limitations to the Services. Customer acknowledges and agrees that Sharegate does not control the Services Data and does not guarantee the accuracy, integrity or quality of such Services Data. Customer is solely responsible for making and implementing decisions based on the information obtained through the use of Sharegate Office 365 Extension and dealing with any related consequences.
2.4. Services Revisions. Sharegate may revise the content, features and functions of Sharegate Office 365 Extension at any time without notice. Sharegate will provide Customer with prior notice if there is a change to Sharegate Office 365 Extension resulting in overall material decrease in functionality of Sharegate Office 365 Extension.
2.5. Temporary Suspension of the Services. Sharegate may temporarily limit or suspend the Services from time to time at its discretion including to perform upgrades to, and maintenance of, Sharegate Office 365 Extension.
2.6. Unacceptable Use. Customer shall not, nor attempt to, nor permit third parties to: (a) share non-public features or content of Sharegate Office 365 Extension with any third party; or (b) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, merge, adapt, translate, create any derivative works or otherwise reproduce any part of Sharegate Office 365 Extension. For clarity purposes, Customer shall not access Sharegate Office 365 Extension in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of Sharegate Office 365 Extension. In the event that it suspects any breach of this Section, Sharegate may suspend Customer’s access to the Services without advanced notice, in addition to such other remedies as Sharegate may have.
2.7. Indemnification by Customer. Customer shall defend, indemnify and hold harmless Sharegate against any claim, suit or proceeding arising out of, or related to Customer misuse of Sharegate Office 365 Extension or the breach of any warranty, covenant or other obligation contained in these General Terms by Customer. If the Customer is a governmental or public entity, this Section 2.7 will not apply to the Customer only to the extent the Customer’s jurisdiction’s laws prohibit the Customer from accepting the requirements in this section.
2.8. Compliance with Laws. When using the Services, Customer shall comply with all applicable laws.
3.1. Services Data. Customer grants Sharegate a perpetual, irrevocable and royalty-free right to access, use, process, copy, distribute, perform, export and display Services Data, only to the extend permitted by law and as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) create de-identified data aggregated for benchmarking and marketing purposes or (d) as otherwise expressly permitted in writing by Customer. This right continues with respect to the de-identified data derived from Services Data and any residual backup copies of Services Data made in the ordinary course of business even after Customer stops using the Services.
3.2. Protection of Services Data. Sharegate shall store and process the Services Data in a manner consistent with industry security. Sharegate has implemented technical, organizational and administrative systems, policies, and procedures to help ensure the security, integrity and confidentiality of Services Data and to mitigate the risk of unauthorized access to or use of Services Data. Nonetheless, Customer acknowledges and agrees that in accessing and using Sharegate Office 365 Extension, the Services Data is subject to risks of unauthorized disclosure, loss or exposure. To the extend authorized by law, Sharegate offers no representation, warranty or guarantee that Services Data shall not be subject to unauthorized use or disclosure.
3.3. Disclosure of Services Data. Unless it receives Customer’s prior written consent, Sharegate shall not intentionally grant any third party access to Services Data, except to Sharegate’s third party services providers in connection with the performance or the improvement of the Services. Before sharing any Services Data with any of its third party service providers, Sharegate will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of Services Data and preventing unauthorized access. Notwithstanding the foregoing, Sharegate may disclose Services Data as required by applicable law or by proper legal or governmental authority. Unless prohibited by law or any court order, Sharegate shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
3.4. Utilization Data. Customer acknowledges and agrees that to the extend permitted by law, the aggregated data derived from telemetric information and data related to how Customer accesses and uses Sharegate Office 365 Extension (including, but not limited to, feature and function of Sharegate Office 365 Extension being used by Customer) (the “Utilization Data”) is owned by Sharegate and does not constitute Services Data.
3.5. Confidential Information. “Confidential Information” means any non-public, confidential and sensitive information, including Services Data, disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and excludes any information that is:
- (i) subject to applicable data protection laws, publicly available or later becomes publicly available other than through a breach of the General Terms;
- (ii) known to the Receiving Party or its employees, agents or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or
- (iii) subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality.
3.6. Use or Disclosure of Confidential Information. The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfil its responsibilities under the General Terms. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that Sharegate may disclose Confidential Information to its third-party services providers in connection with the performance or the improvement of the Services, in which case Sharegate will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.
4. WARRANTY DISCLAIMERS
4.1. Warranty Disclaimers. CUSTOMER REMAINS SOLELY RESPONSIBLE FOR TAKING OR NOT TAKING ACTIONS OR DECISIONS ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AS WELL AS FOR THE CONSEQUENCES THEREOF. FURTHER, SHAREGATE OFFICE 356 EXTENSION DOES NOT GUARANTEE THAT CUSTOMER’S OFFICE 365 (INCLUDING OFFICE 365 GROUPS AND SITES) CAN BE FURTHER OPTIMIZED. SHAREGATE DOES NOT WARRANT THAT SHAREGATE OFFICE 356 EXTENSION WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE AND ERROR FREE. CUSTOMER ACCEPTS THAT SHAREGATE OFFICE 356 EXTENSION IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. SHAREGATE MAKES NO REPRESENTATIONS AND NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.2. Failure caused by Office 365 SharePoint Online, Windows Azure Active Directory and Microsoft Graph. Sharegate Office 365 Extension relies on Office 365 SharePoint Online, Windows Azure Active Directory et Microsoft Graph to perform the Services. Without limiting Section 4.1 (Warranty Disclaimers), Sharegate is therefore not responsible if a failure to perform the Services is caused by a default of Office 365 SharePoint Online, Windows Azure Active Directory and Microsoft Graph.
5. LIMITATION OF LIABILITY
5.1. Dollar Cap. IN NO EVENT SHALL SHAREGATE’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE GENERAL TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
5.2. Exclusion. IN NO EVENT SHALL SHAREGATE BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR FRAUD OR WILLFUL MISCONDUCT OF SHAREGATE.
6. INTELLECTUAL PROPERTY AND FEEDBACK
6.1. No Rights Granted. Sharegate retains all right, title, and interest in and to Sharegate Office 365 Extension and the content Customer accesses through Sharegate Office 365 Extension, other than Services Data. These General Terms do not grant Customer any intellectual property rights in or to Sharegate Office 365 Extension or in Sharegate’s logos and other trademarks.
6.2. Indemnification. Subject to Section 5 (Limitation of Liability), Sharegate will defend, indemnify, and hold harmless Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any Third Party Claim Losses, including any interest accrued, but excluding any Third Party Claim Litigation Expenses; provided, however, that Sharegate will have no liability if the Third Party Claim Losses against Customer arises from (a) Services Data; or (b) any modification, combination or development of Sharegate Office 365 Extension that is not performed by Sharegate. Customer must provide Sharegate with prompt written notice of any Third Party Claim Indemnifiable Proceeding and allow Sharegate the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting Sharegate defence and settlement of such matter. For the purpose of this Section, the following definitions apply:
- (i) “Third Party Claim Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding brought against Customer arising out of a third party claim that the software used in Sharegate Office 365 Extension infringes any intellectual property rights of such third party;
- (ii) “Third Party Claim Litigation Expenses” means any reasonable out-of-pocket expense incurred in defending a Third Party Claim Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements; and
- (iii) “Third Party Claim Losses” means any amount finally awarded in, or paid in settlement of, any Third Party Claim Indemnifiable Proceeding.
6.3. Feedback. Any feedback or suggestions sent by Customer or shared by Customer with Sharegate to improve Sharegate Office 365 Extension may be implemented by Sharegate. In such case, Customer grants Sharegate an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free right to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer.
7.1. These General Terms are effective as of the first date that Customer uses Sharegate Office 365 Extension until they are terminated by any or both Parties in accordance with Section 7.2 (the “Term”).
7.1. Termination. These General Terms may be terminated:
- (i) by Customer at any time if it cancels the Services through the Customer account page in the way described in the knowledge base section of Sharegate’s support page;
- (ii) by Sharegate at any time if Customer materially breaches any of its obligations under these General Terms. In the event that the material breach is curable, the General Terms may be terminated if such breach is not cured within fifteen (15) days after Sharegate provides notice of the breach. For clarity purposes, without limiting the foregoing, any violation of Section 2.6 (Unacceptable Use) by Customer shall be deemed a material breach of these General Terms; or
- (iii) by Sharegate for convenience with a thirty (30) days prior notice.
7.3. Survival Sections 2.6 (Unacceptable Use), 2.7 (Indemnification by Customer), 3.1 (Services Data), 3.3 (Disclosure of Services Data), 3.4 (Utilization Data), 3.5 (Confidential Information), 3.6 (Use or Disclosure of Confidential Information), 4 (Warranty Disclaimers), 5 (Limitation of Liability), 6 (IP & Feedback), 7 (Term) and 8 (General) shall survive termination of these General Terms.
8.1. Governing Law. The present Agreement is governed, construed, and enforced in accordance with (i) the laws applicable in the Canadian province of Quebec if the Customer is located in Canada or (ii) the laws of the State of New York if the Customer is located outside of Canada, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. If the Customer is a governmental or public entity, this Section 8.1 will not apply to the Customer only to the extent the Customer’s jurisdiction’s laws prohibit the Customer from accepting the requirements in this section.
8.2. Jurisdiction and Venue. The parties agree that any litigation in any way relating to the present Agreement shall be brought and venued exclusively in (i) the judicial district of Montreal in the Canadian province of Quebec if the Customer is located in Canada or (ii) an appropriate federal or state court in New York, New York, USA if the Customer is located outside of Canada, and waives any objection that such venue is inconvenient or improper. If the Customer is a governmental or public entity, this Section 8.2 will not apply to the Customer only to the extent the Customer's jurisdiction's laws prohibit the Customer from accepting the requirements in this section.
8.3. Specific Performance. Notwithstanding any other provision in these General Terms, each Party acknowledges and agrees that a non-breaching Party may, upon any breach of these General Terms, immediately seek enforcement of these General Terms by means of specific performance or injunction, without any requirement to post a bond or other security.
8.4. Force Majeure. Except as expressly provided otherwise in these General Terms, Sharegate shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics (a “Force Majeure”), which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortgages, riots, fires, act of God, war, terrorism and governmental action.
8.5. Time of the Essence. Time is of the essence of these General Terms and of every part thereof.
8.6. No Other Agreements. These General Terms are the complete and exclusive statement of the Parties’ agreement relating to Sharegate Office 365 Extension and supersedes all offers (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the Parties relating to Sharegate Office 365 Extension. For clarity purposes, Sharegate’s desktop application is subject to the end user license, maintenance and support agreement available at https://en.share-gate.com/eula (or, alternatively, a customized end user license, maintenance and support agreement negotiated by both parties) and not these General Terms. SHAREGATE EXPRESSLY OBJECTS TO AND REJECTS ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY THE CUSTOMER WITH RESPECT TO SHAREGATE OFFICE 356 EXTENSION, INCLUDING THOSE CONTAINED IN THE CUSTOMER’S PURCHASE ORDER, ACCEPTANCE OR WEBSITE.
8.7. Notices. Sharegate may send notices pursuant to these General Terms to Customer’s email contact points provided by Customer. Customer may send notices pursuant to these General Terms to Sharegate at email@example.com. Notices shall be deemed received 24 hours after they are sent.
8.8. Assignment & Successors. These General Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
8.9. Waiver. No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.
8.10. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of these General Terms invalid or otherwise unenforceable in any respect. In the event that a provision of these General Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these General Terms shall continue in full force and effect.
8.11. Technology Export. Customer shall not export any software provided by Sharegate or otherwise remove it from Canada or the United States except in compliance with all applicable Canadian and U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use Sharegate Office 365 Extension in or export such software to, a country subject to an embargo by Canada or the United States.
8.12. Amendments. Sharegate reserves the right to amend these General Terms from time to time with reasonable notice prior to the effective date of the amendments by posting an amended version of the General Terms on its Website. Customer’s continued use of the Services following the effective date of any such amendments may be relied upon by Sharegate as Customer’s consent to any such amendments.