Data Processing Addendum

WorkflowMAX

WFMax Pty Ltd (ACN 666 239 952) (trading as “WorkflowMAX”) and/or their related entities (together “us”, “our” or “we”) are committed to protecting the privacy of all personal information.

This Data Processing Addendum (“DPA”) is incorporated by reference to our Privacy Policy (available here) and any other agreement governing the relationship between you and us and is designed to reflect our agreement in respect of Personal Data that we solely on behalf of the User. Both parties will be referred to as the “Parties” and each a “Party”.

Capitalised terms not defined herein shall have the meanings assigned to such terms in the Privacy Policy or any other agreement between the Parties (as the case may be and as the context requires).

By using the Services, the Customer accepts this DPA and you represent and warrant that you have full authority to bind the Customer to this DPA. If you cannot, or do not agree to, comply with and be bound by the terms of this DPA, or otherwise do not have authority to bind the Customer or any other entity, please do not provide Personal Data to us.

In the event of any conflict between certain provisions of this DPA and the provisions of the Privacy Policy or any other document governing our relationship (“Agreement”), the provisions of this DPA shall prevail over the conflicting provisions of the documents solely with respect to the Processing of Personal Data.

1. DEFINITIONS

1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2. “Authorised Affiliate” means any of the Customer’s Affiliates (as the case may be) who are explicitly permitted to use the Services pursuant to the Agreement between the Customer and us but has not signed its own agreement with us and is not a “Customer” as defined under the Agreement.
3. The terms, “Controller“, “Member State“, “Processor“, “Processing” and “Supervisory Authority” will have the same meaning as given to those terms in the GDPR.
4. “Customer” means the registered party using the services, being either the individual who is accessing and using the Services or the entity that the individual is representing either as an employee or a contractor that is using the Services.
5. “Data Protection Laws” means all applicable and binding privacy and data protection laws and regulations, including those of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Canada and Israel, including the GDPR and the UK GDPR, applicable to, and in effect at the time of, the Processing of Personal Data hereunder.
6. “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
7. “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
8. “Personal Data” or “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable natural person or Data Subject, which is processed by us solely on behalf of Customer under this DPA and the Agreement.
9. “Services” means the cloud-based work operating system platform (“Platform”) and any other services
10. “Sensitive Data” means Personal Data that is protected under a special legislation and requires unique treatment, such as “special categories of data”, “sensitive data” or other materially similar terms under applicable Data Protection Laws, which may include any of the following:
    1. social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof);
    2. financial or credit information, credit or debit card number;
    3. information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning a person’s health, sex life or sexual orientation, or data relating to criminal convictions and offences;
    4. Personal Data relating to children; and/or
    5. account passwords in unhashed form.
11. “Standard Contractual Clauses” means:
    1. in respect of transfers of Personal Data subject to the GDPR, the Standard Contractual Clauses between controllers and processors, and between processors and processors, as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, including all Annexes I, II and V thereto, (”EU SCCs”),
    2. in respect of transfers of Personal Data subject to the UK GDPR, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses of 21 March 2022 (version B.1.0), as incorporated into the EU SCCs through Annex III thereto (“UK Addendum”); and
    3. in respect of transfers subject to the Federal Act on Data Protection (FADP – as revised as of 25 September 2020), the terms set forth in Annex IV of the EU SCCs (“Switzerland Addendum”).
12. “Sub-processor” means any third party that carries out specific Processing activities of Personal Data under the instruction of us.
13. “UK GDPR” means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).

2. PROCESSING OF PERSONAL DATA

2.1 Roles of the Parties.

The Parties acknowledge and agree that with regard to the Processing of Personal Data solely by us on behalf of Customer:

1. the Customer is the Controller of Personal Dat; and
2. we are the Processor of such Personal Data.

The terms “Controller” and “Processor” below signify Customer and us, respectively.

2.2 Customer’s Obligations

The Customer, in its use of the Services, and the Customer’s instructions to the Processor, will comply with Data Protection Laws, the Agreement and this DPA. The Customer will establish and have any and all required legal bases in order to collect, Process and transfer to Processor the Personal Data, and to authorize the Processing activities conducted by Processor on Customer’s behalf in accordance with the Agreement and this DPA.

2.3 Processor’s Processing of Personal Data

Processor will Process the Personal Data for the following purposes:

1. in accordance with the Agreement and this DPA;
2. in connection with its provision of the Services;
3. to comply with Customer’s reasonable and documented instructions, where such instructions are consistent with the terms of the Agreement and this DPA, and regard the manner in which the Processing will be performed; and
4. as required under the laws applicable to Processor, and/or as required by a court of competent jurisdiction or other competent governmental or semi-governmental authority, provided that Processor shall inform Customer of the legal requirement before Processing, unless such law or order prohibits disclosing such information.

Processor will inform Customer without undue delay if, in Processor’s reasonable opinion, an instruction for the Processing of Personal Data given by Customer infringes applicable Data Protection Laws, unless Processor is prohibited from notifying Customer under applicable Data Protection Laws. It is hereby clarified that Processor has no obligation to assess whether instructions by Customer infringe any Data Protection Laws.

2.4 Details of Processing.

The subject-matter of Processing of Personal Data by Processor is the performance of the Services pursuant to the Agreement and this DPA. The details relating to the duration, nature and purpose, types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Schedule 1 (Details of Processing) to this DPA.

2.5 Sensitive Data

The Parties agree that the Services are not intended for the Processing of Sensitive Data, and that if the Customer wishes to use the Services to Process Sensitive Data, it must first obtain our explicit prior written consent and enter into any additional agreements as may be required by us.

2.6 CCPA Standard of Care; No Sale of Personal Information

1. The Processor acknowledges and confirms that it does not receive or process any Personal Information as consideration for any services or other items that the Processor provides to the Customer under the Agreement or this DPA.
2. Processor will not have, derive, or exercise any rights or benefits regarding Personal Information which is Processed on the Customer’s behalf, nor shall it combine the Personal Information submitted to the Platform and Processed on the Customer’s behalf with any information it processes on behalf of any other parties, by way of logical separation, and may use and disclose Personal Information solely for the purposes for which such Personal Information was provided to it, as stipulated in the Agreement and this DPA.

3. DATA SUBJECT REQUESTS

If the Processor receives a request from a Data Subject to exercise their rights (to the extent available to them under applicable Data Protection Laws) of access, right to rectification, restriction of Processing, erasure, data portability, objection to the Processing, their right not to be subject to automated individual decision making, to opt-out of the sale of Personal Information, or the right not to be discriminated against (“Data Subject Request”), Processor shall notify Customer or refer Data Subject to Customer. Taking into account the nature of the Processing, Processor shall assist Customer, insofar as this is possible and reasonable, to enable Customer to respond to a Data Subject Request. Processor may refer Data Subjects to the Customer’s Admin – for the treatment of such request or advise them on using the self-exercising features available within the Platform.

4. CONFIDENTIALITY

The Processor will ensure that its personnel and contractors engaged in the Processing of Personal Data have committed themselves to confidentiality or are otherwise under a statutory obligation of confidentiality.

5. SUB-PROCESSORS

5.1 Appointment of Sub-processors

5.1.1 Customer acknowledges and agrees that:

1. the Processor’s Affiliates may be engaged as sub-processors; and
2. the Processor and the Processor’s Affiliates may each engage third party sub-processors in connection with the provision of the Services.

5.1.2 The Customer hereby grants the Processor general written authorisation to engage with sub-processors that are currently used by the Processor or any other sub-processor to process Personal Data.

5.2 Agreements with Sub-processors

The Processor or a Processor’s Affiliate have entered into a written agreement with each existing sub-processor and will enter into a written agreement with each new sub-processor, containing the same or materially similar data protection obligations as set out in this DPA, in particular obligations to implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of the GDPR. Where a sub-processor fails to fulfil its data protection obligations concerning its Processing of Personal Data, the Processor will remain responsible to the Customer for the performance of the sub-processor’s obligations.

6. SECURITY AND AUDITS6.1 Controls for the Protection of Personal Data

The Processor will maintain appropriate industry-standard technical and organizational measures for protection of Personal Data Processed hereunder (including measures against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Personal Data, confidentiality and integrity of Personal Data). Upon the Customer’s reasonable request, the Processor will reasonably assist the Customer, at the Customer’s cost and subject to the provisions of Section ‎11.1 below, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the Processing and the information available to the Processor.

6.2 Audits and Inspections

Upon the Customer’s 14 days prior written request at reasonable intervals (but no more than once every 12 months), and subject to strict confidentiality undertakings by the Customer, the Processor will make available to the Customer that is not a competitor of the Processor (or the Customer’s independent, reputable, third-party auditor that is not a competitor of the Processor and not in conflict with the Processor, subject to their confidentiality and non-compete undertakings) information necessary to demonstrate compliance with this DPA, and allow for and contribute to audits, including inspections, conducted by them.

The Processor may satisfy its obligations under this section by answering the Customer’s questionnaire-based audits and/or by providing the Customer with attestations, certifications and summaries of audit reports conducted by accredited third party auditors solely related to the Processor’s compliance with this DPA. Any information relating to audits, inspections and the results therefrom, including the documents reflecting the outcome thereof, shall only be used by the Customer to assess the Processor’s compliance with this DPA, and will not be used for any other purpose or disclosed to any third party without the Processor’s prior written approval. Upon the Processor’s first request, the Customer will transfer to the Processor all records or documentation that was provided by the Processor or collected and/or generated by the Customer (or each of its mandated auditors) in the context of the audit and/or the inspection.

6.3 Audit Obligations

In the event of an audit or inspections as set forth above, the Customer will ensure that it (and each of its mandated auditors) will not cause (or, if it cannot avoid, minimise) any damage, injury or disruption to the Processor’s operations, premises, equipment, personnel and business, as applicable, while conducting such audit or inspection.

6.4 Limitation of Rights

The audit rights set forth in ‎6.2 above, will only apply to the extent that the Agreement does not otherwise provide the Customer with audit rights that meet the relevant requirements of Data Protection Laws (including, where applicable, article 28(3)(h) of the GDPR or the UK GDPR). If and to the extent that the Standard Contractual Clauses apply, nothing in this Section 6 varies or modifies the Standard Contractual Clauses nor affects any Supervisory Authority’s or Data Subject’s rights under the Standard Contractual Clauses.

7. DATA INCIDENT MANAGEMENT AND NOTIFICATION

7.1 Incident Management Policies

The Processor maintains internal security incident management policies and procedures and, to the extent required under applicable Data Protection Laws, will notify the Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data Processed by the Processor on behalf of the Customer (a “Data Incident”).

The Processor will make reasonable efforts to identify and take those steps as the Processor deems necessary and reasonable designed to remediate and/or mitigate the cause of such Data Incident to the extent the remediation and/or mitigation is within the Processor’s reasonable control. The obligations herein will not apply to Data Incidents that are caused by the Customer, its Users or anyone who uses the Services on the Customer’s behalf.

7.2 Non-disclosure

The Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Data Incident which directly or indirectly identifies the Processor (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without the Processor’s prior written approval, unless, and solely to the extent that, the Customer is compelled to do so pursuant to applicable Data Protection Laws. In the latter case, unless prohibited by such laws, the Customer will provide the Processor with reasonable prior written notice to provide the Processor with the opportunity to object to such disclosure and in any case the Customer will limit the disclosure to the minimum scope required by such laws.

8. RETURN AND DELETION OF PERSONAL DATA

Following termination of the Agreement and cessation of the Services, at the choice of the Customer (indicated through the Platform or in written notification to the Processor), the Processor upon notice by the Customer, will delete or return to the Customer all the Personal Data it Processes on behalf of the Customer in the manner described in the Agreement, unless laws applicable to the Processor requires or permits otherwise.

9. CROSS-BORDER DATA TRANSFERS

9.1 Transfers from the EEA, Switzerland and the United Kingdom to countries that offer an adequate level of data protection.

Personal Data may be transferred from EU Member States and Norway, Iceland and Liechtenstein (collectively, “EEA”), Switzerland and the United Kingdom (“UK”) to countries that offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant authorities of the EEA, Switzerland, and/or the UK as relevant (“Adequacy Decisions”), as applicable, without any further safeguard being necessary.

9.2 Transfers from the EEA, Switzerland and the United Kingdom to other countries

If the Processing of Personal Data by the Processor includes a transfer (either directly or via onward transfer):

1. from the EEA to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative compliance mechanism recognized by Data Protection Laws (as may be adopted by Processor in its own discretion), the terms set forth in the EU SCCs shall apply;
2. from the UK to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative compliance mechanism recognized by Data Protection Laws (as may be adopted by Processor in its own discretion), the terms set forth in the UK Addendum shall apply;
3. from Switzerland to other countries which have not been subject to a relevant Adequacy Decision, and such transfers are not performed through an alternative compliance mechanism recognized by Data Protection Laws (as may be adopted by Processor in its own discretion), the terms set forth in the Switzerland Addendum shall apply; and
4. the terms set forth in Annex V of the EU SCCs (Additional Safeguards) shall apply to any of the above transfers, where the Standard Contractual Clauses apply.

9.3 Transfer from other countries:

If the Processing of Personal Data by Processor includes a transfer of Personal Data by and/or mandated by the Customer to the Processor from any other jurisdiction which mandates a particular compliance mechanism for the lawful transfer of such data be established, the Customer will notify the Processor of such applicable requirements, and the Parties may seek to make any necessary amendments to this DPA in accordance with provisions of Section 11.2 below.

10. AUTHORIZED AFFILIATES10.1 Contractual Relationship

The Parties acknowledge and agree that, by agreeing to this DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorised Affiliates, in which case each Authorised Affiliate agrees to be bound by the Customer’s obligations under this DPA, if and to the extent that the Processor Processes Personal Data on the behalf of such Authorised Affiliates, thus qualifying them as the “Controller” with respect to the Personal Data Processed on their behalf. All access to and use of the Services by Authorised Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorised Affiliate will be deemed a violation by the Customer.

10.2 Communication

The Customer will remain responsible for coordinating all communication with the Processor under the Agreement and this DPA and will be entitled to make and receive any communication in relation to this DPA on behalf of its Authorised Affiliates.

11. OTHER PROVISIONS11.1 Data Protection Impact Assessment and Prior Consultation

Upon the Customer’s reasonable request, the Processor will provide the Customer, at the Customer’s cost, with reasonable cooperation and assistance needed to fulfil the Customer’s obligation under the GDPR or the UK GDPR (as applicable) to carry out a data protection impact assessment related to the Customer’s use of the Services, to the extent the Customer does not otherwise have access to the relevant information, and to the extent such information is available to the Processor. The Processor will provide, at the Customer’s cost, reasonable assistance to the Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section 11.1, to the extent required under the GDPR or the UK GDPR, as applicable.

11.2 Modifications

Each Party may by at least forty-five (45) calendar days prior written notice to the other Party, request in writing any variations to this DPA if they are required as a result of any change in applicable Data Protection Laws to allow Processing of Customer Personal Data to be made (or continue to be made) without breach of such Data Protection Laws. Pursuant to such notice the Parties will use commercially reasonable efforts to accommodate such required modification, and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements under applicable Data Protection Law as identified in the Customer’s or the Processor’s notice as soon as is reasonably practicable. In addition, the Processor may amend this DPA from time to time without notice, provided that such changes are not adverse in any material aspect with respect to the Customer’s rights or the Processor’s obligations (i.e. error and typos fixing, making technical adjustments or for any other reasons as the Processor deems necessary). For clarity, if the Processor makes any material adverse change to the Customer’s rights or the Processor’s obligations, the Processor will notify the Customer by posting an announcement on the site, via the Service and/or by sending an email.

SCHEDULE 1 – DETAILS OF THE PROCESSING

Nature and Purpose of Processing

1. Providing the Services to the Customer;
2. Performing the Agreement, this DPA and/or other contracts executed by and between the Parties;
3. Acting upon the Customer’s instructions, where such instructions are consistent with the terms of the Agreement;
4. Sharing Personal Data with third parties in accordance with the Customer’s instructions and/or pursuant to the Customer’s use of the Services (e.g., integrations between the Services and any services provided by third parties, as configured by or on behalf of the Customer to facilitate the sharing of Personal Data between the Services and such third party services);
5. Complying with applicable laws and regulations;
6. All tasks related to any of the above.

Duration of Processing

Subject to any section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, the Processor will Process Personal Data for the duration of the Agreement and provision of the Services thereunder, unless otherwise agreed upon in writing.

Type of Personal Data

The Customer may submit Personal Data to the Services, the type and extent of which is determined and controlled by the Customer in its sole discretion.

Categories of Data Subjects

The Categories of Data Subjects relating to the Personal Data that will be processed by the Processor are dependent on the Customer, and may include, but are not limited to, any of the following categories:

• Employees, agents, advisors, freelancers of Customer (who are natural persons);
• Prospects, customers, business partners and vendors of Customer (who are natural persons);
• Employees or contact persons of Customer’s prospects, customers, business partners and vendors;
• Any other third party individual with whom Customer decides to communicate through the Services.

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