Enboarder Terms of Service - Australia

1. AGREEMENT

• This Agreement governs Enboarder's provision of the Online Services and Customer's access to and use of the Online Services. It contains the general terms and conditions applicable to all such Online Services.
• By accepting these Terms of Service, Customer acknowledges that Customer has read, understood and agrees to be bound by these Terms of Service which, together with the Privacy Policy, Data Protection Addendum and Acceptable Use Policy, govern Enboarder's relationship with Customer in relation to the Online Services. Order Forms may contain additional terms specific to the Online Services provided thereunder.
• If you are an individual entering into this Agreement on behalf of an entity, such as your employer, you represent that you have the legal authority to bind that entity.

2. DEFINITIONS

In this Agreement, unless the context requires otherwise:

• "Acceptable Use Policy" means Enboarder's Acceptable Use Policy available at https://enboarder.com/acceptable-use as updated from time to time on the Website and incorporated by reference into the Agreement;
• "Add-Ons" means advanced functionality to support the Platform which Customer may request under section 5;
• "Add-On Fees" means the fees for the Add-Ons published on the Website;
• "Applications" means software programs provided by Customer that run on or run through the Platform;
• "Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
• "Content" means Personal Data and all other text, files, images, graphics, illustrations, information, data (including audio, video, photographs, and other content and material), in any format, provided by Customer that are uploaded, reside in, run on or run through, the Platform;
• "Data Protection Addendum" means Enboarder's Data Protection Addendum attached hereto as Addendum A and incorporated by reference into this Agreement;
• "Data Protection Laws" has the meaning set forth in Enboarder's Data Protection Addendum (See Addendum A);
• "Documentation" means material describing the functional processes, assumptions, specifications, and principal operations of the Platform which has been designated by Enboarder as the official documentation for the Platform;
• "Feedback" means all suggestions comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic, or written form) to Enboarder related to the Online Services;
• "Fees" means the Subscription Fees and Add-On Fees;
• "Initial Subscription Period" means the period specified in the applicable Order Form;
• "Intellectual Property Rights" means all intellectual property rights throughout the world, including but not limited to, the following rights: copyright (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notification, drawings specifications and databases); moral rights, trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information, and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing;
• "Internal Purposes" means internal business use within Customer's systems, networks, and devices;
• "Log-In Credentials" means sign-in identification and password or other method of access that Enboarder provides to Customer in order to access the Subscription;
• "Malicious Code" means, without limitation, code, files, scripts, agents or programs intended to do harm, including, without limitation, viruses, worms, bombs and trojan horses;
• "Online Services"means any and all of the services, Software, and other offerings provided by Enboarder pursuant to the Agreement, including the Subscription, the offerings provided through the Website, any mobile applications and APIs provided by Enboarder, and all such services and software labelled as alpha, beta, pre-release, trial, preview or otherwise. Online Services may include any enhancements, updates, upgrades, derivatives, or bug fixes to such services, software and offerings, and any documentation, add-ons, templates and sample data sets;
• "Order Form" means an order for the Online Services (using Enboarder's template) signed by the Customer and accepted by Enboarder, which specifies the Subscription, including, without limitation, the number of seats or users, the Initial Subscription Period, the Subscription Fees, and any additional terms applicable to the Subscription;
• "Payment Date" means the recurrent date (monthly or annual) for payment of the Fees as specified in the Order Form;
• "Personal Data" means any information relating to an identified or identifiable natural person which is uploaded to the Platform by or on behalf of the Customer in connection with the Customer's use of the Subscription;
• "Platform" means the workflow platform located at https://enboarder.com/ and related services located in the https://enboarder.com/ domain and subdomains, including software, code, algorithms, hosted services, and web interfaces that is comprised of the web-based authoring environment to create and monitor workflows, and the mobile-first screens that are delivered to manager(s) and employees which are part of the Online Services;
• "Privacy Policy" means Enboarder's Privacy Policy available at https://enboarder.com/privacy as updated from time to time on the Website;
• "Software" means any software forming part of the Platform and/or Add-Ons;
• "Subscription" means the non-exclusive, non-sublicensable, non-transferrable, revocable, limited right and license to access and use the Platform for an Internal Purpose during the Subscription Period, as specified in an Order Form;
• "Subscription Fees" means the monthly or annual fee for the Subscription as set out in the Order Form, or published on the Website from time to time, which Customer must pay in advance to Enboarder in accordance with section 6;
• "Subscription Period" means the Initial Subscription Period as extended under section 17(b); and
• "Website" means www.enboarder.com.

3. LICENSE GRANT

Customer's Subscription is subject to and governed by the terms and conditions in this Agreement, including those in the applicable Order Form. In the event of a conflict between the terms in and Order Form and these Terms of Service, the terms in the Order Form will control with respect to the Subscription provided under such Order Form. The Subscription is granted subject to and conditional on Customer's compliance with the Agreement and upon payment of the Fees in accordance with section 6.

4. USE OF THE SUBSCRIPTION

• To receive the Subscription, Customer must:
  1. Use the Log-In Credentials;
  2. For the duration of the Subscription Period, provide Enboarder with access to and a right to use, process, and transmit Customer's Content and Customer's Applications for the purposes of providing the Subscription and for any other purposes specified in the Agreement; and
  3. Follow any operating procedures and use any software as may be specified in the Documentation or as may be notified by Enboarder from time to time.
• It is a condition of Customer's Subscription that Customer complies at all times with the Acceptable Use Policy.
• Customer acknowledges that Customer is responsible for all hardware, software, and telecommunications services used to access and use the Subscription.

5. ADD-ONS

Customer may, during the Subscription Period, request the provision of Add-Ons to be included as part of the Subscription. If the request for Add-Ons is agreed by Enboarder, Customer must pay Enboarder the Add-On Fees at the time set out in section 6. The Agreement will govern Customer's use of and access to such Add-Ons.

6. FEES AND PAYMENT

7. OWNERSHIP AND LICENSE RESTRICTIONS

8. LINKS AND TOOLS

9. PERSONAL DATA

10. CONTENT

11. FEEDBACK

Customer agrees to provide Enboarder with Feedback. Enboarder, in its sole discretion, may or may not respond to Customer's Feedback or promise to address all of Customer's Feedback in the development of future features or functionalities of the service or any related or subsequent versions of such service. Customer assigns, at no charge, all rights, title and interests in Feedback to Enboarder, and agrees that Enboarder is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer. Customer warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Customer has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Enboarder Terms of Service_Jan2023 9 you). Customer further warrants that Customer's Feedback is not subject to any license terms that would purport to require Enboarder to comply with any additional obligations with respect to any service that incorporates Customer's Feedback.

12. SECURITY, VIRUSES, ERRORS AND AVAILABILITY

• Customer acknowledges that:
  1. the internet is an insecure public network which means that there are risks that information sent to or from the Online Services may be intercepted, corrupted, or modified by third parties; and
  2. files obtained from and through the Online Services may contain Malicious Code.
• Customer bears the risks and responsibility for any loss or damage caused, directly or indirectly, by the risks described in this section 12, and Enboarder accepts no liability for any interference with, or damage to, Customer's computer system, device, software, Content or other data occurring in connection with Customer's access or use of the Online Services.
• Notwithstanding the foregoing, Enboarder will take all commercially reasonable steps to maintain the security and the integrity of the Online Services. Specifically, Enboarder will:
  1. implement appropriate administrative, physical and technical safeguards to protect Customer's Content; and
  2. as soon as it becomes aware that Malicious Code is contained in or affects the Online Services and/or that any of Customer's Content has, or may have been, subject to unauthorized access, immediately notify Customer and take all reasonable steps to remedy the problem, secure the Content and remove the Malicious Code, as applicable.

13. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

• No representation or warranty (express or implied) is made as to the currency, completeness, accuracy, reliability, suitability, and/or availability of any information on the Website.
• Subject to sections 13(d), 13(e), and 13(f), Enboarder will use commercially reasonable efforts to ensure that the Subscription will operate in accordance with the applicable Documentation.
• Each party represents and warrants that it has the full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.
• If the Subscription (including the functionality of the Platform) fails to operate in accordance with the applicable Documentation during the Initial Subscription Period and Customer notifies Enboarder in writing of this failure, Enboarder, at its cost, will correct the failure provided that Enboarder may decline to correct the failure if such correction cannot be completed in a commercially reasonable manner but in such event, Customer may terminate this Agreement and recover a pro-rata portion of the Subscription Fees paid by Customer that are attributable to the failed services. This section 13(d) states Enboarder's sole liability and Customer's exclusive remedy for any breach of section 13(b).
• The warranty in section 13(b) will not apply if the failure of the Subscription resulted from improper use or a defect in or failure of any device, communications link or software used to access the Subscription.
• EXCEPT AS SET FORTH IN SECTION 13(b) AND 13(c), ENBOARDER DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW. ENBOARDER SPECIFICALLY DOES NOT WARRANT THAT THE SUBSCRIPTION WILL MEET CUSTOMER'S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE SUBSCRIPTION WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE, OR UNINTERRUPTED.

14. INDEMNIFICATION

15. CONFIDENTIALITY

16. LIMITATION OF LIABILITY

• To the extent permitted by applicable law, in no event will Enboarder be liable to Customer for any special, indirect, incidental, consequential, exemplary, or punitive damages, or for any loss of use, data, content, applications, goodwill or profits, business interruption, or costs of procuring substitute software or services, arising out of or in connection with this Agreement or the use or performance of the Subscription. Without limiting the foregoing, Enboarder will have no liability or responsibility for any business interruption or loss of data, content, or applications arising from the automatic termination of the license rights granted herein and any associated cessation of the Platform or Subscription, its functions, any unanticipated or unscheduled downtime for any reason or any deletion, corruption or damage of data, content, or applications on or through the Platform or Subscription.

  To the extent permitted by applicable law, Enboarder's total cumulative liability to Customer, from all causes of action and all theories of liability in connection with this Agreement and the supply of the Online Services, including all Order Forms, at any time will be limited to and will not exceed the fees actually paid by Customer to Enboarder for the Subscription in the 12 month period immediately preceding the date of the event that gave rise to such cause of action ("liability cap").

• The foregoing limitations, exclusions and disclaimers shall apply regardless of whether such liability arises from any claim based upon contract (including under any indemnity), warranty, tort (including negligence), strict liability or otherwise, and whether or not a party has been advised of the possibility of such loss or damage. Insofar as applicable law, including the Australian Consumer Law, prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent required to make the limitation compliant with applicable law. The parties agree that the limitations on liabilities set forth herein are agreed allocations of risk and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy.
• Enboarder limits its liability for any failure to comply with a consumer guarantee under the Australian Consumer Law to, at its options, supplying the relevant services again or paying the cost of having the services supplied again.

17. SUBSCRIPTION PERIOD AND TERMINATION

• Unless earlier terminated in accordance with this Agreement, the Initial Subscription Period will commence on the Effective Date and end on the term set forth in the applicable Order Form.
• The initial Subscription Period will automatically renew for additional periods of 12 months, unless a party provides written notice to the other party of its intention not to renew at least 30 days prior to expiration of the Initial Subscription Period or any subsequent 12-month period, as appropriate.
• Without limiting any other right or remedy Enboarder may have against Customer arising out of or in connection with this Agreement, Enboarder may, at its option, terminate Customer's Subscription with immediate effect by giving Customer prior written notice if:
  1. Customer fails to comply with the Acceptable Use Policy when accessing or using the Subscription;
  2. Customer commits a material breach of any terms in this Agreement where that breach is not capable of remedy; or
  3. Customer breaches any other provision of this Agreement and fails to remedy that breach within 14 days after receiving notice requiring Customer to do so.
• If Customer's Subscription is terminated under section 17(c), Enboarder will not be liable and Customer will not be entitled to any refund of any part of the Fees previously paid.
• Immediately upon termination of this Agreement:
  1. all Order Forms and licenses granted under this Agreement will immediately terminate and Customer must immediately cease all use of the Subscription;
  2. Customer must destroy, or upon Enboarder's request, return to Enboarder the Confidential Information that is in Customer's possession or control; and
  3. any and all of Customer's payment obligations under each Order Form will immediately become due. Upon Enboarder's request, Customer must certify in writing that it has returned or destroyed all copies of Enboarder's Confidential Information.
• Clauses 1, 6, 7, 10, 11, 13 – 19 will survive termination of this Agreement.

18. GENERAL

• Compliance with Laws. Customer must comply fully with all applicable laws, including all applicable laws relating to bribery or corruption, and export laws and regulations of any country where Customer uses or accesses any portion or functionality of the Subscription.
• Assignment and Novation. Customer may not assign, delegate or transfer this Agreement or give or transfer the Subscription, Documentation or an interest in them to another individual or entity, in whole or in part, by agreement, operation of law or otherwise. Any attempt to assign this Agreement other than as permitted herein will be null and void. Customer acknowledges that Enboarder may assign, subcontract, or delegate any of its rights or obligations under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties' permitted successors and assigns.
• Entire Agreement. This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
• Severability. This Agreement is declared to be severable. If a court of competent jurisdiction holds any part of this Agreement void, invalid, or unenforceable, it is severed and will be deemed to be omitted to the extent that it is void, invalid, or Enboarder Terms of Service_Jan2023 16 unenforceable, and the remainder of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
• Waiver. A waiver by either party in respect to a breach of a term of this Agreement by the other party will not be taken to be a waiver in respect of any other breach. The failure to enforce any term of this Agreement will not be interpreted as a waiver of that term.
• Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New South Wales, Australia, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction. The parties agree that any action, proceeding, controversy, or claim between them arising out of or relating to this Agreement (collectively, an "Action") must be brought only in a court of competent jurisdiction in Sydney, Australia. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action. The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods will apply to this Agreement, regardless of the state in which the parties do business or are incorporated.

1. Definitions.

2. Processing of Controller Personal Data

3. Processor and Processor Affiliate Personnel

Processor and each Processor Affiliate shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Controller Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Controller Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Data Protection Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

5. Subprocessing

6. Data Subject Rights.

7. Personal Data Breach.

8. Data Protection Impact Assessment and Prior Consultation

Processor and each Processor Affiliate shall provide reasonable assistance to each Controller Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers to be required of any Controller Group Member by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Controller Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors

9. Deletion or return of Controller Personal Data

10. Audit rightsa

11. Restricted Transfers

12. General Terms

ANNEX 1: DETAILS OF PROCESSING OF CONTROLLER PERSONAL DATA

This Annex 1 includes certain details of the Processing of Controller Personal Data as required by Article 28(3) GDPR.

Data controller

Data processor

Data subjects

Categories of data

Special categories of data (if appropriate)

Processing operations

ANNEX 2: DETAILS IN RELATION TO RESTRICTED TRANSFERS

Details of Processing

This forms part of the agreement between the Controller and Processor

• List of Parties

  1. Data Exporter:
     • Name: Company listed in the Agreement
     • Address: As listed in the Agreement
     • Contact person's name, position and contact details: Activities relevant to the data transferred under these Clauses: Initiate an effective digital onboarding program for new joiners
     • Role (controller/processor): Controller
  2. Data Importer:
     • Name: Enboard.me Pty Ltd
     • Address: 121 Sussex St, Sydney NSW 2000 Australia Contact person's name, position and contact details: Aleia Waldmann, Director of Legal Operations, privacy@enboarder.com Activities relevant to the data transferred under these
     • Clauses: Providing people activation services via the Enboarder services
     • Role (controller/processor): Processor

• Description of Transfer

  1. Categories of data subjects whose personal data is transferred

     The personal data transferred concern the following categories of data subjects:

     Individual hired by data exporter (New Hire), customer employees (HR, manager of the New Hire, mentor, buddy)

  2. Categories of personal data transferred
     The personal data transferred concern the following categories of data:

     • New Hire: first name, surname, email address, phone number, bank details, right to work documents, next of kin information, academic certificates, office location, function, business division/ team
     • Customer's employees: name, email address
  3. Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

     N/A

  4. The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

     Continuous

  5. Nature of the processing

     The personal data transferred will be subject to the following basic processing activities:

     Storage on servers located within the EEA (except where Restricted Transfers applies, in which case personal data may be stored on servers located in the data importer's country), deletion, and other processing requested by the data controller

  6. The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

     Upon the termination or expiration of the Agreement, or at any time upon Data Controller's request, Data Processor will immediately cease to process Data Controller Data and will promptly return or destroy the Data Controller Data (including all copies) in Data Processor's possession or control (including any Data Controller Data held by Subprocessors) as instructed by Data Controller.

  7. For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

     Please refer to Annex III below

2. Technical and Organizational Measures

This Appendix forms part of the agreement between the Processor and any Contracted Processor.

ANNEX III
LIST OF SUBPROCESSORS