These Terms of Service ("Terms”) form a legal agreement between you and 123worx Inc., a corporation incorporated under the laws of the province of Ontario, Canada, with its principal place of business at 865 Taylor Creek Drive, Ottawa, Ontario, K4A 0Z9, Canada ("123worx").
123worx is a software-as-a-service (“SaaS”) company that offers integrated cloud-based software platform for construction management. 123worx provides its users the cost effective and easy to use solution to manage multiple projects with greater efficiency and flexibility. Please read these Terms and our Privacy Statement carefully because they govern your access to and use of the Service. The terms of our Data Processing Addendum may also apply to your use of the Service. The Privacy Statement and Data Processing Addendum are incorporated into these Terms by reference.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCEPTING THESE TERMS, OR ACCESSING OR USING THE SERVICE, YOU WILL BE BOUND BY THESE TERMS.
If you are agreeing to these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity. You must also be at least eighteen (18) years old to agree to these Terms. If you do not have such authority, are not at least eighteen, or if you do not agree with these Terms, you may not use the Service.
123worx reserves the right, at its sole discretion, to modify, discontinue or terminate the Service or to modify these Terms, at any time. These Terms can be viewed any time at https://www.123worx.com/terms-of-service. If we modify these Terms, we will post them on our website and update the Last Revised date. By continuing to access or use the Service after we have modified the Terms, you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you agree to immediately stop using the Service.
1.1 "Affiliate" means any entity which 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;
1.2 "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure;
1.3 "Plan" means the level of 123worx service, resources and support for which you have subscribed, and which are set out in a separate signed document;
1.4 “Service” means any of 123worx’s SaaS offerings or services, including its mobile application (“App”) and server deployed application(s);
1.5 "Support” means any assistance that 123worx offers related to its Service(s);
1.6 "User" means your employee, independent contractor, consultant, or agent that is identified and authorized by you to use the Service; and,
1.7 “Your Data” any data or information that you push or pull into the Service for the purpose of running your business, managing construction projects and data visualization or creating a new, actionable perspective on your business.
2.Rights and Restrictions:
2.1 Subject to these Terms, you are granted a non-exclusive, non-transferable (except as permitted by 123worx or Section 10.5) license: (i) for the number of Users and the features listed in the applicable plan; and, if applicable, (ii) to download, install, access and use the App on your mobile device. Only one User can access the Service through a specific user ID and password at a time. Your use of the Service is subject to additional terms and conditions: (i) set out in the applicable Plan, including the duration of the term of your subscription; (ii) required by the distributor from whom you downloaded the App (e.g. Apple App Store, Google Play, etc.); and, (iii) from our third party integration partners. The Service provides you and your provisioned users the ability to easily connect and access your company data and rich feature set to manage your construction business. 123worx uses third-party software and services to offer you a feature rich solution. Some of these third-party software and services have terms and conditions and, by making use of the 123worx, you acknowledge and agree that your use of the Service may be subject to terms and conditions of those third-party providers. For example:
2.1.1 While using, Google chrome, Google geo-location service, YouTube, Microsoft 365, SendGrid and other integrated software packages in 123worx, you agree to the terms of service and conditions from these service providers.
2.1.2 While using 123worx you will use the several integrated software including TreeGrid, Aspose, Rappid and Froala.
2.2 If you are granted permission by 123worx, you may participate in the 123worx for Education program. For six months from your start date in the 123worx for Education program, 123worx grants you, the instructor, a non-exclusive, non-transferable, academic license to access and use the Service for instructional purposes, including the development of teaching materials based on the Service. You may also grant academic licenses to students enrolled in the specified course, as well as to instructors for the course. Despite what it says in Section 8.1 of these Terms, academic licenses do NOT auto-renew. If you’d like to renew your academic license for a subsequent term, please re-apply by contacting your 123worx representative. Academic licenses may only be used for course-related activity. Academic licenses may not be used for commercial purposes, consulting, paid research or institutional use outside of the specified course.
2.3 You may not: (i) copy, adapt, change, alter or otherwise modify or create derivative works based on the Service; (ii) decompile, disassemble, or otherwise reverse engineer the Service; (iii) sell, rent, lease, provide, disclose, sublicense, distribute, repackage, transfer, or assign the Service in whole or in part except as permitted by 123worx or Section 10.5; (iv) use the Service to provide hosting, outsourcing or subscription service; or, (v) use the Service to access, transmit, receive or store any information for which you either do not have the right or permission to access, transmit, receive or store or which is derogatory, defamatory, obscene or offensive.
2.4 You will take appropriate steps, both before and while using the Service, to copy or backup and protect Your Data in case it is lost, altered or destroyed by using the Service. You will be responsible for replacement, repair or recreation of Your Data in the event of a hardware, software, or Service failure. 123worx will not, under any circumstances, be responsible for any of these types of losses or damages.
2.5 123worx does not restrict or monitor Your Data. You represent and warrant that you have all the rights and permissions necessary to use and alter Your Data in conjunction with the Service. The Service permits you to share Your Data and you acknowledge and agree that you are responsible for ensuring that you have all the rights and permissions to share Your Data should you choose to do so using the Service.
2.6 Your Data belongs to you. You grant 123worx a non-exclusive, royalty-free, worldwide sub-licensable right and license to access and use Your Data in order to provide the Service as contemplated by these Terms. 123worx may use Your Data to not only provide the Service as it exists today, but also to allow 123worx to provide you with innovative features and services that it may develop in the future. 123worx collects this information directly, but it also uses third party software for this purpose as further described in its Privacy Statement. You agree that 123worx: (i) may create aggregate and/or de-identified information from Your Data (“Aggregate Data”); (ii) may offer you personalized suggestions based on your Aggregate Data; (iii) may combine such aggregate and/or de-identified information with that of other Users; and, (iv) has the exclusive ownership of any Aggregate Data and the exclusive right to use Aggregate Data for any purpose as long as 123worx does not use or distribute any Aggregate data in a way which identifies you, your Users or Your Data.
2.7 123worx may compile, analyze and run analytics on how Users use the Service, as well the performance of the Service itself. 123worx will collects this information directly, but it may also uses third party software for this purpose as further described in its Privacy Statement. This usage and performance data is referred to as “Usage Data”. 123worx uses Usage Data to build features and improve the functionality and feature set of the Service. You agree that 123worx: (i) may offer you personalized suggestions based on your Usage Data; (ii) may create aggregate and/or de-identified information from your Usage Data; (iii) may combine such aggregate and/or de-identified information with that of other Users; and, (iv) has the exclusive ownership of any Usage Data and the exclusive right to use Usage Data for any purpose as long as 123worx does not use or distribute any Usage Data in a way which identifies you, your Users or Your Data.
2.8 123worx shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you or your Users, relating to the Service.
3. Intellectual Property: Ownership in the Service, and the software powering the Service, will at all times remain with 123worx. 123worx will retain all right, title, copyright, trade secrets, patents, trademarks, and other proprietary and intellectual property rights in the Service and the software powering the Service. You do not acquire any rights in the Service or the software powering the service, other than those specified in these Terms. You will not remove any copyright, patent, trademark, design right, trade secret or any other proprietary rights or legends from the Service, unless you are permitted to do so by subscribing to 123worx’s White Label feature, an add-on available as part of your Plan.
4.1 Your Confidential Information shall include Your Data; 123worx's Confidential Information shall include the Service, including Usage Data and Aggregate Data; and Confidential Information of each party shall include the information about your Plan, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that: (i) is publicly known or readily ascertainable by the public, through no wrongful act of Receiving Party; (ii) is received from a third party without breaching an obligation owed to the Disclosing Party; (iii) is independently developed by or for the Receiving Party; or, (iv) was in its possession prior to it being furnished to the Receiving Party by the Disclosing Party.
4.2 The Receiving Party agrees that Confidential Information of the Disclosing Party: (i) will not be used for any purpose outside the scope of these Terms; (ii) will be treated with the same degree of care as similar information of the Receiving Party is treated within the Receiving Party’s organization (but in no event less than reasonable care); (iii) will not be used for the benefit of a third party; and, (iv) will remain the property of the Disclosing Party. The Receiving Party will limit access to Confidential Information of the Disclosing Party except as otherwise authorized by the Disclosing Party in writing, to those of its and its Affiliates' employees, officers, directors, contractors, and agents who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Disclosure of Confidential Information by the Disclosing Party’s employees, officers, directors, contractors, agents or Affiliates is deemed to be the disclosure by the Disclosing Party.
4.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
4.4 The obligations of the Receiving Party set forth in this section will remain in effect for a period of five (5) years following the date of first disclosure. Confidential information identified as a trade secret will be held in confidence indefinitely.
5. Disclaimer of Warranties:
5.1 123worx warrants that: (i) it has validly entered into these Terms and has the legal power to do so; (ii) the Service will perform materially in accordance with the online documentation for the Service; and, (iii) the functionality of the Service will not be materially decreased during a subscription term.
5.2 THE SERVICE IS NOT COMPLIANT WITH THE REQUIREMENTS OF THE UNITED STATES HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA). EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. Limitation of Damages:
6.1 IN NO EVENT WILL 123WORX (OR ITS EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS) BE LIABLE TO YOU, OR ANY THIRD PARTY CLAIMING THROUGH YOU, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF INCOME, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INCREASED COSTS OF OPERATION, LITIGATION COSTS, AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE, OR PERFORMANCE OF THE SERVICE, REGARDLESS OF WHETHER 123WORX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 123WORX'S AGGREGATE LIABILITY TO YOU, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, OR OTHERWISE WILL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, BE LIMITED TO DIRECT DAMAGES AND WILL IN NO CIRCUMSTANCES EXCEED, IN THE AGGREGATE, THE FEES PAID TO 123WORX BY YOU FOR THE SERVICE IN THE YEAR PRECEDING THE CLAIM.
7.1 You will pay the amount agreed to as part of your Plan and any amendments made to your Plan. If you have chosen to pay the fee by recurring credit card charges or other online payment method, the fee will be charged automatically at the frequency you have selected. If you have chosen to pay by check or wire, the payment is due upon receipt of the invoice and shall be received by 123worx within 30 days to avoid restrictions being placed on the account.
7.2 All fees set out in your Plan are exclusive of all taxes, levies, or duties imposed by taxing authorities (“Taxes”). In Canada and the United States, we will charge Taxes to you, as applicable, then collect and remit them on your behalf. In the event that there are other Taxes applicable in your jurisdiction, you are solely responsible to remit such Taxes to the appropriate authority.
7.3 Should you make amendments to increase your Plan or purchase additional Support or Service offerings, this will result in an immediate charge to you of a prorated amount reflecting the increase in price for the remainder of the term of your Plan. Should you make an amendment to your Plan to decrease your Plan or decrease the Support or Service offering that you are receiving, any decrease in price will be reflected at the beginning of the next term of your Plan. There will be no refunds or credits for partial periods of service or periods of inactivity.
8. Term and Termination:
8.1 The Terms become effective on the date you accept them or commence using the Service and will continue for the duration of the committed subscription term specified in your Plan. Your subscription term shall automatically renew for additional periods equal to the expiring term unless either party gives the other thirty days’ notice of non-renewal before the end of the relevant term.
8.2 Should you cancel your subscription to the Service, these Terms will terminate at the end of the period for which you have committed to pay fees and you agree to cease using the Service. Any fees that you have committed to paying must still be paid.
8.3 123worx, in its reasonable discretion, has the right to suspend or terminate this Agreement and use the Service by you. 123worx will use all reasonable efforts to contact you directly via email to warn you prior to suspension or provide you with the effective date of termination.
8.4 You are solely responsible for contacting 123worx to cancel the Service or request deletion of Your account. 123worx will delete Your Data within two months of you cancelling your subscription to the Service or, if earlier, upon receipt of a written request to delete Your Data.
9. U.S. Government Restricted Rights Legend: Software distributed to or on behalf of the United States of America, its agencies or instrumentalities ("U.S. Government") is provided with Restricted Rights. Use, duplication, or disclosure of Software by the U.S. Government is subject to the restrictions in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights at 48CFR52.227-19, as amended or applicable, or such other applicable rules and regulations.
10.1 Governing Law: These Terms will be governed by the laws of the Province of Ontario and the laws of Canada applicable in Ontario. Each party agrees that the courts of the Province of Ontario will have jurisdiction. The parties agree that the terms of the United Nations Convention of Contracts for the International Sale of Goods do not apply to these Terms.
10.2 Relationship of Parties: The parties are not agents or legal representatives of each other. The parties to these Terms are independent contractors. No relationship of principal to agent, master to servant, employer to employee, or franchisor to franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
10.3 Survival: The provisions in Articles 3, 5, 6, and 10 and Sections 2.3, 2.4, 2.6, 2.7, 2.8, 4.4 and 8.2 will survive termination of this Agreement.
10.4 Precedence: Conflicts will be resolved as follows: Data Processing Addendum; Privacy Statement; Terms.
10.5 Assignment: You may not assign these Terms or any of your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of 123worx (not to be unreasonably withheld). Notwithstanding the foregoing, you may assign these Terms, without 123worx’s consent, to your Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of your assets.
10.6 Waiver: The waiver by either party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. Except for actions for breach of 123worx's proprietary rights in the Service, no action arising out of these Terms may be brought by either party more than one (1) year after the cause of action has arisen.
10.7 Entire Agreement: These Terms, together with the Data Processing Addendum, the Privacy Statement and the terms of any Plan, comprise the complete agreement between us regarding the subject matter.
10.8 Severability: If one or more provisions of these Terms are held to be unenforceable under applicable laws, those provisions will be modified to the minimum extent necessary to comply with applicable law and the intent of the parties.
10.9 Export Administration: You represent: (i) that you are not named on any U.S. Government list of persons or entities prohibited from receiving exports from the United States; (ii) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and, (iii) you shall not access or use the Service or App in violation of any United States export embargo, prohibition or restriction.
10.10 Legal Notices; Contacting 123worx: All legal notices to 123worx shall be sent to email@example.com. Questions regarding the Service can be directed to firstname.lastname@example.org.
At 123worx Inc. (“123worx”), your privacy is important to us. The purpose of this privacy statement is to let you know how we collect, use and disclose Personal Information, and to inform you of your rights with respect to such Personal Information. This Privacy Statement is effective as of the effective date of your subscription to the Service.
123worx is a software-as-a-service (“SaaS”) company that offers integrated cloud-based software platform for construction management. 123worx provides its users the cost effective and easy to use solution to manage construction projects, their business, collaboration between various stake holders, and multiple projects with greater efficiency and flexibility.
APPLICABILITY OF PRIVACY STATEMENT
This Privacy Statement relates to “Personal Information”, meaning information about an identifiable individual, whether, for example, that individual is our Customer, or our Customer’s provisioned user or an individual whose information is part of Processed Data, as these terms are defined below. Whether a person is “identifiable” means that they can be identified by the information itself or by that information combined with other information reasonably available.
This Privacy Statement applies to Personal Information collected or managed by 123worx through the use of the Service, data source integrations, and our websites. This Privacy Statement is also intended to explain how we use information which is not identifiable (and thus not Personal Information) that is collected via our websites and the Service.
“Customer” refers to the customers of 123worx and their provisioned users.
“Customer Information” refers to information about our Customers and their provisioned users.
“Processed Data” refers to information that is processed by 123worx on behalf of our Customers through their use of the Service.
123worx does not have a direct relationship with many of the individuals whose Personal Information is included in Processed Data. This privacy statement is intended to provide information about how all Personal Information is collected, used, disclosed, processed, and protected by 123worx.
DATA SOURCE INTEGRATIONS
The Service provides Customers and their provisioned users the ability to easily connect to a wide variety of data sources using data source integrations. Some of these third party data source integration providers have terms and conditions particular to their data sources and, by making use of the data source integrations offered by 123worx, you acknowledge and agree that your use of the Service may be subject to terms and conditions of those third party providers.
Also, in addition to the normal 123worx procedure for deleting Processed Data stored within the Service, Customers can revoke access to their Google data via the Google security settings page at https://security.google.com/settings/security/permissions.
CLASSIFICATION OF INFORMATION
When the Service is used by our Customers, we classify the Personal Information we collect, use and disclose into two main categories: The first is Personal Information included in Customer Information, and the second is Personal Information that is included in Processed Data. It is important to note that not all Customer Information or Processed Data is Personal Information, either because it relates to a company or a business, or it is not identifiable.
123worx does not control what information a Customer chooses to include in Processed Data. Because we are unable to determine whether it is Personal Information or other information, we treat it as though it may be Personal Information but our Customers are entirely responsible for any Personal Information they choose to include in Processed Data. All Customers and their provisioned users should understand that data in 123worx can be exported, shared or displayed by a Customer or provisioned user. Customers and provisioned users are solely responsible for the use of such exported, shared or displayed data and for protecting it appropriately.
WHAT INFORMATION WE COLLECT
From our Customers, we may collect Customer Information that is necessary to establish and maintain the provision of the Service to them, as well as to understand and improve the usage and performance of the Service. When our Customers are corporations, as opposed to individuals, this information is not “Personal Information”. This Customer Information includes:
Information about how the Customer and its provisioned users use the Service, including information about the Customer, location information, usage patterns and intended use of the Service.
Information provided by the Customer and its provisioned users in connection with any support given by the 123worx team related to the Service.
Login information for third party integrations to 123worx, such as usernames and encrypted passwords
In connection with our marketing, sales and Customer support functions, we may collect publicly available information about our Customers and provisioned users, which is used for the purposes set out in this Privacy Statement.
PURPOSES FOR COLLECTION
DISCLOSURE OF PERSONAL INFORMATION
123worx may share Personal Information with people within the company who have a “need to know” the information for business or legal reasons, for example, in order to carry out an administrative function, such as processing an invoice or supporting questions that you have submitted to 123worx.
We may share Personal Information with third parties, including:
government and regulatory authorities, for example to respond to a legal request or comply with a legal obligation, in which case we will make reasonable efforts to give the relevant individual notice of the disclosure, provided we are able to identify the individual and are lawfully able to do so;
We may also share anonymous or de-identified information with other third parties in connection with the purposes outlined in this Privacy Statement.
Unless a Customer is using a Custom Data Store and therefore storing their Processed Data on their site, 123worx uses DNSNetwork Cloud Services to store and manage Customer Information and Processed Data in Canada and USA.
INFORMATION COLLECTED VIA OUR WEBSITE AND OUR APPLICATION
Cookies: Cookies are pieces of information stored directly on the computer that you are using. Cookies allow us to collect information such as browser type, time spent on the website, pages visited, language preferences, and other web traffic data. We use the information for security purposes, to facilitate online navigation, to display information more effectively, to personalize your experience while using the website, and to otherwise analyze user activity. We can recognize your computer to assist your use of the website.
Pixel tags and other similar technologies: Pixel tags (also known as web beacons and clear GIFs) may be used in connection with our website to, among other things, track the actions of users of the website and other means of communication with you (including e-mail recipients), measure the success of our marketing campaigns, and compile statistics about usage of the website and response rates.
SAFEGUARDING PERSONAL INFORMATION
We are required by law to safeguard the Personal Information in our custody or control. We use industry standard measures to protect Personal Information against loss or theft, as well as unauthorized access, disclosure, copying, use, or modification. We protect Personal Information regardless of the format in which it is held.
Our methods of protection include: (a) physical measures, such as restricted physical access to the systems delivering our Service; (b) organizational measures, including employee training and limiting access on a “need-to-know” basis; and, (c) technological measures, including the use of passwords and encryption. You can find out more about our security practices in our Security policy.
We use service providers, including our data hosting provider, to facilitate providing the Service. We use contractual means to make sure that our service providers only deal with Personal Information on our behalf to provide the Service and not for any other purposes. We also undertake diligence to satisfy ourselves that our service providers will implement adequate safeguards to protect Personal Information.
If we have reason to believe that there has been a breach of security safeguards that has resulted in the inappropriate loss or disclosure of Personal Information, we will take reasonable measures to notify the affected Customers, as applicable, promptly and with sufficient detail to enable them to evaluate the breach and understand the likely consequences.
REVISIONS TO THIS PRIVACY STATEMENT
123worx may update this Privacy Statement from time to time. If it is updated, the effective date of the revision will be shown at the top of the Privacy Statement as the Last Revised date. In the event of a significant revision, Customers may receive notification by email or through the Service itself. All Personal Information collected after that revision date will be subject to the revised Privacy Statement.
As stated in more detail in our Terms of Service, 123worx may use de-identified and/or aggregate information derived from Personal Information, for any purposes, including:
Analytics to understand how our Customers and, their provisioned users make use of the Service and our website and to make targeted offerings of certain Services to our Customers and provisioned users;
Information used to determine how to make improvements to the Service and to develop new features, capabilities and ways of presenting data; and
For commercial purposes, either for 123worx or for others.
We will take industry standard steps so that this de-identified and/or aggregate information cannot be connected to any individual.
THIS ADDENDUM is made between:
123worx Inc., incorporated under the laws of Ontario, Canada whose registered office is at 865, Ottawa, ON, Canada K1P 1A5 (“123worx”); and
The 123worx customer subscribing for 123worx services pursuant to 123worx’s Terms of Service and requiring a GDPR Data Processing Addendum (“Customer”),
together the “parties”.
(A) 123worx and the Customer have entered or desire to enter into Terms of Service for the provision by 123worx to the Customer of certain data visualization and business intelligence services (the “Terms”); and
(B) 123worx and the Customer have agreed to enter into this Addendum to the Terms in relation to data processing.
IT IS NOW AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1. The parties agree that this Addendum will be incorporated as an addendum to the Terms. To the extent of any conflict between this Addendum and the remaining sections of the Terms, this Addendum will prevail.
1.2. In this Addendum, the following words and expressions will have the following meanings:
“Addendum” -shall mean this addendum, including its appendix;
“Terms” -shall have the meaning given in recital (A) above;
“Customer Personal Information” -shall mean all Personal Information controlled by the Customer which is processed by 123worx in connection with the Service;
“Data Protection Legislation” -shall mean all applicable laws relating to data protection and privacy including (without limitation) the EU Information Protection Directive (95/46/EC) as implemented in each jurisdiction, the EU General Information Protection Regulation (2016/679) (“GDPR”), the EU Privacy and Electronic Communications Directive 2002/58/EC as implemented in each jurisdiction, and any amending or replacement legislation from time to time;
“Personal Information” -means any information relating to an identified or identifiable natural person; and
“Service” -shall mean any of the services provided by 123worx to the Customer pursuant to the Terms.
1.3. In this Addendum, the terms "process", “data controller”, “data processor” and "data subject" shall have the meanings set out in the Data Protection Legislation.
2. NATURE OF THE INFORMATION
2.1. The categories of Customer Personal Information to be processed by 123worx and the processing activities to be performed under this Addendum are set out in Appendix 1.
2.1. The parties record their intention that the Customer shall be the data controller and 123worx shall be a data processor in relation to all Customer Personal Information.
3. OBLIGATIONS OF THE CUSTOMER
3.1. The parties shall each comply with their respective obligations under the Data Protection Legislation in respect of Customer Personal Information.
3.2. The Customer shall ensure that its instructions and disclosures of Customer Personal Information to 123worx are lawful and acknowledges that 123worx is entitled to rely on the Customer’s instructions in respect of the processing of Customer Personal Information.
4. OBLIGATIONS OF 123worx
4.1. 123worx agrees to:
4.1.1. only process Customer Personal Information for and on behalf of the Customer, in accordance with the instructions set out under the Terms or as otherwise given by the Customer from time to time. 123worx shall notify the Customer if it is required by applicable law to process Customer Personal Information other than in accordance with those instructions, and shall inform the Customer of the relevant legal requirement before undertaking such processing (unless the relevant legal requirement prohibits the provision of such information on important grounds of public interest);
4.1.2. ensure that those of its personnel who are involved in processing Customer Personal Information are bound by appropriate obligations of confidentiality;
4.1.3. implement and maintain appropriate technical and organizational security measures to safeguard Customer Personal Information from unauthorized or unlawful processing or accidental loss, damage or destruction;
4.1.4. taking into account the nature of the processing and the information available to 123worx, provide reasonable assistance to the Customer in ensuring compliance with its obligations under the Data Protection Legislation in relation to security, data breach notification, data protection impact assessments and prior consultation with a supervisory authority and the fulfilment of data subject’s rights, where applicable from time to time; and
4.1.5. upon written request, make available to the Customer such records as the Customer may reasonably require from time to time to demonstrate compliance by 123worx with its obligations under this Addendum.
4.2. 123worx shall notify the Customer without undue delay and in any event within 72 (seventy-two) hours of becoming aware of any accidental, unauthorized, or unlawful destruction, loss, alteration, or disclosure of, or access to, Customer Personal Information ("Security Breach"). 123worx shall provide Customer with reasonable assistance in relation to the Security Breach, including the provision of such information as is known to 123worx regarding the nature of the breach, the categories and approximate number of data subjects and records concerned.
4.3. Nothing in this Addendum shall prevent either party from complying with any legal obligation imposed by a regulator or court. Each party shall however, where possible, discuss with the other party the appropriate response to any request from a regulator or court for disclosure of information.
5. SUB-CONTRACTING AND THIRD-PARTY SOFTWARE
5.1. The Customer consents to 123worx engaging subcontractors and use third-party software to process the Customer Personal Information on its behalf ("Sub-processors"). In the event of the Customer objecting to certain software and/or contractor, 123worx shall make reasonable efforts to address the Customer's concerns (including making reasonable efforts to find an alternative software where possible).
5.2. The Customer acknowledges and agrees that Customer Personal Information may be processed by Sub-processors outside the country where the Customer is located in order to carry out the Service and 123worx's other obligations under the Terms.
6. TERM AND TERMINATION
6.1. This Addendum shall commence on the effective date of your subscription to the Service and continue in full force and effect until the termination or expiration of the Terms between us.
7. DELETION OF CUSTOMER PERSONAL INFORMATION
7.1. Within six (6) months of the termination of this Addendum, 123worx shall delete the Customer Personal Information and delete any existing copies in its possession unless; (i) required to retain such Customer Personal Information under applicable law; or, (ii) the Customer requests that 123worx return the Customer Personal Information to it.
8. GOVERNING LAW
8.1. This Addendum and any dispute arising out of or in relation to it (whether contractual or non-contractual) shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada.
APPENDIX 1: Description of Information Processing
The data processing activities carried out by 123worx under this Addendum are as follows:
Description of Service:
123worx is a construction management software. The personal data is managed and manipulated by the customer using the tools provided by 123worx. For the BI application, 123worx will only use the read-only access to the data.
Duration of Processing
For the duration of the Services to which this Addendum relates.
Nature and purpose of Processing:
To enable 123worx to provide the Customer with certain Services in relation to data processing and visualization, and being able to quickly create a new, actionable perspective on their business in accordance with the Terms.
Type of Personal Information:
Customer Personal Information relating to Customers and provisioned end users of the Services which is uploaded by such Customers or provisioned end users and/or otherwise collected by or on behalf of the Customer or provisioned end user as a result of use of the Services. 123worx also collects information about visitors to its web properties. The collected information may include without limitation, data uploaded or pulled into 123worx, personal contact information, payment information, demographic information, location information, profile data, unique IDs, passwords, usage activity, transaction history, and online behavior and interest data.
Categories of Information Subjects:
123worx’s Customers and their provisioned users of its Services, as well as visitors to 123worx’s web properties.