By using, or subscribing to use, the software, you agree to the following terms of this agreement between you (client) and EPI Capital Pty Ltd ACN 158 472 943 (Tanda)
EPI Capital Pty Ltd ACN 158 472 943 (Tanda)
You (the individual and (if applicable) the entity entering into the Agreement) (Client)
- Tanda provides the Software, a software-based online system which assists in the preparation and submission of rosters and timesheets and the calculation of payroll based on the application of select rules in modern awards and enterprise agreements, amongst other things.
- The Client seeks a licence to access and use the Software for its internal business purposes. Tanda will provide a licence to the Software to the Client for the Access Fee.
- The parties wish to record the terms and conditions of their agreement in this document.
Tanda’s Address Details
Address: Level 1, 490 Adelaide Street Brisbane, QLD 4000
Electronic Mail: firstname.lastname@example.org
Attention: the Directors
As notified by the Client to Tanda, including the Client Address Details.
Number of End Users
As notified by the Client to Tanda.
As per Tanda’s Software price list available at https://www.tanda.co/pricing/ as at the Commencement Date and as advised by Tanda in writing.
The date of the Client’s first use of the Software.
1. Definitions and interpretation
In this agreement:
Access Fee means the fee payable to Tanda by the Client for the Licence, as detailed in the Reference Schedule.
Advance Payment has the meaning given in clause 9.3.
Agreement has the meaning in clause 2.1.
API means application program interface, as that term is understood within the information, communications and technology industry.
Authorised Officer of a party which is a corporation means:
- an employee of the party whose title contains either of the words Director or Manager;
- a person performing the function of any of them;
- a solicitor acting on behalf of the party; or
- a person appointed by the party to act as an Authorised Officer for the purposes of this Agreement and notified to the others.
Business Day means:
- if determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
- for any other purpose, a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.
Claim means, in relation to a person, any action, allegation, claim, demand, judgment, liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether::
- it is present, unascertained, immediate, future or contingent;
- it is based in contract, tort, statute or otherwise; or
- it involves a third party or a party to this Agreement.
Confidential Information means, in relation to each party (for the purposes of this definition, Discloser), means any information which is disclosed in any form, whether before or after the Commencement Date, by the Discloser and which:
- is by its nature confidential;
- is designated as confidential by the Discloser;
- the recipient knows or ought to know is confidential; or
- information concerning the business, assets, liabilities, financial position, customers, pricing policies, marketing strategies or proposed business plans of the Discloser:
but excluding any such information:
- which is publicly known;
- which is disclosed to the other party without restriction by a third party (other than the Discloser) and without any breach of confidentiality by that third party; or
- which is developed independently by the other party without reliance on any of the confidential information.
Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this Agreement, including any of the above types of loss arising from an interruption to a business or activity.
Corporations Act means the Corporations Act 2001 (Cth).
Client Data means the data supplied by the Client, its Personnel or its End Users and used in connection with the Software, including Outputs but excluding Tanda Data.
Client Technology means the Intellectual Property Rights of the Client which are created, and owned, by the Client independently of the Agreement.
Dispose in respect of any property means to assign, transfer, sell, novate, lease, licence (or allow a surrender or variation of a lease or licence), grant a Security Interest over, declare a trust in respect of, give control of or otherwise dispose of the property.
Employee has its ordinary meaning, but also includes independent contractors.
Employee Time Clock means the tablet computer device with Tanda’s time clock functionality installed on the device.
Employee Time Clock Application means the mobile software application made available to the Client by the Apple App Store or Google Play which provides time and attendance recording functionality for the Client and End Users.
End User means any Personnel of the Client who access or use the Software.
Exceptional Circumstance means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances include:
- adverse changes in government regulations;
- any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;
- acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party;
- strikes or industrial disputes;
- materials or labour shortage;
- acts or omissions of any third party network providers (such as internet, telephony or power provider); and
- disruptions in services provided by any third party service provider (such as servers or internet).
Expiry Notice means a written notice to the other party of an intention to allow the Term to expire prior to the expiration of the Term or the Further Term.
First Payment Date has the meaning given to that term in clause 9.1(a).
Further Term has the meaning given to that term in clause 4.2.
Government Body means:
- any person, body or other thing exercising an executive, legislative, judicial or other governmental function of any country or political subdivision of any country;
- any public authority constituted by or under a law of any country or political subdivision of any country; and
- any person deriving a power directly or indirectly from any other Government Body.
GST means GST as that term is defined in the GST Law, and any interest, penalties, fines or expenses relating to such GST.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and/or associated Commonwealth legislation, regulations and publiclyavailable rulings.
IAMA means the Institute of Arbitrators & Mediators Australia or, in the event that The Institute of Arbitrators & Mediators Australia ceases to exist or to provide mediation services, a professional dispute resolution organisation of equivalent standing.
Insolvency Event means an event of bankruptcy or insolvency, an assignment for the benefit of creditors, the appointment of a receiver, receiver and manager, voluntary administrator, provisional liquidator, liquidator and official manager or any similar person to any assets of a person, a failure to comply with a statutory demand, or anything else which occurs which is analogous or has a substantially similar effect, under the laws of any jurisdiction, or the person is otherwise insolvent or unable to pay its debts as and when they fall due.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Initial Term has the meaning given to that term in clause 4.1.
Law means any statute, rule, regulation, proclamation, order in council, ordinance, local law or by-law, whether:
- present or future; or
- State, federal or otherwise.
Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person.
Licence means the licence set out in clause 3.1, as limited by clauses 3.2, 3.3 and 3.4.
Login means the username and password individually used by authorised End Users to access the Software.
Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.
Material means property, information, software, firmware, documented methodology or process, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.
New IP means any and all Intellectual Property Rights created after the Commencement Date, in the course of, or connection with, this Agreement, but in all instances excluding Client Data.
Obligations means in relation to the Client, the obligations of the Client outlined in clause 10 and in relation to Tanda, the obligations outlined in clause 10.2.
Output means reports, pdf, templates, or documentation generated by the Software as a result of the Client use of the Software, excluding Tanda Data.
Personal Information has the meaning given in the Privacy Law.
Personnel means in relation to a party, any Employee, officer, or agent of that party.
PPS Act means the Personal Property Securities Act 2009 (Cth).
PPS Property means any property over which a security interest (as that term is defined under the PPS Act) can be legally granted under the PPS Act.
PPSR means the Personal Property Securities Register established under section 147 of the PPS Act.
Privacy Law means the Privacy Act 1988 (Cth).
Property means any PPS Property subject to a security interest (as that term is defined under the PPS Act) created under, or in connection with, this Agreement where the grantor of that security interest is the Client.
Reference Schedule means the schedule at the beginningof this Agreement.
Related Body Corporate includes any corporation that is deemed to be related to a person by virtue of the provisions of the Corporations Act.
Related Entity means a person which is a related entity within the meaning of that term in section 9 of the Corporations Act.
Scheduled Maintenance means preventative or emergency maintenance in relation to any software used, or relied upon, to provide the Software.
Security Interest means:
- an interest in or right:
- reserved over property (including any retention of title to property or any right to set off or withhold payment of any deposit or other money);
- created or otherwise arising over property under a mortgage, charge, lien, pledge, trust or right;
- by way of security for the payment of a debt or other monetary obligation or the performance of or compliance with any other obligation; or
- which gives a person priority over unsecured creditors in relation to any property;
- any instrument or transaction which reserves, constitutes or evidences the interests and rights referred to in paragraph (a); and
- any other interest which is not included in paragraphs (a) or (b) and which constitutes or is defined as a security interest under the PPS Act.
Services means services provided to the Client by Tanda in relation to the Software, including but not limited to Support Services.
Software means the software application developed and owned by Tanda at the time this Agreement is entered into but as modified, developed or enhanced by Tanda from time to time (including any corrections or fixes) and which is provided to the Client to assist the Client to:
- prepare and publish rosters;
- record time and attendance data;
- generate timesheets based on time and attendance data recorded; and
- calculate payroll in accordance with clause 6.1 of this Agreement.
The Software also includes all New IP.
The Software will be provided as a service and made accessible by the Tanda Web Portal.
Support Services means the support services provided by Tanda in relation to the Software as set out in Tanda’s software price list available at https://www.tanda.co/pricing/ as at the Commencement Date.
Tanda Data means all data which:
- is in, or used in, aggregate and de-identified form; or
- is held by, or disclosed to, Tanda independently of this Agreement,
Tanda Web Portal means the client portal accessible via the website www.tanda.co
Tanda Technology means all Intellectual Property Rights created, owned or licensed by Tanda, including the Software and the algorithms and software used by (or comprised in) the Software and the Tanda Data.
Tax means any present or future tax, levy, deduction, impost, withholding, charge or duty which is levied or imposed by any Government Body together with any interest, penalty or fine on those amounts.
Tax Invoice means a “tax invoice” compliant with the requirements of the GST Law.
Term means the total duration of this Agreement, including the Initial Term and any Further Term in accordance with clause 4.2.
Where a term used in this agreement appears in bold type in the Reference Schedule, that term has the meaning shown opposite it in the Reference Schedule.
- Unless the contrary intention appears, a reference in this Agreement to:
- this Agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
- one gender includes the others;
- the singular includes the plural and the plural includes the singular;
- a person, partnership, corporation, trust, association, joint venture, unincorporated body, Government Body or other entity includes any other of them;
- an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, this Agreement and a reference to this Agreement includes any schedule or attachment;
- a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
- any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;
- money is to Australian dollars for Australian customers, Euro's for European customers and US dollars for all other customers unless otherwise stated; and
- a time is a reference to Brisbane time unless otherwise specified.
- The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
- Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
- Headings and any table of contents or index are for convenience only and do not affect the interpretation of this Agreement.
- A provision of this Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this agreement or the inclusion of the provision in this agreement.
1.3 Business Days
- If anything under this Agreement must be done on a day that is not a Business Day, it must be done instead on the next Business Day.
- If an act is required to be done on a particular day, it must be done before 5.00pm on that day or it will be considered to have been done on the following day.
- If a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly.
- An agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them separately.
- An agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and each of them separately.
2. Formation and precedence
2.1 Formation and composition
The following are comprised in the agreement:
- these TANDA Clickwrap Terms and Conditions; and
- any other document forming part of the agreement as agreed to and executed in writing by the parties,
together the “Agreement”.
2.2 Precedence for the Agreement
In the event of any conflict or inconsistency between one or more of the documents, for interpretation, the following will be the order of precedence (highest to lowest):
- these TANDA Clickwrap Terms and Conditions; and
- any other document forming part of the Agreement as agreed to and executed in writing by the parties.
Tanda grants to the Client a revocable, non-exclusive, nontransferable, licence for the Term of this Agreement to:
- access and use the Software via the Tanda Web Portal for its internal business purposes in accordance with the terms of this Agreement and clause 3.2 and 3.3;
- use any Intellectual Property Rights in Materials deliberately provided by Tanda under the Agreement to the Client, for the Client’s internal business purposes in accordance with the terms of this Agreement and clause 3.2 and 3.3.
3.2 Authorised Use
- The Client must ensure that its access and use of the Software and its End User’s use of Software are strictly in accordance with the terms of this Agreement.
- The Access Fee is calculated by reference to:
- the number of active Employees listed by the Client for its account for the Software via the Tanda Web Portal;
- the number of Employee Time Clocks or Employee Time Clock Applications provided to the Client;
- the number and type of sim cards provided to the Client;
- the number of SMS messages sent by, or on behalf of, the Client via the Software;
- the number and extent of custom Enterprise Bargaining Agreements, award setups or payroll configurations carried out by Tanda for the Client; and
- any other variation or ‘add on’ to the Software requested by the Client.
- Tanda will, at the beginning of each billing period, determine the Access Fee by reference to clause 3.2(b) and the Access Fee will automatically be varied accordingly.
- The Client must ensure that all End User Login details, including usernames and passwords, required to access the Software are kept secure and confidential.
- The Client must immediately notify Tanda of any unauthorised use of passwords, and Tanda will reset the relevant password. The Client must also take all other action that Tanda reasonably deems necessary to maintain or enhance the security of Tanda’s computing systems and network.
- The Client acknowledges and agrees that:
- the Client determines who is an End User and what level of access (if applicable), to the Software that End User has;
- the Client is responsible for all End Users’ use of the Software;
- the Client controls each End User’s level of access to the Software at all times and can revoke or change an End User’s access, or level of access, at any time for any reason, in which case that person or entity will cease to be an End User or shall have that different level of access, as the case may be.
3.3 Restrictions and special acknowledgments
As a fundamental condition of the Licence, the Client agrees the prior written consent of Tanda is required for the Client to sub-licence any right or obligations under the Agreement.
3.4 Limited Licence
The Client acknowledges, and agrees, that the rights granted to it under the Licence are expressly limited to the rights stated in clause 3.1. To the fullest extent permitted by law, all implied rights in relation to the Licence are excluded.
4.1 Initial Term
The initial term of this Agreement:
- commences on the Commencement Date;
- subject to a further rollover term under clause 4.2, continues until the First Payment Date,
unless otherwise terminated earlier in accordance with clause 4.2 of this Agreement (Initial Term).
- one of the parties provides written notice to the other party of an intention to allow the Term to expire prior to the expiration of the Initial Term or any Further Term under this clause 4.2 (Expiry Notice); or
- the Agreement has been otherwise terminated earlier in accordance with clause 16 of this Agreement,
this Agreement shall automatically and continuously renew for further periods of:
- 1 calendar month; or
- where Advance Payment is elected in accordance with clause 9.3, 12 calendar months
on the terms and conditions of this Agreement.
4.3 Expiry Notice
- If a party provides an Expiry Notice to the other party in accordance with clause 4.2, the Term shall expire on the date of expiration of the Further Term (as the context requires).
Tanda will use its best endeavours to provide access to the Software on a continuous basis during the Term, with the exception of clause 5.2.
- Tanda may temporarily suspend (in part or in whole), without prior notice to the Client, the access to the Software to the Client and End Users if:
- there is a malfunction, fault or breakdown of any of Tanda’s equipment or if Tanda is required to undertake the repair, maintenance or service of any part of the Software;
- Tanda is required by Law to do so;
- an event of Exceptional Circumstance occurs, which affects or may affect Tanda’s ability to provide the Software;
- such suspension is pursuant to clause 9.4(late payment of invoice);
- if there is a Claim made that the continued provision of the Software infringes the rights of any person;
- if there is a Claim made that exposes Tanda to liability or prosecution for an offence or liability to a statutory prosecution; or
- if Tanda determines that the Client is in breach of the Agreement including where Tanda determines that the Client has failed to meet its obligations under clause 10.
- Suspension in accordance with clause 5.2(a) will not affect any right which accrue prior to, or after, suspension of Tanda’s obligations under the Agreement.
5.3 Downtime and Limitations
The Client acknowledges and agrees that:
- access to the Software may occasionally be limited due to Scheduled Maintenance;
- access to the Software is reliant upon various factors outside the control of Tanda, including, without limitation, events of Exceptional Circumstance, the Client internet service provider, telecommunications provider or equipment used to access the Software. While Tanda will use all reasonable endeavours to ensure the Client has continuous access to the Software, Tanda will not be liable to the Client or any other person for any Claim or to any other extent for Loss or damage caused by such factors.
- Tanda’s ability, and obligation, to provide the access to the Software is subject to the Client complying with its obligations under clause 10 and any other limitation or exclusion set out in this Agreement;
- the cost of consumables, replacement parts, hardware, software, network upgrades and any associated services are outside the scope of the Software and Support Services and are the full responsibility of the Client; and
- any server upgrades, network device upgrades and software upgrades are outside the scope of this Agreement.
In the event that access to the Software is suspended in accordance with clause 5.2, Tanda will endeavour to provide the Client with prior written notice where it is reasonable and practicable in Tanda’s opinion.
5.5 Loss of Access
Client shall have no Claim against Tanda in respect of loss of access or functionality to the Software referred to in this clause.
6. Payroll calculator
6.1 Payroll calculator
- The Software assists the Client to calculate payroll based on time and attendance data and the application of a selection of pay-based rules in modern awards and enterprise agreements (Payroll Calculator).
- For the purposes of this Agreement, a pay-based rule is a rule in a modern award and enterprise agreement that requires the Client to pay an Employee a monetary entitlement if that Employee satisfies certain prescribed criteria set out in the modern award or enterprise agreement. Examples of pay-based rules in modern awards and enterprise agreements include rules relating to the payment of overtime, penalty rates and monetary allowances.
- In using the Payroll Calculator, the Client acknowledges and agrees that:
- only a select number of modern awards and enterprise agreements have been automated and made available by Tanda through the Software;
- it is the Client’s sole responsibility to determine that the correct modern award/enterprise agreement is being applied in relation to its individual Employees;
- Given the complex nature of rules in modern awards and enterprise agreements, only a select number of paybased rules have been automated by Tanda as part of the Payroll Calculator. It is the Client’s sole responsibility to review the calculations generated by the Payroll Calculator for its individual Employees, for each pay period, to confirm that the individual Employees are being paid in accordance with the relevant modern award/enterprise agreement. Where the Client identifies that an Employee is entitled to additional entitlements not included as part of the Payroll Calculator’s calculations, it will be the Client’s sole responsibility to pay that Employee those entitlements separately;
- The pay-based rules may not be the same pay-based rules across each of the modern awards/enterprise agreements that Tanda automates and makes available through the Software. If the Client has Employees covered by multiple modern awards/enterprise agreements, it will be for the Client to determine which pay-based rules are automated in each instrument and to separately apply any additional paybased rules which have not been automated in the relevant modern award or enterprise agreement;
- It is the Client’s sole responsibility to review the calculations generated by the Payroll Calculator for individual Employees for each pay period, to determine that individual Employees are being paid in accordance with the relevant modern award/enterprise agreement. Where the Client identifies an error in the calculations generated by the Payroll Calculator, it will be the Client’s sole responsibility to rectify that error to ensure that individual Employees are paid correctly; and
- Tanda may modify, develop or enhance the Payroll Calculator (including any corrections or fixes) at any time during the Term of the Agreement and without notice to the Client.
- The Client acknowledges that Tanda is not responsible or Liable for the Client’s use of the Payroll Calculator to administer the implementation, usage or calculation of industrial relations awards or enterprise agreements, penalties, pay rates or similar.
6.2 Important acknowledgements
As a fundamental condition of the Agreement, the Client acknowledges and agrees that:
- Any statement, information or advice provided by Tanda prior to, during the Term of this Agreement or after its expiration is general in nature and should not be relied upon by any person as legal advice or otherwise.
- Tanda is not responsible or Liable for the application, interpretation, usage or calculation of Employee entitlements in modern awards and enterprise agreements, whether in connection with the Payroll Calculator, the Software or otherwise; and
- Tanda will not be liable in any way for (and is released from) any Loss (including any Loss incurred by an End User or Personnel of the Client) arising from any error, inaccuracy, incompleteness or other similar defect:
- in the Software, or
- in any application, interpretation, usage or calculation of Employee entitlements in modern awards and enterprise agreements.
7. Employee Time Clocks
7.1 Provision of Employee Time Clocks
- Tanda may supply to the Client one or more Employee Time Clocks upon request of the Client. Where such Employee Time Clocks are requested:
- Tanda shall be responsible for arranging delivery of the Tanda supplied Employee Time Clocks to the Client’s business address;
- the risk in the Tanda supplied Employee Time Clocks shall pass to the Client upon delivery of the Employee Time Clocks to the Client’s business address and shall pass back to Tanda upon return delivery of the Employee Time Clocks to Tanda’s nominated address; and
- title to the Tanda supplied Employee Time Clocks shall remain at all times with Tanda.
- The Client acknowledges that:
- Tanda is under no obligation to accept any
Client request for a Tanda supplied
Employee Time Clock;
- Tanda supplied Employee Time Clocks remain the property of Tanda at all times and are to be used only for their designed purpose of recording the Client’s employee attendance;
- Tanda reserves the right to register its interest in Tanda supplied Employee Time Clocks on the PPSR;
- the Client will be liable for a replacement fee as determined by Tanda for any damage to or loss of Employee Time Clocks provided to the Client by Tanda;
- the Client is not permitted to, and must not, Dispose of its interest in, or otherwise part with possession or control of, any Tanda supplied Employee Time Clock, without Tanda’s prior written consent; and
- Tanda may require the Client to return the Tanda supplied Employee Time Clocks at any time upon Tanda’s request to Tanda’s nominated address at the Client’s cost.
8.1 Support Services
- In consideration of the Access Fee, Tanda will provide the Support Services to the Client.
- In accessing and using the Support Services, the Client acknowledges and agrees that Tanda’s Personnel are not legally trained or qualified and are not providing legal advice when providing the Support Services. Information and advice provided by Tanda’s Personnel is general in nature and does not take into account the individual facts and circumstances of the Client and its Employees.
Tanda can delegate the performance of any of the Services to any of its subcontractors, at its discretion, provided that it contractually obliges those subcontractors to confidentiality obligations which are at least as onerous as the obligations of confidentiality in clause 14.
8.3 Delay outside of Tanda control
If Tanda requests an extension of time to meet a mutually agreed deadline and the delay is caused by circumstances outside of its reasonable control (including an Exceptional Circumstance, the Client not performing any of its obligations under this Agreement, or an act or omission of a third party) then:
- the Client will grant the extension of time;
- the relevant deadline will be extended by that period; and
- the Client will not be entitled to claim any compensation from Tanda in respect of the delay or extension of time.
9.1 Payment of Fees
The Client acknowledges and agrees that:
- No Access Fees will be payable until the earlier of:
- the time at which the Client provides credit card or direct debit details to Tanda; or
- 30 days from the Commencement Date
- Unless Advance Payment is elected under clause 9.3, the Access Fees will become due and payable on the First Payment Date as payment in advance for the next 1 calendar month for licence to the Software and provision of the Services granted under this Agreement; and
- after the First Payment Date, the Access Fees will
then become due and payable on the first day of
every Further Term (Payment Date) thereafter.
9.2 Credit Card or Direct Debit Payments
- Where the Client has elected to pay the Access Fees by credit card or direct debit by providing its credit card or direct debit account details to Tanda, Tanda will automatically charge the Access Fees to the credit card or direct debit account provided on the First Payment Date and every Payment Date thereafter.
- Should the Client dispute the amount of Access Fees charged to the Client’s credit card or direct debit account, the Client must provide notice in writing within seven (7) days of such Fees being charged to the Client’s credit card or direct debit account.
9.3 Advance Payment
- The Client may, by notification to Tanda any time from the First Payment Date onwards, opt to pay a fixed, discounted Access Fee (as specified by Tanda) 12 months in advance, in lieu of the automatic monthly payments made under clause 9.1(c) (Advance Payment).
- The Advance Payment must be paid in full by the Client to Tanda within 7 days of a Tax Invoice being provided to the Client, including for a Further Term pursuant to clause 4.2.
- If the Client opts to make Advance Payment, the Client acknowledges that no refund will be payable to the Client during the 12 months from the date of payment of the Advance Payment if:
- the Client terminates the Agreement under clause 16.2(a); or
- the number of active Employees listed in the Software drops below the level used to calculate the Advance Payment fee.
9.4 Late or non payment of invoices
If the Client fails to pay the Access Fee within 14 days of the dates referred to in clauses 9.1 or 9.3, Tanda may do any one or more of the following:
- restrict or suspend the Services in accordance with clause 5.2 above;
- terminate the Agreement, in accordance with its terms.
10. Obligations of the Client
10.1 General obligations
The Client will (in the manner permitted by the Licence):
- provide Tanda with Client Data, database scheme and API details necessary for Tanda to integrate the Software within the Client’s operating environment and to enable the Client to access and use the Software;
- provide Tanda with all information and co-operation reasonably necessary to enable Tanda to perform the Services and comply with its obligations under the Agreement;
- take reasonable steps to ensure that any users (including End Users) of the Software:
- are suitably trained on how to use the Software;
- employ and implement the correct use of the Software in accordance with any manuals or documentation supplied with the Software; and
- comply with any other reasonable directions of Tanda in relation to the use of the Software;
- provide Tanda with all reasonable information and access to its computer or other device and network systems in order for Tanda to provide the Services in accordance with the terms of the Agreement;
- promptly notify Tanda of any event or incidents that is likely to or will impact on access and use of the Software, the provision of the Services or any other obligation of Tanda; and
- comply with all of Tanda’s reasonable directions in relation to the use of the Tanda Technology.
10.2 Mutual obligations
Each party must:
- promptly inform the other party (Affected Party) of any unauthorised use of the Intellectual Property Rights that the Affected Party is, or becomes, reasonably aware of;
- perform its duties under this Agreement with care, skill and diligence, and in accordance with all applicable Laws.
The Client indemnifies Tanda (and its Personnel or subcontractors), and will keep indemnified and hold Tanda (and its Personnel or subcontractors) harmless, against any:
- Claims (or alleged Claims) against Tanda (or its Personnel or subcontractors); or
- Loss suffered by Tanda,
in connection with this Agreement or the rostering or payment of Client Personnel (or its subcontractors) including arising in relation (in part or in whole) to:
- error, inconsistency or failure in Client Data;
- error, inconsistency or failure in Outputs;
- acts or omissions of the Client, including instructions provided to Tanda by Client Personnel (or its subcontractors);
- an error or omission in the rostering or payment of Client Personnel (or its subcontractors), including under-payments or over-payments;
- the calculation or implementation of industrial relations awards or enterprise agreements, penalties, pay rates and similar due (in part or in whole) to anything referenced in clauses 11(c) to 11(f) above;
- a fine or penalty arising due to a contravention (or alleged contravention) of Law, which is in connection with an error or omission in the rostering or payment of Client Personnel (or its subcontractors); and
- any fraud or wilful misconduct of the Client, or its Personnel.
12. Intellectual Property Rights
12.1 Ownership – Tanda Technology
- Ownership of the Tanda Technology is not modified by this Agreement.
- The Intellectual Property Rights in the Tanda Technology remain vested in Tanda.
12.2 Ownership – Client Technology
- Ownership of Client Technology is not modified by this Agreement.
- The Intellectual Property Rights in Client Technology remain vested in the Client.
- The Client grants Tanda a non-exclusive, nontransferable, worldwide, royalty free licence to useClient Technology, Client Data (to the extent the Client may have any rights in relation to such Client Data) and Materials provided to Tanda for the purposes of this Licence and performing obligations under this Agreement, for the Term.
- For clarity, the Client and Tanda acknowledge that Tanda Data may incorporate or be derived, at least in part, from Client Data, and accordingly, while the Customer shall have exclusive title and ownership over the Client Data, Tanda shall retain exclusive title and ownership to the Tanda Data.
12.3 Provision and ownership of New IP
Upon its creation, all New IP will be owned by, and assigned to, Tanda.
12.4 Prohibited activities
The Client will not (and must not permit or procure its Personnel or subcontractors to):
- Unless otherwise expressly authorised in writing by Tanda:
- reverse engineer or decompile the Software;
- reproduce, make error corrections to or otherwise modify or adapt the Software to create any derivative works based on the Software;
- use, or permit, the Software to be accessed or used in any way other than in a manner expressly permitted by this Agreement;
- attempt to gain unauthorised access to any Materials other than those which the Client has been given express permission to access on the computer system which the Software is hosted;
- challenge the validity of any Intellectual Property Rights of Tanda (or a Related Body Corporate of Tanda);
- permit the Software to be accessed in any unauthorised way, including via interfaces (including exposing or “passing through” a software API or otherwise making the Software accessible as an API).
- do or permit any other act which infringes Tanda’s Intellectual Property Rights;
- do or permit an act that uses the Software in a way that could infringe a third party’s Intellectual Property Rights; or
- use the Software in any way that could damage the reputation of Tanda.
This clause 12 survives the termination or expiration of this Agreement.
13. Client Data
13.1 Provision of information
Through the usage of the Software, the Client will provide and have stored Client Data on Tanda’s servers.
The Client is solely responsible for making backups of its Client Data, and Tanda excludes all Liability in connection with backups (or lack thereof) of Client Data. Tanda shall not be required to provide the Client with any copy or record of the Client Data.
13.3 Client Data storage
The Client acknowledges and agrees that Tanda may (but is not obligated to the Client) to hold Client Data in its systems for up to seven years from the date of termination of this Agreement.
14. Confidential information
- Each party must keep the other party’s Confidential Information, confidential.
- A party must not, without the prior written approval of the other party, disclose the other party's Confidential Information.
- Each party must take all reasonable steps to ensure that its Personnel (or subcontractors) engaged for the purposes of the Agreement, do not make public or disclose the other party's Confidential Information.
14.2 Return of Confidential Information
The Client must, on demand, return to Tanda any Confidential Information supplied by Tanda in connection with this Agreement. Each party agrees that confidentiality obligations under this clause 14 shall continue for a period of five years from the termination or expiration of this Agreement.
14.3 Acknowledgement as to types of remedy
Each party acknowledges and accepts that:
- the other party would suffer financial and other loss and damage if its Confidential Information was disclosed to any other person or used for any purpose other than as permitted by this Agreement and accordingly that monetary damages may be an insufficient remedy; and
- in addition to any other remedy, which may be available in law or equity, the other party is entitled to injunctive relief to prevent a breach of any of clause 14.1 and to compel specific performance of clause 14.1.
This clause survives the termination or expiration of this Agreement for the period set forth in clause 14.2.
15. Privacy law
- Each party agrees to comply with all Privacy Laws in relation to any and all Personal Information that it collects from the other party in connection with the Agreement.
- The Client warrants that it has sought the necessary consent required by Privacy Laws, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth) from all individuals whose Personal Information it causes to be disclosed to Tanda or otherwise held in connection with the Software, to enable Tanda (or its Personnel and its related parties):
- to collect such Personal Information via the Software;
- to hold and use that Personal Information for the purposes of Tanda performing its obligations under this Agreement; and
- to directly contact individuals (including by email and phone) using the Personal Information held by Tanda in connection with clauses 15(b)(1) and 15(b)(2) above.
16.1 Termination for cause
Either party (First Party) may terminate this Agreement immediately by written notice upon the occurrence of one of the following events:
- if both parties determine that the Client’s needs require entry into a new agreement;
- if the other party is in breach of this Agreement and that other party has failed to remedy the breach within 1 calendar month of a written notice to it from the First Party, specifying the breach and requiring it to be remedied;
- if the other party is in breach of this Agreement and that breach is not capable of remedy, as reasonably determined by the First Party; or
- an Insolvency Event occurs in respect of the other party.
16.2 Termination for convenience
- The Client may terminate this Agreement for any reason at any time up until the First Payment Date or for any reason by providing 1 calendar month’s written notice to Tanda pursuant to this clause 16.2(a) after the First Payment Date.
- Subject to clause 9.3(c), if the Client terminates the Agreement pursuant to clause 16.2(a), then the Client will be liable for payment of all Access Fees on a pro-rata basis for each day of the then current payment period up to and including the day of termination.
16.3 No prejudice of rights
Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.
17. Consequences of termination or expiration
Without limitation to clause 16.2(b), upon termination or expiration of this Agreement:
- The licence granted to the Software under clause 3.1 terminates;
- the Services terminate;
- all monies owing under the Agreement become immediately payable and due;
- unless otherwise advised by Tanda, the Client must return to Tanda any Tanda supplied Employee Time Clocks in the Client’s possession or control (at Client’s cost); and
- unless otherwise agreed, each party must immediately return or (if requested to do so by other party) destroy all Materials belonging to the other party in that party’s possession or control.
18.1 Exclusion of liabilityImplied terms
- To the extent permitted by Law, in no event will Tanda be liable to the Client for Consequential Loss even if Tanda has been made aware of the possibility of such Consequential Loss prior to entering into this Agreement.
- The Client agrees Tanda will have no Liability for Claims made by third parties arising out of or in connection with this Agreement, including on account of Claims made by Employees, Claims made through or for Employees or Claims made by any Government Body.
18.2 Implied terms
- To the full extent permitted by Law, any term which would otherwise be implied into this Agreement is excluded.
- To the full extent permitted by Law, the Client acknowledges that the Software (and anything else provided under the Licence) is licensed by Tanda on an ‘as is, where is’ basis and Tanda makes no warranties or representations as to the Outputs and the Software (and anything else provided under the Licence).
- In the event any Law implies or imposes terms into this deed which cannot be lawfully excluded, such terms will apply, save that the liability of Tanda for breach of any such term will be limited in accordance with clause 18.3(a).
18.3 Limitation of liability
To the extent Tanda is found Liable in connection with this Agreement, its Liability shall be limited (at the option of Tanda) to any one or more of the following:
- re-supplying services to which the Liability relates or the supply of equivalent services; or
- reimbursing the Client (subject to clause 18.3(b)) for paying someone else to supply the services which the Liability relates.
- Liability cap
To the extent that Tanda is Liable in connection with this Agreement (whether in contract, under a right of indemnity, tort or statute), then Tanda’s cumulative Liability in the aggregate (to the fullest extent permitted by law) shall in no event exceed the sum of the Access Fees received by Tanda under this Agreement in the 12 months prior to the date upon which the Liability first arose.
19. Goods and Services Tax
19.1 GST exclusive
Unless expressly stated to the contrary all amounts expressed in the Agreement are exclusive of GST.
19.2 Recipient to pay Supplier
- If a party (the Supplier) is obliged under the GST Law to pay an amount of GST for a taxable supply made by the Supplier to another party (the Recipient) under the Agreement, the Recipient must pay the Supplier an amount equal to the GST payable on the supply by the Supplier.
- The Recipient must pay the amount referred to in clause 19.2 and any interests, penalties, fines or expenses relating to the GST, in addition to and at the same time as the consideration otherwise payable by the Recipient for the supply.
19.3 Tax invoice
If requested by the Recipient, the Supplier must provide the Recipient with a Tax Invoice on or before payment of the amounts required by clause 19.2.
The Client and Tanda will jointly agree to any press release in respect of this Agreement prior to its publication, such agreement shall not be unreasonably withheld, delayed or conditioned.
Any notice or other communication to or by any party must be in writing and in the English language, addressed to the address of the recipient in clause 21.2 or to any other address as the recipient may have notified the sender, and be signed by the party or by an Authorised Officer of the sender.
21.2 Initial details
The addresses and numbers for service are initially:
- for Tanda, Tanda's Address Details; and
- for the Client, the Client Address Details.
A party may from time to time change its address or numbers for service by notice to each other party.
22. Governing law and jurisdiction
This Agreement is governed by and construed in accordance with the laws of Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
23. Dispute resolution
23.1 Dispute Resolution Process
- Subject to clause 23.1(b), a party claiming that a dispute or disagreement has arisen out of, or in connection with, this Agreement (Dispute) will, within five (5) Business Days of the Dispute arising, give written notice to the other party providing particulars of the Dispute (Notice of Dispute) and, designating which of its Authorised Officers has authority to settle the Dispute.
- The parties agree that the dispute resolution process in this clause 23.1 does not apply to Disputes in connection with the calculation or invoicing of the Access Fees.
- The parties will meet at location or arrange a telephone conference as agreed between the parties in writing within five (5) Business Days of receipt of the Notice of Dispute in accordance with clause 23.1(a) to seek to resolve the dispute amicably.
- If the Dispute has not been resolved within twenty (20) Business Days of receipt of the Notice of Dispute in accordance with clause 23.1(a), the parties may agree to refer the dispute to mediation administrated by a mediator recommended and accredited by IAMA in accordance with IAMA’s professional mediation rules or an equivalent professional mediator in any jurisdiction outside of Australia. The party issuing the Notice of Dispute must pay the costs of the mediator appointed pursuant to this clause.
- If the Dispute has not been resolved within thirty (30) Business Days of receipt of the Notice of Dispute in accordance with clause 23.1(a) then (on the basis that the exhaustion of the dispute resolution process set out in this clause 23.1 is a condition precedent to the right of either party to commence court proceedings in relation to the Dispute) then the party who first served the Notice of Dispute may commence litigation.
- Any mediation discussions and proceedings undertaking in accordance with clause 23.1 constitute Confidential Information and will take place in Brisbane (or such other location as the parties may agree between themselves in writing).
23.2 Urgent relief
Despite the condition precedent referred to in clause 23.1(e), nothing in this Agreement shall prevent either party seeking injunctive or urgent declaratory relief for any matter (including to protect Confidential Information) arising out of, or in connection with, this Agreement.
23.3 Obligations continue
Despite the existence of a Dispute, each party will at all times continue to fulfil all obligations under this Agreement, including in respect of confidentiality.
24. PPS ACT
24.1 PPS Act definitions
In this clause 24, the terms “accession”, “account”, “amendment demand”, “control”, “financing change statement”, “financing statement”, “perfected”, “proceeds”, “purchase money security interest”, “registration event”, “security interest” and “verification statement” have the meanings given to them under the PPS Act.
The Client acknowledges and agrees that any security interest created by this Agreement, or the transactions contemplated by it:
- extends to, and acts as a security interest in respect of, any:
- proceeds (including any account) derived from, or from a dealing with, the Property;
- accession to the Property; and
- continues in the Property if the Property becomes an accession.
The Client agrees to do anything which Tanda may require from time to time to:
- enable Tanda to register fully valid and effective financing statements or financing change statements with respect to any security interest over Property; and
- ensure that any security interest which is purported to be reserved or created by this Agreement, or the transactions contemplated by it, is:
- a first ranking perfected security interest over all Property;
- perfected by control to the extent possible under the PPS Act; and
- if applicable, recorded as a purchase money security interest on the PPSR.
The Client undertakes and agrees:
- to not, without first giving Tanda 10 Business Days’ written notice, change its name, ABN, address, email address, facsimile number or any other details that have been, or are required to be, recorded on the PPSR in connection with any security interest created by this Agreement or any transaction contemplated by it;
- to pay all costs in connection with the registration, discharge or amendment of any financing statement or financing change statement;
- to not, without the prior written consent of Tanda, lodge or serve a financing change statement or an amendment demand in relation to any security interest created by this Agreement or any transaction contemplated by it;
- that any Property supplied by Tanda to the Client under this Agreement is not intended, and shall not be used, for personal, household or domestic purposes.
The Client irrevocably waives its right to receive from Tanda any verification statement or notice in relation to a registration event in accordance with section 157(3)(b) of the PPS Act.
Tanda and the Client agree that:
- to the extent that section 115(1) of the PPS Act allows them to be excluded, sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 136B(4), 142 and 143; and
- to the extent that section 115(7) of the PPS Act allows them to be excluded, sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137,
do not apply to any enforcement by Tanda of any security interest created by this Agreement or any transaction contemplated by it.
The Client waives its right to receive anything from Tanda under section 275 of the PPS Act and agrees not to make a request of Tanda under that section. The Client and Tanda agree for the purposes of section 275(6) of the PPS Act that neither the Client nor Tanda will disclose any information in the nature of that mentioned in section 275(1) of the PPS Act.
- The Client will not assign, transfer or novate all or any part of its rights or obligations under or relating to this Agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of Tanda.
- Tanda may assign, transfer or novate all or any part of its rights or obligations under or relating to this Agreement without prior written notice to the Client.
If a provision of this Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
25.3 Further assurance
Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to this Agreement and the transactions contemplated by it.
The Client must:
- pay all Taxes which may be payable or determinable in connection with the execution, delivery, performance or enforcement of this Agreement or any payment or receipt or of any transaction contemplated by this Agreement; and
- indemnify part indemnified against any liabilities resulting from any delay or omission by party responsible to pay any Taxes.
Subject to any other provision of this Agreement, the indemnities in this Agreement are continuing obligations, independent from the other obligations of the parties under this agreement and continue after this Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
A party’s waiver of a right under or relating to this Agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party. No other act, omission or delay by a party will constitute a waiver of a right.
This Agreement may be executed in any number of counterparts each of which will be considered an original but all of which will constitute one and the same instrument. A party who has executed a counterpart of this Agreement may deliver it to, or exchange it with, another party by:
- faxing; or
- emailing a pdf (portable document format) copy of,
the executed counterpart to that other party.
25.9 Fundamental Condition
As a fundamental condition of this Agreement, the Client acknowledges and agrees that any statement, information or advice provided by Tanda and its Personnel (including information displayed on its website www.Tanda.com and in its marketing and promotional material) prior to, during and after the expiration of the Agreement is general in nature and should not be relied upon by any person as legal advice or otherwise.
25.10 Whole agreement
- is the entire agreement and understanding between the parties relating to the subject matter of this Agreement; and
- supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.