Workforce

These Workforce Terms are effective from the date the Client first accesses or uses the Workforce Management Software and continues until these Workforce Terms are terminated in accordance with clause 10.1, 10.2  or the Agreement is terminated (Workforce Management Licence Term).

3.1 Grant

In consideration of the Workforce Management Access Fees, Tanda grants to the Client a revocable, non-exclusive, non-transferable, licence for the Workforce Management Licence Term to:

(a) access and use the Workforce Management Software via the Tanda Web Portal for its internal business purposes in accordance with the terms of the Agreement; and

(b) 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 the Agreement and clause 3.2 and 3.3.

3.2 Use obligations

(a) As a fundamental condition of the Workforce Management Licence, the Client must ensure that its, and its End Users’, access and use of the Workforce Management Software are strictly in accordance with the terms of the Agreement.

(b) The Client must provide Tanda with Client Data, database scheme and API details necessary for Tanda to integrate the Workforce Management Software within the Client’s operating environment and to enable the Client to access and use the Workforce Management Software.

(c) The Client must ensure that all End User Login details, including usernames and passwords, required to access the Workforce Management Software are kept secure and confidential strictly according to the Client's internal protocols.  Tanda may request, and the Client must promptly provide details of such internal security protocols, and the Client undertakes to implement any such additional measures as Tanda deems reasonably necessary if the security protocols are deemed deficient concerning access to the Workforce Management Software, in Tanda's reasonable opinion.

(d) 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.

(e) The Client acknowledges and agrees that:

(i)the Client determines who is an End User and what level of access (if applicable), to the Workforce Management Software that End User has;

(ii) the Client is responsible for all End Users’ use of the Workforce Management Software; and

(iii) the Client controls each End User’s level of access to the Workforce Management 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 Workforce Management Licence, the Client agrees the prior written consent of Tanda is required for the Client to sub-licence any right or obligations under these Workforce Terms.

3.4 Limited Licence

The Client acknowledges, and agrees, that the rights granted to it under the Workforce Management Licence are expressly limited to the rights stated in clause 3.1 (Grant).  To the fullest extent permitted by law, all implied rights in relation to the Workforce Management Licence are excluded.

4.1 Availability

Tanda will use its best endeavours to provide access to the Workforce Management Software on a continuous basis during the Workforce Management Licence Term, with the exception of the circumstances described in clause 4.4.

4.2 Support

(a) The Client and its End Users may implement, install or configure the Workforce Management Software in accordance with the Workforce Management Guidance.

(b) In consideration of the Workforce Management Access Fee, Tanda will use reasonable efforts to provide technical support services to assist the Client in using the Workforce Management Software.

(c) In receiving any support services from Tanda, the Client acknowledges and agrees that:

(i) any information and advice provided by Tanda's Personnel (including in the Workforce Management Guidance) is general in nature and does not take into account the individual facts and circumstances of the Client, its Employees or End Users; and

(ii)Tanda's Personnel are not legally trained or qualified and are not providing legal advice in its provision of the support services or the Workforce Management Guidance.

(d) Tanda is not responsible or liable for any Loss, Claim or Liability incurred by the Client arising from or in relation to:

(i) the support services; and 

(ii) the Client or its End Users' implementation, installation or configuration of the Workforce Management Software other than in accordance with the Workforce Management Guidance. 

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4.3 Suspension

Tanda may temporarily suspend (in part or in whole), without prior notice to the Client, the access to the Workforce Management Software to the Client and End Users if such suspension is due to the Client's failure to comply with its payment obligations under these Workforce Terms or under the MSA.‍

4.4 Downtime and limitations

The Client acknowledges and agrees that:

(a) access to the Workforce Management Software may occasionally be limited due to Scheduled Maintenance;

(b) access to the Workforce Management 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 Workforce Management Software.  While Tanda will use all reasonable endeavours to ensure the Client has continuous access to the Workforce Management 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;

(c) Tanda’s ability, and obligation, to provide the access to the Workforce Management Software is subject to the Client complying with its obligations under the Agreement and any other limitation or exclusion set out in the Agreement;

(d) the cost of consumables, replacement parts, hardware, software, network upgrades and any associated services are outside the scope of the Workforce Management Software and support services and are the full responsibility of the Client; and

(e) any server upgrades, network device upgrades and software upgrades are outside the scope of the Agreement.

4.5 Notice

In the event that access to the Workforce Management Software is suspended in accordance with the Agreement, Tanda will endeavour to provide the Client with prior written notice where it is reasonable and practicable in Tanda’s opinion.

4.6 Loss of access

Client shall have no Claim against Tanda, and Tanda will not be Liable, in respect of loss of access or functionality to the Workforce Management Software referred to in this clause.

(a) The Workforce Management 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).

(b) For the purposes of these Workforce Terms, 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.

(c) In using the Payroll Calculator, the Client acknowledges and agrees that:

(i) given the complex nature of rules in modern awards and enterprise agreements, only a select number of pay-based rules for modern awards and enterprise agreements have been automated and made available by Tanda through the Workforce Management Software;

(ii) 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; 

(iii) 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;

(iv) 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 Workforce Management 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 pay-based rules which have not been automated in the relevant modern award or enterprise agreement;

(v) 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

(vi) Tanda may modify, develop or enhance the Payroll Calculator (including any corrections or fixes) at any time during the Workforce Management Licence Term and without notice to the Client.

(d) 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.

The Client indemnifies the Indemnified Parties, and will keep indemnified and hold the Indemnified Parties harmless, against any:

(a) Claims (or alleged Claims) against the Indemnified Parties; or

(b) Loss suffered by the Indemnified Parties, 

arising from:

(c) an error or omission in the rostering or payment of Client Personnel (or its subcontractors), including under-payments or over-payments; and

(d) the calculation or implementation of industrial relations awards or enterprise agreements, penalties, pay rates and similar due (in part or in whole) to an error or omission described at clause 7(c) above.

8.1 Provision and ownership of New IP

Upon its creation, all New IP will be owned by, and (to the extent that ownership of any New IP vests in the Client) irrevocably assigned by the Client to, Tanda.

8.2 Prohibited activities

Unless otherwise expressly authorised in writing by Tanda, the Client will not (and must not permit or procure its Personnel or subcontractors to) permit the Workforce Management Software to be accessed in any unauthorised way, including via interfaces (including exposing or 'passing through' a software API or otherwise making the Workforce Management Software accessible as an API).

9.1 Provision of information

Through the usage of the Workforce Management Software, the Client will provide and have stored Client Data on Tanda’s servers.

9.2 Backup

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.

10.1 Termination for cause

(a) These Workforce Terms terminate automatically upon termination or expiry of the Agreement.

(b) Either party (First Party) may terminate these Workforce Terms immediately by written notice upon the occurrence of one of the following events:

(i) if both parties determine that the Client’s needs require entry into a new agreement;

(ii) if the other party is in breach of the 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;

(iii) if the other party is in breach of the Agreement and that breach is not capable of remedy, as reasonably determined by the First Party; or

(iv) an Insolvency Event occurs in respect of the other party.

10.2 Termination for convenience

(a) The Client may terminate these Workforce Terms for any reason at any time by following the process in the Tanda Web Portal.

(b) If the Client terminates these Workforce Terms pursuant to clause 10.2(a), then:

(i) the Client will be liable for payment of all Workforce Management Access Fees, including:

(ii) all Workforce Management Access Fees payable for the then current billing period; or

(iii) if the Client has selected an Advance Payment arrangement, all Workforce Management Access Fees that would be payable for the Initial Term or the then-current Further Term (as the case may be); and

(iv) if the Client has selected an Advance Payment arrangement, the Client and its End Users may continue using the Workforce Management Software in accordance with the Agreement for the remainder of the Initial Term or the then-current Further Term (as the case may be).

10.3 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.

Subject to clause 10.2(b), upon termination or expiration of these Workforce Terms:

(a) the licence granted to the Workforce Management Software under clause 3.1 is revoked;

(b) all monies owing under these Workforce Terms become immediately payable and due; 

(c) the Client is not entitled to a refund of any pre-paid Workforce Management Access Fees if the Client terminates these Workforce Terms under clause 10.2(a);

(d) the Agreement and any other Schedules remain on foot; 

(e) 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 and provided in connection with these Workforce Terms, which are in that party’s possession or control; and

(f) clauses 4.2(d) (No liability for support), 5(d) (Payroll Calculator), 6 (Disclaimers), 7 (Indemnity), 11 (Consequences of termination or expiration) and 12 (Publicity) survive termination or expiry of these Workforce Terms.

The Client and Tanda will jointly agree to any press release in respect of these Workforce Terms prior to its publication, such agreement shall not be unreasonably withheld, delayed or conditioned.