Payroll

These Payroll Terms are effective from the date the Client first accesses or uses Tanda Payroll and continues until these Payroll Terms are terminated in accordance with clause 9.1 or 9.2 or the Agreement is otherwise terminated (Payroll Licence Term).

3.1 Licence grant

In consideration of the Tanda Payroll Access Fee, Tanda grants to the Client a revocable, non-exclusive, non-transferable licence to access and use Tanda Payroll for its internal business purposes during the Payroll Licence Term.

3.2 Use obligations

As a fundamental condition of the licence in clause 3.1 above:

(a) the Client must ensure that it and all End Users’ access and use of Tanda Payroll are strictly in accordance with these Payroll Terms;

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

(c) the Client agrees the prior written consent of Tanda is required for the Client to sub-licence any right or obligations under these Payroll Terms (other than as expressly indicated in these Payroll Terms); 

(d) the Client must use Tanda Payroll as-is and in the form provided by Tanda; and

(e) the Client acknowledges, and agrees, that the rights granted to it in respect of Tanda Payroll are expressly limited to the rights stated in clause 3.1, and to the fullest extent permitted by law, all implied rights in relation to the licence in clause 3.1 are excluded.

3.3 Acknowledgements and limitations 

(a) Tanda Payroll 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 Payroll 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 Tanda Payroll or 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 Tanda Payroll;

(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 Tanda Payroll 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 Tanda Payroll'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 Tanda Payroll. 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 Tanda Payroll 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 any part of Tanda Payroll (including any corrections or fixes) at any time during the Payroll 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 Tanda Payroll or the Payroll Calculator to administer the implementation, usage or calculation of industrial relations awards or enterprise agreements, penalties, pay rates or similar.

4.1 Participation

(a) The Tanda Pay Advance is only available to Clients that have purchased Tanda Payroll and is entirely optional. 

(b) If the Client has opted to use Tanda Pay Advance, the following clauses additionally apply to the Client's use of Tanda Payroll. 

4.2 Payment of Available Wages

(a) Upon receiving a request from the Client's Personnel to withdraw any Available Wages, Tanda will pay the Personnel the requested amount.

(b) Any amount paid by Tanda to the Client's Personnel under clause 4.2(a) (Withdrawn Amount) will be reflected in the Personnel's next pay run via the application of an automated deduction line included in the next pay run for the Personnel who made the request. 

(c) The Client must retain the automated deduction entry on the ABA banking file when processing payment for the relevant pay run in the next payroll processed following the request, to enable the Client's repayment of the Withdrawn Amount to Tanda. 

(d) The Client is solely responsible for ensuring the deduction is retained in the payment for the relevant pay run and complying with any other obligations it may have under Law in respect of the deduction or Withdrawn Amount.

(e) If the Client (without fault from Tanda) fails to carry out its obligations under clause 4.2(c) or 4.2(d):

(i) Tanda may (at its sole discretion and without limitation to other remedies Tanda may have under the Agreement or Law) suspend the Client or its Personnel's access to Tanda Pay Advance; and

(ii) Client must indemnify and hold the Indemnified Parties harmless against any Loss, Claim or Liability incurred by the Indemnified Parties arising from such failure.

4.3 No liability

(a) The Client acknowledges and agrees that Tanda Pay Advance is provided on an as-is basis and accordingly, Tanda makes no warranty, guarantee or representation in respect of Tanda Pay Advance.

(b) To the fullest extent permitted by applicable Law, Tanda will not be Liable for any Loss, Claim or Liability arising from or in relation to:

(i) the Client or its Personnel's participation in or use of Tanda Pay Advance; 

(ii) the Client's failure to correctly deduct the Withdrawn Amount from its Personnel's pay, including by interfering with the automated deduction or modifying the ABA banking file described at clause 4.2(b) and 4.2(c), respectively; 

(iii) the Client's failure to comply with its obligations at Law described at clause 4.2(d); or

(iv) the Client's failure to allow the Withdrawn Amount to be repaid through the payroll process.

5.1 Availability

Tanda will use its best endeavours to provide access to Tanda Payroll on a continuous basis during the Payroll Licence Term, with the exception of the circumstances described in clause 5.4.

5.2 Support

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

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

(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 Tanda Payroll 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 Tanda Payroll 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 Tanda Payroll other than in accordance with the Tanda Payroll Guidance.

5.3 Suspension

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

5.4 Downtime and limitations

The Client acknowledges and agrees that:

(a) access to Tanda Payroll may occasionally be limited due to Scheduled Maintenance;

(b) access to Tanda Payroll 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 Tanda Payroll.  While Tanda will use all reasonable endeavours to ensure the Client has continuous access to Tanda Payroll, 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 Tanda Payroll 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 Tanda Payroll 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.

5.5 Notice

In the event that access to Tanda Payroll 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.

5.6 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 Tanda Payroll referred to in this clause.

7.1 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.

7.2 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 Tanda Payroll to be accessed in any unauthorised way, including via interfaces (including exposing or 'passing through' a software API or otherwise making Tanda Payroll accessible as an API).

8.1 Provision of information

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

8.2 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.

9.1 Termination for cause

(a) These Payroll Terms terminate automatically upon termination or expiry of the Agreement or (if Tanda Payroll was purchased as an add-on to the Workforce Management Software) the Workforce Terms.

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

(i) 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;

(ii) 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

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

9.2 Termination for convenience

The Client may terminate these Payroll Terms for any reason by following the process in the Tanda Web Portal.  

9.3 Consequences of termination

Upon termination of these Payroll Terms:

(a) subject to clause 9.3(d), the licence granted to Tanda Payroll under clause 3.1 is revoked;

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

(c) 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 Payroll Terms, which are in that party’s possession or control; 

(d) if the Client terminates these Payroll Terms pursuant to clause 9.2, then:

(i) the Client is not entitled to a refund of any pre-paid Tanda Payroll Access Fees;

(ii) the Client must pay all Tanda Payroll Access Fees, including:

(A) all Tanda Payroll Access Fees payable for the then current billing period; or

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

(iii) if the Client has selected an Advance Payment arrangement, the Client and its End Users may continue using Tanda Payroll in accordance with the Agreement for the remainder of the Initial Terms or the then-current Further Term (as the case may be); 

(e) termination of these Payroll Terms does not terminate any other Schedules or the Agreement; and

(f) clauses 3.3(d) (Payroll Calculator), 5.2(d) (No liability for support), 6.2 (No liability for Client obligations), this clause 9.3, 10 (Disclaimer) and 11 (Indemnity) survive termination or expiry of these Payroll Terms.

(a) The Client acknowledges and agrees that the various components of Tanda Payroll, including any associated commentary or guidance, do not:

(i) constitute the provision of tax agent services; 

(ii) constitute the provision of lending or debt collection services; or

(iii) accommodate all possible employment conditions to determine an Employee’s net pay.

(b) As a fundamental condition of the Agreement, the Client acknowledges and agrees that 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 Tanda Payroll, the Workforce Management Software or otherwise.

(c) To the full extent permitted by Law, the Client acknowledges that Tanda Payroll (and anything else provided under the licence at clause 3.1) is licensed by Tanda on an ‘as is, where is’ basis and Tanda makes no warranties or representations as to the Payroll Calculator, Outputs, Tanda Payroll and the Workforce Management Software (and anything else provided under the licence).

(d) To the fullest extent permitted by law, Tanda will not be Liable in any way for (and is released from) any Loss (including any Loss incurred by the Client or any current or former Employee of the Client) arising from, or in connection with:

(i) its provision of Tanda Payroll; or

(ii) any error, inaccuracy, incompleteness or other similar defect in Tanda Payroll or in any application, interpretation, usage or calculation of Employee entitlements in modern awards and enterprise agreements.

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 11(c) above.