In this Agreement, clause headings are for convenience and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention:
1.1. an expression which denotes any gender includes the other gender; a person includes a natural and an artificial or juristic person; the singular includes the plural and vice versa;
1.2. the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
|“Active Employee”||any employee added to the System by the Customer, for whom a payslip will be generated in any given month|
|“Agreement”||this document, together with all of its Schedules, as amended from time to time upon reasonable notice to the Customer|
|“Billing Cycle”||the monthly cycle on which a Customer’s invoices are calculated, beginning on Commencement Date|
|“Business Days”||any day other than a Saturday, Sunday or official public holiday in Hong Kong|
|“Commencement Date”||the date on which the Customer signs up for the Trial in order to make use of the System and the Services|
|“Customer”||any person making use of the System and related Services to Process Payroll, whether under the Trial or Paid Subscription|
|“Intellectual Property Rights”||intellectual property of all kinds and descriptions, together with all rights subsisting therein, whether statutory or at common law, including all Proprietary Information, all copyrighted works, trade marks (whether registered or not), designs (whether registered or not), inventions (whether patented or not), software programs, procedures, methodologies, data and flow charts and all statutory registrations and applications therefore as at the Commencement Date, together with all improvements, developments and customisations of the aforegoing|
|“Licence Fee”||amounts payable by the Customer to SimplePay as indicated on invoices|
|“Paid Subscription”||use of the System to Process Payroll as from the date of expiry of the Trial|
|“Parties”||SimplePay and the Customer. “Party” shall mean either one of them, as the context may indicate and “We” or “Us”, as used in the abridged terms, denotes SimplePay Pte Ltd|
|“Process Payroll”||performing any task on the System related to the creation or editing of payslips|
|“Proprietary Information”||any and all know-how, trade secrets and data/information of a proprietary and/or confidential nature, including data/information of a Party that the other Party should reasonably have known to be proprietary or confidential in nature|
|“Services”||the services to be provided by SimplePay to the Customer in terms of this Agreement consisting of, inter alia, any support services required by the Customer in relation to the System|
|“System”||the SimplePay online payroll system created and developed by or under the control of SimplePay exclusively, or by or under the control of SimplePay in conjunction with a third party, inclusive of all modifications, enhancements, updates and additions thereto|
|“Trial”||use of the system to Process Payroll, at no charge, for the first thirty (30) days after the Commencement Date|
1.3. any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the Commencement Date, and as amended or substituted from time to time;
1.4. if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
1.5. where any term is defined within a particular clause other than this clause 1, that term shall bear the meaning ascribed to it in that clause wherever it is used in this Agreement; any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be.
2.1. SimplePay has created and developed the System and are the supplier of and have expertise in providing the Services.
2.2. The Customer requires SimplePay to, and SimplePay is willing to grant the Customer access to the System and to provide the Services to the Customer in accordance with the terms and conditions set out in this Agreement.
3.1. This Agreement shall commence on the Commencement Date and shall continue in force until terminated by either Party with reasonable notice.
3.2. The Customer may terminate the Agreement on reasonable notice, provided that any outstanding Monthly Fees are paid prior to termination.
3.3. SimplePay may terminate the Agreement on reasonable notice and on grounds that SimplePay believes to be reasonable, whereafter the Customer will have access to their data for a period of three (3) months.
4. ACCESS TO THE SYSTEM
4.1. For the duration of this Agreement, SimplePay grants to the Customer a personal, non-transferable and non-exclusive right and license to access and make use of the System.
4.2. It is recorded that the System is proprietary to SimplePay and that, as such, the Customer shall not be entitled to:
4.2.1. reproduce, publish, broadcast, translate, modify, adapt, decompile, disassemble or reverse engineer the System, as the case may be, or any concepts, methods and designs embedded in the System, or any part thereof; or
4.2.2. merge or combine the whole or any part of the System with any other components, elements or software without the prior written consent of SimplePay; or
4.2.3. sell, lend, hire or transfer or make available the use of any part of the System to any third party.
4.3. The System is to be accessed remotely therefore:
4.3.1. the Customer shall be responsible for accessing the System via the internet or another dedicated connection; and
4.3.2. the Customer shall be responsible for any and all costs associated with accessing the System.
4.4. It is expressly recorded that the Customer is at all times responsible for ensuring that it:
4.4.1. possesses or will possess all software and hardware required to access and/or utilise the System; and
4.4.2. complies with any laws and/or regulations related to its access and/or Use of the System.
4.5. SimplePay will at all times use reasonable endeavours to ensure that the access to the System is continuous. In this regard, however, it is specifically recorded that SimplePay cannot and does not guarantee that access to the System will remain uninterrupted at all times.
4.6. SimplePay shall provide the Customer with reasonable notice of any scheduled maintenance that may interrupt access to the System, and shall, whenever possible, schedule such maintenance at times which are most convenient for the Customer.
5. PROVISION OF THE SERVICES
5.1. SimplePay undertakes to provide email customer support to the Customer on Business Days.
5.2. SimplePay will at all times use its reasonable endeavours to ensure that the supply of the Services is continuous. In this regard, however, it is specifically recorded that SimplePayl cannot and does not guarantee that the supply of the Services will remain uninterrupted at all times.
5.3. In the event of any Services being interrupted during a critical period, SimplePay shall, upon written request by the Customer, use all reasonable endeavours to make alternative facilities available to the Customer.
5.4. SimplePay shall provide the Customer with reasonable notice of any scheduled maintenance that may interrupt the provision of any Services, and shall, whenever possible, schedule such maintenance at times which are most convenient for the Customer.
6. CONSIDERATION AND PAYMENT
6.1. The Customer shall pay to SimplePay a license fee, payable either:
6.1.1. monthly; or
6.1.2. annually in advance, in which case the Customer is entitled to a ten percent (10%) discount.
6.2. License Fees are calculated in accordance with the Customer’s Billing Cycle based on the number of Active Employees on the Customer’s profile during the relevant month
6.3. License Fees shall escalate annually, on 1 January, with one (1) month’s notice to the Customer at either:
6.3.1. the annual inflation rate as determined by the Consumer Price Index for the preceding calendar year; or
6.3.2. twelve percent (12%)
6.4. Notwithstanding the above, SimplePay reserves the right to escalate Licence Fees at other times and at other percentages upon furnishing the Customer with six (6) months’ notice of such increase
6.5. SimplePay shall, for the duration of this Agreement, furnish the Customer with a written invoice setting out:
6.5.1. the amount of the License Fee due by the Customer to SimplePay in terms of clause 6.1.1 or 6.1.2, which amounts shall be invoiced by SimplePay and payable by the Customer as set out in clause 6.6.2 below; and
6.5.2. any administration fee due by the Customer to SimplePay resulting from manual processing of payments, which amount shall be invoiced by SimplePay and payable by the Customer as set out in clause 6.6.2 below
6.5.3. the net amount due and payable by the Customer to SimplePay in respect of each invoice.
6.6. Unless otherwise clearly stipulated in a Schedule, all amounts stipulated as being payable by the Customer to SimplePay in terms of this Agreement: shall be payable by the Customer to SimplePay within 30 days of receiving an invoice from SimplePay and the outstanding balance of the Customer’s account equalling or surpassing one hundred (100) Hong Kong Dollars, failing which the account will be frozen .
6.7. The Customer shall not, under any circumstances, be entitled to withhold payment of any amount due under this Agreement, save for as provided for in clause 6.6.2. In the event that the Customer fails to make due and timeous payment of any amount owing to SimplePay under this Agreement:
6.7.1. SimplePay shall be entitled to suspend access to the System and the provision of the Services, until such time as the Customer shall have paid to SimplePay such fees, it being specifically recorded that in the event that payment of any amount is to be made in advance, SimplePay shall not be obliged to grant access to the System and/or commence with the provision of the Services, until such payment has been made by the Customer in full
6.8. Where the Customer requests that SimplePay undertake ad hoc development work, and such work is for the sole benefit of the Customer, SimplePay reserves the right to charge a reasonable fee, subject to prior consultation with, and agreement by, the Customer
6.9. Where the Customer makes use of SimplePay’s Self-Service document upload feature, SimplePay reserves the right to charge a reasonable fee for storage of large amounts of data due to excessive uploading of documents.
6.10 Where the Customer has companies from multiple countries in a profile, we reserve the right to bill for all companies in the currency corresponding to the country that has the most employees.
7. Excused Performance
7.1. SimplePay shall be relieved of the obligation to perform in accordance with the provisions of this Agreement and shall, in addition, not be liable for any loss (including, but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising, where SimplePay’s failure, delay or inability to perform its obligations in terms of this Agreement is due to:
7.1.1. the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement;
7.1.2. the Customer’s failure to confirm the accuracy and integrity of any data or information processed for and on behalf of it by SimplePay;
7.1.3. circumstances beyond SimplePay’s reasonable control or events that constitute an event of force majeure in terms of clause 23;
7.1.4. all telecommunications infrastructure and communication line faults;
7.1.5. power failure or power interruptions;
7.1.6. failure or unreasonable delay by the Customer to report faults, problems or defects in the quality of the System to SimplePay;
7.1.7. the Customer making changes to its information technology system or environment or any portion thereof;
7.1.8. the failure of any hardware, software programme, application/s or any other computer systems (or any component thereof) of any third party on whom the Customer relies (whether directly or indirectly) to access and utilise the System and/or the Service, and/or on which SimplePay relies to provide access to the System or to provide the Services;
7.1.9. loss or damage caused directly or indirectly by the negligent and/or incorrect Use of the System by the Customer; and/or
7.1.10. the suspension of the Services for maintenance, repair and improvements; provided that, where possible, SimplePay shall provide the Customer with reasonable notice of any such suspension.
8. OBLIGATIONS OF THE CUSTOMER
8.1. The Customer shall, for the duration of this Agreement:
8.1.1. be solely responsible for confirming the accuracy and integrity of any data or information processed for and on behalf of it by SimplePay;
8.1.2. be solely responsible for the protection of its Proprietary Information;
8.1.3. not commit or attempt to commit any act or omission which directly or indirectly:
220.127.116.11. impedes, impairs or precludes SimplePay from being able to grant access to the System and/or provide the Services in a reasonable and business-like manner;
18.104.22.168. constitutes an abuse
22.214.171.124. or malicious misuse of the System and/or the Services; or
126.96.36.199. is calculated to have either of the abovementioned effects,
and in the event of the Customer committing any act or omission listed in 8.1.3, should SimplePay incur expenses to remedy the situation, SimplePay reserves the right to charge the Customer the amount necessary to cover SimplePay’s additional expenditure or to take any other appropriate action it may deem necessary to remedy the situation;
8.1.4. not sell, resell or otherwise deal with the System in any manner whatsoever and, without limitation to the aforegoing, any consideration which the Customer may receive whilst acting in breach of this prohibition shall be forfeited to SimplePay;
8.1.5. not allow any person other than its employees or other authorised parties access to the System and/or the Services;
8.1.6. not withhold or defer payment or be entitled to a reduction in any charge or have any other right or remedy against SimplePay, its servants, its agents or any other persons for whom it may be liable in law if SimplePay interrupts access to the System or refrains from providing the Services to Customer in the event that the Customer is in default of any of its obligations under this Agreement to SimplePay;
8.1.7. not at any time use the System and/or the Services in contravention of any Hong Kong law and, in this regard, the Customer acknowledges that SimplePay has no obligation to assist the Customer in obtaining knowledge and/or clarity in terms of the applicable Hong Kong law; and
8.1.8. not make any warranty or representation in respect of the System and/or the Services other than those authorised in writing by SimplePay.
The Customer warrants and represents that:
9.1. the supply of the System and/or the rendering of the Services by SimplePay in terms of this Agreement shall not give rise to:
9.1.1. a breach of any licensing arrangement or agreement concerning the Customer’s computer systems, including, without limitation, the Customer’s software;
9.1.2. or an infringement of any copyright or similar right held by any licensor/s of any of the Customer’s computer systems and, in particular, the Customer’s software.
9.2. If, in SimplePay’s opinion, the supply of the System and/or the rendering of any of the Services will constitute a breach of any license or the infringement of any copyright or similar right held by any person in respect of any of the Customer’s computer systems and/or the Customer’s computer software, SimplePay shall not be obliged to supply the System and/or provide any such Services.
SimplePay warrants and represents that:
9.3. it has full capacity and authority and all the necessary licences, permits and consents to enter into and perform in terms of this Agreement and to provide access to the System and/or to provide the Services to the Customer;
9.4. it is the owner of or has the right to use under licence the Intellectual Property Rights employed by it during or as part of providing access to the System or supplying the Services;
9.5. it is not aware, as at date hereof, of any matter within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement;
9.6. access to the System shall be granted and the Services shall be provided in accordance with the provisions of this Agreement and in compliance with Hong Kong law; and
9.7. the Services will be performed in a professional manner and that it is and/or it shall use personnel that is appropriately experienced, suitably qualified and has sufficient knowledge, expertise and competence to perform the services, in accordance with industry standards.
9.8. Save as expressly set out in clause 9.3 above, SimplePay does not make any representations nor give any warranties or guarantees of any nature whatsoever in respect of the System and/or the Services and all warranties which are implied or residual at common law are hereby expressly excluded.
10. LIMITATION OF LIABILITY
10.1. SimplePay shall not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising where such loss is due to the occurrence of any of the following events:
10.1.1. the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement; or
10.1.2. circumstances that constitute an event of force majeure as contemplated in clause 23 below; or
10.1.3. all telecommunications infrastructure and communication line faults; or
10.1.4. failure or unreasonable delay by the Customer to report faults/problems to SimplePay; or
10.1.5. the failure by the Customer to adequately confirm the accuracy and integrity of any data or information processed for and on behalf of it by SimplePay; or
10.1.6. the failure by the Customer to adequately protect its Proprietary Information; or
10.1.7. the failure of any hardware, software programme, applications/s or any other computer systems (or any component thereof) or product or service of any third party on whom the Customer relies (whether directly or indirectly) to access the System and/or use the Services and/or on which SimplePay relies to grant access to the System and/or provide the Services.
10.2. In no event shall SimplePay be liable for any incidental, consequential, or any other indirect loss or damage (including but not limited to loss of profits or revenues and loss of data), nor for exemplary or punitive damages. These limitations of liability shall apply regardless of the form of action, whether in contract, delict or otherwise and regardless of whether the Customer has been advised as to the possibility of such damages and/or losses occurring.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. All Intellectual Property Rights vested in any of the SimplePay documentation or in any software and/or any other documentation and works (whether stored in printed or electronic form) furnished by SimplePay to the Customer, and/or developed by or created by SimplePay or any of its employees, agents, or sub-contractors in the course of or for the purpose of granting access to the System and/or providing the Services to the Customer (whether or not created by SimplePay in connection with this Agreement), shall be the property of and vest solely and absolutely in SimplePay on the date upon which same is created.
11.2. The Customer shall only be entitled to utilise the Intellectual Property Rights referred to in 11.1 above, or any portion thereof, for the purposes of the accessing and utilising the System and/or the Services in terms of this Agreement, and shall not publish, circulate or copy same for use by any third party whomsoever.
11.3. To the extent necessary, the Customer hereby cedes, assigns, transfers and makes over to SimplePay any Intellectual Property Rights in respect of any of the software, documents and/or works referred to in 11.1.
12.1. The Customer shall not acquire any right, title or interest entitling it to use the name, service marks, trademarks or logos of SimplePay. In this regard, the Customer undertakes in favour of SimplePay not to perform any act which would injure the reputation or goodwill attaching to SimplePay’s name and trademarks, or which would prejudice SimplePay’s rights in and to such names and trademarks.
13. SECURITY AND PROTECTION OF PROPRIETARY INFORMATION
SimplePay’s Proprietary Information
13.1. The Customer will keep in confidence and protect any Proprietary Information from disclosure to third parties and restrict its use to that which is provided for in this Agreement.
13.2. The Customer acknowledges that the unauthorised disclosure or use of Proprietary Information may cause substantial economic loss to SimplePay. All printed materials, containing Proprietary Information will be marked with “Proprietary” or “Confidential”, or in a manner which gives notice of its proprietary nature. Proprietary Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Proprietary Information for the Customer’s authorised use. Each such copy, including its storage media, will be marked with all notices, which appear on the original.
13.3. The Customer shall ensure that its employees comply with its obligations under this clause 13. This clause 13 shall survive termination or cancellation of this Agreement. Unless specifically otherwise agreed to, this Agreement does not transfer to the Customer any rights contained in any Proprietary Information of SimplePay. Notwithstanding the provisions of clauses 13.1 to 13.3 above, the Parties agree to observe any additional security measures that may be required from time to time, such measures shall be agreed upon in writing between the parties..
The Customer’s Proprietary Information
13.4. The Customer acknowledges and agrees that it shall at all times be solely responsible for the protection of its own Proprietary Information.
14.1. The Customer shall not at any time, during this Agreement, nor for a period of one (1) year after termination of this Agreement, for any reason whatsoever, either for itself or as the agent of anyone else, persuade, induce, solicit, encourage or procure any employee, agent, sub-contractor or authorised representative of SimplePay to:
14.1.1. become employed by or interested in any manner whatever in any business, firm, undertaking or company, directly or indirectly in competition with the business carried on by SimplePay; or
14.1.2. terminate his employment with SimplePay.
15.1. Should either Party (“Defaulting Party”) commit a breach of any of the provisions of this Agreement, then the other Party (“Aggrieved Party”) shall be obliged to give the Defaulting Party 14 (fourteen) days’ written notice, or such longer period as may be reasonable in the circumstances, to remedy the breach. If the Defaulting Party fails to comply with such notice, the Aggrieved Party shall be entitled, without prejudice to its other rights in law, to cancel this Agreement or to claim immediate specific performance of all of the Defaulting Party’s obligations whether or not due for performance, in either event without prejudice to the Aggrieved Party’s right to claim damages.
16.1. Notwithstanding any other provision of this Agreement, on termination of this Agreement for any reason whatsoever, and in any event, on demand by SimplePay:
16.1.1. any amounts due to SimplePay shall immediately become payable to SimplePay and the Customer shall forthwith make payment of same to SimplePay by not later than seven (7) days from the date of termination of this Agreement.
17. FORCE MAJEURE
17.1. Should a Party (“Affected Party”) be prevented from fulfilling any of its obligations in terms of this Agreement as a result of an event of force majeure, then:
17.1.1. those obligations shall be deemed to have been suspended to the extent that and for so long as the Affected Party is so prevented from fulfilling them and the corresponding obligations of The other Party (“Unaffected Party”) shall be suspended to the corresponding extent;
17.1.2. the Affected Party shall promptly notify the Unaffected Party in writing of such event of force majeure and such notice shall include an estimation of the approximate period for which the suspension in terms of clause 18.1.1 will endure. Such estimate shall not be binding on the Affected Party ; and
17.1.3. the duration of this Agreement as well as each period within which and each date by which any obligation is required to be performed in terms of this Agreement shall be extended or postponed, as the case may be, by the period of suspension in terms of clause 18.1.1.
17.2. Should the Affected Party partially or completely cease to be prevented from fulfilling its obligations by the event of force majeure, the Affected Party shall immediately give written notice to the Unaffected Party of such cessation and the Affected Party shall, as soon as possible, fulfil its obligations which were previously suspended; provided that in the event and to the extent that fulfilment is no longer possible or the other Party has given written notice that it no longer requires such fulfilment, the Affected Party shall not be obliged to fulfil its suspended obligations and the Unaffected Party shall not be obliged to fulfil its corresponding obligations.
17.3. Should an event of force majeure continue for more than 180 (one hundred and eighty) days after the date of the notice referred to in clause 18.1.2 and notice of cessation in terms of clause 18.2 not have been given, then the Unaffected Party shall be entitled (but not obliged) to terminate this Agreement by giving not less than 30 (thirty) days’ written notice to the Affected Party to that effect, provided that any such notice of termination shall be deemed not to have been given if a notice of cessation in terms of clause 18.2 is received by the Unaffected Party prior to the expiry of such 30 (thirty) day period.
17.4. An “event of force majeure” shall mean any event or circumstance whatsoever which is not within the reasonable control of the Affected Party, including vis major, casus fortuitus, any act of God, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities
18. CESSION AND ASSIGNMENT
The Customer shall not be entitled to cede, assign or transfer all or any of its rights and/or obligations in terms of this Agreement, without the prior written consent of SimplePay, which consent will not be unreasonably withheld.
If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scripto, but without affecting, impairing or invalidating any of the remaining provisions of this Agreement which shall continue to be of full force and effect.
21.1. This Agreement will be governed and construed in accordance with the laws of Singapore.
20.2. This Agreement constitutes the sole record of the agreement between the Parties in regard to the subject matter thereof.
20.3. Neither Party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein or reduced to writing and signed by the Parties or their representatives.
20.4. SimplePay will inform the Customer of any addition to, variation, or cancellation of this Agreement by email and / or notification. The Customer has the option to terminate the Agreement within a reasonable time of having been notified and not doing so will amount to consent / acceptance of the amendments.
20.5. No indulgence which either Party may grant to the other shall constitute a waiver of any of the rights of the grantor, unless reduced to writing and signed by both Parties.
20.6. The Customer hereby warrants that it has the capacity to and is authorised to conclude this Agreement, and that upon acceptance this Agreement will, and will continue to, bind it in all respects.
20.7. Full contact details:
20.7.1. Full name and legal status of website owner:
SimplePay Pte Ltd
20.7.2. Street Address:
531A Upper Cross Street
#03-102 Hong Lim Complex
20.7.3. Postal address: as above in 188.8.131.52
20.7.4. Physical address for the receipt of legal notices: as above in 184.108.40.206
20.7.5. Official email address of the Website: [email protected]