Background
A. Roubler is a provider of the Solution, being a software as a service application and platform which it makes available to subscribers via the internet.
B. The Subscriber has entered into, or will enter into, a SaaS Agreement with Roubler, under which the Subscriber is given the right to use the Solution.
C. Roubler also provides outsourced payroll services in connection with the Solution.
D. The Subscriber has requested Roubler to provide the Services to the Subscriber in accordance with this Agreement.
Operative Provisions
In this Agreement (unless the context or subject matter otherwise requires) defined terms and rules for interpretation are as contained in Schedule 1.
2. Term
This Agreement commences on the Commencement Date and continues until terminated in accordance with the provisions of this Agreement.
3. Services
3.1 Provision of the Services
(a) Roubler will provide the Services during the Term on the terms set out in this Agreement.
(c) The Subscriber acknowledges and agrees that Roubler may supply services similar to or the same as the Services to its customers or other third parties in its sole and absolute discretion.
(d) The Subscriber must provide Roubler with all information and assistance required by Roubler from time to time in connection with the provision of the Services.
(e) If the Subscriber requests any services in addition to the Services, then the provision of such additional services will be subject to parties’ written agreement regarding the fees, terms and conditions that will apply in respect of such additional services.
3.2 Payroll Periods
(a) All payroll periods administered by Roubler will be based upon calendar weeks, fortnights or calendar months (as agreed between the parties from time to time).
(b) Other payroll periods requested by the Subscriber will generally not be accepted since Roubler’s systems and payroll runs are based upon complete weekly, fortnightly or monthly cycles.
(c) Where employment of a member of the Subscriber’s Personnel starts or ends during a week or month, the first (or last) wage slip processed will be to/from the date specified by the Subscriber.
3.3 Suspension
Despite any provision of this Agreement to the contrary, Roubler reserves the right to suspend the Services (or refuse to comply with a request or direction given by or on behalf of the Subscriber in connection with the Services) either verbally or in writing without prior notice if Roubler believes or suspects that:
(a) the Subscriber is in breach of, or may breach:
(i) an Obligation or warranty of the Subscriber under this Agreement;
(ii) any applicable Authorisation or laws (including applicable accounting, Tax, industrial relations, payroll, employment and other laws, and other requirements relating to employee entitlements); or
(iii) any other Obligations owed to any Personnel (whether under contract, award, law or otherwise); or
(b) performance of the Services (or compliance with a request or direction given by or on behalf of the Subscriber in connection with the Services) will, or may, cause Roubler or the Subscriber to breach:
(i) any applicable Authorisation or laws (including applicable accounting, Tax, industrial relations, payroll, employment and other laws, and other requirements relating to employee entitlements); or
(ii) any other Obligations owed to any Personnel (whether under contract, award, law or otherwise).
3.4 Terms of Service
The Subscriber must accept and comply with, and ensure that its Personnel accept and comply with all terms and conditions (and any other rules, protocols or policies) implemented or imposed by Roubler in connection with the Services from time to time, including the Terms of Service and Privacy Policy.
3.5 Change in Circumstances
If Roubler becomes aware of a Change in Circumstances, then:
(a) Roubler may give written notice to the Subscriber with details of the Change in Circumstances; and
(b) Roubler and the Subscriber will negotiate in good faith any changes to the terms of this Agreement (including the Fees) which Roubler considers are necessary in connection with the Change in Circumstances.
4.1 Fees
(a) Roubler will invoice the Subscriber for the Fees, and the Subscriber must pay any such Fees as outlined in the customised investment option (without any deduction, setoff or counterclaim) within 7 days following its receipt of an invoice from Roubler for such Fees. Our standard payment method is Direct Debit and unless an alternate payment method is expressly agreed with Roubler, you acknowledge that you will sign and return the direct debit request form and abide by the direct debit service agreement.
(b) The Fees payable under this Agreement are in addition to any fees or other amounts payable by the Subscriber under the SaaS Agreement (or any other agreement).
(c) Roubler may vary the Fees payable under this Agreement from time to time by giving no less than 30 days’ notice to the Subscriber. For the avoidance of doubt, the fees are subject to an annual increase on the anniversary of the agreement date of 3%. The varied Fees will apply from the date set out in the notice (subject to the rights of the parties under clause 6.2).
(a) The consideration for any Taxable Supply under this Agreement will, unless expressly provided to the contrary, be exclusive of GST.
(b) If a party (Supplier) is obliged pursuant to the GST Law to pay an amount of GST in respect of a Taxable Supply made by the Supplier to another party (Recipient), pursuant to the provisions of this Agreement, the Recipient shall pay the Supplier on demand that amount of GST upon production of a valid Tax Invoice by the Supplier in addition to the moneys otherwise payable by the Recipient to the Supplier on account of that Taxable Supply.
(c) Each of the parties warrants and covenants to the other party that it is, and will continue to be at all times during the term of this Agreement, registered under the GST Law.
(a) The Subscriber must pay interest to Roubler on each amount that is not paid when due, from (and including) the day on which it falls due to (but excluding) the day on which it is paidin full, at the rate of 10% per annum. This interest must be paid on demand.
(b) Interest on an unpaid amount:
(i) accrues daily;
(ii) is capitalised (if not paid) every 7 days; and
(iii) is calculated on the basis of the actual number of days on which interest has accrued and of a 365 day year.
(c) This clause 4.3 does not affect the Subscriber’s Obligation to pay each amount under this Agreement when it is due.
5. Liability
5.1 Relationship
To the extent permitted by law, the parties agree and acknowledge that:
(a) Roubler is engaged as an independent contractor of the Subscriber under this Agreement for the purposes of providing the Services;
(b) nothing contained or implied in this Agreement constitutes or creates a relationship of partner, agent or representative of the other for any purpose between the parties;
(c) the provision of the Services does not constitute the provision of accounting, legal, financial, Tax, industrial relations, employment or any other professional advice by Roubler or its Related Entities (or their respective Personnel);
(d) the Subscriber is solely responsible for:
(i) obtaining its own accounting, legal, financial, Tax, industrial relations, employment and other professional advice from suitably qualified professionals; and
(ii) compliance with all applicable Authorisations and laws (including all applicable accounting, Tax, industrial relations, payroll, employment and other laws, and other requirements relating to employee entitlements) and compliance with any Obligations owed by the Subscriber to any Personnel (whether under contract, award, law or otherwise), and the Subscriber must immediately notify Roubler in writing if the Subscriber becomes aware of any breach or non-compliance with any such laws or Obligations.
5.2 Provision of Subscriber Data and funds
(b) Roubler will, as part of the Services, process the Subscriber’s payroll for the relevant payroll period in accordance with (and based exclusively on) the Subscriber Data (and instructions received from the Subscriber) before the Deadline.
(c) To enable Roubler to process the Subscriber’s payroll (and perform the Services), the Subscriber must (in respect of each payroll period) provide Roubler with all relevant Subscriber Data (including any alterations to payroll) and otherwise provide all other information and assistance required by Roubler, by no later than the Deadline (and if the Subscriber does not do so for any reason, Roubler will not be obligated to process the payroll on the scheduled day).
(d) Where Roubler is required to perform an increased amount of work (or perform the Services on an accelerated schedule) as a result of any act or omission of the Subscriber, including where the Subscriber requires amended payslips to be processed after the Deadline, then Roubler reserves the right to charge the Subscriber an additional fee.
(i) Roubler is authorised to lawfully use, upload and otherwise deal with Subscriber Data in relation to the Services; and
(ii) the use by Roubler of Subscriber Data (including third party materials or information) provided by or on behalf of the Subscriber does not, and will not, breach any legal rights of a third party, including any Intellectual Property Rights and nothing contained in the third party materials is misleading or deceptive, or likely to mislead or deceive.
(f) The Subscriber represents, warrants and covenants that the Subscriber will on an ongoing regular basis (for each and every payroll period, and prior to each relevant Deadline):
(i) ensure that all Subscriber Data is true, complete, up-to-date and accurate in all respects; and
(ii) properly audit, review and verify the Subscriber Data and instructions to Roubler to ensure they comply with:
(A) requirements of Government Agencies (including Fair Work Australia);
(B) all applicable industrial relations requirements, Authorisations and other laws and requirements relating to Personnel; or
(C) any other Obligations owed by the Subscriber to any Personnel (whether under contract, award, law or otherwise),
and the Subscriber acknowledges and agree that the Subscriber is solely responsible for ensuring such compliance; and
(g) To the extent permitted by law, the Subscriber acknowledges and agrees that:
(i) Roubler will provide the Services and process the Subscriber’s payroll on the basis of, and in reliance on:
(A) the instructions and Subscriber Data (for example, rates and hours worked, overtime, and allowances) received from the Subscriber; and
(B) the representations, warranties and covenants given by the Subscriber in clause 5.2(f);
(ii) Roubler will not (and does not have any Obligation to) undertake any audit, review or verification in respect of the Subscriber Data and instructions received from the Subscriber to ensure that they are true, complete and accurate in all respects;
(iii) Roubler will not (and does not have any Obligation to) undertake any audit, review or verification in respect of the Subscriber Data and instructions received from the Subscriber to ensure compliance with:
(A) requirements of Government Agencies (including Fair Work Australia);
(B) all applicable industrial relations requirements, Authorisations and other laws and requirements relating to Personnel; or
(C) any other Obligations owed by the Subscriber to any Personnel (whether under contract, award, law or otherwise);
(iv) the provision of the Services does not constitute the provision of accounting, legal, financial, Tax, industrial relations, employment or any other professional advice by Roubler or its Related Entities (or their respective Personnel); and
(v) the Subscriber is solely responsible for obtaining its own accounting, legal, financial, Tax, industrial relations, employment and other professional advice from suitably qualified professionals.
(h) Roubler will not accept liability for any consequences arising from the non-delivery or late delivery of information to Roubler from the Subscriber, or the non-delivery or late delivery of information to the Subscriber from Roubler, where such non-delivery or late delivery is due to a failure of the postal system or any other cause beyond the reasonable control of Roubler. The Subscriber must promptly contact Roubler if it has not received information from Roubler within two Business Days of it being due.
5.3 Output
To the extent permitted by law:
(a) the Subscriber represents and warrants that it is aware of all applicable industrial relations requirements and other laws and requirements relating to Personnel within all relevant jurisdictions (and will ensure that rostering and payment of Personnel complies with such requirements);
(b) the Subscriber acknowledges and accepts that:
(i) Roubler does not make or give any representation, assurance or warranty, (express or implied):
(A) as to the validity, accuracy, completeness, currency or reliability of the Output;
(B) that any forecasts, statements, estimates or projections contained in any Output are accurate, reasonable or will be achieved;
(C) that any use or reliance on the Output (including any statements, estimates or projections contained within the Output) will comply with:
(I) requirements of Government Agencies (including Fair Work Australia);
(II) all applicable industrial relations requirements and other laws and requirements relating to Personnel; or
(III) any other Obligations owed by the Subscriber to any Personnel (whether under contract, award, law or otherwise);
(D) as to the accuracy, correctness, appropriateness or effectiveness of the award or industrial instrument which is applied in respect of any Personnel (or any associated costings estimates or calculations),
and without limiting the above, any estimates or costings provided on or by the Rostering Tool are designed to be used for estimating purposes only, are provided as a guide only, and cannot be relied upon;
(ii) the Subscriber must properly review and make its own independent assessment of the Output and any reliance by it on the Output is wholly at its risk; and
(iii) Roubler does not accept any responsibility or Liability for any errors or omissions in any Output, or in respect of any non-compliance with any applicable requirements relating to Personnel; and
(c) the Subscriber unconditionally and irrevocably releases Roubler from and against all Claims and Liabilities which may arise (whether directly or indirectly) in relation to, in connection with or as a result of the provision of, or any purported reliance on, the Output (including final payroll output after Rostering Tool), including any liability resulting from any negligence, default or lack of care on the part of Roubler or from any other cause.
5.4 Subscriber responsibilities
(a) The Subscriber is solely responsible for complying with, and must at all times ensure that it does comply with:
(i) all requirements of Government Agencies (including Fair Work Australia) in connection with its Personnel;
(ii) all applicable Authorisations and laws in connection with its Personnel (including all applicable accounting, Tax, industrial relations, payroll, employment and other laws, and other requirements relating to employee entitlements); and
(iii) all other Obligations owed by the Subscriber in connection with its Personnel (whether under contract, award, law or otherwise),
and the Subscriber must immediately notify Roubler in writing if the Subscriber becomes aware of any breach or non-compliance with any such requirements, Authorisations, laws or Obligations.
(b) To the extent permitted by law, the Subscriber acknowledges and agrees that the Subscriber is solely liable and responsible for (and neither the Subscriber or any person claiming through the Subscriber will in any circumstances have any Claim against Roubler for or in respect of):
(i) any Employee Entitlements due or payable to any of the Personnel of the Subscriber or those of its Related Entities;
(ii) any Taxes of any kind that are levied, assessed or payable on or in connection with the following:
(A) the employment or engagement of any of the Personnel of the Subscriber or those of its Related Entities; or
(B) the Employee Entitlements due, paid or payable to any of the Personnel of the Subscriber or those of its Related Entities;
(iii) any workers compensation insurance levies and other expenses paid, or required to be paid, in connection with any Personnel of the Subscriber or those of its Related Entities;
(iv) any penalties, interest or other charges which may arise as a result of or in connection with employment arrangements existing prior to the Commencement Date, or for retrospective liability due or the consequences of late filing a declaration of retrospective liability where the due date for payment or compliance was before the Commencement Date (or Roubler otherwise did not have sufficient time to complete the lodgement).
5.5 Exclusions of warranties and representations
(a) To the extent permitted by law:
(i) Roubler does not make or give any representations or warranties (whether express, implied, statutory or otherwise) in connection with the Services; and
(ii) without limiting the foregoing, Roubler does not make or give any representations or warranties (whether express, implied, statutory or otherwise) in respect of merchantability, fitness for a particular purpose or non-infringement; and
(iii) all warranties and representations concerning the Services are excluded, and any term which would otherwise be implied into this Agreement is excluded.
(b) In the event any statute implies terms, representations or warranties into this Agreement which cannot be lawfully excluded, such terms, representations or warranties will apply to this Agreement, save that the liability of Roubler for breach of any such implied term will (to the extent permitted by law) be limited in accordance with clause 5.
5.6 Limitation of liability
(a) To the maximum extent permitted by law:
(ii) if the Subscriber is not satisfied with the Services, its sole and exclusive remedy is to terminate this Agreement in accordance with clause 6.
(b) Notwithstanding any other clause in this Agreement, Roubler will not be liable to the Subscriber (or any other person) for any Consequential Loss of any kind, however caused, and whether arising under contract, tort (including negligence) or otherwise.
(c) The Subscriber releases and indemnifies Roubler from and in respect of:
(i) any Liability that may arise as a result of any omission, mistake or error made by Roubler in processing the Subscriber Data in connection with the Services;
(ii) any Liability that may arise as a result of or in connection with:
(A) the acts or omissions of any other person or entity including, but not limited to, the Subscriber or its Personnel; or
(B) any loss or damage incurred by the Subscriber as a result of third party Claims,
however caused, and whether arising under contract, tort (including negligence) or otherwise, (even if Roubler has been advised of their possibility); and
(i) any Liability that may arise as a result of any Subscriber Data being untrue, incomplete, inaccurate or incorrect in any way; and
(ii) any Liability (including any fees, charges, penalties, interest or other amount of any description that become payable to any Government Agency) that arises for any reason in connection with any of the Personnel of the Subscriber or those of its Related Entities, including where such amount becomes payable in connection with a failure to make any statutory payments, or as a consequence of the failure to make information available to Roubler which would affect or delay the submission of any report or return to Government Agencies by the relevant due dates.
(d) Notwithstanding any other clause in this Agreement and to the fullest extent permitted by law, Roubler’s cumulative Liability in the aggregate arising out of or in connection with this Agreement (whether in contract, tort, statute or otherwise) shall in no event exceed the aggregate Fees received from the Subscriber under this Agreement during the preceding period of 3 months.
Without limiting any other obligation or indemnity given by the Subscriber under this Agreement, the Subscriber must at all times indemnify and hold harmless the Indemnified Parties from and against any Claim or Liability incurred or suffered by any of the Indemnified Parties which is caused or contributed to by any of the following:
(a) a breach by the Subscriber of its Obligations under this Agreement or any warranty, representation or guarantee given by the Subscriber under or in connection with this Agreement (whether express or implied);
(b) any failure (or alleged failure) by the Subscriber or its Personnel (whether before, during or after the term of this Agreement) to fully comply with:
(i) all of the requirements of Government Agencies from time to time, including all requirements of Government Agencies in connection with the Personnel of the Subscriber or those of its Related Entities;
(ii) all applicable Authorisations and laws (including all applicable accounting, Tax, industrial relations, payroll, and employment laws, and other requirements relating to the Personnel of the Subscriber or those of its Related Entities such as employee entitlements); and
(iii) all of the Obligations owed by the Subscriber in connection with any of the Personnel of the Subscriber or those of its Related Entities (whether under contract, award, law or otherwise);
(c) any requirement or request to provide any information or communication to any Government Agency (whether required or requested by a Government Agency, the Subscriber, or otherwise);
(d) any actual or alleged breach or infringement of the Intellectual Property Rights of any person (including Roubler) by the Subscriber or its Personnel; or
(e) any willful, unlawful or negligent act or omission of the Subscriber or its Personnel.
6.1 Termination for cause
(b) Roubler may terminate this Agreement immediately by written Notice to the Subscriber upon the occurrence of one of the following events:
(i) other than the circumstances set out in clause 6.1(a), if the Subscriber is in breach of this Agreement or the SaaS Agreement and has failed to remedy the breach within ten (10) Business Days of a written Notice to it from Roubler, specifying the breach and requiring it to be remedied;
(ii) if the Subscriber is in breach of this Agreement or the SaaS Agreement and that breach is not capable of remedy (as reasonably determined by Roubler); or
(iii) an Insolvency Event occurs in respect of the Subscriber.
6.2 Termination for convenience
Subject to clause 6.1, either party may terminate this Agreement for convenience (and without having to give reasons) by giving the other party at least 30 days’ written Notice.
This Agreement will terminate automatically without notice if the SaaS Agreement is terminated for any reason.
Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.
6.5 Consequences of Termination
Upon termination of this Agreement:
(a) the Services will terminate;
(b) the SaaS Agreement will be unaffected by the termination of this Agreement;
(c) all monies owing to Roubler under this Agreement become immediately payable and due;
(d) each party must (if requested by the other party) return to the other party or destroy, and certify the destruction of (in a statutory declaration) all confidential information belonging to the other party,
and the Subscriber will not be entitled to any refund of Fees paid in advance.
Each party represents, warrants and undertakes to the other that:
(a) if it is a corporation, it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
(b) it has full power, legal right and authority to enter into this Agreement, and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with its terms;
(c) it has taken all necessary corporate action to authorise the creation, execution, delivery and performance of this Agreement, and to observe and perform the provisions of this Agreement in accordance with their terms; and
(d) it has all Authorisations required by applicable laws in order to perform its Obligations under this Agreement.
(i) if delivered by hand, when left at the Notice Address of the party to whom it is to be given;
(ii) if sent by pre-paid post:
(A) in Australia to an Australian address, on the third Business Day after the date of postage; or
(B) in any other case, on the 10th Business Day after the date of postage;
(iii) if sent by email, at the time shown in the delivery confirmation report generated by the sender’s email system (unless an answerback code is received by the sender which indicates the email transmission has not been successful).
9. General Provisions
9.2 Amendment
This Agreement may only be amended, supplemented, replaced or novated in writing signed by the parties.
9.4 Assignment
A right created under this Agreement may only be waived in writing signed by the party granting the waiver and is effective only to the extent specifically set out in that waiver. The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right. No waiver of a breach of a term of this Agreement operates as a waiver of another breach of that term or of a breach of any other term of this Agreement.
If a provision of this Agreement is held by a court to be illegal, void or unenforceable, the offending provision will be severed from this Agreement to the extent and in the manner that best gives effect to the remaining provisions.
This Agreement may be executed in counterparts, each of which will be deemed an original, and which together will be deemed to constitute one and the same instrument.
This Agreement and the transactions contemplated by this Agreement are governed by the law in force in the State of Queensland, Australia. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of the State of Queensland, and all courts competent to hear appeals from those courts.
Except as otherwise expressly provided in this Agreement, each party must pay its own costs and expenses in respect of the preparation, negotiation and execution of this Agreement.
Each party must take all steps, execute all documents and do everything reasonably required by any other party to give effect to this Agreement and to the matters contemplated by it.
9.11 Remedies cumulative
The rights, remedies and powers provided in this Agreement are in addition to other rights, remedies and powers given by law independently of this Agreement.
If the day on which any act to be done under this Agreement is a day other than a Business Day, that act must be done on or by the next Business Day except where this Agreementexpressly specifies otherwise.
No provision of this Agreement is to be interpreted to the disadvantage of a party because that party (or its representative) drafted that provision.
(i)
Schedule 1– Interpretation
PART A – DEFINITIONS
In this Agreement, unless the context or subject matter otherwise requires:
Agreement means this Agreement including the Schedules and any annexure, exhibit or attachment to this Agreement.
Authorisation means any consent, authorisation, registration, filing, lodgment, permit, licence, agreement, notarisation, certificate, permission, direction, declaration, authority or exemption issued by any Government Agency, or any other party under law which has a right to impose a requirement or whose consent is required with respect to this Agreement or otherwise.
Business Day means a day, not being a Saturday, Sunday or public holiday, on which banks are generally open for business in Queensland, Australia.
Change in Circumstances includes:
(a) a change in an existing law;
(b) a new law;
(c) any other change in circumstances,
which occurs or takes effect after the Commencement Date, and which necessitates a change to Roubler’s Obligations under this Agreement or which otherwise is likely to increase the costs of Roubler’s compliance with its Obligations under this Agreement.
Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, Liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
Commencement Date means the date on which Roubler first provides Services to the Subscriber.
Consequential Loss means:
(a) loss of revenue, profits, opportunity to make profits, reputation or goodwill, business, business opportunity, use or amenity or loss of anticipated savings;
(b) special, exemplary or punitive damages; and
(c) any loss or Liability 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 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).
Deadline means the deadline for the provision of all relevant Subscriber Data (including any alterations to payroll) by the Subscriber, as stipulated by Roubler from time to time in writing.
Employee Entitlements means all entitlements, payments or benefits due to any person under contract, statute, general law, statutory instrument and/or industrial award including:
(a) wages, salaries, allowances and other forms of remuneration;
(b) accrued annual leave (including leave loading if applicable), accrued long service leave, accrued sick leave, personal leave or parental leave;
(c) any fringe benefit (within the meaning of the Fringe Benefits Tax Assessment Act 1986);
(d) superannuation contributions payable by an employer;
(e) redundancy pay, commissions, bonuses, reimbursement of expenses and any entitlement which may be owed or payable pursuant to any award, agreement or other industrial instrument, statute or employment contract to which an employee may be entitled in respect of their employment or the termination of that employment; and
(f) all interest and penalties relating to the late payment or non-payment of the above.
Fees means the fees payable by the Subscriber to Roubler, as set out in the customised investment option.
Government Agency means:
(a) any person, body or other thing exercising an executive, legislative, judicial or other governmental function of any country or political subdivision of any country;
(b) any public authority constituted by or under a law of any country or political subdivision of any country; and
(c) any person deriving a power directly or indirectly from any other Government Agency,
and includes the Australian Taxation Office and Fair Work Australia.
GST means:
(a) the same as in the GST Law;
(b) any other goods and services tax, or any tax applying to this transaction in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Indemnified Parties means Roubler and its Related Entities (and their respective officers, shareholders, employees and agents).
Insolvency Event means any of the following:
(a) a person is or states that the person is unable to pay from the person’s own money all the person’s debts as and when they become due and payable;
(b) a person is taken or must be presumed to be insolvent or unable to pay the person’s debts under any applicable legislation;
(c) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;
(d) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven days;
(e) a controller is appointed in respect of any property of a corporation;
(f) a corporation is deregistered or notice of its proposed deregistration is given to the corporation;
(g) a distress, attachment or execution is levied or becomes enforceable against any property of a person;
(h) a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person’s creditors or members or a moratorium involving any of them; or
(i) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a person.
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Liabilities means all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses of whatsoever description (including legal costs on a full indemnity basis).
Notice means a written notice, consent, approval, direction, order or other communication.
Notice Address means the registered office address listed with the Australian Securities & Investment Commission (ASIC). If the Subscriber does not have a registered office address, then the address of the principal place of business is to be used.
Obligation means any express or implied legal, equitable, contractual, statutory or other Obligation, agreement, covenant, commitment, duty, undertaking or liability.
Output means all information and documentation provided or produced by Roubler or the Solution in connection with the Services or as a result of processing Subscriber Data, including:
(a) payslips, summaries, estimates, reports, analysis, specifications, rules, payroll data and alerts; and
(b) any estimated costings and final payroll output provided or produced in connection with the use of the Rostering Tool.
Personnel means officers, employees, secondees, agents, contractors and subcontractors.
Privacy Policy means the Roubler privacy policy available at https://roubler.com/privacy-policy/ or provided on request, as updated from time to time.
Related Entities has the meaning given to that term in the Corporations Act.
Roubler means Roubler Managed Services, its Related Entities, and its permitted assigns.
SaaS Agreement means a Software as a Service (SaaS) Agreement between the Subscriber and Roubler, under which the Subscriber is given the right to use the Solution.
Schedule means a schedule attached to this Agreement.
Services means the provision of a traditional outsourced payroll service, namely processing the payroll for the Subscriber and providing the Subscriber with a bank file to pay the wages, together with all other services to be provided by Roubler and Obligations of Roubler under this Agreement.
SGA means the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth).
Solution means the workforce management software solution with all or some of the following functionality: applicant tracking system, employee onboarding, employee rostering, time & attendance, time clock app, payroll software, employee self service, leave management, e-learning, employee performance management system or other online software applications and services that Roubler makes available to its clients from time to time.
Subscriber Data means all documents, data, files and information:
(a) uploaded to, entered into or stored in the Solution; or
(b) otherwise supplied or made available to Roubler,
by or on behalf of the Subscriber in connection with this Agreement.
Taxation or Tax means and includes:
(a) all taxes levied, imposed or assessed under the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, GST Law or any other law in Australia or elsewhere;
(b) superannuation guarantee and superannuation guarantee charge under the SGA;
(c) all taxes in the nature of sales tax, consumption tax, value-added tax, GST, payroll tax, group tax, PAYG tax, undistributed profits tax, fringe benefits tax, recoupment tax, withholding tax, stamp duties, gift duties or other State, Territorial, Commonwealth or municipal charges or impositions levied, imposed or collected by any Government Agency; and
(d) any additional tax, interest, penalty, charge, fee or other amount of any kind assessed, charged or imposed in relation to the non, late or short payment of the same or the failure to file any return.
Taxable Supply means any supply made by a party as a consequence of a transaction contemplated by this Agreement in respect of which another party is or becomes liable to pay GST.
Term means the term of this Agreement as described in clause 2.
Terms of Service means the Roubler terms of service available on Roubler’s website or on request, as updated by Roubler from time to time.
PART B – INTERPRETATION
In the interpretation of this Agreement, unless the context or subject matter otherwise requires:
(a) the singular includes the plural and vice-versa;
(b) words importing a gender include other genders;
(c) “including” and “includes”, and words of similar meaning, are not words of limitation;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
(f) each clause or sub-clause in a list is to be read independently from the others in the list; and
(g) a reference to:
(i) this Agreement includes all Schedules, exhibits and annexures to this Agreement;
(ii) a court is to an Australian court;
(iii) writing includes printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;
(iv) any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinated legislation issued or made under, that legislation or legislative provision;
(v) a document or agreement includes a reference to that document or agreement as novated, altered or replaced from time to time;
(vi) natural persons includes corporations, trusts, associations, partnerships, bodies corporate, unincorporated associations, authorities and other legal entities, and where necessary, includes successor bodies;
(vii) any party includes that party’s executors, administrators, substitutes, successors and permitted assigns;
(viii) a time or a date is a reference to the time and date in Brisbane, Queensland (unless otherwise agreed by the parties in writing);
(ix) a day, month or year is relevantly to a calendar day, calendar month or calendar year;
(x) $, AUD or dollars is to the lawful currency of the Commonwealth of Australia.
