|“3rd Party Client”||means any client of a Customer to whom the Customer provides payroll services using the System and with whom SimplePay has no contractual or other relationship by virtue of them not being a party to the Agreement;|
|“Active Employee”||means any employee added to the System by the Customer who has not been terminated by the end of the Billing Cycle, or for whom a special payslip is issued in the Billing Cycle;|
|“Agreement”||means the agreement recorded herein, and includes all the Schedules, as amended from time to time in terms of clause 18.4;|
|“Billing Cycle”||means the monthly, alternatively annual, cycle, as applicable, on which a Customer’s invoices are calculated and Subscription Fees are due, beginning on the Commencement Date;|
|“Business Day”||means any day other than a Saturday, Sunday or gazetted national public holiday in the Republic of South Africa;|
|“Commencement Date”||means the date on which the Customer signs up for a Trial in order to access and make use of the System and the Services, alternatively the date on which the Customer signs up for the Paid Subscription should the Customer not complete a Trial immediately prior to signing up for a Paid Subscription;|
|“Consumer Protection Act” or “CPA”||means the Consumer Protection Act 68 of 2008, as amended;|
|“Customer”||means any person who has signed up with SimplePay to access and make use of the System and the Services to process payroll, whether under the Trial or a Paid Subscription;|
|“Effective Surviving Provisions”||means clauses 1 to 2, clause 9 and clauses 14 to 18;|
|“Electronic Communications and Transactions” or “ECTA”||means the Electronic Communications and Transactions Act 25 of 2002, as amended;|
|“Intellectual Property”||means intellectual property of all kinds and descriptions, including all proprietary information, all copyrighted works, trademarks (whether registered or not), designs (whether registered or not), inventions (whether patented or not), patents, software programs, code, forms, text procedures, models, methodologies, data and flow charts, logos, trade names, style names, slogans, Know-How, trade and/or business secrets, and any other intellectual property used or held, present or future, in regard to the respective Party’s business; including all statutory registrations, applications therefore and/or rights to obtain or use the aforesaid, together with all improvements, developments and customisations of the aforegoing;|
|“Intellectual Property Rights”||means a Party’s rights subsisting in the Intellectual Property, whether statutory or at common law;|
|“Know-How”||means ideas, designs, diagrams, information, devices, documents, technical data, scientific data, secret and other processes and methods used in connection with SimplePay’s business; all available information regarding marketing and promotion of SimplePay’s products and services; and any modifications or improvements to any of the aforegoing;|
|“Paid Subscription”||means access to and use of the System to Process Payroll for a Subscription Fee, as from the date of expiry of a Trial, alternatively from the date on which the Customer subscribes for a Paid Subscription should the Customer not first complete a Trial;|
|“Parties”||means the parties to this Agreement, being SimplePay and the Customer. “Party” shall mean either one of the Parties, as the context may indicate, and “We” or “Us” as used in the abridged terms denotes SimplePay;|
|“Process Payroll”||means performing any task on the System related to the creation or editing of payslips;|
|“Promotion of Access to Information Act” or “PAIA”||means the Promotion of Access to Information Act 2 of 2000, as amended;|
|“Proprietary Information”||means any and all know-how, trade secrets and data/information of a proprietary, commercial 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;|
|“Protection of Personal Information Act” or “POPIA”||means the Protection of Personal Information Act 4 of 2013, as amended;|
|“Rand” or “R”||means the lawful currency or legal tender, from time to time, in the Republic of South Africa;|
|“Schedule”||means a schedule attached to this Agreement;|
|“Services”||means the services to be provided by SimplePay to the Customer in terms of this Agreement, consisting of, inter alia, provision of access to and use of the System to Process Payroll, and any support services required by the Customer in relation to the System;|
|“SimplePay”||means Orange Thunder Technologies Proprietary Limited, trading as SimplePay, with registration number 2021/674388/07, a private company incorporated and registered in accordance with the laws of the Republic of South Africa, with the following particulars: Physical address: 807 Cypress Road, Zonnehoewe AH, Roodepoort, Gauteng, 1724. Email address: [email protected];|
|“Subscription Fee/s”||means the fees payable by the Customer to SimplePay as indicated on invoices transmitted by SimplePay to the Customer from time to time, in consideration for the Paid Subscription;|
|“System”||means 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”||means access to and use of the System to Process Payroll, at no charge, for the first thirty (30) calendar days from the date on which the Customer signs up for a Trial;|
|“VAT”||means value-added tax levied in terms of the Value-Added Tax Act, 89 of 1991, as amended.|
This Agreement shall commence on the Commencement Date and shall continue in force for the duration of the Trial and/or Paid Subscription, as applicable, until such time as it is terminated by either Party in accordance with clause 13.
The Customer acknowledges and agrees that it shall, for the duration of this Agreement:
and in the event of the Customer committing any act or omission listed in clause 7.5, should SimplePay incur expenses and/or losses to remedy the situation and/or as a result of the situation, SimplePay reserves the right to recover from the Customer the expenses incurred and/or amount lost, or to take any other appropriate action it may deem necessary to remedy the situation;
shall be referred to negotiation as set out in clause 14.3 below.
This Agreement contains all the provisions agreed on by the Parties with regard to the subject matter of the Agreement, and supersedes and novates in its entirety any previous understandings or agreements among the Parties in respect thereof; and the Parties waive the right to rely on any alleged provision not expressly contained in this Agreement.
Save as is expressly provided for in this Agreement, no provision of this Agreement constitutes a stipulation for the benefit of a third person (i.e. a stipulatio alteri) which, if accepted by the person, would bind any Party in favour of that person.
To the extent permissible by law, no Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
The grant of any indulgence by a Party under this Agreement shall not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor, unless reduced to writing and signed by both Parties.
The Customer shall not cede, assign or transfer any or all of its rights, or delegate any or all of its obligations under this Agreement without the prior written consent of SimplePay, which consent shall not be unreasonably withheld.
The Parties consent to the non-exclusive jurisdiction of the High Court of South Africa, Western Cape Division, Cape Town, for any proceedings arising out of or in connection with this Agreement.
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.