This Service Agreement (the “Agreement”) is made and entered into by and between you and Pandaworks Software PLT, a Malaysian limited liability partners doing business as “WorkSmart”. This Agreement contains the terms and conditions that govern the use of, and the terms and conditions upon which WorkSmart will provide to you, certain payroll processing (both monthly and yearly), pcb/epf/socso related services and other payroll services (collectively the “Service”), which is provided through WorkSmart’s online software application and website operated by WorkSmart.
You are required to indicate your acceptance of the terms and conditions below in order to access and use the Service. By accessing and/or using the Service, you are consenting to be bound by this Agreement. If you are agreeing to these terms on behalf of a business, you represent and warrant that you have authority to bind that business to this Agreement, and your agreement to these terms will be treated as the agreement of the business. In that event, “you” and “your” refer to that business.
As long as you meet your payment obligations and comply with the terms this Agreement, WorkSmart will provide you the Service for the purpose of calculating payroll and its associated liabilities for your business. You may not use the Service on a professional basis for anyone other than you.
Depending on the type of Service you request, you may need to agree to additional terms and conditions and complete and sign additional forms or authorizations that WorkSmart provides to you as required by law or otherwise necessary to provide the Service.
You consent to and authorise WorkSmart at any time to obtain credit reports about you and/or your business, and to report adverse credit information about you and/or your business, to others, including the LHDN and any applicable statutory bodies. WorkSmart may, at its discretion, decline to offer the Service to you for any reason, including in the event that the enrollment process is not satisfactorily completed, WorkSmart is unable to verify satisfactory credit of you and/or your principals and/or for other lawful business reasons.
Prior to your initial payroll processing date, you must submit the completed and executed documents WorkSmart requires for providing the Service, including your payroll and employee information, and any additional information requested by WorkSmart. In performing the Service, you acknowledge and agree that WorkSmart is not acting in a fiduciary capacity for you and/or your business and using the Service does not relieve you of your obligations under Malaysian laws or regulations to retain records relating to your data contained in WorkSmart’s files.
The Service does not include obtaining access to the Internet for connecting to the Service. You acknowledge that the operation and availability of the communications systems used for accessing and interacting with the Service or to transmit information to the statutory bodies can be unpredictable and may, from time to time, interfere with or prevent access to the Service or its operation. WorkSmart is not in any way responsible for any such interference with or prevention of your use of or access to the Service. In such cases, you must contact customer support by other means for instructions on how to calculate payslips for your employees and make statutory payments and submissions. You will, at your own cost and expense, obtain, install and, at all times during its utilization of the Service, maintain in good working order all software, hardware and other equipment necessary for you to perform in accordance with this Agreement. In the event of any failure of such software, hardware or other equipment, you will deliver to WorkSmart all data which you would otherwise have provided that is necessary for WorkSmart to perform WorkSmart’s obligations in connection with the Services.
You agree not to:
- use the Service other than as authorized in this Agreement;
- use any device, software, or routine that interferes with any application, function, or use of the Service, or is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication;
- resell, sublicense, timeshare, or otherwise share the Service with any third party;
- frame or mirror the Service;
- decompile, disassemble or reverse-engineer the underlying software or application that is part of the Service or otherwise attempt to derive its source code;
- use the Service either directly or indirectly to support any activity that is illegal;
- access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes;
- authorize any third parties to do any of the above.
You will designate and authorize either yourself and/or one or more individual users of the Service with authority to act on your behalf and to bind you and/or your business (each a “Payroll Administrator”), who may access the Service by entering a confidential email and password created by following the instructions provided via the Service and which will entitle them, depending on their designation and permissions given, to have authority to access, review, modify and/or provide approvals on your behalf. The Payroll Administrator will approve and submit the Payroll Information thereby authorizing WorkSmart to create and transmit forms and files necessary to process your payroll and statutory body transactions.
You will, and will cause your authorized users to, take reasonable steps to maintain the confidentiality of the authorization procedures and the email/password combination and related instructions provided by WorkSmart. If you believe or suspect that any such email/passwords or related instructions have been known or accessed by unauthorized persons, you will immediately notify WorkSmart in a manner affording WorkSmart a reasonable opportunity to act on the information, and you acknowledge that failure to immediately notify WorkSmart could result in unauthorized access to confidential information concerning you and your employees. WorkSmart reserves the right to prevent access to the Service should WorkSmart have reason to believe the confidentiality of the security procedure or the confidentiality of the email/passwords have been compromised. You are responsible for any actions taken on the Service by your Payroll Administrator and/or any other authorized users, and for any transactions resulting from your failure to maintain the confidentiality of your account. You agree that the provision of a email/password by you, your Payroll Administrator and/or any other authorized users, will have the same effect as providing a written signature authorizing electronic payments, submissions and other actions on the Service.
WorkSmart will notify you via electronic communication or by other means when all data necessary to begin the Service has been received and the enrollment process has been completed. You shall then, prior to submitting your first payroll, review for completeness and accuracy the Payroll Information. For purposes of this Agreement, “Payroll Information” shall mean all information posted for your review on the Service such as, the information used to calculate and pay employee payroll, track your employee’s leave, payments of pcb/epf/socso in compliance with the laws and regulations of such statutory bodies. You must correct incorrect or missing Payroll Information, either by itself or by notifying WorkSmart in the manner specified in the electronic communication and within the time period specified therein. You are fully responsible for the accuracy of all information you provide, submit and/or approve, including, without limitation any penalties.
You agree that by submitting each payroll (including the first payroll):
- you have approved all Payroll Information;
- you have waived and released any claim against WorkSmart arising out of any errors in the Payroll Information which you have not yourself corrected or have not requested WorkSmart to correct;
- any subsequent request for corrections will be considered special handling and additional fees may be charged. Final audit responsibility rests with you. WorkSmart will not have any responsibility for verifying the accuracy of any data you provide or directly input via the Service or any other method.
WorkSmart may permit, but shall not be obligated to permit your Payroll Administrator or other a designated representative to communicate with WorkSmart by electronic mail or other means about the Service. You acknowledge that any such electronic mail communication or other means of communication will be made available for your benefit and convenience, that any Payroll Information, Entries or other instructions communicated to WorkSmart will be deemed to have been fully authorized by you and you shall be fully responsible for the accuracy of such information including, without limitation, any tax or other penalties; and that, notwithstanding such deemed authorization, WorkSmart may in its sole discretion refuse to accept or act upon any such instructions.
WorkSmart, its employees and agents will hold in strict confidence all data furnished by you or produced by WorkSmart under this Agreement; provided, however, that such parties will not be held liable if such data is released through other sources, or if WorkSmart, its employees and agents release the data because of a reasonable belief that you have consented to such disclosure.
In order to use the Service, you must submit accurate salary/wage and payroll information to WorkSmart during the enrollment process. WorkSmart will not be liable for any penalty, interest or other liability that results from inaccurate or incomplete information you supply. The payroll information must be reconciled with your employee’s previous payslips or previous payroll information for the current tax year. Thereafter, you shall timely and accurately update all wage and payroll information as necessary to reflect changes with additional information requested from time to time by WorkSmart. It is your responsibility to submit complete and accurate information to WorkSmart and to remit the fees due in connection with the Service. Any penalty incurred due to late remission of payment or inaccurate information provided by you will be your sole responsibility. You further agree to hold WorkSmart harmless from such liability. WorkSmart, at its option, may decide not to submit your payroll monthly or yearly forms, make payments to the various statutory bodies, or otherwise process your payroll if there are any unresolved problems with any information requested by WorkSmart or submitted by you. WorkSmart’s sole liability and your sole remedy for WorkSmart’s negligent failure to perform the payroll submission/payment portion of the Service shall be:
- WorkSmart will remit the contributions received from you to the appropriate authority and;
- WorkSmart will reimburse you or pay directly to the appropriate authority any penalties resulting from such negligent error or omission by WorkSmart.
- depositing any liabilities to date, incurred to the statutory bodies (before the payroll processing with the WorkSmart);
- submitting any monthly/yearly forms/payments to statutory bodies that are now due, andcancelling any prior payroll service.
You are responsible for:
Services Fees and Charges
You agree to pay the fees for the Service in accordance with applicable fee schedule. You agree to reimburse WorkSmart for any sales, use and similar taxes arising from the provision of the Service that Malaysian government may impose. WorkSmart may charge additional fees for exceptions processing, setup and other special services. WorkSmart reserves the right to change the schedule of fees from time to time. You will be notified of any change in fees at least 30 days in advance of the effective date. If a fee increase or change to this Agreement is not acceptable, you may cancel the Service as provided herein prior to the time when it takes effect. Your continued use of the Service constitutes your agreement to those changes. If WorkSmart is unable to collect fees due because of insufficient funds in your Bank Account or for any other reason, you must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees or charges for return items. In addition, WorkSmart may suspend the Service or terminate this Agreement and avail itself of any other available remedy. WorkSmart also reserves the right to make any appropriate reports to credit reporting agencies, financial institutions, statutory bodies and polis, and cooperate with them in any resulting investigation or prosecution.
Your use of the Service is entirely at your own risk. WorkSmart is not in the business of providing legal, tax, financial, accounting, employment, or other professional services or advice. You should consult a professional trained in those areas if you need such assistance. The Service is provided “AS IS” and on an “AS AVAILABLE” basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WorkSmart DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, NON-INFRINGEMENT, OR THE ACCURACY, RELIABILITY, QUALITY OF ANY INFORMATION OR CONTENT IN OR LINKED TO THE SERVICE. WorkSmart DOES NOT WARRANT THAT THE SERVICE WILL BE COMPLETELY SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. If the exclusions for any implied warranties do not apply to you, any implied warranties are limited to 60 days from the date of delivery of the Service.
The Service will continue until such time as you or WorkSmart gives 30 days’ prior written notice (which may be given by email or through a notice in your account), unless termination is for cause. WorkSmart may terminate or temporarily suspend your access to the Service in the event that:
- you breach any material provision of this Agreement that, (if it is capable of being cured) is not cured within 10 days from notice to you (5 days in the case of non-payment);
- or WorkSmart determines that your actions are likely to cause legal liability for WorkSmart or that you have misrepresented any data or information required by WorkSmart in connection with the Service or at any other time.
WorkSmart may immediately terminate this Agreement without notice to you if you file, or have filed against you, a petition under the Malaysian Bankruptcy Act or a similar state or federal law. The termination of the Service or this Agreement will not affect your or WorkSmart’s rights with respect to transactions which occurred before termination. Upon any termination of the Service, your right to access and use the Service will automatically terminate, and you may not continue to access or use the Service. WorkSmart will have no liability for any costs, losses, damages, or liabilities arising out of or related to WorkSmart’s termination of this Agreement.
You agree to indemnify, defend and hold WorkSmart and its agents, contractors, services providers and affiliates (each, an “Indemnified Party”), harmless against all liabilities, claims, demands, damages, losses, fines, judgments, disputes, costs, charges and expenses (including, without limitation, reasonable lawyer’s fees incurred in connection with such claims) made by you or others resulting from, arising out of or related to:
- any acts or omissions by you, your Payroll Administrator and/or any other authorized users, or
- WorkSmart’s or any other Indemnified Party’s use of or reliance on information and data furnished by you or resulting from activities that WorkSmart or any other Indemnified Party undertakes at your request, or at the request of anyone WorkSmart or any other Indemnified Party believes in good faith to be your authorized agent, in providing the Service or otherwise in connection with this Agreement. In no event will WorkSmart’s or any other Indemnified Party’s liability for any act or omission relating to the Service exceed the total charge for services provided for the six (6) month period immediately preceding such act or omission by the WorkSmart.
IN NO EVENT WILL WorkSmart OR ANY OTHER INDEMNIFIED PARTY HAVE LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION OR WHETHER WorkSmart OR ANY OTHER INDEMNIFIED PARTY KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES IN ANY CIRCUMSTANCES.
This Agreement shall be interpreted and construed in accordance with the laws of the State of Selangor, without regard to the conflicts of laws principles thereof. You irrevocably submit (for yourself and in respect of your property and business) to the jurisdiction of any state or federal court sitting in selangor, in any action or proceeding arising out of, or relating to, this Agreement and acknowledge and agree that all claims in respect of the action or proceeding may be heard and determined in any such court. You also agree not to bring any action or proceeding arising out of, or relating to, this Agreement in any other court. You waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought.
Changes to the Service
WorkSmart reserves the right to change the terms, conditions, and services at any time, which will be effective when posted on the Service or when you are notified by other means. WorkSmart will try to, but is not obligated to, provide thirty (30) days prior notice of any such material change. If you do not wish to be bound by such change, you may discontinue using and terminate the Service before the change becomes effective. Your continued use of the Service after the change becomes effective, indicates your agreement to the change.
This Agreement constitutes the entire agreement between WorkSmart and you regarding the Service and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided herein. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. You may not assign this Agreement without the prior written consent of WorkSmart. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either:
- the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or
- the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.