Employer Terms and Conditions
Page last updated August 2021
Effective Date of this revision 24 August 2021
These Standard Employer Terms and Conditions (the Agreement) apply to your use of the Flare Services and is a legally binding agreement between you (Employer or you) and Flare HR. This Agreement also applies to each of your Associated Entities specified in the Order Form.
Please read this Agreement carefully and keep a copy for future reference. By signing the Order Form and/or accessing the Flare Services, you agree to the terms of this Agreement. If you do not agree, you must stop using the Flare Services.
If you are entering into this Agreement on behalf of another person (including any Associated Entities), you are deemed to agree to the terms of this Agreement on behalf of that person.
- Flare Platform Service Options
- The Flare Platform provides you with 3 service options: Flare Standard, Flare Plus and Flare Professional.
- The Order Form will specify what service option applies to you.
- Employer may upgrade the service option that applies to them by providing Flare HR with 30 days’ written notice. If the Employer does upgrade their service option, the parties will work together to implement this change. Employer may only downgrade the service option that applies to them with the written agreement of Flare HR (which it may withhold in its sole discretion).
- The terms of the Agreement vary depending on what service option applies to you and are as follows:
|Package Option||Agreement Terms|
|Clauses 1 to 29 (excluding clause 8)|
Clauses 1 to 29 (excluding clause 8)
Clauses 1 to 29 (excluding clause 8)
Clauses 1 to 29 (excluding clause 8)
- The Agreement commences on the Start Date and will continue for the Initial Term unless terminated in accordance with clause 18.
- After the Initial Term, the Agreement will continue on a rolling Further Periods (Rollover Term) unless terminated in accordance with clause 18.
- Flare HR appointment
- Employer acknowledges and agrees that Flare HR has entered into this Agreement in its own right and as agent for the Flare Affiliates.
- Flare HR holds the benefits of this Agreement on behalf of the Flare Affiliates.
- Any obligation of Flare HR under this Agreement may be performed by Flare HR or any Flare Affiliate.
- Launch and Employer obligations
- Flare HR and Employer agree to work together and use their reasonable endeavours to make the Flare Platform available to Users by the Target Launch Date. Employer acknowledges and agrees that Flare HR’s ability to meet the Target Launch Date is dependent on the Employer providing reasonable assistance as required under this Agreement. Flare HR will not be liable for any failure to meet the Target Launch Date if such failure is caused or contributed to by Employer not providing such reasonable assistance.
- Employer must provide to Flare HR all Employer Materials by the Start Date or as soon as reasonably practical thereafter. Employer acknowledges and agrees that the timely, complete and continuing provision of all Employer Materials is a critical dependency for successfully achieving the Target Launch Date and for the ongoing provision of the Flare Services.
- Employer must comply with any other Employer Requirements.
- Flare Services
- Flare HR will make the Flare Platform available to Employer and its Users on and from the Go-Live Date and during the Term.
- Flare HR will use commercially reasonable efforts to provide the Flare Services.
- Flare HR will issue each User with login credentials for them to access the Flare Platform. Employer must ensure that all Users keep their login credentials secure and confidential. Flare HR is not liable for any Loss arising from any failure to maintain the security of User log-in details.
- Employer is responsible for any and all actions taken using a User’s log-in details and must immediately notify Flare HR if they become aware of any unauthorised use.
- Employer acknowledges and agrees that, in providing the Flare Services, Flare HR and Flare Affiliates may contact and communicate directly with any User in relation to the Flare Platform, or any of the products and services available via the Flare Platform that the User has expressed an interest in or acquired, without Employer’s consent.
- Both parties must notify the other if they become aware of any Fault which may have a material adverse effect on the Flare Platform. Both parties will work together in good faith and will use reasonable endeavours to ensure that any Fault is rectified within a reasonable period.
- Administrator Access
- Employer will nominate certain Personnel to be Administrators.
- From the Go-Live Date or such other date as agreed between the parties, Flare HR will grant Administrator Access to each Administrator.
- Employer must procure that each Administrator complies with, and does not seek to circumvent, any restrictions imposed on Administrator Access by Flare HR and/or by Employer.
- Employer must ensure that all Administrators keep their login credentials secure and confidential. Employer will immediately notify Flare HR of any unauthorised use of which Employer or its Administrators or other Personnel become aware.
- Employer is responsible for any and all actions taken by Administrators. Flare HR and Flare Affiliates will not be liable for any Loss from any Administrator’s failure to maintain the security of its login credentials.
- If your Order Form specifies the Flare Professional service option, you acknowledge and agree that you are also bound by the FlarePay Terms which are available at flarehr.com/legal.
- The FlarePay Terms govern your use of the FlarePay Services. This Agreement governs your access to FlarePay via the Flare Platform.
- All references to the Flare Platform and Flare Services in this Agreement will include access to FlarePay in accordance with this clause 8.
- Flare HR will provide the Employer with access to FlarePay via the Flare Platform on and from the Go-Live Date and during the Term. Flare HR will use commercially reasonably efforts to provide such access in accordance with the Service Level Agreement. Flare HR and Flare Affiliates will not be liable for any failure to provide access to FlarePay caused by the FlarePay Services or any malfunction, defect in or other problem with the FlarePay Services.
- Flare HR will issue login credentials to Payroll Users for them to access FlarePay. Employer must ensure that the Payroll Users keep their login credentials secure and confidential. Employer will immediately notify Flare HR of any unauthorised use of which Employer, Payroll Users or its Personnel become aware.
- Employer is responsible for any and all actions taken by its Payroll Users. Flare HR and Flare Affiliates will not be liable for any Loss from any failure of Employer’s Payroll Users to maintain the security of its login credentials.
- Access to Payroll Reports will be provided via the Flare Platform.
- Business Partners.
Flare HR or Flare Affiliate may engage a Business Partner to provide any service or product (whether in whole or part), which is available via the Flare Platform.
- Third Party Material
Employer acknowledges and agrees that:
- the Flare Platform may contain content and information drawn from a variety of third party sources and may from time to time make available to Users third party products or services (Third Party Material);
- Flare HR and Flare Affiliates do not endorse, are not liable for and make no representation or warranty in respect of any Third Party Material; and
- the links to third party websites or other information sources that are contained in the Flare Platform may not remain current or be maintained.
- Flare HR may implement an Update to the Flare Platform from time to time.
- Flare HR will notify Employer in advance if any such Update will materially impact applicable service levels.
11. Use of Flare Materials
- Employer must not use the Flare Materials, Flare HR Marks or Flare Affiliate HR Marks in any way that will or is likely to:
- damage Flare HR’s or any Flare Affiliate’s reputation;
- damage the availability or integrity of the Flare Platform;
- interfere with the use of the Flare Platform by others or could compromise any of the networks or servers used by the Flare Platform or Users;
- circumvent any access restrictions within the Flare Platform that apply to Employer or any User or Administrator;
- violate or infringe Flare HR’s or any Flare Affiliate’s rights in the Flare Platform, Flare Materials or Flare HR Marks, including Intellectual property rights; or
- causes or threatens to cause Flare HR’s or us to incur any legal, tax or regulatory liability.
- Employer must and must procure that its Administrators, Payroll Users (if applicable) and Users comply with clause 12(a).
- Each party will appoint a suitably qualified representative to be the first point of contact between the parties for this Agreement. In the first instance, parties should only engage with the first point of contact.
- The contact details of a party’s representative must be provided before the Start Date and can be updated by written notice.
13. Fees, Payment and GST
- All fees payable under this Agreement must be paid in Australian Dollars
- Employer must pay the Fees set out in an invoice, without set-off, abatement or deduction, in accordance with this clause 14.
- Employer acknowledges and agrees that Flare HR and/or Flare Affiliates may receive payments from third parties (including the trustees of superannuation funds) in relation to products and services made available via, or in connection with, the Flare Platform. This may involve the provision of financial services and you should read the Financial Services Guide (available at flarehr.com/legal) to find out more.
- Flare HR will issue invoices to Employer for Fees as the times specified in the Order Form (or if no time is specified, on or after the last day of the month).
- Employer must pay the Fees to Flare HR at the times specified in the Order Form (or if no time is specified, within 30 days of receipt of invoice).
- If you fail to make any payment by the relevant due date, without prejudice to any other right or remedy available to Flare HR, Flare HR may suspend the provision of any services to you, including access to the Flare Platformm until such default is remedied.
- Without limiting any of the remedies available to Flare HR, any amount unpaid by the due date will accrue interest at a rate equal to the Commonwealth Bank of Australia published base rate + 2 % per annum from the date such amount is due until payment is received in full.
- Unless otherwise stated, all amounts referred to in this Agreement (including the Fees) are stated on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, the amount for that Taxable Supply is the amount specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement. In this clause 14(h), capitalised terms which have the defined meaning in the GST Law.
14. Intellectual Property Rights
- The parties acknowledge and agree that all rights, title and interest (including Intellectual Property Rights) in:
- the Flare Materials, Flare HR Marks and Flare Affiliate Marks (including in any improvements thereto) remain with Flare HR, the Flare Affiliates and/or their licensors at all times;
- the Employer Materials and Employer Marks (including in any improvements thereto) remain with Employer and/or its licensors at all times; and
- notwithstanding clause 15(a)(ii), the Flare Data, (including in any improvements thereto), immediately vests in and remains with Flare HR at all times,and nothing in this Agreement is intended to transfer any such right, title or interest to the other party.
- Each party grants to the other party during the Term a non-transferable, non-exclusive, non-sub licensable and royalty-free licence to use their rights, title and interests as specified in clause 15(a) only for the purposes of performing their obligations and exercising rights under this Agreement.
15. Confidential Information and publicity
- A party must not disclose, or use any Confidential Information except.
- with the prior written consent of the other party to this Agreement;
- to employees, Related Bodies Corporate, Controlling Parties, consultants, legal advisers, service providers or insurers on a need to know basis;
- if it is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement; or
- if required by Law or to a Governmental Agency.
- Flare HR or Flare Affiliate (as applicable) must obtain Employer’s prior consent before disclosing or using any information about Employer’s Agreement or use of the Flare Platform in any marketing or other material.
- Privacy and data
- Each party must comply with the Privacy Law in respect of any Personal Information that:
- one party discloses to the other party; or
- comes into the possession or control of a party by any means, including through the Flare Platform.
- Employer must take all reasonable steps to ensure that all Personal Information and other Employer Data that it provides to Flare HR or any Flare Affiliate in connection with this Agreement is, and continues to be, accurate and up-to-date.
- Employer acknowledges and agrees that any Employer Data (excluding User Data) in relation to a User that continues to be held by Flare HR or any Flare Affiliate following the cessation of that User’s contract of employment or services with Employer, will be held on behalf of Employer. Any request made to Flare HR, or any Flare Affiliate, by or on behalf of that User to access such data will be directed to Employer to manage.
- Where Employer discloses Government Related Identifiers to Flare HR or any Flare Affiliates, these Government Related Identifiers are held by Flare HR or Flare Affiliate (as applicable) as agent for Employer and will only be used or disclosed at Employer’s direction.
- Either party may terminate this Agreement after the Initial Term by giving 30 days’ written notice to the other party.
- Either party may terminate this Agreement at any time and with immediate effect by giving written notice to the other party if:
- a party experiences an Insolvency Event;
- the other party breaches any material provision of this Agreement which is incapable of being remedied or where the breach is capable of being remedied, fails to remedy the breach within 30 days after receiving written notice requiring them to do so; or
- without limiting clause 18(b)(ii), the other party fails to comply with the obligations set out in clause 16 (Confidential Information and Publicity) or clause 17 (Privacy and Data).
- Flare HR may suspend Employer’s access to the Flare Platform or terminate this Agreement with immediate effect if Employer or its Personnel breach any of the restrictions set out in clause 12.
- If Flare HR or any Flare Affiliate receives notice or otherwise becomes aware that a third party reasonably considers that any Employer Materials infringe the rights (including Intellectual Property Rights) of any other person:
- Flare HR will notify Employer (or will procure that a Flare Affiliate will notify Employer); and
- Flare HR or a Flare Affiliate may immediately remove such Employer Materials from the Flare Platform and/or suspend Employer’s access to the Flare Platform.
- Consequences of termination
- On termination of this Agreement for any reason:
- Employer and Users will immediately cease to have the right to access or use the Flare Platform;
- Employer may extract Employer Data using the tools available on the Flare Platform before Employer’s access or use ceases. If Employer wishes to access Employer Data after their access or use has ceased, Flare HR may extract the data for Employer subject to the Time Limit and charge for all work done on an hourly basis at the current standard consulting rates;
- Employer must delete any Flare Material (including any Confidential Information of Flare HR and Flare Affiliates) from its systems (including any third party systems operated on behalf of Employer) and provide written confirmation this has been done on request;
- On written request by the Employer, Flare HR must immediately delete, and must procure that Flare Affiliates must delete, any Employer Material (including any Employer Confidential Information), excluding any User Data, from their systems (including any third party systems operated on behalf of Flare HR or any Flare Affiliate) and provide written confirmation this has been done on request;
- the licences granted under clause 15(b) expire and each party must cease using and delete any material they were permitted to use under those licences; and
- if Flare HR terminates the Agreement, Flare HR will provide Employer with reasonable support on terms agreed with Employer until Employer Data is migrated to another system or provider.
- Employer must, within 30 Business Days of termination or expiry pay all Fees incurred and/or owing under the Agreement up to and including the date of termination or expiry.
- Clauses 11. (Use of Flare Platform), 14. (Intellectual Property Rights), 15. (Confidential Information and Publicity), 16. (Privacy and Data), this clause 18. (Consequences of termination), 21. (Warranties and disclaimer), 22. (Indemnities), 23. (Limitation of liability) and any other clauses which should by their nature survive termination of this Agreement,survive termination or expiration of this Agreement.
19. Project Launch Delay
Flare may charge the Employer a minimum fee of $5,000 in the event the Flare Platform is not made fully available to Users on or before the date that is 90 days after the date of this Agreement except where such delay is due to the acts or omissions of Flare HR. The parties acknowledge and agree that this fee presents a genuine and reasonable pre-estimate of the costs and damages that Flare HR will incur as a result of delays to the launch of the Flare
20. Force Majeure
- A party (Affected Party) will not be in breach of this Agreement, and the Agreement will continue and remain enforce, if the Affected Party is unable to perform any or all of its obligations in whole or part due to any Force Majeure Event.
- Once it becomes aware of a Force Majeure Event, the Affected Party must:
- promptly provide written notice to the other party detailing the nature of the Force Majeure Event and the impact to its ability to perform its obligations under the Agreement; and
- promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
21. Warranties and disclaimer
- Each party represents and warrants that:
- it has full power, authority and legal capacity to enter into this Agreement and perform its obligations under this Agreement;
- execution and performance of this Agreement will not result in a breach of any terms or conditions of any instrument or agreement to which it is a party; and
- it will obtain and maintain all Consents applicable or necessary in order to perform its obligations under this Agreement.
- Employer acknowledges and agrees that, to the extent permitted by Law:
- the Flare Materials are made available “as is” and Flare HR and the Flare Affiliates make no warranties or representations about the Flare Materials and any warranties, representatives or endorsements (express or implied) are excluded from this Agreement;
- except to the extent that Flare HR or any Flare Affiliate is directly and solely responsible for Loss, Flare HR and the Flare Affiliates will not be liable for any Loss suffered by the Employer in connection with the provision of the Flare Services or Flare Materials;
- Flare HR and the Flare Affiliates do not accept any liability for delays, interruptions, service failures and other problems relating to the Flare Materials outside the reasonable control of Flare HR or any Flare Affiliate;
- Flare HR and the Flare Affiliates disclaim all liability for any Third Party Material;
- Flare HR and the Flare Affiliates do not warrant that the Flare Platform meets Employer’s needs or that it will function as anticipated by Employer. Employer is responsible for determining that the functionality is appropriate for their purposes. Flare HR will assist Employer in determining this by providing both information and demonstrations to Employer; and
- Flare HR and the Flare Affiliates (where applicable) implement security measures but cannot guarantee the security of the Flare Platform or that the Employer Materials will always be secure.
- Employer will defend, hold harmless and indemnify Flare HR, the Flare Affiliates and their Personnel (Indemnified Parties) from and against any Loss suffered or incurred by them arising out of or in connection with:
- any Claim by any person (including any User) in connection with any data (including any Personal Information) used or disclosed by Employer or its Users in connection with this Agreement;
- the use of the Employer Materials, including any Claim that the use of the Employer Materials or the Employer Marks infringe the rights of any other person; or
- a breach of the provisions of clause 16 (Confidential Information and Publicity) and clause 17 (Privacy and data),except to the extent that such Loss is caused by a breach of this Agreement or negligent act or omission of the Indemnified Parties.
- The parties acknowledge and agree that Flare HR has been irrevocably appointed to act as sole and exclusive agent of these Indemnified Parties for the purpose of recovering (whether through court proceedings or otherwise) the Losses of the Indemnified Parties and enforcing the indemnities.
23. Limitation of liability
- In no event will the aggregate liability of either party for any Loss exceed the Liability Cap, regardless of the cause or form of action. The limitation of liability under this clause 24(a) is cumulative and not per incident or Claim.
- To the extent permitted by Law, under no circumstances will either party be liable for any Indirect Loss.
- Clause 24(b) does not apply to, and will not limit, any party’s liability:
- for fraud (including fraudulent misrepresentation); or
- under any indemnity given in this Agreement.
24. Special Conditions
- The parties acknowledge and agree that if any special conditions are specified in the Order Form (Special Conditions) then such Special Conditions shall apply to the Agreement and each party must comply with its respective obligations regarding those Special Conditions.
- To the extent that any Special Conditions are inconsistent with any other term of this Agreement, the Special Conditions will prevail to the extent of the inconsistency.
Employer may not assign any of its rights or obligations under this Agreement without the prior written consent of Flare HR, which must not be unreasonably withheld or delayed. Flare HR may assign or novate its rights and obligations under this Agreement as it may determine, which assignment or novation Employer is deemed to have agreed to without the need for any further action on Employer’s part.
Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:
- must be in writing and signed by the sender or a person duly authorised by the sender;
- must be addressed and delivered to the representative of the other party appointed in accordance with clause 13, or the address or email address last notified by the intended recipient to the sender after the date of this Agreement; and
- will be conclusively taken to be duly given or made when delivered, received or left at the above email address, fax number or address. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.
- Each party agrees to do all things and execute all documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.
- This Agreement contains the entire agreement between the parties with respect to its subject matter.
- Flare HR may amend this Agreement at any time by providing 30 days’ prior written notice to Employer. If Employer does not agree with the amendments, Employer may terminate the Agreement by giving 30 days’ written notice. The Agreement may also be amended by another written agreement executed by all the parties.
- No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver.
- If any provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that will be severed from this Agreement and the remaining terms and conditions will be unaffected.
- This agreement is governed by, and construed in accordance with the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
The following definitions apply unless the context requires otherwise.
Administrator any Personnel responsible for administrating the Employer’s human resources functions in relation to the Flare Platform
Administrator Access means:
- access to certain information selected and made available by Flare HR or a Flare Affiliate about the Users and the use of the Flare Platform by such Users;
- the ability to upload and display Employer Materials for inclusion into the Flare Platform and to manage the settings for presentation of such materials; and
- access to any other information or Flare Platform functionality made available by Flare HR or any Flare Affiliate to Administrators from time to time.
Associated Documentation means any documentation, guides and other materials made available to Employer by Flare HR or any Flare Affiliates from time to time.
Associated Entities means any related body corporate (within the meaning of the Corporations Act 2001) of Employer that is to be covered by the Agreement and is specified in the Order Form.
Business Day means a weekday and times on which banks are open in Sydney, New South Wales.
Business Partner means any legal entity, company, corporation, firm, partnership or other entity that Flare HR or Flare Affiliate has engaged under an agreement to provide services in connection with the Flare Platform.
Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.
Confidential Information means in relation to a party information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is in the public domain other than through a breach of confidence.
Consents means any licences, clearances, permissions, certificates, permits, authorities, declarations, exemptions, waivers, approvals or consents.
Controlling Parties means persons which control or are controlled by the party within the meaning of the Corporations Act 2001.
Employer Data means any User Data and any other data provided or otherwise made available by Employer to Flare HR or a Flare Affiliate from time to time about Users.
Employer Marks means the brands, trademarks, designs, logos or names of Employer.
Employer Materials means the Flare HR standard templates provided to Employer between the date the Order Form is signed and Start Date that Employer must populate with Employer Data.
Employer Requirements means any assumptions or specific requirements that Employer will need to comply in order to make the Flare Platform available to Employer and Users and/or to integrate the Flare Platform with Employer’s systems, as notified by Flare HR and/or Flare Affiliates to Employer from time to time.
Fault means a fault in the Flare Platform that materially impacts the usability of the Flare Platform.
Fees means the fees and benefit expenses as agreed between the parties in writing from time to time.
Financial Services Guide means the financial services guide made available on the Flare Platform, at www.flarehr.com/legal, or otherwise provided by Flare HR or a Flare Affiliate to Employer from time to time.
Flare Affiliate means any legal entity, company, corporation, firm, partnership or other entity that is:
- controlled by Flare HR or is under common control with Flare HR within the meaning of the Corporations Act 2001; or
- a related body corporate of Flare HR within the meaning of the Corporations Act 2001.
Flare Affiliate Marks means the brands, trademarks, designs, logos or names of the Flare Affiliates.
Flare Data means any materials, data and insights derived or created by or on behalf of Flare HR or any Flare Affiliate, or their Personnel in connection with the Flare Platform, including:
- aggregated or de-identified Employer Data and /or User Data;
- information about the use of the Flare Platform by Users and Employer, including how Users interact with the Flare Platform and any Third Party Materials;
- characteristics of the User base; or
- any materials, data and insights which are otherwise based on, or created or derived from, or co-mingled with, any Employer Data.
Flare HR means Flare HR Pty Ltd (ABN 46 607 120 892).
Flare HR Marks means the brands, trademarks, designs, logos or names of Flare HR.
Flare Materials means the materials and information (including third party materials and including any employment templates and material regarding benefits packages), Flare Platform, and Associated Documentation provided or made available by Flare HR or any Flare Affiliate from time to time.
FlarePay means the online payroll system that is accessible via the Flare Platform.
FlarePay Services means the payroll services specified in the Order Form.
Flare Platform means Flare HR’s online platform that allows Employers to digitally manage human resources.
Flare Services means access to the Flare Platform or any other services agreed between the parties.
Force Majeure Event means any event beyond the control of a party including a flood, storm, other natural event, epidemic or pandemic, act of war, revolution, strikes, locks outs and acts of government.
Further Period means the period specified in the Order Form (or if no period is specified, 30 days).
Go-Live Date means the actual date on which the Flare Platform is first made fully available to Users. The parties will use their best endeavours to ensure the Target Launch Date and Go-Live Date are the same date.
Governmental Agency means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.
Government Related Identifiers means “government related identifiers” as defined in the Privacy Act, and includes tax file numbers.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any regulations made pursuant to that Act.
Indirect Losses means loss of profits, loss of use, loss of production, loss of business or loss of business opportunity, consequential loss or indirect loss of any nature.
Initial Term means the initial term specified in the Order Form commencing on the Start Date.
Insolvency Event means where:
- a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
- a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
- a party becomes or is (including under legislation) deemed or presumed to be insolvent;
- a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;
- any composition or arrangement is made with any one or more classes of its creditors;
- except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
- a party enters into liquidation whether compulsorily or voluntarily; or
- any analogous or comparable event takes place in any jurisdiction.
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this Agreement, and whether in Australia or otherwise.
Law means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct, writs, orders, injunctions and judgments.
Liability Cap means the amount equal to the lesser of $100,000 and the Fees actually received by Flare HR for the portion of the Services in the preceding 6-month period from the time the event occurred that gave rise to the Claim.
Loss means any loss, liability, Claim, damage, cost, charge, expense or diminution in value, however arising, and whether present or future, fixed or unascertained, actual or contingent.
Order Form means the Flare HR and FlarePay Order Form that must be completed by Employer and specifies any Associated Entities, the applicable service option, implementation services, any other specific terms agreed between the parties and other relevant documentation.
Partner Fund means a superannuation fund specified in the Financial Services Guide (available at www.flarehr.com/legal).
Payroll Reports means the reports required by the Australian Taxation Office, electronic payslips, and other reports prepared by FlarePay in respect of each pay run processed on FlarePay.
Payroll User means the Personnel involved in processing or approving Employer’s payroll.
Personal Information means “personal information” as defined in the Privacy Act and any other information relating to individuals that is subject to the operation of the Privacy Laws that either party has collected, received or otherwise has access to in connection with this Agreement.
Personnel means in respect of a person any employee, contractor, servant, agent, or other person under the person’s direct or indirect control and includes any sub-contractors.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Law means the Privacy Act, Spam Act 2003 (Cth) and any other applicable Laws that affect privacy or personal information.
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
Rollover Term has the meaning in clause 2.
Start Date means the date specified in the Order Form.
Service Level Agreement means the service levels that apply to FlarePay and which are annexed to the Order Form (as updated and amended from time to time).
Target Launch Date means the date specified in the Order Form or otherwise agreed by both parties in writing, by which the parties will use their reasonable endeavours to render the Flare Platform available for use by Users.
Tax includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding that is levied or imposed by a Governmental Agency, and any related interest, penalty, charge, fee or other amount.
Term means the period from the Start Date until the end of the Initial Term and any applicable Rolling Term in accordance with clause 2.
Third Party Material has the meaning given in clause 8.
Time Limit means up to 30 days’ following termination or expiry or such longer period as Flare HR may agree with you subject to a limit of 90 days.
Update means any update or upgrade to the Flare Platform issued by Flare HR from time to time.
Users means those employees and contractors of Employer:
- whose details have been imported by Employer into the Flare Platform; or
- who have been sent a link by Employer prompting them to use and input their details into the Flare Platform.
User Data means, in respect of a User, their contact details, qualifications, data regarding their policies and benefits, their training data, data regarding their performance metrics, salary information and their employment contract (unless otherwise agreed by the parties in writing).