Page last updated 14 November 2018
Effective Date of this revision: 8 November 2018
You have subscribed for use of the cloud based FlarePay payroll services as identified or described in the Order Form which is provided by FlarePay using Software under licence from the software provider and which utilises the Platform. In order to use the FlarePay Service you must sign up to and have the ability to use the Flare HR Service (which is subject to its own terms and conditions) which you will have subscribed for when you completed the Order Form. Your access to the FlarePay Service will be through the Flare HR Service which operates as the user interface to the FlarePay Service, which must be established and operational in order for you to use the FlarePay Service. The Flare HR Service is provided by Flare HR Pty Ltd separately to and independently of this FlarePay Service. We are not liable to you for any failure to provide the Flare HR Service by Flare HR Pty Ltd or for any malfunction, defect in or other problem with the Flare HR Service notwithstanding that this may prevent you from using the FlarePay Service or from FlarePay providing the FlarePay Managed Service.
You may also subscribe for other services we offer through your Order Form including FlarePay Managed Services and Additional FlarePay Services and, separately, Professional Services.
By clicking or tapping "Sign Up", you indicate your acceptance of the Terms for the period for which you have subscribed for use of the Services you have subscribed for in the Order Form which will commence on the Start Date. The agreement formed by your acceptance of the Terms will continue for the Initial Term unless terminated earlier in accordance with these Terms. At the end of the Initial Term, this agreement will renew automatically for Renewal Terms unless either party terminates by written notice to the other provided that the notice must be given at least 30 days prior to the end of the then current term. Renewal Terms form part of the Term.
You are accepting these Terms on behalf of your organisation (the details for which you have entered in the Order Form you have completed to subscribe for the Services (including any additional Order Form you complete and submit) ) and you represent to FlarePay that you are authorized to do so. This includes your organisation’s related body corporates (as that term is defined in the Corporations Act 2001 (Cth)) if you have also specifically subscribed for those related body corporates in the Order Form. The terms, “you” and “your” and similar terms will refer to that named organisation and, if you have also subscribed for related body corporates, also refers to those named related body corporates.
1. FlarePay Service Licence
1.1 Licence to use FlarePay Service. Subject to these Terms, including, but not limited to, payment by you of the applicable fees set forth on the Order Form, FlarePay grants to you a limited, non-exclusive, non-transferable licence, without the right to sublicense (except as permitted under Section 1.2 below), to remotely access and use the FlarePay Service comprising the Software that is located on the Platform, in accordance with these Terms for the Term you have subscribed for in the Order Form. Your use is solely for your internal business purposes and solely for Screen Access with access being through Flare HR Service.
Use of the FlarePay Service is for your Users. Your use of the Software is otherwise unlimited.
1.2 Third-Party Vendors. FlarePay acknowledges and agrees that you may use certain third-party vendors for purposes of performing some of your internal business processes (Third-Party Vendors). You may allow your Third-Party Vendors (other than our direct competitors or those of our Platform or Software providers) to access and use the FlarePay Service subject to these Terms, solely for your internal business processing services, subject to the following conditions:
(a) you agree to be fully responsible for all use of the FlarePay Service and the Software by your Third-Party Vendors,
(b) you will ensure the Third-Party Vendors are under and comply with obligations as stringent as these Terms, including without limitation, Section 3 (Privacy and Confidential Information),
(c) you will notify FlarePay of any such Third-Party Vendors (such notification provided when requesting passwords for such Third-Party Vendors) and will ensure that each such Third-Party Vendor uses its own unique password as detailed in Section 1.5 below, and
(d) upon termination of your relationship with such Third-Party Vendors or of this Agreement, you will ensure that all access to the Software by such Third Party Vendors ceases immediately.
1.3 Set-up and configuration. FlarePay will provide standard Services for set up and configuration of your FlarePay Service as described in the Order Form and the FlarePay Implementation Guide. FlarePay will use reasonable endeavours to set up the FlarePay Service for use by you and your Users, by the Target Launch Date. If you require additional professional services (for more complex configuration, integration or customised versions of the FlarePay Service), FlarePay will provide those services but subject to a separate professional services agreement which we will provide to you on request. The scope of those professional services will need to be agreed and the professional services agreement signed before FlarePay will proceed with the professional services.
1.4 Training. If you have opted for additional training services, FlarePay will provide training for your designated personnel in the form of online training sessions on the operation and use of the FlarePay Service as an Additional FlarePay Service.
1.5 Provision of the FlarePay Service. On completion of Services for setup and configuration (and, if applicable, any Additional FlarePay Services you have subscribed for, you will be able to use the Software including allowing your Users to access input Data and use the Software in accordance with these Terms from the Go-Live Date. By deciding to go-live with the solution on the Go-Live Date, you will be deemed to have tested the FlarePay Service as FlarePay has set it up for you, and have confirmed that it meets your payroll requirements.
1.6 Maintenance and support Services. Corrections, changes, or workarounds for any Defects, discovered by you or FlarePay will be remedied in accordance with FlarePay's standard procedures (which may include a work around procedure or other remediation). Maintenance of the FlarePay Service may be either scheduled or carried out on an emergency basis. Where maintenance will require the FlarePay Service to be made temporarily unavailable (during which period it will not be operational or usable, FlarePay will use its best endeavours to schedule the maintenance works during low traffic times and will notify you not less than 5 Business Days prior to the maintenance being carried out. Maintenance periods (except in the case of emergency maintenance when FlarePay will provide you with as much notice as is practical in the circumstances) are not included for the purposes of the Service Level Agreement.
You must document and promptly report all Defects in the FlarePay Service to FlarePay or its assigned agents and representatives as soon as practicable for error rectification to commence.
FlarePay is under no obligation to provide the FlarePay Service or maintenance and support services specified in this Section 1.6 if they are requested as a result of or related to:
(a) operation of the FlarePay Service with other media and hardware, software or interfaces not authorized or maintained in accordance with these Terms or the FlarePay Service Documentation;
(b) use of the FlarePay Service that deviates from any operating procedures established by FlarePay in the applicable FlarePay Service Documentation;
(c) any modification, alteration or addition or attempted modification, alteration or addition of the FlarePay Service (other than those produced by FlarePay or authorised by FlarePay in writing);
(d) failure of a data provider or failure of a telecommunications connection, hardware, software, web services, third party content or software, or equipment; or
(e) support for any third party supported applications or systems used in connection with the FlarePay Service other than the notification and escalation to the relevant third-party support supplier.
In the event that you abuse the maintenance and support services specified in this Section an "Abuse Incident" will be lodged, and FlarePay will notify you of such. If more than 3 Abuse Incidents are lodged within a 30 day period, you will be charged on a time and materials basis for diagnosis and response of subsequent Abuse Incidents within the period.
1.7 FlarePay Managed Services. If you have opted in your Order Form to subscribe for FlarePay Managed Services, FlarePay will provide those FlarePay Managed Services as described at in the Order Form and the Service Level Agreement and will use commercially reasonable efforts to provide such services in accordance with the applicable service levels contained in the Service Level Agreement – see Section 1.8. You acknowledge that FlarePay’s ability to provide the FlarePay Managed Services is dependent on performance by you of the obligations specified in the description of the FlarePay Managed Services as set out in the Service Level Agreement. In the event that you do not perform your obligations, or if any adverse third party acts or omissions occur, you acknowledge that FlarePay may be unable to provide the FlarePay Managed Services and will not be in breach of this agreement or the Service Level Agreement as a consequence. If your failure or the act or omission of a third party causes FlarePay any additional cost, you will be responsible for that cost.
One of those responsibilities will be that you appoint one or more individuals within your organisation to act as the principal point of contact for any queries FlarePay needs to raise with you as part of provision of the FlarePay Managed Services and to act as a single point of contact for reporting any issues arising in relation to the FlarePay Managed Services. We will need the contact details for each person you nominate who must be able to respond to any queries raised and have the authority to give instructions to FlarePay as necessary in order to execute the FlarePay Managed Services.
1.8 Service Level Agreement. FlarePay will use commercially reasonable efforts to ensure the FlarePay Service is available in accordance with the Service Level Agreement as it is expressed to apply to the FlarePay Service (which may be amended and revised from time to time) but FlarePay does not guarantee error-free or uninterrupted service and excludes all liability for any failure to comply with the Service Level Agreement resulting from errors caused by the Flare HR Service or any ability to transact through the FlarePay Service as a result of errors, defects failure to perform by the Flare HR Service. If you have subscribed for FlarePay Managed Services, the service levels contained in the Service Level Agreement applicable to the FlarePay Managed Services will also apply to those services and FlarePay will use commercially reasonable efforts to comply with those service levels which are expressed to apply to the FlarePay Managed Service in the Service Level Agreement.
Where FlarePay has not complied with the Service Level Agreement (which may be reported by either FlarePay or you), FlarePay will conduct an investigation and root cause analysis to remedy any such failure and to ensure as far as practicable, that the failure does not reoccur.
2. Fees and Payments
2.1 Fees for Services. Current pricing of the FlarePay Service is variable and based on the number of active Users. Pricing for the FlarePay Services and all other Services you have subscribed for is in the Order Form you completed to subscribe for the FlarePay Services. FlarePay may from time to time adjust the pricing tiers and introduce additional free or fee based modules or tiers. If you subscribe to a tier or module which is affected by a change in pricing structure, you will be notified at least three (3) months prior to the change taking effect. If you do not agree to any revised pricing, Section 12.1 will apply and you can terminate your Services.
2.2 Invoices and Payment Terms. FlarePay will issue detailed invoices to you in respect of any applicable fees on a monthly basis within 5 business days. Additional reporting will be available for further analysis of forms submitted and applicable fees via the Account Centre. You agree to pay the amount specified in each invoice and authorise FlarePay to deduct amounts invoiced from the bank account you have nominated as the bank account from which payroll funds will be disbursed in any pay run occurring in the calendar month following the calendar month to which the invoice relates, as may be selected by FlarePay, either (i) under the direct debit authorisation you may have completed as part of the Order Form, or (ii) under the Transaction Negotiation Authority provided by you (under the Managed Service Option), and otherwise (if neither of these options apply) by authorising FlarePay to include the amount specified in each invoice as disbursements in the selected payroll Bank File of the next calendar month referred to in the Service Level Agreement (under the Self-Managed Option) to be paid on execution of that Bank File. Accounts thirty (30) days past due are subject to suspension or cancellation. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
2.3 Disputes. If you withhold any amounts FlarePay have invoiced, you must, within fifteen (15) days from receipt of invoice (Dispute Period), provide FlarePay with a reasonably detailed written explanation of the reason why you have withheld such amount and the nature of the dispute, including the dollar amounts withheld and the reasons for withholding such amounts. If you do not dispute the applicable invoice during the Dispute Period, any such dispute will be deemed waived. You must pay FlarePay for all portions of the applicable invoice that are not under reasonable and good faith dispute.
2.4 Late fees. A late fee may be charged by FlarePay on all undisputed (or disputed fees which are found to have been invalidly withheld) fees not paid within thirty (30) days after receipt of the invoice at the lesser of the maximum amount chargeable by law or equal to 2% above the prevailing base lending rate quoted by the ANZ Bank to be calculated on a daily basis on any outstanding payments from the date on which the payment was due until paid. You will be liable for all costs of collection of such undisputed, overdue amounts including, without limitation, all court costs and attorneys' fees incurred by FlarePay. Fees due from you may not be withheld or offset by you against other amounts FlarePay may owe you or which you allege are owed by us to you, for any reason.
2.5 Taxes. You will pay GST, sales, value-added or other similar taxes imposed by applicable law that FlarePay must pay associated with the FlarePay Service, except for taxes based on FlarePay’s income.
3. Privacy and confidentiality
3.1 Privacy. The parties will, in performing their respective obligations under these Terms, comply with Australia's Privacy Act 1988 (Cth) (the Act), and neither party will put the other in breach of the Act. In the course of using the Services, you or your Users may load content into the Software (including your personal information and the personal information of others). Where you submit personal information of third parties (including your employees’ personal information) to FlarePay through our Services, you must:
(b) ensure that the relevant third party has been informed of, and has given their consent to, such use, processing and transfer of the personal information as required by all applicable privacy laws.
(a) is publicly available through no fault of FlarePay;
(b) was rightfully received by FlarePay from a third party without restriction and without breach of an obligation of confidentiality; or
(c) was independently developed by FlarePay without reference to your Data.
FlarePay may disclose your Data when required by law (including under the rules of any stock exchange).
3.5 Security. FlarePay aims to comply with established industry practice in relation to your Data security, including: regular rotating backups; firewalls; encryption; redundancy; access control; and intrusion detection and prevention. The Software is also hosted by a third party Platform provider and your Data with be backed up by that provider.
4. Your Data
4.1 You Retain Ownership of Your Data. You retain all right, title and interest (including any intellectual property rights) in and to your Data. FlarePay does not and will not, claim ownership over any of your Data.
4.3 Responsibility for your Data. You are solely responsible for your Data which includes content submitted through the Software by third parties. You must ensure that you have obtained all necessary rights, releases and consents to allow your Data to be collected, used and disclosed in the manner contemplated by these Terms and to grant FlarePay the rights herein. You are solely responsible for the accuracy and appropriateness of your Data.
4.4 Data Review. FlarePay reserves the right to remove or disable access to any of your Data that, in FlarePay’s sole discretion, violates the law or these Terms or is adversely affecting the performance of the FlarePay Service. FlarePay may take these actions without prior notification to you but will endeavour to provide as much notice as is practicable in the circumstances noting that if FlarePay receives a direction from its Software or Platform provider to remove or disable access, it will need to act immediately to comply with that direction.
4.5 Data Disclosure. FlarePay reserves the right to disclose any of your Data that FlarePay deems necessary to comply with any applicable law, legal process or government request including, without limitation, account information (i.e. name, e-mail address etc), and your Data residing on within the Software.
4.6 Exporting your Data. You will have full access to your Data through the Flare HR and you will always have the option to retain a copy of your data on your own databases. With regard to any of your Data that is held within the Software, FlarePay provides you with the functionality to export your Data through the Flare HR program in CSV, RTF (Word), PDF or Excel format including where you terminate your FlarePay, for up to 30 days’ following termination or expiry or such longer period as we may agree with you subject to a limit of 90 days. Please note, additional charges may apply for any period longer than 30 days. The export functionality is made available as part of Software but it is your choice as to whether you elect to use this optional feature. FlarePay is not responsible for any incompatibility between third party systems and Software.
4.7 Third Party Resources and Links to other websites. Links to other websites maintained by third parties may be provided on Software for the convenience of users. The inclusion of a link does not imply endorsement of the content of the external site by FlarePay. FlarePay is not responsible for and accepts no liability for the content or services provided by any third party websites, or whether the information contained on those websites is suitable for your needs.
5. FlarePay Service Software IP
5.1 FlarePay Service Software IP. You acknowledge that FlarePay or its service providers are the sole and exclusive owners of all intellectual property rights in Software and the Platform. You undertake that you will not disassemble, reverse engineer or decompile, nor otherwise create or attempt to create the source code from the object code of the Software in any manner. Neither these Terms nor your use of Software grants you ownership in Software, the Platform, the processes we employ in the FlarePay Managed Services or the content you access through Software (other than your Data). These Terms do not grant you any right to use FlarePay’s or its service providers trademarks, business names or logos.
6. Account Management and your obligations
6.1 Your account. You are liable for all activity on your account. You agree you that you will take sole responsibility for any activities or actions undertaken using your account, whether or not you have authorised such activities or actions. You will immediately notify FlarePay of any unauthorised use of your account.
6.2 Keep Your Details Accurate. You warrant that all registration information you provide when opening the account is complete, true and accurate in all respects and that you will maintain and promptly update such information and material to keep it true, accurate, current and complete. Where applicable, you must keep your contact details and payment details associated with your account current and accurate.
6.3 Remember to Backup. To the extent permitted by applicable law, FlarePay will not be liable for any failure to store, or for loss or corruption of, your Data which is under our control and in the event that it is held to be liable, FlarePay’s liability is limited to restoration of the most recent version of your Data that FlarePay has backed up as part of the FlarePay Service.
6.4 Separate Protocols. You must implement appropriate separation protocols for processing and approving your payroll through the FlarePay Service and you are responsible for ensuring your Users comply with those separation protocols and FlarePay will not be liable for any failure of a User failing to comply with them.
6.5 Payroll Responsibility. You are responsible for all payroll processing through the FlarePay Service if the Self-Managed Option is specified in the Order Form.
6.6 FlarePay Managed Service. For the Managed Service Option, FlarePay will be responsible for the payroll processing based on the payroll Data provided by you in accordance with the Service Level Agreement. You are responsible for ensuring that the Data is accurate, complete and provided in accordance with the Service Level Agreement. FlarePay will not be liable for any delay or error in payroll processing your payroll through the FlarePay Service as result of any error in, or delay by you in providing, the Data.
6.7 Responsibility for Payroll. Regardless of whether the Self-Managed Option or Managed Service Option applies, you are accountable for the correct payment of salary, tax and superannuation to your employees as required by law. In the event of any overpayments or underpayments made through the FlarePay Service to your employees and you are, at all times:
(a) responsible for recovering any overpayment from employees;
(b) responsible for making any further payment to employees if there has been an underpayment.
FlarePay will provide any information it has in its possession that may assist you to undertake the activities in (a) and (b) above.
6.8 You are Liable. You are liable for and must pay:
(a) any charges, fees or other costs charged in connection with payroll transactions processed through your or your employees nominated bank account;
(b) any charges, fees or other costs charged in connection with automated superannuation clearing processed through your or your employees nominated back account; and
(c) any penalty imposed by the Australian Taxation Office for the underpayment of superannuation to employees resulting from the information provided by you through the FlarePay Service.
7. Your General Obligations and Things You Must Not Do
7.1 Third party services. You will establish and maintain, at your own expense, all telecommunications equipment and internet access necessary to gain access to FlarePay Service. You acknowledge that FlarePay will not have any responsibility or liability with regard to any third party services used by you on or through FlarePay Service and any use of such third party services will be at your own risk. While FlarePay will use reasonable endeavours to maintain compatibility between third party services and FlarePay Service, FlarePay is not responsible for any incompatibility between third party services and the FlarePay Service. This clause does not apply to the Flare HR Service in relation to which, FlarePay will use reasonable endeavours to maintain compatibility of operation with the Software and the FlarePay Service.
7.2 Security obligations. You must comply with the following requirements when using FlarePay Service:
(a) ensure there is no unauthorized access to FlarePay Service and must not share your password or User ID, let anyone else access your account, or do anything that might jeopardise the security of your account;
(b) not cause harm or damage to FlarePay Service or our suppliers;
(c) not use FlarePay Service to upload, post, email, transmit or otherwise make available or initiate any Data that contains software viruses, worms, Trojan horses or any other computer code, files or programs that interrupt, destroy or limit the functionality of FlarePay Service that may impact the ability of any FlarePay Service user to access FlarePay Service;
(d) not commit, cause or allow any breach (or do anything which might put FlarePay in breach) of any law, regulation, government direction or industry standard or code;
(e) not use FlarePay Service to breach a person’s rights (including committing defamation or infringing a person’s intellectual property rights);
(f) not attempt to or actually access FlarePay Service by any means other than through the portals or interfaces provided by FlarePay Service;
(g) not attempt to or actually override any security component included in or underlying FlarePay Service;
(h) not attempt or engage in any action that directly or indirectly interferes with the proper working of or place an unreasonable load on FlarePay Service or the Platform; and
(i) notify FlarePay immediately of any unauthorised access, security breach (suspected or otherwise) of FlarePay Service, or loss or misuse of confidential password or login.
7.3 Right to suspend Service. FlarePay reserves the right to suspend provision of your Service if you are in breach of your obligations in Section 7.2 or otherwise, by your act or omission, prevent or jeopardise the provision of services to other customers or compromise or jeopardise the security of other customers’ data. FlarePay will provide as much notice to you as is practicable in circumstances where it proposes to suspend Service provision having regard to the nature of the circumstances causing the proposed suspension.
7.4 Unauthorised access to FlarePay Service. You indemnify and keep FlarePay and its service providers indemnified against any loss or damage (except where and to the extent that such loss or damage is consequential in nature) which FlarePay suffers as a result of any unauthorised access to FlarePay Service or the Platform, to the extent such unauthorised use arises from a breach of these Terms.
7.5 Limitation. FlarePay will not be responsible or liable for any failure in FlarePay Service or your inability to use the FlarePay Service resulting from or attributable to:
- your internet access, network, telecommunications or other service or equipment;
- your, or third parties’ products, services, negligence, acts or omissions;
- scheduled maintenance; or
- unauthorised access by third parties.
8. Suspension, Cancellation and Termination of Services
8.1 Suspension or Cancellation. You agree that FlarePay may cancel your Services account in the event that it discontinues the Services or if one of its service providers discontinues or terminates (for whatever reason) their service which forms a component of the Services. FlarePay will provide at least 3 months written notice to you of such cancellation of your account by email to the email address you provide when you register with FlarePay.
8.2 Termination. In the event that you or FlarePay materially defaults in the performance of any of our respective duties or obligations under these Terms and does not substantially cure such default, or commence a cure, within thirty (30) days after being given written notice specifying the default, the non-defaulting party may, by giving written notice to the defaulting party, terminate this agreement. FlarePay may, by written notice to you, terminate your rights to use the Services without liability to you, if you fail to pay the applicable fees for the Services within thirty (30) days after FlarePay gives you notice of such non-payment. Any such suspension or termination of access to the Services does not relieve you from paying any past due amounts and any future amounts due to FlarePay through to the expiration date of this agreement or what would have been the expiration date had this agreement continued.
8.3 Effects of Cancellation and Suspension. Upon cancellation of your account:
- all access to FlarePay Service and FlarePay’s obligations to provide the Services will cease immediately as your account will be disabled;
- you will be invoiced for any outstanding fees owed for Services provided which must be paid within 30 days from the date of cancellation.; and
- you will be able to access your Data on FlarePay Service for 30 days (or such other period as we may agree – see Section 6 above) following cancellation to allow you to export your Data. All of your Data in FlarePay Service will no longer be available 31 days (or such other period as we may agree – see Section 4.6 above) following cancellation of your account FlarePay will purge all of your Data from FlarePay Service and all of your Data will be destroyed, unless otherwise agreed by the parties in writing.
9. Warranty Disclaimer
9.1 Disclaimer of Warranties. To the extent permitted at law, FlarePay expressly disclaims all warranties of any kind, whether implied, with respect to FlarePay Service (including, but not limited to, the implied warranties of merchantability, fitness for a particular use or purpose, and non-infringement). FlarePay makes no warranty that FlarePay Service will meet your requirements, or that performance will be uninterrupted, timely, secure, or error free. No advice or information, whether oral or written, obtained by you from FlarePay or through THE ServiceS will create any warranty not expressly made herein.
10.1 Your Indemnity to FlarePay. You agree to defend, indemnify and hold harmless FlarePay, its employees and parent corporation from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
- your breach of any of these Terms;
- your breach of any third party right, including without limitation any intellectual property right or privacy right; or
- any claim against FlarePay, its employees and parent corporation arising as a consequence of your Data.
11. Limitation of Liability
11.1 Exclusion of liability. To the full extent permitted by law, neither FlarePay, nor its affiliates or its service providers (specifically, the Platform and Software providers), will be liable to you, or your affiliates, (whether in common law, equity, contract, tort (including negligence), breach of statutory obligation or duty, for repudiation, anticipatory breach or otherwise) for:
- any special, exemplary or punitive damages;
- loss of Data, loss of profit, loss of revenue, lost opportunity, loss of anticipated savings, loss of goodwill, work stoppage or business interruption, computer failure or malfunction, economic loss, cost of management time or the cost of any third parties engaged to provide services in place of the Services;
- any loss you may suffer or incur as a result of any missed payment, over or underpayment to your employees which occurs through your use of the FlarePay Service or the FlarePay Managed Services; or
- any indirect or consequential loss, regardless whether such party has been made aware of the likelihood of such losses including any loss or damage suffered or incurred by your employees as a result of the FlarePay Service including missed payment, over or underpayment payments or otherwise.
11.2 Limit of liability. To the extent permitted by law, FlarePay’s, its affiliates’ and service providers’ (specifically, the Platform and Software providers) collective, cumulative liability to you (or your affiliates), for all claims arising under or in relation to this agreement in relation to a specific service, whether in common law, equity, contract, tort (including negligence), breach of statutory obligation or duty, repudiation, anticipatory breach or otherwise), will not exceed when aggregated, the lesser of the actual fees received by FlarePay under these Terms for the portion of the Services giving rise to such claim during the preceding six (6) month period immediately preceding the date on which the most recent such claim arose (as agreed or determined by a Court).
11.3 Exclusion of implied terms and limitation. Nothing in this Agreement will operate so as to exclude, restrict or modify the application of any of the provisions of the Competition and Consumer Act 2010 (Cth) or any equivalent State or Territory legislation (Relevant Legislation), the exercise of a right conferred by such a provision, or any liability of a party for a breach of a condition or warranty implied by such a provision, where the Relevant Legislation would render it void to do so. To the extent that it is able to do so, FlarePay expressly limits its liability for breach of any condition or warranty implied by virtue of any Relevant Legislation to:
- in the case of goods, at FlarePay’s option replacement or repair of the goods or the cost of doing so; and
- in the case of services, at FlarePay’s option, resupply of the services or the cost of doing so.
11.4 Benefit of service providers. To the extent that the provisions of this Section 11 are expressed to protect or are for the benefit of third parties including FlarePay’s affiliate’s and its providers (specifically, the Software or Platform providers), FlarePay holds the benefit of such provisions for on behalf of such third parties as trustee which you acknowledge are enforceable on behalf of those third parties in accordance with their terms. To give effect to the obligations, limitations and liabilities contained in this agreement in relation to the Software, you agree that the FlarePay Software provider will be entitled to claim damages or seek equitable relief, if applicable, as a third party beneficiary under any applicable legislation and otherwise through FlarePay under this clause, in relation to any breach by you or your Users of any of these Terms relating to the Software. Nothing in this agreement operates to prevent the Software provider from pursuing an action against you for an infringement of its intellectual property rights by you.
12. Changes, Updates and discontinuance
12.1 Changes to Terms. FlarePay may, in its sole and absolute discretion, change these Terms or pricing from time to time. FlarePay will post notice of such changes on this FlarePay website https://www.flarehr.com/pricing and notify you in writing via email to the email address contained in the Order Form. If you object to any such changes, your sole remedy is to cease using Services and to terminate this agreement. By not giving notice and continuing to use Services following any such changes to the Terms you indicate your agreement to be bound by the updated Terms.
12.2 Changes to Services . FlarePay reserves the right to add, alter, or remove functionality from Services at any time without prior notice to you in the case of non-material changes or improvements. FlarePay will not make changes to the FlarePay Service which are material and detrimental to the Service unless required to do so by its Software and/or Platform providers in which case, FlarePay will give you as much notice of the change as is practicable.
12.3 Discontinuance required by Software and/or Platform providers. FlarePay also reserves the right to discontinue the Services at any time where it is required to do so by its Software and/or Platform providers. In those circumstances, if FlarePay is unable to transition to a replacement software or platform provider (as applicable) offering a service with similar functionality to the Services, FlarePay will give you as much notice as is practicable and provide you with reasonable time to export a copy of your Data from FlarePay Service to an alternate provider of your choice.
13. Right to Audit
13.1 Measurement of Use. Subject to limitations under contract and law and without gathering or transmitting any Data or other Confidential Information belonging to you, you agree that FlarePay may implement the Software so that it system generates and transmits to FlarePay and to the Software provider information related to your use of the Software and that of your Users
13.2 Underpayment. In the event a report or an audit reveals that you have underpaid fees, you must pay such underpaid fees and/or for such excess usage based on the then current fees applicable at the time of the audit.
14. General Terms
14.1 Force Majeure. FlarePay is not responsible or liable to you or any other person, firm or entity for any failure to perform any obligation it is required to perform under these Terms to the extent that it is caused by any act, event, omission or non-event beyond FlarePay’s reasonable control, which will be deemed to include riots, war, acts of terrorism, fire, flood, storm or earthquake.
14.2 Entire Agreement. These Terms, the Order Form (as may be added to or updated from time to time by you) and the documents referenced in these Terms (including any Professional Services agreement) are the entire agreement and understanding with regard to Services and supersede any prior agreement or understanding on anything connected with Services. You have entered into this agreement without relying on any representation by us or any person purporting to represent us.
14.3 Representations. You acknowledge that you have relied on your own independent assessment and judgment in determining whether Services meet your requirements.
14.4 Assignment. You may not assign any of your rights or obligations under this agreement without the prior written consent of FlarePay, which must not be unreasonably withheld. FlarePay may assign or novate its rights and obligations under this agreement as it may determine which assignment or novation you are deemed to have agreed to without the need for any further action on your part.
14.5 Waiver and invalidity. A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
14.6 Severability. If any provision of our agreement is held to be invalid or unenforceable, such provision will be severed without affecting the enforceability and validity of the remaining provisions which will remain in full force and effect.
14.7 Relationship of the parties. You agree that FlarePay is not your employer, employee, agent, partner, joint venturer or subcontractor in relation to your use of FlarePay Service.
14.8 Entire Agreement. This agreement is governed by the law in force in New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales, Australia and courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms.
15. Contracting entity
15.1 Contracting Entity. References to "FlarePay" are references to EPI-USE Managed Solutions Pty Ltd, ABN 92 100 495 663 trading as “FlarePay” with offices located at Level 50, 360 Elizabeth Street, Melbourne, Victoria 3000.
16. Defined Terms
In this agreement, the following terms have the meanings given to them unless the context otherwise requires:
Additional FlarePay Services mean services additional to the FlarePay Service and, if applicable, FlarePay Managed Service, as described and subscribed for in the Order Form.
agreement means this agreement comprising the Order Form, any updated Order Form, the Terms and the schedules, appendices and documents incorporated by reference.
Data means the information, data and personal information you input to the Software.
Defects means defects, errors, or malfunctions in the FlarePay Service, including, but not limited to, any nonconformities with the FlarePay Service Documentation.
FlarePay Implementation Guide means the document of that name provided or made available to you by FlarePay.
FlarePay Managed Services mean the managed services of that name as described in the Order Form and the Service Level Agreement, under which FlarePay will manage delivery of the FlarePay Service on your behalf.
FlarePay Service means the service comprising the Software and the Platform made available for your use under this agreement as described in the Service Level Agreement.
FlarePay Service Documentation means the documentation FlarePay provides or makes available electronically in relation to your use of FlarePay Service.
Flare HR Service is the service provided by Flare HR Pty Ltd (which a separate and independent company from FlarePay) which is referenced in your Order Form.
Go-Live Date means the date on which the parties agree to go live to allow Users to access and use the FlarePay Service and the Software which is subject to the Flare HR Service being fully operational.
Managed Service Option means the option in the Order Form under which FlarePay will provide FlarePay Managed Services.
Order Form means the Order Form you completed when subscribing for the FlarePay Services.
Initial Term is the term of this agreement as set out in the Order Form.
Platform means the cloud-based platform we utilise as the platform for the software.
Relevant Legislation is defined in Section 11.3.
Renewal Term is the term for which this agreement may be renewed referred to in Order Form.
Self-Managed Option means the option to self-manage your use of the FlarePay Service as set out in the Order Form.
Service Level Agreements or SLA means the document referenced in Section 1.8 and annexed to the Order Form and updated or amended by FlarePay from time to time.
Services means collectively all the services FlarePay provides to you under this agreement.
Screen Access means use of the Software by you and your Users solely through remote access and solely for the following purposes:
(a) entering and accessing Data (this is defined in Section 3.4 below) and processing such Data,
(b) to complete the execution of business processes in accordance with the parameters of the Software and these Terms. For the sake of clarity, Screen Access shall not include any part of the Software being installed on your hardware.
Software means the software we use to provide the FlarePay Service.
Start Date is defined in the Order Form.
Target Launch Date is defined in the Order Form.
Term means the Initial Term and all Renewal Terms.
Terms means these terms and conditions.
Third-Party Vendors means a third party you use in the provision of services to you who require the use of the Software.
Users means your employees and the employees of those parties specifically authorised under Section 1.2 who you have nominated to be Users within Flare HR Service under your account with Flare HR Pty Ltd.