General Terms and Conditions Last updated 9/11/2023.
1. The following terms and conditions apply to all services and platforms (services, or platform) provided by Flare HR Pty Ltd, Flare Financial Services Pty Ltd and/or Spark Leasing Pty Ltd (Flare, or us or our) and set out the rights and obligations that together we agree will apply. They apply to you whether or not you receive our services or access our platform directly with us or via one of our affiliates.
2. We agree to provide those services set out in an order form agreed with you or as otherwise agreed when you sign up to our platform. In certain instances, we may subcontract some or all of the services to our affiliates or related parties
3. Together, we may conduct periodic reviews of the provision of the services to assess the ongoing suitability, to seek expansions and improvements in the offering and to resolve any issues that may arise. We must cooperate together in any reasonable review process.
4. From time to time, we will require specific information and assistance from you to be able to provide the services. You agree that you will provide all such information and assistance reasonably requested by us.
5. Without limiting any other obligation under this agreement, we will require that you:
(a) provide us with all information reasonably required by us to perform our obligations under this agreement;
(b) support the completion due diligence we may require;
(c) provide employee details (including, as applicable payroll and other employee information) in a timely manner and ensure the accuracy, legibility, and completeness of all data given to us;
(d) promptly (and in any event within 5 business days) notify us via the platform when any employee gives notice, is terminated or otherwise ends their employment;
(e) as between us, retain responsibility for any fraud or wilful misconduct of any of your employees that relates to the platform or receipt of the services;
(f) not promote, market, or publish statements about, our platform or our services without our prior consent;
(g) not use any device, program, code, virus, Trojan horse, or other surreptitious instruction to attempt to interfere with or otherwise alter the working or functionality of the platform or Flare’s (or our affiliates’) intellectual property; and
(h) not unreasonably refuse or delay any action reasonably required for Flare to perform the services.
6. You consent to us publishing that you are a user of the platform in any marketing or promotional material and in any other statements until 30 days after you withdraw that consent in writing or we cease providing your employees with access to the platform.
7. If any fees apply to your use of the platform, you must pay the fees as set out in the order form or as otherwise agreed when you signed up.
8. Unless otherwise stated, all amounts are stated on a GST exclusive basis. If GST is payable in relation to any goods or services supplied by Flare, an amount of 10% (or such other rate as prescribed by the GST law) will be added to the GST exclusive supply price and is payable by you at the time Flare’s invoice is given to you.
9. We may review any fees we may charge from you from time to time but we will provide you with reasonable notice of any increases in advance.
10. We will issue invoices at the times specified in the order form or as otherwise agreed when you signed up to our platform (or if no time is specified, on or after the last day of the month) and you must pay such fees at the times specified (or if no time is specified, within 14 days of receipt of invoice).
11. If you fail to make any payment by the relevant due date, without prejudice to any other right or remedy, Flare may suspend the provision of any services until such failure is remedied.
12. You acknowledge and agree that we (and/or our affiliates) may receive payments from third parties in relation to products and services made available via, or in connection with, the 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.
13. If you are an employer whose employees use the Flare platform, you must cooperate with our reasonable requests from time to time to ensure they can fairly use it. This may include doing things we reasonably require to ensure that employees are provided with relevant information (including marketing information), or restricting or excluding specific employees from accessing the platform.
14. We may need to deal directly with your employees from time to time and you will need to provide all reasonable assistance to facilitate this.
15. We will provide information and responses to such employees in a timely manner and help facilitate their access to the platform.
16. Unless specifically agreed with you (including in an order form), we will start providing the services as soon as we are reasonably satisfied that you are appropriately onboarded. Unless specifically agreed with you, following the expiry of any initial minimum term, the services will be provided on a rolling monthly basis.
17. We may need to undertake a review of your suitability to receive services from us prior to commencement, as well as throughout our relationship, and we will keep you informed if there are any issues in this regard. Further, where third parties are involved in the supply of the services, there may be some additional requirements from those third parties that you will need to comply with.
18. Either of us may terminate this agreement by written notice:
(a) after the expiry of any initial minimum term specified in an order form, at any time without cause on no less than 30 days’ notice;
(b) for a material breach that cannot be remedied, or if capable of remedy, a material breach that is not remedied within 14 days of receiving written notice requiring the material breach to be remedied;
(c) for bankruptcy or other act of insolvency; or
(d) for ceasing, or indicating an intention to imminently cease, carrying on business.
19. Upon notice of termination of this agreement, we will immediately cease to provide the services but we will use our reasonable endeavours to effect an orderly transfer of our obligations under this agreement to one or more person(s) designated by you to undertake requirements identical or similar to the services.
20. You may extract your employee data using the tools available on the platform before access or use ceases. If you wish to access such data after an employee’s access or use has ceased, within 30 days after such cessation, Flare may extract the data for you and may charge you for all work done on an hourly basis at the current standard consulting rates notified to you.
21. We will also provide you with information in our possession concerning continuing services as at the date of termination of this agreement, to the extent that they are relevant to and reasonably required for the on-going administration of the services supplied in respect of relevant employees. However, we are not required to provide any information that is not reasonably required by the successor provider to provide the services, including our processes, procedures, confidential information and intellectual property rights.
22. All provisions of this agreement that are intended to survive (including those relating to confidentiality, privacy, intellectual property rights and liability) will continue to survive expiration or termination (for whatever reason).
23. Liability of Flare HR Pty Ltd is limited to matters arising from the provision of the benefits platform and onboarding products, other than salary packaging products. Liability of Spark Leasing Pty Ltd is limited to matters arising from the provision of salary packaging products.
24. Flare acknowledges that the Competition and Consumer Act 2010 (Cth) implies or imposes certain statutory guarantees, conditions or warranties into contracts for the supply of goods or services to consumers that cannot be excluded (Non-Excludable Terms). Nothing in this agreement is intended to exclude or restrict the application of the Non-Excludable Terms. However, to the extent permitted by law, Flare excludes all other implied warranties, guarantees, conditions or other terms, whether implied by statute or otherwise.
25. To the extent permitted by law, Flare excludes all other liability for all losses, liabilities, damages, costs and expenses suffered or incurred by any person, and limits its liability (at Flare’s discretion) for breach of a guarantee, condition or warranty implied into this agreement by virtue of any legislation to:
(a) the resupply of the services or the supply of equivalent services; or
(b) the payment of the cost of resupplying the services.
26. Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: to cancel your service contract with us; and to a refund for any unused portion if fees are applicable, or to compensation for its reduced value if fees are applicable.
27. Flare (and our affiliates, where applicable) do not warrant that the platform meets any employer’s needs or that it will function as anticipated. You are responsible for determining that the functionality is appropriate for their purposes.
28. Flare (and our affiliates, where applicable) implement protective measures, however we cannot guarantee the security of the platform or that it will never suffer from any failure or outage. We will strive to keep the platform up and running, however all online services suffer occasional disruptions and outages and we are not liable for any disruption or loss you or your employees may suffer as a result of such occurrences.
29. Except as otherwise expressly stated in this agreement, Flare accepts no other responsibility or liability including any liability for consequential loss whether or not such loss is sustained as a result of Flare’s negligence.
30. The maximum aggregate liability of Flare arising out of or in connection with this agreement and the services or platform, whether in contract or in negligence or any other tort or for any other common law or statutory cause of action, is limited to the amount of $500,000.
31. Our platform or services may contain links to third party websites, services or advertisements for third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for any such third party content and have no control over or rights in such third party content.
32. If any dispute or difference arises in connection with this agreement or the platform, then each party will refer it to senior management, who will use their best endeavours to resolve it before initiating any court proceedings.
33. If senior management cannot resolve a dispute within 14 days, each of us must, in good faith and acting reasonably, use best endeavours to resolve it by participating in a mediation with an independent mediator. If we cannot promptly jointly agree on a mediator, then the mediator will be appointed by the President of the Law Society of New South Wales. We must mediate the dispute or difference in accordance with principles agreed between us or, if no agreement can be promptly reached, the principles determined by the mediator. Unless we agree otherwise, the mediator’s fee and any other costs of the mediation itself (such as for venue hire or refreshments) will be shared equally between us, but each party will each pay their own costs of preparing for and participating in the mediation (such as for travel and legal representation).
34. If the mediation is not successful in resolving the dispute, the parties shall be entitled to refer the dispute to an appropriate Court or Tribunal in New South Wales.
35. Nothing in this agreement prevents a party from seeking urgent interlocutory relief.
36. Any notice, consent, information, application or request that may be given to a party under this agreement is only given if it is in writing and delivered or posted to that party at its notified address or emailed to that party at its notified email address.
37. You acknowledge and agree that all existing and future intellectual property rights are owned by Flare (and vest in, and are assigned to, Flare on creation) (Flare IP). Nothing in this agreement is intended to transfer intellectual property rights of any kind to you. We may require you to execute any documents and do anything reasonably required to give effect to this clause. You must only use, reproduce, modify, publish and adapt the Flare IP with our prior written consent.
38. During the term of this agreement, Flare grants you an Australia-wide, non-transferable, non-exclusive, royalty-free licence to use the Flare IP solely for the purposes of using the platform, and exercising your rights and performing your obligations under this agreement. You must comply (and ensure your employees comply) with all reasonable directions given by Flare in relation to the Flare IP.
39. Flare must not infringe the intellectual property rights of any third party in connection with providing the services or the platform and we indemnify you against any loss that you may suffer or incur as a direct result of our breach of the intellectual property rights of a third party.
40. Subject to clause 41, each party must:
(a) keep the other party’s confidential information confidential;
(b) not use, disclose or reproduce confidential information of any other party for any purpose other than the purposes of this agreement; and
(c) use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to safeguard from unauthorised access, use, disclosure or reproduction.
41. The obligations in clause 40 do not apply if:
(a) a party has agreed in writing to the specific disclosure, use or copying of its confidential information;
(b) disclosure of specific confidential information is required to comply with any applicable law;
(c) disclosure is necessary to obtain professional advice in relation to matters arising under or in connection with this agreement; or
(d) in the case of Flare, disclosure is made to its affiliates or third party service providers for the purpose of providing the services.
42. A party must immediately notify another party:
(a)if it becomes aware of any breach of the obligations owed to that other party in clause 40; and
(b) if it is lawfully obliged to disclose any confidential information of that other party to a third party and must comply with the other party’s lawful directions in relation to the disclosure.
43. Each party must immediately on demand, or on completion or termination of this agreement, return to the other party any documents in its possession, power or control containing confidential information. Each party must not retain copies of any confidential information in any form.
44. For the purposes of this agreement, confidential information:
(a) includes all information in whatever form (including, without limitation, verbal information, or information recorded on paper or by electronic means) relating to that party, the platform or this agreement which that party indicates, or which by its nature, is confidential; and
(b) excludes information which is already in the possession of that party or which becomes known or generally available to the public – except if this happens because of a breach of this agreement (in which case it remains confidential information).
45. Each party must comply with the Privacy Act 1988 (Cth), Spam Act 2003 (Cth) and any other applicable laws that affect privacy or personal information (Privacy Laws) in respect of any personal information that:
(a) one party discloses to the other party; or
(b)comes into the possession or control of a party by any means, including through the platform.
46. You must take all reasonable steps to ensure that all personal information and other employee data that you provide to Flare (or any of our affiliates) in connection with this agreement has been collected and disclosed to Flare (or any of our affiliates) in accordance with the Privacy Laws and is, and continues to be, accurate and up-to-date.
48. Each party must cooperate with any reasonable request or direction of the other party which relates to the protection of personal information or the exercise of the functions of a government agency.
49. Each party must promptly inform the other party in writing of any complaint that it receives concerning the use, disclosure, storage, transfer or handling of personal information and comply with any reasonable direction of the other party in relation to a complaint concerning the use, disclosure, storage, transfer or handling of personal information.
50. We may agree to special conditions in the order form or otherwise with you in writing. If such special conditions are agreed, then they will prevail to the extent of any inconsistency with another term of this agreement.
51. Each party must pay its own costs in relation to preparing, negotiating and executing this agreement and any document related to this agreement.
52. This agreement and the associated order form contain everything the parties have agreed in relation to the matters they deal with. No party can rely on an earlier agreement or order form, or anything said or done by another party, or by a director, officer, agent or employee of that party, before this agreement was executed, except as permitted by law.
53. The relationship between the parties is that of principal and independent contractor. No party is an agent, representative or partner of any other party, except to the extent specified in this agreement. No party has any power or authority to act for or to assume any obligation or responsibility on behalf of another party, to bind another party to any agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party except as specifically provided in this agreement or by express written agreement between the parties.
54. If a clause or part of a clause of this agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this agreement, but the rest of this agreement is not affected.
55. You may not assign or novate any of your rights or obligations under this agreement without the prior written consent of Flare, which must not be unreasonably withheld or delayed. Flare may assign or novate its rights and obligations under this agreement as it may determine, provided that it is not to your detriment, without need of your consent.
56. We may amend this agreement at any time by providing 30 days’ prior written notice to you. If you do not agree with the amendments, you may terminate this agreement by giving 30 days’ written notice or such lesser period as we agree in writing and in the notice period the amendments will not have effect.
57. A waiver of any right, power or remedy under this agreement must be in writing signed by the party granting it. A waiver only affects the particular obligation or breach for which it is given. It is not an implied waiver of any other obligation or breach or an implied waiver of that obligation or breach on any other occasion. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement, does not amount to a waiver.
58. Each party must promptly execute all documents and do all things that another party from time to time reasonably requests to effect, perfect or complete this agreement and all transactions incidental to it.
59. This agreement is governed by the law of New South Wales. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
60. We will issue invoices for employee salary deductions at the times specified in the Order Form or as otherwise agreed when you signed up to our platform (or if no time is specified, on or after the last day of the month) and you must pay by direct debit such amounts at the times specified (or if no time is specified, within 14 days of receipt of invoice).
61. For so long as we are providing the Flare salary packaging services to you, you must not acquire or receive services the same as, or similar to, or otherwise competitive with the Flare salary packaging services, from persons or organisations other than Flare.
62. After the notification of termination of an employee provided to us in accordance with clause 5(d), Flare will notify you of employees’ salary packaging account balances and:
(a) Where the employee has a negative balance, Flare will notify you of any final deduction amount from the final payroll or amount owed by the employee and prior to the final date of employment, you must request the negative amount from the employee;
(b) Where the employee has a positive balance, Flare will reconcile all driver balances, pay outstanding vendors and return surplus funds to you for processing through payroll; and
(c) Surplus funds (if any) will be returned to you, when negative balances have been cleared.
63. In addition to your obligations under clause 5(d) above, you agree to notify us promptly (and in any event within 5 business days) where an employee with an ongoing Flare salary packaging arrangement:
(a) experiences a decrease in total annual salary;
(b) changes their pattern of employment; or
(c) is approved for unpaid or part-time leave for more than one month.
64. You agree that amounts paid in respect of one salary packaging arrangement will not cross-subsidise amounts due in respect of another salary packaging arrangement.
65. Provided that you meet the obligations in clauses 5(d) and 59 in respect of an employee, Flare will manage employees’ salary packaging accounts to ensure a negative balance does not arise.
66. We will calculate and report your FBT liability in respect of leases settled pursuant to this agreement. We agree to indemnify you in respect of any underestimation of FBT, where we are unable to recover such amounts from the employee, provided that the underestimation does not occur as a result of your error, omission, negligence or failure to meet any of your obligations under this agreement.