Page last updated August 2021
Effective Date of this revision 24 August 2021
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.
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:
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:
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:
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:
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.
FlarePay Terms means the FlarePay Terms of Use issued by EPI-USE Managed Solutions Pty Ltd (ABN 92 100 495 663), trading as “FlarePay” or “FlarePay” (which is a separate and independent company from Flare HR and Flare Affiliates).
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:
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.
Platform Terms of Use mean the terms and conditions set out on the Flare Platform governing the relationship between the User and Flare HR in respect of the Flare Platform, as amended by Flare HR from time to time.
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.
Privacy Policy means Flare HR’s privacy policy available at www.flarehr.com/legal as amended by Flare HR from time to time.
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:
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).
