Terms & Conditions
FLAIR TERMS AND CONDITIONS OF SERVICE
1 DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following definitions apply:
“Business Day” means a day other than a Saturday, Sunday or bank or public holiday in America;
“Conditions” means Flair’s terms and conditions of supply set out in this document;
“Contract” means the agreement between Flair and the Customer for the supply and purchase of Services incorporating these Conditions and the Order and including all their respective schedules, attachments, annexures and statements of work;
“Customer” means the named party in the Contract which has agreed to purchase the Services from Flair and whose details are set out in the Proposal;
“Customer Data” means any information or materials provided by the Customer to Flair and any data collected by Flair via surveys in the performance of the Services and for the purposes of producing the Deliverables;
“Data Protection Legislation” means the California Consumer Privacy Act 2018 (“CCPA”), the California Privacy Rights Act 2020 (“CPRA"), California Invasion of Privacy Act 1967 (“CIPA”), the California Shine the Light Act 2003 and all applicable binding laws and regulations relating to the processing of personal data and privacy, in each case as amended, supplemented or replaced from time to time;
“Deliverables” means the deliverables ancillary to the supply of the Services, including the surveys and reports produced by Flair pursuant to the provision of the Services, as set out in the Proposal;
“Effective Date” means the date Flair commences the supply of Services to the Customer;
“Flair” means Flair Global Corp, a company incorporated in the State of Delaware with a registered office of 1007 N. Orange Street., 10th Fl., Wilmington, Delaware 19901. Flair Global Corp is registered with the State of New York, United States of America under Department of State ID 6326930 with a main business address of 30 Broad Street, 14th Floor, NEW YORK, NY, 10004.
“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving Flair’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; (e) to which the relevant party is or may be entitled; and (f) in whichever part of the world existing;
“Letter of Engagement” means Flair’s letter of engagement, confirming the Services to be provided;
“Order” means the Customer’s confirmation that it wishes to accept Flair’s Proposal;
“Price” has the meaning set out in clause 3.1;
“Services” means the Services set out in the Proposal and to be performed by Flair for the Customer in accordance with the Contract, together with the Deliverables;
“Proposal” means the proposal issued by Flair to the Customer detailing the Services to be provided;
“Tobacco Company(ies)” means a company, entity or organisation (or groups or combinations of the same) any part of whose business is the development, production, promotion, marketing, and/or sale of tobacco or tobacco products in any country of the world, or an affiliate of the same;
“VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2 In these Conditions: (i) a reference to a statute or statutory provision is a reference to it as it is amended, re-enacted or replaced from time to time; (ii) the words “including”, “includes” or “for example” are to be construed without limitation; and (iii) clause headings are inserted for convenience only and shall not affect the construction or interpretation of these Conditions.
2 APPLICATION OF THESE CONDITIONS
2.1 These Conditions apply to and form part of the Contract between Flair and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that Flair otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of Flair.
2.4 Each Order from the Customer to Flair shall be an offer to purchase the Services described in the corresponding Proposal, subject to the Contract including these Conditions.
2.5 Flair may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
2.5.1 Flair issuing its Letter of Engagement; or
2.5.2 Flair performing the Services.
2.6 Rejection by Flair of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.7 Proposals are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
2.8 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
3 PRICE AND PAYMENT
3.1 The price for the Services shall be as set out in the relevant Proposal (the “Price”).
3.2 The Prices are exclusive of sales tax.
3.3 The Customer shall pay any applicable sales tax to Flair on receipt of a valid sales tax invoice.
3.4 Flair shall invoice the Customer for the Services in accordance with the timeframes and intervals set out in the Proposal.
3.5 The Customer shall pay all invoices:
3.5.1 in full without deduction or set-off, in cleared funds within 28 days of the date of each invoice; and
3.5.2 to the bank account nominated by Flair.
3.6 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date, Flair may, without limiting its other rights, charge interest on such sums at 2% per annum above the Federal Funds Rate for the time being of the Federal Reserve System. Interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.1 The Services shall be deemed performed on completion of the performance of the Services as specified in the applicable Proposal.
4.2 Flair may perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.3 Flair shall provide the Services on the dates specified in the Order or Letter of Engagement or the delivery dates agreed between the parties. If no dates are specified, then Flair shall commence the Services as soon as practicable and complete the Services in a timely manner.
4.4 Flair confirms that it will not collect any identifiable personal data via surveys in the performance of the Services and further confirms that any data collected as part of the performance of the Services will not be pseudonymised or be capable of pseudonymisation. Flair confirms that it will only collect anonymous data and will keep it anonymised.
4.5 Flair shall not be liable for any delay in or failure of performance caused by:
4.5.1 the Customer’s failure to perform its obligations under the Contract; or
4.5.2 Force Majeure.
5 CUSTOMER OBLIGATIONS
5.1 The Customer shall:
5.1.1 ensure that the terms of the Proposal are complete and accurate, and promptly inform Flair of any inaccuracies or discrepancies;
5.1.2 cooperate with Flair in all matters relating to the Services and provide Flair with adequate instructions for performance;
5.1.3 obtain and maintain all necessary licences, permissions and consents which may be required for performance of the Services before the date on which the licence, permission or consent is required;
5.1.4 as far as is reasonably practicable, provide Flair, its employees, agents, consultants and subcontractors, with clear, uninterrupted access to its premises, as required in order to provide the Services; and
5.1.5 provide Flair with complete and accurate information, as required in relation to the Services.
6 THIRD PARTY SOFTWARE
6.1 In order to:
6.1.1 participate in surveys which must be completed in order for Flair to perform the Services, the Customer and its target group of individuals will need to use third party software;
6.1.2 access the Deliverables, the Customer will need to use third party data visualisation software provided by Tableau Software LLC.
7.1 Flair warrants that at the time of performance:
7.1.1 the Services and the Deliverables shall conform in all material respects to their description and the Proposal;
7.1.2 the Services and the Deliverables shall be free from material defects;
7.1.3 it will comply with all applicable law, regulation, guidance and codes of practice;
7.1.4 it will obtain and maintain at all times all licences and consents required for the Services and shall comply with all applicable laws and regulations of any appropriate regulatory body, and or professional or trade association and any other rules and security arrangements of the Customer;
7.1.5 it will ensure any analysis is accurately calculated using best industry practice;
7.1.6 it will supply the services in such a way as to not cause any fault or malfunction in any system of the Customer; or interruption to the business processes of the Customer; and
7.1.7 it will not become a Tobacco Company, be controlled by a Tobacco Company, be a major investor in a Tobacco Company able to exert a significant influence upon the business of a Tobacco Company; publicly associated as being involved in the manufacture, promotion, marketing or sale of tobacco products; or involved in significant commercial arrangements with a Tobacco Company(ies); and
7.1.8 the Services shall be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13.
7.2 As one of the Customer’s available remedies, Flair shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 7.1, provided that:
7.2.1 the Customer serves a written notice on Flair not later than five Business Days from performance; and
7.2.2 such notice specifies that some or all of the Services do not comply with clause 7.1 and identifies in sufficient detail the nature and extent of the defects; and
7.2.3 the Customer gives Flair a reasonable opportunity to examine the claim of the defective Services.
7.3 The provisions of these Conditions shall apply to any Services that are remedied or re- performed with effect from performance of the remedied or re-performed Services.
7.4 In addition to the remedy mentioned at 7.2, if Flair fails to perform the Services in accordance with its obligations, the Customer shall, without limiting its other rights or remedies, have one or more of the following rights:
7.4.1 terminate the Contract by giving written notice to Flair;
7.4.2 in the case of Deliverables, reject the Deliverables whether or not title has passed;
7.4.3 refuse to accept any subsequent performance of the Services which Flair attempts to make;
7.4.4 recover any costs incurred by the Customer in obtaining substitute Services;
7.4.5 the Services shall be supplied in such a way as not to cause any fault or malfunction in any system of the Customer and interruption to the business processes of the Customer
7.5.1 Except as set out in this clause, Flair gives no warranties and makes no representations in relation to the Services.
9 LIMITATION OF LIABILITY
9.1 Subject to clause 9.3 and clause 12.5, Flair’s total liability shall not exceed $250,000.00.
9.2 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
9.2.1 death or personal injury caused by negligence;
9.2.2 fraud or fraudulent misrepresentation; or
9.2.3 any other losses which cannot be excluded or limited by applicable law.
9.3 The Customer acknowledges and accepts that the Deliverables may provide recommendations to the Customer but these are intended to act as guidance only and Flair shall have no liability to the Customer in relation to its reliance on these recommendations.
10 INTELLECTUAL PROPERTY
10.1 The Customer shall own the Intellectual Property Rights in the Deliverables and, subject to clause 12, shall own all Customer Data.
10.2 Subject to clause 10.1, all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Flair.
10.3 The Customer grants to Flair, or shall procure the direct grant to Flair of, a fully paid-up, worldwide, non-exclusive, royalty free, licence during the term of the Contract to use and manipulate the Customer Data for the purposes of providing the Services and producing the Deliverables.
10.4 The Customer acknowledges that during the process of performing the Services, the Customer Data will be anonymised by Flair. The Customer grants to Flair a worldwide, non- exclusive, royalty free, irrevocable, perpetual licence to use the anonymised Customer Data for its own internal research purposes, provided that the Customer Data remains at all times anonymised.
11 CONFIDENTIALITY AND ANNOUNCEMENTS
11.1 Each party will keep confidential, and will not use for its own purposes (other than exercising its rights and performing its obligations under of these Conditions) without the prior written consent of the other, or disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information:
11.1.1 is already public knowledge;
11.1.2 already known to such party at the time of disclosure;
11.1.3 subsequently becomes public knowledge other than by breach of these Conditions; or
11.1.4 subsequently comes lawfully into the possession of such party from a third party.
11.2 A party may disclose confidential information:
11.2.1 to its professional advisors;
11.2.2 as may be required by any law or any legal or regulatory authority, or
11.2.3 to a potential buyer in connection with a bona fide due diligence process provided that any potential buyer is subject to the same confidentiality and announcement provisions found in this clause 11
11.3 Each party will use its reasonable endeavours to prevent the unauthorised disclosure of any such information, and will in any event protect the other party’s confidential information at least to the same extent that it protects its own.
11.4 The Customer shall not make any public announcement or disclose any information regarding the Contract or the Services, except to the extent required by law or regulatory authority, without the prior written consent of Flair.
11.5 During the term of the Contract and for a period of five years thereafter, Flair reserves the right to refer to the Customer in its list of clients provided that it does not disclose any confidential information of the Customer.
11.6 Flair will not be entitled to share any documents, data and materials collected via surveys in the performance of the Services externally for any reason without the prior written consent of the Customer.
11.7 Subject to clause 10.4, on termination or expiry of this Contract, Flair shall destroy or erase all documents, data and materials (and any copies) containing, reflecting, incorporating or based on the Customer’s confidential information or the survey responses.
12 PERSONAL INFORMATION
12.1 Each party shall comply with their respective obligations under the Data Protection Legislation in so far as they apply to each party’s activities under the Contract. Defined terms used in this clause take their meaning from the Data Protection Legislation.
12.2 The Customer acknowledges that Flair shall be a Business collecting and processing Personal Information pursuant to the Services.
12.4 The Customer warrants that to the extent that the Customer Data includes Personal Information, it has provided those individuals who contribute to the collection of Customer Data with all notices and has obtained all consents as may be required under Data Protection Legislation in order for Flair to lawfully and fairly process such Personal Information in the provision of the Services.
13.1 Notwithstanding any other terms of this agreement, Flair’s total aggregate liability in contract, tort (including negligence, and breach of statutory duty howsoever arising), breach of the confidentiality and announcement provisions in Clause 11, misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement insofar as it relates to the obligations set out in this Clause , or applicable Data Protection Legislation, shall be limited to $250,000.00.
14 FORCE MAJEURE
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If such circumstances prevent Flair from supplying the Services for more than four weeks, either party shall have the right, without limiting its other rights or remedies, to terminate the Contract with immediate effect by giving notice to the other party.
15.1 These terms shall, unless otherwise terminated as provided for in this Clause 14, commence on the Effective Date and terminate on the 12 month anniversary of the Effective Date.
15.2 Either party may terminate the Contract immediately at any time by giving notice in writing to the other party if:
15.2.1 the other party commits a material breach of the Contract and such breach is not remediable or if it is remediable, it fails to remedy within 7 days of receiving written notice of such breach;
15.2.2 any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under the Contract;
15.2.3 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Chapter 11 of the US Bankruptcy Code being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
15.2.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
15.2.5 the other party’s financial position deteriorates to such an extent that in the party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15.3 The Customer may terminate the Contract at any time by giving Flair 28 days’ written notice.
15.4 The Customer may terminate the Contract with immediate effect by giving notice to Flair if the Customer in its absolute discretion believes there is a likelihood of a risk to their reputation by any association with Flair.
15.5 If a party becomes aware that any event has occurred, or circumstances exist, which
may entitle Flair to terminate the Contract under this clause 14, it shall notify the other party as soon as possible in writing.
15.6 On termination of the Contract:
15.6.1 Flair shall be entitled to invoice the Customer for all costs reasonably incurred by Flair in fulfilling the Contract up until the date of termination; and
15.6.2 Flair shall deliver to the Customer all Deliverables whether or not then complete and subject to clause 10.4, at the Customer’s direction, return or destroy the Customer Data.
15.7 On termination of this Contract for any reason:
15.7.1 any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination shall not be effected; and
15.7.2 any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination of a Contract shall remain in full force and effect.
Except as set out in these Conditions, no variation of these Conditions, a Proposal or an Order shall be effective unless it is agreed in writing and signed by both parties.
No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision (or part of a provision) of these Conditions is or becomes invalid, unenforceable or illegal, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.4 Entire Agreement
15.4.1 These Conditions, the Order and the Proposal constitute the whole agreement, between the parties and supersede any previous arrangement, understanding, assurances, warranties, representations and understandings between them relating to its subject matter.
15.4.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions.
Neither party shall, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.
16.6 Third Party Rights
No one other than a party to the Contract shall have any right to enforce its terms.
16.7.1 Any notice shall be in writing and shall be delivered by hand or sent by pre-paid first class post or recorded delivery post to the other party at its address set out in the Order, or such other address as may have been notified by that party for such purposes, or sent to the other party’s email address as set out in the Order.
16.7.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first class post or recorded delivery post shall be deemed to have been served 48 hours after the time it was posted (or if delivery is not in business hours, at 9 am on the first business day following delivery) and in proving such service it shall be sufficient to prove that the notice was properly addressed. A notice sent by email shall be deemed to have been served when the sender receives confirmation of receipt.
16.7.3 Notice by email shall not be permitted in respect of service of any proceedings.
16.8 Set off
The Customer shall pay all sums that it owes to Flair under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
16.9 Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
16.10 No partnership or agency
Nothing in the Contract will constitute, or be deemed to constitute a partnership between the parties nor will it constitute, or be deemed to constitute, either party the agent of the other party for any purpose.
17 GOVERNING LAW AND JURISDICTION
17.1 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the State of New York or California, whichever is applicable.
17.2 The parties irrevocably agree that the courts of the State of New York or California, (whichever is applicable)shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).