Sense Massage Therapy Limited
Terms & Conditions
1 Basis of contract
1.1 The Order constitutes an offer made by You to purchase Services from SMT in accordance with these Terms and Conditions.
1.2 The Order shall only be deemed to be accepted when SMT issues written acceptance or confirmation of the Order at which point and on which date the contract shall come into existence and be binding (“Contract”).
1.3 The Contract constitutes the entire agreement between the Parties. You acknowledge that You have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the SMT which is not set out in the Contract.
2 Acceptance of Terms and Conditions
2.1 You will be deemed to have accepted and agreed to these Terms and Conditions, which will prevail over any other terms put forward by You, when any of the following events occurs:
(a) You request SMT to supply a Therapist for any Assignment; or
(b) SMT supplies a Therapist to You; or
(c) a Therapist begins an Assignment for You.
3 Interpretation and Definitions
3.1 In these Terms and Conditions, the following words will have the following meanings:
Agreement the agreement containing these Terms and Conditions;
Assignment the period during which a Therapist performs Services for You, beginning when the Therapist first reports to You to take up their duties (or, if earlier, the commencement of such Services by the Therapist) and ending on the cessation by the Therapist of all such work or Services as set out in the Contract;
Claims all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
Fee(s) the fees payable by You to SMT for the supply of Services in the sum set out in the Contract;
Losses all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;
Order your order for the supply of Services in the form set out in Schedule 1;
Parties You and SMT, and Party will mean either one of them;
Services the supply of services by SMT of Therapist(s) to provide You with on site massage and/or reflexology treatment or any other treatment as set out in the Contract between the Parties;
SMT Sense Massage Therapy Limited a company registered in England and Wales under company number 09322544 and whose registered office is at Venture Court, 2 Debdale Road, Wellingborough, Northamptonshire, England, NN8 5AA;
Therapist one or more persons supplied by SMT to provide You with the Services; and
You means the purchaser or potential purchaser for the supply of Services from SMT;
2003 Regulations the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
3.2 In this Agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
(e) reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g) the headings to the clauses and paragraphs of, and schedules to, this Agreement are not to affect the interpretation;
(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
(i) where the word ‘including’ is used in this Agreement, it will be understood as meaning ‘including without limitation’.
4.1 SMT will provide the Services to You in consideration of payment of the Fees payable by You to SMT, subject to these Terms and Conditions.
4.2 When supplying a Therapist to You, SMT is acting as an employment business as defined in the 2003 Regulations.
4.3 When supplying a Therapist, SMT will inform You, so far as enabled to do so by information provided by the Therapist to SMT:
(a) of the Therapist's identity;
(b) that the Therapist has the necessary or required experience, training, qualifications and any authorisation required by law or a professional body to work on the Assignment (including, where relevant, an appropriate Disclosure and Barring Service criminal records check);
(c) whether the Therapist is employed by SMT under a contract of service or apprenticeship or a contract for services; and
(d) that the Therapist is willing to work on the Assignment.
4.4 Where the Therapist is required by law or any professional body to have any qualifications or authorisations to work on the Assignment, or the Assignment entails caring for or attending one or more persons under the age of 18 or any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, SMT will take reasonably practicable steps:
(a) to obtain and offer to provide You with:
(i) copies of any relevant qualifications or authorisations of the Therapist Disclosure and Barring Service check); and
(ii) two references from persons not related to the Therapist who have agreed that the references they provide may be disclosed to You; and
(b) to confirm that the Therapist is suitable for the Assignment.
4.5 Details of the start times, duration etc of the Services to be provided to You will be set out in SMT’s confirmation of the Order. You will ensure that persons receiving the Services will endeavour to arrive on time for their appointment.
4.6 SMT will require that each Therapist will deliver to You, on the termination of an Assignment or at any time during it, all documents, papers, materials and other property (including any copies) belonging to or relating to your business which may be in the Therapist's possession or under his or her control.
4.7 If You breach any of these Terms and Conditions, SMT reserves the right to withdraw, without notice, any Therapist supplied without incurring any liability to You.
5 Your obligations and acknowledgments
5.1 You will:
(a) specify your exact requirements by providing full details of the work for which the Therapist is required and, in particular, by notifying SMT when placing the Order of:
(i) any special skills required for such work;
(ii) any special health and safety matters about which SMT is obliged to inform the Therapist; and
(iii) any requirements imposed by law or by any professional body which must be satisfied if the Therapist is to fill the Assignment;
(b) not allow any Therapist to undertake any work other than that which You have notified to SMT in placing the Order for that Therapist in accordance with clause 5.1(a);
(c) verify at the beginning of the Assignment that the Therapist is suitable for the purposes for which they are required and that they have the capability to carry out the duties required; and
(d) comply with all other obligations, duties and regulations, whether statutory or otherwise including those relating to the place, nature or system of work, in any way arising from or directly or indirectly connected with the services rendered by the Therapist.
5.2 You acknowledge and agree that:
(a) Unless SMT notifies You to the contrary, all Therapists supplied by SMT are engaged under contracts for services and are not the employees of SMT;
(b) You will in all respects comply with all statutes, byelaws and other legal requirements and codes of practice to which You are ordinarily subject in respect of your own staff, including the Working Time Regulations 1998 and the Health and Safety at Work Act 1974;
(c) You will provide adequate employer's and public liability insurance cover for the Therapist during all Assignments; and
(d) if You reasonably consider the Therapist to be unsatisfactory, You will make a complaint to SMT by telephone and confirm it in writing within one day of the finding, but You will not have the right to withhold payment of any Fee due to SMT.
5.3 You will at all times treat all Therapists with due respect and dignity and in particular must take all steps within your control to avoid any unlawful discriminatory treatment of each of them.
(a) confirm that You are not aware of anything which will cause a detriment to your interests or of the interests of the Therapist in any Assignment; and
(b) will inform SMT immediately if You become aware of any circumstances which would render any Assignment detrimental to your interests or the interests of the Therapist.
5.5 You will notify SMT immediately if the Therapist fails to attend work or notifies You that they are unable to attend work for any reason.
5.6 Prior to the appointment, You are responsible for completing the safety forms and providing the original completed safety form to the Therapist.
5.7 You are responsible for retaining a copy of the completed safety forms and You consent to SMT and the Therapist to keep a paper or electronic copy of the safety form for a period of 5 years from the completion of an Assignment.
6 Fees and payment
6.1 You will pay the following Fees (as specified in the Contract) to SMT for the supply of Services:
(a) the Fees in respect of each Therapist for all hours worked by that Therapist; and
(b) such travel and other expenses as have been agreed by the Parties in advance.
6.2 You shall make payment of the Fees and any travel and other expenses as agreed to SMT immediately on the date SMT confirm acceptance of your booking unless otherwise agreed in writing between the Parties.
6.3 You shall not make payment of the Fees or other expenses directly to the Therapist.
6.4 All amounts stated are exclusive of VAT, which will, if applicable, be charged in addition at the rate in force at the time You are required to make payment.
6.5 If You do not make payment by the date stated in an invoice or as otherwise provided for in these Terms and Conditions, then SMT will be entitled:
(a) to charge interest (both before and after any judgment) on the outstanding amount at the rate of 8% a year above the base lending rate of the Bank of England, accruing daily; and
(b) to not perform any further Services, or any part of the Services.
6.6 You cannot withhold payment of our Fees on the grounds that You are dissatisfied with the Therapist's work. In cases of unsatisfactory work, You should apply the provisions of clause 5.2(d).
7 Cancellation and refunds
7.1 If You reasonably consider that the Services of the Therapist are unsatisfactory, You must apply the provisions of clause 5.2(d) and provide confirmation, in writing, of the unsuitability of the Therapist, including reasonably satisfactory evidence, within 24 hours.
7.2 To cancel an Assignment, You must provide SMT with notice of 14 working days before the start date of the Assignment.
7.3 As SMT will incur irrevocable costs in respect of the administration and labour in finding a suitable Therapist for You, the following cancellation fees shall apply and will be deducted from any refund due to You:
(a) the sum of £25 or 10% of the Fees (which ever is greater) if You provide notice of 14 (or more) working days before the start date of the Assignment;
(b) 50% of the Fees if You provide SMT with notice of 6 to 13 working days before the start date of the Assignment;
(c) 100% of the Fees if You provide SMT with notice of less than 5 working days before the start date of the Assignment.
7.4 Payment of any refund will be made to You within 14 working days of the cancellation of the Assignment using the same method of payment You used to pay for the Order.
7.5 SMT will notify You without delay if it receives or otherwise obtains information which gives it reasonable grounds to believe that a Therapist supplied to You is unsuitable for the Assignment, and will terminate the Assignment. SMT will use its reasonable endeavours to provide a replacement Therapist but if SMT are unable to do so, any advance payment You have made for Services that have not been provided will be calculated on a pro-rata basis and refunded to You within 14 days of the termination of the Assignment using the same method of payment as You used to pay for the Order.
7.6 Without prejudice to the other remedies or rights SMT may have, SMT may terminate this Agreement if You materially breach your obligations under these Terms and Conditions. You will be liable to pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by SMT for the performance of the Services prior to the date of termination.
8.1 Each Party (Receiving Party) will keep the confidential information of the other Party (Supplying Party) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party will only use the confidential information of the Supplying Party for the purpose of and for performing the Receiving Party's obligations under this Agreement. The Receiving Party will inform its officers, employees and agents of the Receiving Party's obligations under the provisions of this clause 8.1, and ensure that the Receiving Party's officers, employees and agents meet the obligations.
8.2 The obligations of clause 8.1 will not apply to any information which:
(a) was known to or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
(b) is, or becomes, publicly available through no fault of the Receiving Party;
(c) is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
(d) was developed by the Receiving Party, or on its behalf by a third party who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
(e) is required to be disclosed by order of a court of competent jurisdiction.
8.3 The obligations set out in this clause will survive termination of this Agreement for a period of 6 months.
9 Data protection compliance
9.1 To the extent that any data or information belonging to You is personal data within the meaning of the Data Protection Act 1998 or equivalent legislation:
(a) SMT will process such data and information only in accordance with your instructions; and
(b) SMT will not transmit such data and information to a country or territory outside the European Economic Area without your prior express written consent.
10 Warranties, liability and indemnities
10.1 While SMT will make reasonable efforts to ensure reasonable standards of skills, integrity and reliability in Therapists and to comply with your requirements, You accept and agree that SMT gives no warranty as to the suitability of any Therapist for any Assignment.
10.2 SMT confirms that, in supplying You any Therapist, it is not aware of anything which will cause any detriment to your interests or the interests of that Therapist if the Therapist fulfils the Assignment.
10.3 Neither SMT nor any of its staff will be liable to You for any loss, injury, damage, expense or delay incurred or suffered by You arising directly or indirectly from or in any way connected with the introduction or supply of a Therapist to You or with any failure by SMT to introduce or supply a Therapist for all or part of any period booked by You (except that in the latter case You may be entitled to a reduction or cancellation of the Fee payable), unless such loss, damage, costs or expenses are the direct result of the negligent acts or omissions of SMT. In particular, but without limitation, SMT will not be liable for any loss, injury, damage, expense or delay arising from, or in any way connected with:
(a) any failure of the Therapist to meet your requirements for all or any of the purposes for which the Therapist is required by You; or
(b) any act or omission of a Therapist, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;
(c) any loss, injury, damage, expense or delay suffered by a Therapist.
10.4 Except in the case of death or personal injury caused by SMT's negligence, the liability of SMT under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever will not exceed the Fees paid or due to be paid by You to SMT under this Agreement. SMT will not be liable for any matter not reported to it within 7 days of its occurrence. The provisions of this clause 10.4 will not apply to clause 10.6.
10.5 Neither Party will be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause 10.5 will not apply to clause 10.6.
10.6 You will indemnify and hold harmless SMT from and against all Claims and Losses arising from loss, damage, liability, injury to SMT, its employees and third parties, by reason of or arising out of:
(a) any loss, injury, expense or delay suffered or incurred by a Therapist, however caused; and/or
(b) any loss, injury, damage, expense or delay suffered or incurred by anyone arising directly or indirectly from or in any way connected with the acts and omissions of a Therapist, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise; and
(c) any loss, injury or delay suffered or incurred by SMT as a result of any act or omission made by You.
that arises directly or indirectly out of or is in any way connected with the relevant Assignment, any information supplied by You to SMT or your breach of these Terms and Conditions.
10.7 Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.
11.1 Force majeure
Neither Party will have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances will promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.
No amendment or variation of this Agreement will be valid unless confirmed as agreed, in writing, by an authorised signatory of each Party.
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
11.4 Entire agreement
This Agreement contains the whole agreement between the Parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
No failure or delay by SMT in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
11.6 Agency, partnership, etc
This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
Any notice to be given under this Agreement must be in writing and sent by first class mail to the address of the relevant Party set out in clause 1.
11.9 Law and jurisdiction
The validity, construction and performance of this Agreement is governed by English law and will be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
11.10 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.