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 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 provide the Services for any Assignment; or
(b) SMT begins to provide the Services to You; or
(c) a Therapist begins to provide the Services for an Assignment.
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 one or more Therapists provide the Services to You 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 means the provision by SMT of on-site massage, reflexology and/or any other treatment or wellbeing service set out in the Contract between the Parties, delivered by one or more Therapists engaged by SMT;
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 means an appropriately qualified and insured self-employed professional engaged by SMT under a contract for services to perform the Services;
You means the purchaser or potential purchaser for the supply of Services from SMT;
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) references 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 Services
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 SMT will take reasonable steps to ensure that each Therapist engaged to provide the Services has the appropriate experience, training and qualifications for the Services they are engaged to provide, together with any authorisation required by law or a relevant professional body. SMT will also require each Therapist to maintain appropriate public liability and/or professional malpractice insurance applicable to the Services they provide.
4.3 Where any particular qualification, authorisation, registration or background check is required by law or a relevant professional body for the provision of the Services, SMT will take reasonable steps to ensure that the Therapist engaged to provide those Services meets the applicable requirement.
4.4 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.
4.5 SMT will require each Therapist to 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 their control.
4.6 If You materially breach these Terms and Conditions, or if SMT reasonably considers that the health, safety, dignity or wellbeing of a Therapist may be at risk, SMT reserves the right to suspend or withdraw the Services and/or require a Therapist to leave the premises, without liability to You for any resulting interruption to the Services.
5 Your obligations and acknowledgments
5.1 You will:
(a) specify your requirements by providing full details of the Services 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 for the provision of the Services;
(b) not require or request any Therapist to provide services materially different from those agreed with SMT for the relevant Assignment;
(c) notify SMT promptly if You become aware of any reasonable concern regarding the suitability, conduct or ability of a Therapist to provide the Services; and
(d) provide a safe and suitable environment for the provision of the Services and comply with all applicable legal obligations relating to your premises, activities and matters under your control.
5.2 You acknowledge and agree that:
(a) Therapists engaged by SMT to provide the Services are self-employed professionals engaged under contracts for services and are not employees of SMT or You;
(b) You will comply with all applicable health and safety legislation and other legal requirements relating to your premises and activities and will notify SMT of any known hazards, site rules, security requirements or other matters relevant to the safe attendance of a Therapist at your premises;
(c) You will maintain appropriate insurance in respect of your premises, activities and liabilities to persons lawfully attending your premises, including Therapists attending to provide the Services. For the avoidance of doubt, You are not required to insure the Therapist in respect of the professional Services provided by the Therapist; and
(d) SMT requires each Therapist to maintain appropriate insurance in respect of the professional Services they provide. SMT also maintains appropriate business insurance in connection with the provision of the Services;
(e) if You reasonably consider the performance or conduct of a Therapist to be unsatisfactory, You will notify SMT as soon as reasonably practicable and provide reasonable details of the concern. Such a complaint will not, of itself, entitle You to withhold payment of any Fee properly 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.
5.4 You:
(a) confirm that You are not aware of anything which will cause a detriment to your interests or 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 promptly if a Therapist fails to attend an Assignment as agreed or informs You directly that they are unable to provide the Services.
5.6 You will ensure that persons receiving the Services are given a reasonable opportunity to complete any treatment Safety Form required by SMT or the Therapist before receiving treatment.
5.7 Treatment Safety Forms will be handled and retained in accordance with clause 9 and SMT’s GDPR and Privacy Policy.
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 for the Services provided during each Assignment; 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 confirms 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 may not withhold payment of Fees properly due solely on the grounds that You are dissatisfied with the Services or a Therapist. Any concerns should be reported to SMT in accordance with clause 5.2(e).
7 Cancellation, changes and refunds
7.1 You may change or cancel an Assignment by giving notice to SMT. The cancellation charges set out in clause 7.2 will apply according to the amount of notice provided.
7.2 As SMT will incur irrevocable costs in respect of the administration and labour in finding a suitable Therapist for You, the following fees shall apply and will be deducted from any refund due to You:
(a) the sum of £25 or 10% of the Fees (whichever 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 5 or fewer working days before the start date of the Assignment.
7.3 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.
7.4 SMT will notify You without delay if it receives or otherwise obtains information which gives it reasonable grounds to believe that a Therapist engaged to provide the Services is unsuitable for the Assignment, and will terminate the Assignment. SMT will use its reasonable endeavours to provide a replacement Therapist but if SMT is 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 working days of the termination of the Assignment using the same method of payment as You used to pay for the Order.
7.5 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.
7.6 Where payment has been made by business debit or credit card and a refund is subsequently due, SMT reserves the right to deduct any non-refundable card processing fees incurred by SMT from the amount refunded.
8 Confidentiality
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 three years, except in relation to personal data or information which by its nature should remain confidential for longer, in which case the obligations will continue for so long as required by applicable law or the nature of the information.
9 Data protection compliance
9.1 Each Party will comply with its obligations under applicable data protection legislation in relation to any personal data processed in connection with the Services.
9.2 SMT will process personal data relating to You, your personnel and the administration of the Services in accordance with applicable data protection legislation and SMT’s GDPR and Privacy Policy.
9.3 Where personal or health information is provided by an individual on a treatment Safety Form, the form will be retained securely by the Therapist in accordance with applicable professional, insurance and legal requirements. Information contained on a Safety Form will not ordinarily be provided to SMT or You.
9.4 Further information about the personal data collected by SMT, the purposes for which it is used, how it is stored and retained, and the rights of individuals is set out in SMT’s GDPR and Privacy Policy available on its website.
10 Warranties, liability and indemnities
10.1 SMT will take reasonable steps to engage Therapists who are appropriately qualified, experienced and insured to provide the relevant Services. SMT does not warrant that a particular Therapist will meet any subjective preference or requirement which has not been notified to SMT and agreed by SMT in advance.
10.2 SMT will be responsible for loss, damage or injury to the extent that it is directly caused by SMT’s negligence, breach of contract or other legal liability. SMT will not be responsible for loss, damage, injury, expense or delay to the extent that it arises from:
(a) any act or omission of You, your employees, agents or contractors;
(b) unsafe premises, equipment or working conditions under your control or at premises provided or arranged by You;
(c) inaccurate, incomplete or withheld information relevant to the provision of the Services;
(d) a Therapist failing to meet a preference or requirement which You did not notify to SMT and which SMT did not agree to; or
(e) circumstances outside SMT’s reasonable control.
Nothing in this Agreement excludes or restricts liability which cannot lawfully be excluded or restricted.
10.3 Subject to clause 10.4, SMT’s total aggregate liability to You arising out of or in connection with an Assignment, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed the total Fees paid or payable by You to SMT in respect of that Assignment.
You will notify SMT as soon as reasonably practicable of any accident, injury, loss or other incident which may reasonably be expected to give rise to a claim and will provide reasonable information and assistance to SMT in investigating the matter.
10.4 Nothing in this Agreement excludes or limits SMT’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot lawfully be excluded or limited.
10.5 You will indemnify SMT against reasonable Claims and Losses to the extent that they arise from:
(a) your negligence or material breach of this Agreement;
(b) unsafe premises, equipment or working conditions under your control or at premises provided or arranged by You;
(c) material information which You were required to provide to SMT but failed to provide; or
(d) the acts or omissions of your employees, agents or contractors,
except to the extent that the relevant Claim or Loss was caused by SMT’s negligence or breach of this Agreement.
10.6 Subject to clause 10.4, neither Party will be liable to the other for any indirect or consequential loss, or for any loss of profit, revenue, business, anticipated savings or goodwill arising out of or in connection with this Agreement.
10.7 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other term except as expressly set out in this Agreement. Any conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11 General
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.
11.2 Amendments
No amendment or variation of this Agreement will be valid unless confirmed as agreed, in writing, by an authorised signatory of each Party.
11.3 Assignment
SMT may engage appropriately qualified and insured Therapists and other service providers as reasonably necessary to provide the Services without requiring further consent from You. Subject to this, neither Party may assign, delegate, sub-contract or otherwise transfer any material rights or 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.
11.5 Waiver
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.
11.7 Severance
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 the validity or enforcement of this Agreement.
11.8 Notices
Any notice to be given under this Agreement must be in writing and may be sent by email to the email address ordinarily used by the Parties in connection with the Contract or by first class post to the relevant Party’s registered or principal business address. A notice sent by email will be deemed received on the next working day after transmission unless the sender receives notification that delivery has failed.
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.