Massage and Wellbeing Terms of Use

Massage and Wellbeing Pty Ltd ACN 651 733 158

1. Background

Thank you for visiting our Marketplace Terms of Use (Agreement), we are Massage and Wellbeing Pty Ltd ACN 651 733 158 of PO Box 712, Noosa Heads QLD 4567 (we, our, us and other similar terms). We provide an online marketplace to help customers connect with massage therapists, known as Massage and Wellbeing (Massage and Wellbeing).

This Agreement outlines the terms and conditions associated with the use of Massage and Wellbeing. It is your obligation to ensure that you have read, understood and agree to the most recent terms available at www.massageandwellbeing.com (Website).

2. Agreement

2.1 Accepting this Agreement

By using Massage and Wellbeing, you agree to comply with and be bound by the terms and conditions of this Agreement. These terms govern your access to and use of Massage and Wellbeing. If you do not agree to these terms, you have no right to obtain information, use our services or otherwise continue using Massage and Wellbeing.

These terms are binding on any use of Massage and Wellbeing. You must not use Massage and Wellbeing if you are not able to form legally binding contracts or are under the age of 18.

If you join as a therapist and create an Account on behalf of your employer or any other entity, you warrant you hold authority to enter into this Agreement on behalf of that entity and that the entity will comply with the obligations contained herein.

2.2 About this Agreement

Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined throughout the Agreement or in clause 14 and aid to clarify the terms and conditions. Please feel free to email us at bookings@massageandwellbeing.com if you have any other questions relating to this Agreement.

2.3 Term

The Term for this Agreement begins when you first access Massage and Wellbeing and continues until you cancel your Account, or this Agreement, is terminated in accordance with clause 12.

3. User Account

3.1 Creating an Account

You acknowledge and agree that to operate as a therapist on Massage and Wellbeing or to book a therapy session, you are required to provide us with personal information and create an Account with us.

You agree to provide any information reasonably requested by us for the purpose of using Massage and Wellbeing. You warrant that all of the information you provide to us is accurate and complete in all respects and you will not provide false or misleading information.

We reserve the right to reject any booking or any new Account in our absolute discretion.

3.2 Account permissions

You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorised employee or agent may create an Account on behalf of your therapy business. You also agree not to disclose your Account security credentials to another person or permit them to access your Account on your behalf. You are responsible for the activities undertaken using your Account which occur via Massage and Wellbeing, whether such activities are authorised by you or not.

4. Massage and Wellbeing

4.1 Content and hyperlinks

The content describing the therapists services set out on Massage and Wellbeing is largely produced by other people and not us. We make no warranty or representations as to the accuracy of the Therapist’s content.

Massage and Wellbeing may contain hyperlinks and other pointers to websites operated by third parties. We do not control these third party websites and are therefore not responsible for the hyperlinks, information or downloads available on them. You visit third party websites entirely at your own risk.

Where we provide hyperlinks, we do so only for your convenience and do not indicate, expressly or implicitly, any endorsement, sponsorship or approval by us of the content on the third party website.

4.2 Support

We will provide support to assist you with technical issues which arise from the use of Massage and Wellbeing. Support is available via bookings@massageandwellbeing.com.

4.3 Massage and Wellbeing accessibility

You acknowledge and agree that Massage and Wellbeing requires access to the internet and will not function as anticipated without internet access.

Massage and Wellbeing operates using third party cloud infrastructure and telecommunication services (Third Party Infrastructure). From time to time Massage and Wellbeing may become inaccessible or unavailable. We neither control nor are we liable for faults in Third Party Infrastructure nor the consequences which arise from such faults.

4.4 Updates to Massage and Wellbeing

We reserve the right to upgrade, maintain, tune, backup, amend, add to or remove content from, redesign, improve, take offline (temporarily or permanently) or otherwise alter Massage and Wellbeing at our sole and absolute discretion. From time to time, without notice, access to all or part of Massage and Wellbeing may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access to Massage and Wellbeing as soon as practicable.

You agree we are not liable for any loss, foreseeable or not, arising from any interruption to access, planned or not, and any such temporary interruptions will not constitute a breach of these terms.

5. Your use of Massage and Wellbeing

5.1 Lawful use of Massage and Wellbeing

You undertake not to enter, upload, store or access any data on Massage and Wellbeing if such access or storage would infringe a person’s Intellectual Property right, breach any privacy law or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).

5.2 Prohibited conduct

You must not:

(a) use automated means to upload content, log in or attempt to log into an Account, download or otherwise access Massage and Wellbeing in any way;

(b) attempt to gain unauthorised access to or impair any aspect of Massage and Wellbeing;

(d) provide false or misleading information;

(e) intentionally disable or circumvent any protection or disabling mechanism related to Massage and Wellbeing;

(f) install or store any software applications, code or scripts on or through Massage and Wellbeing;

(g) use Massage and Wellbeing in any way which could be reasonably expected to interfere with or damage our systems or another User’s enjoyment of Massage and Wellbeing; or

(h) attempt any of the above acts or facilitate or assist another person to do any of the above acts.

5.3 Right to suspend

We reserve the right to limit or suspend all or part of your access to Massage and Wellbeing and alter your Account information, if in our reasonable opinion:

(a) you are in breach of any of the obligations or undertakings in this Agreement;

(b) you are making misleading or deceptive statements via Massage and Wellbeing;

(d) your Account is not used for a period of greater than 12 months; or

(e) we suspect a security breach associated with your Account.

Suspending your Account will not constitute a breach of this Agreement by us.

6. License

We grant you a non-transferrable, non-exclusive, non-sublicensable, worldwide and revocable licence to use Massage and Wellbeing, on the terms contained in this Agreement (Licence). The Licence to use Massage and Wellbeing is subject to and conditional to your compliance with the terms of this Agreement.

7. Limitation of liability

7.1 Implied Conditions

This clause must be read subject to any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth), which cannot by law be excluded (Non-Excludable Conditions).

We exclude all implied guarantees, conditions and warranties from this Agreement except any Non-Excludable Conditions.

7.2 Limitation of liability

Subject to the Non-Excludable Conditions, we exclude all other liability for any costs, including consequential losses, suffered or incurred directly or indirectly by you in connection with this Agreement, including:

(a) Massage and Wellbeing being inaccessible for any reason;

(b) security vulnerabilities in Massage and Wellbeing or any breach of security that results in unauthorised access to, or corruption of data;

(d) any dispute arising between Users or your engagement with another User of Massage and Wellbeing;

(e) any loss or damage to property, personal injury or death arising directly or indirectly in connection with this Agreement;

(f) the actions or inactions of any other User or other third party to this Agreement;

(g) any unauthorised activity in relation to Massage and Wellbeing;

(h) the occurrence of an Event of Force Majeure;

(i) your use of or reliance on Massage and Wellbeing for a purpose other than its reasonably expected purpose;

(j) your breach of this Agreement; or

(k) any act or omission by you, your personnel, your associates or any related body corporate under or in relation to this Agreement.

7.3 Limits to liability associated with goods and services

To the fullest extent possible under the law, we limit our liability for any breach to:

(a) in the case of goods the re-supply of the goods or payment of the cost of the re-supply of the goods or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and

(b) in the case of services the resupply of the services or the payment of the cost of having the services resupplied.

7.4 Indemnity

You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, whether directly or indirectly, in connection with this Agreement or your use of Massage and Wellbeing including any costs arising from:

(a) your breach of this Agreement;

(b) your infringement of any third party Intellectual Property rights associated with this Agreement;

(c) any harm to, claim or action by a third party (including to that third party’s personal property) which arise directly or indirectly from your use of Massage and Wellbeing or the massage services procured via it; and

(d) your breach of any law.

8. Warranties

Subject to the Non-Excludable Conditions, we make no warranties or guarantees that Massage and Wellbeing is fault free, regarding its fitness for any particular purpose or regarding your access to, or the results of your access to Massage and Wellbeing, including its correctness, accuracy, timeliness, completeness, reliability or otherwise.

9. Intellectual Property

For the purpose of this Agreement, intellectual property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right (Intellectual Property).

We warrant we own or have a licence to use the Intellectual Property in Massage and Wellbeing.

You warrant you will not do any of the following, or permit any person over whom you have effective control to:

(a) incorporate all or part of Massage and Wellbeing in any webpage, site, application or other digital or non-digital format;

(b) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of Massage and Wellbeing on any medium; or

(c) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in Massage and Wellbeing.

10. Privacy

You agree and consent to us handling your personal information in accordance with our privacy policy. We may amend our privacy policy in our sole discretion. If we amend our privacy policy, we will post the new version on our Website.

11. Dispute Resolution

A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 11 before commencing any legal proceedings.

If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.

Each party must pay its own internal and legal costs in relation to complying with this clause 11. The mediator’s costs are to be shared equally.

The parties acknowledge and agree this clause 11 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.

12. Termination

12.1 Termination

We may end this Agreement immediately if: in our reasonable opinion you materially breach this Agreement or are otherwise involved in any illegal activity; we cease to provide the Massage and Wellbeing marketplace; your Account remains suspended for a period of more than 14 days; or for any other reason after notifying you 30 days in advance of our intention to terminate this Agreement.

Either party may terminate this Agreement with 14 days written notice.

12.2 Actions upon termination

Upon Termination you must immediately stop using Massage and Wellbeing, we reserve the right to permanently erase any data associated with your Account and you will no longer have access to your Account.

13. General

Assignment – We may assign, encumber, declare a trust over or otherwise create an interest in our rights in this Agreement without your consent. You must not assign, encumber, declare a trust over or otherwise create an interest in your rights in this Agreement without our consent, which must not be unreasonably withheld.

Entire agreement – This Agreement sets out all the parties’ rights and obligations relating to the subject matter of the Agreement, and it supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.

Event of Force Majeure – means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.

The parties’ obligations, other than an obligation to pay money, under this Agreement are suspended for the duration of and to the extent they are affected by an Event of Force Majeure.

Governing law – This Agreement is governed by and is to be construed in accordance with the laws applicable in Queensland and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Queensland and the Commonwealth of Australia.

Notices – The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement which we send to you, will be sent to you via the email address provided to us in your Account. By accepting these terms, you give your consent to receive communications from us by email and push notifications. Your notices to us should be directed to Massage and Wellbeing or sent via the facilities made available to you on our Website.

Relationship of the parties – Nothing in this Agreement is intended to create any partnership, joint venture, agency or employment relationship between the parties.

Survival – Clauses 7, 9 , 11 and any other clause in this Agreement which is expressed to survive or by its nature survives, will survive termination or expiry of this Agreement for any reason.

Severance – If anything in this Agreement is unenforceable, illegal, or void then it is severed, and the rest of this Agreement remains in full force and effect.

Variations to this Agreement – We may vary this Agreement (including by varying our Fees) at any time by posting, with 1 month notice, the new Terms of Use on our Website. If you do not accept the terms of the variation you may terminate this Agreement in accordance with clause 12.

14. Definitions

Consumer means a User who uses Massage and Wellbeing to purchase goods and services.

Rate Card means the most recent card setting out the Retail Price and Therapist Price, provided to Therapists and updated from time to time.

Retail Price means the price payable by Consumers via Massage and Wellbeing for massage services.

Submitted Content means all information, audio, documents, graphics, HTML, text and other material which is uploaded by Therapists to Massage and Wellbeing.

Therapist means a business who uses Massage and Wellbeing to provide massage services to Consumers.

Therapist Price means the amount payable to the Therapist for a booking made via Massage and Wellbeing.

User means any person using Massage and Wellbeing whether they are a Consumer or Therapist.

Schedule 1 Therapist Terms

If you are a Therapist using Massage and Wellbeing then you acknowledge and agree to the following terms.

1. Fees and payment

1.1 Fees

You acknowledge and agree we are entitled to the difference between the Retail Price and the Therapist Price, as set out in the most recent Rate Card provided, (Fees) for all services sold via Massage and Wellbeing.

1.2 Refunds

You acknowledge that our Fees, once processed via Massage and Wellbeing, are non-refundable, except as otherwise required by law.

2. Contracts between Therapists and their personnel

2.1 Therapist contracts

Therapists are required to come to agreement on the terms of their contract with their personnel, whether they are employees or contractors. The contract must not purport to impose any obligations on us.

2.2 Tax and superannuation

We do not withhold any tax or superannuation from payments made in relation to services delivered by Therapists. You acknowledge and agree you are solely responsible for ensuring all tax and superannuation obligations are met and you must make your own enquiries into any industrial relations, workplace health and safety, employment or sub-contracting implications associated with any contract you enter into with your personnel.

You indemnify us against any claims from your personnel who provide massage services booked using Massage and Wellbeing.

3. Our rights and obligations

3.1 Not a party to agreements between Users

You acknowledge that we are not a party to the relationship or any dealings between you and any other User of the system.

Without limitation, you are solely responsible for:

(a) resolving disputes between yourself and any Consumer relating to the massage services you provide to them;

(b) complying with the obligations of any contract you have with your personnel; and

(c) complying with any legal obligations you have in relation to the provision of massage services booked via Massage and Wellbeing including any tax, consumer, privacy or other law.

3.2 Feedback and ratings

We do not verify any feedback or information provided by Consumers about Therapists. You acknowledge and agree we are under no obligation to alter, amend or remove any negative feedback or low ratings recorded on Massage and Wellbeing.

3.3 Australian Business Numbers (ABN)

Before accessing Massage and Wellbeing, you are required to obtain an ABN and provide that to us on setting up your account. If, at any time during the term of this Agreement, you cease to hold an ABN you must contact us and this Agreement will immediately terminate.

3.4 Google Calendar

In order to receive bookings via Massage and Wellbeing, you must set up a Google Calendar and make available timeslots during which bookings can be made. You must grant us full administrator access to your Google Calendar account so that we may make bookings.

You agree to keep your Google Calendar up to date and ensure you can perform massage services during the times made available via your Google Calendar.

4. Submitted Content

4.1 Use of Submitted Content

You acknowledge that we are not obliged to use any content submitted by you. However, we reserve the right to use the content you submit for the purpose of operating Massage and Wellbeing.

We reserve the right to take down and destroy any Submitted Content, in our sole discretion, and without notice. It is entirely your responsibility to keep copies of any Submitted Content uploaded to Massage and Wellbeing and you must not rely on us storing copies for you.

4.2 Prohibited content

You undertake not to upload, store, alter, configure or access any data or Submitted Content to Massage and Wellbeing:

(a) which is false, misleading or otherwise deceptive in any way;

(b) which is improper, harmful, threatening, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful or otherwise objectionable;

(d) containing any computer virus or malicious code;

(e) that is likely to offend, insult or humiliate based on race, religion, ethnicity, gender, age or sexual orientation;

(f) content that may not legally be viewed by persons under 13 years old in Australia; or

(g) any other content deemed inappropriate in our sole discretion.

4.3 Intellectual Property

All intellectual property rights subsisting in your Submitted Content remains your sole property and no ownership in that material is transferred to us under or in connection with this Agreement. You grant us a perpetual, worldwide, royalty free licence to use the Submitted Content for the purposes of operating Massage and Wellbeing.

5. Privacy and Confidentiality

In this clause, Personal Information means information we provide to you about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form (Personal Information).

You agree to handle all Personal Information in accordance with the Privacy Act 1988 (Cth). You must not disclose any Personal Information to any person other than your personnel, except with the consent of the person to whom the Personal Information relates.

The Parties acknowledge and agree they will notify the other party of any unauthorised access, use, modification, disclosure or other misuse of any Personal Information collected or accessed in connection with this Agreement as soon as practicable after becoming aware of such activity and provide reasonable assistance to the other party in the investigation, assessment and containment of any data breach associated with this Agreement.

Furthermore, each party as recipient must keep confidential all Confidential Information of the discloser, not use the Confidential Information except for the purposes of the Agreement, and not disclose the Confidential Information except:

(a) to its personnel, contractors and suppliers on a need to know basis for the purpose of performing its obligations under this Agreement;

(b) with the discloser’s consent; or

6. Non-solicitation

You must use Massage and Wellbeing as your exclusive method to retain any Consumer you have been introduced to by us, unless we otherwise agree in writing.

If a Consumer, their related entity or any person acting as agent for the Consumer, contacts you for further services other than via Massage and Wellbeing, you must direct the Consumer to engage you via Massage and Wellbeing.

Any Therapist found engaging with a Consumer other than via Massage and Wellbeing, will be committing a material breach of this Agreement for which we have the right to immediately terminate this Agreement.

You grant us the right to examine your books, accounts and records, all at such reasonable times as we request to ascertain your compliance with this clause. You agree to deliver a copy of your books, accounts and records within 7 days from our written request.

Schedule 2 Consumer Terms

If you are a Consumer using Massage and Wellbeing then you acknowledge and agree to the following terms.

1. Transactions between you and Therapists

You acknowledge and agree:

(a) we provide a service to Therapists who advertise their services and we are not the provider of those services;

(b) the descriptions of the services are provided by the Therapist and not us;

(d) any massage services you procure via Massage and Wellbeing represent a contract between you and the Therapist only, we are not a party to that contract.

All prices quoted are in Australian Dollars and include local taxes. You are responsible for all bank fees and charges including costs associated with currency exchange which are applied by the payment gateway provider which you choose to use when you make a payment.

2. Gift cards and discounts

From time to time and at our sole discretion we may make available to you the use of discount codes and redeemable gift cards. Discount codes and gift cards are redeemable when you order the services on the conditions upon which those discount codes and gift cards were offered.

3. Fees and refunds

3.1 Fees

All fees quoted on Massage and Wellbeing include GST. You acknowledge and agree you are required to make payment for the Therapists services at the time you make an order via Massage and Wellbeing. We are solely responsible for paying the Therapists fees for services procured via Massage and Wellbeing.

3.2 Refunds

You acknowledge that our fees once processed via Massage and Wellbeing are non-refundable, except as otherwise required by law.

If you, acting reasonably, find the services to be of unacceptable quality or if they fail to meet the description, you must contact the Therapist to obtain a refund in accordance with the Therapist’s policy.

4. Medical conditions and pregnancy

You must not make a booking, if you have a pre-existing medical condition or injury which could be aggravated by receiving a massage. If you are uncertain with respect to your condition, you should consult a medical practitioner before booking.

If you are pregnant, you must only select a prenatal qualified therapist when making a booking and be a minimum of 12 weeks through your pregnancy.

The Therapist, in their sole discretion, reserves the right to limit the scope of, or refuse to provide, services if they have legitimate concerns regarding the risks of injury.

5. Submitted Content

You acknowledge we are under no obligation to review the Submitted Content on Massage and Wellbeing and that in some cases that information may be mislabelled, misleading, offensive or inaccurate. Consumers are solely responsible for ensuring the accuracy of Submitted Content and identity of any Therapists before engaging them.

Misleading, illegal or offensive content can be reported to us via email to bookings@massageandwellbeing.com.

6. Non-solicitation

You must use Massage and Wellbeing as your exclusive method to engage with any Therapist you have been introduced to by us, unless we otherwise agree in writing.

7. Therapist’s Discretion

You acknowledge and agree that the Therapist has the right to terminate the service, in their sole discretion, before or during the therapy session, if your behaviour is inappropriate; you are intoxicated or under the influence; or there is any safety issue in providing the services.