ON SITE MASSAGE COMPANY LIMITED TERMS AND CONDITIONS – SUPPLY OF SERVICES [TO CORPORATE CLIENTS]
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
Annual Programmes: an Order for a programme of Services over a twelve (12) month period which is as detailed in the Booking Form.
Booking Form: the form which includes the description or specification of the Services and Fees provided in writing by OSMC to the Client following an email or telephone enquiry from the Client or a request to proceed a booking which is from the Client following the receipt of a quotation from OSMC. For the avoidance of doubt, quotations issued by OSMC are not part of the Booking Form and do not form part of the Contract.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 3.
Conditions: these terms and conditions as amended from time to time in accordance with clause 4.
Contract: the contract between OSMC and the Client for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Client: the firm or company who purchases Services from OSMC.
Client Default: has the meaning set out in clause 2.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection supervisory authority and applicable to a party.
Deliverables: any output of the Services to be provided by OSMC to the Client as specified in the Booking Form and any other documents, products and materials provided by OSMC to the Client in relation to the Services (excluding OSMC’s equipment).
Fee or Fees: the sums payable by the Client for the supply of the Services as set out in the Booking Form.
Individuals: the Client’s guests or employees who participate in the Services.
Intellectual Property Rights: copyright, patents, know-how, trade secrets, trade names, design rights, rights in get-up, rights in goodwill, rights to sue for passing off, domain names, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Client’s order for Services as set out in the Booking Form.
OSMC: On Site Massage Company Limited, a limited company registered in England and Wales with company number 04709752 whose registered office is at Thornhill Brigg Mills, Thornhill Beck Lane, Brighouse, West Yorkshire, HD6 4AH.
OSMC Materials: has the meaning set out in clause 5.1(i).
Practitioner: one or more persons, including therapists, consultants, coaches, mentors and professional advisors, supplied by OSMC to provide any part of the Services to the Client.
Recurring Bookings: an Order for Services which is repeated, the frequency and duration of which is as detailed in the Booking Form.
Services: the services, which may include treatments, workshops, seminars, coaching, professional advice and consultancy related to health and well-being, to be supplied by OSMC to the Client as set out in the Booking Form.
Session: a discrete part of the Services which may be delivered to one or more Individuals and which will have a specific start and end time.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
2. Booking and basis of contract
2.1 Any pricing or description of Services and Fees provided by OSMC as set out in the Booking Form shall only be valid for the period set out in the Booking Form unless otherwise agreed by OSMC in writing.
2.2 The Booking Form constitutes an offer by OSMC to provide the Services in accordance with these Conditions.
2.3 The Client’s acceptance of the Order will take place when the Client’s representative clicks on the link provided within the Booking Form to accept the Conditions, at which point a contract will come into existence between OSMC and the Client (Commencement Date).
2.4 When the Client’s representative clicks on the link provided within the Booking Form to accept the Conditions the Client is acknowledging its full acceptance of these Conditions.
2.5 The Booking Form and these Conditions constitute the entire agreement between OSMC and the Client. Any quotations issued prior to the Booking Form shall not form part of the Contract or have any contractual force. Any descriptive matter or advertising issued by OSMC, and any descriptions contained on OSMC’s website are issued or published for the sole purpose of giving an approximate idea of the services. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7 OSMC may change these Conditions at any time by posting a new version on its website and/or by emailing them to the Client. It is the Client’s responsibility to check the Conditions carefully as they will apply to any Recurring Bookings or Orders occurring after the effective date shown.
2.8 The Contract will commence on the Commencement Date and will continue until completion of the Services, unless it is terminated earlier in accordance with clause 12.
3. Use of Third Party Booking Software
3.1 OSMC may use and/or make available to the Client third party booking systems or software for OSMC’s booking process and/or in order to allow Individuals to book Sessions. OSMC makes no warranties express or implied and gives no indemnity with respect to the use of any such third party software or booking systems.
4. Supply of Services
4.1 OSMC shall supply the Services to the Client in accordance with and as detailed in the Booking Form in all material respects.
4.2 OSMC may use sub-contractors for carrying out any part of the Services and shall be entitled at all times in our absolute discretion to decide which of our employees, agents, consultants or sub-contractors shall provide the Services on behalf of OSMC.
4.3 OSMC warrants to the Client that the Services will be provided using reasonable care and skill.
4.4 While OSMC will make reasonable efforts to ensure reasonable standards of skills, integrity and reliability in Practitioners, the Client accepts and agrees that OSMC gives no warranty as to the suitability of any Service or any Practitioner.
4.5 OSMC reserves the right not to provide any part of the Services to any Individual who has not, when required, signed a medical consent form prior to a session and/or whom a Practitioner deems unsuitable to receive such Service. For example, it is OSMC’s general policy not to provide massages to women in their first trimester of pregnancy.
5. Client’s obligations
5.1 The Client shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with OSMC (including its Practitioners) in all matters relating to the Services;
(c) provide OSMC (including its Practitioners), with access to the Client’s premises, office accommodation and other facilities as reasonably required by OSMC;
(d) make OSMC, (including its Practitioners) aware of any health and safety policies and practices relating to the Client’s premises which must be adhered to whilst on the Client’s premises;
(e) provide OSMC (including its Practitioners) with such information and materials as OSMC may reasonably require in order to supply the Services (including, but not limited to, any special health and safety matters), and ensure that such information is complete and accurate in all material respects;
(f) prepare the Client’s premises for the supply of the Services;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(h) comply with all applicable laws, including health and safety laws;
(i) keep all materials, equipment, documents and other property of OSMC (OSMC Materials) at the Client’s premises in safe custody at its own risk, maintain OSMC Materials in good condition until returned to OSMC, and not dispose of or use OSMC Materials other than in accordance with OSMC’s written instructions or authorisation;
(j) provide a list of Individuals who will be participating in the Services to the Practitioner before the start of any Session;
(k) ensure that any Individuals receiving the Services will arrive on time for any Session and when required will sign a medical consent form prior to any Session; and
(l) comply with any additional obligations as set out in the Booking Form.5.2 If OSMC’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, OSMC shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays OSMC’s performance of any of its obligations;
(b) OSMC shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from OSMC’s failure or delay to perform any of its obligations as set out in this clause 2; and
(c) the Client shall reimburse OSMC on written demand for any costs or losses sustained or incurred by OSMC arising directly or indirectly from the Client Default.
6. Fees and payment
6.1 In consideration of the provision of the Services by OSMC, the Client shall pay the Fees as specified in the Booking Form together with Value Added Tax (VAT) if applicable. The Fees are subject to change if the Booking Form is based on incorrect or incomplete information provided by the Client.
6.2 The Booking Form shall specify whether the Fees shall be on a time and materials basis, a fixed price basis or a combination of both. Clause 6.3 shall apply if OSMC provides the Services on a time and materials basis and clause 6.4 shall apply if OSMC provides the Services for a fixed price. The remainder of this clause 6 shall apply in either case.
6.3 Where the Fees are calculated on a time and materials basis:
(a) the Fees shall be calculated in accordance with OSMC’s hourly and daily fee rates, as set out in the Booking Form; and
(b) OSMC’s hourly and daily fee rates may be amended from time to time by OSMC giving not less than one months’ written notice to the Client.
6.4 When the Services are provided for a fixed price the total price for those Services shall be the amount(s) set out in the Booking Form.
6.5 OSMC shall be entitled to charge the Client for such travel and other expenses as have been agreed by the parties in advance.
6.6 If the Practitioner considers that the number of hours agreed for the provision of Services will over run due to delay or lateness or any other reason on the part of the Client or the Individuals, and the Practitioner is available for additional time, the Client may contact OSMC by telephone in order to request additional Practitioner time to provide the additional Service for which the Client will be charged an additional Fee by OSMC. It shall be at OSMC’s absolute discretion to accept the Client’s request for any additional Practitioner time.
6.7 The Client shall make payment of the Fees and any travel or other expenses as agreed with OSMC:
(a) at least ten (10) days before the date that OSMC will start providing the Services or immediately if the date is less than ten (10) days away; and
(b) in full and in cleared funds to OSMC’s bank account as detailed on its invoice to the Client; and
(c) time for payment shall be of the essence of the Contract.
6.8 Notwithstanding clause 6.7, for Recurring Bookings and Annual Programmes:
(a) payment for the first month is due ten (10) days prior to the first date that the Services are to be provided by OSMC or immediately if the date is less than ten (10) days away; and
(b) for subsequent months, OSMC shall invoice the Client monthly in arrear and each invoice shall be payable within thirty (30) days of receipt of the invoice.
6.9 If it is agreed in advance in writing between OSMC and the Client that any Individuals shall pay a proportion of the Fees for any Session, the Client shall remain wholly liable for the Fees. Any outstanding amounts in relation to such Session shall be payable immediately by the Client following the provision of the Services.
6.10 If the Client fails to make a payment due to OSMC under the Contract by the due date, then, without limiting OSMC’s remedies under clause 12, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10 will accrue each day at 4% a year above the Bank of England’s base rate, but at 4% a year for any period when that base rate is below 0%.
6.11 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.1 OSMC reserves the right to cancel any part of the Services due to unforeseen circumstances (for example Practitioner illness or unavailability). If OSMC cancels any part of the Services OSMC shall offer alternative dates for performance of that part of the Services or a full refund for that part of the Services but OSMC shall not be liable to the Client for any additional costs.
7.2 If the Client wishes to cancel any Services, the Client must notify OSMC in writing and then the following scale of charges will apply and will be deducted from any refund due to you:
(a) More than seven (7) Business Days’ notice in writing of cancellation – 10% of the Fees set out in the Booking Form;
(b) Less than seven (7) (but more than three (3)) Business Days’ notice in writing of cancellation – 50% of the Fees set out in the Booking Form; and
(c) Less than three (3) Business Days’ notice in writing of cancellation – 100% of Fees set out in the Booking Form.
7.3 Payment of any refund which may be due to the Client under this clause 7 will be made to the Client within fourteen (14) Business Days of the cancellation using the same method of payment the Client used to pay for the cancelled Services.
8. Changes to Services
8.1 If the Client wishes to make changes to any Services at any time, the Client must notify OSMC in writing and it shall be at OSMC’s absolute discretion to accept the requested changes and to apply an administration charge of a minimum of 10% of the Fees for the Services set out in the original Booking Form.
9. Intellectual property rights
9.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by OSMC.
9.2 OSMC grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy the Deliverables for the purpose of receiving and using the Services and the Deliverables in its business for the Individuals participating in the Services provided.
9.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 2.
9.4 The Client grants OSMC a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to OSMC for the term of the Contract for the purpose of providing the Services to the Client.
10. Data protection
10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and OSMC is the processor.
10.3 Without prejudice to the generality of clause 1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to OSMC for the duration and purposes of the Contract.
10.4 Without prejudice to the generality of clause 10.1, in relation to any personal data provided by the Client to OSMC in connection with this agreement, the Client shall:
(a) at all times comply with Data Protection Laws in connection with the processing of such personal data;
(b) ensure that all instructions given by it to OSMC in respect of such personal data shall at all times be in accordance with the Data Protection Legislation;
(c) indemnify and keep indemnified OSMC against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to any data subject, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Client of its obligations under this clause 10.
10.5 Without prejudice to the generality of clause 1, OSMC shall, in relation to any personal data processed in connection with the performance by OSMC of its obligations under the Contract:
(b) if OSMC believes that any instruction received by it from the Client is likely to infringe Data Protection Legislation, promptly inform the Client and be entitled to cease to provide the Services until the parties have agreed appropriate amended instructions which are not infringing;
(c) ensure that all OSMC’s employees, agents, consultants, or subcontractors who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) the Client or OSMC has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) OSMC complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) OSMC complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
(e) assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
(f) at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Contract unless required by applicable law to store the personal data.
11. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
11.1 This clause sets out OSMC’s entire financial liability (including any liability for the acts or omissions of its employees, agents, consultants and sub-contractors, including the Practitioners) to the Client in respect of:
(a) any breach of the Contract; and
(b) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in the Contract limits OSMC’s liability for anything which cannot legally be limited, including liability for:
(a) death or personal injury caused by OSMC’s negligence;
(b) OSMC’s fraud or fraudulent misrepresentation; and
(c) OSMC’s breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.4 Subject to clause 2, OSMC’s total liability to the Client shall not exceed the total fees paid by the Client to OSMC in any twelve month period prior to the relevant claim arising.
11.5 Subject to clause 11.2 in no event shall OSMC be liable for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; or
(g) indirect or consequential loss.
11.6 This clause 11 shall survive termination of the Contract.
12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one (1) months’ written notice.
12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that party being notified in writing to do so;
(b) the other party becomes insolvent, is declared bankrupt or goes into liquidation, or passes a resolution for winding up (other than for the purposes of amalgamation or reconstruction) or if a court shall make an order to that effect or shall have a receiving order made against it;
(c) 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
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without affecting any other right or remedy available to it, OSMC may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of Control of the Client.
12.4 Without affecting any other right or remedy available to it, OSMC may suspend the supply of Services under the Contract or any other contract between the Client and OSMC if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(d), or OSMC reasonably believes that the Client is about to become subject to any of them.
12. Consequences of termination
13.1 On termination of the Contract:
(a) the Client shall immediately pay to OSMC all of OSMC’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, OSMC shall submit an invoice, which shall be payable by the Client immediately on receipt; and
(b) the Client shall return all of OSMC Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then OSMC may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
13.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
14. Force majeure
14.1 A party shall not be liable if delayed in or prevented from performing its obligations due to force majeure, provided that it;
(a) promptly notifies the other of the force majeure event and its expected duration; and
(b) uses reasonable endeavours to minimise the effects of that event.
14.2 If, due to the force majeure event, a party:
(a) is unable to perform a material obligation; or
(b) is delayed in or prevented from performing its obligations for a continuous period exceeding fourteen (14) days or a total of more than thirty (30) days in any consecutive period of sixty (60) days
the parties shall, within thirty days (30), renegotiate the Contract to achieve as nearly as possible, the original commercial intent.
15.1 Assignment and other dealings.
(a) OSMC may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of OSMC.
(a) Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, clients or suppliers of the other party, except as permitted by clause 15.2(b).
(b) Each party may disclose the other party’s confidential information
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
15.3 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
15.4 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and agreed by the parties (or their authorised representatives).
15.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.6 Severence. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, 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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Booking Form or such email address as the parties may have notified to each other from time to time for the purposes of this clause.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by email on receipt of a return email from the other party.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
15.8 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
15.9 Governing law and Jurisdiction. This Contract is governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales to settle any dispute or claim arising from this contract.
Last Updated 05/02/2019