This Therapist Agreement (Agreement) governs the use of the Massage Me Now mobile application and the Massage Me Now website(Application) which are owned and operated by Massage Me Now Pty Ltd ACN 619 151 058 (Massage Me Now).
The Application allows individuals and businesses (Customers) to browse, book and purchase massage services with an independent third-party massage therapist (you).
This agreement is entered into between you and Massage Me Now. By clicking ‘I Agree’ on this Agreement or by using or continuing to use the Application you accept that this Agreement applies to your use of the Application.
You understand that you provide massage services (Services) on your own behalf and you are not an employee, contractor or agent of Massage Me Now.
You understand and agree that Massage Me Now has no control over and is not responsible for the conduct of the Customers in receipt of the Services.
When the Services are booked, you are entering into a contract directly with the relevant Customer and Massage Me Now is not party to this contract.
You authorize Massage Me Now to act as your agent, solely for the purpose of arranging the Services to be provided by you to the Customer and collecting payment for such Services.
Your Account obligations
In order to access the Application, you will be required to create an account (Account). Access to your Account will commence on the day the Account is created and will continue on an ongoing basis unless deactivated or cancelled by you, or Massage Me Now.
By creating an Account with Massage Me Now and using the Application, you accept and agree that:
- you are at least 18 years of age;
- creation of an Account requires you to submit to Massage Me Now certain personal information, such as your name, e-mail address, mobile number and your bank account details for payment;
- all information you provide to Massage Me Now in relation to your Account is true and accurate and you will regularly update your Account to reflect any changes to this information;
- any failure to maintain accurate, complete, and up-to-date information in relation to your Account, including having an invalid or expired payment details on file, may result in your inability to access and use the Application;
- you are responsible for ensuring that your Account is not accessed by anyone but you, this includes creating secure credentials and keeping them safe;
- you will only use the Application for its intended purpose of booking Services with Customers and receiving payment for Services;
- the Application is not to be used to arrange for the provision of any sexual services;
- you will use the Application in accordance with this Agreement and all applicable laws and regulations, including the Privacy Act 1988 (Cth)(the Act);
- you must not create more than one professional Account;
- you will be required to provide proof of identity and qualifications to access or use your Account and you agree that you may be denied access to or use of the Services if you refuse to provide this;
- you will not sell, license or otherwise transfer your Account without our prior consent;
- you are responsible for all activities that occur or are submitted through your Account;
- you will promptly advise us of any unauthorised use of your Account; and
- you will not attempt, or permit another to attempt, unless expressly permitted by Massage Me Now, to:
- circumvent, remove or alter any security or other protective measures used in connection with the Application;
- remove any copyright or trademark from any part of the Application;
- reproduce, modify, prepare derivative works based upon, distribute, licence, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Application;
- decompile, reverse engineer, disassemble, access the source code of, manipulate, impair or disable the Application in any way;
- attempt to gain unauthorized access to or impair any aspect of the Application and its related systems or networks; or
- use the Application to send unsolicited advertising materials.
Your Service Obligations
When providing the Services you agree that you will not:
- violate this Agreement or any rules set by Massage Me Now regarding the provision of the Services;
- violate any law or regulation;
- engage in any behaviour that is unsafe, abusive, harassing, indecent, profane, obscene, hateful or otherwise objectionable, including sexual conduct;
- stalk, harass or harm any Customer or agent, employee or representative of Massage Me Now.
You understand that if any of the above obligations are breached, Massage Me Now has the right to, but is not obliged to, cancel your Account immediately without payment for any amount due.
Massage Me Now may create and distribute promotional codes that may be used in conjunction with the Services (Promotional Codes).
Massage Me Now reserves the right to cancel or disable any Promotional Codes at any time.
Contract between you and the Customer
Massage Me Now will assist you to book Services with a Customer. The Customer will be able to browse the selection of Therapists and different Services available and request an appointment with you through the Application (Service Request).
You will receive a push notification that you have received a Service Request. If you accept the Service Request, the Customer will receive a push notification and SMS that confirms the appointment (Acceptance Notice). The Service will be booked at the time specified in the Acceptance Notice (Service Booking).
Alternatively, you can either decline or suggest another time for the Service.
Once you have sent an Acceptance Notice, you and the Customer are deemed to have entered into a contract for the provision of Services by you (Therapist Contract). Massage Me Now is not a party to this contract.
You will either travel to the Customer or the Customer will travel to you to receive the Services. You must specify your preference in your Account and in the Service Request including the address to which the Customer must travel (if applicable). The determination of the location at which the Service is provided is determined at your discretion. Massage Me Now may cancel a Service Booking if they do not believe the nominated location is safe or otherwise appropriate for the Services.
You understand that a Service Booking will result in a payment to you for the Services you provide to a Customer (Service Charge). The Service Charge for any Services is the amount you specify as such via your Account at the time the Service Request is made. Massage Me Now will collect the Service Charge on your behalf each time a Customer purchases your Services via the Application.
You appoint Massage Me Now as your payment collection agent for the purpose of accepting Service Charges from Customers on your behalf. You agree that a payment of Service Charges made by the Customer through Massage Me Now is to be considered the same as payment made directly to you and you are to continue with the Service Booking as if you have directly received the Service Charge.
The Service Charge will be transferred to your bank account (as nominated via the Account) within 72 hours of a completed Service, provided that Massage Me Now has not received a complaint from the relevant Customer in relation to those Services, in which case payment will be withheld pending investigation of that complaint by Massage Me Now. The invoice for such a Service Charge will be available through Massage Me Now’s third party payment processing service provider, Stripe, Inc. (the Payment Gateway).
Massage Me Now utilises the Payment Gateway to:
- collect Service Charges;
- pay Service Charges less any Booking Fees to you (Balance Service Charge); and
- make partial and full refunds.
In consideration for acting as your payment agent, you authorise Massage Me Now to retain and appropriate to itself 10% of each Service Charge (Booking Fee). Except where required by law or specified otherwise in this agreement, the Booking Fee is non-refundable. A recipient generated tax invoice will be issued to you for the Booking Fee via the Account.
You understand that payment to you of the Balance Service Charge is subject to and conditional upon successful receipt by Massage Me Now of the Service Charge from the Customer and the fulfilment of the Service Booking by you.
You must advise us by updating your Account if the Service Charge is to vary at any time. Massage Me Now reserves the right to remove or revise the Booking Fee for any or all of the Services provided by you. Any revised Service Charges and Booking Fees will apply to future Service Requests that have not already been accepted as a Service Booking.
Massage Me Now reserves the right to cancel a Service Booking where a Service Charge is not processed, declined or where Massage Me Now otherwise reasonably believes that payment will not be received.
You may reschedule a Service Booking where reasonably necessary due to unforeseen circumstances (as determined by Massage Me Now in its absolute discretion). If you need to reschedule a Service Booking you must provide the Customer with notice of this via the Application no later than 24 hours before the Service Booking is due to be fulfilled. In the notice you must provide the Customer with potential other dates for the provision of the Services. If the Customer is unable to receive the Services on the rescheduled date, Massage Me Now will refund any Service Charge, including the Booking Fee to the Customer and the Service Booking will be cancelled. If you cancel a Service Booking (without rescheduling) or if you fail to provide any Services, or fail to provide Services in accordance with this agreement, Massage Me Now (in addition to its other rights under this agreement and at law) may withhold and appropriate to itself any amount otherwise payable to you, including any Balance Service Charge, as necessary to cover any costs and losses arising due to your failure.
If a Customer cancels a Service Booking no less than 24 hours before the time of the Service Booking, you can offer to the Customer to reschedule the Service Booking to another time or cancel the Service Booking. The Customer is not entitled to a refund of a Service Booking which is cancelled less than 24 hours before the scheduled Service Booking and you will receive the Balance Service Charge.
All prices quoted on the Application are in Australian Dollars. The Service Charge is inclusive of any taxes, including Goods and Services Tax applicable to the Services but exclusive of any additional charges or transaction fees which may be applied by the Payment Gateway or your card provider.
You are solely responsible for any information, comments, feedback, correspondence and any other type of information or content posted, published or otherwise disseminated or uploaded to the Application via your Account (User Content).
You acknowledge and agree that:
- your User Content must not be defamatory, false, misleading, illegal, obscene, threatening, pornographic, hateful, or offensive;
- your User Content must not infringe on the rights of third parties;
- Massage Me Now may access, review and subsequently remove your User Content without compensation to you if Massage Me Now believes it violates this Agreement, however Massage Me Now are under no obligation to do so;
- you will ensure that your User Content is accurate, true, correct and up to date at all times;
- your User Content may be accessed by other users to the extent permitted by your Account settings;
- Massage Me Now may monitor your User Content and use of the Application to assess compliance with this Agreement or investigate any complaint or dispute;
- in the event of a dispute arising between you, Massage Me Now or other users regarding ownership of User Content, Massage Me Now’s determination will be final.
You warrant and represent to us each time you access the Application and provide the Services that:
- you have:
- an industry recognised, current qualification for the type of Service you provide (to the satisfaction of Massage Me Now);
- obtained current public liability and professional indemnity insurance with respect to your Services providing coverage for a minimum of [insert amount] in aggregate per year; and
- a, current, valid, unrestricted driver’s licence.
- you will ensure that the Services are provided with due care and skill, in a timely manner and in accordance with any applicable standards, laws and best industry practice;
- you have all facilities, equipment and other resources necessary to provide the Services in accordance with this agreement;
- you will ensure that any location which you propose to provide Services from is suitably safe and appropriate and that you are authorised to access and provide Services from that location;
- you will collect, use, store, disclose and otherwise handle all Personal Information which is utilised in connection with the Application, in accordance with the Act;
- by accessing or uploading any Personal Information of other users via the Application, you have the informed consent of that user to do so or are otherwise permitted by law to access that Personal Information;
- you will comply with any relevant legislation including but not limited to the Health Quality and Complaints Commission Act 2006and the National Code of Conduct for Health Care Workers (Queensland) 2015;
- you will not engage in any defamatory, misleading, illegal, obscene, threatening, pornographic, hateful, unprofessional or offensive conduct in the course of providing the Services;
- you will comply with the Association of Massage Therapists ‘Massage Therapy Code of Practice’;
- you will not access, or attempt to access, any Personal Information of other Massage Me Now users unless you have a genuine reason to do so, such as because you are that person’s Therapist;
- you will not use the Application or any Personal Information therein for any illegal, immoral or unlawful purpose;
- you will not offer or provide sexual services (the definition of ‘sexual’ is as determined by Massage Me Now in its sole discretion);
- you will not attempt to contact Customers other than directly via the Application.
The quality, availability and speed of delivery of the Application may vary from time to time due to a number of factors such as:
- your internet connection – an internet connection is required to access the Application. Bandwidth and data limits may vary depending on your provider. You are responsible for establishing an internet connection and for all internet access charges;
- your location – the Application’s accessibility may vary between countries and areas;
- updates – Massage Me Now updates the Application from time to time which may vary the functionality and performance of the Application. These updates may occur automatically;
- your device/s – you are responsible for ensuring your device is compatible with the Application. Compatibility may change over time;
- third party sites – some components of the Application may use and rely on the continued operation of third party software and sites to function (Third Party Software); and
- any other factors such as maintenance downtime, force majeure events, power outages, equipment malfunction and any circumstances beyond Massage Me Now’s control.
Therapist Reviews and Ratings
The Application provides a platform for Customers to comment and rate their experience with you providing the Services. A Customer can only post one review per Service Booking.
The ratings contained in the Application are for informational purposes only and do not constitute advice or recommendations about you or your Services.
By leaving a review, a Customer is documenting an opinion and any statements, advice or opinions made by a Customer are of the Customer only and do not form an opinion of Massage Me Now.
You must not threaten or bribe any Customer to leave a particular review about you or any other Therapist.
Subject to Australian Consumer Law, Massage Me Now reserves the right to include or exclude any Rating and take necessary steps to protect you, Customers and other users of the Application from any offensive, abusive, hateful, discriminatory or malicious content, including termination of Accounts.
To ensure the integrity of the Application, Massage Me Now will not remove or edit reviews where Massage Me Now believes that doing so would be in breach of Australian Consumer Law.
Third Party Software
You may be required to install and use Third Party Software as part of the functionality of Massage Me Now. Massage Me Now are not responsible for any Third Party Software and your use and reliance on Third Party Software is at your own risk. Third Party Software may vary from time to time and your use may be subject to terms and conditions set by that third party which you must comply with.
Subject to your compliance with this Agreement, Massage Me Now grant a limited, non-exclusive, revocable, non-transferable license to you to use the Application, via your Account, for the purposes permitted by this Agreement. Aside from this limited licence, all present and future intellectual property rights worldwide including without limitation, any registered or unregistered copyright, trademark, patent, design, trade secret, know-how, business name or other proprietary right including improvements thereto (Intellectual Property Rights), in the Application are reserved to Massage Me Now and, where applicable Massage Me Now’s Third Party Software providers.
You retain any Intellectual Property Rights held by you in your User Content. You grant Massage Me Now a non-exclusive, royalty free, worldwide, perpetual licence to access, use, store, copy, reproduce, process, adapt, publish, transmit, sublicense, improve and display your User Content for the ongoing provision and improvement of Massage Me Now, our research and data collection purposes and monitoring compliance with this Agreement. You agree not to enforce any moral rights, as defined in the Copyright Act 1968 (Cth),in and to the User Content where used by Massage Me Now under this licence. You warrant that you have the right to grant Massage Me Now this licence.
In respect to the Application as downloaded from an App Store such as Google Play or from the Apple App Store, you will only use the Application:
- on a product that runs the operating system on which it was intended; and
- as permitted by the ‘Usage Rules’ located in the respective App Store.
Ownership of all data, excluding User Content, which provides descriptive, technical, statistical and other metadata type information regarding your use of Massage Me Now (Metadata), vests in us upon creation.
You may cease to use the Application by deactivating or deleting your Account at any time and where applicable, uninstalling the Application. User Content pertaining to you or other users, including Personal Information, may remain accessible to Massage Me Now and other users via the Application after termination. Massage Me Now may, but are not obliged to, retain back up copies of your User Content. You are responsible for retaining your own copies of any User Content outside of the Application.
In addition to any other rights Massage Me Now may have, if we suspect you or a third party are using your Account or the Application improperly, illegally or otherwise in breach of this Agreement, Massage Me Now reserves the right to immediately deactivate your Account and access to the Application without notice to you. Massage Me Now will not be liable to you for any loss or damage as a result of termination or suspension.
Massage Me Now may deactivate or delete your Account if you do any of the following:
- breach any term of this Agreement;
- receive multiple negative reviews, which in the view of Massage Me Now shows your incompetence to provide the Services;
- violate any law or regulation;
- engage in any behaviour that is abusive, harassing, indecent, profane, obscene, hateful or otherwise objectionable, including sexual misconduct;
- stalk, harass or harm any Customer or agent, employee or representative of Massage Me Now; or
- if Massage Me Now, in their sole discretion, believes that you are not suitable to provide the Services.
You may terminate this agreement at any time by deactivating or deleting your Account. If any Service Bookings have been paid and you have terminated the agreement before the time of Service, Massage Me Now reserves the right to retain the Service Charge for the Service Booking.
Limitation of Liability
To the maximum extent permitted by law, Massage Me Now and the Application are provided ‘as is’ and ‘as available’ with all faults and without any express or implied warranty, guarantee or representation made by us as to the accuracy, reliability, security, availability, accessibility or completeness thereof. In particular, Massage Me Now do not guarantee, warrant or represent that the Services will produce any kind of outcome or benefit, that any Customers will purchase your Services or that the Application will be fit for any particular purpose or will meet any description, expectation or standard.
Massage Me Now disclaim, and you hereby release us from, all liability for any loss or damage (including, but not limited to, special, indirect, consequential loss or damage, loss of profits or loss of data), howsoever arising directly or indirectly in connection with this agreement, Massage Me Now and the Application.
MASSAGE ME NOW’S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL BOOKING FEES YOU HAVE PAID TO US IN THE 12 MONTHS PRIOR TO THE LIABILITY ARISING OR, IF NO SUCH PAYMENTS HAVE BEEN MADE, $100.
You acknowledge that it is your responsibility to take reasonable precautions in all interactions with any third party or Customer you interact with in or through the Application.
To the fullest extent permitted by law, Massage Me Now hereby disclaims responsibility for all liability howsoever arising in connection with any of the Services provided to the Customers. You bear sole liability for all of the Services provided.
Massage Me Now do not guarantee, warrant or represent that that Application is provided error free or uninterrupted or that the Application is free of viruses or other spyware that could damage or destroy your device or User Content.
This Agreement does not limit any non-waivable rights that you may be entitled to by law. Where applicable to you, the Application comes with guarantees that cannot be excluded under the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).You may be entitled to a resupply or refund for a major failure of the Application. You may also be entitled to compensation for any reasonably foreseeable loss or damage caused by a failure of the Application. Where our liability cannot be fully excluded by law, Massage Me Now limits our maximum liability at our option, to:
- the supply of the Application again; or
- the payment of the cost of having the Application supplied again.
You agree to indemnify and hold Massage Me Now harmless from and against any liability, loss, damage, cost (including legal costs), expenses or other liability (Loss) we suffer or incur arising out of or in connection with any claim or demand against us by you or any third party, which arises from or is in connection with your:
- provision of the Services, including, without limitation, any injury, death, loss or damage of any kind arising in connection with your Services;
- interactions with the Customers;
- use of the Application;
- User Content;
- breach of this Agreement;
- failure to comply with any law; or
- negligent or unlawful act or omission.
The indemnity given by you is limited to the extent that any gross negligence by us has contributed to the Loss arising.
Massage Me Now are not responsible for infringement of any intellectual property rights by users. However, Massage Me Now reserve the right to remove any infringing content. If you believe your work has been reproduced or distributed via the Application in a way that constitutes infringement of copyright, please notify us via email@example.com. We will respond to legitimate requests. You may also wish to contact the user directly to resolve the issue where possible.
Except where expressly provided otherwise in this Agreement or where Massage Me Now are required to notify you by law, we may change or cease to provide the Application, and any features thereof, at any time without notice or liability to you. If this occurs Massage Me Now will pay to you any Balance Service Charge still held by us, provided you have complied with this Agreement. This Agreement may also be varied from time to time. You are responsible for regularly reviewing any changes to this Agreement as they will apply to your continued use of the Application.
- You may only assign your rights and obligations under this Agreement with our written consent;
- Massage Me Now may subcontract or assign to any party our rights and obligations under this Agreement;
- This document embodies the entire agreement between the parties;
- The failure of a party to require full or partial performance of a provision of this Agreement does not affect the right of that party to require performance subsequently;
- The Application may be unavailable at times to provide for upgrades and maintenance. Massage Me Now will endeavour to provide prior notice to Customers of this unavailability but this cannot be guaranteed and Massage Me Now reserves the right to amend, suspend or withdraw the Application at any time;
- A right under this Agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver;
- The laws of Queensland, Australia govern this Agreement;
- A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause continue in force;
- Unless otherwise expressly stated in this Agreement, any notice or consent to be given to a party under this Agreement is only effective if given in writing (including via email or the Application), to that party;
- This Agreement shall prevail to the extent of any inconsistency between it and any other document associated with the transactions contemplated by this Agreement;
- This Agreement does not create a relationship of employment, trust, agency, or partnership between the parties nor constitutes or may be construed to constitute a party as the representative of another party; and
- The ‘Limitation of Liability’ and ‘Indemnity’ sections and User Content licence granted to us under the ‘Intellectual Property’ section of this Agreement, survive termination of this Agreement.
If you have comments, concerns or complaints regarding this Agreement, the Application or your Account please contact us directly via firstname.lastname@example.org Massage Me Now will endeavour to get back to you as soon as possible, but we ask that you allow us up to 30 days to respond before taking any other steps.
These documents are designed to be presented as ‘click wrap’ agreements where Customers and Therapists need to click ‘I Accept’ before they are able to access Massage Me Now.
Please ensure that this is conveyed to the Customer clearly prior to booking.
Please confirm that this will be provided.
This should cover continuing professional development obligations, professional boundaries, consent etc. Please confirm if you would like to use this code of conduct.
The Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 sets out certain consumer guarantees that cannot be contracted out of, such as a requirement for services to perform to a certain acceptable standard. These guarantees cannot be contracted out of. Accordingly, payment of refunds may be required where Healing Hub does not meet the standards of a consumer guarantee (e.g. if it does not process purchases properly).
There may also be similar legislation in other countries which effects your ability fully disclaim liability.