BACKGROUND

Get Blys Pty Ltd (ACN 611 428 927) (“Blys”) operates an online platform (the “Service”) located at www.getblys.com and www.getblys.com.au (“Website”) and mobile applications, through which customers (“Users”) can book a health and wellness professional (“Massage Therapist”, “Blys Provider”) for the provision of professional massage therapy services (“Massage”, “Massage Therapy Services”), by submitting a Booking Request. Blys then matches the most suitable Massage Therapist from its database of massage therapists (“Blys Network”) to the Booking Request.

The Massage Therapist is in the business of providing Massage Therapy and other therapeutic treatments, including but not limited to Remedial Massage, Sports Massage, Swedish/Relaxation Massage and Pregnancy Massage.

Blys enters into agreements with Users for and on behalf of Therapists for provision of Massage to Users.

Users enters into two contractual relationships, the first contract being with Blys, governing the User’s access to and use of the Service (“Terms”, “Terms of Service”), and the second contract being between Blys as agent for and on behalf of the Massage Therapist and the Users for the provision of the Massage (“Massage Agreement”).

The User is deemed to have entered into this Contract and a contractual relationship with Blys through the use of the Service.

1. Definitions

1.1. In these Terms of Service (including the recitals), unless the context otherwise requires:

“Booking” means the booking made by you on the Service for the provision of Massage;

“Booking System” means the online system which enables you to make a Booking;

“Massage Therapist” means an independent provider of massage therapy, and other therapeutic services.

“Massage Therapy Fee” means the fee, as advised by Blys from time to time, (inclusive of goods and service tax, if applicable) for the Massage charged and invoiced by Blys, and collected from the User;

“Intellectual Property Rights” means all present and future rights anywhere in the world in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights whether existing before or after your access to the Service;

“Site Content” means all material, content and information made available on the Service and/or Blys’s official social media accounts, including but not limited to feedback, reviews and ratings provided by Users and Massage Therapists, any written text, graphics, images, photographs, logos, trademarks, audio material, video material and any other forms of expression;

“you”, “your” means you as the user of the Website or mobile application.

1.2. In these Terms of Service, unless the context otherwise requires:

(a) headings are for convenience only and do not affect its interpretation or construction;

(b) the singular includes the plural and vice versa;

(c) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to these Terms;

(d) words importing a gender include other genders;

(e) the word “person” means a natural person and any association, body or entity whether incorporated or not;

(f) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h) all monetary amounts are in Australian currency;

(i) a reference to time refers to Eastern Standard Time;

(j) “includes” is not a word of limitation; no rule of construction applies to the disadvantage of a party because these Terms of Service are prepared by (or on behalf of) that party;

(k) a reference to any thing is a reference to the whole and each part of it;

(l) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and

(m) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document.

2. Terms and Conditions

2.1. Access to and use of this Service is governed by these Terms.

2.2. Blys periodically reviews the Terms and reserves the right to change the Terms, without any notice to you, by updating this document. You should review this document, as available on the Website and mobile applications, regularly as any changes to the Terms take immediate effect from the date of the publication (“Last Updated”) on our website on www.getblys.com.au/terms. Your continued use of the Website and/or mobile applications after any such changes are made will be deemed to constitute your acceptance of those changes.

2.3. You acknowledge that any hyperlinks or other redirection tools taking you to other operated by third parties that appear on the Website or mobile applications (“Third Party Sites”) are not controlled by Blys and do not form part of the Website or mobile applications. You agree that you will not hold Blys liable or in any way accountable for anything that occurs on any Third Party Site.

3. Acceptance

3.1. By using this Website or mobile applications and make a Booking, you acknowledge that you’ve read, understood and agreed to the Terms.

3.2. You accept the Terms by using the Service.

3.3. Notwithstanding clause 3.2, you may not accept the Terms or access the Website or mobile applications if:

(a) you are not of legal age to form a binding contract with Blys; or

(b) you are a person barred from entering into contracts under legislation,

in which case, you must immediately leave the Website or mobile applications.

3.4. By accepting the Terms, you agree that this is clear and unequivocal proof that the Terms are not unconscionable, that there is no unfair bargaining power or position, that there is no duress, and that you have carefully read and understood the Terms.

3.5. If you do not understand any part of the Terms you should seek independent legal advice.

4. Personal Information & User Profile

4.1. You will be required to provide your personal information, including your name, address, number and payment details on the Website or mobile applications in order to make a Booking (“User Profile”).

4.2. You will be issued with a username and password which are linked to your User Profile. The username and password are personal to you and are not transferable. You are responsible for all information posted on or transmitted via the Booking System by anyone using your username and password and any payments due for the Massage acquired through the Booking System by anyone using your username and password. You should notify us of any breach of security of your username and password immediately.

4.3. You confirm that you are at least 18 years of age and possess the legal authority to use the Booking System in accordance with these Terms. You also agree that all information supplied by you in using the Website or mobile applications and the Booking System will be true and accurate at all times.

4.4. Blys may delete or block User Profiles at its own discretion. Blocked users are prohibited from setting up a new User Profile.

5. Booking System

5.1. To make a Booking you must provide us your personal details (User Profile) and use the Booking System to request a Booking. You will receive a Booking confirmation, tax invoice/receipt and the Service Agreement that constitutes the contractual relationship between you and Blys as agent for and on behalf of the Massage Therapist that you are deemed to have entered into for the provision of the Massage.

5.2. Blys will then make your contact details, location, requested time and the scope of the Massage available to the Blys Network. An available Massage Therapist will then confirm their acceptance of the Booking.

5.3. You are able to request a preferred Massage Therapist. Blys will take your preference into account when facilitating the Massage, however a specific Massage Therapist cannot be guaranteed and will depend on the Massage Therapist’s availability.

5.4. When a Booking is confirmed by a Massage Therapist, Blys will notify you.

5.5. If the requested Massage Therapist cannot fulfill your Booking, Blys will arrange an alternative Massage Therapist for the requested Booking time.

5.6. If the requested Booking cannot be facilitated, Blys will arrange an alternative time for the Massage with you and a Massage Therapist.

5.7. You are not permitted to engage the Massage Therapy Services of a Massage Therapist other than through the Booking System on the Website or mobile applications.

5.8. The Booking System is provided on the Website or mobile applications to enable you to make legitimate Bookings and to make payments for those Bookings, and for no other purposes.

5.9. Any speculative, false or fraudulent Booking is prohibited. You agree that the Booking System will only be used to make legitimate Bookings for you or another person for whom you are legally authorised to act. You acknowledge that abuse of the Booking System may result in you being denied access to the Booking System.

5.10. Blys has the right at any time to add, change or withdraw functions available on the Website or mobile applications at its own discretion.

6. Payment

6.1. You agree that at the time of the first Booking, your payment details will be transferred to Blys’s secure payment gateway. Upon the successful Booking, Blys will take payment for the Booking. You must ensure that sufficient funds are available for debit at that time. Fees and charges relating to insufficient funds at time of debit will be passed onto you.

6.2. If you’re making a recurring Booking, Blys will take the initial payment for the Massage immediately, and all recurring payments 3 days before the anniversaries of the initial payment. You must ensure that sufficient funds are available for debit at that time. Fees and charges relating to insufficient funds at time of debit will be passed onto you.

6.3. On receipt of the Massage Therapy Fee from the User, Blys will hold the Massage Therapy Fee on behalf of the Massage Therapist until such time as it accounts to the Massage Therapist, pays a refund to you (if you are entitled to a refund) or credits payment of our fees and charges. No interest will be payable by Blys to you or the Massage Therapist on amounts held by Blys.

6.4. Blys, on behalf and in the name of the Massage Therapist, will issue you with a tax invoice.

6.5. If the User is entitled to a refund, Blys will process the refund within 48 hours of the right to the refund arising.

7. Changes and Cancellations

7.1. You can cancel or amend a Booking free of charge, up to 24 hours before the Massage is scheduled to begin.

7.2. If you cancel or amend a Booking within 24 hours before the Massage is scheduled to begin, you will have to pay cancellation costs equivalent to the 50% of the value of the total booking fee.

7.3. If you cancel or amend a Booking within 4 hours before the Massage is scheduled to begin, you will have to pay cancellation costs equivalent to the 100% of the value of the total booking fee.

7.4. You cannot amend, extend or cancel a Booking during the performance of the Services.

7.5. If the Massage Therapist is unable to fulfil a confirmed Booking (in full or part), Blys will attempt to find you a replacement Massage Therapist. If we cannot find you an alternative Massage Therapist, we will reschedule your Booking to a new time which suits you. If we cannot find a suitable time for you, you may cancel the Booking at no charge.

8. Massage Therapy Services

8.1. Blys operates the Service as a third party facilitator for the Massage Therapy Services and provides you with the platform to purchase the Massage Therapy Services.

8.2. Blys is not an agent or broker for you. You enter into any transaction with Blys on behalf of a Massage Therapist entirely at your own risk.

8.3. Blys uses their best efforts to monitor the Massage Therapy Services offered by a Massage Therapist. However, Blys does not make any representation as to the safety, quality, condition or description of any products used or Massage Therapy Services provided by Massage Therapist. Any issues regarding safety, quality, condition or description should be notified to Blys, who will then pass the issue onto the Massage Therapist designated to your Booking.

8.4. The services offered by Massage Therapists on the Blys platform are strictly therapeutic. Any suggestions or comments by Clients that are in sexual nature before, during or after the Booking, will result in termination of the Booking with no refund, and will be reported to authorities as a matter of sexual harassment.

8.5. All bookings are subject to Massage Therapist availability.

9. Termination

9.1. Blys may at its discretion terminate your use of, or access to, the Website or mobile applications at any time. If this happens we may notify you by email. If your use of the Website or mobile applications is terminated:

(a) you are no longer authorised to access the Website or mobile applications or use any other Blys services with the email address you used to register with the Website or mobile applications or any other email address you possess;

(b) you will continue to be subject to and bound by all restrictions imposed on you by the Terms; and

(c) all licences granted by you and all disclaimers by Blys and limitations of Blys’s liability set out in the Terms or elsewhere on the Website or mobile applications will survive termination.

9.2. You may terminate this agreement by emailing Blys at hello@getblys.com. Blys will disable your User Profile within fourteen (14) days of receipt of the email requesting termination of your User Profile.

9.3. Blys reserves the right to deduct any outstanding fees and charges owing to Blys and/or the Massage Therapist on your User Profile prior to disabling it.

10. Dispute Resolution Policy

10.1. Blys will use reasonable endeavours to mediate any dispute concerning the use of the Website, mobile applications, or in relation to the Massages carried out by a Massage Therapist.

10.2. Although Blys retains the right to mediate any dispute between you and a Blys Provider, all disputes between you and such Blys Provider must ultimately between you and the Blys Provider directly.

11. Security of Payment

11.1. We have taken all practical steps from both a technical and systems perspective to ensure that all of your information is well protected. A secure payment gateway is used to process all transactions and credit card details. Blys does not give any warranty or make any representation regarding the strength or effectiveness of the secure payment gateway and is not responsible for events arising from unauthorised access to your information.

12. Privacy

12.1. In this clause Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent or can reasonably ascertained, from the information or opinion.

12.2. Blys collects and stores Personal Information you enter into the User Profile. Personal Information collected by Blys will be maintained in accordance with our Privacy Policy available on the www.getblys.com/privacy

12.3. You agree that Blys will disclose your Personal Information, including your name and address to the Massage Therapist in order for the Massage Therapist to carry out the Massage.

12.4. Both parties must abide by all relevant Australian Privacy Principles set out in the Privacy Act 1998 in their collection, use, disclosure and storage of Personal Information.

13. Intellectual Property

13.1. The Site Content is protected by copyright and Blys reserves all Intellectual Property Rights which may subsist in the Site Content and/or the Website and/or mobile applications.

13.2. By accepting the Terms, you are granted a non-exclusive licence to:

(a) view the Website and/or mobile applications;

(b) print pages from the Website and/or mobile applications in its original form; and

(c) download any material from the Website and/or mobile applications for caching purposes only.

13.3. You must not, without Blys’s prior written consent which may be withheld at its absolute discretion:

(a) copy, republish, reproduce, duplicate or extract Site Content;

(b) redistribute, sell, rent or licence any Site Content; or

(c) edit, modify or vary the Site Content.

14. Acceptable Use

14.1. You must not use, or cause this Website or mobile applications to be used, in any way which:

(a) breaches any of these Terms;

(b) infringes Blys’s or any third party’s Intellectual Property Rights;

(c) is fraudulent, illegal or unlawful; or

(d) causes impairment of the availability or accessibility of the Website or mobile applications.

14.2. You must not use, or cause this Website or mobile applications to be used, as a medium which stores, hosts, transmits sends or distributes any material which consists of:

(a) spyware;

(b) computer viruses;

(c) Trojans;

(d) worms;

(e) keystroke loggers; or

(f) any other malicious computer software.

15. Indemnity and Liability

15.1. General Indemnity

You agree to indemnify Blys, on demand, against any claim, action, damage, loss, liability, cost, charge, expense or payment which Blys may pay, suffer, incur or are liable for, in relation to any act you do or cause to be done, in breach of these Terms.

15.2. General Limitation of Liability

We will not be liable to you in contract, tort or equity in relation to any direct, indirect or consequential loss you incur in relation to the contents or use of or reliance on Site Content or otherwise in connection with the Website or mobile applications.

15.3. Massage Therapy Services Liability

To the extent permitted by law, Blys will not be responsible and will be excluded from all liability, for any loss or damage whatsoever (including personal injury, loss of life and damage to property) that you or another person may suffer in connection with the offer or supply of (or default in supplying) the Massage Therapy Services.

15.4. Information Accuracy

You acknowledge and agree that some of the Site Content may be provided by way of blogs or comments made by other users of the Website or mobile applications, and that Blys does not accept any liability for the accuracy of such information or your reliance on the same. The Site Content is provided to you as general information only and is not intended to substitute or replace the advice of a duly qualified professional (where applicable).

15.5. Acceptance

By using this Website or mobile applications, you agree and accept that the indemnity and limitations of liability provided in this clause 16 are reasonable.

16. Warranties and Representations

16.1. The use of this Website or mobile applications is at your own risk. The Site Content and everything from the Website or mobile applications is provided to you on an “as is” and “as available” basis without warranty or condition of any kind.

16.2. None of Blys’s affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors make any express or implied representation or warranty about the Site Content or Website or mobile applications.

17. General Provisions

17.1. Any provision of, or the application of any provision of these Terms which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

17.2. Any provision of, or the application of any provision of these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

17.3. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these Terms.

17.4. These Terms shall be governed by and construed in accordance with the law for the time being applicable to New South Wales and you agree to submit to the non-exclusive jurisdiction of the Courts of New South Wales.