Yes, thank you. Now the main issue is that a contract can contain various provisions, which can be binding even if common sense would dictate that they should not be. Often the terms will be binding assuming that both parties had agreed to them - you would have basically been issued with these terms at the outset and had the opportunity to consider them before deciding on whether to enter into this agreement based on them. The nursery can always argue that you were given these terms and by proceeding with the services you agreed to them, even if you never actually read them.
There are limited circumstances when contractual terms may not actually be binding, even if they are contained in a contract and had been accepted by the parties. This is usually under consumer legislation, which prohibits the use of what are deemed ‘unfair terms’. The issue with that is that it can be quite an open phrase as there is no specific definition of what makes a term unfair.
From a Government paper: “Generally, contract terms and notices are unfair if they put the customer at an unfair disadvantage. The law applies a fairness test that starts by asking whether the wording used tilts the rights and responsibilities between the customer and the trader too much in favour of the trader.
If your customer cancels and it’s not your fault, you’ve got the right to protect yourself, but what you keep must take into account what your business is actually losing as a result. It must not be excessive.”
In your circumstances you can argue that the reason you cancelled was because of the provider’s fault and even if there was a clause allowing them to keep the payments, that they should at the very least refund some of these because they only have to cover themselves for any losses incurred. This can cover the overheads which would have bee chargeable anyway, but they have to remember that they will not be providing a service so will use less manpower, fewer resources, etc. Therefore, the losses they incur will not be equal to the full amount you paid.
What this means is the full fee may not necessarily be recoverable as they can still consider covering any losses incurred as a result of your cancellation. However, a proportion should still be recoverable.
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