1. DEEMED ACCEPTANCE
1.1. By accessing and using the Platform, the Users agree to be bound by the Terms and Conditions set out herein.
1.2. If the Users do not wish to be bound by the Terms and Conditions, the Users may not access, display, use, download, otherwise copy or distribute the Content on the Platform, and/or make use of the Services.
1.3. Where provisions are highlighted in bold text, the User is required to pay special attention to such provisions as they have a serious impact on the User’s rights and TherapyNow wishes to draw the User’s attention thereto.
2.1. In these Terms and Conditions, unless inconsistent with or otherwise indicated by the context –
2.1.1. “Applicable Laws” means any and all laws applicable to the Services, the Sessions or the Counsellor, including but not limited to ECTA, the Health Professions Act No. 56 of 1974; POPI, and any rules, regulations, ethical guides, and codes of conduct prescribed by the Professional Bodies;
2.1.2. “Business Day” means any day that is not a Saturday, Sunday, or South African public holiday;
2.1.3. “Client” means any client who uses the Platform to book a Session or who has been introduced to the Counsellor via the Platform;
2.1.4. “Content” means any and all content displayed on the Platform at any given time, and shall include (but shall not be limited to) confidential information, client lists, literary works, marketing and business information, musical works, artistic works, sound recordings, cinematograph films, sounds and television broadcasts, program-carrying signals, proprietary works, published editions and computer programs, names, logos, trademarks, images, text, columns, graphics, photographs, illustrations and software;
2.1.5. “Counsellor” means individual counsellors who make use of the Platform to provide Services to Clients from time to time;
2.1.6. “ECTA” means the Electronic Communications and Transactions Act No. 25 of 2002;
2.1.7. “Intellectual Property” means rights in and in relation to any patent, design, trade mark, trade or business name (including all goodwill associated with any trade mark, or any trade or business name), rights in get-up, copyright (including rights to derivative works), database, domain name, circuit, design, and/or utility model, and including in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world, registered or unregistered;
2.1.8. “Parties” means TherapyNow, the Counsellors, the Clients and other Users and “Party” will mean any one of them as the context may indicate;
2.1.9. “Platform” means the online counselling services platform developed by TherapyNow and implemented to enable Counsellors to provide Services to Clients, found at www.therapynow.co.za;
2.1.10. “POPI” means the Protection of Personal Information Act No. 4 of 2013;
2.1.11. “Professional Body” means the Health Professions Council of South Africa (“HPCSA”); and/or the Association of Supportive counsellors and Holistic Practitioners; and/or the South African Council for Social Services Professions; and/or any other professional body that may be applicable to the Counsellors;
2.1.12. “TherapyNow” means Elizabeth Berk (Pty) Ltd t/a TherapyNow, registration number 2022/281383/07, a private company with limited liability, duly incorporated in accordance with the company laws of the Republic of South Africa;
2.1.13. “Session” means an online therapy session provided by means of video call, voice call, or messaging through Zoom, Google Meet, Whatsapp, or such other methods or platforms that TherapyNow may approve in writing;
2.1.14. “Services” means any form of counselling or support permissible by the Professional Bodies under which the Counsellor is authorised to offer his or her services including any Session;
2.1.15. “Session Fee” means the fee payable per Session, as indicated on the Platform;
2.1.17. “User(s)” means any person or entity using the Platform.
2.2. The clause headings in these Terms and Conditions have been inserted for reference purposes only and shall not affect the interpretation of any provision of these Terms and Conditions.
2.3. Words and expressions defined in any sub-clause shall, for the purpose of the clause of which the sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
2.4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive clause in the body of the Terms and Conditions, notwithstanding that it is only contained in this interpretation clause.
2.5. If any period is referred to in these Terms and Conditions by way of reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the day shall be the next succeeding Business Day.
2.6. The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Terms and Conditions shall not apply.
2.7. These Terms and Conditions shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
2.8. Expressions defined in these Terms and Conditions shall bear the same meanings in any annexure hereto which does not contain its own definitions.
3.1. This document sets out the Terms and Conditions of TherapyNow pertaining to the access and use of the Platform and the Content, information, products, services, and functions provided on the Platform.
3.2. The Client may use the Platform to receive Services and the Counsellor may use the Platform to provide Services, as and when required from time to time.
3.3. Notwithstanding anything to the contrary contained herein, it is specifically recorded that the Counsellor acts entirely independently in providing Services to the Clients. TherapyNow shall not provide advice, direction, or assistance in providing the Services to the Clients in any manner whatsoever, and TherapyNow’s involvement is limited to the provision of the Platform in order to connect the Counsellor with Clients.
Users shall be entitled to book Sessions with available Counsellors on the Platform against payment of the Session Fee as contemplated in clause 5.
5. SESSION FEES AND PAYMENT
5.1. Each Session will carry a Session Fee as indicated on the Platform. All Session Fees will be stated inclusive of value-added tax, insofar as it may be applicable.
5.2. Session Fees are not covered by medical aid schemes through TherapyNow. TherapyNow will, however, indicate which counsellors can claim from medical aid via the counsellor’s own private capacity, in the full knowledge that the counsellors are not employed by TherapyNow and that the responsibility of the claim and determining whether the client’s medical aid ( and specific options) can cover the counselling session is the responsibility of the client.
5.3. The Client shall make payment of the Session Fee when booking the Session, and Sessions will not be considered to be confirmed unless payment has been received by TherapyNow.
5.4. TherapyNow acts as an agent on behalf of the Counsellors and accepts payment of the Session Fee on their behalf, but for all other purposes the Counsellor acts independently and is not represented or employed by TherapyNow in any manner whatsoever. Accordingly, any advice furnished by a Counsellor to a Client is provided independently by the Counsellor and TherapyNow has no influence over the advice or the manner in which it is given.
6. COUNSELLOR PROFILES
The User acknowledges and agrees that Counsellor profiles, as displayed on the Platform, contain information provided by each Counsellor and accordingly TherapyNow does not warrant the accuracy of such information, the Counsellor’s experience and/or qualifications.
7.1. Should a Client wish to cancel his or her Session, the Client must inform the Counsellor in writing at least 24 hours prior to the scheduled Session.
7.2. If a Client fails to provide the notice as required in clause 7.1, the Client will not be entitled to a reimbursement of the Session Fee.
7.3. Should a Session need to be cancelled by the Counsellor, the Session shall be cancelled timeously and the Client shall receive notification of such cancellation. Insofar as it is necessary, the Counsellor shall make alternative arrangements for the Session or the attendance thereof by an alternative Counsellor.
8. EMERGENCY CRISIS MANAGEMENT
8.1. Due to the online nature of the Platform and the Services that Counsellors provide, TherapyNow and the Counsellors are not equipped to provide emergency services to Clients.
8.2. Should a Client require emergency assistance during and/or before and/or after a Session, the Client must immediately by telephone or in-person contact any of the following emergency numbers and/or services or visit their nearest healthcare facility:
8.2.1. Ambulance: 112 or 10177;
8.2.2. Netcare 911: 082 911;
8.2.3. ER24: 084 124;
8.2.4. Lifeline: 0861 322 322;
8.2.5. Suicide Crisis Line: Call 080 056 7567or SMS 31393;
8.2.6. SADAG Mental Health Line: 011 234 4837;
8.2.7. Childline: 0800 05 55 55;
8.2.8. Rape Crisis Line: 021 447 9762;
8.2.9. Akeso Psychiatric Response Unit 24 Hour: 086 1435 787; and/or
8.2.10. Destiny Helpline for Youth & Students: 0800 41 42 43.
TherapyNow and the Counsellors, are voluntarily bound by the Profession Board of Psychology’s Rules of Conduct Pertaining Specifically to Psychology as published by the HPCSA, which can be viewed at: http://www.sapc.org.za/sapc/wp-content/uploads/2018/01/HPCSA-Ethical-Code-of-Professional-Conduct.pdf.
9.1 TherapyNow acknowledges that those counselors that are not registered with the HPCSA are regsitered with a professional body under which the counselor ethically operates.
9.2 TherapyNow does not hold responsibility for the conduct of the counselor as they are not employed by TherapyNow. If a client has a concern about the ethics of a counselor they can report the counselor to the ethical board under which they practice.
9.3 TherapyNow indicates the board under which the counselor is registered on the TherapyNow platform.
10. CLIENT’S Consent
The Client undertakes and warrants that (s)he –
10.1. will provide verification of his or her identity and age to the Counsellor;
10.2. will obtain consent from their guardian or parent if he or she is under the age of 18 years old in order for the Services to proceed; and
10.4. By agreeing to the terms and conditions clients under the age of 18 years acknowledge that they have received consent from their parent or guardian to book a session and are aware that they need to book sessions with a registered counselor.
11. CONDITIONS OF USE
11.1. The User may not use, copy, adapt, redistribute, or modify the Content or any part thereof or frame, “mirror”, or data-mine (by way of but not limited to, robots, crawlers or other similar programs) or cache the Platform or reverse engineer, copy, modify, re-distribute, decompile, or create a derivative work of the Platform or TherapyNow’s software, or any part thereof without prior written authorisation from TherapyNow.
11.2. The User may not assign, transfer or sublicense the rights afforded to the User in terms of these Terms and Conditions, and the User accordingly agrees not to provide access to any other person, or provide his/her account details to any such other person.
11.3. The User agrees to treat all Content and information on the Platform as confidential, and not to share any such Content or information with any person other than on the Platform without the relevant Party’s express consent, if applicable.
TherapyNow reserves the right to –
12.1. refuse services, suspend or terminate a User’s access to the Platform, and remove or edit the Content at its sole discretion;
12.2. claim damages from any User who does not comply with these Terms and Conditions;
12.3. make improvements, change, or discontinue, without notice, any aspect or feature of the Platform and Content, without notice to the Users; and
12.4. use the services of third parties to provide information on the Platform.
13. USAGE RESTRICTIONS
13.1. The User hereby agrees that it will not itself, nor through a third party –
13.1.1. use the Platform for any purposes other than in respect of receiving and/or obtaining further information on the Services, as a Client, or providing Services as a Counsellor;
13.1.2. use the Platform or any of the Content for or in conjunction with any illegal, unlawful, or immoral purpose or as prohibited by the provisions hereof and the Applicable Laws;
13.1.3. use the Platform for any purpose other than personal, non-commercial, and information purposes;
13.1.4. engage in any activity intended to entice, solicit, or otherwise recruit Users to join an organisation, except where such activities are expressly authorised in writing by TherapyNow, or as permitted by law;
13.1.5. take action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent the User’s affiliation to any person, or otherwise manipulate or disguise the origin of anything posted or transmitted electronically to TherapyNow, whether on or through its Platform or otherwise;
13.1.6. engage in any abuse of electronic mail or spamming, including the posting or cross-posting of unsolicited articles with the same or substantially the same message to recipients that did not request to receive such messages;
13.1.7. modify, access, or make available any Content stored on or accessed through the Platform in a manner other than on the Platform;
13.1.8. remove any identification, trademark, copyright, or other notices from the Platform;
13.1.9. make available, upload files that contain software or any other material not owned or appropriately licensed by the User;
13.1.10. violate the privacy of any person, or attempt to gain unauthorised access to the products and/or services rendered by TherapyNow;
13.1.11. collect or use any content from the Platform for the benefit of a competing merchant;
13.1.12. decompile, disassemble, or reverse engineer any portion of the Platform;
13.1.13. use the Platform in a manner that may infringe the Intellectual Property rights or other proprietary rights of others, including the transmission of pirated software;
13.1.14. use the Platform in any manner which could damage, impair, overburden, or disable the Platform or interfere with any User’s use or enjoyment of the Platform;
13.1.15. use the Platform to transmit anything which contains viruses or any other destructive features, regardless of whether or not damage is intended;
13.1.16. use the Platform to post or transmit, anything which is unlawful, defamatory, discriminatory, obscene, offensive, vulgar, threatening, abusive, harassing, harmful, hateful, profane, sexually explicit, or which carries child pornography, religious or racial slurs, which can be construed as racially, ethnically, or otherwise objectionable in any way, or threatens or encourages bodily harm or the like, or which may violate any person’s personality rights;
13.1.17. use the Platform, icons, site address, or other means to hyperlink other Internet sites with any page in the Platform;
13.1.18. frame, nor use framing technologies to enclose the Platform, without the express written consent of TherapyNow;
13.1.19. gather electronic mail addresses and/or names for commercial, political, charity or like purposes or collect or attempt to collect personal information about third parties without their knowledge or consent; and
13.1.20. act in any way which may, could or does impose an unreasonable or unusually large load of traffic on the Platform, or otherwise interferes with its proper and timely functioning.
14. LINKED SITES
14.1. The Platform may contain links to other websites that are not controlled or maintained by TherapyNow.
14.2. While TherapyNow attempts to include only links to those sites which are in good taste and safe for Users, the User agrees that TherapyNow will not be responsible for the content, advertising, privacy policies, products, services, or other materials on or available from such linked websites.
14.4. TherapyNow reserves the right to disable links from third-party sites to TherapyNow’s Platform, and vice versa.
15. COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
15.1. The Content is provided by TherapyNow, unless otherwise provided herein.
15.2. The Intellectual Property available on the Platform or to be made available by TherapyNow or any of its selected service providers or agents are the property of or licensed to TherapyNow and may not be used other than as set out herein.
15.3. Any uploads by the User to the Platform will be dealt with as property of the User.
15.5. The names, images, and logos identifying TherapyNow or the products and services of a third party, are the Intellectual Property of the TherapyNow and subject to copyright, design right, and trademark protection. Unless specifically agreed to under these Terms and Conditions, nothing contained herein shall be construed as conferring any licence or right to use any Intellectual Property by TherapyNow or any other third party.
15.6. E-mail addresses, names, and telephone numbers published on the Platform may not be incorporated into any database used for electronic marketing or similar purposes. The presentation of such details is not permission from TherapyNow to utilise same.
15.7. Except as specifically provided herein or elsewhere on the Platform, no Content may be copied, reproduced, republished, downloaded, posted, transmitted, or distributed in any way, or otherwise used for any purpose, by any person or entity.
15.8. No User may add, delete, distort, or otherwise modify the Content. Any unauthorised attempt to modify any Content, to defeat or circumvent TherapyNow’s security features, or to utilise the Platform for any purpose other than its intended purpose is strictly prohibited.
16. LIMITATION OF LIABILITY AND DISCLAIMERS
16.1. TherapyNow does not warrant that the Platform, Content, information, or downloads shall be error-free or that they shall meet any particular criteria, performance, or quality. TherapyNow expressly disclaims all implied warranties, including but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement, compatibility, security, and accuracy.
16.2. Subject to section 43(5) and 43(6) of ECTA, if applicable, and to the extent permitted by law, the Platform, including any current or future offer of products or services, are provided on an “as is” basis, and may include inaccuracies or typographical errors, and TherapyNow shall not be held liable for any damage, loss or liability of any nature whatsoever, howsoever caused.
16.3. TherapyNow makes no warranties or representations as to the availability, accuracy or completeness of the Platform, or any third-party content accessible via a website on the Platform.
16.4. TherapyNow, its trustees, employees, representatives, or service providers will not be liable for any special, direct, indirect, or consequential damages, expenses, or losses whatsoever, including loss of profits or data, loss of revenue, anticipated savings, goodwill, reputation or any delays, arising out of the use or inability to use the Platform or performance of the Platform or non-performance of the Platform, maintenance, enhancements, events outside its control or force majeure events, even if TherapyNow has been advised of the possibility of such damages.
16.5. TherapyNow does not warrant that it has control over the persons who have access to the Platform.
16.6. The User waives and abandons any and all liabilities and claims of any nature whatsoever, howsoever arising, which he might have against TherapyNow, and releases TherapyNow against any and all liability and claims that may arise or accrue to the User, including but not limited to the User’s use of the Platform or the Services.
16.7. The use of the Platform, as well as the attendance of Sessions by a Client, is at the User’s sole risk.
16.8. The products and services advertised on the Platform and other marketing material and documents are to be used as a guideline only and may be influenced or changed by variable and/or unforeseen factors.
16.9. TherapyNow shall not be held liable for any errors or omissions in any of its publications and documentation (including any such material, information, publications, and documentation made available in digital or electronic media format).
Reference to any specific company, products, processes, or services by trade name, trademark, manufacturer, or otherwise on the Platform does not necessarily constitute or imply its endorsement, recommendation, or favouring by TherapyNow.
18. PRIVACY, ACCESS TO, AND USE OF INFORMATION
18.1. It is possible for internet-based communications to be intercepted. Without the use of encryption, the internet is not a secure medium and privacy cannot be ensured. Internet e-mail is vulnerable to interception and forging.
18.2. To ensure acquaintance with and awareness of the privacy measures and policies of TherapyNow, the User is urged to read and understand the underlying privacy clauses attached as Annexure A to these Terms and Conditions.
19.1. The Platform is controlled, operated and administered by TherapyNow from its offices as set out in clause 24.1.4 below.
19.2. TherapyNow makes no representation that the Platform and the Content thereon are appropriate or available for use in other locations or countries. Access to the Platform from territories or countries where the Content is illegal is prohibited. If the User accesses the Platform from locations outside of the Republic of South Africa, that User is responsible for compliance with all such local laws.
20. BREACH & TERMINATION
20.1.1. immediate, temporary, or permanent withdrawal of the User’s right to use the Platform;
20.1.2. immediate, temporary, or permanent removal of any Content uploaded by the User to the Platform;
20.1.3. issue a warning to the User;
20.1.4. obtain an order against the User for specific performance, with or without claiming damages;
20.1.6. disclosure of such information to law enforcement authorities, as deemed necessary in TherapyNow’s sole discretion.
20.2. Should TherapyNow instruct its attorneys to take any steps against a User to enforce any of its rights in terms of these terms and conditions or to claim payment of any monies payable in terms of any Service Fee, the User shall be liable for payment of all tracing fees, collection fees and other legal costs on the scale of attorney and own client, along with interest on the outstanding amount calculated at the maximum rate of interest compounded daily in arrear and calculated on a 365-day year factor, and calculated from the date on which TherapyNow notifies the relevant Party as being in mora to the date upon which such Party has ceased to be in mora.
21. DISPUTE RESOLUTION
21.1. TherapyNow may demand that a dispute be determined in terms of this clause 22 by written notice given to the parties to the dispute in accordance with the Expedited Rules (“Rules”) of the Arbitration Foundation of Southern Africa (“AFSA”).
21.2. This clause shall not prevent any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction, pending the decision of an arbitrator.
21.3. The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Rules of AFSA should either Party, by written notice, require the arbitration to be held on an urgent basis. In such event, either Party may apply to the AFSA Secretariat as required in terms of the said Rules to facilitate such urgent arbitration.
21.4. The arbitration shall be held –
21.4.1. at Cape Town;
21.4.2. with only the legal and other representatives of the Parties to the dispute present thereat; and
21.4.3. otherwise in terms of the Arbitration Act, No. 42 of 1965 (“Arbitration Act”), unless otherwise provided for herein.
21.5. The arbitrator shall be a practising advocate of the Cape Bar of at least ten years’ standing, appointed by agreement between the parties to the dispute, subject to clause 22.6.
21.6. Should the Parties fail to agree on an arbitrator within 14 days after the giving of notice in terms of clause 22.5, the arbitrator shall be appointed by the Chairperson of the Cape Bar Council (or by AFSA if the Cape Bar Council no longer exists), at the request of either Party to the dispute.
21.7. The Parties hereby consent to the jurisdiction of the High Court of South Africa, Western Cape Division, Cape Town, alternatively the Magistrate’s Court in respect of the proceedings referred to in clause 22.8, which court shall be elected at the instance of TherapyNow.
21.8. The decision of the arbitrator shall be final and binding on the Parties to the dispute and may be made an order of the court referred to in clause 22.7, at the instance of any of the parties to the dispute.
21.9. The Parties agree to keep the arbitration including the subject matter of the arbitration and the evidence heard during the arbitration confidential and not to disclose it to anyone except for purposes of obtaining an order as contemplated herein.
21.10. It is recorded that it is the intention of the Parties, that any dispute referred to arbitration in terms of clause
22.1 shall be resolved strictly in accordance with the provisions of this clause 22. The Parties accordingly agree and undertake as follows –
21.10.1. that it shall not make any application to Court as contemplated in terms of section 3(2) of the Arbitration Act;
21.10.2. that it shall not make any application as contemplated in terms of section 20(1) of the Arbitration Act; and
21.10.3. the periods set out in section 23 of the Arbitration Act shall not be applicable to any arbitration proceedings arising out of these Terms and Conditions.
Subject to clause 22, the Parties consent to the jurisdiction of the Magistrate’s Court, in respect of any proceedings arising out of these Terms and Conditions notwithstanding that the amount of the claim may exceed the jurisdiction of the court. It shall nevertheless be entirely within the discretion of TherapyNow as to whether to proceed in such Magistrate’s Court or any other court having jurisdiction.
23. ECTA REQUIREMENTS
23.1. In accordance with the disclosure requirements of ECTA and the Promotion of Access to Information Act No.2 of 2000, TherapyNow makes the following information available to the User
23.1.1. Full name: Elizabeth Berk (Pty) Ltd t/a TherapyNow
23.1.2. Legal status: Private Company
23.1.3. Registration number: 2022/281383/07
23.1.4. Physical Address: 7A Bryn Road, Lakeside, Cape Town, Western Cape, 7945
23.1.5. Platform Address: www.therapynow.co.za
23.1.6. Telephone number: 073 830 8021
23.1.7. Email address: email@example.com
23.1.8. Names of Director: Elizabeth Berk
23.1.9. Place of registration: South Africa
23.1.10. Physical address where TherapyNow will receive legal service of documents: 7A Bryn Road, Lakeside, Cape Town, Western Cape, 7945
23.1.11. Description of the main characteristics of the goods or services offered by TherapyNow: Online counselling platform to provide counselling-related services
24. AMENDMENT OF THE TERMS AND CONDITIONS
24.1. TherapyNow reserves the right to, at its sole discretion, amend, modify, add to, or remove any provisions (in whole or in part) of the Terms and Conditions from time to time.
24.2. Any changes to these Terms and Conditions will become effective upon such changes being posted on the Platform.
24.3. The onus rests on the User to periodically check the Terms and Conditions on the Platform for any changes or updates therein contained.
24.4. The User’s continued use of the Platform following the posting of any amendments by TherapyNow shall be considered notice of the User’s acceptance to abide by, and be bound by the Terms and Conditions, including any amendments hereto.
We recommend that the User prints out a copy of these terms and conditions for future reference.