Version 4: Date of last review – 10 September 2014

AGREEMENT: STANDARD SUBSCRIPTION AND PURCHASE TERMS & CONDITIONS

PART ONE: EXPLANATION

Consumer Guide

This Agreement must be read in conjunction with the Consumer Guide to appreciate the distinction between the respective Subscription Services.

Multiple Applications

The terms, conditions and provisions hereinafter set out apply to those Persons who wish to make use of and/or who are making use of and/or wish to acquire, including any Hello Doctor Trial, the Hello Doctor Services and/or Products, as hereinafter defined, by purchasing or subscribing therefore through, on and/or by means of any one of:

  • the Hello Doctor Electronic Media Channels; and/or
  • the Hello Doctor Call Centre; and/or
  • a Hello Doctor Prepaid Voucher; and/or
  • Third Party Benefit Programs

Accordingly, this Agreement applies to:

  • the subscription or purchase of a Selected Service; or
  • the purchase of a Selected Product; or
  • the subscription and/or purchase of both the Hello Doctor Services and/or Products,

as the case may be; the intention being to have a core set of standard terms and conditions applying to all and/or any transaction entered into by the Person purchasing the Selected Product and/or subscribing for the Selected Service with, on and/or from each, any and/or all of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre, a Hello Doctor Prepaid Voucher, a Third Party Benefit Program and/or a Payment Gateway.

By way of explanation, the terms and conditions set out here below will apply to the Subscriber and/or the Purchaser, as the case may be, for and/or in respect of any subscription and/or purchase, including but not limited to any Hello Doctor Trial, made through, on and/or by means of any one of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre, a Hello Doctor Prepaid Voucher and/or a Third Party Benefit Program, he or she so makes, save that these core set of standard terms and conditions may vary according to the channel and/or medium through which such subscription and/or purchase and/or payment method, Selected Service and/or Selected Product is opted for by the Subscriber and/or Purchaser, as the case may be.

Structure & Form of Agreement

This Agreement is structured into 5 (five) Parts, with:

  • Part One explaining the structure and form of this Agreement; and
  • Part Two setting out the definitions and the manner of interpreting this Agreement; and
  • Part Three dealing with the specific terms, conditions and provisions pertaining to the Subscription Services; and
  • Part Four dealing with the specific terms, conditions and provisions pertaining to the Hello Doctor Products; and
  • Part Five dealing with the general terms, conditions and provisions pertaining to the Subscription Services and/or the Hello Doctor Products and the legal relationship by and between Hello Doctor, the Payor, the Subscriber, the Purchaser and/or the User, as the case may be.

Specific Terms, Conditions and/or Provisions incorporated by Reference

To the extent the Subscriber and/or Purchaser is using any of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre, a Hello Doctor Prepaid Voucher and/or a Third Party Benefit Program, as the case may be, to subscribe for, accept, partake in, make use of and/or purchase any of the Hello Doctor Services and/or Products, the specific terms, conditions and/or provisions pertaining to the Selected Service and/or Selected Product, as the case may be, and which relate and/or pertain to the use of any of such channel, medium, facility, entity and/or Person will, where applicable and necessary, are hereby and are also deemed to be incorporated into the terms, conditions and provisions hereinafter set out to the extent such specific terms, conditions and/or provisions are specifically applicable to the Selected Service and/or the Selected Product, as the case may be, and do not themselves conflict with the terms, conditions and/or provisions of this Agreement.

To the extent there are any additional and/or specific terms, conditions and/or provisions which relate and/or pertain to the payment of and/or for the Selected Service or the Selected Product, as the case may be, as specified and/or prescribed by any of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre, a Hello Doctor Prepaid Voucher, a Third Party Benefit Program and/or a Payment Gateway, as the case may be, those terms, conditions and/or provisions, where applicable and necessary, are hereby and also deemed to be incorporated into the terms, conditions and provisions hereinafter set out to the extent such specific terms, conditions and/or provisions do not themselves conflict with the terms, conditions and/or provisions of this Agreement.

When accepting the terms, conditions and/or provisions of this Agreement, the Subscriber and/or Purchaser, as the case may be, must read and likewise hereby agrees to those additional specific terms, conditions and/or provisions which relate and/or pertain to the payment and/or otherwise of or for the Hello Doctor Services and/or Products, as specified and/or prescribed by any of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre, a Hello Doctor Prepaid Voucher, the Third Party Benefit Program and/or Payment Gateway, as the case may be.

To the extent there is any conflict between any terms, conditions and/or provisions on any of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre, a Hello Doctor Prepaid Voucher, the Third Party Benefit Program and/or Payment Gateway, as the case may be, and this Agreement, the terms, conditions and/or provisions of this Agreement will, where applicable and necessary, prevail and take precedence.

The Subscriber and/or Purchaser must first read and accept such additional terms, conditions and/or provisions, in particular, those pertaining to the payment, that specifically apply to the relevant Hello Doctor Service and/or Product and to the channel, medium, facility, entity and/or Person through which the Subscriber subscribes and/or the Purchaser purchases (or makes use of) the applicable Selected Service and/or Selected Product, because when Confirming such subscription and/or purchase the Subscriber and/or Purchaser, as the case may be, will have (and to the extent necessary will have been deemed to have) signified having read and accepted such additional terms, conditions and/or provisions.

PART TWO: DEFINITIONS AND INTERPRETATION

Definitions

For the purpose of this Agreement, the following words and/or expressions will, unless the context clearly indicates otherwise, have the meanings hereinafter set out:

Agreement” means this agreement, being the terms, conditions and provisions as hereinafter set out, as supplemented and/or amended by the additional specific terms and conditions contemplated and provided for herein, including any and all additions and/or amendments from time to time

Airtime” means the remaining balance that the Subscriber and/or Purchaser, as the case may be, has, from time to time, available to him or her in terms of his or her pre-paid or monthly or other contract with amongst others his or her cellular network service provider, which entitles him or her to:

  • a defined number of units or period of use time when using his or her cellular or mobile phone; and/or
  • use as lawful currency to pay for any service or product;

Airtime Billing” means the payment method selected by a Subscriber or Purchaser, as the case may be, when subscribing for or purchasing a Selected Service or a Selected Product, as the case may be, through a cellular network service provider, which is hereby authorised and instructed to deduct and pay to Hello Doctor, from such amounts as may be due from the Subscriber or Purchaser, as the case may be, from his or her remaining Airtime from time to time;

Applicable App” means the software used to link the Payor, the Subscriber, the Purchaser and/or the User, as the case may be, with and/or to Hello Doctor on any of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre and/or Third Party Benefits Programs via the internet and/or any other electronic device, including but not limited to a cellular or mobile phone;

App Store” means the website for downloading free and/or paid software applications for mobile or cellular devices/phones or desktop computers;

Arbitration Act” means the Arbitration Act, 1965 (Act No. 42 of 1965);

Commencement Date” means, in respect of:

  • the purchase of a Selected Product, the Signature Date, unless a Subscription Service was subscribed for earlier, then and in that event it will be that earlier date; and
  • the subscription of the Subscription Service is to commence, which, in the case of a Subscription Service subscribed for on, through or by means of:
  • the Hello Doctor Electronic Media Channels, on the first Payment Date or when the Subscriber downloads the Applicable App for the Selected Service and subsequently pays for the subscription; and/or
  • the Hello Doctor Call Centre, on the first Payment Date; and/or
  • a Hello Doctor Prepaid Voucher, when the said voucher is redeemed or exchanged for a Selected Service; and/or
  • Third Party Benefit Programs, when the Subscriber or User, as the case may be, is provided with access to a Selected Service for the first time as a result of their relationship with a Third Party Benefit Program;

Common Law” means the non-enacted law of South Africa that has its roots in and consists of an amalgam of rules and principles drawn from amongst others Roman Law, Roman-Dutch Law and English Law, as the case may be, combined and adapted by the Courts to meet the perceived evolving needs of South Africa from time to time, subject only to the Constitution;

Confirmed” or “Confirming” or words of similar meaning means, in respect of subscribing and/or purchasing (including any Hello Doctor Trial) on, through or by means of:

  • the Hello Doctor Electronic Media Channels, when the earlier of the Subscriber and/or Purchaser, as the case may be, downloads the Applicable App or on the Payment Date for the Selected Service or the Selected Product; and/or
  • the Hello Doctor Call Centre, when the earlier of the Subscriber or User first logs onto the Hello Doctor Website or the Subscriber or User, as the case may be, uses the Selected Service for the first time; and/or
  • a Hello Doctor Prepaid Voucher, when the said voucher is redeemed or exchanged for a Selected Service or Selected Product, as the case may be; and/or
  • the Third Party Benefit Programs, when the Subscriber or User, as the case may be, uses the Selected Service for the first time,

with the date when such action takes place being defined as the “Confirmation Date”;

“Constitution” means the Constitution of South Africa as legislated for by the Constitution of the Republic of South Africa Act, 1996 (Act No. 108 of 1996);

Consumer Guide” means the consumer friendly guideline prepared, reviewed and updated by Hello Doctor from time to time to give a brief overview and explanation of the Selected Services;

“Consumer Protection Act” means the Consumer Protection Act, 2008 (Act No. 68 of 2008);

Copyright Act” means the Copyright Act, 1978 (Act No. 98 of 1978);

Court” means any and/or applicable South African court as contemplated in Chapter 8 of the Constitution;

Designs Act” means the Designs Act, 1993 (Act No. 195 of 1993);

Discretion” means, in relation to a Party, the sole, absolute and unfettered discretion of that Party, provided such discretion is exercised in a reasonable and not in a capricious manner;

Domicilium” is a Latin term meaning domicile or physical address where a Party generally resides or operates its business, as the case may be;

ECT Act” means the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002);

Force Majeure” means, in relation to the failure and/or inability of a Party to perform (wholly, partially or late), some unforeseen event or circumstance beyond the reasonable control of the affected Party which prevents it from performing, timeously or otherwise, its obligations under this Agreement and which includes, but is not limited to:

  • war, civil war, riots, armed conflicts or terrorism; and/or
  • nuclear contamination; and/or
  • chemical or biological contamination; and/or
  • lack of electrical power due to only the incapacity of supply by a national electrical supply grid and/or supply generally, including cessation by a local authority; and/or
  • technical problems or downtime related to a fixed line or mobile tele-communications provider; and/or
  • explosions, earthquakes, lightning, floods and other natural disasters,

which, in each case, is beyond the Party’s reasonable control, having exercised reasonable care and diligence to prevent and/or mitigate against the occurrence and/or consequences of that event or circumstance, but will not include –

  • any event or circumstance which is caused by the negligence or inaction of a Party or that of such Party’s sub-contractors or agents or employees; and/or
  • any event which a diligent Party could reasonably have been expected to both take into account at the time of execution of this Agreement, and avoid or overcome in the performance of its obligations hereunder;

Hello Doctor” means Hello Doctor (Proprietary) Limited, company registration number 2009/018671/07, a private company incorporated in accordance with the Laws and duly registered to conduct business in South Africa, with its principal place of business being 4th Floor, Mariendahl House, Newlands-on-Main, Newlands, 7700, Cape Town, Western Cape, South Africa;

Hello Doctor Call Centre” means the call centre established and/or operated by Hello Doctor or another operator to amongst others market, promote and sell the Hello Doctor Services and/or Products and attend to general queries in respect thereof;

Hello Doctor Electronic Media Channels” means a physical face to face meeting and/or electronic media used by Hello Doctor through which to market, sell and/or deliver the Hello Doctor Services and/or Products, as the case may be, including but not limited to:

  • those duly appointed and authorised Hello Doctor marketing or selling agents; and/or
  • the Hello Doctor Call Centre; and/or
  • the Hello Doctor Website; and/or
  • the Hello Doctor Mobisites; and/or
  • a Hello Doctor authorised App Store and/or USSD Platform; and/or
  • Mxit; and/or
  • Facebook; and/or
  • those duly appointed and authorised Hello Doctor cellular or mobile telecommunications operators and/or providers,

or which may be subscribed for or acquired by means of a Hello Doctor authorised SMS Short Code and/or on a Hello Doctor authorised USSD Platform;

Hello Doctor Mobisites” means those duly authorised Mobisites hosting the Hello Doctor Services and/or Products;

Hello Doctor Prepaid Voucher” means those electronically issued or paper based vouchers issued by Hello Doctor or on its behalf by one of its duly accredited agents for and in respect of a Hello Doctor Service and/or Product or such other services or products marketed, promoted and/or offered by Hello Doctor from time to time;

Hello Doctor Products” means those products sold from time to time by or through Hello Doctor as displayed on the Hello Doctor Electronic Media Channels and which Selected Product or Selected Products are purchased by the Purchaser in terms hereof;

Hello Doctor Services and/or Products” means the Subscription Services and/or the Hello Doctor Products, collectively or individually, as the context may require or determine;

Hello Doctor Shopping Cart” means the area on the Hello Doctor Electronic Media Channels and/or Payment Gateways through which the Selected Service or Selected Product is subscribed for and/or purchased;

Hello Doctor Shopping Cart Process” means the prescribed process provided for on the Hello Doctor Electronic Media Channels which are, where applicable, required to be followed by the Subscriber and/or the Purchaser, as the case may be, if, to the extent and/or when subscribing for the Selected Service and/or purchasing the Selected Product, as the case may be, on and/or through such channel or medium;

Hello Doctor Trial” means any free or to be charged trial period afforded a Person wanting to test a Subscription Service, which trial is and will at all times be in and at the Discretion of Hello Doctor;

Hello Doctor Websites” means the websites www.hellodoctor.co.za and/or www.hellodoctor.com;

Intellectual Property” means any and all rights, title and interest of whatsoever nature or kind in intellectual property (whether registered or not), including but not limited to past and future copyright (as that term is contemplated and/or provided for in the Copyright Act), related rights, patents (as that term is contemplated and/or provided for in the Patents Act), utility models, trademarks (as that term is contemplated and/or provided for in the Trade Marks Act), trade names (as that term is contemplated and/or provided for in the Consumer Protection Act), service marks, designs (as that term is contemplated and/or provided for in the Designs Act), databases, graphics, icons, semi-conductor topography, know-how, trade secrets and inventions (whether patentable or not), goodwill and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property which are owned, licensed to, used and/or held (whether or not currently) by Hello Doctor and/or any of its service providers, including but not limited to any of the medical practitioners;

Laws” or “the Law” means the Common Law, Legislation and all judicial decisions and other notifications or similar directives made pursuant thereto that have the force of law, whether issued by an executive, a legislative, provincial, local, judicial or administrative entity or Person in South Africa;

Legislation” means, including but not limited to, all applicable national, provincial and/or local statutes, statutory instruments, bye-laws, ordinances, regulations, orders, rules, notices, directives and/or codes of practice, promulgated, passed and/or executed by virtue of the powers bestowed on such Person, having the force of Law in South Africa;

Mobile App” means the Hello Doctor mobile application that is to be downloaded onto the Subscriber’s mobile or cellular phone from an approved App Store;

Mobisites” means those websites designed for mobile or cellular phones;

“Opt In” means the successful activation by the Subscriber of a Selected Service;

“Opt Out” means the cancellation by the Subscriber of a Selected Service;

“Parties” means the Subscriber and/or the Purchaser, as the case may be, and Hello Doctor, collectively or individually, as the context may require or determine, and a reference to the term “Party” means any one of them;

Patents Act” means the Patents Act, 1978 (Act No. 57 of 1978);

Payment Date” means, in respect of:

  • the Hello Doctor Electronic Media Channels, when:
  • Hello Doctor receives electronic confirmation or notification of the Payor’s, the Subscriber’s and/or the Purchaser’s, as the case may be, payment by Hello Doctor’s bank; and/or
  • the first payment has been:
  • made by the Payor, the Subscriber and/or the Purchaser, as the case may be, to Hello Doctor; or
  • deducted by the Payor’s, the Subscriber’s and/or the Purchaser’s, as the case may be, cellular or mobile telecommunications operator and/or provider;
  • the Hello Doctor Call Centre, when the Subscriber’s first debit order has been lodged by Hello Doctor for payment; and/or
  • a Hello Doctor Prepaid Voucher, when the Payor, the Subscriber and/or the Purchaser, as the case may be, purchases and pays for the said voucher; and/or
  • the Third Party Benefit Programs, when paid for by the applicable Third Party Benefit Program;

Payment Gateway” means the e-commerce application which authorises and facilitates the payment from the Payor, Subscriber and/or Purchaser, as the case may be, to Hello Doctor by electronic means and includes all electronic based payments with and between other Persons involved in the subscription and/or purchase contemplated herein;

Payment Option” means any 1 (one) or more of the payment options, including but not limited to the regularity of such payment (daily, weekly, Monthly, upfront in one lump sum payment or otherwise) contemplated herein and the Consumer Guide, where applicable, for the Selected Service or Selected Product, as the case may be;

Payor” means the Person who is responsible and liable to pay Hello Doctor for the Hello Doctor Services and/or Products, being a Third Party Person, the Subscriber or Purchaser, as the case may be, and as the context may require or determine;

Purchaser” means the Party to this Agreement acquiring or purchasing the Selected Product through, on and/or by means of any of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre, a Hello Doctor Prepaid Voucher, the Third Party Benefit Program and/or the Payment Gateways, as the case may be or the context may require;

Purchaser Form” means, where and if applicable, the electronic form, designated as such, provided for in the Hello Doctor Shopping Cart Process to be completed by the Purchaser when purchasing the Selected Product on the Hello Doctor Electronic Media Channels;

Refund Policy” means the prescribed policy determined by and in Hello Doctor’s Discretion from time to time, with such initial Refund Policy set out herein;

Selected Product” means the Hello Doctor Product selected by the Purchaser, as may be sold by Hello Doctor on any or each of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre, a Hello Doctor Prepaid Voucher and/or the Third Party Benefit Programs, as the case may be, from time to time;

Selected Service” means the Subscription Service:

  • selected by the Subscriber from, by means of or on the Hello Doctor Electronic Media Channels; or
  • for which the Subscriber will be entitled to subscribe by virtue of amongst others his or her membership of a Third Party Benefit Program,

as the case may be;

SMS” means a Short Message Service, being the commonly used text messaging service available on cellular and mobile phones;

SMS Short Code” means the numeric code assigned to Hello Doctor whereby the Subscriber texts a message on his or her cellular or mobile phone to the Hello Doctor Short Code to subscribe for a Selected Service;

South Africa” means the Republic of South Africa;

Subscriber” means the Person who subscribes for the Subscription Services;

Subscription Channel” means the channel or medium through which the Subscriber subscribes for a Selected Service, being any one of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre and/or the Third Party Benefit Programs, as the case may be;

Subscription Fees” means the fees charged and/or to be charged by Hello Doctor for the Selected Service from time to time;

Subscriber Form” means, where and if applicable, the electronic form, designated as such, provided for in the Hello Doctor Shopping Cart Process to be completed by the Subscriber when subscribing for the Selected Service on the Hello Doctor Electronic Media Channels;

Subscription Period” means, where applicable, the period of time for which a Subscriber subscribes for a Selected Service, which may be daily, weekly, Monthly or fixed for a 12 (twelve) Month period, depending on the period selected by the Subscriber – by way of explanation, the Subscriber will be requested, when subscribing for the Selected Service, to select one of the prescribed periods offered by Hello Doctor from time to time, which period will be the Subscriber’s Subscription Period;

Subscription Process” means the process and procedure required to be followed by the Payor and/or the Subscriber, as the case may be, to subscribe for the Selected Service on and/or through any one of the Other Subscription Channels, as set out in the Consumer Guide and/or as may be prompted by and each of the applicable Other Subscription Channels;

Subscription Services” means the package of services comprising a bundle of benefits, rights, obligations and financial commitments, as the case may be, offered by Hello Doctor on or through the Subscription Channels, including but not limited to, as at the Signature Date,:

  • Text a Doctor (originally known as Digital Doctor), which entitles the Subscriber to private and confidential one-on-one health text messages to and from a doctor, Monday to Sunday, including access to daily live group chats, moderated by doctors; or
  • Talk to a Doctor (originally known as House Call), which entitles the Subscriber to 24/7 direct telephonic access to a doctor anytime, anywhere, by logging a request for the next available doctor to telephone the Subscriber back; or
  • Health Tips, which comprises health information or messages written, vetted and localised by doctors, sent to the Subscriber by means of SMS’s; or
  • a combination of Talk to a Doctor and/or Text a Doctor and/or Tips, as may be packaged as one combined service by Hello Doctor from time to time; or
  • Health & Insurance Services, which comprise one or more Selected Service, with a short-term or long-term insurance product, packaged either as a free offering within that Selected Service or as a separate offering with such Selected Service or a separate insurance product as its own offering,

as summarised and explained in the Consumer Guide from time to time – these services may be reviewed, updated, added to and/or removed by Hello Doctor from time to time, meaning that the above list of services is not exhaustive and that this definition will be varied from time to time to bring it in line with the services offered by Hello Doctor from time to time;

Third Party Benefit Program” means a medical scheme, program, plan, benefit or royalty scheme or the like offered by a Third Party Person;

Third Party Person” means an employer, medical aid scheme, business entity or any other Person who has a relationship with Hello Doctor, the Payor, the Subscriber and/or the User, as the case may be, regarding the subscription or purchase of the Subscription Service;

Trade Marks Act” means the Trade Marks Act, 1993 (Act No. 194 of 1993);

User” means a Person who uses a Subscription Service as contemplated and provided for herein;

USSD” and or “USSD Platform” means the electronic media channel through which a Subscriber can subscribe for and access a Selected Services, by dialling a specific number from a cellular or mobile phone;

VAT” means Value Added Tax as defined and contemplated, from time to time, under and in terms of the Value Added Tax Act, 1991 (Act No. 89 of 1991) (“the VAT Act”);

Verification Date” means, is and where applicable, the date on which the Subscriber and/or Purchaser, as the case may be, verifies, following a Verification Request, his or her authentication by clicking on the electronic link so provided by Hello Doctor;

Verification Request” means the electronic request generated by Hello Doctor wherein it requests that the Subscriber and/or the Purchaser, as the case may be, verifies his or her authenticity; and

vice versa” is a Latin term meaning the other way round.

Interpretation

In interpreting this Agreement, unless otherwise specified,:

  1. any reference to the South African currency will be a reference to the prevailing currency of South Africa, currently the Rand or abbreviated “R“, including, where applicable, cents – if and to the extent the Hello Doctor Services and/or Products are offered in any country outside of South Africa and the currency of such country is prescribed for such Selected Service or Selected Product, then and in that event the currency of that country will be (and to the extent applicable and necessary, be deemed to) apply to this Agreement for and in respect of the Subscriber;
  1. any reference to “date of signature hereof” or “Signature Date” (or words of similar meaning) will be read as meaning, when the Subscriber and/or Purchaser, as the case may be, has Confirmed or is deemed to have Confirmed acceptance of these terms and conditions;
  1. any reference to the terms “Signature”, “Signs”, “Initial” or words of similar meaning means a hand-written signature or initial or signing by hand, as the case may be, and includes an “electronic signature” as that term is defined, contemplated and provided for in the ECT Act;
  1. any reference, express or implied, to any Legislation, includes references to:

4.1       such Legislation as re-enacted, amended, replaced, extended, consolidated or applied by or under any other form or manner of Legislation (before and/or after Signature hereof); and

  • any Legislation which that piece of Legislation re-enacts (with or without modification); and
  • any subordinate Legislation made (before or after the Signature hereof) under any enactment and/or statute, as re-enacted, amended, replaced, consolidated, extended or applied as described in Clause 4.1 or under any Legislation referred to in Clause 4.2,

provided that no such Legislation made or passed after the date of signature hereof will increase the liability of any Party under this Agreement (save, where and if applicable, for any increase in the statutory maximum interest rate allowed and/or claimable under any Law);

  1. any reference to a Part, Clause, Section, Schedule (including any form) and/or Price List will, unless clearly stipulated otherwise, be deemed to be a reference to a Clause, Part, Section, Schedule or to this Agreement and on the Hello Doctor Website from time to time;
  1. any reference to this Agreement means this Agreement and all Parts, Schedules (including any form) referred to herein;
  1. all Parts, Sections, Schedules (including any form) will be deemed to form Part of this Agreement, unless stipulated otherwise;
  1. headings of the Clauses in this Agreement are for the purpose of convenience and reference only and will not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any Clause hereof;
  1. Clause headings and/or head notes to any paragraph are inserted for reference purposes only and will not affect nor influence the interpretation of any of the provisions to which they relate;
  1. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition Clause, effect will be given to it as if it were a substantive provision in the body of the Agreement;

 

  1. any reference to a Day, week, Month or year will be construed as a Gregorian Day, week, Month or year, as the case may be;

 

  1. any reference to a “Day” will mean a period of 24 (twenty four) hours running from 1 (one) second past midnight to midnight that same Day;

 

  1. any reference to “Month” will mean the period running from 1 (one) second past midnight to midnight on the same numerical Day of the succeeding Month;

 

  1. any reference to “Business Day” will mean any Day other than a Saturday, Sunday and/or Public Holiday, as the case may be, whereas the term “Calendar Day” means each and every Day of the week;

 

  1. any reference to a public holiday or the words “Public Holiday” will be only those statutorily recognised and gazetted Public Holidays in South Africa from time to time;

 

  1. any reference to “Business Hours” will mean 09h00 to 17h00 Local Time;

 

  1. any references to specific times will be to the official time as applied from time to time in the South African province of the Western Cape (“Local Time”);

 

  1. if any obligation or act is required to be performed on a particular Day or date, it will be performed, unless otherwise stipulated, by 17h00 Local Time;

 

  1. when any number of Days is prescribed, same will be reckoned exclusively of the first and inclusively of the last Day unless the last Day falls on a Saturday, Sunday or Public Holiday in South Africa, in which case the last Day will be the next succeeding Business Day in South Africa;

 

  1. where figures are referred to in numerals and in words, if there is any conflict between the two, the words will prevail;

 

  1. expressions defined in this Agreement will bear the same meanings on the Hello Doctor Website to the extent it does not itself contain its own conflicting definitions;

 

  1. the use of the words “include”, “including“, “without limitation” and “in particular” whether or not followed by a specific example will not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule will not be applied in the interpretation of such general wording or such specific example – this rule means when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified;

 

  1. the words “other” and “otherwise” will not be construed eiusdem generis with any preceding words where a wider construction or interpretation is possible;

 

  1. where any term is defined within the context of any particular Clause, the term so defined, unless it is clear from the Clause in question that the term so defined has limited application to the relevant Clause, will bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation Clause;

 

  1. there will be an obligation and it will be binding on and enforceable by and against the estates, heirs, executors, administrators, trustees, permitted assigns, liquidators or similar Person of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party will be deemed to include such Party’s estate, heirs, executors, administrators, trustees, permitted assigns, liquidators or similar Person, as the case may be;
  2. the expiration or termination of this Agreement will not affect such of the provisions of this Agreement as expressly provide or contemplate that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the Clauses themselves do not expressly provide for this;

 

  1. any provision which contemplates performance or observance subsequent to any termination or expiration of this Agreement, will survive any termination or expiration of this Agreement and continue to be of full force and effect;

 

  1. termination, howsoever arising, will be without prejudice to and will not affect the accrued rights, remedies, claims and/or liabilities of either or any of the Parties arising hereunder prior to such termination;

 

  1. the expiry or termination of this Agreement will not prejudice the rights of either or any of the Parties in respect of any antecedent breach or non-performance by either or any Party of any of the terms and conditions hereof;

 

  1. should this Agreement be Signed on a date that results in the use of any tenses herein being inappropriate, the term will be read in the appropriate tense;

 

  1. the rule of construction that the contract will be interpreted against the Party responsible for introducing a Clause and/or the structuring of any provision and/or the drafting or preparation of the Agreement, will not apply and is hereby waived by the Parties;

 

  1. the rule of construction that the contract will be interpreted most favourable to the consumer and/or the Party receiving the service or product will not apply and is hereby waived by the Parties, subject to and to the extent permissible by the provisions of the Consumer Protection Act;

 

  1. an expression or word which signifies or refers to –

 

  • any gender includes, where applicable and appropriate, the other genders; and/or

 

  • a “Person”, includes, where applicable and appropriate, a natural person, company, close corporation, trust, partnership, association, government, national, provincial or local authority or other entity (including a business entity), whether or not having a separate legal personality; and/or

 

  • the singular includes the plural and vice versa, where applicable and appropriate;

 

  1. any reference to “Writing” or words of similar meaning means legible (coherent and understandable) writing in English in handwritten or typographical manner or form;

 

  1. any reference to “Notice” or notice being required to be given will mean Written notice or notice in Writing;

 

  1. the words “shall”, “will” and/or “must” used in the context of any obligation or restriction will have a prescriptive and peremptory (meaning absolute) application;

 

  1. a reference to a consecutive series of two or more Clauses is deemed to include all the Clauses including and between the first and the last mentioned Clauses;

 

  1. defined terms or words appearing in title case or starting with a capital letter must be given their defined meaning whilst the same terms or words appearing in lower case must be interpreted in accordance with their plain English and grammatical meaning;

 

  1. no provision will, unless otherwise specifically provided for, constitute a stipulation for the benefit of any Person who is not a Party to this Agreement, namely it will not provide for a stipulatio alteri meaning that a non-Party will not be able to claim any benefit under this Agreement;

 

 

  1. if any interest is to be charged on any payment in arrear or otherwise, interest will accrue daily and be compounded Monthly; and

 

  1. no term, condition and/or provision is to be interpreted or construed so as to exclude any rights granted to a natural Person by virtue of the ECT Act and/or the Consumer Protection Act.

 

This Agreement was drafted in the English language. To the extent this Agreement has been translated into another language to comply with any law of any country or otherwise and there is any discrepancy or conflict in the interpretation between the text of the translated version and the English text of this Agreement, the English text shall prevail.

 

Introduction

 

Hello Doctor is essentially an electronic sales platform designed to promote a better understanding, knowledge and awareness of various health care topics and/or products, acting as an interface between medical practitioners and consumers in South Africa; presenting the consumer with a greater choice of and access to various health care topics and/or products, as well as the opportunity to communicate with registered medical practitioners to discuss health care topics, which communication will not include a diagnosis or treatment.

 

Important Caveat – Please Take Note

 

Notwithstanding the high level of skills, training, professional qualifications and expertise, the Hello Doctor Services and/or Products are not intended nor suited to be a replacement or substitute for professional medical advice, diagnosis or treatment relative to a specific medical question or condition. As such, unless otherwise clearly and specifically stated, all information obtained on, through and/or by means of the Hello Doctor Website, any Hello Doctor Electronic Media Channel and/or from a Hello Doctor Service and/or Product is for reference, informational and educational purposes only.

 

The Hello Doctor Services:

 

  • should not be construed, considered and/or mistaken for a substitute for consulting with a medical practitioner; and/or

 

  • do not constitute a consultation, examination and/or diagnosis; and/or

 

  • do not render treatment; and/or

 

  • do not bring about a doctor-patient relationship,

 

and, as such, Hello Doctor must not be mistaken for a medical practice.

 

Important Consumer Related Provisions

 

This Agreement is located on the Hello Doctor Websites.

 

Whilst headings are normally found in bold print or Capitalised, in this Agreement certain words and Clauses have been highlighted in bold print, italics, underlined and/or of a different colour as they:

 

  • may be intended to highlight or draw the Subscriber’s attention to an important word, phrase and/or Clause; and/or

 

  • may require a specific action from the Subscriber; and/or

 

  • may increase the risk and/or liability of the Subscriber; and/or

 

  • may serve as an acknowledgement by the Subscriber; and/or

 

  • may limit the risk and/or liability of Hello Doctor and/or any Third Party Person,

 

however, Hello Doctor’s failure to bold print, italicise, underline and/or put a word, phrase and/or Clause in a different colour does not mean that any of such other words, phrases and/or Clauses are unimportant, insignificant and/or immaterial.

 

Regardless of the place or date of the use of any service and/or purchase of any product, notwithstanding the use of agents or other intermediaries by Hello Doctor, this Agreement (including the subscription of the Selected Service and the purchase of the Selected Product) is concluded and, if required, deemed to be concluded at Hello Doctor’s principal place of business (as referred to in the Definition Section).

 

Notwithstanding the later use of the Selected Service, the Selected Service commences on the Commencement Date and will endure indefinitely unless:

 

  • the Subscription Period of the Selected Service determines otherwise, in which event it will be limited to the Subscription Period and the specific terms and conditions of the Selected Service; and/or

 

  • otherwise terminated in accordance with the provisions hereof,

 

and will apply to and be in respect of each and every subscription and/or purchase of a Hello Doctor Service and/or Product made by the Subscriber and/or Purchaser, as the case may be.

 

This Agreement, including if it came about through any one of the Subscription Channels, will come into being and be of full legal force and effect when so Confirmed or deemed to be Confirmed, as the case may be; from which date this Agreement will constitute a legally binding agreement by and between Hello Doctor and the Subscriber (including any User under such Subscriber) and/or the Purchaser, as the case may be.

 

The Subscriber and/or the Purchaser, as the case may be, by Confirming and/or being deemed to have Confirmed acceptance of these terms and conditions specifically authorises and instructs Hello Doctor to proceed to procure the allocation of the Selected Service and payment for the Selected Service and/or Selected Product for and/or on behalf of the Subscriber and/or the Purchaser, as the case may be.

 

Consumer Protection Act

 

If this Agreement, including any and all of its terms, conditions and/or provisions, are governed or regulated by the Consumer Protection Act, it is not intended that any such term, condition and/or provision contravene the said Act. As such, notwithstanding and in addition to any other provision herein contained, if the Consumer Protection Act does apply to this Agreement and any and all of its terms, conditions and/or provisions, then and in that event this Agreement, including any and all of its terms, conditions and/or provisions, must be treated as being qualified, to the extent necessary, to procure and ensure that the Consumer Protection Act is complied with in every respect.

 

No term, condition and/or provision of this Agreement:

 

  • does or purports to limit or exempt Hello Doctor from any liability (including without limitation any loss directly or indirectly attributable to Hello Doctor’s gross negligence or wilful default or that of any other Person acting for, on behalf of or controlled by Hello Doctor) to the extent that the Law does not allow such limitation and/or exemption; and/or

 

  • requires the Subscriber and/or the Purchaser, as the case may be, to assume any risk or liability for the kind of liability or loss, to the extent that the Law does not allow such an assumption of risk or liability; and/or

 

  • limits or excludes any warranties or obligations which are implied in this Agreement by the Consumer Protection Act (to the extent applicable) or which Hello Doctor gives or is deemed to give under or by virtue of the Consumer Protection Act (to the extent applicable), to the extent that the Law does not allow them to be limited or excluded; and/or

 

  • which provides for the Subscriber and/or Purchaser, as the case may be, indemnifying Hello Doctor against third party claims will not apply to the extent it is not permitted under or by virtue of the Consumer Protection Act (to the extent applicable); and/or

 

  • which provides for a longer notice period than otherwise provided for in the Consumer Protection Act (to the extent applicable) will apply, save and to the extent as contemplated and provided for in the Consumer Protection Act (to the extent applicable); and/or

 

  • is intended to limit the Subscriber’s and/or Purchaser’s, as the case may be, right to settle a dispute concerning the Consumer Protection Act (to the extent applicable) using the mechanisms provided for therein.

 

Should the Subscriber wish to cancel his or her subscription of a Selected Service, he or she may do so, without penalty, provided it is so cancelled, in Writing, within 7 (seven) Calendar Days of payment of the first Subscription Fee (“Subscription Cooling Off Period”), subject to such further terms and conditions as may be set out below.

 

Should the Purchaser wish to cancel his or her purchase, he or she may do so, without penalty, provided it is so cancelled, in Writing, within 7 (seven) Calendar Days of payment of the Selected Product (“Product Cooling Off Period”), subject to such further terms and conditions as may be set out below.

 

Save as otherwise provided for herein, the subscription of the Selected Service will be:

 

  • for such Subscription Period as may apply to the Selected Service and the Subscription Channel through which the Selected Service is subscribed for and payments for Subscription Fees must be made by the Subscriber and may be deducted by the Hello Doctor Electronic Media Channel and/or the Third Party Benefit Program, as the case may be and to the extent applicable, in accordance with the applicable payment intervals or dates, via debit order or on such other payment mechanism and/or interval as may be applicable or apply from time to time to the Selected Service and/or Third Party Benefit Program; and

 

  • activated on the Confirmation Date; and

 

  • automatically renewed, on the same terms and conditions, after the Initial Subscription Period (being the initial Subscription Period) until such time as the Subscriber provides Hello Doctor with the applicable Written Notice to terminate or to Opt Out.

 

No refunds will be provided during the Subscription Period or any unexpired portion thereof, other than during the Subscription Cooling Off Period.

 

The ECT Act

 

The consumer protection provisions of the ECT Act will apply to transactions and communications that are executed electronically by the Subscriber and/or Purchaser, as the case may be, who is a natural Person. It does not apply to paper based transactions where the Subscriber and/or Purchaser, as the case may be, applies for a service or product by physically completing a paper based application form or other document in Writing. To this extent, the Subscriber and/or Purchaser, as the case may be, may be entitled to a cooling-off period, if and to the extent any transaction entered into under and/or by virtue of this Agreement complies with Sections 44 and 42 thereof, in which event the Subscriber and/or Purchaser, as the case may be, may be entitled, without penalty or reason, to cancel such subscription and/or purchase, as the case may be, within 7 (seven) Calendar Days of placing his or her order. In order to comply with the ECT Act,:

 

  • the Subscriber and/or Purchaser, as the case may be, must be a natural Person and the end user of such service and/or product; and

 

  • the transaction must have been concluded, in whole or in part, by means of, on or via the Hello Doctor Electronic Media Channels, save for by means of a face to face meeting and/or the Hello Doctor Call Centre; and

 

  • the transaction concerned must not be one excluded by Section 42(2) of the ECT Act.

 

 

 

 

 

PART THREE: SUBSCRIPTION SERVICES

 

Type of Subscription Services

 

The Subscriber understands and accepts that the Selected Service, if he or she is subscribing on and/or through:

 

  • one of the Hello Doctor Electronic Media Channels, will only be that Selected Service he or she has indicated as such on the Hello Doctor Electronic Media Channel concerned; and/or

 

  • the Hello Doctor Call Centre, will only be that Selected Service he or she has indicated to the Hello Doctor Call Centre; and/or

 

  • a Hello Doctor Prepaid Voucher, will only be that Selected Service he or she has indicated as such on the Hello Doctor Electronic Media Channel concerned; and/or

 

  • one of the Third Party Benefit Programs, will only be that Selected Service he or she is entitled to subscribe for by virtue of the agreement in force between Hello Doctor and the applicable Third Party Benefit Program.

 

To be clear, the Subscriber is not entitled and has no right to subscribe for or demand a Selected Service for which he is not entitled to subscribe for and/or has not subscribed and paid for.

 

Hello Doctor reserves the right to and will, at all times, in its Discretion, have the right from time to time to vary, change, add to and/or withdraw any of the Subscription Services, subject at all times to it honouring its obligations hereunder.

 

The Subscriber is obliged to and must regularly check the Hello Doctor Electronic Media Channels to confirm the nature, content, features and pricing of the Selected Service the Subscriber is subscribing for.

 

To be absolutely clear, the Selected Services do not and will not involve or comprise any form of face-to-face consultation, diagnosis and/or treatment.

 

Subscription of the Selected Service

 

To be eligible to use the Selected Service the Subscriber must subscribe or must have subscribed for such Selected Service by means of:

 

  • a Personal Subscription, whereby the Subscriber, being a natural Person acquires, by subscribing for, the Selected Service, in accordance with the terms, conditions and provisions of this Agreement and the Consumer Guide, in terms of which, such natural Person will be responsible to Hello Doctor for the payment of the Subscription Fees; or

 

  • a Third Party Person Subscription, in terms of which:

 

  • a Payor acquires, by means of a voucher or otherwise, the Selected Service or pays the Subscription Fees for the Selected Service for and/or on behalf of another Person, being the Subscriber and/or User; and/or

 

  • a Payor enters into an agreement with Hello Doctor to provide the Selected Service or a number of Selected Services for its employees, subscribers, customers and/or members, as the case may be, and, in terms of which, such Third Party Person will be responsible to Hello Doctor for the payment of the Subscription Fees for its intended employees, subscribers, customers and/or members, as the case may be, who, in turn, will be and become Subscribers in terms of this Agreement upon and in accordance with its terms, conditions and provisions; and/or

 

  • the Subscriber or User will not be entitled to make use of the Selected Service:

 

  • before and until his or her Payor has paid for such service; and/or

 

  • to the extent and for so long as such Payor is in default of its obligations to Hello Doctor; and/or

 

  • if and to the extent any agreement that may exist by and between Hello Doctor and such Payor has been terminated or is no longer in existence.

 

Hello Doctor by advertising the Subscription Services has invited the Payor and/or Subscriber to make an offer to subscribe for any one or more of the Selected Services. In the event the Subscriber makes an offer, Hello Doctor will have the Discretion and right to accept or reject such offer, in which event it will take additional action to demonstrate its intention to accept or reject the offer.

 

Selected Service

 

The Selected Service and applicable Subscription Fee payable by the Payor (which includes the Subscriber to the extent the Subscriber is the Party subscribing for the Selected Service) is and will be determined by:

 

  • the Subscription Channel through which the Selected Service is subscribed for; and/or

 

  • the applicable Selected Service subscribed for.

 

By way of elaboration, the Subscriber may subscribe for the Selected Service:

 

  • directly and indirectly with Hello Doctor on or through any of the Hello Doctor Electronic Media Channels by following the prescribed process therefore, including but not limited to the Subscription Process in respect of the Other Subscription Channels; or

 

  • indirectly with Hello Doctor through a Third Party Benefit Program.

 

The Subscriber represents and warrants to and in favour of Hello Doctor that he or she:

 

  • has carefully read the terms and conditions and each of the additional terms and conditions that may apply to the applicable Selected Service, if any; and

 

  • understands the financial commitments in subscribing for the Selected Service; and

 

  • has chosen the appropriate Subscription Period that best suits his or her needs; and

 

  • is and will at all material times be in a financial position to meet his or her obligations under this Agreement,

 

because the Subscriber is legally bound hereby, unless otherwise agreed to in Writing by Hello Doctor.

 

Payments & Payment Methods

 

Hello Doctor Electronic Media Channels – Hello Doctor Websites

 

If and to the extent the Subscriber has subscribed for the Selected Service on and/or through the Hello Doctor Websites, then and in that event the following terms and conditions will apply.

 

The Subscriber must pay for such Selected Service by:

 

  • clicking onto the link to the Hello Doctor Shopping Cart and make use of any of the Payment Gateways provided thereon; and/or

 

  • purchasing a Hello Doctor Prepaid Voucher from Hello Doctor and/or any Hello Doctor approved or accredited voucher vendor, if any or applicable, from time to time.

 

All payments must be made on a pre-paid basis, meaning that Subscription Fees must be paid in advance and prior to making use of the Selected Service.

All Subscription Fees will be due and payable on the due dates therefore irrespective whether or not the Selected Service has been or is being utilised by the Subscriber and/or the User, as the case may be.

 

To the extent the Subscriber wishes to make use of, and Hello Doctor in its Discretion consents thereto, any extended payment method (meaning paid by means of a regular debit order or recurring credit card payments), such payments will be made on a continual commitment basis, meaning that the Subscriber is committed for and to the full extent of the Subscription Period (unless otherwise agreed to in Writing in the Discretion of Hello Doctor), by means of the Monthly debit order, recurring credit card payment, Airtime Billing Options or such other additional recurring payment options that may from time to time be provided for by the Hello Doctor Shopping Cart.

 

The Subscriber, by selecting the Payment Gateway or method through which he or she wishes to pay (including but not limited to the debit order bureau used by Hello Doctor from time to time), appoints, authorises and/or instructs, as the case may be, such Person as his or her agent to give effect to such payment, and, as such, remains responsible and liable for such payment to Hello Doctor – hereby assuming the risk that payment will be duly and fully made to Hello Doctor.

 

Hello Doctor Call Centre

 

If and to the extent the Subscriber has subscribed for the Selected Service on and/or through the Hello Doctor Call Centre, then and in that event the following terms and conditions will apply.

 

The Subscriber must pay for such Selected Service by:

 

  • means of a Monthly debit order (or such other additional payment options that may from time to time be provided for by the Hello Doctor); and/or

 

  • purchasing a Hello Doctor Prepaid Voucher from Hello Doctor and/or any Hello Doctor approved or accredited voucher vendor, if any or applicable, from time to time.

 

All payments must be made on a pre-paid basis, meaning that Subscription Fees must be paid in advance and prior to making use of the Selected Service.

 

All Subscription Fees will be due and payable on the due dates therefore irrespective whether or not the Selected Service has been or is being utilised by the Subscriber and/or the User, as the case may be.

 

To the extent the Subscriber wishes to make use of, and Hello Doctor in its Discretion consents thereto, any extended payment method, such payments will be made on a continual commitment basis, meaning that the Subscriber is committed for and to the full extent of the Subscription Period (unless otherwise agreed to in Writing in the Discretion of Hello Doctor), by means of the Monthly debit order (or such other additional payment options that may from time to time be provided for by Hello Doctor).

 

The Subscriber, by selecting the method through which he or she wishes to pay (including but not limited to the debit order bureau used by Hello Doctor from time to time), appoints, authorises and/or instructs, as the case may be, such Person as his or her agent to give effect to such payment, and, as such, remains responsible and liable for such payment to Hello Doctor – hereby assuming the risk that payment will be duly and fully made to Hello Doctor.

 

Hello Doctor Prepaid Vouchers

 

If and to the extent the Subscriber has subscribed for the Selected Service by means of a Hello Doctor Prepaid Voucher, then and in that event the following terms and conditions will apply.

 

The Hello Doctor Prepaid Voucher must be redeemed by the Subscriber:

 

  • logging onto the Hello Doctor Website and following the Hello Doctor Shopping Cart process provided thereon; and/or

 

  • contacting the Hello Doctor Call Centre and completing the process provided therefore.

 

A Hello Doctor Prepaid Voucher will be specific for the fixed term subscription period, unless otherwise agreed to in Writing in the Discretion of Hello Doctor, with such payments being made on a pre-paid basis, meaning that Subscription Fees must be paid in advance and prior to making use of the Selected Service.

 

The Subscriber will not be entitled to a refund for any unexpired Subscription Period or if the Selected Service has not been utilised by the Subscriber and/or the User, as the case may be, unless otherwise agreed to in Writing in the Discretion of Hello Doctor.

 

Hello Doctor Electronic Media Channels – Mobisites and Cellular or Mobile Telecommunications Operator and/or Provider

 

If and to the extent the Subscriber has subscribed for the Selected Service on and/or through one of the other Hello Doctor Media Channels, being one of the Hello Doctor Mobisites, a Hello Doctor authorised App Store and/or USSD Platform, Mxit, Facebook, a duly appointed and authorised Hello Doctor cellular or mobile telecommunications operator and/or provider, a Hello Doctor authorised SMS Short Code and/or on a Hello Doctor authorised USSD Platform (“Other Subscription Channels”), then and in that event the following terms and conditions will apply.

 

The Subscriber will pay for the Selected Service by means of the applicable Other Subscription Channel deducting the daily, weekly and/or Monthly rate (of the applicable Subscription Fee for the Subscription Period), as the case may be, from the Subscriber, in accordance with the terms and conditions of the Selected Service, the Payment Option, Subscription Period and the agreement by and between the Subscriber and Other Subscription Channel.

 

All Subscription Fees will be due and payable on the due dates therefore irrespective whether or not the Selected Service has been or is being utilised by the Subscriber and/or the User, as the case may be.

 

The Subscriber, by selecting the applicable Subscription Channel through which he or she wishes to subscribe and pay for the Selected Service, appoints, authorises and/or instructs, as the case may be, such Other Subscription Channel, as his or her agent, to give effect to such payment, and, as such, remains responsible and liable for such payment to Hello Doctor – hereby assuming the risk that payment will be duly and fully made to Hello Doctor. To this extent, the Subscriber and/or Payor, as the case may be, hereby appoints, authorises and/or instructs, as the case may be, such Other Subscription Channel, as his or her agent, to give effect to such payment to Hello Doctor, by deducting or transferring such payment from such facility and/or funds available to the Subscriber and/or Payor, as the case may be, including but not limited to Airtime. By way of explanation, the Subscriber and/or Payor, as the case may be, must and will procure and ensure that he or she has sufficient funds, including but not limited to Airtime, to have deducted by the Other Subscription Channel and paid to Hello Doctor.

 

Third Party Benefits Programs

 

If and to the extent the Subscriber is entitled to and has subscribed for the Selected Service on and/or through one of the Third Party Benefit Programs, then and in that event the following terms and conditions will apply.

 

The Subscriber will be required to activate his or her subscription by logging onto the Hello Doctor Website or such other Subscription Channel allowed by Hello Doctor from time to time.

 

The Subscriber will only be entitled to the Selected Service:

 

  • for so long as the Third Party Benefit Program has paid for such service; and

 

  • to the extent the Third Party Benefit Program is not in default of its obligations to Hello Doctor; and

 

  • if and to the extent the agreement by and between the Third Party Benefit Program and Hello Doctor remains legally in force and has not been terminated; and
  • the Subscriber and/or his User is not in breach of this Agreement.

 

To the extent the Third Party Benefit Program is in arrear with its payments to Hello Doctor, Hello Doctor will, in its Discretion, have the right, but not the obligation, to suspend and/or refuse the Subscriber and/or its User access to the Selected Service.

 

The Subscriber understands and accepts that its subscription is not a right, but a conditional entitlement, which is at all times subject to the payment to Hello Doctor by the Third Party Benefit Program.

 

Commencement and Termination

 

Notwithstanding the earlier coming into being of this Agreement, the Subscriber will be entitled, for so long as payment is timeously made therefore, to the Selected Service from the Commencement Date until terminated as contemplated and provided for herein.

 

Hello Doctor Websites, Hello Doctor Call Centre & Hello Doctor Prepaid Vouchers

 

If and to the extent the Subscriber has subscribed for the Selected Service on and/or through one of the Hello Doctor Electronic Media Channels, the Hello Doctor Call Centre and, to the extent applicable, a Hello Doctor Prepaid Voucher, then and in that event the following terms and conditions will apply.

 

The Selected Service is for the selected Initial Subscription Period (which automatically renews) unless otherwise terminated by the Subscriber and/or the selected Fixed Subscription Period (which automatically terminates on expiry of the said period). Should the Subscriber choose to terminate this Agreement during the Initial and/or Fixed Subscription Period, the Subscriber will be liable to pay Hello Doctor a reasonable premature cancellation charge as determined by Hello Doctor in line with the requirements of the Consumer Protection Act.

 

Full Amount Paid Upfront

 

Should the Subscriber elect to pay the full amount of his or her Subscription Fees for his or her Fixed Subscription Service, in advance, the Selected Service will automatically and without any Written Notice terminate and no longer be available to the Subscriber on midnight of the last day of the Fixed Subscription Period for such subscription; unless the Subscriber renews his or her subscription by:

 

  • advising Hello Doctor thereof, in Writing, at least 20 (twenty) Business Days prior to such termination, by following the Hello Doctor Shopping Cart Process therefor and making payment therefor; or

 

  • simply making payment therefor by following the Hello Doctor Shopping Cart Process therefor or allowing any debit or payment instruction order.

 

Paid Regularly Over Time

 

Should the Subscriber elect to pay for his or her Subscription Fees over a period by means of a Monthly debit order or similar regular payment intervals or arrangement (for example daily, weekly or Monthly), the Selected Service will automatically and without any Written Notice continue after the Initial Subscription Period subscribed for, unless the Subscriber advises Hello Doctor, in Writing, prior to such Initial Subscription Period coming to an end that he or she elects to terminate such Selected Service as at and on the last day of such Initial Subscription Period.

 

Should the Subscriber elect to continue with the Selected Service by remaining silent or fail and/or neglect to advise Hello Doctor, in Writing, prior to the Initial Subscription Period coming to an end that he or she elects to terminate the Selected Service as at and on the last day of such Initial Subscription Period, this Agreement will then continue on the same basis as the Initial Subscription Period (recurring) until terminated by either Party as contemplated or provided for herein – with the Subscriber hereby authorising the debit order or similar payment instruction to be continued.

 

 

 

 

Suspension & Termination

 

Notwithstanding any other term, condition and/or provision of this Agreement, Hello Doctor will be entitled, but not obliged to:

 

  • suspend the Selected Service, without any recourse to itself, pursuant to the Force Majeure provisions herein contained; and/or

 

  • suspend the Selected Service and/or cancel or terminate this Agreement, without any reason and recourse to itself, if and to the extent the Subscriber fails, neglects and/or refuses to make any payment timeously and/or at all; and/or

 

  • cancel or terminate this Agreement, without any reason and recourse to itself, by giving the Subscriber 30 (thirty) Calendar Days’ Written Notice in that regard.

 

Other Subscription Channels

 

If and to the extent the Subscriber has subscribed for the Selected Service on and/or through one of the Other Subscription Channels, then and in that event the following terms and conditions will apply.

 

The Subscriber and/or the Payor, as the case may be, must, where applicable, Opt In, with respect to the applicable Subscription Service, as provided for by the applicable Other Subscription Channel, to commence with the Selected Service and, by so doing, accepts the terms and conditions set out in this Agreement.

 

This Agreement must be terminated by the Subscriber in accordance with the terms and conditions of the Selected Service and the agreement by and between the Subscriber and the applicable Other Subscription Channel. By way of explanation, the Subscriber and/or the Payor, as the case may be, must, where applicable, Opt Out of such service in accordance with the process and procedure provided for by the Consumer Guide and the applicable Other Subscription Channel. To the extent the Subscriber Opts Out of a Subscription Service during the Initial and/or Subsequent Subscription Period, as the case may be, the service will remain available until the end of that Initial and/or Subsequent Subscription Period, as the case may be.

 

Notwithstanding any other term, condition and/or provision of this Agreement, Hello Doctor will be entitled, but not obliged to:

 

  • suspend the Selected Service, without any recourse to itself, pursuant to the Force Majeure provisions herein contained; and/or

 

  • suspend the Selected Service and cancel or terminate this Agreement, without any recourse to itself, if and to the extent the Subscriber and/or the Other Subscription Channel fails, neglects and/or refuses to make any payment to Hello Doctor timeously and/or at all; and/or

 

  • cancel or terminate this Agreement, without any recourse to itself, if and to the extent any agreement by and between Hello Doctor and the Other Subscription Channel is suspended, terminated and/or expires; and/or

 

  • cancel or terminate this Agreement, without any reason and recourse to itself, by giving the Subscriber 30 (thirty) Calendar Days’ Written Notice in that regard or such shorter period if the Subscriber has subscribed for a daily, weekly or Monthly Subscription Period.

 

Third Party Benefits Programs

 

If and to the extent the Subscriber has subscribed for the Selected Service on and/or through a Third Party Benefit Program, then and in that event the following terms and conditions will apply.

 

Notwithstanding any other term, condition and/or provision of this Agreement, Hello Doctor will be entitled, but not obliged to:

 

  • suspend the Selected Service, without any recourse to itself, pursuant to the Force Majeure provisions herein contained; and/or

 

  • suspend the Selected Service and/or cancel or terminate this Agreement, without any recourse to itself, if and to the extent the Third Party Benefit Program fails, neglects and/or refuses to make any payment timeously and/or at all; and/or

 

  • cancel or terminate this Agreement, without any recourse to itself, if and to the extent any agreement by and between Hello Doctor and the Third Party Benefit Program is suspended, terminated and/or expires; and/or

 

  • cancel or terminate this Agreement, without any reason and recourse to itself, by giving the Subscriber 30 (thirty) Calendar Days’ Written Notice in that regard.

 

 

PART FOUR: HELLO DOCTOR PRODUCTS

 

The following terms, conditions and/or provisions apply to all purchases ordered and/or made by the Purchaser on or through the Hello Doctor Electronic Media Channels and, where applicable, physical and/or electronic sales outlets selling on behalf of or for Hello Doctor.

 

To the extent the Purchaser is also a Subscriber, it will not be necessary for the Subscriber to also complete an electronic Purchaser Form – the Subscriber will be deemed to be a Purchaser under and by virtue of this Agreement and be bound by its terms, conditions and provisions by simply purchasing any Hello Doctor Product.

 

To the extent the Purchaser wishes to subscribe for any of the Subscription Services he or she will be required to subscribe for the Selected Service in accordance herewith.

 

The Hello Doctor Products

 

Hello Doctor reserves the right to and will, at all times, in its Discretion, have the right from time to time to vary, change, add to and/or withdraw any of the Hello Doctor Products.

 

By Hello Doctor advertising the Hello Doctor Products, the Purchaser is invited to make an offer to purchase for any one or more of such products, being the Selected Product.

 

In the event the Purchaser makes an offer, Hello Doctor has the Discretion and right to accept or reject such offer, in which case it will take additional positive action to demonstrate its intention to accept or reject the offer.

 

Hello Doctor Shopping Cart Process

 

Unless otherwise agreed to in Writing by Hello Doctor, to make any purchase on the Hello Doctor Website a Purchaser must complete the Purchaser Form and click on the “I ACCEPT” button / checkbox to signify that the Purchaser is agreeing (and is deemed to have read and agreed) to be bound by the terms, conditions and provisions herein contained.

 

The Purchaser will and must, from time to time, prior to making any purchase, ensure that his or her contact particulars are correct and/or current.

Product Sales and Availability

 

All products displayed on the Hello Doctor Websites or Mobisite are subject to availability.

 

Unless otherwise specifically provided for, all prices are quoted in South African Rand and, as such, all foreign currency must be converted, at the Purchaser’s risk, to Rand for payment thereof.

 

Hello Doctor reserves the right to discontinue or change the specifications of any of its products from time to time without notice.

 

To the extent a Purchaser orders a Hello Doctor Product and such product is not or no longer available, Hello Doctor must and will inform the Purchaser of such, as soon as reasonably possible, and, if applicable refund the Purchaser if the product has been discontinued.

 

Hello Doctor will charge the Purchaser the prices as they are reflected from time to time for such products on the Hello Doctor Websites.

 

Unless otherwise specifically provided for, prices quoted on the Hello Doctor Websites include VAT.

 

To the extent Hello Doctor makes special promotions available from time to time, the products sold under such special promotions will be subject to certain conditions, including stock availability and limited offer stipulations.

 

To the extent a Hello Doctor Product requires physical delivery by post and/or courier service, a delivery fee will be charged to and be payable by the Purchaser for each order placed.

 

Confirmation of Purchase

 

Purchase orders placed through the Hello Doctor Media Channels constitute an offer to purchase on the terms, conditions and/or provisions herein contained.

 

The Purchaser’s offer will be deemed to have been accepted by Hello Doctor when the Purchaser receives Hello Doctor’s confirmation of the Purchaser’s order. Failure by Hello Doctor to formally confirm or notify acceptance will not affect the validity of the sale or the enforceability thereof by Hello Doctor.

 

Payment

 

Hello Doctor or, where applicable, any of its collecting agents on any of the Hello Doctor Media Channels or Payment Gateways, as the case may be, is hereby authorised and instructed to and will debit the total value of the Purchaser’s purchase order against the payment method tendered by the Purchaser during the check-out process of the Hello Doctor Shopping Cart Process or on the Other Subscription Channel, as the case may be.

 

The Purchaser may use any of the Payment Gateways listed on the Hello Doctor Shopping Cart Process and/or Other Subscription Channel, if available, from time to time.

 

Payment will and must be effected on acceptance by Hello Doctor of the Purchaser’s order and prior to delivery thereof.

 

The Purchaser warrants that he or she is over the age of 18 (eighteen), is authorised to use such mobile or other electronic device or payment card to make payment, as the case may be, and that there are sufficient funds available to pay for the order.

 

Delivery

 

To the extent a physical delivery of the Selected Product is required,:

 

  • Hello Doctor intends delivering the Selected Product as per the times illustrated on the Hello Doctor Shopping Cart; and

 

  • delivery estimates are only estimates; and

 

  • the Purchaser will be responsible for and must pay the shipping costs as illustrated therefore from time to time in the Hello Doctor Shopping Cart.

 

Hello Doctor will not be responsible for delayed deliveries caused by any problems which may arise due to any of the events considered a Force Majeure and/or the importation of goods, including but not limited to customs detaining shipments, South African Revenue Services’ inspections, customs inspections, courier or flight delays.

 

Save for the applicability of the ECT Act provided for below, the Purchaser will not be entitled to a refund for any delay. Refunds may be made at and in the Discretion of Hello Doctor in accordance with its Refund Policy.

 

If delivery is made and the Purchaser is not available at his or her chosen delivery address, resulting in the shipment being returned to Hello Doctor, the Purchaser will be liable for shipping costs due to non-delivery.

 

The Purchaser is hereby advised not to purchase a Selected Product if he or she does not agree to these delivery terms, conditions and/or provisions.

 

Cancellation

 

If for any reason the Purchaser would like to cancel an order, this may be done by emailing info@hellodoctor.com or by contacting the Hello Doctor Customer Services Call Centre in each of the countries Hello Doctor has a call centre, provided and subject to the strict understanding that such cancellation is made prior to midnight on the day prior to the date of delivery.

 

Hello Doctor reserves the right to debit the Purchaser’s account or chosen payment mechanism for the delivery charges incurred by it for and in respect of any late cancellation.

 

If the Purchaser cancels his or her payment for any reason or if the Purchaser’s payment mechanism should cease to be valid for whatever reason, the Purchaser will nevertheless be bound to pay to the full purchase price, including all charges and costs incurred by Hello Doctor relating to the recovery thereof.

 

Hello Doctor will not be required to nor will the Purchaser have the right to cancel any purchase involving the sale and purchase of a computer game or wallpaper unless the software thereof is defective. The onus of proving such defect will be on the Purchaser.

 

Risk and Ownership

 

Risk in the Selected Product will pass to the Purchaser on delivery.

 

Hello Doctor will retain ownership in the Selected Product until payment has been received in full therefore.

 

The Purchaser hereby appoints the courier service provider as his or her agent to give effect to the delivery and, as such, delivery will be at the Purchaser’s sole risk.

 

 

PART FIVE: GENERAL AND OTHER TERMS, CONDITIONS AND/OR PROVISIONS

 

Offer and Acceptance

 

It is specifically understood that it is the Subscriber and/or Purchaser, as the case may be, who makes an offer to Hello Doctor for the Selected Service and/or Product, as the case may be, with Hello Doctor having the unfettered right to accept or reject such offer.

 

The Subscriber and/or the Purchaser, as the case may be, hereby expressly dispenses with actual or physical Notification of acceptance of the offer by Hello Doctor.

 

All orders placed by the Subscriber and/or the Purchaser, as the case may be, are subject to the approval of Hello Doctor in its Discretion. If Hello Doctor does not approve an order, it will not be under any obligation to the Subscriber and/or the Purchaser, as the case may be, to give reasons for its decision.

 

Placing the Selected Product in the Hello Doctor Shopping Cart, without completing the entire Hello Doctor Shopping Cart Process, does not constitute:

 

  • an agreement of sale; and/or

 

  • an order for such service and/or product – but merely an offer,

 

and, as such, Hello Doctor may remove such product from the Hello Doctor Shopping Cart if stock becomes unavailable – in which event, the Purchaser cannot hold Hello Doctor liable if such product is not available when the purchase process is completed at a later stage.

 

An agreement of sale in respect of a Selected Product only comes into effect if and when:

 

  • the Purchaser electronically completes the Hello Doctor Shopping Cart Process in full; and

 

  • payment is either authorised or received by Hello Doctor in its bank account.

 

VAT

 

Unless the context of the Clause concerned and/or the Hello Doctor Websites clearly indicate that the amount concerned is exclusive of VAT, all amounts provided for in this Agreement will be inclusive of VAT (if applicable) and any VAT chargeable in respect of matters giving rise to such payments (or other consideration) will be added into such payment or other consideration and paid by the Subscriber and/or the Purchaser, as the case may be.

 

All or any VAT arising from and/or in terms of this Agreement will become due for payment and will be paid by the Subscriber and/or the Purchaser, as the case may be, forthwith against payment of the full consideration for such goods and/or services.

 

Any dispute which may arise as to the liability for and/or payment of VAT or the amount thereof will be referred to Hello Doctor’s auditors (acting as independent experts) for decision and their decision will be final and binding as between the Parties and carried into effect.

 

VAT will be charged, at the prevailing rate, on all products and services acquired and/or subscribed for by a Person resident in South Africa or, if applicable, his or her country of residence.

 

The Purchaser and/or Subscriber will, if applicable, be entitled to request a VAT invoice.

 

Returns

 

Product Satisfaction Guarantee – Cooling Off

 

If the Purchaser is dissatisfied with the Selected Product (and it is not defective), he or she may return such product for a full refund (excluding any delivery costs and charges), provided the Purchaser returns, to Hello Doctor, such product:

 

  • within 7 (seven) Calendar Days of receipt thereof by the Purchaser; and

 

  • in the same condition the Purchaser received such product, together with its packaging intact; and

 

  • it is not a computer game, downloaded software and/or electronic wallpaper or a voucher.

 

Late Delivery

 

Save as may be otherwise provided for in this Agreement, to the extent the ECT Act is applicable to any purchase made in terms of or by virtue of this Agreement, the Purchaser will be entitled to cancel the purchase so made by giving Hello Doctor 7 (seven) Calendar Days’ Written Notice of such cancellation if the Selected Product is not delivered within 30 (thirty) Calendar Days after having purchased the said product.

 

Incorrect Product

 

In the unlikely event an incorrect Selected Product is delivered to the Purchaser by mistake, the Purchaser must:

 

  • refrain from removing the said product from its original packaging, open or use same in any way; and

 

  • promptly contact the Hello Doctor Call Centre on the number provided for on the Hello Doctor Websites giving the operator full details to enable Hello Doctor to resolve the mistake by arranging to collect such product from the Purchaser and deliver the correct product in its place.

 

Returns Confirmation Reference

 

If the Purchaser wishes to return a Selected Product for any reason permitted under this Agreement, he or she must Notify Hello Doctor in Writing by emailing info@hellodotor.com and Hello Doctor will respond within 12 (twelve) working hours.

 

Returns Compliance

 

When returning the Selected Product in accordance with this Agreement, the Purchaser must ensure that the product to be collected by an agent or courier reasonably acceptable to Hello Doctor and is:

 

  • properly protected; and

 

  • in its original packaging (save where defective), together with all accessories, instructions and/or documentation (if any); and

 

  • given Written proof of the Returns Confirmation Reference.

 

Fees, Cost and Charges

 

Hello Doctor will be entitled, but not obliged, to charge the Purchaser, who will be obliged to pay Hello Doctor, the courier and/or delivery charges as may be set out on the Hello Doctor Website from time to time, for delivery and/or collection, as the case may be, of the Selected Product.

Hello Doctor will be entitled, but not obliged, to charge the Purchaser, who will be obliged to pay Hello Doctor, the administration and/or handling fee as may be set out on the Hello Doctor Website from time to time for processing any retuned product which is not defective.

 

To the extent a Selected Product is defective, Hello Doctor will pay its agent for the collection and/or redelivery of such product.

 

Refunds

 

Subscription Services

 

Under no circumstance will Hello Doctor refund any expired Subscription Period.

If and to the extent Hello Doctor resolves to refund the Subscriber for any unexpired portion of any Fixed Subscription Period already paid for by the Subscriber, an administration fee equal to 25% (twenty five percent) of the Rand (or other currency amount) amount of the unexpired Subscription Period will be levied by Hello Doctor to and be payable by the Subscriber to all refunds requested after 7 (seven) Calendar Days from date of subscription.

 

Hello Doctor Products

 

The Purchaser will be entitled to a refund of the purchase price he or she paid for the Selected Product:

 

  • against return to Hello Doctor of the said product in good order – to the extent applicable; and

 

  • if, in Hello Doctor’s Discretion, the Purchaser has endured a genuine processing error, a technical problem, chargeback, a fraudulent transaction or situation (which Hello Doctor reasonably considers to be potentially fraudulent or unlawful) or suffered a loss as a result of a breach of any of Hello Doctor’s policies; and/or

 

  • if the Purchaser complies fully with the provisions herein prescribing and providing for refunds; and

 

  • less the administration and/or handling fees contemplated and provided for herein; and

 

  • less any charges and/or costs of delivery and/or collection, as the case may be (and to the extent applicable);

 

save that no refund will be paid:

 

  • where the administration and/or handling fees contemplated and provided for herein exceed the value of the refund; and/or

 

  • for and/or in respect of any voucher sold by Hello Doctor itself and/or for and/or on behalf of any other Person

 

Valid Reasons

 

The Purchaser will and must provide Hello Doctor with a valid reason for claiming a refund when requesting such refund.

 

Refund Process

 

To the extent a Purchaser is desirous of claiming a refund, he or she must request same in Writing by emailing info@hellodoctor.com – failure to do so means that Hello Doctor will not be in a position to consider the Purchaser’s request.

 

Refunds on Cancellation

 

Hello Doctor reserves the right to cancel a transaction in order to comply with credit card industry regulations, payment processor and/or banking rules, or the need to comply with legal requirements, intellectual property rights, Court orders and law enforcement agencies, in which event the Purchaser will be entitled to a refund as contemplated and provided for herein.

 

Barring and Restrictions

 

Hello Doctor will be entitled, but not obliged, to take steps to restrict the Subscriber and/or Purchaser, as the case may be, from making repeated subscriptions and/or purchases, as the case may be.

 

Hello Doctor will be entitled, but not obliged, to take steps to restrict the Subscriber, if subscribing on, through or by means of an Other Subscription Channel, from making repeated short-term subscriptions, from making further subscriptions and the Subscriber will be so barred and restricted.

 

Dispute Resolution Procedure

 

Hello Doctor provides a transparent online resolution procedure for settling disputes and may direct refund requests through that channel for resolving such requests.

 

Amendment to Refund Policy

 

Hello Doctor will at all times be entitled, but not obliged, to amend the Refund Policy and/or its terms, conditions and/or provisions without any further agreement required by the Purchaser and/or Subscriber, as the case may be, in which event this Agreement will be deemed to be amended accordingly.

 

Errors and Omissions

 

Subject to the provisions of the Consumer Protection Act (to the extent and where applicable),:

 

  • Hello Doctor will use its reasonable endeavors to make its services and products available to the Subscriber and/or the Purchaser, as the case may be, and to maintain the availability thereof for use by him or her, on the understanding that such services and/or products are provided on an “as is” and “as available” basis; and

 

  • Hello Doctor cannot and does not, directly or indirectly, impliedly or otherwise, represent, warrant or guarantee that the services and/or products will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to its delivery timeline requirements; and

 

  • Hello Doctor does not warrant the accuracy, adequacy or completeness of the information provided on the Hello Doctor Electronic Media Channels (including but not limited to any invoice issued pursuant thereto) and, as such, expressly disclaims liability for any errors or omissions that may be contained in such information.

 

If and to the extent any service and/or product is erroneously offered at incorrect prices and/or delivery charges, Hello Doctor will not be obliged and/or committed to sell such service and/or product at such incorrect prices and/or delivery charges, but will refund monies paid by the Subscriber and/or the Purchaser, as the case may be, should he or she not wish to proceed with the subscription and/or purchase at the correct price and/or delivery charge.

 

Invoicing

 

No invoices will be issued to the Subscriber and/or the Purchaser, as the case may be, unless specifically requested or required by Law.

 

Certificate

 

A certificate signed by any director of Hello Doctor (whose appointment or authority as such it will not be necessary for Hello Doctor to prove), certifying any amount owing or outstanding in terms of the provisions of this Agreement which is, will be or has become due and payable, rates of interest and other charges applicable thereto will, in the absence of manifest error, be prima facie (meaning at first sight) proof of the matters therein stated for all purposes, including for the purposes of furnishing further particulars, obtaining provisional sentence and obtaining judgment against the Subscriber and/or Purchaser, as the case may be.

 

Payments

 

All payments by the Payor / Subscriber and/or Purchaser, as the case may be, to Hello Doctor must and will be made without any counter-claim, deduction and free and clear of exchange and bank fees, charges and commission, taxes, levies, imposts, duties, charges, penalties or any other deductions imposed on the Payor / Subscriber and/or Purchaser, as the case may be, except to the extent that the Payor / Subscriber and/or Purchaser, as the case may be, is required by Law to make payment subject thereto.

 

Payment by the Payor / Subscriber and/or Purchaser, as the case may be, will only be deemed to have been made to Hello Doctor once the monies remitted by the Payor / Subscriber and/or Purchaser, as the case may be, have been received by and cleared into Hello Doctor’s bank account.

 

If payment is made via debit order, other electronic means or via any other intermediary (including but not limited to an Other Subscription Channel), such bank and/or other intermediary will act as the agent of the Payor / Subscriber and/or Purchaser, as the case may be.

 

Debit orders will be collected by Hello Doctor’s debit order collection agent on the dates specified in the applicable form or telephonically, as the case may be, and, as such, the Payor / Subscriber and/or Purchaser, as the case may be, will (unless otherwise agreed to in Writing by Hello Doctor) be deemed to have breached this Agreement if he or she changes his or her banking details for the debit order, without giving Hello Doctor prior Written Notice of such change, together with the new banking details immediately after such change has been effected. This notice must be supplied in Writing to payment@hellodoctor.com.

 

The Subscriber, in the event of a debit order or other similar electronic payment, hereby authorises Hello Doctor and its affiliates to debit the Subscriber’s bank account between the 1st (first) and last Day of each Month for all and/or any fees, costs, charges and taxes owed by the Subscriber in terms of this Agreement. In this regard, Hello Doctor and its affiliates will be entitled, authorised and instructed to make multiple submission during a Month to procure or obtain payment.

 

The Subscriber, in the event of paying by means of Airtime Billing or other similar electronic payment, hereby authorises Hello Doctor and the Other Subscription Channel to deduct monies due by the Subscriber to Hello Doctor from his or her Airtime at any time between the 1st (first) and last Day of each Month, which may be made by means of multiple submissions as and when the Subscriber has Airtime available.

 

Electronic Messaging

 

The Subscriber and/or Purchaser, as the case may be, hereby consents, authorises and instructs Hello Doctor to send electronic messages to his or her electronic messaging media (including but not limited to his or her personal computer and/or mobile or cellular phone) at any of the electronic mail addresses and contact details supplied by the Subscriber and/or Purchaser, as the case may be, who will be entitled but not be obliged, to:

 

–      inform him or her of amendments to this Agreement and/or to any price change in respect of any service or product; and/or

 

–      furnish him or her with access to this Agreement; and/or

 

–      communicate information to him or her regarding any account or records he or she has with Hello Doctor; and/or

 

–      inform him or her of planned and unplanned interruptions to any service or delivery; and/or

 

–      inform him or her of new or available products and services; and/or

 

–      inform him or her of promotions and special offers; and/or

 

  • deliver any Selected Service and/or Selected Product, as the case may be.

 

The Subscriber and/or Purchaser, as the case may be, may Opt Out of receiving the above messaging service provided he or she advises Hello Doctor in Writing by updating his or her profile on the Hello Doctor Websites or Other Subscription Channel.

 

Hello Doctor has no and will not have any liability to the Subscriber and/or Purchaser, as the case may be, including but not limited to any member of his or her household or any third party or other Person as a result of or in connection with electronic messaging (save as may result from Hello Doctor’s gross negligence) whether by Hello Doctor, by the Payor / Subscriber and/or Purchaser, as the case may be, or by a third party or other Person, using any Selected Service and/or Selected Product, as the case may be.

 

The Subscriber and/or Purchaser, as the case may be, hereby indemnifies and holds Hello Doctor harmless against any loss or harm that the Subscriber and/or Purchaser, as the case may be, including but not limited to any member of his or her household or any third party or other Person, may suffer or incur as a result of any such communications, hereby waiving all and/or any rights and/or claims of whatsoever nature in that regard.

 

 

Warranties

 

The Subscriber and/or Purchaser, as the case may be, hereby represents and warrants to and in favour of Hello Doctor that:

 

–      he or she has the required legal capacity to enter into and be bound by this Agreement; and

 

–      he or she confirms that he or she is 18 (eighteen) years of age or older (if a higher age is required in any country other than South Africa) and that there are no limitations upon his or her right to contract with Hello Doctor – if the Subscriber and/or Purchaser, as the case may be, is under 18 (eighteen) years of age or his or her contractual capacity is subject to any legal form of limitation, this Agreement will not be binding on either of Hello Doctor or any of them unless the Subscriber and/or Purchaser, as the case may be, are able to prove that in accepting this Agreement, he or she was assisted by his or her legal guardian, custodian, liquidator (as the case may be) or by such other Person legally authorised to assist him or her in contracting or to contract on his or her behalf – a Subscriber can purchase a subscription for any Person under the age of 18 (eighteen) years of age (or other legal limit required in a country other than South Africa), in which event the Subscriber and such Person are deemed then to jointly be the Subscriber herein, both being bound by the terms, conditions and/or provisions hereof; and

 

–      this Agreement constitutes legal, valid and binding obligations on him or her and is legally enforceable against such Subscriber and/or Purchaser, as the case may be; and

 

–      all factual information supplied by him or her to Hello Doctor in contemplation of or for the purposes of this Agreement, including but not limited to the Selected Service and/or Selected Product, is true and accurate in all material respects as at the date thereof and is not misleading in any way; and

 

  • he or she will immediately Notify Hello Doctor in Writing of any change in his or her address, contact details and/or banking details.

 

The Subscriber hereby specifically represents and warrants to and in favour of Hello Doctor that all information offered, proffered, provided, discussed with and/or communicated to any medical practitioner whilst making use of a Selected Service will be absolutely true and correct in every respect and regard – hereby acknowledging the importance as to the serious consequences if such information is not as represented and warranted.

Subject to any and/or all applicable Laws, Hello Doctor makes no warranty or representation, whether expressly or implicitly,:

 

  • about any component of a Selected Product or Selected Service, or that the Subscriber, Purchaser and/or User, as the case may be, will be able to have access to or continue to have access to the Selected Service or that such access will be continuous and/or uninterrupted; and/or

 

  • as to the quality of reception by the Subscriber, Purchaser and/or User, as the case may be, of the Selected Service, or any aspect thereof, as Hello Doctor cannot be responsible or liable for electronic media or conveyance through, on and/or via such electronic means as these factors are and will be beyond its control; and/or

 

  • that the software used to provide the Selected Service and/or the Selected Product, including any software applications, is virus or error-free, flawless or without fault.

 

Subject to any and/or all applicable Laws, Hello Doctor, in the absence of its gross negligence or wilful misconduct or that of any Person acting for or controlled by it, is and will not be liable:

 

  • to any Person for the content of and/or the use of materials constituting the Selected Service and/or Selected Product, whether provided by Hello Doctor or a third party or Person; and/or

 

  • for any malfunction of a Selected Product if such malfunction does not amount to a defect, failure, hazard or unsafe characteristic as contemplated in the Consumer Protection Act.

 

To the extent the Consumer Protection Act is applicable to any transaction contemplated and provided for under or by virtue of this Agreement, the Purchaser may, in terms of the implied warranty of quality provided for in section 56 of the said Act or in terms of which a Selected Product fails to meet the requirements and standards contemplated in section 55 of the said Act, be entitled to return the Selected Product to Hello Doctor, without penalty and at its risk and expense, and, where applicable, to request, at his or her election, that:

 

  • the Selected Product be repaired or replaced; or

 

  • the Purchaser be refunded the price paid by for the Selected Product.

 

 

 

Personal Information

 

By entering into this Agreement the Subscriber and/or Purchaser, as the case may be, expressly gives and, to the extent applicable, is and will be deemed to have provided express permission for the collection, collation, processing, receipt, storage, recording, updating, modifying, retrieval, dissemination and distribution of his or her personal information for the purposes set out herein, which Hello Doctor is entitled, but not obliged to do.

 

Subject to all and/or any Laws to the contrary, the Subscriber and/or Purchaser, as the case may be, must and will:

 

  • provide Hello Doctor with the personal and contact details and information as required by it in order to administer and/or deliver the Selected Service and/or the Selected Product, as the case may be; and/or

 

  • inform Hello Doctor, in Writing within 7 (seven) Calendar Days of any change to any of the information provided by the Subscriber and/or Purchaser, as the case may be, in relation to the Selected Service, the Selected Product and/or this Agreement.

 

The Subscriber and/or Purchaser, as the case may be, hereby authorises Hello Doctor (who will not be obliged to), subject to any and/or all applicable Laws, to:

 

  • access from any credit bureaux, which is a member of the Credit Bureau Association and subscribes to its Code of Conduct (“Credit Bureaux“) his or her personal information concerning financial risk and payment habits (“Payment Profile“) for purposes of fraud prevention and debtor tracing, and to disclose information regarding his or her Payment Profile to such Credit Bureaux; and/or

 

  • obtain, capture, store, analyse and use for its marketing purposes his or her purchasing habits and profile; and/or

 

  • use information that Hello Doctor may have in relation to the Subscriber and/or Purchaser, as the case may be, for the purposes of –

 

  • processing any request; and/or

 

  • administering this Agreement; and/or

 

  • informing the Subscriber and/or Purchaser, as the case may be, of any new aspects of the Selected Service and/or Selected Product, as the case may be, or services and/or products provided by Hello Doctor affiliates; and/or

 

  • informing the Subscriber and/or Purchaser, as the case may be, of promotional competitions; and

 

  • notifying the Subscriber and/or Purchaser, as the case may be, of any amendments to this Amendment; and

 

  • disclosing the Subscriber’s and/or Purchaser’s, as the case may be, personal information (save that all private and personal medical information will remain confidential):

 

  • to companies, businesses or Persons affiliated with Hello Doctor for purposes of marketing their services (subject to the Subscriber’s and/or Purchaser’s, as the case may be, right to refuse such disclosure of personal information); and/or

 

  • to any company, business or Person which acquires the Hello Doctor business or any part thereof, or which it may acquire; and/or

 

  • to agents, representatives or service providers which Hello Doctor appoints to process any transaction contemplated and/or provided for herein, administer this Agreement or provide management or other services; and/or

 

  • to Hello Doctor’s payment system providers in order to facilitate the collection of any fees, charges and costs using payment systems owned and operated by third parties or other Persons; and/or

 

  • if and to the extent required to do so to comply with any Law; and

 

  • retain the Subscriber’s and/or Purchaser’s, as the case may be, personal information referred to herein for as long as Hello Doctor is required to do so in terms of the Law or in order to exercise or protect any of its rights under or by virtue of this Agreement.

 

Non Hello Doctor Services and/or Products

 

To the extent Hello Doctor provides the marketing platform for the purchase by the Purchaser of a voucher unrelated to the Hello Doctor Services and/or Products, there will be no legally binding agreement by and between the Purchaser and Hello Doctor and all transactions associated therewith will be by and between the Purchaser and other Person on whose behalf Hello Doctor is conducting such marketing.

 

To the extent a Selected Service and/or Selected Product is packaged with, linked to and/or contains an embedded third party product or service, including but not limited to healthcare or insurance, the Subscriber and/or the Purchaser, as the case may be, hereby undertakes, where applicable, to sign such other documentation as may be required by law or otherwise to give effect to a legal relationship as between the Subscriber and/or the Purchaser, as the case may be, and the third party issuing such healthcare or insurance service and/or product.

 

Intellectual Property

 

The Subscriber and/or the Purchaser, as the case may be, hereby accepts, acknowledges and records that, as far as he or she is concerned, all materials, including the information and/or content comprising and/or constituting the Selected Services and/or the Hello Doctor Products are protected by copyright and Intellectual Property rights, which are either owned by, or the use thereof is licensed to, Hello Doctor.

 

The Subscriber and/or the Purchaser, as the case may be, acquires no right, title or interest in Hello Doctor’s Intellectual Property and will use his or her best endeavours to maintain and protect its interest and that of its suppliers and licensors in such rights.

 

The Subscriber and/or the Purchaser, as the case may be, may not use and will not permit, facilitate or condone any other Person using any of Hello Doctor’s Intellectual Property or duplicate, reproduce, sell, stream, download, distribute or otherwise use or transmit the any part or portion of Hello Doctor’s Intellectual Property other than as contemplated and provided for in this Agreement – there shall be no commercial gain by any other Person (other than Hello Doctor) from the Subscriber and/or the Purchaser, as the case may be, using a Hello Doctor Product and/or its intellectual Property.

The Subscriber and/or the Purchaser, as the case may be, is not and will not be permitted to manipulate Hello Doctor’s Intellectual Property – the sale and copying thereof is strictly prohibited.

 

Force Majeure

 

Hello Doctor will not be liable for failure to perform if the failure is attributable to a Force Majeure.

 

If Hello Doctor suffers or has to endure Force Majeure conditions that will result in its non-performance, it will and must Notify the Subscriber and/or the Purchaser, as the case may be, in Writing, of the existence of such conditions and the anticipated period of non-performance.

 

If the actual period of non-performance, because of Force Majeure conditions, exceeds 3 (three) Months from the date of Written Notice of Force Majeure conditions, either of Hello Doctor or the Subscriber and/or the Purchaser, as the case may be, will be entitled, but not obliged, to terminate this Agreement at the end of such 3 (three) Month period or at any time thereafter during the continuance of the Force Majeure conditions on 60 (sixty) Calendar Days’ Written Notice.

 

Neither Party will owe to the other any damages, reimbursement or indemnification as a result of a Force Majeure termination.

 

Limitation of Liability

 

All references to Hello Doctor or its affiliates herein will include a reference to their shareholders, promoters, employees, representatives, directors, agents, consultants, advisers, subcontractors and any other Persons acting for or on their behalf in the provision of any service and/or product contemplated or provided for herein.

 

Hello Doctor will be entitled to suspend, cancel, vary or terminate this Agreement or any part thereof, without incurring any liability whatsoever, in the event of a prohibition by the government or a regulatory authority on the transmission of or access to the Selected Service and/or Selected Product, as the case may be, or any impossibility of the performance by Hello Doctor of its obligations under this Agreement, which impossibility arose from circumstances beyond the reasonable control of Hello Doctor.

 

Neither Hello Doctor nor any of its affiliates is or will be liable for any loss or damages of any nature whatsoever suffered by the Subscriber and/or the Purchaser, as the case may be, or any other Person arising out of or in connection with:

 

–      any act or omission of Hello Doctor or its affiliates, save for any act or omission which is wilfully intended to cause loss or is grossly negligent; and/or

 

–      a breach of this Agreement by the Subscriber and/or the Purchaser, as the case may be;

 

–      any interruption, delay, suspension, defect or failure in the distribution or reception of the Selected Service beyond Hello Doctor’s reasonable control.

 

Notwithstanding any express exclusion of liability recorded herein, neither Hello Doctor nor any of its affiliates will be liable for any loss or damage of any nature, including direct, indirect, special or consequential damages, including loss of profits, suffered by the Subscriber and/or the Purchaser, as the case may be, or any third party or Person arising from any cause, except where such loss or damage is caused by the intentional or grossly negligent acts or omissions of Hello Doctor or any of its affiliates.

 

The Subscriber and/or the Purchaser, as the case may be, hereby indemnifies and holds Hello Doctor and any and all of its affiliates harmless against any claim brought by any third party or Person against Hello Doctor and any of its affiliates:

 

–      arising out of a breach by the Subscriber and/or the Purchaser, as the case may be, of the provisions of this Agreement; and/or

 

–      as a result of access to or use by a third party or Person of the Selected Service and/or Selected Product, as the case may be; and/or

 

  • associated with the provision of the Selected Service and/or Selected Product, as the case may be, to the Subscriber and/or the Purchaser, as the case may be.

 

Disputes

 

Should any dispute arise between Hello Doctor and the Subscriber and/or Purchaser, as the case may be, from the terms of this Agreement or any suspension or termination thereof, such dispute may be referred to arbitration by any one of the Parties and, failing agreement by the Parties on an arbitrator, one will be appointed by the President for the time being of the Cape Law Society whose decision will be final and binding on the Parties. Such arbitration will be conducted as informally and as inexpensively as possible at any venue in Cape Town selected by the arbitrator and otherwise in accordance with the provisions of the Arbitration Act and the Rules of the Arbitration Foundation of Southern Africa.

 

Enforcement

 

For the purposes of enforcing any claim and/or order made by any arbitration award the Parties, to the extent necessary and applicable to give effect to the aforementioned, hereby irrevocably submit to the non-exclusive jurisdiction of the High Court of South Africa, Western Cape Division, Cape Town, to apply for such order to be enforced.

 

Breach

 

Should the Subscriber and/or Purchaser, as the case may be,:

 

–      fail to make any payment on the due date; or

 

–      commit any other material breach of this Agreement; and

 

fail to remedy such breach within 7 (seven) Calendar Days of receipt by him or her of Written Notice from Hello Doctor calling upon the Subscriber and/or Purchaser, as the case may be, to remedy such breach, Hello Doctor will be entitled, but not obliged, without prejudice to any other rights it may have in Law or in terms of this Agreement, to:

 

–      immediately, without Notice to the Subscriber and/or Purchaser, as the case may be, suspend access to and/or use of the Selected Service; and/or

 

–      cancel this Agreement; and/or

 

–      claim all legal costs, including attorney and client costs, tracing agents fees and collection charges, which Hello Doctor may incur in taking any steps pursuant to such breach; and/or

 

–      declare all amounts owing to Hello Doctor by the Subscriber and/or Purchaser, as the case may be, to be immediately due and payable, notwithstanding the fact that such amounts may not yet be due and payable.

 

Hello Doctor may, in its Discretion, elect to reconnect the Subscriber’s access to the Selected Service notwithstanding a suspension of such access, subject to the payment of the then prevailing Hello Doctor administration fee by the Subscriber.

 

Notices and Domicilium

 

Hello Doctor may send any Written Notice to the Subscriber and/or Purchaser, as the case may be, in any manner it deems appropriate.

 

Any and/or all Written Notices (including but not limited to any communication, correspondence and/or Court process) sent by post, electronic mail, SMS, MMS (multimedia messaging service), Whats App, Mxit, Facebook or other social media platforms, telefax transmission and/or delivered by hand, will be deemed to have been received by the Subscriber and/or Purchaser, as the case may be, on the Day of transmission or delivery, whichever is applicable, save for postal delivery being 7 (seven) Calendar Days from date of despatch.

 

Any Written Notice actually received by the Subscriber and/or Purchaser, as the case may be, will be deemed to have been properly given to and received by him or her, notwithstanding the fact that such notice may not have been delivered to his or her chosen Domicilium or transmitted to his or her chosen social media platform, telefax number, email address or cellular or mobile phone number.

 

All Written Notices from the Subscriber and/or Purchaser, as the case may be, to Hello Doctor, except for a breach Notice and/or any Court process, must be sent via or through and to be received on the Hello Doctor Websites by clicking on the “Contact Us” button and submitting same accordingly.

 

Any and/or all breach Notices and/or any Court process to be sent to Hello Doctor must be received by it at its registered office as recorded on the Hello Doctor Websites.

 

English Language

 

All Notices issued pursuant to and/or in terms of this Agreement, as well as all legal actions and Court and/or other proceedings will be Written and conducted in the English language.

 

Choice of Law

 

This Agreement and the rights and obligations of the Parties will be governed by and construed in accordance with the Laws of South Africa, save where there is a conflict between the Laws of and as applied in the province of the Western Cape and any other province, the Laws as applied in the province of the Western Cape will prevail.

 

Jurisdiction

 

Notwithstanding the fact that a service or product may be delivered cross border, the Parties irrevocably submit and consent to the jurisdiction of the Courts of South Africa and, in particular, the High Court of South Africa, Western Cape Division, Cape Town (or its successor in title), in respect of any claim (including any dispute or difference) arising out of and/or in connection with this Agreement. Accordingly, the Purchaser and/or Subscriber, as the case may be, who is located outside South Africa, hereby waives all his or her rights to bring any claim of whatsoever nature against Hello Doctor in any jurisdiction other than South Africa, unless otherwise specifically agreed to in Writing by Hello Doctor.

 

Notwithstanding the aforegoing Clause, the Subscriber and/or Purchaser, as the case may be, in terms of section 45 of the Magistrates Court Act, 1944 (Act No. 32 of 1944), hereby consents and submits to the jurisdiction of the Magistrates Court having jurisdiction in terms of section 28 of the said Act in respect of any action to be instituted against him or her by Hello Doctor in terms of this Agreement.

 

Costs, Fees and Charges

 

In the event of the Subscriber and/or Purchaser, as the case may be, committing any breach of this Agreement or in the event of Hello Doctor being required to take any legal action in order to enforce any of its rights in terms of this Agreement, the Subscriber and/or Purchaser, as the case may be, undertakes to pay Hello Doctor’s legal costs on the scale as between attorney and his own client.

 

Hello Doctor will be entitled, but not obliged, to charge or claim from the Subscriber and/or the Purchaser, as the case may be, any and/or all banking and/or administration fees, costs and/or charges it incurs or is required to pay if and in the event of the Subscriber and/or the Purchaser, as the case may be, defaults on any of his or her payments or any other obligations as set out in this Agreement.

 

Cession, Delegation and/or Assignment

 

Hello Doctor may cede, delegate, assign and/or otherwise transfer any and/or all of its rights and/or obligations, in whole or in part, under this Agreement without the consent of the Subscriber and/or Purchaser, as the case may be.

 

The Subscriber and/or Purchaser, as the case may be, will not be entitled to cede, delegate, assign, and/or otherwise transfer any or all of his or her rights and/or obligations under this Agreement without the prior Written consent of Hello Doctor.

 

Interest

 

In the event of the Subscriber and/or the Purchaser, as the case may be, failing to effect payment of any amounts due in terms of this Agreement on the due date therefore, without derogating from Hello Doctor’s other rights herein and in Law, the Subscriber and/or the Purchaser, as the case may be, will be liable to effect payment of interest to Hello Doctor on the amount so overdue at the maximum permissible rate allowed from time to time by Law.

 

Entire Agreement

 

This Agreement constitutes the complete and exclusive Written expression of the terms of the agreement between the Parties and supersedes all prior or contemporaneous proposals, oral or Written, understandings, representations, conditions, warranties, covenants and all other communications between the Parties relating to the subject matter of this Agreement.

 

This Agreement may not in any way be explained or supplemented by a prior or existing course of dealings between the Parties pursuant to this Agreement or otherwise.

 

Variations, Waivers & Indulgences

 

No variation of, addition to, consensual cancellation of or waiver of any right arising in terms of this Agreement (including this Clause) will be of any force or effect unless it is reduced to Writing and Signed by the Party or on behalf of or by the Parties’ respective duly authorised representatives, save that Hello Doctor will have the right to unilaterally amend from time to time its prices in and for the Subscription Services and/or Hello Doctor Products and the amendments brought about thereby will be deemed to be incorporated herein and this Agreement so amended, unless otherwise provided for and/or agreed to in Writing by Hello Doctor.

 

No failure of any Party to exercise, and no delay by it in exercising, any right, power or remedy in connection with this Agreement (each a “Right”) will operate as a waiver of that Right, nor will any single or partial exercise of any Right preclude any other or further exercise of that Right or the exercise of any other Right.

 

The Rights provided in this Agreement are cumulative and not exclusive of any other Rights (whether provided by Law or otherwise).

 

Any express waiver of any breach of this Agreement will not be deemed to be a waiver of any subsequent breach. Likewise, one or more waivers of any right, obligation or default will not be construed as a waiver of any subsequent right, obligation or default.

 

Any liability to any Party under this Agreement may, in whole or in part, be released, compounded or compromised or time or indulgence given by that Party in its Discretion as regards any Party under such liability without in any way prejudicing or affecting its rights against the other Party under the same or a like liability, whether joint and several or otherwise.

 

Matters to be agreed

 

Where it is specified in this Agreement that certain matters are to be agreed between the Parties, failure to reach agreement in respect of such matter will not affect the validity and enforceability of the whole or any part of this Agreement unless otherwise provided for.

 

Not a Partnership and/or Agency

 

Nothing in this Agreement will be deemed to constitute a partnership as between the Parties, nor constitute any Party as an agent of the other Party for any purpose whatsoever except as expressly provided for in this Agreement.

 

Conflict & Compliance with the Law

 

Insofar as any of the provisions contained in this Agreement are in conflict with any of the Laws of South Africa and any law of any other country to which this Agreement may apply for the time being in force, such provisions will be deemed to be amended only to the extent necessary to comply with the provisions of such laws.

 

Each Party will ensure that it and its activities will, at all times, comply with all applicable Laws and the Legislation in South African and any other country to which this Agreement may apply.

 

Severability & Illegality

 

If any provision of this Agreement is held to be invalid, illegal, contrary to public policy or unenforceable by a Court of competent jurisdiction or arbitrator, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby, and this Agreement will remain and be of full force and effect.

 

Any provision in this Agreement which is or may become illegal, invalid or unenforceable will be ineffective to the extent of such prohibition or unenforceability and will be treated as pro non scripto (meaning as though it had not been Written) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision.

 

As Hello Doctor cannot readily check the source or jurisdiction of each Payor, Subscriber and Purchaser, as the case may be, the onus is on the Subscriber and Purchaser, as the case may be, to ensure that the entering into of this Agreement, the subscription or undertaking of any service, the purchase of any product and/or the payment for any service or product, as the case may be, is legal in the jurisdiction where such Payor, Subscriber and Purchaser, as the case may be, resides, is domiciled and/or is temporarily located (including but not limited to being on secondment, business and/or vacation). As such, should this Agreement, its content and/or the services and/or products offered hereunder be illegal in any jurisdiction in the world, this Agreement and/or the services and/or products offered hereunder, as the case may be, out of respect for the law of that country, shall be treated as never having been entered into or come about and the Subscriber and Purchaser, as the case may be, hereby irrevocably forfeits and/or waives any and all monies paid, as well as any and all rights to claim such monies back from Hello Doctor.

 

Undertaking to give effect to the Agreement

 

The Parties will respectively cause all resolutions to be passed and undertake to sign all such other documents and do such other things as will be necessary or requisite to give proper and due effect to the terms of this Agreement, or any other matter arising therefrom, according to its intent and purpose.

 

Information Supplied in terms of Section 43 of the ECT Act

 

The information required in terms of section 43 of the ECT Act is available on the Hello Doctor Website.

 

Read, Understands & Bound by the Agreement

 

The Subscriber and/or Purchaser, as the case may be,:

 

  • confirms that this Agreement and all terms, conditions and provisions were agreed to on a strictly arms’ length and market related basis; and

 

  • confirms that each provision of this Agreement is fair and reasonable in all the circumstances and is part of the overall intention of the Parties; and

 

  • acknowledges he or she has read this Agreement and agrees to be bound by its terms, conditions, provisions and covenants; and

 

  • understands the meaning and import of each and all of the Clauses of this Agreement; and

 

  • understands his or her rights and obligations arising out of this Agreement; and

 

  • confirms that he or she has been free to secure independent legal advice as to the nature and effect of each provision of this Agreement and has either taken such independent legal advice or has dispensed with the necessity of doing so; and

 

  • understands the financial implications, fees and costs provided for in this Agreement; and

 

  • confirms that there were no blank spaces.

 

Signature

 

This Agreement is signed by the Subscriber and/or Purchaser, as the case may be, on the dates and at the places indicated herein.

 

It is not required for this Agreement to be valid and enforceable that a Party must Initial the pages hereof or each of them and/or have its Signature verified by a witness or actually physically Sign this Agreement.

 

The Subscriber and/or Purchaser, as the case may be, by Confirming will or will be deemed to have:

 

  • read, understood and agreed to each and every Clause of this Agreement; and

 

  • Signed this Agreement.

———————–0———————

 

 

The terms and conditions of use for Talk to a Doctor; Text a Doctor and/or Health Tips follow below.

 

Version 4: Date of last review – 10 September 2014

 

TERMS AND CONDITIONS OF USE FOR THE SUBSCRIPTION SERVICES: TALK TO A DOCTOR; TEXT A DOCTOR AND/OR HEALTH TIPS

 

The word “you” is a reference to a Subscriber.

 

Introduction

 

In order for a doctor to phone you within 60 minutes or respond to your text based messages within 2 hours and for you to receive your daily health tips, you will be required to accept these terms and conditions, as well as the Standard Subscription and Purchase Terms and Conditions applicable to all of Hello Doctor’s services and products, which are likewise set out above on the Hello Doctor Website.
Hello Doctor is a subscription based electronic platform and medium for consumers to telephonically, electronically or digitally converse with a registered healthcare or medical practitioner. If and to the extent a medical practitioner from a jurisdiction other than South Africa uses the Hello Doctor Platform, such medical practitioner will likewise be registered and accredited within the jurisdiction in which he or she operates.

 

Legal Basis

The medico-legal relationship, if any, created by the doctor phoning you upon your request, or texting you in response to your text based message, is by and between you and the attending doctor.

 

Age

You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into an agreement with the attending doctor and/or Hello Doctor. If you are under the age of 18, you must have your parents’ consent. To the extent the legal requirement for age of majority is greater than the age of 18, you represent and warrant that you are at least that age.

 

Within South Africa

To the extent Hello Doctor does not have a presence and/or offering in your country, and you are not within South Africa, you are deemed to be within the South African borders and under the jurisdiction of the South African courts for any matter that may arise relating to Hello Doctor.

 

Disclosure of All Relevant Information

These services are provided in good faith based upon the information given by you, during the phone call or text message. As such, you are required to disclose all relevant information, no matter how trivial, pertaining to your current health and past medical history that may have a bearing on the services to be so provided.

 

 

Rights – YOUR CHOICE

It is your right not to use the Selected Service. It is your right to ask the attending doctor any question to solicit information of an educational nature to empower you with information to make an informed decision. Please note that by participating in any call or text based interaction with an attending doctor you will be signifying your consent to participate in such call or receiving educational information only. The attending doctor cannot and will not diagnose you or offer treatment, merely give you guidance as to what the correct medical process would be if and to the extent of a particular condition. All calls will be recorded and kept confidential. All text based messages will be archived and kept confidential. However, if you participate in open group text based forums or discussions, the information you divulge will, by its very nature, be publicly available and for all those participating to see; there being no confidentiality in open forums.

 

Not a Substitute for in person medical care

The service you receive is not clinical medical advice, but rather preventative healthcare information of an educational nature to empower you to make an informed decision and choice; it does not replace and is not intended to replace in person medical care, advice, instruction or treatment. As such, you are urged to immediately seek medical treatment if and to the extent the reason for your call persists.

 

No warranty

Hello Doctor and the attending doctor:

 

(i)      make no warranty as to the content of any information and/or response; and

 

(ii)     do not guarantee that a conversation with a doctor via the telephone and/or text message is the appropriate course of action for your particular health care problem.

No change in health condition

You are solely responsible for all information and/or communication given during the telephone conversation, text message or other communication. You undertake to contact your doctor immediately should your condition change or your symptoms worsen. If you require urgent care, you should contact your local emergency services immediately. Any and all services that you acquire through Hello Doctor and the attending doctor shall be solely for your personal use and/or that of your family member requiring the services.

 

Risks

You understand and accept that there is an inherent risk in not having a physical examination. Your use of the services is at your sole risk and you assume full responsibility for all risks associated therewith. All information or services provided through the Hello Doctor Services are provided without any warranty of any kind, express or implied. To the fullest extent permissible under South African law or any other law, Hello Doctor and the attending doctor, their shareholders, affiliates, directors, officers, managers, employees, advisers and/or other representatives hereby disclaim all representations and warranties, express or implied, statutory or otherwise, including but not limited to warranties of fitness for a particular purpose. Without limiting the aforegoing, there is and shall be no warranty as to the reliability, accuracy, timeliness, usefulness, adequacy, completeness or suitability of the services and/or the products so provided.

 

Limitation of Liability

Hello Doctor and the attending doctor shall not be liable for any direct damages in excess of: (i) the subscription price of any service subscribed or paid for; and/or (ii) in the event no purchase price was paid or required, R1,000.00 (one thousand Rand). In addition, to the maximum extent permitted by law, Hello Doctor and the attending doctor shall not be liable for any special, punitive, indirect, incidental or consequential damages, including but not limited to personal injury, wrongful death or loss of use, whether in any action in warranty, contract, delict (including, but not limited to negligence or fundamental breach), or otherwise arising out of or in any way connected with the use of, or the inability to use, these services or any product proffered or acquired through these services or any material or information contained in, accessed through, or products purchased through these services.
Indemnity

You indemnify, defend and hold harmless Hello Doctor and the attending doctor and their affiliates from and against all losses, liability, expenses, damages and costs, including all attorney’s fees, arising out of or related to any breach of the terms of use, your relationship with Hello Doctor and the attending doctor any negligent or wrongful action or omission by you related to your use of services through Hello Doctor, or any negligent or wrongful use of the services, including negligent or wrongful conduct by you or any other person acting on your behalf.

 

Waiver
Hello Doctor shall not be responsible or liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with, use of or reliance on, any information, products and/or services available on or through Hello Doctor and/or all those associated and/or affiliated with it, including the attending doctors. Accordingly, in consideration for the services so provided, you, the subscriber requesting the call back, hereby waive your or your family member’s (including but not limited to that of your and your minor child’s estate and/or any beneficiary thereunder) right to and actually bring any normal, reasonable and/or legally enforceable claim, action, proceeding, application and/or demand against Hello Doctor and/or all those associated and/or affiliated with it, including the attending doctors, for any and/or all claims, costs, damages and/or expenses or otherwise arising out of and/or suffered by you and/or your family member as a result or consequence of making use of these services or otherwise.
Acceptance of Hello Doctor’s Terms & Conditions

By clicking on the applicable button on any of Hello Doctor’s electronic media channels and/or distribution channels, including but not limited to its websites, mobisites, Mxit, Facebook and/or other mobile applications with any of the mobile telecommunications network providers, you confirm that you, as the subscriber to the Subscription Services, have read, understood and agreed to both these and the Standard Subscription Terms and Conditions.