A Counselor refers in these terms and conditions is any counselor, consultant, practitioner, professional, expert, coach, advisor, psychologist or any other person who registers to provide Counselor Services, through the use on the Platform, to the User and the Counselor is an independent and/or separate entity with the Company and is not the Company’s agent, employee and/or representative.
The User refers in these terms and conditions is a person who registers or subscribes to use the Platform to engage with the Counselor for counseling, consulting, professional advice and/or any other services and/or information provided on the Platform.
The Platform refers in these terms and conditions is an online website provides by the Company for the service of the Counselor which can be accessed by the user through the website address available at www.thehelptalk.com and via mobile application that can be downloaded from an online store application such as Appstore or Google Play.
The Company refers in these terms and conditions is The Help Talk Services PLT (LLP0012573-LGN), a business registered in Malaysia on 30.08.2017.
All the features and functionality of the Platform will be subjected to the Company’s decision, instruction and/or consent.
The Company hereby reserves the right to close, change, modify, suspend, disrupt or discontinue the Platform or any part of the Platform (including the profile of the Counselor when there is any spelling errors) without any prior notice to the Counselor for whatsoever reasons (including but not limited for maintenance) that the Company seems reasonable for the continuation of the services provide and the Company will not be held liable for any losses, damages, harms that may be suffered by the Counselor as the consequences of the aforesaid actions.
The Platform is not guarantee by the Company to be fully uninterrupted and/or error-free while the service is provided by the Counselor to the user, but the Company will ensure that in the event the Platform is unavailable or inaccessible, the Company will try to fix the problem soonest possible.
REPRESENTATION AND WARRANTIES BY THE COUNSELOR
A person will be considered as a Counselor when the person voluntarily sign up at the Platform to be a Counselor and the terms and conditions stipulated herein below will be automatically applied and bind the person as a Counselor Agreement.
By using or accessing the Platform as a Counselor, it indicates that the Counselor agrees with all the terms and conditions stipulated on the Platform for a Counselor and the Counselor foresees the consequences of not complying these terms and conditions.
The Counselor must at least 18 years old and has a legal capacity to enter into a contract when signing up as a Counselor and must ensure that all information provide in the Platform are always correct and in the event there is any changes on the information provided, the Counselor must update it soonest possible.
In the event that the Counselor wishes or intends to apply for a leave, the Counselor shall inform the Company in advance by providing SEVEN (7) DAYS notice in written form via email in order for the Company to notify the subscribed Users and to allow the Company to arrange for a replacement Counselor for the subscribed Users, if needed.
The Counselor must ensure that he or she is a licensed professional, possessing the relevant skills, degrees, qualifications in his or her area of practice and abides by all the laws, rules and regulations governing his or her area of practice.
The Counselor must only provide service to the user within his or her skills, degrees, qualifications in his or her area of practice and the Counselor must not mislead, misrepresent the user that he or she can provide services which is outside his or her area of practice.
In the event there is any payment and/or insurance required to be maintained in the area of practice of the Counselor, the Counselor must ensure that he or she will consistently pay such payment and/or insurance in order for the Counselor to continuously practice in his or her area of practice.
DISCLAIMERS AND LIMITATION OF LIABILITY
The Counselor acknowledges and agrees that the Platform is being provided for the use "as is where is basis", and therefore the Counselor will not have any plea, claim, or demand towards the Company in relation to the Platform's users, members, properties, limitations or compatibility with the Counselor's needs. The Counselor shall not have any plea, claim or demand against the Company in respect to any services the Counselor decides to provide in connection with the use of the Platform. To the fullest extent of the law, the Company expressly disclaim all warranties of any kind, whether expressed or implied.
Registration, providing Counselor Services and any use of the Platform is being made at the Counselor's sole and entire risk, without warranties, including but not limited to warranties of merchantability, fitness for a particular purpose, non-infringement, compatibility, security, or accuracy.
The Company expressly disclaims all warranties for information posted or transmitted by the Platform's Users and or members.
The Counselor will bear all the risks associated with the uploading and transmitting material and utilizing the Platform including reliance on its accuracy, reliability or legality.
The Company hereby represents to the User that the Company will not be deemed or represented as the Counselor or recipient of any services acquired through the Platform. The Counselor provides the Counselor Services through the Platform at his or her sole and entire risk.
Under no circumstances the Company will be held liable to any Counselor for any indirect, incidental, consequential, special, punitive or exemplary damages, including but not limited to loss of business, revenue, profits, use, data or other economic advantage.
The Counselor acknowledges and agrees that the Company disclaims any liability in relation to any claim, suit or action brought by a User in connection with provision of any Counselor Services by a Counselor, including but not limited to representations by the Counselor as to the Counselor's qualifications and advice provided by him or her, through the Platform. The Counselor agrees to indemnify and hold the Company harmless in connection with any such claim and any damages or expenses arising therefrom.
The Counselor will be solely responsible for any agreements he or she chooses to make with a User. The Company will not be responsible or liable in any way for any agreement made between a Counselor and a User and or for enforcing any such agreement, including but not limited to any agreements in relation to Counselor's fee, and or usage of the Platform in any way other than offered and suggested as the Counselor Service at the Platform. Any agreement a Counselor chooses to get into with a User is at his or her sole responsibility and entire risk.
The Counselor acknowledges that he or she will solely be responsible and liable for any damages to any User to whom the Counselor provides services and to any User who suffers damages arising from or connected to such services that he provided to that User. In the event of a dispute regarding any transaction conducted through the Platform the Counselor hereby releases the Company from all manner of actions, claims or demands and from any and all losses (direct, indirect, incidental or consequential), damages, costs or expenses, including but not limited to, court costs and attorney's fees, which the Counselor may have against one or more of the above.
The Company shall not be liable to the Counselor or to any third party for any indirect, incidental, consequential, special, punitive or exemplary damages.
The Company’s aggregate liability for damages arising with respect to this agreement and any and all use of the Platform will not exceed the total amount of money paid by the Counselor or to the Counselor through the Platform in the 3 months period prior to the date of the claim.
The Company explicitly disclaims any liability with respect to any claim, suit or action made by a User. The Counselor hereby agrees to indemnify, defend and hold the Company harmless with respect to any such claim.
If the applicable law does not allow the limitation of liability as set forth above, the limitation will be deemed modified solely to the extent necessary to comply with applicable law.
This section (disclaimers and limitation of liability) shall survive the termination or expiration of this Agreement.
When providing Counselor Services or making any other use of Platform, the Counselor must exercise a reasonable standard of care, at least the same as the Counselor would in a similar transaction not conducted through the Platform or the Internet. Without derogating from the above, the Counselor must exercise the standard of care mandated by his or her profession.
The Counselor will not provide to Users any services other than Counselor Services.
The Counselor will not provide to Users any services which may not be lawfully rendered or provided through the Platform according to the laws, regulations and ethics that applies in the Counselor's jurisdiction.
The Counselor will not diagnose, treat, test, advise, counsel, recommend a course of treatment, or otherwise provide or perform any services that require an in-person meeting with a User or examination of a User.
The Counselor agrees that the Counselor Services, advice and or information that he or she provides to a User, aren't in any way to be considered a substitute for a face-to-face interaction between the User and the Counselor (or any other professional).
The Counselor will provide Counselor Services only about and in respect of non-emergency matters and issues. For emergency matters and issues the Counselor will instruct the User to immediately call 999 or their local emergency assistance number.
The Counselor agrees to never engage in the practice of medicine or enter into a physician/patient relationship with any User through the Platform and will not prescribe or dispense medicines.
The Counselor will advise Users whenever appropriate that his or her advice is not a substitute for the advice or treatment of a physician after physical examination.
Whenever appropriate, the Counselor will recommend Users to seek help by meeting with a qualified professional face-to-face.
In the event the Counselor finds that the User is no longer suitable and wishes to stop the User from engaging the services provided on the Platform due to any emergency matters and issues, the Counselor will notify the Company for the Company’s further action at firstname.lastname@example.org.
The Counselor may not use this Platform to solicit the performance of any illegal activity or other activity which infringes the Company’s rights or the rights of others.
The Counselor will indemnify, defend and hold the Company harmless against any and all complaints, losses, damages, suits, judgments, costs and expenses (including litigation costs and reasonable attorneys' fees) arising out of or in connection with any claim, suit, action, or other proceeding brought against the Company by the User or such any other person or whosoever, to the extent that such claim, suit, action or other proceeding is based on or arises from:
(a) any breach of any representation, warranty, covenant or agreement to be performed by the Counselor according to this Counselor Agreement;
(b) The Counselor's provision of the Counselor Agreement to any third party, regardless of whether or not they are Users of the Platform service; or
(c) any materials that the Counselor has posted to or through the Platform and/or any content, service, advice provided by the Counselor to Users.
The Counselor agrees and commits not to violate any applicable local, state, national or international law, statute, ordinance, rule, regulation or ethical code in relation to the use of the Platform and to the Counselor's relationship with the Users and the Company. The Counselor further agrees and commits not to engage in conduct or activity that is harmful, unethical, fraudulent, deceptive, illegal or offensive and the Counselor hereby indemnify, defend and hold the Company harmless against any and all losses, damages, suits, judgments, costs and expenses (including litigation costs and reasonable attorneys' fees) arising out of or in connection with any claim, suit, action, or other proceeding brought against the Company, to the extent that such claim, suit, action or other proceeding is based on or arising therefrom.
COUNSELOR ACCOUNT AND RESPONSIBILITIES
The Counselor hereby agree, confirm and acknowledge that the Counselor is responsible for maintaining the confidentiality of his or her password and any other security information related to the Counselor’s account (collectively "Account Access"). The Company advises the Company to change the password frequently and to take extra care in safeguarding the password.
The Counselor agrees to notify the Company immediately of any unauthorized use of his or her Account Access or any other concern for breach of his or her account security.
The Counselor hereby agree, undertake and covenant that in the event that the Counselor intends to stop, cease and resist to provide the Counselor Services, or the Counselor’s account is no longer active for a long period, the Counselor must notify the Company at email@example.com.
The Company hereby agrees, confirm and acknowledge that the Company will not be liable for any loss or damage that incurred as a result of someone else using the Counselor’s account, either with or without the Counselor’s consent and/or knowledge.
The Counselor hereby agrees, confirm and acknowledge that the Counselor will solely and fully liable and responsible for all activities that are made by using the Counselor’s Account Access. The Counselor further acknowledge and agree that the Company will hold the Counselor liable and responsible for any damage or loss incurred as a result of the use of the Counselor’s Account Access by any person whether authorized by the Counselor or not, and the Counselor agree to indemnify the Company for any such damage or loss.
The Counselor hereby agrees and commits not to use the account or Account Access of any other person for any reason.
The Counselor hereby agrees and confirms that the Counselor’s use of the Platform, including the Counselor Services, are made directly by the Counselor and that the Counselor is not using neither the Platform nor the Counselor Services for or behalf of any other person or organization.
The Counselor hereby further agrees and commits not to interfere with or disrupt, or attempt to interfere with or disrupt, any of the Company systems, services, servers, networks or infrastructure, or any of the Platform's systems, services, servers, networks or infrastructure, including without limitation obtaining unauthorized access to the aforementioned.
The Counselor also hereby agrees and commits not to make any use of the Platform for the posting, sending or delivering of either of the following:
(a) unsolicited email and/or advertisement or promotion of goods and services;
(d) any content that infringes a third party right or intellectual property;
(e) any content that may cause damage to a third party;
(f) any content which may constitute, cause or encourage a criminal action or violate any applicable law.
In the event the Counselor receives any file from the Company or from a User, whether through the Platform or not, the Counselor agrees to check and scan this file for any virus or malicious software prior to opening or using this file.
The Counselor will indemnify, defend and hold the Company harmless from and against any and all claims, losses, causes of action, demands, liabilities, costs or expenses (including, but not limited to, litigation and reasonable attorneys' fees and expenses) arising out of or relating to any of the following:
(a) the Counselor access to or use of the Platform;
(b) any actions made with the Counselor account or Account Access whether by the Counselor or by someone else;
(c) the Counselor violation of any of the provisions of this Agreement;
(d) non-payment for any of the services (including Counselor Services) which were provided through the Platform;
(e) the Counselor violation of any third party right, including ,without limitation, any intellectual property right, publicity, confidentiality, property or privacy right. This clause shall survive expiration or termination of this Agreement.
FEES AND PAYMENTS
The Counselor will be paid for the provision of the Counselor Services to Users and the fees, rates, payment options and payment schedules of the payments are set in the Platform and they are set and determined exclusively by the Company and may be changed based on the Company sole discretion.
The Counselor shall not be entitled for Employee Provident Fund (“EPF”) and also for Social Security Organisation (SOCSO) as the Counselor is merely an independent contractor appointed by the Company to provide the Counselor Services. The Company is merely providing a platform for a Counselor to provide the Counselor Services.
The payment will be made at the end of every month based on the full utilisation of the subscription by the User and will also subject to the rating system made by the User for the Counselor Services as follows:-
Average User Ratings
Remuneration in percentage (%) per subscription
3.7 - 5.0
3.5 - 3.69
3.0 - 3.49
2.5 - 2.99
Less than 2.5
It is hereby agreed that the Company shall have absolute and unfettered discretion to decide and conclude the percentage of the remuneration per subscription based on the prevailing market value if the Company deemed it is necessary for the adjustment.
The monthly payment made by the Company to the Counselor shall be based on pro-rated basis by taking into consideration the Counselor’s term and period of service and the total leave or inactive period throughout the duration of the contractual service.
The Counselor is solely responsible for reporting and paying any applicable tax related to the Counselor's use of the Platform.
Any payment disputes or claims should be submitted within 30 days of discovery of any mistake.
If a User has made User Payment but has later either charged back such payment for any reason or received a refund (based on the Company sole discretion) for such a payment (collectively "Refunded Payments"), the Company will not pay those Refunded Payments to the Counselor and if the money has already been delivered to the Counselor, the Counselor will be required to repay this amount to the Company. Notwithstanding the above, the Company may deduct this amount from the Counselor's account or from the following payments to be made the Counselor.
The Counselor agrees and commits to immediately notify the Company in any case that the Counselor provides any service to the User not through the Platform or in any case that the user is billed by the Counselor not through the Platform or in any case that the user is making a payment to the Counselor not through the Platform.
In the event the Company finds out that there is any misconduct, breach of duty, tarnishing of the information by the Counselor, the Company hereby reserves its right to withhold the payment to be made to the Counselor until the dispute or problem is resolved by the Counselor and meeting the satisfaction level of the Company. The Company shall have the absolute discretion on whether or not to discontinue the service of the Counselor and in such an event, the Counselor shall not have any claim or whatsoever against the Company.
The Company may provide notices or other communications to the Counselor regarding this agreement or any aspect of the Platform, by email to the email address that the Company have on record, by regular mail or by posting it online. The date of receipt shall be deemed the date on which such notice is given. Notices sent to the Company must be delivered by email to firstname.lastname@example.org.
IMPORTANT NOTES ABOUT AGREEMENT
Nothing in this Agreement shall be construed as making either party the partner, joint venture, agent, legal representative, employer, or employee of the other and the Counselors are merely independent contractor that is engaged by the Company to provide the Counselor Services and the Company bears no responsibility for any act, omission or doing of any Counselor. The Company is merely providing a platform for a Counselor to provide the Counselor Services.
This Agreement and the relationship between the Company and the Counselor shall both be interpreted solely in accordance with the laws of Malaysia and the court to bring or initiate any action or proceeding arising out of relating to this Agreement or the relationship between the Company and the Counselor, regardless of theory, shall be the court in Malaysia.
The Counselor hereby irrevocably consents to the personal jurisdiction of the aforementioned courts and hereby waive any objection to the exercise of jurisdiction by the aforementioned courts.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE COUNSELOR AND THE COMPANY AND ANY PROMISES OR REPRESENTATIONS MADE BEFORE SHALL BE SUPERSEDED BY THIS AGREEMENT.
The Company may change this Agreement by posting modifications on the Platform and it shall have an immediate effect upon the posting unless otherwise specified by the Company.
The Counselor is hereby encouraged to check the terms of this Agreement frequently and the last update of this Agreement is posted at the bottom of the Agreement.
The Counselor hereby agrees to be bound by such changes to the Agreement by using the Platform after the changes become effective. In the event the Counselor do not agree to the changes made, the Counselor must terminate access to the Platform and participation in its services.
The Company may transfer or assign this Agreement or any of its obligations hereunder.
If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the remaining provisions of this Agreement will remain in full force and effect. To clear any doubt, all clauses regarding limitations of liabilities and indemnification shall survive the termination or expiration of this Agreement.