Last revised May 2, 2019
The terms “we”, “us”, and “our” refer to birthly LLC (“Company” or “Birthly”). These Terms of Service constitute a legally binding agreement between you and the Company governing your use of the Birthly Platform (as defined below), Company’s website (www.mybirthly.com or the “Site”), social media channels, videos on YouTube and other websites, or use or purchase of products (such as online webinars, trainings, and information resources) (“Products”). The Birthly platform and related services and products provided by Company, and the Site, including without limitation communications and information (whether in writing, orally, or otherwise howsoever) provided by Company to potential and actual Clients in relation to the services, together are hereinafter collectively referred to as the “Birthly Platform.” The term “clients,” “you” and “your” refers to site visitors and users of the Sites and customers of our Products.
Any personal data you submit to the Birthly Platform or which we collect about you is governed by our Privacy Policy (“Privacy Policy”). A copy of our Privacy Policy is available here. You acknowledge that by using the Birthly Platform you have reviewed the Privacy Policy.
Your use of the Birthly Platform constitutes your acceptance of and agreement to all of the terms and conditions in these Terms of Service, the Privacy Policy, and any future amendments and additions to this Agreement (as defined below) as we may publish from time to time. The Privacy Policy is incorporated by reference into these Terms of Service and together form and are hereinafter referred to as this “Agreement”.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND BIRTHLY CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 18). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 18) AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE BIRTHLY PLATFORM.
You must be 18 years old and at least the legally required age in the jurisdiction in which you reside, and otherwise capable of entering into binding contracts, in order to use or access the Birthly Platform. If you are under 18 years old or the age of majority in your jurisdiction, then you may not use or access the Birthly Platform. Children under 13 years old are prohibited from accessing the Birthly Platform or otherwise providing any personal information to Birthly.
A few highlights of these Terms of Service include:
Your agreement that the Birthly Platform is provided “as is” and without warranty (Section 16).
Your agreement that Company has no liability regarding the Birthly Platform or inaccuracy, error or incompleteness in the Sites and/or Products (Section 16).
Your consent to release Company from liability based on claims between Clients and Educators (Section 2 and generally (Section 16).
Your agreement to indemnify Company from claims due to your use or inability to use the Birthly Platform or content submitted from your account to the Birthly Platform (Section 17).
Your consent to submit any claims against Company to binding arbitration, and on an individual basis only, to the extent permissible by law (Section 18).
1. The Birthly Platform Connects Educators and Clients
The Birthly Platform is a web-based platform, which provides online childbirth education services and enables connections between Clients and Educators. “Clients” are individuals and/or businesses seeking to obtain services and products. “Educators” are individuals seeking to perform services and provide products for Clients on the Birthly Platform. Clients and Educators together are hereinafter referred to as “Users”.
You are solely responsible for your interactions with other Clients on and off the Birthly Platform.
If you agree on the terms of services with an Educator or interact with an Educator outside the scope of services and products provided via the Birthly Platform, you and such other user form a separate service agreement directly between the two of you and such agreement does not expand Company’s obligations or restrict Company’s rights under this Agreement.
You agree that Birthly will not be responsible for any liability incurred as a result of interactions with other Users. You understand that Birthly does not currently conduct criminal background checks on its Clients and Educators or attempt to verify the statements of its users. Birthly makes no representations or warranties as to the conduct of the Users or their compatibility with any current or future Users.
EDUCATORS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES, PARTNERS, AGENTS, JOINT VENTURES, OR FRANCHISEES OF COMPANY. CLIENTS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT DIRECTLY CONTROL OR MONITOR AN EDUCATOR’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR THE WORK PERFORMED IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
Company makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the services and products provided by, or the communications of or between Clients and Educators, whether in public, private, or offline interactions or otherwise howsoever. Both Clients and Educators agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding.
2. User Vetting and User Representations and Warranties
User Vetting
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Birthly will not be liable for any false or misleading statements made by Users of the Birthly Platform. NEITHER BIRTHLY NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “BIRTHLY AND AFFILIATES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE BIRTHLY PLATFORM AND YOU HEREBY RELEASE BIRTHLY AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE BIRTHLY PLATFORM.
User Representations and Warranties
You represent and warrant that: (1) you are 18 years of age or older and are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (2) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You further represent and warrant that you have read, understand, and agree to be bound by these Terms of Service, and the Privacy Policy in order to access and use the Birthly Platform. You hereby warrant and represent that you will use the Birthly Platform for legitimate, non-commercial purposes only and you will not post or transmit through the Birthly Platform any material which violates or infringes upon our rights, or the rights of others, or which is threatening, abusive, defamatory, libelous, vulgar, obscene, profane or otherwise objectionable, contains injurious formulas, recipes, or instructions, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. You hereby warrant and represent that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of Users and that you will not record (whether video or audio or otherwise) any services and products or any interaction by or with any User and/or Company in connection with the Birthly Platform without the prior written consent of Company and/or the relevant User, as applicable. You further represent and warrant that when using or accessing the Birthly Platform, you will act in accordance with any applicable local, state, national, or international law, custom and in good faith.
You hereby warrant and represent that, other than as fully and promptly disclosed to Company as set forth below, you do not have any motivation, status, or interest which Company may reasonably wish to know about in connection with the Birthly Platform, including without limitation, if you are using or will or intent to use the Birthly Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Company in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Birthly Platform.
3. Billing and Payment
Clients of the Birthly Platform will be required to provide their credit card and/or bank account details to Company and the Payment Service Provider (“PSP”). You agree to make timely and full payments to the Company for purchased Product(s) and related services (regardless of whether you selected to pay for the Product(s) in full or with a payment plan), or cancellation fees, if applicable. You authorize Company to automatically charge the credit card on file for any and all payment balances owed and you agree to keep this information current and up-to-date with the Company. If any payment is insufficient or declined for any reason, Company may revoke your access to the Products and related services, without refund. Currently, Stripe serves as the PSP for the Birthly Platform. Stripe processes your information in accordance with their own privacy policy here: https://stripe.com/gb/privacy.
To help prevent fraud and safeguard Client information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a very temporary charge is placed on the account associated with the Client and then refunded within 1-3 business days.
Payment and fees must be paid through the PSP as indicated on the Birthly Platform.
Clients of the Birthly Platform will be liable for any taxes required to be paid on the Product(s) and related services provided under the Agreement.
4. Public Areas; Acceptable Use
The Birthly Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Birthly Platform, you should not share your personal contact information with other Users.
Without limitation, while using the Birthly Platform, you may not:
Defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and Birthly staff, or use information learned from the Birthly Platform to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other User or Company staff;
Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Birthly Platform;
Use the Birthly Platform for any unauthorized purpose, including, but not limited to posting or violating local, state, national, or international law;
Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or Company;
Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer;
Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly;
Advertise or offer to sell any goods or services for any commercial purpose through the Birthly Platform which are not relevant to the Product(s) and related services offered through the Birthly Platform;
Conduct or forward surveys, contests, pyramid schemes, or chain letters;
Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments;
Post the same content repeatedly (“Spamming”). Spamming is strictly prohibited;
Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Birthly Platform;
Restrict or inhibit any other User from using and enjoying the Public Areas;
Imply or state that any statements you make are endorsed by Birthly, without the prior written consent of Birthly;
Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the Birthly Platform, or the personal information of others, in any manner;
Frame or utilize framing techniques to enclose the Birthly Platform or any portion thereof;
Hack or interfere with the Birthly Platform, its servers or any connected networks;
Adapt, alter, license, sublicense or translate the Birthly Platform for your own personal or commercial use;
Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Birthly and Affiliates;
Upload content to the Birthly Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
Use the Birthly Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Birthly Platform as set forth herein;
Use the Birthly Platform to collect usernames and or/email addresses of Users by electronic or other means;
Use the Birthly Platform in violation of this Agreement;
Use the Birthly Platform in a manner that is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes;
Attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the Birthly Platform
Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number; or
Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. Birthly will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
5. Termination and Suspension
Company may terminate or limit your right to use the Birthly Platform in the event that we are investigating or believe that you have breached any provision of this Agreement (a “User Breach”), by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice.
If Company terminates or limits your right to use the Birthly Platform pursuant to this Section 5, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. If Company terminates or limits your right to use the Birthly Platform as a Client due to a User Breach, you will not be entitled to any refund of unused balance in your account.
Even after your right to use the Birthly Platform is terminated or limited, this Agreement will remain enforceable against you. Company reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 18 of these Terms of Service.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Birthly Platform at its sole discretion, for any reason and without notice. Company is not liable to you for any modification or discontinuance of all or any portion of the Birthly Platform.
You may terminate this Agreement at any time by ceasing all use of the Birthly Platform. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
6. Account, Password, Security, and Mobile Phone Use
You do not need to create an account with the Company to use the Birthly Platform (an “Account”). If you choose to do so, you are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Company for accessing the Birthly Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. If you are accessing and using the Birthly Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms provided herein. Company has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to contact Company immediately.
By providing your mobile phone number and using the Birthly Platform, you hereby affirmatively consent to Birthly’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (a) perform and improve upon the Birthly Platform, (b) facilitate the carrying out of services provided through the Birthly Platform, (c) provide you with information and reminders regarding your registration, upcoming services and appointments, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming services and appointments. Birthly will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages by texting “STOP” in response to any texts, or by emailing info@mybirthly.com and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing info@mybirthly.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
7. User Generated Content
“User Generated Content” is defined as any information and materials you provide to Company, its corporate partners, or other Users in connection with your registration for and use of the Birthly Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Birthly is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that Birthly has no obligation to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Birthly platform at its sole discretion.
You hereby represent and warrant to Company that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not represent you being employed or directly engaged by or affiliated with Birthly or purport you to act as a representative or agent of Birthly; and (i) will not create liability for Company or cause Company to lose (in whole or in part) the services of its independent service providers or other partners or suppliers.
The Birthly Platform hosts User Generated Content relating to reviews and ratings of specific Educators (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake their own research to be satisfied that a specific Educator is the right fit. You agree that Company is not responsible or liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company is not obligated to investigate any remarks posted by Users for accuracy or reliability but may do so at its discretion.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights you have in your User Generated Content, in any media now known or not currently known in order to perform and improve upon the Birthly Platform.
Each User who provides to Company any videotape, film, recording, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the Birthly Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
Exhibit, distribute, display, transmit, and broadcast on any and all media, including, without limitation, the internet, any videotape, film, recording or photograph that such User provides to Company or that Company takes of User, and use, reproduce, modify, or creative derivatives of such User picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”);
Reproduce in all media any recordings of such User’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Birthly Platform;
Use, and permit to be used, such User’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Birthly Platform in any media; and
Use, and permit to be used, such User’s name and identity in connection with the Birthly Platform.
Each User hereby waives all rights and releases Birthly and Affiliates from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s identity, likeness or voice in connection with the Birthly Platform.
Each User acknowledges that Birthly shall not owe any financial or other remuneration for using the recordings provided hereunder by such User, either for initial or subsequent transmission or playback, and further acknowledges that Birthly is not responsible for any expense or liability incurred as a result of such User’s recordings or participation in any recordings, including any loss of such recording data.
8. Use of Testimonials and Reviews
The Birthly Platform, Product(s), and related services may reference testimonials, reviews, case studies or other feedback from others about our Platform, Product(s), and related services. Although these testimonials are truthful statements, the results obtained by these users and customers are not necessarily typical and are not a guarantee of the types of results you can achieve by following the information in our Platform, Product(s), and related services.
The Company may share and reference the successful results of the Company, its Users, or customers on the Birthly Platform, Product(s), and related services. Such examples are not to be interpreted as a promise or guarantee, verbally or in writing, regarding your results, future earnings, business profit, marketing performance, audience growth, or results of any kind. By accessing the Birthly Platform, Product(s), and related services, you accept, agree and understand that you are fully responsible for your progress and results from your participation. We do not guarantees that you will get any results using any of our ideas, tools, strategies or recommendations, and nothing in our Birthly Platform, Product(s), and related services is a promise, warranty or guarantee to you of such results.
9. The Company and Platform Do NOT Provide Medical Advice
The Birthly Platform, Product(s) and related services are intended to provide general educational information on childbirth and to help users more easily access information about childbirth. All such information is designed for educational purpose only and is not meant to be complete or exhaustive, or to be applicable to any specific individual’s medical condition. Birthly assumes no duty to correct or update the Birthly Platform nor to resolve or clarify any inconsistent information that might be a part of the Birthly Platform.
YOU SHOULD NOT RELY ON THE INFORMATION FROM THE BIRTHLY PLATFORM, PRODUCT(S) AND RELATED SERVICES AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A QUALIFIED AND LICENSED PHYSICIAN, MIDWIFE, OR OTHER HEALTHCARE/MEDICAL PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR LEARNED ON THE BIRTHLY PLATFORM. USERS SHOULD NOT RELY UPON THE BIRTHLY PLATFORM FOR EMERGENCY MEDICAL TREATMENT. THE USE OF ANY INFORMATION PROVIDED ON THIS SITE IS SOLELY AT YOUR OWN RISK.
NOTHING STATED OR POSTED ON THE BIRTHLY PLATFORM OR AVAILABLE THROUGH ANY PRODUCT(S) AND RELATED SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE, AND IT SHOULD NOT BE USED TO MAKE A DIAGNOSIS OR TO REPLACE OR OVERRULE A QUALIFIED HEALTHCARE PROVIDER’S JUDGMENT.
For purposes of this agreement, the practice of medicine and counseling includes, without limitation, obstetrics, pediatrics, gynecology, maternal health, psychiatry, psychology, psychotherapy, or providing health care treatment, instructions, diagnosis, prognosis or advice.
10. Links to Third-Party Websites
The Birthly Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Company or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Birthly Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Company does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Birthly is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Birthly has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Birthly platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Birthly expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Birthly Platform. You hereby agree to hold Birthly harmless from any liability that may result from the use of links that may appear on the Birthly Platform.
11. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, EDUCATORS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES, PARTNERS, AGENTS, JOINT VENTURES, OR FRANCHISEES OF THE COMPANY.
Educators do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each Client acknowledges that Birthly does not, directly control or monitor an Educator’s work. The Company does not set a specific location of work for Educators. While Birthly has reviewed and approved all Company-branded materials shared by an Educator on the Birthly Platform, Birthly does not provide direct supervision over the performance of a service or provision of a product on the Birthly Platform.
The Birthly Platform is not an employment service and Birthly is not an employer of any Educator. As such, Birthly is not responsible for and will not be liable for workman’s compensation or any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings.
12. Limited License
For Product(s) and related services you have access to, the Company grants you a limited, personal, non-exclusive, non-transferable for your own personal and internal business use. Except as otherwise provided, you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, sell, create competing products or services, enhance, or in any way exploit any of the Products in any manner.
You agree not to reproduce, duplicate, copy, sell, resell, create derivative works, or exploit, for any commercial or other purposes, any portion of the Birthly Platform, Product(s) and related services, or content or other information or materials of any kind that you do not own without our express prior written consent.
You shall not remove any copyright notice from any of the Products. Doing so may infringe on our intellectual property rights, as outlined below.
13. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Birthly Platform is owned by Birthly, excluding User Generated Content, which Users hereby grant Birthly a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Birthly owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Birthly Platform without Birthly’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Birthly and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Birthly, including without limitation Birthly and Birthly logos, are service marks owned by Birthly. Any other trademarks, service marks, logos and/or trade names appearing via the Birthly Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
We reserve the right to immediately remove your access to the Birthly Platform, Product(s) and related services, without refund, if you are found to be violating this intellectual property policy.
14. Copyright Complaints
Birthly respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Birthly Platform infringe upon your copyright or other intellectual property right, please send the following information to Birthly at: 3917 Trimble Road, Nashville, TN 37215 and info@mybirthly.com.
A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Birthly Platform where the material you claim is infringed is located. Include enough information to allow Birthly to locate the material, and explain why you think an infringement has taken place;
A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
Your address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
15. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Birthly and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Birthly Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify Birthly in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Birthly upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Birthly’s trade secrets, confidential and proprietary information, and all other information and data of Birthly that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Birthly or Birthly’s business, operations or properties, including information about Birthly’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
16. Disclaimer of Warranties
(a) Use Of The Birthly Platform Is Entirely At Your Own Risk
THE BIRTHLY PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
BIRTHLY MAKES NO WARRANTIES OR REPRESENTATIONS THAT (I) THE BIRTHLY PLATFORM, PRODUCTS, AND SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE BIRTHLY PLATFORM, PRODUCTS, AND SERVICES WILL BE UNINTERRUPTED, TIMELY SECURE, OR ERROR-FREE, (III) THE RESULTS OF USING THE BIRTHLY PLATFORM, PRODUCTS, AND SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH YOUR USE OF THE BIRTHLY PLATFORM WILL MEET YOUR EXPECTATIONS, OR (5) THAT THE BIRTHLY PLATFORM, PRODUCTS, AND SERVICES WILL BE ERROR-FREE AND/OR ANY ERRORS IN THE BIRTHLY PLATFORM, PRODUCTS, AND SERVICES WILL BE CORRECTED.
BIRTHLY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE BIRTHLY PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE BIRTHLY PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE BIRTHLY PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
Birthly does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the Birthly Platform or any hyperlinked website or featured in any banner or other advertising, and Birthly will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, Birthly and Affiliates do not warrant that access to the Birthly Platform will be uninterrupted or that the Birthly Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Birthly Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Product(s), related services, information or materials provided through or in connection with the use of the Birthly Platform. Birthly and Affiliates are not responsible for the conduct, whether online or offline, of any User. Birthly and Affiliates do not warrant that the Birthly Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Birthly and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
Notwithstanding any feature a Client may use to expedite Birthly selection, each Client is responsible for selecting their Educator and Birthly does not warrant any goods or services purchased by a Client and does not recommend any particular Educator. Birthly does not provide any warranties or guarantees regarding any Educator’s professional accreditation, registration or license.
In addition, no individual or entity shall be a third party beneficiary of these terms. These terms are solely for the benefit of the parties to this Agreement and are not intended to and shall not be construed to give any person or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other rights (including, without limitation, any third party beneficiary rights), with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE BIRTHLY PLATFORM SHALL CREATE A WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
(b) No Liability
You acknowledge and agree that Birthly is only willing to provide the Birthly Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Birthly and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the Birthly Platform, including without limitation any liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by Birthly and Affiliates and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL BIRTHLY AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY BIRTHLY, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE BIRTHLY PLATFORM OR THE PRODUCTS AND SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
BIRTHLY AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS BIRTHLY PLATFORM. BIRTHLY AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE BIRTHLY PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT BIRTHLY AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Some jurisdictions do not allow the exclusion of certain warranties or limitation of liability for consequential or incidental damages, so certain aspects of the limitations above may not apply to you.
17. Indemnification
You hereby agree to indemnify, defend, and hold harmless Birthly and Affiliates, and their attorneys, insurers, independent contractors, providers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the Birthly Platform or Product(s) and related services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your account to the Birthly Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Birthly reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Birthly.
18. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND BIRTHLY CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND BIRTHLY TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Informal Negotiations
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Birthly (each a “Claim” and collectively “Claims”), you and Birthly agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration. This pre-arbitration negotiation shall be initiated by providing written notice to the other party—including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to birthly LLC, 3917 Trimble Road, Nashville, TN 37215, Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Birthly may initiate arbitration while engaging in the informal negotiations.
During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
After a good faith effort to negotiate, if you or Birthly believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”).
(b) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND BIRTHLY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate contained in this Section 18 (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of this Agreement and your relationship with Company.
Claims covered by this Arbitration Agreement include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof); the Birthly Platform, services, or Product(s); your relationship with Birthly; the threatened or actual suspension, deactivation or termination of your User Account or this Agreement; payments made by you or any payments made or allegedly owed to you; discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress; any promotions or offers made by Company; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and state statutes, if any, addressing the same or similar subject matters; and all other federal and state statutory and common law claims.
If there is a dispute about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of this arbitration agreement), you and Birthly agree that this threshold dispute shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disputes, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND BIRTHLY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY THE TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and Birthly agree that any arbitration will be limited to the Claim between Birthly and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND BIRTHLY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Birthly otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. You and Birthly agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). subject to the following modifications:
(i) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(ii) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Company agree otherwise, any arbitration hearings between Company and a Client will take place in the county in which you received the Product(s) and related services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(e) Exceptions to Arbitration
The following types of Claims may be, but are not required to be, arbitrated under the Arbitration Agreement:
Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
Applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
Claims that may not be subject to arbitration as a matter of general law not preempted by the Federal Arbitration Act.
This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision and do not prevent you from receiving an award for information provided to any government agencies.
(f) Severability
Except as otherwise provided in the severability provisions in Sections 18(c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
19. Governing Law
Except as provided in Section 18 or expressly provided otherwise, this Agreement and your use of the Birthly Platform will be governed by, and will be construed under, the laws of the State of Delaware, without regard to choice of law principles. This choice of law provision is only intended to specify the use of Delaware law to interpret this Agreement and is not intended to create any substantive right to non-Californians to assert claims under Delaware law whether by statute, common law, or otherwise.
20. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
21. General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Company with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” in Section 18, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 21 shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
22. Licensing
Educators alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and Product(s). Penalties may include fines or other enforcement.
23. Changes to this Agreement and the Birthly Platform
Company reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement (including the Terms of Service, and Privacy Policy) and review, improve, modify or discontinue, temporarily or permanently, the Birthly Platform or any content or information through the Birthly Platform at any time, effective with or without prior notice and without any liability to Company. Company will endeavor to notify you of material changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Birthly Platform. Your continued use of the Birthly Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Company may also impose limits on certain features or restrict your access to part or all of the Birthly Platform without notice or liability.
24. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
25. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the Birthly Platform, please contact us by email at info@mybirthly.com or by mail to 3917 Trimble Road, Nashville, TN 37215.
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE, AS WELL AS THE PRIVACY POLICY AND HAPPINESS PLEDGE, AND AGREE THAT MY USE OF THE BIRTHLY PLATFORM IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.