Doula-in-training directory Terms of Service

These Terms of Service govern the use of the Doula-In-Training Directory offered by Birth Day Presence, Inc. (“Company”) at Company’s website (www.birthdaypresence.com the “Site”) or through mobile applications or texts from our cellphone to your cellphone or emails from our email address to your email address. The Doula-In-Training Directory provided by the Company, the Site, mobile applications, text messaging, and emailing together are hereinafter collectively referred to as the “Birth Day Presence Doula-In-Training Directory.”

Your use of the Birth Day Presence Doula-In-Training Directory constitutes your acceptance of and agreement to all of the terms and conditions in these Terms of Service and any future amendments and additions to this Agreement (as defined below) as we may publish from time to time. You represent and warrant that that: (1) you are 21 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 are required to agree to and accept these Terms of Services in order to receive the list of doulas-in-training who pay a listing fee to be listed on the Birth Day Presence Doula-in-Training Directory. If you do not agree with any of these terms, you are prohibited from using or accessing this Doula-In-training Directory.

The Privacy Policy, the Best Practices Guide and the Birth Day Presence Guarantee are incorporated by reference into these Terms of Service and these Terms of Service, the Privacy Policy, the Best Practices Guide, and the Birth Day Presence Guarantee together are hereinafter referred to as this “Agreement.”

The Doula-In-Training Directory

You acknowledge that you understand the Birth Day Presence Doula-In-Training Directory connects Doulas and Clients, but that Birth Day Presence, Inc. DOES NOT perform doula services or hire employees to perform doula services.

The Birth Day Presence Doula-In-Training Directory is a web, email and/or SMS based communications Doula-In-Training Directory which enables the connection between Clients and Doulas-in-Training.  The Doula-In-Training Directory provides doulas-in-training with a network (the “Birth Day Presence Network”) through which doulas-in-training can provide their doula services to consumers. “Clients” are individuals seeking to obtain services from a Doula-in-training (“Doula Services”) and are therefore clients of Doulas-in-training, and “Doulas” are individuals and/or businesses seeking to perform Doula Services for Clients. Clients and Doulas together are hereinafter referred to as “Users.” If you agree on the terms of Doula Services with another User, you and such other User form a Service Agreement directly between the two of you.

COMPANY DOES NOT PERFORM DOULA SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM DOULA SERVICES. COMPANY DOES NOT SUPERVISE, DIRECT OR CONTROL A DOULA-IN-TRAINING’S WORK OR THE DOULA SERVICES IN ANY MANNER, WHICH DOULA HEREBY ACKNOWLEDGES. COMPANY IS NOT A HEALTH CARE PROVIDER. THE DOULA-IN-TRAINING WITH WHOM YOU ESTABLISH A RELATIONSHIP AND WHOM YOU HIRE IS SOLELY RESPONSIBLE FOR PROVIDING YOU WITH DOULA SERVICES. WE ONLY ACT AS A TECHNOLOGY PLATFORM TO CONNECT YOU WITH DOULAS-IN-TRAINING WHO MAY BE INTERESTED IN PROVIDING YOU WITH DOULA SERVICES.

The Birth Day Presence Doula-In-Training Directory only enables connections between Users for the fulfillment of Doula Services. Company is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Doula Services, Doulas, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Doula Services requested and services provided by Users identified through the Birth Day Presence Doula-In-Training Directory whether in public, private, or offline interactions.

User Contracts

Users of the Birth Day Presence Doula-In-Training Directory contract for Doula services directly with other Users. Company will not be a party to any contracts for Doula Services.

Release

The Birth Day Presence Doula-In-Training Directory is only a venue for connecting Users. Because Company is not involved in the actual contract between Users or in the completion of the Doula services, in the event that you have a dispute with one or more Users, you release Company and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS BIRTH DAY PRESENCE Doula-In-Training Directory. Company’s sole liability with respect to disputes between Users is as set forth in the Birth Day Presence Guarantee described in Section 7.

Email and Mobile Phone Use

By providing your mobile phone number and email and using the Birth Day Presence Doula-In-Training Directory, you hereby affirmatively consent to our use of your mobile phone number for calls and texts and your email address to send emails in order to perform and improve upon the Birth Day Presence Doula-In-Training Directory or to provide you with requested information. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply.

Worker Classification and Withholdings

AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM DOULA SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM DOULA SERVICES. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.

Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, or control a Doula’s work or Doula Services performed in any manner. Company does not set a Doula’s work hours, location of work or amount or length of meetings. Company will not provide any equipment, labor or materials needed for any Doula Services. Company does not provide any supervision to Users. Company does not vet doulas-in-training or verify identification, certifications pending, or liability insurance.

The Birth Day Presence Doula-In-Training Directory is not an employment service and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Doula Services.

You agree to indemnify, hold harmless and defend Company from any and all claims that a Doula was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Doula was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that Company was an employer or joint employer of a Doula, any claims under any applicable employment-related laws, such as, without limitation, those relating to employment termination, employment discrimination, harassment or retaliation, as well as, without limitation, any claims for unpaid wages, withholdings, overtime pay, failure to provide meal and rest breaks, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.

Birth Day Presence Guarantee

The Birth Day Presence Guarantee is only available to Users who request a “New Doula up to a Tier 6 Doula”. The Birth Day Presence Guarantee does not apply to Users who find and hire their doula from the Doulas-in-training directory. Birth Day Presence, Inc. does not screen or endorse the doulas-in-training who are listed on the Doula-In-Training Directory. Birth Day Presence, Inc. does not certify or verify the credentials, experience, certifications, or qualifications of doulas listed on the doula-in-training directly.  Consumers are advised to independently verify all credentials and conduct interviews with doulas before hiring them, including contacting certification organizations to verify that certifications are pending, that the doula-in-training actually trained where they said they trained and that liability insurance certificates are still current if they claim to have that.

Birth Day Presence, Inc. does not warrant that any of the materials on its web site are accurate, complete, or current. Birth Day Presence, Inc. may make changes to the materials contained on its web site at any time without notice. Birth Day Presence, Inc. does not, however, make any commitment to update the materials.

Birth Day Presence, Inc. has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Birth Day Presence, Inc. of the site. Use of any such linked web site is at the user’s own risk.

Birth Day Presence, Inc. doula-in-training directory is for doulas-in-training to promote their services, and for families to find doulas who are in-training.

Birth Day Presence, Inc. may revise these terms of use for its web site at any time without notice. By using this web site you are agreeing to be bound by the then current version of these Terms and Conditions of Use.

Any claim relating to Birth Day Presence, Inc.’s web site shall be governed by the laws of the State of New York without regard to its conflict of law provisions.

Your privacy is very important to us.  We take privacy seriously and have a published privacy policy which we encourage you to review.

For the Consumer (expectant families):

Birth Day Presence, Inc. does not screen or endorse the doulas listed on this site.

Birth Day Presence, Inc. does not certify or verify the credentials, experience, cerfications, or qualifications of doulas listed on this web site.  Consumers are advised to independently verify all credentials and conduct interviews with doulas before hiring them, including contacting certification organizations to verify that certifications are still current.

Birth Day Presence, Inc. is not responsible or liable for any adverse or unexpected consequences of hiring a doula.

Termination and Suspension

Company may terminate, limit or suspend your right to use the Birth Day Presence Doula-In-Training Directory in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.

Even after your right to use the Birth Day Presence Doula-In-Training Directory is terminated, limited, or suspended, this Agreement will remain enforceable against you.

Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Birth Day Presence Doula-In-Training Directory at its sole discretion. Company is not liable to you for any modification or discontinuance of all or any portion of the Birth Day Presence Doula-In-Training Directory. Notwithstanding anything to the contrary in this Section 8, Company has the right to restrict anyone from completing registration as a User if Company believes such person may threaten the safety and integrity of the Birth Day Presence Doula-In-Training Directory, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.

You may terminate this Agreement at any time by ceasing all use of the Birth Day Presence Doula-In-Training Directory. All sections 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.

Disclaimer of Warranties

USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.

THE BIRTH DAY PRESENCE Doula-In-Training Directory 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. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE BIRTH DAY PRESENCE  Doula-In-Training Directory OR THE CONTENT OF ANY SITES LINKED TO THE BIRTH DAY PRESENCE  Doula-In-Training Directory AND ASSUMES NO LIABILITY OR RESPONSIBILITY 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 BIRTH DAY PRESENCE  Doula-In-Training Directory, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE BIRTH DAY PRESENCE Doula-In-Training Directory.

IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE BIRTH DAY PRESENCE SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE DOULA SERVICES AND SELECTING THEIR DOULA AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR DOULA .

Indemnification

You hereby agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with (i) your use or inability to use the Birth Day Presence  Doula-In-Training Directory, or (ii) any content submitted by you or using your account to the Birth Day Presence  Doula-In-Training Directory, 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. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.

Dispute Resolution

INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Company agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Company. Company’s address for such notices is Birth Day Presence, Inc., 182 8th Avenue Brooklyn, NY 11215.

BINDING ARBITRATION. If you and Company are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Birth Day Presence Doula-In-Training Directory (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) 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. 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).  The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Company may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and Company agree that any arbitration will be limited to the Dispute between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company 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.

LOCATION OF ARBITRATION. Arbitration will take place in Kings County, New York.  You and Company agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the NY state and Federal courts located in Kings County, New York, have exclusive jurisdiction and you and Company agree to submit to the personal jurisdiction of such courts.

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 entire agreement between you and Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. 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 shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE AND AGREE THAT MY USE OF THE BIRTH DAY PRESENCE DOULA-IN-TRAINING DIRECTORY LIST IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.