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1.
Terms and Conditions For Accessing The Website. By visiting https://empoweringyourbirth.com/ (the “Website”) belonging to Empowering Birth LLC, a Florida limited liability company (“Empowering Birth”), you represent and warrant that you are at least the age of majority in your state or province of residence or visiting the Website under the supervision of a parent or guardian. This Website is not intended for distribution to, or use by, any person or entity in any jurisdiction where such distribution or use would be contrary to applicable law or regulation. Empowering Birth provides birth and postpartum doula Birth Services, as well as educational materials, videos and courses related to pregnancy and birth (the “Birth Services”). You can request the Birth Services by contacting Empowering Birth using the information listed on the Website.
2.
Terms and Conditions For Enrolling In The Birth Services. By enrolling in the Birth Services offered by Empowering Birth, you, as a Client of Empowering Birth (“Client”), agree to be bound by these Terms and Conditions (these “Terms”), including policies or notices on the Website, the Privacy Policy located at empoweringyourbirth.com/privacy, the Birth Services Agreement referenced in Section 3(i) and any other additional terms and conditions, and policies referenced herein and/or available by hyperlink, as applicable. Together these materials contain terms, rules, and guidelines related to your use of the Birth Services. Unless stated otherwise in the applicable document or agreement, including the Birth Services Agreement, in the instance of any inconsistencies or contradictions between these Terms and a document referenced within them, the meaning taken from the Birth Services Agreement shall prevail. These Terms apply to all users of the site, including without limitation users who are browsers, customers, and/ or contributors of content. Empowering Birth may update these Terms at any time without prior notice to you. By accessing the Website and/or enrolling in the Birth Services, you opt into the Terms on behalf of yourself or on behalf of the legal entity you represent. Empowering Birth may provide you with notices, including service announcements and notices regarding changes to these Terms, as deemed appropriate in Empowering Birth’s sole discretion. You consent to receive these notices by any and all means of communication that Empowering Birth may select.
3.The Birth Services.
i.
The Doula. You acknowledge that you are hiring a labor support doula/postpartum doula who works within the DONA International Standards of Practice. The doula will be Alexa Diesu, or as otherwise stated in Appendix A of the Birth Services Agreement (the “Doula”).
A.
The Back-up Doula. If you are assigned the Back-up Doula, you acknowledge and agree that the Doula will not be liable for the care or services provided by the Back-up Doula.
B.
You acknowledge that Empowering Birth, the Doula and/or the Back-up Doula do not work for hospitals, birth sites, or other health care professionals.
ii.
Notify Medical Care Provider. You agree that you will inform your medical care provider that you have hired a doula for Birth Services.
iii.
Health Conditions. You agree that you will inform the Doula of any pregnancy-related or other health complications or conditions you may have, as well as any other special circumstances you might have or require (“Health Conditions”). Information about any Health Conditions must be relayed to the Doula within five (5) days of receiving news of such Health Conditions so that the Doula will be better prepared to provide you with the Birth Services.
iv.
Birth Plan. You agree that you will provide the Doula with a copy of your birth plan at least thirty (30) days prior to your due date.
v.
Prenatal Appointments. You agree that you will inform the Doula of anything your medical care provider relays to you at your prenatal appointments from thirty-six (36) weeks forward, including but not limited to if your cervix is dilated, any tests or procedures you might experience, anything your medical care provider seems concerned about, etc.
vi.
Labor. You agree that you will contact (via phone call or text message) the Doula when you think you are in labor, even if you believe that you do not yet need the Doula. You also agree that you will call (not text) the Doula if you believe that you are in active labor (contractions five (5) minutes apart for at least one (1) hour). You acknowledge that if the Doula does not attend the birth due to your failure to call her, then Empowering Birth will not issue to you a refund of any kind.
vii.
Medical Decisions. You acknowledge that the Doula will not make decisions for you and/or your partner; but, instead, the Doula will help you obtain information necessary to make informed decisions. You also acknowledge that the Doula will not speak to hospital staff (i.e. Doctors, Midwives, Nurses, any hospital employee) on your and/or your partner’s behalf. The Doula will discuss your concerns and suggest options to you and/or your partner, but you and/or your partner will be solely responsible for speaking to hospital staff.
viii.
Third Party Services. If you decide to utilize any other services recommended by Empowering Birth (including, but not limited to, pre-natal massage, pre-natal/yoga sessions, childbirth education classes), then Empowering Birth will not be held liable for the performance or outcome of any of these services or the accompanying fees/payment.
4.Website Access and Use of Birth Services.
i.
Subject to and conditioned on your compliance with these Terms and the Birth Services Agreement entered into by and between you and Empowering Birth (each such Birth Services Agreement, as may be amended and/or restated, the “Birth Services Agreement”), Empowering Birth hereby grants to you a non-sublicensable, non-exclusive, non-transferable right to access and use the Website for Birth Services during the term of the Birth Services Agreement with Empowering Birth, solely for your use in accordance with these Terms. Such use is limited to your personal purposes. You are permitted to download and print the content on the Website for your personal use. You must not use the content of the Website for any other purpose without our express written consent.
ii.
Except as permitted in these Terms, you shall not take any actions or inactions that (A) violate these Terms, the Birth Services Agreement, or the Privacy Policy; (B) infringe or violate the personal, property, and/or intellectual property rights (or any other rights including, but not limited to, privacy rights and/or any rights relating to confidential or proprietary information) of anyone else (including Empowering Birth); (C) misrepresent information and/or knowing provision of false, incomplete, or inaccurate information; (D) violate any law or regulation, including, without limitation, any privacy laws or any other purpose not reasonably intended by Empowering Birth; (E) may be dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, libelous (including any attack on my character or reputation), vulgar, pornographic, obscene, or otherwise objectionable (including inciting violence, hate speech, and other discriminatory language that may promote racism, bigotry, or harm of any kind against me or anyone else); (K) copy, frame or mirror any part or content of the Website or the Birth Services; or access the Website or the Birth Services in order to build a competitive product or service or copy any features, functions or graphics of the Website. If you take any of the actions listed in this section, then Empowering Birth reserves the right to immediately terminate or suspend the Birth Services and you will not be entitled to a refund of any payment made to Empowering Birth.
5.Intellectual Property.
i.
You grant Empowering Birth a perpetual, fully paid up, royalty-free, irrevocable, worldwide, non-exclusive, non-transferable, and non-sublicensable license to use and incorporate into the Website and the Birth Services or other Empowering Birth products, business, or Birth Services any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Birth Services.
6.Term; Termination and Suspension.
i.
Term. The term of these Terms and the Birth Services Agreement varies from one (1) to ten (10) months, depending upon which package is chosen by the Client in Appendix A-1.
ii.
Termination By Client For Cause. The Client shall have the right to terminate only in the event that Empowering Birth is in uncured material breach of its obligations under this Agreement or the Terms and Conditions. In this case, Empowering Birth will refund to Client the portion of the payment for Birth Services not yet performed. For the avoidance of doubt, Empowering Birth will not refund to Client the portion of the payment for Birth Services already performed, whether or not Empowering Birth is in uncured material breach of its obligations under this Agreement or the Terms and Conditions.
iii.
Termination By Client Without Cause. If the Client terminates the Birth Services for any reason except any uncured material breach by Empowering Birth of its obligations under this Agreement or the Terms and Conditions, then this Agreement shall expire immediately upon Client’s termination and Client shall pay to Empowering Birth, within seven (7) business days, any unpaid balances. In this case, Empowering Birth will not refund to the Client any portion of the payment made to Empowering Birth.
iv.
Termination Or Suspension By Empowering Birth. Empowering Birth may terminate or suspend the Birth Services immediately, without any notice, if the Client (A) violates any law or any regulation is adopted or comes into effect or becomes applicable in the jurisdiction or to this Agreement or the Terms and Conditions which restricts or purports to restrict Empowering Birth’s right to terminate this Agreement or the Terms and Conditions without compensation or which otherwise invalidates any provision of this Agreement or the Terms and Conditions; (B) breaches obligations under these this Agreement or the Terms and Conditions; (C) knowingly makes any false or untrue statements or representations to Empowering Birth in the performance of its obligations under this Agreement or the Terms and Conditions; or (D) becomes the subject of any bankruptcy or other insolvency proceedings. This Agreement and the Terms and Conditions will remain in full force and effect while the Client utilizes the Birth Services, and in the event of termination, the Client’s obligations under this Agreement and the Terms and Conditions will continue. Upon termination of the Client’s rights under this Agreement and the Terms and Conditions, the Client’s right to use the Birth Services will terminate immediately. Empowering Birth will not have any liability whatsoever to the Client for any termination of the Client’s rights under this Agreement or the Terms and Conditions.
7.Fees and Payments.
i.
Payment Authorization. When executing the Birth Services Agreement with Empowering Birth, you may select one of the packages offered in Appendix A-1 of the Birth Services Agreement. By submitting your payment information on the Website, you authorize Empowering Birth to charge the listed amount of selected package to your selected payment option. You agree that the fees and payments are non-refundable and non-cancellable.
ii.
Payment Method. Empowering Birth uses Stripe processing to collect payments from clients. You can also send funds via Zelle at the following email address: alexa@empoweringyourbirth.com. All payments shall be made in USD.
iii.
Taxes. You are responsible for any taxes associated with your payment for the Birth Services (“Taxes”), including any related penalties or interest, and you will pay Empowering Birth for the Birth Services without any reduction for Taxes. If Empowering Birth is obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide Empowering Birth with a valid tax exemption certificate authorized by the appropriate taxing authority. If you are required by law to withhold any Taxes from your payment to Empowering Birth, you must provide Empowering Birth with an official tax receipt or other appropriate documentation to support such payments.
iv.
Changes to Fees. Empowering Birth reserves the right to revise the fees Empowering Birth charges for the Birth Services. If Empowering Birth does so, and you are currently enrolled in the Birth Services, Empowering Birth will do its best to provide you with written notice (which may be by e-mail) at least thirty (30) days prior to the change. In the event you desire to use Empowering Birth for Birth Services outside of the scope of the Birth Services listed in the applicable Birth Services Agreement, additional charges may apply as determined in the sole discretion of Empowering Birth. In the event the Doula is asked to do hourly work outside of the scope of the Birth Services Agreement, then you and Empowering Birth shall mutually agree on such charges in advance of Empowering Birth conducting the work.
v.
Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half (1.5%) percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys’ fees) that Empowering Birth incurs in collecting delinquent amounts, except where such delinquent amounts are due to billing inaccuracies.
8.Release from Liability.
i.
By enrolling in the Birth Services, you hereby acknowledge that during the performance period of this contract, Birth Services may be provided to you in your home, traveling to a medical facility, and/or hospital. You understand that Empowering Birth, the Doula and/or the Back-up Doula (as defined in Appendix A of the Birth Services Agreement) has a limited role pursuant to the description of tasks outlined in these Terms and the Birth Services Agreement wherever Birth Services are provided to you.
ii.
You understand that Empowering Birth, the Doula and/or the Back-up Doula have not represented to you that enrolling in the Birth Services guarantees in any way a risk-free or emergency-free labor and birth experience. You understand that Empowering Birth, the Doula and/or the Back-up Doula do not make medical decisions on your behalf, including but not limited to the decision when to seek medical care at a hospital when labor support Birth Services are provided in your home. When Birth Services are performed in a medical facility, you acknowledge that Empowering Birth, the Doula and/or the Back-up Doula are not responsible for the performance of clinical tasks, including but not limited to medical decisions regarding the inclusion or exclusion of treatments available to you and your baby.
iii.
Now, therefore, in consideration of the above acknowledgements, you, on behalf of yourself, your heirs, administrators, personal representatives, executors, and assigns, agree to RELEASE AND FOREVER DISCHARGE Empowering Birth, the Doula and/or the Back-up Doula from all damages or causes of actions, either at law or in equity, which you may have or acquire or which may accrue to you, your heirs, administrators, personal representatives, executors or assigns as a result of using the Birth Services of Empowering Birth. You intend for Empowering Birth, the Doula and/or the Back-up Doula to be COMPLETELY RELEASED AND DISCHARGED from all liability whatsoever.
iv.
You acknowledge that you have read all statements contained herein and you fully realize that you are signing a COMPLETE RELEASE AND BAR to any claims which you have or believe you have related to the Birth Services of Empowering Birth.
9.Representations and Warranties; Disclaimer.
i.
Representations and Warranties. Each of you and Empowering Birth represents and warrants to the other party that (a) it has all necessary rights and authority to execute and deliver these Terms and the Birth Services Agreement, and perform its obligations hereunder and to grant the rights granted under these Terms and the Birth Services Agreement; and (b) nothing contained in these Terms and the Birth Services Agreement, or in the performance of these Terms and the Birth Services Agreement will place it in breach of any other material contract or obligation.
ii.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND THE BIRTH SERVICES AGREEMENT, THE BIRTH SERVICES AND ANY OTHER SERVICES PROVIDED BY EMPOWERING BIRTH HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND EMPOWERING BIRTH DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY. EMPOWERING BIRTH AND ITS AFFILIATES DO NOT WARRANT, AND SPECIFICALLY DISCLAIM, THAT ALL ERRORS CAN BE CORRECTED, OR THAT THE BIRTH SERVICES WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. EMPOWERING BIRTH MAKES NO REPRESENTATIONS AND WARRANTIES ABOUT THE BIRTH SERVICES EXCEPT AS SET FORTH IN THE BIRTH SERVICES AGREEMENT. IN ADDITION, EMPOWERING BIRTH MAKES NO GUARANTEE AS TO THE RESULTS THAT MAY BE PROVIDED AS A RESULT OF THE BIRTH SERVICES.
10.
Indemnification. You hereby expressly agree to indemnify and hold harmless Empowering Birth, its shareholders, principals, officers, directors, employees, agents, representative and contractors (each an “Indemnified Party” and collectively, the “Indemnified Parties”) against all suits, actions, claims, demands, or costs of any kind to which they may be subject arising or resulting at any time or place from anything done or omitted to be done by them in connection with these Terms, the Privacy Policy, the Birth Services Agreement or the Birth Services and the Website, or any breach by you of your obligations hereunder, including, without limitation, your violation of any terms of these Terms, the Birth Services Agreements or the Privacy Policy. Empowering Birth reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Empowering Birth, and you agree to cooperate with Empowering Birth’s defense of these claims. You agree not to settle any matter without the prior written consent of Empowering Birth. Empowering Birth will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
11.
Assignees and Successors. These Terms and the Birth Services Agreement shall be binding upon and inure to your and Empowering Birth’s benefit, and their respective successors and assigns permitted under these Terms, except that you may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Empowering Birth (and any attempted assignment or transfer by you without such consent shall be null and void). Nothing in these Terms or the Birth Services Agreement, expressed or implied, shall be construed to confer upon any person or entity (other than you and Empowering Birth, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Empowering Birth’s Indemnified Parties) any legal or equitable right, remedy, or claim under or by reason of these Terms or the Birth Services Agreement.
12.
Entire Understanding. These Terms, the Privacy Policy and the Birth Services Agreement constitute the sole agreements between you and Empowering Birth regarding the use of the Birth Services. It becomes effective only when signed by both Parties and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.
Governing Law. These Terms, the Privacy Policy, and the Birth Services Agreement, and any claim, controversy, dispute, or cause of action (whether in contract or tort or otherwise) based upon, arising out of, or relating to these Terms and the Birth Services Agreement, and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the laws of the State of Florida, without regard to conflicts of laws principles.
14.Arbitration Procedures.
i.
You irrevocably and unconditionally agree that any dispute, controversy or claim brought by you arising out of, relating to or in connection with these Terms, the Privacy Policy, and the Birth Services Agreement, including the breach, termination, or validity thereof, shall be resolved by final and binding arbitration to be administered by the American Arbitration Association (the “AAA”), in accordance with its rules (the “AAA Rules”), which can be found here: https://www.adr.org/sites/default/files/CommercialRules_Web-Final.pdf. The arbitral tribunal shall have the sole power to rule on any challenge to its own jurisdiction and all issues regarding arbitrability shall be decided solely by the arbitral tribunal. The place of arbitration shall be Florida. The arbitrator shall rule in accordance with the laws of the State of Florida without regard to conflicts of law provisions that would require the application of the laws of another jurisdiction. The tribunal shall have the power to grant any provisional or final remedy or relief that it deems appropriate, including conservatory measures and an award of attorneys’ fees. The language of the arbitration shall be English.
ii.
You and Empowering Birth hereby agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the Parties and the decisions made by the arbitral tribunal, including its awards to the extent not already in the public domain, except in judicial proceedings related to the award or where required by applicable law.
iIi.
You irrevocably and unconditionally waive, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to these Terms, the Privacy Policy, the Birth Services Agreement, or any other associated agreement in any such court. Each of you and Empowering Birth hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
15.
Time Limitation of Claims. You agree that any claim you may have arising out of or related to your relationship with Empowering Birth must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
16.
No Exclusivity. Empowering Birth retains the right to perform the same or similar type of Birth Services for third parties solely in its discretion.
17.
No Waiver. Empowering Birth’s failure to exercise or delay in exercising any right, power, or privilege these Terms shall not operate as a waiver; nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof.
18.
Force Majeure. Empowering Birth, the Doula and the Back-up Doula shall not be held liable for any delays, failure in performance, or interruptions of service which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to: any delay or failure due to any act of God, act of civil or military authorities, act of terrorism, civil disturbance, war, pandemic, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe, or any other occurrence which is beyond its/their reasonable control and shall not affect the validity and enforceability of any remaining provisions.
19.Relationship of the Parties.
i.
Each Party is an independent contractor with respect to the other Party hereunder. These Terms and the Birth Services Agreement will not be construed to (a) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the Parties, or (b) authorize any Party to enter into any commitment or agreement binding on the other Party.
ii.
You agree that Empowering Birth may subcontract certain aspects of the Birth Services to qualified third parties, provided, however, that any such subcontracting arrangement will not relieve Empowering Birth of any of its obligations hereunder.
20.
Assignment. Empowering Birth reserves the right to assign or delegate to certain tasks related to the Birth Services to independent contractors, subcontractors, affiliates or service providers if Empowering Birth reasonably believe such assignment or delegations is more efficient or otherwise beneficial, provided that such delegation will not result in additional costs to you without your prior approval.
21.
Independent Counsel. You acknowledge that you have had the opportunity to have these Terms, and the Birth Services contemplated hereby, reviewed by independent legal counsel of your choice. You acknowledge that you are entering into these Terms as a free and voluntary act. No provision of these Terms shall be construed against or interpreted to the disadvantage of Empowering Birth by any court or other governmental or judicial authority by reason of Empowering Birth’s having prepared these Terms.