Birth Halo’s website, located at www.birthhalo.com, Birth Halo’s mobile applications, and other products and services (collectively, the “Service”), are owned and operated by Birth Halo, LLC (and collectively with its subsidiaries, affiliates, successors, and assigns, “Birth Halo”, “we,” or “us”). Please read these terms of use (“Terms of Use”) carefully because they set forth the important terms you will need to know about the Service. In these Terms of Use, the terms “you” and “yours” refer to the person using the Service. Use of the Service is governed by these Terms of Use, and by using the Service you agree to abide by these Terms of Use as well as all applicable laws and regulations. If you do not accept and agree to be bound by any of these Terms of Use, you are not authorized to access or otherwise use the Service or any information or Content contained on the Service, as defined in these Terms of Use. Your access to and use of the Service constitutes your acceptance of and agreement to abide by each of these terms and conditions set forth below. If you do not agree with these Terms of Use, do not use the Service. If you are using the Service in connection with an employer's agreement with Birth Halo (an "Enterprise Agreement"), then you are an "Enterprise User." We will identify below where specific terms apply to you differently as an Enterprise User.

 

IF YOU HAVE A MEDICAL EMERGENCY, IMMEDIATELY CALL YOUR DOCTOR OR DIAL 911. THE SERVICE PROVIDES GENERAL HEALTH AND WELLNESS INFORMATION AND A MEANS TO INTERACT WITH PRACTITIONERS. IT DOES NOT REPLACE YOUR RELATIONSHIP WITH ANY PRACTITIONER OR SERVICE, AND BIRTH HALO, ITSELF, DOES NOT PROVIDE MEDICAL OR HEALTH ADVICE, CARE, DIAGNOSIS, OR TREATMENT. NONE OF THE CONTENT SHOULD BE CONSIDERED MEDICAL ADVICE OR AN ENDORSEMENT, REPRESENTATION OR WARRANTY THAT ANY PARTICULAR MEDICATION OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.

Privacy

 

By using the Service, you consent to our processing your information consistent with our Privacy Policy at birthhalo.com/privacypolicy. Please review the Privacy Policy for a description of how we may collect and use your personal information. The Privacy Policy is hereby incorporated into these Terms of Use by reference and constitutes a part of these Terms of Use.

Service Description

 

The Service provides individuals accessing it with general information on health care and other general content pertaining to health and wellness topics (“Content”) and access to wellness professionals and facilities offering their services via the Service (the “Practitioners”). The Service contains certain pages, sections, services, and content that are only available to registered members of the Birth Halo services, including a means to obtain video-chat or electronic messaging consultations for a range of medical issues by facilitating the connection between you and Practitioners through use of the Service. The Practitioners who deliver services through Birth Halo’s Service are independent professionals practicing within a group of independently owned professional practices. We do not practice medicine or any other licensed profession, and do not interfere with the practice of medicine or any other licensed profession by Practitioners, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license. Neither Birth Halo nor any third parties who promote the Services or provide you with a link to the Services shall be liable for any professional advice you obtain from a Practitioner via the Services.

ELIGIBILITY

 

This Service is intended for use only by persons who are at least 18 years of age. If you are under 18 years of age, do not use or access the Service at any time or in any manner. By using the Service, you affirm that you are over the age of 18. Birth Halo does not seek through this website to gather personal information from or about persons under the age of 18. Practitioners may decline to enroll a Service user if, based on the provider's professional medical judgment, the Service user is not well-suited for the program.

 

NON-DISCRIMINATION

 

Birth Halo complies with applicable Federal civil rights laws and does not discriminate on the basis of race, color, national origin, age, disability, or sex. Birth Halo does not exclude people or treat them differently because of race, color, national origin, age, disability, or sex.

 

ACCOUNTS AND REGISTRATION; SECURITY

 

To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, as further described in our Privacy Policy. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, if any, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@birthhalo.com. You must exercise caution, good sense, and sound judgment in using the Service. You are prohibited from violating, or attempting to violate, the security of the Service including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Service or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law. Any such violations may result in criminal and/or civil penalties against you. Birth Halo may investigate any alleged or suspected violations and if a criminal violation is suspected, Birth Halo will cooperate with law enforcement agencies in their investigations.

 

LIMITED LICENSE AND SITE ACCESS; ALL RIGHTS RESERVED

 

We grant you the limited license (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) to access and make personal use of the Service. Except as expressly authorized in the preceding sentence, you may not download (other than for page caching) or modify the Service, or any portion of it, except with our express written consent. This license does not include: any resale or commercial use of the Service or the Content; or any derivative use of the Service or the Content. Neither this Service nor any portion of the Service may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not frame or utilize framing techniques to enclose any trademark, logo, or proprietary information (including images, text, page layout, or form) of Birth Halo without our express written consent. You may not use any meta-tags or any other “hidden text” containing our trademarks or service marks without our express written consent. We (or the respective third-party owners of Content) retain all right, title, and interest in the Service and any Content and features offered on the Service, including any and all intellectual property rights. We (or the respective third-party owners of Content) reserve all rights not expressly granted herein. Any unauthorized use terminates the foregoing licenses and permissions.

 

INDEPENDENCE OF PRACTITIONERS

 

The professionals utilizing or featured on the Service are subscribers to and licensees of the Service and not employees of Birth Halo. Any opinions, advice, or information expressed by a healthcare facility, professional or specialist using or featured on the Service are of the facility, professional or specialist alone. They do not reflect the opinions of Birth Halo. Birth Halo does not recommend or endorse any specific tests, providers, products, procedures, medications, devices, opinions, or other information that may be mentioned on the Service or by a licensee of Birth Halo. The inclusion of Practitioners on the Service or in any professional directory located on the Service does not imply recommendation or endorsement of such Practitioner nor is such information intended as a tool for verifying the credentials, qualifications, or abilities of any Practitioner contained therein. Such information is provided on an "as-is" basis and Birth Halo disclaims all warranties, either express or implied, including but not limited to the implied warranties of merchantability and fitness for particular purpose. Birth Halo shall in no event be liable to you or to anyone for any decision made or action taken by any party (including, without limitation, any Service user) in reliance on information about Practitioners on the Service. The use of the Service by any entity or individual to verify the credentials of Practitioners is prohibited.

 

INTELLECTUAL PROPERTY RIGHTS

 

Except as otherwise expressly stated, all Content appearing on the Service is the copyrighted work of Birth Halo or its third-party content providers and is protected by U.S. and international copyright laws. The compilation (meaning the selection, coordination, and arrangement) of the Service is also the exclusive property of Birth Halo and is protected by U.S. and international copyright laws. Except as otherwise expressly stated herein, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, display, perform, reproduce, reuse, post, publish, license, frame, download, store for subsequent use, create derivative works from, transfer, or sell any information or Content obtained from the Service, in whole or in part, including any text, images, audio, and video in any manner, without the prior written authorization of Birth Halo or any applicable third-party suppliers. The use of Content, including images, by you, or anyone else authorized by you, is prohibited unless specifically permitted by Birth Halo. Any unauthorized use of text or images may violate copyright laws, trademark laws, the laws of privacy and publicity, and applicable regulations and statutes. Birth Halo does not warrant or represent that your use of Content or any other materials displayed on the Service will not infringe rights of third parties. Your use of any of the Content beyond the scope of personal use may require a license from the owner of the rights to the data with respect to the use of portrait right, trademark, copyright, design right, right of utilization or any other rights of the persons, products or landscape portrayed in the provided Content. Birth Halo is not responsible for any claims of ownership rights to any images or data against you. To the fullest extent permitted by law, you will indemnify, defend and hold harmless Birth Halo from and against any losses or claims, by an owner of data or image rights or any third party resulting from any violation of these Terms of Use. Certain trademarks on the Service are the service marks and trademarks of Birth Halo or its licensees. The domain name for the Service, the Birth Halo logo and elements of the design of the Site are service marks, trademarks, logos, and/or trade dress of Birth Halo. All other trademarks, service marks, trade dress, product names, company names or logos, whether registered or not, on the Service are the property of their respective owners. In addition to complying with all applicable laws, you agree that you will not use any such trademarks, service marks, trade dress, or other logos from the Service without the prior written authorization of Birth Halo. Permission for all other uses of Content, service marks, trademarks, logos, trade dress or other intellectual property contained herein, including reproducing and distributing multiple copies or using Content, service marks, trademarks, logos, trade dress or other intellectual property on any other website or networked computer or linking to any page at the Service, must be obtained from Birth Halo or the appropriate rights owner in advance; otherwise, such use is prohibited. Requests for such authorization from Birth Halo should be submitted via an email to support@Birth Haloclinic.com. All design rights, databases and compilation and other intellectual property rights associated with the Service, in each case whether registered or unregistered, and related goodwill, are proprietary to Birth Halo.

 

OUR RIGHT TO USE USER-PROVIDED CONTENT

 

We may, in our sole discretion, permit you to post or submit content and other materials through the Service (collectively, “User-Provided Content”). You grant us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such User-Provided Content, in whole or in part, in any manner or medium (whether now known or hereafter developed), for the purpose of providing the Service to you. Also, you grant us, and anyone authorized by us, the right to identify you as the author of any User-Provided Content submitted by you. You will not receive any compensation of any kind for the use of any User-Provided Content submitted by you. You acknowledge that we only act as a passive conduit for the distribution of the User-Provided Content and are not responsible or liable to you or to any third party for the content or accuracy of the User-Provided Content. You understand that we have no obligation to monitor any areas of the Service through which users can post User-Provided Content. However, we reserve the right at all times, in our sole discretion, to screen User-Provided Content and to edit, move, delete, and/or refuse to accept any User-Provided Content that in our judgment violates this Agreement or is otherwise unacceptable or inappropriate, whether for legal or other reasons. Any use by you of the User-Provided Content is entirely at your own risk. You represent and warrant that any User-Provided Content posted or transmitted by you is original to you and does not copy the work of any third party or otherwise infringe any third party intellectual property rights, rights of privacy or publicity rights and does not contain any defamatory or disparaging statements. Furthermore, you represent and warrant that you have the right to grant the license described above. In the event of a conflict between the provisions of this Section and any other term in these Terms of Use, the provisions of this Section will control.

 

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT

 

Birth Halo respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and Birth Halo asks our users to do the same. Birth Halo therefore employs measures to prevent copyright and other intellectual property infringement on the Service. Pursuant to Title 17, United States Code, Section 512(c)(2), if you believe that your work has been copied in a way that constitutes copyright or other intellectual property infringement, please send a written notification of the claimed copyright or other intellectual property infringement to the support@birthhalo.com. Under Title 17, United States Code, Section 512(c)(3)(A), to be effective the notification must include substantially the following information:

 

● A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;

 

● Identification of the copyrighted work or other intellectual property that you claim has been infringed, or if multiple copyrighted works or other intellectual property on the Service are covered by the notice, a representative list of such works;

 

● Identification of the material that you claim is infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Birth Halo to locate the material;

 

● Information reasonably sufficient to permit Birth Halo to contact you, such as your name, address, telephone number and email address;

 

● A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright or other intellectual property owner, its agent, or the law; and

 

● A statement by you that the notification is accurate, and under penalty of perjury, that you are the copyright or other intellectual property owner or authorized to act on the copyright or other intellectual property owner’s behalf. Do not send any inquiries unrelated to copyright or other intellectual property infringements to the contact listed above. We reserve the right to promptly terminate without notice the accounts of users that are determined by us to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice or has had User-Provided Content removed from the Service more than twice.

 

PROHIBITED USE

 

Any use or attempted use of the Service (i) for any unlawful, unauthorized, fraudulent or malicious purpose, (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, (iii) that could interfere with any other party’s use and enjoyment of the Service, (iv) to gain unauthorized access to any other accounts, computer systems, or networks connected to any server or systems through hacking, password mining or any other means, (v) to access systems, data, or information not intended by Birth Halo to be made accessible to a user, (vi) to obtain any materials, or information through any means not intentionally made available by Birth Halo, (vii) to reverse engineer, disassemble or decompile any section or technology on the Service, or (viii) any use other than the business purpose for which it was intended, is prohibited. In addition, in connection with your use of the Service, you agree you will not: (a) upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that may invade another’s right of privacy or publicity; (b) create a false identity for the purpose of misleading others or impersonate any person or entity, including, without limitation, any Birth Halo representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; (c) upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements); (d) upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware or any other similar software or programs that may damage the operation of another’s computer or property of another; (e) delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature; (f) use the Service’s communication features in a manner that adversely affects the availability of its resources to other users; (g) upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “phishing” or any other form of solicitation, commercial or otherwise; (h) violate any applicable local, state, national or international law; (i) upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party; (j) delete or revise any material posted by any other person or entity; (k) manipulate or otherwise display the Service by using framing, mirroring or similar navigational technology; (l) probe, scan, test the vulnerability of or breach the authentication measures of, the Service or any related networks or systems; (m) register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so; (n) harvest or otherwise collect information about others, including email addresses; (o) use any robot, spider, scraper, or other automated or manual means to access the Service, or copy any content or information on the Service; or (p) assist or permit any person in engaging in any of these activities. Birth Halo reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of the foregoing, including, without limitation, the suspension or termination of a user's access and/or account. Birth Halo may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Except as may be expressly limited by the Privacy Policy, Birth Halo reserves the right at all times to disclose any information as Birth Halo deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Birth Halo’s sole discretion.

 

RIGHT TO MONITOR

 

Birth Halo shall have the right, but not the obligation, to monitor use of the Service and to remove from the Service any materials that Birth Halo, in its sole discretion, believes (i) are inappropriate, (ii) are illegal, (iii) may subject Birth Halo to liability or violate these Terms of Use, or (iv) otherwise inconsistent with Birth Halo’s purpose for the Site.

 

NO BIRTH HALO EDITORIAL CONTROL OF THIRD-PARTY CONTENT; NO STATEMENT AS TO ACCURACY

 

To the extent that any of the Content included in the Service is provided by third-party content providers, Practitioners, or other Service users, Birth Halo has no editorial control or responsibility over such Content. Therefore, any opinions, statements, products, services or other information expressed or made available by professionals, third-party suppliers or users on the Service are those of such professional, third-party suppliers or users, respectively. Birth Halo does not represent or endorse the accuracy or reliability of any opinion, statement or other information provided by any third party, or represent or warrant that your use of the Content displayed on the Service or referenced content or service providers will not infringe rights of third parties not owned by or affiliated with Birth Halo.

 

LINKS TO THIRD-PARTY SITES

 

As you view the Service, you may see links to third-party websites. These links are for convenience only. If you use these links, you will leave the Service. Certain of these linked websites may make use of Birth Halo’s proprietary intellectual property rights (such as copyrights, trademarks, service marks, logos and trade names) under license from the Birth Halo. Birth Halo is not responsible for the availability or content, products, services or other materials of these other websites or for any viruses or other damaging elements encountered in linking to a third-party website. In addition, providing links to these websites should not be interpreted as endorsement or approval by Birth Halo of the organizations sponsoring such third-party websites or their products or services. Birth Halo shall not be responsible or liable, directly or indirectly, for any damages or losses caused or alleged to be caused by or in connection with the use of or reliance on such content, products, services or other materials available on or through any such website. Birth Halo is not responsible for the privacy practices of any other websites.

 

THIRD-PARTY INTERACTIONS

 

Your interactions with entities or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such entities or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any third party. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Service and disclosing personal information. You agree that Birth Halo shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on the Service, or between users and any third party, you understand and agree that Birth Halo is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Birth Halo, its officers, employees, agents and successors in interest from claims, demand and damages (actual or consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the Service or the features and services therein.

 

PAYMENTS THAT YOU MAY MAKE VIA THE SERVICE

 

To the extent that you purchase specific services or products via the Service, including without limitation payments to Practitioners, then (to the extent that such purchases are not paid under the terms of an applicable Enterprise Agreement), processing services for such payments on the Service are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to these terms you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of the Service enabling payment processing services through Stripe, you agree to provide the Service accurate and complete information about you and your business, and you authorize the Service to share it and transaction information related to your use of the payment processing services provided by Stripe.

 

TERMINATION

 

Birth Halo may terminate your use of the Service or any of our features or services at any time and for any reason without notice for conduct violating these Terms of Use. Upon any such termination, you must destroy all Content obtained from the Service and all copies thereof. The provisions of these Terms of Use concerning Service security, prohibited activities, copyrights, trademarks, user submissions, disclaimer, limitation of liability, indemnity and jurisdictional issues shall survive any such termination. You agree that if your use of the Service is terminated pursuant to these Terms of Use, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will, to the fullest extent permitted by law, indemnify and hold Birth Halo harmless from any and all liability that Birth Halo may incur therefore.

 

ARBITRATION NOTICE

 

Except for certain kinds of disputes as described below, you agree that disputes arising under these Terms of Use will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS OF USE, YOU AND BIRTH HALO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See the section titled "Dispute Resolution and Arbitration").

 

MODIFICATIONS

 

This Service is continually under development, and Birth Halo reserves the right to revise or remove any part of these Terms of Use in its sole discretion at any time and without prior notice to you (however, Birth Halo will endeavor to provide you with prior notice of any material changes). Any changes to these Terms of Use are effective upon posting to the Service. Unless otherwise indicated, any new Content added to the Service is also subject to these Terms of Use upon posting to the Service. If you disagree with these Terms of Use, your sole remedy is to discontinue your use of the Service. Your continued use after a change has been posted constitutes your acceptance of the changes.

 

DISCLAIMERS

 

Content and other information contained on the Service is provided by Birth Halo as a convenience. Users relying on Content or other information from the Service do so at their own risk. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, BIRTH HALO DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE. BIRTH HALO MAKES NO WARRANTY THAT THE CONTENT IS ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR THAT ANY SUCH PROBLEMS WILL BE CORRECTED. LIMITATION OF LIABILITY EXCEPT AS PROVIDED IN THE SECTION TITLED “DISPUTE RESOLUTION AND ARBITRATION,” TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIRTH HALO BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIRTH HALO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, BIRTH HALO SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $1,000. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER BIRTH HALO NOR ANY THIRD PARTIES MENTIONED ON THE SERVICE ARE LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, CAUSED BY YOUR USE OR MISUSE OF THE SERVICE.

 

INDEMNIFICATION

 

To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Birth Halo, its affiliates, contractors, and its directors, officers, employees, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys from and against any and all suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, attorneys’ fees and litigation expenses) relating to or arising from your use of the Service in a manner not authorized by these Terms of Use, your fraud, violation of law, or willful misconduct, and any breach by you of these Terms of Use.

 

NOTICES AND ELECTRONIC COMMUNICATIONS

 

Any notices to you from Birth Halo regarding the Service or these Terms of Use will be made by email or regular mail. When you visit the Service or send emails to us, you are communicating with us electronically. You agree that we may send to you any privacy or other notices, disclosures, or communications regarding the Service (collectively, "Communications") through electronic means including but not limited to: (1) by e-mail, using the address that you provided to us during registration, (2) short messaging service (“SMS”) text message to the mobile number you provided us during registration, (3) push notifications on your mobile device, or (4) by posting the Communications on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms. The delivery of any Communications from us is effective when sent by us, regardless of whether you read the Communication when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Communications by deactivating your Account. You can opt-out of future Communications through SMS text message by replying “STOP” or emailing us at support@birthhalo.com.

 

ENTIRE AGREEMENT; GOVERNING LAW; VENUE; SEVERABILITY OF PROVISIONS

 

These Terms of Use and other policies Birth Halo may post on the Service or that you and Birth Halo may execute constitute the entire agreement between Birth Halo and you in connection with your use of the Service and supersedes any prior agreements between Birth Halo and you regarding use of the Service, including prior versions of these Terms of Use. This Service is controlled and operated by Birth Halo from our offices within California, United States of America. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent applicable. Access to the Service from jurisdictions where the contents of the Service are illegal or penalized is prohibited. By choosing to visit the Service, you agree that any dispute over your use of the Service or these Terms of Use will be governed by the laws of the State of California and the United States of America, without regard to any conflicts of law provisions. You also consent to the adjudication of any disputes arising in connection with our Service in the state and federal courts located in Santa Ana, California. You also agree to attempt to mediate any such dispute and to abide by all limitations of liability contained herein. All parts of these Terms of Use apply to the maximum extent permitted by law. We both agree that if we cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce to the extent permitted by law. The invalidity of part of these Terms of Use will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect.

 

DISPUTE RESOLUTION AND ARBITRATION GENERALLY

 

In the interest of resolving disputes between you and Birth Halo in the most expedient and cost effective manner, and except as described in the sub-section of this section titled “Exception,” you and Birth Halo agree that every dispute arising in connection with these Terms of Use will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms of Use, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Use. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, YOU AND BIRTH HALO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

 

EXCEPTIONS

 

Despite the provisions of the subsection of this section titled “Generally,” nothing in these Terms of Use will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim. ARBITRATOR Any arbitration between you and Birth Halo will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms of Use. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Birth Halo. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. NOTICE OF ARBITRATION; PROCESS A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Birth Halo’s address for Notice is: Registered Agents Inc., 1267 Willis St. Suite 200, Redding, CA 96001. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Birth Halo may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Birth Halo must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Birth Halo in settlement of the dispute prior to the award, Birth Halo will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000. FEES If you commence arbitration in accordance with these Terms of Use, Birth Halo will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Ana, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Birth Halo for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. NO CLASS ACTIONS YOU AND BIRTH HALO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Birth Halo agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

 

MODIFICATIONS TO THIS ARBITRATION PROVISION

 

If Birth Halo makes any future change to this arbitration provision, other than a change to Birth Halo’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Birth Halo’s address for Notice of Arbitration, in which case your account with Birth Halo will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

 

ENFORCEABILITY

 

If the Section titled “No Class Actions” is found to be unenforceable or if the entirety of this Section titled “Dispute Resolution and Arbitration” is found to be unenforceable, then the entirety of this Dispute Resolution and Arbitration Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in the section titled “Governing Law; Venue; Severability of Provisions” will govern any action arising out of or related to these Terms of Use.

 

NO AGENCY RELATIONSHIP

 

Neither these Terms of Use, nor any Content, materials or features of the Service create any partnership, joint venture, employment, or other agency relationship between us and you. You may not enter into any contract on our behalf or bind us in any way.

 

ASSIGNMENT

 

You may not assign any of your rights under these Terms of Use, and any such attempt will be null and void. Birth Halo may, in its discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms of Use if some or all of the business of Birth Halo is transferred to another entity by way of merger, sale of its assets or otherwise.

 

CONTACTING US

 

If you have any questions or concerns about these Terms of Use, please contact us at support@birthhalo.com. We will attempt to respond to your questions or concerns promptly after we receive them.

 

NOTICE REGARDING APPLE

 

This Section only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms of Use are between you and Birth Halo only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Use, and upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary of these Terms of Use. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.