BirthGuide Listing Agreement
This BirthGuide Listing Agreement (“Agreement”) contains the terms and conditions that apply to the use by you (“Provider” or “You”), and the Providers and Provider Members (defined below) that you represent, of the Services (as defined in Section 1.a) offered by BirthGuide, Inc. (“BirthGuide”), including but not limited to at https://www.BirthGuideChicago.com and all affiliated websites and applications and any Software owned and operated by BirthGuide (collectively, the “BirthGuide Site”). As used in this Agreement, “Provider” shall mean the person or entity which has engaged BirthGuide to provide the Services, and shall include the totality of all providers, including but not limited to doulas, childbirth educators, nutritionists, acupuncturists, chiropractors, physical therapists, mental health professionals, exercise instructors and other healthcare specialists, professionals or providers, and staff members (each a “Provider Member”) located in the same office or affiliate offices, for whom a listing is created in the Complementary Care Directory on the BirthGuide Site or who otherwise use the Services and/or the BirthGuide Site for the purpose set forth in this Agreement.
BY APPROVING OR PAYING FOR A LISTING AFTER RECEIVING A REFERENCE TO THIS AGREEMENT OR OTHERWISE AGREEING TO THESE TERMS, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO AND BIND PROVIDER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY PROVIDER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND PROVIDER, THEN DO NOT APPROVE OR PAY FOR A LISTING AND YOU ARE NOT LICENSED OR PERMITTED TO USE THE SERVICES AND/OR THE BIRTHGUIDE SITE. ALL OTHER USES OF THE SERVICES AND/OR THE BIRTHGUIDE SITE ARE STRICTLY PROHIBITED.
1. BirthGuide Services.
a. Services. Subject to the terms and conditions of this Agreement and payment of the agreed fees, BirthGuide will provide a variety of services via the BirthGuide Site and Partner Sites, if any, (“Services”), which may include, but are not limited to hosting Provider and Provider Member profile web pages, and marketing Provider Members and their services in the Complementary Care Directory of the BirthGuide Site (collectively, the “Marketing Services”).
(i) the address, phone number, fax and email of the Provider and Provider Members;
(ii) general Provider information; and
(iii) trademarks, logos and such other domains, images and materials that Provider provides to BirthGuide (“Provider Logos”) or that BirthGuide uses with Provider’s permission (collectively, “Provider Information”).
BirthGuide and its partners may use, modify, display, and reproduce Provider Information in connection with providing and marketing the Services and the BirthGuide Site. Provider may request that BirthGuide modify Provider Information with additional information, links or services. BirthGuide may incorporate such modifications and additional information into Provider’s profile posted on the BirthGuide Site in BirthGuide’s sole discretion.
c. Content. BirthGuide shall develop, compile, modify or otherwise maintain all content on the BirthGuide Site or as part of the Services, including, without limitation, any Provider Member or Provider photographs, and any content provided by Provider. Provider acknowledges and agrees that BirthGuide may make content from the BirthGuide Site, including Provider Information, available on Partner Sites and through marketing initiatives.
2. Provider Responsibilities.
a. Provider Information. Provider will cooperate with BirthGuide or its agents to verify the Provider Information. Provider is solely responsible for any liability or expense resulting from outdated or inaccurate Provider Information.
b. Contact. Provider agrees that BirthGuide may contact any Provider Member regarding the Services, the Software, and/or the BirthGuide
3. Fees and Payments.
a. Services Fees. In consideration of the Services provided hereunder, Provider shall pay BirthGuide any agreed fee.
4. Limitation of Liability for Use.
a. Disclaimer. The parties acknowledge and agree that BirthGuide is not responsible for: (i) the accuracy, reliability, timeliness, or completeness
of Provider Information, or any other data or information provided or received through the Services and/or the BirthGuide Site; (ii) any results that may be obtained from the use of the Services and/or the BirthGuide Site; (iii) use of the Software after the Term; or (vi) losses or injury arising from Provider’s professional services.
b. Health Care. Provider acknowledges and agrees that BirthGuide is not a health care provider, licensed or otherwise. BirthGuide cannot and will not assume responsibility for the direct care of any patient, customer or user, which shall at all times remain the responsibility of Provider and Provider Members.
5. Representations, Warranties and Covenants of Provider.
a. Provider Member Information. Provider represents, warrants and covenants that at all times during the Term:
(i) Provider will provide BirthGuide with complete and accurate information about Provider Members’ credentials, experience, memberships, board certifications, insurance participation, and contact information (including Provider Members’ professional address and phone and fax numbers);
(ii) each Provider Member possesses valid, unexpired, unrevoked and unrestricted licenses, authorizations and certifications necessary to provide all services or treatment provided by Provider or a Provider Member resulting from Provider’s or a Provider Member’s use of the Services and/or the BirthGuide Site;
(iii) Provider will use, and ensure that each Provider Member uses the Services and the BirthGuide Site in compliance with all applicable laws and regulations;
(iv) Provider has the right to enter into and subject the Provider and each Provider Member to the terms and conditions of this Agreement.
b. Ownership Rights. Provider represents, warrants and covenants that it has all necessary right, title and interest in and to the content submitted by Provider to BirthGuide in order for BirthGuide to perform the Services, including any and all rights and interests in or to Provider Information and any copyright, trademark, other intellectual property, publicity, and privacy (including necessary consents, authorizations and/or other legal permissions).
c. Provider Sourced Reviews and Testimonials. Provider represents and warrants that (a) it has obtained all rights, titles, interests, consents and authorizations necessary in accordance with applicable law for BirthGuide to publish testimonials or reviews through the Services, (b) each testimonial or review provided by Provider to BirthGuide is unbiased and no remuneration has been or will be provided for its use, and (c) each review or testimonial relates to services actually provided.
Provider will defend, indemnify and hold harmless BirthGuide and its affiliates, directors, officers, employees, consultants and agents from any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and amounts awarded by a court or paid in settlement, arising from or related to:
(i) any services or treatment provided by Provider or a Provider Member to a Website Visitor or other patient, customer or user resulting from Provider’s or a Provider Member’s use of the Services and/or the BirthGuide Site;
(ii) any fees, costs or expenses in connection with any services or treatment provided by Provider or a Provider Member resulting from Provider’s or a Provider Member’s use of the Services and/or the BirthGuide Site;
(iii) gross negligence, willful or intentional misconduct, or fraud by a Provider, Provider, or Provider Member; (vi) testimonials or reviews provided to BirthGuide by Provider; or
(vii) Provider Information.
7. Other Representations and Warranties; Disclaimer of Warranties.
a. Mutual Warranties. Each party represents and warrants to the other party that:
(i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized;
(ii) it has the full power to enter into this Agreement and to perform its obligations hereunder;
(iii) the execution and delivery of this Agreement will not result in any breach of any terms and conditions of, or constitute a default under, any other agreement to which such party is bound; and
iv) it is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.
b. No Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES, SOFTWARE AND THE BIRTHGUIDE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIRTHGUIDE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES OF THE SERVICES, SOFTWARE OR THE BIRTHGUIDE SITE BEING BUG-FREE, ERROR-FREE OR FREE FROM DEFECTS.
8. Limitation of Liability.
a. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL BIRTHGUIDE OR ITS PARTNERS, SUPPLIERS, VENDORS OR LICENSORS BE LIABLE TO PROVIDER OR A PROVIDER MEMBER FOR ANY (i) LOSS OF PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF DATA, (iii) LOSS OR INTERRUPTION OF USE OF THE SERVICES, SOFTWARE, BIRTHGUIDE SITE, OR PARTNER SITES, (iv) PROVISION OF SERVICES, HEALTH CARE OR OTHERWISE BY PROVIDER OR PROVIDER MEMBER OR (v) TESTIMONIALS OR REVIEWS PROVIDED TO BIRTHGUIDE BY PROVIDER, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF BIRTHGUIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF BIRTHGUIDE OR ITS PARTNERS, VENDORS, SUPPLIERS OR LICENSORS FOR ANY LOSS OR DAMAGES (WHETHER BASED IN CONTRACT, TORT OR ANY OTHER FORM OF ACTION) (A) RELATING TO OR ARISING OUT OF THIS AGREEMENT, OR (B) RELATING TO OR ARISING OUT OF ANY OTHER AGREEMENT BETWEEN, ON THE ONE HAND, THE PROVIDER OR A PROVIDER MEMBER, AND, ON THE OTHER HAND, BIRTHGUIDE OR ANY THIRD-PARTY THAT IS A PARTNER, VENDOR, SUPPLIER, LICENSOR OR LICENSEE OF BIRTHGUIDE, EXCEED THE GREATER OF: (Y) THE AGGREGATE OF THE AMOUNT OF FEES ACTUALLY PAID BY PROVIDER TO BIRTHGUIDE HEREUNDER DURING THE PREVIOUS TWELVE (12)-MONTH PERIOD, OR (Z) ONE HUNDRED DOLLARS ($100).
9. Marks; Non-Disparagement.
a. BirthGuide Marks. Any use of a BirthGuide Mark by Provider that is not expressly permitted hereunder will, in each case, be subject to the prior written approval of BirthGuide. In addition, any such use of a BirthGuide Mark will be subject to BirthGuide’s then-current trademark usage guidelines. BirthGuide reserves the right to terminate Provider’s right to use any BirthGuide Mark immediately upon the issuance of written notice if BirthGuide determines Provider to be in violation of such guidelines in its sole discretion. Provider acknowledges and agrees that it shall not (i) make any comparative references to BirthGuide, its pricing, or the Services or BirthGuide Site; or (ii) disparage or otherwise denigrate BirthGuide or the Services or BirthGuide Site.
b. Provider Logos. Provider hereby grants BirthGuide a non-exclusive, royalty-free license to use Provider Logos in connection with the Services during the Term.
10. Intellectual Property.
All right, title and interest, including without limitation all intellectual property rights, in and to the Services, Software and the BirthGuide Site, including all content submitted by Customers or Provider thereto (other than Provider Logos), as well as all URLs and domains registered by BirthGuide (even if such URLs and domains incorporate Provider Logos), shall remain the valuable and exclusive property of BirthGuide. BirthGuide retains all proprietary rights, title, and interest, including, without limitation, all patents, copyrights, trademarks, service marks, trade dress, rights to the look and feel of the BirthGuide Site, and trade secrets in and to any inventions, data, information, know-how, logos, ideas, concepts, technology, software and documentation related to or resulting from the utilization of the Services and/or the BirthGuide Site.
11. Term; Termination.
a. Term. This Agreement will commence as of the date of Provider’s acceptance of the terms and conditions herein, whether by paying an invoice or clicking on the “Accept” button or by downloading, accessing or otherwise using the Services and/or the BirthGuide Site, and shall continue in effect for the agreed period.
b. Termination. Provider or BirthGuide may terminate this Agreement if the other party breaches a material term of this Agreement and fails to cure such breach within ten (10) days of receiving notice.
c. Suspension. BirthGuide may immediately suspend or terminate this Agreement, with regard to Provider and/or any Provider Member, in the event that BirthGuide believes in its sole good faith determination that a Provider Member has engaged in inappropriate or unprofessional conduct or otherwise breached any provision of this Agreement.
d. Survival. All terms which by their nature are reasonably intended to survive shall survive termination of this agreement.
e. No Inducement. Nothing contained in this Agreement, including any compensation paid or payable, is intended or shall be construed:
(i) to require, influence, or otherwise induce or solicit a party or any of its affiliates for referrals or arranging for the referrals of persons for items or services, or recommending the ordering of any items or services, of any kind whatsoever, to any of the other parties or their affiliates, or to
any other person;
(ii) as splitting of any professional fees paid to Provider;
(iii) to interfere with a patient’s right to choose his or her own health care provider, or with a provider’s judgment regarding the ordering of any items or health care services; or
(iv) as remuneration in exchange for a disclosure of PHI or other information from a Customer or otherwise.
f. Notices. All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if sent (i) to BirthGuide by email to [email protected]; or (ii) to Provider via email to the designated billing contact or address on file. Provider expressly consents to the provision of notices via email. Either party may update its preferred notice address at any time upon notice to the other party. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient or, if delivered on a non-business day, on the next business day.
g. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois without reference to the conflict of laws provisions thereof.
h. Arbitration Agreement. Provider and BirthGuide acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, BirthGuide’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon Provider’s acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Provider as the third-party beneficiary hereof.
i. Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Chicago, IL. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
ii. Costs of Arbitration. The Rules will govern payment of all arbitration fees. BirthGuide will pay all arbitration fees (not including Provider’s attorneys’ fees) for claims less than seventy-five thousand dollars ($75,000). BirthGuide will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that Provider’s claim is frivolous.
iii. Small Claims Court; Infringement. Either Provider or BirthGuide may assert claims, if they qualify, in small claims court in Chicago, IL or any United States county where Provider lives or works. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
iv. Waiver of Jury Trial. Provider AND BirthGuide WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Provider and BirthGuide are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Provider and BirthGuide over whether to vacate or enforce an arbitration award, Provider AND BirthGuide WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge.
v. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. CLAIMS OF MORE THAN ONE PROVIDER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PROVIDER.
vi. Arbitration Severability. If the prohibition against class actions and other claims brought on behalf of third parties, or any other part of this Section 16.f is found to be unenforceable, then all of the other language in this Agreement and this Section 16.f will remain enforceable. To the extent that Provider or BirthGuide are permitted to bring a claim relating to this Agreement in state or federal court, then such claim shall only be brought in courts located in Chicago, IL.
i. Force Majeure. Except for a party’s payment obligations, the performance of either party under this Agreement may be suspended to the extent and for the period of time that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including, without limitation, acts of God, acts of civil or military authority, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, epidemics or pandemics, wars or riots). After thirty (30) cumulative days of suspension on the part of one party, the other party may, at its sole discretion and with written notice to the affected party, terminate its obligations without further liability.
j. Modifications. No modification, amendment or waiver of this Agreement or any of its provisions shall be binding upon BirthGuide unless made in writing and agreed to by BirthGuide. BirthGuide may amend the terms and conditions of this Agreement by reasonably notifying Provider at least thirty (30) days prior to such change taking effect, provided that if Provider does not agree to such changes, Provider may terminate this Agreement without penalty by providing BirthGuide with written notice of such election prior to such modification taking effect. Provider’s continued use of the Services and/or the BirthGuide Site following such period shall be deemed to be Provider’s acceptance of such change. A failure or delay of either party to: (i) insist upon the performance of any terms, conditions, rights or privileges of this Agreement; or (ii) exercise any rights or privileges conferred in this Agreement, shall not be construed as waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect.
k. Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
l. Entire Agreement. This Agreement, and any exhibits or addenda hereto, constitute the entire agreement between the parties and supersede all previous or contemporaneous agreements, promises, representations, whether written or oral, between the parties with respect to the subject matter hereof.
m.Headings. The headings of the sections of this Agreement are for convenience only, and do not form a part hereof or in any way limit, define, describe, modify, interpret or construe the meaning, scope or intent of this Agreement or any terms or conditions therein.
n. Independent Contractors. The relationship of the parties shall be that of independent contractors. Any employee, servant, assigned to provide services under this Agreement shall remain at all times under the exclusive direction and control of BirthGuide and shall not be deemed to be an employee, servant, subcontractor or agent of Provider. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity, except as specifically provided herein.
o. Third Party Beneficiaries. This Agreement is entered into solely between, and made for the sole benefit of, BirthGuide and Provider, and, subject to indemnification obligations and the limitations of liability herein, this Agreement will not be deemed to create any obligations, remedies or liabilities of a party to any third parties (including without limitation any Provider Member) unless explicitly stated herein. Except as otherwise stated in this Agreement, no third party shall have the right to make any claim or assert any right under this Agreement, and no third party shall be deemed a beneficiary of this Agreement.
p. Remedies Cumulative. Unless expressly stated, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law.