Terms and Conditions
Agreement. Equipment, Furniture and Disposable Kits furnished by MilkMate Products, Inc., a Delaware corporation (“MilkMate”) to you (the “Customer”) are provided only in accordance with the purchase order attached hereto (the “Purchase Order”) and on the terms and conditions stated herein (the “Terms and Conditions” and together with the Purchase Order, the “Agreement”). The “Effective Date” of the Agreement is the date Customer agrees to be bound by clicking on the “I Agree” tab on the website or otherwise executes the Agreement. Pursuant to the Agreement, (i) MilkMate will sell to Customer its proprietary breast pumping solution including MilkMate Breast Pump and Accessories (the “Equipment”), furniture (the “Furniture”), and consumable products identified at the category level on the Purchase Order manufactured by MilkMate (“Disposable Kits”) for use with the Equipment and (ii) MilkMate will provide access to software to be used in conjunction with the Equipment (“Software”), the items identified in subsection (i) and (ii) shall collectively be referred to as the MilkMate Solution (the “Solution”).
Fees. Upon execution of the Purchase Order, Customer will be invoiced for the MilkMate Solution Initial Fee which includes costs for the Furniture and the Equipment (in each case, as set forth and described in the “Product” information of the respective Purchase Order), as well as, installation and onboarding (such fees collectively referred to as the “Initial Fee”). Payment is due within thirty (30) days of receipt.
Upon installation of the Furniture and Equipment, Customer will be invoiced for the Annual Servicing Fee, which includes inventory management, restock allowance, access to MilkMate customer support team, app licensing, pump warranty and product updates as available (collectively referred to as “Service Fees”). Service Fees due and payable to MilkMate under this Agreement shall be invoiced to Customer on a basis outlined on the Purchase Order starting on the date of installation and payment shall be due within thirty (30) days after Customer’s receipt of each invoice, unless different payment terms are specified on the Purchase Order.
If Customer requires relocation of the Equipment, Customer shall first contact MilkMate in writing to confirm access to service in new location. Customer may be required to pay MilkMate additional charges due to an increase in service charges at new location. MilkMate does not provide relocation services. Customer bears all risk in moving the Equipment and the Furniture.
Furniture and Equipment Purchase. MilkMate agrees to sell to Customer the Furniture, Equipment and Disposable Kits listed on the Purchase Order pursuant to the terms of the Purchase Order. MilkMate will provide the Furniture, Equipment and Disposable Kits in accordance with the charge schedule set forth in the Purchase Order and the Agreement. All sales of Furniture, Equipment and Disposable Kits are “as-is”, final and non- refundable.
Taxes and Late Payments. Customer shall pay all sales, use, excise, personal property or other taxes (excepting state and federal income taxes and other taxes upon the “net income” of MilkMate) that may be imposed on either party as a result of this Agreement. All amounts owed to MilkMate under this Agreement, including the Purchase Order, and not paid when due shall bear monthly interest after the due date at one and one-half percent (1.5%).
Service Term. The term of this Agreement shall commence as of the Service Start Date and shall end on the Service End Date (the “Initial Term”) as outlined in the Purchase Order and Agreement , and thereafter, automatically renew for one (1) year terms (each, a “Renewal Term”, which shall, together with the Initial Term, be referred to as the “Term”), unless earlier terminated (a) upon ninety (90) business days’ prior written notice by either party to the other party; (b) upon a breach of this Agreement that remains uncured for 30 days after notice is provided by the non-breaching party to the breaching party stating the basis for the breach of the Agreement; or (c) by mutual written agreement of the parties. In addition, in connection with any termination of this Agreement prior to the expiration of the Term, unless such termination is a termination effected by Customer pursuant to (b) of this subsection, Customer shall, within thirty (30) days of such termination, pay MilkMate all Service Fees that would have been due (and not yet paid) for the duration of either the Initial Term, or such Renewal Term, as the case may be. MilkMate will not offer refunds for payments made, unless such termination is a termination effected by Customer pursuant to (b) of this subsection and to the extent of such termination effected by Customer pursuant to (b) of this subsection, such refund shall only cover the period in which MilkMate was in breach (and not prior to such time).
Disposable Kit Provision and Replenishment. MilkMate hereby agrees to provide to Customer, at installation, an initial inventory of Disposable Kits, as well as ship additional Disposable Kits as outlined in the Purchase Order. MilkMate shall use commercially reasonable efforts to restock Disposable Kits during the Term when the unit reaches less than 50% capacity subject to terms of this Agreement. A restock (the “Restock”) is defined as a shipment of twenty-four (24) Disposable Kits.
If the Customer exceeds the restock allowance outlined in the Purchase Order, MilkMate will bill the Customer for the total additional Restock cost including the cost of Disposable Kits plus associated shipping or servicing fees during the next payment cycle.
In the event any Disposable Kits are unavailable due to systemic shortages and/or supply chain disruptions, MilkMate shall use commercially reasonable efforts to restock any unavailable Disposable Kits with reasonable substitutes, if any, and notify Customer within reasonable notice. Customer acknowledges and agrees that the Equipment must be used in conjunction with MilkMate’s proprietary application at all times during the Term (the “MilkMate App”) to ensure proper inventory tracking. Customer shall provide wireless internet connectivity at no charge to MilkMate through which Customer and any employee or permitted licensee of Customer (each an “Authorized User”) shall communicate with the MilkMate App. Customer shall ensure that this connection is available to avoid any inventory availability issues.
Customer agrees that the Disposable Kits shall be used solely in connection with the use of the Equipment and Customer agrees to use only the Disposable Kits set forth in the Purchase Order when operating the Equipment.
Title. MilkMate and its licensors own and retain all title and ownership of all Software and all intellectual property rights in (a) the Equipment; (b) any Software to be used with the Equipment; (c) the Solution; and (d) all documentation acquired, produced or shipped by MilkMate or its designees under this Agreement, and, in each case, all modifications and derivative works thereto that are made by Customer and/or Customer Indemnitees (as hereinafter defined) or any third party. Customer agrees to assign and hereby assigns any and all such modifications and derivative works to MilkMate (whether or not Customer is authorized to create such modification and derivative works), and Customer shall assist MilkMate to further evidence, confirm, record and perfect such assignments, and to obtain, maintain, enforce, and defend any rights assigned, including taking appropriate action by instruction or agreement with its Customer Indemnitees who are permitted access to the Software and such intellectual property. Subject to these Terms and Conditions, MilkMate grants to Customer a limited, non-exclusive, non-transferable (except in connection with a legal transfer of Equipment to a third party), and non-sublicensable license to access and use the Software and such intellectual property solely as reasonably necessary to use the Solution for its intended purpose as described in these Terms and Conditions and applicable documentation published by MilkMate, and for no other purpose. Customer shall not, and shall not assist or permit any third party to, reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; modify or create derivative works of the Software; or remove any legal notices from the Software or Equipment.
Operation. Use, Loss and Damage. Customer and its Authorized Users shall (i) exercise due care in its operation, use and maintenance of the Equipment and the Disposable Kits; (ii) use the Equipment and Disposable Kits in full compliance with all laws, ordinances and regulations with respect to the maintenance or operation of the Equipment and use of the Disposable Kits (collectively “Applicable Laws”); and (iii) use the Equipment and Disposable Kits in a safe and reasonable manner in accordance with Applicable Laws, and MilkMate’s written instructions and for the purpose for which the Equipment and Disposable Kits was intended.
Right of Access. MilkMate or its designee shall have the right from time to time during normal business hours to enter the Location or elsewhere for the purpose of confirming the existence, condition or proper maintenance of the Equipment and the Disposable Kits and to replenish the Disposable Kits.
Marketing. Customer agrees to allow MilkMate to use their name and logo within the MilkMate website, database, marketing materials, social media channels and advertisements. Any use of MilkMate’s name and logo or any form of publicity, inclusive of press release regarding this Agreement by Customer must have prior approval from MilkMate which will not be unreasonably withheld.
Indemnification.
Indemnification by MilkMate. MilkMate shall defend, indemnify and hold harmless Customer and its affiliates, employees, representatives, officers, directors, Authorized Users, designees and agents (collectively, the “Customer Indemnitees”) from and against any and all liabilities, damages, losses, claims, or expenses, including court costs, expert witness fees and reasonable attorneys’ fees (“Losses”) resulting from (i) MilkMate’s or its representative’s breach of this Agreement; (ii) injuries to persons or damage to property resulting from MilkMate or its representative’s deliberate and intentional acts or omissions (or gross negligence); (iii) injuries to persons or damage to property resulting from use or operation of the Equipment, but only to the extent that any such injury or damage results from MilkMate or its representative’s deliberate and intentional acts or omissions (or gross negligence) including, but not limited to, gross negligence directly caused by the Equipment or Disposable Kits in such case where such items were used by Customer Indemnitees in accordance with this Agreement; or (iv) claims by MilkMate or its representative’s for injuries or damages under workmen’s compensation laws. MilkMate’s obligation to indemnify does not apply to Losses that arise out of or in connection with (i) any Customer Indemnitee’s (a) wrongful or negligent actions or omissions, or willful misconduct or other misuse of the Equipment and/or Disposable Kits; (b) failure to follow Applicable Laws; (c) failure to follow information provided by or on behalf of MilkMate to Customer Indemnitees; or (d) breach of any provision of this Agreement.
Indemnification by Customer. Customer shall indemnify, defend, and hold harmless MilkMate, its affiliates, their employees, representatives, officers, directors, designees and agents (collectively, the “MilkMate Indemnitees”) from and against any and all Losses resulting from or arising out of any claims, actions or proceedings relating to any (i) wrongful or negligent actions or omissions, or willful misconduct or other misuse of the Equipment and/or Disposable Kits by any of Customer Indemnitees or the use thereof with another manufacturer’s equipment, including but not limited to failure to use the Equipment and/or Disposable Kits in compliance with the Agreement, and the other materials provided by MilkMate pursuant to this Agreement; (ii) failure by Customer or Customer Indemnitees to follow Applicable Laws; (iii) injuries to persons or property, including theft, and injuries or damages under worker’s compensation laws; or (iv) Customer’s or Customer Indemnitees’ unauthorized use of the Equipment, including but not limited to, MilkMate’s confidential information, hardware, the Software, firmware or other intellectual property rights.
General Limitation of Liability. CUSTOMER INDEMNITEES’ SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH MILKMATE IS THE TERMINATION OF THE AGREEMENT WITH MILKMATE. IN NO EVENT SHALL MILKMATE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR CUSTOMER INDEMNITEES FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF CUSTOMER’S OR AUTHORIZED USER’S USE OF THE SOLUTION, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT CUSTOMER PAID TO UTILIZE THE SOLUTION, OR (B) $10,000.00 IN NO EVENT SHALL MILKMATE BE LIABLE TO CUSTOMER (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH CUSTOMER) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER’S USE OF, OR INABILITY TO USE, ALL OR ANY PORTION OF THE SOLUTION. THESE EXCLUSIONS APPLY TO ANY AND ALL CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, AND ANY OTHER COMMERCIAL DAMAGES OR LOSSES, THROUGH USE OF THE SOLUTION, EVEN IF MILKMATE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, MILKMATE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. [IF CUSTOMER IS A CALIFORNIA [RESIDENT/ENTITY], CUSTOMER WAIVES CUSTOMER’S RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR”.]
Performance Warranties. MilkMate warrants that (1) the services performed shall be of professional and workmanlike quality and (2) the Equipment, when used in accordance with MilkMate user documentation current at the time of installation, shall substantially comply with the standard specifications for such Equipment during the Term. As Customer’s sole remedy, and MilkMate’s sole liability, for any breach of this warranty, MilkMate shall promptly restore the Equipment to working order or if MilkMate is unable for any reason to restore the Equipment to working order, it shall promptly replace the Equipment with new Equipment subject to the service exclusions in this Agreement. MilkMate shall have the right to void this warranty in part or in its entirety if the Equipment is not shipped or transported in accordance with MilkMate’s shipping requirements, is not installed by MilkMate-trained technicians, is not used in accordance with MilkMate’s documentation, is used in an environment not approved in MilkMate’s documentation, is not registered in the MilkMate App and/or Disposable Kits or other items not approved or specified by MilkMate are used in the Equipment at any time. Furthermore, MilkMate has the right to void this warranty in part or in its entirety if the Equipment is the subject of Misuse by the Customer or any Authorized User of Customer. “Misuse” shall include failure to use the Equipment in accordance with this Agreement, Applicable Law, but shall also include failure to provide reasonable security for the Equipment and Disposable Kits during the Term, alter the Equipment or any aspect of the Solution, use, operate or locate the Equipment in any manner or area as to cause it to be excluded from covered by any insurance required under this Agreement, and/or damage or loss to the Equipment or Disposable Kits (with the exception of ordinary wear and tear), or defacing the Equipment in any way, including but not limited to, the removal of any branding.
Furthermore, no loss, theft, damage or destruction of the Equipment shall relieve Customer of its payment obligations hereunder or to comply with any other obligation under this Agreement.
Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, MILKMATE PROVIDES THE SOLUTION “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. MILKMATE MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THOSE OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, OR ANY OTHER WARRANTIES, OR GUARANTEES ABOUT THE SOLUTION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MILKMATE HEREBY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SOLUTION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES THAT THE SOLUTION IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. MILKMATE DOES NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOLUTION WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET CUSTOMER’S REQUIREMENTS. MILKMATE DOES NOT WARRANT THAT THE SOLUTION WILL OPERATE ERROR-FREE.
Insurance. Each party shall secure and maintain at its own expense during the term of this Agreement such commercial general liability and/or other insurance as is reasonably and customarily necessary to fulfill its obligations under this Agreement.
Amendments. This Agreement may not be amended or modified except by a writing signed by both parties.
Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns.
Waiver. The failure of either party to complain of any default by the other party or to enforce any of such party’s rights, no matter how long such failure may continue, will not constitute a waiver of the party’s rights under this Agreement. The waiver by either party of any breach of any provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same or any other provision. No part of this Agreement may be waived except by the further written agreement of the parties.
Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by the laws of the State of New York.
Entire Agreement. This Agreement together with the Purchase Order hereto constitutes the entire agreement between the parties with respect to its subject matter and supersedes all past and contemporaneous agreements, promises, and understandings, whether oral or written, between the parties.
Confidentiality. “Confidential Information” means any and all technical, business, client or proprietary information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s business strategies and practices, methodologies, trade secrets, know-how, technology, software, product plans, services, relationships with any third party, client lists and information regarding the Disclosing Party’s employees, clients, vendors, consultants and affiliates Customer acknowledges that the Equipment, the Disposable Kits, the user and maintenance manuals, and the ideas, processes, methods of operation, disclosed pricing, and implemented technology therein, any and all technical, business, client or proprietary information disclosed by MilkMate to Customer or Authorized Users, directly or indirectly, including, but not limited to, information regarding MilkMate’s business strategies and practices, methodologies, trade secrets, know-how, technology, software (including the Software), the Solution, product plans, services, relationships with any third party, client lists and information regarding MilkMate’s employees, clients, vendors, consultants and affiliates (the “Confidential Information”) constitute the trade secrets and proprietary information of MilkMate. Customer shall hold the Confidential Information in strict confidence and shall not show or disclose it to any third parties. Without limiting the generality of the foregoing, Customer shall use reasonable means, not less than that used to protect its own trade secret and proprietary information, to safeguard the Confidential Information. Customer shall not attempt, or authorize or permit others to attempt, to imitate, decompile, reverse assemble, or otherwise reverse engineer the Equipment, the technology implemented therein, including its hardware and software, or the Disposable Kits. Customer shall not and shall not enable or allow any Customer Indemnitee to, directly or indirectly, use any Confidential Information of MilkMate to develop or create any product or materials that contain features or functionality that are similar in any way to any features or functionalities of the Equipment, MilkMate’s intellectual property or Confidential Information, or for any reason whatsoever.
Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect as if the invalid or unenforceable provision had never been a part of the Agreement, to the extent that the absence of the invalid or unenforceable provision does not materially affect the purpose of the contract.
Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party. Any attempted assignment of this Agreement, or any rights or obligations hereunder, by one party without the written consent of the other party shall be null and void.
Representations and Warranties.
Each party represents that (i) such party has the full right, power and authority to enter into this Agreement and be bound by its terms, and to perform its duties hereunder and (ii) that such party’s execution and delivery of this Agreement, and the consummation of the transactions described in this Agreement, do not violate or conflict with any agreement or obligations of such party to any other person or entity.
Force Majeure. No party to this Agreement shall be responsible for any delays or failure to perform any obligation under this Agreement (except for payment of fees for services rendered and Equipment leased) due to acts of God, strikes or other disturbances, including, without limitation, war, insurrection, embargoes, governmental restrictions, acts of governments or governmental authorities, global health emergencies or the like, and any other cause beyond the control of such party. During an event of force majeure, the parties’ duty to perform obligations shall be suspended, including Customer’s payment obligations (except for payment of fees for services rendered and Equipment leased).
Notices. All notices, requests and other communication that a party is required or elects to deliver shall be in writing and shall be delivered personally (provided such delivery is confirmed in writing), or by a recognized overnight courier service or by United States mail, first-class, certified or registered, postage prepaid, return receipt requests, to the other party at its address set forth in the Purchase Order.
Recalls. Customer shall cooperate with MilkMate in connection with recalls, withdrawals and other safety matters related to the Equipment (each a “Recall”), including, but not limited to, providing: (i) written acknowledgement to MilkMate of the Recall within twelve (12) hours of notification by MilkMate; (ii) prompt written confirmation to MilkMate that all Recall-related processes initiated by MilkMate and provided to Customer have been followed by Customer; (iii) timely submittal of all Recall-related documentation to MilkMate as reasonably requested by MilkMate; and (iv) MilkMate with reasonable access to the Equipment.
Designees. MilkMate shall have the right to use designees to carry out its obligations under this Agreement.
Survival. The parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination
Service Exclusions. Service provided hereunder does not ensure uninterrupted operation of the Equipment. Service does not include defect, damage or malfunction resulting from: (a) electrical work external to the Equipment or maintenance of accessories, attachments, machines or other devices not furnished by MilkMate, including internet access; (b) accident, neglect or misuse, or causes other than ordinary use of the Equipment in a proper and authorized manner; (c) use of the Equipment in connection with reprocessed single-use products; (d) maintenance, modification or repair by persons not authorized by MilkMate to do so; or (e) any damage that renders the Equipment to be non-repairable. For damages that fall within exclusions lettered (a) through (c) above, Customer shall be charged the then-current published service price in the Purchase Order. For damages that fall within exclusions letter (d) or (e), Customer shall be charged the then-current list price for a new unit of Equipment.
Section Headings; No Strict Construction. All section headings are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. The words “include” “includes” and “including” when used in this Agreement (and any Work Order(s)) are deemed to be followed by the phrase “but not limited to”.
