Terms and Conditions
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 lease to Customer its proprietary breast pumping solution and software listed on the Purchase Order (the “Equipment”), (ii) sell to Customer certain ancillary furniture to be used with the Equipment as listed on the Purchase Order (the “Furniture”) and (iii) sell to Customer those certain consumable products identified at the category level on the Purchase Order manufactured by MilkMate (“Disposable Kits”) directly from MilkMate for use with the Equipment.
Rental of Equipment. MilkMate agrees to provide the Equipment for Customer’s use during the Term subject to the Terms and Conditions of this Agreement. The lease period for the Equipment shall begin on the installation date of the Equipment (“Installation Date”) at Customer’s location set forth on the Purchase Order (the “Location”) and continue for the period set forth on the Purchase Order (the “Rental Term”). The Equipment is being provided solely for use in connection with the Disposable Kits. The parties agree that the Equipment provided is intended to meet the anticipated needs of Customer in serving its employees or licensees (“Authorized Users”) at the Location. Customer shall notify MilkMate in writing of any issues impacting the functionality of the Equipment.
Installation and Re-location of Equipment. Customer shall pay MilkMate the non -refundable Equipment installation and set-up fees set forth on the Purchase Order for each piece of Equipment installed. MilkMate shall install the Equipment at the Location(s) set forth on the Purchase Order. If Customer requires relocation of the Equipment, Customer shall first contact MilkMate in writing so that MilkMate can safely prepare the Equipment for relocation. Customer shall pay MilkMate the non-refundable preparation and relocation fees as set forth on the Purchase Order.
Rental, Installation and Relocation Fees. As rent for the leased Equipment, Customer shall pay to MilkMate the rental and installation fees outlined on the Purchase Order (collectively, the “Rental Fees”). All Rental 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 Installation Date 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. All relocation fees due and payable to MilkMate under this Agreement shall be invoiced to Customer in accordance with the Purchase Order and payment shall be due within thirty (30) days after Customer’s receipt of each invoice.
Furniture. MilkMate agrees to sell to Customer the Furniture listed on the Purchase Order pursuant to the terms of the Purchase Order. Other than shipping costs at F.O.B. origin, which will be borne by Customer, MilkMate will provide the Furniture in accordance with the charge schedule set forth in the Purchase Order and the Agreement. All sales of Furniture are “as-is”, final and non-refundable. All fees due and payable to MilkMate for the Furniture shall be invoiced to Customer on a basis outlined on the Purchase Order 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.
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 hereunder and not paid when due shall bear monthly interest after the due date at one and one-half percent (1.5%).
Term. The term (the “Term”) of this Agreement shall commence as of the Effective Date and shall continue for three (3) years (the “Initial Term”), and thereafter, automatically renew for one (1) year terms (each, a “Renewal Term”), unless earlier terminated (a) upon ninety (90)business days’ prior written notice by either party to the other party; (b) 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; (c) by mutual agreement of the parties; or (d) immediately upon termination of the Rental Term. Upon termination of this Agreement, Customer shall promptly contact MilkMate who will retrieve the Equipment at the Location. Customer shall be responsible for all costs associated with removal of the Equipment and Disposable Kits and shipping or other transportation costs necessary for the return of the Equipment and Disposable Kits to MilkMate. 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 Rental 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.
Use of Equipment and Disposable Kit Provision. MilkMate hereby permits Customer to utilize the Equipment described in the Purchase Order, as currently (or to be) configured and installed in Customer’s Location designated in the Agreement. In addition, MilkMate hereby agrees to provide to Customer the Disposable Kits described in the Purchase Order. Other than shipping costs at F.O.B. origin, which will be borne by Customer, MilkMate will provide the Disposable Kits in accordance with the charge schedule set forth in the Purchase Order and the Agreement. The parties agree and acknowledge that the Use of the Equipment and Disposable Kits shall be for the expressed purpose of Customer’s Authorized Users at the Location. Customer shall have no obligation to lease or purchase such Equipment or Disposable Kits from MilkMate following the termination of this Agreement.
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.
Disposable Kit Replenishment. MilkMate shall use commercially reasonable efforts to restock Disposable Kits during the Rental Term subject to terms of this Agreement. In an 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 Rental Period (the “MilkMate Portal”) to ensure proper inventory tracking. Customer shall provide wireless internet connectivity at no charge to MilkMate through which Customer or Authorized User shall communicate with the MilkMate Portal. Customer shall ensure that this connection is available to avoid any inventory availability issues.
Title. Ownership of and title to the Equipment, including any hardware or software components and intellectual property, shall remain with MilkMate at all times. Customer shall have no right, title or interest in the Equipment, including its hardware and software components or intellectual property, except as to the use thereof and the right to maintain possession of the Equipment for the Term as long as Customer is not in default under this Agreement. MilkMate and its licensors own and retain all title and ownership of all intellectual property rights in the Equipment, all software or hardware incorporated therein, all documentation and related materials that are acquired, produced or shipped by MilkMate or its designees under this Agreement, and all modifications and derivative works thereto that are made by Customer and/or Customer Indemnitee’s (as hereinafter defined) or any third party. Customer agrees to assign and hereby assigns any and all such modifications and derivative works to MilkMate, 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 Equipment to fulfill Customer’s obligation under this Agreement.
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. Furthermore, Customer and Authorized Users shall provide reasonable security for the Equipment and Disposable Kits during the Term. Customer will be responsible for any damage or loss to the Equipment or Disposable Kits (with the exception of ordinary wear and tear). Unreasonable damage beyond normal wear and tear, including accidental, malicious and deliberate damage will be billed at appropriate cost warranted to repair or replace the damaged Equipment. 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. Customer shall not deface the Equipment in any way, including but not limited to, the removal of any branding.
Customer shall not (i) use, operate or locate the Equipment in any manner or area so as to cause it to be excluded from coverage by any insurance required under the Agreement;
- abandon the Equipment or, without prior written notice to MilkMate, take the Equipment out of use; (iii) alter the Equipment; (iv) without the prior written consent of MilkMate, affix or install any accessory, equipment or device on any item of Equipment if such accessory, equipment or device (x) is not readily removable, or (y) will impair the value or the originally intended function or use of such Equipment; or (v) without the prior written consent of MilkMate, allow the Equipment or any item of it to be affixed to realty in such a manner as to cause the Equipment or such item to become a fixture. All additions, repairs, parts, accessories, equipment and devices attached or affixed to any item of Equipment which are not readily removable shall become the property of MilkMate and part of the Equipment for all purposes hereof, except that MilkMate shall have absolutely no obligation with respect to such items. Customer shall not grant or permit any person or business entity to assert a security or other interest in the Equipment. At all times during the Rental Term, Customer shall ensure that the Equipment is identified as being owned by MilkMate.
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.
Training. Training for the Equipment may be provided by MilkMate or its designee (as applicable) at no additional charge. Any training and in-servicing content, in any form and duration will be at the discretion of MilkMate.
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 acts or omissions; (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 acts or omissions including, but not limited to, gross negligence and was directly caused by the Equipment or Disposable Kits and that 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; and (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, 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 EQUIPMENT AND/OR DISPOSABLE KITS, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT CUSTOMER PAID TO UTILIZE THE EQUIPMENT AND/OR DISPOSABLE KITS, OR (B) $15,000. 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, THE EQUIPMENT AND/OR DISPOSABLE KITS. THESE EXCLUSIONS APPLY TO ANY AND ALL CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, THROUGH USE OF THE EQUIPMENT AND/OR DISPOSABLE KITS, 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 Rental 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 Portal and/or Disposable
Kits or other items not approved or specified by MilkMate are used in the Equipment at any time.
Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, MILKMATE PROVIDES THE EQUIPMENT AND DISPOSABLE KITS “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 EQUIPMENT AND DISPOSABLE KITS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MILKMATE HEREBY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE EQUIPMENT AND DISPOSABLE KITS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES THAT THE EQUIPMENT AND DISPOSABLE KITS ARE 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 EQUIPMENT AND DISPOSABLE KITS WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET CUSTOMER’S REQUIREMENTS. MILKMATE DOES NOT WARRANT THAT THE EQUIPMENT OR DISPOSABLE KITS WILL OPERATE ERROR-FREE.
Insurance. Each party shall maintain insurance against loss, theft, damage or destruction of the Equipment and the Disposable Kits in an amount not less than the full replacement value of the Equipment and the Disposable Kits. Each party shall also provide and maintain comprehensive general all-risk liability insurance, including, but not limited to, product liability coverage against any and all loss or liability for damages either to persons or property or otherwise, which might result from or happen in connection with the condition, use or operation of the Equipment and the Disposable Kits. Each party shall provide the other party, upon request, with its certificate of insurance. The coverage shall remain in place throughout the Term, and for a period of three (3) years thereafter.
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, 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
- 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;
- 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 of a new unit.
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”.