Milk by Mom LLC

Terms of service and customer agreement.

TERMS OF SERVICE AND CUSTOMER AGREEMENT TO USE MILK BY MOM LLC SERVICES, ALL CUSTOMERS MUST AGREE THAT THEY HAVE READ AND UNDERSTOOD THE MILK BY MOM LLC TERMS OF SERVICE AND HAVEWILLINGLY AGREED TO BE BOUND BY THEM.

BY THE ORDERING AND UTILIZATION OF MILK BY MOM SERVICES, THE CUSTOMER IS DEEMED TO HAVE READ AND UNDERSTOOD THE MILK BY MOM TERMS OF SERVICE AND THEREFORE HAS AGREED TO BE BOUND BY THEM. BY SO DOING, THE CUSTOMER ENTERS INTO A LEGALLY BINDING AGREEMENT WITH MILK BY MOM LLC EFFECTIVE FROM THE DATE OF THE CUSTOMER’S ORDER. CUSTOMER UNDERSTANDS AND ACCEPTS THAT BY AGREEMENT TO THESE TERMS OF SERVICE THEY ARE WAIVING VALUABLE LEGAL RIGHTS.

CUSTOMER RECITALS

A. Milk By Mom LLC, an Arizona limited liability company (“MBM”) offers the service of freeze-drying Customer’s human breast milk. MBM provides information on and the description of its services through MBM’s website and MBM’s other social media platforms.

B. Customer desires to use the expertise and services of MBM pursuant to the Terms of Service and the terms of this Agreement. Customer understands that by their Agreement to the Terms of Service they are waiving valuable legal rights.

ACCORDINGLY, in consideration of the foregoing premises and of the mutual covenants hereinafter stated, the Customer and Milk by Mom, LLC do hereby AGREE as follows:

1. Terms and Conditions. MBM provides access to its website and Services subject to the terms and conditions contained herein. Any reference in this Agreement to the terms and conditions will be defined as “Terms of Service.” MBM may update its Terms of Service from time to time without notice to Customer. Any updates to MBM’s Terms of Service are binding on Customer without Customer’s consent.

a. Customer acknowledges by browsing the public areas of MBM’s website or logging in to access MBM’s Services, that Customer has read, understood, and agreed to be legally bound by this Agreement and the Terms of Service contained herein including MBM’s Privacy Policy.

b. These terms and conditions constitute a binding legal contract between Customer and MBM. If the Customer does not agree to these terms and conditions, Customer will not use the MBM website or any of the services offered by MBM unless and until Customer agrees to be bound by the terms and conditions contained herein.

c. By any use of MBM services Customer’s agreement with the Terms of Service is automatically presumed and thus is legally binding.

2. Scope of Services. This Agreement governs the following services (together or separately referred to herein as the “Services”):

a. Customer’s use of MBM’s webpage located at www.MilkbyMom.com (the “Site” or “Website”).

b. Customer’s use of MBM’s physical breast milk drop-off service.

c. Customer’s use of any “free trial” promotions offered by MBM.

d. All Customer subscriptions to, or orders of MBM breast milk freeze drying services.

3. Communications. By creating an online account on the MBM Website, Customer agrees to subscribe to newsletters, marketing, promotional materials, and other information MBM may send Customer. Customer may opt out of receiving any or all communications from MBM by following the unsubscribe link or emailing info@MilkByMom.com.

4. Purchases. Customers wishing to purchase any MBM service (“Purchase”) will be asked to supply relevant information, including Customer’s full name, address, state, zip code, telephone number, e-mail, and a valid payment method. To make a purchase the Customer must provide a credit or debit card number, expiration date, CVC code, billing address, and shipping information.

By submitting such payment information, the Customer automatically authorizes MBM to charge all order fees incurred to the indicated payment instrument through the Customer’s online MBM account. The Customer is responsible for informing MBM of any change in the payment method to avoid any delay in Service. If automatic billing fails to occur for any reason, MBM will issue an electronic invoice asking the Customer to pay by bank check or other method, within a certain deadline date, sending MBM the full payment for the billing period as indicated on the invoice. Additionally, the following terms and conditions will apply to any Purchase by Customer:

a. Customer represents and warrants that: (i) Customer has the legal right to use any credit or debit card or other payment method in connection with any Purchase; and (ii) the information Customer supplies to MBM is true, correct, and complete.

b. MBM may employ third-party services to facilitate payment and the completion of Purchases. By submitting the Customer’s information, the Customer grants MBM the right to provide the information to these third parties subject to the MBM Privacy Policy.

c. MBM reserves the right to refuse or cancel Customer’s order or subscription at any time for reasons including, but not limited to, service availability, errors in the description or price of the service, error in Customer’s order or other reasons in our sole discretion.

d. MBM reserves the right to refuse or cancel a Customer’s order if fraud or an unauthorized or illegal transaction is suspected or detected.

e. MBM reserves the right to refuse service, terminate accounts, remove or edit website content, or cancel orders in MBM’s sole discretion.

5. Quality Assurance. MBM maintains stringent quality assurance protocols to ensure the safety and quality of the Service. A summary of the standard safety and quality measures employed by MBM can be found on the Website.

6. Processing Standard. MBM will not process any breast milk that fails to meet the criteria for safe processing as determined by MBM (the “Processing Standard”) to ensure the highest levels of quality and safety in the milk. The Processing Standard includes, but is not limited to, the following criteria determined by MBM, in MBM’s sole and absolute discretion:

a. The frozen breast milk received is stored in approved milk storage bags.

b. The milk storage bags have no visible rips, tears or leaks and are clean.

c. The breast milk, at time of receipt by MBM, has remained frozen at a temperature of zero degrees Celsius (0°C) or below.

If any of the Customer’s breast milk fails to meet the Processing Standard or cannot be freeze-dried for any other reason as determined by MBM’s good faith assessment in MBM’s sole and absolute discretion, MBM will promptly notify the Customer. In such circumstances, MBM will immediately discard any unprocessed breast milk in compliance with all applicable laws, rules, and regulations.

7. Content. Content found on the Website or through this Service is the property of MBM. Customer may not distribute, modify, transmit, use, download, repost, copy, or otherwise use MBM content, whether in whole or in part for commercial purposes or for personal gain, without express advance written permission from MBM.

8. Prohibited Uses. By ordering or subscribing to the MBM Service, Customer represents, warrants and agrees that:

a. Customer will not use the MBM Service in any way that violates any applicable local, state, federal, or international law or regulation.

b. Customer will not use the MBM Service for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way.

c. Customer will use the MBM Service for personal use only, that is, to provide Customer’s own breast milk to Customer’s own child (which includes surrogated or adopted children).

d. Customer will not use the MBM Service for any illegal selling, swapping or donating of Customer’s powdered breast milk.

e. Customer is of the age of majority in Customer’s jurisdiction, has the power to enter into binding contracts, and is not otherwise barred from doing so.

f. Customer will not use the MBM Service to engage in any commercial activities, including, without limitation, acting as an intermediary to provide the MBM Service to third parties.

g. Customer will not otherwise attempt to interfere with the proper functioning of MBM Service.

If MBM has reason to believe that a Customer has engaged in a prohibited use or otherwise violated these terms, MBM reserves the right to notify the proper authorities and any affected parties, as applicable, of the actual or potential breach.

9. Analytics. MBM may use third-party service providers to monitor and analyze the use of MBM Services. This includes Google Analytics which is a web analytics service offered by Google that tracks and reports website traffic. Google uses the data collected to track and monitor the use of the MBM Service. This data is shared with other Google services. Google may use the collected data to contextualize and personalize the ads of its own advertising network. For more information on the privacy practices of Google, please visit the Google Privacy Terms web page: https://policies.google.com/privacy?hl=en. MBM also encourages Customer to review Google’s policy for safeguarding Customer data: https://support.google.com/analytics/answer/6004245.

10. Minors Prohibited from Use of the Service. The MBM Service is intended only for access and use by individuals at least eighteen (18) years old. By accessing or using any MBM Services, the Customer warrants and represents that they are at least eighteen (18) years of age and have the full authority, right, and capacity to enter into this Agreement and to abide by all of the Terms and Conditions of use. If a potential Customer is not at least eighteen (18) years old, any such person is prohibited from accessing and using MBM Services.

11. Intellectual Property. The MBM Service, and all of its elements and functionality are and will remain the exclusive property of MBM. The MBM Service is protected by copyright, trademark, and other laws of the United States and the State of Arizona. Our trademarks and trade dress, including packaging design and logos, may not be used in connection with any product or service without the prior written consent of MBM.

12. Customer Feedback. Customers may email MBM directly at info@milkbymom.com with information, suggestions for improvements, ideas, problems, complaints, feedback concerning errors, and any other matter related to MBM (“Feedback”). By doing so Customer acknowledges and agrees that:

a. Customer will not retain, acquire, or assert any intellectual property right or other right, title, or interest in or to any Feedback freely provided to MBM.

b. MBM may already have development or operational ideas similar to the Feedback.

c. Feedback does not contain confidential information or proprietary information from Customer or any third party.

d. MBM is under no obligation of confidentiality with respect to the Feedback.

In the event the agreed automatic transfer of the ownership to the Feedback to MBM is not possible due to applicable mandatory laws, Customer grants MBM and its affiliates an exclusive, transferable, irrevocable license to use the Feedback in any manner and for any purpose. Such license shall be free-of-charge, sub-licensable, unlimited and with perpetual right to use, including copy, modify, create derivative works, publish, distribute, and commercialize.

13. Links to Other Websites. MBM’s Service may contain links to third-party websites that are not owned, controlled, or affiliated with MBM. MBM has no control over and assumes no responsibility for the content, privacy policies, or practices of any third-party web sites or services. MBM does not warrant the offerings of any of these entities/individuals or their websites. Customer acknowledges and agrees that MBM will not be responsible or liable, directly or indirectly, for any damage or loss caused or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such third-party web site or services. MBM strongly advises Customer to read the terms of service and privacy policies of any third-party web site or services that Customer visits.

14. Customer Responsibilities. The Customer will be responsible for the following with respect to MBM’s Services:

a. The Customer, not MBM, is solely responsible for (i) the proper and safe washing of breast pump supplies and (ii) correctly and sanitarily packaging, sealing, and freezing the Customer’s breast milk. The Customer is solely responsible for following safe breast milk expression and handling guidelines as set forth by the CDC – including the requirement that frozen breast milk, once thawed, must never be re-frozen, but should immediately be used or discarded.

b. MBM will not be responsible or liable for any problems or damages arising from delays or other incidents related to the shipping of the Customer’s frozen breast milk to MBM.

c. The Customer accepts all risk of loss for any acts of commission or omission or the failure by the Customer to follow or observe any of the Terms of Service, including, but not limited to, the Customer’s failure to properly package and ship their breast milk to MBM.

d. Other than as expressly set forth in these terms, the Customer agrees to use the MBM Service at the Customer’s own risk.

e. MBM has made careful and diligent efforts to describe its services, products, fees and other information as accurately and correctly as possible. Should information about MBM services or fees appearing on this website contain technical inaccuracies or typographical or printing errors or omissions, MBM is not responsible for any such inaccuracies.

15. Customer Review of Product Packaging. MBM recommends that Customer consult a healthcare specialist prior to ordering the freeze dry breast milk Service. Actual product packaging and materials may contain additional and different information than is shown on the MBM website (www.milkbymom.com). The Customer agrees to always read labels, warnings, and directions provided with any MBM packaging materials or processed breast milk powder received from MBM before using or allowing any child under the Customer’s care to consume the product.

16. Express Assumption of Risk. Customer is aware that there may be risks involved in using MBM’s services, including consumption of reconstituted freeze-dried breast milk. While it is well known that breast milk is the best and most nutritious food for infants, there is a minimal risk that a mother’s own breast milk may contain certain environmental pollutants or other harmful elements related to the mother’s own health or nutritional status. Moreover, while MBM conducts its freeze-drying processing of Customer’s frozen breast milk under strict sanitary conditions, there may be a minimal possibility of bacterial contamination of the resulting breast milk powder. Customer is also aware of and expressly assumes the risk that Customer’s own incorrect or unsanitary use of the MBM breast milk powder in reconstitution and feeding of their child may cause illness or injury to the child. Customer is aware that any of these above-mentioned risks or others unknown could result in serious illness, injury or death to an infant fed with reconstituted breast milk. Customer knowingly and willingly assumes full responsibility for the risks that Customer is exposing herself and her child to and accepts full responsibility for any injury or death that may result from using any MBM Service or product, including freeze dried breast milk.

17. Release. In consideration of the above mentioned risks and hazards and in consideration of the fact that Customer willingly and voluntarily seeks, orders, and utilizes the Services and products offered by MBM, Customer hereby releases MBM, their principals, agents, employees, and volunteers from any and all liability, claims, demands, actions or rights of action, which are related to, arise out of, or are in any way connected with Customer Customer’s purchase and use of MBM’s Services and products, including those allegedly attributed to the negligent acts or omissions of the above mentioned parties, (i.e. Customer or Milk By Mom LLC. This agreement shall be binding upon Customer, Customer’s successors, representatives, heirs, executors, assigns, or transferees. If any portion of this agreement is held invalid, Customer agrees that the remainder of the agreement shall remain in full legal force and effect.

18. Indemnification. Customer recognizes that there is risk involved in the types of products and Services offered by MBM. Therefore, the Customer accepts financial responsibility for any injury that Customer may suffer from using MBM Services or products. Should MBM be required to incur attorney’s fees and costs to enforce this agreement, Customer agrees to reimburse MBM for such fees and costs. Customer further agrees to indemnify and hold harmless MBM, its principals, agents, employees, and volunteers from liability for injury or death of any person(s) that may result from Customer’s use of MBM’s Services and products. Customer has read and understood the foregoing assumption of risk, and release of liability and understands that by Customer’s Agreement to the MBM Terms of Service, Customer obligates themselves Customer to indemnify MBM and the parties named for any liability for injury or death of any person caused by Customer’s use of MBM’s Services and products. Customer

19. Fee Changes. MBM in its sole and absolute discretion and at any time, may modify its Service fees. Any Service fee change will become effective at the end of the then-current Billing Cycle. MBM will provide reasonable prior notice of any Service fee changes to allow Customer an opportunity to terminate Customer’s Subscription before such change becomes effective. Customer’s continued use of the Service after the effective fee change date constitutes agreement to pay the modified Subscription fee amount.

20. Refunds. MBM has a complete satisfaction guarantee. MBM stands behind its Services 100%, and Customer may request a refund for any reason. Requests for refunds will be processed promptly. To cancel a Customer subscription or request a refund, please visit the Customer’s online account page or contact MBM directly via email at info@milkbymom.com.

21. Termination. MBM may terminate or suspend a Customer’s account and refuse access to Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of Terms of Service. Any Customer wishing to terminate an account may simply discontinue using MBM Services. In the event of a termination, all provisions of the Terms of Service which by their nature should survive the termination of any account shall survive such termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

22. Compliance with Laws and Regulations. All services provided by MBM shall be conducted in full compliance with all applicable laws, rules, and regulations adopted or required by any governmental agency or regulatory body, whether federal, state, or local. If required by the laws of Arizona or the state where MBM or MBM’s employees provide any services under this Agreement, MBM shall maintain in full force and effect a policy of worker’s compensation insurance covering MBM’s employees during the term of this Agreement. Further, MBM complies with all applicable laws, rules and regulations concerning the handling of human milk, including safety guidelines set forth by the Human Milk Banking Association of North America (HMBANA) and packaging guidelines set forth by the Food and Drug Administration (FDA). MBM observes strict quality control measures in the handling of Customers’ breast milk. Nevertheless, MBM cannot guarantee the safety of the product provided to the Customer if a safety risk arises from the circumstances under which the milk was expressed, which are in the sole control of the Customer.

23. Entire Agreement. This Agreement constitutes the entire agreement of the parties regarding the subject matter hereof, and replaces and supersedes all other agreements or understandings, whether written or oral. MBM may amend the terms of this Agreement at any time by posting the amended terms on the MBM website. It is the responsibility of the Customer to review these Terms periodically. The Customer’s continued use of the Website, their online account, and the Services following the posting of any revised Terms constitutes acceptance of and agreement to the changes. Customer should check the MBM Website frequently to be aware of any changes. Any Customer who does not agree to any new Terms automatically becomes unauthorized to use the Service.

24. Binding Agreement. This Agreement shall be binding upon the parties and their heirs, legal representatives, successors, and assigns.

25. Attorneys’ Fees and Legal Expenses. If any proceeding or action shall be brought to recover any amount under this Agreement, or for or on account of any breach of, or to enforce or interpret any of the terms, covenants, or conditions of this Agreement, the prevailing party shall be entitled to recover from the other party, as part of the prevailing party’s costs, reasonable attorneys’ fees, the amount of which shall be fixed by the court, and shall be made a part of any award or judgment rendered.

26. Severability. If any provision of this Agreement, or the application thereof to any particular party or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to any other particular party or circumstance, shall not be affected thereby and each remaining provision of this Agreement, or the application of such provision to any other particular party or circumstance, shall be valid and enforceable to the full extent permitted by law unless enforcement would frustrate the intent or purposes of the parties.

27. Waiver of Trial by Jury. Any suit, action or proceeding, whether claim or counterclaim, brought or instituted by any party on or with respect to this Agreement or any event, transaction or occurrence arising out of or in any way connected or dealing with the parties with respect to this Agreement shall be tried only by a court and not by a jury. THE PARTIES WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH PARTY AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BE JURY WOULD OTHERWISE ACCRUE. ANY PARTY MAY FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THE WAIVERS GRANTED BY A PARTY HEREIN.

28. Venue. The sole place of venue for any proceeding at law or in equity or under the provisions for arbitration shall be Maricopa County, Arizona, and the parties hereto do hereby waive any right to object to the venue.

29. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona (without regard to any conflict of laws principles) and the applicable laws of the United States.

30. Acknowledgment. Customer acknowledges by using the MBM Service that Customer has read these terms and conditions and has agreed to be bound by this Agreement.