Terms and Conditions for Online Sales by Retailers to Consumers
- THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH MILKIFY, INC., OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
WE RECOMMEND THAT YOU CONSULT A HEALTHCARE SPECIALIST PRIOR TO PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM MILKIFY, INC.
These terms and conditions (these "Terms") apply to the purchase and sale of our breast milk freeze-drying services (the “Services”) through www.milkify.me (the "Site"). These Terms are subject to change by Milkify, Inc. (referred to as “Milkify”, "us", "we", or "our" as the context may require) without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the "Last Updated Date" referenced on the Site. You should review these Terms before purchasing any product or services that are available through this Site. Your continued use of this Site after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.
- Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us, or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
Prices and Payment Terms.
- All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and your order confirmation email. We strive to display accurate price information, however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
- We may offer, from time to time, promotions on the Site that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
- Terms of payment are within our sole discretion and payment must be received by us before we accept an order. We accept all major US credit card brands and Paypal for all purchases. You represent and warrant that (i) the credit card or other payment information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card or other payment for the purchase, (iii) charges incurred by you will be honored by your credit card company, bank, or other payment services provider, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.
Shipments; Delivery; Title and Risk of Loss.
- We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.
- Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
Quality Assurance. We maintain stringent quality assurance protocols to ensure the safety and quality of our Services. In addition to the standard safety and quality measures we regularly employ, a summary of which may be found at our Site, milkify.me/safety-and-quality, to ensure the highest levels of safety and quality, we will not process any breast milk that fails to meet the criteria for safe processing as determined by us in accordance with our processing standards (the “Processing Standards”). Our Processing Standards include, but are not limited to, the following criteria determined in our sole discretion:
- Breast milk must be stored in FDA approved lactation bags, such as, but not limited to, Avent, Ameda, Baby Lemon, Bumblebee, Dr. Browns, Eccomom, Evenflo, GoGo Pure, Idaho Jones, Kiinde, Lansinoh, Medela, Milkies, Mommy’s Precious, Motif, Nanobebe, Nuk, Spectra, Papablic, Parent's Choice, TDWOW, Tommee Tippee, Unimom, Up&Up, Willow. We cannot accept breast milk stored in Ziploc, glass jars or bottles, or silicone bags;
- The lactation bags must have no visible rips, tears, leaks, perforations, or other visible defects;
- The lactation bags must be clean and free of debris;
- Breast milk must be frozen at or below a temperature of zero degrees Celsius (0˚C) when received by us.
If any of your breast milk fails to meet our Processing Standards, or cannot be freeze-dried for any other reason as determined by us in good faith, we will promptly notify you and will immediately discard any unprocessed breast milk in compliance with applicable laws, rules, and regulations.
Customer Representations and Warranties. You represent and warrant that:
- You are the age of majority in your jurisdiction, have the power to enter into binding contracts, and are not barred from so doing;
- You will only use our Services for personal use, to provide breast milk to your own child, including surrogated or adopted children;
- You will follow current CDC guidance for the collection and safe handling of breast milk, as described on our Site at www.milkify.me/breast-milk-handling-safety, that you collect, freeze, and ship for processing through our Services;
- You clean and sanitize your breast pump, or any other breast milk collection device you use, and any attachments and supplies regularly in accordance with CDC guidance;
- You will not ship breast milk that has been previously thawed for processing through our Services;
- You will read all labels, warnings, and directions provided with any products or services received from us before using our Services or allowing any child to consume breast milk processed through our Services;
- You will follow our instructions for handling, packing, and shipping of breast milk for processing through our Services provided to you in our shipping kit and also available on our Site, milkify.me/shipping-prep;
- You will not use our Services for commercial purposes of any kind, including without limitation, acting as an intermediary to provide our Services to third parties;
- You will not use our Services in any way to exploit or harm, or attempt to exploit or harm minors;
- You will not use our Services in a way that violates any applicable laws, rules, or regulations;
- You will not otherwise interfere or attempt to interfere with the proper working of our Site, products, or services.
Further, you agree that you, and not Milkify, are solely responsible for the proper and safe (i) washing of your breast pump, or other breast milk collection device, and applicable attachments or supplies and (ii) packaging and sealing your breast milk. You are solely responsible for following CDC guidance for safe breast milk expression and handling, including that frozen breast milk, once thawed, is used immediately or discarded, but never refrozen. YOU ACCEPT ALL RISK OF LOSS IN THE EVENT YOU FAIL TO FOLLOW THESE TERMS OF SERVICE, INCLUDING BUT NOT LIMITED TO, FAILING TO PROPERLY CLEAN AND SANITIZE YOUR BREAST PUMP, OR OTHER BREAST MILK COLLECTION DEVICE, AND ATTACHMENTS OR SUPPLIES, OR FAILING TO PROPERLY HANDLE, PACKAGE AND SHIP BREAST MILK TO MILKIFY.
- Assumption of Risk. Delivering on our promise to provide you with a safe product is our top priority. However, we cannot guarantee the safety of the product to the extent that a risk arises from the breast milk itself or the circumstances under which the breast milk was expressed, which are beyond our control. As such, to the extent permitted by law, YOU AGREE THAT YOU ARE ASSUMING THE RISK OF ALLOWING YOUR CHILD TO CONSUME BREAST MILK PROCESSED THROUGH OUR SERVICES.
- Not For Use by Minors. Our Site, products, and services are not intended for access and use by individuals under the age of eighteen (18) years old. If you are not at least eighteen (18) years old, you are prohibited from access and use of our products and services.
Cancellations, Returns and Refunds.
- You may cancel your order with us at any time prior to when we ship the insulated shipper for your order to you for a refund of your purchase price, less the payment processing fees for your order. You are responsible for the payment processing fees.
- After the insulated shipper has been shipped to you, you may cancel your order and return the insulated shipper, in its original condition, to us within thirty (30) days of shipment with valid proof of purchase for a refund of your purchase price, less the payment processing fees and shipping and handling fees for your order. If the insulated shipper is not in its original condition when received by us, we will refund your purchase price, less the cost of the insulated shipper, payment processing fees, and shipping and handling fees for your order. You are responsible for the payment processing fees, shipping and handling fees, and the cost of the insulated shipper, if not returned in its original condition.
To return products and request a refund, you may visit your account page and follow the instructions for returns and refunds, or call (832) 534-0465 or email us at firstname.lastname@example.org to arrange the return and refund.
You are responsible for all payment processing fees, shipping and handling charges, and the cost of the insulated shipper, if not returned in its original condition, for returned items. You bear the risk of loss during shipment.
Refunds are processed within approximately three business days of our receipt of your merchandise. Your refund will be credited back to the same payment method used to make the original purchase on the Site.
- Milkify 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). We observe strict quality control measures in connection with the handling of your breast milk, however, we cannot guarantee the safety of the product to the extent that a risk arises from the breast milk itself or the circumstances under which the milk was expressed, which are beyond our control. By ordering our Services, you agree to indemnify, defend, and hold Milkify, Inc., and its employees, directors, officers, subcontractors, service providers, and agents harmless against any and all claims, damages, or costs or expenses (including attorneys’ fees) that arise directly or indirectly from your use of our Services in breach or violation of these terms.
- Warranty Disclaimers. ALL PRODUCTS AND SERVICES OFFERED ON THIS SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
- Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU HAVE ORDERED THROUGH OUR SITE.
The limitation of liability set forth above shall: (i) only apply to the extent permitted by law and (ii) not apply to (A) liability resulting from our gross negligence or willful misconduct and (B) death or bodily injury resulting from our acts or omissions.
- Goods Not for Resale or Export. You represent and warrant that you are buying products or services from the Site for your own personal or household use only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within the US or to US military bases.
- Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Governing Law and Jurisdiction. This Site is operated from the US. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
Dispute Resolution and Binding Arbitration.
- YOU AND MILKIFY, INC. ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 16. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
- You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR MILKIFY, INC. WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
- Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 17 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
- No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Milkify,
- No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
- To You. We may provide any notice to you under these Terms by (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
- To Us. To give us notice under these Terms, you must contact us as follows: (i) by email to email@example.com; or (ii) by personal delivery, overnight courier, or registered or certified mail to Legal, Milkify, Inc., 2501 Central Parkway B-18, Houston, Texas 77092. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
- Severability. If any provision of these Terms is invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.