PUMPSPOTTING CUSTOMER TERMS OF SERVICE

Last modified August 11, 2021

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

Our Customer Terms of Service is a contract that governs our customers' use of the pumpspotting services.

Your Order Form is the pumpspotting-approved form created following your purchase of one of our products or services through our online payment process or via your account executive. It contains all of the details about your purchase, including your subscription term, products purchased and your fees.

We’ve aimed to keep these documents as readable as possible, but in some cases for legal reasons, some of the language is necessarily “legalese.” By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms. 

We update these terms from time to time. If you have an active pumpspotting subscription, we will let you know by email (if you subscribe to receive email updates).

Master Terms

These Master Terms of Service ("Terms") sets forth the terms and conditions under which pumpspotting will provide certain services for the customer (“Customer”) as may from time to time be mutually agreed upon by the parties. These Terms, any Customer Subscription Order Form (“Order Form”) and any exhibits attached comprise these terms and conditions. The parties hereby agree as follows:

1. Scope of services

1.1 Services. pumpspotting agrees to provide the digital lactation program as further set forth in the Customer’s Subscription Order Form (the "Services").

1.2 Portal Access. Where pumpspotting provides Customer’s employees, shoppers, students or visitors (“Users”) access to its pumpspotting portal (“Portal”) as part of the Services, pumpspotting grants to Customer’s Users a non-exclusive, worldwide, non-transferable (except as otherwise permitted under Section 10.6) right to use the Portal during the term set forth in these Terms, subject to the restrictions set forth in these Terms. Portal access is granted via a business access code. Portal access may be subject to additional terms and conditions (“Portal Terms”).

1.3 Customer Responsibilities. Customer will:

(a) cooperate with pumpspotting’s reasonable requests related to the Services, including the provision of contact information for eligible Users;

(b) be reasonably available by phone or email as may be required to complete the Services;

(c) provide information to its Users related to the Services; and

(d) provide pumpspotting with all materials needed for pumpspotting to perform the Services or provide the Deliverables (collectively, “Customer Materials”).

2. Customer DATA

Customer grants to pumpspotting a nonexclusive, perpetual, worldwide, non-transferrable (except as set forth in Section 10.6) right to use or disclose any data provided by Customer to pumpspotting (collectively, “Customer Data”):

(a) to provide the Services;

(b) to aggregate the Customer Data with other end user data;

(c) to provide analytics and reports based on Customer Data, alone or in aggregate;

(d) for pumpspotting’s internal business purposes, such as Portal improvement; and

(e) as otherwise permitted by applicable law.

3. Price and payment

3.1 Pricing and Payment. Customer will pay pumpspotting the applicable fees described in the Order Form for the Services, including any one-time onboarding fees, in accordance with the terms therein (the “Fees”). pumpspotting reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current renewal term, upon thirty (30) days prior notice to Customer. If Customer believes that pumpspotting has billed Customer incorrectly, Customer must contact pumpspotting no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to pumpspotting’s Director of Sales.

3.2 Invoices. pumpspotting Invoices are due and payable in full thirty (30) days after issuance. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on pumpspotting’s net income.

4. Warranties

4.1 General Warranties. Each of pumpspotting and Customer represents and warrants that it has the power, authority and right to enter into and perform these Terms.

Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 4, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS-IS.” PUMPSPOTTING EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, AVAILABILITY, ACCURACY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

5. Confidentiality

5.1 Confidential Information. From time to time during the Terms, either party (the "Disclosing Party") may disclose or make available to the other party (the "Receiving Party") certain non-public, proprietary, or otherwise confidential information of Disclosing Party that is designated as confidential or proprietary or which reasonably ought to be considered as confidential from its nature or from the circumstances surrounding its disclosure ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 5; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.

5.2 Nondisclosure. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms; and (c) not disclose any such Confidential Information to any person or entity, except to its employees, subcontractors, and agents who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.

5.3 Survival. With regard to Confidential Information, the obligations in this Section shall survive termination of these Terms.

6. Ownership

6.1 pumpspotting Materials. All source code, object code, tests, scripts, graphics, and other deliverables created by pumpspotting pursuant to these Terms, including all underlying intellectual property rights and the like (“Deliverables”), and the Portal shall be and remain the exclusive property of pumpspotting. pumpspotting grants to Customer nonexclusive, worldwide, nontransferable (except as provided in Section 10.6) license to use the Deliverables during the Service Term of these Terms, subject to the restrictions set forth in these Terms. Customer’s rights with respect to the Portal are set forth in Section 1.2.

6.2 Customer Materials. As between the parties, Customer shall be deemed the owner of all Customer Materials and Customer Data. Customer grants to pumpspotting a limited, nonexclusive license to use the Customer Materials solely as necessary to provide the Deliverables and perform the Services under these Terms. pumpspotting’s rights with respect to Customer Data are set forth in Section 2.

6.3 Third Party Materials. “Third Party Materials” means any code, libraries, programs, software, open source software (being any open source, community or other free code or libraries of any type, including, without limitation, any code which is made generally available on the internet without charge), documentation or other intellectual property rights of any type which is not the sole property of pumpspotting or licensed without restriction to pumpspotting. If and to the extent that Third Party Materials are incorporated into any Deliverable, pumpspotting shall obtain for Customer a license to use the Third Party Materials, subject to such third party’s terms and conditions, if any, as provided to Customer in advance.

6.4 Expertise. Notwithstanding anything to the contrary herein, each party and its personnel shall be free to use and employ its and their general skills, know how, and expertise and to use, disclose, and employ any generalized ideas, concepts, know how, methods, techniques, or skills gained or learned during the performance of Services under these Terms, so long as it or they acquire and apply such information without any unauthorized use or disclosure of the other party’s Confidential Information.

7. Term and termination

7.1 Term. The Terms shall be effective as of the Effective Date on the Order Form and shall remain in effect until terminated by either party in accordance with this Section 7.

7.2 Termination by Either Party. Subject to earlier termination as provided below, these Terms are for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Service Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. These Terms may be terminated by either party if the other party:

7.2.1 commits a material breach of any of its obligations under these Terms and fails to correct such failure within thirty (30) days after receipt of written notice;

7.2.2 ceases conducting business in the normal course, admits its insolvency or makes an assignment for the benefit of creditors; or

7.2.3 becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization and such proceeding is not dismissed within ninety (90) days after it is commenced.

7.3 Effect of Termination. Upon termination of the Service Term, Customer shall pay pumpspotting for all Services completed by pumpspotting prior to the termination date and each party shall return to the other party any and all Confidential Information of such party then in its possession or control.

7.4 Survival of Terms. Upon termination of these Terms, the provisions of these Terms that would naturally survive the termination of these Terms, including but not limited to the provisions providing regarding payment of fees and expenses (that accrued prior to termination), intellectual property ownership, protection of Confidential Information, and limitations of liability shall continue and survive in full force and effect.

8. Dispute Resolution

8.1 Governing Law and Jurisdiction. These Terms shall be governed by and interpreted according to the laws of the State of Delaware (without regard to its conflict of law principles).

8.2 Injunctive Relief. pumpspotting and Customer agree that, in the event of any breach of Section 5 (Confidentiality), monetary damages may not be a sufficient remedy or protection for the aggrieved party and the aggrieved party may be entitled to injunction or other relief as deemed proper or necessary by a court of competent jurisdiction.

8.3 Limitations Period. Except with respect to a party’s breach of Section 5 or 6, no party may commence an action under these Terms more than two (2) years after the expiration of its Service Term, or, in the event of a breach, more than two (2) years after the occurrence of the breach.

9. Limitation of liability

Notwithstanding anything to the contrary in these Terms, (a) in no event shall either party be liable to the other party (or to any other person or entity) for any indirect, special, consequential, exemplary, punitive, or incidental damages arising out or related to these Terms or the Services, including, but not limited to, lost income or profits; and (b) in addition to the exclusions and limitations in the preceding clause, in no event shall pumpspotting’s aggregate liability arising out of or related to this Agreement or the Services exceed the fees paid to pumpspotting under these Terms during the twelve (12) month period preceding the event giving rise to the liability. The provisions of this section apply regardless of the form of action, damage, claim, liability, cost, expense or loss asserted, whether in contract, tort (including negligence) or otherwise but shall not apply to either party’s infringement or misappropriation of the other party’s intellectual property rights.

10. General terms and conditions

10.1 Marketing. pumpspotting may list Customer as a Customer of pumpspotting, including through the use of Customer name or logo, in its marketing materials, including its website.

10.2 Independent Contractor. pumpspotting is an independent contractor and nothing in these Terms shall be deemed to make pumpspotting an agent, employee or joint venturer of Customer.

10.3 Force Majeure. Neither party shall incur liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms, excluding payment obligations, where such failure is caused in whole or in part by events, occurrences or causes beyond the reasonable control of the party.

10.4 Notices. Any notice, request, approval, consent, authorization, or other communication required or permitted under these Terms (a) will be in writing, (b) will be considered to have been given if either (i) delivered and receipted by express courier service, charges prepaid, or (ii) sent by electronic mail, provided that there is evidence and confirmation of delivery and receipt, and (c) will be addressed to the parties at the addresses first set forth above or at such other addresses as the parties may designate in writing.

10.5 Amendment. No provision of these Terms may be modified except by a written document signed by a duly-authorized representative of each party.

10.6 Assignment. Customer may not assign or delegate any of its rights or obligations under these Terms without the prior written consent of pumpspotting, which consent may not be unreasonably withheld, except that either party may assign these Terms without the consent of the other party in conjunction with a sale of all or substantially all of its assets, a merger or similar transaction. Any assignment in violation of this Section shall be void and of no effect. pumpspotting may assign or delegate any of its rights or obligations under these Terms without the prior written consent of Customer, effective upon written notice to Customer.

10.7 Interpretation. Headings in these Terms are inserted only for convenience and are not to be used to define, limit or construe the scope of any term or provision of these Terms. Should any provision of these Terms require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of these Terms shall be more strictly construed against one party than against another. No provision of these Terms shall be construed to provide or create any third party beneficiary right or any other right of any kind in any third party.

10.8 Waiver. No provision of these Terms shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach of the other party, whether express or implied, shall not constitute a consent to, waiver of or excuse for any different or subsequent breach.

10.9 Binding Effect. These Terms shall be binding upon and inure to the benefit of pumpspotting and Customer and their respective legal representatives, successors and permitted assigns.

10.10 Severability. If any provision of these Terms shall be prohibited or rendered unenforceable by any applicable law, the provision shall be ineffective only to the extent and for the duration of the prohibition or unenforceability, without invalidating any of the remaining provisions.

10.11 Counterparts; Executable by Electronic Means. These Terms and any associated Order Form and attached exhibits may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same service agreement. Any signature of these Terms and any associated Order Form or exhibit through facsimile or other electronic means shall constitute execution of the Terms, Order Form and any exhibit by such party.

10.12 Entire Agreement. These Terms, associated Order Form/s, including all Exhibits, constitutes the entire agreement between pumpspotting and Customer with respect to the subject matter of these Terms and supersedes all earlier agreements and understandings, oral and written, between the parties. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in these Terms shall affect or be used to interpret, change or restrict the express terms and provisions of these Terms. The terms and conditions of any other instrument issued by Customer that are in addition to or inconsistent with these Terms shall be of no effect and shall not be binding on pumpspotting.