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TERMS OF SALE
Effective Date January 31, 2023
This Terms of Sale ("TOS") constitutes a legal contract between Willow Innovations, Inc. ("Willow," "we," "us" or "our") and you, an individual ("you”). This TOS governs your purchase of our pumps and pumping accessories (including, but not limited to, containers, flanges, and milk bags) as reflected in any electronic notice issued to you that confirms your purchase (each such notice, a "Confirmation”, and the specific items reflected as purchased in a Confirmation, the "Products"). 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.
BY ACCEPTING THIS TOS THROUGH THE REQUIRED PROCESS, OR USING OR OTHERWISE OBTAINING PRODUCTS, YOU ACKNOWLEDGE AND AGREE THAT: (1) YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS TOS AND OUR PRIVACY NOTICE THAT GOVERNS OUR COLLECTION, USE AND DISCLOSURE OF INFORMATION OBTAINED FROM YOU WHEN YOU PLACE ORDERS FOR PRODUCTS; (2) IF YOU DO NOT SO AGREE, THEN YOU MAY NOT PURCHASE, USE OR OTHERWISE OBTAIN ANY PRODUCTS; (3) DISPUTES ARISING BETWEEN YOU AND WILLOW IN CONNECTION WITH THIS TOS WILL BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION AND YOU AND WILLOW EACH WAIVE THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION; AND (4) YOU MAY NOT ORDER PRODUCTS IF YOU ARE UNDER 18 YEARS OF AGE OR OVER THAT AGE BUT OTHERWISE LACK THE LEGAL CAPACITY TO ENTER INTO A BINDING CONTRACT.
1. PRODUCT ORDERS.
a. Delivery. Willow will use commercially reasonable efforts to meet any delivery dates specified in any Confirmation, provided that any such delivery dates are estimates only and are subject to change. Willow will not be liable for its failure to meet estimated delivery dates.
b. Shipment. We will arrange for shipment of Products to you at the address set forth in any Confirmation. Please check the individual order pages for specific delivery options. We currently can only ship Products to locations within the United States, including US territories and APO/FPO addresses. We cannot ship to PO boxes. We are unable to reship packages that are returned to us by the carrier.
c. Title and Risk of Loss. Title and risk of loss to Products will pass to you immediately upon delivery of Products to the common carrier at our distribution center.
d. Order Acceptance.
i. Our Rights. Orders are an offer to buy and must be accepted by us. We may accept or reject orders in our sole discretion. Shipment of Products is the sole evidence of our accepting orders. We may cancel any order, regardless of whether the order has been confirmed in any Confirmation, in our sole discretion and without liability. If your payment method has already been charged for an order that we later cancel, then we will issue you a refund. We also may request to verify information from you that we deem to be relevant before we ship any Products.
ii. Your Rights to Returns and Refunds.
(1) All items that you buy from us, including bras, cases, etc. ("Other Items") which do not include Pumps and Pump Accessories (each as defined below) can be returned as follows. If you are not fully satisfied with any of the Other Items, then you can return the same for a replacement, or a refund of the purchase price and any sales tax paid, within thirty (30) days from the date the Confirmation is sent to you for the purchase, provided that the applicable Other Item: (i) was purchased from https://www.onewillow.com; (ii) is returned in its original packaging; (iii) is unused, unworn, and all tags are attached; and (iv) is returned in its original condition. To return any Other Item, you must visit https://www.onewillow.com/contact/ to start the return process and to obtain a return merchandise authorization ("RMA") number before shipping the same. No returns will be accepted without an RMA number.
(2) Willow pump devices ("Pumps"); all replaceable pump parts including but not limited to flanges, FlexTubes™, containers, milk bags, diaphragms, duckbills, chargers and sizing inserts ("Pump Accessories") may be returned as follows. If you are not fully satisfied with any Pumps, or Pump Accessories then you can return the same for a replacement, or a refund of the purchase price and sales tax paid, within sixty (60) days from the date the Confirmation is sent to you for the purchase, provided that the applicable Pump or Pump Accessories: (i) was purchased from https://www.onewillow.com; (ii) is returned in its original packaging; (iii) is unused and unopened (no seals broken); and (iv) is returned in its original condition. To return a Pump, or Pump Accessories, you must visit https://onewillow.com/contact/ to start the return process and to obtain a RMA number before shipping the same. No returns will be accepted without an RMA number.
2. PRICES AND PAYMENTS.
a. Prices. All prices will be presented to you during the order process and are subject to change without notice. The prices charged for Products will be the prices in effect at the time orders are placed and will be reflected in each Confirmation. Price increases will only apply to orders placed after such changes. Prices presented to you during the order process do not include taxes or charges for shipping and handling. All such amounts will be added to your total and will be reflected in each Confirmation.
b. Payments. The approved payment methods that we accept for orders will be presented to you during the order process. You represent and warrant that: (i) the payment information you provide to us is true, correct and complete; (ii) you are duly authorized to use such payment information for your orders; (iii) charges incurred by you will be honored by the issuer of any payment method; and (iv) you will pay charges incurred by you at the posted prices, including all applicable charges for taxes or shipping and handling.
c. Payment Processors. We use one or more third parties to process payments for orders. Those third parties may require you to agree to their own terms and conditions. We are not liable for any problems or disputes that you may have with such payment processors.
3. LIMITED WARRANTY.
a. General. Sections 3(a), (b) and (c) set out a limited warranty ("Limited Warranty"). The Limited Warranty covers any of the following items that are reflected in a Confirmation:
ii. Pump Accessories;
iii. and Accessories and together with the Pumps, the ("Warranted Products").
b. Who The Limited Warranty Covers. The Limited Warranty covers the original purchaser of Warranted Products. The Limited Warranty is non-transferable, so it does not cover any subsequent or other owner, transferee or beneficiary.
c. Limited Warranty Coverage. Willow warrants that the Warranted Products will be free from defects in material and workmanship for the following periods:
i. Twelve (12) months from the date the Confirmation is sent to you for the purchase, for each Pump;
ii. Ninety (90) days from the date the Confirmation is sent to you for the purchase, for the Pump Accessories;
iii. Sixty (60) days from the date of the Confirmation is sent to you for the purchase of the Accessories.
d. Limitations. THE LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THE LIMITED WARRANTY. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
e. Your Remedies. If, during the Warranty Period, the Warranted Products do not conform to the Limited Warranty as determined by Willow in its reasonable discretion ("Nonconforming Products"), then, Willow will, at its sole option and expense, and subject to the exclusions set forth in Section 3(g), within sixty (60) calendar days from the date it receives your Warranty Notice (defined in Section 3(f)): (i) repair the Nonconforming Products; or (ii) replace the Nonconforming Products with new or refurbished products (clauses (i) and (ii) are the "Warranty Remedy"). THE REMEDIES DESCRIBED IN THIS SECTION 3(e) ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY. NEITHER ANY PERFORMANCE NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS, AGENTS OR EMPLOYEES, WILL CREATE ANY OTHER WARRANTY OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THE LIMITED WARRANTY.
f. Seeking Remedies. If you believe that you are entitled to the Warranty Remedy, then you must contact Willow here ("Warranty Notice"). This Warranty Notice must include, at a minimum: (i) your first and last name; (ii) proof of the original date the Confirmation was sent to you for the purchase; and (iii) a reasonably detailed explanation of the basis on which you are claiming the Warranty Remedy. Willow will review the Warranty Notice and notify you if additional information is needed. Warranty Notices must be received within thirty (30) days after the end of the Warranty Period. You are responsible for the shipping and handling charges in sending the Warranted Products back to us. When returning the Warranted Product, you must include the RMA number, which can be obtained by contacting Willow in accordance with this Section 3(f).
g. Exclusions. Willow’s Limited Warranty does not apply to: (i) Warranted Products in other than original condition; (ii) any defect or nonconformance caused by modifications or alterations made to the Warranted Products by you or any third party or combination with any unauthorized product or component; (iii) any Warranted Products that have been subjected to operating or environmental conditions in excess of limits established in the applicable specifications, or otherwise has been subjected to accident, mishandling, damage, misuse, neglect or alteration, unusual physical or electrical stress, normal wear and tear, or improper or unauthorized testing or repair; (iv) with respect to the Pump, submersion in water, washing or sanitizing, placement in the refrigerator or freezer, use during takeoff or landing when traveling on an airplane, or use with any charger that is not provided with the pump; or (v) with respect to the flange in the Other Warranted Products, placement in the microwave or microwave sterilizer bags.
4. PRODUCT PROTECTION PLANS. If you purchased a product protection plan for Pumps through our product protection plan provider, Clyde, such provider’s terms and conditions apply and we are not responsible for processing claims or cancellations. Please contact Clyde at [email protected]
5. INDEMNIFICATION. You will defend, indemnify and hold harmless Willow and its affiliates, officers, employees and agents from and against any loss, liability, claim, demand, damage or expense (including reasonable attorneys’ fees) arising out of or relating to your breach of this TOS or your use or misuse of Products. Willow will provide notice to you of any such claim, suit or proceeding. Willow reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section 4 if Willow believes that you are unwilling or incapable of defending Willow’s interests. In such case, you agree to cooperate with any reasonable requests to assist Willow in its defense of such matter at your sole expense.
6. LIMITATION OF LIABILITY. THE FOLLOWING TERMS IN THIS SECTION 5 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. IN NO EVENT WILL WILLOW’S LIABILITY ARISING OUT OF OR RELATED TO THIS TOS EXCEED THE AMOUNT PAID BY YOU TO WILLOW FOR PRODUCTS GIVING RISE TO THE DISPUTE. IN NO EVENT WILL WILLOW HAVE ANY LIABILITY FOR ANY LOSS OF DATA, USE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS TOS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
b. ALL ITEMS THAT YOU MAY BUY FROM US, OTHER THAN THE WARRANTED PRODUCTS, ARE PROVIDED ON AN "AS IS" BASIS, AND WE HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES WITH RESPECT TO SUCH ITEMS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY TRIAL WAIVER.
a. Governing Law. This TOS shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this TOS evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) ("FAA") governs the interpretation and enforcement of the Arbitration Agreement in Section 6(b) and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the laws of the State of California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
b. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WILLOW. This Section 6(b) (the "Arbitration Agreement") applies to and governs any dispute, controversy, or claim between you and Willow that arises out of or relates to, directly or indirectly: (a) this TOS, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) the Products; or (c) any other aspect of your relationship or transactions with Willow, directly or indirectly, as a consumer ("Claim" or collectively, "Claims"). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to this TOS.
For any Claim, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Willow has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the "Arbitrator"), under the Expedited Procedures then in effect for AAA (the "Rules"), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in Santa Clara County, California, unless you and Willow agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) AAA will require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the arbitrator has the discretion to award the prevailing party costs of arbitration, reasonable attorney’s fees, and reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Willow agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this TOS, any provision of this TOS, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
As provided in Section 6(a) above, nothing in this Section shall be deemed as: preventing Willow from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver below is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in Santa Clara County, California. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
c. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE PRODUCTS FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND WILLOW AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER WILLOW USERS. YOU AND WILLOW FURTHER AGREE THAT, BY ENTERING INTO THIS TOS, YOU AND WILLOW ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
a. Assignment. This TOS, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Willow without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
b. Notification Procedures and Changes to this TOS. Willow may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Willow in our sole discretion. Willow reserves the right to determine the form and means of providing notifications to our customers, provided that you may opt out of certain means of notification. Willow is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Willow may, in its sole discretion, modify or update this TOS from time to time, and so you should review this page periodically. When we change this TOS in a material manner, we will update the ‘last modified’ date and may notify you that material changes have been made to this TOS. Your continued use of the Products after any such change constitutes your acceptance of the new terms of sale. If you do not agree to any of this TOS or any future terms of sale, do not use or access (or continue to access) the Products.
c. Entire Agreement/Severability. This TOS, together with any amendments and any additional agreements you may enter into with Willow in connection with the Products, shall constitute the entire agreement between you and Willow concerning the Products. Except as otherwise stated in Section 6(b), if any provision of this TOS is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this TOS, which shall remain in full force and effect.
d. No Waiver. No waiver of any term of this TOS shall be deemed a further or continuing waiver of such term or any other term, and Willow’s failure to assert any right or provision under this TOS shall not constitute a waiver of such right or provision.
e. Contact. Please email us at [email protected] or write to us at 1975 W. El Camino Real, Suite 306, Mountain View, CA 94040, with any questions regarding this TOS.
August 5, 2022
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