Service and Preventative Maintenance Agreement

This Ava Pods Service & Preventative Maintenance Agreement, the Ava Pods Terms and Conditions of Equipment Sale, and all Ava Pods invoice(s) constitute the entire binding agreement (collectively, the “Agreement”) by and between the U.S. or Canadian customer (“Customer”) identified on Customer’s applicable quotation (“Quotation”) and Mamava, Inc. (dba Ava Pods) (“Ava Pods”) relating to Customer’s request for, or ordering, payment, and/or receipt of, preventative and/or maintenance services on Customer’s Ava Pods Lactation Pod(s) (any such services, the “Services”). This Agreement supersedes all other agreements and understandings, whether written or oral, relating to the servicing and maintenance of Customer’s Pods. No additions, conditions, amendments, or modifications by Customer or any other person, whether oral or contained in any other documents, will be binding on Ava Pods, regardless of Ava Pods’ failure to object or Ava Pods’ provision of Services, unless otherwise agreed to in writing and signed by Ava Pods. 

PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING CUSTOMER’S LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.  UNDER THIS AGREEMENT, NEITHER PARTY WILL BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE HEREUNDER, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS, INJUNCTIVE OR OTHER EQUITABLE RELIEF, OR PERSONAL INJURY OR PROPERTY DAMAGE. INSTEAD, EACH PARTY AGREES TO SUBMIT ANY SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR.

1. SCOPE OF COVERAGE. This Agreement covers the specified Services listed in the Quotation. This Agreement may be updated or amended from time to time by Ava Pods without notice to Customer; a copy of such updated terms will be available for Customer’s review at https://www.avapods.com/service-and-preventative-maintenance-agreement. Customer agrees to be bound by the most recent version of the Agreement, and Customer’s ordering of Services after the date of any update shall constitute Customer’s acceptance of the Agreement, as updated. 

2. SCHEDULING FOR AND HOURS OF SERVICES. Ava Pods will perform the Services between the hours of 8:00 a.m. and 5:00 p.m. local time, Monday – Friday (“Normal Hours”) at the address listed for Customer. Service after Normal Hours, or on weekends or local holidays, will be invoiced at our published after-hours rate. If Union labor is required, Customer will be invoiced additionally at applicable published Union Labor rates.

Ava Pods will contact Customer three times within a 20-day period to schedule Customer’s Services visit. Customer’s failure to respond or reply to Ava Pods within this timeframe will result in Customer’s forfeiture of the visit. 

3. LABOR & REPAIR SERVICES, REPLACEMENT PARTS, AND SUPPLIES. Labor performed during a Services visit, including lubrication and cleaning of the Pods and adjustments, repair or replacement of parts necessary to the normal operation of the Pods, will be covered by Customer’s Base Rate, as defined in Section 5 hereof.

4. TERM & TERMINATION. This Agreement is made and entered effective as of the date the Pod is delivered for Customer’s self-installation or the date the Pod is installed per a purchased Ava Pods installation (“Start Date”) and shall continue for one year, three years, or five years, as set forth in the Quotation (the “Initial Term”). For any Pods not listed in the “Outdated Equipment” section (Section 6), the Customer may renew this Agreement after the Initial Term upon written notification to Ava Pods, provided that Customer is not in default of this Agreement per Section 7 hereof. The Base Rate for any renewal term will be Ava Pods’ published rates in effect within ninety (90) days prior to, or thirty (30) days after, the start date of such renewal term.

Ava Pods may, at any time and with at least thirty (30) days prior written notice, terminate this Agreement for any reason. Customer may, at any time and with at least ninety (90) days prior written notice, terminate this Agreement for any reason.

5. CHARGES. The fee for the service plan (the “Base Rate”) is set forth in the Quotation. The Base Rate is billed one month in advance of the Start Date. Applicable state, provincial, and local taxes and customs duties will be added to and indicated on each invoice. Customer agrees to pay Ava Pods the total amount of such charges within fifteen (15) days of the date of the invoice for such charges. Customer understands that alterations, attachments, specification changes or cost of parts, supplies or services may require an increase in maintenance charges and agrees to pay such charges promptly when due. Customer will be invoiced on the plan selected on the Quotation: 1 year, 3 years, 5 years. Any invoice not disputed in writing by Customer within fifteen (15) days of the date of such invoice shall be deemed accepted and properly payable.

6. OUTDATED EQUIPMENT. “Outdated Equipment” means any XL or Original Pod that holds a model number of ‘v1’, ‘v2.0’, ‘v2.2’, ‘v3.0’, ‘v3.1’, ‘v3.2’, or ‘v3.3’ and any Solo Pod that holds a model number of ‘v1’ and ‘v1.1’. If unsure of the model of a given Pod, please contact Ava Pods Customer Service for confirmation. Ava Pods does not offer a Service & Preventative Maintenance Agreement for Outdated Equipment. If Ava Pods agrees to provide ad hoc paid maintenance or repair services for Outdated Equipment, Ava Pods will only provide labor for repair and the replacement of those parts and supplies which are reasonably available. If Customer holds a Service & Preventative Maintenance Agreement for a Pod that is subsequently included in the above list of Outdated Equipment, and if Ava Pods determines that parts are not available from any reasonable source for such Pod, Customer or Ava Pods may immediately terminate the Agreement. 

7. BREACH OR DEFAULT. If Customer fails to perform its obligation hereunder, or if it does not pay all charges invoiced for maintenance or parts as provided hereunder promptly when due:

(a)  Ava Pods may exercise all available legal rights, including but not limited to any or all of the following: 

(i) refuse to service the Pod; (ii) re-invoice Customer for any Service visit, including parts, labor, mileage and travel time at prevailing rates for any and all visits placed from the Start Date to the termination date; (iii) furnish any future service on a C.O.D. “per visit” basis at published rates; and/or (iv) repossess any supplies or Pod(s) owned by Ava Pods and/or provided under this Agreement;

(b)  Customer agrees to pay a late fee equal to the greater of 10% of the unpaid amount or USD 50.00, plus interest of 1.5% per month (or the maximum rate allowed by law, whichever is greater) on the unpaid amount from the due date to the date paid; and

(c)  Customer agrees to pay Ava Pods’ cost and expense of collecting any amounts due and owing under this Agreement, including the maximum attorney’s fees permitted by law.

8. RELOCATION OF POD. Customer agrees to provide Ava Pods with thirty (30) days’ advance written notice prior to moving the Pod. If, at Customer's request, Ava Pods moves the Pod to a different location from that specified in the Agreement, Ava Pods will charge Customer its current published rates. If the Pod is moved by anyone not employed or authorized by Ava Pods, then Ava Pods may, at its sole option, terminate this Agreement or may charge an inspection fee of USD 150.00, in which case Customer agrees to pay such inspection fee, plus the cost of any item(s) damaged as a result of the Customer moving the Pod. 

9. REPLACEMENT PARTS. Ava Pods may use used, new, or equivalent-to-new parts or assemblies for equal or improved quality in the performance of any of its Services. All defective parts and assemblies become the property of Ava Pods. Ava Pods, at its option, may request the return of these parts and Customer agrees to comply with such return instructions.

10. VIRTUAL SUPPORT AND REMOTE DIAGNOSIS. To ensure that the Pod is repaired as quickly and efficiently as possible, Customer must first work cooperatively with virtual support to try to repair the Pod virtually. If the Pod contains features that enable Ava Pods to diagnose and repair problems remotely, Ava Pods may request that Customer allow such remote access to the Pod and Customer hereby agrees to provide such access.

11. LIMITATIONS. This Agreement covers labor and materials for adjustments, repairs and replacement of parts as necessitated by normal use of the Pod plus batteries and light bulbs. Graphics are not covered by this Agreement.

The Base Plan covers up to two (2) service visits per twelve (12) month period from the Start Date. The Premium Plan covers up to four (4) service visits and one (1) preventative maintenance visit per twelve (12) month period from the Start Date. Service calls are inclusive of evaluation and remediation.

Ava Pods shall not be obligated under this Agreement to service or replace parts for damage, failure or loss caused by:

• Failures to apply, install, reconfigure, or maintain products according to published Ava Pods or manufacturer instructions and guidelines.

• Abuse, misuse, or accident (including, without limitation, use of product in unsuitable environments or conditions).

• Alteration or modification of the product.

• The substitution of any unauthorized non-Ava Pods components for use in the place of Ava Pods components in an integrated product solution, including but not limited to, worksurfaces, panels, electrical components, fans, lights, brackets, shelves, and other integral components.

• Attempts by personnel other than a Ava Pods representative to install, repair or service the product unless so directed in writing by a Ava Pods representative.

• Circumstances beyond the control of Ava Pods, including electrical surges, acts of God, and natural disasters.

Any Service(s) identified in this section and provided by Ava Pods at Customer’s request shall be invoiced to Customer at a 10% discount on Ava Pods’ then current rates for parts. Labor and travel rates will be invoiced based on current local rates (see Exhibit A).

12. CORRECTIVE SERVICE. To obtain Services under this Agreement, the Customer must first contact Ava Pods’ virtual support personnel. Virtual support personnel will work to resolve issues professionally and quickly; however, the Customer must reasonably assist Ava Pods. Ava Pods will not be liable for any delay or failure in providing Services if such failure or delay is attributable in whole or in part to Customer’s failure to cooperate with Ava Pods. If virtual support is unsuccessful, Ava Pods or its authorized representative will repair the product on-site in accordance with the terms hereof and without charge for parts, labor or travel, or at its option, Ava Pods may provide a comparable replacement product.

13. OBLIGATIONS OF CUSTOMER. Customer is responsible for periodic cleaning to keep the Pod in good operating condition between regularly scheduled maintenance visits. Customer shall permit Ava Pods access to the product(s) whenever Services are required. Customer shall ensure that the site cooperates with Ava Pods to the extent necessary to permit Services to be performed efficiently and without interruption. Customer shall permit Ava Pods to use any Customer Pod or facilities that Ava Pods reasonably deems necessary for the performance of Services. Customer shall ensure that the site meets the environmental specifications contained in the user manual supplied with the product to be serviced. If a product under service fails to meet Ava Pods’ site specifications, Ava Pods may refuse to provide Services until the site meets such specifications and or charge for the additional cost associated therewith.

14. PERSONNEL. Ava Pods reserves the right to determine the assignment of its employees or its third-party contractors in providing Services hereunder.

15. SOFTWARE AND FIRMWARE UPDATES. Updates to the Pod’s software and firmware may be required to correct performance problems and will be provided under this Agreement where deemed applicable by Ava Pods.

16. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. Problems with the Pod cannot always be diagnosed and repaired by Ava Pods. Ava Pods is not liable for losses or damages resulting from misdiagnosis or delays in completing repairs. EXCEPT AS EXPRESSLY SET FORTH HEREIN AVA PODS HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE SERVICES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  AVA PODS SHALL NOT BE LIABLE FOR LOSS OF USE OF ANY POD OR FOR ANY LOSS OR DAMAGE OCCASIONED BY SUCH LOSS OF USE RESULTING FROM THE PERFORMANCE OF SERVICES HEREUNDER.  IN NO EVENT SHALL AVA PODS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND HEREUNDER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS, DAMAGE TO OR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGE TO REPUTATION), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF AVA PODS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL AVA PODS' AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT EXCEED THE ANNUAL SERVICE CHARGE APPLICABLE TO THE POD WITH WHICH THE CLAIM IS ASSOCIATED.

IN CERTAIN JURISDICTIONS, SOME LIABILITIES CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. IN SUCH JURISDICTIONS, THE LIMITATION OF LIABILITY MAY NOT APPLY TO CUSTOMER. IF AVA PODS CANNOT LAWFULLY DISCLAIM LIABILITY TO CUSTOMER UNDER THIS SECTION, AVA PODS WILL BE LIABLE TO CUSTOMER, IN THE AGGREGATE FOR ALL CLAIMS ARISING HEREUNDER, FOR LIQUIDATED DAMAGES NOT TO EXCEED THE GREATER OF (I) USD 500.00 OR (II) THE SMALLEST AMOUNT ALLOWED BY APPLICABLE LAW (“LIABILITY CAP”). IN SUCH EVENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXCLUDED DAMAGES FOR ALL CLAIMS ARISING HEREUNDER CANNOT BE CALCULATED WITH REASONABLE CERTAINTY. CUSTOMER FURTHER AGREES THAT THE LIABILITY CAP REPRESENTS A REASONABLE APPROXIMATION OF THE EXCLUDED DAMAGES THAT CUSTOMER WILL SUFFER FOR ALL CLAIMS ARISING HEREUNDER AND THAT SUCH LIQUIDATED DAMAGES DO NOT CONSTITUTE A PENALTY. THE LIMITATIONS IN THIS PARAGRAPH WILL APPLY EVEN IF ANY OTHER REMEDY AVAILABLE TO CUSTOMER FAILS OF ITS ESSENTIAL PURPOSE.

17. LIMITATION ON TIME TO FILE CLAIMS. TO THE EXTENT PERMITTED BY APPLICABLE STATE OR PROVINCIAL LAW, ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR THE CAUSE OF ACTION IS PERMANENTLY BARRED.

18. PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUALIZED RELIEF. TO THE EXTENT PERMITTED BY APPLICABLE STATE OR PROVINCIAL LAW, CUSTOMER AND AVA PODS AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH CUSTOMER AND AVA PODS AGREE OTHERWISE, NO ACTION OR COURT OF LAW MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. ALSO, ANY COURT OF LAW MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT EITHER PARTY MAY PURSUE A CLAIM FOR, AND ANY COURT OF LAW MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER, APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS AGREEMENT.

19. INDEMNIFICATION. Customer will indemnify, defend and hold Ava Pods its affiliates and their respective officers, directors, shareholders, employees, contractors, agents, licensors, service providers, successors and assigns from and against any claims, judgments, awards, losses, liabilities, expenses, damages, costs, fines, penalties and fees (including reasonable attorneys’ and experts’ fees and court costs) arising out of or in connection with: (i) Customer’s deployment and use of the Pod other than as expressly authorized in this Agreement; (ii) any other violation of this Agreement or of any rights of a third party; and/or (iii) Customer’s gross negligence or willful misconduct.

20. SEVERABILITY. If the scope of any of the provisions of this Agreement are too broad in any respect whatsoever to permit enforcement to its full extent, then such provision shall be enforced to the maximum extent permitted by law, and the parties hereto consent and agree that such scope may be judicially modified accordingly and that the whole of the provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be curtailed only to the extent necessary to conform to law.

21. ASSIGNMENT. Ava Pods may subcontract some or all of the Services to third parties without Customer’s prior written consent. Customer may not assign or transfer this Agreement without the prior written consent of Ava Pods. Except for the prohibition on assignment contained in the preceding sentence, this Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto.

22. FORCE MAJEURE. Ava Pods shall not be liable for any failure to perform or delay in performance due hereunder as a result of any event beyond its control including, but not limited to, natural disasters, acts of God, pandemics, supply chain disruption, governmental actions, strikes, wars, terrorist actions, failure of communication lines or Internet service, etc.

23. DISPUTES, GOVERNING LAW, BINDING ARBITRATION; CONSENT TO JURISDICTION. This Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended. Rather, this Agreement is made in and will be governed by the laws of the State of Vermont, USA.  Any dispute or disagreement arising between the parties in connection with the interpretation, validity or enforcement of any provision of this Agreement, or any other dispute related to or arising out of this Agreement that is not settled to the mutual satisfaction of the parties within thirty (30) days (or such longer period as may be mutually agreed) from the date that either party informs the other, in writing, that the dispute or disagreement exists, shall be determined by recourse to mediation and, if necessary, arbitration before one arbitrator. The arbitration will be administered by US JAMS pursuant to its Streamlined Arbitration Rules & Procedures (Comprehensive Arbitration Rules and Procedures). Mediation and, if necessary, binding arbitration, may be conducted exclusively by written and telephonic submission. If available, videoconferencing may also be utilized. The costs of the mediator and, if necessary, the arbitrator(s), are to be shared equally by the parties. All expenses relating to the individual attorney fees, witness costs and all other expenses of the parties in any dispute, including, but not limited to, mediation, arbitration and any enforcement in courts of law, shall be the sole responsibility of the respective parties. In the event that the arbitrator rules in favor of one party, the arbitrator shall have the right to also award to the winning party costs and fees (including reasonable attorneys’ fees) incurred in connection with the dispute. Following conclusion of a binding arbitration, a judgment may be filed in the courts of the state or province in which the judgment debtor maintains its principal place of business or principal place of residence. By executing this Agreement, the parties expressly consent to the personal jurisdiction of such courts and give such courts the power and authority to enforce the arbitration award. All in-person mediation or arbitration shall take place in Burlington, Vermont, USA.

24. ENGLISH LANGUAGE. The parties to this Agreement have expressly required that this Agreement and all documents and notices relating hereto be drafted in English. Les Parties à ce Contrat ont expressément exigé que la présente convention et tous les documents et avis qui y sont afférents soient rédigés en anglaise.

EXHIBIT A

BILLABLE LABOR RATES (US / USD)

Tier 1

Tier 2

Tier 1: CA,CT, DC, IL, MA, ME, MI, MN, NH, NJ, NY, OR, PA, RI, SD, UT, VT, WA, WI, WY

Tier 2: AL, AR, AZ, CO, DE, FL, GA, IA, ID, KS, LA, MD, MO, MS, MT, NC, ND, NE, NV, OK, SC, VA, IN, KY, NM, OH, TN, TX, WV

Note: Certain hourly minimums may be applicable and vary by market. 

BILLABLE LABOR RATES (Canada*)

*labor rates apply to locations within 50 miles of; Vancouver, BC, Calgary, AB, Edmonton, AB, Regina, SK, Saskatoon, SK, Winnipeg, MB, Toronto, ON, Ottawa, ON, Montreal, QC, Quebec, QC, Moncton, NB, Fredericton, NB, St John, NB, Halifax, NS, Charlottetown, PE, St Johns, NL. 

Note: Certain hourly minimums may be applicable and vary by market.