This Agreement is between you and Cbr Systems, Inc. ("Cord Blood Registry" or "CBR") for newborn stem cell banking. You are electing to preserve cord blood and/or cord tissue. In this Agreement, cord blood and cord tissue are called "newborn stem cells" or "sample(s)."
- Collection of the Newborn Stem Cells
CBR® will provide you with a CBR CellAdvantage® Newborn Stem Cell Collection Kit to collect and transport the newborn stem cells. You will request that your healthcare provider collect the newborn stem cells. You agree to follow the instructions provided by CBR and your healthcare provider. CBR may provide your healthcare provider or other parties involved in the newborn stem cell banking with information about your enrollment, education, consent, and collection.
Although infrequent, complications may occur during birth that preclude the collection of newborn stem cells or affect the quality of the sample. Therefore, collection of newborn stem cells cannot be guaranteed. Your health and the health of your baby are your healthcare provider's first priorities. You agree that your healthcare provider's judgment is absolute and final. You agree to not hold your healthcare providers, hospital/birthing center, and its affiliates or its or their directors, officers, employees or agents responsible for the collection or failure to collect cord blood or cord tissue or for the handling of cord blood or cord tissue.
Your healthcare provider does not act as an agent of CBR. Payment for your healthcare provider's services are solely your responsibility. CBR pays a fee for collection services to physicians and midwives who are enrolled in CBR's Healthcare Provider Network.
- Transport of the Sample(s)
You will arrange for express shipment of the newborn stem cells to CBR's laboratory as soon as possible after collection. You may use One-Step ShippingSM which offers next-flight-out service, or another courier of your choice. One-Step Shipping is offered by CBR for your convenience and is performed by an independent company. No courier service can provide one hundred percent reliability, and on occasion, some samples may be delayed, lost, or damaged in transit. CBR has no responsibility or liability for third-party courier transport of the sample(s) to CBR's laboratory, including for One-Step Shipping.
- Testing, Processing, and Storage of the Sample(s)
After CBR receives the CellAdvantage kit, CBR will test, process, cryopreserve and store the cord blood stem cells. CBR will also test the birth mother's blood sample for HIV, hepatitis, syphilis, other conditions required by regulatory agencies, and as needed to determine the suitability of the sample for storage. There is no way to know if a sample can be stored until it arrives at CBR's laboratory.
You will be consulted regarding storage of the sample if it does not meet minimum cell count, viability, volume or other guidelines for storage as determined by CBR. CBR does not store samples associated with positive HIV test results. CBR retains the right to not store any newborn stem cell sample. In the event that a sample is not stored because it is deemed unsuitable for storage, you will be notified and CBR will refund all previously paid fees to you except for the shipping fee.
Cord tissue will require additional processing prior to use in medical treatment. Cord tissue is stored whole (the stem cells are not extracted as they are with cord blood). The science of cord tissue preservation is evolving and storing the cord tissue whole preserves options for future stem cell extraction. Additional fees may apply.
- CBR's Commitment to Quality
CBR provides a $50,000 Quality Service Guarantee. In the event that the cord blood stem cells are used in hematopoietic reconstitution and fail to engraft, CBR will refund all service fees paid by you to CBR for the cord blood stem cells and will pay you an additional $50,000. This Guarantee is subject to important terms and conditions, available at https://www.cordblood.com/client-center/Content/pdf/cbr_qualityserviceguarantee.pdf. Please note that this guarantee does not apply to cord tissue.
- Understanding Your Rights to the Sample(s)
You agree that you are the child's legal guardian, and understand that CBR will treat you as the sole designated contact for all purposes relating to this Agreement, including but not limited to retrieval and use of the sample, access to your account, updating of contact information, payment of fees, and termination of this Agreement. In the event that you wish to assign your rights and/or obligations under this Agreement to a third party, both the third party and CBR must agree in writing.
Prior to the child's eighteenth birthday, you, as the child's legal guardian, may direct the release and use of the newborn stem cells. The rights to the newborn stem cells follow the child, so if you cease being the child's legal guardian, then you may not direct the release and use of the newborn stem cells, and the child's legal guardian obtains these rights to act on behalf of the child. CBR retains the right to require court documentation or a court order prior to releasing the sample.
Starting on the child's eighteenth birthday, the child directs the release and use of the newborn stem cells. You agree that on and after the child's eighteenth birthday, the retrieval and use of the newborn stem cells shall be at the sole direction of the child and that you have no further right or power to direct the release or use of the newborn stem cells. Effective as of the child's eighteenth birthday, you hereby release and renounce in favor of the child any and all right, title or interest that you may have in or relating to the newborn stem cells. You may continue to pay the annual storage fees for the benefit of your child.
- Requests for Release of the Sample(s)
A client may instruct CBR in writing to release the newborn stem cells. CBR shall not be required to release, prepare, ship or dispose of any newborn stem cells unless and until any and all payments required to be made under this Agreement have been paid in full. You may direct CBR to:
- Send the newborn stem cells to a physician (or agent) appropriately qualified to perform a transplant or medical procedure;
- Dispose of the newborn stem cells;
- Release the newborn stem cells for scientific research.
CBR can send a sample only to an entity that can receive a sample in compliance with all applicable rules and regulations. CBR may charge an administrative fee for preparation of the unit and paperwork. You are responsible for any third party costs, including shipping and services fees. CBR is required to maintain all records associated with your child's newborn stem cell sample, even after it has been released, so under limited circumstances, you may be charged a document maintenance fee. Any transfer or disposal will be performed in accordance with CBR's standard operating procedure in effect at the time of the request.
- Payment of Fees
You are responsible for the payment of all fees that may apply hereunder. CBR will attempt to contact you if a payment is overdue. If a payment is not received within 180 days of its due date, your account will be forwarded to a collection agency for further action. Your credit may be impacted.
Except as set forth in Section 3, if you terminate this Agreement prior to CBR's storage of the sample(s), CBR will refund all amounts paid by you hereunder less an administrative fee of $150. Different fees may apply for international customers.
If you terminate this Agreement after CBR's storage of the sample(s), you will not receive a refund. If you prepay all or a portion of the storage fees, and you terminate this Agreement, you will not receive a refund of the pre-paid fees.
- Term and Termination
This Agreement is effective upon your agreement. If you are not the birth mother, the birth mother must also agree to the Informed Consent and Authorization, and complete the Medical Health and History Profile.
This Agreement may be terminated by:
- All payments required under this Agreement must be paid in full, and CBR's procedures in effect at the time of such termination must be followed.
- If you are no longer the child's legal guardian, or if the child is eighteen years old or older, CBR will send written notice to the legal guardian or the child (as applicable) of the cancellation. The legal guardian or the child (as applicable) will have ninety (90) days to agree to take on all the rights and obligations under this Agreement. If the legal guardian or the child (as applicable) fails to agree within such period, then the Agreement will terminate. If the legal guardian or the child (as applicable) provides his or her agreement within such period, then the Agreement shall continue in his or her name with the legal guardian or the child (as applicable) succeeding to all of your rights and obligations under this Agreement.
- The child, starting on the child's eighteenth birthday.
- All payments required under this Agreement must be paid in full, and CBR's procedures in effect at the time of such termination must be followed.
- CBR will promptly notify you of any such termination.
- If you fail to make any payment required within 180 days of its due date, following written notice to your last available address, CBR will attempt to send your account to a collections agency and may terminate your account anytime thereafter.
- Release of all samples from storage.
- If all the samples have been released from storage by the child or his or her legal guardian, CBR will promptly notify you of any such expiration.
- As required by law or regulations.
- If you move to a country where CBR is prohibited from providing newborn stem cell banking services, CBR may cease to maintain the newborn stem cells absent authorization from the U.S. Treasury Department.
Any expiration or termination of this Agreement is without prejudice to any rights, claims or causes of action that may have accrued prior to such expiration or termination.
If this Agreement terminates and the newborn stem cells remain in the custody of CBR, the samples become the property of CBR. The samples may be used for quality control or testing purposes, and may not be available for use by your family.
- Notification of Account Changes
At all times while this Agreement remains in effect, you shall promptly notify CBR of changes to your and the child's contact information and your payment method. CBR is entitled to rely on the contact information contained in your online client account. Any changes of the child's legal guardian must be promptly disclosed to CBR.
To update your contact information, call CBR at 1-888-932-6568, option 4 or edit your information by logging into your Client Account at www.cordblood.com/Client-Center/MyAccount/Login.aspx. You can also contact us by postal mail at Cord Blood Registry, 1200 Bayhill Drive, San Bruno, CA 94066.
- Third Party Beneficiary
The child is an intended third-party beneficiary of this Agreement with the right to enforce it without the need to join you.
- Warranty Disclaimer
You acknowledge and agree that neither CBR nor any of its shareholders, directors, officers, agents, employees or affiliates have made any representation, guaranty or warranty, express or implied, to you of any kind. You acknowledge and agree to the following specific disclaimers:
There is no guarantee or assurance regarding success in collecting newborn stem cells. Complications may occur during birth that preclude the collection of the newborn stem cells. You acknowledge that your healthcare provider makes the final determination whether or not to collect the newborn stem cells. Eligibility for storage cannot be fully assessed until the arrival and evaluation of a sample at CBR's laboratory. CBR maintains the right to reject or discard any samples in accordance with our standard operating procedures due to certain test results or lack of test results.
There is no guarantee that the newborn stem cells will not deteriorate or suffer another form of loss. There is no guarantee that the stem cells will be viable or free from environmental contaminants when released. There is no guarantee that the newborn stem cells will be of therapeutic value. You acknowledge that the newborn stem cells may never be used.
- Limitation of Liability
CBR HAS NO LIABILITY OF ANY KIND IN RESPECT OF CBR'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT EXCEPT TO THE EXTENT ATTRIBUTABLE TO CBR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT SHALL CBR'S LIABILITY EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO CBR UNDER THIS AGREEMENT. CBR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES IN RESPECT OF BREACH OF CONTRACT, WARRANTY, STRICT LIABILITY OR TORT), WHETHER OR NOT CBR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL NOT APPLY TO THE $50,000 QUALITY SERVICE GUARANTEE APPLICABLE TO STORED CORD BLOOD. (Please see important terms and conditions on the Certificate of Guarantee.)
CBR shall not be responsible for procedures or services performed by third parties, including, but not limited to, sample collection, lab testing, courier transport (including any One-Step Shipping courier), improper handling, or use during transplantation or medical procedure.
- Assignment and Delegation
CBR may assign its rights and delegate its obligations under this Agreement without further consent to any successor by merger or consolidation, to any purchaser of all or substantially all of CBR's assets relevant to the performance of the services to be provided by CBR hereunder, or to any entity that provides services similar to those that are to be provided by CBR hereunder or that intends to provide such services following any such assignment or delegation. CBR may perform services to be provided by it hereunder through subcontractors. This Agreement is not assignable by you without the prior written consent of CBR and any attempted assignment in breach of the foregoing restriction shall be void.
- Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to its conflicts of laws provisions. Any dispute or controversy arising between or among you, the child, and CBR shall be finally and conclusively resolved by binding arbitration following the rules provided in Title 9 of the California Code of Civil Procedure. In the event of arbitration, or any court proceedings, the court or arbitrator may award reasonable attorneys' fees and costs to the prevailing party in addition to any other relief to which the party is entitled.
- Entire Agreement
This Agreement, together with the Informed Consent and the Authorization to Release Personal Health Information, constitutes the entire Agreement between the parties and supersedes all previous agreements or representations by CBR, oral or written, relating to the subject matter of this Agreement.
- Force Majeure
If CBR's performance of this Agreement is prevented, restricted, or interfered with by reason of fire, earthquake, or other casualty or accident, strikes or labor disputes, war or other violence, any law, order, proclamation, ordinance, demand, or requirement of any government agency, or any other act or condition beyond the control of CBR, then CBR shall be excused from such performance.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
This Agreement shall be binding on you and CBR and your and its heirs, personal representatives, successors and permitted assigns.
This Agreement may only be modified or amended by a writing signed by each party.
Both you and CBR acknowledge they have read this Agreement, understand its terms and conditions, and intend to be legally bound by it.