This Agreement is made on , 20___, between California Cryobank, Inc., a California corporation (“Company”) and and (“Client”).
Company is in the business of providing for the collection, testing, typing, processing, cryopreservation and storage of the blood that is taken from the umbilical cord (the “Cord Blood”) after the birth of a child (the
”Storage Services”).
Client desires to collect for storage the Cord Blood of Client's child after the birth of the Client's child.
Therefore, Company and Client desire to enter into an agreement under the provisions set forth below for Company to provide the Storage Services to Client:
1. Collection of Cord Blood: Client has requested that Client's physician collect the Cord Blood upon the birth of Client's child pursuant to the terms of the form attached hereto as Exhibit A -Authorization to Collect Cord Blood and Release from Liability. Company shall provide to Client's health care provider a collection kit for transportation of the Cord Blood from the birthing facility to the Company's processing facility.
2. Storage Services: The Storage Services shall be provided by the Company to the Client pursuant to the terms of the Informed Consent for Cord Blood Storage which is attached hereto as Exhibit B.
Upon signing, this Agreement shall constitute a non-negotiable storage receipt for the Client's Cord Blood stored by the Company.
3. Term of Agreement: The term of this Agreement shall be for a period of one year, effective the date of birth of Client's child. This Agreement shall be automatically extended for one year periods, unless either party gives at least sixty (60) days written notice of its intent to terminate this Agreement prior to the expiration date of any one year period.
4. Fees for Storage Services : The fees to be paid by Client to Company for Storage Services are set forth on the Cord Blood Storage Fee Schedule, attached hereto as Exhibit C. The Company may increase the annual storage fee for subsequent storage periods to an amount equal to Company’s then current annual storage fee, upon written notice to Client prior to the expiration of the current storage period.
5. Access and Preparation for Transfer of Cord Blood: The Cord Blood stored hereunder will be ready for access or delivery during regular business hours on regular work days (excluding Saturday, Sunday and holidays), on 48 hours notice, upon submission by Client to Company of a Request for Retrieval and Transfer of Cord Blood form which is attached hereto as Exhibit D. Client shall pay a transfer fee to Company as set forth in Exhibit C attached hereto. All fees due to Company must be paid in full prior to transfer of the Cord Blood.
CCB-3500, rev 3/6/00 2000 California Cryobank, Inc.
6. Limits on Liability, Liquidated Damages and Declared Value
1. Liability: Company shall only be liable for payment of liquidated damages as specified hereafter for the loss, injury, damage or destruction of Client's Cord Blood directly caused by Company's failure to exercise reasonable care in providing storage services hereunder.
2. Liquidated Damages: The parties stipulate and agree that it would be impracticable and extremely difficult to fix actual damages for the loss, injury, damage, or destruction of Client's Cord Blood stored under this Agreement. In accordance with California Civil Code, Section 1671, the parties hereby agree that in the event of the loss, injury, damage or destruction of Client's Cord Blood stored under this Agreement, caused by the breach of this Agreement or of any duty or relationship arising out of or related to this Agreement by Company, liquidated damages therefore shall be the amount of the fees paid by Client for the account set up and processing services and storage fees paid to date. The parties stipulate and agree that this declared value is a limit of liability in accordance with California Civil Code Section 1840.
Client hereby accepts the amount set forth in the above paragraph for all the amount of liquidated damages amount.
(Client's Initials) 3. Availability of Optional Insurance Coverage: In the event that optional insurance is available for the Cord Blood storage under Company's existing insurance policy for an amount in excess of the liquidated damages and declared value agreed to herein, Company shall provide the Optional Insurance Rate and Application Form, which is attached hereto as Exhibit E, to Client setting forth the additional costs and providing to Client the option to acquire said optional insurance.
4. Waiver of Claims: Except as expressly provided above with respect to the liquidated damages and declared value, Client hereby releases Company and Client’s hospital and physicians (collectively, the Releasees) and the Releasees’ respective agents employees, officers, directors, shareholders, and affiliates to the fullest extent permitted by law from any claims, demands, or causes of action which Client may have or claim to have arising out of or in any way relating to this Agreement, and hereby expressly waive and forever give up the provisions of California Civil Code Section 1542 which section provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
5. Indemnification: Client stipulates and agrees that the person(s) for whose benefit the Cord Blood is being stored, or to whom it is later provided, shall at all times and for all purposes be deemed to be bound by the provisions of this Agreement. Client hereby indemnifies and agrees to hold harmless and provide defense to Company and its Affiliates and client’s hospital and physicians (collectively, the Indemnitees) and the Indemnitees’ respective agents, employees, officers, directors, shareholders, and affiliates from any and all claims, liabilities, demands and causes of action asserted against Company and/or its affiliates by such person(s).
CCB-3500, rev 3/6/00 2000 California Cryobank, Inc.
7. Termination for Failure to Pay Fees: If this Agreement is canceled, terminated or expires, or if any payment due Company is not made within thirty (30) days of its due date, and if the Client has not submitted to Company a Request for Retrieval and Transfer of Cord Blood (Exhibit D), the stored Cord Blood shall be discarded.
8. Notices: Any and all notices to be given in connection with storage Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or within 72 hours after mailing, if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and property addressed to the party at his address set forth on the signature page of this Agreement, or any other address that any party may designate by written notice to the others. The Client agrees to promptly notify Company in the event of a change in Client's current mailing address at any time during the term of this Agreement.
9. Governing Law: This Agreement shall be governed by the laws of the State of California for any and all purposes, regardless of where the Agreement is entered into or is to be performed; and jurisdiction for all purposes, including entering an arbitration award, shall be in Los Angeles County, California.
10. Arbitration: All disputes, which arise under this Agreement, shall be referred to a single arbitrator mutually acceptable to both parties. Such arbitration shall be conducted at Los Angeles, California, in accordance with the rules of the American Arbitration Association then in effect, and the decision of the arbitrator shall bind the parties to the controversy and their representatives and shall be enforceable in any court of competent jurisdiction. Each party shall advance one-half of the costs of arbitration.
11. Partial Invalidity: If any provision of this Agreement is found to be invalid or unenforceable, that provision shall be ineffective only to the extent that it is in contravention of applicable laws, and this Agreement shall otherwise remain in full force and effect.
12. Assignment: Client has the right to assign this Agreement to the parent or legal guardian of the Child or to the Child upon the Child attaining the age of majority. Company has the right to assign this Agreement to an affiliate of the Company.
13. Binding Effect and Opportunity to Consult Counsel: This Agreement is binding upon the parties hereto, their personal representatives, estate, heirs and successors in interest, as well as upon the child and any other person for whom the Cord Blood is stored or used.
Client acknowledges that Company has strongly recommended Client consult Client's own legal counsel to review this Agreement and any other documents and forms to be signed in connection therewith, and to advise Client in connection therewith, prior to signing; and that Client take sufficient time to do so. Client further acknowledges that whether or not Client has consulted Client's own legal counsel Client understands all of the provisions of this Agreement.
14. Exhibits: The Exhibits referenced in and attached to this Agreement are hereby made a part of this Agreement.
15. Construction: In this Agreement, whenever the content so requires, the masculine gender shall include the feminine or neuter, the singular number shall include the plural and the plural shall include the singular.
CCB-3500, rev 3/6/00 2000 California Cryobank, Inc.
16. Captions: Any captions in this Agreement are for convenience only and shall not be deemed part of the context of this Agreement, and shall in no way define, limit, extend or describe the scope of this Agreement or the intent or any of its provisions.
17. Counterparts: This Agreement 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 instrument.
CLIENT HAS READ THIS AGREEMENT BEFORE SIGNING IT.
COMPANY: CLIENT:
CALIFORNIA CRYOBANK, INC. ________________________________
a California Corporation (Signature)
By ________________________________
(Print Name)
________________________________
(Print Name and Title) (Address for Notice)
3228 Nebraska Avenue ________________________________
(Address for Notice)
Santa Monica, CA 90404 ________________________________
(Telephone)
CHILD'S NAME OR OTHER UNIQUE IDENTIFICATION ________________________________
Authorization to Charge Credit Card (do not fill out when using other methods of payment)
I, the undersigned, authorize the Company to charge my credit card for the services as described in this Agreement and its Exhibits. I understand that these charges will include fees for the processing and first year storage of the Cord Blood and any subsequent storage services as described in this Agreement, and that these charges may be charged at different times, as services are being provided.
Credit Card Type: ___VISA___M/C___AMEX___Discover Billing address:
_________________________________________________
(Credit Card Number) Exp. Date Street address
_________________________________________________
City State Zip Code
(Name as it appears on the credit card) (Cardholder’s Signature)
EXHIBIT D
CCB-3504, 7/1/97 ©1997 California Cryobank, Inc.
California Cryobank, Inc.
REQUEST FOR RETRIEVAL AND TRANSFER OF CORD BLOOD
Account No:
Client,________________________________________, has instructed the Company to transfer
(Client Name)
Client’s Cord Blood to
(Name and Address of Facility)
. Client has been advised that Client has the option to provide for the transportation of the Cord Blood. Client has also been informed and agrees that upon request of the Client, the Company may assist in arranging transportation of the Cord Blood.
Client has been informed and agrees that there are risks in removing the Cord Blood from its present container and risks in transporting Cord Blood from one facility to another. Client further understands and agrees that the Company assumes no responsibility for loss of or damage to Cord Blood resulting from the transportation or any other movement of the Cord Blood from the Company. Client will be responsible for all charges related to the transfer of Client’s Cord Blood.
______________________________________ ________________________
Client Signature Date
Executed in my presence on the date set forth above.
______________________________________
Notary Public