These General Conditions contain the terms and conditions of the Contract for cryopreservation stipulated between Nescens, SSCB and the Client, of which these form an integral part.
Terms that begin with a capital letter have the meaning defined in the Contract or relative Attachments.
1. Purpose of the Contract
The purpose of the contract is the cryopreservation of umbilical cord blood or the cryopreservation of umbilical cord blood and tissue and includes services defined in Attachment 1 in the case in which the Client has selected the formula “Nescens Baby Classic” or in Attachment 2 in the case in which the Client has selected the formula “Nescens Baby Complete”. If the Client has not made a selection, the formula “Nescens Baby Classic” will be applied.
Acting on their own behalf and on behalf of the unborn child (hereinafter “Unborn Child”), the Client mandates SSCB to process, test and preserve by freezing the stem cells obtained from umbilical cord and/or placental blood or the stem cells obtained from umbilical cord and/or placental blood and cord tissue at the moment of the birth of the Unborn Child (hereinafter called the “Sample”) as specified by the terms of the Contract.
All communications related to the Contract will take place through Nescens which is responsible for the management of the Contract and coordination of the processes and services.
2. Services by SSCB
SSCB furnishes the Client with the preservation services as indicated in Attachment 1 or 2 according to the formula chosen by the Client as specified in the aforementioned paragraph 1.
These services are defined as follows:
- “Supply of collection kit”: SSCB supplies the Client, at the address indicated by the latter in the Attachment Registration Form, with a kit for the collection of the Sample at the moment of the birth of the Unborn Child;
- “Transportation to our laboratory”: SSCB organises, on behalf of the Client, the transportation of the Sample by third parties of its choice from the place of birth of the Unborn Child to the SSCB laboratory;
- “Laboratory testing and processing”: the Sample will undergo the following tests (hereinafter “Test”) by SSCB or third parties of their choice: HCV, HBV, HIV I-II, syphilis, CMV, HTLV I, HTLV II; SSCB treats the Sample for separation and isolation of the stem cells present in the Sample;
- “Packaging and cryopreservation in liquid nitrogen”: SSCB freezes the stem cells obtained from the Sample using liquid nitrogen, maintains them in a frozen state and keeps them available to the Unborn Child according to the Contract. Packaging and cryopreservation steps will in any case take place only if (i) the results of the Test do not reveal any pathology and (ii) the process of separation and isolation of the stem cells can take place adequately according to SSCB. In case of the contrary, the Sample and/or the stem cells will be destroyed and the validity of the Contract terminated;
- “Management of documentation and delivery of certificates of cryopreservation”: in the case in which it has been possible to complete the process of packaging and cryopreservation as described in the above paragraph (iv), SSCB will release a Certificate attesting to the processing, testing and preservation of the stem cells taken from the Sample from the Unborn Child (hereinafter the “Certificate”), that will be delivered to the Client.
3. Responsibility of the Client
The Client confirms having entirely and correctly completed the Registration Form (see Attachment), Agreement for payment by instalments (as per client’s choice), Informed consent (see Attachments) and the Anamnestic surveys (see Attachments). The Client will furthermore undertake to promptly communicate the results of the mother’s tests according to the requirements of the Attachment Maternal screening request. In particular, the Client will indicate on the Registration Form (see Attachment) which qualified personnel has been chosen by the Client for the collection, preparation, labelling and delivery of the Sample before the delivery for transport by or for SSCB. The Client acknowledges and accepts being uniquely responsible for the choice and for the payment of such qualified personnel. SSCB and Nescens are not responsible in any way for the acts or omissions on the part of such personnel relative to the activity of collection, preparation, labelling and delivery of the Sample. The Client acknowledges and accepts that the occurrence of certain conditions could prevent the qualified personnel of his choice in collecting the Sample or a sufficient quantity of the Sample for the purpose of isolation, conservation or stem cells transplant or for any other use of them.
4. Duration of the Contract
The Contract will enter into force on the day of its acceptance by the Client, whether this occurs by signing a paper copy or through electronic acceptance on the Nescens website. Subject to the early termination according to Article 12 below, the Contract has a validity of 25 years from the date of the birth of the Unborn Child. Upon expiration of the contract, further preservation of the stem cells by SSCB will be subject to a new contract on the part of the Unborn Child or his/her legal representatives. In the absence of such written agreement, the provisions of Article 10 below will be applied regarding the recovery or destruction of the stem cells.
5. Conditions relative to the preservation
The Sample will be preserved with respect to the following conditions:
- The stem cells of the Unborn Child will be preserved by SSCB in the banks accredited by the health authorities;
- SSCB is entitled but not obligated to preserve the stem cells from the Sample in part at one location and in part at another location/locations;
- SSCB and Nescens are entitled to entrust the preservation to third parties;
- SSCB has the right to refuse the preservation of stem cells from the Sample of the Unborn Child in the case in which it is not possible to satisfy the necessary conditions for an adequate preservation, for example in case of positive results of Tests, or for technical or medical reasons, or in the case in which the Price agreed to in the Contract is not paid in full.
6. Payment of Price
The Client agrees to pay Nescens the Price indicated in Attachment 1 or 2 according to the services chosen (hereinafter the “Price”). In case of non-payment of the full price within 30 days of a reminder notice from Nescens, SSCB will have the right to destroy the stem cells from the Sample of the Unborn Child without further notice.
In the case where the packaging and cryopreservation phase described above in Article 2, paragraph (iv) cannot be complete, or if there are other circumstances that prevent the preservation of the stem cells of the Sample from the Unborn Child, Nescens will retain the sum corresponding to actual costs sustained by SSCB and Nescens and will refund the balance of the price paid to the Client.
7. Informed consent of the parents
The Client declares to have read and understood the provisions of the Attachments on diagnostic Tests and authorises SSCB to perform or to have performed these Tests on the Sample from the Unborn Child and on a blood sample from the mother of the Unborn Child. In the case in which even one of the Tests is positive, the results will be communicated to the parents and/or doctor indicated in the Attachment Registration Form. The Client acknowledges and accepts that the SSCB or the laboratories that perform the Tests on its behalf have the legal obligation to notify specific government agencies with the results of the Test and expressly authorises such notification by SSBC or the laboratories that perform the Tests in its name. In the case of a positive result of any Test, SSCB will have the right to stop packaging and preservation of the Sample and to destroy the Sample, with the consequent termination of this Contract.
8. Representations and warranties of the Client
The Client represents and warrants:
- to be the parents (father/mother) and to have the power of legal representation of the Unborn Child whose Sample is the subject of preservation;
- to have had the possibility to consult with their own attorney to review the Contract and relative Attachments;
- to have read and accepted all the provisions of the Contract and relative Attachments;
- to have decided personally and willingly to proceed with the collection of the Sample, subject it to the foreseen Tests, process and preserve the stem cells of the Sample;
- to have evaluated with a competent doctor that is not an employee or agent of SSCB or Nescens all the aspects related to the collection, transport, testing, processing and freezing of the Sample and related stem cells including possible future use of the latter, including risks connected to all the above mentioned aspects.
The Client acknowledges to have received complete information about the conditions, risks, limits and expenses of transport, processing, testing, freezing and preservation of the Sample described in the Contract and relative Attachments and declares to accept them unconditionally. The Client acknowledges that the Unborn Child could find himself/herself in a condition that requires the use of the stem cells of the Sample from the Unborn Child and that this latter could be in any case unusable. The Client assumes the risk deriving from the collection, transport, processing, testing, freezing and preservation of the Sample and of the stem cells contained in it.
9. Rights to the Sample and to the stem cells
- All rights to the Sample and the stem cells contained therein belong to the Unborn Child and can be exercised according to conditions established by law or by his/her legal representatives, until the Unborn Child reaches the age of majority or the required capacity. In the absence of written communication from the Unborn Child, the Client of other entitled persons stipulating the contrary, Nescens and SSCB are authorised without further checking to assume that the Client is the duly authorised legal representative of the Unborn. The Client will promptly inform Nescens and SSCB of any modification to the legal representation of the Unborn Child;
- Notwithstanding the above, all blood components other than stem cells (including for example red blood cells) remaining after processing the Sample that are not undergoing cryopreservation will be destroyed by SSCB with respect of current regulations;
- At the end of the contract, in the absence of a request to the contrary by the Client by the signing of a new contract or retrieval request, the Client renounces all rights to the stem cells and the Sample and SSCB will undertake to destroy them with respect of current regulations.
10. Retrieval of the Sample
For the duration of the contract, the stem cells preserved according to the Contract will be delivered free of charge to the Unborn Child or to the person designated by this latter or his/her legal representative, at the place/places of preservation, on workdays during office hours, upon presentation of a written request by the Unborn Child or his/her legal representative with 5 working days prior notice and using the Request Form furnished by SSCB. It should be noted that this delivery will take place in agreement with the transplant centre chosen by the Unborn Child or his/her legal representative according to technical procedures required at that transplant centre. All costs related to compliance with these technical procedures will be the responsibility of the Client, including possible Tests requested by the transplant centre before delivery. In the case in which delivery is requested for another place with respect to that/those where the Sample is preserved, all costs related to retrieval, transport and delivery of the stem cells at the destination will be billed as extra charges.
11. Disclaimer of warranty
The Client acknowledges that neither Nescens nor SSCB, their managers, administrators, auditors, shareholders, officers, agents or consultants have issued or declared any kind of warranty in connection with this Contract or the activities included in this contract and that this latter is expressly excluded from any warranty.
Without limiting the above, the Client acknowledges and accepts specifically the following disclaimers by Nescens and SSCB:
- Although stem cells preservation is encouraged and promoted by persons and experts in the field in view of potential medical technologies, Nescens and SSCB expressly decline any warranties with respect to therapeutic value or any other kind, present or future of the Sample of the stem cells contained therein;
- Nescens and SSCB expressly exclude any warranty that the Sample will be able to be collected, or that the volume of the Sample and/or the quantity of stem cells will be sufficient to process and preserve or for any other use;
- Nescens and SSCB expressly exclude any warranty regarding the work of qualified personnel hired by the Client to collect the Sample in conformance with Article 3 above;
- Nescens and SSCB exclude the provision of any type of service of a medical nature or medical consulting and the exercise of any function other than that expressly stated in this Contract;
- Nescens and SSCB expressly exclude any warranty that the Sample, the stem cells, the relative stem cells and/or parts of them are not damages during collection, transport, testing, processing, freezing and preservation in liquid nitrogen for the duration of this Contract.
The exceptions being for cases of wilful misconduct or gross negligence on the part of SSCB or Nescens. The extent of liability is however limited to direct costs incurred by the Client for the collection and preservation of the Sample and of the stem cells under this Contract, with the exclusion of indirect damages, loss of use or gain and up to a maximum amount of CHF 30,000.
12. Termination of the Contract
The contract can be terminated before the expiration date:
- By common agreement between Nescens and the Client;
- Unilaterally by Nescens and SSCB in the cases described in the aforementioned articles 2.(iv), 6 and 7;
- By the Client, the Unborn Child or his/her legal representative with a prior notice of 90 days. In that case, the Price paid will not be refunded.
Attachment 4 – page 5
13. Confidentiality and communications authorisation
Nescens and SSCB acknowledge and accept that the information disclosed to them by the Client under this Contract is confidential and sensitive and will undertake to handle this information in conformance with the Federal Law on Data Protection (LPD). The Client expressly authorises the communication of information regarding the Unborn Child related to services rendered under this Contract to the hospital, laboratory or doctor involved including the federal Clerk according to the LPD.
This Contract and all rights and obligations of Nescens or SSCB derived from it may be assigned by Nescens, in whole or in part to any person, organisation, partner or company that provide similar services, or that has the intention to provide them following such assignment. The rights of the Client and/or Unborn Child under this Contract are not in any case transferable to third parties.
These General Conditions can be modified at any time by Nescens. The Client has the duty to regularly obtain information on the contents and any amendments to the General Conditions, available at any time on the Nescens website.