These terms and conditions (the "Terms") govern your purchase of donor sperm, and/or additional products and services including, but not limited to, genetic products, storage services and/or access to donor profile material from European Sperm Bank ApS, Struenseegade 9, 2nd floor, 2200 Copenhagen N, Denmark, company reg. no. 27506372, phone no.: +45 38343600, email: email@example.com, ("ESB"). By purchasing products or services from ESB, you confirm that you are of legal age.
PLEASE READ THESE TERMS CAREFULLY BEFORE ORDERING DONOR SPERM. THEY INCLUDE IMPORTANT INFORMATION ABOUT YOUR USE OF THE DONOR SPERM, INCLUDING INFORMATION OF MEDICAL RELEVANCE.
1 Donor enrolment
1.1 Donor selection and testing
1.1.1 Donors are between 18 and 45 years old and represent the general diversity in society (e.g. different religions, ethnicities, educations, jobs and sexual orientations).
1.1.2 Donor sperm may be purchased from Open or Non-contact donors.
1.1.3 Donors providing sperm to ESB are selected and screened in accordance with applicable legislation and ESB's internal procedures. The selection criteria comprise a wide range of aspects in terms of age, risk behaviour, medical/family history, physical examination and testing of the donor candidate for several hereditary and infectious diseases.
1.1.4 You agree not to perform or have others perform other tests of the donor sperm from ESB without ESB's prior written consent.
1.1.5 Procurement and processing of donor sperm is performed in appropriate facilities using appropriate methods to minimise bacterial or other contamination.
1.1.6 The donor has given (and at the time of purchase of the sperm has not withdrawn) written consent to the distribution of the donated sperm.
1.1.7 The sperm count and motility are determined in accordance with the WHO Standard of Progressive Motility (PM). Sperm counts may vary by up to 20% as a result of human and technical factors such as the individual counting, the laboratory tools and the duration and temperature of thawing.
1.2 Donor compensation
1.2.1 In accordance with the voluntary and unpaid donation principle provided by the Council of Europe Convention on Human Rights and Biomedicine and the European Union Tissue and Cells Directives and implemented into current legislation, donors will not be paid for donating sperm. However, ESB will reimburse donors for their costs relating to the donation, typically by way of a fixed amount based on an estimate, in accordance with current rules.
1.3 Donor information
1.3.1 When purchasing sperm via the ESB website, ESB will make basic information (race/ethnicity, eye colour, hair colour, height, weight, education and blood type) about the donors available on the website or in another way. Additional donor information (such as audio interviews, baby photos, personality tests or other tests, extended profile information and staff impression) which may include essential information (e.g. about the donor's health) is available in the extended the donor has provided such information. Upon purchase you acknowledge that you are responsible for having reviewed the information related to your chosen donor(s) and have accept the donor information and its completion as is.
1.3.2 The information provided by ESB about the donor is – to the best of ESB's knowledge – true and accurate, but ESB does not give any warranties in this respect and disclaims any liability for any incorrect or inaccurate information. All donor information relies on self-reporting.
1.4 Open donor programme
1.4.1 ESB will disclose the identity of an open donor to clinics, authorities and/or donor children only to the extent required by mandatory law in the receiving country and, where relevant, subject to verification of the donor child being a child of the donor in question.
1.4.2 ESB does not and cannot warrant that the open donor will eventually accept any contact with the donor child.
1.5 Legal status of the donor
1.5.1 You acknowledge that the donor is not considered to be the legal parent of any of the donor children and cannot be held liable for any claims whatsoever on account of the donor's donation of sperm.
1.5.2 You undertake to assume parental responsibility and to take care of and consider the child, which may be the result of treatment with donor sperm purchased here, as your own legal child.
1.6 Photo matching
1.6.1 ESB offers a free service whereby an uploaded photo is compared to an adult photo of the donor. The photo match is based on Amazon Recognition software which maps certain similarities between the two faces based on the quality and angling of the photo you have uploaded. The software does not distinguish between skin colour, eye colour, or hair colour. The result of the photo match is described as a resemblance score where five stars indicates a facial likeness of 41% shared features or higher. In such cases, the human eye will see a clear lookalike between the two people in question, ESB does not and cannot warrant that your future child resembles the person in the image you uploaded.
1.7 Genetic products
1.7.1 ESB offers genetic matching products that aim to limit the risk of conceiving a child with a genetically inherited disease . These products include, but is not limited to, the products ESB has named “Known Carrier Match” and “GeneXmatch”, both of which are used to compare one or several genes of the prospective mother with her chosen sperm donor. If the woman and her chosen donor carry mutations in the same gene(s), the woman and donor are deemed a “No-Match”. ESB reserves the right to refuse to distribute donor sperm from the chosen donor to the recipient in case of a “No-Match”.
2 Ordering, payment, right of cancellation and period of commitment
2.1.1 Products and services may be ordered and paid online using a credit card accepted by ESB or via email. Alternatively, payment for donor sperm may be made by phone (+45 38343600), or ESB may issue an invoice which can be paid through bank transfer or by phone. Donor sperm for which an invoice is issued will not be shipped (or, if applicable, transferred to your personal depot or container*see 188.8.131.52) or reserved until ESB has received your payment. ESB's order confirmations are sent by email.
2.1.2 Designation of tissue establishment, fertility clinic or licensed healthcare professional as recipient.
Legislation requires that ESB only distribute donor sperm to approved tissue establishments, fertility clinics, hospital units or licensed healthcare professionals. As a result, you must designate one of the above to act as a representative on your behalf in connection with receiving the donor sperm. ESB may refuse an order if ESB has not entered into an agreement with the designated recipient.
2.2.1 If payment for donor sperm and/or storage services is made using a credit card, the payable amount will be charged to your credit card at the time when ESB ships or relocates the donor sperm from ESB's main depot to a personal depot in your name.
2.3 Right of cancellation
2.3.1 When purchasing donor sperm – Due to the nature of the product, you generally do not have a right of cancellation in respect of donor sperm as the product and the shipment process are not suitable for return of the product. However, we do accept cancellation of your order for donor sperm within 14 days after payment provided that your order has not been shipped.
2.3.2 When purchasing storage services – You may cancel your purchase of storage services within 14 days from the conclusion of the agreement. You may use the model cancellation form in Schedule A to these Terms. If you have exercised your right of cancellation, we will refund the amount owed to you no later than 14 days from the date on which we have received notice of your decision to cancel the purchase.
After the cancellation period, fully paid units may be refunded as specified below:
Cancelation within 14 days: 100% of purchase price
Repurchase within 14 days to 36 months: 75% of purchase price
Repurchase within 36 to 48 months: 50% of purchase price
Repurchase within 48 to 60 months: 25% of purchase price
After 60 months no repurchase.
2.3.3 The cost of storage is a separate service and paid separately. No payment for performed storage will be refunded in connection to ESB repurchasing the straws as described in 2.3.2.
2.4 Storage of straws at ESB
Storage of your purchased straws at ESB can be bought as a separate product. You pay for a specified length of storage as stated on the ESB website. When the selected duration of your storage expires you can choose to prolong the duration. It is your obligation to inform ESB that you wish to prolong your storage and your obligation to secure ESB has your correct contact details. If you do not contact ESB, nor respond to a contact from ESB, your straws in the storage will be removed and you will no longer have ownership, or disposal rights, of the purchased straws. There are no reimbursement rights for such straws nor corresponding pregnancy slot, if applicable.
3 Description of the product
3.1 Donor sperm may be delivered in clear 0.5ml CBS High Security Straws (CryoBioSystem), made of ionomeric resin and specifically manufactured for safe cryogenic storage of biological products in liquid nitrogen. Donor sperm may also be delivered in 1ml cryovials (Greiner Bio-One).
3.2 One straw/vial contains 0.5ml (ICI vials contain 1ml) donor sperm cryopreserved in phosphate buffered glycerol, composed of buffer (HEPES), 0.4% HAS and glycerol. The shelf life is indefinite when stored at temperatures of < -170˚C.
3.3 Vials/straws are labelled with:
- donor number (4-5 digits)
- lot number (date of collection: DD-MMM-YYYY)
- name of tissue establishment/sperm bank
- IUI straws and vials are marked with a green cotton plug (inside the straw) or a green screw cap, respectively.
- ICI straws and vials has a white cotton plug (inside the straw) or a white screw cap, respectively.
4 Shipment and delivery
4.1 Unless otherwise agreed, ESB undertakes to ship (i.e. hand over to a carrier) ordered donor sperm within 10 days (see 4.1.1) from ESB's order confirmation. At your choice, ESB may store purchased donor sperm for up to 30 days from the purchase date at no additional cost. After 30 days from the purchase date, the donor sperm passes to storage services and will be payable according to the prices for storage use applicable at any time. These prices are available on ESB's website. Payment for storage is not refunded.
4.2 Damages will not be paid in respect of circumstances that occur during a storage period due to unforeseen incidents (force majeure) and that may affect the stored donor sperm.
4.3 Donor sperm will be delivered to the Clinic designated by you (DAP/Delivered At Place according to Incoterms 2010). You accept that the Clinic will act as your representative in respect of the examination of the delivered donor sperm, return of shipping containers, etc.
4.4 ESB is not responsible for handling any customs clearance or import permits but will be pleased to assist with information.
4.5 ESB is responsible for the quality of the contents of the shipment until you/your Clinic has received it.
4.6 All shipments will include a packing list containing information about the following:
- Overview of order
- Instructions for and restrictions of use
- Donor profile, test results and other specifications
- Identification of the responsible person and/or medical director supervising the release of the units
4.7 If the delivered quantity (number of units) is less than the ordered quantity, ESB may choose to either (i) deliver the shortfall quantity within a reasonable time or (ii) reduce the payable price in proportion to the shortfall quantity.
4.8 If the delivered quantity (number of units) exceeds the ordered quantity, you or your Clinic may either (i) return the excess products or (ii) keep the excess products against payment of the applicable price for such products.
4.9 If the delivery of products is materially delayed and this is due to circumstances for which ESB is responsible, you/your Clinic may elect to cancel the order with respect to the delayed products subject to written notice to ESB. If you/your Clinic suspects that the units may be thawed, you/your Clinic must contact ESB prior to returning the products to ensure that they are returned in proper condition.
4.10 All cryotanks used are validated annually according to the recommendations of the manufacturer. Cryotanks are fully charged and visually inspected prior to shipment and will maintain a chamber environment of approx. -190°C during the hold time.
4.11 Nitrogen containers/shipping boxes remain the property of ESB and must be returned to ESB without undue delay and no later than 5 days from receipt of the shipment.
4.12 All shipments are handled by either ESB or accredited international courier delivery services companies offering worldwide high-quality transport and logistics solutions.
5.1 ESB undertakes to deliver donor sperm processed in accordance with applicable Danish, UK and German law (depending on donor nationality) – as well as EU directives relating to donor sperm for human application.
5.2 To the fullest permitted extent, ESB disclaims any other warranties, whether express or implied, including as regards quality, merchantability or fitness for a particular purpose. Without limitation to the above, ESB does not warrant that treatment with the donor sperm will result in a viable pregnancy, nor that a donor child resulting from such treatment will possess any specific characteristics.
5.3 You further explicitly acknowledge that, regardless of ESB's testing of the donor sperm (as set out in Section 1.1.2), the risk of transmitting a genetic or hereditary disease, disorder or birth defect through treatment with the donor sperm cannot be excluded, and ESB disclaims any warranty or liability in this respect. The provisions on defective goods of the Danish Sale of Goods Act may apply.
5.4 Upon receipt of a shipment, you/your Clinic must examine the products for any non-conformities. If you/your Clinic have/has or should have discovered a non-conformity for which ESB is responsible, notify/notifies ESB accordingly and return(s) the non-conforming products, ESB will within a reasonable time either (i) replace the non-conforming products or (ii) refund the price paid for the non-conforming products. You acknowledge that this could have an impact on your treatment schedule.
6 Regulatory requirements
6.1 Pregnancy limits
6.1.1 In order to allow ESB to keep track of pregnancies and not to exceed any national quotas regarding the number of children/families per donor, you must report any pregnancies or abortions in connection with treatments using donor sperm supplied by ESB to the Clinic treating you.
6.1.2 You acknowledge that, due to the limitations following from national quota restrictions, donor sperm from a specific donor may only be purchased in combination with Pregnancy Slots. This means that you have the right to conceive either as many children (a family) with a donor as you want, or one child with a donor.
6.1.3 If the Clinic treating you documents that treatment with donor sperm purchased under a Pregnancy Slot has not resulted in a pregnancy and that all purchased donor sperm from the donor in question has been used, you may, at your option, claim either (i) a refund of the price paid for the Pregnancy Slot (but not for the purchased donor sperm) or (ii) replacement of the Pregnancy Slot with a Pregnancy Slot in relation to another donor (delivery of donor sperm from such donor is subject to payment), provided that the Clinic confirms the above conditions.
6.1.4 If in accordance with national law and in order to adhere to the national quotas and keeping track of usage of a donor, embryo donation can only occur following approval from ESB - and for countries with pregnancy slots, if you have purchased such a slot.
6.2 Adverse events
6.2.1 You must immediately notify the Clinic treating you of any suspected serious adverse events (e.g. birth defects or potentially hereditary diseases) which may relate to the quality or safety of donor sperm supplied by ESB. In this connection, ESB may contact you with follow-up questions.
6.2.2 ESB will notify you of adverse events relating to donor sperm purchased by you only if the donor sperm is stored by ESB and (i) you have not yet designated a Clinic or if (ii) the donor is permanently blocked. In all other cases, ESB will notify the Clinic designated by you, and the Clinic will remain fully responsible for notifying you and/or referring you to genetic testing or medical consultation, etc., if relevant.
6.2.3 You are responsible for notifying ESB of any new relevant contact information to allow ESB to urgently contact you in the event of adverse events.
6.2.4 The Clinic treating you is responsible for ensuring that you are not treated with donor sperm from a quarantined donor and for consulting ESB's list of quarantined or permanently blocked donors prior to any treatment. Your Clinic may, on your behalf, return donor sperm from a permanently blocked donor in an unthawed and undamaged condition to ESB who will then replace it by units from another donor (storage services are also covered by this). The new donor sperm will be delivered free of charge in connection with the next new booking of donor sperm by your Clinic. You are not entitled to claim any refund for donor sperm from a quarantined donor.
6.2.5 Under Danish legislation, donor sperm from a permanently blocked donor can only be delivered if it is to be used for a sibling to a donor child already conceived using the donor in question. In such a case, you/your Clinic must give a statement specifying that you are aware of and accept the potential consequences of using the donor. It is only possible to continue using a permanently blocked donor outside Denmark in accordance with the directions of the national competent authority. ESB will demand a statement from you/your Clinic regarding this.
6.2.6 You acknowledge that, if a donor is quarantined or the national pregnancy quota for the donor is reached, donor sperm from such donor must not be used and ESB is obligated to suspend any shipments.
6.3.1 You acknowledge that information about the donor disclosed by ESB is confidential and may include sensitive personal data about the donor and thus must not be revealed to any third party in any manner, except to the extent required by law or by relevant national authorities. Regardless of the above, you may disclose information about the donor to the Clinic treating you and to donor children of the donor in question to the extent required in the circumstances. Any other disclosure or publication of information about the donor, whether orally, through social media or otherwise, may compromise the protection of the donor's personal data and be detrimental to ESB's business and may result in sanctions under civil or criminal law, including claims for contractual or non-contractual damages or, if the circumstances so warrant, imprisonment.
6.3.2 You understand and accept that ESB is required to safeguard the anonymity of non-contact donors indefinitely.
6.3.3 You warrant that you will not make any attempts to search for or trace the donor, including specific initiatives that may directly or indirectly indicate that you are looking for the donor. If, nevertheless, you initiate such a search, you must indemnify and hold harmless ESB and/or the donor from any direct or indirect loss or distress and inconvenience.
6.3.4 With regards to the above, any search for recipients of donor sperm from the donor, or other donor children of the donor is subject to your own responsibility and discretion. You acknowledge that your search for other recipients or donor children can inflict distress and inconvenience on those parties, for which you can be held responsible.
6.4 Processing of personal data and traceability
6.4.2 If needed for the assessment of an adverse reaction related to you or your donor child, you agree to ESB contacting you to obtain any relevant information, e.g. by requesting access to your and the child's medical files or blood samples for diagnostic purposes.
6.4.3 In accordance with national regulatory requirements, your personal data will be handled confidentially by ESB and filed under safe conditions for at least thirty (30) years for the purpose of traceability. If required, your personal data may be shared with your Clinic, physician and test laboratory.
6.4.4 In the event of discontinuation of all ESB activities, any documentation (including your personal data) will be transferred to another authorised tissue establishment to maintain traceability in accordance with Danish law.
7 Limitation of liability and indemnification
7.1 ESB expressly disclaims any liability and responsibility for the quality and other characteristics of, and the results of treatment with or other use of, donor sperm supplied by ESB, including, but not limited to, unwanted pregnancy, multiple pregnancies, spontaneous abortion, ectopic (tubal) pregnancy, stillbirth, genetic or hereditary diseases, disorders or birth defects.
7.2 ESB disclaims any liability for indirect damages and costs, including, but not limited to, expenses for medicine, transport and travel expenses, accommodation, loss of profit, sales or income, loss of time and clientele, or ensuing costs or other indirect losses or expenses.
8 Safekeeping of the agreement
You will receive a copy of these Terms together with the order confirmation. We keep agreements on file for as long as our contractual obligations subsist or as required by legislation. We recommend that you also keep the agreement on file as it will not be available on www.europeanspermbank.com.
9 Governing law and jurisdiction
9.1 Unless otherwise provided by mandatory statutory rules, agreements and orders made under these Terms are governed by and must be interpreted in accordance with Danish law, and any dispute which may arise out of such agreements and orders, including in relation to the existence or validity thereof, will be brought before a competent Danish court.
10 Contact information and complaints
10.1 If you have any questions or complaints, please contact ESB directly at firstname.lastname@example.org.
You are free to bring any dispute arising out of your purchase to the Danish Dispute Resolution Centre (Center for Klageløsning), Nævnenes Hus, Toldboden 2, DK-8800 Viborg. You can lodge complaints to the Danish Dispute Resolution Centre through https://minsag.forbrug.dk/FKVWeb/CheckComplaintStart.aspx.
You are also free to bring any dispute arising out of your purchase to ODReurope providing online mediation in respect of consumer disputes (http://www.odreurope.com/services/e-mediation/online-mediation).
SCHEDULE A – MODEL CANCELLATION FORM
To European Sperm Bank ApS, Struenseegade 9, 2nd floor, 2200 Copenhagen N, Denmark, company reg. no. 27506372, phone no.: +45 38343600, email: email@example.com, ("ESB").
I/We (*) hereby give notice of my/our (*) wish to cancel my/our (*) purchase of the following items (*)/delivery of the following services (*),
ordered on (*)/received on (*),
Name(s) of consumer(s),
Address(es) of consumer(s),
Signature(s) of consumer(s) (only if this form is filled in on paper),
(*) Cross out the items that are not relevant.