These terms and conditions (the "Terms") govern your purchase of donor sperm, 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 Donor sperm may be purchased from open (contactable) donors or from non-contact donors.
1.1.2 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.
1.1.3 You agree not to perform or have others perform other tests of the donor sperm from ESB without ESB's prior written consent.
1.1.4 Procurement and processing of donor sperm is performed in appropriate facilities using appropriate methods to minimise bacterial or other contamination.
1.1.5 The donor has given (and at the time of purchase of the sperm has not withdrawn) written consent to the distribution of the donated sperm.
1.1.6 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 The donor is compensated with an amount per donation up to the equivalent of EUR 45 (in average) in accordance with applicable rules, irrespective of any actual expenses, loss of earnings and other costs or inconveniences incurred in connection with the donation.
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 so far as the donor has provided such information.
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.
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 (e.g. through a DNA test).
1.4.2 At the request of a donor child of an open donor and subject to verification of the donor child being a child of the donor in question, ESB may assist in facilitating contact between the donor child and the donor. However, ESB does not and cannot guarantee 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.
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) 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 (a "Clinic"). As a result, you must designate a Clinic 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 or container in your name. The amount payable for access to donor material will be charged to your credit card at the time when you are given access to the material.
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 before we ship the donor sperm against a refund of 75% of the purchase price.
2.3.2 When purchasing storage services – You may cancel your purchase of storage services within 14 days from the conclusion of the agreement. As we have already started providing the services, you must pay a proportionate amount equal to reasonable costs for the period during which we have provided the storage services to you. You may use the model cancellation form in Annex 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, units may be refunded at any time with 75% of the purchase price (if not already shipped). No payment for storage will be refunded in addition to this. Any amount owed by you will be set off against the refund.
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.
4.1 Unless otherwise agreed, ESB undertakes to ship (i.e. hand over to a carrier) ordered donor sperm within 10 days 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 It is your responsibility to notify ESB prior to the expiry of a storage. ESB will not terminate a storage without previously having tried to reach you using the contact information provided by you. If ESB is unable to reach you after the expiry of the storage, it will be cancelled.
4.3 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.
4.4 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.
4.5 ESB is not responsible for handling any customs clearance or import permits but will be pleased to assist with information.
4.6 ESB is responsible for the quality of the contents of the shipment until you/your Clinic has received it.
4.7 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
4.8 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.
4.9 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.
4.10 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.
4.11 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.
4.12 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.
4.13 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 law and 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 A donor is temporarily blocked when reaching 6 pregnancies for Danish patients within the first year of the first shipment to a Danish Clinic. If the sperm has been shipped to a Danish Clinic, the client can either wait until the block is lifted or contact ESB to change donors.
6.1.3 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.
6.1.4 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.
6.2 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 donors, other recipients of donor sperm from the donor, or other donor children of the donor and that, if, nevertheless, you initiate such a search, you must indemnify and hold harmless ESB from any loss incurred on that account.
ESB warrants that any confidential records on you or your donor children in ESB's possession will be kept strictly confidential and will not be revealed to any third party except as required by law or by relevant authorities.
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.