Service Agreement - Bergen Community Regional Blood Center and Cord Partners Inc.
AGREEMENT
This Service Agreement ("Agreement") is made as of the 15th day of
February 2004, by and between BERGEN COMMUNITY REGIONAL BLOOD CENTER ("CBS"), a
New Jersey not-for-profit corporation with its principal place of business at
970 Linwood Ave. West, Paramus, New Jersey 07652, and Cord Partners, Inc. (CPI)
(formerly Rainmakers International) a Florida corporation, with its principal
place of business at 10940 Wilshire Boulevard, 6th Floor, Los Angeles, CA 90024.
WHEREAS, CPI is in the business of soliciting customers in the market
for Umbilical Cord Blood ("Cord Blood"), processing and storage services;
WHEREAS, CPI seeks to contract with an entity to process and store
Umbilical Cord Blood units and provide other services relative to ensuring the
processing of such Cord Blood; and
WHEREAS, CBS operates The Elie Katz Umbilical Cord Blood Program
operates and is able to provide the services to CPI as listed in Paragraph 2.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereto do agree as follows:
Section 2. Obligations of CBS
2.1 Services Provided. CBS shall provide CPI with the following
"Services"
2.1.1 CBS shall test all Cord Blood received from CPI to
determine whether it is appropriate for storage. CBS
shall process and sto-re the Cord Blood under
prevailing professional industry standards in
accordance with all applicable federal, state and
local statutes, rules, association requirements, and
regulations governing the processing and storage of
Cord Blood (collectively "Applicable Law"). If CBS
determines that any cord blood received from CPI is
not appropriate for storage, it will promptly return
it to CPI at CPI's expense.
2.1.2 CBS shall store the processed Cord Blood in
computerized, temperature monitored liquid nitrogen
vapor tanks or other suitable storage units until the
Cord Blood is disposed of as provided in Section 6 of
this Agreement.
2.1.3 CBS shall assist CPI in formulating a Cord Blood
extraction kit ("Kits"), which will comply with CBS's
current standard operating procedures. This will
include, but not be limited to, blood bags and other
necessary paperwork and materials required to collect
the Cord Blood.
2.1.4 CBS shall provide CPI with instructions regarding the
extraction and transportation of the Cord Blood.
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2.1.5 The services to be provided by CBS pursuant to the
terms of this Agreement shall be furnished in
accordance with the prevailing standards applicable
to storing Cord Blood, as well as Applicable Law.
Section 3. Obligations of CPI.
3.1 Duties of CPI. The duties and obligations of CPI, shall
include:
3.1.1 CPI shall be responsible for collecting the cord
blood in accordance with prevailing professional
industry standards and applicable law.
3.1.2 CPI shall ensure that all Cord Blood transported to
CBS is accompanied by documentation identifying the
owner of the Cord Blood, the quantity of blood
collected, evidence of the Cord Blood, consent to
process and store the Cord Blood, and any other
information reasonably requested by CBS to facilitate
the processing and storing of the Cord Blood.
3.1.3 CPI shall maintain current information regarding Cord
Blood owners. All Information maintained by CPI shall
be updated annually including, but not to be limited
to, the current address and telephone number of Cord
Blood owners. The information of Cord Blood owners as
described hereinabove is hereby deemed the
confidential property of CPI and is not to be
disclosed or sold to a third party, all as more fully
set forth in Section 10 hereof.
3.1.4 CPI acknowledges that (a) CPI bears the sole
responsibility for collecting and transporting the
Cord Blood to CBS; (b) CPI bears the sole
responsibility of ensuring that all payments due
under this Agreement, including the Annual Storage
Fees, as defined in Section 4, are paid; (c) CPI
bears the sole responsibility of furnishing CBS with
the information required to dispose of the Cord
Blood, as set forth in Section 6 of this Agreement;
and (d) all clients of CPI have the right to transfer
the Cord Blood to another party for storage upon
written notice to CBS by CPI or by the client to CBS
in the event that CPI is unavailable or such client
has terminated CPI 's service.
3.1.5 CPI shall adhere to the professional standards
associated with the marketing, sales, education and
transportation of the Cord Blood.
4. Compensation. CPI shall compensate CBS for the services performed
herein at the rate indicated in Schedule 1. The fee shall cover all
services, materials and activities necessary to place a client's sample
into liquid nitrogen storage according to Section 2.1.2 above. The
Processing Fee shall include but not be limited to, administration
fees, laboratory fees, enrollment fees, processing fees, cost of
maternal and Cord Blood testing. In addition to the processing fee, CPI
will pay to CBS storage fees as indicated in Schedule 1.
A one time fee covering 20 years of storage amounting to $750, can be
paid by CPI with the delivery of the cord blood unit to CBS.
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In the event that CPI does not make payment of the fees as herein
provided, CBS retains all rights to the processed Cord Blood that is
not paid for. CPI may cure this default as provided in section 5.2.1 of
this Agreement.
5. Term and Termination.
5.1 Term. This Agreement commenced on June 30, 2002, and will
continue for a period of ten (10) years subject to earlier
termination as hereinafter provided. If no notice is given to
terminate this Agreement within the last 120 days of its
term(s) the Agreement, and any renewals thereafter, shall be
renewed on the anniversary date of this Agreement and shall
renew on an annual basis.
5.2 Termination For Cause.
5.2.1 Upon a party breaching a material term or obligation
of this Agreement, the non-breaching party may
terminate this Agreement; provided that such breach
remains uncured for more than thirty (30) days after
the breaching party has received written notice of
the breach from the non-breaching party.
5.2.2 At the election of the other party, this Agreement
shall terminate thirty (30) days after the date upon
which a party makes a general assignment for the
benefit of creditors, files a voluntary petition or
commences a proceeding for any relief under any
bankruptcy or insolvency laws or any laws relating to
the relief of debtors, readjustment or indebtedness,
reorganization, composition or extension.
5.2.3 At the election of the other party, if an involuntary
petition or any proceeding is commenced against a
party hereto for any relief under any bankruptcy or
insolvency laws, or any laws relating to the
readjustment of indebtedness, reorganization,
composition or extension, or the appointment of a
receiver of any part of the property of such Party or
levy on or attachment of any of the property of such
Party, and such petition or proceeding is not
dismissed within ninety (90) days after the date on
which it is filed or commenced ("Dismissal Period"),
this Agreement may be terminated within thirty (30)
days after the end of the Dismissal Period.
5.3 Termination Other Than For Cause The agreement may be
terminated by either party, at any time, by either party
giving 90 days written notice to the other party.
6. Disposition of the Cord Blood.
6.1 Release for Transplant or Directed Use by an Individual Client
During the Term of the Agreement. During the term of this
Agreement, CBS shall release the Cord Blood stored at its
facility upon receipt of a written request by CPI, which shall
include documentation evidencing the Cord Blood owner's
consent to release or dispose of the Cord Blood from storage.
Such a request shall include without limitation the necessary
information regarding the preparation, destination, and
required timing of the shipment. CBS shall no longer be
responsible for the Cord Blood once it is released to a
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courier or delivery service. CPI shall bear the cost of $50
per sample associated with the preparation (including but not
limited to labor, supplies and other usual and customary
procedures and equipment, associated with the release of such
samples of the cord blood). CPI shall pay any delivery costs
from CBS to the destination.
6.2 Bulk Release of Multiple Specimens or Bulk Release of
Specimens upon Termination of the Agreement. Within 60 days of
the termination of this Agreement, as set forth in the
provisions of Section 5, CPI shall provide CBS with adequate
instructions regarding the disposition of multiple units of
the Cord Blood stored by CBS pursuant to the terms of this
Agreement. CPI shall provide CBS with written instructions
regarding the preparation, destination, and required timing of
the shipment of all Cord Blood stored by CBS pursuant to this
Agreement. CBS shall no longer be responsible for the Cord
Blood once it is released to a courier or delivery service.
CBS shall provide all preparation, services, equipment and
materials customary for the transport of bulk cord blood
specimens. CPI, shall bear the costs associated with the Bulk
Release of Cord Blood which in any event shall not exceed
$1000 for every 200 units released. CPI shall bear the costs
of any transportation of bulk units from CBS to their final
destination.
6.3 Failure to Give Instructions. If CPI fails to give CBS the
instructions required in Section 6.2, CBS shall have the right
to dispose of the stored Cord Blood in any manner, in the sole
discretion of CBS, without liability to CPI or CBS's clients.
Alternatively, CBS may contact individual owners of the cord
blood directly and make any arrangements it deems appropriate
to continue to store such cord blood. The failure of CBI to
give such instructions shall be a material breach of this
Agreement
7. Responsibility.
CPI will implement precautions and procedures to ensure that every
client's Cord Blood is collected, handled and shipped in a proper and
expedient manner in accordance with applicable law . Upon receipt, CBS
will process and store such Cord Blood at CBS's laboratory.
CBS will do everything reasonable and with proper laboratory practices
to ensure the safety and long-term cryo preservation of every client's
umbilical cord blood. When the umbilical cord blood has been processed
and stored at CBS's laboratory, CBS will be solely responsible to CPI's
clients with respect to the storage of all Cord Blood pursuant to the
terms hereof. After processing and storage of such Cord Blood, CPI will
be responsible for billing its clients only.
8. Assignability.
Each party shall have the right to assign this Agreement with the
consent of the other party, such consent not to be unreasonably
withheld.
9. Confidentiality and Non-Solicitation.
9.1 Both Parties acknowledge that all information of or about the
other, including all information relating to any technology,
products, process or intellectual property of each party
(including but not limited to, owned or licensed intellectual
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property, rights, data, know-how, samples, technical and
non-technical materials and specifications) as well as any
business plan, financial information or other confidential
information of each party will not be disclosed by any party
without the prior written consent of the other. The proceeding
does not apply to such information, which is in the public
domain.
9.2 CBS acknowledges that all information pertaining to CPI's
clients and client base is confidential and proprietary in
nature. CBS shall maintain the confidentiality of all such
information as required by Applicable Law, and shall not
disclose such information without the prior written consent of
RMI except as may be required by law or legal process. Except
as provided in Section 6.3 above, CBS shall not contact or
solicit any clients of CPI throughout the term of this
Agreement without the prior written consent of CPI.
9.3 Both parties agree not to disclose or publicize the existence
of or any portion of this agreement unless given permission in
writing by the other party.
10. Trademarks.
10.1 Both parties are the owners of a certain trademarks that may
appear upon or in connection with the Kits and certain labels,
packages, containers and other materials.
10.2 Other than as provided above in Paragraph 10.1, nothing in
this Agreement shall be deemed to transfer to or confer upon
the other party any right to use the name of the other party
or any of its subsidiaries or any trademark or trade name
owned by the other party or by any of its subsidiaries unless
consent is given to do so.
11. Insurance.
11.1 CBS and CPI shall respectively at its sole cost and expense,
procure and maintain commercial general liability insurance in
their respective favor, in amounts of not less than $1,000,000
per incident and $3,000,000 annual aggregate and name the
counter party hereto herewith as additional insured. Such
commercial general liability insurance coverage required under
this Section 11 shall not be construed to create a limit of
liability of the parties under this Agreement. Upon signing of
this Agreement, each party shall provide to the other
certificates of insurance showing compliance with the
foregoing requirements.
11.2 The insurance required herein shall provide that the counter
party designated as the additional insured thereunder pursuant
to Section 11.1 above shall receive as least fifteen (15) days
written notice prior to the cancellation, non-renewal or
material change in the insurance policies to be maintained
hereunder in the event suitable replacement insurance is not
provided within such fifteen (15) days, the party receiving
such notice shall have the right to terminate this Agreement
effective at the end of such fifteen (15) day period
11.3 All insurance maintained by the parties pursuant to the terms
hereof shall be maintained with carriers having a commercially
reasonable insurance rating. All insurance required
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hereunder shall be maintained throughout the term of this
Agreement, or any extension hereof, plus an additional period
of no less than ten (10) years.
11.4 This Section 11 shall survive expiration or termination of
this Agreement for any reason.
13. FORCE MAJEURE
Not withstanding anything in this Agreement to the contrary, neither
party shall be liable to the other for any loss or damage of any kind
arising out of delay or failure in performance of any obligation
thereunder beyond that party's reasonable control, including but not
limited to any delay or failure caused by failure, unavailable or
shortage of power, materials or supplies, flood, fire, other abnormally
inclement weather, other act of God, act of war or terror, riot, act or
omission of government or governmental agency (including FDA withdrawal
and recall recommendations), strike, work stoppage, other labor unrest,
other act or omission in the process of manufacture, production or
supply under the control of third parties, or any other emergency
("Force Majeure"). If either party delays or fails to perform in whole
or part its obligations hereunder for reasons arising from Force
Majeure, and such delay or failure to perform extends for a period of
sixty (60) days or more, then the non-delaying party to the other,
effective immediately upon receipt of by the delaying party of written
notice of termination from the non-delaying party, provided that any
fees and charges then due and owing shall remain due and payable in
accordance with the terms hereof.
14. INDEMNIFICATION
14.1.1 CPI agrees to indemnify, defend and hold CBS, its
trustees, officers, employees, and agents harmless
from and against any and all liability, expense
(including court costs and reasonable attorney's
fees) arising from claims for bodily injury, death or
property damage which CBS may incur, suffer, become
liable for, or which may be asserted or claimed
against CBS as a result of the acts, errors or
omissions of CPI, its directors, officers, employees,
contractors, subcontractors, agents, donors,
customers or clients as a result of or while
performing its obligations hereunder or arising
otherwise from the use, or handling of the cord
Blood.
However, CPI shall not be responsible to CBS for any
liability to the extent it is caused by any willful
misconduct or gross negligence of CBS, its Trustees,
officers, employees or agents.
14.1.2 CBS agrees to indemnify, defend and hold CPI, its
trustees, officers, employees, and agents harmless
from and against any and all liability, expense
(including court costs and reasonable attorney's fee)
arising from claims for bodily injury, death or
property damage which CPI may incur, suffer, become
liable for, or which may be asserted or claimed
against CPI as a result of the acts, errors or
omissions of CBS, its directors, officers, employees,
contractors, subcontractors, agents, donors,
customers or clients as a result of or while
performing its obligations hereunder. However, CBS
shall not be responsible to CPI for any liability to
the extent it is caused by willful misconduct or
gross negligence CPI its trustees, officers,
employees or agents.
14.2 The provisions of this Section 14 shall survive the
termination of this Agreement.
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15. NOTICES
Notices provided under this Agreement shall be in writing and shall be
sent by U.S. mail to CPI, 10940 Wilshire Boulevard, 6th Floor, Los
Angeles, CA 90024, Attention: Matthew Schissler, CEO, and to Bergen
Community Regional Blood Center, 970 Linwood Avenue West, P.O. Box 39,
Paramus, New Jersey 07653-0039, Attention: Stanley Siegel. Each party
by notice to the other party may change its address for the delivery of
notice hereunder.
16. Miscellaneous.
This Agreement represents the entire Agreement between the parties
concerning the subject matter hereof and there are not understandings,
agreements, or representations other than as herein set forth. This
Agreement shall be binding upon the parties and their respective heirs,
spouses, executors, administrators, agents, representatives, successors
and assigns, shareholders, directors, officers and employees. Headings
shall not be used in the construction of this Agreement. The Agreement
shall be construed in Accordance with the laws of the state of New
Jersey (without application of its principles of conflicts of laws). If
any provision of this Agreement is deemed unenforceable, the remaining
provisions hereof shall nevertheless be fully enforceable in accordance
with their terms.
For the purposes of this Agreement and all services to be provided
hereunder, each party shall be, and shall be deemed to be, an
independent contractor and not an agent, partner, joint venture or
employee of the other party. Neither party shall have authority to make
any statements, representations or commitments of any kind, or to take
any action which shall be binding on the other party, except as may be
explicitly provided for herein or authorized in writing.
Failure of either party to enforce a right under this Agreement shall
not act as a waiver of that right or the ability to later assert that
right relative to the particular situation involved or to terminate
this Agreement arising out of any subsequent default or breach. Any
waiver or modification of any provision hereof must be in writing and
duly executed by authorized representatives of both parties. IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of the date
above under seal.
BERGEN COMMUNITY REGIONAL CORD PARTNERS INC.
BLOOD CENTER
Dennis M. Todd Matthew Schissler
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By: Dennis M. Todd, Ph.D. By: Matthew Schissler
President and Chief Executive Officer Chief Executive Officer