EXHIBIT 10.1
SERVICE 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
000 Xxxxxxx Xxx. Xxxx, Xxxxxxx, Xxx Xxxxxx 00000, and Cord Partners, Inc. (CPI)
(formerly Rainmakers International) a Florida corporation, with its principal
place of business at 00000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, XX 00000.
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 Xxxx Xxxx 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
store 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.
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.
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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.
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,
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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 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
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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 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.
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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 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.
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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.
15. NOTICES
Notices provided under this Agreement shall be in writing and shall be sent
by U.S. mail to CPI, 00000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, XX
00000, Attention: Xxxxxxx Xxxxxxxxx, CEO, and to Bergen Community Regional
Blood Center, 000 Xxxxxxx Xxxxxx Xxxx, X.X. Xxx 00, Xxxxxxx, Xxx Xxxxxx
00000-0000, Attention: Xxxxxxx Xxxxxx. 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.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
above under seal.
BERGEN COMMUNITY REGIONAL CORD PARTNERS INC.
BLOOD CENTER
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By: Xxxxxx X. Xxxx, Ph.D. By: Xxxxxxx Xxxxxxxxx
President and Chief Executive Officer Chief Executive Officer
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SCHEDULE I
CHARGE FOR SERVICES PER ARTICLE 4
Fee for all services necessary to place a client's
umbilical cord blood unit in liquid nitrogen per
Section 2.1.2. $ 577.50
Fee for storage of each umbilical cord blood unit:
First six months
(to be billed six months after collection) $ 25.00
Each anniversary date thereafter $ 50.00
NOTES
1) Invoices will be sent as of the last day of each month and will be due and
payable within 30 days from invoice date. A discount of 2% will be allowed
for all invoices paid within 10 days of the invoice date. A volume discount
of an additional $28.13 per unit will be given for each unit invoiced in
excess of 100 units per unit.
2) The fees listed above may be adjusted by CBS by giving 60 days written notice
to CPI.
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