1.1 SPERMCOMET LTD confirms that:-
1.1.1 its Services will be provided with reasonable skill and care and in accordance with its usual quality assurance standards; and
1.1.2 the people providing the Services will be suitably skilled and trained.
1.2 The Client acknowledges that, except as expressly provided in this Agreement, SPERMCOMET LTD gives no warranties or representations to the Client (whether express or implied) in respect of the Services. In particular, whilst every effort is made to achieve the turn-around times quoted by SPERMCOMET LTD for the conduct of Tests, no warranty or guarantee is given that such turn-around times will be achieved in any particular instance.
1.3 The Client shall provide SPERMCOMET LTD with such information as SPERMCOMET LTD may reasonably be expected to require concerning the Samples supplied by the Client and the persons from whom they were taken to enable SPERMCOMET LTD to conduct the Tests and to report thereon. SPERMCOMET LTD will accept no responsibility for any error or defect in a Test or the report thereon consequent upon any inaccuracies in or omissions from such information supplied by the Client nor for any consequences of such errors or defects.
1.3.1 The Client understands that although this test has been shown to perform successfully in the groups published in peer reviewed scientific literature, it is still under performance evaluation in larger populations. Thus each Client is participating in the ongoing performance evaluation when undertaking this test.
1.4 SPERMCOMET LTD acknowledges that the Client has read and understood the Disclaimer
1.5 Upon completion of a Test the Sample relating thereto may be destroyed or disposed of by SPERMCOMET LTD unless otherwise agreed.
2.1 SPERMCOMET LTD agrees that it will hold and maintain the confidence of: a) all information of a confidential nature which is received by SPERMCOMET LTD from the Client or its patients in connection with the Services; and (b) all Test results, invoices and other information of a confidential nature issued by SPERMCOMET LTD to the Client or its patients in connection with the Services, and, save with the Client’s consent, will not disclose such information other than to its professional staff and fertility specialists specified by the client.
2.2 The restrictions in paragraph 3.1 shall not apply to the use of anonymised Test results for research purposes or to information which: (i) was in SPERMCOMET LTD’s possession prior to disclosure by the Client; or (ii) is now or hereafter comes into the public domain other than by default of SPERMCOMET LTD; or (iii) was lawfully received by SPERMCOMET LTD from a third party acting in good faith having a right of further disclosure; or (iv) is required by law to be disclosed by SPERMCOMET LTD.
3. LIABILITY AND INDEMNITY
3.1 The Client warrants and covenants that it will obtain all consents and permissions required (whether by law (including under the data protection legislation), good medical practice or otherwise) in order to permit the conduct of the Tests on the Samples and shall indemnify and hold harmless SPERMCOMET LTD and the members of its Group and their respective directors, officers, employees and agents, in respect of all liabilities, costs, claims, loss, damage, demands, action and expenses (to include any settlements or ex-gratia payments and reasonable legal and expert costs and expenses) arising directly or indirectly from any breach of this paragraph.
3.2 Subject at all times to paragraph 4.4 and whether or not SPERMCOMET LTD has been advised of the possibility of such loss, SPERMCOMET LTD shall not be liable in respect of the Services in contract, tort or otherwise howsoever arising from any claim, damage, loss or costs in respect of: (i) any direct loss of profit; (ii) any direct loss of anticipated savings; or (iii) any indirect or consequential loss or damage howsoever caused including without limitation, any indirect loss of profit, loss of anticipated profit including loss of profit on contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation; and/or loss of data.
3.3 To the extent not covered by any other limitations the maximum liability of SPERMCOMET LTD to the Client under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall be the limit of the professional indemnity cover taken out by SPERMCOMET LTD from time to time less any sums paid by SPERMCOMET LTD to any patient of the Client or other third party in satisfaction of a liability arising out of the same facts and circumstances.
3.4 The limitations in this paragraph 4 shall only apply where permitted under applicable law.
4. FORCE MAJEURE
If the performance of this Agreement or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of that party obliged to perform it (including, without limitation, flood, fire, storm, strike, lockout, sabotage, terrorist act, civil commotion and government intervention), the party so affected shall (upon giving prompt notice thereof to the other party) be excused from performance to the extent only of the prevention, restriction or interference, provided always that the party so affected shall use all reasonable endeavours to avoid or remove the causes of non-performance and shall continue performance as expeditiously as possible as soon as such causes have been removed.
5.1 Dispute resolution (a) If any dispute arises relating to this Agreement or any breach or alleged breach of this Agreement, the parties shall make a good faith effort to resolve such dispute without recourse to legal proceedings. If discussion between the Client and SPERMCOMET LTD. do not resolve the dispute then the dispute shall be referred to a process of mediation conducted by a mediator in accordance with the terms and conditions applicable from time to time of the Dispute Resolution Service of the Law Society of Northern Ireland. If notwithstanding such good faith efforts and good faith participation in mediation the dispute is not resolved either party may submit the dispute to the jurisdiction of the Courts in Northern Ireland.” (b) Except to the extent clearly prevented by the area of dispute, the parties will continue to perform their respective obligations under this Agreement while such dispute is being resolved.
5.2 Data Protection Each party will comply with its obligations under the Data Protection Act 1998. The parties hereby agree that SPERMCOMET LTD may use or permit others to use any Test results for the purposes of medical or statistical research, provided that all such results are anonymised prior to any research being undertaken and that the researchers do not have access to any Personal Data (as defined in the Data Protection Act 1998) relating to the results. This paragraph shall apply to all results notwithstanding that they may have been in the possession of SPERMCOMET LTD prior to the date of this Agreement.
5.3 Variation Any amendments to this Agreement shall not be effective unless in writing and signed by an authorised signatory on behalf of each of the parties. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Act. The terms of this Agreement may be varied by agreement of the parties but without the consent of any third party whether or not the rights of such third party are affected by such variation.
5.4 Rights and waiver All rights granted to either of the parties shall be cumulative and not exhaustive of any rights and remedies provided by law. The failure of either party to enforce (or delay in enforcing) at any time for any period any one or more of the terms of this Agreement shall not be a waiver of such term or of the right of such party at any time subsequently to enforce all the terms of this Agreement.
5.5 Severability If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions will not be in any way affected.
5.6 Assignment SPERMCOMET LTD may assign or sub-contract the performance of this Agreement (in whole or in part) or any one or more of the Tests to be performed hereunder to suitably accredited laboratories. The Client may not assign this Agreement or any of its rights or obligations hereunder without the prior approval of SPERMCOMET LTD.
5.7 Relationship of the parties It is acknowledged and agreed that SPERMCOMET LTD and the Client are independent and nothing in this Agreement shall create or be construed as creating a partnership or a relationship of agent and principal between the parties.
5.8 Notices All notices given under this Agreement shall be in writing and shall be delivered by hand or sent by prepaid first class post or by prepaid first class recorded delivery or by facsimile transmission. Provided that a hard copy of any notice transmitted by facsimile is posted within 24 hours of such transmission. All notices shall be delivered at or sent, in the case of SPERMCOMET LTD, to Institute of Patholgoy, Queen’s University Belfast, Grosvenor Road, Belfast BT12 6BJ and, in the case of the Client to the address and/or fax number specified in the Test Request Form submitted by the Client (or such other address as that party shall notify in writing to the other for this purpose). A notice sent by post shall be deemed to be served at 9.00 am on the second business day following the date of posting; a notice sent by facsimile transmission shall (subject to posting of a hard copy as provided above) be deemed to have been served at the time it is transmitted if transmitted within business hours (9.00 am to 6 pm) on a business day or, if transmitted outside such business hours on a business day or on a day which is not a business day as soon thereafter as such business hours commence.
5.9 Governing law This Agreement shall be governed by and construed in accordance with the law of Northern Ireland and each of the parties submits to the exclusive jurisdiction of the Courts in Northern Ireland.
6.1 In these Terms and Conditions: ‘this Agreement’ means the contract between SPERMCOMET LTD and the Client for the supply of the Services, incorporating these Terms and Conditions ‘Client’ means the person or organisation to whom SPERMCOMET LTD has agreed to provide Services
‘Disclaimer’ means the Disclaimer contained in the Schedule hereto ‘Group’ in respect of any company, means such company, its subsidiaries and holding companies and the subsidiaries of such holding companies (“holding company” and “subsidiary” having the meanings given in the Companies Act 1985 or, when the relevant provisions come into effect, the Companies Act 2006) ‘Sample’ means a semen sample provided by the Client to SPERMCOMET LTD for investigation ‘Services’ means ‘the conduct of the test for sperm DNA damage’ specified in the Booking Form submitted by the Client and accepted by SPERMCOMET LTD, and/or such other services as SPERMCOMET LTD has agreed to supply to the Client ‘SPERMCOMET LTD’ means ‘SPERMCOMET LTD’ or such other member of its Group as has agreed to provide the Services ‘Test’ means a laboratory test agreed to be carried out by SPERMCOMET LTD on a Sample supplied by the Client
6.2 References to the singular include the plural and vice versa.
6.3 Paragraph headings are for ease of reference only and are not part of these Terms and Conditions for the purpose of construction.
Disclaimer for Fertility Clinics:
The information given by this test is not intended to provide professional medical advice. The test does not indicate conclusively that the man whose semen has been tested is infertile or incapable of achieving a pregnancy naturally. Normal full-term pregnancies are still possible with higher levels of DNA damage although DNA damaged sperm are associated with a greater number of miscarriages.
The proprietors of this test can provide information upon which to make an informed decision but they cannot guarantee that a successful pregnancy will result from any treatment that is subsequently chosen. The test gives information as to those treatments which have the highest level of success potential for a successful pregnancy with sperm DNA damage. Both partners can contribute to a couples’ infertility. The usefulness of any test for one partner is dependant of the fertility of the other partner too. Individuals should consult with their fertility doctor about these results in the overall picture of their infertility diagnosis and treatment options for them and their partners.
Disclaimer for individual couples:
The information given by this test is not intended to provide professional medical advice. The test does not indicate conclusively that you are infertile or incapable of achieving a pregnancy naturally. Normal full-term pregnancies are still possible with higher levels of DNA damage although DNA damaged sperm are associated with a greater number of miscarriages.
The proprietors of this test can provide you with information upon which to make an informed decision but they cannot guarantee that a successful pregnancy will result from any treatment which you choose. The test gives information as to those treatments which have the highest level of success potential for a successful pregnancy with sperm DNA damage. Both partners can contribute to a couples’ infertility. The usefulness of any test for one partner is dependant of the fertility of the other partner too. You should consult with your clinician/ doctor about these results in the overall picture of your infertility diagnosis and treatment options for you and your partner.