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This Sperm Donor Disclosure and Consent Agreement (“Agreement”) sets forth the terms by which the undersigned individual (“Donor”) agrees to provide donor sperm (“Donor Sperm”) to Xytex Corporation (“Xytex”) to be cryogenically preserved for use in third party reproduction, creation of embryos, and/or clinical research programs. Donor hereby agrees to be bound by the terms of this Agreement.
Xytex is a global provider of donor sperm and related services to clinical research programs, and to healthcare professionals and their patients. Xytex strives to serve its Donors while adhering to the highest ethical and legal standards in the industry. In order to maintain these high standards, and as additional consideration for Donor to provide Donor Sperm to Xytex, Donor hereby represents and acknowledges as follows:
Xytex makes a substantial investment by allowing Donor to participate in its Donor Sperm program. In return for being allowed to participate in the program, Donor acknowledges and agrees to the following:
Xytex will maintain Donor’s medical records and other individually identifiable healthcare information (“Records”) indefinitely. Records include, but are not limited to, medical history, laboratory test results, photographs, supplemental forms, number of reported births and information obtained from future screenings. Donor understands the release of Records may cause the information to no longer be protected under federal healthcare privacy regulations. Donor agrees Xytex shall have the authority to determine the conditions and procedures upon which Xytex shall release Donor’s Records, and Donor further agrees Xytex shall retain the exclusive discretion to modify its procedures to reflect changes in the law or changes in industry practices and procedures. Records will periodically be made available for review by the appropriate federal, state and local governmental authorities having oversight over Xytex and its operations. Donor also specifically agrees to the following release authorizations:
Donor authorizes Xytex to distribute Donor Sperm to both its domestic and international clients. Donor acknowledges Xytex may be bound by laws and regulations of foreign jurisdictions.
Donor agrees to indemnify, defend and hold harmless Xytex and its shareholders, officers, directors, employees, agents, representatives, contractors, healthcare providers, vendors, successors and assigns, from any and all claims, losses, demands, damages, liabilities, offsets, charges, costs, obligations, or causes of action and expenses, including attorneys’ and experts’ fees, asserted by any third party, including Donor’s spouse, intimate partner, offspring, surrogate or gestational carrier, against Xytex arising out of or related to this Agreement.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration before a panel of three (3) arbitrators. Within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator, and the two so selected shall select a third arbitrator within thirty (30) days of the commencement of the arbitration. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator within the allotted time, the third arbitrator shall be appointed by JAMS in accordance with its rules. All arbitrators shall serve as neutral, independent and impartial arbitrators. For Donors based in the United States of America, the arbitration shall be administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures. For international Donors, the arbitration shall be administered by JAMS pursuant to JAMS’ International Arbitration Rules. The place of arbitration will be in Richmond County, Georgia and the language used in the arbitral proceedings will be English. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Arbitration costs will be borne equally between Xytex and Donor. If the arbitrators determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrators may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision.
Governing Law: This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Georgia. The parties agree that any dispute regarding the enforcement of this Agreement is subject to the exclusive jurisdiction and venue of the state and federal courts having jurisdiction over Richmond County, Georgia. The parties hereby consent to personal jurisdiction in the state and federal courts of Georgia for purposes of enforcing this Agreement.
Headings: The headings in this Agreement are for convenience of reference only, are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.
Entire Agreement: This Agreement represents the complete and exclusive statement of the mutual understanding of the parties, and supersedes and replaces any previous Agreement entered into between Xytex and Donor.
Severability: If any provision of this Agreement is found to be unlawful, void, invalid or for any reason unenforceable by any court, then that provision shall be deemed ineffective and severable from this Agreement only to the extent it is in contravention of applicable laws, and shall not affect the validity and enforceability of any remaining provisions hereof.
Compliance with Foreign Laws: Xytex does not represent its products and services are compliant with laws outside of the United States. Clients in foreign jurisdictions are ultimately responsible for compliance with local laws.
Notices: Xytex shall satisfy any notice obligation or requirement under this Agreement by sending its correspondence to the most current mailing address or email address provided by Donor. Donor agrees to keep Xytex informed in writing during the term of this Agreement of any change in Donor’s pertinent contact information including, current mailing address, email address and telephone numbers. Any notices to Xytex regarding the provisions or enforceability of this Agreement shall be made in writing and hand delivered or sent by certified mail to Xytex Corporation, 1100 Emmett Street, Augusta, Georgia 30904.
Binding Effect: This Agreement will be binding upon the parties and their respective assignees, heirs, executors, and administrators.
Survival: The provisions of Sections 3, 4, 5, 6 and 7 shall survive the termination of this Agreement.
Counterparts and Electronic Signatures: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. Signatures transmitted by facsimile, email or other means of electronic transmission shall be deemed for all purposes to have the same legal effect as delivery of an original executed copy of this Agreement.