Terms and Conditions for Egg Donation Recipients
1. BABY2MOM EGG DONATION AGENCY
Please note that these Terms and Conditions form part of the agreement between you and Baby2Mom. By proceeding with the donor programme after receipt of these Terms and Conditions, you confirm that you have had an opportunity to review them and to raise any questions with us before proceeding
IMPORTANT NOTICE REGARDING DONOR PROFILES
Donor profiles are provided by Baby2Mom for the purpose of identifying and considering potential egg donors. A donor profile does not constitute a guarantee that the person identified will be medically or psychologically suitable, remain available, be accepted by a particular fertility clinic or achieve any particular fertility outcome.
The medical, psychological and clinical suitability of a donor is determined by the relevant qualified medical and other professional service providers. Selection of a donor by the Client does not constitute medical or clinical approval of that donor.
Information contained in a donor profile is based on information reasonably available to Baby2Mom and information provided by the donor and/or relevant professionals.
Baby2Mom does not provide an independent medical, psychological or clinical opinion regarding the donor.
BABY2MOM EGG DONATION AGENCY
TERMS AND CONDITIONS FOR EGG DONATION RECIPIENTS
1. DEFINITIONS AND INTERPRETATION
1.1. In these Terms and Conditions, unless the context indicates otherwise:
1.1.1. “Agency Fee” means the fee payable to Baby2Mom for its agency and facilitation services;
1.1.2. “Baby2Mom” means Baby2Mom Egg Donation Agency;
1.1.3. “Client” means the person or persons appointing Baby2Mom in terms of these Terms and Conditions;
1.1.4. “Donor” means a person identified and/or introduced by Baby2Mom as potentially available to participate as an egg donor, whose availability
and medical, psychological and clinical suitability remain subject to the applicable selection, screening, professional and clinical processes;
1.1.5. “Programme” means the egg donation programme facilitated by Baby2Mom for the Client;
1.1.6. “Programme Period” means the period of three (3) calendar months commencing on the date on which the Client selects and reserves a Donor; and
1.1.7. “Third-Party Service Provider” means any fertility clinic, medical practitioner, psychologist, laboratory, pharmacy, transport provider, accommodation provider or other independent service provider involved in the Programme.
1.2. References to the singular include the plural and vice versa.
1.3. Headings are for convenience only and do not affect the interpretation of these Terms and Conditions.
1.4. Nothing in these Terms and Conditions is intended to exclude, restrict or limit any right or remedy which cannot lawfully be excluded, restricted or limited under applicable law.
2. APPOINTMENT AND SCOPE OF BABY2MOM’S SERVICES
2.1. The Client appoints Baby2Mom to provide egg donation agency and facilitation services, including identifying and introducing Donors, presenting available donor profiles, facilitating the Client’s consideration and selection of a Donor, coordinating the administrative aspects of the donor process and, where applicable, assisting with the reservation and coordination of the selected Donor.
2.2. Baby2Mom is an egg donation agency and facilitator and is not a fertility clinic, medical practitioner, psychologist, laboratory, pharmacist or other healthcare provider.
2.3. Baby2Mom does not determine the medical, psychological or clinical suitability of a Donor. Such determination remains the responsibility of the relevant qualified medical and other professional service providers.
2.4. A donor profile presented by Baby2Mom constitutes the profile of a person identified as a potential Donor and does not constitute a representation or guarantee by Baby2Mom that the person will ultimately be medically, psychologically or clinically suitable to participate in the Programme.
2.5. Where Baby2Mom communicates information concerning a Donor, such information shall be based on information reasonably available to Baby2Mom and shall not be represented as an independent medical or clinical opinion.
2.6. The Client acknowledges that the ultimate decision whether a Donor is medically suitable to proceed rests with the relevant fertility clinic and qualified medical professionals.
2.7. Baby2Mom may facilitate communication between the Client, Donor, fertility clinic and other Third-Party Service Providers.
2.8. Such facilitation does not make Baby2Mom responsible for the independent professional services, decisions, omissions, delays, fees or outcomes of those Third-Party Service Providers.
2.9. All medical, psychological and fertility-related decisions remain with therelevant qualified professionals.
2.10. The Donor is an independent person and is not an employee, agent or representative of Baby2Mom.
2.11. Baby2Mom shall perform the agency and facilitation services expressly undertaken by it with reasonable care and skill.
2.12. The Client acknowledges that Baby2Mom’s role is to provide agency and facilitation services in connection with the identification, introduction, selection, reservation and coordination of a Donor and that Baby2Mom does not itself provide or guarantee the continued availability of any particular Donor or the successful completion of medical or fertility treatment.
2.13. Baby2Mom does not provide medical, psychological or clinical advice, diagnosis, interpretation or opinion to the Client or the Donor. Any medical, psychological or clinical question, concern or issue arising before, during or after the Programme, including any question concerning pregnancy, treatment, medication, contraception, screening, the health of the Donor or the health of a child following birth, must be directed to the relevant fertility clinic, medical practitioner or other appropriately qualified professional.
3. DONOR SELECTION, SCREENING AND RESERVATION
3.1. Baby2Mom shall use reasonable endeavours to identify and present Donor profiles having regard to the Client’s stated preferences and requirements.
3.2. Donor profiles are based on information available to Baby2Mom and information provided by the Donor and/or relevant Third-Party Service Providers.
3.3. Unless expressly stated otherwise, information contained in a Donor profile, including information concerning education, qualifications, employment, family history, personal circumstances, medical history or other background information, is based on information provided by or obtained from the Donor or other relevant sources and has not necessarily been independently verified by Baby2Mom.
3.4. The Client acknowledges that Baby2Mom does not represent or warrant the completeness, accuracy or continued accuracy of information provided by a Donor, except to the extent that Baby2Mom has expressly represented that particular information has been independently verified.
3.5. The Client acknowledges that the presentation or selection of a Donor is not equivalent to medical approval of that Donor.
3.6. Following selection of a Donor by the Client, the Donor may be required to undergo medical, psychological, laboratory and/or other professional assessment by the relevant Third-Party Service Providers.
3.7. The Client acknowledges that the purpose of such assessment is, amongst other things, to determine whether the Donor is suitable to proceed and to identify circumstances which may render the Donor unsuitable.
3.8. The fact that a Donor is subsequently found to be unsuitable does not, in itself, constitute a representation by Baby2Mom that the Donor was medically suitable, provided that Baby2Mom did not itself make a false, misleading or materially inaccurate representation concerning the Donor.
3.9. The Client acknowledges that Baby2Mom cannot guarantee that a Donor will:
3.9.1. remain available;
3.9.2. pass subsequent medical or psychological screening;
3.9.3. remain medically suitable;
3.9.4. remain willing to participate;
3.9.5. complete the donation cycle; or
3.9.6. produce any particular medical or fertility outcome.
3.10. Upon receipt of the applicable Agency Fee and/or reservation fee, Baby2Mom shall, where applicable, reserve the selected Donor in accordance with the arrangements communicated to the Client. A reservation shall not be regarded as confirmed until the applicable payment has been received by Baby2Mom.
3.11. Selection or reservation of a Donor does not constitute a guarantee of continued availability.
4. DONOR UNAVAILABILITY, PREGNANCY AND REPLACEMENT DONOR
4.1. The Client acknowledges that Donor unavailability is an inherent and foreseeable risk of an egg donation programme.
4.2. A Donor may become unavailable after selection or reservation as a result of, including but not limited to:
4.2.1. pregnancy;
4.2.2. illness;
4.2.3. medical or psychological unsuitability;
4.2.4. withdrawal from the Programme;
4.2.5. personal circumstances;
4.2.6. failure or refusal to attend an appointment;
4.2.7. failure to respond or becoming unreachable; or
4.2.8. any other circumstance outside Baby2Mom’s reasonable control.
4.3. The Client specifically acknowledges that a Donor may become pregnant notwithstanding previous selection, reservation, scheduling or use of contraception. Baby2Mom does not provide medical advice or make any representation or guarantee concerning the effectiveness or suitability of any contraceptive method.
4.4. Where a selected or reserved Donor becomes unavailable for any of the reasons contemplated in this clause, Baby2Mom’s response to that Donor’s unavailability shall be governed by this clause.
4.5. Where a selected or reserved Donor becomes unavailable, Baby2Mom shall, without charging a further Agency Fee, make reasonable endeavours to identify and present up to three (3) alternative Donor profiles to the Client, having regard to the primary donor-selection criteria recorded by Baby2Mom at the time of the original Donor’s selection.
4.6. Baby2Mom’s obligation in terms of clause 4.5 is an obligation to use reasonable endeavours to identify and present alternative Donor profiles and does not constitute a guarantee that any replacement Donor will be available, medically or psychologically suitable, accepted by the Client’s fertility clinic or ultimately proceed with the Programme.
4.7. The alternative Donor profiles presented under clause 4.5 shall be selected from Donors reasonably available to Baby2Mom at the relevant time.
Baby2Mom shall not be required to locate a Donor possessing every characteristic or preference specified by the Client where no such Donor is reasonably available.
4.8. The Client may accept or reject any alternative Donor profile presented by Baby2Mom.
4.9. For purposes of this clause, a “reasonable alternative Donor profile” means a profile which materially corresponds with the Client’s primary donor-selection criteria recorded by Baby2Mom at the time of the original Donor’s selection, having regard to the information reasonably available to Baby2Mom at the relevant time. A reasonable alternative Donor need not possess every characteristic, preference or attribute of the original Donor.
4.10. Where Baby2Mom has presented three (3) reasonable alternative Donor profiles or has demonstrated that it has made reasonable endeavours to identify three (3) such profiles but fewer than three (3) such profiles are reasonably available, Baby2Mom’s obligations under this clause shall be fulfilled.
4.11. The Client acknowledges that the presentation of an alternative Donor does not constitute medical, psychological or clinical approval of that Donor and that any medical, psychological, laboratory or other professional screening required in respect of an alternative Donor remains subject to the provisions of these Terms and Conditions.
4.12. The Client’s rejection of an alternative Donor, whether because the Client considers the profile unsuitable, does not meet the Client’s preferences, is not accepted by the Client’s fertility clinic, or for any other reason, shall not require Baby2Mom to source a further alternative Donor beyond the maximum number contemplated in clause 4.5.
4.13. Once Baby2Mom has fulfilled its obligations under clauses 4.5 and 4.10, the replacement-donor process shall be regarded as concluded. The Client shall have no further entitlement under this clause to require Baby2Mom to identify or present further Donor profiles, and the Client’s decision not to proceed with any Donor presented by Baby2Mom shall not, merely by reason of that decision, entitle the Client to a refund of the Agency Fee.
4.14. The Programme Period applies to Baby2Mom’s agency and facilitation mandate and is not a guarantee that medical or fertility treatment will be commenced or completed within that period.
4.15. The Client shall be responsible for taking all reasonable steps within the Client’s control to progress the Programme within the Programme Period, including complying timeously with the requirements, appointments and instructions of the relevant fertility clinic and other medical professionals.
4.16. The selection or presentation of a replacement Donor shall not restart or extend the Programme Period.
4.17. Baby2Mom shall not be responsible for delays in the commencement, continuation or completion of medical or fertility treatment caused by the Client, a Donor, fertility clinic, medical practitioner, laboratory or other Third-Party Service Provider.
4.18. Upon expiry of the Programme Period, Baby2Mom may require the Client to confirm whether the Client wishes to continue with the Programme. Any continuation of Baby2Mom’s agency and facilitation services beyond the Programme Period shall be subject to Baby2Mom’s agreement and any further arrangements communicated to the Client, including any applicable additional fees or costs.
4.19. Where a Donor becomes unavailable before expiry of the Programme Period and Baby2Mom has commenced the replacement-donor process contemplated in this clause, the provisions of clauses 4.5 to 4.10 shall continue to apply for the limited purpose of completing that replacement-donor process, notwithstanding the expiry of the Programme Period. Such continuation shall be limited to the replacement-donor process already commenced and shall not restart or extend the Programme Period.
5. FEES, DONOR EXPENSES AND THIRD-PARTY COSTS
5.1. The Client shall pay Baby2Mom the applicable Agency Fee communicated to the Client.
5.2. The Agency Fee constitutes consideration for Baby2Mom’s agency and facilitation services, including donor sourcing, identification, profile presentation, selection assistance, reservation, coordination and replacement- donor assistance where applicable.
5.3. The Client acknowledges that the Agency Fee is consideration for Baby2Mom’s agency and facilitation services and is not consideration for the successful completion of any medical or fertility treatment or for a guarantee that a particular Donor will ultimately be medically suitable or available.
5.4. Where Baby2Mom has performed the agency and facilitation services which it expressly undertook to provide at the relevant stage of the Programme, the subsequent failure of the medical or fertility process, or the subsequent unavailability or unsuitability of a Donor for reasons contemplated in clause 4, shall not retrospectively render those services unperformed.
5.5. The Agency Fee does not include medical, psychological, fertility, laboratory pharmaceutical, treatment, travel, accommodation or other Third-Party Service Provider costs. Such costs are separate from Baby2Mom’s agency and facilitation services and are payable by the Client directly to the relevant Third- Party Service Provider. Any different arrangement must be expressly agreed in writing by Baby2Mom before the relevant cost is incurred.
5.6. The Client remains responsible for all medical, psychological, laboratory and other screening costs incurred in respect of a Donor, irrespective of whether the Donor is subsequently found suitable or unsuitable to proceed with the Programme. The subsequent rejection, withdrawal, unavailability or unsuitability of a Donor shall not transfer responsibility for any such costs already incurred to Baby2Mom.
5.7. The Client acknowledges that the purpose of medical and other screening is, amongst other things, to determine whether a Donor is suitable to proceed and to identify circumstances which may result in the Donor being rejected. The rejection of a Donor following such screening does not entitle the Client to recover the cost of such screening from Baby2Mom.
5.8. Where Baby2Mom receives money specifically for donor travel, transport, accommodation or another identified donor-related expense, such money shall be treated separately from the Agency Fee and shall be applied only for the purpose for which it was received, subject to these Terms and Conditions.
5.9. Baby2Mom shall account for genuinely unused amounts paid specifically for donor travel, transport, accommodation or another identified donor-related expense, subject to any cancellation charges, amounts properly incurred and the applicable terms imposed by the relevant Third-Party Service Provider.
5.10. Any amount refunded or accounted for under clause 5.9 shall relate solely to unused donor-specific funds and shall not constitute a refund of the Agency Fee or an admission that the Agency Fee was not earned.
5.11. The Client acknowledges that costs may be incurred with Third-Party Service Providers before the donor process is completed. Such costs remain the responsibility of the Client in accordance with the Client’s arrangements with the relevant Third-Party Service Provider and are not costs for which Baby2Mom is responsible under these Terms and Conditions.
5.12. The subsequent rejection, withdrawal, unavailability or unsuitability of a Donor, or the failure of the fertility treatment to proceed or achieve the intended outcome, does not transfer responsibility for such costs to Baby2Mom.
5.13. The Agency Fee is not refundable by reason of:
5.13.1. a Donor becomes unavailable;
5.13.2. a Donor becomes pregnant;
5.13.3. a Donor is rejected following medical or psychological assessment;
5.13.4. a replacement Donor is required;
5.13.5. a Client rejecting a replacement Donor;
5.13.6. a fertility clinic being unable or unwilling to accommodate a Donor;
5.13.7. the Client electing not to continue with the Programme; or
5.13.8. the expiry of the Programme Period, provided that Baby2Mom has performed the agency and facilitation services which it expressly undertook to provide under these Terms and Conditions.
5.14. Unless otherwise agreed in writing, any Agency Fee, reservation fee or other amount expressly identified in writing by Baby2Mom in connection with the selection or reservation of a Donor shall be paid within three (3) working days of the request for payment.
5.15. Until the applicable payment has been received, Baby2Mom shall not be obliged to reserve or continue to hold a Donor exclusively for the Client.
5.16. If the required payment is not received within the period specified in clause 5.14, Baby2Mom may withdraw the reservation and make the Donor available to another recipient, without liability to the Client.
5.17. Where the Client has selected and reserved a Donor and thereafter requests a different Donor solely because the Client has changed the Client’s preference, and not because the selected Donor has become unavailable, medically or psychologically unsuitable, has been rejected by the relevant fertility clinic or any other circumstance contemplated in clause 4 has arisen, Baby2Mom shall be entitled to charge an additional Agency Fee equal to 50% of the Agency Fee applicable to the original Donor selection for the additional donor sourcing and facilitation required.
5.18. No additional fee shall be payable under clause 5.17 where the change of Donor occurs for any reason which entitles the Client to the replacement-donor process contemplated in clause 4.
5.19. Baby2Mom shall notify the Client of any additional fee payable under clause 5.17 before commencing the additional donor-sourcing process.
6. FERTILITY CLINICS, MEDICAL TREATMENT AND INTER-PROVINCIAL
ARRANGEMENTS
6.1. The Client acknowledges that the fertility clinic and other medical professionals are independent Third-Party Service Providers.
6.2. As between the Client and the relevant Third-Party Service Provider, the Client remains responsible for all fees and costs charged by that Third-Party Service Provider in connection with the Client’s treatment, screening or the Programme, irrespective of whether the Donor subsequently becomes unavailable or unsuitable, subject to any rights the Client may have directly against that Third- Party Service Provider.
6.3. Baby2Mom does not determine:
6.3.1. whether a Donor is medically suitable;
6.3.2. whether a clinic will accept a Donor;
6.3.3. what medical tests are required;
6.3.4. what treatment is appropriate;
6.3.5. when treatment will occur; or
6.3.6. whether treatment should proceed.
6.4. The type, use, discontinuation or suitability of any contraceptive method used by a Donor in connection with the Programme is a matter for the Donor and the relevant fertility clinic and medical professionals. Baby2Mom does not prescribe, recommend, administer or determine the suitability of any contraceptive method and shall not be responsible for the medical or fertility consequences of any contraceptive method or arrangement determined or accepted by the Donor, fertility clinic or relevant medical professionals.
6.5. Baby2Mom may facilitate communication between the Client, Donor and fertility clinic.
6.6. Where a Donor is located in a different province from the Client’s fertility clinic, it may be necessary for the relevant clinics and/or medical practitioners to communicate and make arrangements concerning the Donor.
6.7. Baby2Mom may facilitate such communication and coordination where reasonably required.
6.8. For the avoidance of doubt, advising the Client that different clinics may need to communicate or make arrangements does not constitute a recommendation, instruction or requirement that the Client transfer, change or terminate treatment at its existing fertility clinic.
6.9. Any decision by the Client to transfer or change fertility clinics shall be made by the Client independently, in consultation with the relevant medical professionals, and shall not constitute a requirement imposed by Baby2Mom.
6.10. Baby2Mom shall not be regarded as having recommended or required the Client to change fertility clinics merely because Baby2Mom has identified a Donor located outside the province in which the Client’s preferred fertility clinic operates.
6.11. Where Baby2Mom provides information concerning another fertility clinic or medical service provider, such information is provided for facilitation or informational purposes only and does not constitute medical advice or a requirement to transfer treatment. The decision whether to consult, transfer to or receive treatment from another provider remains solely with the Client and the relevant medical professionals.
6.12. Any decision concerning whether and how inter-provincial treatment arrangements can be implemented remains with the relevant fertility clinics and medical practitioners.
6.13. Baby2Mom does not warrant that a fertility clinic will accept any particular Donor or replacement Donor.
6.14. Baby2Mom shall not be responsible for the acts, omissions, delays, fees, medical decisions or requirements of an independent fertility clinic or medical practitioner, provided that Baby2Mom has not itself breached an obligation expressly undertaken by it under these Terms and Conditions.
6.15. Baby2Mom does not assume responsibility for the Client’s medical, screening, consultation or treatment costs as a consequence of introducing, facilitating or coordinating the Donor or communicating with the relevant Third-Party Service Provider.
7. CLIENT OBLIGATIONS AND COMMUNICATION
7.1. The Client shall provide Baby2Mom with accurate and complete information reasonably required to facilitate the Programme.
7.2. The Client shall promptly notify Baby2Mom of any material change in information relevant to the Programme.
7.3. The Client remains responsible for complying with the requirements of the fertility clinic and other medical practitioners.
7.4. Where Baby2Mom becomes aware of information which it reasonably considers to be materially relevant to the continuation of the donor process, Baby2Mom shall use reasonable endeavours to communicate that information to the Client within a reasonable period, subject to any applicable confidentiality, privacy or legal restriction.
7.5. Where Baby2Mom depends upon a Donor, fertility clinic or other third party for information or action, Baby2Mom shall use reasonable endeavours to follow up and facilitate the matter where appropriate.
7.6. A delay attributable to a third party shall not, of itself, constitute a breach by Baby2Mom where Baby2Mom has acted reasonably in the circumstances.
7.7. The Client acknowledges that Baby2Mom’s agency role necessarily involves communication with support of and coordination with both the Client and the Donor.
7.8. Baby2Mom’s communication with or support of a Donor, including in circumstances where the Donor experiences a personal, medical or other difficulty, shall not, merely by reason of such communication or support, constitute a failure by Baby2Mom to provide services to the Client.
7.9. The Client remains responsible for monitoring communications and attending medical appointments and shall obtain medical advice directly from the relevant medical practitioners.
7.10. Baby2Mom does not provide a 24-hour communication service and does not guarantee an immediate response to every communication.
7.11. Where a matter is urgent or medically significant, the Client must contact the relevant fertility clinic or medical practitioner directly.
7.12. The Client shall provide Baby2Mom with such identification, verification, KYC (“know your client”) and other documentation as Baby2Mom may reasonably require before or during the Programme, including documentation required for regulatory compliance, client verification, payment administration or the protection of Baby2Mom’s legitimate interests.
7.13. Baby2Mom shall not be required to commence or continue the Programme until the documentation requested in terms of clause 7.12 has been received and is reasonably satisfactory to Baby2Mom.
7.14. Baby2Mom may retain and process such documentation in accordance with applicable law and clause 10.
7.15. The Client shall notify Baby2Mom in writing if the fertility treatment involving the donated eggs results in a confirmed pregnancy, within five (5) working days of becoming aware of the pregnancy.
8. CANCELLATION, TERMINATION AND REFUNDS
8.1. The Client may terminate the mandate by giving Baby2Mom written notice.
8.2. Termination by the Client shall not entitle the Client to a refund of the Agency Fee, save where the Client’s entitlement to such refund arises from a material breach by Baby2Mom as contemplated in clause 8.3.
8.3. Where Baby2Mom materially fails to perform an obligation expressly undertaken by it under these Terms and Conditions and, where reasonably capable of remedy, fails to remedy that failure within a reasonable period after receiving written notice from the Client, the Client shall retain any remedy available under applicable law.
8.4. Baby2Mom may suspend or terminate the mandate where the Client:
8.4.1. fails to make any payment when due;
8.4.2. fails to provide information or cooperation reasonably required to progress the Programme;
8.4.3. materially breaches these Terms and Conditions; or
8.4.4. engages in conduct which makes it reasonably impracticable for Baby2Mom to continue providing its services, provided that Baby2Mom shall, where reasonably practicable and appropriate, afford the Client reasonable notice and an opportunity to remedy the relevant breach before termination.
8.5. Termination shall not affect any rights or obligations which accrued prior to termination.
8.6. Any unused donor-specific funds held by Baby2Mom shall be dealt with in accordance with clause 5.
8.7. Baby2Mom may, in its discretion, make a goodwill payment, refund, credit or other commercial concession.
8.8. A goodwill payment, refund, credit or other concession made by Baby2Mom shall not, unless expressly agreed otherwise in writing, constitute an admission of liability, breach of contract or legal entitlement to the payment or concession and shall not amend these Terms and Conditions or create a precedent for any future matter.
9. LIABILITY AND RISK ALLOCATION
9.1. Baby2Mom shall be responsible for performing the agency and facilitation services which it expressly undertakes to provide under these Terms and Conditions.
9.2. Nothing in these Terms and Conditions excludes, restricts or limits any liability or right or remedy which cannot lawfully be excluded, restricted or limited.
9.3. Nothing in these Terms and Conditions excludes or limits Baby2Mom’s liability for loss directly attributable to Baby2Mom’s gross negligence, to the extent that such exclusion or limitation is prohibited by applicable law.
9.4. Subject to clauses 9.2 and 9.3, Baby2Mom shall not be responsible for loss, cost or expense arising from the following, where the relevant event occurs independently of any failure by Baby2Mom to perform the obligations which it expressly undertook under these Terms and Conditions:
9.4.1. a Donor becoming pregnant;
9.4.2. a Donor becoming unavailable or withdrawing from the Programme;
9.4.3. a Donor becoming medically or psychologically unsuitable;
9.4.4. a Donor failing to attend an appointment or otherwise failing or refusing to proceed;
9.4.5. the independent acts or omissions of a fertility clinic, medical practitioner or other Third-Party Service Provider;
9.4.6. a fertility clinic declining to accept or accommodate a Donor;
9.4.7. a medical, psychological or clinical decision made by a qualified professional;
9.4.8. a delay, cancellation or alteration of treatment by a fertility clinic or other Third- Party Service Provider;
9.4.9. the failure of fertility treatment to produce the intended outcome; or
9.4.10. any other circumstance expressly contemplated in these Terms and Conditions as being outside Baby2Mom’s reasonable control.
9.5. The costs identified in clause 5 as being the responsibility of the Client shall remain the responsibility of the Client and shall not become costs payable by Baby2Mom as a result of a Donor becoming unavailable, unsuitable or unable to proceed.
9.6. The Client’s contractual relationship with any Third-Party Service Provider remains separate from the Client’s relationship with Baby2Mom, and Baby2Mom does not assume any obligation owed by such Third-Party Service Provider to the Client.
9.7. Baby2Mom shall not be responsible for the fees, professional decisions, treatment requirements, delays, cancellations or treatment outcomes of an independent Third-Party Service Provider.
9.8. Baby2Mom does not guarantee:
9.8.1. the continued availability of a Donor;
9.8.2. the medical or psychological suitability of a Donor;
9.8.3. successful egg retrieval;
9.8.4. egg quality;
9.8.5. fertilisation;
9.8.6. embryo development;
9.8.7. implantation;
9.8.8. pregnancy;
9.8.9. continuation of pregnancy; or
9.8.10. live birth.
9.9. Nothing in this clause relieves Baby2Mom of its obligations to perform the agency and facilitation services expressly undertaken under these Terms and Conditions with reasonable care and skill.
10. CONFIDENTIALITY, PRIVACY AND PROTECTION OF PERSONAL INFORMATION
10.1. The Client shall keep confidential all non-public information concerning Baby2Mom, any Donor and the Programme which comes into the Client’s possession or knowledge through Baby2Mom.
10.2. Donor profiles and information provided to the Client are confidential and shall be used solely for purposes of considering, participating in and administering the Programme.
10.3. The Client shall not, without lawful authority or the consent of the relevant person:
10.3.1. publish a Donor’s profile or personal information;
10.3.2. distribute a Donor’s profile or personal information to persons not involved in the Programme;
10.3.3. publish or disclose a Donor’s photographs, personal details or medical information; or
10.3.4. otherwise use or disclose Donor information for a purpose unrelated to the Programme.
10.4. Baby2Mom may collect, process, store and use the Client’s personal information to the extent reasonably necessary to:
10.4.1. provide and administer the Programme;
10.4.2. communicate with the Client;
10.4.3. communicate with Donors and Third-Party Service Providers;
10.4.4. administer payments and financial records;
10.4.5. comply with legal, regulatory or professional requirements;
10.4.6. establish, exercise or defend Baby2Mom’s legal rights; and
10.4.7. otherwise perform and administer the agreement between Baby2Mom and the Client, in accordance with applicable law
10.5. The Client authorises Baby2Mom, to the extent reasonably necessary for the performance of Baby2Mom’s services, to communicate relevant information concerning the Programme with the Client’s nominated fertility clinic, medical practitioners, psychologists, laboratories, Donors and other Third-Party Service Providers involved in the Programme.
10.6. The Client shall provide such reasonable consent, authority and information as may be required to enable Baby2Mom to facilitate communication with the Client nominated fertility clinic and other relevant Third-Party Service Providers.
10.7. The Client acknowledges that information supplied to Baby2Mom by a fertility clinic, medical practitioner, psychologist, laboratory, Donor or other Third-Party Service Provider may be subject to confidentiality and privacy restrictions. Baby2Mom shall not be required to disclose information which it is not lawfully entitled to disclose.
10.8. Baby2Mom may disclose personal or confidential information to its attorneys, accountants, insurers, professional advisers or other authorised persons where reasonably necessary to obtain professional advice, administer the Programme, comply with a legal obligation or establish, exercise or defend Baby2Mom’s legal rights.
10.9. Baby2Mom may disclose information where required or authorised by law, court order, regulatory authority or other competent authority.
10.10. Baby2Mom shall take reasonable measures appropriate to the circumstances to safeguard personal information in its possession against unauthorised access, loss, misuse or disclosure.
10.11. The Client acknowledges that Baby2Mom may retain records and personal information for as long as reasonably necessary for the purposes for which the information was collected, to comply with legal or regulatory obligations, or to establish, exercise or defend legal rights.
10.12. The confidentiality obligations contained in this clause shall survive termination of the Client’s mandate for so long as the information remains confidential or protected by applicable law.
11. COMPLAINTS AND DISPUTE RESOLUTION
11.1. The Client may submit any complaint concerning Baby2Mom’s services to Baby2Mom in writing.
11.2. A complaint should, where reasonably possible, identify the nature of the complaint, the relevant circumstances, the outcome sought by the Client and any supporting information reasonably available to the Client.
11.3. Baby2Mom shall endeavour to acknowledge and address the complaint within a reasonable period and shall, where reasonably practicable, provide the Client with a substantive response.
11.4. Baby2Mom shall be afforded a reasonable opportunity to investigate and respond to a complaint before formal legal proceedings are instituted against Baby2Mom, except where urgent relief is required or applicable law provides otherwise.
11.5. In investigating a complaint, Baby2Mom may obtain relevant information from the Client, Donor, fertility clinic or other Third-Party Service Provider, subject to applicable confidentiality, privacy and professional obligations.
11.6. Where a complaint relates primarily to the services, fees, medical treatment, decision, delay or conduct of a fertility clinic or other Third-Party Service Provider, Baby2Mom may assist in facilitating communication with that service provider, but such assistance shall not constitute an admission that Baby2Mom is responsible for the matter complained of.
11.7. The investigation, consideration or attempted resolution of a complaint by Baby2Mom shall not constitute an admission of liability, breach of contract or wrongdoing.
11.8. The parties shall endeavour in good faith to resolve any dispute arising from these Terms and Conditions amicably before commencing formal proceedings, where reasonably practicable.
11.9. The parties may, by agreement, refer a dispute to mediation before commencing formal proceedings.
11.10. Nothing in this clause prevents either party from exercising any right available under applicable law or approaching any competent court, ombud, regulatory authority or professional body.
11.11. Where a complaint cannot reasonably be resolved internally, Baby2Mom shall inform the Client of any applicable external dispute-resolution mechanism of which Baby2Mom is required to notify the Client.
12. GENERAL, NOTICES AND ACCEPTANCE
12.1. Any notice required to be given in terms of these Terms and Conditions shall be in writing and may be delivered by email, hand delivery, registered post or another electronic method agreed between the parties.
12.2. The parties acknowledge that WhatsApp, email and other electronic messaging platforms may be used for ordinary operational communications concerning the Programme, including donor availability, donor profiles, appointments, travel arrangements, requests for information and updates.
12.3. Communications exchanged through WhatsApp, email or other electronic messaging platforms may form part of the records relating to the Programme and may be retained and relied upon by either party for purposes of administering the Programme or resolving a dispute.
12.4. An ordinary WhatsApp or similar operational communication shall not constitute a formal termination notice or legal demand unless its content clearly communicates the intention to terminate the agreement or make such demand.
12.5. The Client shall provide Baby2Mom with accurate and current contact details and shall promptly notify Baby2Mom of any change thereto.
12.6. Baby2Mom shall be entitled to rely on the most recent contact details provided by the Client.
12.7. These Terms and Conditions, together with any written quotation, invoice or other written agreement expressly incorporated into them, constitute the agreement between Baby2Mom and the Client concerning the Programme.
12.8. The Client acknowledges that the services to be provided by Baby2Mom and the allocation of responsibility between Baby2Mom, the Client, the Donor and Third- Party Service Providers are set out in these Terms and Conditions.
12.9. Any amendment, variation or representation which materially alters these Terms and Conditions shall be binding only if recorded in writing by an authorised representative of Baby2Mom, subject to any rights which cannot lawfully be excluded.
12.10. No amendment to these Terms and Conditions shall be binding unless recorded in writing and accepted in accordance with applicable law.
12.11. If any provision of these Terms and Conditions is found to be invalid, unlawful or unenforceable, that provision shall, to the extent necessary, be severed or read down, and the remaining provisions shall continue in full force and effect.
12.12. These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
12.13. Nothing in these Terms and Conditions is intended to relieve Baby2Mom from compliance with any mandatory legal, regulatory or professional requirements binding upon it.
12.14. The Client acknowledges that these Terms and Conditions are provided to the Client before the Programme proceeds and that the Client has an opportunity to review the Terms and Conditions and to raise any questions regarding them with Baby2Mom before proceeding.
IMPORTANT CLIENT ACKNOWLEDGEMENT
The following provisions are material terms of these Terms and Conditions and are highlighted for the Client’s attention. The Client should review these provisions and is invited to raise any questions with Baby2Mom before proceeding with the Programme.
1. Baby2Mom is an egg donation agency and facilitator and is not a fertility clinic or medical service provider;
2. Baby2Mom presents donor profiles for my consideration. The presentation, selection or reservation of a Donor does not constitute a medical or clinical determination that the person is suitable to donate;
3. Medical, psychological, laboratory and other professional screening is undertaken by the relevant qualified professionals. The relevant medical professionals determine whether a Donor is suitable to proceed;
4. Screening costs may be incurred notwithstanding that a Donor may subsequently be found unsuitable. Such costs remain my responsibility in accordance with my arrangements with the relevant Third-Party Service Provider;
5. A selected or reserved Donor may subsequently become pregnant, medically unsuitable, withdraw or otherwise become unavailable;
6. Such unavailability may occur through circumstances outside Baby2Mom’s reasonable control;
7. Baby2Mom does not guarantee that a Donor will pass medical screening, remain available or ultimately participate in the Programme;
8. I understand that where a Donor becomes unavailable or unsuitable, Baby2Mom’s replacement-donor obligations are as set out in clause 4 and do not constitute a guarantee that a replacement Donor will be available or ultimately proceed with the Programme;
9. Baby2Mom does not guarantee successful egg retrieval, fertilisation, embryo development, implantation, pregnancy or live birth;10. Medical, fertility, psychological, screening and other Third-Party Service Provider costs are separate from Baby2Mom’s Agency Fee and remain my responsibility in accordance with my arrangements with the relevant service providers;
11. Baby2Mom does not control the Donor, fertility clinic or other Third-Party Service Providers;
12. If a Donor is located in another province, Baby2Mom may advise that the relevant fertility clinics may need to communicate or make arrangements with one another;
13. I specifically understand that such communication or coordination between clinics does not constitute a recommendation, instruction or requirement by Baby2Mom that I transfer, change or terminate my treatment at my existing fertility clinic;
14. Any decision by me to transfer or change fertility clinics is my own decision, made in consultation with the relevant medical professionals, and is not a requirement imposed by Baby2Mom;
15. Baby2Mom does not guarantee that my fertility clinic will accept any particular Donor or replacement Donor;
16. Baby2Mom’s communication with or support of a Donor does not mean that Baby2Mom has ceased or failed to provide services to me;
17. Baby2Mom is responsible for the agency and facilitation services which it undertakes to provide, but is not responsible for the independent medical decisions, services, fees or outcomes of the fertility clinic or other Third-Party Service Providers;
18. I understand the provisions dealing with cancellation, refunds, third-party costs and Baby2Mom’s allocation of responsibility;
19. I understand that Baby2Mom’s Agency Fee is consideration for the agency and facilitation services provided by Baby2Mom and is not consideration for a guaranteed medical or fertility outcome;
20. I understand that Baby2Mom does not provide medical, psychological or clinical advice, diagnosis or opinion and that any medical, psychological or clinical question or concern arising before, during or after the Programme, including any question concerning pregnancy, treatment, medication, contraception, screening, the health of the Donor or the health of a child following birth, must be directed tothe relevant fertility clinic, medical practitioner or other appropriately qualified professional;
21. I understand that Baby2Mom does not prescribe, recommend, administer or determine the suitability of any contraceptive method and that the selection and use of contraception, and the decision whether a particular contraceptive method is acceptable or appropriate for the Programme, are matters for the Donor and the relevant fertility clinic and medical professionals;
22. I understand that the Programme Period is three (3) calendar months from the date on which I select and reserve a Donor, that the Programme Period applies to Baby2Mom’s agency and facilitation mandate, and that it is not a guarantee that medical or fertility treatment will be commenced or completed within three months.
I further understand that the selection or presentation of a replacement Donor does not restart or extend the Programme Period;
23. I understand that information contained in a Donor profile has not necessarily been independently verified by Baby2Mom and that Baby2Mom does not provide an independent medical, psychological or clinical opinion regarding a Donor;
24. I understand that where I have selected and reserved a Donor and thereafter request a different Donor solely because I have changed my preference or wish to select a different Donor, an additional Agency Fee equal to 50% of the Agency Fee applicable to the original Donor selection shall be payable in accordance with clause 5;
25. I understand that payment of the applicable Agency Fee, reservation fee or other amount expressly identified in writing by Baby2Mom in connection with the selection or reservation of a Donor is required within three (3) working days, unless otherwise agreed in writing, and that Baby2Mom may withdraw a reservation and make the Donor available to another recipient if the required payment is not received within that period;
26. I understand that I am required to provide Baby2Mom with identification, KYC and other documentation reasonably requested by Baby2Mom before or during the Programme; and
27. I understand that I am required to notify Baby2Mom in writing if the fertility treatment involving the donated eggs results in a confirmed pregnancy, within five (5) working days of becoming aware of the pregnancy.
