TERMS AND CONDITIONS OF USE AND SERVICE
This is a legally binding document. Please read completely and carefully before
agreeing to these terms and conditions of use and service.
This agreement (the "Agreement") is made between Make Families (the "Company")
and ("Applicant"). Company and Applicant are collectively referred to as
("Parties"). By submitting this application and clicking on "I Agree" you are
confirming that you have you understand, agree and accept the terms of this
Agreement and acknowledge that you have been given the opportunity to download
and print the Agreement.
1. APPLICANT REPRESENTATION AND WARRANTIES OF TRUTHFUL
DISCLOSURE.
a. The information the Applicant is providing in application will be relied upon
by the Company when submitting the Applicant to various surrogacy
agencies. Should the Company later discover the information provided by the
Applicant is false or materially inaccurate, then the Applicant may be subject to a
lawsuit by the Company for damages.
b. As such, the Applicant hereby warrants that she has personally filled out this
application and that she has fully disclosed all information known to her, such
information is truthful, is complete without any intentional omissions and that she has
not withheld any information sought in her application.
2. COMPANY REPRESENTATION AND WARRANTIES
a. While the Company’s submission of the Applicant’s Application to an Agency
is provided completely free of charge to the Applicant, Applicant acknowledges that
the Company will be entitled to a referral fee from the Agency for such submission.
3. NOTICE AND CONSENT TO DISCLOSE APPLICANT’S PERSONAL AND
MEDICAL INFORMATION.
a. Applicant hereby authorizes Company to provide any Agency with the
Applicant's full application, which includes the Applicant’s identification information,
including her medical history as provided in the Application. Applicant understands
that in the event the Company provides any Agency with the Applicant’s Application,
the Company is not and cannot guarantee that any Agency will maintain and insure
that the Applicant's information will be kept confidential. Applicant authorizes
Company to speak with an Agency about Applicant's application details as needed.
4. NO GUARANTEES MADE BY THE COMPANY.
a. Applicant understands and agrees that Company cannot and does not guarantee
that it will be able to match Applicant with any Agency and does not and cannot
guarantee that Applicant will go on to be matched with Intended Parent(s.) Applicant
also understands and agrees that any of the information provided by the Company to
the Applicant about any Agency is not a guarantee or representation of warranty from
the Company to the Applicant regarding that Agency.
b. The Applicant is solely responsible to research and verify information
regarding any Agency and professional the Applicant is referred to by the
Company, including but not limited to, medical, financial, insurance, and
psychological professionals. Applicant understands that the Company is not and
cannot warrant or verify the competency, quality or adequacy of the services provided
by any Agency and professional referrals. Nor is any information the Company may
provide regarding any Agency, or any professionals referred by the Company and the
gestational surrogacy process in general intended to or should be relied upon or
viewed by the Applicant as qualified legal, tax, insurance, medical or psychological
advice by the Company. The Applicant alone is responsible to verify the competency
of any such professional.
c. Further, the Company is not and cannot make any guarantees that any Agency
will, including but not limited to, accept the Applicant into their surrogate program,
match the Applicant with Intended Parents, the Applicant will be provided the
support, compensation stated by the Agency and/or any other kind of future promise,
whether implied or expressed to the Applicant by the Company or the Agency.
5. ASSUMPTION OF RISK.
a. Applicant acknowledges and understands that gestational surrogacy, in vitro
fertilization (“IVF”) and pregnancy have known and unknown medical and
psychological risks. Applicant is aware that her participation as a gestational carrier
could lead to serious personal injuries and mental health issues and that participating
in such activities may result in serious bodily injury to and including but not limited to
short term and/or long term disabilities or even death as a consequence of the actions,
inactions, negligence or fault of others.
6. INDEMNIFICATION, RELEASE AND WAIVER OF LIABILITY.
a. Applicant, in consideration of the Company’s review and consideration as a
surrogate referral of the Application submitted herein, agree, for myself, my heirs,
personal representatives, assigns and executors HEREBY RELEASE, WAIVE,
DISCHARGE, DEFEND, AND COVENANT NOT TO SUE the Company and its
officers, employees, agents, from and against any and all liability, including any and
all claims, demands, causes of action (known or unknown), suits, or judgments of any
and every kind (including attorneys' fees and costs), arising from any injury, damage
or death that I may suffer as a result of or relating to any referral or recommendation
made by the company to any Agency or professional, my involvement with any
gestational surrogacy program or Agency, any selection or rejection as a gestational
surrogate, or any pregnancy as a gestational surrogate, REGARDLESS OF
WHETHER THE INJURY, DAMAGE OR DEATH IS CAUSED BY THE
COMPANY, UNLESS THE INJURY DAMAGE OR DEATH IS CAUSED BY
THE COMPANY’S GROSS NEGLIGENCE OR INTENTIONAL
MISCONDUCT.
b. Applicant further agrees that the Company is not in any way responsible for
any injury or damage that I the Applicant sustain as a result of my own negligent or
grossly negligent acts or my own intentional misconduct and I hereby release and
covenant not to sue the Company from any liability for the same.
c. The Applicant further agrees that, in the event that I or any of my family
members, personal representatives, heirs, executors, administrators, agents, assigns or
any other third party attempts to assert any claims, demands, causes of action (known
or unknown), suits, or judgments of any and every kind (including attorneys' fees),
arising from any injury, damage or death to the Applicant, including but not limited to
any injury resulting from my own negligence, gross negligence or intentional
misconduct during or related to the, I AGREE TO DEFEND AND INDEMNIFY
THE COMPANY AGAINST SUCH CLAIMS, DEMANDS, CAUSES OF ACTION
(KNOWN OR UNKNOWN), SUITS, AND/OR JUDGMENTS OF ANY AND
EVERY KIND (INCLUDING ATTORNEYS' FEES) TO THE FULLEST EXTENT
PERMITTED BY LAW.
d. Applicant understands that by agreeing to this clause she is releasing all
potential future claims and giving up substantial rights, including my right to sue
the Company in the future.
7. NON-EMPLOYEE STATUS.
a. I understand and acknowledge that in participating in the Company’s
application program, I am doing so independently and that I am not an employee or
agent of the Company. I understand and agree that as a non-employee that I am not
entitled to receive compensation or any other employee benefit from the Company.
8. WHOLE AGREEMENT.
a. This Agreement sets forth the entire agreement between the Parties in this
matter. This Agreement supersedes, merges or waives any and all prior negotiations,
understandings, agreements, representations or warranties, expressed or implied, oral
or written, between the Parties, with respect to this Agreement. This is an integrated
Agreement. This Agreement shall not be amended, modified, altered or changed
except by a written Addendum signed by the Parties.
9. ARBITRATION
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF THE
INTERPRETATION, ENFORCEMENT OR BREACH OF THIS
AGREEMENT, IN LAW OR EQUITY, SHALL BE SETTLED BY BINDING
ARBITRATION IN ACCORDANCE WITH RULES OF THE AMERICAN
ARBITRATION ASSOCIATION AND NOT BY COURT ACTION, EXCEPT
AS SPECIFICALLY PROVIDED HEREIN OR AS REQUIRED BY LAW.
ARBITRATION SHALL BE HELD IN LOS ANGELES COUNTY,
CALIFORNIA, ABSENT A CONTRARY WRITTEN AGREEMENT BY THE
PARTIES HERETO. ANY AWARD MAY INCLUDE MANDATORY,
PROHIBITORY AND PREVENTIVE INJUNCTIONS, AND A
DECLARATION OF INTEREST, RIGHTS AND DUTIES. THE SUBMISSION
OF A DISPUTE TO THE ARBITRATOR. ANY AWARD SHALL STATE THE
FACTS, LAW, AND LEGAL REASONING FOR SUCH AWARD, APPLYING
ALL CALIFORNIA SUBSTANTIVE AND PROCEDURAL LAW.
JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR
MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. FILING A
JUDICIAL ACTION FOR INJUNCTION OR OTHER PROVISIONAL
REMEDY SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT TO
ARBITRATION UNDER THIS PROVISION. FOR ANY PARTY TO
DEMAND ARBITRATION, THEY MUST FIRST MAKE A WRITTEN
DEMAND ON THE OTHER PARTY, WITH AT LEAST TEN DAYS LAPSING
BEFORE THEN FOLLOWING THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION TO INITIATE AN ARBITRATION
PROCEEDING.
10. LEGAL ADVICE/ATTORNEY FEES.
a. The Company is not providing the Applicant with any legal advice. The
Applicant is advised to receive independent legal advice with respect to the risks
and advisability of entering into this Agreement prior to agreeing. Each party shall
pay their own attorney fees to advise them regarding this Agreement. In any action,
proceeding or arbitration between the parties hereto arising out of this Agreement, the
prevailing party shall be entitled to receive reasonable attorney’s fees, expert’s fees
and costs.
11. AMENDMENTS/ADDITIONAL TERMS. Any amendments, additions or
changes to this Agreement must be made in writing, and must be signed by each of
the Parties. The headings in this Agreement are for convenience of reference only,
and shall not limit or otherwise affect the meaning hereof.
12. NON-ASSIGNABLE. This Agreement is not assignable without the express
written consent of FMC and the Agency.
13. NO JOINT VENTURE OR PARTNERSHIP. The Parties are independent
contractors and will have no power or authority to assume or create any obligation on
behalf of each other. This Agreement will not be construed to create or imply any
partnership, agency or joint venture.
14. GOVERNING LAW AND JURISDICTION. This Agreement will be
governed by and construed in accordance with the laws of the State of California,
without regard to or application of conflicts of law rules or principles. The Parties
agree to bring any action arising under this Agreement and submit to jurisdiction and
venue only in federal courts located in the Central District of California and any state
courts located in Los Angeles County.
15. INTEGRATION. This Agreement contains the entire understanding of the
Parties relating to the subject matter contained in this Agreement and supersedes all
prior agreements and understandings, both written and oral, regarding such subject
matter.
16. AMENDMENT TO AGREEMENT. This Agreement may not be modified
nor any rights under it waived except in writing, signed by both Parties.
17. SURVIVAL. If any part of this Agreement is determined to be invalid or
unenforceable by a court of competent jurisdiction, that provision will be enforced to
the maximum extent permissible and the remaining provisions of this Agreement will
remain in full force and effect.
18. TIME IS OF THE ESSENCE. Time is of the essence in this Agreement; that
is, the time in which a party has to perform an obligation, or the date when an
obligation must be performed, is a crucial and vital part of this Agreement.
19. FURTHER ASSURANCES. The Parties agree to cooperate with one another in
accomplishing the objectives of this Agreement and to sign and provide all
documents, and take such actions as may be necessary or advisable to carry out the
intentions of the Parties.
20. WAIVER. Failure of either Party to exercise or enforce any of its rights under
this Agreement will not act as a waiver of such rights.
21. CONSTRUCTION. No provision of this Agreement is to be interpreted for or
against any Party because that Party or that Party’s legal representative or agent
drafted the provisions.
By clicking the "I Agree to Terms of Services" box you agree to accept and be
bound by the terms and conditions outlined in the agreement. You also
acknowledge that you have been given the opportunity to download and print the
Agreement. If you do not agree to the terms and conditions, you may not use,
access, or submit materials from this website or obtain a user account.