THIS IS AN EXAMPLE OF AN AGREEMENT
that people have used with FMT Donors.
Please note that the primary purpose of an agreement is to promote
understanding, not to be enforced in a court of law. This is a difficult area
legally and such agreements would be unlikely to be watertight if tested.
So the best approach is to discuss and document all the issues so that you
and your donor are on the same page and disputes do not occur
WAIVER AND RELEASE OF LIABILITY
This Agreement is between ---------------------------------- Joe Smith of (town/state) and Rob Johnson (and
family members) of (town/state) on this _______day of (Month), (Year) .
WHEREAS Smith desires to use bodily material from one or more members of the Johnson family (listed
above) in order to have performed a Fecal Microbiota Transplantation, (hereinafter FMT); and,
WHEREAS the Johnsons have agreed to donate the necessary material in order for Smith to be able to
proceed with the FMT;
It is AGREED between the Parties as follows:
•
INTENT: It is the intent of the parties that in return for the donation of bodily material to him,
Smith agrees to accept all risk, release the Johnsons from all liability whether intentional or
negligent for the Johnsons' own actions or those of others involved in the procuring of the
material or conducting the procedure.
•
RELEASE: Smith agrees to release, waive, discharge, and covenant not to sue the Johnsons,
their agents and/or assignees from all liability to Smith, his personal representative, heirs, and
next of kin for any loss, damage, claim or demands therefore on account of injury resulting to
him whether caused by the donated material or the FMT procedure whether caused by the
negligence or otherwise. It is expressly understood between the parties that the provisions of
this paragraph (2) release provisions of this Agreement shall remain in full force and effect after
the termination or early termination of this Agreement and will remain fully enforceable against
Smith, his heirs, assigns or agents in perpetuity.
•
INDEMINIFICATION: Smith agrees to indemnify and save and hold harmless the Johnsons from
any loss, liability, damage or cost that may incur due to the donation or the FMT procedure
whether caused by the negligence or otherwise. It is expressly understood between the parties
that the provisions of this paragraph (3) indemnifiation provisions of this Agreement shall
remain in full force and effect after the termination or early termination of this Agreement and
will remain fully enforceable against Smith, his heirs, assigns or agents in perpetuity.
•
ACCEPTANCE OF RISK: Smith understands that the Johnsons make no guarantees about the
donated material. Smith agrees with regard to the Johnsons, to assume full responsibility for
and risk of any damage arising out of his use of the donated material or the FMT procedure
whether caused by the Johnsons or others and whether caused by negligence or otherwise.
•
COMPENSATION:
It is understood between the parties that the Johnsons are providing
the material as a service to Smith in hopes of the medical procedure improving his condition and
quality of life. No monetary compensation has been offered or accepted for this service.
•
It is specifically understood between the parties that this waiver applies solely to Smiths
agreement with the Johnsons and is in no way intended to prevent or thwart any legal claims
Smith might choose to pursue at a later date against others who are involved in the FMT
procedure or the collection of the material.
•
MEDICAL TESTING: It is further understood between the parties that Smith has requested
certain medical information regarding whether any member of the family is infected with AIDS
and/or Hepatitis C and/or Syphilis and/or HIV and has been informed by Johnson that to the
best of his knowledge no member of the family is so infected. Smith specifically waives any
requirement for medical testing to confirm this information and agrees to hold the Johnsons
harmless should these items become an issue in the future.
•
It is also understood by Smith that in addition to the AIDS virus. the Hepatitis C virus. Syphilis
and/or HIV there are always the risk of potential infection from additional infectious agents that
can be transmitted by a donor to a recipient. The parties are not currently aware of any specific
infectious agents at present. Smith specifically waives any requirement for medical testing to
confirm this information and agrees to hold the Johnsons harmless should these items become
an issue in the future.
•
CONFIDENTIALITY: It is understood between the parties that as a result of this agreement and
the actions it outlines, each party will be in possession of confidential information about the
other party which is valuable, special and a unique asset of each party and that this information
needs to be protected from improper disclosure. In consideration for the mutual promises
exchanged herein as outlined in this document, neither party will at any time or in any manner,
either directly or indirectly, disclose any information about the other party (or in the case of the
Johnsons, their children) to a third party without prior, written consent of the affected party or
its children. Each party will protect the other’s information and treat it as strictly confidential. A
violation of this paragraph shall be a material violation of this Agreement
•
CONFIDENTIALITY AFTER TERMINATION. The confidentiality provisions of this Agreement shall
remain in full force and effect after the termination of this Agreement.
•
Smith hereby affirms that he understands that there are potential risks involved in performing
an FMT. Smith further affirms that he fully accepts those risks, having consulted with his
Doctor(s) about the potential risks, and fully accepts any and all medical and health
consequences that may result from performing the FMT using any fecal material from any
member of the Johnson Family. Smith further affirms that he is undertaking the performance of
any FMT of his own free will.
•
EARLY TERMINATION: Notwithstanding the provisions of paragraph 17, either party may
terminate this Agreement by sending the other party a written notice stating its intention to
terminate this Agreement at the end of thirty days. With the exception of rights expressly
reserved in paragraphs 2, 3 and 9, both parties expressly waive any legal rights for the further
enforcement of this contract if a 30 days termination letter is sent and received.
•
ENTIRE AGREEMENT.: This document contains the entire Agreement of the parties and thesre
are no other promises or conditions in any other agreement whether oral or written. This
Agreement supersedes any prior written or oral agreements between the parties.
•
AMENDMENT: This Agreement may only be modified or amended if the amendment is made in
writing and is signed by all parties.
•
SEVERABILITY: If any provision of this Agreement shall be held to be invalid or unenforceable for
any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds
that any provision of this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid and enforceable, then such provision shall be deemed to be
written, construed, and enforced as so limited.
•
WAIVER OF CONTRACTUAL RIGHT: The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with every provision of this Agreement.
•
TERM/TERMINATION: This Agreement shall terminate automatically upon 1 year from the
effective date of this Agreement.
•
APPLICABLE LAW: This Agreement shall be governed by the laws of the (State of Residence).
PLEASE READ CAREFULLY BEFORE SIGNING.AS THIS CONSTTUES A RELEASE OF LIABILITY AND WAIVER OF
CERTAIN LEGAL RIGHTS
ACCEPTED AND AGREED:
__________________________________
Recipient Signature
_________________
Date
___________________________________
Recipient Name
__________________________________
Donor Signature
___________________________________
Donor Name
_________________
Date