Terms and Conditions

Last Updated June 6,2016

1. Definitions

The J.J. MacIsaac Facility for Aquatic Cytometry (FAC) is a non-profit research and service center and an integral part of the Bigelow Laboratory for Ocean Sciences. In the performance of its services, FAC shall be deemed to be and shall be an independent contractor. FAC CUSTOMERS" are organizations and individuals that contract for the performance of FAC services. CUSTOMER'S MATERIALS are: (a) materials provided by the CUSTOMER to the FAC for processing at the FAC; and (b) materials generated by the FAC as the product of services requested by the CUSTOMER. CUSTOMER'S DATA is: (a) data provided by the CUSTOMER about CUSTOMER'S MATERIALS that is directly related to requested FAC services; and (b) data generated by the FAC as a product of services requested by the CUSTOMER. CUSTOMER'S MATERIALS and CUSTOMER'S DATA do not include materials and information that are not specific and limited to services to be provided to the CUSTOMER by the FAC, such as third-party materials and supplies and general-purpose sample and data handling protocols. Current FAC services and products, and associated fees are listed and described on the Products & Services page. The CUSTOMER acknowledges and agrees that the provision of services by the FAC is at the FAC's sole discretion and can be refused for any reason or no reason.

2. Scope of Work and Period of Performance

The CUSTOMER shall draft the scope of requested FAC services by filling out an FAC Service Request Form and sending it to the FAC Director. Both the CUSTOMER and FAC Director must agree upon the scope of work before performing services and delivering products. The FAC shall make every effort to deliver requested services as fast as reasonably possible. However, due to the variable scope of FAC service requests, specific periods of performance will vary and are subject to individual agreements between the FAC and the CUSTOMER.

3. Cost Recovery/Payment Policies

The CUSTOMER shall make payments within (30) days of receipt of invoices from the FAC. Data produced will be provided to the CUSTOMER prior to a payment request. When requesting additional service items after the initiation of a service project, the CUSTOMER may be requested to make incremental payments, upon partial completion of the requested work. In the advent of failed services, the FAC will work with the CUSTOMER to identify the underlying causation. If sample quality or CUSTOMER error is identified as the cause, then the CUSTOMER will be responsible for the full payment. In the case of error or equipment failure that is the responsibility of the FAC, then the service will be repeated (if possible) without additional cost to the CUSTOMER. Projects that are prematurely terminated by the CUSTOMER will be pro-rated based on work completed.

4. Termination

Either party may terminate a FAC service agreement upon thirty (30) days' prior written notice to the other. The CUSTOMER shall reimburse all reasonable costs and non-cancelable obligations incurred by the FAC at the time of the termination. At the request of the CUSTOMER, all unused CUSTOMER-provided materials at the time of termination shall either be destroyed by the FAC or returned to the CUSTOMER.

5. Confidentiality

Unless governed by a separate written agreement between the parties, all information about materials provided by the CUSTOMER to the FAC shall be kept confidential. All CUSTOMER Data produced by the FAC is owned by the CUSTOMER and will not be shared unless the CUSTOMER provides specific written permission to do so.

6. Publicity, Publications and Presentations

Neither party will use the name of the other party in any publicity, advertising or news release without the prior written approval of the authorized representative of the other party.

As an exception to the above, all scientific publications and presentations resulting from services provided by the FAC must acknowledge the FAC. Joint-authorship is expected for Collaborative Projects. "Collaborative Projects" are mutually agreed upon research partnerships between CUSTOMERS and FAC personnel that extend beyond the scope of FAC fee-based services. Those include, but are not limited to, the development of new laboratory and computational techniques; non-routine data analyses and interpretation; manuscript and proposal preparation.

7. Intellectual Property

Neither the FAC nor Bigelow Laboratory for Ocean Sciences shall obtain or attempt to obtain ownership rights or patent protection on CUSTOMER-provided materials or information, without the expressed written consent of the CUSTOMER. In the event of the development of an invention that is directly related to the use of, composition of, or improvement to CUSTOMER-provided materials or information, or a derivative or analogue thereof, such invention shall be promptly disclosed to the CUSTOMER. All such inventions, patent applications or patents that legally include as an inventor at least one Bigelow Laboratory for Ocean Sciences' employee shall be owned as follows: (a) Inventions directly related to the use of, composition of, or improvement to CUSTOMER -provided materials or information, or a derivative or analogue thereof, shall belong to the CUSTOMER; and (b) Inventions that cover a scientific process, technique, procedure, medium, device or other process that is not unique to processing the CUSTOMER’s materials or does not derive from CUSTOMER-provided materials or information shall be owned by Bigelow Laboratory for Ocean Sciences.

8. Handling of Materials Provided by the CUSTOMER

The FAC shall use materials provided by the CUSTOMER only for the purpose of performing services requested by the CUSTOMER. The FAC shall not be held liable for any damage to the CUSTOMER’s materials. That is, the CUSTOMER assumes full responsibility for the safe delivery of their materials to the FAC.

9. Duration of Data and Material Storage

The FAC will store Customer Data and Materials for one (1) year. Longer storage may be provided upon mutual agreement between the CUSTOMER and the FAC. The FAC shall not be liable under any circumstance for any loss or damage of stored CUSTOMER Data or Materials.

10. Warranties and Indemnity

The FAC will conduct the work hereunder in a professional manner consistent with applicable scientific standards and the processes and protocols described in scientific publications by the FAC personnel and/or on the FAC website. Beyond this, the FAC makes no warranties, expressed or implied, regarding the results of work performed. The CUSTOMER agrees to indemnify and hold harmless the FAC and Bigelow Laboratory for Ocean Sciences against any claims and costs (including reasonable attorney fees) arising out of the CUSTOMER's or any third party’s use of the results of the work performed by the FAC, except to the extent that such claim or cost results from the negligent or intentional act or omission of the FAC. Under no circumstances shall the FAC’s liability hereunder extend to indirect or consequential damages, and the FAC’s liability hereunder shall be limited to the value of the FAC's services and materials requested by the CUSTOMER.

11. Samples Containing Health and Environmental Hazards

The CUSTOMER must declare whether their materials contain biological, chemical, radioactive or other hazards prior to shipping these materials to the FAC or requesting FAC services, whichever comes first. The FAC does not accept materials constituting biosafety level III or higher, or materials containing radioactivity levels that exceed U.S. Department of Transportation Standards. It is the responsibility of the CUSTOMER to ensure correct identification, classification, packaging, labeling, marking and documentation for all shipments of infectious substances. In addition, the CUSTOMER must make advance arrangements with the FAC and the carrier, including acquisition of any permits for the importation of infectious substances from foreign countries. Failure to comply with federal and international regulations can result in refusal of the shipment by the airline, penalties of fines, jail or both. U.S. law strictly prohibits hand carriage of infectious substances by air.

The CUSTOMER is responsible for payment of all costs associated with the cleanup of their material when such cleanup is the result of the CUSTOMER’s negligence, which shall include the failure to warn the FAC of the existence of hazardous material in a shipment. Further, any and all liability for damages resulting from the hazardous material shall be borne by the CUSTOMER.

The CUSTOMER acknowledges and agrees that they shall be charged for all costs and damages, direct or indirect, resulting from the release, for any reason, of any undisclosed hazardous material or any undisclosed hazardous substance contained in a shipment tendered by the CUSTOMER.

12. Export Control

The FAC will not accept export-controlled materials or technical information under this Agreement. The CUSTOMER warrants that materials and technical information provided to the FAC are not subject to U.S. Export Control laws.

Special Material Category: Soil Samples If the CUSTOMER wants to ship soil samples (foreign or domestic), then the CUSTOMER must include a copy of the FAC’s/SCGC USDA soil permit with the shipment and attach a PPQ Form 550 Black/White label to the exterior of the package. Soil samples must be shipped in a securely closed, watertight container (test tube, vial, etc.), which must be enclosed in a second, durable watertight container. The shipment must be free from foreign matter or debris, plants and plant parts including noxious weeds and infestations by other macroorganisms. Please contact FAC Director for additional information and to request permission to submit a soil sample. For sake of clarity, note that sediment (ocean or freshwater) does not fall under this Special Material Category.

13. Customized Service Agreements

Upon a mutual agreement between the CUSTOMER and the FAC, customized service agreements may be negotiated and signed by parties, which shall supersede these Terms and Conditions for Use of FAC Services.

14. Disputes

The laws of the State of Maine and the federal laws of the United States of America shall govern the relationship between the CUSTOMER and the FAC. Any dispute arising hereunder shall be resolved exclusively in the courts of the State of Maine located in Lincoln County, Maine, USA, and the parties hereby irrevocably consent to the jurisdiction and venue of said courts.