Iowa State University Plant and Insect Diagnostic Clinic Terms and Conditions - Jan. 18, 2017

1. Services. The Plant and Insect Diagnostic Clinic at Iowa State University of Science and Technology (“ISU”) shall perform the requested service on the submitted samples or images and prepare a report documenting the results (the “Services”).  ISU may provide the report to either the owner of the property from which the sample or image was taken (“Owner”) or to the individual who submitted the sample or image (“Submitter”) or both.  ISU provides services to its customers on a first come, first serve basis in most cases.

2.  Samples.  Plant, insect or soil samples should originate within the boundaries of Iowa.  Individuals with out-of-state samples may contact ISU for options.  Samples should be submitted in accordance with ISU’s directions.  ISU reserves the right to destroy any samples where directions were not followed.  Except as set forth in Section 3, ISU shall destroy samples after the Services have been completed.  ISU may take photographs or other images of the samples.

3.  Images.  Photographic or other images of samples may be submitted to ISU.  Submitter represents and warrants that it owns the copyright to the image.  If Submitter does not own the copyright, it shall notify ISU in writing at the time it submits the image.  Upon submission of any image to ISU, Submitter grants ISU permission to use, display, duplicate, distribute, and create derivative works from the image to perform the Services and for educational, research and outreach purposes.  This permission may be revoked by Submitter or Owner upon written notice to ISU.

4.  Confidentiality, Use and Disclosure.  

ISU shall treat as confidential: samples, images, results, reports and communications relating to the Services (“Confidential Information”).  Confidential Information does not include information that is or becomes generally known or available to the public through no act of ISU.  Except as set forth below, ISU shall use Confidential Information only for providing the Services and shall not disclose Confidential Information to any third party other than to ISU employees and County Extension employees who have agreed to maintain confidentiality. 

 ISU may also use the Confidential Information for educational, research, and outreach purposes and share Confidential Information with third parties in connection with such purposes so long as ISU does not disclose personally identifiable information of Owner or Submitter.  ISU may also provide others with non-personally identifiable information for statistical and tracking purposes. 

ISU may release Confidential Information to regulatory officials when required by law or when a sample or image raises regulatory or special concerns, such as the identification of an invasive species not known to occur in Iowa.  It is acknowledged and understood that ISU is a state entity subject to Iowa’s public records laws. ISU may disclose Confidential Information when required to do so in order to comply with a court order, subpoena, warrant or public records request.  Unless prohibited from doing so, ISU shall notify Owner or Submitter upon receipt of the foregoing so that Owner or Submitter may take steps to protect the Confidential Information.  

5. No Warranty.  ISU makes no representations, guarantees or warranties that it will be able to make a diagnosis.  In some circumstances, the diagnosis will be unknown or inconclusive.  Accordingly, the failure of ISU to make a diagnosis shall not constitute a breach of this Agreement.  ISU makes no representations, guarantees or warranties as to the accuracy of the results or suitability for particular applications.  ISU MAKES NO WARRANTIES REGARDING THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ISU IS NOT RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  Submitter or Owner shall indemnify and hold harmless ISU, the State of Iowa, and the Board of Regents – State of Iowa and their respective officers, employees and students from any claims, damages, fines, losses or expenses incurred by any of them arising from or in connection with their use of the results, including but not limited to sale of a commercial product based upon the results.

 

6.  Financial.  Payment for the services shall be made at the time the samples or images are submitted to ISU.  ISU reserves the right to withhold services until such payment is received.  If ISU waives pre-payment of fees, ISU shall send an invoice to the Submitter.  Submitter shall pay such invoice within 60 days of the invoice date.  Checks should be made payable to Iowa State University of Science and Technology.   Customer shall submit the payments to ISU at the following address:

ISU Treasurer’s Office
1220 Beardshear Hall
Iowa State University
Ames, Iowa 50011-2044

If payment is not received when due, ISU may impose a finance charge computed at a periodic monthly rate of 1% per month on the balance or an annual percentage rate (APR) of 12% when computed from the billing date.  The unpaid account may be referred for collection, and Submitter shall pay all collection costs and reasonable attorney’s fees if ISU must take action to recover any past due amounts. ISU reserves the right under Iowa Code §421.17(27) to offset State of Iowa tax refunds, lottery winnings or vendor payments.

       

7.   Publicity.    The parties shall not use the name or trademarks of the other party or the name of any of its employees in any publicity or advertising, including endorsements, without the prior written consent of the other party.  The parties may use the name of the party and its employees for fulfilling any reporting obligations.

8. Force Majeure.  Neither party shall be deemed in breach of this Agreement or liable for damages if its performance of any obligation under this Agreement is prevented or delayed by causes beyond its reasonable control, such as acts or omissions of communications carriers, energy shortages or outages, strikes or labor disputes of other’s workforces, fires, floods, inclement weather, acts of God, war, terrorism, civil disturbances, or acts of civil or military authorities.

9.  Relationship of Parties.  The parties are independent contractors, and these Terms and Conditions do not create any partnership, joint venture, or employment relationship.    The Services are not sought for the purpose of admitting results as evidence in litigation, and no ISU employee shall be called as an expert witness as a result of the Services rendered under this Agreement.  ISU reserves the right to provide services similar or identical to the Services to other parties.  

10. Miscellaneous.  These Terms and Conditions, along with the submission form(s), constitute the entire agreement between the parties.  All terms and conditions in other instruments, including any purchase orders issued Submitter or Owner, are void.  These Terms and Conditions shall not be modified without the written mutual consent of the parties.  The failure of either party to require performance of any term or condition of these Terms and Conditions by the other party shall not constitute a waiver to subsequently enforce such term or condition.  The invalidity or illegality of one or more provisions of these Terms and Conditions shall not affect the enforceability of the remaining provisions.  The parties’ rights and obligations in these Terms and Conditions that, by their nature, would continue beyond the termination of these Terms and Conditions shall survive such termination.  This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which shall not be unreasonably This Agreement shall be construed in accordance with the laws of the State of Iowa, without giving effect to its conflicts of law provisions, and any litigation or actions commenced in connection with this Agreement shall be instituted in a court of competent jurisdiction in the State of Iowa.

11. Authority.  The individual submitting the sample or image represents and warrants that he or she has the legal authority to enter into this contract on behalf of the Owner and/or Submitter and is authorized, and has obtained the consent of Owner or any other required party, to submit the sample or image to ISU to perform the Services and to grant the permissions set forth in these Terms and Conditions.