Terms and Conditions
The Tissue Bank's prime role is to collect, log and store frozen tissue for use in approved research projects. Histological, immunocytochemical and molecular services are also provided. These services are chargeable to researchers to recover the cost of consumables.
Tissue samples are released under the following terms and conditions for use in projects approved by the Tayside Tissue Bank Committee to bona fide investigators from the University of Dundee, NHS Tayside, other academic institutions and commercial organisations.
Supply of Materials
The Tayside Tissue Bank (hereinafter referred to as "The Custodian") agrees to supply samples and / or data ("the Materials") to the Recipient Institution upon the following Terms and Conditions and in accordance with the Custodian's data/sample access policy (as may be reasonably amended by the Custodian from time to time).
In the event of any conflict between these Terms and Conditions and any Materials Transfer Agreement (MTA) that may be entered into between the Custodian and the Recipient, the terms of the Materials Transfer Agreement shall prevail.
The Recipient Institution agrees that the Materials may only be used:
- for the permitted purpose(s) agreed with the Custodian ("the Study") as outlined in the Recipients application
- by the Recipient Institution's staff, agents, subcontractors and other authorised users ("Authorised Users") who have a need to access and use the Materials for the purposes of the Study.
The Recipient Institution shall procure that its Authorised Users are made aware of and will be bound by Terms and Conditions similar to those described here so that each of the Authorised Users comply with all relevant duties, obligations and restrictions imposed on the Recipient Institution by these Terms and Conditions. Any act or omission of any such Authorised User which, if it had been committed or omitted by the Recipient Institution would have been a breach of these Terms and Conditions, will be deemed to be a breach of these Terms and Conditions by the Recipient Institution.
The terms of the Study, including the permitted purpose(s) for which the Materials may be used by the Recipient Institution, must not be varied without the prior written consent of the Custodian.
Nothing in these Terms and Conditions shall restrict or otherwise prevent the Custodian from distributing any data or samples to other third parties.
Quality Assurance
The Materials have been collected and stored in accordance with the Custodian's standard procedures for the collection and storage of such samples and data.
The Custodian confirms that valid consent from the applicable donor and/or Data Subject (as defined in the Data Protection Act 1998) is held for the Materials to be used for the permitted purpose(s).
The Custodian confirms that use of the Materials for the purpose(s) described in these Terms and Conditions falls within the Custodian's generic approval from Tayside Research Ethics Committee or that, if appropriate, the Recipient Institution confirms that ethics approval for the Study has been obtained from the relevant Local Research Ethics Committee.
Recipient and Custodian Obligations
Each of the Recipient Institution and the Custodian hereby warrants to the other that:
- it has full power and authority to enter into these Terms and Conditions and all governmental or official approvals and consents have been obtained and are in full force and effect;
- all information supplied by it to the other leading to the execution of these Terms and Conditions is, to its reasonable knowledge and belief, true and accurate; and
- to the best of its knowledge, nothing will have, or is likely to have, a material adverse effect on its ability to perform its obligations under these Terms and Conditions.
The Recipient Institution hereby warrants to the Custodian that:
all work in relation to the Materials will be carried out in compliance with all applicable laws, regulations, guidelines and approvals,
including without limitation the Human Tissue Act 2004, Human Tissue (Scotland) Act 2006, the Data Protection Act 1998 and any approvals
required from a Research Ethics Committee or the National Information Governance Board;
the Recipient Institution, and (if applicable) all of its Authorised Users having access to the Materials, are properly registered with all applicable professional regulatory bodies;
and the confirmations given at clause 2 above are true and accurate.
The Recipient Institution shall co-operate with the Custodian and provide the Custodian with such information and assistance as the Custodian may reasonably require from time to time.
The Recipient Institution will not assign, transfer, sell, lease or rent the Materials to any third party except with the prior written agreement of the Custodian. It will be a condition of any such consent if given that the third party recipient validly executes a copy of these Terms and Conditions and that such copy is provided to the Custodian.
The Recipient Institution must keep accurate records regarding its use of the Materials and, if required by the Custodian, the Recipient Institution will allow the Custodian to conduct (or to direct an appropriate third party to conduct on the Custodian's behalf) during normal business hours an audit of the Recipient Institution's use of the Materials and records arising from such use to verify their accuracy. The audit will be at the Custodian's expense unless the audit reveals that the Recipient Institution is using or has used the Materials in a manner or to an extent not authorised by these Terms and Conditions, in which case the Recipient Institution will pay all reasonable expenses associated with the audit.
In the event that the Recipient Institution (or, where applicable, any of its Authorised Users) are found to be in breach of these Terms and Conditions, the Custodian may immediately impose such sanctions as are set out in its Access Policy.
Withdrawal of Consent
The Recipient Institution will comply with the Custodian's procedure for withdrawal of donor and/or Data Subject consent, details of which are set out on the Custodian's website.
Any fee or other charges paid in relation to the Materials is non-refundable if consent is withdrawn by a donor or Data Subject.
Protection of Anonymity
The Recipient Institution will not link the Materials with any other data set except as agreed in writing with the Custodian for the purposes of the Study.
The Recipient Institution will not attempt to identify any individual from the Materials provided.
Should the Recipient Institution inadvertently identify any individual donor or Data Subject included in the Materials they will neither record this fact nor share the identification of that individual with any other person, and nor will they attempt to contact the individual themselves.
If the Recipient Institution does inadvertently identify any individual, they will inform the Custodian as soon as reasonably practicable, giving reasonable detail of the circumstances under which this occurred.
The Recipient Institution will not attempt to contact any of the donors or Data Subjects included in the Materials supplied.
Publication
The Recipient Institution will comply with the Custodian's policy for publications and presentations based (in whole or part) on the Materials supplied by the Custodian, details of which are set out on the Custodian's website.
The Recipient Institution will ensure that any publication or presentation that is based (in whole or in part) on any Materials obtained from the Custodian will include the following acknowledgement:
"We gratefully acknowledge the contribution to this [study / publication / presentation / product] made by the Tayside Tissue Bank" or similar.
The Recipient Institution agrees that the title of the Study may be published on the Custodian's website, together with a lay summary of the Recipient Institution's work and the names of the institutions where such work is taking place. The Recipient Institution also agrees that, at the Custodian's discretion and if requested, the name and contact details for the principal investigator in relation to the Study may also be provided. Requestors who do not wish their study to be openly available should state this in their application to the Custodian and give the reason.
The Recipient Institution agrees to provide the Custodian with any data and/or information arising from the use of the Materials ("Derived Information") in accordance with the Access Policy. All such data and/or information must be provided within one year of the Recipient Institution's completion of the Study unless a delay is agreed with the Custodian to protect any applicable intellectual property rights.
The Recipient Institution agrees that Derived Information submitted to the Custodian may be made available on request to the Custodian via the Custodian's standard application process, details of which are available from the Custodian's website.
Protection of Intellectual Property
Any and all intellectual property rights in the Materials are the sole and exclusive property of the Custodian or its licensors
Subject to the above, the Custodian waives all rights to any intellectual property developed by the Recipient Institution whilst using the Materials in accordance with these Terms and Conditions.
The Recipient Institution agrees that any intellectual property developed whilst using the Materials will be protected in line with the Recipient Institution's own internal practices and policies, or that of their funders, so as to ensure the adequate protection of such intellectual property.
Charges
The Recipient Institution shall pay the cost of retrieving, processing, packaging and dispatching the Materials from the Custodian to the Recipient.
The Recipient Institution undertakes to pay the cost of all reasonable charges the Custodian may make to recover costs incurred in logging, storing, and supplying Materials to the Recipient or providing technical services (including but not limited to section cutting, staining, nucleic acid extraction, tissue microarray construction, immunohistochemistry).
Completion of Study
Materials destroyed or returned at Custodian's discretion: Subject to clause 9.3, the Recipient Institution agrees that it will, on the instruction of the Custodian, either destroy or return to the Custodian any Materials remaining in its possession or under its control
- in the event that any applicable consent is withdrawn; and
- once the Study is complete
For Data
In the event that any applicable consent is withdrawn or should the Study be completed, the Recipient Institution will notify the Custodian forthwith and the Recipient Institution will delete all data files and securely destroy any removable media containing the data and they will then notify the Custodian that such data has been destroyed.
Nothing this in this clause 9 shall require the Recipient Institution to return or destroy, or otherwise prevent the Recipient Institution from continuing to use, any information and/or data acquired by the Recipient Institution from their research using the Materials.
Indemnity
The Recipient Institution will indemnify the Custodian and hold the Custodian harmless in respect of any loss, claims, damage or liability of whatsoever kind or nature, which may arise out of or in connection with the use, handling, storage or disposal of the Materials by the Recipient Institution.
Limitation of Liability
The Materials are provided by the Custodian "as is" without any warranty of satisfactory quality or fitness for a particular purpose or use or any other warranty, express or implied.
In no event shall the Custodian be liable to the Recipient Institution or any third party for any special, incidental, consequential, exemplary, punitive or indirect damages including, without limitation, loss of goodwill, loss of profits or revenue, loss of savings, work stoppage or data loss arising out of or in any manner connected with these Terms and Conditions.
Nothing in these Terms and Conditions shall be deemed or construed so as to limit, restrict or exclude the liability of a party for death or personal injury caused by that party's negligence or for any loss, damage or other liability arising out of that party's fraudulent or criminal acts, statements or omissions.
Term and Termination
Either the Custodian or the Recipient Institution may terminate these Terms and Conditions, upon written notice to the other, if the other party materially breaches any term or provision of these Terms and Conditions and fails to cure that breach within one month after receiving written notice thereof from the non-breaching party.
Within one month after the termination of these Terms and Conditions, the Recipient Institution shall (at the Custodian's option) destroy or return to the Custodian any of the remaining Materials in its possession or under its control, and the Recipient Institution will certify to the Custodian that all of the Materials have been destroyed or returned as appropriate.
Those parts of these Terms and Conditions that by their nature should survive the termination of these Terms and Conditions shall so survive, including without limitation provisions dealing with protection of intellectual property, charges, completion of the Study, indemnity, limitation of liability, term and termination, third party rights, and law and jurisdiction
General
No provision under these Terms and Conditions is intended to be enforceable by any person who is not a party to these Terms and Conditions.
All variations to the provisions of these Terms and Conditions must be agreed, set out in writing and signed on behalf of the parties before they take effect.
These Terms and Conditions sets out all of the terms under which materials are provided by the Custodian to the Recipient.
In these Terms and Conditions, references to any legislation shall be to that legislation as amended, extended or re-enacted from time to time.
Nothing in these Terms and Conditions shall create a partnership, joint venture or relationship of agency between the parties or give the rights of a partner to either party.
Neither party will be liable to the other for any failure or delay in performance under these Terms and Conditions due to circumstances beyond their reasonable control including, without limitation, Acts of God, labour disruption, war, terrorist threat or government action provided that if either party is unable to perform its obligations under these Terms and Conditions for one of these reasons it shall give prompt written notice thereof to the other party and the time for performance, if any, shall be deemed extended for a period equal to the duration of the conditions preventing performance.
Neither party may assign any of its rights or obligations under these Terms and Conditions without the prior written consent of the other.
Any notices given under these Terms and Conditions shall be in writing and shall be served by hand, post or electronic mail by sending the same to the address for the relevant party. Notice by (i) post shall be effective upon the earlier of actual receipt, or 4 days after mailing; (ii) hand shall be effective upon delivery; and (iii) electronic mail shall be effective when sent in legible form, but only if, following transmission, the sender does not receive a non-delivery message.
These Terms and Conditions are governed by Scottish law and the parties submit to the exclusive jurisdiction of the Scottish courts in relation to any dispute concerning these Terms and Conditions.
