Terms & Conditions

Term & Conditions – Continuous Monitoring

1. DEFINITIONS

1.1.   In these Terms and Conditions:

“Agreement” means collectively these Terms, all applicable POs, Quotes and/or order confirmations, any MesaCare Agreement in effect between Mesa and Customer and any schedules and addenda entered into and executed by the Parties.

“CM-System” means a Mesa continuous environmental monitoring system to which these Terms apply.

“Customer” means the person or company purchasing Products and/or Services from Mesa.

“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or a User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.

“Delivery” means Mesa making the Products available to the designated carrier as provided in Section 4 of these Terms.

“Device” means access point(s), repeater(s), power supplies, sensors, accessories, and probes that comprise a CM-System.

“Firmware” means the Mesa proprietary firmware embedded in certain Devices.

“Installation Services” means installation and qualification services purchased (as reflected in the applicable PO) in connection with the purchase of a CM-System, including mounting the Devices, connecting the CM-System to the Customer’s network, programing all Devices, either installing the Software at the Site or configuring the SaaS, testing and verifying that all Devices and Software are operational, calibrating inputs on-site, and/or providing NIST-traceable probes with calibration certificates.

“Mesa“ means Mesa Laboratories, Inc. or a subsidiary or affiliate thereof, as identified on the applicable PO.

“MesaCare Package” means a software license, maintenance, service and support package purchased to be used in connection with a CM-System.

“Party” means Mesa or the Customer individually, and “Parties” means both of them collectively.

“PO” means a written purchase order for Products and/or Services which is issued by the Customer and accepted by Mesa in writing, including by email confirmation.

“Products” means the Devices, Firmware, Software and/or CM-Systems identified in and purchased through a PO governed by these Terms.

“SaaS” means a software installation that is cloud-hosted by Mesa, including usage and maintenance of Mesa’s cloud-based software installation, system access and configuration, data hosting and storage.

“Services” means Installation Services, services provided under a MesaCare Package, and any other services, in each case as specifically identified in and purchased through a PO governed by these Terms.

“Site” means a location at which a CM-System is installed.

“Software” means Mesa’s proprietary software, including SaaS, which operates the CM-Systems.

“Terms” means the Terms and Conditions set out herein.

2. CONTENT OF TERMS

2.1.   Unless otherwise agreed in a writing executed by the Parties, every purchase of Products and/or Services from Mesa by the Customer shall be governed by these Terms.

2.2.   No modification, change or amendment to these Terms shall have effect unless expressly agreed to in a separate writing executed by the Parties, specifically referencing these Terms.

2.3.   If there is any conflict between these Terms and any terms or conditions contained in any Quote (as defined below), PO, addendum, communication, or other document, these Terms shall prevail.

3. BASIS OF SALE; PRICES; PAYMENT

3.1.   Purchase and sale of Products and/or Services shall be made only pursuant to a PO. No PO will be deemed accepted by Mesa unless and until (a) the PO is accepted in writing by Mesa, or (b) the Products are shipped by Mesa to the Customer, or (c) Services are commenced.

3.2.   The prices of the Products and Services shall be as set forth on a written quotation from Mesa (“Quote”). The Quote will state an expiration or “valid until” date. If the Customer issues a PO without a valid Quote and Mesa accepts the PO, then the price of the Products and Services shall be as set forth on Mesa’s standard price list, as of the date the PO is received by Mesa.

3.3.   Notwithstanding anything contained herein to the contrary, Mesa is not obligated to accept any order or PO from the Customer.

3.4.   Customer shall be responsible for all taxes, duties, fees or other charges of any nature (including, but not limited to consumption, import, property, sales and value added taxes). All such amounts are in addition to prices for Products and Services.

3.5.   Unless otherwise agreed in writing between Mesa and Customer, Customer shall pay all invoiced amounts for the Products and/or Services in the currency set forth on the PO or invoice, and if no currency is so listed, the currency shall be U.S. Dollars, without set-off or deduction, within thirty (30) days from the invoice date; provided that advance payment may be required for certain products and product lines. The time for payment shall be of the essence. Upon Mesa’s approval, Customer may pay an invoice by credit card. Customer represents and warrants that its employees, representatives, or other personnel that may place an order from time to time (each a “Customer Representative”) are duly authorized to do so and further represent and warrant that (i) the credit card information supplied by Customer to Mesa is true, correct and complete, (ii) the Customer Representative is duly authorized to use such credit card for the purchase of the Products or Services, and (iii) charges incurred by Customer will be honored by Customer’s credit card company. Mesa reserves the right at Mesa’s discretion to withdraw or refuse any credit facilities and require payment in advance for orders placed by the Customer.

3.6.   If the Customer fails to make any payment as and when due, in addition to seeking any and all other legal and equitable rights and remedies available to Mesa, Mesa shall be entitled to:

• • suspend any further deliveries and performance of Services; and
  • charge the Customer interest on the amount unpaid at the rate of eighteen percent (18%) per annum until payment in full is made.

3.7.   Shipping and handling charges may apply in an amount to be determined by Mesa in its discretion.

4. DELIVERY

4.1.   Mesa will ship all Products via FCA Seller’s Facility, Incoterms® 2020, to the Customer’s address stated in an applicable PO. For the avoidance of doubt, Mesa will arrange for carriage of the Products from its place of business through a carrier designated by Customer in writing. If Customer does not designate a carrier, then Mesa will designate one. Mesa fulfills its obligation under a PO upon Delivery of Products to the carrier.

4.2.   Title and risk of loss of the Products shall pass to the Customer upon Delivery for shipped Products.

4.3.   Product Delivery and Service performance and completion dates and times stated by Mesa are approximate, and such dates and times are deemed not of the essence. Mesa will use commercially reasonable efforts to meet desired delivery and completion dates but will not be liable to Customer in any way for any late shipment or completion.

5. INSPECTION; ACCEPTANCE/REJECTION

5.1.   It is the responsibility of the Customer to inspect the Products upon receipt. Customer shall notify Mesa, within five (5) business days of receipt, of any wrong Products delivered, damage to the Products, or discrepancy in the quantity of Products delivered. If Mesa timely receives such notice, it will in writing (which may be by email) authorize Customer to return the wrong, damaged, or excess Products to Mesa. If the Customer does not notify Mesa within such 5-day period, then the Products shall be deemed to be in accordance with the PO and accepted by the Customer.

5.2.   Following receipt of Mesa’s return authorization, Customer shall ship the wrong, damaged or excess Products (as the case may be) to Mesa, at Customer’s expense, contemporaneously with a copy of the notice referenced in Section 5.1 above, including Product shortfalls, if any. Upon receipt of returned Products, Mesa shall, at its option, with reasonable promptness, either repair or replace any nonconforming or damaged Products, and ship such repaired or replaced Product to Customer at Mesa’s expense. In the event of quantity discrepancies, Mesa shall refund the price paid by the Customer for any excess quantity of Products, deliver the shortfall number of Products, and/or adjust the corresponding invoice to reflect the correct number of Products shipped. The foregoing are the Customer’s exclusive remedies and Mesa’s sole liability and obligation in the event of errors in shipments or damages to Products.

6. PRODUCT RETURN/REFUND POLICY /CANCELLATION POLICY

6.1.   Products may be returned to Mesa by no later than 30 days after Delivery. Only Products in original and unused condition for which a Return Authorization has been issued by Mesa will be accepted. The returned Products must be returned in their original packaging, and received by Mesa within the return window, and must be accompanied by a written certification from Customer that they had not been used and are in salable condition. All Products returned after Delivery under this section, shall be subject to a thirty percent (30%) re-stocking fee. Return of defective Products are governed by Section 5.

6.2.   Customer shall return the Products at its own cost and expense, with all freight being prepaid.

6.3.   If Customer cancels a PO for Products later than 30 business days after the date of the PO, Customer shall pay a cancellation fee equal to 30% of the total PO value (not including shipping fees, taxes, etc.). The Customer will also be responsible for any costs incurred by Mesa in preparing to perform installation and related Services with respect to POs cancelled by Customer.

6.4.   Mesa will issue an invoice to Customer for any cancellation or restocking fees.

6.5.   Invoice charges shall include (i) applicable taxes unless a proper tax exempt certificate is provided to Mesa and (ii) shipping costs at applicable rates unless Customer provides Mesa with a Customer shipping account to be charged.

6.6.   Any installation or related Service charges and costs on returned Products are not refundable.

7. SERVICES

7.1.   In connection with any Services to be performed on-site, Customer shall (a) provide and maintain a suitable environment as specified by Mesa for the Products to be installed and/or serviced by Mesa; (b) make appropriate Customer personnel available, and provide access to the Site as reasonably necessary; (c) maintain and keep the Customer’s CM-System(s) in good and safe operating condition, normal wear and tear excepted; (d) maintain accurate and complete records of all repairs and maintenance of the Customer’s CM-System(s) and allow Mesa to inspect those records at any time; (e) put the Products only to the use contemplated by Mesa and comply with all laws, ordinances, and regulations applicable to the Customer’s CM-System(s) or its/their use; (f) provide Mesa’s service representatives full unrestricted and safe access to the Site as required to provide the Services hereunder; (g) not make any alterations, additions, or improvements to the Customer’s CM-System(s) without Mesa’s prior written consent; (h) promptly inform Mesa of the relocation or movement of the Customer’s CM-System(s) or any Device part thereof; (i) ensure that any applicable operator tasks and procedures on problem determination, analyses and recovery have been carried out; and (j) be solely responsible for the reconstruction of any lost or altered files, data or programs and for carrying out all backup procedures so that data integrity can be maintained, it being understood that extra charges will apply if Mesa is requested to reconstruct any lost or altered files, data or programs or recovery of lost data.

7.2.   Services requested outside of the scope of a valid and effective MesaCare Package shall be billed at Mesa’s then-current rates unless otherwise set forth on a valid Quote or applicable statement of work agreed in writing by Mesa. Any Quote for Services not covered by a MesaCare Package shall reflect an estimate of the total hours necessary for Mesa to perform the Services, it being understood that actual completion times may vary. Scheduling of Services shall be subject to personnel availability, and Mesa shall not be responsible for delays caused by rescheduling of Services by Customer. Any changes to the scope of work to be performed during a scheduled on-site Service must be agreed in writing prior to performance of such Service.

7.3.   The Customer shall notify Mesa in detail of any nonconformances in Mesa’s performance of any Services, or any nonconformances in the Products delivered and installed by Mesa at the Customer’s premises, prior to Mesa leaving the Customer’s premises. If the Customer signs and acknowledges Mesa’s completion of any work order for Installation Services, the installed Products and the Installation Services shall be deemed to be accepted by the Customer.

7.4.   Mesa warrants to Customer that it will provide the Services in a professional and workmanlike manner, consistent with industry standards. Customer’s exclusive remedy for a breach of this warranty is for Mesa to re-perform the Service at no extra charge. Customer must notify Mesa of any breach of this warranty within 30 days of the date of the provision of the non-compliant Services.

7.5.   In the event of any conflict between these Terms and the terms of an applicable agreement between Customer and Mesa with respect to a MesaCare Package (a “MesaCare Agreement”), the terms of such MesaCare Agreement shall prevail.

8. SAAS

8.1.   If Customer orders a SaaS subscription, upon Customer’s payment of all applicable subscription fees and charges and for the term covered by an applicable MesaCare Agreement (or, in the absence of any MesaCare Agreement or other express agreement as to the term of such license, for a term not to exceed one year after payment of such applicable subscription fees), Mesa grants to Customer a limited, nonexclusive, nontransferable right to access and use the SaaS identified on the applicable PO. The SaaS may be used solely in connection with operation of the Products installed at a Customer Site. The restrictions, prohibitions and limitations governing Customer’s conduct with respect to Software shall equally apply to the SaaS. The following additional restrictions shall apply to Customer’s rights to access and use the SaaS:

• • Only authorized employees of Customer with a need to access and use the SaaS (“Users”) may exercise Customer’s subscription rights.
  • Customer may not (i) directly or indirectly distribute, resell, rent, lease, subcontract, operate or otherwise grant access to, or use the SaaS for the benefit of any third party (whether or not in a timesharing or service bureau environment); or (ii) attempt to interfere with, circumvent security or access restrictions, or disrupt the SaaS; or (iii) disclose any passwords or other security or authentication device with respect to the SaaS to any person other than the person to whom it was issued. Customer is solely responsible for all activity and use of the SaaS that occurs under Customer’s account or password.
  • Customer and its Users may not use the SaaS in any way that threatens the integrity or security of any device, network or computer system or adversely affects other Mesa customers. This includes but is not limited to: (a) gaining or attempting to gain unauthorized access to servers, networking devices or Services; (b) “Internet scamming” (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, probing, monitoring or testing for system or network vulnerabilities; or (c) introducing viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, packet bombs, cancel bots or other computer programming routines or malware that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
  • Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
  • Customer agrees to ensure compliance with these Terms by its employees and shall at all times remain primarily responsible for any acts or omissions by them.

9. SOFTWARE LICENSE

9.1.   If the Product purchased includes Software, whether embedded Firmware, delivered Software for installation on the Customer’s systems, or SaaS, then:

• • Customer acknowledges that the Software is proprietary to Mesa, and Customer will not use the Software on or in connection with products, equipment, systems, or software other than the Product(s) or those intended for use with the Software as expressly instructed by Mesa. Mesa retains all right, title, and interest in and to the copyrights, patent rights, trade secret rights, and all other proprietary rights in and embodied in the Software. Customer’s rights are only as expressly granted in Section 9.1.2 below. Mesa reserves all rights not expressly granted to Customer.
  • Mesa grants to Customer a limited, non-transferable, non-exclusive license to delivered and embedded Software solely to the extent necessary to use, access and display the Software, and solely in connection with operation of the Product(s) by Customer with the Devices at the Sites, in each case solely during the term of an applicable MesaCare Package. This limited license allows Customer to: (A) operate and control the Devices; (B) collect and display data from the Devices; and (C) make copies of the Software for back-up purposes to the extent mandatory applicable law so permits. These rights shall be limited to those sections, features and the like of the Software to which specific rights have been separately granted, in accordance with Customer’s payment obligation relating to the same. The foregoing license may not be assigned or transferred by Customer, voluntarily or by operation of law (including without limitation, by transfer of ownership interests in Customer), to any party without Mesa’s express prior written permission. Customer shall not sublicense, prepare derivative works, modify, or otherwise interfere with the Software.
  • The Software in source code form is and will always remain a confidential trade secret of Mesa. The Software and related documentation are protected by the copyright, patent, trademark, and trade secret laws of the United States and other jurisdictions, international treaties and conventions, and all other relevant intellectual property and proprietary rights and applicable laws. Mesa reserves all rights not expressly granted in these Terms, and no rights or licenses shall be deemed or inferred to be granted or transferred hereunder, whether by implication, estoppel, or otherwise.
  • All right, title, and interest to any questions, comments, or feedback provided by Customer to Mesa regarding the Software, documentation, or any other products, services, or materials provided by Mesa (collectively “Feedback”) are retained by Mesa. By providing Feedback, Customer grants to Mesa an exclusive, transferable, worldwide, royalty-free, fully paid up license (with rights to sublicense through multiple tiers of sublicensees) to use and exploit all Feedback. If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Mesa those non- assignable and non-licensable rights, title and interest.
  • The license granted pursuant to this Section 9.1 shall automatically terminate upon termination or expiration of the applicable MesaCare Package. Immediately upon such termination, Customer must cease use of the Software and associated documentation, and as applicable, promptly delete, destroy or return to Mesa the original and all copies of the Software and associated documentation, and other CI (as defined below) in Customer’s possession or control, and remove the Software from any Devices. Mesa may require Customer’s authorized representative to certify in writing that such Software, documentation and Confidential Information were deleted and/or destroyed, and Customer shall promptly comply with such requirement.
  • If multiple Software is licensed together as a single license, such bundled Software is licensed to be used as a bundle and no component of the bundle may be used on a standalone basis unless specified in the applicable ordering documentation. If the Software is provided as embedded Software, that Software may not be used in combination with a standalone Device other than the Device on which the Software was embedded, unless specified in the applicable ordering documentation or otherwise agreed in writing between Mesa and Customer.
  • Customer agrees that it shall not (A) disclose the Software to any third party; (B) duplicate, reproduce or copy all or any of the Software; (C) reverse-engineer, disassemble, decompile, decipher, analyze, attempt to extract source code or proprietary information from, or translate the Software or any copy of the Software, or otherwise attempt to discover the source code or underlying ideas, procedures or algorithms of the Software, except solely to the most minimal extent that Mesa is not permitted by applicable law to exclude or limit such rights; (D) alter or modify the Software in any way or prepare derivative works of the Software or any part or parts of the Software; (E) alter, remove or obstruct any copyright or proprietary notices from the Software, or fail to reproduce the same on any lawful copies of the Software; (F) copy the Software onto any public or distributed network; (G) directly or indirectly distribute, resell, rent, lease, subcontract, operate or otherwise grant access to, or use the Software for the benefit of any third party (whether or not in a timesharing or service bureau environment); (H) place a disproportionate load on the Software so as to interfere with the Software or prevent others from using the Software (or related Mesa services); (I) introduce any open source software onto the Software or Mesa’s systems which enable the Software; (J) introduce any virus or harmful code onto the Software or Mesa’s systems which enable the Software; or (K) use any automated means, including, without limitation, agents, robots, scripts or spiders, to access, monitor, or copy any part of the Software or related Services; or (L) gain unauthorized access to or attempt to circumvent security and access limits and protections on any Software.
  • Customer may permit a third-party to use the Software on the condition that such use is: (i) for Customer’s benefit; (ii) for Customer’s internal operations; and (iii) in compliance with these Terms. Customer shall remain liable for any breach of these Terms by any such third-party.
  • Mesa may substitute the Software with new or replacement software at any time, in which case the license restrictions set forth above shall apply to such replacement Software.
  • Mesa warrants that the Software licensed under these Terms will perform substantially in accordance with the applicable documentation provided by Mesa for the duration of the term provided in the applicable MesaCare Package. If the Software does not operate as warranted above, at Mesa’s option and expense, Mesa shall repair, replace or cause the refund of the license fees paid for the non-conforming Software. This remedy is conditioned on Customer promptly reporting the non-conformance in writing to Mesa. Any replacement Software will substantially conform to the accompanying documentation. The remedy set forth in this limited warranty section is Customer’s exclusive remedy under the warranty. This warranty does not apply in the event of a failure caused by an Excluded Event (as defined below).
  • EXCEPT AS SET FORTH IN THIS SECTION, MESA PROVIDES THE SOFTWARE “AS IS” AND EXPRESSLY DISCLAIMS AND EXCLUDES ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR MEETING CUSTOMER’S REQUIREMENTS OR USAGE OF TRADE, COMPATIBILITY, OR INTEROPERABILITY WITH ANY HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY MESA, SATISFACTORY QUALITY, NONINFRINGEMENT OF ANY THIRD-PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR FREEDOM FROM INTERRUPTION OR ERROR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. MESA DOES NOT WARRANT THAT THE SOFTWARE IS FREE OF INACCURACIES, ERRORS, BUGS, VIRUSES, INTERRUPTIONS OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS OR THAT ALL ERRORS WILL BE CORRECTED. TO THE EXTENT THAT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD OR ANY SHORTER DURATION PERMITTED BY APPLICABLE LAW. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. MESA ALSO DOES NOT WARRANT THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS OR THAT THE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE SOFTWARE IS USED, WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. MESA IS NOT RESPONSIBLE FOR ANY DELAYS, FAILURES OR ANY LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND DOCUMENTATION MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATION FACILITIES.
  • During the applicable license term of the Software, and for a period of three (3) years after its expiration or termination, Customer will take reasonable steps to maintain complete and accurate records of Customer’s use of the Software to verify Customer’s compliance with these Terms. Some Software may provide information to Mesa about Customer’s use of the Software to verify that the Software is being used in accordance with a valid license and/or entitlement. By using such Software, Customer consents to the transmission of such information. Customer will allow Mesa, at Mesa’s expense, to audit Customer’s use of the Software for compliance with these Terms no more than once per twelve (12) month period. Mesa will provide Customer with reasonable advanced written notice of the audit. The audit will occur during Customer’s normal business hours, and shall not unreasonably interfere with Customer’s business. If an audit discloses underpayment of license fees, Customer will pay such license fees, plus the reasonable cost of the audit, within thirty (30) days of receipt of written notice. Mesa is not responsible for any of Customer’s costs incurred in cooperating with the audit. Mesa’s knowledge of Customer’s use of the Software beyond the scope of the license shall not operate as a waiver of Mesa’s rights to enforce these Terms under any legal or equitable doctrine.
  • The Software and associated documentation licensed under these Terms are “commercial items” as defined at FAR 2.101, comprised of “commercial computer software” and “commercial computer software documentation” as those terms are used in FAR 12.212. Consequently, if Customer is the U.S. Government or a department or agency thereof, Customer shall acquire only those rights with respect to the Software that are set forth in these Terms.

10. LIMITED PRODUCT WARRANTY

10.1.                Mesa warrants to Customer that the Products (excluding any batteries, which are not warranted by Mesa) will be free from defects in material and workmanship, under normal use, for a period commencing on Delivery and expiring one year thereafter.

10.2.                To claim warranty services related to a Product, Customer shall promptly notify Mesa in writing prior to the expiration of the applicable warranty period, and upon receipt of Mesa’s written return authorization, shall ship the defective Products to Mesa, at Customer’s expense, together with a copy of such warranty claim notice. Upon receipt of such returned goods, Mesa shall determine whether the Products are eligible for an applicable warranty. If Mesa determines that the Products are eligible for a warranty, Mesa shall, at its option, either (i) repair or replace the defective Product, and ship such repaired or replaced Product to Customer at Mesa’s expense, or (ii) refund the purchase price paid by Customer for the defective Product. Any repair or replacement by Mesa shall not extend or renew the warranty period. If Mesa determines that the Products are not eligible for a warranty, Mesa shall notify Customer, and, at Customer’s direction, either repair the Products if possible or return the Products to Customer at Customer’s expense.

10.3.                The warranties in Section 10 are not applicable to, and is void and of no force and effect with respect to defects or damage resulting in whole or in part from (i) Customer’s use of the Products other than in their normal and customary manner; (ii) misuse, abuse, accident or neglect of or to the Products; (iii) normal wear and tear; (iv) modification or alteration of the Products; (v) parts, accessories, attachments, software or other devices not furnished by Mesa; (vi) any Force Majeure event; (vii) failure of, fluctuation in, or interruption of commercial power, infrastructure, network, connectivity, servers or other hardware, and software not furnished by Mesa; (viii) battery failure, or (ix) any acts or omissions by anyone other than Mesa (each an “Excluded Event”). In all cases, Mesa has sole responsibility and discretion for determining the cause and nature of a Product defect, and Mesa’s determination with regard thereto shall be final.

10.4.                THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MESA DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO WARRANTIES ARE MADE BY ANY OF MESA’S LICENSORS OR SUPPLIERS. NO AGENT, REPRESENTATIVE OR EMPLOYEE OF MESA HAS ANY AUTHORITY TO MAKE ANY REPRESENTATIONS OR WARRANTIES ON BEHALF OF MESA. THE REMEDIES HEREIN PROVIDED ARE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSSES OR DAMAGE RESULTING FROM MESA’S BREACH OF THIS WARRANTY.

11. DISCONTINUATION OF PRODUCTS AND SERVICES

11.1.                In the event Mesa discontinues or phases out any Product or Service, Mesa will use commercially reasonable efforts to notify Customer prior to such discontinuation and to: (a) offer a functionally comparable replacement product or service, if one is available; (b) continue support and maintenance, if applicable, for the remainder of the stated support term or a period of 90 days following notice, whichever is shorter; and (c) fulfill any remaining warranty or service obligations in accordance with their terms.

11.2.                The obligations set forth in Section 11.1 represent Mesa’s sole obligation in connection with the discontinuation of any Product or Service. Mesa will not be liable for any other costs, losses, or damages arising from such discontinuation, except as expressly provided herein or required by applicable law.

12. LIMITATION OF LIABILITY; INDEMNIFICATION

12.1.                TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL MESA BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, LIQUIDATED, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, BUSINESS, INCOME, REVENUE AND PROFITS, REPUTATION, ANTICIPATED SAVINGS, OPPORTUNITY, GOODWILL, OR DATA), LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES OR OTHER LOSSES OF ANY KIND OR CHARACTER. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IRRESPECTIVE OF WHETHER MESA HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES ARISING OUT OF THE USE OF THE PRODUCTS. MESA DISCLAIMS ALL LIABILITY OF ANY KIND OF MESA’S SUPPLIERS AND LICENSORS.

12.2.                Mesa shall furthermore not be liable for any loss or damage to, loss in value of, or loss of revenue or anticipated profits from, any of Customer’s products or materials (or the products or materials of any third party) stored in the facilities monitored by the Customer’s system, under any theory of law, even if such loss or damage is caused by failure of or defect in any Product purchased hereunder, and regardless of whether such failure or defect arises out of Mesa’s design, manufacture, installation or service of any Product; and

12.3.                Mesa shall furthermore not be liable for: (i) the loss of use of any SaaS, provision of substitute SaaS or other services; (ii) the loss of, damage to, compromise, corruption, unauthorized access to, or recreating Customer’s (or third party’s) data; (iii) any data privacy issues, breaches, or violations; or (iv) any claims related to the processing, storage, or handling of Customer Data, in each case under any theory of law. Customer’s exclusive remedy, and Mesa’s sole responsibility, with respect to SaaS failures is as expressly set forth in a Services Addendum A if Customer purchases SaaS.

12.4.                Notwithstanding Section 12.1 and 12.2 above, and except for damages caused by Mesa’s gross negligence or willful misconduct, in no event will Mesa’s aggregate liability to Customer or any third-party in any matter arising from, relating to or in connection with these Terms, and any other terms and conditions between the Parties relating to the Products or Services, exceed the amount actually paid to Mesa by Customer for the Product or Service giving rise to Customer’s claim during the (6) months prior to the occurrence of the event giving rise to such liability.

12.5.                Customer shall indemnify and hold Mesa harmless from and against any and all loss, cost, damage and expense, including reasonable attorneys’ fees (“Loss”) suffered or incurred by Mesa in connection with any claim, demand, action, suit or proceeding to the extent that such Loss arises out of (i) Customer’s use of the Products or Services other than their normal and customary use, (ii) Customer’s continued use of any Product for which Customer has received notice that such Product cannot be repaired or calibrated or is otherwise not fit for use, (iii) parts, accessories, attachments, software or other devices not furnished by Mesa, (iv) Customer’s use of Products that have been serviced by anyone other than Mesa, (v) misuse, misapplication, abuse, accident or neglect of or to the Products or Services, (vi) normal wear and tear of the Products, (vii) Customer’s breach of the Agreement, or (viii) modification or alteration of the Products or Services.

12.6.                Mesa shall indemnify and hold Customer harmless from and against any and all Loss suffered or incurred by Customer in connection with any claim, demand, action, suit or proceeding instituted by any third party against Customer to the extent that such Loss arises out of the infringement of a third party intellectual property right by a Product or Service provided to Customer under these Terms, when the Product or Service is used as instructed by Mesa, and so long as the infringement is not based on a combination of a Mesa Product or Service with any third party product or service.

13. NOTICES

Any notice required to be given or served, shall be in writing. Notices shall be served on the Customer at the address stated on the PO. Notices shall be served on Mesa at 12100 W Sixth Ave., Lakewood, CO, 80228 or customerservice@mesalabs.com.

14. PURCHASE MONEY SECURITY INTEREST

If Customer has purchased Products, then this Section 14 shall apply. Mesa hereby reserves, and Customer hereby grants to Mesa, a purchase money security interest (“PMSI”) in the Products sold hereunder and all the proceeds thereof, including but not limited to insurance proceeds, to secure performance of all of Customer’s obligations hereunder. Customer’s failure to pay any amount when due shall give Mesa the right to repossess and remove the Products. Customer agrees, without further consideration, at any time to do or cause to be done, executed, and delivered, all such further acts and instruments as Mesa may reasonably request in order to perfect Mesa’s PMSI. Customer agrees that Mesa shall have the authority to file any documents necessary, including but not limited to, any UCC-1 (or similar) on Customer’s behalf.

15. FORCE MAJEURE

15.1.                Mesa shall not be liable for failure to fulfill its obligations hereunder, or for delays in Delivery, due to causes beyond Mesa’s control, including without limitation, Acts of God, natural or artificial disasters, riot, war, delay by carrier, material shortages, armed conflict, acts or threats of terrorism, epidemics, strikes or other labor disturbance, or acts or omission of any governmental authority or of the Customer.

15.2.                Upon occurrence of any event described in Section 15.1, above, Mesa’s time for performance shall be extended, without any liability or penalty, for a period equal to the time lost as a consequence of such event.

16. EXPORT CLAUSE

The Products, SaaS, embedded technology, Software, and associated documentation (collectively, “Goods”) obtained from Mesa are subject to the United States Export Control laws and regulations, and may be subject to export or import regulations of other countries. Customer agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain any and all applicable licenses and permits which may be required in order to sell, license, export, re-export, import or otherwise deal with the Goods. Diversion of the Goods contrary to any such law is strictly prohibited.

17. GENERAL

17.1.                Mesa may provide confidential or proprietary information to Customer in connection with the Products (“CI”). Customer agrees that CI shall include all information which Customer knows or reasonably may know is confidential. CI shall remain the exclusive property of Mesa, and Customer must not use the CI for its own benefit or the benefit of any third party except as expressly authorized by Mesa, must not disclose CI to any third-party, and will preserve and protect the confidentiality of CI by using at least reasonable care. Customer will take all other acts reasonably requested by Mesa with respect to CI. Upon Mesa’s request, Customer will return to Mesa all documents containing Mesa’s CI and/or proprietary information and will retain no copies thereof. Customer agrees that its obligation to protect Mesa’s proprietary information shall be ongoing and shall not cease upon completion or termination of these Terms.

17.2.                No waiver by Mesa of any breach by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision

17.3.                If any of these Terms is held invalid or unenforceable in whole or in part the validity of the remaining Terms and the remainder of the provision in question shall not be affected.

17.4.                The headings used in these Terms are for convenience only and shall not affect the interpretation of any provision.

17.5.                Except as otherwise expressly set forth on an applicable Quote or order confirmation from Mesa, these Terms shall be governed by the laws of the State of Colorado and the Customer agrees to submit to the exclusive personal and subject matter jurisdiction of the federal or state courts located in Denver, Colorado. Customer irrevocably consents to the service of process from any of the aforesaid courts by mailing copies thereof by registered or certified mail, postage prepaid, to Customer at its address designated pursuant to these Terms, with such service of process to become effective fifteen (15) days after such mailing. Customer agrees to pay Mesa’s reasonable attorney’s fees and costs required to enforce Mesa’s rights hereunder. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.

17.6.                Customer agrees that Mesa shall have the right to have any dispute between the parties arising out of or in connection with these Terms be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Denver, Colorado, by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, nothing in these Terms shall limit either Party’s right to seek immediate injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek such relief in a court of competent jurisdiction.

17.7.                BY ISSUING THE PO, CUSTOMER ACKNOWLEDGES AND AGREES THAT, UNLESS OTHERWISE EXPRESSLY PROVIDED IN A WRITING SIGNED BY CUSTOMER AND MESA, THE SALE/PURCHASE OF PRODUCTS AND SERVICES IS MADE UNDER AND IS GOVERNED BY THESE TERMS.