1.1. In these Terms and Conditions:
“Agreement” means collectively these Terms, all POs, and any schedules and
addenda entered into and executed by the Parties.
“Customer” means the person or company purchasing Products and/or Services
“Delivery” means Mesa making the Products available to the designated carrier
as provided in Section 4.1 of these Terms.
“Mesa” means one of the following entities, as identified on the applicable PO:
Mesa Canada Inc. or Mesa Laboratories, Inc.
“Party” means Mesa or the Customer individually, and “Parties” means both of
“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
“Products” means any one of the following products that are identified in and
purchased through Customer’s PO:
• Cold Chain Packaging supplies (components, materials, etc.);
• Calibration or Validation or Process Validation Equipment and NIST
Traceable Solutions for Lab, process or in-field use;
• Medical Devices; and/or
• Process and Product Continuous Monitoring Equipment.
“Services” means installation, calibration and testing services, extended
warranty services, technical support, monitoring, SaaS subscription, and any
other services, in each case as specifically identified in and purchased through
“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 Services from Mesa by the Customer shall be governed by
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 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. 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. 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 Order, (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:
3.6.1. suspend any further deliveries and performance of Services; and
3.6.2. 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. PRODUCT DELIVERY; SERVICE PERFORMANCE
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. If Customer does not designate a
carrier, then Mesa will designate one. Mesa fulfills is 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, or upon completion of Mesa’s services at Customer’s
premises for Products delivered and installed by Mesa.
4.3. 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. Of Delivered Products:
5.1.1. 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.
5.1.2. 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 5.1.1 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
5.2. Of Installed Products and Services: The Customer shall notify Mesa in detail
of any nonconformances in Mesa’s performance of installation and related
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 Mesa’s installation Services, the installed Products and the
installation Services shall be deemed to be accepted by the Customer.
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 Returned
Goods 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.
Return of defective Products are governed by Section 8 below.
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.
All Products returned after Delivery under Section 6.1 above, shall be subject
to a thirty percent (30%) re-stocking fee. Company will issue an invoice to
Customer for any cancellation or restocking fees.
6.4. Invoice charges shall include (i) applicable taxes unless a proper tax exempt
certificate is provided to Company and (ii) shipping costs at applicable rates
unless Customer provides Company with a Customer shipping account to be
6.5. Any installation or related Service charges and costs on returned Products
are not refundable.
7. SOFTWARE LICENSE & RESTRICTIONS
7.1. If the Product purchased includes software, whether embedded firmware,
delivered software for installation on the Customer’s systems, or SaaS
subscription software (each separately, and together with all documentation
related to them, collectively, “Software”), then:
7.1.1. Customer acknowledges that the Software is proprietary to
Company, 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 7.1.2
below. Mesa reserves all rights not expressly granted to Customer.
7.1.2. Company grants to Customer a fully paid up, 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). The foregoing
license commences on Delivery of the Product. 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 Company’s
express prior written permission. Customer shall not sublicense,
prepare derivative works, modify, or otherwise interfere with the
7.1.3. Customer agrees that it shall not (i) disclose the Software to any
third party; (ii) duplicate, reproduce or copy all or any of the
Software; (iii) reverse-engineer, disassemble, decompile, decipher,
analyze, attempt to extract source code or proprietary information
from, or translate the Software; (iv) alter or modify the Software in
any way or prepare derivative works of the Software or any part or
parts of the Software; (v) 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; (vi) 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); or (vii) attempt to circumvent security and access
limits and protections on any Software.
7.2. If Customer orders a software subscription Service (a “SaaS Product”), upon
Customer’s payment of all applicable subscription fees and charges, Mesa
grants to Customer a limited, nonexclusive, nontransferable right to access
and use the SaaS Products identified on the applicable PO. The SaaS Product
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
Product. The following additional restrictions shall apply to Customer’s rights
to access and use the SaaS:
7.2.1. Only authorized employees of Customer with a need to access and
use the SaaS may exercise Customer’s subscription rights.
7.2.2. Customer may not (i) directly or indirectly distribute, resell, rent,
lease, subcontract, operate or otherwise grant access to, or use the
SaaS Product 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 Product; or (iii) disclose any passwords or other security
or authentication device with respect to the SaaS Product to any
person other than the person to whom it was issued. Customer is
solely responsible for all activity and use of the SaaS Product that
occurs under Customer’s account or password. Customer agrees
to ensure compliance with these Terms and any SaaS Product
addendum by its employees and shall at all times remain primarily
responsible for any acts or omissions by them.
7.3. Mesa may substitute the Software with new or replacement software at any
time. Mesa reserves the right to cease providing, updating, maintaining or
supporting the Software at any time in its sole discretion after 12 months
from the date of purchase of the Software.
8. LIMITED WARRANTY
8.1. Mesa warrants to Customer that it will provide 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
8.2. Mesa warrants to Customer that the Products (excluding any batteries, which
are not warranted by Company) will be free from defects in material and
workmanship, under normal use, for a period commencing on Delivery and
expiring as follows depending on the Product:
i. Cold Chain Packaging supplies – 6 months
ii. Process and Product Continuous Monitoring Equipment – 1 year
iii. Calibration or Validation or Process Validation Equipment and NIST
Traceable Solutions for Lab, process, or in-field use:
1. New Hardware:
a. Drycal – 1 year
b. BGI – 1 year
c. Torque – 1 year
d. DataTrace – Temperature & Pressure Loggers;
Temperature components of Humidity Loggers – 1 year
e. DataTrace - Humidity Loggers – 3 months
2. Calibration or Validation of 3.1.1 through 3.1.4 above – 6 months
3. Calibration or Validation of 3.1.5 above (Humidity Loggers) - 3 months
4. NIST Traceable Solutions – shelf life as noted on product label
5. All other hardware and accessories – 6 months
6. Factory Services – 6 months
iv. Medical Devices:
1. Phoenix XL meters – 1 year
2. Phoenix XL measurement modules – 6 months
3. 90XL meters and modules – 1 year
4. IBP meters and accessories – 2 years
5. All other hardware and accessories – 1 year
6. Factory Services – 6 months
8.3 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 in accordance with Section 8.4 if possible, or return the Products to Customer at Customer’s expense.Customer may request repair or calibration Services of Products not eligible for a warranty by shipping the Products, together with a copy of the applicable Service Request Form (available at https://mesalabs.com/services/renal-care-equipment-calibration-repair), to Mesa, at Customer’s expense. Repair and calibration Services shall be subject to the pricing and other terms set forth on the Service Request Form as in effect from time to time or otherwise as set forth on Mesa’s website. If Customer ships a Product to Mesa without a Service Request Form and without pre-authorization pursuant to Section 8.3, and the Product remains unclaimed for more than six (6) months, Mesa may destroy or otherwise dispose of such Product at Mesa’s sole discretion.
8.4. The warranty in Section 8.2 is not applicable to, and is void and of no force and effect with respect to defects or damage resulting 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 Company; (v) any Force Majeure event; (vi) failure of, fluctuation in, or interruption of commercial power, infrastructure, network, connectivity, servers or other hardware, and software not furnished by Mesa; (vii) battery failure, or (iii) any acts or omissions by anyone other than Mesa. 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.
8.5. 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 OR 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.
9. LIMITATION OF LIABILITY; INDEMNIFICATION
9.1. 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.
9.2. If the Product purchased by Customer is Process or Product Continuous Monitoring Equipment:
9.2.1. 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 whether such failure or defect arises out of Mesa’s design, manufacture, installation or service of any Product; and
9.2.2. Mesa shall furthermore not be liable for the loss of use of any SaaS Product, provision of substitute SaaS Products or other services, the loss of, damage to, compromise or corruption of, or recreating Customer’s (or third party’s) data under any theory of law. Customer’s exclusive remedy, and Mesa’s sole responsibility with respect to SaaS Product failures is as expressly set forth in a Services Addendum A if Customer purchases a SaaS Product.
9.3. Notwithstanding Section 9.1 and 9.2 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.
9.4. 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 instituted by a third party, 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) misuse, misapplication, abuse, accident or neglect of or to the Products or Services, (iii) normal wear and tear of the Products, (iv) Customer’s breach of the Agreement, or (v) modification or alteration of the Products or Services.
9.5. 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 breach of a third party intellectual property right by a Product or Service provided to Customer under these Terms.
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 email@example.com.
11.PURCHASE MONEY SECURITY INTEREST
If Customer has purchased Products, then this Section 11 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)
12.1. 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.
12.2. Upon occurrence of any event described in Section 12.1, 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.
The Products, SaaS Products, 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.
14.1. 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 disclose CI to any third-party and will preserve and protect the confidentiality of CI by using at least reasonable care and 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 proprietary information and 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.
14.2. 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
14.3. 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.
14.4. If Mesa is Mesa Canada Inc., then these Terms shall be governed by the laws of Ontario and the Customer agrees to submit to the exclusive personal and subject matter jurisdiction of the federal, state or provincial courts located in Toronto, Ontario. If Mesa is Mesa Laboratories Inc., then these Terms shall be governed by the laws of Colorado and the Customer agrees to submit to the exclusive personal and subject matter jurisdiction of the federal, state or provincial 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. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.
14.8. If either Party takes any action or institutes any proceeding to enforce the provisions of this Agreement, the prevailing Party is entitled to its reasonable attorneys’ fees, costs and expenses incurred in such action.
14.9. 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 AND THE AGREEMENT.