Terms & Conditions

Term & Conditions – Instruments

1. DEFINITIONS

1.1.   In these Terms and Conditions:

“Agreement” means collectively these Terms, all applicable Orders, Quotes and/or order confirmations, and any schedules and addenda entered into and executed by the Parties.

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

“Delivery” means Mesa making the Products available to the designated carrier as provided in Section 4.1 of these Terms.

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

“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 any one of the following products that are identified in and purchased through a PO governed by these Terms:

• • DataTrace (MicropackIII, MicropackRF (MPRF), DT Pro Software)
  • DryCal (DryCal ML-800, Defender Series, FlexCal Series, Metrology Series (ML-800)),
  • BGI (Air Samplers (PQ200, PQ100), air flow calibrators (DeltaCal, TetraCal), Cyclones)
  • Torque (SureTorque, Torqo)

“Services” means calibration, testing and repair services, extended warranty services, technical support, monitoring, and any other services, in each case as specifically identified in and purchased through a PO governed by these Terms.

“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.

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. 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 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, 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:

• • It is the responsibility of the Customer to inspect the Products (including any Products shipped to Mesa for Service) 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 and/or Services shall be deemed to be in accordance with the PO and accepted by the Customer.
  • 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 Products.

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 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. 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. All Products returned after Delivery under Section 6.1 above, shall be subject to a thirty percent (30%) re-stocking fee. Mesa 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 Mesa and (ii) shipping costs at applicable rates unless Customer provides Mesa with a Customer shipping account to be charged.

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

7. SOFTWARE LICENSE

7.1.   If the Product purchased includes Software, whether embedded Firmware, delivered Software for installation on the Customer’s systems, 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 7.1.2 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. 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.
• 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 of the applicable license. 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.

8. LIMITED WARRANTY

8.1.   Mesa warrants to Customer, for the applicable Warranty Period, 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.

8.2.   Mesa warrants to Customer, for the applicable Warranty Period, that the Products (excluding any batteries, which are not warranted by Mesa) will be free from defects in material and workmanship, under normal use.

8.3.   “Warranty Period” shall mean, for a given Product or Service, as follows:

1. New Hardware:
   1. Drycal – 1 year
   2. BGI – 1 year
   3. Torque – 1 year
   4. DataTrace – Temperature & Pressure Loggers;
      Temperature components of Humidity Loggers – 1 year
   5. DataTrace - Humidity Loggers – 3 months
2. Calibration or Validation of i.a through i.d above – 6 months
3. Calibration or Validation of i.e 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

; provided that the Warranty Periods for Calibration and Factory Services apply only to the specific components serviced or calibrated by Mesa and only to the Service performed, and do not extend the warranty or provide an additional warranty for the Product, for components unrelated to the Service performed, or for failures or defects in components outside the scope of the Service.

8.4.   To claim warranty services, 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 or, for Service warranty claims, the device on which the Service was performed, 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 Product or Service is eligible for an applicable warranty. If Mesa determines that the Product or Service is 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, (ii) re-perform the Service and ship the device on which the Service was performed to Customer at Mesa’s expense, or (iii) refund the purchase price paid by Customer for the defective Product or Service. Any repair or replacement by Mesa shall not extend or renew the warranty period. If Mesa determines that the Product or Service is not eligible for a warranty, Mesa shall notify Customer, and, at Customer’s direction, either repair the Product or re-perform the Service if possible, or return the Products to Customer at Customer’s expense.

8.5.   The warranty in this Section 8 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 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.

8.6.   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.

9. REPAIR AND CALIBRATION SERVICES

9.1.   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. If Mesa determines, in its sole discretion, that a Product sent for repair or calibration cannot be repaired or calibrated, Mesa shall notify Customer and, at Customer’s direction, either decommission and destroy the Product or return the Product to Customer at Customer’s expense (including applicable shipping, packaging and handling charges), provided that if Customer fails to direct Mesa to return the Product within sixty (60) days of Mesa’s notification that the Product cannot be repaired or calibrated, Mesa will deem such Product abandoned and may destroy or otherwise dispose of such Product at Mesa’s sole discretion. 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 or Return Authorization pursuant to Section 8.4, 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.

10. DISCONTINUATION OF PRODUCTS AND SERVICES

10.1.                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.

10.2.                The obligations set forth in Section 10.1 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.

11. LIMITATION OF LIABILITY; INDEMNIFICATION

11.1.                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.

11.2.                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 

11.3.                 Notwithstanding Section 10.1 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.

11.4.                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 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.

11.5.                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 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.

12. 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.

13. 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) on Customer’s behalf.

14. FORCE MAJEURE

14.1.                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.

14.2.                Upon occurrence of any event described in Section 14.1, 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.

15. EXPORT CLAUSE

The 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.

16. GENERAL

16.1.                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.

16.2.                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

16.3.                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.

16.4.                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.

16.5.                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.

16.6.                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.