TERMS AND CONDITIONS FOR SALE OF PRODUCTS & SERVICES - Instruments
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 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 Canada Inc. /Mesa Laboratories, Inc.];
“Party” means Mesa or the Customer individually, and “Parties” means both of them
“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 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;
- 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 Customer’s PO.
“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 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 the Products are shipped by Mesa to the Customer, or 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 [Canadian][US] Dollars, without set-off or deduction, within thirty (30) days from the invoice date. The time for payment shall be of the essence. 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 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 Customer.
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.
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, contemporaneously with a copy of the notice referenced in Section 5.1 above, including of 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. 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 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 charged.
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 Software.
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 SaaS subscription Service, 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 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. 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 or M-System for the benefit of any third party (whether or not in a timesharing or service bureau environment); or (vii) attempt to interfere with, circumvent security or access restrictions, or disrupt the SaaS; or (viii) 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 agrees to ensure compliance with these Terms and any SaaS 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. 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:
- Cold Chain Packaging supplies – 6 months
- Process and Product Continuous Monitoring Equipment – 1 year
- Calibration or Validation or Process Validation Equipment and NIST Traceable Solutions for Lab, process, or in-field use:
- New Hardware:
- Drycal – 1 year
- BGI – 1 year
- Torque – 1 year
- DataTrace – Temperature & Pressure Loggers; Temperature components of Humidity Loggers – 1 year
- DataTrace - Humidity Loggers – 3 months
- Calibration or Validation of 3.1.1 through 3.1.4 above – 6 months
- Calibration or Validation of 3.1.5 above (Humidity Loggers) - 3 months
- NIST Traceable Solutions – shelf life as noted on product label
- All other hardware and accessories – 6 months
- Factory Services – 6 months
- New Hardware:
- Medical Devices:
- Phoenix XL meters – 1 year
- Phoenix XL measurement modules – 6 months
- 90XL meters and modules – 1 year
- IBP meters and accessories – 2 years
- All other hardware and accessories – 1 year
- Factory Services – 6 months
8.2. 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 to Mesa together with a copy of such warranty claim notice. Mesa shall, at its option, either (i) repair or replace the defective Product, or (ii) refund of the purchase price paid by Customer for the defective Product. Any repair or replacement by Mesa shall not extend or renew the warranty period.
8.3. Customer acknowledges that the Products which are purchased (i) are of a design, size, quality, capacity, type and quantity designated and selected by the Customer, and (ii) are as required and suitable for Customer’s purposes.
8.4. The warranty in Section 8.1 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, and (iii) any acts or omissions by anyone other than Mesa.
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. 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, 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.
9.2. If the Product purchased by Customer is Process or Product Continuous Monitoring Equipment:
9.2.1. Company 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 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 Company’s design, manufacture, installation or service of any Product; and
9.2.2. Company shall furthermore not be liable for the loss of use of the SaaS, provision of substitute SaaS 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 Company’s sole responsibility with respect to SaaS failures is as expressly set forth in a Services Addendum A if Customer purchases a SaaS subscription.
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. FORCE MAJEURE
11.1. 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.
11.2. Upon occurrence of any event described in Section 11.1, 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.
12. 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.
13.1. 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
13.2. 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.
13.3. These Terms shall be governed by the laws of [Ontario][Colorado] 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][Denver, Colorado]
13.4. Nothing in these Terms shall confer on any third party any benefit or the right to enforce any term hereof.
13.5. These Terms be govern all POs and future contracts between Customer and Mesa concerning the sale or provision of Products and Services, whether or not such POs or contracts reference these Terms.
13.6 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.
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.