Terms & Conditions

Terms and Conditions - Renal Care  

      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 the medical devices, medical device accessories, and/or NIST traceable solutions for laboratory, process, or in field use identified in and purchased through a PO governed by these Terms.

“Services” means calibration, testing and repair services, extended warranty services, technical support, 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:

   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 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. 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 (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.

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 not be changed or cancelled by the Customer later than 5 days after the date of the PO or after the manufacturing or procurement process has been scheduled by Mesa, regardless of whether such manufacturing has actually begun or the Product has been procured. In the event of any such attempted change or cancellation, Mesa, at its option, shall either (i) complete Delivery of the Products pursuant to the Order and Customer shall pay all invoiced amounts for such Products or (ii) impose Handling Fees in lieu of completing Delivery of the Products or Services.

6.2. 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 shall be subject to a thirty percent (30%) re-stocking fee. Return of defective Products are governed by Section 5.

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

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

      7. FIRMWARE LICENSE

7.1. Certain components of the Products may include embedded software or firmware (“Firmware”), which is licensed, not sold, to the Customer. Subject to compliance with these Terms, Mesa grants the Customer a non-exclusive, non-transferable, limited license to use the Firmware solely as embedded in and for operation of the Product as delivered. Customer shall not (and shall not allow any third party to) modify, decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Firmware, except to the extent permitted by applicable law notwithstanding this restriction. All rights not expressly granted are reserved.

      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:

• Phoenix XL meters – 1 year
• Phoenix XL measurement modules – 6 months
• 90XL meters and modules – 1 year
• All other hardware and accessories – 1 year
• Factory Services – 6 months (does not apply to calibration only service)

; provided that the Warranty Period for Factory Services applies 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 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. 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 8.3, 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.

9.2. For devices covered by the pHoenix XL Module Replacement Program: One replacement module will be provided per year of program enrollment per device registered under the program, unless replacement is otherwise covered under the warranty in Section 8.2. Replacement modules will not be provided in the event Mesa determines that module malfunction is due to (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) modification or alteration of the Products; (iv) parts, accessories, attachments, software or other devices not furnished Mesa; (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 (viii) any acts or omissions by anyone other than Mesa.

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. 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.

11.3. 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.

11.4. 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 13.1, 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, 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. The headings used in these Terms are for convenience only and shall not affect the interpretation of any provision.

16.5. 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.

16.6. 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.

16.7. 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.