Terms and Conditions
TERMS AND CONDITIONS FOR STERILIZATION, DISINFECTION, AND CLEANING CONTROL PRODUCTS AND SERVICES
- 1. In these Terms and Conditions:
“Agreement” means collectively these Terms, all Orders, and any schedules and addenda entered into and executed by the Parties.
“Customer” means the person or company purchasing SDC Products from Mesa.
“Delivery” means Mesa making the SDC 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 Order, Mesa Canada Inc. or Mesa Laboratories, Inc.
“Order” means: (i) a written purchase order for SDC Products which is issued by the Customer and accepted by Mesa in writing, including by email confirmation or (ii) Products or Services delivered pursuant to Customer’s auto-renewal subscription.
“Party” means Mesa or the Customer individually, and “Parties” means both of them
“SDC Products” means any one of the following products that are identified and purchased through Customer’s Order:
- sterility assurance products and related Services;
- cleaning and disinfection products and related Services;
- consulting and educational services; or
- laboratory testing services.
“Services” means sterilization, validation, verification, installation, calibration and testing services, microbiology and analytical chemistry laboratory services, extended warranty services, technical support, advisory and educational services, test plans, protocols and other method development, monitoring, SaaS subscription, and any other services, in each case as specifically identified in and purchased through Customer’s Order.
“Terms” means the Terms and Conditions set out herein.
- CONTENT OF TERMS
2.1. Unless otherwise agreed in a writing executed by the Parties, every purchase of SDC 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), Order, addendum, communication, or other document, these Terms shall prevail, unless .
- BASIS OF SALE; PRICES; PAYMENT
3.1. Purchase and sale of SDC Products and/or Services shall be made only pursuant to an Order. No Order will be deemed accepted by Mesa unless and until the SDC Products are shipped by Mesa to the Customer or Services are commenced.
3.2. The prices of the SDC 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 an Order without a Quote and Mesa accepts the Order, then the price of the SDC Products and Services shall be as set forth on Mesa’s standard price list, as of the date the Order is received by Mesa.
3.3. Notwithstanding anything contained herein to the contrary, Mesa is not obligated to accept any Order 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 the SDC Products and/or Services.
3.5. Customer shall pay all invoiced amounts for the SDC Products and/or Services in the currency set forth on the Order 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, performance of Services or access to the online portal through which Customer can view the results of the SDC Products; 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.
- SDC PRODUCT DELIVERY; SERVICE PERFORMANCE
4.1. Mesa will ship all SDC Products via EXW (ExWorks Incoterm 2010 definition) to the Customer’s address stated in an applicable Order. For the avoidance of doubt, Mesa will arrange for carriage of the SDC Products from its place of business through a carrier designated by Customer. If Customer does not designate a carrier, then Mesa will designate a carrier of its preference. Mesa fulfills is obligation under an Order upon Delivery of SDC Products to the Customer.
4.2. Title and risk of loss of the SDC Products shall pass to the Customer upon Delivery for shipped SDC Products, or upon completion of Mesa’s services at Customer’s premises for SDC 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.
- INSPECTION; ACCEPTANCE/REJECTION
5.1. Of Delivered SDC Products:
5.1.1. It is the responsibility of the Customer to inspect the SDC Products upon receipt. Customer shall notify Mesa, within five (5) business days of receipt, of any wrong SDC Products delivered, damage to the SDC Products, or discrepancy in the quantity of SDC 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 SDC Products to Mesa. If the Customer does not notify Mesa within such 5-day period, then the SDC Products shall be deemed to be in accordance with the Order and accepted by the Customer.
5.1.2. Following receipt of Mesa’s return authorization, Customer shall ship the wrong, damaged or excess SDC Products (as the case may be) to Mesa, contemporaneously with a copy of the notice referenced in Section 5.1 above, including of SDC Product shortfalls, if any. Upon receipt of returned SDC Products, Mesa shall, at its option, with reasonable promptness either repair or replace any nonconforming or damaged SDC Products. In the event of quantity discrepancies, Mesa shall refund the price paid by the Customer for any excess quantity of SDC Products, deliver the shortfall number of SDC Products, and/or adjust the corresponding invoice to reflect the correct number of SDC 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 SDC Products.
- ORDER CHANGE/CANCELLATION POLICY
6.1. Change to an Order where Delivery has already been arranged:
6.1.1 If Mesa has already arranged for the Delivery of the SDC Products or Services pursuant to an Order, including, but not limited to, by printing a shipment ticket for the SDC Products or Services, then the Order may not be cancelled. Mesa, at its option, shall either (i) complete Delivery of the SDC Products or Services pursuant to the Order and Customer shall pay all invoiced amounts for such SDC Products or Services or (ii) impose Handling Fees in lieu of completing Delivery of the SDC Products or Services.
6.2. Change to an Order where the SDC Product or Service is custom:
6.2.1. As used in this Section , “Custom” means any SDC Product that is made-to-order; procured-to-order; not routinely kept in stock by Mesa; or custom designed or manufactured for Customer. Custom SDC Products or Services may not be changed or cancelled by the Customer after the manufacturing or procurement process has been scheduled by Mesa, regardless of whether such manufacturing has actually begun or the Custom SDC Product has been procured. Mesa, at its option, shall either (i) complete Delivery of the SDC Products or Services pursuant to the Order and Customer shall pay all invoiced amounts for such SDC Products or Services or (ii) impose Handling Fees in lieu of completing Delivery of the SDC Products or Services.
6.3. Changes to an Order when the SDC Products have already been allocated to Customer:
6.3.1. If Mesa has allocated, set-aside, or otherwise reserved for Customer the SDC Products pursuant to an Order for a period of one (1) month or longer after the date of such Order, then the Order may not be cancelled by Customer. Mesa, at its option, shall either (i) complete Delivery of the SDC Products or Services pursuant to the Order and Customer shall pay all invoiced amounts for such SDC Products or Services or (ii) impose Handling Fees in lieu of completing Delivery of the SDC Products or Services.
6.4. All other changes or cancellations to an Order:
6.4.1. If Customer has the right to change or cancel an Order pursuant to the terms of this Section 6 and Customer does change or cancel an Order for SDC Products, then Mesa shall have the right to charge certain fees, not including shipping fees, taxes, etc. (“Handling Fees”) to Customer. It is in Mesa’s sole discretion to determine: (i) whether Mesa imposes Handling Fees and; (ii) if Handling Fees are imposed, the amount of the Handling Fees. The Handling Fees may equate to up to one-hundred percent (100%) of the value of the cancelled Order.
6.4.2. If Customer cancels sterility assurance products and/or related Services (for example, Mail-in Spore Testing), Customer is not entitled to a refund of any unused, discontinued, or cancelled portion of the such SDC Products or Services.
6.4.3. The Customer will also be responsible for any costs incurred by Mesa in preparing to perform installation and related Services with respect to Orders cancelled by Customer. Mesa will issue an invoice to Customer for any Handling Fees.
- SDC PRODUCT RETURN/REFUND POLICY
7.1. SDC Products may be returned to Mesa by no later than 30 days after Delivery, except for Custom SDC Products which may not be returned and are excluded from the term SDC Products as used in this Section 7. Only SDC Products in original and unused condition for which a Returned Goods Authorization has been issued by Mesa will be accepted. The returned SDC 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 SDC Products are governed by Section 8 below.
7.2. Customer shall return the SDC Products at its own cost and expense, with all freight being prepaid.
7.3. All returned SDC Products, except non-conforming or defective SDC Products, shall be subject to, and Customer shall be liable for, a thirty percent (30%) restocking fee.
7.4. 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.
7.5. Any installation or related Service charges and costs on returned SDC Products are not refundable.
- 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 SDC Products 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 SDC Product:
8.1.1. SDC Products are warrantied through the expiry date as noted on the SDC Product label.
8.1.2. If an SDC Product does not have an expiry date on the SDC Product label (for example, incubators), then such SDC Product is warrantied for twelve (12) months from the date of purchase.
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 SDC Products to Mesa together with a copy of such warranty claim notice; except that, to claim warranty services for an Incubator, Customer must ship the defective incubator to Mesa contemporaneously with sending the notice of the defective incubator. Mesa shall, at its option, either (i) repair or replace the defective SDC Product, or (ii) refund of the purchase price paid by Customer for the defective SDC Product. Any repair or replacement by Mesa shall not extend or renew the warranty period.
8.3. Customer acknowledges that the SDC 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 SDC Products other than in their normal and customary manner; (ii) misuse, abuse, accident or neglect of or to the SDC Products; (iii) normal wear and tear; (iv) modification or alteration of the SDC Products; (v) parts, accessories, attachments, software or other devices not furnished by 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, 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.
- 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 SDC PRODUCTS.
9.2. Mesa shall furthermore not be liable for any loss or damage to, loss in value of, or loss of revenue or anticipated profits of Customer, under any theory of law, even if such loss or damage is caused by failure of or defect in any SDC Product purchased hereunder, and whether such failure or defect arises out of Mesa’s design, manufacture, installation or service of any SDC Product.
9.3. Notwithstanding Section 9.1 and 9.2 above, and except for damages caused by Mesa’s gross negligence or willful misconduct or those liabilities arising under Section 9.4, 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 SDC Products or Services exceed the amount actually paid to Mesa by Customer for the SDC 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 SDC Products or Services other than their normal and customary use, (ii) misuse, misapplication, abuse, accident or neglect of or to the SDC Products or Services, (iii) normal wear and tear of the SDC Products, (iv) Customer’s breach of the Agreement, or (v) modification or alteration of the SDC 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 SDC 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 Order. Notices shall be served on Mesa at 12100 W Sixth Ave., Lakewood, CO, 80228, attention General Counsel, or firstname.lastname@example.org.
- 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.
- EXPORT CLAUSE
The SDC 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. Certain SDC Products or Services may be eligible for auto-renewal. If Customer enrolls in an auto-renewal subscription program (“Auto-Renewal Subscription”), the following terms and conditions apply.
13.2. For mail-in spore testing services:
13.2.1. The Auto-Renewal Subscription is a perpetual subscription for replacement products (each a “Renewal Shipment”) and will not terminate unless the Auto-Renewal Subscription is canceled by Customer or a Customer Representative. Customer or a Customer Representative can cancel the Auto-Renewal Subscription online by accessing the MIST dashboard available at https://sterilizermonitoring.mesalabs.com/common/Account/Login (the “Dashboard”) or by calling Mesa at 1-800-289-7786.
13.2.2. Each Renewal Shipment will be shipped 365 days after the previous shipment, unless a different renewal frequency is selected by Customer or a Customer Representative via the Dashboard.
13.2.3. Each Renewal Shipment is assigned to an individual sterilizer. Customer can assign a unique auto-renewal date and/or renewal frequency to each sterilizer associated with Customer.
13.2.4. Mesa shall send email notice of a scheduled Renewal Shipment to Customer at least thirty (30) days prior to dispatch of such Renewal Shipment.
13.2.5. Mesa will notify Customer of any pricing changes to the Auto-Renewal Subscription at least thirty (30) days prior to the next scheduled Renewal Shipment.
13.2.6. Auto-Renewal Subscriptions can be cancelled up to one (1) business day prior to the next scheduled Renewal Shipment dispatch date. If Customer’s Auto-Renewal Subscription is not cancelled at least one (1) business day prior to the next schedule Renewal Shipment dispatch date, then the Renewal Shipment will be processed and shipped in accordance with Section 6.
13.2.7. Renewal Shipments that are scheduled to shipped on a weekend or a holiday will instead be shipped on the next available business day.
14.1. 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
14.2. 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.
14.3. 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.
14.4. Nothing in these Terms shall confer on any third party any benefit or the right to enforce any term hereof.
14.5. These Terms govern all Orders and future contracts between Customer and Mesa concerning the sale or provision of SDC Products and Services, whether or not such Orders or contracts reference these Terms.
14.6 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 OR OTHERWISE AUTHORIZING THE ORDER, CUSTOMER ACKNOWLEDGES AND AGREES THAT, UNLESS OTHERWISE EXPRESSLY PROVIDED IN A WRITING SIGNED BY CUSTOMER AND MESA, THE SALE/PURCHASE OF SDC PRODUCTS AND SERVICES IS MADE UNDER AND IS GOVERNED BY THESE TERMS AND THE AGREEMENT.