1. Scope: These Terms and Conditions of Purchase (“Terms”) apply to all Purchase Orders (“POs”) issued by Mesotech International, Inc. (“Mesotech”) for the procurement of commercial items, custom-fabricated items, services, and blanket delivery orders. These Terms constitute the entire agreement between Mesotech and Supplier (“Supplier”) with respect to the subject matter hereof and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Any additional or different terms proposed by Supplier are expressly rejected and shall be of no force or effect unless expressly agreed to in writing by an authorized representative of Mesotech.
2. Commercial Items: For purchases of commercial items listed in a Supplier’s catalog or website, these Terms shall govern the transaction. Distributors are included under this category.
3. Custom Fabricated Items: Suppliers tasked with fabricating items to Mesotech's specifications must ensure strict compliance with all design documents, drawings, specifications, and requirements provided by Mesotech. The warranties applicable to custom fabricated items are set forth in Section 6(c) below.
4. Risk and Title: Risk of loss or damage to the deliverables shall remain with the Supplier until Mesotech formally accepts the deliverables as per Section 7 below and the terms of the PO. Title to the deliverables shall transfer to Mesotech upon delivery and acceptance by Mesotech, at which point risk of loss shall also transfer to Mesotech. Notwithstanding the foregoing, Supplier shall retain risk of loss for any nonconforming deliverables or deliverables subject to rejection under Section 7.
5. Decontamination Statement: The Supplier warrants that all deliverables provided to Mesotech are free from pathogenic contaminants and devoid of any radioactive, bio-hazardous, hazardous chemical, physical hazards, or otherwise dangerous substances, gases, or materials. The Supplier further certifies that the deliverables and associated items do not present any threat to human health and are safe for human handling. In instances where certain deliverables contain hazardous substances or necessitate special safety measures during handling, transportation, storage, or use, the Supplier shall, in a timely manner and prior to dispatch, furnish Mesotech with comprehensive written information regarding the nature of these substances and the requisite precautions. The Supplier is also responsible for ensuring that prior to dispatch, appropriate instructions and warnings are prominently displayed on the relevant deliverables and their packaging.
6. Warranties:
(a) General Warranties. Supplier warrants that all deliverables shall:
(i) conform to all specifications, drawings, samples, descriptions, quality standards, and requirements in the PO or provided by Mesotech;
(ii) be new (unless specified otherwise), genuine, merchantable, and free from defects in design, materials, and workmanship;
(iii) be fit for their intended purposes and any purposes made known to Supplier;
(iv) comply with all applicable federal, state, local, and foreign laws, regulations, and standards, including those relating to environmental protection, labor standards, workplace safety, and product safety;
(v) be delivered free and clear of all liens, encumbrances, and security interests; and
(vi) not infringe upon or misappropriate any intellectual property or proprietary right of any third party.
(b) Warranty of Title. Supplier warrants that it has good and marketable title to all deliverables and full authority to sell and transfer them to Mesotech. Upon delivery, acceptance, and payment, Mesotech shall receive good and marketable title, free and clear of all liens, claims, security interests, encumbrances, or rights of others.
(c) Custom Fabricated Items. For custom fabricated items, Supplier additionally warrants that:
(i) all work will be performed in a professional and workmanlike manner by qualified personnel with requisite skill, expertise, and licenses;
(ii) Supplier shall use only new, first-quality materials unless otherwise authorized in writing by Mesotech;
(iii) completed items shall function properly and be suitable for integration into Mesotech's systems, products, or operations as specified; and
(iv) all intellectual property rights in any designs, specifications, inventions, or works created by Supplier in connection with the custom fabrication shall be the sole and exclusive property of Mesotech, and Supplier hereby assigns all such rights to Mesotech.
(d) Commercial Items. For commercial items from Supplier's catalog, website, or standard product line, Supplier additionally warrants that:
(i) the items are suitable for their ordinary purposes;
(ii) Supplier shall pass through to Mesotech the full benefit of all manufacturer or third-party warranties and shall cooperate in obtaining such benefits; and
(iii) if Supplier is a distributor or reseller, all items are obtained through authorized distribution channels and are not counterfeit, grey market, or otherwise unauthorized products.
(e) Services. For services provided under the PO, Supplier warrants that all services shall be:
(i) performed in a professional and workmanlike manner in accordance with industry best practices and standards;
(ii) performed by qualified personnel with appropriate skills, training, experience, and licenses;
(iii) performed in compliance with all applicable laws, regulations, and safety requirements; and
(iv) performed using Supplier's reasonable best efforts to meet or exceed Mesotech's expectations and requirements.
(f) Warranty Period. Except as otherwise specified in the PO or required by applicable law (whichever provides greater protection to Mesotech), warranties shall remain in effect for: (i) twenty-four (24) months from Mesotech's acceptance of deliverables, or any longer manufacturer warranty period; (ii) twenty-four (24) months from completion of services; or (iii) thirty-six (36) months from Mesotech's acceptance of custom fabricated items. The warranty period shall be tolled during repairs, replacements, or periods when deliverables cannot be used due to warranty issues.
(g) Warranty Remedies. Upon any breach of warranty, Mesotech may, at its sole option and in addition to all other rights and remedies:
(i) require Supplier to promptly repair or replace the nonconforming deliverables at no cost to Mesotech, including all shipping, labor, and associated costs;
(ii) reject the nonconforming deliverables and receive a full refund plus reimbursement for all costs incurred by Mesotech;
(iii) accept the nonconforming deliverables with an equitable price reduction;
(iv) perform or have a third party perform necessary repairs or replacements and charge Supplier for all costs incurred, which Supplier shall pay within thirty (30) days of invoice; or
(v) terminate the PO in whole or in part without liability to Mesotech.
Supplier shall respond to warranty claims within two (2) business days and commence corrective action within five (5) business days. All replacement or repaired deliverables shall be subject to the same warranties, with the warranty period restarting from Mesotech's acceptance of the replacement or repair.
(h) Warranty Administration. All warranties in this Section 6 and elsewhere in these Terms are in addition to, not in lieu of, warranties provided by operation of law, including implied warranties of merchantability and fitness for a particular purpose. All warranties survive inspection, testing, acceptance, payment, and any contrary provision. Supplier waives any requirement that Mesotech provide notice of warranty claims within any specified period, provided Mesotech provides notice within a reasonable time after discovering the defect or nonconformity.
(i) No Disclaimer. SUPPLIER SHALL NOT DISCLAIM, MODIFY, OR LIMIT ANY WARRANTY SET FORTH IN THESE TERMS OR PROVIDED BY OPERATION OF LAW. ANY ATTEMPT TO DISCLAIM, EXCLUDE, OR LIMIT WARRANTIES, WHETHER IN AN ACKNOWLEDGMENT, INVOICE, SHIPPING DOCUMENT, PRODUCT LITERATURE, OR OTHERWISE, SHALL BE VOID. MESOTECH'S INSPECTION, ACCEPTANCE, OR PAYMENT SHALL NOT CONSTITUTE A WAIVER OF ANY WARRANTY OR OTHER RIGHTS OR REMEDIES.
7. Inspection and Testing: Mesotech reserves the right to inspect and test all deliverables upon receipt or within a reasonable time thereafter, but in no event less than thirty (30) days from delivery. Payment for deliverables shall not constitute acceptance. Should any deliverables fail to meet the specified requirements or standards, Mesotech may, at its sole option: (a) reject such deliverables and require Supplier to remove them at Supplier's sole cost and expense within five (5) business days; (b) require Supplier to promptly replace them with conforming deliverables at no additional cost to Mesotech; or (c) accept the nonconforming deliverables with an equitable price reduction. Supplier shall bear all costs associated with rejected deliverables, including but not limited to shipping, inspection, and restocking costs. Mesotech's inspection or failure to inspect shall not relieve Supplier of any of its obligations or warranties under these Terms.
8. Services: For Suppliers providing services, a separate contract may be referenced in the PO. In such instances, this contract will outline detailed billing requirements, service deliverables, and invoice periods. Additional terms may be contained in attachments or alternate documents referenced in the PO.
9. Blanket Delivery Orders: For blanket delivery orders, delivery schedules may be subject to modification as per Mesotech's requirements. Suppliers agree to allow flexibility in rescheduling monthly deliveries based on demand changes. This includes, upon mutual agreement, the extension of the PO period beyond the original end date.
10. Invoicing and Payment Terms: Payment terms may vary according to the PO. Unless otherwise specified in the PO, payment terms shall be Net 60 days from Mesotech's receipt of a correct and complete invoice. Invoices must reference the applicable PO number and include all required documentation. Mesotech may withhold payment or set off any amounts owed by Supplier to Mesotech against amounts due to Supplier. Mesotech reserves the right to dispute any invoice within ninety (90) days of receipt, and payment of an invoice shall not constitute acceptance of deliverables or waiver of any rights or remedies. All payments are subject to final audit and adjustment.
11. Import/Export Compliance: Suppliers must comply with all applicable import/export laws and regulations, including but not limited to the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), and regulations administered by the Office of Foreign Assets Control (OFAC). Supplier shall provide all necessary export documentation and classifications. Supplier warrants that it is not listed on any U.S. government restricted parties list. Any customs duties, tariffs, taxes, or fees imposed on the goods shall be the responsibility of the Supplier unless otherwise expressly stated in the PO. Supplier shall indemnify and hold harmless Mesotech from any fines, penalties, or costs arising from Supplier's non-compliance with import/export laws.
12. Indemnification: Supplier shall defend, indemnify, and hold harmless Mesotech, its affiliates, and their respective officers, directors, employees, agents, successors, and assigns (collectively, “Indemnified Parties”) from and against any and all claims, demands, actions, suits, proceedings, losses, damages, liabilities, settlements, penalties, fines, costs, and expenses (including reasonable attorneys' fees and court costs) (collectively, “Claims”) arising out of or relating to: (a) any actual or alleged defect in the deliverables, including without limitation any personal injury, death, or property damage caused by or allegedly caused by the deliverables; (b) any actual or alleged infringement or misappropriation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of any third party by the deliverables or any component thereof; (c) Supplier's breach of any representation, warranty, covenant, or obligation under these Terms or the PO; (d) any negligent or wrongful act or omission by Supplier, its employees, agents, or subcontractors in the performance of the PO; (e) Supplier's violation of any applicable law, regulation, or order; (f) any claim by Supplier's employees, agents, or subcontractors relating to their employment or engagement by Supplier; or (g) any actual or alleged exposure to hazardous materials in or related to the deliverables, including any failure to comply with Section 5 (Decontamination Statement). Supplier's obligations under this Section shall apply regardless of whether the Claim is based in contract, tort (including negligence and strict liability), or any other legal theory, and regardless of whether Mesotech was negligent or otherwise at fault, except to the extent that a Claim is solely and directly caused by Mesotech's gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. Supplier shall not settle any Claim without Mesotech's prior written consent, which shall not be unreasonably withheld.
13. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, MESOTECH'S TOTAL CUMULATIVE LIABILITY TO SUPPLIER ARISING OUT OF OR RELATED TO THE PO OR THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY MESOTECH TO SUPPLIER UNDER THE APPLICABLE PO DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL MESOTECH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, OR LOSS OF USE, EVEN IF MESOTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO: (a) MESOTECH'S PAYMENT OBLIGATIONS FOR CONFORMING DELIVERABLES ACCEPTED IN ACCORDANCE WITH THESE TERMS; (b) MESOTECH'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (c) MESOTECH'S BREACH OF CONFIDENTIALITY OBLIGATIONS, IF ANY. NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE SUPPLIER'S LIABILITY FOR: (i) SUPPLIER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13; (ii) SUPPLIER'S BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS; (iii) SUPPLIER'S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT; (iv) DEATH OR PERSONAL INJURY CAUSED BY SUPPLIER'S NEGLIGENCE; OR (v) ANY OTHER LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
14. Legal Compliance: Suppliers must adhere to all applicable laws and regulations in the performance of their obligations under the PO, including but not limited to environmental, labor, and safety standards.
15. Governing Law and Dispute Resolution: These Terms and any disputes arising under or related to them shall be governed by the laws of the State of California, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Any legal action or proceeding arising under or relating to these Terms shall be brought exclusively in the state or federal courts located in Sacramento County, California, and each party irrevocably submits to the exclusive jurisdiction of such courts. The prevailing party in any such action shall be entitled to recover its reasonable attorneys' fees and costs.
16. Assignment and Subcontracting: Supplier shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the PO or these Terms without Mesotech's prior written consent, which may be withheld in Mesotech's sole discretion. Any purported assignment or subcontract without consent shall be void. Supplier shall remain fully responsible and liable for all acts and omissions of any permitted subcontractors and shall flow down all applicable terms of these Terms to such subcontractors. Mesotech may freely assign or delegate any of its rights or obligations under the PO to any affiliate or successor without Supplier's consent. Supplier shall notify Mesotech in writing within ten (10) business days of any change of control of Supplier (including any change in beneficial ownership of 50% or more of Supplier's voting securities or equity interests). Mesotech may terminate the PO upon thirty (30) days' written notice following such change of control.
17. Confidentiality: Supplier shall keep confidential and not disclose to any third party, and shall use solely for performing the PO, all non-public information disclosed by Mesotech or learned in connection with the PO, including specifications, designs, drawings, business information, pricing, forecasts, and technical data (collectively, “Confidential Information”). Supplier shall protect Confidential Information using at least the same degree of care it uses for its own confidential information, but no less than reasonable care. Supplier shall not use Confidential Information for any purpose other than fulfilling its obligations under the PO. Upon Mesotech's request or completion of the PO, Supplier shall promptly return or destroy all Confidential Information and certify such destruction in writing. These obligations shall survive for five (5) years after termination or expiration of the PO. Confidential Information excludes information that: (i) is or becomes publicly available through no breach by Supplier; (ii) Supplier lawfully possessed prior to disclosure; or (iii) is independently developed by Supplier without use of or reference to Confidential Information. Supplier shall not disclose its relationship with Mesotech or use Mesotech's name, trademarks, or logos without Mesotech's prior written consent.
18. Termination for Convenience: Mesotech may terminate any PO, in whole or in part, for its convenience at any time by providing written notice to Supplier. Upon receipt of such notice, Supplier shall immediately stop work as directed and take all reasonable steps to minimize costs. Mesotech shall pay Supplier for: (a) all conforming deliverables completed and accepted prior to termination; (b) Supplier's reasonable, actual, and verifiable costs incurred prior to termination that cannot be mitigated or recovered through resale, provided Supplier submits adequate documentation within thirty (30) days of termination. Mesotech shall not be liable for any anticipated profits, unabsorbed overhead, interest on claims, product development or engineering costs, unamortized depreciation costs, or any consequential damages. Payment under this Section constitutes Supplier's sole and exclusive remedy for termination for convenience. Mesotech's termination rights under this Section are in addition to, and not in lieu of, any other termination rights under these Terms or applicable law.
19. Force Majeure: Neither party shall be liable for delays or failures in performance resulting from events beyond its reasonable control and without its fault or negligence (“Force Majeure Event”), including acts of God, natural disasters, war, terrorism, riots, epidemics, pandemics, government actions, or utility failures. The party affected by a Force Majeure Event shall promptly (within two (2) business days) notify the other party in writing, describing the event, its expected duration, and its impact on performance. The affected party shall use commercially reasonable efforts to mitigate the effects and resume performance as quickly as possible. During a Force Majeure Event affecting Supplier, Mesotech may: (a) suspend its performance without liability; (b) obtain substitute deliverables from alternate sources without penalty and reduce quantities from Supplier accordingly; and (c) require Supplier to deliver all finished or partially finished deliverables, and Supplier shall comply with such request. If a Force Majeure Event delays Supplier's performance for more than fifteen (15) days, Mesotech may terminate the affected PO immediately without liability. Force Majeure relief shall not apply to Supplier's payment obligations or to delays caused by financial distress, lack of funds, labor disputes involving only Supplier, or Supplier's supply chain failures unless such failures are themselves caused by Force Majeure Events.
20. Severability. If any provision of these Terms is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable, or if such modification is not possible, severed from these Terms. The invalidity or unenforceability of any provision shall not affect the validity or enforceability of any other provision, which shall remain in full force and effect.
By accepting the PO, commencing performance, or delivering any goods or services under the PO, the Supplier agrees to be bound by these Terms. Supplier's acceptance must be expressly limited to these Terms, and any acceptance that attempts to vary or add terms is hereby objected to and rejected.