These Terms and Conditions govern the sale of products, software, and services provided by Mesotech International, Inc. (“Mesotech”). By placing an order, accepting a quotation, or using our services or software platforms, you agree to be bound by these Terms. Additional or conflicting terms proposed by the customer do not apply unless expressly agreed to in writing by an authorized Mesotech representative.
Please review the full Terms and Conditions linked below. If you have questions, contact your Mesotech representative before proceeding with a purchase or service engagement.
Terms & Conditions of Sale
Any person or entity (“Buyer”, “you” or “your”) who wants to purchase the Airport Weather Advisor® system, parts, components, integrated software, communications systems, and any other related systems thereof, which together comprise an automated weather observing system (AWOS) (“System”), or any installation, inspection, service, repair, maintenance, upgrade, movement, removal, and/or other services on the System, which we recommend you procure from us in connection with any sale of one or more Systems (the “Services”), from Mesotech International, Inc. (“Seller”, “we”, “us”, or “our”) are subject to these Terms and Conditions of Sale (“Terms”) unless we enter into a separate written agreement.
1. ACCEPTANCE:
Absent a separate written agreement between us, each purchase order (“PO”) accepted by us for a System and/or Services are subject to these Terms. These Terms prevail over any of your general terms and conditions of purchase, whether included in your PO or otherwise and regardless of when you submit a PO or other terms. Our accompanying order, invoice, quotation, or other sales confirmation document (the “Sales Confirmation”) and these Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous agreements, understandings, and/or communications. If your PO is expressly conditional upon our adherence to your terms and conditions, then these Terms shall operate as a counteroffer, expressly conditioned upon your acceptance of these Terms. Your acceptance of the System or Services provided hereunder, or your payment for the System or Services, shall constitute your acceptance of these Terms.
2. DELIVERY:
The System and any related hardware (collectively, “Equipment”) will be delivered to the location specified in the Sales Confirmation (“Buyer's Location”) within a reasonable time after receipt of your PO. We remain responsible for all shipping delays, loss, or damage during transit. We shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation. We may modify the Services without your consent provided that such changes do not materially affect the nature, scope, fees, or performance dates specified in the Sales Confirmation.
3. SHIPPING TERMS; TITLE; RISK OF LOSS:
Unless agreed by both parties in writing, delivery shall be made FOB Destination (Buyer’s Location), Incoterms 2020. Title and risk of loss transfer to you upon delivery and acceptance at Buyer's Location. From that point forward, you assume all responsibility for damage, loss, theft, or deterioration of the Equipment. You are responsible for receiving, unloading, and properly storing all Equipment from delivery date until installation. As collateral security for the payment of the Price (as defined in Section 5) and all other amounts owed by Buyer to Seller under these Terms, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Systems, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. This security interest shall remain in effect until full payment is received by Seller. The security interest granted under this provision constitutes a purchase money security interest under applicable state law, allowing Seller to reclaim Equipment in the event of non-payment, even after title has transferred to Buyer. Buyer authorizes Seller to file any financing statements necessary to perfect this security interest without Buyer's signature to the extent permitted by applicable law.
4. INSPECTION; REJECTION OF NON-CONFORMING SYSTEMS:
You shall have fifteen (15) business days from the date Seller provides written notice that installation and commissioning of the System have been completed (the “Acceptance Period”) to inspect and accept the System. Your acceptance or rejection must be confirmed in writing within this timeframe. Failure to provide written notice of rejection within the Acceptance Period shall constitute acceptance of the System. If you discover any non-conforming components or performance issues during the Acceptance Period, you must notify us in writing, specifically identifying in reasonable detail all alleged non-conformities that are discoverable through reasonable inspection and the specific portion(s) of the System being rejected. You shall not be required to identify latent defects or non-conformities that could not be discovered through reasonable inspection during the Acceptance Period, and your rights with respect to such latent defects shall be preserved notwithstanding the expiration of the Acceptance Period. If no written rejection notice is provided within the Acceptance Period, the System will be deemed accepted in full, subject to your continuing rights with respect to latent defects, breach of warranty, and any non-conformities that could not have been discovered through reasonable inspection during the Acceptance Period. We will remedy any confirmed non-conforming components within thirty (30) days of receiving written notice, in accordance with the warranty provisions of these Terms at no additional cost to you. If we fail to remedy such non-conformities within this timeframe, you may pursue remedies available under California Commercial Code Section 2601 et seq. Rejection rights are limited to specific non-conforming portions of the System, provided that such partial rejection does not render the conforming portions unusable or substantially impair the value of the System as a whole. Partial rejection does not void acceptance of conforming portions of the System, except where the non-conforming portions are so integral to the System's operation that separation is impracticable or would substantially impair the System's functionality. All rejection notices must be in writing and delivered within the Acceptance Period to preserve your rights under this provision. Notice shall be deemed delivered upon: (i) personal delivery; (ii) three (3) business days after deposit with a nationally recognized overnight courier service; or (iii) confirmed receipt if sent by email to the address specified in the Sales Confirmation.
5. PRICE:
The price of the System or Services is the price stated in a Sales Confirmation (the “Price”). Unless otherwise agreed in writing, the Price shall be in U.S. dollars. We reserve the right to pass on surcharges and other adjustments related to changes in the prices of raw materials, components, parts, production, labor, storage, transport, fuel, or permitting upon thirty (30) days' written notice to Buyer, and to make corrections in Sales Confirmations due to typographical, engineering or other errors, or resulting from incomplete or inaccurate information supplied by you, provided such corrections are made within ten (10) business days of the Sales Confirmation date. You shall be responsible for all taxes or governmental charges imposed upon the sale or transfer of a System. Your failure to pay such taxes or governmental charges shall be considered a breach of these Terms.
6. PAYMENT TERMS:
Unless otherwise agreed upon in writing, payment is due within thirty (30) days from the date of our invoice. You shall pay interest on all late payments at the lesser of 1.5% per month or the highest rate permitted by law. You shall reimburse us for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. We shall be entitled to suspend the delivery of any Systems or performance of any Services if you fail to pay any amounts when due, provided we give you written notice and five (5) business days to cure such payment default.
7. SETOFF:
You shall have no right to set off against any amounts payable to us under these Terms except (a) as required by applicable law, or (b) for amounts that Seller has acknowledged in writing are owed to Buyer.
8. LIMITED WARRANTY:
Unless we agree in writing, all Systems shall be produced in accordance with our standard practices. All material, including that produced to meet an exact specification, shall be subject to tolerances and variations consistent with the usages of the trade and industry practices. We make certain limited warranties regarding the Systems solely to and for your benefit. Our limited warranty will be made available in a written warranty statement with the System. Any changes to the warranty terms shall only apply to Systems purchased after thirty (30) days written notice of such changes has been provided to Buyer. Seller's liability for Systems under any warranty is limited to the remedies available in Seller's warranty statement. We further warrant that the Services shall be performed: (a) in accordance with these Terms; (b) using personnel of required skill, experience and qualifications; and (c) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. WE ASSUME NO RESPONSIBILITY FOR YOUR DESIGNS, DRAWINGS, PLANS, OR SPECIFICATIONS, EXCEPT TO THE EXTENT WE HAVE AGREED IN WRITING TO REVIEW OR APPROVE SUCH MATERIALS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNIFICATION:
You shall defend, indemnify and hold harmless Seller, its subsidiaries, affiliates, successors, assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) from and against any claims, losses, judgments, penalties, fines, interest, reasonable attorney and professional fees, or costs of any kind suffered or incurred by an Indemnitee (collectively, “Claims” and individually, a “Claim”) directly or indirectly arising from: (a) your specifications; (b) any asserted deficiencies or defects in the Systems caused by any alteration or modification thereof by you without our written consent; (c) your improper handling, storage, or care of the Systems after delivery; (d) your negligence, willful misconduct or breach of these Terms; (e) your failure to properly label or improper labeling of the Systems, except where such labeling was performed in accordance with our written specifications, instructions, or input; or (f) any other act or omission by you, including, but not limited to, any Claims for or resulting from any injury to person (including death), damage to property (including loss of use and consequential damages), or economic losses. This indemnification applies to all damages, costs, and expenses incurred by Indemnitees, including reasonable legal fees and costs of defense.
10. COMPLIANCE WITH LAW:
You shall fully comply with all applicable laws and regulations in connection with the purchase and sale of the Systems and Services. You warrant that you have, and shall maintain in effect, all licenses, permissions, authorizations, consents and permits required to carry out your obligations under these Terms.
11. TERMINATION:
Upon your submission of a PO or acceptance of the Systems or Services, you represent that you are not insolvent. You are considered insolvent if (a) you fail to pay in accordance with these Terms or (b) your liabilities exceed the value of your assets in accordance with generally accepted accounting principles. You shall immediately notify us if you become insolvent before the delivery of the Systems or performance of Services. If you become insolvent or otherwise have not performed or complied with any of these Terms, in whole or in part, we may stop delivery of the Systems or performance of the Services and/or terminate, in whole or in part, every supply and services agreement between the parties. Upon termination, we shall no longer have any obligation to you under these Terms, but in no event shall termination discharge you of your obligations under these Terms or any supply agreement between the parties.
12. LIMITATION OF LIABILITY:
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID TO SELLER PURSUANT TO THE APPLICABLE SALES CONFIRMATION IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. THESE LIMITATIONS SHALL SURVIVE TERMINATION OF THESE TERMS AND APPLY TO ALL CLAIMS REGARDLESS OF WHEN THEY ARISE.
13. WAIVER:
The failure of either party to enforce at any time any of the provisions of these Terms, irrespective of any previous action or proceedings taken by it, shall in no way be considered (a) to waive such provisions, (b) to affect the validity of these Terms, or (c) to preclude or prejudice the parties from exercising the same or any other rights it may have hereunder.
14. CONFIDENTIALITY & INTELLECTUAL PROPERTY:
Each party will (a) keep all of the other party's Confidential Information confidential and disclose it only to its employees, agents, and contractors who have a legitimate need to know such information in order to perform under these Terms and who are bound by written confidentiality obligations at least as protective as those contained herein; and (b) use the other party's Confidential Information solely for the purpose of performing its obligations under these Terms. “Confidential Information” means all information, whether written, oral, electronic, or visual, provided by a party or its representatives or subcontractors in connection with a PO or these Terms, or obtained through observation or access to the other party's facilities, including, but not limited to, specifications, programs, Systems data, formulas, compositions, patterns, plans, drawings, documents, designs, sketches, photographs, samples, prototypes, manufacturing, packaging, shipping methods, processes, pricing information, customer lists, business strategies, and financial information. Confidential Information does not include information that: (i) is or becomes publicly available through no breach of these Terms by the receiving party; (ii) was rightfully in the receiving party's possession prior to disclosure by the disclosing party; (iii) is rightfully received by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information. Unless otherwise agreed to in writing, all right, title, and interest in and to any development, invention, or work of authorship, including all intellectual property rights therein, conceived or developed by Seller (whether alone or jointly with others) during the course of performance hereunder or in connection with these Terms, shall remain the sole and exclusive property of Seller, and no right, title, interest, or license therein is conveyed to Buyer. Seller does not grant to Buyer, and nothing contained herein will obligate or be construed to obligate Seller to grant to Buyer, any license under any patents or other intellectual property owned by Seller. Except for data customarily provided for quality control purposes (which Buyer will keep confidential and use solely for such purposes), Seller shall not be required to deliver any data concerning its manufacturing processes, trade secrets, or proprietary methods, unless such data has been specifically identified in a PO, funded in whole by Buyer, and Seller has agreed in writing to provide such data. Any such data provided shall remain the property of Seller and shall be subject to the confidentiality obligations set forth in this Section.
15. FORCE MAJEURE:
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms (except for payment obligations, which shall not be excused by force majeure), when and to the extent such party's (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) labor disputes, strikes, or lockouts; (f) failure of suppliers or subcontractors due to force majeure events; or (g) other similar events beyond the reasonable control of the Impacted Party that could not have been prevented by reasonable precautions. The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If a Force Majeure Event continues for more than ninety (90) days, either party may terminate the affected PO(s) upon written notice to the other party without liability, except for obligations that accrued prior to such termination.
16. ASSIGNMENT AND DELEGATION:
Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms without Seller's prior written consent. Seller may assign these Terms and its rights and obligations hereunder to (i) any affiliate controlled by, controlling, or under common control with Seller, or (ii) any successor entity in connection with any merger, consolidation, sale of all or substantially all of Seller's assets or equity, or other corporate reorganization, in each case without Buyer's consent, provided that Seller provides Buyer with written notice of such assignment within thirty (30) days thereof. Any purported assignment or delegation in violation of this Section shall be null and void and of no force or effect. No assignment shall relieve the assigning party of any of its obligations hereunder unless the non-assigning party agrees otherwise in writing.
17. AMENDMENTS:
No changes to these Terms are binding unless it is in writing and signed by authorized representatives of both parties.
18. RELATIONSHIP OF THE PARTIES:
The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. GOVERNING LAW; DISPUTE RESOLUTION:
All matters arising out of or relating to these Terms shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms. Any legal suit, action or proceeding arising out of or relating to these Terms or any PO shall be instituted exclusively in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Sacramento and County of Sacramento, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any such suit, action or proceeding in such courts and any claim that any such suit, action or proceeding brought in such courts has been brought in an inconvenient forum.
20. CUMULATIVE REMEDIES:
The rights and remedies of each party under these Terms are cumulative and in addition to and not in substitution for any other rights and remedies available to such party at law or in equity or otherwise. No single or partial exercise of any right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy.
21. NOTICES:
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the relevant Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), e-mail (to the email address designated by the receiving party in writing, with confirmation of delivery or read receipt), or certified or registered mail (in each case, return receipt requested, postage prepaid).
22. REPAIR AND REPLACEMENT SERVICES:
(A) Warranty Repairs: All warranty repair work shall be performed at no charge for labor and parts, subject to the terms and conditions of the applicable warranty. (B) Non-Warranty Repairs: For repairs not covered under warranty, Seller will evaluate whether replacement or repair is the most cost-effective solution and shall provide Buyer with options including: (i) repair costs and timeline; (ii) replacement costs and availability; and (iii) Seller's recommended course of action. Seller reserves the right to make the final determination on whether to repair or replace any Equipment. (C) Payment Terms: All repair services and replacement parts shall be subject to Net 30 payment terms from the invoice date. Payment shall be made in accordance with Section 6 of these Terms. (D) Shipping Responsibility: (i) Warranty repairs: Buyer shall pay all shipping costs to and from Seller's facility unless otherwise agreed in writing by Seller. (ii) Non-warranty repairs: Buyer shall pay all shipping costs to and from Seller's facility. (iii) Seller shall not be liable for any damage occurring during shipping, and Buyer is advised to obtain appropriate insurance coverage. (E) Evaluation Process: Seller will provide Buyer with a written assessment and cost estimate before proceeding with any non-warranty repair work exceeding One Thousand Dollars ($1,000.00) in value. Buyer shall have five (5) business days from receipt of such estimate to approve or reject the proposed repair work. Failure to respond within such time period shall be deemed a rejection of the repair work, and Seller may return the Equipment to Buyer at Buyer's expense. (F) Return Policy: All repaired items and replacement parts shall be subject to Seller's standard warranty terms upon completion of services as set forth in Section 8 of this Agreement. (G) Title and Risk of Loss: Title and risk of loss for any Equipment sent to Seller for repair shall remain with Buyer until repaired Equipment or replacement parts are delivered to and accepted by Buyer. (H) Limitation of Liability: Seller's liability for any repair or replacement services shall be limited to re-performance of defective repair work or replacement of defective parts. In no event shall Seller be liable for any consequential, incidental, or indirect damages arising from repair or replacement services.
23. SEVERABILITY:
If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
24. OVERNMENT ORDERS:
The parties acknowledge that where Systems sold or Services performed under this Agreement are pursuant to orders from the U.S. Government, or prime contractors contracting with the U.S. Government (both referred to here as “Government Contract(s)”), the provisions of the Federal Acquisition Regulations (“FAR”) and/or Defense Federal Acquisition Regulations Supplement (“DFARS”) incorporated into said Government Contracts may apply to this Agreement. Seller will only accept such provisions if: (a) Buyer provides Seller with written notice of the particular Government Contracts for which Buyer intends to use the Systems or Services at least thirty (30) days prior to Seller's performance; (b) Buyer provides Seller with written notice of the specific FAR and/or DFARS provisions that Buyer believes apply to Seller at least thirty (30) days prior to Seller's performance; (c) Seller accepts compliance with said FAR and/or DFARS clauses in writing; and (d) Buyer agrees to reimburse Seller for any additional costs incurred by Seller in complying with such FAR and/or DFARS provisions, including but not limited to costs for additional documentation, reporting, audits, or compliance measures.
25. SURVIVAL:
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms, including, but not limited to, the following sections: SETOFF, INDEMNIFICATION, LIMITATION OF LIABILITY, WARRANTIES, CONFIDENTIALITY & INTELLECTUAL PROPERTY, GOVERNING LAW; DISPUTE RESOLUTION, and PAYMENT TERMS (to the extent any amounts remain unpaid).
Terms & Conditions of Subscription Services:
AWOS Live Premium Support
(with optional Weather Camera and RapidShip Parts Exchange Program)
Any person or entity (“Subscriber”, “you” or “your”) who subscribes to AWOS Live Premium Support for its Airport Weather Advisor® AWOS system (“AWOS”) from Mesotech International, Inc. (“Provider”, “Mesotech”, “we”, “us”, or “our”) by completing and signing a subscription order form provided by Mesotech (the “Subscription Order Form”) is subject to these Terms and Conditions of Subscription Services (“Terms”) unless the parties enter into a separate written agreement. These Terms also cover additional optional subscriptions to our Weather Camera and our RapidShip Parts Exchange Program, which Subscriber may subscribe to via the Subscription Order Form. To the extent any terms in the Subscription Order Form conflict with these Terms, the terms in the Subscription Order Form shall apply.
Terms specific to AWOS Live Premium Support are set forth in Sections 1-4 below. Terms specific to the Weather Camera are set forth in Sections 5-9 below. Terms specific to the Rapid Parts Exchange Program are set forth in Sections 10-13 below. General Terms and Conditions which apply to all three subscription offerings are set forth in Sections 14-20 below. The effective date of these Terms is either the date of commissioning of the corresponding newly-installed AWOS if Subscriber subscribes for services for such AWOS or, if the Subscriber is purchasing subscription services for an existing AWOS, the date of order set forth on the Subscription Order Form (the “Effective Date”).
AWOS LIVE PREMIUM SUPPORT
1. AWOS LIVE PREMIUM SUPPORT SERVICES
1.1 Service Description:
Provider agrees to provide Subscriber with proactive system monitoring services, including active system monitoring and maintenance, for the Term (as defined in Section 14). Provider will use commercially reasonable efforts to ensure the services are available, but does not guarantee uninterrupted or error-free service.
1.2 Proactive System Monitoring:
Provider will use commercially reasonable efforts to assign a support engineer within one (1) hour of issue notification via Mesotech AWOS Live monitoring or Subscriber contact during Mesotech business hours (8:00 AM to 4:00 PM Pacific Time, excluding federal holidays observed by Provider). Response times for issues reported outside of business hours will be addressed on the next business day. At Subscriber’s option, Provider shall send automated email and SMS notifications to Subscriber regarding system monitoring.
1.3 Subscriber Success:
Subscriber will be assigned a dedicated Subscriber Success Coordinator and access to Mesotech Knowledge Base at: support.mesotech.com.
2. MAINTENANCE AND SUPPORT
2.1 Scheduled Maintenance:
All maintenance will be performed exclusively during regularly scheduled triannual maintenance visits.
2.2 Out-of-Cycle Maintenance:
Provider will not conduct any out-of-cycle maintenance visits except in cases of critical system failure that renders the system completely inoperable. Any non-critical required maintenance will be addressed during the next scheduled maintenance visit, provided that such visit occurs within one hundred twenty (120) days of the reported issue. If the next scheduled maintenance visit will not occur within one hundred twenty (120) days of the reported non-critical issue, Provider shall either (a) schedule an out-of-cycle visit to address the issue, or (b) provide Subscriber with remote technical support to enable Subscriber's designated maintainer to address the issue, at Provider's discretion.
2.3 Support Contact:
Subscriber's designated maintainer shall serve as the primary hands-on contact for routine service-related matters. Provider shall provide remote support and technical guidance to Subscriber's designated maintainer. For issues that cannot be resolved remotely or by Subscriber's maintainer, Provider shall provide on-site support during the next scheduled maintenance visit or as otherwise agreed by the parties.
3. SERVICE LIMITATIONS
3.1 System Requirements:
System monitoring is dependent on Subscriber maintaining active internet access to AWOS independently in addition to active NADIN service.
3.2 Cellular Service:
Provider is not responsible for any cellular service coverage issues, outages, or related connectivity problems.
4. DATA RIGHTS AND PRIVACY
4.1 Data Distribution:
Provider may distribute collected data and images to the Federal Aviation Administration (FAA) and other government agencies as required by law or regulation, and may use such data for Provider's internal business purposes, including product development, analytics, and research. Provider may distribute aggregated or anonymized data to third parties, provided that such data does not identify Subscriber or Subscriber's specific location without Subscriber's prior written consent. Provider will not sell or license Subscriber-specific identifiable data to third parties for commercial purposes without Subscriber's prior written consent. Subscriber acknowledges that no additional compensation is due for such permitted uses. Provider shall implement reasonable security measures to protect Subscriber data in accordance with industry standards and applicable privacy laws, including the California Consumer Privacy Act (CCPA).
Weather Camera
5. WEATHER CAMERA SUPPORT SERVICES
5.1 Service Description:
Provider agrees to provide Subscriber with weather camera services, including installation, maintenance, and image access for the Term (as defined in Section 14). Provider will use commercially reasonable efforts to ensure the services are available, but does not guarantee uninterrupted or error-free service.
5.2 Setup Fee
A one-time setup fee in the amount quoted in the Subscription Order Form will be charged upon installation of the weather camera.
5.3 System Requirements:
These weather camera support services are dependent on Subscriber maintaining active internet access to the weather camera which is fully independent of any AWOS/NADIN internet connection.
5.4 Local Network:
If the weather camera uses the Subscriber's local network service, Provider is not responsible for issues, outages, or troubleshooting related to the local network.
6. EQUIPMENT
6.1 Equipment:
The subscription includes one (1) Provider-approved camera system to be installed at Subscriber's facility located at the address specified in the applicable Subscription Order Form (“Subscriber Address“). The specific installation location and configuration shall be mutually agreed upon in writing by both parties prior to installation.
7. EQUIPMENT OWNERSHIP
7.1 Ownership:
Provider owns the camera equipment throughout the Term (as defined in Section 14).
7.2 Shipping Costs:
Subscriber shall be responsible for all reasonable and documented shipping and handling costs associated with the equipment, including costs related to service and returns. Provider shall provide Subscriber with written notice of such costs in advance where practicable, and in all cases shall provide documentation of actual costs incurred within thirty (30) days of invoice. Provider shall use commercially reasonable efforts to minimize such shipping costs.
8. DATA ACCESS
8.1 Data Access:
Provider retains the right to access, retain, and use all visual images and associated data collected by the weather camera system for Provider's business purposes, including product development, analytics, and research, subject to applicable privacy laws and regulations including the California Consumer Privacy Act (CCPA). Provider may share aggregated or anonymized data with third parties, provided such data does not identify Subscriber or Subscriber's specific location. Provider will not sell or license Subscriber-specific identifiable images or data to third parties for commercial purposes without Subscriber's prior written consent. Provider will implement reasonable administrative, technical, and physical security measures to protect such data from unauthorized access or disclosure in accordance with industry standards.
9. CONSEQUENCES OF TERMINATION
9.1 Consequences of Termination:
Upon termination of the weather cameral subscription for any reason, Provider shall deactivate remote access to the weather camera system and will remove the camera during the next scheduled triannual maintenance visit to the AWOS.
Mesotech RapidShip Parts Exchange Program
10. Program Overview
10.1 Program Summary:
The Mesotech RapidShip Parts Exchange Program (“Program“) provides Subscribers with guaranteed 7-business-day delivery of factory-refurbished replacement components for their AWOS. This Program is designed to minimize system downtime through expedited parts exchange and streamlined logistics.
10.2. Program Benefits:
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Guaranteed Delivery: Replacement parts ship within seven (7) business days of approved request
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Priority Access: Pre-positioned inventory of critical components
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Simplified Exchange: Receive replacement part first, return failed component afterward
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Factory Refurbished Quality: All replacement parts meet Provider factory specifications
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Predictable Costs: Fixed annual subscription fee with no additional parts costs for covered components that fail under normal operating conditions
10.3. Covered Components:
The Program covers factory-refurbished replacement of the following AWOS system components:
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Wind sensors and assemblies
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Temperature and humidity sensors
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Barometric pressure sensors
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Visibility sensors
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Ceilometer components
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Precipitation sensors
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System processors and controllers
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Communication equipment and interfaces
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Power supplies and electrical components
10.4. Excluded Components:
The following components are NOT covered under this Program:
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Lightning detection sensors and lightning sensor assemblies
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Weather camera equipment (unless specifically added to subscription)
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Consumable items (batteries, fuses, filters, etc.)
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Mounting structures, towers, and civil infrastructure
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Cabling and wiring (unless integral to a covered component)
10.5. Exclusions and Limitations:
Provider is not responsible for parts replacement or system damage resulting from:
10.5.1 Force Majeure Events
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Lightning strikes and electrical surge damage
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Flooding, hurricane, tornado, or severe weather damage
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Earthquakes, fires, or other natural disasters
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Acts of war, terrorism, or civil unrest
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Vandalism, theft, or intentional damage
10.5.2 Improper Use or Maintenance
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Damage caused by improper installation or maintenance
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Modifications or repairs by unauthorized personnel
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Failure to follow Provider maintenance procedures
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Operation outside specified environmental parameters
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Neglect or abuse of equipment
10.5.3 Third-Party Causes
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Damage from aircraft impact or ground vehicle collision
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Construction or excavation damage
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Power grid failures or voltage irregularities beyond equipment specifications
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Telecommunications or network failures
11. Program Terms
11.1 Geographic Coverage:
Program available for AWOS installations within the continental United States, Alaska, and Hawaii. International locations may be accommodated at Provider's sole discretion with adjusted delivery timelines and additional fees, which will be quoted on a case-by-case basis and must be agreed to in writing before enrollment.
11.2 Eligibility:
The AWOS must have been installed by a technician authorized by Provider. The AWOS must be under an active AWOS Live Premium Support plan that is current and in good standing with all fees paid.
12. Parts Exchange Process
12.1 Requesting Replacement Parts:
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Subscriber contacts Mesotech Technical Support via phone or email
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Provider diagnoses issue and approves parts exchange request
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Provider may require photographic documentation of the failed component to assess eligibility for no-cost exchange
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Replacement part will ship within seven (7) business days of approval, provided that Subscriber has fulfilled all conditions precedent including provision of required documentation and payment of any applicable charges
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Tracking information provided upon shipment
12.2 Part Eligibility Assessment:
Components may be deemed ineligible for no-cost exchange if photographic documentation provided by Subscriber or physical inspection by Provider reveals:
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Physical damage from impact, collision, or mishandling
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Evidence of improper installation or unauthorized modifications
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Corrosion or deterioration from lack of proper maintenance
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Damage consistent with causes listed in Section 10.5 (Exclusions and Limitations)
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Serial number tampering or removal
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Burn marks or damage from electrical surge or lightning
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Water damage from flooding or improper weatherproofing
If Provider determines, based on photographic documentation or physical inspection of the returned component, that the failure resulted from improper use, maintenance, or conditions outside normal operational parameters as described in Section 10.5, Provider will provide written notice to Subscriber of the basis for such determination and the additional charges that will be assessed, including an itemized breakdown of such charges. Subscriber will have ten (10) business days from receipt of such notice to dispute the determination in writing, providing any supporting documentation or explanation. If Subscriber does not timely dispute, the additional charges shall be deemed accepted and shall be due within thirty (30) days of the notice. If Subscriber timely disputes and the parties cannot resolve the dispute within thirty (30) days of Subscriber's dispute notice, the dispute resolution provisions of Section 19.2 shall apply to the disagreement.
12.3 Returning Failed Parts:
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The failed component must be returned within thirty (30) days of receiving replacement.
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The component must be returned in condition suitable for refurbishment.
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If the returned component reveals damage that would render it ineligible for no-cost exchange under the Part Eligibility Assessment section above and such damage was not disclosed or reasonably apparent from the photographic documentation provided during the request process, Provider may charge Subscriber for the replacement part at Provider's then-current list price for such component, less any applicable subscription discount. Provider will provide Subscriber with written notice, photographic evidence of the undisclosed damage, and an invoice prior to charging Subscriber's payment method on file. Subscriber will have ten (10) business days from receipt of such notice to dispute such charges in writing pursuant to the process described in the Part Eligibility Assessment section above.
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Failure to return the failed component within thirty (30) days of receiving the replacement part will result in Subscriber being charged for the replacement part at Provider's then-current list price for such component, less any applicable subscription discount. Provider will provide written notice to Subscriber's designated contact and allow a fifteen (15) day cure period from receipt of such notice before assessing such charges to Subscriber's payment method on file.
12.4. Part Ownership and Refurbishment:
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Title to all replacement parts shall remain with Provider, and Subscriber receives only a limited, non-exclusive, non-transferable license to use such parts in Subscriber's AWOS system at the enrolled location, until Subscriber returns the failed component in accordance with Section 12.3. Upon Provider's receipt and acceptance of the returned failed component, title to the replacement part shall transfer to Subscriber. Subscriber shall not encumber, sell, lease, or otherwise transfer any replacement part while title remains with Provider, and shall maintain such parts free from liens and security interests.
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Upon return of defective components to Provider, title to such components shall transfer to Provider, and Provider may refurbish, recycle, or dispose of such components in its sole discretion.
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Replacement parts are factory-refurbished components. Provider warrants that refurbished parts will conform to Provider's then-current published specifications for such components and will be free from defects in materials and workmanship under normal use.
13. Service Requests and Response
13.1 Business Hours:
Monday through Friday, 8:00 AM to 4:00 PM Pacific Time, excluding federal holidays observed by Provider.
13.2 Response Time:
Provider will use commercially reasonable efforts to acknowledge parts requests within four (4) business hours.
13.3 Delivery Timeline:
7-business-day delivery begins upon request approval and applies to standard shipping methods. In the event the replacement part(s) requested are unavailable or are lost during the shipping process, Provider will use its best efforts to obtain and ship the replacement part to the maintenance technician as quickly as possible.
13.4 Expedited Shipping:
Available at additional cost for critical situations requiring faster delivery.
GENERAL TERMS AND CONDITIONS
14. TERM AND TERMINATION
14.1 Term
Each of the subscription offerings set forth above and these Terms shall commence on the Effective Date and shall remain in effect for the period set forth for such subscription offering in the Subscription Order Form (“Initial Term”). Upon expiration of the Initial Term, the subscriptions and these Terms shall automatically renew for successive one (1) year periods (each a “Renewal Term”) unless either party provides written notice of non-renewal at least ninety (90) days prior to the end of the then-current term.
14.2 Early Termination:
The subscriptions and these Terms may not be terminated before the end of the Initial Term except: (a) by either party for material breach if the breaching party fails to cure such breach within thirty (30) days after written notice (or immediately if the breach is incurable); (b) by Provider if Subscriber becomes insolvent, files for bankruptcy, makes an assignment for the benefit of creditors, or has a receiver appointed for its business or assets; or (c) as otherwise expressly provided in these Terms.
15. FEES AND PAYMENT
15.1 Subscription Fees:
Subscriber agrees to pay an annual subscription fee each subscription service it subscribes to in the amount set forth for such subscription service in the Subscription Order Form. Subscriber shall pay cellular service charges if applicable. Provider may pro-rate subscription fees in the first year for existing customers who upgrade to any of Provider’s subscriber service offerings after AWOS commissioning. Provider reserves the right to increase the subscription fee for any Renewal Term by providing Subscriber with at least ninety (90) days' written notice prior to the renewal date, provided that any such increase shall not exceed five percent (5%) per Renewal Term. If Provider increases fees by more than five percent (5%), Subscriber may terminate this Agreement without penalty by providing written notice within thirty (30) days of receiving notice of such increase, and such termination shall be effective as of the end of the then-current term.
15.2 Payment Schedule:
Subscription fees for all subscription services shall be billed annually in advance. Subscriber authorizes Provider to charge the payment method on file through automatic billing using Provider's automated system. Subscriber may revoke this authorization at any time by providing written notice to Provider at least fifteen (15) days prior to the next scheduled billing date, provided that Subscriber must then make payment by an alternative method acceptable to Provider within the payment terms set forth herein. Provider will pro-rate and align billing with any other ongoing invoices (e.g., NADIN, Maintenance, etc.) where commercially practicable. Payment is due within thirty (30) days of invoice date. Provider shall send invoices to Subscriber at the Subscriber Address or to such other address as Subscriber may designate in writing.
15.3 Late Payment:
Provider reserves the right to temporarily suspend services if payment is more than thirty (30) days overdue, provided that Provider gives Subscriber at least ten (10) days' written notice before suspension. Provider may charge a late fee of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) (or the maximum rate permitted by law, whichever is less) on overdue amounts. Provider may terminate this Agreement if payment remains outstanding for more than sixty (60) days after written notice.
16. LIMITATIONS OF LIABILITY
16.1. Limitations of Liability:
Except as expressly set forth below, Provider's total aggregate liability under these Terms for any and all claims arising out of or relating to the subscription services, whether based in contract, tort, strict liability, or otherwise, shall not exceed the total subscription fees paid by Subscriber to Provider during the twelve (12) month period immediately preceding the event giving rise to liability; provided, however, that nothing in this section shall limit Provider's liability for (i) gross negligence or willful misconduct, (ii) personal injury or death caused by Provider's negligence, (iii) fraud or fraudulent misrepresentation, (iv) violation of applicable data protection or privacy laws, or (v) any other liability that cannot be limited or excluded under applicable California law. Provider is not liable for:
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Indirect, incidental, special, or consequential damages, including but not limited to lost revenue, lost profits, operational delays, business interruption, or loss of data, even if Provider has been advised of the possibility of such damages
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Costs associated with temporary equipment rental or alternative arrangements
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Claims by third parties, including but not limited to Subscriber's Subscribers or end users, arising from or related to system downtime, service interruptions, or any other matter related to this Program
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Damages exceeding the scope of covered components
17. FORCE MAJEURE
17.1 Force Majeure:
Provider shall not be liable for any failure or delay in performance due to circumstances beyond its reasonable control, including but not limited to acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials (“Force Majeure Event”). If a Force Majeure Event continues for more than ninety (90) consecutive days and materially prevents performance of the subscription services, either party may terminate this Agreement upon written notice without further liability, except that Subscriber shall remain obligated to pay for any services actually rendered prior to termination and Provider shall refund any prepaid fees for services not rendered for the period following termination.
18. SUBSCRIPTION SERVICES MODIFICATIONS
18.1 Modifications:
Provider reserves the right to modify subscription services terms, covered components, or pricing with sixty (60) days prior written notice to Subscribers. Modifications will become effective at the start of Subscriber's next Renewal Term. If Provider makes material changes that adversely affect Subscriber's rights or increase Subscriber's obligations, Subscriber may cancel the subscription by providing written notice within thirty (30) days of receiving notice of the changes, and Subscriber will receive a pro-rated refund of any prepaid fees for the unused portion of the then-current term.
19. GOVERNING LAW; DISPUTE RESOLUTION
19.1 Governing Law:
These Terms are governed by the laws of the State of California without regard to conflict of law principles.
19.2. Dispute Resolution:
Any disputes arising from or relating to the subscription services and these Terms shall be resolved through binding arbitration in Sacramento County, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, except that either party retains the right to seek injunctive or equitable relief in a court of competent jurisdiction to prevent irreparable harm. The arbitration shall be conducted by a single arbitrator mutually agreed upon by the parties, or if the parties cannot agree within thirty (30) days of the demand for arbitration, appointed in accordance with the AAA rules. The parties agree that the arbitrator shall apply the substantive law of California. The prevailing party in any arbitration shall be entitled to recover its reasonable costs and attorneys' fees from the non-prevailing party, and the parties shall share equally the fees and costs of the arbitrator unless the arbitrator determines otherwise based on the relative merits of the parties' positions or as required by applicable law. This arbitration agreement does not preclude either party from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction.
20. MISCELLANEOUS
20.1. Entire Agreement:
These Terms and any order form or statement of work executed by both parties together constitute the entire agreement between Provider and Subscriber regarding the subscription services offered by Provider and supersede all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties relating to the subject matter hereof. In the event of any conflict between these Terms and any order form or statement of work, these Terms shall control unless the order form or statement of work expressly states that it supersedes a specific provision of these Terms and is signed by an authorized officer of Provider.
20.2 Amendments:
Any modifications to these Terms must be in writing and signed by both parties.
SUBSCRIBER ACKNOWLEDGEMENT
By subscribing to AWOS Live Premium Support (including, if selected, the Weather Camera and/or the Rapid Ship Parts Exchange Program) and signing the applicable Subscription Order Form, Subscriber acknowledges having read, understood, and agreed to these Terms.
