These Quote Based Parts Sales Terms and Conditions (these “Terms and Conditions” and together with the Quote that is hereby incorporated by this reference, collectively, this “Agreement”) create a binding agreement between Mesa Natural Gas Solutions LLC, a Delaware limited liability company (“Mesa”) and the Customer identified on the Quote. BY AGREEING TO A QUOTE CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. ANY CUSTOMER PRESENTED TERMS AND CONDITIONS, WHETHER ON A PURCHASE ORDER OR OTHERWISE, ARE HEREBY EXPRESSLY DISCLAIMED BY BOTH MESA AND CUSTOMER IN RELATION TO THE TRANSACTION CONTEMPLATED BY THIS QUOTE
Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Quote and those certain terms are defined as set forth below:
Subject to the terms and conditions of this Agreement, Mesa shall make available for purchase by Customer Parts under a Quote at the then current prices. The availability of Parts is subject to current manufacturing demand and economic conditions of Mesa and availability of specific Parts is limited to those Parts in current manufacture by Mesa’s suppliers. If Customer or any of its affiliates is a party to a sales agreement or other agreement with Mesa pertaining to Customer’s purchase of Parts, such sales agreement or other agreement shall govern and control in all respects the purchase of any Parts by Customer.
Customer shall contact Mesa directly to with any requests for Parts. Upon Mesa’s receipt of a request for Parts from Customer, Mesa shall prepare and deliver a Quote for such Parts to Customer. To purchase any Parts Customer must accept a Quote and deliver to Mesa a purchase order for the Parts described in such accepted Quote (“Purchase Order”). Upon Mesa’s receipt of a Purchase Order, Mesa shall use its commercially reasonable efforts to promptly fulfill the Purchase Order based on Mesa’s then current availability of the Parts purchased in such Purchase Order
M,esa shall ship and deliver all Parts to Customer at the destination designated by Customer by common carrier freight. Title and risk of loss to all Parts ordered under this Agreement passes to Customer upon Mesa’s delivery of the Parts to the carrier for freight transportation.
Following Mesa’s delivery of the Parts to Customer pursuant to the terms and conditions herein, Mesa shall deliver to Customer an invoice detailing, the costs to be paid for the Parts (each, an “Invoice”).
Customer shall be responsible to pay (and Mesa shall be responsible to remit) any sales, use, excise, bulk sales, property and other taxes based upon the purchase of Parts from Mesa.
(a) Indemnification
Customer shall release, protect, indemnify, and hold harmless Mesa, its affiliates, and their respective officers, directors, managers, equity holders, employees, contractors, agents, successors and permitted assigns and other representatives from and against all losses, costs, expenses, liabilities, damages, fines, and penalties, including court costs, reasonable attorneys’ and professionals’ fees and expenses, and other litigation or settlement expenses (“Losses“) sustained or incurred by such parties, including in connection with any third party claims, to the extent such Losses arise out of:
except in each case, to the extent such Losses are caused by the fraud, gross negligence, or willful misconduct of Mesa.
(b) Limitation of Liability
Mesa nor its affiliates or their respective officers, directors, managers, employees, equity holders, agents, contractors, successors and permitted assigns or other representatives shall be liable for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of this Agreement, regardless of:
and notwithstanding the failure of any agreed or other remedy of its essential purpose.
The foregoing indemnification obligations of this Section shall apply regardless of the amount of insurance coverage held by Customer, including any such coverage under any workers’ compensation act, disability act, or other employee benefit act, or any other applicable law that would limit the amount or type of damages, compensation, or benefits payable by or for Customer, and shall be both independent of and not limited by or to any insurance carried or provided by Customer.
EXCEPT FOR INSTANCES OF FRAUD, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, MESA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO MESA BY CUSTOMER PURSUANT TO THIS AGREEMENT.
Without limiting the generality of the foregoing, Customer assumes all risk and liability for the operational results obtained by Customer from Customer’s purchase of the Parts in the practice of any process, whether in terms of operating costs, general effectiveness, success or failure, and regardless of any oral or written statements made by Mesa, by way of technical advice or otherwise, related to the use of any Parts.
(a) Warranty
To the extent any warranties associated with the Parts (each, a “Manufacturer Warranty“) are assignable or transferable, Mesa hereby assigns all rights and benefits to any Manufacturer Warranty to Customer.
(b) Disclaimers
Except for the Manufacturer Warranty, Mesa makes no warranty whatsoever with respect to the Parts, including any:
whether arising by law, course of dealing, course of performance, usage of trade, or otherwise.
Customer acknowledges that it has not relied upon any representation or warranty made by Mesa, its affiliates, representatives, employees, contractors or agents.
(c) Exclusive Remedy
Customer shall have no recourse against Mesa for any breaches of the Manufacturer Warranty and Customer’s sole recourse shall be as set forth in the applicable Manufacturer Warranty.
Mesa shall use its commercially reasonable efforts to assist with and facilitate any warranty claims pursuant to a Manufacturer Warranty upon request by Customer.
All notices and other communications to a Party hereunder shall be in writing (including email or similar writing) given to the addresses listed on the Quote and shall be effective upon delivery.
This Agreement shall be governed by the laws of the State of Delaware without regard to its principles of conflicts of laws.
Each of the Parties irrevocably consents to the exclusive jurisdiction of, and venue in, the state courts located in Wilmington, Delaware (or in the event of exclusive federal jurisdiction, the federal courts located in Wilmington, Delaware), in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, and agrees that process may be served upon them in any manner authorized by the Laws of the State of Delaware for such persons.
In this Agreement:
This Agreement constitutes and contains the entire agreement between the Parties and supersedes any and all prior agreements, negotiations, correspondence, understandings and communications among the Parties, whether written or oral, respecting the subject matter hereof.
This Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, directly or indirectly, including by operation of law, by any Party without the prior written consent of the other Party; provided, however, that Mesa shall be permitted, without the consent of Customer, to:
Any provision of this Agreement may be amended, waived or modified at any time only by a duly executed written agreement of the Parties.
If any provision of this Agreement is deemed or held to be illegal, invalid or unenforceable, this Agreement shall be considered divisible and inoperative as to such provision to the extent it is deemed to be illegal, invalid or unenforceable, and in all other respects this Agreement shall remain in full force and effect; provided, however, that if any provision of this Agreement is deemed or held to be illegal, invalid or unenforceable the Parties agree to replace such illegal, invalid or unenforceable provision with a provision that is legal, valid and enforceable that achieves the original intent of the Parties as closely as possible.
Further, should any provision contained in this Agreement ever be reformed or rewritten by any governmental authority of competent jurisdiction, such provision as so reformed or rewritten shall be binding upon all Parties.
This Agreement may be executed in counterparts, each of which will be deemed an original, but both of which together will be deemed to be one and the same agreement.
Counterparts may be delivered via electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
To ask questions or comment about this Statement, contact us at:
Mesa Natural Gas Solutions, LLC. 6392 Byrd Drive, Loveland, CO 80538 Attn: Legal Department
Email Us: support@mesapower.com.com
+1 844-247-MESA (844-247-6372)