Standard Terms and Conditions.
PROPRIETARY RIGHTS NOTICE AND DISCLAIMER
DEFINITIONS: In these Terms and Conditions (“Terms and Conditions”), WHA INTERNATIONAL, INC. will be referred to as “WHA.” The materials, articles, goods or services to be furnished will be referred to as the “Services.” The person or firm purchasing the Services will be referred to as “Client.” WHA’s effort on behalf of its Client will be called the “Project.” WHA and Client may be referred to individually as “Party” or collectively as “Parties,” and the cost estimate, rate schedule, invoice or any other WHA document to which these Terms and Conditions are attached, together with these Terms and Conditions, will be referred to as the “Agreement.”
ACCEPTANCE: Client’s acceptance of WHA’s offer to provide Services is limited to the Terms and Conditions contained herein and by entering this Agreement, Client accepts and assents to all such Terms and Conditions. Upon such acceptance, WHA will provide the Services to Client in accordance with the Terms and subject to the Conditions set forth herein. To the extent that WHA Terms and Conditions conflict with agreements, contracts, purchase orders, forms, and other documents utilized or to be utilized by Client, WHA Terms and Conditions control.
PRICES: Services performed by WHA are based on one of two conditions, Time and Materials or Fixed Price. In some situations, a combination of these conditions is used. In some situations, a retainer will be required.
- TIME AND MATERIALS: Services performed on a Time and Materials basis are charged according to the amount of time and materials that are actually consumed. A Time and Materials basis is typically used on projects involving development and experimental services. Due to the nature of a Time and Materials basis, there is no guarantee that the Services costs will not exceed the estimated costs.
- FIXED PRICE: Services are performed according to defined objectives and costs. Fixed price services place the burden of uncertainty with WHA. An exception to the fixed price costs is when the scope of the services is either increased or decreased by mutual assent relative to the original Agreement.
FEES AND PAYMENT TERMS:
- FEES: Client agrees to pay WHA for Services in accordance with the rates set forth in the Cost Estimate or Fee Schedule provided. WHA requires a client Purchase Order or signed Retention Agreement prior to initiating work.
- OUT-OF-POCKET EXPENSES: In those projects where applicable, Client shall reimburse WHA for reasonable out-of-pocket expenses incurred in the performance of Services, as disclosed in a cost estimate provided.
- INVOICES: For short duration Services (Services lasting 30 days or less), WHA shall submit a final and total billing at the conclusion of the Services. For Services extending beyond 30 days, WHA shall invoice Client on a monthly basis for Services rendered during the preceding monthly period, or according to work phases established between Parties.
- PAYMENT:Payment is due and payable upon receipt of all billing invoices. A service charge or late fee in the amount of twelve percent (12%) per annum (or the legally allowable limit) may be charged on any sum due to WHA that is not paid by Client within 30 days. WHA reserves the right to discontinue work for any client account that is over 60 days past due.
- DISPUTED FEES:Client is encouraged to examine and accept work product upon delivery. Client is requested to thoroughly review and accept invoices upon receipt. Client agrees to promptly notify WHA in the event of work product or fee dispute. Parties shall attempt to resolve the dispute promptly. To maintain uninterrupted services by WHA, Client shall make timely payment.
STANDARD OF CARE: WHA provides Services with a high professional standard of consulting expertise, utilizing reasonable care and skill in accordance and consistent with customary industry standards. This standard of care is the sole and exclusive standard of care that will be applied to measure WHA’s performance of WHA’s services. WHA’s information, advice, recommendations, findings, and conclusions will be made to the best of WHA’s knowledge, opinion, and belief, based upon data and information made available to WHA at the time of review, and upon a variety of factors appropriate to the situation. A change in any of the factors upon which the review is based may adversely affect the information, advice, recommendations, findings, and conclusions expressed by WHA.
WHA disclaims any and all warranties, express or implied. Upon delivery to Client, application of the Services and implementation of the recommendations provided by WHA are the sole responsibility of Client.
Due to the nature of Services provided by WHA, client acknowledges that multiple clients in the same or different industries and with similar products and applications may also be served.
CONFIDENTIALITY & INTELLECTUAL PROPERTY:Each Party agrees to keep all ConfidentialInformation, materials, and disclosures under this Agreement strictly confidential until such time, if ever, the Confidential Information becomes available to the public (other than as a result of a disclosure by the other Party). WHA’s background Intellectual Property (IP), or that proprietary information and expertise confidential to WHA and used in the Project that is in WHA’s possession prior to the commencement of the Project or generated after commencement of the Project but independent of the Project, shall remain the property of WHA, including, but not limited to ideas, inventions, improvements, discoveries, software design, software coding, charts, drawings, specifications, notebooks, tracings, photographs, negatives, draft or final reports, findings, recommendations, data and memoranda. Any technology developed during the performance of Service related to the Project shall remain the sole and exclusive property of WHA unless Client specifically negotiates otherwise prior to Project initiation. For works published under copyright during the term of the performance of Service related to the Project, copyright shall remain vested in WHA unless otherwise explicitly agreed within a statement of work or licensing agreement. WHA retains all rights to work undertaken under the term of the Agreement, unless published under a community license. No Client content shall be so published without written permission.
LIMITATION OF LIABILITY: Notwithstanding any other provision of this Agreement to the contrary, neither Party shall be liable to the other for incidental or consequential damages, including, without limitation, loss of profit or business or business interruption, including loss or delay of production, loss of business opportunities, damages for failure to meet deadlines, and loss of use of any equipment, howsoever same may be caused. To the fullest extent permitted by law, both Parties agree to indemnify, defend, and hold harmless each other and their clients and each of their agents, employees, and officers from any and all claims, demands, judgments, actions, liabilities, and costs and expenses of any kind for all injuries, disease, or death to any person (including employees, notwithstanding Workers’ Compensation laws) or damage to real or personal property (including Government and/or Client-furnished property) arising out of or in connection with the performance of work under this Agreement or any actual or alleged error, omission, negligent act, statutory violation, or breach of obligation of the other Party, its employees or agents. In no case shall either Party’s liability hereunder for damages, except (i) liability for infringement of a third party intellectual property right; or (ii) breach of provisions in Confidentiality & Intellectual Property section of this Agreement, exceed the charges paid for the work performed. Notwithstanding the foregoing, the Parties understand and agree that this indemnification language is not intended as an unconditional promise by WHA of the suitability for use of the product or process being evaluated by WHA under this Agreement. WHA’s opinion provided pursuant to this Agreement is based on WHA’s experience and expertise. Any indemnification provided herein is limited to loss directly related to WHA’s failure to perform its work in a manner consistent with industry standards.
TESTING SERVICES DISCLAIMER: WHA takes reasonable precautions to safeguard functionality and maintain cleanliness of test articles that are provided to WHA for testing. Best practices for oxygen cleanliness and handling are utilized as test articles are installed on the WHA test system and subjected to testing. However, due to the severity of test conditions required by WHA for performing testing in high-pressure oxygen, WHA disclaims all responsibility for the post-test condition of any test article and does not warrant the post-test condition of test articles for any purpose. The type of testing and analysis work that WHA performs may involve severe conditions. These conditions impose high levels of stress on our equipment, increasing the prospect of equipment failure. WHA designs and procures our equipment, and follows best industry practices, to reduce to sufficiently low levels the probability of failure. However, WHA cannot guarantee that an equipment failure will not occur during or prior to scheduled work. Therefore, any schedule provided by WHA represents a proposal and not a guarantee. WHA will not be liable for any client expenses incurred as a result of missing a proposed or published schedule. Furthermore, if a client plans to attend and witness the work at WHA facilities, WHA will not be liable for travel or other expenses associated with the visit should an equipment failure delay or postpone the work to analtered schedule fromone that may have been proposed.
WHA OXYGEN HAZARDS ANALYSIS SERVICES DISCLAIMER: WHA performs hazard analyses and risk assessments on oxygen systems as detailed herein. Clients must understand that because of their use of oxygen, inherent fire hazards exist. WHA performs analyses to assess the reasonably foreseeable fire risks, based on its understanding of the design/operation, but does not attempt a general design analysis or assessment for the purpose of determining the propriety of the design for any purpose or use. WHA employees and consultants undertake to reasonably and prudently identify all oxygen-related fire hazards associated with the relevant portions of the design and assess the risk of fire for the identified hazards. However, due to the inherent uncertainties associated with the ignition of oxygen fires, WHA does not guarantee that all potential fire hazards will be identified, nor does WHA warrant that the design will be free from the risk of fire, in its foreseeable uses.
GOVERNING LAW: This Agreement is governed by, takes effect and will be construed in accordance with the laws of the State of New Mexico in the United States of America, and the Parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New Mexico and courts entitled to hear appeals in the State of New Mexico. All legal and other costs and expenses incurred in connection with the Agreement and the transactions contemplated hereby are to be paid by the Party incurring such costs and expenses. If any Party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another Party, the prevailing Party will be entitled to recover its attorneys’ fees and expenses.
Training Services Agreement.
End user license agreement (EULA)
Any training accessed, requested or provided through WHA International, Inc (WHA), and/or by WHA and/or the WHA website or other training media must be accessed, requested and used in accordance with the terms and conditions specified in this agreement. WHA reserves any rights not expressly granted under this agreement. Additionally, WHA reserves the right, at its sole discretion and without notice, to modify the terms and conditions of this agreement concerning WHA training and the WHA course(s) at any time, and any changes are effective immediately. Only WHA has the right to alter or amend the general terms of this agreement.
WHA training courseshave been developed by WHA for CUSTOMER for training and educational purposes only.
This Training Services Agreement and EULA is an agreement between CUSTOMER and WHA for a specific product, which may include associated media, printed or electronic documentation, images, photographs, animations, video, audio, music, text, etc. incorporated into the software product (the software). By purchase of the WHA training product, CUSTOMER agrees to the terms of this Training Services Agreement and EULA.
WHA training courses are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. CUSTOMER acknowledges acquisition of WHA product and the materials contained in product for the use of CUSTOMER for training purposes only. Under this Training Services Agreement, CUSTOMER agrees to access course from the Digital Media provided by WHA or download it to a CUSTOMER computer for viewing purposes only, and/or upload it to a CUSTOMER owned server for viewing on the CUSTOMER network for CUSTOMER employee training only.
THIS TRAINING SERVICES AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN WHA AND THE CUSTOMER OF THE SERVICE DEFINED BELOW. BY ACCEPTANCE OF THIS AGREEMENT AND/OR BY USING THIS SERVICE, YOU REPRESENT:
- THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT THE TERMS OF THIS AGREEMENT ON BEHALF OF THE CUSTOMER (THE ENTITY ON WHOSE BEHALF YOU REPRESENT YOU ARE AUTHORIZED TO ACT, IN WHICH EVENT “YOU” AND “YOUR” SHALL REFER TO YOU AND SUCH ENTITY, AS THE CASE MAY BE), OR
- THAT YOU INTEND TO BE PERSONALLY BOUND TO THE TERMS OF THIS AGREEMENT AS THE CUSTOMER. IF YOU ARE NOT SO AUTHORIZED OR DO NOT INTEND TO BE PERSONALLY BOUND, THEN WHA IS UNWILLING TO PROVIDE THE SERVICE AND THE USE OF THE SERVICE IS A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND CONVENTIONS. IF YOU ACCEPT THESE TERMS ON BEHALF OF AN ENTITY, YOU MAY USE THE SERVICE ONLY ON BEHALF OF SUCH ENTITY. IF YOU INTEND TO BE PERSONALLY BOUND, USE OF THE SERVICE IS LIMITED TO YOUR PERSONAL USE.
“SERVICE” defined: Providing CUSTOMER with access to WHA training products, third-party training products marketed by WHA or WHA eTraining products, as applicable, through any channel WHA uses to provide training products.
“COURSE CONTENT” defined: All material related, directly or indirectly, to the Service but not limited to the videos or media images, ideas, intellectual property, presentations, illustrations, examples, charts, graphs, tables, narration, trademarks, logos, copyrights or other proprietary notices, legends, symbols or labels.
WHA hereby agrees to grant to CUSTOMER and CUSTOMER agrees to accept from WHA a non-transferable, non-sublicenseable and non-exclusive license to use the Service subject to the following terms and conditions:
- Limited Use: CUSTOMER may use the Service only for the training purposes specified under the conditions of purchase. CUSTOMER may not reverse assemble, reverse compile, translate or otherwise attempt to create the source code from any software used by WHA to provide the Service (the “Software”) or create derivative works of the Software or Course Content or any portion thereof, including for reasons of error correction or interoperability. CUSTOMER may not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on the Service, Course Content or Software. CUSTOMER may not copy, distribute, sell, license, lease or transfer use of the Service or any Course Content or Software to any third party.
- Duration: This license shall continue as defined under the Warranties clause (5) of this Agreement for so long as CUSTOMER uses the Service in compliance with this Agreement over the duration of the use period defined by WHAin the original pricing agreement. Should CUSTOMER breach any of its obligations, this license shall be revoked and CUSTOMER agrees to destroy or return any and all materials that may be provided for or with the Service and any copies thereof upon notification of noncompliance and revocation by WHA.
- Training Responsibilities: WHA makes no representation or warranty that the Service will fulfill any industry requirements of CUSTOMER for compliance with state and/or federal regulations or other requirements. It is CUSTOMER’S responsibility to ensure that CUSTOMER’S training programs, including the use of all WHA training products, comply with any such regulations and requirements.
- Title and Security: WHA retains all proprietary rights, title and interest in and to the Service, Course Content and Software and any modifications thereof. No ownership of any part of the Service, Course Content or Software is hereby transferred to CUSTOMER. CUSTOMER acknowledges that the Service, Course Content and Software are the property of WHA or any third party associate and may contain confidential information, and agrees to take all reasonable steps to protect its confidentiality if applicable.
- Warranties: WHA warrants solely that the Service will be provided in a professional and workmanlike manner. This warranty does not apply insofar as: (a) claims resulting from acts or omissions caused by persons other than WHA or from products, material or software not provided by WHA; (b) the Service is modified by someone not authorized by WHA or; (c) in the case of WHA eTraining products or other computer-delivered training, the Service is used on an operating system other than the system and version specified in its documentation, if any, or on a machine not described in its documentation, if any. CUSTOMER is responsible for selection of the Service to achieve its intended results. WHA does not warrant that use of the Service will be uninterrupted or error free, or that any errors will be corrected. In the event of an alleged breach of warranty, WHA’s sole responsibility, and CUSTOMER’s sole and exclusive remedy, is, at WHA’s option, to renew the applicable Service or, except for eTraining products, to refund the applicable paid fee. This limited warranty is valid only if WHA receives written notice of breach of warranty within one year from original sale of Service to customer.
- Limitation of Warranties and Liability: EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5 HEREIN, WHA SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR THE SERVICE, COURSE CONTENT AND/OR SOFTWARE, OR CUSTOMER’S USE THEREOF, INCLUDING ANY LIABILITY FOR NEGLIGENCE; WHA MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND WHA SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WHA MAKES NO REPRESENTATION, GUARANTY, OR WARRANTY THAT (a) THE SERVICE, COURSE CONTENT or SOFTWARE WILL MEET CUSTOMER REQUIREMENTS, (b) THE SERVICE WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, OR ERROR-FREE, (c) THE RESULTS FROM THE USE OF THE SERVICE, COURSE CONTENT OR SOFTWARE WILL BE COMPLETE, ACCURATE OR RELIABLE, AND (d) THE QUALITY OF SERVICE, COURSE CONTENT OR SOFTWARE, AND THE INFORMATION AND OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICE, COURSE CONTENT OR SOFTWARE WILL MEET CUSTOMER EXPECTATIONS. ANY SERVICES OR INFORMATION OR OTHER MATERIAL OBTAINED THROUGH THE USE OF THE SERVICE, COURSE CONTENT OR SOFTWARE IS OBTAINED AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER SOFTWARE, FILES, DESIGNS, COMPUTER HARDWARE, TECHNICAL AND OTHER SYSTEMS OR LOSS OF OR DAMAGE TO DATA, SOFTWARE, OR GOODS THAT RESULTS FROM THE USE OF ANY SUCH SERVICES, INFORMATION AND MATERIAL. CUSTOMER MAY HAVE CERTAIN STATUTORY RIGHTS TO WHICH THESE EXCLUSIONS DO NOT APPLY, HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD SET FORTH IN SECTION 5 ABOVE. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, REPRESENTATIVE OR EMPLOYEE OF WHA IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY. Notwithstanding any other provision of law to the contrary and to the extent such limitation is allowed by contract, the cumulative liability of WHA to the CUSTOMER for all claims relating to the Service, Course Content and Software in contract, tort, or otherwise, shall not exceed the total amount of fees paid to WHA by CUSTOMER for such Service, Course Content and Software. IN NO EVENT SHALL WHA BE LIABLE TO THE CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS OR REVENUE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, GOODWILL, LOSS OF INFORMATION OR DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES, EVEN IF WHA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE TO CUSTOMER. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CUSTOMER.
- Indemnification: To the extent permitted by applicable law, CUSTOMER agrees to indemnify, defend and hold WHA, and its subsidiaries, and their respective affiliates, directors, shareholders, officers, agents, representatives and employees, harmless from any liability, action, suit, damages, claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of CUSTOMER’S use of the Service, Course Content or Software or CUSTOMER’S violation of the terms of this Agreement, except to the extent arising out of the sole active negligence or willful misconduct of WHA or its agents.
- Miscellaneous: This Agreement, the non-exclusive license granted hereunder, the Service, Course Content, Software and any modifications thereto may not be assigned or in any way transferred by CUSTOMER. The terms of this Agreement shall be construed in accordance with the substantive laws of the State of New Mexico and the United States of America, without giving effect to the principles of conflict or choice of law of such State. The original of this Agreement has been written in English. CUSTOMER waives any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English. CUSTOMER specifically submits to jurisdiction in federal or state court in Dona Ana County, New Mexico. WHA and CUSTOMER exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement. If any provision of this Agreement is held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision shall be construed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes and replaces all prior written and oral communications between the parties concerning the subject matter covered hereby. This Agreement may not be modified by CUSTOMER except by a written agreement signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a written agreement signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. WHA may change and/or update this Agreement without notice, and CUSTOMER’s continued use of the Service shall signify CUSTOMER’s assent to such changes and/or updates.
- S. Government Restricted Rights Legend: The Software and related documentation and materials are “commercial items” as that term is defined in 48 C.F.R.2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R.227.7202-1, 227.7202-3 and 227.7202-4. If the CUSTOMER hereunder is the U.S. Government or any agency or department thereof, the Software, documentation and materials are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Licensor is WHA INTERNATIONAL, INC (WHA), at 5605 Dona Ana Road, Las Cruces, NM 88007.
- Compliance with Laws: CUSTOMER is responsible for complying with any laws in its jurisdiction which may impact its use of the Service, Course Content and Software, and represents that it has complied with and will comply with any regulations or registration procedures required by applicable law.