Standard Terms and Conditions.
DEFINITIONS: In these Terms and Conditions (“Terms”), 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 “Customer.” WHA’s effort on behalf of its Customer will be called the “Project.” WHA and Customer may be referred to individually as “Party” or collectively as “Parties.” The cost estimate, rate schedule, invoice or other documents, together with Terms, will be referred to as the “Agreement.”
ACCEPTANCE: WHA provides professional consulting services, acting as an independent consultant during the performance of Services. No term of this Agreement, either expressed or implied, shall create an agency or fiduciary relationship. Unless otherwise negotiated, Customer’s acceptance of WHA’s offer to provide Services is limited to the Terms contained herein and by entering this Agreement, Customer accepts and assents to WHA Terms. To the extent that WHA Terms conflict with agreements, contracts, purchase orders, forms, and other documents utilized or to be utilized by Customer, WHA Terms control unless otherwise explicitly stated. During the term of Agreements between Parties and for one year thereafter, each Party agrees they shall not directly or indirectly hire or solicit to be hired, as an employee or independent contractor or in any other capacity, an individual who is an employee or consultant of the other Party.
IMPARTIALITY: WHA is committed to impartiality in all its business dealings and has established procedures to safeguard impartiality in its services and processes.
STANDARD OF CARE AND SCHEDULE: WHA shall provide Services in accordance with Project schedule, which may be modified by mutual agreement of the Parties. WHA shall perform Services consistent with the professional skill and care ordinarily provided by consultants practicing under the same or similar circumstances. WHA shall perform Services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. WHA’s information, advice, recommendations, findings, and conclusions will be made to the best of WHA’s knowledge, opinion and belief, based on the data and information made available to WHA at the time of review. A change in any of the factors upon which the review is based may change or affect the information, advice, recommendations, findings, and conclusions expressed by WHA. Upon delivery to Customer, application of Services and implementation of the recommendations provided by WHA are the sole responsibility of Customer. Notwithstanding any other representations made elsewhere in this Agreement or in the execution of the Project, this Standard of Care shall not be modified. No warranties or guarantees are expressed or implied under this Agreement or otherwise in connection with WHA’s Services.
FEES AND INVOICING: Customer agrees to pay WHA for Services in accordance with the rates set forth in Cost Estimate or Retention Letter provided. Service fees based on mutually defined objectives and costs may be quoted at a fixed-price or may be quoted on a time and expense basis that will be established by the Cost Estimate or Retention Letter terms. WHA requires a Customer Purchase Order or signed Retention Letter prior to initiating work. A retainer may be required if specified by the Cost Estimate or Retention Letter. For short duration Services (30 days or less), WHA submits a final and total billing at the end of Services. For Services extending beyond 30 days, WHA sends Customer invoices monthly for Services rendered during the preceding monthly period, or according to work phases established between Parties.
PAYMENT: WHA’s payment term is 3%/15 Net 30 from date of invoice (WHA will give a 3% discount on the invoice total if payment is received within 15 days from invoice date). Invoices become past due after 30 days from invoice date. Past due invoices may incur a late fee. In the event late fees are charged, they are assessed on the first day of the month after 30 days from the invoice date. On the first day of each month thereafter, late fees may be assessed until all fees are paid in full. Alternative payment arrangements may be agreed between WHA and Customer.
DISPUTES: Customer agrees to examine and accept both the work product and subsequent invoices upon delivery or receipt. Customer agrees to promptly notify WHA in the event of work product or fee dispute and agrees that implicit approval will be assumed by WHA unless notification of dispute is given within fifteen (15) days of the invoice date. Parties shall attempt to resolve the dispute promptly. To maintain uninterrupted services by WHA, Customer shall make timely payment. WHA reserves the right to discontinue work on any Customer account that is over 90 days past due.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY: Each Party agrees to keep all Confidential Information, materials and disclosures (CI) under this and all Agreements between Parties strictly confidential until such time, if ever, CI becomes available to the public. Parties agree to first provide notice to Disclosing Party, as permitted by law, if disclosure of the other Party’s CI becomes required under valid court order. Documents prepared or furnished by each Party, including published works, are instruments of the originating Party. Each Party’s background Intellectual Property, or that proprietary information, expertise or technology that is confidential to each Party, that is in their 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 the originating Party. WHA retains rights to its work undertaken under Agreements between Parties. Works undertaken during Agreements between Parties shall not be published without written permission. The “WHA”trademark3798820is registered and owned by WHA International, Inc.
INDEMNIFICATION AND LIMITATION OF LIABILITY: WHA does not agree to any Customer indemnification terms without prior written consent, and only to the extent they are caused by the negligent acts or omissions of WHA in the performance of Services under this Agreement. When required, WHA shall indemnify and hold Customer harmless but does not defend from and against damages and/or losses and/or judgments arising from claims by third parties. WHA has no obligation to pay for any of the indemnitees’ costs prior to a final litigated determination of liability or to pay any amount that exceeds WHA’s finally determined percentage of liability based upon the comparative fault of WHA, and in any event, not to exceed the contracted costs with Customer. WHA shall not be liable to Customer 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, however caused. No waiver by WHA of any provisions of these Terms or Agreement with Customer is effective unless explicitly set forth in writing and signed by WHA. Nothing in this Agreement shall create a contractual relationship with or cause of action in favor of a third party against either Customer or WHA. WHA Services are performed solely for Customer’s benefit and no other party or entity shall have any claim against WHA because of this Agreement or the performance or nonperformance of Services. It is intended by the Parties that WHA’s services shall not subject WHA’s individual employees, officers or owners to any personal legal exposure for risks or liability that may conceivably be associated with any Project undertaken. Therefore, and notwithstanding anything to the contrary contained herein, Customer agrees that as the Customer’s sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against WHA, a New Mexico Corporation, and not against any of WHA’s individual employees, officers or owners.
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 Customer expenses incurred as the result of missing a proposed or published schedule. Furthermore, if a Customer plans to attend and witness the work at WHA facilities, WHA will not be liable for travel or other expenses associated with the visit whether or not an equipment failure delays or postpones the work to an altered schedule from one that may have been proposed.
WHA HAZARD ANALYSIS SERVICES DISCLAIMER: WHA performs hazard analyses and risk assessments on systems and components. Customer must understand that because of their use of pressurized or liquified gases, cryogenic fluids, oxidizers and/or fuels, inherent fire, explosion, and physical hazards exist. WHA performs analyses to assess reasonably foreseeable 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 beyond the scope outlined in Project’s statement of work. WHA employees and consultants undertake to reasonably identify hazards associated with the relevant portions of the design and assess the risks of fire, explosion or other failure for the identified hazards. However, due to the inherent uncertainties associated with fires, WHA does not guarantee that all potential hazards will be identified, nor does WHA warrant that the design will be free from the risk of fire, explosion or failure in its foreseeable uses.
WHA TECHNICAL TRAINING SERVICES DISCLAIMER: WHA provides training to educate qualified technical personnel on the reasonably foreseeable risks of oxygen, hydrogen and other hazardous fluids, as well as on industry best practices related to system and component design, cleaning, assembly, operation, ignition and fire consequence mitigation, performing oxygen hazards analyses, or other topics within its expertise. No recommendations are implied in any WHA training courses. All examples are for illustration only, and course attendees are responsible for the application of the principles. WHA does not certify any personnel for any activity nor does it evaluate the performance or capability of any attendee. WHA does not assume any responsibility for the decisions of attendees. The content presented in any WHA training course is owned by or licensed to WHA International Inc, including the text, graphics, photos, videos, trademarks, and logos contained therein. This content is subject to trademark, copyright and other intellectual property right regulations under United States laws, foreign laws and international conventions and agreements with our customers. The presentation and content are provided AS IS for information purposes only and may not be copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose not originally approved by WHA without the prior written consent of WHA or the respective owners.
ALTERNATIVE DISPUTE RESOLUTION. Any controversy or claim arising out of or relating to these Terms and/or Agreements between Parties shall be referred to mediation before the initiation of any arbitration or adjudicative action or proceeding.If Parties are unable to resolve such controversy or claim through mediation, Parties hereby agree that such claim or controversy shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Issues of governing law or jurisdiction shall be decided through Alternative Dispute Resolution. To the extent that Alternative Dispute Resolution provisions are inapplicable to any dispute or action to be taken by Parties, WHA and Customer each hereby waive rights to trial by jury in actions or proceedings arising out ofany Terms and/or Agreements between WHA and Customer.
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 courses have 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.