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 Retention Letter, 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, cost estimates, purchase orders, forms, retention letters and other documents utilized or to be utilized by Customer, WHA Terms control unless otherwise explicitly agreed between WHA and Customer. During the term of the Agreement 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 performance. 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 WHA’s cost estimate, Retention Letter, contract or purchase order 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 WHA’s document terms. WHA requires a customer purchase order or signed Retention Letter/contract 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. In situations where WHA is required to respond to a court-ordered subpoena, as required by Customer NDAs and/or service agreements, WHA will invoice Customer for complying with the document collection requirements of the subpoena.

PAYMENT: WHA’s payment term is Net 30 from date of invoice unless otherwise stated in a retention letter or agreement. Invoices become past due after 30 days from invoice date Past-due invoices may incur a late fee. Alternative payment arrangements may be agreed between WHA and Customer. All credit card transactions are subject to a processing fee.

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” trademark 3798820 is registered and owned by WHA International, Inc.

LIMITATION OF LIABILITY: 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 WHA Services. 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, howsoever caused. WHA does not agree to Customer indemnification terms. WHA does not agree to defend Customer from and against damages and/or losses and/or judgments arising from claims by third parties. WHA has no obligation to pay for any costs before any final litigated determination of liability or to pay any amount that exceeds WHA’s finally determined percentage of liability based on the court-determined comparative fault of WHA,  and in any event, not to exceed the contracted costs with Customer. No waiver by WHA of any provisions of these Terms or an Agreement with Customer is effective unless explicitly outlined 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 WHA. It is intended by the Parties that WHA’s services shall not subject WHA’s 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 employees, officers, or owners.

TESTING SERVICES DISCLAIMER: 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 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 Customer intends 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. 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 informational 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.

EXPORT CONTROL:  Customer agrees that they shall comply with all applicable United States export control laws and regulations, specifically the requirements of the Arms Export Control Act, 22 U.S.C. 2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app. 2401-2420, including the Export Administration Regulations 15 C.F.R. 730-774, including the requirement for obtaining any export license, if applicable.

GOVERNING LAW: This Agreement shall be governed by the laws of the State of New Mexico. The parties hereby consent to personal jurisdiction and venue, for any action arising out of a breach or threatened breach of this Agreement in the District Court of Dona Ana County, New Mexico. Any breach of this Agreement shall result in the prevailing party being entitled to receive from the other party all its reasonable attorney’s fees, costs, & expenses incurred at the trial level, appellate level, or any alternative dispute resolution including Mediation and Arbitration as specified in the Dispute Resolution section of this Agreement.

DISPUTE RESOLUTION: Except as otherwise stated herein, on the written notice of either party requesting application of enforcement of this Agreement or breach thereof, all claims and disputes arising out of or relating to this Agreement shall be resolved according to the following procedure:

Mediation. First, all such disputes shall be mediated by a mediator to be selected by mutual agreement of the parties. In the event the parties cannot agree on a mediator within fifteen (15) days of the receipt by either of written notice of the other requesting application of this Section, then each party shall designate a party within fifteen (15) days thereof by written notice to the other. Within fifteen (15) days thereof, the two parties selected then shall mutually designate a mediator for mediation of the dispute. The mediation shall continue from time to time until the dispute is resolved or the mediator has made a determination in writing that the dispute cannot be resolved through mediation and arbitration is recommended, provided that mediation may be terminated by either party upon fifteen (15) days’ notice given at any time on or after the sixty-first (61st) day after notice requesting application of this Section.

Arbitration. Upon written request by either party, a dispute shall be submitted to arbitration under the New Mexico Arbitration Act (the “ACT”) applying the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), before an arbitrator to be selected by the parties.  If the parties cannot agree on an arbitrator within ten (10) days of one party’s notice to the other party invoking the right to arbitrate, then an arbitrator who has significant experience in arbitrating matters similar to the subject matter disputed under this Agreement shall be appoint as provided by the Act.  The arbitration shall commence not less than thirty (30) nor more than forty-five (45) days after the arbitrator has been designated.  The arbitration shall be concluded as soon as reasonably possible, and the arbitrator shall make a written determination of the dispute within fifteen (15) days of the completion of the arbitration hearing.  The prevailing party in any such arbitration shall be awarded reasonable attorneys’ fees, expert and non-expert witness costs, and other costs incurred in connection with such arbitration, unless the arbitrator, for good cause, determines otherwise.  Costs and fees of the arbitrator shall be borne by the non-prevailing party, unless the arbitrator determines otherwise. The arbitrator’s adjudication shall be final and fully binding upon the parties and enforceable in any court having jurisdiction over the parties.

WHA International Terms and Conditions Revision Date 20241125 (1.45)