1. Applicability. These master terms and conditions (these " Terms ") are the only terms which govern the sale of the goods and services (" Services ") by Dream Builder International, LLC, an Iowa limited liability company (" Company ") to the client named in the Program Agreement to which these Terms are attached or referenced (“ Agreement ”). The Agreement and these Terms (collectively, this " Agreement ") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Client’s general terms and conditions of purchase regardless whether or when Client has submitted its purchase order, if applicable or such terms. Providing the goods and/or services covered under a Agreement does not constitute acceptance of any Client terms and conditions and does not serve to modify or amend these Terms. In the event of a conflict between these Terms and any Agreement provided by Company to Client, these Terms shall govern and control.
2. Services and Deliverables. Company shall provide the services and deliverables to Client as described in the Agreement (“ Services ”) executed by Client and Company, subject to these Terms.
3. Client’s Obligations. Client shall: (a) cooperate with Company in all matters relating to the Services and provide such access to the property to which the Services relate as may reasonably be requested by Company, for the purposes of performing the Services; (b) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform the Services; (c) provide Company such information as Company may request to carry out the Services in a timely manner and to ensure that such Client materials or information are complete and accurate in all respects; and (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services.
4. Client’s Acts or Omissions. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay. Additionally, Company shall not be responsible for an deficiency in the Services caused by inaccurate or incorrect information provided by Client.
5. Payment. In consideration of the provision of the Services by the Company and the rights granted to Client under this Agreement, Client shall pay the fees set out in the Agreement. In addition, Client shall be responsible for obtaining and paying for all third party tools identified in the Agreement or otherwise identified by Company in order for the Company to perform the Services. Client shall be responsible for all taxes, duties and levies imposed by any federal, state or local government entity related to the Services and any amounts payable by Client under the Agreement. If Client fails to pay Company any payment when due under the Agreement, Company may charge interest on any such unpaid amounts at a rate of 1.5% per month, or if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid and Company may suspend performance of all Services until payment has been made in full. If the Services are suspended due to lack of payment pursuant to the preceding sentence, Client shall pay a reactivation fee equal to the remaining balance due under the Agreement . Except as otherwise set forth in the Agreement, all payments made are final and non-refundable.
6. Intellectual Property. Except as set forth in Section 2 of the Agreement, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, or corporate names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “ Intellectual Property Rights ”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Company in the course of performing the Services, including any items identified in the Agreement shall be owned by Company. Company hereby grants Client a limited license to use all Intellectual Property Rights in the Services on a non-exclusive, non-transferable, non-sublicensable basis for the purpose described in the Agreement. Client shall use the deliverables provided by Company hereunder for Client’s own internal business purposes and shall not redistribute or otherwise make available such deliverables to any third party (other than the Website).
7. Confidential Information. All non-public, confidential or proprietary information of Company, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies and information pertaining to customers, pricing, and marketing (collectively, “ Confidential Information ”), disclosed by Company to Client, whether disclosed orally or disclosed or accessed in written electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement are confidential and shall not be disclosed or copied by Client without the prior written consent of Company. Company shall be entitled to injunctive relief for any violation of this Section without the necessity of proving actual damages or posting a bond.
8. DISCLAIMER OF WARRANTIES. COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE, OR OTHERWISE ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, 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 COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OR ANY DELIVERABLES PROVIDED UNDER THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO COMPANY PURSUANT TO THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Termination. Company may terminate this Agreement with immediate effect upon written notice to Client, if Client: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors Client shall be responsible for all fees and costs incurred by Company through the date of termination. If this Agreement is terminated by Company Client all licenses granted hereunder shall immediately terminate.
11. Force Majeure . No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to Company hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's reasonable control.
12. Assignment . Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
13. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
14. Binding Effect. This Agreement shall be binding on each parties successors and permitted assigns.
15. Governing Law . All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule.
16. Submission to Jurisdiction . Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Iowa in each case located in Des Moines, Iowa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
17. Notices . All notices, requests, 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 in the Agreement 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 prepaid), email with verification of delivery or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
18. Severability . If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Survival . Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following Sections 2, 6, 7, 9-12, and 14-17.
20. Amendment and Modification . This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
21. Costs and Attorney Fees . If any party institutes any legal suit, action, or proceeding against the other party arising out of or relating to this Agreement or the Services, the prevailing party in the suit, action, or proceeding is entitled to receive, and the non-prevailing party shall in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting or defending the suit, action or proceeding, including reasonable attorneys’ fees, expenses and court costs.
22. Cumulative Remedies . All rights and remedies provided in this Agreement are not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other right or remedies that may now or subsequently be available at law, in equity, by statute or otherwise.
23. WAIVER OF JURY TRIAL . EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.