Updated: February 6, 2023
The following Terms and Conditions (“Terms”) supplement the Design Showcase Program Agreement (the “Agreement”) by and between dream book, LLC (“Company”) and the individual or entity listed on the signature page of the Agreement (“Participant”).
1. Acceptance and terms and conditions: By signing the Agreement, Participant accepts and agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications herein. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of the Agreement, or with delivery of any goods or services under the Agreement, or otherwise, will not be binding on Company, whether or not they would materially alter the Agreement, and Company hereby rejects them.
2. Changes to these Terms: Company may modify these Terms at any time by posting changes on the website; however, (i) these changes will only become effective and binding with respect to Participant after Company provides notice on the website that these Terms have changed, and Participant continues participating in the Design Showcase Program (the “Program”) following the date of such posting, (ii) the changes will only apply with respect to Participant’s inclusion in the Program, after such changes become effective, and (iii) any imposition or change of payment obligations, if any, will only apply if and when Participant expressly agrees.
3. Program Cancellation: Company may cancel all or part of the Program at any time. If cancellation of the Program occurs, Company shall have the option on a per home plan basis to:
a. At any time, relinquish all rights subsequent to termination on any previously accepted home plan, and no further payment will be due to the Participant; or
b. Continue to use the home plan previously accepted by Company and pay Participant according to the revenue share plan of the Agreement.
4. Confidential Information: Participant agrees to treat as confidential and to use only for the purposes of the Agreement all information, including but not limited to technical and commercial information, which is provided “as is” in whatever form or medium by or on behalf of Company and its Affiliates and to give access to such information only on a need to know basis to its employees and not to transfer, publish, disclose or otherwise make available such information or any portion thereof to any third party without Company’s prior written consent. All information shall remain Company’s property and no licenses or rights are granted in any such information and Participant shall, upon Company’s demand, promptly return to Company or destroy all such materials and information, not retaining any copies thereof, upon Company’s demand. Participant shall not use the name, logo, trademark, or any other reference to Company, either direct or indirect, in press releases, advertisements, sales literature or other publications and shall not disclose the existence or the terms and conditions of the Agreement, without the prior written consent of Company.
5. Warranties: Participant represents and warrants that (a) all goods and services are free of any claim of any nature by any third person (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Company, (c) all goods licensed will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are licensed and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Company. Company's acceptance or use of the goods shall not affect Participant's obligations under these warranties. Participant shall replace or correct, at Company's option and at Participant's cost, defects of any goods not conforming to these warranties. If Participant fails to correct defects in or replace nonconforming goods within ten (10) days from the date the Company notifies Participant of the defect or defects, Company may, on ten (10) days prior written notice to Participant revoke its acceptance of the goods in which event Participant shall be obligated to refund the license fee. All warranties of Participant herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Company. Any attempt by Participant to limit, disclaim, or restrict these warranties or any remedies of Company, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Company's written consent.
6. Indemnification: Participant agrees to indemnify and defend Company and its affiliates, officers, directors, owners, agents, representatives, contractors, employees and assigns of the foregoing (collectively, the "Indemnified Parties") and hold them harmless from and against any and all losses, demands, causes of action, damages, liability and costs and expenses, including reasonable attorneys' fees, incurred or sustained by any of the Indemnified Parties in connection with (i) the use, construction, conversion, modification, misinterpretation, misuse, or reuse by Participant or others of the Plans or any other drawings, data or other materials furnished by Company; (ii) any negligence or other acts or omissions by Participant or any of Participant’s employees, consultants, advisors, agents, representatives or contractors; and (iii) any breach by Participant of any of the provisions of these Terms and the Agreement. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Participant.
7. LIMITATIONS OF LIABILITY: IN NO EVENT SHALL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH PARTICIPANT’S INCLUSION IN THE PROGRAM OR FOR ANY REJECTED HOME PLANS. COMPANY’S LIABILITY FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO THE AMOUNT, IF ANY, COMPANY HAS PAID TO PARTICIPANT IN CONNECTION WITH THE MATTER GIVING RISE TO SUCH LIABILITY. IF THIS LIMITATION OF LIABILITY OR THE EXCLUSION OF WARRANTY SET FORTH ABOVE IS HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, COMPANY’S MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES SHALL BE LIMITED TO $100.
a. No joint venture, partnership, employment or agency relationship exists between Participant and Company as a result of these Terms.
b. The person accepting these Terms on behalf of each party represents and warrants that he or she has been duly authorized by that party to accept the Agreement and thereby bind it to these terms. These Terms will be effective as of the date accepted by Participant.
c. These Terms, together with the Agreement, represent the entire agreement between Participant and Company with respect to the subject matter hereof, and supersede any and all prior understandings, statements or representations, whether electronic, oral or written, regarding such subject matter.
d. These Terms shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by Applicable Laws, and such determination shall not affect the validity and enforceability of any other remaining provisions.
e. These Terms are for the benefit of Company, its, affiliates, officers, directors, employees, affiliates, agents, licensors, and suppliers. Each of these individuals or entities has the right to assert and enforce these Terms directly against Participant on their own behalf.
f. Nothing in these Terms shall be construed to create, impose or give rise to any duty owed by Company or its affiliates to any contractor, subcontractor, supplier, or other person or entity (other than Participant, to the extent provided herein), or to any surety for or employee of any of them, or give any rights in or benefits under these Terms to such persons.
g. Company may assign these Terms at its discretion. Participant may not assign these Terms or any of Participant’s rights hereunder, nor delegate any of Participant’s obligations hereunder. These Terms are binding on the parties hereto and their respective successors and permitted assigns.
h. No waiver of any obligation or right of either party will be effective unless in writing, executed by the party against whom it is being enforced.
i. These Terms will be governed by the laws of the United States of America and the State of Ohio, without regard to conflict of laws rules. The parties consent to have any action or dispute between them resolved exclusively within the jurisdiction of the state or federal courts located in the State of Ohio.
j. In addition to money damages, Company shall be entitled to seek equitable relief where appropriate if Participant breaches of any of these Terms. These Terms are severable and may be construed to the extent of their enforceability in light of the parties' mutual intent.
k. The headings in these Terms are for convenience only and are not to be considered in construing it. All references in the Terms to “including” shall be deemed to mean, “including, but not limited to.” All references in these Terms to “we,” “our” or variations thereof shall be deemed to refer to Company. All references in these Terms to “Participant,” “Participant’s” or variations thereof shall be deemed to refer to Participant individually, if Participant is entering into these Terms on an individual basis, and to the corporation, partnership or other organization or legal entity that Participant represents, if Participant is entering into these Terms on behalf of such organization or entity.
l. Company will send any notices that are intended for Participant personally and not all users of the website to Participant at the most recent email address we have on file for Participant. Any notice from Participant to Company should be sent by email to firstname.lastname@example.org or by postal mail to: Company, LLC, 2000 Jaycox Rd, Avon, OH 44011.
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