Service Terms & Conditions
general terms of service
1. Applicability. These terms and conditions for services (the “Terms”) are the only terms that govern the provision of services by Dwellworks LLC (the “Service Provider”) to the recipient of the services (the “Customer”). Sale of any services or any order to receive services is expressly conditioned on the Customer’s assent to these Terms. Service Provider expressly objects to any additional or different terms proposed by the Customer. No Customer form shall modify these Terms, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms.
2.1 Scope. Service Provider shall provide to Customer the services set out in the Order Confirmation (the “Services”). Additional Terms of Service may apply to particular Services as outlined below.
2.2 Performance Dates. Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, but any such dates shall be estimates only.
2.3 Service Provider Obligations. Service Provider shall perform the Services in a workmanlike manner and in accordance with generally accepted industry standards and the terms of the Terms. In recognition of the need for timely performance of the Services, Service Provider shall maintain sufficient resources, facilities, capacity, and manpower.
2.4 Customer Obligations. Customer shall provide to Service Provider all information necessary for Service Provider to perform the Services and shall otherwise generally cooperate with the Service Provider in its performance of the Services. Customer shall also take all steps necessary to prevent Customer-caused delays in Service Provider’s provisions of the Services.
2.5 Software. If the provision of the Services includes the Customer’s use of Service Provider’s software, digital resources, networks, applications, gateways, platforms, computing environments, or systems (the “Software”), such use by the Customer is on a non-exclusive, non-transferable, non-sublicensable, revocable, and limited basis and Service Provider retains all rights to the Software not expressly granted by Service Provider, whether by implication, estoppel, or otherwise. Service Provider makes no warranties or representations as to the suitability of the Software for a particular purpose and the Software is provided “as is.” As it relates to the Software, Customer shall not:
2.5.1 circumvent or bypass any technological protection measures in or relating to the Software;
2.5.2 disassemble, decompile, decrypt, hack, emulate, exploit, reverse engineer or modify the Software;
2.5.3 separate components of the Software for use on different devices;
2.5.4 publish, copy, rent, lease, sell, export, import, distribute, or lend the Software;
2.5.5 transfer the Software, and Software licenses, or any rights to use or access the Software; or
2.5.6 use the Software in any unauthorized way.
3. Cost & Compensation.
3.1 Fees & Expenses. In consideration of the performance of the Services by the Service Provider and the rights granted to the Customer under these Terms, Customer shall pay the fees set out in the Order Confirmation at the time of purchase (the “Fees”). Customer shall reimburse Service Provider for all reasonable and customary expenses incurred in performance of the Services (the “Expenses”). Customer will remit payment to Service Provider in the same currency as billed.
3.2 Taxes & Assessments. All Fees are exclusive of applicable tax, assessments, or charges. Customer shall be responsible for all taxes, duties, assessments, and charges levied with respect to the Services including, but not limited to sales, use, value added, indirect, excise, transient, and occupancy taxes.
3.3 Late Fees & Additional Charges. Fees and Expenses which are not remitted to Service Provider at the time of Purchase will accrue interest at the lesser of one- and one-half percent (1.5%) per month or the highest rate permitted by applicable law. Customer may be assessed a convenience fee of up to two- and one-half percent (2.5%) on credit or debit card remittances, but only where permitted by applicable law. Customer shall have no right of set off. Service Provider may suspend performance of the Services if any due and payable Fees or Expenses are not paid to Service Provider in accordance with Section 3.1.
4.1 Affiliates. Service Provider may fulfill any one or all of the Services directly or through any of its subsidiaries or affiliates (“Affiliates”), as determined solely by Service Provider. As it relates to the provision of the Services, such Affiliate is entitled to the rights and benefits, and is bound by the obligations, accruing to Service Provider under these Terms and such Affiliate will be considered a “Service Provider” for the purposes of such Services. The Affiliate who performs the Services may invoice the Customer directly in accordance with Section 3.
4.2 Sub-Service Providers. Customer acknowledges that Service Provider utilizes a global network of independent contractors (each, a “Sub-Service Provider”) to perform the Services and Customer consents to the use of such Sub-Service Providers without the need for Service Provider to secure any further authorization from Customer.
5. Relationship Governance.
5.1 Escalations. In the event of any dispute under these Terms, the Party raising the issue will promptly notify the other Party in writing. The Parties will then meet in good faith to resolve the dispute and, if they are unable to resolve the dispute within thirty (30) days of such meeting, either Party may commence formal dispute resolution in accordance with Section 8.
5.2 Non-Solicitation. The Customer agrees that it will not solicit or attempt to solicit any of Service Provider’s Sub-Service Providers with a view to procuring services that are the same or similar to the Services directly from such Sub-Service Providers. The Customer acknowledges that the foregoing restrictions are reasonable and have been drafted as narrowly as practicable to achieve the intended result and that damages may not be an adequate remedy for a breach of this Section, and therefore, Service Provider is entitled to seek injunctive relief for any breach of this Section.
5.3 Termination. Service Provider may terminate the Service for convenience upon notice to the Customer. Upon termination of these Terms, Customer will discontinue further use of any confidential or proprietary information and/or materials of the Service Provider and will promptly, upon written request, destroy or return to the Service Provider any and all such information and/or materials. The rights and obligations of the Parties set forth in this Section 5.3 and Sections 2.5, 3, 5.1, 5.2, 6, 7, 8, and 9 of the General Terms of Service; Section 1 of the Additional Terms of Service; and any right, obligation, or required performance of the Parties in these Terms, which, by its express terms or nature and context is intended to survive termination of these Terms, will survive such termination. Termination of these Terms will be without prejudice to any other rights and remedies under these Terms.
6. Confidential Information.
6.1 Definition. “Confidential Information” means all data and information, regardless of the form or media, relating to the Service Provider of which the Customer becomes aware as a consequence of, or in relation to, the performance of its obligations or rights under these Terms, which (i) has value to the Service Provider or the Service Provider deems to be proprietary, (ii) is not generally known by the public, and (iii) is reasonably identified as confidential at the time of disclosure or which, under the circumstances surrounding disclosure, ought to be reasonably considered as confidential. To the extent consistent with the foregoing, Confidential Information includes, (a) any information about Service Provider’s and its affiliates’ (1) employees, (2) business plans, methods and practices, (3) marketing plans, method and practices, including data flows, product processes and security features, (4) financial information, (5) price lists and pricing policies, (6) contracts and contractual relations with customers and Service Providers, (7) customer and Service Provider names and lists, and (8) personally identifiable information (as defined under applicable law); (b) technical information and requirements, drawings, engineering data, performance specifications; (c) the existence and terms and conditions of these Terms; and (d) confidential information of third parties.
6.2 Obligations. The Customer shall hold Confidential Information in confidence and disclose such information only to those who reasonably require access to Confidential Information. The Customer will be liable for all damages arising out of such third parties’ access to Confidential Information of the Service Provider. The Customer shall protect the Service Provider’s Confidential Information using at least the same degree of care it uses to protect its own Confidential Information, but no less than a reasonable degree of care, to prevent the unauthorized use, disclosure, or duplication (except as required for backup systems or to carry out the purpose of the Terms) of such Confidential Information.
6.3 Compelled Disclosure. Notwithstanding Section 6.2, if a court or regulatory authority having proper jurisdiction over the Parties requires a Customer to disclose any Confidential Information, then Customer will promptly provide the Service Provider notice of such requirement to enable the Service Provider to seek an appropriate protective order.
6.4 Exclusions. Confidential Information excludes any portion of such information that a Customer can establish by clear and convincing evidence to have been: (i) publicly known without breach of these Terms; (ii) known by the Customer prior to its receipt from the Service Provider; (iii) received in good faith from a third party source that to the Customer’s reasonable knowledge rightfully disclosed such information; or (iv) developed independently by the Customer without reference to the Service Provider’s Confidential Information, provided that in each instance, the foregoing exclusions do not apply to personally identifiable information.
6.5 Remedies. If a Customer breaches the obligations set forth in this Section 6, then irreparable injury may result to the Service Provider or third parties entrusting Confidential Information to the Service Provider. Therefore, the Service Provider’s remedies at law may be inadequate and the Service Provider will be entitled to seek injunctive relief, notwithstanding anything to the contrary contained in these Terms. In addition, the Service Provider will further be entitled to any other rights and remedies that it may have at law or in equity.
7. Exclusion of Warranties; Limitation of Liability.
7.1 Exclusions of Warranty. SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OF IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING ANY warranty of merchantability, fitness for a particular purpose, title, or against infringement of intellectual property right of a third party.
7.2 Exclusions of Liability. IN NO EVENT SHALL Service Provider BE LIABLE TO THE Customer UNDER, IN CONNECTION WITH, OR RELATED TO the Services, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR LOSS OF GOODWILL, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE.
7.3 Liability Cap. Service Provider’s AGGREGATE LIABILITY ARISING FROM THESE TERMS, WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE total of ALL FEES PAID OR PAYABLE BY CUSTOMER UNDER THESE TERMS.
8 Dispute Resolution.
8.1 Arbitration. If a dispute between the Parties remains unresolved for more than thirty (30) days from initial notice of the dispute, as more particularly described in Section 5.1, either Party may submit the dispute to binding arbitration with the American Arbitration Association (the “AAA”) by providing written notice to the AAA and the other Party. The arbitration shall be administered and conducted by the AAA (or its successor) in Cleveland, Ohio, United States of America and in accordance with AAA’s then-current arbitration rules and procedures. The arbitration shall be conducted by a single arbitrator jointly selected by the Parties, but if the Parties cannot agree on a single arbitrator, the AAA will select the arbitrator. The arbitrator will have no authority to make any decision, including an award of damages, inconsistent with these Terms. Each Party will pay all its own fees, including the fees of its own attorneys, witnesses, and all other expenses and costs in connection with the presentation of such Party’s case. The costs of the arbitration, including without limitation, AAA fees, arbitrator fees, costs of records or transcripts, and administrative fees will be borne equally by the Parties, unless otherwise determined by the Arbitrator.
8.2 Arbitrability & Exceptions. Notwithstanding anything to the contrary, the Federal Arbitration Act, 9 U.S.C. Sections 1-16 and not Ohio state law will govern with respect to the arbitrability of disputes. Nothing in these Terms will preclude a Party’s recourse to a court of competent jurisdiction to: (i) enforce the terms of an arbitration award under Section 8.1; or (ii) seek or enforce equitable or injunctive relief (without the need to post a bond or other security or afford a cure period) in relation to these Terms.
8.3 Governing Law & Forum Selection. These Terms shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio, without regard to any conflict of laws principles that would require the application of the law of another jurisdiction. Each Party irrevocably agrees that any legal action, suit, or proceeding brought by it or against it by the other Party, for claims arising out of or related to these Terms or the Service or order must be brought solely and exclusively in the United States District Court for the Northern District of Ohio, or in the state courts of the State of Ohio located in the County of Cuyahoga. The Parties irrevocably accept and submit to the jurisdiction of the aforesaid courts with respect to any action, suit, or proceeding brought by it or against it by the other Party.
8.4 Waiver of Jury Trial. Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action, or counterclaim arising out of or relating to these Terms, any Statement of Work, or order.
9.1 Force Majeure. Service Provider shall be liable or responsible to the Customer, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by or results from acts beyond Service Provider’s reasonable control, including, without limitation, acts of God; natural disasters; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts (including cyber-terrorism), riots, or other civil unrest; government or agency orders, laws, or actions; embargoes or blockades in effect on or after the date of these Terms; national or regional emergencies; strikes, labor stoppages, or slowdowns, or other industry disturbances; shortage of adequate power; or other similar events.
9.2 No License Granted. Except as explicitly stated in Section 2.5, nothing contained in these Terms will be construed as an assignment of, granting or conferring any patent, copyright, trademark, or any other proprietary rights by license or otherwise, expressly, implied, or otherwise, for any invention, discovery, or improvement made, conceived, or acquired prior to or after the date of these Terms. Customer will not use the Service Provider’s or its affiliates’ names, trademarks, trade names, service marks, logos, or other brand marks (including those of the Service Provider’s partners and collaborators, collectively, the “Marks”) or the Service Provider’s or its affiliate’s marketing materials without prior written approval of the Service Provider. Any permitted use of the Marks shall be in accordance with the Service Provider’s written usage guidelines and policies.
9.3 Interpretation. The headings of Sections of these Terms are for convenience of reference only and will not affect the meaning or interpretation of these Terms in any way. These Terms will not be presumptively construed for or against either Party. Section titles are for convenience only.
9.4 Construction. If there is any conflict or inconsistency between these Terms and the Order Confirmation, such conflict or inconsistency will be resolved by giving precedence: first, to the Terms; second, to the Additional Terms; third, to the Order Confirmation.
9.5 Severability. The provisions of these Terms are severable. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions will in no way be affected or impaired thereby.
9.6 Assignment. Customer will not transfer or assign the Services directly, by operation of law, or otherwise without the Service Provider’s express prior written consent.
9.7 No Modification or Waivers. No modification or waiver of these Terms will be effective unless in writing and signed by an authorized representative of the Party against whom enforcement is sought. No waiver of any breach of these Terms and no course of dealing between the Parties will be construed as a waiver of any subsequent breach of these Terms.
9.8 No Third-Party Beneficiaries. Except as provided for in Section 4.1, nothing in these Terms will confer any right, remedy, or obligation upon anyone other than the Parties.
9.9 Language. The Parties acknowledge that the English (US) interpretations of these Terms, any addendums, standard business forms, or other communications shall prevail.
9.10 Notices. All written notices required pursuant to these Terms will be deemed sufficiently given: (i) when personally delivered to a Party at its address(es) set forth in the Order Confirmation, or (ii) three (3) business days after being mailed via certified mail or a nationally recognized courier to a Party at its address(es) set forth in the Order Confirmation, or at such other address as a Party may from time to time specify by written notice to the other Party.
9.11 Entire Terms. These Terms constitutes the complete and final agreement of the Parties pertaining to the Services and supersedes the Parties’ prior agreements, understandings, and discussions relating to the Services. The Parties may use standard business forms or other communications but use of such forms or other communications are for convenience only.
additional terms of service
1 Destination Services & Intercultural Solutions.
1.1 Travel. Where Service Provider delivers Services in a remote location (as determined by Service Provider in its reasonable discretion), a USD five hundred dollar ($500) additional charge may be assessed to Customer.
1.2.1 Destination Services. Where Customer cancels a destination services program after such program has been initiated in the Service Provider’s system, a onetime USD one hundred- and fifty-dollar ($150) cancellation fee may be assessed to Customer, in addition to any Fees and Expenses already accrued for Services performed prior to cancellation.
1.2.2 Intercultural Solutions. Where Customer postpones or cancels an intercultural solutions program within three (3) days of the scheduled performance date, a USD seven hundred and fifty dollar ($750) per day fee (based on the length of the program) may be assessed to Customer, in addition to any Fees and Expenses already accrued for Services performed prior to postponement or cancellation.