1.1 LyntonWeb Agency Terms of Service Agreement (hereinafter: Terms) is made an entered into as of the date indicated in the Statement of Work or Service Hours Agreement by and between the Lynton LLC and the signature party of the Statement of Work or Service Hours Agreement (hereinafter: Client) referred to jointly as parties and individually as party. Agreements may be concluded either in the form of the Statement of Work (hereinafter: SOW) or Service Hours Agreement (hereinafter: SHA). These Terms together with accompanying SOW or SHA represent the entire agreement between the parties (hereinafter: Agreement). Each party warrants and represents that it is duly authorized to enter into this Agreement. Signing of the SOW or SHA indicate Client’s agreement with the terms of service contained herein.
1.2 This Agreement does not interfere with any obligation or authorization provided in any other agreement concluded between Lynton LLC and the Client.
2.1 Client hereby retains LyntonWeb to perform the services as set forth in the SOW or SHA which represents the integral part of this Agreement (hereinafter: Services). The Services have been specially ordered and commissioned by the Client.
2.2 LyntonWeb will perform Services in a diligent and workmanlike manner and in accordance with the schedule, if any, set forth in the SOW or SHA. The proposed time frame and work delivery schedule set forth in SOW or SHA shall be dependent upon Client’s cooperation, support and availability. LyntonWeb shall not be bound by said proposed time frame and work delivery schedule in the absence of such cooperation, support and availability from Client.
2.3 Client agrees that Services need not be rendered at any specific location and may be rendered at any location selected by LyntonWeb.
3.1 It is expressly agreed that in providing the Services under this Agreement, LyntonWeb is acting as an independent contractor. Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship. LyntonWeb may not act as agent for, or on behalf of, the Client, or to represent the Client, or bind the Client in any manner.
4.1 In consideration of the Services to be provided by LyntonWeb to Client, Client shall pay to LyntonWeb the amount indicated in the SOW. Any work requested by Client that is not expressly defined as Services in SOW shall only be performed by LyntonWeb upon written agreement by the parties as to the cost of such work. Client agrees to be bound by the billing and payment schedule set forth within SOW. All payments shall be due and owing no later than 14 (fourteen) days from an invoice’s due date.
4.2 Client agrees to pay for all services rendered under the SHA agreement, at an hourly rate agreed upon in the SHA. Client may request estimates before LyntonWeb begins work. LyntonWeb will make best efforts to provide an accurate estimate and will notify Client if time on a case is expected to exceed the original estimate. All work completed for Client will be tracked as tasks in the LyntonWeb project management system. A detailed timesheet report will be provided upon request. Billable work is tracked in real time, and LyntonWeb’s employees make their best effort to maintain complete accuracy of their time tracking. LyntonWeb will invoice Client at the end of each month for all work performed during that month. Invoices are due upon receipt; and work may be paused if payment is more than 30 days overdue.
4.3 In the event of a late payment, LyntonWeb reserves the right to charge an interest on the due amount at a rate of 1.5% per month or maximum allowed interest rate under the law, whichever is less. In the event that LyntonWeb is hosting Client’s website, LyntonWeb shall have the right to turn off said website in the event of Client’s failure to pay any monies due and owing to LyntonWeb.
5.1 Client warrants and represents that the contents which are to be utilized by LyntonWeb pursuant to this Agreement do not, and shall not, infringe the intellectual property rights of any third party. Client shall be responsible for obtaining any and all third party clearances, permissions and licenses which are necessary for the performance of the Services.
5.2 Client acknowledges that LyntonWeb owns the work product specifically produced in conjunction with the performance of the Services until such time that LyntonWeb has been paid in full for said Services. LyntonWeb shall transfer the ownership of said work product to Client within a reasonable period of time after receipt of all monies due and owing to LyntonWeb under this Agreement. LyntonWeb shall retain all intellectual property rights to any and all general work or code that is applicable to its other clients or was developed for previous clients or for re-use on future client engagements. This includes any works created in the course of this project that are not specified as works-for-hire in SOW or SHA or are not developed exclusively for Client.
6.1 Both Client and LyntonWeb may have access to information, including, but not limited to, intellectual property (including, without limitation, any information relating to improvements, methods and processes, know-how, concepts, designs, ideas, prototypes, models, samples, formulations, trademarks, trade names, writings, notes, collectively, “Intellectual Property”), business information and plans, concepts and expressions, which are proprietary to and/or embody the substantial creative efforts of LyntonWeb or Client (collectively, “Confidential Information”).
6.2 Client and LyntonWeb agree to maintain the Confidential Information in strict confidence and to protect the Confidential Information in the same manner that either party protects its own proprietary and confidential information of like kind. Client and LyntonWeb agree not to use, disclose or permit any other person or entity access to the Confidential Information without the prior written consent of either party, and each shall be liable to the other for any such use, disclosure or access. As an exception to these obligations and not to be considered a breach of this Agreement, Client or LyntonWeb may disclose the Confidential Information solely as necessary to comply with a legal order or governmental regulation, provided that either party provides the other with sufficient prior notice and assistance to allow the other party to attempt to limit any such disclosure.
6.3 During the term of this Agreement and for the duration of twenty four (24) months after the termination thereof, Client agrees not to solicit, negotiate, contract, or enter into any business transactions, agreements or undertakings, either directly or indirectly, with any LyntonWeb’s employees, consultants or contractors, unless such approval is specifically granted in written form by the LyntonWeb on a case-by-case basis.
7.1 LYNTONWEB MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. LYNTONWEB DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL EXPRESS WARRANTIES EXCEPT THOSE EXPLICITLY MADE IN THIS AGREEMENT. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES THAT: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITIOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.1 LyntonWeb shall not be liable to Client for any loss incurred in the performance of its Services hereunder unless caused by LyntonWeb’s willful and intentional misconduct. LyntonWeb shall not have any liability to Client, or to any third party, for any cause of action relating to this Agreement for any direct, indirect, incidental, consequential, special, punitive, exemplary, statutory or speculative damages based upon a claim of any type or nature including, without limitation, damages for lost profits, lost revenue, business interruption, loss of goodwill or the loss of data or information, even if LyntonWeb is notified in advance of the potential for any such damages and regardless of the form of action, whether in contract, tort (including negligence), warranty, strict or product liability or otherwise. Notwithstanding the above, LyntonWeb’s liability on any claim under this Agreement shall be limited to the dollar value of this Agreement.
8.2 LyntonWeb shall not be liable for any damages whatsoever arising out of or related to the use of, or inability to use, Client’s website or any other website linked to Client’s website. This waiver of liability applies to direct, indirect, incidental, consequential, special, punitive, exemplary, statutory or other damages anyone may suffer, as well as damages for lost profits, lost revenue, business interruption, loss of goodwill or the loss of data or information, whether in contract, tort (including negligence), warranty, strict or product liability or otherwise.
9.1 Client agrees, at its sole cost and expense, to indemnify, defend and hold harmless LyntonWeb from and against any damages, claims, suits, liabilities, costs, losses or expenses (including reasonable attorneys’ fees), of any kind or nature, by third parties against LyntonWeb arising from the performance of LyntonWeb’s Services. LyntonWeb reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Client under this provision and, in such event, Client agrees to fully cooperate with LyntonWeb’s defense of such matter. LyntonWeb’s assumption of the defense and control of any such matters shall not abrogate any of Client’s obligations hereunder.
9.2 Client will indemnify and hold Lynton LLC harmless from any and all cost, expense, liability, or obligation that may arise, or be imposed on you, Lynton LLC, or the product which resulted from the Lynton LLC’s provision of the services under the Americans With Disabilities Act of 1990, as now in effect or hereafter amended, and all rules and regulations issued under that law (collectively referred to as the "ADA"). This indemnification shall include the defense of any action or proceeding (including the payment of attorney's fees and court costs) brought against Lynton LLC by the U.S. Department of Justice, the Equal Employment Opportunity Commission, or any individual or class of individuals, alleging violation or non-compliance with the ADA, and payment of any liability arising out of such actions or proceedings.
9.3 LyntonWeb agrees, at its sole cost and expense, to indemnify, defend and hold harmless Client from and against any damages, claims, suits, liabilities, costs, losses or expenses (including reasonable attorneys’ fees), of any kind or nature, by third parties against Client arising from willful and intentional misconduct by LyntonWeb outside the scope of LyntonWeb’s Services.
10.1 This Agreement is concluded by signing of the SOW or SHA by both parties and for the duration specified in the SOW or SHA.
10.2 Either party may terminate this Agreement pursuant to thirty (30) days advance notice.
11.1 This Agreement shall be governed by and construed under the laws of the State of South Dakota, USA, without regard to its conflict of law provisions, as applied to agreements entered into and to be performed in South Dakota by the South Dakota residents. You agree that if you have any dispute with LyntonWeb you will contact us in order to settle through negotiations and mutual understanding. If the solution can not be reached in negotiations you agree and hereby submit to the non-exclusive jurisdiction of the courts in the city of Sioux Falls, South Dakota.
11.2 In the event that either party brings an action to enforce this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including its reasonable attorneys’ fees, incurred in connection with such an action.
12.1 Neither party may assign this Agreement or any interest herein to any third party without the other party’s prior written consent.
12.2 This Agreement shall inure to the benefit of, and be binding upon, the parties’ respective heirs, representatives, successors and assigns.
12.3 This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes all previous agreements and undertakings with respect thereto. This Agreement may be modified only by written agreement signed by the parties hereto.
12.4 In the event that any of the terms or provisions in this Agreement shall be held by a court of competent jurisdiction to be unenforceable, then such terms or provisions shall be construed, as nearly as possible, to reflect the intentions of the parties with the other terms and provisions remaining in full force and effect.