Terms of Service Agency

1. Preamble

1.1 Lynton Agency Terms of Service Agreement (hereinafter: Terms) is made and entered into as of the date indicated in the Statement of Work (hereinafter: SOW) by and between Lynton LLC and the signature party of the Statement of Work (hereinafter: Client) referred to jointly as parties and individually as party. These Terms together, with accompanying SOW, represents the entire agreement between the parties (hereinafter: Agreement). Each party warrants and represents that it is duly authorized to enter into this Agreement. Execution of the SOW indicates 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. Services

2.1 Client hereby retains Lynton to perform the services as set forth in the SOW, which represents an integral part of this Agreement (hereinafter: Services). The Services have been specially ordered and commissioned by the Client.

2.2 Lynton will perform Services in a diligent and workmanlike manner and in accordance with the schedule, if any, set forth in the SOW. The proposed time frame and work delivery schedule set forth in the SOW shall be dependent upon Client’s cooperation, support, and availability. Lynton 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 Lynton.

2.4 Lynton will provide support for the services via e-mail during the business hours of 9am - 5pm U.S. Mountain Time, Monday through Friday, excluding U.S. holidays. Support requests will be responded to within 1 business day. The hourly rate of support assistance is $200 per hour, unless otherwise specified on the executed SOW.

2.5 We do not offer any refund in case you want to cancel your use of the Services.

3. Independent contractor

3.1 It is expressly agreed that in providing the Services under this Agreement, Lynton 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. Lynton 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. Payment

SOW PAYMENT TERMS

4.1 In consideration of the Services to be provided by Lynton to Client, Client shall pay Lynton the amount indicated in the SOW. Any work requested by the Client that is not expressly defined as Services in the SOW shall only be performed by Lynton upon written acknowledgement by the parties as to the cost of such work. The Client agrees to be bound by the billing and payment schedule set forth within SOW. Unless otherwise specified in the Order, points purchased expire one month (30 days) beyond the estimated project timeline.

TIME AND MATERIALS PRICE

4.2 Payment for a service or deliverable to be provided under an SOW may be done on a time-and-material basis and shall be determined in accordance with the hourly rates set forth in the applicable SOW, multiplied by the hours that Lynton has worked on such service or deliverable, in addition to the costs of materials used. The estimated total prices provided to the client are non-binding and are provided based on Lynton’s information held at the time of making the assessment. Estimations are provided as a lump sum and do not contain a disbursement scheme between hourly fees and costs of materials. The actual price may differ from the estimate and is calculated in accordance with the actual work and materials as explained herein. Both parties hereby agree that no lower or upper limit for the final cost has been agreed upon prior to entering into this agreement. Any limitation imposed on the final cost has to be mutually agreed in writing.

LATE PAYMENT PAYMENT TERMS

4.3 Lynton’s accepted forms of payment are credit cards, ACH/eChecks, domestic and international wire transfers. When placing the Order for Services, you may choose one of the accepted methods of payment. If you are paying by credit card or ACH, you must provide valid and current information necessary to process the payment upon agreement execution. You agree and authorize us to charge your credit card and/or ACH bank account, automatically, for all fees payable during your Service Period, including the out of scope Services as described in article 4.1. If you are paying against the invoice, you understand and agree that the amounts in the invoices are due upon receipt, unless otherwise specified in the invoice.

4.4 Services described in article 4.1 may be subject to additional costs. These costs are calculated based on the hours/points worked while providing the out of scope Services. Lynton will issue an invoice for out of scope Services and will charge it automatically on the credit card and/or ACH bank account you used for the payment of the Service Plan, if available. If you paid Service Plan by means other than a credit card or ACH bank account, you understand and agree that the amounts in the invoices are due upon receipt, unless otherwise specified in the invoice. If payment is not received within 15 days of the invoice due date, the Client will be charged a 1.5% late fee of the entire invoice balance. The Client acknowledges that a payment delay beyond 30 days of the invoice due date may result in Lynton halting all client services.

5. Proprietary rights

5.1 Client warrants and represents that the contents which are to be utilized by Lynton 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 Lynton owns the work product specifically produced in conjunction with the performance of the Services until such time that Lynton has been paid in full for said Services. Lynton shall transfer the ownership of said work product to Client within thirty (30) days after receipt of all monies due and owing to Lynton under this Agreement. Lynton 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 the SOW or are not developed exclusively for the Client.

5.3 Client grants us the right to use your company name, logo, and information about your project to our website and other marketing communications.

6. Confidentiality and non-circumvent

6.1 Both Client and Lynton 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 Lynton or Client (collectively, “Confidential Information”).

6.2 Client and Lynton 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 Lynton 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 Lynton 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 past or present Lynton employees, consultants or contractors, unless such approval is specifically granted in written form by the Lynton on a case-by-case basis.

7. Representations and warranties

7.1 LYNTON 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. Limitation of liability

8.1 Lynton shall not be liable to Client for any loss incurred in the performance of its Services hereunder unless caused by Lynton’s willful and intentional misconduct. Lynton 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 Lynton 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, Lynton’s liability on any claim under this Agreement shall be limited to the dollar value of this Agreement.

8.2 Lynton 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. Indemnity

9.1 Client agrees, at its sole cost and expense, to indemnify, defend and hold harmless Lynton 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 Lynton arising from the performance of Lynton’s Services. Lynton 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 Lynton’s defense of such matter. Lynton’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 Lynton 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 Lynton outside the scope of Lynton’s Services.

9.4 Client understands and agrees that the Client will not, in public or in private, make any false, disparaging, derogatory, or defamatory statement, online or otherwise, to any person or entity, including but not limited to any media outlet, industry group, financial institution or our current or former client, regarding us or our business affairs, business prospects, or financial condition. Client further understands and agrees that the Client will not make any negative statement or review about us or our services, even if such statements or reviews are true at the time of their making, prior to providing Lynton with a reasonable option to resolve or amend the cause for the negative statement or review.

10. Term and termination

10.1 This Agreement is executed by signature of the SOW by both parties and for the duration specified in the SOW.

10.2 Either party may terminate this Agreement immediately at any time by written notice to the other Party if the other Party:

commits any material breach of its obligations under this Agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied;
ceases (or threatens to cease) to trade (either in whole, or as to any part or division involved in the performance of this Agreement); or
is unable to pay its debts as they fall due, or is reasonably deemed unable to pay its debts; or
has been subject to a Force Majeure Event continuously for more than 90 days.

10.3 Upon termination of this Agreement, Customer will not be able to use the Services. If the Agreement has been terminated for cause by Lynton, Customer shall be liable to pay to Lynton any outstanding fees and installments due for payment immediately. If the Agreement has been terminated for cause by the Customer, the Customer shall be entitled to the pro-rate refund of the fees paid to Lynton for any unused portion of the services. Refund will not be provided for the services provided in their entirety.

10.4 Either party may, at their sole discretion, terminate this Agreement with notice, and with immediate effect, without any refund in the event that the other party exhibits Unreasonable conduct. Unreasonable conducts include any action made by one party toward other party or any of their employees, agents, contractors or affiliates which causes said individuals’ discomfort, stress, or any kind of uneasiness not expected in normal business communications. Without excluding, Unreasonable conduct includes especially: verbal abuse; inappropriate language such as racist remarks or comments, sexual innuendo or insults; condescending or rude tone; violent or threatening language; excessive communication; contact through personal communication channels not used in business correspondence; contact outside of workplace such as on the street or at home; persistent unreasonable demands in spite of explanation that such requests are unreasonable; denial of documented evidence as factual; and persistent raising of unsubstantiated allegations. Lynton will attempt to remedy the situation with Client, including replacement of the offending person, before termination.

11. Governing law and choice of forum

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 Lynton 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. Final Provisions

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.