Terms & Conditions

1. DEFINITIONS

Since these Terms & Conditions, i.e., the Agreement, is a binding legal contract, clarity is important. You’ll notice that we capitalize certain words in these SOW even when the rules of grammar don’t require capitalization. We do this because in the context of this Agreement, such capitalized words have specific meanings, which can be found where they are first used, as indicated by text quotation (like “SOW” described above).

1. “Development Environment” – shall mean any methodology, devices, programming or documentation, including compilers, “Workbenches,” tools, and higher-level (or “proprietary”) languages, used by 121eCommerce for development, maintenance and implementation of the Statement of Work and related Documentation.
2. “Intellectual Property” – shall mean all intellectual property of whatever form, now or hereafter available under any laws, owned or developed by CLIENT and/or 121eCommerce, including but not limited to, all patents, trade secrets, copyrights, trademarks, software, solutions, know-how, technology, and any applications therefore.
3. “Pricing Schedule” – shall mean the then current prices of the applicable Services, as agreed to by 121eCommerce and CLIENT and laid out on the applicable Statement of Work.
4. “Project Services” – shall mean those services provided by 121eCommerce, either directly or through 121eCommerce team members and other personnel assigned to work on the project for CLIENT in accordance with an approved Statement of Work issued under this Agreement.
5. “Statement of Work” or “SOW” – shall mean the written project proposal, proposal for services package, or other document or documents mutually agreed upon between CLIENT and 121eCommerce; providing a specific description of Project Services to be provided by 121eCommerce, applicable rates, work to be performed, and other items as agreed-to by the parties.
6. “Technical Skills” – shall mean the primary skills required for the team members at 121eCommerce to provide the Project Services.
7. “Terms” – shall mean any terms and conditions that are specifically applicable to a given Statement of Work.  For example, 121eCommerce currently has Terms that are applicable to a specific development project, as opposed to Terms that are applicable to the CLIENT’s purchase of a fixed “package” of Project Services.
8. “Third-Party” – shall mean a person or entity other than the CLIENT, 121eCommerce, or contracted consultant, employee, or other personnel working for or on behalf of 121eCommerce.
9. “Work Product” (also called “Deliverable”) – shall mean any deliverable item and other output of Project Services, including service solution products, whether or not patentable, and all related Intellectual Property Rights, know-how, designs, mask works, trademarks, formulae, processes, manufacturing techniques, trade secrets, ideas, artworks, software or other copyrightable or patentable works or deliverables.

2. SCOPE OF SERVICES GENERALLY

2.1 Services. “Project Services” are Services to be performed by 121eCommerce for the CLIENT based upon agreed specific parameters and payment terms as set forth in a Statement of Work, which shall be executed by both parties hereto.

2.2 Project Services. 121eCommerce shall provide Project Services to CLIENT, in accordance with the terms and conditions of this Agreement, together with the Statement of Work (including any applicable Terms). The specific scope of any Work Product and details of particular Project Services including proposed time and materials cost estimates or fixed price, shall be set forth in the Statement of Work (including any applicable Terms) or any other document that references the appropriate Statement of Work to be jointly prepared by CLIENT and 121eCommerce and approved by CLIENT. 121eCommerce shall not be bound to perform and CLIENT shall not be required to pay for any Project Services not contained in the Statement of Work or associated documents, unless accompanied by a Change Order as set forth in Section 2.3, or as otherwise approved or assented to by CLIENT. If a term in a Statement of Work (including any applicable Terms) conflicts with a term in this Agreement, the provisions of the Statement of Work will prevail.

2.3 Change Orders. Any request by CLIENT for additional or different Project Services on an existing project (from that as laid out on an existing Statement of Work), or the deletion of Project Services from an existing project, shall be by a written Change Order accepted and agreed upon by the parties and appropriately labeled with specific reference to the Statement of Work. Any Change Order or modification shall be by default at the PROJECT SERVICES rate specified in the referenced SOW (or if not specified, as 121eCommerce’s then-current hourly rates) unless otherwise specified in the Change Order. 121eCommerce agrees to continue performance on any existing Statement of Work pending resolution of the requested Change Order, so long as continued performance shall not cause 121eCommerce to incur a material increase in cost or undue hardship based on the change in scope of performance as contemplated by the original SOW. No Change Order shall be implemented without written acceptance by both parties.

3. OWNERSHIP OF INTELLECTUAL PROPERTY

3.1 Upon payment in full in accordance to the terms stated in the SOW, all of the Deliverables described in the SOW produced under this Agreement and any other items prepared for or submitted to CLIENT under this Agreement shall belong exclusively to CLIENT. Until such payment is received by 121eCommerce, then all the Deliverables described in the SOW belong exclusively to 121eCommerce. Once payment is received by 121eCommerce, then all of the Deliverables described in the SOW shall be deemed to be “works made for hire,” except as set forth below. To the extent that any of the Deliverables may not, by operation of law, be “works made for hire” after payment in full is received, 121eCommerce assigns to CLIENT ownership of copyright and other intellectual property rights in such Deliverables, except as set forth below. Upon payment in full, CLIENT shall have the right to obtain and hold in its own name copyrights, registrations and similar protections, which may be available in such Deliverables. Thereafter, 121eCommerce shall, at the request and cost of CLIENT, promptly sign, execute, make and do all such deeds, documents, acts and things as CLIENT and its duly authorized officers may reasonably require: (i) to apply for, obtain, register and vest in the name of CLIENT alone (unless CLIENT otherwise directs) patents, copyrights, trademarks or other analogous Intellectual Property protection in the United States relating to such Deliverables, and when so obtained or vested to renew and restore the same; and (ii) to assist in the defense of any judicial, opposition or other proceedings in respect of such applications and any judicial, opposition or other proceeding, petition or application for revocation of any such patent, copyright, trademark or other analogous Intellectual Property protection. For clarification, in connection with any cooperation or assistance provided by 121eCommerce under this Section 3.1, 121eCommerce will be entitled to reimbursement from CLIENT for any out-of-pockets costs and expenses incurred by 121eCommerce or its affiliates, principals, employees, agents, or representatives in connection with such cooperation and assistance, as well as for any time incurred in support of such cooperation or assistance, which will be chargeable and invoiced at 121eCommerce’s then-standard hourly rates. Without limiting the foregoing and so long as CLIENT is compliant with the terms of this Agreement, 121eCommerce hereby: (x) gives and grants to CLIENT the sole and exclusive right throughout the world in all languages and in perpetuity to use all Deliverables; and (y) waives any and all claims that 121eCommerce may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the results and proceeds of the Deliverables.

3.2 Copyrighted Background Technology. 121eCommerce has federal copyright registrations for its proprietary extensions that it incorporates into its Deliverables described in your SOW. For further clarification, such Deliverables to you do not include any of 121eCommerce’s underlying or background software or technology, or any Intellectual Property owned or developed by 121eCommerce or its affiliates prior to the date of this Agreement or not expressly constituting a Deliverable hereunder, including to the extent incorporated into or used to develop the Developed Property (collectively, the “Background Technology”). 121eCommerce reserves all rights in and to its software, its proprietary information, and all other Background Technology not expressly granted to CLIENT in this Agreement. CLIENT agrees that it will not remove any copyright notices, trademarks or trade names of 121eCommerce from the 121eCommerce software or other Background Technology. For the duration of this Agreement and thereafter so long as CLIENT is compliant with the terms of this Agreement, including but not limited to payment obligations, 121eCommerce grants to CLIENT and its successors a perpetual, fully-paid, non-exclusive, transferable right and license to access and use any Background Technology, solely to the extent necessary for CLIENT to access or use any Deliverable in the manner contemplated hereunder or under any Statement of Work. This foregoing right and license to access does not extend to Third Party platforms, applications, or software which that require CLIENT to obtain its own license (an example of this would be Microsoft Outlook). The granting of these rights and access apply solely to the extent necessary for CLIENT to access and use the Work Product and the Deliverables in the manner contemplated hereunder and under the Statement of Work. CLIENT may not incorporate the Background Technology in any software other than software developed by 121eCommerce, LLC.

4. MARKETING

4.1 CLIENT hereby grants 121eCommerce the right to use the name and service marks of CLIENT in its marketing materials or other oral, electronic, or written promotions, which shall include naming CLIENT as a client of 121eCommerce and a brief scope of the services provided, subject in all cases to the confidentiality obligations set forth herein. In addition, CLIENT hereby grants 121eCommerce the right to display its logo (or other identifying information) and a hyperlink to CLIENT’s web site.

5. FEES AND COSTS

5.1 Fees for Project Services. The fees for the Project Services shall be set forth in each SOW and in any Change Orders executed in accordance with this Agreement. Unless otherwise specified in the applicable SOW, the charges specified on any SOW shall be deemed not to have included taxes. CLIENT shall pay all taxes, duties and levies of any governmental authority, in connection with providing the Project Services (other than taxes based upon 121eCommerce’s net income). All taxes shall be collected and paid as required by law. If 121eCommerce is required to pay such taxes, the taxes shall be billed to the CLIENT and the CLIENT agrees to pay or reimburse to 121eCommerce (within thirty days) the full amount of such taxes and any interest or penalties incurred due to late payment or nonpayment of such taxes by CLIENT.

5.2 Deposits. Deposits will be held for the duration of CLIENT’s engagement with 121eCommerce.  If the deposit is greater than eighty (80) hours of work at the CLIENT’s hourly rate, then the excess will be applied to the project’s final invoices.  The remainder of the deposit will be returned 30 days after CLIENT expresses their intention to terminate the engagement with 121eCommerce, or after the last day of work completed, whichever is later.

5.3 Costs Applicable to Project Services. CLIENT shall be responsible for all documented out-of-pocket costs and expenses incurred by 121eCommerce in performing the Project Services under this Agreement (“Costs”), including but not limited to travel, travel time at the rate specified in the most recent executed SOW (or if not specified in the SOW, at 121eCommerce’s then current hourly rates), lodging and food. Unless otherwise specified in the applicable SOW, reimbursable Costs will be invoiced and payable by the CLIENT on a monthly basis. 121eCommerce shall provide receipts or other appropriate documentation evidencing the Costs incurred on a monthly basis.

5.4 Project Services Invoicing. Invoices shall be due and payable to 121eCommerce immediately upon receipt of the invoice by CLIENT, or within such other time period as specified in the SOW. Should CLIENT not pay the Project Services invoice within fifteen (15) days from CLIENT’s receipt of a written notice of late payment, CLIENT agrees that amounts of any unpaid invoice shall accrue interest from the date of such notice at one percent (1%) per month. CLIENT shall pay all costs of collection, including reasonable attorney’s fees and costs, in the event any invoice requires collection efforts.

5.5 Invoice in Dispute. Any invoice that is the subject of a good faith dispute, including with regards to hours billed, expenses, or other accounting errors, shall be paid within thirty (30) days of resolution of the dispute and submittal of a corrected invoice.

5.6 Failure to Pay – In the event of a failure on the part of the CLIENT to pay any portion of 121eCommerce’s invoice that is not the subject of a good faith dispute when due, 121eCommerce shall have the right to suspend performance of Project Services, in addition to its other rights and remedies as per this Agreement or any applicable Statement of Work, upon written notice to CLIENT and without any liability or obligation on the part of 121eCommerce.

6. ANTI-RAIDING

6.1 Hiring of Personnel. CLIENT acknowledges that in order to provide the Project Services competently, 121eCommerce will make substantial investments of time and money in the recruitment, training, retention and constant skill enhancement of its technical staff. CLIENT further acknowledges that if it were to hire any employees, contractors, or other personnel of 121eCommerce or its affiliates, 121eCommerce would suffer losses and incur expenses in connection with the recruitment and training of replacement personnel, which losses and expenses are not possible to quantify. CLIENT accordingly agrees that in the event that, during the term of this Agreement and for 365 (three-hundred-sixty-five) days following the termination or expiration of this Agreement (for whatever reason), it solicits, offers employment to, or hires any employee, consultant, or other personnel of 121eCommerce or its affiliates while such individual is employed or engaged by 121eCommerce or its affiliates, or within six (6) months of such individual’s termination of employment or engagement with 121eCommerce or any affiliate, for any reason, CLIENT shall pay to 121eCommerce a sum equal to the greater of fifty percent (50%) of the then annual compensation, or the equivalent of six month of full time billing, of such individual, not as a penalty or as a forfeiture, but as liquidated damages. CLIENT agrees that such payment is fair and reasonable under such circumstances. The payment obligation under this Section shall survive the termination or cancellation of this Agreement. Nothing contained herein shall preclude the CLIENT’s hiring or engaging of any such person who responds to a general solicitation of employment through an advertisement not targeted specifically at 121eCommerce or its employees, contractors, personnel, or affiliates.

7. CONFIDENTIAL INFORMATION

7.1 Confidentiality Obligation. The parties acknowledge that in the performance of the Project Services, confidential information may be disclosed by one party to the other including, but not limited to, pricing terms, Intellectual Property, financial information, marketing plans, business plans, customer lists, advertiser lists, information pertaining to business operations, other information pertaining to the business, operations, finances, personnel, strategies, methods, and know-how of either party, and any other information which is identified at the time of its disclosure as being confidential or which under the circumstances of its disclosure should be regarded as confidential (collectively, “Confidential Information”). Each party receiving Confidential Information agrees not to disclose the same to any third party without the express written consent of the other party and to use the same standard of care (but no less than a reasonable standard of care) in protecting the confidentiality of the Confidential Information as they use in protecting their own Confidential Information. Under no circumstances will a party use Confidential Information of the other party to compete with, or otherwise to the detriment of, the other party or its affiliates. The terms and restrictions of this Section 7 are supplemental to (and not in lieu of) such other or additional restrictions as may be set forth in a non-disclosure, confidentiality, or similar separate agreement in place between the parties (each, an “NDA”)).

7.2 Exclusions. This Agreement imposes no obligation upon a party receiving Confidential Information with respect to information that: (a) was in the receiving party’s possession before receipt from the disclosing party; (b) is or becomes a matter of public knowledge through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party without a duty of confidentiality; (d) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (e) is disclosed pursuant to the requirement of a court, administrative agency, or other governmental or regulatory body, provided that, prior to such required disclosure, the receiving party shall give the disclosing party reasonable advance notice of any such disclosure and shall cooperate with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. Further, nothing contained in this Section 7 will prevent or restrict a party from disclosing the existence or terms of this Agreement or any SOW: (x) in order to give effect to or enforce such party’s rights hereunder; or (y) to the extent necessary in connection with the due diligence review of such party by potential business partners, investors or acquirers, or investment bankers, to such persons and to their employees, agents, attorneys and auditors, provided in all cases that such persons are subject to contractual or professional duties of confidentiality substantially identical to as set forth in this Section 7.

8. WARRANTIES

8.1 LIMITED WARRANTY. 121eCommerce WARRANTS THAT THE PROJECT SERVICES AND THE DELIVERABLES WILL BE PROVIDED IN A PROFESSIONAL AND COMMERCIALLY REASONABLE MANNER, AND IN ACCORDANCE WITH REASONABLE INDUSTRY PRACTICES AND ANY SPECIFICATIONS OR DATA SECURITY STANDARDS SET FORTH IN THE APPLICABLE STATEMENT OF WORK. 121eCommerce FURTHER REPRESENTS AND WARRANTS THAT THE PROJECT SERVICES AND THE WORK PRODUCT WILL NOT KNOWINGLY MISAPPROPRIATE OR INFRINGE UPON THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY EXCLUDING FOR THESE PURPOSES ANY DESIGNS, SPECIFICATIONS OR REQUIREMENTS PROVIDED BY OR DIRECTED BY THE CLIENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE PROJECT SERVICES AND DELIVERABLES MAY BE SUBJECT TO LIMITATIONS, DELAYS, SERVICE INTERRUPTIONS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. 121ECOMMERCE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH ISSUES OR PROBLEMS.

9. LIMITATIONS OF LIABILITY

9.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROJECT SERVICES PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SAME. NOTWITHSTANDING ANY CONTRARY TERM CONTAINED HEREIN OR IN ANY STATEMENT OF WORK, IN NO EVENT SHALL 121ECOMMERCE BE LIABLE FOR DAMAGES WITH REGARD TO PROJECT SERVICES PERFORMED OR DELIVERABLES PROVIDED UNDER ANY SINGLE SOW IN EXCESS OF THE TOTAL AMOUNT PAID TO 121ECOMMERCE UNDER THE TERMS OF SUCH SOW DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FACTS OR CIRCUMSTANCES GIVING RISE TO THE CLAIM FOR LIABILITY OR DAMAGES. THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY SHALL NOT APPLY TO CLAIMS BASED UPON A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9.2 121ECOMMERCE AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE TO THE EXTENT OF ANY DAMAGES TO CLIENT CAUSED BY CLIENT OR ANY THIRD PARTIES UNAFFILIATED WITH 121ECOMMERCE. CLIENT ASSUMES TOTAL RESPONSIBILITY FOR CLIENT’S USE OF THE PROJECT SERVICES, SOFTWARE, OR OTHER WORK PRODUCT PROVIDED BY 121ECOMMERCE. NO ADVICE OR INFORMATION GIVEN BY 121ECOMMERCE, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES AND NOT EXPRESSLY SET FORTH HEREIN OR IN THE APPLICABLE SOW SHALL CREATE A WARRANTY. Any claim by CLIENT arising from, or relating to, this Agreement or any SOW must be brought within one (1) year from the date such claim or liability arose. The parties acknowledge that a SOW may provide for certain credits or offsets to be applied toward or against amounts owed by CLIENT to 121eCommerce in case of unavailability of the Project Services above permitted thresholds. Except in case of fraud, willful misconduct, or third-party claims giving rise to a claim for indemnification under Section 11, these credits or offsets constitute CLIENT’s sole remedy for any contractual damages incurred due to the unavailability of the Project Services or any Deliverable to CLIENT or any of its end users.

10. TERM AND TERMINATION

10.1 Term. The term of this Agreement shall commence upon the Effective Date and shall continue until the first to occur of either: (i) termination at the election of CLIENT upon the termination or expiration of all SOWs hereto then in effect; or (ii) termination pursuant to Section 10.2 below.

10.2 Termination. Unless otherwise set forth in any SOW, this Agreement or any one or more SOWs may be terminated by the parties as follows:

10.2.1 For convenience. By either party, on thirty (30) days prior written notice to the other party; unless otherwise specified in the applicable SOW (and subject to any payment and other obligations specified therein).

10.2.2 Unpaid Service Fees. By 121eCommerce, in the event CLIENT fails to make any payment when due and fails to cure same within fifteen (15) days of receipt of written notice of non-payment.  As discussed in Section 3, if CLIENT fails to make payment in accordance to the terms of this Agreement, its continued use of Deliverables is not only a breach of this Agreement, but also infringement of 121eCommerce’s Intellectual Property;

10.2.3 Material Breach. By either party, upon written notice to the other party, in the event that the other party fails to perform any material obligation under this Agreement or any SOW, and such failure is not cured within thirty (30) days of receipt of a written notice of default from the non-breaching party; and

10.2.4 Insolvency. By either party, in the event that the other party: (a) files a petition for bankruptcy or is adjudicated bankrupt; (b) has a petition for bankruptcy filed against it; (c) becomes insolvent or makes an assignment for the benefit of creditors, (d) has a receiver is appointed for its business; or (e) dissolves, winds up, or ceases business operations.

10.3 Rights on Termination. The rights of the parties upon termination of this Agreement or any one or more SOWs, in addition to any rights specifically set forth in any such SOW, shall be as follows:

10.3.1 Fees. 121eCommerce shall be entitled to payment for all Fees and Costs associated with all completed and accepted Deliverables, as well as work in progress and/or development hours incurred through the date of termination (which may include charges for up to three (3) working days for any developer, personnel, or other assets reserved by 121eCommerce for Project Services under the applicable Statement of Work, with a minimum of two full time personnel), with such payment to be paid by CLIENT within thirty (30) days of any such termination or expiration of this Agreement. In the event CLIENT fails to pay any Fees or Costs that are due then, in addition to exercising any and all rights at law and/or equity, 121eCommerce shall be permitted to withhold the delivery of any Deliverables. CLIENT will be entitled to a prorated refund of any portion of any fees that have been paid in advance and not been applied toward Project Services expended through the effective date of termination; provided that refunded amounts will be subject to chargebacks to the extent necessary for 121eCommerce to account for amounts owed to it hereunder, including any developer, personnel, or other assets reserved by 121eCommerce for Project Services, and that 121eCommerce is not reasonably able to re-allocate toward other projects.

10.3.2 Expenses. CLIENT shall pay 121eCommerce’s expenses incurred in connection with the SOW as follows: (a) incidental and out of pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus 121eCommerce’s standard markup of 15%, and, if applicable, a mileage reimbursement at $.54 per mile; and (b) travel expenses.

10.3.3 Fee Payments. In consideration of the Services to be performed by 121eCommerce, CLIENT shall pay to 121eCommerce fees in the amounts and according to the payment schedule set forth in the SOW, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.

13.3.4 121eCommerce Design Agents. 121eCommerce shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, 121eCommerce shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of the SOW.

10.3.5 Infringement of Background Technology. CLIENT may not use the Background Technology unless its has fully paid 121eCommerce in orderance to the terms and conditions of this Agreement. Client may never use the Background Technology for any other purpose than as stated in this Agreement or incorporate the Background Technology into any other thing. Otherwise, 121eCommerce shall be entitled to recover damages (actual or statutory), attorneys fees and litigation expenses from CLIENT for its infringement of 121eCommerce’s copyrighted Background Technology.

10.3.6 Confidential Information. All Confidential Information associated with such terminated SOWs shall be returned to its respective owner or destroyed, as directed by the owner thereof.

10.4 Survival. Sections 5, 6, 7, 8, 9, 10, 11, and 12 shall survive termination or expiration of either or both (i) this Agreement and (ii) any one or more SOWs, as well as any other provisions that ought reasonably to be interpreted to survive such termination or expiration.

10.5 SOWs. Unless otherwise agreed by the parties or as permitted under the terms of the SOW or under Section 10.2 above, termination or expiration of this Agreement will not affect the validity of any SOW’s then in effect, which will each remain in full force and effect in accordance with their respective terms. Unless otherwise stated in the applicable SOW, the term of a SOW shall commence upon commencement of the Project Services specified therein and shall remain in effect until performance thereunder is completed. Notwithstanding the term and termination provisions set forth above, either party may terminate a particular SOW (in accordance with the terms and conditions set forth therein), without such termination acting as a termination of this Agreement or any other SOW.

11. INDEMNIFICATION

11.1 CLIENT shall indemnify, defend, and hold harmless 121eCommerce (and its subsidiaries, affiliates, officers, managers, members, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) (collectively “Losses”) incurred by 121eCommerce and such other indemnified parties as a result of, related to, or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by CLIENT to 121eCommerce (the “Client Content”), (b) any infringement of the Client Content upon the Intellectual Property rights of a third party, (c) CLIENT’s breach of any representation, warranty, covenant, or agreement hereunder or under any SOW; or (d) the misconduct or negligence of CLIENT or its agents, employees, contractors, representatives, or affiliates, including to the extent arising out of or related to CLIENT’s operation or use of the Project Services or the Services, but excluding, in all cases, any Losses to the extent based upon 121eCommerce’s own negligence, misconduct, or breach of this Agreement or any SOW.

11.2 121eCommerce shall indemnify, defend, and hold harmless CLIENT (and its subsidiaries, affiliates, officers, managers, directors, agents, co-branders or other partners) from any and all Losses incurred by CLIENT and such other indemnified parties as a result of, related to, or arising from: (a) 121eCommerce’s breach of any representation, warranty, covenant, or agreement hereunder or under any SOW; or (b) the misconduct or negligence of 121eCommerce or its agents, employees, contractors, representatives, or affiliates, but excluding, in all cases, any Losses to the extent based upon CLIENT’s own negligence, misconduct, or breach of this Agreement or any SOW.

11.3 In the case of any third party claim or action giving rise to a claim for indemnification hereunder: (a) the indemnified party shall provide the indemnifying party with prompt written notice of any such third-party claim or action; (b) the indemnifying party shall have sole control of selecting legal counsel in any defense proceedings (provided that such counsel is reasonably acceptable to the indemnified party); and (c) the indemnifying party shall conduct and control the defense of any such claim or action, consistent with the indemnified party’s rights hereunder. Said indemnification shall be subject to Section 9 and the limitations herein, and in any event shall not include punitive, special, or consequential damages.

12. GENERAL

12.1 Relationship of the Parties. 121eCommerce is an independent contractor under this Agreement, and its employees, contractors, and other personnel performing the Project Services shall remain employed or engaged by 121eCommerce and subject to its direction and control. 121eCommerce shall have sole responsibility for compliance with all laws relating to the employer/employee relationship between 121eCommerce and its employees. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership or other affiliation between the parties. The sole relationship between the parties is the contractual relationship as expressly set forth herein.

12.2 Notices. Any notice, offer, demand, request, consent, approval or other instrument which may or is required to be given or made under this Agreement shall be given or be made in writing and shall be served personally, or transmitted by e-mail or facsimile transmission, or mailed by prepaid registered post and shall be addressed as follows:

If to 121eCommerce:
121eCommerce LLC
2940 Noble Rd, Suite 205
Cleveland Heights, OH 44121
Attention: Point of Contact
Benjamin Chafetz
CEO
tel no.: (216) 586-6656
email: ben@121eCommerce.com

If to CLIENT:
To the notice address as set forth on the applicable Statement of Work.

or to such other address as any of them may from time to time advise the others by notice given in the manner provided for in this Section.

A notice delivered by regular or certified U.S. Mail will be deemed to have been delivered on the third business day after the post-mark, if affixed by the U.S. Postal Service. Any other notice will be deemed to have been received on the date and time of the signed receipt or confirmation of delivery or transmission thereof, unless that receipt or confirmation date and time is not a business day or is after 5:00 p.m. local time on a business day, in which case such notice will be deemed to have been received on the next succeeding business day. The Parties agree all documents, notices, and correspondence between the Parties concerning this Agreement or the Project shall be in the English language.

12.5 Dispute Resolution. If a dispute arises between the parties relating to this Agreement or any SOW, the parties agree that a meeting shall be held promptly between the parties, attended by individuals with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. During such discussions, the parties will discuss ways in which to address the dispute, such as Change Order, rebates, refunds or credits, all of which are discretional, as solely determined by 121eCommerce on a case by case baiss. If, within fifteen (15) days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, then the parties agree to submit the dispute to binding arbitration in Cleveland, Ohio in accordance with the commercial rules of the American Arbitration Association (“AAA”). The AAA will apply the Commercial Arbitration Rules to the arbitration of any dispute pursuant to this Agreement. CLIENT can get procedures (including the process for beginning an arbitration), rules, and fee information from the AAA website (www.adr.org). The party seeking to commence arbitration must first notify the other party in writing at least 30 days in advance of initiating the arbitration. Notice to 121eCommerce should be sent to: 121eCommerce LLC, Attn: Benjamin Chafetz, CEO, 2940 Noble Road, Cleveland Heights, OH 44121. 121eCommerce will provide notice to CLIENT via its email address(es) and street address(es), if any, associated with CLIENT’s account at the time the notice is sent. The notice must describe the nature of the claim and the relief being sought. The arbitrator, if a sole arbitrator, or the chairman, if a panel of three (3) arbitrators, will be a lawyer with experience in handling disputes in the software industry and, if a panel, the other two panel members will each have a background or training in computer law, computer science or the computer software industry. The decision of the arbitrator(s) will be final and can be enforced by any court of proper jurisdiction. Although arbitration procedures are different from court or chargeback procedures, an arbitrator can aware you individually the same damages and relief as a court, and judgment on that aware may be entered and enforced in any court of competent jurisdiction. Nothing in this Section 12.5 shall prohibit either party from applying to the AAA for temporary or preliminary injunctive relief in order to preserve the status quo or prevent irreparable harm, in which case the hearing on any such application will be held in Cleveland, Ohio.

12. 5.1 Agreement to Arbitrate and Not To Initiate Credit Card Chargebacks.

CLIENT agrees to the above described dispute resolution provisions (i.e., discuss with 121eCommerce, and if unresolved, arbitrate). CLIENT agrees that if it violates such agreed upon dispute resolution terms and initiates a credit card chargeback to attempt to resolve a dispute that it has with 121eCommerce, then CLIENT agrees that 121eCommerce can invoice it for its time to research, draft and respond to such chargeback at an hourly rate of $200 per hour, billed out in 0.25 hourly increments. Additionally, CLIENT agrees that 121eCommerce can also invoice it for any of its incurred chargeback response expenses, including but not limited to, attorneys fees. Upon receipt of such time and expense invoice(s) in response to chargebacks, CLIENT agrees to pay 121eCommerce for the stated invoiced amount within 15 days of receipt of each such invoice. CLIENT agrees that reimbursement of 121eCommerce’s time and incurred expenses to respond to unagreed upon chargebacks is reasonable and enforceable because the parties have agreed that arbitration is their sole dispute resolution mechanism.

12.5.2 Intellectual Property and Computer Trespass Claims Exception.

Notwithstanding the above, the foregoing mandatory arbitration provision shall not apply in the event 121eCommerce bring a claim against CLIENT for infringement of 121eCommerce’s intellectual property rights, computer trespass, or related claims, in which event CLIENT agrees that venue is proper and personal jurisdiction exists over CLIENT in the state or federal courts located in Cleveland, Ohio.

12.6 Assignment. 121eCommerce’s duties to perform Project Services and the Deliverables are expressly agreed to be personal and not to be assignable or transferable; provided; however, that 121eCommerce will be permitted to transfer or assign its rights and duties hereunder or under any SOW in connection with a sale or transfer of all or substantially all of its assets, equity securities, or business (by merger or otherwise). Additionally, 121eCommerce will be permitted to delegate or subcontract its duties to perform Project Services and the Deliverables to an affiliate or to a contracted consultant or firm under its direction, so long as 121eCommerce remain directly responsible to the CLIENT for the performance of Project Services and Deliverables in accordance with this Agreement.

12.7 Non-Exclusivity. Nothing in this Agreement shall preclude 121eCommerce from providing similar services or Deliverables to another company, client, or customer, provided 121eCommerce maintains the CLIENT’s Confidential Information in accordance with the terms hereof and any NDA.

12.8 Waiver. The failure of either party to enforce any right or obligation under this Agreement shall not be deemed a waiver thereof and shall not prevent the later enforcement of such right or obligation.

12.9 Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective permitted successors, heirs and assigns.

12.10 Headings. The headings or titles contained in this Agreement are for convenience only and are not part of this Agreement and shall not be used as an aid in construction of any provision contained herein.

12.11 Severability. To the fullest extent possible, each provision of this Agreement shall be interpreted in such fashion as to be effective and valid under applicable law. If any provision of this Agreement is declared void or unenforceable for particular facts or circumstances, such provision shall remain in full force and effect for all other facts or circumstances. If any provision of this Agreement is declared entirely void or unenforceable, such provision shall be deemed severed from this Agreement, which shall otherwise remain in full force and effect.

12.12 Entire Agreement. This Agreement, including any SOWs or applicable Terms, and also including any NDA, contains the entire agreement between the parties and supersedes all prior written or oral agreements. This Agreement may not be amended or altered except in writing signed by both parties. This Agreement supersedes and replaces any existing master services agreement relating to project and/or consulting services between 121eCommerce and CLIENT. Any SOWs which are currently in progress at the time this Agreement is executed shall be subject to, and governed by, the terms of this Agreement.

12.13 Force Majeure. Except with regard to payment obligations, neither party shall be liable to the other party arising out of delays or failures to perform under this Agreement to the extent that any such delays or failures result from any cause beyond the reasonable control of the party affected, including without limitation fire, earthquake, explosion, casualty, strike, war, riot, civil disturbance, act of God, any state of national law, decree or ordinance, or any executive or judicial order; provided, that the affected party promptly informs the other of all relevant information.