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 it has fully paid 121eCommerce in ordinance 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) anyone 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.