Terms & Conditions

1. This Master Services Agreement (the “Agreement”), entered into this ___ day of __________, 201_ (the “Effective Date”), is made between 121eCommerce LLC (121eCommerce), an Ohio limited liability company, and ________________________________; a __ STATE company. (“Client”).WHEREAS, Client is willing to engage 121eCommerce to provide the Services.NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual covenants hereinafter set forth, and for other valuable and legally sufficient consideration, the receipt of which is acknowledged by the parties, it is agreed as follows:

1. DEFINITIONS

The following terms shall have the following meaning throughout the Terms of Use.

a. “Project Services” – shall mean those services provided by 121eCommerce and its personnel, hereafter 121eCommerce team members assigned to work on the project for CLIENT in accordance with an approved Statement of Work issued under this Agreement.
b. “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 Scope of Work and related Documentation.
c. “Technical Skills” – shall mean the primary skills required for the team members at 121eCommerce to provide the Project Services.
d. “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 and any applications therefore.
e. “Pricing Schedule” – shall mean the then current prices of 121eCommerce, as agreed to by 121eCommerce and CLIENT.
f. “Statement Of Work” or “SOW” – shall mean the written 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 reasonably necessary to perform the Project Services.
g. “Third Party” – a person or entity other than the Client, 121eCommerce, or a contracted consultant for 121eCommerce..
h. “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.

2. SCOPE OF SERVICES GENERALLY

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

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. The specific scope of any Work 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 or any other document that references the appropriate Statement of Work to be jointly prepared by CLIENT and 121eCommerce and approved by CLIENT prior to the start of any Work. 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. Any Work request shall be via a Statement of Work or Change Order issued in accordance with this Section 2.1.

2.3 Change Orders – Any request by CLIENT for additional or different Work on an existing project, or the deletion of Work from an existing project, shall be by a Change Order to 121eCommerce 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 unless otherwise specified in the Change Order. 121eCommerce agrees to continue performance pending resolution of the changes so long as continued performance shall not cause 121eCommerce to incur 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 until written acceptance by both parties.

3. OWNERSHIP OF INTELLECTUAL PROPERTY

3.1 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 and 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”, 121eCommerce hereby assigns to Client ownership of copyright in such Deliverables, except as set forth below. 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. 121eCommerce agrees to give Client or its designees all assistance required to perfect such rights.

3.2 Client hereby acknowledges that 121eCommerce owns all right, title and ownership to the 121eCommerce software and other proprietary information and processes that do not constitute the Deliverables, and shall remain and belong to and be vested in 121eCommerce. 121eCommerce reserves all rights in its software and its proprietary information 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.

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. 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.

5.2 Costs Applicable to Project Services – Client shall be responsible for all costs and expenses incurred by 121eCommerce in performing the Services under this Agreement (“Costs”), including but not limited to travel, travel time at the rate specified in the most recent executed SOW, lodging and food, provided, however, that 121eCommerce obtains the prior written approval of Client. 121eCommerce shall provide receipts or other appropriate documentation evidencing the Costs incurred on a monthly basis.

5.3 Project Services Invoicing – As set forth in the SOW, invoices shall be due and payable to 121eCommerce immediately upon receipt of the invoice by Client. Client shall pay all taxes, duties and levies of any governmental authority, in connection with providing the Services. If Client claims exemption from any taxes resulting from this Agreement, Client shall provide 121eCommerce with documentation required by the appropriate taxing authority to support an exemption. Should Client not pay the Project Services invoice within fifteen (15) days from Client’s receipt of the invoice, Client agrees that amounts of any unpaid invoice shall accrue interest 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.

5.4 Invoice in Dispute – Any invoice in dispute in accordance with Section 2.4 above shall be paid within thirty (30) days of the resolution of the dispute. Any invoice in dispute 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.

5.5 Failure to Pay – In the event of a failure on the part of the CLIENT to pay any 121eCommerce’s invoice when due, 121eCommerce shall have the right to suspend performance of Work in addition to its other rights as per this MSA and remedies, upon written notice to CLIENT without any liability or obligation.

6. ANTI-RAIDING

6.1 Hiring of Personnel – Client acknowledges that in order to provide the 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 of 121eCommerce’s employees, 121eCommerce would suffer losses and incur expenses in connection with the recruitment and training of replacement employees, which losses and expenses are not possible to quantify. Client accordingly agrees that in the event it offers employment to and hires any 121eCommerce employee, while such employee is employed by 121eCommerce or within one hundred eighty (180) days of such employee’s termination of employment with 121eCommerce, 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 employee, not as a penalty 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. 121eCommerce provides that it will not hire, recruit or assist in placing any employee of client during the term of this engagement and for 180 (one hundred eighty) days following the termination or commencement of this agreement.

7. CONFIDENTIAL INFORMATION

7.1 Confidentiality Obligation – The parties acknowledge that in the performance of the Services, confidential information may be disclosed by one party to the other including, but not limited to: this Agreement, including any and all SOWs, 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, and employees 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 in protecting the confidentiality of the Confidential Information as they use in protecting their own Confidential Information.

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 under operation of law (after exercising diligence in limiting disclosure though protective orders).

8. WARRANTIES

8.1 LIMITED WARRANTY – 121eCommerce WARRANTS THAT THE SERVICES WILL BE PROVIDED IN A PROFESSIONAL, COMMERCIALLY REASONABLE MANNER IN ACCORDANCE WITH REASONABLE INDUSTRY PRACTICES, AND UNLESS OTHERWISE STATED IN A SOW, EXCLUDING ANY DATA SECURITY STANDARDS.

8.2 DISCLAIMER OF WARRANTIES – OTHER THAN THE FOREGOING LIMITED WARRANTY AND ANY WARRANTY SPECIFICALLY SET FORTH IN ANY SOW, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY FOR ANY THIRD PARTY PLATFORMS, SOFTWARE OR SERVICES. 121eCommerce PROVIDES NO WARRANTY OF THESE THIRD PARTY PRODUCTS.

9. LIMITATIONS OF LIABILITY

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 SERVICES PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SAME. IN NO EVENT SHALL 121eCommerce BE LIABLE FOR DAMAGES WITH REGARD TO SERVICES PERFORMED UNDER ANY SINGLE SOW IN EXCESS OF THE AMOUNT IT HAS BEEN PAID UNDER SUCH SOW FOR A ONE (1) M PERIOD PRIOR TO ANY ACT OR OMISSION GIVING RISE TO ANY POTENTIAL LIABILITY, EXCLUDING COSTS, IN THE CASE OF PROJECT SERVICES, OF FOR THE ACTUAL AMOUNT BILLED BY 121eCommerce FOR ANY SPECIFIC SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY THIRD-PARTY CLAIMS EVEN IF A PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES.

9.1 121eCommerce AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES TO CLIENT CAUSED BY CLIENT OR ANY THIRD PARTIES UNAFFILIATED WITH 121eCommerce. CLIENT ASSUMES TOTAL RESPONSIBILITY FOR CLIENT’S USE OF THE PROFESSIONAL SERVICES, SOFTWARE OR OTHER PRODUCTS PROVIDED BY 121eCommerce AS IS. NO ADVICE OR INFORMATION GIVEN BY 121eCommerce, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY.

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 or (ii) termination pursuant to Section 10.2 below.

10.2 Termination – All SOWs in effect shall terminate immediately upon the termination of this Agreement. 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 Client, on thirty (30) days prior written notice; unless otherwise specified in the SOW;
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;
10.2.3 Material Breach. Material Breach. By either party, in the event that the other party fails to perform any material obligation under this Agreement, and such failure is not cured within fifteen (15) days of receipt of written notice from the non-breaching party; and
10.2.4 Insolvency. By either party, in the event that the other party files a petition for bankruptcy or is adjudicated bankrupt, has a petition for bankruptcy filed against it or if the other party becomes insolvent or makes an assignment for the benefit of creditors or an arrangement for its creditors pursuant to any bankruptcy law, or a receiver is appointed for its business, and in any of such event, the same is not dismissed and remains uncured within thirty (30) days thereof.

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 as per terminated SOWs, under this Agreement due as of the effective date of termination, which shall be paid by Client within thirty (30) days thereof. 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.
10.3.2 Confidential Information. 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 and 11 shall survive termination of either or both (i) this Agreement and (ii) any one or more SOWs.

11. INDEMNIFICATION

Client shall indemnify and hold harmless 121eCommerce (and its subsidiaries, affiliates, officers, 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) incurred by 121eCommerce as a result of any claim, judgment, or adjudication against 121eCommerce 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”), or (b) a claim that 121eCommerce’s use of the Client Content infringes the Intellectual Property rights of a third party. To qualify for such defense and payment, 121eCommerce must: (i) give Client written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.

11.1 Each 121eCommerce and Client shall indemnify and hold harmless the other, and their directors, officers, agents and employees from any liability or loss resulting from judgments or claims against them arising out of the activities to be carried out pursuant to the obligations of this Agreement, including but not limited to the use of Project Services; provided, however, that the following is excluded from each’s obligation to indemnify and hold harmless:

11.1a The negligence or willful malfeasance by a director, officer, agent, or employee of the party seeking indemnification.

12. GENERAL

12.1 Relationship of the Parties – 121eCommerce is an independent contractor under this Agreement and its employees performing the Services shall remain employees of 121eCommerce 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 under this Agreement that is required to be in writing will be duly given and effective upon delivery, if delivered by hand, facsimile transmission, overnight delivery, e-mail transmission, or three (3) days after posting if sent by certified U.S. mail, return receipt requested (regular U.S. mail shall not be deemed adequate notice under this Agreement), to the addresses specified below:

If to 121eCommerce
121eCommerce LLC
2585 Lafayette Dr, University Heights, OH
Ohio 44118
Attention: Point of Contact
Benjamin Chafetz
VP of Client Services
tel no.: 216.586-6656
email: ben@121eCommerce.com

If to Client:
___________________________

___________________________

___________________________

12.14 Counterparts – This Agreement may be executed in two or more separate counterparts, each of which shall be deemed as an original, together shall constitute one original.

12.15 Limits of Liability – Notwithstanding anything herein to the contrary, 121eCommerce’s limit of liability for any claims hereunder shall not exceed the total amount paid 121eCommerce hereunder.