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. If, within fifteen (15) days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to binding arbitration in Cleveland, Ohio in accordance with the commercial rules of the American Arbitration Association (“AAA”). 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. 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.
12.6 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.