A note from Ben Chafetz, Director of Client Services
Hi! Welcome to our Terms & Conditions page, and congratulations on being the sort of person who reads the Master Services Agreement. Below, on the left, you’ll see the terms to which you must agree if you’re going to use.
121eCommerce’s services. That is what counts, and is what we pay our lawyers for. On the right, you’ll see how I’d explain it to my mother (Hi Mom!) or anyone else who doesn’t want to deal with the legal jargon. I hope the comments help make sense of this document, so that you can understand what you’re consenting to. Thanks for your interest in 121eCommerce Solutions!
121eCommerce’s services. That is what counts, and is what we pay our lawyers for. On the right, you’ll see how I’d explain it to my mother (Hi Mom!) or anyone else who doesn’t want to deal with the legal jargon. I hope the comments help make sense of this document, so that you can understand what you’re consenting to. Thanks for your interest in 121eCommerce Solutions!
- 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:
In Simple Terms
By hiring us to provide you service you agree to all that is found below. Keep reading, it gets more exciting.
1. DEFINITIONS
The following terms shall have the following meaning throughout this Agreement.
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” – 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.
In Simple Terms
Here is where we define the terms that will continue to appear throughout the document.
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
In Simple Terms
Our services and all variations of the word services, are the work we do for you.
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 and121eCommerce 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.
In Simple Terms
The details of the actual work we will do for you is in the SOW.
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.
In Simple Terms
If you ever need to make changes after the scope of work has been set, we have a system to go about those changes.
2.4 – Acceptance Testing for Project Services Upon completion of the Project Services produced under an SOW,
121eCommerce shall notify Client in writing whereupon Client shall conduct a detailed testing of the Deliverables to determine compliance with the applicable SOW (the “Project Services Testing Procedure”), which Project Services Testing Procedure shall be completed within fifteen (15) business days thereafter, or upon such other period as the parties shall agree to (“Project Services Acceptance Period”). Unless otherwise notified in writing by Client before the conclusion of the Project Services Acceptance Period, Client hereby accepts and 121eCommerce shall presume Client has accepted the Deliverables. Client shall have no further ability to reject the Deliverables. Client must notify 121eCommerce in writing, with specificity, of any material nonconformity of the Deliverables prior to the expiration of the Project Services Acceptance Period. Upon acceptance of the Deliverables by Client, Client hereby agrees to the following: (i) Client has reviewed, tested and inspected the Deliverables and determined to Client’s satisfaction that the Deliverables contain the core functionality and operability as set forth in the specifications in the SOW; (ii) Client accepts the Deliverables as delivered and agrees that 121eCommerce has performed its obligations with respect to the customization and implementation of the Deliverables; and (iii) Client releases 121eCommerce from any and all further obligations with respect to the conformance of the Deliverables produced under the SOW.
In Simple Terms
Once we finish a project for you, you have to test it. How else will we know how much you like it?
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.
In Simple Terms
Whatever work we do for you, you own. We don’t.
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.
In Simple Terms
Whatever we use that is ours to do the work, we own, you don’t.
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.
In Simple Terms
We reserve the right to tell our future customers that you used and loved our services.
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.
In Simple Terms
Here’s where we discuss fees and payment. In a nutshell, we prefer that clients pay their invoices on time.
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.
In Simple Terms
If you love our employees and want them for yourself, we’re going to have to talk.
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).
In Simple Terms
Good friends keep secrets.
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.
In Simple Terms
Uh oh, this part looks serious. Basically, you agree that the only things 121eCommerce accepts liability for are those which we explicitly mention.
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 forty-five (45) 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. 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. 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.
In Simple Terms
On the off chance you would like to end our services, here are the terms.
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.
In Simple Terms
You ensure that all of the content you provide us belongs to you, and we will not be liable if it turns out that it doesn’t.
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.
Our relationship with each other is purely contractual. The parties are not partners or joint venturers to each other, and 121eCommerce and its personnel are not your employees.
In Simple Terms
Though we will all work together to provide you terrific service; our employees are our employees, not yours.
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:
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: [email protected]
If to Client:
___________________________
___________________________
___________________________
In Simple Terms
Please provide everything in writing. Easier to keep track of.
12.3 We strive to meet or exceed all project milestones and deadlines. This requires a commitment both from 121eCommerce and Client. Timely responses on decisions, feedback, and information requests are imperative to meeting these goals. As such, the understanding is that for every day’s delay in Client’s response, the project deadline may be extended by up to TWO (2) days to offset both the actual time delay and the time that it may take 121eCommerce to reallocate project resources.
12.4 Governing Law, Jurisdiction and Venue – This Agreement shall be construed in accordance with the internal substantive laws of the State of Ohio without regard to its conflict of law provisions. Both parties agree to submit to the jurisdiction of the state and federal courts in Ohio and agree to bring any action concerning this Agreement exclusively in the state or federal courts of Ohio.
In Simple Terms
The laws of Ohio govern this agreement and anything related to it.
12.5 Choice of Law; Dispute Resolution – This MSA is governed by the laws of the State of Ohio (USA), except for its conflict of law provisions. The parties agree to submit any dispute, of any nature whatsoever, between the parties arising out of or relating to Agreement, to arbitration, the proceedings of which shall to be conducted and resolved exclusively via the Internet, pursuant to the American Arbitrations Association’s (AAA) Online Arbitration Supplementary Procedures (please see here: http://www.adr.org/sp.asp?id=22003). A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the AAA’s fee and reasonable attorney fees) to the prevailing party.
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).
In Simple Terms
Our deal is with you, if you pass it on to someone else, we must approve. If you sell your company, the new owner must also accept everything in the agreement. And we’ll miss you.
12.7 Non-Exclusivity – Nothing in this Agreement shall preclude 121eCommerce from providing similar services to another company (except the Work which is jointly developed by 121eCommerce and CLIENT), provided 121eCommerce maintains the CLIENT’s confidential Information.
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 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, 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.
In Simple Terms
If something wild and outside of our control interrupts 121eCommerce’s services, neither you nor we, are liable.
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.