These Terms of Service Agreement, together with the Order Form(s) and Statement(s) of Work, each as defined below, referencing these terms of service (collectively, these “Terms”) is made and entered into by and between Little Taller, LLC (“Little Taller”) and the customer identified in such Order Form or Statement of Work (“Customer”) as of the effective date of the first Order Form or Statement of Work (the “Effective Date”).
By executing an order form or statement of work that references these Terms (as applicable, an “Order Form” or “Statement of Work”), or indicating acceptance of these Terms via click through, electronic signature or other electronic means offered by Little Taller, Customer agrees to be bound by the terms and conditions of these Terms. In the event of an update to these Terms, Customer will be given written notice. Continued access and use of the Services will constitute acceptance. Any individual accepting these Terms on behalf of Customer which is an organization or other entity represents and warrants that he or she has the authority to bind Customer to these Terms.
IF AT ANY TIME CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE SERVICES.
The parties agree as follows:
1.1. These Terms governs (a) Customer’s access to and use of Little Taller’s proprietary, web-based software solution(s) as described in the applicable Order Form (the “Services”); and (b) Little Taller’s performance and Customer’s receipt of managed services or other Services as described in the applicable Statement of Work (the “Services”). Little Taller grants to Customer and its authorized employees and agents (“End Users”) a limited, non-transferable, non-exclusive right during the term set forth on the applicable Order Form (the “Subscription Term”) to access and use the Services for Customer’s business purposes.
1.2. In the event that Customer elects to have Little Taller perform any Services, the parties will enter into a Statement of Work governing the provision of such Services. Each Statement of Work will be subject to the terms and conditions of these Terms. In the event of a conflict between the terms and conditions of the Statement of Work and the terms of these Terms, the terms and conditions of these Terms govern unless expressly provided otherwise in the applicable Statement of Work. Each Statement of Work will, at a minimum, include: (a) a description of the specific Services to be provided; (b) the schedule for the performance of the Services; and (c) the fees payable for such Services. To the extent Little Taller creates or develops any deliverables arising from or related to the Services, upon Customer’s payment for the applicable Services, and to the extent Customer is not in breach of these Terms, Little Taller grants to Customer a limited, non-transferable, non-exclusive right, during the applicable Subscription Term, to access and use such deliverables solely for Customer’s business purposes, subject to the use restrictions set forth in these Terms and/or the applicable Order Form. Customer acknowledges that the deliverables are Little Taller’s Confidential Information (as defined below).
2.1. Acceptable Use.
Except as expressly authorized by these Terms, Customer will not: (a) modify, disclose, alter, translate or create derivative works of the Services (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any components thereof); (c) derive, or attempt to derive, the source code of, or disassemble, decompile, reverse compile, or reverse engineer the Services or any portion thereof (except to the extent and for the express purposes authorized by any and all applicable federal or state laws (collectively, “Laws”)); (d) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (e) use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (f) copy, frame or mirror any part or content of the Services; (g) access the Services in order to build a competitive product or service, or copy any features or functions of the Services; (h) interfere with or disrupt the integrity or performance of the Services; (i) attempt to gain unauthorized access to the Services or their related systems or networks; (j) disclose to any third party any performance information or analysis relating to the Services; (k) remove, alter or obscure any proprietary notices in or on the Services including copyright or trademark notices; or (l) cause or permit any End User or third party to do any of the foregoing. Customer may access the Services only through interfaces and protocols provided or authorized by Little Taller.
Customer’s use of any application programming interfaces (“APIs”) that are included in the Services or otherwise made available to Customer by Little Taller, in each case, may be subject to additional terms and conditions or limitations as set forth on the applicable Order Form. Such limitations may include limitations on the number of calls that Customer is permitted to make to the API or similar usage restrictions. Little Taller may utilize technical measures to prevent over usage and/or stop usage of the API by Customer after any usage limitations are exceeded.
3. Little Taller Support
3.1. Updates and Modifications. Little Taller will use commercially reasonable efforts provide the Services in material conformance with the terms and conditions of these Terms and, at no additional charge, with all updates or modifications to the Services that Little Taller provides its customers with same package at no additional charge. Such updates or modifications will not include new or additional features and functions; provided, however, Little Taller may offer to make such new or additional features and functions available to Customer subject to payment of additional fees.
3.2. Scope. During the Subscription Term to which these Service Levels are incorporated by reference and subject to payment of all agreed on applicable fees, Little Taller agrees to provide system availability for the Services contracted by Customer as set forth below (the “Service Levels”).
Availability Standard. Little Taller shall use commercially reasonable efforts to make the Little Taller Platform Available (as defined below), as measured over the course of any one-month period, 99.9% of the time, excluding downtime due to Excluded Downtime (as defined below) (the “Availability Requirement”). “Available” means that the Users are able to access and use the Little Taller Platform. “Unavailable” or “Unavailability” means that the Little Taller Platform is not Available.
Scheduled Maintenance. Little Taller reserves the right to perform regularly scheduled maintenance on the Little Taller Platform, which may prevent the Little Taller Platform from being Available (“Scheduled Maintenance”). Scheduled Maintenance may include without limitation scheduled maintenance, updates of hardware or software, or upgrades to increase storage capacity. Scheduled Maintenance while being conducted may degrade the quality of the Little Taller Platform provided which may include an outage of the Services; provided, however, that an outage related to Scheduled Maintenance shall not be deemed to be Unavailability. Little Taller will exercise reasonable commercial efforts to notify Customer of any scheduled downtime in advance, provided that Little Taller reserves the right to perform faster changes with “Urgent Maintenance” as needed.
Excluded Downtime. “Excluded Downtime” means (a) Scheduled Maintenance, including Urgent Maintenance; (b) general Internet or Cloud Provider outages, failure of Customer’s infrastructure or connectivity, computer, third-party system such as “CRM” or Customer Relationship Management systems and telecommunications failures and delays; (c) network intrusions or denial-of-service attacks, provided Little Taller has implemented commercially reasonable measures to mitigate or prevent such an attack or intrusion, (d) down periods due to Force Majeure Events, (e) issues associated with Customer-provided hardware, software and other equipment, or (f) issues associated with data uploaded to the Little Taller Platform by Customer (including damages caused by viruses and other malicious code contained in data uploaded to the Little Taller Platform by Customer).
Failure to Maintain Availability Requirement. In the event Little Taller fails to meet the Availability Requirement, as reported by Customer pursuant to Section 2 of this Exhibit A, Customer shall have the right to receive from Little Taller the applicable availability credits (“Availability Credits”) set forth in Section 3.4.
3.4. Service Level Credits. Customer must: (i) request all service credits described below in writing to Little Taller within thirty (30) days of the Availability failure, (ii) identify the relevant incident number or date and time relating to the Availability failure, and (iii) indicate its preference of a credit on its next invoice or an extension of the Order Term. Little Taller will issue a credit memo response within thirty (30) days of Customer’s written service credit request. Service credits are calculated as pro-rated charges paid by Customer for that billable period by taking the Downtime Hours minus any Excluded Downtime and then Divided by the Available Time to get a “Basis Time” for a Credit (Downtime – Excluded Downtime) / Annualized Available time = Basis Time. Then Basis Time multiplied by the Billing Period = Availability Credit. Little Taller’s obligations set forth in these Service Levels represent Customer’s exclusive remedy, and Little Taller’s sole liability, for failure of the Services to be Available.
4. Ownership and Reservation of Rights
As between the parties, Customer owns all right, title and interest in and to the Customer Materials. Customer consents to Little Taller’s use of and access to the Customer Materials solely to the extent necessary to enable Little Taller to provide the Services to Customer in accordance with these Terms. For the purpose of these Terms, “Customer Materials” means any and all data, text, multimedia, graphics, audio, video, and other information or content provided by Customer to Little Taller for use with and to display through the Services.
4.2. Little Taller
As between the parties and subject to the grant of rights in Section 1 of these Terms, Little Taller and its licensors own all right, title and interest in and to the Services (and any and all modifications to or derivative works of the Services) and any and all intellectual property rights embodied in the foregoing (including but not limited to all information, software, ideas, code, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) (collectively, the “Little Taller IP”). Subject to the limited license above and as between the parties, Little Taller owns and will continue to own all right, title and interest in and to all such deliverables and all discoveries, ideas, inventions, developments, improvements, works of authorship, information, data, analysis, know-how, ideas, technology, materials, code, and other work product arising out of or related to the Services, together with all related Intellectual Property Rights therein. Without limiting the foregoing, Little Taller may use, without limitation, the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the Services.
4.3. Reservation of Rights
Each party reserves all rights not expressly granted in these Terms, and no licenses are granted by a party to the other party under these Terms, whether by implication, estoppel or otherwise, except as expressly set forth in these Terms.
5. Fees and Payment Terms
The fees for the Services and Services are set forth in the applicable Order Form or Statement of Work (the “Fees”). Unless otherwise expressly specified in the applicable Order Form or Statement of Work, Customer will pay all Fees within 30 days of the date Little Taller’s invoice to Customer. The Fees may be increased effective upon the next renewal term so long as Little Taller provides Customer with 90 days prior written notice. All payments due under these Terms will be made: (a) by check or bank wire transfer, in immediately available funds to an account designated by Little Taller or credit card, in accordance with Section 5.3; and (b) in U.S. Dollars.
5.2. Interest and Taxes
The Fees do not include sales and similar taxes levied upon the provision of the Services or the Services provided under these Terms. Customer will be responsible for such taxes other than taxes based solely on Little Taller’s net income.
5.3. Payment Card Terms
By providing Little Taller with credit card information (including account number, expiration date, card verification code, and billing address), Customer represents and warrants that all such information is complete and accurate and authorizes Little Taller to charge such credit card for all Fees that are due and payable hereunder. Little Taller will initiate periodic charges to credit card for all Fees incurred during the Subscription Term. Customer’s authorization of such recurring charges will remain effective for the duration of the Subscription Term, unless Customer notifies Little Taller in writing that Customer revokes such consent. Customer further authorizes Little Taller to receive updated credit card account information from the issuer of the credit card.
6. User Data and Security
6.1. Anonymous Usage Data
Little Taller may monitor use of the Services by its customers generally and use technical and meta data about Customer’s use of the Services gathered in an aggregate and anonymous manner in order to improve the Services. Little Taller may use, sell, and publish such information, provided that such information does not identify Customer or any Customer Material in any way. For clarity, any data Little Taller provides to third parties will only be in an aggregated and anonymous manner with sufficient other customer information such that Customer may not be identified or discovered via analysis on the aggregated data.
Little Taller will use commercially reasonable efforts to prevent any unauthorized use, access, processing, destruction, loss or disclosure of any Customer Materials stored or processed by the Services, but at all times comply with any applicable legal requirements. In the case of a confirmed unauthorized use, access, processing, destruction, loss or disclosure of any such Customer Materials by a third party (a “Security Incident”), Little Taller will notify Customer after Little Taller becomes aware of the Security Incident.
6.3. Restrictions on Certain Types of Data
Customer shall not process via, or submit to, the Services any Customer Materials that include any: (a) “personal health information,” as defined under the Health Insurance Portability and Accountability Act; (b) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state or national issued identification numbers; (c) financial account information, including bank account numbers; (d) payment card data, including credit card or debit card numbers; (e) biometric information, such as fingerprints or voiceprints; or (f) “sensitive” personal data, as defined under the EU General Data Protection Regulation, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or health-related data, sexual life, or sexual orientation.
7. Obligations of the Parties
Customer is responsible for protecting and safeguarding any passwords, API keys, user IDs or other credentials and login information (collectively, “Passwords“) that have been provided to Customer or that are generated in connection with Customer’s use of the Services. Customer will not disclose or make available Passwords to any third-party other than to End Users and will use best efforts to prevent unauthorized access to, or use of, the Passwords or the Services. Customer is fully responsible for all activities that occur in connection with the Passwords. Customer will immediately notify Little Taller in writing of any unauthorized use of the Services that comes to Customer’s attention.
7.2. Third Party Dependencies
Customer acknowledges that the Services (including the Customer Materials) are hosted and processed on a network owned and maintained by a third-party services provider. The Services may contain or otherwise use certain third-party software.
“Confidential Information” means all non-public information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) related to technical, commercial, financial, employee, or planning information disclosed in connection with these Terms and is (A) identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic, or electronic form; or (B) disclosed in non-tangible form, identified as confidential at the time of disclosure, summarized in a writing labeled as “confidential”, and delivered to the Receiving Party within 15 days after disclosure; provided, however, a failure to mark information as “Confidential” or to reduce oral/visual disclosures to writing will not preclude confidential treatment under these Terms if such information would reasonably be considered confidential based upon the nature of the information and the circumstances surrounding its disclosure. Confidential Information includes the components of the business plans, financial plans, know-how, customer information, strategies and other similar information. Confidential Information does not include information that: (a) is in or enters the public domain without breach of these Terms and through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
8.2. Use and Disclosure
The Receiving Party will maintain in confidence, during the Subscription Term and for a period of three (3) years thereafter, the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted in these Terms. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but at least reasonable care. In addition, the Receiving Party will only disclose Confidential Information disclosed by the Disclosing Party to its directors, officers, employees and contractors who have a need to know such Confidential Information in connection with these Terms and only if such directors, officers, employees and contractors are bound by confidentiality obligations no less restrictive than the non-disclosure obligations contained in this Section 8.
Customer acknowledges that any suggestions, comments or other feedback provided by Customer to Little Taller with respect to Little Taller, the Services or the Services (“Feedback”) may be used by Little Taller for the purpose of optimizing, improving, enhancing or creating derivative products; and Little Taller shall have no obligation to compensate Customer and shall not identify Customer as the source of such Feedback.
8.4. Injunctive Relief
The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information of the Disclosing Party may result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security.
9. Representations, Warranties and Remedies
9.1. General Representations and Warranties
Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; and (b) it has full corporate power and authority to execute, deliver and perform its obligations under these Terms.
9.2. Limited Services Warranty
Little Taller represents and warrants that: (a) it will perform the Services in a professional and workmanlike manner, in accordance with the Statement of Work; and (b) so long as Customer uses the Services in accordance with these Terms and the applicable Order Form, the Services will materially conform to the applicable specifications set forth in the applicable Order Form (if any) and to the documentation provided by Little Taller to Customer. If Little Taller breaches the warranty provided in Section 9.2, Little Taller’s sole liability and Customer’s exclusive remedy is for Little Taller to correct or re-perform any defective Little Taller Service at no additional cost to Customer. If Little Taller is not able to correct or re-perform in a reasonable period of time not to exceed thirty (30) days, Customer may terminate the affected Services and receive a refund of the unearned portion of any fees prepaid for the Services.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS 9.1 AND 9.2, EACH PARTY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THIS AGREEMENT, THE SERVICES, THE SERVICES AND ANY THIRD PARTY SOFTWARE OR SERVICES PROVIDED BY LITTLE TALLER UNDER THIS AGREEMENT, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE; OR (C) WARRANTIES OF NONINFRINGEMENT. THIS DISCLAIMER AND EXCLUSION APPLY EVEN IF THE EXPRESS WARRANTY AND EXCLUSIVE REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
10. Indemnification Obligations
10.1. Infringement Indemnity
Little Taller will defend, indemnify and hold harmless Customer and its directors, officers, End Users and employees (collectively, the “Customer Indemnitees”) from and against any and all third party claims, suits, actions or proceedings and any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) alleging that the Services (excluding Customer Materials), when used as permitted under these Terms, infringe any intellectual property rights of any third party. In the event of a claim pursuant to this Section 10.1, Little Taller may, at its option and expense: (a) obtain for Customer the right to continue to use the Services in accordance with these Terms; (b) substitute the allegedly infringing component for an equivalent non-infringing component; or (c) modify the Services to make them non-infringing. If (a), (b), or (c) is not obtainable on commercially reasonable terms, Little Taller may terminate these Terms, effective immediately, by written notice to Customer, and refund the unearned portion of any fees previously paid to Little Taller. Little Taller’s indemnification obligations do not extend to claims arising from or relating to: (i) any combination of the Services (or any portion thereof) by any Customer Indemnitee with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination; (ii) any modification to the Services by any Customer Indemnitees where the infringement would not have occurred but for such modification; (iii) the use of the Services by any Customer Indemnitee in a manner contrary to the terms of these Terms where the infringement would not have occurred but for such use; or (iv) the continued use of the Services after Little Taller has provided substantially equivalent non-infringing software or service. The indemnity provided in this Section 10.1 and the foregoing remedies constitute Little Taller’s sole liability and Customer’s exclusive remedy in the event of a claim pursuant to this Section 10.1.
10.2. Customer Indemnity
Customer will defend, indemnify and hold harmless Little Taller and its directors, officers, employees and agents (collectively, the “Little Taller Indemnitees”) from and against any claims and indemnify Little Taller Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of, based on or related to (a) Customer’s business operations, any Customer IP or any Customer Materials; or (b) any breach or alleged breach of Customer’s obligations under these Terms.
The indemnifying party’s indemnification obligations under this Section 10 are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party shall not alleviate an indemnifying party’s obligations under Section 10 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (b) granting the indemnifying party sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
11. Limitation of Liability
EXCEPT FOR EACH PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO LITTLE TALLER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT UNDER WHICH THE DAMAGES AROSE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS DO NOT APPLY TO CUSTOMER’S OBLIGATIONS TO REMIT ALL AMOUNTS DUE AND OWING UNDER THIS AGREEMENT.
FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, LITTLE TALLER WILL NOT BE LIABLE FOR ANY BREACH OF ANY SERVERS OR SYSTEMS, ANY HACKING, OR ANY UNAUTHORIZED DISCLOSURE OR USE OF, OR ACCESS TO, ANY CUSTOMER IP (IN ANY MEDIUM), UNLESS SUCH OCCURS AS A DIRECT RESULT OF LITTLE TALLER’S BREACH OF ANY OF ITS SECURITY OBLIGATIONS AS SET FORTH IN SECTION 6.2 (SECURITY).
12. Term, Termination and Effect of Termination
12.1. Term and Termination
The term of these Terms will commence on the Effective Date and will continue for so long as there is a then-current Order Form or Statement of Work (the “Subscription Term”). The effective term of each Order Form and Statement of Work will be set forth therein. Either party may terminate these Terms and/or any then current Order Form or Statement of Work, for cause, if the other party breaches these Terms and does not remedy such failure within 30 days after its receipt of written notice of such breach.
12.2.Suspension, Limitation or Termination
Little Taller may suspend, terminate or limit access to the Services at any time if (a) Little Taller determines that the Services are being used by Customer in violation of these Terms or applicable Law; (b) Little Taller determines that the Services are being used by Customer in an unauthorized or fraudulent manner (including any violation of Section 2 of these Terms), or that Customer has submitted fraudulent or inaccurate information to Little Taller; (c) Little Taller determines that Customer’s use of the Services adversely affects Little Taller’s equipment or service to others; or (d) a security incident or other disaster occurs that impacts the Services or the security of the Customer Materials. Little Taller will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s use of the Services in accordance with this Section 12.
12.3. Effect of Termination
Upon any expiration or termination of these Terms or any then-current Order Form: (a) all rights and licenses granted to Customer under these Terms and/or the affected Order Form will immediately terminate; (b) Customer will immediately pay to Little Taller all amounts due and payable up to the effective date of termination of these Terms; and (c) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Little Taller will delete or otherwise destroy any or all Customer Confidential Information or Customer Materials in its possession or control after thirty (30) days following the expiration or termination of these Terms; accordingly, Customer must deliver notice to Little Taller of its request for Little Taller to return or destroy such Confidential Information in accordance with Section 12.3(c) within such time period, and such request must be made in writing in an email to Compliance@LittleTaller.com. Notwithstanding any terms to the contrary in these Terms, the following Sections 2, 4, 5, 6.1, 8, 9.3, 10, 11, 12.3 and 13 will survive any termination or expiration of these Terms.
13. General Provisions
13.1. Entire Agreement
These Terms, including the Order Form(s) and Statement(s) of Work, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. In the event of any inconsistency between the provisions of these Terms and an Order Form or Statement of Work, the terms of these Terms control, provided, however, to the extent the inconsistent terms are not in conflict with the terms of this document but are in addition to those set forth herein (as permitted by Section 5), the terms of the Order Form or Statement of Work will apply. The parties may amend the terms of these Terms in accordance with Section 13.6.
13.2. Independent Contractor
Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
13.3. Governing Law and Venue
These Terms will be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of law provisions. If a party initiates any proceeding regarding these Terms, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of these Terms.
Customer hereby consents to Little Taller’s use of Customer’s name and logo on the Little Taller website and publicly available printed materials, identifying Customer as a customer of Little Taller and describing Customer’s use of the Services. Customer agrees that Little Taller may issue a press release identifying Customer as customer of Little Taller.
Neither these Terms nor any right or duty under these Terms may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, each party may assign these Terms to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise, with written notice to the other party. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
13.6. Amendments and Waivers
No modification, deletion or addition, or waiver of any rights under these Terms will be binding on a party unless made in a non-preprinted agreement clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. Unless expressly provided herein, all rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified in the Order Form or Statement of Work or at such other address as may hereafter be furnished in writing by either party to the other party. Any notice will be deemed to have been effectively received: (a) immediately upon delivery or successful confirmed email transmission to the parties to be notified; (b) one (1) day after deposit with a commercial overnight courier with tracking capabilities; or (c) five (5) days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties set forth on the Order Form or Statement of Work.
If any provision of these Terms is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
13.9 Force Majeure
Except for payments due under these Terms, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).