Last Updated: June 13, 2022
PLEASE READ THESE BLACK BOX INTELLIGENCE TERMS AND CONDITIONS (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES (AS DEFINED BELOW) OFFERED BY TDN2K, LLC DBA BLACK BOX INTELLIGENCE, A TEXAS LIMITED LIABILITY COMPANY OR THE AFFILIATED ENTITY EXECUTING THE ORDER FORM (“BLACK BOX”). BY ACCESSING OR USING THE SERVICES AND/OR EXECUTING THE ORDER FORM (AS DEFINED BELOW), YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE AGREEMENT (AS DEFINED BELOW) TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. Black Box and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”. Subject to the terms and conditions of these Terms, the Parties agree as follows:
In addition to capitalized terms that are defined anywhere in these Terms, the capitalized terms set forth in Exhibit A shall have the meanings set forth therein for the purposes of these Terms and any Order Form in which such term is used but not defined.
2.1 Services. Black Box shall provide Customer with the Services as specified in an Order Form. Services may include support services, as specified in an Order Form, such as access to data analysts for assistance with information requests or technical issues. Requests for customized or in-depth analysis shall be subject to a written agreement setting forth applicable fees. New customers will be offered on-boarding training in product usage. Any conflict between the terms and conditions set forth in these Terms and any Order Form shall be resolved in the following order: (i) the Order Form (to the extent it expressly references an intent to control over these Terms) and (ii) these Terms.
2.2 Customer Requirements. To the extent applicable to the Services purchased, no later than thirty (30) days after the Subscription Start Date of an Order Form, Customer shall commence and thereafter shall continue to submit Customer Data in accordance with the Data Submission Requirements. Customer acknowledges that any variances from the Data Submission Requirements or delays in submission of Customer Data may impact deliveries of Black Box Reports or other Services. Customer shall make reasonable efforts to respond to Black Box data inquiries and correct any inaccuracies in submitted Customer Data. Customer shall appoint an “Account Administrator” to manage online report access and set user list and report permissions. Account Administrator will also be responsible for providing accurate registration information and permission levels for Users and for creating unique login credentials for each User by selecting a password and providing an e-mail address. Customer’s Account Administrator and the Users must keep the login IDs and passwords confidential and not provide them or allow access to the Services to other individuals. Customer will be responsible for all activation, use and deactivation of login IDs and passwords, and Customer will adopt reasonable security arrangements to preserve them as confidential and standard processes for deactivating terminated users. A login ID or password may be suspended or terminated by Black Box upon reasonable evidence of possible unauthorized or improper use. Customer is responsible at its sole cost for procuring and maintaining the ability to connect to the Black Box Platform or other Services.
2.3 License Grant. Subject to the terms and conditions of this Agreement, and in consideration of the payment of Fees as set forth on the applicable Order Form (or SOW), Black Box hereby grants to Customer and its Users, solely during the Subscription Term of the applicable Order Form, a non-exclusive, non-transferable, revocable and non-sublicensable right and license to access and use the Services referenced in such Order Form solely for Customer’s internal business purposes, unless otherwise stated in an applicable Order Form. This license is restricted to use by Customer and its Users, and is subject to Usage Limits, if applicable.
2.4 Usage Audit. Black Box may inspect and audit Customer’s use of the Services at any time during the Term to assess whether the use of the Services is in accordance with the usage parameters set forth in an applicable Order Form, including the number of Users or the unit/location count. All audits will be conducted in a manner that does not interfere with Customer’s business operations. If the audit determines that Customer’s use of the Services exceeded the usage permitted by the applicable Order Form, the Parties will enter into a new Order Form to reflect the additional use of the Services with a Subscription Term coterminous with the original Order Form. Customer shall pay to Black Box all amounts due for such excess use of the Services as set forth on the new Order Form. Failure to timely pay for such excess usage may result in the suspension of the Services.
2.5 Third-Party Applications. Black Box or third-party providers may offer Third Party Applications for use in connection with the Services. Except as expressly set forth in an Order Form or in this Agreement, Black Box is not responsible for and does not warrant any such Third-Party Applications.
3. FEES; PAYMENT TERMS
3.1 Fees. Customer shall pay Black Box the fees specified in an Order Form, a SOW, or other written agreement between the Parties, in addition to reasonable expenses incurred in performing the Services (“Fees”). Fees are due when invoiced and are payable within fifteen (15) days of receipt of the invoice. Customer agrees to pay interest at 1.5% per month (or, if lower, the maximum legal rate) from the date originally due until payment is received by Black Box on all amounts thereafter. Customer’s obligation to pay Fees is non-cancellable and non-refundable. The rates in the applicable Order Form are valid for the Subscription Term set forth in the Order Form and thereafter shall be subject to an annual increases.
3.2 Suspension of Services. If any payment due under this Agreement is thirty (30) or more days overdue, Black Box may, without limiting its other rights and remedies, accelerate the unpaid fee obligations so that all such obligations become immediately due and payable, and suspend all or part of the Services until such amounts are paid in full. Black Box will provide at least ten (10) days’ prior notice that the account is overdue before suspending Services. Black Box will not exercise its rights hereinunder if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
3.3 Taxes. Irrespective of whether taxes are reflected on the Order Form or applicable invoice for Services, Customer shall be responsible for the payment of all sales, use goods and services, value-added, and similar taxes due with respect to the Services, excluding for avoidance of doubt taxes on Black Box’s income.
4.1 Confidential Information. “Confidential Information” shall mean the terms set forth in this Agreement and any Order Form, any of the Services, Customer Data and any other information disclosed by a Party (the “Disclosing Party”) that is conspicuously marked “confidential” or in a similar manner sufficient to put the other Party receiving the information (the “Receiving Party”) on notice of the claim of confidentiality or would, under the circumstances, otherwise appear to a reasonable person to be confidential or proprietary. Receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel or Users to disclose) any Confidential Information to any person or entity except to a director, officer, employee, accountants, legal advisor or consultant (collectively “Representatives”) of the Receiving Party who has a need to know such Confidential Information in the course of the performance of such Representatives’ duties for the Receiving Party, and who is bound by a duty of confidentiality no less protective than contained in this Agreement. The Receiving Party and its Representatives shall use such Confidential Information only in connection with this Agreement and for the purpose for which it was disclosed. Each Party is responsible for the actions of its Representatives and shall protect the other Party’s Confidential Information using the same degree of care as it protects its own highly confidential information, but in no event less than a reasonable degree of care. A Receiving Party shall promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the Disclosing Party in enforcing its rights.
4.2 Exclusions. The following will not be considered Confidential Information: (a) information that was already known to the Receiving Party, as shown through contemporaneous documentary evidence, without the obligation of confidentiality prior to disclosure of it to the Receiving Party by the Disclosing Party; (b) information that is or hereafter becomes generally available to and known to the public through no fault of the Receiving Party; (c) information that is independently developed by the Receiving Party without any access to or use of the Confidential Information of the Disclosing Party, as shown through contemporaneous documentary evidence; and (d) information that is disclosed with the prior written approval of the Disclosing Party.
4.3 Legal Process; Injunctive Relief.In the event disclosure of Confidential Information is required by legal process, the Receiving Party shall promptly notify the Disclosing Party of said legal process so that the Disclosing Party may seek a protective order to limit such disclosure, and the Receiving Party shall ensure that any such disclosure is limited to the information being requested. Both Parties acknowledge that any use of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the Disclosing Party may be entitled hereunder, at law or equity, the Disclosing Party may be entitled to seek an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under Applicable Law.
4.4 Publicity. Except as may be required by Applicable Law, or as otherwise permitted or expressly contemplated herein, no Party or its respective Affiliates or Representatives shall disclose to any third party the existence of this Agreement or the subject matter or terms hereof without the prior consent of the other Party hereto; provided, however, that Parties shall be permitted to (a) disclose such information to their Representatives to the extent such recipients are obligated to maintain the confidentiality of such information: (b) disclose and use such information in connection with enforcing their rights and fulfilling their obligations under this Agreement or any other agreement entered into in connection with this Agreement; and (c) utilize the other Party’s name and logo for advertising and reporting purposes during the Term with the prior approval of the other Party. No press release or public announcement related to this Agreement or the transactions contemplated herein shall be issued or made by any Party without the approval of the other Party. Customer shall not publicly post any analysis or reviews of the Services without Black Box’s prior written approval. Notwithstanding the foregoing, Black Box may disclose Confidential Information, under appropriate nondisclosure terms, to the following Representatives: auditors, accounting, financial and legal advisers, or to an existing or potential investor, acquiring company, bank, or other financial institution in connection with a merger, acquisition, financing, loan, or similar corporate transaction.
5. PROPRIETARY RIGHTS; CUSTOMER DATA; RESTRICTIONS
5.1 Ownership. Customer acknowledges and agrees that as between Black Box and Customer, all right, title and interest in and to and all Intellectual Property Rights in and to, the Services are and shall remain Black Box’s or its licensors, including all modifications thereto and configurations or derivatives thereof; Black Box’s proprietary technology used therein, including without limitation, software, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information made available to Customer by Black Box in providing the Services; and the trade dress and look and feel and template of any dashboard or reporting, including, but not limited to Black Box Reports, provided by Black Box to Customer in any form. The Black Box name, all Black Box logos, and the product names associated with the Black Box Services are trademarks of Black Box, its licensors, or Third Parties, and nothing contained in this Agreement shall be construed as conferring any rights to Customer therein. Customer shall not remove any trademark or logo from the Services, including without limitation from the Black Box Information or Black Box Reports. Black Box may, from time to time, in its sole discretion, make changes to any Service or portion thereof to the extent such changes do not materially decrease the overall functionality of the purchased Services. Subject to the terms and conditions of this Agreement, including without ,limitation the use restrictions set forth in Section 2.3 above, Black Box hereby permits Customer the right to use, copy, display, create derivative works, store, have stored or hosted, manipulate, aggregate, transmit, and distribute Black Box Reports, solely to allow Customer to exercise its rights in Black Box Reports.
5.2 Customer Data. Subject to other terms hereof, Customer retains ownership of all right, title and interest in and to all Customer Data. During the Term, Customer hereby grants to Black Box a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.2), royalty-free right to use, copy, display, create derivative works, store, have stored or hosted, manipulate, aggregate, transmit, and distribute the Customer Data solely as necessary to provide the Services to Customer. Notwithstanding the foregoing, Customer hereby agrees that Black Box may aggregate and de-identify Customer Data and may use, copy, display, create derivative works, store, have stored or hosted, manipulate, aggregate, transmit, and distribute such aggregated and de-identified data for benchmarking, normative analysis, testing and validation of Black Box’s analyses of data and otherwise for its business purposes.
5.3 Customer Restrictions. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Unauthorized use, resale, or commercial exploitation of the Services in any way is expressly prohibited. Customer shall not and shall not allow its Users or any third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Services; (b) access or use the Services in order to (i) build a competitive product or service; or (ii) for the purposes of conducting comparative analyses against other services, evaluations or product benchmarks; (c) copy, reproduce, modify, change, or alter the Services, or any part thereof; or (d) license, sell, transfer, make available, lease, or distribute, the Services to any third-party. Customer shall be liable for any breach of this Agreement by any of its Users, Affiliates or Representatives. In addition to Black Box’s other remedies hereunder, Black Box reserves the right upon notice to Customer to immediately terminate any User’s right to access the Services if such User has violated any of the restrictions contained in this Agreement. Customer is solely responsible for all Customer Data as submitted to Black Box, and Black Box does not guarantee the accuracy, integrity, or quality of such Customer Data. Neither Customer nor its Users shall use the Services to: (w) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (x) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (y) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (z) interfere with or disrupt the Services networks connected to the Services.
5.4 Feedback. Customer grants Black Box a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services (without attribution) any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or any Users relating to the operation of the Services.
5.5 Non-Solicitation. Customer agrees that during the Term and for a period of twelve (12) months after the expiration or earlier termination of the Term, without obtaining the prior written consent of Black Box neither Customer nor any of its Affiliates (each, a “Restricted Person”) shall directly or indirectly, for itself or on behalf of another, solicit for employment or otherwise induce, influence, or encourage to terminate employment with Black Box or employ, any employee of Black Box with whom the Restricted Person had contact or who became known to the Restricted Person in connection with the Services (each, a “Covered Employee”), except (a) pursuant to a general solicitation through the media that is not directed specifically to any employees of Black Box, unless such solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this Section 5.5, or (b) if Black Box terminated the employment of such Covered Employee before the Restricted Person having solicited or otherwise contacted such Covered Employee or discussed the employment or other engagement of the Covered Employee.
6. WARRANTY AND DISCLAIMERS.
6.1.1 Each Party represents, warrants, and covenants that, at all times during the term of this Agreement: (a) this Agreement constitutes a valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement, and (b) it has all corporate or limited liability company authority to enter into this Agreement and perform its obligations hereunder.
6.1.2 Black Box represents and warrants that the Services will: (a) conform in all material respects with any applicable Documentation provided by Black Box; (b) be performed in a professional and workmanlike manner; (c) the Services will be free from material defects; and (d) that Black Box will use industry standard precautions to ensure that it does not introduce any viruses, malware, or other malicious code into Customer’s systems or websites. Black Box, at its sole expense, will use commercially reasonable efforts to correct any material non-conformance after Black Box receives written notice from Customer that describes the non-conformance in detail. Black Box’s warranty obligations are expressly subject to: (a) the Services being used in accordance with this Agreement, the applicable Order Form, the Documentation, the Data Submission Requirements, and any other instructions provided by Black Box; and (b) Customer providing written notice to Black Box of any alleged breach of such warranty promptly after Customer becomes aware of such breach. Customer’s exclusive remedies for a breach of Black Box’s warranties described in this Sections 6.
6.1.3 Customer represents and warrants to Black Box that the Customer owns all rights, title, and interest in and to Customer Data, that Customer has otherwise secured all necessary rights in and to the Customer Data as may be necessary to permit the access, use and distribution thereof as contemplated by the Agreement and Customer shall ensure its timely and complete compliance with Data Submission Requirements. In the event Customer fails to comply with Black Box’s Data Submission Requirements, at any one time or on an ongoing basis during the Subscription Term, Black Box may suspend the Services, in part or in their entirety, without limiting its other rights and remedies, upon providing five (5) days’ prior notice of such suspension to Customer. In the event Customer fails to promptly comply with the Data Submission Requirements per Black Box’s request, Black Box may increase, in its reasonable discretion, the Fees payable for the remainder of the Subscription Term reflecting the changed terms.
6.2 Compliance with Law. Each Party is responsible for complying with general laws that apply to their respective businesses. Black Box represents and warrants that Black Box’s provision of the Services does not violate applicable law, rule, or regulation, provided that Black Box’s sole liability and Customer’s sole and exclusive remedy in connection with this warranty shall be as set out in Section 8.1.B.
6.3 No Other Warranty. Customer recognizes that data and information provided with regard to the Services is based on Black Box compilation, aggregation, and analysis of data from a variety of sources that may not be under Black Box’s control, and that Black Box cannot guarantee the accuracy of such data and information. Without limiting the foregoing, except as expressly set forth in this Agreement, BLACK BOX DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, TO CUSTOMER OR TO ANY THIRD PARTY, CONCERNING THE SERVICES PROVIDED HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT. BLACK BOX DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS, OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE SYSTEM THROUGH WHICH THE BLACK BOX SOLUTION IS MADE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7. LIMITATION OF LIABILITY.
7.1 Consequential Damage Waiver. EXCEPT IN CONNECTION WITH AN EXCLUDED CLAIM OR TO THE EXTENT ARISING IN CONNECTION WITH A THIRD PARTY CLAIM, NEITHER BLACK BOX OR CUSTOMER SHALL HAVE ANY LIABILITY UNDER THIS AGREEMENT, ORDER FORM, SOW, OR OTHERWISE IN CONNECTION WITH THE PROVISION OR USE OF THE SERVICES, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, DAMAGES FOR LOSS OF BUSINESS, REVENUES, OR BUSINESS INFORMATION, OR DAMAGES FOR BUSINESS INTERRUPTION, COST OF COVER OR COST OF CAPITAL, EVEN IF BLACK BOX OR CUSTOMER HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Limitation of Liability. Except for (a) a Party’s indemnification obligations for claims related to breach of confidentiality herein; and (b) Customer’s breach of Sections 5.3 or 10.2 (collectively, the “Excluded Claims”), the maximum aggregate liability of either Party arising out of or relating to this Agreement or any Order Form, whether in contract, tort (including negligence) or any other form or cause of action, shall be limited to the total fees paid or payable by Customer for the affected portion of the Services under the applicable Order Form during the twelve-month period immediately prior to the date the cause of action has accrued.
8.1 Black Box Indemnification.
A. Black Box shall defend, indemnify, and hold harmless Customer and its Affiliates (“Customer Indemnified Party”), against any damages awarded by a court or amounts paid in settlement arising directly from lawsuits, threats of lawsuits, and other written allegations made or brought by a third party against the Customer Indemnified Party asserting that that the Services as provided by Black Box infringes any copyright, patent, trademark, or trade secret of the third party (“Claim”). Notwithstanding the foregoing, Black Box shall have no liability for any Claim arising from (a) any Customer Indemnified Party, third party or public content, data, software, equipment, components, or services or any other content, data, software, equipment or component not generated by Black Box, (b) any combination of the Services with content, data, software, equipment, components, services, tools or intellectual property not provided by Black Box, if the cause of action would not exist but for such combination, (c) any modification of the Services where such cause of action would not exist but for such modification, (d) any unauthorized use of the Services, (e) willful infringement of the Customer Indemnified Party, or (f) the Customer Indemnified Party’s continued use of the Services in any form previously provided to the Indemnified Party after Black Box has provided a replacement or modified form to the Indemnified Party.
B. Black Box shall defend, indemnify and hold harmless Customer Indemnified Parties, against any damages awarded by a court or amounts paid in settlement arising directly from lawsuits, threats of lawsuits, and other written allegations made or brought by a third party against the Customer Indemnified Party (1) alleging that any Services as provided by Black Box violate applicable laws, rules or regulations; or (2) resulting from Black Box’s use or disclosure of Customer’s Confidential Information in violation of this Agreement; in each case B(1) and (2) except to the extent such violation is the result of action or inaction by Customer, User(s), or a third party under Customer’s control or who has been provided access to the Services by or on behalf of Customer.
8.2 Customer Indemnification. Customer shall indemnify, defend, and hold Black Box and its Affiliates harmless from and against any damages awarded by a court or amounts paid in settlement arising directly from lawsuits, threats of lawsuits, and other written allegations made or brought by any third party against Black Box or any of its Affiliates to the extent arising out of or resulting from: (i) Customer Data or any use thereof allegedly or actually infringing the intellectual property rights or proprietary rights of others, or Customer’s alleged or actual failure to provide necessary notice, or obtain necessary consent, from relevant individuals, (ii) Customer’s breach of the Excluded Claims; (iii) Customer’s permitted disclosure of Black Box Services pursuant to this Agreement; or (iv) Customer’s breach or violation of any applicable law, rule, or regulation including without limitation any privacy law, rule, regulation or industry body guidelines applicable to Customer in connection with the Agreement.
8.3 Indemnification Procedure. The indemnified Party shall (a) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (b) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).
9.1 Term. This Agreement will commence on the Effective Date and will continue in effect so long as an Order Form is in effect (“Term”). The initial subscription term of the Services procured by Customer shall be as set forth in the applicable Order Form (“Subscription Term”). Except as otherwise specified in an Order Form, the Subscription Term shall automatically renew for successive one (1) year terms (or for the period of time defined in the Order Form) unless either Party gives the other notice of non-renewal at last 30 days prior to the end of the relevant Subscription Term.
9.2.1 For Breach. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form: (a) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice thereof from the other Party, or (b) immediately (1) if the other Party is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing, or (2) Customer breaches or otherwise violates an Excluded Claim.
9.2.2 For Convenience. Provided Customer is in compliance with this Agreement, Customer may terminate this Agreement or any Order Form within thirty (30) days of written notice to Black Box subject to Customer having paid Black Box all outstanding Fees covering the remainder of the Subscription Term of all Order Forms.
9.2.3 Other. This Agreement and an Order Form hereunder may also be terminated immediately by Black Box if Black Box is terminating such Service to all Customers then subscribing to such Service (in which case Customer shall be entitled to a refund of any prepaid, unused Fees paid hereunder). Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms.
9.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Black Box shall no longer provide the applicable Services to Customer, Customer shall cease and cause its Users to cease using the Services and, to the extent that any Fees hereunder had accrued prior to the termination date, Customer shall pay such Fees to Black Box immediately upon termination. Customer agrees that following termination of Customer’s account and/or use of the Services, Black Box may immediately deactivate and delete Customer’s account. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
9.4 Return of Confidential Information. Black Box shall return or destroy all Confidential Information in Black Box’s possession or control. Notwithstanding anything to the contrary in this Agreement, (a) Black Box may retain one (1) copy of the Confidential Information as required under Applicable Law or Black Box’s established internal compliance policy or procedure, provided that any materials so retained will remain subject to the obligations of confidentiality, non-disclosure and non-use provisions herein, and (b) Black Box will not be required to destroy any electronic files containing Confidential Information that have been created pursuant to its established automatic archiving or backup procedures.
10. SECURITY AND PRIVACY
10.1 Security of Customer Data. Black Box shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the Customer Data and shall promptly notify Customer upon Black Box becoming aware of an unauthorized exposure of Customer Data. The Parties shall co-operate to take such reasonable commercial steps to assist with regard to the mitigation and remediation of any such unauthorized exposure, if necessary.
10.2 Privacy. Unless otherwise stated herein or in an Order Form, the Parties agree as follows: (a) the Services performed under this Agreement will not require Black Box’s access or use of any personally identifiable information (“PII“) of Customer including, without limitation (i) financial information such as credit or debit card numbers, and government identification information such as passport or Social Security numbers, and/or (ii) any biometric or protected health information (PHI) as defined by the Health Information Technology for Economic and Clinical Health Act, and (b) Customer will not provide any PII to Black Box (or upload any PII into the Services) in connection with the Services except to the extent such PII is necessary for Customer to use or access the Services. To the extent that the Customer or any of its Users provide any PII to Black Box (or upload any PII into the Services), except for PII necessary for Customer to use or access the Services, then Customer (and not Black Box) shall be solely responsible for all liability or obligations with respect to such PII under any and all circumstances including but not limited to any data breach.
11. ADDITIONAL TERMS APPLICABLE TO ATH SERVICES. To the extent Customer is granted access to ATH Services, the following additional “ATH Terms” shall apply:
11.1 Links. ATH Services may include links to certain websites, materials, or content developed by Third Parties. Black Box shall not be responsible for the contents of any such linked material. The inclusion of any link does not imply endorsement by Black Box of such material and Black Box shall not be held liable in respect of any links contained therein. Use of any such linked material shall be at Customer’s own risk. Black Box reserves the right, in its sole and absolute discretion, to discontinue links to any other material at any time and for any reason.
11.2 Enforcing security. Actual or attempted unauthorized use of any of the ATH Services may result in the institution by Black Box of criminal and/or civil prosecution. For Customer’s protection, Black Box reserves the right to view, monitor, and record activity of the ATH Services without notice or further permission, to the fullest extent permitted by Applicable Law, and only in accordance with this Agreement. This right extends to Black Box’s review of tracking activity and details pertaining to claimed violations by Customer. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity in connection with the ATH Services.
11.3 Customer Responsibilities. Customer is solely responsible for the Customer Data that Customer or its Users upload, publish, display, link to, or otherwise make available via the ATH Services, and Customer agrees that Black Box is only acting as a passive conduit for the online distribution and publication of the Customer Data and the online display of Mentions. Black Box will not review, share, distribute, or reference any Customer Data or Mentions except as provided herein, as may be required by law or without providing prior written or oral consent. Notwithstanding the foregoing, Black Box retains the authority to remove any Customer Data uploaded that it deems in violation of this Agreement, at its sole discretion.
11.4 Acceptable Use. Customer shall (a) be responsible for its and its Users’ compliance with this Agreement, including the Fair Use Policy, set out below; (b) be solely responsible for the accuracy, quality, integrity, and legality of Customer Data and of the means by which Customer acquired or generated Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the ATH Services, including keeping passwords and user names confidential and not permitting any third party to access or use any User’ user name, password, or account for the ATH Services; (d) be solely responsible and liable for all activity conducted through Customer’s account in connection with the ATH Services; (e) promptly notify Black Box if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any User’s) user name, password, or account; (f) use the ATH Services only in accordance with Applicable Laws; (g) comply in all respects with all the terms of service of the Supported Platforms, as they are amended over time, such as:
- the Facebook Terms of Service published at: https://www.facebook.com/terms.php and https://www.facebook.com/policies_center/pages_groups_events,
- the Instagram Terms of Service published at: https://help.instagram.com/581066165581870,
- the Twitter Terms of Service published at: https://twitter.com/en/tos,
- the Google Terms of Service published at: https://policies.google.com/terms.
Disclosure: Black Box’s use and transfer of any other app of information received from Google APIs will adhere to Google’s Terms of Service and Google API Services User Data Policy including the Limited Use Requirements.
- Connecting Black Box/AreTheyHappy to Customer Gmail accounts will adhere to Google’s Limited Use Requirements described in the Google API Services: User Data Policy.
- or any terms of service issued by any social network a User may manage using the ATH Service.
Without limiting the foregoing, Customer represents and warrants that it will not be using the ATH Services to access or use content from Twitter for any unlawful, discriminatory purposes and/or profiling based on sensitive categories of information prohibited by law (see Section VII.A. User Protection of the Twitter Developer Agreement published at https://developer.twitter.com/en/developer-terms/agreement). Among other things, Customer must not (a) make the ATH Services available to anyone other than to Customer’s Users; (b) use the ATH Services to store or transmit any content, including Customer Content, that may be infringe civil or criminal laws, be defamatory, racist, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of Applicable Law; (c) upload to, or transmit from, the ATH Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (d) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the ATH Service, any third-party use of the ATH Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by Applicable Law); (e) access the ATH Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the ATH Services; (h) attempt to gain unauthorized access to the ATH Services or its related systems or networks; or (f) authorize, permit, or encourage any Third Party to do any of the above.
11.5 Fair Use Policy. Black Box may suspend Customer access to ATH Services for abusive practices that degrade the performance of ATH Services for Customer and/or other customers of Black Box or AreTheyHappy. Black Box may also suspend Customer access to the ATH Service if the activity of any of Customer’s Social Profiles is beyond acceptable limits and may degrade the performance of ATH Services for Customer and/or other customers of Black Box or AreTheyHappy. What is “beyond acceptable limits” is solely based on Black Box’s sole discretion and will be based on the impact of the concerned activity on its technical infrastructure. Customer understands that by using Black Box, Customer or its Users may be exposed to third-party content, information that might be unlawful, offensive, indecent, harmful, inaccurate or otherwise inappropriate. Black Box does not own, control, or review third-party content. Black Box has no obligation to preview, verify, flag, modify, filter, or remove any third-party content, even if requested to do so. However, Black Box may do so in its sole discretion. Customer and its Users’ use of social media integrations is at their sole risk, and Black Box shall not be liable to Customer, its Users or any Third Party in relation to third-party content.
11.6 Changes to ATH Terms. Black Box reserves the right to update and change any or all of ATH Terms, in its sole discretion. In such event, Customer will be notified of any changes that materially impact these ATH Terms. Continued use of the ATH Services after any such changes have been made shall constitute Customer’s consent to such changes. If a change has a material adverse impact on Customer, Black Box will delay applying the change to Customer until the then current Subscription Term ends.
12. GENERAL PROVISIONS
12.1 Entire Agreement and Controlling Documents. This Agreement, including all Order Forms, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable Order Form and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form.
12.2 Assignment. This Agreement is for the benefit of and binding on the Parties and their permitted successors and assigns. Neither Party may, voluntarily or involuntarily, assign any of its rights under this Agreement to any Party without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, Black Box may assign or transfer this Agreement without such consent to an Affiliate or to the surviving or successor entity in the event of a merger, stock sale, or sale of substantially all assets. Any purported assignment in violation of this paragraph shall be null and void. Black Box may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Black Box shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
12.3 Governing Law. This Agreement shall be governed by the laws of the State of Texas, United States of America, without regard to its choice of law provisions. The Parties agree to the exclusive personal jurisdiction of the State and Federal courts located in Collin County, Texas for purposes of determining all disputes arising in connection with this Agreement and hereby waive all objections to venue in those courts.
12.4 Relationship of the Parties. The Parties to this Agreement are independent contractors and neither shall have authority to bind or obligate the other.
12.5 Force Majeure. In the event either Party is delayed in or prevented from performing any act required hereunder (except for Customer’s obligation to make any payment hereunder) due to failure of any external communication system or on- or off-line computing equipment, labor troubles, inability to procure materials, governmental or judicial orders, acts of God, acts of terrorism, weather conditions, pandemics, third party interference or other similar reason (in each case to the extent beyond its reasonable control), then performance of such act shall be excused for the period of such delay.
12.6 Notices. Any notice or request given hereunder shall be in writing and deemed given on the date received when delivered personally or by nationally recognized delivery service (i) if to Black Box at TDn2K, LLC dba Black Box Intelligence, 14785 Preston Road, Suite 290, Dallas, Texas, 75254, Attention: CEO; and (ii) if to Customer, at the contact address set forth on an Order Form or such other address as may be provided in writing.
12.7 Counterpart and Facsimile Execution. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument. Signatures to this Agreement may be transmitted by DocuSign, facsimile, by electronic mail and such signatures shall be deemed to bind each Party as if they were original signatures.
12.8 Waiver and Severability. No modification or waiver of this Agreement will be binding, unless in writing and signed by the authorized representatives of the Parties. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
1.1 “Affiliates” means any corporation, partnership or other entity that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the ability to vote greater than fifty (50%) percent or more of the voting securities of an entity, or otherwise having the power to directly manage such entity with respect to matters which are the subject of this Agreement.
1.2 “Agreement” means these Terms, dated as of the Effective Date, by and between Black Box and the Customer, and any Order Form entered into pursuant to this Agreement.
1.3 “Black Box Analysis” means Black Box’s proprietary benchmarking, normative analysis, testing/validation of Black Box’s analyses of data, in any form.
1.4 “Black Box Platform” means Black Box’s proprietary software application systems and related databases.
1.5 “Black Box Reports” means certain reports and information provided to Customer as part of a Black Box product or offering, as set forth in an Order Form.
1.6 “Black Box Information” means the data and information that is provided to, used, or processed by Black Box using Black Box Analysis as part of the Services. Black Box Information excludes any Customer Data.
1.7 “Consulting Services” means certain professional services to be provided by Black Box, if and as specified in an Order Form and/or a SOW.
1.8 “Customer” means the purchasing entity identified in the Order Form.
1.9 “Customer Data” means data, information or materials submitted by Customer (or on Customer’s behalf) to Black Box and/or the Services or collected from Customer websites using for use or in connection with the Services. Customer Data excludes any Black Box Information or information available to the public or available on public websites.
1.10 “Data Submission Requirements” means the documentation provided by Black Box to Customer or its representative setting forth specific guidelines, requirements and frequency obligations concerning the submission of Customer Data in connection with the Services.
1.11 “Documentation” means the documentation for the Services that may be supplied by Black Box to assist its customers in the on-boarding and/or use of the Services.
1.12 The “Effective Date” of this Agreement is the date that is the earlier of (a) the Effective Date of the initial Order Form referencing this Agreement and (b) Customer’s initial access to the Services through any Black Box online registration, provisioning, or order process.
1.13 “Intellectual Property Rights” means patents, copyrights, trade secrets, trademarks, service marks, trade names, design rights, internet domain names, and other similar protected or proprietary rights of Black Box or its licensors in any country throughout the world, and applications and registrations with respect to any of the foregoing.
1.14 “Representative” has the meaning ascribed to it in Section 4.1.
1.15 “Order Form” means an Order Form referencing this Agreement entered into by both Parties that (i) identifies the Services ordered by Customer from Black Box or its Affiliate, (ii) sets forth the prices for the Services to be paid by Customer, and (iii) other restrictions or terms applicable to such Services or as otherwise required by Black Box. An Order Form may also identify Consulting Services to be provided by Black Box to Customer.
1.16 “Services” means each product and service offering of Black Box or its Affiliates, as updated from time to time, including, without limitation, access to the Black Box Platform, Black Box Information, and Black Box Reports, Consulting Services, and other related services provided by Black Box or its Affiliates to Customer pursuant to this Agreement and as specified on an Order Form.
1.17 “SOW” means a statement of work referencing this Agreement entered into by both Parties that identifies Consulting Services to be provided by Black Box, sets forth the price for the Consulting Services and other applicable terms and conditions.
1.18 “Third Party Applications” means applications, integrations, implementation, and services, provided by a party other than Black Box that may interoperate or integrate with the Services.
1.19 “Usage Limits” means usage parameters set forth in an Order Form, including the maximum number of Users, as applicable, that may access the Services, and the unit/location count.
1.20 “Users” mean employees of Customer who are authorized by Customer, are permitted by Black Box or its Affiliates, to use or access the Services. Users do not include employees of third parties (for example, affiliated companies of Customer or restaurant brands affiliated with Customer) unless such third parties are expressly specified as permitted Users of the Services in the applicable Order Form.