Privacy Policy

Hotel Engine Privacy Policy
Last Updated: January 13, 2023

Hotel Engine, Inc. and its affiliates (“Hotel Engine”, “we”, “us” or “our”) is committed to protecting your privacy. We prepared this privacy policy (“Privacy Policy”) to describe how we collect, use, protect, and disclose Personal Data from users (“Users” or “you”) of our website https://www.hotelengine.com/ (“Site”), our mobile application (“App”), and the services we provide through the Site or the Apps (collectively, the “Services”). Any capitalized terms not defined herein are defined in our Terms of Use Agreement located at https://www.hotelengine.com/terms. Please read the Privacy Policy carefully to understand our practices regarding your Personal Data and how we will treat it.

Who are we? For the purpose of applicable data protection legislation, the data controller of your Personal Data is Hotel Engine, Inc. at 950 S Cherry St, 10th Floor, Denver, CO 80246, USA. You can contact us by emailing [email protected].
What is personal data? “Personal Data” means any information relating to an identified or identifiable natural person, including, for example, your name, postal address, email address and telephone number.
Why do we need your personal data? We need certain Personal Data for several purposes described below, such as to deliver the Services to you.

1 . Types of Personal Data We Collect

We collect and process Personal Data about you or your devices from various sources described below. Where applicable, we indicate whether and why you must provide us with your personal data, as well as the consequences of failing to do so at the time the data is collected.

1.1 Personal Data You Provide to Us
- Account information. We collect Personal Data from you, such as your first and last name, e-mail address, phone number, and password when you create a Member or Personal Account or otherwise register as a User of the Services.
- Booking history. Depending on the booking that you complete through the Services, we collect the name(s) of (the) traveler(s), email address, phone number, and any travel or accommodation preferences (such as accessibility requirements)
- Region and language. When you use our Services, we may ask you to select your region and language to provide you with the relevant Services.
- Payments and billing information. To allow you to purchase a booking via our Services, we may additionally ask you to provide postal and billing address, phone number, and VAT number (in order to apply VAT discounts). We will not collect or store the credit or debit card or other payment information that you provide to complete a booking via the Services. These payments are facilitated by a third-party payment services provider. You will be providing credit or debit card information directly to the payment service provider which operates a secure server to process payment details, encrypting your credit or debit card information and authorizing payment. We use payment processor(s), such as Elavon and/or Stripe, to process all payments through the Services. Hotel Engine does not store your credit card details. Please consult the applicable payment service provider’s privacy policy to learn about the processing of your Personal Data in that context.
- Communications. If you provide us feedback or contact us via e-mail or phone call, we will collect your name and e-mail address, as well as any other content included in the e-mail, in order to send you a reply.
- User Testimonials. If you submit a testimonial about our Services, we may use and disclose it with your first, last name, picture, and job title subject to your consent.
- Newsletter. If you sign up to receive emails or information about our Services, then we will collect Personal Data from you, such as email address. When we send you emails, we may track whether you open them to learn how to deliver a better customer experience and improve our Services.
- Careers. If you decide to apply for a job with us, you may submit your contact information and your resume to us via our Services. We will collect the Personal Data you choose to provide us as part of your job application, such as your contact information, current employment information, and other information you choose to submit with your application and on your resume. If you apply for a job with us through a third-party platform (such as LinkedIn or Greenhouse), we will collect the Personal Data you make available to us through such third-party platform.
- Other Collections. We ask that you not send or disclose to us any sensitive Personal Data (e.g., social security numbers, information related to racial or ethnic origin, political opinions, religion or other beliefs, health, biometrics or genetic characteristics, criminal background, or trade union membership) on or through the Services.
1.2 Personal Data We Collect When You Use Our Services
1. IP Address. To make our Services more useful to you, our servers (which may be hosted by a third-party service provider) collect Personal Data from you, including your browser type, operating system, Internet Protocol (“IP”) address (a number that is automatically assigned to your computer when you use the Internet, which may vary from session to session), domain name, and/or a date/time stamp for your visit. We may associate your IP address with your account and your other Personal Data.
2. Precise Location. While the App is in use, it may collect your precise location using GPS on your mobile device and possibly through other signals such as nearby wi-fi access points, or Bluetooth-enabled devices. We may use this Personal Data to, for example, determine whether there are Hotels near you.
3. Log Files. As is true of most websites, we gather certain Personal Data automatically and store it in log files. This Personal Data includes IP addresses, browser type, Internet service provider (“ISP”), referring/exit pages, operating system, date/time stamp, and clickstream data. We use this Personal Data to analyze trends, administer the Services, track users’ movements around the Site or the App, gather demographic information about our user base as a whole, and better tailor our Services to our users’ needs. For example, some of the Personal Data may be collected so that when you visit the Site or use the App again, it will recognize you and the information could then be used to serve advertisements and other information appropriate to your interests.
4. Cookies. Like many online services, we use Cookies to collect Personal Data. “Cookies” are small pieces of information that a website sends to your computer’s hard drive while you are viewing the website. We may use both session Cookies (which expire once you close your web browser) and persistent Cookies (which stay on your computer until you delete them) to provide you with a more personal and interactive experience of our Services.We use two broad categories of Cookies : (1) first party Cookies, served directly by us to your computer or mobile device, which are used only by us to recognize your computer or mobile device when it revisits our Services; and (2) third party Cookies , which are served by service providers on our Services, and can be used by such service providers to recognize your computer or mobile device when it visits other websites. Our Service uses the following types of Cookies for the purposes set out below:

- - Essential Cookies
    These Cookies are essential to provide you with our Services and to enable you to use some of the features. For example, they help the content of the pages you request load quickly. Without these Cookies, the services that you have asked for cannot be provided, and we only use these Cookies to provide you with those services. We use the following essential Cookies:
    - Login Information: This reduced the number of times you are required to login to the Service
    - Chat: This allows you to use our chat functionality in order to communicate about the Service
    - Opt In/Out Consent: Prevent the cookie banner from re-appearing after you’ve chosen your preferences
  - Functional Cookies
    These Cookies allow our Services to remember choices you make when you use our Services, such as remembering your language preferences, remembering your login details and remembering the changes you make to other parts of our Services which you can customize. The purpose of these Cookies is to provide you with a more personal experience and to avoid you having to re-enter your preferences every time you visit our Services. We use the following functionality Cookies:

- - - Vimeo: Allows videos to play on our website
    - Hubspot: Enables the service to track a visitor’s identity when they sign up for the platform
  - Analytics and Performance Cookies
    These Cookies are used to collect information about traffic to our Services and how users use our Services. The information is aggregated. It includes the number of visitors to our Services, the websites that referred them to our Services, the pages they visited on our Services, what time of day they visited our Services, whether they have visited our Services before, and other similar information. We use this Personal Data to help operate our Services more efficiently, to gather broad demographic information and to monitor the level of activity on our Services.We may use third-party analytics providers (like Google Analytics) to help analyze how users use the Services. These analytics providers use Cookies and other technologies to collect information such as how often users use the Services, what pages they visit, and what other sites they used prior to coming to the Site. We use the information we get from these providers only to improve the Services. You can find out more information about Google Analytics Cookies here: https://developers.google.com/analytics/resources/concepts/gaConceptsCookies You can find out more about how Google protects your data here: http://www.google.com/analytics/learn/privacy.html. You can prevent the use of Google Analytics relating to your use of Services by downloading and installing the browser plugin available via this link: http://tools.google.com/dlpage/gaoptout?hl=en-GBx We use the following analytics and performance Cookies:
    - Google Analytics: Understand traffic and how users utilize our service
    - Amplitude: We use amplitude in order to better understand our users’ needs and optimize the service and experience.
    - AB Tasty: We use AB Tasty to improve the user experience delivered on our site
  - Targeted and advertising Cookies
    These Cookies track your browsing habits to enable us to show advertising which is more likely to be of interest to you. These Cookies use information about your browsing history to group you with other users who have similar interests. Based on that Personal Data, and with our permission, third party advertisers can place Cookies to enable them to show ads which may be relevant to your interests while you are on third party websites.To learn more about each category of cookie you can visit our cookie consent tool by clicking on the cookie banner on our webpage.You can typically remove or reject Cookies via your browser settings. In order to do this, follow the instructions provided by your browser (usually located within the “settings,” “help” “tools” or “edit” facility). Many browsers are set to accept Cookies until you change your settings. Further information about Cookies, including how to see what Cookies have been set on your computer or mobile device and how to manage and delete them, visit www.allaboutcookies.org and www.youronlinechoices.com.If you do not accept our Cookies, you may experience some inconvenience in your use of our Services. For example, we may not be able to recognize your computer or mobile device and you may need to log in every time you visit our Services.
- 1.3 Personal Data Collected From Other Sources
  1. Invitation from Administrators. If you are a User who has been invited to use the Services by an Administrator, your Administrator may provide us with your name and email address to facilitate such invitation.
  2. Third-Party Services. You may also post photos, comments, or reviews on our pages available through third-party platforms, including Facebook, Twitter, or LinkedIn. If you do so, we and other users on those third-party platforms may be able to view the Personal Data you make available through these third-party platforms.
  3. Social Media Cookies. These Cookies are used when you share information using a social media sharing button or “like” button on Services or you link your account or engage with our content on or through a social networking website such as Facebook and Twitter. The social network will record that you have done this.

2. Use of Your Personal Data

2.1 To provide the Services. We collect Personal Data to provide the Services to you, enable your use of the Services, respond to requests that you make, or to aid us in serving you better, including:
1. Facilitate the creation of and to secure your Member or Personal Account.
2. Complete Confirmed Bookings you make through the Services.
3. Manage pending and Confirmed Bookings and plan future bookings or benefit from other features only available to account holders, such as incentives or other benefits.
4. To identify you as a User in our system.
5. To provide the Services you request, including customer support and troubleshooting.
6. To send you a welcome e-mail to verify ownership of the e-mail address provided when your Member or Personal Account was created; and
7. To send you administrative e-mail notifications, such as security or support and maintenance advisories.
8. To keep our Services safe and secure, such as to protect against and prevent fraud and cyber threats, unauthorized transactions, claims and other liabilities, and maintain the integrity of our Services.
9. For marketing purposes, such as developing and providing promotional and advertising materials that may be useful, relevant, valuable, or otherwise of interest to you. If you send us a testimonial about our Services, we may use and disclose it (including your first and last name) to promote our Services. However, we will obtain your consent prior to posting your full name along with the testimonial.
10. To personalize your experience on our Services such as presenting tailored content. For example, we may use your email address and your interaction with our Site to analyze your preferences and provide you with tailored content and the most relevant offers, recommendations, and email communications.
11. To understand and analyze how you use our Services and develop new products, services, and features. For example, we de-identify and aggregate Personal Data collected through our Services to improve Site navigation.
12. For compliance purposes, including enforcing our legal rights, or as may be required by applicable laws and regulations or requested by any judicial process or governmental agency.
13. For other purposes for which we provide specific notice at the time the Personal Data is collected.

3. Legal Bases for Processing European Personal Data
If you are located in the European Economic Area (“EEA”) or the United Kingdom, we only process your Personal Data when we have a valid “legal basis,” including as set forth below:

Consent. You have consented to the use of your Personal Data. For example, we may process your Personal Data to send you marketing communications or to use Cookies where you have consented to such use.
Contractual Necessity. We need your Personal Data to provide you with our Services. For example, we may need to process your Personal Data to complete bookings, process payments and respond to your inquiries or requests.
Compliance with a Legal Obligation. We have a legal obligation to use your Personal Data. For example, we may process your Personal Data to comply with tax, labor and accounting obligations.
Legitimate Interests. We or a third party have a legitimate interest in using your Personal Data. Specifically, we have a legitimate interest in using your Personal Data for product development and internal analytics purposes, and otherwise to improve the safety, security, and performance of our Services.

4. Disclosure of Your Personal Data

We disclose your Personal Data as described below:

Third-Party Service Providers. We may share your Personal Data with third- party service providers, for example: to Suppliers in connection with your Confirmed Booking of Hotels through the Site, directly to Hotels in connection with your Confirmed Booking, to otherwise provide you with the Services; to conduct quality assurance testing; to facilitate creation of Member or Personal Accounts; and to provide technical support. Hotel Engine may use Plaid Technologies, Inc. (“Plaid”) to verify your bank account and confirm your bank account balance prior to approving an ACH transaction. Hotel Engine only shares your Personal Data with Plaid in accordance with this Privacy Policy. Information shared with Plaid is treated by Plaid in accordance with its Privacy Policy, available at https://plaid.com/legal/.
Corporate Customers. If your Member or Personal Account is associated with a Corporate Customer, we may share your Personal Data with such Corporate Customer for billing and administrative purposes. Your Personal Data may also be shared with any Administrator who has been granted access to your Member or Personal Account either by the related Corporate Customer or through your acceptance of an invitation to the Services from such Administrator.
Affiliates. We may share some or all of your Personal Data with our subsidiaries, joint ventures, or other companies under a common control (“Affiliates”), in which case we will require our Affiliates to honor this Privacy Policy.
Corporate Restructuring. We may share some or all of your Personal Data in connection with or during negotiation of any merger, financing, acquisition or dissolution transaction or proceeding involving sale, transfer, divestiture, or disclosure of all or a portion of our business or assets. In the event of an insolvency, bankruptcy, or receivership, Personal Data may also be transferred as a business asset. If another company acquires our shares, business, or assets, that company will possess the Personal Data collected by us and will assume the rights and obligations regarding your Personal Data as described in this Privacy Policy.
Third Parties for Marketing. Hotel Engine does not disclose Personal Data to third parties for marketing purposes.
NOTICE TO CALIFORNIA RESIDENTS – YOUR CALIFORNIA PRIVACY RIGHTS. (AS PROVIDED BY CALIFORNIA CIVIL CODE SECTION 1798.83) A CALIFORNIA RESIDENT WHO HAS PROVIDED PERSONAL INFORMATION TO A BUSINESS WITH WHOM HE/SHE HAS ESTABLISHED A BUSINESS RELATIONSHIP FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES (A “CALIFORNIA CUSTOMER”) MAY REQUEST INFORMATION ABOUT WHETHER THE BUSINESS HAS DISCLOSED PERSONAL INFORMATION TO ANY THIRD PARTIES FOR THE THIRD PARTIES’ DIRECT MARKETING PURPOSES. IN GENERAL, IF THE BUSINESS HAS MADE SUCH A DISCLOSURE OF PERSONAL INFORMATION, UPON RECEIPT OF A REQUEST BY A CALIFORNIA CUSTOMER, THE BUSINESS IS REQUIRED TO PROVIDE A LIST OF ALL THIRD PARTIES TO WHOM PERSONAL INFORMATION WAS DISCLOSED IN THE PRECEDING CALENDAR YEAR, AS WELL AS A LIST OF THE CATEGORIES OF PERSONAL INFORMATION THAT WERE DISCLOSED. CALIFORNIA CUSTOMERS MAY REQUEST FURTHER INFORMATION ABOUT OUR COMPLIANCE WITH THIS LAW BY E-MAILING [email protected]. PLEASE NOTE THAT WE ARE REQUIRED TO RESPOND TO ONE REQUEST PER CALIFORNIA CUSTOMER EACH YEAR AND WE ARE NOT REQUIRED TO RESPOND TO REQUESTS MADE BY MEANS OTHER THAN THROUGH THIS E-MAIL ADDRESS.
Other Disclosures. Hotel Engine may disclose Personal Data (a) in connection with any legal investigation; (b) to comply with relevant laws or to respond to subpoenas or warrants served on Hotel Engine; (c) to protect or defend the rights or property of Hotel Engine or users of the Services; and/or (d) to investigate or assist in preventing any violation or potential violation of the law, this Privacy Policy, or our Terms of Use Agreement.
Consent. We may also disclose Personal Data from or about you or your devices with your permission.

5. International Transfers
The Services are hosted in the United States of America and subject to applicable U.S. Federal and state laws, rules, and regulations. Your Personal Data may be transferred to, stored at and processed by us and our affiliates and other third parties outside the country in which you reside, including, but not limited to the United States and the Philippines, where data protection and privacy regulations may not offer the same level of protection as in your country. If you are located in the EEA, UK or Switzerland, we will comply with applicable EEA, UK and Swiss data protection law when transferring your Personal Data outside of those jurisdictions. We may transfer your Personal Data to countries which have been found to provide adequate protection by the EU Commission or UK government (as relevant), use contractual protections for the transfer of personal data, transfer to recipients who have adopted Binding Corporate Rules, or rely on an appropriate legal derogation. Please contact us using the contact details as indicated below if you need more information about the legal mechanisms we rely on to transfer Personal Data.

6. Retention
We take measures to delete your Personal Data or keep it in a form that does not permit identifying you when your Personal Data is no longer necessary for the purposes for which we process it unless we are required by law to keep your Personal Data for a longer period. When determining the specific retention period, we consider various factors, such as the type of service provided to you, the nature and length of our relationship with you, and mandatory retention periods provided by law and the statute of limitations. We will only retain your Personal Data beyond this retention period if required or permitted by law (for example for regulatory purposes or receipt of purchase).

7. Your Rights

Depending on local laws, you may have the right or choice to:

Opt-out. You may contact us anytime to opt out of some collection or uses of your Personal Data, including from receiving direct marketing communications and the anonymization of your Personal Data for data analyses. Please note that your use of some of the Services may be ineffective upon opt-out. Despite your indicated e-mail preferences, we may send you service-related communications, including notices of any updates to our Terms of Use or Privacy Policy.
Access the Personal Data we hold about you or obtain a copy of it (e.g., via your Member or Personal Account).
Update or correct any inaccuracies in your Personal Data.
Receive the Personal Data you provided to us to transmit it to other service providers as you wish.
Request deletion, destruction, or anonymization of your Personal Data in certain situations.
Request us to restrict the processing of your Personal Data.
To not be denied goods or services, charged a different price, or provided a different level or quality of goods or services if you exercise any of the rights under the CCPA except in cases where you refuse to provide personal information necessary for us to provide you with goods or services.
Withdraw any consent you previously provided to us regarding the processing of your Personal Data at any time and free of charge. We will apply your preferences going forward and this will not affect the lawfulness of the processing before you withdrew your consent.
Lodge a complaint with a supervisory authority, including in your country of residence, place of work or where an incident took place.

Note that the above list may not be exhaustive, which means that you may have additional or more limited rights in accordance with local laws.

If you would like to exercise any of the rights in relation to your Personal Data, please contact us at [email protected]. If you would like to exercise any of the rights under the CCPA, you can also leave us a voicemail with your name and email and any other relevant information at (720) 769-9477.

In your request, please make clear: (i) what Personal Data is concerned; and (ii) which of the rights you would like to exercise. For your protection, we may need to verify your identity before implementing your request. We try to comply with requests as soon as reasonably practicable. Please note that we may need to retain certain Personal Data information for record keeping purposes (such as to complete any transactions that you began prior to requesting such change or deletion).

If we fall short of your expectations in processing your Personal Data or you wish to raise a concern or complaint about our privacy practices, please tell us because it gives us an opportunity to address the problem.

9. Changes to This Privacy Policy.
This Privacy Policy is subject to occasional revision, and if we make any material changes in the way we use your personal data, we will notify you prominently posting notice of the changes on our Site.

8. Security
Hotel Engine is committed to protecting the security of your Personal Data. We use a variety of industry-standard security technologies and procedures to help protect your Personal Data from unauthorized access, use, or disclosure. We also require you to enter a password to access your Member or Personal Account information. Please do not disclose your password to unauthorized people. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, while Hotel Engine uses reasonable efforts to protect your Personal Data, Hotel Engine cannot guarantee its security.

10. Contact

If you have any questions or concerns about our Privacy Policy or our data collection or processing practices, or if you want to report any security concerns to us, please contact us at the following address or email:

HotelEngine, Inc.

Attn: HotelEngine Privacy Policy

950 S Cherry St.

10th Floor

Denver, CO 80246

United States

Phone: 855-567-4683

Fax: 855-567-4683

Email: [email protected]

Last Updated: June 23, 2021 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). PROVISION OF THE SERVICES IS CONDITIONED ON, AND CUSTOMER’S (AS DEFINED BELOW) USE OF THE SERVICES SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THESE TERMS 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:

DEFINITIONS 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.
SERVICES
1. Services. Black Box shall provide Customer with the Services as specified in an Order Form. 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. Customer Requirements. Customer is responsible at its sole cost for procuring and maintaining the ability to connect to the Black Box Platform or other Services.
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, 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 use the Services refenced in such Order Form solely for Customer’s internal business evaluation and planning 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.
4. 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, Black Box is not responsible for and does not warrant any such Third-Party Applications.
FEES; PAYMENT TERMS
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 increase of five percent (5%) (subject to Customer retaining the same Services package, capacity, and functionality levels as specified on the applicable Order Form).
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 under Section 3 above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
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.
CONFIDENTIALITY
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 Representative’s 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.
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.
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. Publicity. Except as may be required by 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 of this Agreement subject to the prior written 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 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.
PROPRIETARY RIGHTS; CUSTOMER DATA; RESTRICTIONS
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 Black Box 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 a 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.
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 of this Agreement, Customer hereby grants to Black Box a limited, non-exclusive, non-transferable right to use, store, and transmit the Customer Data solely as necessary to provide the Services to Customer.
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. 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.
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.
WARRANTY AND DISCLAIMERS.
1. Warranties.
2. Each Party represents, warrants, and covenants that, at all times during the term of this Agreement: (i) this Agreement constitutes a valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement, and (ii) it has all corporate or limited liability company authority to enter into this Agreement and perform its obligations hereunder.
3. Black Box represents and warrants that (A) the Services will: (i) conform in all material respects with any applicable Documentation provided by Black Box; (ii) be performed in a professional and workmanlike manner; and (ii) the Services will be free from material defects; and (B) Black Box (i) has obtained and shall maintain all rights and authorizations necessary to perform its obligations under this Agreement ; and (ii) 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.
4. 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, and that the Services will be compiled and produced in a manner that will not contain any material non-public information, 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.
5. 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. EXCEPT AS SET FORTH IN THIS SECTION 6, 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.
LIMITATION OF LIABILITY.
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, 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.
2. Limitation of Liability. Except for (a) a Party’s indemnification obligations for claims related to breach of Section 4 herein (Confidentiality); 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.
INDEMNIFICATION.
1. Black Box Indemnification.
  1. 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.
  2. 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.
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’s breach of the Excluded Claims; (ii) Customer’s permitted disclosure of the Services pursuant to this Agreement; or (iii) Customer’s breach or violation of any applicable law, rule, or regulation applicable to Customer in connection with the Agreement.
3. Indemnification Procedure. The indemnified Party shall (i) 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 (ii) 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).
TERM
1. Term. This Agreement will commence on the Effective Date and will continue in effect so long as an Order Form is in effect. 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.
2. Termination.
  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 (ii) immediately (A) 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 (B) Customer breaches or otherwise violates an Excluded Claim.
  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.
  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.
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.
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, (i) Black Box may retain one (1) copy of the Confidential Information as required under law, rule, regulation 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 (ii) 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.
SECURITY AND PRIVACY
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.
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.
GENERAL PROVISIONS
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.
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.
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.
4. Relationship of the Parties. The Parties to this Agreement are independent contractors and neither shall have authority to bind or obligate the other.
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.
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.
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 transmitted by facsimile, by electronic mail and such signatures shall be deemed to bind each Party as if they were original signatures.
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.

“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.
“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.
“Black Box Analysis” means Black Box’s proprietary benchmarking, normative analysis, testing/validation of Black Box’s analyses of data, in any form.
“Black Box Platform” means Black Box’s proprietary software application systems and related databases.
“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.
“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.
“Consulting Services” means certain professional services to be provided by Black Box, if and as specified in an Order Form and/or a SOW.
“Customer” means the purchasing entity identified in the Order Form.
“Customer Data” means information submitted by Customer to Black Box 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.
“Documentation” means the documentation for the Services that may be supplied by Black Box, if applicable, to assist its customers in the on-boarding and/or use of the Services.
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.
“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.
“Representative” has the meaning ascribed to it in Section 4.1.
“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.
“Services” means each product and service offering of Black Box or its Affiliates, as updated from time to time, including, without limitation, 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.
“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.
“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.
“Usage Limits” means the maximum number of Users, as applicable, that may access the Services, as set forth in an Order Form.
“Users” mean employees of Customer (or employees in “Customer Pods” as specified in an Order Form) 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.