Terms Of Service

Data Privacy Addendum

Data Privacy Addendum

Last Updated: November 10, 2017

 

This Data Privacy Addendum (“Addendum”) is subject to the terms of, and fully incorporated and made part of, the BINTELCOM US LLC (“BINTELCOM”) Terms Of Service, located at https://BINTELCOMcloud.com (the “Agreement”). It applies in respect of the provision of the BINTELCOM Services to the Customer if the Processing of User Personal Data is subject to the GDPR, only to the extent the Customer is a Controller (or Processor, as applicable) of User Personal Data and BINTELCOM is a Processor or sub-Processor of User Personal Data (as defined below). This Addendum shall amend and supplement any provisions relating to the processing of User Personal Data contained in the Agreement, and shall be effective for the term of the Agreement.

 

 

1. Definitions

1.1. For the purposes of this Addendum:

 

“User Personal Data” means Personal Data uploaded to or published, displayed or backed up through the BINTELCOM Services, as further described under Section 3 of this Addendum;

“GDPR” means the General Data Protection Regulation (EU) 2016/679, together with any national implementing laws in any Member State of the European Union, as amended, repealed, consolidated or replaced from time to time; and

“Personal Data”, “Personal Data Breach”, “Data Subject”, “Data Protection Authority”, “Data Protection Impact Assessment”, “Process”, “Processor” and “Controller” will each have the meaning given to them in Article 4 of the GDPR.

1.2. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.º

 

 

2. Details Of The Processing

2.1. Categories of Data Subjects. This Addendum applies to the Processing of User Personal Data relating to Customer’s clients or prospects, suppliers, business partners, vendors and other end users, the extent of which is determined and controlled by Customer in its sole discretion.

 

 

2.2. Types of Personal Data. User Personal Data includes Personal Data, the extent of which is determined and controlled by Customer in its sole discretion, contained in any applications, files, data, information or other content uploaded to or published, displayed or backed up by Customer or its end users through the BINTELCOM Services.

 

 

 

3. Processing Of User Personal Data

3.1. For purposes of this Addendum, Customer and BINTELCOM agree that Customer is the Controller of User Personal Data and BINTELCOM is the Processor of such data, except when Customer acts as a Processor of User Personal Data, in which case BINTELCOM is a sub-Processor. If Customer is a Processor, Customer warrants that Customer’s instructions to BINTELCOM with respect to that User Personal Data, including Customer’s designation of BINTELCOM as a sub-Processor, have been authorized by the relevant Controller.

 

 

3.2. BINTELCOM will only Process User Personal Data on behalf of and in accordance with the Customer’s prior written instructions and for no other purpose. BINTELCOM is hereby instructed to Process User Personal Data to the extent necessary to enable BINTELCOM to provide the BINTELCOM Services in accordance with the Agreement.

 

 

3.3. Each of the Customer and BINTELCOM will comply with their respective obligations under the GDPR, to the extent applicable to the Processing of any User Personal Data in the context of the provision of the BINTELCOM Services. Customer will (i) comply with all applicable privacy and data protection laws with respect to Customer’s Processing of User Personal Data and any Processing instructions that Customer issues to BINTELCOM, and (ii) ensure that Customer has obtained (or will obtain) all consents and rights necessary for BINTELCOM to Process User Personal Data in accordance with this Addendum.

 

 

3.4. Customer will select the country where User Personal Data will be stored. Customer consents to the storage of the User Personal Data in the country that Customer chooses when Customer purchases specific Services. By uploading User Personal Data to the Services, Customer acknowledges that Customer may transfer and access User Personal Data from around the world, including to and from the country in which User Personal Data is maintained.

 

 

3.5. For Customers located in the European Economic Area or Switzerland, Customer acknowledges that BINTELCOM may process User Personal Data in countries outside of the European Economic Area and Switzerland as necessary to provide the BINTELCOM Services and in accordance with the terms of this Addendum. Where this is the case, BINTELCOM will take such measures as are necessary to ensure that the transfer is in compliance with applicable data protection laws.

 

 

3.6. The Customer acknowledges that BINTELCOM is reliant on the Customer for direction as to the extent to which BINTELCOM is entitled to use and Process User Personal Data on behalf of Customer in performance of the BINTELCOM Services. Consequently BINTELCOM will not be liable under the Agreement for any claim brought by a Data Subject arising from any action or omission by BINTELCOM, to the extent that such action or omission resulted directly from the Customer’s instructions or from Customer’s failure to comply with its obligations under the applicable data protection law.

 

 

3.7. If for any reason (including a change in applicable law) BINTELCOM becomes unable to comply with any instructions of the Customer regarding the Processing of User Personal Data, BINTELCOM will (a) promptly notify the Customer of such inability, providing a reasonable level of detail as to the instructions with which it cannot comply and the reasons why it cannot comply, to the greatest extent permitted by applicable law; and (b) cease all Processing of the affected User Personal Data (other than merely storing and maintaining the security of the affected User Personal Data) until such time as the Customer issues new instructions with which BINTELCOM is able to comply. If this provision applies, BINTELCOM will not be liable to Customer under the Agreement in respect of any failure to perform the BINTELCOM Services due to its inability to process User Personal Data until such time as the Customer issues new instructions in regard to such Processing.

 

 

4. Confidentiality

4.1. BINTELCOM will ensure that any person whom Customer authorises to Process User Personal Data on its behalf is subject to confidentiality obligations in respect of that User Personal Data.

 

 

5. Security Measures

5.1. BINTELCOM will implement appropriate technical and organisational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to User Personal Data.

 

 

5.2. BINTELCOM will, at the Customer’s request and subject to the Customer paying all of BINTELCOM’s fees at prevailing rates, and all expenses, provide the Customer with assistance necessary for the fulfilment of the Customer’s obligation to keep User Personal Data secure.

 

 

6. Sub-processors

6.1. Customer authorises BINTELCOM to engage sub-Processors to perform specific services on BINTELCOM’s behalf which may require such sub-Processors to Process User Personal Data. If BINTELCOM engages a sub-Processor to Process any User Personal Data, it will

 

inform Customer of any intended changes concerning the addition or replacement of such sub-Processors, to the greatest extent permitted by applicable law, and Customer will have an opportunity to object to such changes on reasonable grounds within fifteen (15) business days after being notified. If the parties are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party;

keep the Customer informed if there is any change to the role or status of the sub-Processor; and

enter into a written agreement with the sub-Processor that imposes on the sub-Processor the same obligations that apply to BINTELCOM under the Addendum.

7. Data Subject Rights

7.1. BINTELCOM will, at the Customer’s request and subject to the Customer paying all of BINTELCOM’s fees at prevailing rates, and all expenses, provide the Customer with assistance necessary for the fulfilment of the Customer’s obligation to respond to requests for the exercise of Data Subjects’ rights. Customer shall be solely responsible for responding to such requests.

 

 

8. Security Breaches

8.1. BINTELCOM will:

 

notify the Customer as soon as practicable after it becomes aware of any Personal Data Breach affecting any User Personal Data; and

at the Customer’s request and subject to the Customer paying all of BINTELCOM’s fees at prevailing rates, and all expenses, promptly provide the Customer with all reasonable assistance necessary to enable the Customer to notify relevant security breaches to the relevant Data Protection Authorities and/or affected Data Subjects.

9. Data Protection Impact Assessment; Prior Consultation

9.1. BINTELCOM will, at the Customer’s request and subject to the Customer paying all of BINTELCOM’s fees at prevailing rates, and all expenses, provide the Customer with reasonable assistance to facilitate:

 

the conduct of Data Protection Impact Assessments if the Customer is required to do so under the GDPR; and

consultation with Data Protection Authorities, if the Customer is required to engage in consultation under the GDPR, in each case solely to the extent that such assistance is necessary and relates to the Processing by the BINTELCOM of the User Personal Data, taking into account the nature of the Processing and the information available to BINTELCOM.

10. Deletion of User Personal Data

10.1. On expiration of the Agreement, Customer instructs BINTELCOM to permanently and securely delete all User Personal Data in the possession or control of BINTELCOM or any of its sub-Processors, within a reasonable period of time (unless the applicable law of the EU or of an EU Member State requires otherwise), except if the Customer requests, prior to expiration of the Agreement, to have access to the BINTELCOM Services in order to retrieve User Personal Data in accordance with Clause 9(d) of the Agreement.

 

 

11. Information

11.1. BINTELCOM will, at Customer’s request and subject to the Customer paying all of BINTELCOM’s fees at prevailing rates, and all expenses, provide the Customer with all information necessary to enable the Customer to demonstrate compliance with its obligations under the GDPR, and allow for and contribute to audits, including inspections, conducted by the Customer or an auditor mandated by the Customer, to the extent that such information is within BINTELCOM’s control and BINTELCOM is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.

12. Order of Precedence

12.1. With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Agreement, the provisions of this Addendum shall prevail.

PRIVACY POLICY

OUR PRIVACY MISSION STATEMENT

We recognize that when our customers, partners, prospective clients, employees and other individuals provide personal data to BINTELCOM CORP(“BINTELCOM”), they trust that we will respect their privacy. ​

 

We don’t take that trust lightly and have committed to safeguarding each individual’s privacy and protecting the personal data we handle.

 

We strive to be transparent with you about the data we collect about you and how it is used and shared.

 

We want you to know why and how we collect, use, share, and protect your personal data.

 

We believe that you should have choices regarding how we share your personal data and how we communicate with you.

 

Here is a detailed look into these promises.

PRIVACY POLICY

  • Introduction
  • Information We Collect
  • How We Use Your Information
  • Sharing And Disclosure
  • Update Your Information
  • EU Data Subjects
  • Privacy Shield
  • Publicly Posted Information
  • Children
  • Links To Other Websites
  • Social Media
  • Security
  • Use Of Cookies
  • Other Terms and Conditions
  • Changes to Our Privacy Policy
  • Contact Us

1. INTRODUCTION

Welcome to the BINTELCOM website (the “Site”). BINTELCOM is a global, hyper-scale cloud provider that offers cloud infrastructure and associated services (“Services”).

 

This Privacy Policy explains what data we collect when you use our Site and/or the Services, why we collect it and how that data is used. It applies to personal data and other information collected by us from or about: (i) visitors to, or users of, our Site, (ii) prospective customers, (iii) current customers (“Customers”), and (iv) job applicants.

 

BINTELCOM complies with the EU-U.S. and Swiss-U.S. Privacy Shield frameworks(“Frameworks”) as set forth by the U.S. Department of Commerce regarding the processing of personally identifiable information transferred from the EU and Switzerland to the U.S. (for these purposes, reference to the EU also includes the European Economic Area countries of Iceland, Liechtenstein and Norway). BINTELCOM has certified that it adheres to the Privacy Shield Principles (described below). If there is any conflict between the policies in this Privacy Policy and the EU or Swiss Privacy Shield Principles, the Privacy Shield Principles shall govern. To learn more about the Frameworks and to view our certification page, please visithttps://www.privacyshield.gov/.

 

By using the Site and/or the Services, and providing us with your personal data, you consent to the processing of your personal data in the manner set out in this Privacy Policy.

2. INFORMATION WE COLLECT

When you interact with the Site, we may collect information that, alone or in combination with other information, could be used to identify you (“Personal Data”), as described below:
 

Personal Data That You Provide Through the Site:  When you create an account, order products or services, request information, communicate with customer service, subscribe to emailing lists, or apply for employment through the Site, we collect the following Personal Data from you:

  • First and last name
  • Title
  • Company name
  • Email address
  • Mailing address
  • Date of birth
  • Phone number
  • Fax number
  • Account password
  • Payment and billing information
  • Country location
  • Employment History and education

 

Service Data: In providing the Services to Customers, we process on behalf of Customers Personal Data they upload or otherwise submit to our Services (“ServiceData”). While our Customers decide what data to submit, Service Data typically includes information about their customers, prospects, employees, consultants or independent contractors, suppliers and other individuals or third parties (“EndUsers”).


Automatically Collected DataWhen you visit the Site, we may automatically collect information about you through cookies. This information includes the browser or operating system that you use to access the Internet, your IP address, the date and time you may have viewed certain pages on the Site. Please see the “Use of cookies” section below to find out more about how we use cookies and similar technologies.

3. HOW WE USE YOUR INFORMATION

To provide the Services to Customers and respond to requests. We use account-related data provided by Customers to us in connection with the purchase, sign-up, use or support of Customer accounts (such as usernames, email address and billing information) to provide you with access to the Services and/or the Site, contact you regarding your use of the Services and/or the Site or to notify you of important changes to the Services and/or the Site. For EU data subjects, such use is necessary for the performance of the contract between you and us.

 

When you ask for information about the Services (for example, when you ask us to send you offers or price information), we will use your contact information to respond to your requests. For EU data subjects, such use is necessary to respond to or implement your request prior to entering into a contract with us.

 

We process Service Data on behalf of Customers for the purpose of providing the Services to Customers in accordance with the applicable Customer contract.

 

For marketing purposes. To the extent permitted by applicable law, we will use your Personal Data to send you information by email on our new products or services or other promotions. Where required by the applicable law, we will obtain your consent before doing so. (for example, if you are an EU data subject), we will send you such information only with your consent, which was given at the time you provided us with the Personal Data. In such case, if you do not provide us with your consent to the processing of your Personal Data for this purpose, we will not send you this information.
 

You have the right to withdraw your consent at any time, including by following the instructions contained in each promotional communication we send you permitting you to “opt-out” of receiving future promotional information. In addition, if at any time you wish not to receive any future communications or you wish to have your name deleted from our mailing lists, please contact us at:

 

  • Email: privacy@bintelcom.com
  • Postal Mail: BINTELCOM CORP

    Attention: Opt-Out
                    17492 Commerce Park Drive
                    Suite 850
                    Reston VA 20192

 

Please note that we will continue to contact you via email to respond to your requests and regarding the provision of our Services.

 

To analyze, administer, support, improve use of the Site and the Services. We use data relating to your use of the Site and/or the Services to analyze, administer, support and improve your access to and use of the Site and the Services. We may also compile, anonymize and/or aggregate your Personal Data and other data and use such anonymized and/or aggregated data for our business purposes, including sharing such data with affiliates and business partners. This aggregate information does not identify you. For EU data subjects, this use of your Personal Data is necessary for our legitimate interests in understanding how the Site and the Services are being used by you and to improve your experience on it.

 

To process applications for a job. When you apply for employment through our Site, your contact details and data about your employment history and education may be collected by our provider of recruiting services and we will use such data to evaluate your job application, to conduct job interviews, and as is otherwise needed for recruitment. For EU data subjects, processing of this data is necessary to respond to your request to process your application for employment. If you do not provide this data, we will not be able to process the application that you send through our Site.
 

Other Uses of Personal Data.  We also may use your Personal Data in other ways for which we provide specific notice at the time of collection.


If you are an EU data subject, please see the “EU Data Subjects” section below for information on your rights in relation to your Personal Data.

4. SHARING AND DISCLOSURE

We may share your Personal Data and other information with certain third parties without further notice to you, as set forth below:

  • Vendors and Service Providers: To assist us in meeting business operations needs and to perform certain services and functions: providers of payment processing and fraud prevention, marketing, web analytics, hosting, email communication and customer support services, and recruiting services. Pursuant to our instructions, these parties may access, process or store Personal Data in the course of performing their duties to us. 
     
  • BINTELCOM Parent Company: In order to provide the Services you request from us, our parent company BINTELCOM Groupe SAS may provide us with technical support which may entail processing of Personal Data to the extent necessary to provide you with the Services.  For EU data subjects, such processing is in our legitimate interest in ensuring that you may receive the Services you request from us.
     
  • Business Transfers: If we are involved in a merger, acquisition, financing due diligence, reorganization, bankruptcy, receivership, sale of company assets, or transition of service to another provider, your Personal Data and other information may be transferred to a successor or affiliate as part of that transaction along with other assets.   
     
  • Legal Requirements: If required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation or lawful requests by public authorities, including meeting national security or law enforcement requirements and applicable law, rule, order, or regulation, (ii) protect and defend the rights or property of BINTELCOM, (iii) act in urgent circumstances to protect the personal safety of users of the Site or the public, or (iv) protect against legal liability.

5. UPDATE YOUR INFORMATION

If you need to change or correct your Personal Data provided to us, or wish to have Personal Data removed from our systems, please contact us as described in the “Contact Us” section below and we will address your requests as required by applicable law.

6. EU DATA SUBJECTS

This section applies if you are an EU data subject (for these purposes, reference to the EU also includes the European Economic Area countries of Iceland, Liechtenstein and Norway and, where applicable, Switzerland).

 

BINTELCOM CORPis the data controller for processing personal data provided to us through the Site. Our registered office is at 11480 Commerce Park Drive, Suite 500, Reston VA 20191.

 

Subject to applicable law, you have the following rights in relation to your Personal Data:

 

  • Right of access: If you ask us, we will confirm whether we are processing your Personal Data and, if so, provide you with a copy of that Personal Data (along with certain other details). If you require additional copies, we may need to charge a reasonable fee.
  • Right to rectification: If your Personal Data is inaccurate or incomplete, you are entitled to have it rectified or completed. If we have shared your Personal Data with others, we will tell them about the rectification where possible. If you ask us, where possible and lawful to do so, we will also tell you with whom we shared your Personal Data so that you can contact them directly.
  • Right to erasure: You may ask us to delete or remove your Personal Data and we will do so in some circumstances, such as where we no longer need it (we may not delete your data when other interests outweigh your right to deletion). If we have shared your data with others, we will tell them about the erasure where possible. If you ask us, where possible and lawful to do so, we will also tell you with whom we shared your Personal Data so that you can contact them directly.
  • Right to restrict processing: You may ask us to restrict or ‘block’ the processing of your Personal Data in certain circumstances, such as where you contest the accuracy of that Personal Data or object to us processing it. We will tell you before we lift any restriction on processing. If we have shared your Personal Data with others, we will tell them about the restriction where possible. If you ask us, where possible and lawful to do so, we will also tell you with whom we shared your Personal Data so that you can contact them directly.
  • Right to data portability: Effective 25 May 2018, you have the right to obtain your Personal Data from us that you consented to give us or that is necessary to perform a contract with you. We will give you your Personal Data in a structured, commonly used and machine-readable format. You may reuse it elsewhere.
  • Right to object: You may ask us at any time to stop processing your Personal Data, and we will do so:
    • If we are relying on a legitimate interest to process your Personal Data — unless we demonstrate compelling legitimate grounds for the processing; or
    • If we are processing your Personal Data for direct marketing.
  • Rights in relation to automated decision-making and profiling: You have the right to be free from decisions based solely on automated processing of your Personal Data, including profiling, unless such profiling is necessary for entering into, or the performance of, a contract between you and us.
  • Right to withdraw consent: If we rely on your consent to process your Personal Data, you have the right to withdraw that consent at any time. This will not affect the lawfulness of processing based on your prior consent.
  • Right to lodge a complaint with the data protection authority: If you have a concern about our privacy practices, including the way we have handled your Personal Data, you can report it to the data protection authority that is authorized to hear those concerns.

 

You may exercise your rights by contacting us as indicated under “Contact Us” sectionbelow.
 

Representative in the EU.  BINTELCOM has elected Ms. Blandine Poidevin as its representative in the EU, as required by the Applicable Data Protection Law.  Ms. Poidevin’s office contact information is as follows: 104 rue esquernoise, 59000 Lille, France.
 

Data Protection Officer. BINTELCOM has appointed a Data Protection Officer. The appointed person’s contact information is as follows: BINTELCOM CORP, Attention: DPO, 11480 Commerce Park Drive, Suite 500, Reston VA 20191, Privacy@bintelcom.coms

7. PRIVACY SHIELD

Personal Data collected by BINTELCOM may be stored temporarily on servers located in Canada and will be stored in the United States, where we are located.

 

We rely on our Privacy Shield certification to transfer Personal Data and other information that we receive from the EU and Switzerland to BINTELCOM in the U.S. and we process such in accordance with the Privacy Shield Principles of Notice, Choice, Accountability for Onward Transfer, Security, Data Integrity and Purpose Limitation, Access, and Recourse, Enforcement and Liability (“Privacy Shield Principles”), as described below.

 

Notice And Choice. This Policy provides notice of the Personal Data collected and transferred under the Privacy Shield and the choice that you have with respect to such data. It also provides information about other Privacy Shield Principles that are set forth below. When we process Service Data on behalf of our Customers, the Customer will be responsible for providing appropriate notice and choice to End Users, as the Customer controls the Personal Data it has submitted to our Services. We honor all Customers’ requests from their End Users to limit use or disclosure of End Users’ Personal Data.

 

Accountability for Onward Transfers: We may be accountable for the Personal Data we receive under the Privacy Shield that we may transfer to third-party service providers (as described in the “Sharing And Disclosure” section above) if they process Personal Data in a manner inconsistent with the Privacy Shield Principles and we are responsible if they do so and for the harm caused. We will only disclose Service Data supplied by our Customers to third parties where permitted or required by the Customer, and in accordance with the Privacy Shield Principles.

 

Security: We maintain security measures to protect Personal Data as described in the“Security” section of this Policy.

 

Data Integrity and Purpose Limitation: We will take reasonable steps to ensure that Personal Data is reliable for its intended use, and that it is accurate, complete and current for as long as long as we retain it. We will keep your Personal Data only for as long as is reasonably necessary for the purposes described in this Policy, or for the duration required by law or our customer agreement, whichever is the longer.

 

Access: You have certain rights to access, correct, amend, or delete Personal Data where it is inaccurate, or has been processed in violation of the Privacy Shield Principles. Please see the “EU Data Subject” section above for more information on rights of EU data subjects. When we process Service Data on behalf of our Customers, the Customer will be responsible to respond to requests for exercising your rights. We honor all Customers’ requests from their End Users to access, correct, amend, or delete End Users’ Personal Data.

 

Recourse, Enforcement, Liability: In compliance with the Privacy Shield Principles, BINTELCOM commits to resolve complaints about our processing of your Personal Data. Individuals with inquiries or complaints regarding this Private Shield Policy should first contact BINTELCOM as follows:

 

  • Email: privacy@bintelcom.com
  • Telephone: 202-869-1702
  • Postal Mail: BINTELCOM CORP
                        Attention: Privacy
                        11480 Commerce Park Drive
                        Suite 500
                        Reston VA 20191

 

BINTELCOM has further committed to refer unresolved Privacy Shield complaints to an alternative dispute resolution provider. If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact our U.S.-based third party dispute resolution provider (free of charge) at https://feedback-form.truste.com/watchdog/request.

 

If your complaint is not resolved through these channels, under certain conditions a binding arbitration option may be available before a Privacy Shield Panel. For additional information, please visit: https://www.privacyshield.gov/article?id=ANNEX-I-introduction.

 

We are subject to the investigatory and enforcement powers of the Federal Trade Commission with respect to Personal Data received or transferred pursuant to the Frameworks.

8. PUBLICLY POSTED INFORMATION

This Privacy Policy shall not apply to any information you post to the public areas of the Site. This includes, but is not limited to, comments to the BINTELCOM blog or in the BINTELCOM forum. Comments posted to public areas may be viewed, accessed and used by third parties subject to those third parties’ privacy practices and policies.

9. CHILDREN

BINTELCOM does not knowingly collect Personal Data from children under the age of 13.  If you have reason to believe that a child under the age of 13 has provided Personal Data to BINTELCOM through this Site, please contact us at privacy@bintelcom.com and we will endeavor to delete that information from our databases.

10. LINKS TO OTHER WEBSITES

The Site may contain links to other websites not operated or controlled by us (“ThirdParty Sites”). The privacy practices described in this Privacy Policy do not apply to Third Party Sites. By providing these links we do not imply that we endorse or have reviewed these sites. Please contact those sites directly for information on their privacy practices and policies.

11. SOCIAL MEDIA

Through our Site, you can choose to access certain social media websites and services that are owned and/or controlled by third parties, such as Facebook, Twitter, Instagram, Pinterest and YouTube (“Social Media Services”). When you choose to access and use Social Media Services, including interacting with our pages on those sites, you will be sharing your Personal Data and other information with them. The information that you share with the Social Media Services will be governed by the specific privacy policies and terms of service of the Social Media Services and not by this Privacy Policy.

12. SECURITY

We maintain reasonable and appropriate security measures to protect Personal Data from loss, misuse, unauthorized access, disclosure, alteration, or destruction in light of the risks inherent in processing this information. However, the Internet cannot be guaranteed to be fully secure and we cannot ensure or warrant the security of any information you provide to us. Please keep this in mind when providing us with your Personal Data.

13. USE OF COOKIES

BINTELCOM uses cookies on the Site. A cookie is a piece of information sent to your browser from a website and stored on your computer’s hard drive. Cookies can help a website like ours recognize repeat users and allow a website to track web usage behavior. Cookies work by assigning a number to the user that has no meaning outside of the assigning website. We use cookies to collect information about your device, such as IP address, operating system and browser type.

 

The Site also uses pixel tags, a technology similar to cookies that is placed on a website or within the body of an email for the purpose of tracking activity on websites, or when emails are opened or accessed, and is often used in combination with cookies. The Site uses pixels tags, from the below third parties, to help us improve use of our Site and the services, and know when content has been shown to you.

 

Upon your first connection to our Site, you will be asked to confirm whether you agree to our use of cookies and similar technologies in accordance with this Policy, and if you accept we will store them on your computer.
 

Some cookies expire at the end of your visit to our website (session cookies), others remain on your computer or terminal device for a longer period (persistent cookies).

 

The types of cookies and similar technologies that we use are detailed below:

Category/Name

Purpose

SessionID

We use temporary cookies file which are erased when you close your web browser. When you restart your browser and revisit the Site, the Site will not recognize you.
 

In particular, we use a cookie called “SESSION” that allows to identify when a user has logged into the Site. This cookie is essential to use and navigate the Site. Without such cookie, you would not be able to properly view our Site and basic functions of our Site would not work.
 

We also use a cookie called “BINTELCOMVisitorEntrance” that allows to detect a user’s geographical location, mainly using the IP address of the connection point. In some cases, this cookie can redirect the user to the BINTELCOM website from the related subsidiary site in the country where they appear to be connected.
 

Functionality Cookie

We use a cookie named “__zlcmid,” provided by ZenDesk (formerly Zopim), which stores information about your browsing session so that we can offer live support chat. The cookie allows you to continue a chat with us as you view different pages on the Site, or if you come back to the Site later. Please see ZenDesk’s privacy and cookie policy at https://www.zendesk.com/company/customers-partners/cookie-policy/.

Load Balancing

We use cookies in load balancing that allow effective display of information by ensuring that the user stays on the same host server for the entire duration of the session. These include a cookie called “SERVERID” that expires after 30 minutes, and a cookie called “BINTELCOMCDN” that expires after 3600 minutes.

Security

BINTELCOM uses some cookies (in particular, a cookie called USERID) that may be necessary to facilitate use of our Site, for example to improve the safety and security of our Site, authenticate account users, balance traffic on our Site and remember information that you submitted on forms when you request services on our Site.

Preferences

BINTELCOM also uses cookies to gain a better understanding of your interests and requirements, for example to remember your language and site preferences, show you when you are logged into our system and allow you to remain logged-in for a period of time, provide you with support services, remember your login information, and prepopulate forms that you have already completed. Cookies also allow you to access your private accounts on our Site, and sign into many portals with the use of only one login.
 

In particular, we use a cookie called “cookieconsent_dismissed” which expires after 365 days. This cookie keeps track of your acceptance of our use of cookies in accordance with this Policy so that you do not see the cookie banner displayed after you have agreed to such use.

 

Analytics

The Site uses “analytical” cookies that allow BINTELCOM to recognize and count the number of visitors and to see how visitors move around the Site when they are using it. This helps us to improve the way our Site works, for example by making sure users are finding what they need easily. The collected data provides us only with anonymous traffic statistics (like number of page views, number of visitors, and time spent on each page). By continuing to use our Site, you accept the Site’s use of audience measurement cookies.

 

We use a cookie named “atidvisitor” provided by AT Internet, that allow us to measure activity on our Site, so that we can better evaluate which types of content and formats are interesting and valuable for our visitors. You can prevent your data from being collected by AT Internet on our Site on this page: http://www.xiti.com/en/optout.aspx. To learn more about AT Internet’s privacy practices and data protection, please visit:https://www.atinternet.com/en/company/data-protection/data-collection-on-our-customers-sites/ and https://www.atinternet.com/en/company/data-protection/.

Pixel Tags

We use pixel tags from the following third parties, to help us improve use of the Site and our services, and know when content has been shown to you:

 

Eloqua

We use a cookie provided by Eloqua which enables us to gather digital body language of the visitor and store it for use with our Eloqua lead score models. This cookie contains a Globally Unique Identifier (GUID) a randomly generate strings of characters and numbers that is used to identify visitors to our site.
 

Eloqua uses cookies to track a user’s online activity, or digital body language. Every time a user visits the Site, clicks a link in our email, or fills out one of our forms, Eloqua saves that activity data in a cookie that is linked to the user’s browser. The cookie is used to create a visitor profile in Eloqua. Eloqua tracking scripts do not collect personal information but links the visitor history with the email address once it has been submitted to Eloqua.
 

Eloqua cookies are valid for up to two years, or unless the user clears their cookies.
 

You can opt-out of Eloqua tracking here:

https://www.oracle.com/marketingcloud/opt-status.html

AB Tasty

AB Tasty is a web analytics service by AB TASTY SAS, which is used for A/B and multivariate testing. This service uses cookies to identify a visitor's browser and to analyze the use of this web page. The cookies do not collect personal data. Only two types of secondary data (i.e. data that could in some instances be traced back to an individual) are collected by the AB Tasty, namely cookies and IP.
 

More information about how AB Tasty processes your data is available at https://www.abtasty.com/terms-of-use/ On this website you can also find instructions on how to deactivate the tracking at any time.

Your Choices
 

On most web browsers, you will find a “help” section on the toolbar. Please refer to this section for information on how to receive a notification when you are receiving a new cookie and how to turn cookies off. Please see the links below for guidance on how to modify your web browser’s settings on the most popular browsers:
 

 

Note, however, that if you reject our request to use cookies or turn cookies off, you may be unable to access certain parts of the Site and you may not be able to benefit from the full functionality of the Site.

 

To find out more about cookies and similar technologies, including how to see what cookies and similar technologies have been set and how to manage and delete them, visit www.allaboutcookies.org, and/or to www.youronlinechoices.com and/or or the Network Advertising Initiative’s online resources, at http://www.networkadvertising.org, and follow the opt-out instructions there. If you access the Site on your mobile device, you may not be able to control tracking technologies through the settings.

14. OTHER TERMS AND CONDITIONS

Your access to and use of our Site is subject to the Terms of Service.

15. CHANGES TO OUR PRIVACY POLICY

We may change this Privacy Policy at any time. We will post all changes to this Privacy Policy on this page. By continuing to use the Site and/or the Services or providing us with information following such a replacement Policy being uploaded, you agree that you will be deemed to have agreed to be bound by the Privacy Policy as changed.

16. CONTACT US

Please feel free to contact us if you have any questions about BINTELCOM’s Privacy Policy or the information practices of our Site.
 

You may contact us as follows: You may send an email to privacy@bintelcom.com or send postal mail to:
 

BINTELCOM CORP
Attention: Opt-Out
                    17492 Commerce Park Drive
                    Suite 850
                    Reston VA 20192

BINTELCOM CORP TERMS OF SERVICE

BINTELCOM CORP TERMS OF SERVICE

 

This agreement between BINTELCOM CORP, a Delaware limited liability company (“BINTELCOM”), and you (“You”, “Your” or “Customer”) consists of (a) these Terms of Service, (b) the Additional Terms (as defined below) and (c) any Order Form (as defined below), if applicable (collectively, this “Agreement”).  This Agreement governs Your use of the BINTELCOM Services (as defined below). 

 

BY EXECUTING AN ORDER FORM, CREATING AN ACCOUNT (AS DEFINED BELOW), USING BINTELCOM SERVICES OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT, AND YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT.  IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TOBINTELCOM THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT OR ARE NOT AN AUTHORIZED AGENT FOR CUSTOMER, DO NOT EXECUTE AN ORDER FORM, CREATE AN ACCOUNT OR OTHERWISE USE THE BINTELCOM SERVICES.

 

Customer may gain access to the BINTELCOM Services by (a) executing an Order Form or (b) creating an online account at https://BINTELCOM.com/ (an “Account”), which includes and requires clicking a box indicating Customer’s acceptance of this Agreement.  If Customer elects to purchase access to the BINTELCOM Services through Customer’s Account, Customer will, among other things, select the following from the options presented: (i) the applicable BINTELCOM Services; (ii) the Service Term (as defined below); and (iii) a payment plan and method.

 

If Customer is a user of any vCloud® Air™ powered by BINTELCOM service, Customer acknowledges that VMware, Inc. (“VMware”) assigned to BINTELCOM certain of VMware’s rights and obligations with respect to the vCloud® Air™ powered by BINTELCOM services, that BINTELCOM succeeded to certain of VMware’s interest with respect to the vCloud® Air™ powered by BINTELCOM services, and that, in connection therewith, any portion of this Agreement previously serviced by VMware has been assigned by VMware to BINTELCOM.  For a period of time following the date set forth above, VMware will be providing certain transition services to BINTELCOM with respect to the vCloud® Air™ powered by BINTELCOM services.  All users of any vCloud® Air™ powered by BINTELCOM service acknowledge, agree and consent to the migration of Your data and workloads from the VMware data center in which they are, or may later be, stored to a data center operated by BINTELCOM in the same country in which Your data and workloads are stored by VMware prior to such migration (the “Migration”).  You waive any right to terminate this Agreement based on the Migration.

 

BINTELCOM reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement (including the Additional Terms) and to impose new or additional rules, policies, terms, or conditions on Your use of the BINTELCOM Services.BINTELCOM will communicate changes to this Agreement by posting the new version of the Agreement on its website at https://areacliente.bintelcom.com/index.php?m=TermsOfService or as otherwise determined by BINTELCOM in its sole discretion, at which time such updated Agreement will be immediately effective. Your continued use of any BINTELCOM Services aftersuch notification of changes to this Agreement will constitute Your acceptance of any and all such changes.  Notwithstanding the foregoing, BINTELCOM will notify You of any material, detrimental change to this Agreement.

 

1. DEFINITIONS.

              a. “Additional Terms” means the BINTELCOM Services Descriptions, the Support Policies, the Data Privacy Addendum, the Privacy Policy, the Refund Policy and the Third Party Terms and any other terms and conditions disclosed to Customer in an Order Form, through Customer’s Account or in connection with accessing any BINTELCOM Services, each of which are hereby incorporated by reference.

 

              b. “Applicable Law” means all applicable laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over BINTELCOM and Customer.

 

              c. “Documentation” means written, published information accessible at https://BINTELCOM.com/, as updated from time to time.

 

              d. “Infringement Claim” means any third party claim that the use by Customer solely of the BINTELCOM Services, as used as contemplated in this Agreement, infringes any patent, trademark or copyright of a third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of Customer’s actions) under the laws of the United States.

 

              e. “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.

 

              f. "Login Credentials” means any user IDs, passwords, authentication keys or security credentials that enable Customer’s access to and management of the BINTELCOM Services.

 

              g. “Order Form” means a written ordering document executed by an authorized representative of each of BINTELCOM and Customer that incorporates these Terms of Service by reference.  The Order Form will specify the BINTELCOM Services that Customer is purchasing, payment obligations related thereto and the duration of the Service Term.

 

              h. “BINTELCOM Partner” means a third party reseller or distributor authorized by BINTELCOM to sell BINTELCOM Services.

 

              i. “BINTELCOM Services” means BINTELCOM’s services, a current list of which is located at https://BINTELCOM.com/.

 

              j. “BINTELCOM Services Descriptions” means the descriptions of the BINTELCOM Services located at https://BINTELCOM.com/.

 

             k. “Service Term” means the Initial Service Term (as defined below) plus any Renewal Terms (as defined below).

 

             l. “Support” means the support services provided by or on behalf of BINTELCOM for the applicable BINTELCOM Services purchased by Customer pursuant to an Order Form or through Customer’s Account, which are described in the Support Policies.

 

           m. "Support Policies” means the statement of support, service level agreements and any other support policies for BINTELCOM Services located at https://BINTELCOM.com/legal/support-policies.

 

          n. “Third Party Product” means any non-BINTELCOM-branded products and services (including hardware) and non-BINTELCOM-licensed software products.

 

         o. “Updates” means any updates, enhancements, modifications, improvements, patches and/or upgrades to any BINTELCOM Services that BINTELCOM generally makes available to its customers for no additional charge.

 

        p. “Usage Data” means any and all information reflecting the access or use of the BINTELCOM Services by or on behalf of Users, including, but not limited to, visit-, session-, or stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing.

 

       q. “User Data” means all applications, files, data, information or other contentuploaded to or published, displayed or backed up through the BINTELCOM Services by Customers, Users or BINTELCOM (when acting upon Customer’s instructions as part of an BINTELCOM Service), excluding Usage Data.

 

        r. “Users” means any users that access Your Content or that use the BINTELCOM Services under Customer’s Login Credentials.

 

2. ACCESS TO BINTELCOM SERVICES.

           a. EVALUATION.  If you access the BINTELCOM Services on an evaluation or beta basis (the “Evaluation Service”), then you may use the Evaluation Service only for evaluation purposes and for a period of thirty (30) days, beginning on the date BINTELCOM provides Customer with Login Credentials, unless otherwise specified in writing by BINTELCOM (the “Evaluation Period”).  Notwithstanding any other provision of this Agreement, BINTELCOM provides the Evaluation Service (i) free of charge and without support and (ii) “AS IS” without indemnification or warranty of any kind but without prejudice to the statutory rights of consumers based in the EU.  The Support Policies do not apply to the Evaluation Service.  Also, certain features or services described in the BINTELCOM Services Descriptions may not be available for the Evaluation Service.  Continued use of the BINTELCOM Services after the Evaluation Period requires that Customer (A) register for the applicable BINTELCOM Services through Customer’s Account or by executing an Order Form and (B) submit the applicable payment.  Upon expiration of the Evaluation Period, you will not have access to the Evaluation Service or to any User Data therein. 

 

           b. ACCESS TO BINTELCOM SERVICES.  Customer may access and use the BINTELCOM Services for which it has registered (via an Order Form or through Customer’s Account) solely for its own benefit and only in accordance with this Agreement.  As a condition to using the BINTELCOM Services, Customer must set up an authorized Account with Login Credentials.  Customer will provide accurate and complete information in its Account and will update its information as necessary to keep it current. Customer may manage its Account through the BINTELCOM portal available at. https://BINTELCOM.com. Customer is solely responsible for the security of its and its Users’ Login Credentials.. Customer will ensure that its Users do not share Login Credentials with others. Customer is responsible for any use that occurs under its Login Credentials, including any activities by Users.  If Customer believes an unauthorized person has gained access to Login Credentials, Customer will notify BINTELCOM as soon as possible by contacting Customer Support via chat, phone or by email directed at support@corp.BINTELCOM.us.  Customer will ensure that Users comply with all terms and conditions of this Agreement and Customer remains responsible and liable for the acts and omissions of the Users.  If Customer becomes aware of any violation by any User, Customer will immediately terminate that User’s access to User Data.

 

          c. SUPPORT.  Subject to the terms and conditions of this Agreement, BINTELCOM will provide support to Customer for the BINTELCOM Services in accordance with the then applicable Support Policy.  Customer acknowledges that BINTELCOM is not responsible for technical issues that cannot be identified as being primarily caused by the BINTELCOM Services.'

 

3. ORDERING.

            a. PURCHASES. Customer may purchase the right to access and use the BINTELCOM Services by executing an Order Form or registering for the applicable BINTELCOM Services through Customer’s Account. Purchase of the BINTELCOM Services includes access to any applicable Support during the Service Term.

 

            b. PURCHASE ORDER. Customer must issue a purchase order to BINTELCOM or its reseller, as applicable, within five (5) business days from the Effective Date of any BINTELCOM Order Form, or BINTELCOM shall have the option to cancel the Order Form and its terms shall be null and void.  Any additional or conflicting terms contained in any Customer purchase order, proposal or other document shall be deemed to be rejected by BINTELCOM without need of further notice of objection, even if such document is acknowledged or accepted by BINTELCOM, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon BINTELCOM.

 

            c. PAYMENT TERMS. Customer agrees to purchase the right to access and use the BINTELCOM Services for the prices set forth in the Order Form or, if an Order Form is not executed, as set forth in the BINTELCOM Services Descriptions (“Fees”). If Customer purchases through an BINTELCOM Partner, all fees and other procurement and delivery terms will be agreed between Customer and the applicable BINTELCOM Partner. Customer will pay all invoices issued by BINTELCOM within thirty (30) days of the date of the invoice or as otherwise set forth in an applicable Order Form. Except as otherwise provided in this Agreement or as otherwise provided by Applicable Law, all Fees are non-cancelable and non-refundable.  Unless otherwise set forth in an Order Form or in the BINTELCOM Services Descriptions, all monthly or prepaid Fees will be due in advance and all Fees based on actual metered usage of an BINTELCOM Service will be due in arrears.  If any payment is more than fifteen (15) days late (including if payment is late due to a credit card chargeback or insufficient funds), BINTELCOM may, without limiting any remedies available to BINTELCOM: (i) terminate this Agreement and/or any applicable Order Form; or (ii) suspend performance of or access to the applicable BINTELCOM Services, until payment is made current. Customer will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by Applicable Law. All Fees are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the BINTELCOM Services will be paid by Customer.  BINTELCOM reserves the right to increase Fees at any time, although increases in Fees for BINTELCOM Services will not go into effect until the next renewal of the Service Term. EXCEPT AS REQUIRED BY APPLICABLE LAW OR AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BINTELCOM IS NOT OBLIGATED TO REFUND ANY FEES OR OTHER PAYMENTS ALREADY PAID, AND ANY CANCELLATION BY CUSTOMER WILL TAKE PLACE AT THE END OF THE APPLICABLESERVICE TERM.

 

          d. PAYMENT METHOD. Customer will pay BINTELCOM in accordance with the payment method identified in an Order Form or as established in Customer’s Account, as applicable.  Payment method options may include payment (i) by credit card, (ii) through an online account through a third-party provider, such as PayPal, or (iii) via eCheck/ACH.  By providing any such credit card, online account or eCheck/ACH information, Customer authorizes BINTELCOM to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until Customer notifies BINTELCOM in writing or Customer updates Customer’s Account with an alternative, authorized payment method. Customer will provide true, complete and accurate information with respect to the applicable method of payment and agrees to promptly contact BINTELCOM and to otherwise update Customer’s Account if any such information needs to be updated. Customer will ensure that Customer has sufficient funds or credit (as applicable) associated with the selected method of payment.  Customer understands that the amounts charged or debited may vary and that this authorization will remain in effect until the expiration or termination of this Agreement.  If an ACH payment is returned from the applicable bank account for insufficient or uncollected funds or for erroneous information, BINTELCOM may reinitiate the returned ACH debit to the applicable bank account.  Any amounts owed to BINTELCOM that cannot be collected by ACH debit may be charged to any backup credit card on file for Customer.

 

         e. EU CONSUMER POLICY. If You are a consumer based in the EU, You have the right to cancel this Agreement within fourteen (14) calendar days of the date on which You requested the Services, without giving any reason. To exercise Your right to cancel, You must notify BINTELCOM of Your decision to cancel this Agreement by contacting Customer Support via BINTELCOM Manager or by email directed at support@corp.BINTELCOM.us. Attention: Legal Department. To meet the fourteen (14) day deadline provided above, it is sufficient for You to send Your notification concerning the exercise of the right to cancel before the cancellation period has expired. If You cancel the Agreement, we will reimburse to You all payments received from You without undue delay and not later than fourteen (14) days from the day on which we are informed about Your decision to cancel the Agreement. We will make the reimbursement using the same means of payment as You used for the initial transaction, unless You have expressly agreed otherwise; in any event, You will not incur any fees as a result of the reimbursement. If You are a consumer based in the EU and You have agreed to the Services commencing immediately, You will be required to pay a pro-rated amount of the Fees applicable to the Services You have requested based on the initial Fees You have paid for the Services and the date on which You exercise Your statutory right to cancel the Agreement.

 

4. CONFIDENTIALITY.

As used in this Agreement, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either BINTELCOM or Customer (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. BINTELCOM’s Confidential Information includes, without limitation, the BINTELCOM Services, any information related thereto and the Login Credentials.  Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is developed independently by the Receiving Party without use of any Confidential Information of the Disclosing Party.  Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement.  Neither BINTELCOM nor Customer will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent.  Both BINTELCOM and Customer will use commercially reasonable measures to protect the confidentiality and value of the other party’s Confidential Information.  Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part: (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by Applicable Law (in which case each party will, if permitted by Applicable Law, provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by Applicable Law). Both BINTELCOM and Customer agree to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Both BINTELCOM and Customer will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. 

 

5. INTELLECTUAL PROPERTY.

          a. OWNERSHIP.  This Agreement contains a limited right to access and use the BINTELCOM Services during a Service Term, not a transfer of title to the BINTELCOM Services. All Intellectual Property Rights in the BINTELCOM Services belong exclusively to BINTELCOM and its licensors. Customer is granted no licenses of any kind to any Intellectual Property Rights other than as expressly granted herein. Customer will not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of BINTELCOM in and to the Intellectual Property Rights. Customer will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the BINTELCOM Services as delivered to Customer. Except as expressly authorized in this Agreement, you will not make any copies or duplicates of any BINTELCOM Services without the prior written permission of BINTELCOM.  To the extent Customer provides any suggestions, comments or other feedback related to the BINTELCOM Services to BINTELCOM or its authorized third party agent(s) (“Feedback”), Customer hereby grants BINTELCOM a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable, transferable license to copy, display, distribute, perform, modify and otherwise use such Feedback or subject matter thereof in any way and without limitation.

 

          b. RESTRICTIONS.  Except as otherwise expressly provided under this Agreement, Customer will have no right, and Customer specifically agrees not to: (i) transfer, assign, sublicense or resell the BINTELCOM Services to another person or entity, and Customer acknowledges that any attempted transfer, assignment, sublicense or resale will be void; (ii) make error corrections to, or otherwise modify or adapt, the BINTELCOM Services or create derivative works based upon the BINTELCOM Services, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the BINTELCOM Services to human-readable form, except to the extent otherwise expressly permitted under Applicable Law notwithstanding this restriction; (iv) disclose, provide or otherwise make available trade secrets contained within the BINTELCOM Services in any form, to any third party without the prior written consent of BINTELCOM; or (vi) use or access the BINTELCOM Services (A) to develop any software application or similar products and services, (B) to spam or distribute malware, (C) in a way that could harm the BINTELCOM Services or impair anyone else’s use of it, (D) in a way intended to work around the BINTELCOM Services’ technical limitations, recurring fees or usage limits, (E) to violate any rights of others, (F) to try to gain unauthorized access to, test the vulnerability of, or disrupt the BINTELCOM Services or any other service, device, data account or network or (G) in any application or situation where failure of the BINTELCOM Services could lead to the death or serious bodily injury of any person or to severe physical or environmental damage.

 

6. DATA SECURITY.

          a. PRIVACY AND DATA STORAGE.  BINTELCOM’s privacy and data storage practices are described in BINTELCOM’s data privacy addendum located at https://BINTELCOM.com/legal/data-privacy-addendum (the “Data Privacy Addendum”), which is hereby incorporated by reference.  See also BINTELCOM’s privacy policy located at https://BINTELCOM.com/legal/privacy-policy (the “Privacy Policy”), which is hereby incorporated by reference.

 

          b. MONITORING.  BINTELCOM has the right to verify Your compliance with this Agreement. If BINTELCOM contacts Customer to verify compliance, Customer will provide information or other materials reasonably requested to assist in the verification (For German customers only: A Customer from Germany is only obliged to provide information necessary for such verification, available to the Customer and reasonably requested for such verification).  BINTELCOM may monitor the overall performance and stability of the infrastructure of the BINTELCOM Services. Customer may not block or interfere with that monitoring.  If BINTELCOM reasonably believes a problem with the BINTELCOM Services may be attributable to User Data or Customer’s use of the BINTELCOM Services, Customer will cooperate with BINTELCOM to identify the source of and resolve that problem.

 

          c. PROTECTED INFORMATION. You represent and warrant that You will not submit any unencrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any unencrypted personally identifiable information subject to regulatory protection under Applicable Law (collectively “Unencrypted Protected Information”) to BINTELCOM, whether as part of the BINTELCOM Services or otherwise. You represent and warrant that You will not submit any encrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any encrypted personally identifiable information subject to regulatory protection under Applicable Law (collectively “Encrypted Protected Information”) to BINTELCOM, whether as part of the BINTELCOM Services or otherwise, unless we have entered into a Business Associate Agreement (“BAA”). In the event You will submit encrypted Protected Information in conjunction with Your use of the BINTELCOM Services, You must contact BINTELCOM at legal@corp.BINTELCOM.us to request a BAA. Notwithstanding anything to the contrary in this Agreement, You recognize and agree that BINTELCOM will have no liability whatsoever under this Agreement or otherwise for any Unencrypted Protected Information or Encrypted Protected Information You provide in violation of this Section, and You agree to fully indemnify and hold harmless BINTELCOM from any third party claims resulting from a violation or alleged violation of this Section.

  

7. USER DATA.

a. USER DATA RIGHTS.  As between Customer and BINTELCOM, Customer retains all right, title, and interest in the User Data, except for the limited license expressly granted by Customer to BINTELCOM in this Section 7. Customer hereby grants to BINTELCOM a royalty-free, fully paid up, worldwide, sublicenseable, non-transferable (except as set forth in Section 19(j)) right and license to copy, display, distribute, modify and otherwise use the User Data, solely as necessary to provide the BINTELCOM Services to Customer.  Customer further acknowledges that BINTELCOM may collect Usage Data and may aggregate and/or anonymize Usage Data to use for statistical purposes and share samples of such aggregated and/or anonymized Usage Data with other third parties. (For German customers only: If Customer is from Germany, BINTELCOM may only collect and aggregate anonymized Usage Data to use for statistical purposes and share samples of such aggregated and anonymized Usage Data with other third parties.)

 

b. CUSTOMER REPRESENTATIONS AND OBLIGATIONS.  Customer will only use the BINTELCOM Services with User Data to which it has full right, title or license. Customer represents, warrants and covenants that its use of the BINTELCOM Services and related backup to and storage of User Data complies and will comply with all Applicable Laws, including those relate to data privacy, data security, international communication and the exportation of technical, personal or sensitive data.  Customer will not, and will take commercially reasonable steps to ensure that each User does not, post content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is illegal, unlawful, harmful, abusive, pornographic, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; or (v) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.  Customer represents and warrants that the User Data does not and will not violate any third-party rights, including any Intellectual Property Rights, and rights of publicity and privacy.  If Customer becomes aware that any of the User Data or any User’s access to or use of the User Data violates this Agreement, Customer will take immediate action to remove the applicable part of User Data or suspend the User’s access.  Customer will ensure that Customer’s use of the BINTELCOM Services complies at all times with Customer’s privacy policies and all Applicable Laws, including any encryption requirements.  Customer is solely responsible for User Data.  Except as provided in the Data Privacy Addendum, Customer is responsible for protecting the security of User Data, including any access to User Data that Customer provides to its employees, customers or other third parties, and when it is in transit to and from the BINTELCOM Services.  Customer must take and maintain commercially reasonable steps regarding the security, protection and backup of User Data, which might include the use of encryption technology to protect User Data from unauthorized access. Customer is responsible for providing any necessary notices to Users and for obtaining any legally-required consents from Users concerning their use of the BINTELCOM Services. Customer is responsible for any losses or other consequences arising from Customer’s failure to encrypt or back up User Data.  Customer will have and maintain appropriate policies and procedures for cybersecurity and to ensure compliance with its regulatory or legal obligations.

 

c. DIGITAL MILLENIUM COPYRIGHT ACT.  BINTELCOM respects the intellectual property rights of others, and we require our Customers to do the same. The contact information for our Digital Millennium Copyright Act ("DMCA") agent is as follows:

          DMCA Agent

          BINTELCOM CORP

          11480 Commerce Park Drive, Suite 500, Reston, Virginia 20191

          copyright@corp.BINTELCOM.us

 

If you believe your copyright is being infringed by content on the BINTELCOM network, please submit a notice of infringement via our Webform, located here:

REPORT COPYRIGHT ABUSE

The Webform is the fastest and easiest way to report possible copyright infringement.  BINTELCOM is committed to managing copyright complaints responsibly and in compliance with applicable laws.  In those circumstances where the United States DMCA is applicable, it is our policy to expeditiously process all valid notices of alleged copyright infringement.  Please note that sending a DMCA notice initiates a statutorily-defined legal process and we will share your full notice, including your contact information, with the BINTELCOM Customer at issue.  In most instances, BINTELCOM does not have access to particular content hosted by BINTELCOM Customers. Thus, upon receipt of a valid DMCA notice, BINTELCOM will forward your notice to the appropriate Customer, and require a timely and adequate response from the Customer.  You may also send your DMCA notice directly to the BINTELCOM Customer as well.  BINTELCOM has adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of Customers who are repeat infringers.  For additional details and information concerning BINTELCOM CORP’s DMCA policies and procedures, please click https://BINTELCOM.com/legal/dmca-policy.

 

8. THIRD PARTY PRODUCTS.

Customer is responsible for any Third Party Products that a third party licenses, sells or makes available to Customer that Customer installs or uses with the BINTELCOM Services.  Customer’s use of such Third Party Products is governed by separate terms between Customer and that third party. BINTELCOM is not a party to and is not bound by any of those separate terms.  Certain Third Party Products may carry a limited warranty from the third-party provider of such Third Party Products.  To the extent required or allowed, if BINTELCOM makes available to Customer a Third Party Product in connection with Customer’s use of the BINTELCOM Services, BINTELCOM will pass through to Customer any such manufacturer warranties related to such Third Party Products. Notwithstanding the foregoing, Customer acknowledges that BINTELCOM is not responsible for the availability or for the fulfillment of any Third Party Product warranty or for problems attributable to use of Third Party Products. ALL THIRD PARTY PRODUCTS ARE PROVIDED BY BINTELCOM ON AN "AS IS" BASIS. You are responsible for reviewing, accepting, and complying with any third party terms of use or other restrictions applicable to the Third Party Product.  BINTELCOM reserves the right to suspend or terminate any Third Party Products at any time.  The third party terms applicable to Third Party Products made available by BINTELCOM are available at http://BINTELCOM.com/legal/third-party-terms, as may be modified from time to time (the “Third Party Terms”).

 

9. TERM AND TERMINATION.

         a. TERM.  This Agreement will be effective upon Customer’s execution of the Order Form or when Customer otherwise clicks a box agreeing to this Agreement (during Account creation or otherwise) and, unless earlier terminated as set forth in this Agreement, continue in effect for the initial service term identified on the Order Form or selected in the Account (the “Initial Service Term”).  Unless otherwise set forth in an Order Form, this Agreement will automatically renew for additional periods of equal duration (each, a “Renewal Term”), unless either party gives notice of non-renewal at least thirty (30) days’ prior to the end of the then-current term (or less if such Service Term is monthly).

 

         b. TERMINATION.  Either party may terminate this Agreement or any BINTELCOM Services as set forth in the BINTELCOM Services Description or in an Order Form.  In addition to the foregoing termination rights and any other termination rights set forth in this Agreement, (a) BINTELCOM can terminate this Agreement immediately upon written notice to Customer if Customer breaches Section 7(b) and (b) either party can terminate this Agreement upon written notice to the other party if (i) such other party breaches this Agreement (other than breaches of Section 7(b)) and fails to cure such breach within thirty (30) days of receipt of written notice thereof or (ii) such other party (A) becomes insolvent, admits in writing its inability to pay debts as they mature or makes an assignment for the benefit of creditors; (B) becomes subject to control of a trustee, receiver or similar authority or any bankruptcy or insolvency proceeding; or (C) an equivalent or similar event or proceeding occurs in respect of the Customer in any jurisdiction (in each case of (A), (B) and (C), which, if initiated involuntarily, is not dismissed within forty-five (45) days of its institution).

 

        c. EFFECTS OF TERMINATION.  THE TERMINATION OF THE BINTELCOM SERVICES WILL CAUSE SUCH BINTELCOM SERVICES TO CEASE FUNCTIONING AND RESULT IN CUSTOMER NOT BEING ABLE TO ACCESS ANY USER DATA. FOLLOWING TERMINATION OF THIS AGREEMENT, BINTELCOM WILL DESTROY ALL USER DATA (WITHOUT PREJUDICE TO SECTION 9(d) BELOW). The termination of this Agreement for any reason will not affect: (i) the obligations of Customer and BINTELCOM to account for and pay to one another any amounts for which they are obligated by virtue of transactions or events which occurred prior to the effective date of termination; or (ii) any other obligation or liability which either Customer or BINTELCOM has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination.  The following Sections will survive any expiration or termination of this Agreement: 1, 3(b), 3(c), 4, 5, 6(c), 9(c), 9(d), 11, 12, 13, 14, 15 and 19.

 

        d. USER DATA POST EXPIRATION OR TERMINATION.  Before expiration or termination of the applicable Service Term, BINTELCOM recommends that Customer ensures it places a copy of its User Data in a place that can be accessed without the BINTELCOM Services. Provided that Customer is in compliance with all of the terms and conditions of this Agreement, BINTELCOM will extend Customer’s ability to access the BINTELCOM Services for fifteen (15) calendar days following the end of the Service Term if Customer notifies BINTELCOM via email (directed to support@corp.BINTELCOM.us) prior to the end of the Service Term.  In such event, (i) BINTELCOM will enable Customer’s access to the BINTELCOM Services for a maximum of fifteen (15) calendar days following the end of the Service Term (at no additional cost to Customer) for the sole purpose of enabling Customer’s retrieval of its User Data, and (ii) Customer’s use of the BINTELCOM Services during such complimentary period is subject to the terms and conditions of this Agreement. BINTELCOM is not responsible for the availability or accessibility of User Data following the later of (A) the expiration of the complimentary period should Customer make such request or (B) the end of the Service Term.

 

10. SUSPENSION.

            a. GENERALLY.  BINTELCOM may suspend your use of the BINTELCOM Services if BINTELCOM reasonably determines: (i) Customer, or Customer’s use of the BINTELCOM Services, is in breach of this Agreement; (ii) Customer fails to address BINTELCOM’s request to take action as specified in Section 7(b); (iii) Customer’s use of the BINTELCOM Services poses a security risk to the BINTELCOM Services or other users of the BINTELCOM Services; (iv) suspension is warranted pursuant to BINTELCOM’s receipt of a subpoena, court order, or a request by a law enforcement agency; or (v) as otherwise expressly set forth in this Agreement.  BINTELCOM will give you notice before BINTELCOM suspends, subject to Applicable Law, and unless BINTELCOM reasonably determines that providing the notice presents risk of harm to the BINTELCOM Services or any person or property.  BINTELCOM is entitled to obtain injunctive relief if Customer’s use of the BINTELCOM Services is in violation of any restrictions set forth in this Agreement.

 

          b. EFFECT OF SUSPENSION.  You will remain responsible for all fees incurred before or during any suspension. You will not be entitled to any service credits under any applicable Service Level Agreement that you might have otherwise accrued during the period of suspension.

 

11. ALLOCATION OF RISK.

Customer acknowledges and agrees that BINTELCOM has set its prices and entered into this Agreement and permitted Customer’s access to the BINTELCOM Services in reliance upon the disclaimers of warranty and the limitations of liability in this Agreement, that the same reflect an allocation of risk between BINTELCOM and Customer (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between BINTELCOM and Customer. If Customer is subject to Applicable Laws that prohibit Customer from indemnifying BINTELCOM as set forth herein or prohibit Customer from entering into the risk allocation arrangement set forth herein, then the terms of such provisions of this Agreement will apply to Customer only to the fullest extent permitted by Applicable Law, it being understood that Customer and BINTELCOM each wish to enforce the provisions of this Agreement to the maximum extent permitted by Applicable Law.

 

12. DISCLAIMER.

EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, BINTELCOM SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTY, TERMS OR CONDITIONS WHATSOEVER. ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY BINTELCOM AND ITS LICENSORS, TO THE EXTENT PERMITTED BY APPLICABLE LAW. NEITHER BINTELCOM NOR ITS LICENSORS WARRANT THAT THE BINTELCOM SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE BINTELCOM SERVICES WILL BE COMPATIBLE WITH CUSTOMER’S DEVICES, OR THAT THE BINTELCOM SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND SAVE TO THE EXTENT SUCH ALLOCATION OF RISK IS NOT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF BINTELCOM SERVICES IS WITH CUSTOMER.  IN NO EVENT WILL BINTELCOM OR ITS LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS CUSTOMER MAY HAVE RELATED TO ITS USER DATA.

 

 

13. LIMITATION OF BINTELCOM LIABILITY.

                 a. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BINTELCOM BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, LOST SAVINGS, LOST OR CORRUPTED USER DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OF USER DATA, LOST REVENUE, BUSINESS INTERRUPTION, OR LOSS OF CAPITAL (IN EACH CASE, WHETHER DIRECT OR INDIRECT) OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY BINTELCOM SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF BINTELCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR LIABILITY ARISING OUT OF BINTELCOM’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, THE AGGREGATE LIABILITY OF BINTELCOM IN CONNECTION WITH ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY BINTELCOM SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO: (A) THE AMOUNT PAID TO BINTELCOM FOR THE BINTELCOM SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE DAMAGED PARTY NOTIFIES THE OTHER PARTY IN WRITING OF THE CLAIM FOR DAMAGES; OR (B) IF GREATER, SUCH AMOUNT AS IS THE MINIMUM AMOUNT FOR WHICH BINTELCOM WOULD BE LIABLE UNDER APPLICABLE LAW.

 

             b. IF CUSTOMER IS FROM GERMANY, NONE OF THE PROVISIONS OF THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY LIABILITY FOR DAMAGE FROM INJURY TO LIFE, BODY OR HEALTH OR ANY LIABILITY FOR ANY DAMAGE ARISING FROM GROSSLY NEGLIGENT OR INTENTIONAL BREACH OF DUTY OR OTHER CONDUCT.

 

             c. FURTHER LIMITATIONS.  BINTELCOM’s licensors and service providers will have no liability of any kind under this Agreement.  Customer may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises. For German customers only Customer may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises and the Customer obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence.

 

14. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY.

           a. INDEMNITY FOR BINTELCOM SERVICES. Subject to the remainder of this Section 14, BINTELCOM will defend Customer against an Infringement Claim and indemnify Customer from the resulting costs and damages finally awarded against Customer to that third party by a court of competent jurisdiction or agreed to in settlement; provided that Customer: (i) promptly provides BINTELCOM with notice of any Infringement Claim; (ii) grants BINTELCOM sole control over the claim’s defense and settlement, and any related action challenging the validity of the allegedly infringed patent, trademark or copyright; and (iii) reasonably cooperates in response to BINTELCOM’s requests for assistance.  Customer may not settle or compromise any Infringement Claim without BINTELCOM’s prior written consent.  Notwithstanding the foregoing, BINTELCOM will have no obligation under this Section or otherwise with respect to any claim or award based on:  (A) a combination of the BINTELCOM Services with non- BINTELCOM data, products, business processes or content, including User Data; (B) use of the BINTELCOM Services for a purpose or in a manner not specified in this Agreement or the BINTELCOM Services Descriptions, or otherwise in a manner for which the BINTELCOM Services were not designed; (C) any modification of the BINTELCOM Services made without BINTELCOM’s express written approval; or (D) any Evaluation Service.  This Section 14(a) states your exclusive remedy for any Infringement Claims save that where the Customer is a consumer based in the EU, nothing in this Section 14(a) will limit or exclude the Customer’s statutory rights except as permitted by Applicable Law.

 

          b. INDEMNITY FOR THIRD PARTY PRODUCTS.  To the extent required or allowed, BINTELCOM will pass through to Customer any indemnities related to Third Party Products, if any.  Notwithstanding the foregoing, Customer acknowledges that BINTELCOM is not responsible for the fulfillment of any Third Party Product indemnities or for problems attributable to use of Third Party Products.

 

         c. REMEDIES. If any component of the BINTELCOM Services becomes, or in BINTELCOM’s opinion is likely to become, the subject of an Infringement Claim, BINTELCOM will at BINTELCOM’s option and expense:  (i) procure the rights necessary for Customer to keep using such component; (ii) modify or replace such component to make it non-infringing; or (iii) terminate this Agreement and refund any pre-paid fees for any BINTELCOM Services pro-rated for its remaining term.

 

15. INDEMNITY BY CUSTOMER. 

Customer will, to the fullest extent permitted by Applicable Law, indemnify BINTELCOM and its officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “BINTELCOM Indemnified Parties”) against and hold the BINTELCOM Indemnified Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees in connection with investigating, defending, or settling any claim relating to or arising out of any acts or omissions on the part of Customer which give rise to claims against BINTELCOM Indemnified Parties by third parties (unaffiliated with BINTELCOM), provided any final settlement will require BINTELCOM’s consent (which will not be unreasonably withheld) if the final settlement or compromise does not provide for the unconditional and full release of the BINTELCOM Indemnified Parties or if the final settlement or compromise requires the specific performance of BINTELCOM Indemnified Parties.  In all events, BINTELCOM will have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing at BINTELCOM’s own cost.  Customer will also indemnify and hold harmless the BINTELCOM Indemnified Parties for any costs and expenses, including reasonable attorneys’ fees, incurred in responding to any subpoena, search warrant, or court order requiring production of information or documents related to Customer.

 

16. U.S. GOVERNMENT PURCHASES.

BINTELCOM provides the BINTELCOM Services, including related software and technology, as “Commercial Items,” as that term has been defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms have been used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the BINTELCOM Services are provided to U.S. government customers (i) only as Commercial Items; and (ii) with only those rights as provided under the terms and conditions of this Agreement.   If a government agency has a need for rights not conveyed under these terms, it must negotiate with BINTELCOM to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

 

17. ANTICORRUPTION LAWS.

Customer and BINTELCOM each acknowledges that it is familiar with the U.S. Foreign Corrupt Practices Act (the “FCPA”) and agrees to comply with its terms as well as any provisions of local law related thereto.  Specifically, Customer and BINTELCOM each are familiar with the provisions of the FCPA prohibiting the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business involving the offering.  Customer and BINTELCOM each agrees to not violate or knowingly let anyone violate the FCPA and that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA or any other applicable anticorruption or anti-bribery law.

 

18. YOUR OBLIGATIONS.

Customer represents and warrants that (a) Customer will use the BINTELCOM Services only for lawful purposes, and will comply with all Applicable Laws and (b) Customer’s access to and collection, use, relocation, storage, disclosure and disposition of User Data will comply with all Applicable laws, including without limitation, all privacy and data security laws.

 

19. GENERAL PROVISIONS.

       a. PUBLICITY.  BINTELCOM must not use a Customer logo or trademark in any way without Customer’s prior written approval; provided, however, that BINTELCOM may use Customer’s name and logo on BINTELCOM’s website and marketing materials solely to identify Customer as an BINTELCOM customer (without revealing any details about the parties’ relationship or this Agreement). Customer will reasonably consider serving as a reference for BINTELCOM.   If Customer has any issues with any use by BINTELCOM of Customer’s name or logo, BINTELCOM and Customer will cooperate reasonably to resolve the issue promptly to Customer’s satisfaction.

 

      b. SEVERABILITY.  Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this AGREEMENT, and all other provisions will remain in full force and effect.

 

     c. GOVERNING LAW. Except as otherwise expressly provided herein, this Agreement is governed by the laws of the Commonwealth of Virginia, United States of America (excluding its conflict of law rules).  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts in some countries will not apply U.S. law to some types of disputes. If You reside in one of those countries, then where U.S. law is excluded from applying, the laws of Your country of residence will apply to any dispute or difference arising out of or in connection with the Agreement.

 

     d. DISPUTE RESOLUTION.  Subject to Section 19(e) below, the parties agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined solely and exclusively by binding arbitration before a single arbitrator (the “Arbitrator”).  The parties also agree that the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and shall be conducted in Washington, D.C., unless otherwise agreed to in writing by the parties.  The parties further agree that this Agreement does not permit a class arbitration, even if the procedures or rules of JAMS (or other dispute-resoluton organization or body) would otherwise permit it.  YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BINTELCOM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.  NO CLASS ACTION OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THOERIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION OR OTHER

BINTELCOM CORP TERMS OF SERVICE SECOND PART

PROCEEDING UNDER THIS AGREEMENT.  Either party may initiate arbitration by filing and serving a written demand for arbitration, which must be served on the other party by overnight mail with delivery confirmation to the addresses set forth in this Agreement.  The parties covenant and agree that the arbitration hearing shall commence within 180 days of the date on which a written demand for arbitration is filed by any party hereto (the “Filing Date”).  The Arbitrator’s decision and award (the “Award”) shall be made and delivered within 240 days of the Filing Date, and shall set forth a reasoned basis for the Award.  The Arbitrator shall not have the power to award damages in excess of traditional (i.e., benefit of the bargain) compensatory damages in contract and may not award special, liquidated, multiple, punitive, or other damages, and each party hereby irrevocably waives any claim to such damages.  In connection with the arbitration proceeding, the Arbitrator shall have the power to allow each party to (i) propound up to five (5) requests for the production of documents, including subparts, and (ii) conduct five (5) depositions of witnesses.  Interrogatories may not be propounded by any party, and all discovery must be completed within 60 days after the selection of the arbitration, and no later than 120 days after the Filing Date.  The Arbitrator shall also have the power to issue a subpoena for documents or information to any third-party witness within his or her jurisdiction.  The parties agree that the entirety of the arbitration proceedings, including all documents and information produced by any party or non-party, all deposition testimony, and all pleadings, motions, or correspondence exchanged in connection with the arbitration proceeding, shall be kept confidential.  Each Party hereby irrevocably agrees and submits to exclusive jurisdiction and venue in the federal district courts in the Eastern District of Virginia for entry of judgment on the Award or for relief in aid of arbitration; except, however, if the federal district courts in the Eastern District of Virginia decline to exercise jurisdiction, each Party agrees and submits to exclusive jurisdiction and venue in the state courts of Fairfax County in the Commonwealth of Virginia for the entry of judgment on the Award.  If each of these courts decline to exercise jurisdiction, each Party agrees and submits to jurisdiction and venue in any federal or state court located in the Commonwealth of Virginia for entry of judgment on the Award or for relief in aid of arbitration; and if each of those courts decline to exercise jurisdiction, judgment on the Award may be entered in any court having jurisdiction.  This clause shall not preclude parties from seeking: (i) provisional remedies in aid of arbitration from a court of appropriate jurisdiction; (ii) a temporary restraining order from a court of appropriate jurisdiction related to the purposes of this Agreement; or (iii) relief from a small claims court for disputes or claims within the scope of such court’s jurisdiction.  If the courts in Your country will not permit You to agree to the arbitration, jurisdiction and venue of the courts described above, then Your local jurisdiction and venue will apply to any dispute or difference arising out of or in connection with the Agreement.  For EU consumers only - The European Commission’s online dispute resolution platform can be found here:  http://ec.europa.eu/odr.  BINTELCOM is not obliged to submit to any alternative dispute resolution procedure, other than the arbitration before JAMS contemplated herein.

 

        e. OTHER APPLICABLE LAW. If You are otherwise subject to laws that prohibit Customer from agreeing to the foregoing governing law and/or venue provisions, then (i) the terms of such provisions of this Agreement will be deemed to be modified to reflect the governing law and/or venue required by Applicable Law; and (ii) Customer must, within thirty (30) days of the commencement of its Service Term, notify BINTELCOM (directed to legal@BINTELCOM.corp.us) to identify the Applicable Laws that apply to Customer and the resulting modifications to the governing law and/or venue provisions of this Agreement, without prejudice to the statutory rights of consumers based in the EU.

 

        f. ENTIRE AGREEMENT.  This Agreement sets forth the entire Agreement and understanding between BINTELCOM and Customer regarding the subject matter hereof and supersedes any previous or contemporaneous communications, representations, proposals, commitments, understandings, negotiations, discussions, understandings, or Agreements (including non-disclosure or confidentiality Agreements), whether oral of written, regarding the same subject matter. In the event of any conflict between these Terms of Service and an Order Form, the terms and conditions set forth in these Terms of Service will govern unless expressly amended in such Order Form. 

 

         g. WAIVER. The failure by BINTELCOM at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement.  The waiver of any default by BINTELCOM will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.

 

        h. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.

 

        i. NO JOINT VENTURE.  This Agreement will not be construed as creating any partnership, joint venture or agency relationship between BINTELCOM and Customer.

 

         j. ASSIGNMENT.  BINTELCOM may freely assign, transfer and/or delegate its rights and obligations under this Agreement but Customer may not assign, transfer and/or delegate its rights and obligations under this Agreement without BINTELCOM’s prior written consent (not to be unreasonably withheld). Any attempted assignment or transfer in violation of this Section will be void.  Subject to these limits, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

 

         k. NO THIRD PARTY BENEFICIARIES. Other than as expressly provided in this Agreement, no third-party beneficiaries are intended or will be construed as created by this Agreement.

 

         l. NOTICES.  Any notice delivered by BINTELCOM to Customer under this Agreement will be delivered by email to the email address associated with Customer’s account or by posting at BINTELCOM Manager, except as otherwise set forth in this Agreement.  Customer will direct legal notices or other correspondence, including any complaints, under this Agreement (including under any Additional Terms) to BINTELCOM CORP, 11480 Commerce Park Drive, Suite 500, Reston, VA 20191, United States of America, Attention:  Legal Department, or by email directed at legal@corp.BINTELCOM.us.

 

        m. FORCE MAJEURE.  BINTELCOM will not be liable for any delay or failure to perform any obligations under this Agreement due to any cause beyond BINTELCOM’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.  If such a force majeure event occurs and continues for a period of more than thirty (30) days, either party may terminate this Agreement upon written notice to the other party.

 

        n. EXPORT COMPLIANCE. Customer may not use or otherwise export or re-export the BINTELCOM Services or any related software or technology except as authorized by United States law and the Applicable Laws of the jurisdiction in which the BINTELCOM Services were obtained.  In particular, but without limitation, the BINTELCOM Services may not be exported or re-exported (i) into any U.S. embargoed country or region, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List, Entity List or Unverified List. By using the BINTELCOM Services, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer also agrees that it will not use these products for any purposes prohibited by United States law.  Customer is solely responsible for complying with all import, export, and re-export control laws, including but not limited to the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”).  Customer is also solely responsible for any applicable license requirements in connection with the BINTELCOM Services, and BINTELCOM makes no representations or warranties regarding the suitability of the BINTELCOM Services for Customer’s compliance with the EAR and/or ITAR. 

 

20. ORDER OF PRECEDENCE.

In the event of a conflict between or among any provision set forth in an Order Form, the Terms of Service, or any of the Additional Terms, the following order of precedence shall apply, from most controlling to least controlling (provided, however, that the existence of a provision in a document and the absence of such provision in another document shall not constitute a conflict for the purposes of this provision): (a) the Order Form; (b) the Terms of Service; (c) Privacy Policy; (d) Data Privacy Addendum; (e) Third Party Terms; (f) Service Descriptions; (g) Service Level Agreement; and (h) Support Policies.

 

21. QUESTIONS.

Any questions regarding this Agreement should be directed to BINTELCOM using any of the contact methods located at https://BINTELCOM.com/about/contact.