Aynax Terms of Service
This Aynax Terms of Service Agreement ("Terms of Service" and/or
"Agreement") is entered into between Aynax.com, Inc., all of its
subsidiaries and all of its parent companies (collectively, "Aynax,"
"we," and/or "us") and the individual or entity that accesses and/or
uses the "Services" (defined herein) provided by Aynax, including
without limitation, any employee, independent contractor, invitee or
agent of such individual or entity whether or not a "subscriber" to
the Services or the Services have been paid for by anyone ("User,"
"you," and/or "your").
BY CREATING YOUR ACCOUNT, ACCESSING AND/OR USING THE SERVICES, YOU AGREE
TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT. AYNAX MAY MODIFY THIS
AGREEMENT AT ANY TIME WITHOUT PRIOR NOTICE. CONTINUED USE OF THE
SERVICES WILL BE CONDITIONED UPON THE VERSION OF THIS AGREEMENT THAT
IS IN EFFECT AT THE TIME OF YOUR USE. BY ACCESSING AND/OR USING THE
SERVICES YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. YOU ARE
URGED TO READ CAREFULLY THIS ENTIRE AGREEMENT AND PRINT AND RETAIN A
COPY FOR YOUR RECORDS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND
CONDITIONS CONTAINED IN THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO AND
SHOULD NOT ACCESS OR USE THE SERVICES.
- DEFINITIONS. Capitalized terms have the following meanings unless otherwise
- "Account" The means by which Aynax authorizes access to
the "Services" (defined herein) through the purchase of
and/or establishment of future payment(s);
- "Affiliate" Any direct or indirect parent or subsidiary
of Aynax (whether wholly, majority, or minority owned by the common
owner), any Aynax officer, director, employee, reseller, distributor
and/or joint venture partner;
- "Agreement" This "Terms of Service Agreement"
together with other agreements defined herein;
- "Content" Any data, packets, documents, information,
form, communication or other material that is transmitted, uploaded,
transferred, controlled, downloaded, recorded or otherwise made
available or existing in conjunction with the Services whether or not
using your Log-In Information, including without limitation any and
all "Personal Information" (defined herein), identities
and likeness of "Persons" (defined herein), recordings,
and any other spoken, written or electronic expressions or works.
- "Person" Any individual human being or legal entity;
- "Personal Information" Any information collected or
maintained by Aynax that identifies or could be used to identify you
and others Persons;
- "Site" The internet domain "www.Aynax.com,"
any sub-domains thereof and/or any successor websites owned and/or
controlled by Aynax; and
- "Services" Collectively, the Site and any Content made
available to you by Aynax.
- PAYMENT TERMS, REFUNDS, UPGRADING.
You can create a free trial account
without the use of a credit card. The free trial lasts twenty-one
(21) days. A valid credit card, however, is required to pay your
monthly charges if you decide to sign up for a paid plan when the
trial is over. A paid account is billed in advance on a monthly
basis on the same day each month and is non-refundable. There will
be absolutely no refunds or credits for partial months of service,
upgrade/downgrade refunds, or refunds made regardless of whether you
do or do not use the Service. Upgrading from your free trial account
to any Aynax fee-paying accounts will end your free trial. You will
be billed for your first month immediately upon upgrading. All fees
are exclusive of all taxes or duties by taxing authorities and you
shall be responsible for payment of all such taxes or duties.
Downgrading your account at Aynax may cause the loss of Content,
features or capacity of your Account. Aynax shall not be liable for
any such loss.
- CANCELLATION OF SERVICE.
You may cancel the Service and your Account at any time.
Your cancellation will take effect immediately and you will not be
billed for any subsequent months. You can choose to cancel the paid
plan and keep your account. If you choose to close your account, you
will not be able to log into your account. If you cancel or close
your account, the content in the account can be deleted at any time
with no further notification. Cancellation must be done through the
website within the service itself. Aynax will not entertain or
respond to any request made through e-mail, telephone or written
requests. Aynax.com has the right to suspend or deactivate your
account at any time for any reasons, including, but not limited to,
excessive usage of our servers resources. Such terminations of the
services will result in deletion of your account and forfeiture of
all content in your account.
- NON-OWNERSHIP OF SERVICES.
Your use of the Services is licensed, and not sold to
you, solely for your use under the terms and conditions of this
Agreement and the License granted herein. Aynax retains all right,
title, and interest relating to or embodied in the Services,
including without limitation all intellectual property rights,
technology, know-how and copies relating thereto. You hereby agree
to promptly enter into any further agreements required by Aynax to
legally or commercially document, perfect or retain such ownership,
including without limitation, if applicable, ensuring that any of
your employees and contractors do the same.
- OWNERSHIP OF MARKS.
All brand names, product names, trade names, domain names,
graphics, logos, service marks and trademarks relating to the
Services (collectively, the "Marks") are the property of
Aynax or its Affiliates. Aynax and its Affiliates retain all right,
title and interest in and to the Marks, including all intellectual
property rights. You may not remove from, add to, or alter any
portion of the Marks, copyright notices or other proprietary rights
or markings associated with the Services. You are prohibited from
using any of the Marks for any purpose without Aynax's prior
express written consent.
- LICENSE OF CONTENT.
You hereby grant to Aynax, solely for the purpose of
providing the Services, a non- exclusive, worldwide, royalty-free,
fully-paid, transferable license to host, cache, copy, display,
transmit, upload, transfer, control, download, record and transmit
certain types of Content in connection with your use of the
- CONTENT DISCLAIMERS.
Aynax does not verify or endorse any Content. Aynax
does not represent or endorse the accuracy or reliability of any
Content. You acknowledge that any reliance by you upon any Content
(whether yours or others) shall be at your sole risk. Any Content
placed on the Site represents solely the views of the publisher of
the Content and does not represent the views of Aynax. You are
solely responsible for your Content including, if desired by you,
the making and keeping of back-up copies of any or all Content.
Aynax has no responsibility or liability for the deletion or
accuracy of any Content, the failure to store, transmit or receive
transmission of any Content (whether or not processed by the
Services), or the security, privacy, storage or transmission of
other communications involving use of the Services.
- USER REPRESENTATIONS, WARRANTIES AND COVENANTS.
With the knowledge and understanding that Aynax and its Affiliates will rely on the
following representations, warranties, and covenants by you, which
you will ensure remain true and correct at all times during the life
of this Agreement, you hereby represent, warrant, and covenant that:
- Use of Services
- You have all necessary right, power and authority to enter into this
Agreement and to perform the acts required of you hereunder.
- Your ability to access and use the Services may require the payment of
third party fees and charges (including but not limited to fees and
charges such as telephone toll charges, airtime charges or internet
service provider fees and/or fees or taxes imposed on internet
services, including any sales or use taxes by governmental agencies)
and that Aynax shall not be responsible for paying any such fees,
charges and taxes.
- To gain access to and use the Services, you will be required to provide
an e-mail address and to create a log-in and password (collectively,
"Log-In Information"). You are solely responsible for
all activity occurring under your Log-In Information. You must keep
your Log-In Information confidential and must not share your Log-In
Information with third parties. Aynax has no obligation or
responsibility with regard to your use, distribution, disclosure or
management of Log-In Information. Notwithstanding the foregoing,
Aynax may require you to change your Log-In Information if such
Log-In Information is inconsistent with the terms of this Agreement. You
agree that Aynax may act in reliance, without investigation, upon any of
your Log-In Information. We will not be required to inquire into the truth
or evaluate the merits of any of your Log-In Information or any
statement or representation contained in any notice, document or
other communication presented or otherwise transmitted by you. Any
Person using your Log-In Information is conclusively deemed to have
actual authority to engage in transactions using the Services and,
accordingly, all transactions made by a Person using your Log-In
Information are hereby authorized and approved by you, and you hereby
agree to indemnify, defend and hold Aynax harmless from any claims or
damages arising from or relating to any such transactions.
- You acknowledge and agree that your use of the Services may require
equipment and/or software from third parties that you may need to
access or use the Services, and that Aynax shall not provide or be
responsible in any way for such equipment and/or software.
- You are the owner or authorized user of all Content related to your use
of the Services.
- Unless you have all requisite rights to submit and use Personal Information
and other Content, you acknowledge and agree that you will not
submit such Content or information to the Site or to otherwise use
such Content in any manner that involves the Services.
- You will not publish, post, upload, record, link to or otherwise
distribute or transmit any Content that: infringes or violates, or
would infringe or violate, any copyright, patent, trademark, service
mark, trade name, trade secret, domain name or other intellectual
property or proprietary right of Aynax or any other Person, or any
rights of publicity or privacy of any Person; violates any
applicable law, statute, ordinance or regulation (including without
limitation applicable laws and regulations concerning
anti-discrimination, export controls, false advertising or unfair
competition); promotes, solicits, comprises or contains abusive,
defamatory, excessively violent, harassing, inappropriate, indecent,
lascivious, lewd, obscene, pornographic, profane, threatening,
vulgar or otherwise inappropriate, objectionable or unlawful
material; is harmful to minors; contains corrupted files, trojan
horses, viruses, worms or any other similar data, programs or
software that may damage, expropriate, intercept or interfere with
any data, information, property or system of another Person or that
may damage or interfere with the Services; is materially false,
misleading or inaccurate; advocates, assists, incites, instructs,
promotes or otherwise encourages violence or any illegal activity;
attempts to mislead others about your identity or the origin of any
message or other communication, impersonates or otherwise
misrepresents your affiliation with Aynax or any other Person, or is
otherwise false, misleading or inaccurate; or contains information
for which you do not have the right to permit Aynax to collect and
- Legal Compliance
- You have the full power and authority to grant all licenses and other
rights to third party property (including third party intellectual
property) that are granted or required to be granted by you to Aynax
and its Affiliates pursuant to this Agreement.
- You are solely responsible for your familiarity and compliance with any
and all laws that may prohibit you from accessing or using any part
or all of the Services or that may limit or regulate such
participation or use.
- You agree not to use the Services for any illegal purpose.
- You agree to comply with all applicable local, state, national and
international laws and regulations, including without limitation
laws relating to intercepting, monitoring or recording
communications, privacy and data protection, and public displays or
performances. You further agree that neither this Agreement nor any
other right or remedy of Aynax requires Aynax to exercise any right
or remedy in order to benefit or protect you or any other Person,
although Aynax reserves the right to do so in its sole discretion.
- Payments By You
The payment information supplied to Aynax by you (if applicable) is, and
shall at all times during the life of this Agreement, be true, accurate and
complete. You covenant that payments made by you to Aynax and Affiliates
will be honored by the financial entity facilitating the payment on your
behalf. If any payment is not so honored, you remain liable for payment of
all amounts due under this Agreement. You acknowledge and agree that we may
change our charges, fees and pricing for future renewals of the Services,
and that the cost of future renewals for the Services may increase.
- Unauthorized Use.
You acknowledge and agree that any unauthorized use, copying or
distribution of the Services is expressly prohibited by law and by
this Agreement and may result in severe civil and criminal penalties
against you. Violators will be prosecuted by Aynax to the maximum
extent possible. Without limitation, you agree not to engage in any
of the following unauthorized uses: (i) Attempt to gain unauthorized
access to the Services, or to other Accounts, computer systems or
networks connected to the Services, whether through hacking, password
mining or any other means; (ii) Falsify or delete any copyright
management information, such as author attributions, legal or other
proper notices or proprietary designations, or labels of the origin
or source of software or other material contained in a file that is
uploaded; (iii) Obtain or attempt to obtain any materials or
information through any means not intentionally made available
through the Services; (iv) Engage in any extraction of data or data
fields, including without limitation e-mail addresses; (v) Disrupt,
interfere with or inhibit any other Person's use and enjoyment of the
Services; (vi) Violate the rights of Aynax or any third party,
including without limitation abuse, defame, defraud, harass, stalk,
threaten or otherwise violate the legal rights (such as rights of
privacy and publicity) of Aynax or any third party; (vii) Use any
Aynax domain name as a false return e-mail address; (viii) Use the
Aynax name to advertise, market or sell any type of goods or services
or imply in any type of communication that Aynax endorses or is
associated with such goods and services unless Aynax has given its
prior written consent for such activity; (ix) Access and/or use the
Services or any type of software or equipment that could in any
manner damage, disable, overburden, impair or otherwise interfere
with or disrupt the Services, the Aynax server and/or any network
connected to the Services;
- Contact Interface.
You acknowledge and agree that Aynax may obtain and record information
about your contacts, your use of, and availability on the Services at
any given time, among other information, and that Aynax can utilize
and maintain this information: for its own use; to provide marketing
communications to you; to provide marketing communications to your
contacts; and for disclosure to third parties (including government
officials or pursuant to any court order, subpoena, request or other
inquiry) in accordance with applicable law or governmental request at
any time. Aynax has no duty to inquiry or verify the validity or
enforceability of any court, order, inquiry or request by any
governmental agency, instrumentality or authority for information or
documents related to your use of the Services.
- UPDATES AND AMENDMENTS. Aynax may, at any time, amend the provisions of
this Agreement. If you do not accept an amendment, this Agreement
will terminate. This Agreement shall automatically incorporate and
include any and all add-on components, amendments, features,
modifications, supplements, updates and other functionality or
messages related thereto, including without limitation alterations
of availability, content, features, functionality, security, storage
and other information relating to the Services that Aynax may
provide or make available generally to its customers (collectively,
"Updates") subject to any additional terms and conditions, including
any additional fees and costs, provided by Aynax applicable to such
Updates. Aynax has no obligation to, and nothing in this Agreement may
be construed to require Aynax to, create, provide or install Updates.
Your access and use of the Services will always be subject to the most
current versions of these Terms of Service, as well as any and all rules
and guidelines posted on the Site at the time of such use. You agree to
regularly check the "Aynax Terms of Service" link on the Site to
view the then-current Terms of Service. Notwithstanding anything in
this Agreement to the contrary, if Aynax posts amendments to the
Terms of Service on the Site, such terms will automatically become
effective, shall be incorporated into this Agreement immediately,
and where inconsistent with any other terms and conditions of this
Agreement shall supersede any such conflicting terms or conditions.
By using the Services after such revised terms are posted, you agree
to be bound by any such revised terms at the effective time.
- SECURITY OF COMMUNICATIONS. You acknowledge and
agree that the Services are conducted and provided by Aynax
electronically through the internet and that Aynax cannot and does
not guarantee the security or privacy of any electronic
communications in which you participate.
- Disclosure of Personal Information. Except as otherwise stated in this
Agreement, Aynax will not share your Personal Information with any
third party. However, Aynax in its sole discretion may (but has no
obligation to) monitor or review your access to and use of the
Services at any time. Aynax may at any time without notice and in
its sole discretion terminate access to, or use of, any area of the
Site where information is posted or submitted, or may disclose any
information related to your access to and use of the Services or
the substance of any of your posted or submitted information as
Aynax deems necessary, including without limitation to comply with
applicable law, regulation, legal process or governmental request.
You agree to use extra care when disclosing any Personal
Information about yourself or your organization when posting or
otherwise submitting any information to the Site. All required
registration information that you provide to Aynax must be current,
complete, and accurate and must be kept up to date with Aynax on a
prompt, timely basis. If your use of and access to the Services
includes password-restricted access to your sensitive information
(such as, for example, customer lists and contractual terms), then
by accessing or using the Services and setting up an Account, you
consent to the display and storage of such information by Aynax and
accept all risks of unauthorized access to such information.
- Compliance with Privacy Regulations. You agree to comply with all applicable
privacy laws, to obtain all necessary consents, and to make all
necessary disclosures before using the Services. You acknowledge
that any or all of your Content may be recorded and transmitted by
Aynax. You are solely responsible for any information about you
that you disclose through use of the Services. You are solely
responsible for, and shall indemnify Aynax and its Affiliates for
your access to and use of any third party data and information
including Personal Information that is communicated or that you
otherwise have access to through your use of the Services.
- Locations of Aynax Data Centers. Personal Information and Content may be
transferred, stored and/or processed in multiple locations in which
Aynax or its Affiliates maintain facilities. By using the Services,
you consent to any such transfer, processing and storage of
Personal Information outside of your location of citizenship and/or
- Regulated Access. The Services may not be available in certain locations and
to certain Persons in order to comply with applicable laws and
regulations. Aynax reserves the right, in its sole discretion, to
deny access to the Services at any time and for any reason
whatsoever, including without limitation to comply with applicable
- RESTRICTIONS ON USE. You agree not to decompile, disassemble,
reverse engineer, translate or otherwise attempt to learn the source code or
technological know-how of any component of the Services. You may not create,
assign, copy, deliver, distribute, lease, loan, modify, pledge, rent, sell,
sublicense, timeshare, create derivative works of or otherwise transfer, directly
or indirectly, any portion of the Services or any rights thereto. You are
prohibited from reselling or acting as agent for any component of the Services
without Aynax's prior express written consent.
- Export Control Laws.
You acknowledge that some laws and regulations in
various locations restrict the export and re-export of certain
technical data relative to their origin. Without limiting the
foregoing, you acknowledge that your Content may be subject to
controls by various regulatory agencies around the world. You agree
that you are solely responsible for avoiding any actions that may be
deemed to be violations of such laws and regulations, and that Aynax
shall bear no responsibility or liability for any such violations
committed by you in connection with your use of the Services.
- Hazardous Environments & High Risk Activities.
The Services are not designed for use in connection with any hazardous or
high-risk activity or any circumstances requiring fail-safe performance or
controls. You acknowledge and agree that any use of the Services by
you and/or at your instruction (whether express or implied) in
connection with any activity or circumstances deemed by Aynax to be
hazardous or high-risk shall be done solely and wholly at your own risk.
- Links to Third Party Sites.
The Site may include links that will take you to other websites (collectively,
"Linked Sites"). The Linked Sites are provided by Aynax to you as a
convenience, and the inclusion of such links does not imply any endorsement
by Aynax of any Linked Sites. Aynax has no control over the Linked Sites.
Neither Aynax nor its Affiliates are, and under no circumstances
shall be, responsible for any content, product or service of any
Linked Sites. You acknowledge and agree that your visits to any of
the Linked Sites shall be made solely at your own risk. You
acknowledge and agree that Aynax is not responsible for the content
of any Linked Sites, any link contained in any Linked Sites, and any
changes or updates to Linked Sites. You further acknowledge and
agree that Aynax is not responsible for any form of transmission
received from any Linked Sites.
- Copyright Infringement.
Aynax will, in appropriate circumstances as determined
in its sole discretion, terminate this Agreement (including the
License and other rights granted to you herein) if you infringe the
intellectual property rights of others. Aynax may, in its sole
discretion, investigate notices of copyright infringement and take
appropriate actions. If you believe that any work of authorship has
been used or copied in a way that constitutes copyright infringement
and that such infringement is occurring in connection with the
Services, please provide us with all of the following information:
(a) an electronic or physical signature of the person authorized to
act on behalf of the owner of the copyright interest; (b) a
description of the copyrighted work that you claim has been
infringed; (c) a description of what Services the claimed infringing
material is related to; (d) your address, telephone number, and
e-mail address; (e) a written statement by you that you have a good
faith belief that the disputed use is not authorized by the
copyright owner, its agent, or the law; and (f) a written statement
by you, made under penalty of perjury, that the above-described
information in such notice is accurate and that you are either the
copyright owner or authorized to act on the copyright owner's
Aynax does not generally monitor activity occurring in connection
with the Services. However, if Aynax becomes aware of any actual or
possible violations by you of any provision of this Agreement Aynax
reserves the right to investigate such actual or possible violations
and Aynax may, at its sole discretion, immediately terminate this
Agreement with you, or may change, alter or remove Content, in whole
or in part, without prior notice to you. If, as a result of any such
investigation, Aynax believes that criminal activity has occurred or
is occurring, Aynax reserves the right to refer the matter to and
cooperate with applicable law enforcement authorities. In connection
with any such investigation, Aynax is entitled to disclose to law
enforcement or other government officials or representatives, as
Aynax in its sole discretion believes to be necessary or
appropriate, any information that is in our possession resulting
from your use of the Services, including without limitation Personal
Information (except to the extent prohibited by applicable law).
- CONTENT ACCESS AND STORAGE.
- The Services are provided to you by automated means, namely the
uploading of Content via the applicable tools for transmission,
downloads or other activities. Aynax will access Content as
permitted under this Agreement, or as necessary to maintain or
provide the Services, including without limitation: (i) to respond
to service requests; (ii) to restore the applicable Content at your
request in the event of a service interruption; (iii) to conform to
legal requirements or comply with any legal inquiry, subpoena or
legal process as deemed necessary or advisable by Aynax in its sole
discretion without any duty of Aynax to inquiry or investigate the
validity or appropriateness of any legal inquiry, court order,
subpoena or legal process; (iv) to detect, prevent or otherwise
address fraud, security or technical issues; and/or (v) to enforce
this Agreement, including investigation of potential violations
- Aynax has no control over, and shall have no liability for, whether and in
what manner your Personal Information is utilized. Aynax does not
pre-screen information that users provide or otherwise submit in
using the Services. Aynax may collect certain information regarding
your use of the Services, such as the name of the internet service
provider and the internet protocol address through which you access
the internet; the time you access the Services; the pages that are
accessed at the Site; and the internet address of the website from
which you accessed the Site. Aynax uses this information to support
the Services and, as otherwise permitted under this Agreement.
- DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED "AS-IS" ON AN "AS-AVAILABLE" BASIS, "WITH ALL FAULTS"
AND WITHOUT ANY WARRANTY OF ANY KIND OTHER THAN AS DESCRIBED BY AYNAX AND UNDER
THE TERMS OF THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
AYNAX HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND REGARDING THE
SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, COMPATIBILITY, WORKMANLIKE EFFORT, ACCURACY,
AVAILABILITY, AND/OR NON-NEGLIGENT PERFORMANCE. THE SERVICES ARE
BUSINESS PRODUCTS, THE APPLICATION OF WHICH IS COMMERCIAL RATHER THAN
CONSUMER-ORIENTED IN NATURE. IN ACCEPTING THIS AGREEMENT, YOU
RECOGNIZE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THAT
CONSUMER PROTECTION LAWS DO NOT APPLY TO YOUR USE OF THE SERVICES NOR
TO ANY OF THE TRANSACTIONS CONTEMPLATED BY AND CONSUMMATED PURSUANT
TO THIS AGREEMENT. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS.
YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM LOCATION TO
LOCATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST,
SO THE LIMITATIONS CONTAINED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY.
- Use at Your Own Risk.
The use of the Services and the downloading or
other use of any information or materials therefrom shall be done
solely at your own discretion and risk and with your understanding
that you will be solely responsible for any damage to your computer
system or any loss of data or any other harm that results from such
activities. Aynax will not be liable for any loss that you may incur
as a result of someone else using your Log-In Information, either
with or without your knowledge. Aynax shall have no responsibility
for any failure that arises out of your use of the Services with any
hardware configuration, platform or operating system, including
without limitation any failure related to or arising from your
inability to connect to or to access the Site, Software or Services
due to problems related to your computer hardware, any software
program, network, your internet service provider or any other
similar problem. Aynax provides no insurance for your use of the
Services or any Content. If you wish to obtain protection for
damages incurred as a result of any loss or damage to Content,
interruption of Services, failure of the website to function or
otherwise resulting from your use of the Services or your account,
then you should purchase appropriate insurance therefore. Otherwise,
your damages are limited as set forth in these Terms of Service.
- Use of Content.
You agree that neither Aynax nor any of its Affiliates
shall be liable for any Content or the access, recording, storage or
other use by Aynax thereof, including without limitation: (a) any
Content that is sent, received, held, released or otherwise
connected in any respect to the Services; (b) any Content that is
sent but not received; (c) any access to or alteration of Content by
you or any other Person; (d) any Content sent using, or included in,
the Services; (e) any defamatory, illegal, obscene, offensive or
threatening content; (f) the conduct of you or anyone else in using
the Services; or (g) any infringement of another Person's rights,
including without limitation rights of privacy, intellectual
property or data protection.
- Third-Party Providers.
Aynax offers no guarantees and assumes no responsibility
or liability of any kind with respect to third-party services,
including without limitation any liability resulting from
incompatibility between the Services and any third-party services.
You agree that you will not hold Aynax or any Affiliate responsible
or liable for any matter caused by or related to services provided
by any third party.
The Services may include technical mistakes, interruptions,
inaccuracies and/or typographical errors.
- Force Majeure.
Aynax will not be liable for any non-performance or delay
in performance caused by any event reasonably beyond the control of
Aynax including without limitation accidents, acts of God, acts of
government, the activities of hackers, civil disturbance,
earthquake, embargo, epidemics, explosion, fire, flood, force of
nature, hostilities, malicious conduct, national emergency,
revolutions, riots, wars, service outages resulting in failures of
equipment, telecommunications, power failures, network failures or
failures of third party service providers (including providers of
internet services and telecommunications).
Except as otherwise required by applicable law and as limited by
these Terms of Service, you agree that you will not be entitled to
any damages under or pursuant to this Agreement except for the
direct monetary damages actually incurred and proven by you in
reasonable reliance upon use of the Services, and that such proven
damages in any and all events shall be limited to the amount you
actually paid for the Services during the three-month period prior
to the event giving rise to your claim. Without limiting the
foregoing, you agree that the following damages are expressly
- Any and all indirect, special, incidental, punitive and consequential
- Any and all damages for: loss of confidential or other information
(including without limitation Personal Information); business
interruption; personal injury; loss of privacy; loss of profits;
emotional distress; and failure to meet any duty of good faith or
- Any and all damages resulting from your inability to use the Services or
to access data, information (including without limitation Personal
Information) or Content;
- Any and all damages for any other claim arising out of or in connection
with: the statements or actions of any third party on or via the
Services; any dealings with vendors, customers, clients or other
third parties; any unauthorized access to or alteration of your
transmissions, materials, information (including without limitation
Personal Information) or other data; any information that is sent or
received, or that is not sent or not received; any failure to store,
or loss of, data, files, materials or other Content; any access to
or use of the Services that is delayed or interrupted; any Linked
Sites; or your access to or use of, or inability to access or use,
any Linked Sites;
- Any and all damages based on any theory of legal liability including
statute, breach of contract, breach of warranty, tort (including
negligence), product liability, negligent misrepresentation or
otherwise, even if Aynax or its Affiliates have been advised of the
possibility of such damages and even if a remedy set forth in this
Agreement is found to have failed of its essential purpose;
- Any and all damages arising out of, related to, or based upon your
inability to connect to or to access the Services due to problems
related to your equipment, any software, your internet service
and/or any other similar problem out of Aynax's control; and
- Any and all damages for any pecuniary loss whatsoever.
- INDEMNIFICATION AND GENERAL RELEASE.
You hereby agree to release Aynax and Affiliates from any and
all claims, demands and damages (actual and consequential) of every
kind arising out of or in any way connected with your use of the
Services or related to any invoices or other documents you may
create or issue and for any other purpose whether or not
contemplated or permitted by this Agreement. You hereby also agree
to defend, indemnify and hold Aynax and Affiliates harmless from and
against any and all claims, liabilities, damages and costs
(including without limitation fees, costs and expenses of attorneys)
arising out of or related to:
- Use of or access to the Services by you or by any Person using your
Log-In Information, whether or not such use was authorized by you;
- Any actual or alleged violation of this Agreement or applicable law by
you or by any Person using your Log-In Information, whether or not
such use was authorized by you;
- Any actual or alleged infringement of any intellectual property,
proprietary information, violation of privacy or other rights by you
or by any Person using your Log-In Information, whether or not such
use was authorized by you;
- Any recording of the communications or other Personal Information of
you or any other users of the Services;
- Any claims or allegations for product liability, unsuitability or lack
of fitness for a particular purpose, or any other claims or
allegations arising out of or related to the use of the Services;
- Any disputes between you and any other party related to the Services;
- Your negligence, gross negligence or willful misconduct.
- DISPUTE RESOLUTION.
Any claim, dispute or controversy, whether in contract, tort or otherwise,
whether pre-existing, present or future, including statutory, consumer
protection, common law, intentional tort and/or equitable claims by you
against Aynax, its agents, employees, principals, successors, assigns
and/or Affiliates arising from or relating to this Agreement (including,
to the full extent permitted by applicable law, relationships with
third parties who are not signatories to this Agreement), shall be
resolved exclusively and finally by binding Arbitration administered
by the International Chamber of Commerce under its Commercial Rules
before a single Arbitrator applying the laws of the State of New
York, exclusive of its conflicts of laws principles (the
"Arbitration"). The venue of the Arbitration proceeding
shall be conducted exclusively in New York, New York or such other
venue to which the parties may agree in writing. The Arbitrator
shall be empowered to grant whatever relief would be available in
court of competent jurisdiction under law or in equity. Any Award of
the Arbitrator shall be final and binding on each of the parties,
and may be entered as a judgment in any court of competent
jurisdiction. The Arbitrator may grant reasonable attorney and/or
other fees to the prevailing party. You acknowledge and agree that
separate from any Arbitration proceeding, Aynax may also seek
injunctive or equitable relief in a Court of competent jurisdiction
to prevent irreparable injury to it, its Marks, and/or other
intellectual property, and in such proceeding you consent to the
jurisdiction of such Court. YOU HEREBY ACKNOWLEDGE THAT YOU ARE
GIVING UP RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH
RESPECT TO ANY DISPUTE UNDER THIS AGREEMENT. OTHER RIGHTS THAT MAY
HAVE BEEN AVAILABLE IF THE DISPUTE WENT TO COURT, SUCH AS ACCESS TO
DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
- NOTICES. You and Aynax will provide any communication to each other under
this Agreement as follows:
- Notice to You. Notice shall be sent to you either: (1) via electronic means
to the e-mail address associated with your Account and shall be
deemed delivered when sent by Aynax; or (2) by hard copy postal mail
to the address contained in your Log-In Information and shall be
deemed delivered five (5) calendar days after mailing.
- Notice to Aynax. Except where an electronic notice to Aynax is expressly
permitted by this Agreement, notice shall be sent to Aynax addressed
to the principal place of business indicated on the Site, to the
attention of the President, either via: (1) postal mail, signature
required and return receipt requested; or (2) overnight courier with
delivery signature required. Any notice sent by you shall be deemed
delivered when actually received and signed for by an authorized
representative of Aynax.
- GOVERNING LAW. This Agreement shall be construed in accordance with, and
governed by the laws of the State of New York, exclusive of its
conflicts of laws principles.
- RESERVATION OF RIGHTS. Aynax reserves all rights not expressly granted in this
- Invalidity. If any part of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, then such invalid or
unenforceable provision will be deemed superseded by a valid,
enforceable provision that most closely matches the intent of the
original provision and the remainder of the Agreement will continue
in full force and effect.
- No Waiver. Our failure to exercise or enforce any right or provision of
this Agreement will not constitute a waiver of such right or
provision unless expressly agreed to by Aynax in a non-electronic
writing manually signed by a duly authorized officer of Aynax.
- Authority. If you are an individual and are entering into this Agreement on
behalf of a legal entity, you represent and warrant that you have
due authorization from the governing body of such entity to enter
into this Agreement and to bind such entity to all of the terms and
conditions of this Agreement.
The headings of the sections and subsections in this Agreement are
provided for convenience only and may not be deemed to affect its
construction or interpretation.
- Restrictions on Users.
Users must be thirteen (13) years of age or older to use
the Services. Registered accounts must belong to human beings. Bots,
programs or any other automated sign-ups are not permitted. Only one
person can hold and use the same account.
- Entire Agreement.
This Agreement constitutes the entire agreement and
understanding between Aynax and you with respect to the Services and
supersedes all other prior or contemporaneous communications,
agreements, understandings and proposals, whether written, oral,
electronic or non-electronic, between Aynax and you regarding its
- SPECIAL TERMS OF SERVICE FOR THE BANK CONNECTION MODULE.
- Provide Accurate Information. You, the end user, agree to provide true, accurate, current and complete information about yourself and your accounts maintained at other web sites and you agree to not misrepresent your identity or your account information. You agree to keep your account information up to date and accurate.
- Proprietary Rights. You are permitted to use content delivered to you through the service only on the service. You may not copy, reproduce, distribute, or create derivative works from this content. Further, you agree not to reverse engineer or reverse compile any of the service technology, including but not limited to, any Java applets associated with the service.
- Content You Provide And Is Derived by Use of the Service. You are licensing to Aynax and its service providers (“Service Provider”) any information, data, passwords, materials or other content (collectively, “Content”) you provide through or to the service. Aynax and Service Provider may use, modify, display, distribute and create new material using such Content to provide the service to you. Aynax and Service Provider may also use, sell, license, reproduce, distribute and disclose aggregate, non-personally identifiable information that is derived through your use of the Service. By submitting Content, you automatically agree, or promise that the owner of such Content has expressly agreed that, without any particular time limit, and without the payment of any fees, Aynax and Service Provider may use the Content for the purposes set out above. As between Aynax and Service Provider, Aynax owns your confidential account information.
- Third Party Accounts. By using the service, you authorize Aynax and Service Provider to access third party sites designated by you, on your behalf, to retrieve information requested by you, and to register for accounts requested by you. For all purposes hereof, you hereby grant Aynax and Service Provider a limited power of attorney, and you hereby appoint Aynax and Service Provider as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, place and stead, in any and all capacities, to access third party internet sites, servers or documents, retrieve information, and use your information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN AYNAX OR SERVICE PROVIDER ACCESSES AND RETRIEVES INFORMATION FROM THIRD PARTY SITES, AYNAX AND SERVICE PROVIDER ARE ACTING AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY. You agree that third party account providers shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by you. You understand and agree that the service is not endorsed or sponsored by any third party account providers accessible through the service.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. AYNAX AND SERVICE PROVIDER EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. AYNAX AND SERVICE PROVIDER MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AYNAX OR SERVICE PROVIDER THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
- LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THE AGREEMENT TO WHICH THIS EXHIBIT IS ATTACHED, YOU AGREE THAT NEITHER AYNAX OR SERVICE PROVIDER NOR ANY OF THEIR AFFILIATES, ACCOUNT PROVIDERS OR ANY OF THEIR AFFILIATES WILL BE LIABLE FOR ANY HARMS, WHICH LAWYERS AND COURTS OFTEN CALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF AYNAX OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES, (iii) ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANYONE ON THE SERVICE; (vi) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE, EVEN IF THE PROVIDER HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE.
- Indemnification. You agree to protect and fully compensate Aynax and Service Provider and their affiliates from any and all third party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorneys fees) caused by or arising from your use of the service, your violation of these terms or your infringement, or infringement by any other user of your account, of any intellectual property or other right of anyone. You agree that Service Provider is a third party beneficiary of the above provisions, with all rights to enforce such provisions as if Service Provider were a party to this Agreement.