Last Modified: Oct 14, 2014
The Site and Services are offered and available to users who are eighteen (18) years of age or older. By using the Site or Services you represent and warrant that you are of legal age to form a binding contract with aviXena.
If you create, or are provided with, a user name, password or any other information as part of our security procedures, you agree to treat such information as confidential, and that you will not disclose such information to any other person or entity. You further agree that your account is personal to you and that you will not provide any other person access to this Site or the Services, or any portions of the same, using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session.a You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
5.2 Your Content. The Site and Services may allow or require you to post data, text, pictures, videos, recordings or other materials and information that will be accessible by visitors to the Site or users of the Services ("Public Content"), or that will only be accessible by you or those designated by you ("Private Content") (Public Content and Private Content, collectively referred to as "Your Content"). As between you and aviXena, you remain the sole owner of and solely responsible for Your Content. aviXena does not claim ownership of any of Your Content, but by submitting Your Content, you hereby grant aviXena a nonexclusive, worldwide, royalty-free, fully paid up, irrevocable, perpetual right and license to link to, reproduce, distribute, adapt, promote, display, and sublicense Your Content, including without limitation using Your Content in marketing materials for aviXena. aviXena does not endorse, guarantee, or assume any responsibility, obligation or liability relating to Your Content, including without limitation liability for third-party claims against users of the Site or Services for defamation, libel, slander, infringement, invasion of privacy, violation of publicity rights, obscenity, pornography, profanity, fraud or misrepresentation. aviXena reserves the right to remove any of Your Content at any time, with no obligation to notify you of the removal. Publication of any of Your Content is at the sole discretion of aviXena.
5.3 Prohibited Content. While using the Site or Services, you agree that you will not upload, post, email, transmit or otherwise make available any Public Content or Private Content that: (i) is unlawful, harmful, threatening, abusive, harassing, tortious, infringing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or is racially, ethnically or otherwise objectionable; (ii) creates a risk of harm, loss, or damage to any person or property or a risk of physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal; (iii) seeks to harm or exploit minors in any way, including, but not limited to, by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) violates, or encourages any conduct that violates laws or regulations or contains any information or content that is illegal; or (v) infringes any third party’s intellectual property rights, privacy rights, publicity rights, or other personal or proprietary rights or contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.
5.5 Transmission of Your Content. The term "Your Content" also includes registration information, business and financial information, electronic transmissions and all other data of any kind contained within emails or otherwise submitted by you or entered electronically in the course of your use of the Site or Services. You understand that the technical processing and transmission of Your Content (including the possible transmission of Your Content outside its country of origin) may be necessary to your use of the products, services and content offered on or through the Site or Services and consent to aviXena's interception and storage of Your Content. You understand that you or aviXena may be transmitting Your Content over the Internet, and over various networks, only part of which may be owned and operated by aviXena. You agree that aviXena is not responsible for any portions of Your Content that are lost, altered, intercepted or stored without authorization during the transmission of Your Content across networks not owned and operated by aviXena.
5.6 Copyright Infringement Notification Process. aviXena abides by the Federal Digital Millennium Copyright Act (the "DMCA"). If you believe that any content included on the Site or Services is your proprietary work and has been copied in a way that constitutes an infringement of your copyrights in that work, please immediately notify aviXena of any such copyright or other Intellectual Property Rights infringement. Similarly, if you believe that Your Content has been inappropriately removed, you may send a counter-notification. In either case, your written notice should be sent to our designated agent as follows:
DMCA Complaints aviXena, LLC Attn: Mario Vassaux 1801 S. Jentilly Ln. Suite B16. Tempe AZ 85281 Telephone: (480)231-5439 Email: Mario@aviXena.com
5.6.1 Copyright Infringement Notification. To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
5.6.2 Counter-Notification. If Your Content has been taken down, you may elect to send us a counter notice. To be effective your counter notice must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, AVIXENA AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS AND LICENSORS (COLLECTIVELY, THE "AVIXENA PARTIES") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE AVIXENA PARTIES DO NOT WARRANT THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR SERVERS THAT MAKE THE SITE AND SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PRODUCT DESCRIPTIONS OR DEPICTIONS, OR OTHER CONTENT OFFERED AS PART OF THE SITE OR SERVICES, ARE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. IF YOU DOWNLOAD ANY CONTENT FROM THE SITE OR SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT THROUGH THE SITE OR SERVICES. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SITE OR SERVICES OR ANY FEATURE OR PART THEREOF AT ANY TIME. THE AVIXENA PARTIES ASSUME NO RESPONSIBILITY FOR THE DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT OR PERSONALIZATION SETTINGS.
YOU UNDERSTAND AND AGREE THAT THE AVIXENA PARTIES WILL NOT BE LIABLE TO YOU FOR ANY 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 AN AVIXENA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OR ACCESS OF, OR INABILITY TO USE OR ACCESS, THE SITE OR SERVICES.
a) Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and
b) Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse.
You may begin an arbitration proceeding by following the American Arbitration Association’s (AAA’s) filing requirements and mailing a request for arbitration and description of your claim to our registered agent, Jonathan Ariano, Osborn Maledon, 2929 N Central Ave, Phoenix, AZ 85012. The AAA’s Rules of Commercial Arbitration will apply (available at www.adr.org or by calling 1-800-778-7879). The arbitrator will have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this agreement to arbitrate. Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.
You may opt out of this agreement to arbitrate by providing written notice of your intention to do so to aviXena within 60 days of the earlier of your first use of the Site or Services or your registration with the Site or Services.
This Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and us.