Terms & Conditions
RECITAL
IMPORTANT: PLEASE READ THESE TERMS OF SALE CAREFULLY BEFORE PURCHASING FROM THE WEBSITE. IF YOU LIVE IN (OR YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE UNITED STATES, PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 15.6. IT AFFECTS HOW DISPUTES ARE RESOLVED. THESE TERMS OF SALE CONTAIN IMPORTANT LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOUR PURCHASE FROM THIS WEBSITE, INCLUDING LIMITATIONS OF LIABILITY AND A MANDATORY ARBITRATION CLAUSE. BY PLACING AN ORDER ON THIS WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SALE (THE “TERMS”), AND ANY SALE THROUGH THIS WEBSITE IS CONDITIONED UPON YOUR ACCEPTANCE OF THEM. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, YOU MUST DISCONTINUE USE OF THIS SITE AND YOU MUST NOT COMPLETE YOUR ORDER.
Welcome to Nexway’s Website, operated in the United States by
Nexway, Inc.
235 West Lake Center, #30,
Daly City, CA 94015 USA.
References in these Terms of Sale to “Nexway,” “We,” “Us,” “Our” refer to Nexway, Inc.
By using the Website, or by acquiring products or services from the Website, you accept and agree to these Terms of Sale and other applicable terms and conditions, policies or disclaimers found in the Website or referenced in these Terms of Sale (collectively the “Website Policies”).
Nexway may update or amend any policies without notice at any time. You are bound by the version of the Terms in effect on the date you complete your Order. However, we may change these Terms from time to time, and when we do, we will post them on the Website. It is your responsibility to review the Terms each time you make a purchase from us.
The present Terms define the applicable conditions of sales of the downloadable products on this Website by Nexway. They apply exclusively to customers who are purchasing Products and/or Services on the Website (hereinafter referred to as the “Customer” or “you”).
No sale will be finalized without the Customer’s express consent of these Terms. Their acceptance is materialized by the mandatory “ticking” of the validation box stating “By checking this box, I acknowledge having read the Terms of Sale and the personal data charter of the online store and I expressly accept them”.
ARTICLE 1: DEFINITIONS
The below, capitalized terms shall be defined as follows in these Terms of Sale:
1.1 The term “Website” includes webpages, operated by Nexway for the sale of products and services and subject to these Terms.
1.2 The term “Customer” designates any person (whether natural or legal) with the legal capacity to order products and services from this website. Unless otherwise indicated, the term “Customer” means both consumers and businesses.
1.3 The term “Products” means any activation code, serial number, download link or a similar code or device that provides access to the Customer for initial or continued use of a software, a service, or any other product purchased on the Website (even physical ones).
1.4 The term “Services” refers to all services sold by Nexway to the Customer through this Website.
1.5 The term “Software” refers to all computer programs marketed in any form or medium from this Website.
1.6 The term “Subscription” refers to Products and Services covered by recurring payment obligations pursuant to which payments are due at the agreed interval or intervals.
ARTICLE 2: SCOPE AND PURPOSE
These Terms apply to all offers, acceptances, deployments and the provision of services and supplies, by Nexway or to the Customer, in connection with the sale of Products and Services from this Website, as previously defined.
Any conflicting terms or divergent conditions applied by a third party require prior written agreement by Nexway to be included to these Terms.
If the sale of Products and Services includes the provision of services or other activities performed by third parties, such third parties’ conditions relating to licenses or services shall apply in addition to these Terms.
ARTICLE 3: CONTRACT CONCLUSION (OFFER, CONFIRMATION AND ACCEPTANCE)
An order placed by the Customer is considered an offer to purchase Products and/or Services addressed to Nexway and in accordance with these Terms.
An order requires acceptance of Nexway. The Customer’s order is accepted at the time of delivery of the Products and Services ordered. The delivery of the product can occur by email or on the Website (either on the confirmation page or in the customer’s client account).
Nexway may, in its sole discretion, use third parties for the performance of its services.
In order to comply with applicable laws, Nexway reserves the right to request supporting documents, in order to verify the accuracy of the information provided by the Customer.
ARTICLE 4: CUSTOMER OBLIGATIONS, REPRESENTATIONS AND REGISTRATION
Only Customers already registered on the Website may place an order.
Registration on the Website is validated after providing the required information.
The Customer certifies that all the information he has given when placing the order (including, but not limited to, personal data and payment data) is current and accurate in all material respects.
This Website is not targeted or aimed at children or to other individuals who do not have the legal capacity to contract. By placing an order, you represent that you have the legal capacity to contract in the state or country of your residence. Any registration carried out for a purchase made by a minor person under the age of sixteen (16) years old requires the prior authorization of his/her legal representative.
If you are placing an order on behalf of a third party, you represent that you have the authority to act on that party’s behalf and your acceptance of these Terms constitutes that third party’s acceptance.
You represent that you will comply with all applicable laws and regulations, including export and import regulations. You agree that you are not purchasing the Products or Services for export, re-sale, transfer, or use in violation of any applicable laws, including without limitation U.S. Export Administration Regulations or applicable U.S. sanctions and embargoes administered by the U.S. Treasury Department. You further agree that you will not use them for any illegal or unauthorized use.
You agree that the information you provide in connection with your purchase, including your physical address, email address, and payment information, is complete and accurate. You represent that you are authorized to charge and initiate a payment via the payment method you designate for your purchase.
The costs resulting from any inaccurate information submitted by the Customer, or data modified by the Customer after the order has been transmitted, will be borne by the Customer.
If the Customer has a Customer account with Nexway, he must manage and update his account information immediately to ensure the accuracy and completeness of such information.
Nexway reserves the right to immediately close a Customer’s account in the event that information provided at the time of its opening proves to be false.
Once registered, the Customer has a login and a password allowing him to connect to his account.
Only the account holder is allowed to log in using the login and password corresponding to that account. The Customer agrees to keep his password strictly confidential.
As such, any connection via the Customer’s account is deemed to have been made by the Customer himself or with his authorization, unless the Customer is able to prove otherwise.
The Customer can request the closure of their account at any time via this form of contact.
ARTICLE 5: AVAILABILITY OF PRODUCTS
The Products available are exclusively distributed in electronic form, unless otherwise indicated on this Website.
The offers of Products and prices are valid as long as they are visible on this Website, and within the limits of available stocks.
Therefore, orders are deemed accepted only after checking the inventory status. In the event of unavailability of Product after placing your order, we will notify you by email.
In case of unavailability of Product and if your payment has been accepted, Nexway will refund the sums paid within 15 days of such payment being accepted.
In case of unavailability of a Product as a recurring Subscription, purchased as part of a bundle of several Products, Nexway may renew your Subscription for only the available Products and the subscription renewal price will reflect the price of only the available Products for which the subscription is renewing.
ARTICLE 6: ORDER
An email confirming the order is sent to the address entered by the Customer when registering, upon approval of payment.
The confirmation email contains the Product purchased, its price and, for Products sold in box, the delivery time.
In the case of an order for a downloadable product (such as a software activation key), access to the Product is done by clicking on the download link present either directly on the accepted payment return page or later on the confirmation email. The Customer automatically benefits from a period of 21 days from the date of receipt of the confirmation email to download the Product. At the end of these 21 days, the download is no longer available automatically and requires its release by customer service available via this contact form.
An invoice is also sent to the email address entered during the creation of the account or can be downloaded from the Website immediately after the order.
Nexway reserves the right to cancel or refuse any order from a Customer following a payment incident involving a previous order or where the information transmitted is manifestly incorrect.
Unless proven otherwise by the Customer, the data recorded by Nexway constitute proof of all transactions between him and Nexway.
ARTICLE 7: SUBSCRIPTION
7.1. Subscription
If you have purchased a Subscription, at the end of the initial period, you agree that your Subscription is automatically renewed for an identical period (1 month or 1 year as the case may be) and at the preferential renewal price (applicable taxes not included). The period of validity of the subscription begins with the confirmation of the order. The price of renewal may change. Additional online offers and discounts may be available upon renewal, but will not apply to your subscription.
Renewals will occur on the anniversary date of purchase on a monthly or annual basis (as per your initial purchase plan). This principle applies by default, with the exception of special promotions at the time of the initial purchase, for which the renewal price or the renewal period may change. These special conditions will be clearly stated during your initial purchase.
In case of annual subscription you will receive at least one email informing you of the imminent automatic renewal of your Subscription. You must ensure that Nexway has a valid email address to be able to notify you by sending emails, and that the nexway.com domain is not blocked by your anti-spam filtering software.
At the end of the initial period and of each successive renewal period, except in the event of termination of your Subscription, you expressly authorize Nexway to charge you each renewal by the reuse of the same payment information that you entered at the time of the initial purchase.
Nexway will notify you by email without delay of the renewal price, before the expiration of your license and of any price change, so that you can cancel your subscription before the first billing following the price change. You may need to install the latest version of the product for free at the time of renewal.
At any time, you can cancel your Subscription from your Customer account in the “My Account” section.
The cancellation only takes effect from the expiry date of the current subscription period.
Nexway may cancel the Subscription under the same conditions that apply to the Customer.
Your subscription for the selected Products and Services will automatically renew as long as the selected Products and Services are available. In case of unavailability of a Product as a recurring Subscription, purchased as part of a bundle of several Products, Nexway may renew your Subscription for only the available Products and the consequent Subscription renewal price will reflect the price of only the available Products for which the Subscription is renewing. You will be notified of your renewal, including subscription renewal price and any changes to product availability,within a reasonable time prior to renewal date
The use of Products and Services sold by Nexway may be dependent on Supplier-hosted online platforms, Supplier-processed data, and the Supplier’s ability to perform its services. If the Supplier interrupts the offer of the online platform in whole or in part, ceases the data processing or stops performing the Services in question (“Interruption”), Nexway may cancel the Subscription as of the date of the Interruption. Nexway will reimburse the Customer pro rata for the remainder of the subscription period following the Interruption.
7.2. Subscription preceded by a free trial period
If you register for a subscription with a free trial period of a defined number of days, the purchased Product on subscription will be available to You on a trial basis free of charge until the end of the trial period. After the defined number of days of free trial, Your free trial will convert to a paid subscription and a regular price for the product on subscription will be charged.
All customers signing up for the free trial will be required to submit payment card details or where applicable any other payment data as part of the process, to allow automatic payments once the free trial period finishes.
By entering your credit card number or any other payment data, you agree that Nexway may store your payment data. After your defined number of days trial period expires, you expressly authorize Nexway to charge you regular subscription fees to be billed during a subscription period. The conditions of your subscription will be clearly indicated during your registration
We will remind you about the end of your trial and upcoming charge to your credit card or payment method in a reasonable time prior to the auto-renewal via email.
To avoid being charged for your free trial, you must cancel the trial at least one day prior to the auto-renewal billing date.
When your trial period has ended and your regular subscription period has started, the above section 7.1 and all other Terms will apply to your subscription.
7.3. Billing
Product subscription fees will be billed via your Payment Method on the specific payment date indicated in your reminder email.
The length of your billing cycle depends on the type of subscription you
have chosen.
In some cases, your payment date may change, for example, if your Payment Method did not work. If your Payment Method does not allow automatic renewal for reasons beyond Nexway’s control, for example, including, but not limited to, the issuer of your Payment Method, if you wish to renew your subscription, you may change your Payment Method via your account in accordance with Section 10.1 below, or you may do so on the Website by selecting the product subscription that best suits your needs.
ARTICLE 8. TITLE RETENTION
Nexway reserves the right to own any Product until full payment of all claims arising from the contract, including ancillary claims (for example foreign exchange fees, financing costs, interest, etc.).
ARTICLE 9: GRANTED RIGHTS
The Products are protected by international copyright and intellectual property regulations and treaties. They are the exclusive property of their publishers.
By downloading a Product or purchasing the boxed version of a Product, the Customer acquires a user license directly from the publisher of the Product. The rights of the Customer on the Product are exclusively governed by the provisions mentioned in the aforementioned license agreement.
The Customer acknowledges that the license agreement does not imply the transfer of the rights of reproduction, representation and exploitation relating to the Product. The Product may not be copied, adapted, translated, made available, distributed, modified, disassembled, decompiled or used in combination with any other software, except with the express authorization of the publisher of such Product, unless otherwise required by law.
The Customer is warned that non-observance of the license agreement conditions may be sanctioned by the publisher of the Product and potentially exposes him to legal proceedings.
ARTICLE 10: FEES & PAYMENTS
10.1. Price and payment terms
The sale prices indicated on this Website are in the displayed currency and all taxes are included, unless stated otherwise. As part of a box order, any delivery charges are indicated to the Customer according to his choice of Products and are billed at the end of the order in addition to the price of the selected Products.
The VAT rate applied is that in force in the country where the Customer is domiciled.
Payments must be made prior to delivery, according to the terms and conditions indicated on the Website.
10.2. Secure payment
The payment for the Products shall be made exclusively by the payment methods made available on the Website.
The selected payment method is debited upon receipt of the order and subject to the prior authorization of the relevant payment service provider. In the absence of authorization, the order will not be processed.
The payment methods available on this Website are managed by our partners, which provide a secure acquisition of payments over the Internet.
The integrity of the data exchanged is ensured by the procedure of exchange and sealing of the messages by the use of SSL and SET technologies.
ARTICLE 11: RETURNS & REFOUNDS; WITHDRAWAL RIGHT
If the Customer experiences any issues or has any questions regarding use of the Product(s) and/or Service(s), the Customer shall contact for support at the contacts provided in your order confirmation email or at the following email address: customercare@nexway.com.
Nexway offers a standard 30-day return policy on all Products and Services purchased from the Website. Customers wishing to return their purchase for a refund must contact Nexway customer service by this contact form to initiate a return and refund request within 30 days of delivery of the relevant Product(s) or Service(s).
For shoppers outside the United States, special terms may apply to your right to return and refund. Please see https://www.nexway.com/terms-conditions
ARTICLE 12: LIMITATIONS OF LIABILITY & DISCLAIMER OF WARRANTIES
12.1 Exclusion of Liability for Third Party Actions
Nexway shall not be held liable for the consequences resulting from the misuse of the Products and/or Services sold on the Website.
By no means shall Nexway be liable for non-performance or improper performance of its obligations resulting from an unforeseeable or insurmountable event, or resulting from the non-performance or improper performance of a third party.
Nexway shall not be held liable for any malfunction of the Website due to an interruption of the Internet for any reason whatsoever or a failure of the server hosting system used by Nexway.
The Customer further acknowledges the right of Nexway to temporarily suspend access to the Website, where the Website or any linked server is subject to a refresh or maintenance operation. In this case, Nexway will endeavor to limit the inconvenience caused to Customers by reducing the interruption time to the minimum time necessary to complete the transaction in question.
Nexway cannot be held responsible for the non-performance of the contract concluded in case of force majeure, a fortuitous event or a cause beyond its control, such as in particular: natural disaster, war, earthquake, fire, explosions, riots, intervention of the governmental authorities, bad weather, water damage, malfunction or interruption of the electricity or telecommunication network.
12.2 Disclaimer of Warranties
THE SOFTWARE IS PROVIDED “AS IS” AND NEXWAY MAKES NO REPRESENTATION AND GIVES NO WARRANTY AS TO ITS USE OR PERFORMANCE, EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. NEXWAY AND ITS PARTNERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR APPLICABILITY FOR A PARTICULAR PURPOSE. YOU ASSUME ALL FAULTS, AND THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, NEXWAY MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL OF YOUR REQUIREMENTS WHETHER OR NOT DISCLOSED TO NEXWAY.
12.3 Exclusion and Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEXWAY OR ITS PARTNERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, FOR CORRUPTION, DAMAGE AND LOSS OF DATA OR PROGRAMS, FOR FAILURE TO MEET ANY DUTY INCLUDING ANY STATUTORY DUTY, DUTY OF GOOD FAITH OR DUTY OF REASONABLE CARE, FOR NEGLIGENCE, FOR ECONOMIC LOSS, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE WEBSITE, PRODUCTS, SERVICES AND/OR SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE WEBSITE, PRODUCTS, SERVICES AND/OR SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, PRODUCTS, SERVICES AND/OR SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THESE TERMS, OR ARISING OUT OF ANY BREACH OF CONTRACT OR ANY TORT (INCLUDING NEGLIGENCE, MISREPRESENTATION, ANY STRICT LIABILITY OBLIGATION OR DUTY), OR ANY BREACH OF STATUTORY DUTY, OR ANY BREACH OF WARRANTY OF NEXWAY OR ANY OF ITS PARTNERS, EVEN IF NEXWAY OR ANY PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT IN THE EVENT NEXWAY AND/OR ITS PARTNERS ARE FOUND LIABLE, THE LIABILITY OF NEXWAY AND/OR ITS PARTNERS SHALL BE LIMITED BY THE COSTS OF THE PRODUCT(S) AND/OR SERVICE(S) AT ISSUE. IN NO CASE SHALL THE LIABILITY OF NEXWAY AND/OR ITS PARTNERS EXCEED THE FEES PAID FOR THE PRODUCT(S) AND/OR SERVICE(S) TO NEXWAY OR THE PARTNER (AS MAY BE APPLICABLE).
NOTHING IN THESE TERMS EXCLUDES OR LIMITS ANY CLAIM FOR DEATH AND PERSONAL INJURY. FURTHER IN THE EVENT ANY DISCLAIMER, EXCLUSION OR LIMITATION IN THESE TERMS CANNOT BE EXCLUDED OR LIMITED ACCORDING TO APPLICABLE LAW THEN ONLY THAT DISCLAIMER, EXCLUSION OR LIMITATION SHALL NOT APPLY TO YOU AND YOU CONTINUE TO BE BOUND BY ALL THE REMAINING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
ARTICLE 13: PERSONAL DATA PROTECTION
By registering on the Website, you agree to provide us with sincere and genuine information about you and you consent that the website owner and its corporate affiliates may disclose your personal data to Nexway for the purposes of processing your purchase of Products and Services on the Website in accordance with these Terms.
If the Customer is a minor under the age of sixteen (16) years old, his / her legal representative must expressly have validated the provisions relating to the Personal Data Charter. In this case, it is the legal representative who will exercise the rights of access, modification, rectification, erasure and, where applicable, portability of personal data concerning the minor, under the conditions provided for in this section. These rights will then be exercised exclusively by the concerned Customer when reaching the full legal age.
Customer data is subject to electronic data processing. Where applicable, Nexway may transmit personal data to Services Providers or joint venture companies, some of which may also be outside the USA, subject to appropriate security measures and legal provisions.
Thus, without prior notice, Nexway may store and use your personal information, provide your personal information to Nexway affiliates or third parties, its affiliates or its third parties for the purpose of:
- order processing, including processing your online payment and informing you of the status of your order;
- charging and delivering for the ordered Products;
- helping secure and improving the security of your order and transactions (for example by applying anti-fraud filters);
- registering your purchase with the Supplier (for warranty, technical support, or other purposes);
- the putting through to customer service and technical support;
- informing you about Product upgrades, special offers, other products, services and information (including third parties), market research, or survey and evaluation fill-in (in the case, you opted to receive these communications);
- improving the usability of the Website
- providing you with access to restricted areas of the Website;
- complying with legal requirements;
- implementing the terms and conditions, including the investigation of potential violations;
And for other lawful purposes.
Certain data, such as the types of services used and the number of users we receive each day, may be used by Nexway for statistical, marketing, promotional or other lawful purposes. This kind of information is collected in aggregated or statistical form, without identifying users individually.
If you have expressly accepted it during your registration on the Website, we may transmit your data to our business partners for information and prospecting purposes. If you accept, Nexway and its partners may send you information in the context of specific and ad hoc promotional campaigns or newsletters. These partners are specially chosen by Nexway and are recognized for the quality of their products and services.
You may request to no longer receive emails from us for marketing purposes at any time by clicking on the link provided and inserted at the bottom of each email that we or any of our partners will address you.
This data is securely stored in Nexway’s information system.
Nexway may communicate this data only as evidence or as part of a sales report to its partners. Where applicable when a partner is located outside the USA, you agree that your data will be transmitted in the country of residence of that partner.
You may withdraw your consent for Nexway to use, store, transfer, disclose or otherwise process your information at any time by providing Nexway with reasonable prior notice via this form of contact. Nexway will then inform the Website owner of your decision.
Nexway also appoints a Personal Data Protection Officer (“DPO”). Our DPO can be contacted at the following email address: DPO@nexway.com.
The Customer’s data is kept as long as his account is active as well as for a period of three months from the date of closing.
The data is then archived and retained exclusively in the context of litigation, during the period of the legal prescription.
The Customer has a right to access, modify, rectify, erase and, where applicable, to portability of his personal data.
The right of access, modification, correction and deletion provided for in the preceding paragraph is exercised by either contacting the Nexway’s customer service at the following email address: customercare@nexway.com, or by directly contacting Nexway’s DPO: DPO@nexway.com.
If need be, the Customer is informed of his right to define guidelines for the storage, erasure and communication of his personal data after his death.
The Customer also has a right to portability on its data that has been processed using automated processes.
The Customer expressly acknowledges that once he has shared content to a social network, an application or a third-party Internet site, Nexway is no longer responsible for the performance of its right to erase on these sites. If needed, the Customer should contact the publishers of the applications through which it shared the content in order to exercise its rights.
Cookies may be automatically installed on the browser software when accessing this Website. A cookie is an element that does not identify the visitor but is used to record information about its navigation. The browser settings may be used to refuse cookies according to the procedure described in the “Internet Option” tab of the browser.
We draw your attention to the fact that Nexway exclusively operates the online store for dematerialized sales accessible from the Website. You should refer to the general provisions of the publisher of Products for information on their personal data policy.
ARTICLE 14: MISCELLANEOUS
14.1 Severability
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Terms will not fail on account thereof and the balance of the Terms will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent.
14.2 Headings.
The headings of the sections of these Terms appear for convenience only and in no way affect the meaning of the provisions to which they refer.
14.3 No Waiver
Any delay or failure by us to exercise or enforce any right or provision of these Terms does not constitute a waiver on our part. A waiver of any breach or default in one instance does not constitute a waiver of any breach or default in a subsequent breach or default. No waiver by us will be effective unless it is in writing, signed by us.
14.4 Entire Agreement.
These Terms of Sale represent the entire agreement between you and Nexway and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the purchase of Products and/or Services from the Website or to the subject matter of these Terms.
14.5 Updates to Terms
Nexway may change the Terms of Sale at any time and without notice to you. The Terms of Sale in force at the time you place your order will govern your purchase and serve as the purchase contract between us. Before your next purchase, Nexway may have changed the Terms of Sale without notice to you. Please review the Terms of Sale each time you visit the Website. We recommend that you save or print a copy of the Terms of Sale for future reference each time you make a purchase on the Website.
ARTICLE 15: GOVERNING LAW AND DISPUTE RESOLUTION
Governing Law
15.1. These Terms shall be governed by and construed in accordance the laws specified below for the country or territory in which you purchased the Products and/or Services, without reference to or application of conflicts of laws principles:
- United States, Puerto Rico, American Samoa, Guam, and U.S. Virgin Islands. If you purchased the Products and/or Services in the United States, Puerto Rico, American Samoa, Guam or the U.S. Virgin Islands, the laws of the Commonwealth of Massachusetts, USA, provided, however, that the laws of the U.S. state where you live will govern claims under state consumer protection, unfair competition, or similar laws. To the fullest extent permitted by law, Nexway and you expressly agree hereby to waive any right to a trial by jury.
- Canada. If you purchased the Products and/or Services in Canada, the laws of the Province of Ontario
15.2. Notwithstanding the foregoing, if the mandatory laws or public policy of any country or territory in which these Terms are enforced or construed prohibit the application of the law specified herein, then the laws of such country or territory shall instead apply to the extent required by such mandatory laws or public policy. Similarly, if you are an individual consumer, the provisions of Clause 15.1 shall not affect any mandatory right you may have to take action in your country of residence under the laws of that country.
15.3. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
15.4. The Customer is responsible for contacting only Nexway or its partners directly if experiencing any issues with the purchased Products and/or Services.
15.5. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under these Terms may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
15.6. Class Action Waiver and Binding Arbitration. If you purchased the Products and/or Services in the United States, this Paragraph applies to you. If a dispute, claim, or controversy of any kind with respect to any Nexway product, service, or any part of this agreement, arises between You and Nexway or You and a third-party affiliate of Nexway, and both parties couldn’t resolve the dispute informally within a reasonable period of time, You agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Any proceedings, including but not limited to class action lawsuits, class-wide arbitrations, private attorney-general actions, the combining of individual actions without the consent of all parties, or any other legal procedure where someone acts in a representative capacity, are not permitted. By accepting this agreement, You agree not to begin or participate in any of the above mentioned class and multi-party proceedings, and any action pursued by You and remedy, if any awarded to You, must be on an individual basis, as provided in this clause. In the event of a binding individual arbitration proceeding between parties, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of appeal under the FAA. If any conflict exists between these Terms and the rules of the AAA, these Terms shall govern.
15.7. Any dispute, claim, or controversy concerning Nexway’s intellectual property rights, their enforcement, validity, etc., and any claim pertaining to any form of unauthorized use, including but not limited to theft and piracy, of any Nexway product or service are not subject to this arbitration clause.
Update 23.10.2023
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