Terms and Conditions
Nexway Inc. operates the FOCUS digital product shopping cart.
These General Business Terms (GBT) govern the contractual relationship between Nexway and the customer.
By ordering products the Customer confirms to have duly noted and agreed to the General Business Terms.
The parties to the contract are:
- Customer ("Customer, you"): any person who orders products from the FOCUS.
- Nexway Inc., a French company with offices located at 236, 8th street – San Francisco, CA 94103, Suite C. – USA ("Nexway", "us" "we")
The Customer's product order is a binding offer to Nexway to purchase such products. A confirmation message will be displayed and a confirmation email will be sent to the Customer as soon as an order is placed. Such automatic confirmation shall not constitute an acceptance by Nexway of the Customer's order. Nexway's acceptance of the Customer's order shall occur and a contract shall come into existence only when Nexway makes the products available to the Customer via download.
Please check the automatic order confirmation for errors and inform us immediately of any discrepancies. You guarantee that the data you provided during registration is true, accurate, up-to-date and complete.
Orders will only be accepted from Customers who are 18 years of age or older.
Type of service and limitations
Products are delivered to the Customer via download.
You will receive an order confirmation by email. When you have ordered a downloadable product, you will obtain access to the product download, which is valid for 21 days from the purchase date. Once this delay has elapsed the download will no longer be available.
Conditions to use the download service
Customer must comply with the system requirements specified on the FOCUS. The Customer's computer needs to be connected to the Internet via a broadband connection (e.g. DSL).
Under the terms of these General Business Terms the limited and non-exclusive right to use one (1) copy of products delivered to the Customer by Nexway on a computer or laptop is granted to the Customer. Under the terms of this contract the Customer is not permitted to copy, modify, or decompile any software in a product, to extract its source code, create any item derived from it or remove any indication of the name or manufacturer of the software from it. The user is exclusively permitted to use the product for their own personal use and may not pass it on, sell, transfer or lend it to a third party.
By purchasing a product in subscription you agree that your subscription may automatically be renewed for the same period (1 month or 1 year) and at the same price (plus applicable taxes) as your initial purchase. Renewals will occur on your purchase anniversary dates on a monthly or yearly basis (depending on your initial purchase plan). These principle applies by default, except for special promotions during the initial purchase, for which renewal price or renewal period may change. Any such changes will be clearly advertised during your initial purchase.
You will be billed using the payment information you provided for your initial purchase, until you cancel your subsription in « My Account » section.
If you have purchased a yearly plan, you will receive at least one email to remind you of each upcoming renewal before Nexway SAS renews your subscription. You must ensure that Nexway has a current email address on file in order to send you emails, and that the nexway.com domain is not blocked by your spam filtering software.
Until you cancel subscription, you expressly authorize and permit Nexway SAS to bill each subscription renewal fee through your selected payment method.
Customer's duties and obligations
- Type of use
- Users are authorized to make use of the service for his sole personal use. Using FOCUS services without further permission for professional, commercial or promotional purposes is prohibited. Nexway cannot be held in any way responsible if the service is used in a way which does not conform to these terms and conditions.
- Personal data / User account
- The Customer is solely responsible for the use of membership data (LOGIN, password) and is liable for the data transferred with their LOGIN and password.
The Customer shall not share or divulge LOGIN or password to any other person.
In the event of personal access data being passed on or used in contravention of these General Business Terms (e.g. simultaneous access to the service by two different PCs with the same LOGIN and password), Nexway reserves the right to suspend access to the service for the Customer affected without liability for an initial period of one (1) month. Nexway may continue the suspension of the account until a full investigation has been carried out. After this investigation Nexway will at its discretion determine a reasonable way of proceeding further.
In the event of repeated infringement of the General Business Terms, Nexway reserves the right to terminate access to the service and thereby its contract with the Customer, in which case Nexway shall have no liability to the Customer.
If access data (LOGIN or password) are lost or stolen, the Customer will inform the Customer Support promptly through this contact form
- Damage to reputation and manipulation
- The Customer agrees not to perform any act which may damage or cause a loss or nuisance to FOCUS, Nexway and/or any other party associated with Nexway.
All software, games, information, names, trade names, product brands, inventions and in general all business content used in the products or in the FOCUS digital product shopping cart remain the exclusive property of their owners in accordance with the copyright. These are explicitly the software or games manufacturers, music publishers and all associated copyright owners. All programs and related software, games and music are subject to licenses granted by their owners and are not owned by Nexway. Under the terms of such licenses, Customers are not permitted to copy, photocopy, reproduce or translate the products, extract their source code, modify, dismantle or decompile them or create related products inspired by programs, games, services or functions. No name or identification belonging to the owner may be removed without prior written permission.
In addition to the right of use for private and non-commercial purposes, Customers are not permitted to do the following:
- Sell, lend, pass on or transfer copies of the products,
- Use products or any element of them on public platforms (in particular internet cafes and video amusement arcades)
- Host or offer to third parties music, programs, games, services or multiplayer functions for any online or offline usage without prior written permission
- The Customer confirms that they have understood the restrictions set out above and that they will comply with these. Disregarding these guidelines may lead to the suspension or termination of the Customer's account. The Customer understands that Nexway will not be liable for any infringement by a Customer of the restrictions set out above.
- Anyone illegally duplicating, disseminating or publicly reproducing products or assisting in doing so is liable to criminal proceedings. Illegal duplication of products is punishable by imprisonment and/or a fine. Illegally copied data supports may be confiscated and destroyed. Nexway further expressly reserves the right on behalf of itself and the copyright owners to pursue claims for damages under civil law.
Prices and delivery charge
The prices for products shall be as listed in the respective current price schedules or online advertisements contained in the FOCUS website. Payment must be made before the Customer may download a product.
Technical details in respect of online payment transactions:
- SSL (Secure Sockets Layer) encryption technology encodes the information during transfer.
- The existing encryption functions of the internet browser will be used.
- Nexway does not have access to private Customer data including bank account or credit history.
- To prevent of misuse and fraud, Nexway only stores the Customer's address and the transaction time and date. These data remain confidential and might be used in the following cases.
- Any attempted fraud or deception, regardless of scope, will immediately lead to further action, as part of which all related transaction data might be forwarded to the authorities.
- After a successful transaction, the purchased product is made available to the Customer via download. If the transaction is not successfully completed, Nexway reserves the right to block the user account and until the cause has been determined.
Liability for defects
Nexway warrants that all products sold are subject to the General Business Terms. Products have been tested and will function within the parameters for which they were created and as described on the website. However, Nexway does not guarantee that software products meet the expectations of the Customer and that the software will run without defects under all circumstances. Neither does Nexway provide any guarantee of specific functions and results of the software; provided that this is within its intended design parameters and exceeds the current minimum standard for software technology at the time the program is created. The same applies to the correctness or completeness of any documentation enclosed with the software.
Should the product be defective on delivery, making the intended use impossible, Nexway will either replace the product or refund the purchase price to the Customer at its own discretion within the statutory period from the date of purchase. This only applies to products which are obtained directly from Nexway online. Nexway makes no warranty or guarantee of products downloaded by the Customer from a source other than the Nexway website. The Customer needs to send full details of the defective product and the nature of the defect to Nexway's Customer service e-mail address mentioned above. Nexway accepts no further liability for direct or indirect damage occurring due to the use of a product, provided that this damage is not the result of Nexway's willful intent or severe negligence and provided that liability may in law be excluded. Nexway is under no circumstances liable for unforeseeable damage or indirect or consequential loss of any kind.
Nexway accepts no liability for damage occurring due to incorrect handling, in particular failure to observe any operating instructions, faulty commissioning, faulty handling or unsuitable accessories.
If in the sole opinion of Nexway it is economically unreasonable for Nexway to remedy a defect, a replacement product will be supplied or a refund issued.
Nexway's right to terminate
In the event of substantial or repeated infringement by the Customer of these General Business Terms, Nexway may terminate all contracts and licenses made with the Customer under these General Business terms with immediate effect. If any contract or license is terminated, regardless of the grounds, all licenses granted are deemed to be terminated forthwith without compensation and the Customer shall immediately cease to use all relevant products.
Customer's right to cancel
- Right of withdrawal
- The User can exercise his/her right of withdrawal in accordance with the following conditions:
- for physical Products (back-up DVD, CD boxes):
- The User can exercise his/her right of withdrawal within fourteen (14) days starting from receipt date of the Product.
- The User shall inform Nexway of his/her decision to withdraw before the 14 days period expires by filling this withdrawal form or by making any other unequivocal statement.
- The User who exercises his/her right of withdrawal receives an acknowledgement of receipt by e-mail on the address used for his/her registration.
- The User shall return the Product complete and as new, closed, still sealed and in its original packaging, within fourteen (14) days following the date the withdrawal form has been sent, to the following address:
- 19 avenue Feuchères, CS 70002, 30020 Nîmes cedex 1, France.
- Return cost shall be borne by the User.
- If the User does not return the Product by registered letter or any equivalent process and the letter is lost by the transporter, the Product is considered as not returned.
- All the payments, including delivery fees, are refunded to the User, within 14 days after receipt of the Product by Nexway. In no event, Nexway shall reimburse additional fees if the User had expressly chosen a type of delivery more expensive than standard type.
- For digital Products:
- The right of withdrawal shall not apply to Users who have requested to download the Product before the end of the fourteen (14) days period and who have expressly waived their right of withdrawal.
- The following information is mentioned before any download:
- "By proceeding to download, I want to immediately access the downloaded content, and therefore I waive my right of withdrawal"
- When the User has not downloaded the Product, he/she can exercise his/her right of withdrawal within fourteen (14) days after the order has been placed.
- The User shall inform Nexway of his/her decision to exercise his/her right of withdrawal by filling this withdrawal form before the end of the fourteen (14) days period, or by making any other unequivocal statement.
- The User who exercises his/her right of withdrawal receives an acknowledgement of receipt by e-mail on the address used for his/her registration.
- In any case, the User shall exercise his right of withdrawal for free and without any justification.
- Consequences of cancellation
- In the event of effective cancellation by the Customer, Nexway shall refund any payment made for the products under the cancelled order. The Customer's right to use the relevant product(s) shall terminate immediately upon order cancellation. The Customer must delete or destroy the products and all copies from the Customer's computer and any other device or media to which the Customer has copied the products.
Nexway uses the Customer's personal data exclusively for the purpose of handling the order. All Customer data will be stored and processed only in compliance with the relevant regulations of the relevant data protection laws.
Customers have the right to review, correct, block and delete their stored data free of charge at any time. Nexway will not share personal data including home address and email address with any third party without the express consent of the Customer, which may be revoked at any time. Nexway's service partners who require the transfer of data for the purposes of handling the order (e.g. the carrier contracted to make delivery and the credit institution contracted to handle payment) are excluded from this provision. In these cases the scope of data transferred is, however, limited to the necessary minimum. Nexway has implemented technical features and organizational security measures to protect Customer data handled against accidental or deliberate changes, loss or destruction and against access by unauthorized persons.
Credit card information is encoded by 128 Bit SSL (Secure Socket Layer) and transferred to a payment gateway which is directly connected to the credit card processing service. Data is verified online, payment is processed before the goods are delivered (cash in advance).
When a Customer registers with Nexway or wishes to place an order, Nexway requires Customer data. Returning FOCUS Customers simply log on with his user name and personal password. The data stored in a cookie makes it unnecessary to complete some of the forms and assists in error-free navigation. The cookies will expire after 5 years. Customers may manage the acceptance of cookies by changing the privacy settings in their Internet browser application and block them if they wish.
Governing Law and Jurisdiction
These General Business Terms and related policies and agreements shall be governed by and interpreted in accordance with California law. Anyone accessing the FOCUS website from outside the United States is personally responsible for observing local laws if and to the extent that they are applicable to the products or the Customer's use of them.
Should any part of these General Business Term be deemed unenforceable by a court competent to deal with disputes under them, the operability of the other parts is not thereby affected. Any part deemed unenforceable shall if possible be deemed amended in so far only as to make it enforceable.
These General Business Terms are the basis for and contain all the legal agreements between the parties relative to the object of their contract and operate to the exclusion of all other verbal or written agreements.
This clause is not intended to limit Nexway's liability for fraudulent misrepresentation.
YOU, THE CUSTOMER DECLARE THAT YOU HAVE READ AND UNDERSTOOD THESE GENERAL BUSINESS TERMS AND UNDERTAKE TO COMPLY WITH THEM. IF YOU HAVE ANY QUERIES, SUGGESTIONS OR COMMENTS, PLEASE CONTACT US THROUGH THE CONTACT FORM MENTIONED IN THESE GENERAL BUSINESS TERMS.
THANK YOU FOR YOUR CONFIDENCE.