Last Modified: June 28, 2016
This NOOK Press Membership Agreement and Terms of Use is a binding contract
between the individual or entity identified in your NOOK Press digital
self-publishing and distribution service ("NOOK Press") account ("you"), Nook
Digital, LLC, Barnes & Noble International, LLC, and any affiliate thereof
that joins as a party ("Barnes & Noble", "we" or "us"). For the
purposes of this Agreement, "affiliate" means any entity that controls, is
controlled by or is under the common control of Barnes & Noble, Inc..
Your use of NOOK Press is governed by the following terms and policies: (a) the
terms of this Membership Agreement and Terms of Use set forth below; (b) the Pricing and
Payment Terms; (c) the Content Policy; (d) the Barnes & Noble e-Bookstore Program Terms; (e) the Barnes & Noble website Terms of Use; and (f) the Nook Digital, LLC Privacy Policy, or
the Barnes & Noble International, LLC Privacy Policy, as applicable (collectively, the "Agreement"). The Agreement contains the complete terms and conditions that apply to your use of
NOOK Press and the storage, editing and/or distribution of your digital content
(your "eBook") through NOOK Press. THE TERMS OF THIS AGREEMENT ARE IMPORTANT AND WE
ENCOURAGE YOU TO REVIEW THEM CAREFULLY BEFORE PROCEEDING WITH YOUR USE OF NOOK
PRESS. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE NOOK PRESS.
1. Agreement Acceptance & Amendment
You are deemed to accept this Agreement and agree to be bound by its terms when
you (a) click "Agree" or "Accept" when prompted, or (b) by using NOOK Press or
any part of it. If you do not accept the terms of this Agreement, you may
not use NOOK Press.
Barnes & Noble may modify this Agreement, or any terms, conditions or
policies forming a part thereof, at any time in its sole discretion. We
will provide notice of such changes by posting the new or revised Agreement on
the NOOK Press website or by sending you an e-mail to the address you provide
us. Except with respect to Sections 6 (Payments) or 7 (Grant of Rights),
changes to the Agreement will be effective when posted. If we modify
Sections 6 (Payments) or 7 (Grant of Rights), such modifications will be
effective thirty (30) days after posting, and will apply prospectively to
eBooks sold after the effective date. If you do not agree to the changes,
you must withdraw your eBook from NOOK Press and terminate your use of NOOK
Press. Your continued use of NOOK Press after modifications are posted
constitutes your binding acceptance. We may make acceptance of changes a
condition to continued use of NOOK Press.
2. Term and Termination
The term of this Agreement begins when you accept it and will continue until it
is terminated by you or by Barnes & Noble. We reserve the right to
suspend your access to NOOK Press and/or terminate this Agreement and your NOOK
Press account at any time with or without notice to you. You may
terminate this Agreement and your use of NOOK Press at any time by providing
notice to us in accordance with our then-current procedures for Account
termination. If you terminate this Agreement, we will cease selling your
eBooks within ten (10) business days from our receipt of your notice, but we
will retain the right to maintain digital copies of your eBook to continue to
support our customers who have purchased your eBook. The following
sections of this Agreement will survive termination: 1, 2 and 6-16 and any
other provisions that by their nature are intended to survive. For
the avoidance of doubt, all rights to eBooks acquired by customers survive
termination.
3. Accounts
A. Types of
Accounts. You may sign up for a basic account with
NOOK Press that will permit you to use our Tools (as defined below), but not to
publish or distribute your eBooks ("Basic Account"). If you wish to
publish or distribute your eBooks, you must sign up for a vendor account
("Vendor Account").
B.
Eligibility. NOOK Press is
directed toward use by adults and individuals under the age of majority in
their country of residence ("Minors") are not permitted to use NOOK
Press. You must sign up for a NOOK Press account in order to use NOOK
Press. If you wish to publish and distribute your eBooks through NOOK
Press, you must sign up for a Vendor Account, which will require you to provide
us the following information: (i) for tax reporting
purposes, your home address and, if you are located in the United States your
federal tax identification number (or social security number if you are an
individual), or if you are located outside of the United States, similar
identifying information issued by the applicable governmental authority; and
(ii) for the purpose of transmitting payments to you, your bank account number
and routing information if you are located in the United States, or your SWIFT
or International Bank Account Number (IBAN) if you are located outside the
United States.
C. Security. You are solely responsible for: (i)
keeping your account password confidential and secure; (ii) preventing
unauthorized access to your account; and (iii) keeping current the e-mail
address associated with your account. You are fully responsible for all
activities that occur within your account.
D.
Information. You represent
that all information you provide to us in connection with your account is true and
correct and you agree to keep such information current. You may maintain
only one account. If we terminate your account, you may not establish a
new account. You will not use false identities or impersonate any other
person or use a username or password you are not authorized to use. You
authorize us, directly or through third parties, to make any inquiries we
consider appropriate to verify account information you provide.
E. Privacy. Your information will be collected, stored and used in
accordance with the Privacy Policy of Nook Digital, LLC. If
you are you are located in the United States, Canada or a country in Latin
America (or anywhere else in the world not mentioned below) and your
information will be collected, stored and used in accordance with the Privacy Policy of
Barnes & Noble International, LLC if you are located in a European Union
Member State, Switzerland, Australia or a country in Africa or the Asia-Pacific
region.
4. eBook Content Tools and eBook Distribution
A. Content
Tools. Barnes & Noble may make available to
you customer support and certain content editing, formatting and collaboration
tools as part of NOOK Press ("Tools"). You may use such Tools to write,
edit, format and store your project. These Tools are provided as a
convenience to you and may be changed, interrupted or terminated at any
time. We recommend that you back up your work by storing copies of your
project on your computer or other personal device. We are not liable to
you or any third party if you are unable to access your work due to the
failure, unavailability or modification of the Tools.
B. Collaboration
Tools. We may make available to you certain
Tools that enable you to collaborate with other NOOK Press account holders with
respect to your eBook. You may grant certain NOOK Press account holders
with the ability to view and comment upon your work. Please be advised
that such third parties may have the ability to copy and paste from your eBook,
and that we cannot be responsible in any way for the actions they undertake.
C. Delivery of eBooks. In order to
publish your eBooks with NOOK Press, you may either (i)
deliver your eBook to Barnes & Noble in a format compatible with NOOK
Press, as set forth on the Support and Resources Page, or (ii) use our Tools to prepare your eBook in a compatible
format. If you deliver electronic or physical materials to us, we
will retain such materials and they will not be returned to you. You
represent to us that the materials you provide are free of computer viruses,
worms or any other potentially harmful or disruptive code. You must
ensure that all information you provide to us with respect to your eBook is
current, complete, and accurate. If you discover that any such information
you have provided is inaccurate or incomplete, you must promptly submit
corrected information to us through the procedures for eBook information
submission as listed on the NOOK Press website.
D.
Acceptance Policy. Barnes &
Noble determines in its sole discretion which content we accept and distribute
through NOOK Press. Your eBooks must comply with our Content Policy. If you discover that you have submitted an eBook that does
not so comply, you must immediately withdraw your eBook from NOOK Press.
If we request that you provide additional information relating to your eBook,
including but not limited to information confirming that you have all rights
required to permit our distribution of the eBooks, you will promptly provide
the information requested, and you represent and warrant that any information
and documentation you provide to us in response to such a request will be
current, complete, and accurate. You authorize us, directly or through
third parties, to make any inquiries we consider appropriate to verify your
rights to permit our distribution of the eBooks and the accuracy of the
information or documentation you provide to us with respect to those rights.
E.
eBook Withdrawal. You may withdraw
your eBook from sale on NOOK Press using the procedures for eBook withdrawal as
listed on our website. If you request that a eBook be withdrawn from sale,
Barnes & Noble will make commercially reasonable efforts to terminate the
future sale of your eBook by the tenth (10th) business day after you submit
your request for withdrawal, provided however that Barnes & Noble shall
continue to be able to distribute such eBook to past purchasers of that eBook.
F.
Reformatting. We may, in our discretion, remove or modify the cover artwork,
metadata and product description that you submit to us, or reformat your eBook
to make it compatible with NOOK Press. You acknowledge that certain
unintentional errors may occur in the process of such modifications or
reformatting of your eBook. We will not make any material changes to the
text of your eBook. If any such errors do occur, you may remove the
affected eBook from further sale as provided in Section 4(E) above, and such
removal will be your only remedy for such errors. We may also, in our
discretion, correct any errors existing in a eBook file as you deliver it to
us.
G.
Territories. We may, but are
not obligated to, provide you the option of limiting the geographic
distribution of your eBook to your country of residence. If you select
such option, we will distribute your eBook only in such country. If you
do not select such option, we may distribute your eBook in any country where
Barnes & Noble or its affiliates, licensees, distributors or partners does
business. You are solely responsible for ensuring that your eBook
complies with all applicable local laws in all such countries.
H. Marketing. We will have sole
discretion in determining all marketing and promotion related to the sale of
your eBook through NOOK Press, and you agree that we may use (and allow our
contractors and agents to use) the cover of your eBook in any and all
marketing, promotional or packaging materials for any software, website, or
device through which your eBook is made available or accessible, directly and
through multiple channels of distribution, in any media now known or later
developed, without further need for permission from you, and without further
royalties or payments to you. Barnes & Noble may make each eBook
available in one or more formats. Prior to general commercial
distribution, Barnes & Noble may distribute or cause to be distributed free
of charge to some employees of Barnes & Noble copies of each eBook in any format
for purposes of testing the electronic distribution of such eBook in such
format. Barnes & Noble reserves the right to distribute and display
all front matter of an eBook and up to five percent (5%) of an eBook's content
(nonexclusive of an eBook's front matter) free as a sampler. YOU ACKNOWLEDGE THAT BARNES & NOBLE
HAS NO OBLIGATION TO MARKET, DISTRIBUTE, OR OFFER FOR SALE ANY EBOOK OR PART
THEREOF, OR TO CONTINUING MARKETING, DISTRIBUTING OR SELLING AN EBOOK AFTER WE
HAVE COMMENCED DOING SO.
I. Digital
Locker. You acknowledge that Barnes & Noble
shall have the right to permit each customer who purchases your eBook to store
copies of your eBook in a Digital Locker. A "Digital Locker" is a
repository that stores a customer's digital purchases that allows for content
management activity, including but not limited to downloading files, synching
with customer devices and storing customer annotations to the eBook. A
customer may access your eBook stored in the Digital Locker notwithstanding any
suspension or termination of this Agreement, or your withdrawal of your eBook.
J. eBook Lending. Barnes & Noble shall have the right to include your
eBook in a program whereby our customers can loan your eBooks to other
customers. A customer who has purchased your eBook may loan such eBook to
one (1) borrower during a lending period of up to fourteen (14) days. By
submitting your eBook for distribution using the Service you agree to allow
your eBook to be distributed through Barnes & Noble's lending program pursuant
to the terms listed in this section as they may be modified from time to time
in our sole discretion.
K. Retail
Store Privileges. You acknowledge
and agree that Barnes & Noble may make available to customers of retail
stores operated by Barnes & Noble, its affiliates, distributors, licensees
and partners one hundred percent (100%) of your eBook for viewing while within
the reach of such retail stores' wireless networks.
L. Customer
Data. Barnes & Noble will have sole
ownership and control of all data obtained from customers and prospective
customers in connection with the distribution of your eBook on NOOK Press.
M. Print-On-Demand. The NOOK Press print platform creates print books for personal use that you can order and have shipped to you, or you can make your print books available for customer purchase via BN.com. Your use of the NOOK Press print platform is governed by the NOOK Press Terms of Use. The NOOK Press print platform is under no obligation to print or manufacture any book or material, if in Barnes & Noble's reasonable opinion, such book or material is obscene, libelous or otherwise infringes upon the rights of any person. The NOOK Press print platform is only available in the continental United States.
5. Pricing
A. List
Prices. When you submit your eBook to us, you
will provide a list price for your eBook in one or more currencies in
accordance with the then current procedures listed in the Service Polices for
list price submission ("List Price"). You will adjust the List Price as
required to ensure that, at all times that the eBook is available for sale
through NOOK Press, the List Price does not exceed the maximum list price or go
below the minimum list price permitted in our Pricing and Payment Terms.
We will use commercially reasonable efforts to effect any change in List Price
you provide to us within twenty (20) days following the date on which you
submit it. We may provide other requirements for List Prices in the Pricing and Payment Terms which your eBooks must meet in order to be accepted and remain on
NOOK Press, in addition to the requirements provided in the Pricing and
Payment Terms. The List Price
you provide will be exclusive of any applicable value added, goods and services
or similar taxes ("VAT"). If we display a List Price to customers, we may
add applicable VAT to the List Price you provide to determine the List Price
that we display. If we offer your eBook for sale in a different currency
than a currency in which you set your List Price ("Sale Currency"),
we may convert the List Price to the Sale Currency at an exchange rate we determine.
We may periodically update the converted List Price in order to reflect current
exchange rates. If we convert your List Price to another Sale Currency,
the converted List Price in the Sale Currency will be your List Price with respect
to the offer and sale of your eBook in the Sale Currency for all purposes under
this Agreement. For example, your Royalties (as defined below) will be
calculated based on the converted List Price in the Sale Currency.
B. Customer
Prices. We have sole and complete discretion to
set the Retail Price at which your eBooks are sold to the customer. We or
our third party retailers, partners or contractors are solely responsible for
processing payments, payment collection, requests for refunds and related customer
service.
6. Payments
A. Royalty. If you are not in breach of any of your obligations under
this Agreement, for each eBook sold to a customer through NOOK Press, Barnes
& Noble will pay you the applicable "Royalty" defined and set forth in the
Pricing and Payment Terms, net of refunds, chargebacks, bad debt and any
applicable taxes charged to a customer or applied with respect to sales to a
customer (including without limitation any VAT or sales taxes).
B. Payment Terms. Barnes & Noble will pay or cause to be paid your
Royalties on sales of your eBook or print book approximately sixty (60) days following the
end of the calendar month during which it is sold. At the time of
payment, we will make available to you an online report detailing sales of
eBooks and print books and corresponding Royalties. All payments will be made via
electronic transfer payments or other method we designate in the Pricing and Payment Terms in the
Sale Currency or other payment currency we provide for in the Pricing and Payment Terms. If we give you the option to change your payment currency
and you select that option using our then-current procedures, unless otherwise
noted the change will be effective on the first day of the calendar month
following the calendar month in which you make the change. If we pay you
in a currency other than the Sale Currency, we will convert the Royalties due
from the Sale Currency to the payment currency at an exchange rate we
determine, which will be inclusive of all fees and charges for the conversion.
We may require you to register in your account a valid bank account for
receiving ACH payments that is in compliance with the then-current Service
Policies, otherwise we will not be obligated to make payments of Royalties to
you unless you do so. We are entitled to accrue and withhold payments until the
total amount due is at least Ten U.S. Dollars ($10) or for payments in other
currencies, at least those amounts we set forth in the Pricing and Payment Terms. You may not maintain any action or proceeding against us in
respect of any statement unless you commence that action or suit within six (6)
months after the date the statement is rendered. Any such action or proceeding
shall be limited to a determination of the amount of monies, if any, payable by
us to you for the accounting periods in question, and your sole remedy shall be
the recovery of those monies with no interest thereon. If we pay you a
Royalty on a sale and later issue a refund, return, or credit for such sale, we
may offset the amount of the Royalty previously paid for the sale against
future Royalties, or require you to remit that amount to us. Negative
balances can occur when the value of all refunds of your eBook during a given
payment period exceeds that value of orders for your eBook. If you have a
negative balance on your payment date, the negative balance may be offset from
future Royalty payments to you. If a third party asserts that you did not
have all rights required to make your eBook available on NOOK Press, or if we
believe that you may be in breach of your representations and warranties in
this Agreement, we will be entitled to hold all Royalties due until we
determine that the validity of the third party claim, that you were not in
breach or have fully remedied your breach, as applicable. Upon termination
of this Agreement, we may withhold all Royalties due for a period of three (3)
months from the date they would otherwise be payable in order to ensure our
ability to offset any refunds or other offsets we are entitled to take against
the Royalties.
C. Taxes. In the event that the sale or delivery of any eBook to any
customer is subject to any sales, use, good and services, VAT or similar tax
under applicable law, Barnes & Noble will collect such tax and remit it to
the taxing authorities. You are responsible for any income or other taxes
due and payable resulting from payments to you by Barnes & Noble under this
Agreement. Accordingly, unless otherwise stated, the amounts due to you
hereunder are inclusive of any taxes that may apply to such payments.
Barnes & Noble maintains the right, however, to deduct or withhold any and
all applicable taxes from amounts due by them to you, and the amounts due, as
reduced by such deductions or withholdings, will constitute full payment and
settlement to you.
7. Grant of Rights
You hereby grant to Barnes & Noble, its distributors, licensees and
partners a non-exclusive, worldwide, irrevocable right and license to make your
eBooks available for sale, marketing, display, distribution and promotion in
any commercially available electronic or digitized format or on any electronic
device platform whether now existing or hereafter created or developed.
Without limiting the generality of the foregoing, you further authorize and
license Barnes & Noble, its distributors, licensees and partners to: (i) convert or render your eBook, including without
limitation any text, information, data, software, photographs, graphs, videos,
typefaces, graphics, music, sounds, and other material contained therein, into
a format suitable for the sale, distribution, marketing, display and promotion
of such eBook hereunder; (ii) store your eBook in data centers and servers;
(iii) index and catalogue your eBooks; (iv) allow customers to copy, paste,
print, email, annotate, view online and share your eBooks; (v) bundle your
eBooks with related physical content available for sale from Barnes & Noble
or such distributor, licensee or partner; and (vi) use the eBook as otherwise
provided herein.
8. Security & Digital Rights Management
If you indicate that digital rights management software ("DRM") is to be
applied to your eBook, Barnes & Noble will use commercially reasonable
efforts to provide such DRM consistent with industry standards.
Notwithstanding the foregoing, you acknowledge that all security technology,
including but not limited to DRM, is subject to possible breach and that Barnes
& Noble assumes no responsibility and no liability for any breaches of DRM
or other security technology.
9. Rights Clearances
You will obtain and pay for any and all necessary clearances and licenses to
permit our exercise of the rights granted hereunder with respect to your eBook
without any further payment obligation by us, including, without limitation,
all royalties and other income due to any copyright owner.
10. Representations & Warranties
You represent and warrant that: (i) you hold the
necessary rights, including all intellectual property rights, in and to the
eBook and related content to enter into this Agreement and grant the rights
granted herein and such rights are not subject to any prior agreement, lien or
encumbrance that may interfere with the free exercise of the rights hereunder;
(ii) your eBook does not contain any obscene or libelous material or material
that is in any way unlawful under the laws of any jurisdiction in which you
agree it may be sold; (iii) the use, with reasonable care and skill, of any
instruction, material, or advice contained in your eBook is not likely to
result in injury and your eBook includes appropriate warnings and safety
precautions concerning any particular hazards that may be involved in the use
of any such instruction, material or advice; (iv) your eBook may be sold,
marketed, displayed, distributed and promoted as contemplated by this Agreement
without violating or infringing the rights of any other person or entity,
including, without limitation, infringing any copyright, patent, trademark or
right of privacy, or any other intellectual or industrial property right, title
or interest of any party, and without obligating Barnes & Noble to pay any
fees to third parties; (v) you will pay or cause to be paid all royalties, fees
or other compensation due to third parties in connection with the use of your
eBook in the manner contemplated by this Agreement; and (vi) all information
you provide hereunder shall be accurate and current. Additionally,
if you are not an individual, the individual person who accepts this Agreement
for you further represents and warrants that he or she is entitled to enter
this Agreement as your authorized representative and to bind you to the terms
of this Agreement.
NOOK PRESS IS MADE AVAILABLE TO YOU ON AN "AS IS" BASIS. BARNES &
NOBLE DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT OR
PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS
AGREEMENT. BARNES & NOBLE DOES NOT WARRANT THAT YOUR USE OF NOOK
PRESS WILL BE UNINTERRUPTED OR ERROR-FREE. BARNES & NOBLE CANNOT
ENSURE THAT YOUR E-BOOK WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT
CUSTOMERS WILL COMPLY WITH ANY CONTENT USAGE RULES BARNES & NOBLE MAY MAKE
APPLICABLE IN CONNECTION WITH USE OF YOUR E-BOOK. BARNES & NOBLE WILL
HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY SYSTEM OR PROCEDURE OR
OF ANY CUSTOMER TO COMPLY WITH ANY CONTENT USAGE RULES.
CERTAIN STATE OR NATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES
OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, AND IF SUCH LAWS ARE
APPLICABLE, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS
MAY NOT APPLY TO YOU.
11. Indemnification
You agree to indemnify and hold harmless Barnes & Noble, its parents,
subsidiaries, affiliates, distributors, licensees and partners and their
respective directors, officers, employees, agents, shareholders, partners,
members and other owners ("Indemnified Parties") against any and all claims,
actions, demands, liabilities, losses, damages, judgments, settlements, costs
and expenses (including reasonable attorneys' fees and expenses, collectively,
a "Claim") brought about by any person that arise out of or are based on your
breach of this Agreement or any breach of the representations, warranties,
covenants or agreements you make herein. Each Indemnified Party will be
entitled, at its expense, to participate in the defense and settlement of the
Claim with counsel of its own choosing. You may not enter into any
settlement or other disposition of any Claim without the prior written approval
of the applicable Indemnified Parties.
12. Intellectual Property
Subject to the authorizations granted to us hereunder, as between us and you,
you retain all ownership rights in and to the copyrights and all other rights
and interest in and to your eBook. Barnes & Noble retains all
ownership rights in and to the copyrights and all other rights and interests in
and to NOOK Press and all related websites, services, applications, tools and
content. Barnes & Noble is solely responsible for, and will have full
discretion with respect to the terms, features, and operation of NOOK Press and
the marketing therefor. In the event that you provide suggestions,
advice, ideas or other feedback to Barnes & Noble in conjunction with NOOK
Press ("Feedback"), Barnes & Noble shall be free to use and exploit such
Feedback without restriction and will have no obligation to compensate you.
13. Confidentiality
As used herein, "Confidential Information" means: (i)
any information that would reasonably be considered to be confidential information
of Barnes & Noble in light of the circumstances surrounding the disclosure;
and (ii) any other information provided by Barnes & Noble to you hereunder
including, but not limited to: (a) any information regarding Barnes &
Noble, its parents, subsidiaries, affiliates, distributors, licensees and
partners and their businesses you receive in connection with your activities on
NOOK Press, including but not limited to their technology, customers, business
plans, marketing activities and finances; (b) the content and existence of any
communications between you and us.
Except with our prior written consent, you shall not (x) use or disclose any
Confidential Information other than to your employees or a third party who have
a need to know and any disclosure to third parties may only take place under a
non-disclosure agreement at least as protective of Confidential Information as
this Agreement; or (y) make copies or allow others to make copies of
Confidential Information except as is reasonably necessary for your internal
business purposes. If you are required to disclose Confidential
Information to a third party in connection with any ongoing civil or criminal
investigation or any legal proceeding, you must promptly notify Barnes &
Noble so that we may, if we choose, seek an appropriate protective order or
take other appropriate steps to seek to limit or prevent such disclosure.
Without limiting the survivability of any other provision of this Agreement,
your obligations under this Section 13 will survive five (5) years following
the termination of this Agreement.
14. Limitation of Liability
IN NO EVENT SHALL THE LIABILITY OF BARNES & NOBLE HEREUNDER (I) EXCEED THE
AMOUNT PAYABLE BY BARNES & NOBLE YOU PURSUANT TO THIS AGREEMENT FOR THE
TWELVE (12) MONTH PERIOD PRECEEDING ANY CLAIM, OR (II) INCLUDE ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES
OR PENALTIES INCLUDING, BUT NOT LIMITED TO, LOSSES OF DATA, BUSINESS, REVENUE
OR ANTICIPATED PROFITS. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY
REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, WHETHER
FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, WHETHER OR
NOT THE PARTIES WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE, AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL
PURPOSE.
15. Dispute Resolution and Applicable Law
BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT
ANY CLAIM ARISING HEREUNDER WILL BE RESOLVED BY BINDING ARBITRATION CONDUCTED
BY TELEPHONE, ONLINE OR BASED SOLELY UPON WRITTEN SUBMISSIONS WHERE NO
IN-PERSON APPEARANCE IS REQUIRED. ALL CLAIMS SHALL BE ARBITRATED OR
LITIGATED ON AN INDIVIDUAL BASIS AND SHALL NOT BE CONSOLIDATED WITH ANY CLAIM
OF ANY OTHER PARTY, WHETHER THROUGH CLASS ACTION PROCEEDINGS, CLASS ARBITRATION
PROCEEDINGS OR OTHERWISE. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH
PARTY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF
SUCH CLAIM SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
EACH PARTY ACKNOWLEDGES THAT THIS SECTION 15 IS A MATERIAL INDUCEMENT FOR THE
OTHER PARTY TO ENTER INTO THIS AGREEMENT.
ANY
ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER
ITS COMMERCIAL ARBITRATION RULES (INCLUDING WITHOUT LIMITATION THE
SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES, IF APPLICABLE) AND
JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED INTO ANY
COURTS HAVING JURISDICTION THEREOF. ALTERNATIVELY, AT OUR SOLE OPTION, A
CLAIM (INCLUDING CLAIMS FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF) MAY BE
ADJUDICATED BY THE COURTS OF NEW YORK COUNTY, NEW YORK. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.
16. Miscellaneous
This Agreement is made in the English language. Any translations into
additional languages we make available to you have no legal validity and in the
event of any inconsistency between the English language version and the
translated version, the English language version will govern. The parties
hereto are and shall remain independent contractors, and nothing herein shall
be deemed to create a partnership or joint venture. This Agreement shall
be construed and interpreted fairly, in accordance with the plain meaning of
its terms, and there shall be no presumption or inference against the party
drafting this Agreement in construing or interpreting the provisions
hereof. If any provision of this Agreement shall be adjudged by any court
of competent jurisdiction to be unenforceable or invalid, that provision shall
be limited or eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and remain enforceable.
The failure of either party to act in the event of a breach of this Agreement
by the other shall not be deemed a waiver of such breach or a waiver of future
breaches. This Agreement shall be construed as if jointly drafted by the
parties. You may not assign any of your rights or delegate any of your
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