NOOK Press Membership Agreement and Terms of Use

Last Modified: 11 March 2015
 
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 NOOK Digital, LLC

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 eBookstore Program Terms; (e) theBarnes & Noble website Terms of Use; and (f) the Barnes & Noble Privacy Policy(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 at 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 email 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 the 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 towards 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 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 unauthorised access to your account; and (iii) keeping current the email 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 that you are not authorised to use.  You authorise us, directly or through third parties, to make any enquiries we consider appropriate to verify account information you provide.  

E.  Privacy.  Your information will be collected, stored and used in accordance with thePrivacy Policy of Nook Digital, LLC.

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 authorise us, directly or through third parties, to make any enquiries 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 an 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, at our discretion, correct any errors existing in a eBook file when 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 this option, we will only distribute your eBook in this country.  If you do not select this 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 (non-exclusive 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 repository that stores a customer’s digital purchases to allow for content management activity, including but not limited to downloading files, syncing 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 programme 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 programme pursuant to the terms listed in this section as they may be modified from time to time at 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.

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 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 corresponding Royalties.  All payments will be made via electronic transfer payments or other methods we designate in the Pricing and Payment Terms in the Sale Currency or other payment currencies 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 the 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 on your account a valid bank account for receiving EFT payments that is in compliance with the then-current Pricing and Payment Terms, otherwise we will not be obligated to make payments of Royalties to you. We are entitled to accrue and withhold payments until the total amount due is at least Ten US 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 the validity of the third party claim, that you were not in breach or that your breach has been fully remedied, 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, goods 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 licence to make your eBooks available for sale, marketing, display, distribution and promotion in any commercially available electronic or digitised format or on any electronic device platform whether now existing or hereafter created or developed.  Without limiting the generality of the foregoing, you further authorise 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 centres 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 licences 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 libellous 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 authorised 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 EBOOK 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 EBOOK.  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, judgements, settlements, costs and expenses (including reasonable legal 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 defence 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 authorisations 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 PRECEDING 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 duties under this Agreement without the prior written consent of Barnes & Noble and any attempted assignment, delegation or transfer in derogation hereof shall be null and void.  This Agreement shall be binding upon the successors and permitted assigns of both parties.  Each party to this Agreement acknowledges that this Agreement supersedes all prior or contemporaneous agreements, discussions or representations, whether oral or written, between the parties.  You consent to the use of electronic means to complete this Agreement and to provide you with any notices given pursuant to this Agreement.  Any notice or other communication to be given hereunder will be in writing and given: (i) by us via email, via a posting on our website or via a message through your NOOK Press account; or (ii) by you via email to nookpress@nook.com with a copy to Barnes & Noble, Attention: General Counsel by email to DMCANOTICE@barnesandnoble.com or to such other addresses as we may specify in the Service Policies.  The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.

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