Welcome to the NOOK Store. The terms of service set out below govern your use of the NOOK Store (the “NOOK Store Terms of Service”), and this is a legally binding agreement made by and between you and NOOK. Other terms and conditions, policies and guidelines may also apply to you to govern your use of the NOOK Service, depending upon how you use or access the NOOK Service.
By registering, using or accessing the NOOK Service this agreement is made between you and Nook Digital, LLC, a Delaware limited liability company. Nook Digital, LLC, together with its parents, subsidiaries and affiliates are collectively referred to herein as “NOOK”, “we”, “our” or “us”. For the purposes of these NOOK Store Terms of Service, “affiliate(s)” means any entity that controls, is controlled by or is under common control with NOOK.
Please read the NOOK Store Terms of Service carefully before using the NOOK Store. By visiting and/or using NOOK Store, accessing the NOOK Store Content, creating a NOOK account, or by placing an order or downloading Digital Content and applications developed by us on the NOOK Store, you acknowledge and agree that you have read, understood and agree to be bound by the NOOK Store Terms of Service. If you do not agree to be bound by the NOOK Store Terms of Service, you should leave the NOOK Store immediately and cease all your use of it.
Please note that nothing in the NOOK Store Terms of Service affects your mandatory statutory rights under applicable local laws, to the extent that such rights apply to you and cannot be limited or excluded.
CONTENTS OF THESE NOOK STORE TERMS OF SERVICESection 1: DEFINITIONS
Section 2: CREATING AN ACCOUNT
Section 3: USE OF NOOK STORE
Section 4: YOUR RIGHTS REGARDING DIGITAL CONTENT
Section 5: TERMINATION OR SUSPENSION
Section 6: DISCLAIMERS; EXCLUSIONS AND LIMITATIONS
Section 7: DISPUTE RESOLUTION
Section 8: GENERAL
The following definitions are used throughout these NOOK Store Terms of Service:
“Digital Content” means digital or electronic content or media which is available to you through the NOOK Store and which may be viewed on the NOOK App and NOOK Devices, including eBooks, eTextbooks, audiobooks, digital magazines, digital newspapers, digital journals and other periodicals, blogs, software applications (including applications developed by NOOK or third parties) and other digital content as determined by us from time to time.
“NOOK App(s)” means the NOOK software applications for mobile devices, computers or other electronic devices (including any updates or upgrades) that we make available to you.
“NOOK Device(s)” means electronic devices manufactured by or on behalf of NOOK and sold under the NOOK brand.
“NOOK Library” means the online digital locker or library hosted in our cloud storage facility where your purchases of Digital Content are stored and which you may access via the NOOK Website, the NOOK Store, NOOK Device and the NOOK App.
“NOOK Service” means collectively the NOOK App (and any services made available on or by means of the NOOK App), the NOOK Website, the NOOK Store and NOOK Devices (and any services made available on or by means of NOOK Devices).
“NOOK Store” means the store operated by NOOK where you can browse and purchase items and Content.
“NOOK Store Content” means the contents of the NOOK Store (including Content).
“NOOK Website(s)” means any NOOK website which you access.
2. CREATING AN ACCOUNT
(a) Creating an Account. You may visit and browse the NOOK Store without registering or opening a NOOK account with us. However to place orders, purchase and/or download or stream items and content from the NOOK Store, including Digital Content, you will need to first open a NOOK account by registering with us. Depending upon where you are and how you have access to our NOOK Store, you can open a NOOK account either by visiting the NOOK Store via a computer or mobile or other electronic device, or in the setup process for your NOOK Device or directly via certain NOOK Apps. Where available and offered, you may also be able to use your account details that you have registered with www.bn.com.
Once registered, you are responsible for: (i) keeping your account password confidential and secure, (ii) avoiding unauthorized access to your NOOK account, your computer, NOOK Device or any mobile or other electronic device running the NOOK App; and (iii) keeping the e-mail address associated with your NOOK account current (you acknowledge that it is important to keep the e-mail address associated with your NOOK account current because although you may be able to log into your NOOK account using an old e-mail address, you will not receive messages from us about your orders and enquiries or other matters).
You are solely responsible for all activities that occur within or through your NOOK account. You agree to notify us of any actual or anticipated security breach of your account. We will not be held liable for any loss or damage arising from your failure to comply with these obligations.
(b) Age of Users. Unless otherwise specifically noted in the features made available to you, the NOOK Store and any products and services appearing, marketed or sold on the NOOK Store, including Digital Content, are intended for and directed towards the purchase by adults (those aged 18 years or above) or with the consent of adults. Individuals under the age of 18 years may only use the NOOK Store with the supervision of a parent or legal guardian and should review these NOOK Store Terms of Service with a parent or legal guardian to ensure that they understand them.
3. USE OF NOOK STORE
(a) How the NOOK Store works. The NOOK Store permits you to browse and, once you have a NOOK account and through your use of your NOOK Library, purchase items, and in the case of Digital Content, download and store items, for use on supported computers or other electronic devices, NOOK Devices or NOOK Apps. Your NOOK account is designed so that all items purchased and/or downloaded are held in your NOOK Library. We will use reasonable efforts to grant you such access to your NOOK account and NOOK Library. Temporary interruptions to the NOOK Service may occur for technical reasons (including maintenance, repairs, implementation of new services) which we will use our commercially reasonable efforts to limit. The range of items available to you through the NOOK Store will depend upon a number of factors, including where you reside, where you attempt to access the NOOK Store from and the computer, mobile or other electronic device, or NOOK Device or NOOK App that you are using. Not all NOOK Store Content may be available to all users.
Details of how to place orders, make purchases in and otherwise browse and use the NOOK Store can be found in the NOOK Store. This also provides you with details of how to amend and/or cancel your order, return items and, where applicable, receive a refund. Please also see Sections (f) and (g) below.
(b) Prices. Prices listed or shown on the NOOK Store may differ from the price shown in your shopping basket. It is possible that prices may increase or decrease between the time an item is placed in your shopping basket and the time that the purchase is actually made.
Despite our best efforts, on rare occasions an item may be priced incorrectly on the NOOK Store. If we have made a mistake and the correct price for the item is actually higher than the price listed on the NOOK Store at the time of purchase, then we may either (at our sole discretion and to the maximum extent permitted by applicable local law): (i) contact you to see whether you want to buy the product at the higher price; (ii) cancel your order for such item and notify you of the cancellation; or (iii) ship the item to you at the incorrect lower price to your benefit.
Please note that this Section 3(b) above regarding prices applies only to items sold and shipped by us.
(c) Risk of Loss. With the exception of Digital Content, the risk of loss and title for all items purchased via the NOOK Store pass to you upon delivery of the item to the carrier.
The risk of loss of title for all items purchased via the NOOK Store pass to you upon delivery of the item to the delivery address specified in your order confirmation.
(d) Availability. Wherever possible, we list information regarding availability of items sold through the NOOK Store. Despite our best efforts some products may be shown incorrectly as available on the NOOK Store. We will inform you during the order process if an item you order turns out to be unavailable and you will not be charged or will be refunded for such items.
(e) Content and Product Descriptions. All information and descriptions provided about items made available through the NOOK Store are for your information only; information and descriptions may be less detailed and, in certain circumstances, different to information contained in actual item packaging, materials and other descriptions. Please read all packaging, labels, safety warnings, instructions and directions for use prior to using items made available through the NOOK Store. The items made available through the NOOK Store that are not produced by us contain descriptions that are provided directly by the publisher, manufacturer, developer, distributor or seller of such item (as the case may be).
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW, WE ACCEPT NO RESPONSIBILITY FOR INACCURATE OR INCOMPLETE INFORMATION ABOUT ANY ITEMS DISPLAYED, ADVERTISED, MADE AVAILABLE AND/OR SOLD IN OR THROUGH THE NOOK STORE WHICH HAS BEEN PROVIDED TO US BY A THIRD PARTY. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAW, WE DO NOT REPRESENT OR WARRANT THAT THE DESCRIPTIONS OF SUCH ITEMS ARE ACCURATE OR COMPLETE. IF YOU PURCHASE AN ITEM FROM US THAT IS NOT AS DESCRIBED ON THE NOOK STORE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LOCAL LAW YOUR SOLE AND EXCLUSIVE REMEDY IS TO RETURN SUCH ITEM IN AN UNUSED CONDITION FOR A REFUND OF THE PURCHASE PRICE, SUBJECT TO SECTIONS 3 (F) AND (G) BELOW.
THIS SECTION DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER UNDER APPLICABLE LOCAL LAWS, TO THE EXTENT THAT SUCH RIGHTS APPLY TO YOU AND CANNOT BE EXCLUDED OR LIMITED.
(f) Returns and Refunds – Physical Items (e.g. devices and accessories).
Physical goods purchased from the NOOK Store may be returned to us for a full refund within fourteen (14) days of receipt.
Physical items (but excluding NOOK Devices): Items must be returned undamaged in their original packaging, with all components included in the box. The packaging may be opened (unless it is an audiovisual product, sound recording or software) but the packaging and all components must be in re-sellable condition.
Physical goods should be returned to the following address:Barnes & Noble
1 Barnes & Noble Way
Monroe Township, NJ 08831
Return postage costs are covered by us (via UPS return delivery label) if the return is due to our error or the products are faulty. In all other cases, you are responsible for meeting the return postage costs and insurance as we do not take title to the returned items until they arrive at the returns address. Where you are due a refund, refunds will be made in the original form of payment.
If you prefer, you may bring the item and your packing slip to any Barnes & Noble bookstore within 14 days of receipt. Please call your local store for more details.
If you used PayPal to complete your order for a NOOK Device and want a refund to your PayPal account you must call 1-800-THE-BOOK (843-2665) and get a return authorization number for credit back to your PayPal account.
If you purchased NOOK products from another retailer, your right to return and receive a refund (and procedures for doing so) will be governed by the policies of that retailer. Please check with your retailer for the applicable returns policy and procedure.
NOOK Devices: You must request a Return Material Authorization by contacting customer service at www.nook.com/support. Customer service will provide you with details of the correct returns center where you should send the NOOK Device. You are encouraged to de-register your NOOK Device from your NOOK account and remove all personal content before returning it to us. You should also remove any cover or SD memory card, as these items will not be returned.
If you prefer, you may bring the NOOK Device and your packing slip to any Barnes & Noble bookstore within 14 days of receipt. Please call your local store for more details. If you return your NOOK Device to a Barnes & Noble store within 14 days and you have paid with PayPal, the store will provide a store credit as a refund. Your PayPal account will only be refunded if the item is returned using your www.bn.com account.
If you discover a defect in your NOOK Device after the refund period stated above, your rights to receive a replacement NOOK Device or a refund are provided in the One Year Limited Warranty. This section does not affect your statutory consumer rights as a consumer under applicable local laws, to the extent that such rights apply to you and cannot be excluded or limited.
(g) Returns and Refunds – Content.
Content cannot be returned once purchased.
(h) Notice and Take Down Procedure For Claims of Infringement. If you believe in good faith that materials contained on the NOOK Store or within the NOOK Store Content, infringe your rights (for example, your copyright), you (or your agent or representative) may send us a notice requesting that the material be removed or access to it blocked. The notice must include the following information (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the work claimed to have been infringed (or if multiple works are covered by a single notification, a representative list of such works); (iii) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to enable us to locate the material on the NOOK Store or within the NOOK Store Content; (iv) your name, address, telephone number and e-mail address; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the rights-holder, its agent or representative, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury (where applicable in accordance with applicable local laws), that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. It you are seeking to send us such a notice with respect to a non-exclusive right, you must comply with the foregoing sections (i)-(vi), but in addition provide evidence to us on what basis you have the right to allege infringement and make a complaint.
If you are sending a notice or counter-notice pursuant to the United States Digital Millennium Copyright Act of 1998 (the “DMCA”), then it must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Full details of our copyright policy under the DMCA is available on the NOOK Website.
Notices and counter-notices with respect to the NOOK Store should be sent to: IP Agent, Nook Digital, LLC, 122 Fifth Avenue, New York, New York 10011, USA at DMCANOTICE@Barnesandnoble.com. Giving false, misleading or inaccurate information in a notice or counter-notice may result in civil and/or criminal liability. We suggest that you consult your legal advisor before filing a notice or counter-notice.
(i) Third Party Websites and Advertisements. We take no responsibility for third-party advertisements or third-party applications that are posted on or through or made available on the NOOK Store, and, to the maximum extent permitted by applicable local laws, we do not take any responsibility for any goods or services provided by third party advertisers on the NOOK Store.
(j) Restrictions and Prohibited Conduct. Except as may be expressly permitted by these NOOK Store Terms of Service and to the maximum extent permitted by applicable local law, you may not, directly or indirectly: (i) modify, download (other than page caching), reproduce, copy or resell the NOOK Store, the NOOK Store Content or any portion or derivative thereof; (ii) make commercial use of the NOOK Store, the NOOK Store Content or any portion derivative thereof (unless you have a business relationship with us); (iii) copy or download any other user's account or profile information for the benefit of any third party; (iv) enable high volume, automated, electronic processes that apply to the NOOK Store or its systems, the NOOK Store Content or any portion or derivative thereof; (v) interfere or attempt to interfere with or damage the NOOK Store, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or use the NOOK Store or the NOOK Store Content in any manner that could interrupt, damage, disable, degrade, overburden or impair any other users’ use and enjoyment of the NOOK Store; (vi) use any robot, spider, data miner, crawler, scraper or other automated means to access or index the NOOK Store or its systems, the NOOK Store Content or any portion or derivative thereof for any purpose; (vii) bypass any of our measures used to prevent or restrict access to any portion of the NOOK Store, the NOOK Store Content or any portion or derivative thereof; (viii) frame or utilize framing techniques to enclose any trademark, logo or other of our proprietary information (including images, text, page layout or form); (ix) use our name, trademarks, service marks or logos in any meta tags or any other “hidden text”; (x) compile, repackage, disseminate or otherwise use data extracted from the NOOK Store or the NOOK Store Content; (xi) violate any law, rule or regulation of the local laws applicable to you in your use of the NOOK Store or the NOOK Store Content; or (xii) assist or encourage any third party in engaging in any activity prohibited by these NOOK Store Terms of Service or any applicable local laws or regulations.
(k) Intellectual Property. We (and, where applicable, our licensors and suppliers) own all rights, title and interest in and to the NOOK Store (and the NOOK Store Content) and all enhancements, bug fixes, upgrades, modifications, customizations, improvements, derivative works, whether or not developed by us, and copies thereof, and all information, methods and processes and intellectual property rights therein, including rights subsisting in trademarks, service marks, trade dress, text, graphics, logos, images, videos and audio clips (collectively, the “Intellectual Property”). No rights are granted to you except those expressly set forth in these NOOK Store Terms of Service and we (and, where applicable, our licensors and suppliers) expressly reserve all rights, title and interest in and to the NOOK Store, the NOOK Store Content and Intellectual Property not expressly granted herein. You acknowledge and agree that your use of the NOOK Store (and the NOOK Store Content) does not grant to you title or ownership of any of our Intellectual Property or those of our suppliers or licensors. Intellectual Property may not otherwise be used without our (or, as applicable, our licensors’ or suppliers’) prior written consent. Without limiting the foregoing, no NOOK trademark or trade dress may be used in connection with any product or service that is not NOOK’s, in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits us.
(l) Content. You acknowledge that the NOOK Store contains the NOOK Store Content, which includes Digital Content that is protected by copyrights, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All NOOK Store Content, including Digital Content, is or may be copyrighted as a collective work under the U.S. copyright laws and/or other local intellectual property and copyright laws and treaties, and we own a copyright in the selection, coordination, arrangement, and enhancement of such NOOK Store Content on the NOOK Store. You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any such NOOK Store Content, in whole or in part. If no specific restrictions are displayed, you may make copies of select portions of the NOOK Store Content, exclusive of Digital Content and the NOOK App, provided that the copies are made only for your personal use and that you maintain any notices contained in the NOOK Store Content, such as all copyright notices, trademark legends, or other proprietary rights notices. Except as provided in the preceding sentence or as permitted by the fair use privilege under the U.S. copyright laws (see, e.g., 17 U.S.C. Section 107) or similar provisions in applicable local intellectual or copyrights laws and treaties, you may not upload, post, reproduce, or distribute in any way NOOK Store Content, including Digital Content and the NOOK App, protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other propriety right. In addition to the foregoing, use of any software Content shall be governed by these terms and any software license agreement accompanying such software.
In addition, we are a distributor and not a publisher of NOOK Store Content, including Digital Content, supplied by third parties and users. We have no editorial control over such NOOK Store Content. We are not obligated to review NOOK Store Content, including Digital Content. Any opinions, advice, statements, services, offers, or other information that constitutes part of the NOOK Store Content, including Digital Content, expressed or made available by third parties, including any other user, are those of the respective authors or distributors and not of ours or any of our suppliers or licensors, unless expressly stated otherwise. Neither we nor our suppliers or licensors make any representation, warranty or guarantee on the accuracy, completeness, or usefulness of any third party NOOK Store Content unless otherwise expressly stated. In many instances, the NOOK Store Content, including Digital Content, available through the NOOK Store represents the opinions and judgments of the third party that provides such NOOK Store Content. To the maximum extent permitted by applicable local laws, under no circumstance shall either we or any of our suppliers or licensors be liable for any loss, damage or harm caused by your reliance on information obtained through the NOOK Store. It is your responsibility to evaluate the accuracy, completeness or usefulness of the information, opinion, advice, or NOOK Store Content, including Digital Content, available through the NOOK Store.
(m) Indemnity. To the maximum extent permitted by applicable local law, you agree to indemnify and hold harmless on a continuing basis us and our affiliates, and our and their employees, representatives, agents, lawyers, directors, officers, managers, shareholders, suppliers and licensors (the “Indemnified Parties”) immediately (on demand) from any claim or demand, including reasonable and/or statutory legal fees, made by any third party due to or arising out of your use of the NOOK Store, the NOOK Store Content and/or the NOOK Service and/or related to, or connected with, your actual or alleged breach of these NOOK Store Terms of Service or your violation of any applicable law or regulation or the rights of a third party.
(n) Internet Connectivity Charges. Internet connectivity is required to access the NOOK Store, the NOOK Store Content, your NOOK account and NOOK Library (each where applicable). Any access fees or charges applicable to your internet connectivity are solely your responsibility. Certain internet service providers, including wireless carriers, may charge fees for data connections based on the total amount of data you access. Some Digital Content may include large amounts of data, and we are in no way responsible for the fees charged by or policies of internet service providers or others with whom you contract for such internet connectivity.
4. YOUR RIGHTS REGARDING DIGITAL CONTENT
(a) We offer you the ability to purchase or download Digital Content from and through the NOOK Store for viewing and use on a NOOK Device or via the NOOK App, using your NOOK Library. We grant you a limited, non-exclusive, revocable license to access and make personal, non-commercial use of the Digital Content in accordance with these NOOK Store Terms of Service.
Certain Digital Content, including but not limited to eTextbooks, may be licensed for viewing over a limited period of time. If a limited period license applies to particular content, we will identify the license period in the NOOK Store. If no license period is identified, then the license period for such Digital Content is indefinite.
You may generally browse, preview or search Digital Content without having to purchase or download the Digital Content. However, in order to be able to purchase and/or download Digital Content, you must first open a NOOK account and provide valid credit card information and your billing address to us and either: (i) install the NOOK App onto your mobile, computer or electronic reading device. A NOOK App is downloaded, installed and used in accordance with our NOOK App Terms of Service; or (ii) register your NOOK Device by logging into your NOOK account from your NOOK Device. If you have difficulty downloading or accessing Digital Content from the NOOK Store, please contact customer service at www.nook.com/support for assistance.
Your purchased Digital Content will be stored in, or accessible from, your NOOK Library. You can access your NOOK Library by signing into your NOOK account. You may also transfer most Digital Content from your NOOK Library to no more than a total of six (6) supported NOOK Devices or NOOK Apps that you own at any one time; however, certain Digital Content, including eTextbooks, may be transferred to no more than a total of two (2) supported NOOK Devices or NOOK Apps at any one time. You may not transfer the Digital Content from one electronic reading device to another without maintaining the applicable digital rights management (“DRM”) solution for that Digital Content. You may not bypass, modify, defeat or circumvent any of the security features, special rules or other applications that protect the Digital Content.
We reserve the right to modify or discontinue the offering of any Digital Content at any time. If an item of Digital Content becomes unavailable prior to download but after purchase, your sole and exclusive remedy is the refund of the purchase price paid for such Digital Content to the maximum extent permitted by applicable local laws. Some Digital Content may not remain available for re-download from your NOOK Library, if for example, the publisher of the Digital Content no longer retains the rights or other licenses, consents or permissions to that Digital Content. Digital Content already downloaded to your NOOK Device or NOOK App will generally not be affected.
Digital Content is only available for purchase by users with a credit card that is registered in the country in which the Digital Content is downloaded and where we offer the NOOK Service.
(b) Digital Content - Lending. Only certain eBooks are eligible for lending. eBooks with an icon on their product pages indicate their eligibility for lending and will also have a “LendMe” link in your NOOK Library, once purchased. Where an eBook is eligible for lending, you may loan that eBook to one person only. The current maximum number of times that an eBook can be lent is once per eBook title for a period of up to 14 days. During the lending period, the loaned eBook will be disabled in the lending user’s NOOK Library. After the lending period has expired, the eBook will be re-enabled in your NOOK Library.
The borrower must have a NOOK account with a default credit card payment method for accessing the borrowed eBook. The borrower cannot lend the borrowed eBook to another person. Upon expiry of the 14-day lending period, the loaned eBook will be disabled in the borrower's NOOK Library and the borrower will no longer be able to access it. The borrower cannot archive or delete a borrowed eBook. The borrower can only return the borrowed eBook to you. The borrower will be allowed to return the loaned eBook to you prior to the expiry of the 14-day lending period. The following types of Digital Content are not eligible for lending: digital audiobooks, digital magazines, digital newspapers, free eBook samples and Google books.
(c) Digital Content - License Restrictions; Prohibited Conduct. To the maximum extent permitted by applicable local laws, you may not transfer, copy, manipulate or display the Digital Content except as permitted in these NOOK Store Terms of Service. Without limiting the generality of the preceding sentence, and to the maximum extent permitted by applicable local laws, you may not: (i) duplicate or otherwise reproduce (including “burning”) the Digital Content, or any portion thereof, onto any physical medium, memory or device, including CDs, DVDs, personal computers, external disc drives and other hardware, or any other medium now known or hereinafter devised; (ii) decompile, copy, reproduce, reverse engineer, disassemble or otherwise reduce the computer file in which the Digital Content is stored to a human-readable form; (iii) sell, lease, distribute, rent, broadcast, license, transfer, convey or assign any right to the Digital Content to any third party; (iv) remove any notices or labels on the Digital Content; (v) modify, disable, bypass, avoid, deactivate, impair or circumvent any encryption, rights signaling or copy protection or DRM used as part of the NOOK Store or the Digital Content, or attempt to do any of the foregoing; (vi) modify, enhance, edit, translate, adapt, perform, display or create derivative works or adaptations based on the Digital Content; (vii) reformat, optimize or customize the Digital Content for display, distribution or transmission via any platforms, protocols or delivery mechanisms other than as we specifically authorize; or (viii) use Digital Content for any commercial or illegal purpose. Notwithstanding the termination provisions at Section 5 below, you expressly agree that we may terminate your license to the Digital Content should you violate the foregoing restrictions or any other term of these NOOK Store Terms of Service.
(d) No Responsibility for Digital Content. The NOOK Store permits you to access to a wide variety of Digital Content, some of which may be inappropriate for, or offensive to, some viewers. We do not exercise any editorial control over the Digital Content. We provide only the NOOK Store, which is intended to allow you access to the Digital Content. Under no circumstances will we be liable for any loss, damage or harm caused by your access to or reliance on the Digital Content. You must determine whether the Digital Content you access, purchase, stream or download is appropriate, useful, accurate and complete. Your use of the Digital Content is solely at your own risk. Where our third party content providers have provided us with age ratings information we will make such information available to you. However, we cannot guarantee the accuracy of such age ratings information or of the descriptions or categories of Digital Content provided for your convenience.
5. TERMINATION OR SUSPENSION
(a) Termination by Us. We may, upon notice to you, issue a warning, temporarily suspend, indefinitely suspend or terminate your NOOK account or your access to all or any part of the NOOK Service, NOOK Store, NOOK Store Content and/or your NOOK Library for any reason in our sole discretion.
Where reasonableness is required by applicable local laws, we may, upon notice to you, issue a warning, temporarily suspend, indefinitely suspend or terminate your NOOK account or your access to all or any part of the NOOK Service, NOOK Store, NOOK Store Content and/or your NOOK Library for any reason in our sole discretion where we reasonably consider it necessary, including where we believe that you have violated any term or condition of these NOOK Store Terms of Service or any applicable local laws or regulations, or may cause us, our suppliers or licensors, or another user of the NOOK Store financial loss or legal liability.
In certain cases, in our sole discretion, we may provide you with a written notice (”Restriction Notice”) to inform you that (i) your right to use or access any part of the NOOK Store has been terminated including the right to use, access or create any NOOK account thereon; (ii) that we refuse to provide any services to you; and (iii) any subsequent orders placed by you will be subject to cancellation. Other conditions may apply and shall be set forth in the Restriction Notice.
(b) By You. You may terminate your use of the NOOK Store, NOOK Store Content, your NOOK Library or your NOOK account at any time by ceasing all use of NOOK Store, NOOK Store Content, your NOOK Library and your NOOK account.
(c) Effect of Termination or Suspension. Following termination (by us or by you) or suspension, you will not be permitted to use the NOOK Store, NOOK Store Content, or access your NOOK Library and/or NOOK account. In the case of termination by us of your NOOK account, you will remain liable for all amounts due under your NOOK account up to and including the date of termination.
Upon termination of these NOOK Store Terms of Service, the following Sections shall continue in force and you explicitly agree to be bound by the following Sections: Section 3(m) (Indemnity); Section 3(n) (Internet Connectivity Charges); Section 5 (Termination or Suspension); Section 6 (Disclaimers; Exclusions and Limitations); Section 7 (Dispute Resolution); Section 8 (General); and/or any other provisions of these NOOK Store Terms of Service that are expressly or by implication intended to come into or continue in force on or after termination of these NOOK Store Terms of Service.
6. DISCLAIMERS; EXCLUSIONS AND LIMITATIONS
(a) DISCLAIMER OF WARRANTIES AND CONDITIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAWS, WE AND OUR SUPPLIERS AND LICENSORS PROVIDE THE NOOK STORE, THE NOOK STORE CONTENT, ANY NOOK ACCOUNT AND ANY NOOK LIBRARY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE USE OF THE NOOK STORE, THE NOOK STORE CONTENT, ANY NOOK ACCOUNT AND ANY NOOK LIBRARY IS AT YOUR SOLE RISK.
WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAWS, NEITHER WE NOR OUR SUPPLIERS, AFFILIATES OR LICENSORS (AS APPLICABLE) MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, THAT THE NOOK STORE, THE NOOK STORE CONTENT, ANY NOOK ACCOUNT AND ANY NOOK LIBRARY OR THEIR USE WILL: (I) BE UNINTERRUPTED OR SECURE; (II) BE FREE OF DEFECTS, INACCURACIES OR ERRORS; OR (III) OTHERWISE MEET YOUR REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAWS, WE HEREBY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, LACK OF HIDDEN OR LATENT DEFECTS, SECURITY, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT AND NON-INFRINGEMENT OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.
(b) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAWS, WE AND OUR SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST REVENUE, LOST OR CORRUPTED DATA, OR DAMAGE TO REPUTATION OR GOODWILL OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR LOSSES ARISING FROM, RELATING TO OR CONNECTED WITH YOUR USE OF (OR INABILITY TO USE) THE NOOK STORE AND/OR NOOK STORE CONTENT, ANY NOOK ACCOUNT AND/OR ANY NOOK LIBRARY REGARDLESS OF THE CAUSE OF ACTION ON WHICH THE CLAIM IS BASED (INCLUDING NEGLIGENCE, TORT, CONTRACT, STRICT LIABILITY, PRODUCT DEFECT OR MISREPRESENTATION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LOCAL LAWS, WE WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE WHERE (i) THERE WAS NO BREACH OF STATUTORY DUTY OR FAILURE ON OUR PART (OR OUR EMPLOYEES OR AGENTS OR REPRESENTATIVES); (ii) IT IS NOT A REASONABLY FORESEEABLE CONSEQUENCE OF ANY SUCH BREACH; OR (iii) IT RELATES TO BUSINESS LOSS (INCLUDING LOST PROFITS, LOST REVENUE, LOST DATA, OR DAMAGE TO REPUTATION OR GOODWILL). TO THE EXTENT THAT APPLICABLE LOCAL LAW PERMITS, ANY SUCH LIABILITY FOR THE MATTERS SET OUT IN THIS PARAGRAPH SHALL BE LIMITED TO US$50 IN TOTAL (OR THE EQUIVALENT IN LOCAL CURRENCY, TO THE EXTENT THAT LOCAL CURRENCY NEEDS TO APPLY).
NOTWITHSTANDING THE ABOVE, CERTAIN LOCAL LAWS DO NOT ALLOW SUCH EXCLUSIONS OF OR LIMITATIONS OF LIABILITY, IN WHICH CASE NOTHING IN THESE NOOK STORE TERMS OF SERVICE SHALL EXCLUDE OR IN ANY WAY LIMIT OUR OR OUR SUPPLIERS' OR LICENSORS' LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR OR OUR SUPPLIERS' OR LICENSORS' NEGLIGENCE, OR THAT OF OUR SUPPLIERS' OR LICENSORS' EMPLOYEES, AGENTS, REPRESENTATIVES OR SUB-CONTRACTORS (AS APPLICABLE), GROSS NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION, WILLFUL DEFAULT OR ANY OTHER LIABILITY TO THE EXTENT THE SAME MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LOCAL LAW.
(d) NOOK STORE CONTENT DISCLAIMER. SOME OF THE NOOK STORE CONTENT MADE AVAILABLE TO YOU VIA THE NOOK STORE MAY BE INAPPROPRIATE FOR, OR OFFENSIVE TO, SOME USERS. WE DO NOT EXERCISE ANY EDITORIAL CONTROL OVER THE NOOK STORE CONTENT. WE PROVIDE ONLY THE NOOK SERVICE, WHICH IS INTENDED TO ALLOW YOU ACCESS TO THE NOOK STORE CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY LOCAL LAWS, UNDER NO CIRCUMSTANCE WILL WE BE HELD RESPONSIBLE FOR ANY LOSS, DAMAGE OR HARM CAUSED BY YOUR ACCESS TO, USE OF AND/OR RELIANCE ON THE NOOK STORE CONTENT. YOU MUST DETERMINE WHETHER THE NOOK STORE CONTENT ACCESSED THROUGH THE NOOK SERVICE IS APPROPRIATE, USEFUL, ACCURATE AND COMPLETE. TO THE MAXIMUM EXTENT PERMITTED BY LOCAL LAWS, YOUR ACCESS TO, USE OF AND/OR RELIANCE ON THE NOOK STORE CONTENT AND THE NOOK SERVICE IS SOLELY AT YOUR OWN RISK.
(e) IMPACT OF LOCAL LAWS. CERTAIN LOCAL LAWS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OF OR LIMITATION OF CERTAIN DAMAGES. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(f) ESSENTIAL PURPOSE. UNLESS LIMITED OR MODIFIED BY APPLICABLE LOCAL LAWS, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(g) FORCE MAJEURE. WE WILL NOT BE LIABLE TO YOU FOR FAILING TO PERFORM OUR OBLIGATIONS UNDER OR ARISING OUT OF THESE NOOK STORE TERMS OF SERVICE OR ANY APPLICABLE LOCAL LAWS OR REGULATIONS, OR LIABLE TO YOU FOR YOUR USE OF OR INABILITY TO USE THE NOOK STORE AND/OR NOOK STORE CONTENT, ANY NOOK ACCOUNT AND/OR ANY NOOK LIBRARY, BECAUSE OF ANY EVENT BEYOND OUR REASONABLE CONTROL, INCLUDING A LABOR DISTURBANCE, AN INTERNET OUTAGE OR INTERRUPTION OF SERVICE, A COMMUNICATIONS OUTAGE, FAILURE BY A SERVICE PROVIDER OR ANY OTHER THIRD PARTY TO PERFORM, ACTS OF WAR OR OTHER ACTION OF MILITARY FORCES, TERRORISM, RIOT, CIVIL COMMOTION, SABOTAGE, VANDALISM, ACCIDENT, FIRE, FLOOD, ACTS OF GOD, STRIKE, LOCK-OUT OR OTHER INDUSTRIAL DISPUTES (WHETHER OR NOT INVOLVING OUR EMPLOYEES OR THOSE OF OUR AFFILIATES, SUPPLIERS OR LICENSORS) OR LEGISLATIVE OR ADMINISTRATIVE INTERFERENCE (INCLUDING THOSE GIVING RISE TO CURRENCY CHANGES OR OTHERWISE AFFECTING OUR ABILITY TO OPERATE OR PROVIDE THE NOOK SERVICE, IN WHOLE OR IN PART).
7. DISPUTE RESOLUTION
Any claim or controversy at law or equity arising from, relating to, or connected with these NOOK Store Terms of Service, the NOOK Store, the NOOK Store Content, any NOOK account and/or any NOOK Library (each a “Claim”) will be resolved through binding arbitration conducted by telephone, online or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules (including the Supplementary Procedures for Consumer-Related Disputes, if applicable), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be New York or, where limited by applicable local law, the country of your domicile. Notwithstanding this Section 7, we may bring a Claim for injunctive or other equitable relief in any court of competent jurisdiction as necessary to enforce our intellectual property rights or those of our affiliates, suppliers, or licensors. Any Claim will be arbitrated or litigated, as the case may be, 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 OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THESE NOOK STORE TERMS OF SERVICE. 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 LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. Each of the parties acknowledges that this Section 7 is a material inducement for the other party to enter into these NOOK Store Terms of Service. You acknowledge and agree that, regardless of any statute or law to the contrary, any Claim or cause of action you may have arising out of, relating to, or in connection with these NOOK Store Terms of Service must be filed within one (1) calendar year after such Claim or cause of action arises, or forever be barred.
For purposes of any Claim that is not subject to the arbitration procedures in this Section 7, we both agree to the governing law and jurisdiction as set out in Section 8(i) below.
(a) Interpretation. Headings used in these NOOK Store Terms of Service are for reference only and shall not affect the meaning of any terms. “Including” means “including, without limitation”. The singular includes the plural and vice versa. These NOOK Store Terms of Service are binding upon each party and its successors and permitted assigns.
(b) Entire Agreement. Except for any additional terms that apply to your use of the NOOK Store (and any NOOK Store Content, any NOOK account and/or any NOOK Library, and any Digital Content) as we may notify or make available to you, this is the entire understanding between you and us regarding the use of the NOOK Store (and any NOOK Store Content, any NOOK account and/or any NOOK Library, and any Digital Content), and supersedes all prior and contemporaneous agreements and understandings between you and us regarding this subject matter.
(c) Severability. The provisions of these NOOK Store Terms of Service are intended to be severable. If for any reason any provision of these NOOK Store Terms of Service is held invalid or unenforceable in whole or in part in any applicable jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in that or any other jurisdiction.
(d) Our Affiliates, Suppliers and Licensors. Our affiliates, suppliers and licensors are intended third-party beneficiaries of these NOOK Store Terms of Service.
(e) No Waiver. Our failure or delay to exercise or enforce any right, remedy or provision of these NOOK Store Terms of Service or by law will not operate as a waiver of such right, remedy or provision.
(f) Notices. Where we need to send you notices under these NOOK Store Terms of Service or in connection with your use of the NOOK Store (and any NOOK Store Content, any NOOK account and/or any NOOK Library, and any Digital Content), you hereby consent to receive electronic notices from us, whether addressed to the email address associated with your NOOK account or another email address that you provide to us. To the maximum extent permitted by applicable local law, you acknowledge and agree that any communication via email or by postings on the NOOK Store satisfies any legal requirement that such communications be made in writing.
(g) Changes to NOOK Store and Amendments to these NOOK Store Terms of Service. To the maximum extent permitted by applicable local law, we may, in our sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the NOOK Store (and any NOOK Store Content, any NOOK account and/or any NOOK Library, and any Digital Content), temporarily or permanently, in whole or in part, at any time with or without notice to you, and we will not be liable for doing so. We reserve the right from time to time to modify these NOOK Store Terms of Service in our sole discretion. You should periodically review these NOOK Store Terms of Service so that you are aware of the terms and conditions that apply to your use of the NOOK Store (and any NOOK Store Content, any NOOK account and/or any NOOK Library, and any Digital Content). Your use of the NOOK Store (and any NOOK Store Content, any NOOK account and/or any NOOK Library, and any Digital Content) after any modification constitutes your acceptance of the most recent version of these NOOK Store Terms of Service as modified.
(h) Assignment. These NOOK Store Terms of Service and all of your rights and obligations under it are not assignable or transferable by you without our prior written consent. We may freely assign or transfer this Agreement or any of our rights and obligations under it.
(i) Governing Law; Jurisdiction
To the maximum extent permitted by local laws, the laws of the State of New York, without regard to principles of conflict of laws, will govern these NOOK Store Terms of Service and any dispute or claim of any sort that might arise between you and NOOK.
Subject to Section 7 (Dispute Resolution) above and applicable local laws, we both agree that the federal and state courts of New York County, New York shall have the exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these NOOK Store Terms of Service or their subject matter.
(j) Contact Information. For help with the NOOK Store (and any NOOK Store Content, any NOOK account and/or any NOOK Library) or if you have any questions regarding these NOOK Store Terms of Service, please contact customer service at www.nook.com/support.
Updated May 4, 2018