EFFECTIVE DATE: August 31, 2023
THESE TERMS AFFECT YOUR LEGAL RIGHTS, RESPONSIBILITIES AND OBLIGATIONS, GOVERN YOUR USE OF THE WEBSITES, ARE LEGALLY BINDING, LIMIT BNED’S LIABILITY TO YOU, AND REQUIRE YOU TO INDEMNIFY US AND TO SETTLE CERTAIN DISPUTES THROUGH INDIVIDUAL ARBITRATION. PLEASE NOTE THAT NOTHING IN THESE TERMS AFFECTS YOUR MANDATORY STATUTORY RIGHTS UNDER APPLICABLE LAW, TO THE EXTENT THAT SUCH RIGHTS APPLY TO YOU AND CANNOT BE LIMITED OR EXCLUDED.
If you do not wish to be bound by these Terms, and any applicable Additional Terms (defined below), you should not use or access the Websites, and, where applicable, you should uninstall any downloads and applications.
In some instances, you may be subject to different or additional terms and conditions, policies and guidelines (“Additional Terms”) that are applicable to certain Websites. Those Additional Terms will be posted on the applicable Website in connection with the relevant offering. In the event of a conflict between these Terms and the Additional Terms, the Additional Terms shall control.
These Terms and any Additional Terms are subject to change at any time, so we encourage you to periodically review all the terms and conditions posted on the Websites. If we make any material changes to these Terms or the applicable Additional Terms, we will post the updated version(s), along with an effective date, so as to give you notice by means of the Websites. In the event that you have these Terms cached on your browser, the Terms that apply to you are the most recent version of the Terms that appear on a non-cached browser.
If any changes to these Terms or Additional Terms are not acceptable to you, you must stop your access to and use of the Websites and, where applicable, uninstall any downloads and applications. Note, the singular form of any noun or pronoun in these Terms shall include the plural and vice versa unless the context in which such word is used requires otherwise.
TABLE OF CONTENTS
- OWNERSHIP; YOUR RIGHTS TO USE THE WEBSITES AND CONTENT
- CONTENT YOU SUBMIT; INTERACTIVE COMMUNITY RULES
- USING THE WEBSITES; USE RESTRICTIONS
- WIRELESS FEATURES; MESSAGES; LOCATION-BASED FEATURES
- NOTICE AND TAKE DOWN PROCEDURE FOR CLAIMS OF INFRINGEMENT
- PRODUCT SPECIFICATIONS; PRICING; TYPOGRAPHICAL ERRORS
- TERMINATION OR SUSPENSION
- DISCLAIMERS; EXCLUSIONS AND LIMITATIONS OF LIABILITY
- ARBITRATION AND DISPUTE TERMS
- GENERAL PROVISIONS
1. OWNERSHIP; YOUR RIGHTS TO USE THE WEBSITES.
a. Ownership. The Websites, including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property Rights”), are owned or controlled by BNED, our licensors, and certain other third parties. All right, title, and interest in and to the Websites and the Intellectual Property Rights are the property of BNED, our licensors or certain other third parties, and are protected by U.S. and international copyright, trademark, trade dress, patent or other intellectual property and unfair competition rights and laws to the fullest extent possible. BNED owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the content on the Websites.
b. Your Rights to Access and Use the Websites. Your right to access and use the Websites is subject to your strict compliance with these Terms and the applicable Additional Terms. Your right to access and use the Websites shall automatically terminate upon any violations of these Terms or the applicable Additional Terms. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advanced notice or liability. As your right to access and use the Websites is personal to you, you may neither assign nor transfer your right, and any attempt to do so is void. You may access and use the Websites for your personal, non-commercial, lawful use only (collectively, the following are the “Licensed Elements”):
- Display, view, and use the Websites on a computer, mobile or other internet-enabled, or permitted device (“Device”). You may electronically copy and print a hard copy from the Websites solely for personal, non-commercial purposes. Any other use of any content included on the Websites, including without limitation linking or framing, are strictly prohibited without BNED’s prior written consent.
- Subject to any applicable Additional Terms, you may use a Website’s “Send to Friend,” social media sharing or similar tool, if available, to: (i) initiate and send communication that includes our Website content to one or more of your contacts from whom you have explicit permission to contact; or (ii) to post our Website content to a third-party site or online service or your own site or online service; provided that you may not use the tool to violate applicable laws, rules or regulations, any third-party rights, or in any way that could reflect negatively on us;
- If a Website includes a “download” link next to a piece of content including, without limitation, an image, an icon, a wallpaper, a music track, a video, a trailer, an RSS feed, etc. you may only download a single copy of such content to a single Device;
- Download, install and use one copy of any software, including apps, that we make available on or through the Websites (“Software”) on your Device in machine-executable object code form only and make one additional copy for back-up purposes; provided, however, that you understand and agree that: (i) by allowing you to download the Software, BNED does not transfer title to the Software to you (i.e., you own the medium on which the Software is recorded, but the Software’s owner (which may be BNED and/or its third-party Software licensor) will retain full and complete title to such Software); (ii) you may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software, except as expressly authorized in these Terms or applicable Additional Terms, without the prior written consent of BNED; (iii) you may not assign, rent, lease, or lend the Software to any person or entity, and any attempt by you to sublicense, transfer, or assign the Software will be void and of no effect; and (iv) you may not decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law;
- If made available to you, and you choose to obtain a registered personal account, or a related username and password, on a Website or interact with a Website in connection therewith;
- Link to a Website from another site or online service; provided, that: (i) the links only incorporate text, and do not use any BNED names, logos, or images; (ii) the links and the content on your site or online service do not suggest any affiliation with BNED or cause any other confusion; and (iii) the links and the content on your website do not portray BNED, its personnel, the Websites, or any other product or service in a negative, false, misleading, derogatory, or otherwise offensive manner, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, abusive, or that violate any rights of any third-party or are otherwise objectionable to BNED. BNED reserves the right to suspend or prohibit linking to the Websites for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third-party;
- Stream the Website content using any of the widgets and/or other digital streaming internet video players, if any, provided on the Websites, subject to any applicable Additional Terms; and
- Use any other functionality expressly provided by BNED on or through the Websites for use by users, including without limitation functionality to create or post User-Generated Content (as defined below), subject to these Terms and any applicable Additional Terms.
c. Eligibility. Unless otherwise specifically noted in the features made available to you, the Websites and any products and services appearing or marketed on the Websites are intended for, directed towards the purchase of, and use by adults, i.e., those aged 18 years old or above, or by individuals 16 years old or older with the consent of an adult. Individuals over the age of 16 and under the age of 18 may only use the Websites with the supervision of a parent or legal guardian and should review these Terms with that parent or legal guardian to ensure that you all understand them. Further, you represent and warrant: (i) you are not a citizen of or located in a country or region that is targeted for comprehensive trade sanctions by the U.S. government; (ii) you will not access or use the Websites from such a country or region; and (iii) you are not designated on the U.S. Treasury’s Specially Designated Nationals or Blocked Persons List or otherwise a person who is barred from doing business with U.S. persons or from receiving exports of goods or services from the U.S.
d. Rights of Others. In using the Websites, you must respect the intellectual property and the rights of BNED and others. Your unauthorized use of the Websites may violate the rights of others and applicable laws, rules and regulations, and could result in your civil and criminal liability. If you believe your work has been infringed via the Websites, please see Section 5 below.
e. Reservation of all Rights Not Granted to You as to the Websites. These Terms and any applicable Additional Terms, include intentionally narrow, limited grants of rights to use and access the Websites. No right or license to you may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY BNED AND ITS LICENSORS AND OTHER THIRD PARTIES. Any unauthorized use of any Website, Software, Licensed Element, or any other BNED product or service where these Terms are posted is prohibited for any purpose.
g. Terms applicable for Apple IOS.
- To the extent that you are accessing the Websites through an Apple mobile application, you acknowledge that these Terms are entered into between you and BNED and that Apple is not a party to these Terms other than as third-party beneficiary, as set forth below.
- You acknowledge that BNED, and not Apple, is responsible for providing the Websites as defined in these Terms.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Websites.
- To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Websites.
- Notwithstanding anything to the contrary herein, and subject to these Terms, you acknowledge that, solely as between Apple and BNED, BNED and not Apple is responsible for addressing any claims you may have relating to the Websites, or your access or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim the Websites fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection law or similar legislation.
- Further, you agree that if the Websites, or your access to and use of the Websites, infringes on a third-party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
- You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.
2. CONTENT YOU SUBMIT; INTERACTIVE COMMUNITY RULES.
- User-Generated Content. BNED may now, or in the future, offer users of the Websites the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Websites, or on or in response to our pages or posts on any third-party platform or in connection with any of our promotions by any media or manner, or otherwise submit to us, e.g., on our Facebook or other social media pages, in response to our tweets, through a sweepstakes or contest, or by otherwise sending it to us (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Licensed Elements included therein, “User-Generated Content” or “UGC”). Depending on the features enabled, you may be able to submit UGC through your profile, forums, blogs, message boards, social networking environments, content creation and posting tools, text subscription programs, gameplay, social communities, e.g., including the Interactive Community (defined below), if applicable, “contact us” tools, email, and other communications functionality. Except to the extent of the rights and license you grant in these Terms and, subject to any applicable Additional Terms, you retain whatever legally cognizable right, title, and interest you have in your UGC.
- In your communications with BNED, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to our Websites, products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you submit are deemed UGC and licensed to us as set forth below. In addition, BNED retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. BNED’s receipt of your Unsolicited Ideas and Materials is not an admission by BNED of their novelty, priority, or originality, and it does not impair BNED ’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
- Each time you submit any UGC, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside, or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any Minor who is depicted in or contributed to any UGC you submit, and that, as to that UGC: (i) you are the sole author and owner of the intellectual property and other rights to the UGC, or you have a lawful right to submit the UGC and grant BNED the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any BNED obligation to obtain consent of any third-party and without creating any obligation or liability of BNED; (ii) the UGC is accurate; (iii) the UGC does not and, as to BNED’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or the rights of any third-party; and (iv) the UGC will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.
- Interactive Community Rules. Some aspects of the Websites may now or in the future enable you to communicate with other users and post information, e.g., your own UGC, via an interactive community (the “Interactive Community”). You are using an Interactive Community service, e.g., if you view or participate in the Interactive Community, post a review, create a list, create a profile, submit any UGC, or otherwise participate in any interactive feature. Your use of the Interactive Community is subject to these Terms and any applicable Additional Terms, as well as the following:
- You may use the Interactive Community only for lawful purposes and in accordance with these Terms. If you are using our Interactive Community, and post, publish or communicate any UGC on or through the Interactive Community, carefully choose the information you post and provide to other users.
- You may not post on or transmit through the Websites any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including any material that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, rule or regulation of the laws applicable to you or applicable in the country in which the material is posted. We reserve the right, in our sole discretion, to reject, refuse to post or remove any posting or other UGC (including private messages) from you, or to deny, restrict, suspend or terminate access to all or any part of the Interactive Community at any time, for any or no reason, without prior notice or explanation and without liability.
- You may not post UGC that: (i) involves the transmission of “junk mail”, “chain letters” or unsolicited mass mailing, instant messaging, “spimming” or “spamming”; (ii) contains restricted or password-only access pages or hidden pages or images (those not linked to or from another accessible page); (iii) solicits passwords or personal identifying information for commercial or unlawful purposes from other users; (iv) involves commercial activities and/or sales such as contests, sweepstakes, barter, advertising or pyramid schemes; (v) includes a photograph or video of another person that you have posted without that person’s consent; (vi) circumvents or modifies, or attempts to circumvent or modify, or encourages or assists any other person in circumventing or modifying any security technology or software that is part of the Websites; (vii) involves the use of viruses, bots, worms or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise may permit the unauthorized use of or access to a computer or a computer network; (viii) covers or obscures the banner advertisements on your personal profile page; (ix) involves any automated use of the Websites, such as using scripts to add friends or send comments or messages; (x) interferes with, disrupts or creates an undue burden on the Websites or the networks or services connected to the Interactive Community; (xi) impersonates or attempts to impersonate another Interactive Community user, person or entity; (xii) uses the account, username or password of another Interactive Community user at any time or discloses your password to any third party or permits any third party to access your account; (xiii) sells or otherwise transfers your profile; or (xiv) uses any information obtained from the Websites or Interactive Community in order to attempt to or actually harass, abuse or harm another person or entity.
- We reserve the right, in our sole discretion, to remove your profile and deny, restrict, suspend or terminate your use of and access to all or any part of the Interactive Community for any reason.
- If you become aware of misuse of the Interactive Community, including any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, material that encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any applicable law, rule or regulation, please contact us. Notwithstanding the foregoing and to the maximum extent permitted by applicable law, we assume no responsibility for ongoing monitoring of the Interactive Community or for removal or editing of any UGC, even after receiving notice. We assume no liability for any action or inaction with respect to conduct, communication or UGC within the Interactive Community. You are solely responsible for all activities in which you engage within the Interactive Community. The Interactive Community is not designed for use Minors. No children under the age of 16 are permitted to register or create user profiles, and individuals aged between 16 and 18 must participate in the Interactive Community only under the supervision of a parent or legal guardian. Numerous informational and commercial resources, e.g., computer hardware, software or filtering services, are available to help parents keep their children safe online. If you are interested in learning more about these resources, information is available at many sites providing information on such protections. We do not specifically sponsor or endorse any of these sites or their services.
- Interactive Community users may upload to or otherwise submit to us for distribution on the Interactive Community and the Websites: (i) UGC that is not subject to any copyright or other proprietary rights restrictions; or (ii) UGC that the owner or licensor of any relevant rights has given express authorization for us to distribute over the Internet. You may not upload, embed, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Any copyrighted or other proprietary UGC distributed with the consent of a copyright owner should contain a phrase such as “Copyright, owned by [name of owner]; used by permission.” We are entitled to presume that all UGC conforms to the foregoing requirements. The unauthorized submission of copyrighted or other proprietary UGC is illegal and could subject the user to personal liability for damages in a civil suit as well as criminal prosecution. Interactive Community users assume all liability for any damage resulting from their infringement of copyright or proprietary rights, or for any other harm arising from an unauthorized submission or submission of UGC. We assume no liability for any damage resulting from any infringement of copyright or proprietary rights, or from any other harm arising from any UGC.
3. USING THE WEBSITES; USE RESTRICTIONS.
a. Creating an Account. Accounts may only be set up you, and if not you, by an authorized representative of the individual that is the subject of the account and who is of the age of majority. We do not review accounts for authenticity and are not responsible for any unauthorized accounts that may appear on the Websites. For any dispute as to account creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate, without notice. If you register with us or create an account, you are solely responsible and liable for the security and confidentiality of your access credentials and for restricting access to your Device and for all activity under your account. Usernames and passwords must be personal and unique, not violate the rights of any person or entity, and not be offensive. We may reject the use of any password, username, or email address for any reason in our sole discretion. You are solely responsible for your registration information and for updating and maintaining it. You will immediately notify us of any unauthorized use of your account, password, or username, or any other suspected or actual breach of security, but will remain responsible for any unauthorized use thereafter. You will not sell, transfer, or assign your account or any account rights.
b. Subscriptions; Rentals; Purchases; Taxes. In order to access certain features of the Websites, you may be required to make a purchase. Moreover, some aspects of the Websites may allow you to place orders for or rent products.
- Any deal terms presented to you at the time of rental, purchase, or other transaction you conduct on or initiate on the Websites (“Transaction”) shall be considered Additional Terms. You agree to pay BNED all charges at the prices presented to you or your agent(s). You must provide, and you authorize BNED to charge, your chosen payment provider (your “Payment Method”) when you make a purchase on our Websites. You agree to make payment using only a permitted Payment Method, and will only provide us with information about Payment Methods that you are authorized to use. We allow you to save and manage your information about your Payment Method, including the full credit card number, account number, and expiration dates, for future purchases or transactions on our site. You may update your default Payment Method at any time. If we are unable to charge one payment card, we may charge another valid credit card that you have entered for use on our site. You are responsible for maintaining the accuracy of the information that we have on file, and you consent to BNED updating such stored information from time to time based on information provided by you, your bank or payment services processors, among others. If you initiate a chargeback dispute for any payment or transaction made on our Websites, BNED reserves the right to terminate the provision of Websites or delivery of BNED products and services to you pending resolution of the chargeback dispute with the credit card issuer.
- Some Transactions may be subject to taxes in certain states. Depending on your state and the nature of the product or services you receive from us, this may be a rental tax, sales tax or use tax. Tax rates are different from state to state. You are responsible for paying all such taxes.
c. Websites Use Restrictions. You agree that you will not: (i) use the Websites for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Intellectual Property Rights; (iii) engage in any activities through or in connection with the Websites that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party, or are otherwise objectionable to BNED; (iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Websites by any means whatsoever or modify any Websites source or object code or any Software or other products, services, or processes accessible through any portion of the Websites; (v) engage in any activity that interferes with a user’s access to the Websites or the proper operation of the Websites, or otherwise causes harm to the Websites, BNED, or other users of the Websites; (vi) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Websites or any feature that restricts or enforces limitations on use of or access to the Websites, services, content, Licensed Elements, or other BNED products or services; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Websites, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Websites, other computer systems or networks connected to the Websites, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
d. Content Use Restrictions. You also agree that, in using the Websites, you will: (i) not monitor, gather, copy, or distribute the Website content, except as may be a result of standard search engine activity or use of a standard browser, on the Websites by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) not frame or utilize framing techniques to enclose any Website content, not frame or utilize framing techniques to enclose any the Website, including without limitation any images, text, or page layout; (iii) keep intact all trademark, copyright, any other intellectual property, and all Intellectual Property Rights and other notices contained in the Website content; (iv) not use the Website content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) not make any modifications to the Website content, other than to the extent of your specifically permitted use of the Licensed Elements, as applicable; (vi) not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third-party or on any Third-Party Websites, or otherwise use or exploit the Website content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms, or with the prior written consent of an officer of BNED or, in the case of the Website content from a licensor or owner of the content; and (vii) not insert any code or product to manipulate the content in any way that adversely affects any user experience or the Websites.
e. Availability of Websites. BNED, in its sole discretion and without advance notice or liability, may immediately suspend or terminate the availability of the Websites and without limitation any elements and features of them, in whole or in part, for any reason.
f. Internet Connectivity Charges. Internet connectivity is required to access the Websites. 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. We are in no way responsible for the fees charged by or the policies of internet service providers or others with whom you contract for such internet connectivity.
4. WIRELESS FEATURES; MESSAGES; LOCATION-BASED FEATURES.
a. Wireless Features. The Websites may offer certain features and services via your wireless Device. Features and services may include the ability to access the Websites’ features, upload content to the Websites, receive messages from the Websites, and download applications to your wireless Device (collectively, “Wireless Features”). You agree to receive communications we may send through Wireless Features for which you are registered. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Websites for Wireless Features, then you agree to notify BNED of any changes to your wireless contact information (including phone number) and update your accounts on the Websites to reflect the changes. If the Websites includes push notifications or other mobile communication capability, you hereby approve of our delivery of electronic communications directly to your mobile Device. These notifications, including badge, alert or pop-up messages, may be delivered to your Device even when the Websites is running in the background. You may have the ability, and it is your responsibility, to adjust the notifications you do, or do not, receive via your Device through your Device and/or app settings. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. Contact your carrier with questions regarding these issues.
b. Text and Email Messages.
- Certain Websites provided by BNED may offer text messaging programs. You may be given opportunities to subscribe to various text messaging programs and by doing so, you consent to receive ongoing text alerts (including by auto-dialers) from us related to our various businesses and affiliates, which may include co-promotions with or about other parties, except that if the scope of your consent for a particular text messaging program is limited, the text messaging program content will be so limited. Such consent is not required to purchase any product or services from the text messaging program itself. Subsequent or different text messaging programs will be unaffected by a previous opt-out. Notwithstanding anything else in these Terms, you consent to receive a text confirming any opt-out from a text messaging program in addition to all – non-commercial administrative or transactional messages.
- By participating in any text messaging program offered through the Websites, you are agreeing to receive recurring text messages for marketing purposes sent to the mobile number you provided when you opted into such Websites’ text messaging program. Message frequency varies. Except for purchase of premium text programs to which you subscribe for a fee (to the extent such programs are offered), your consent to receive text messages is not a condition of any purchase, and no purchase is necessary. If you wish to opt-out of receiving further text messages from a Service, please reply STOP to the any text message you received from the Service to unsubscribe. Standard carrier message and data rates may apply, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Carriers are not liable for delayed or undelivered messages. Contact your carrier for details.
- Alerts auto-renew unless otherwise specified when you consented. You understand that we will send mobile text messages using automated technology. If you subscribe to text messages, you represent that you are 18 years of age or older or have obtained parental consent. If we are charging a premium rate for text messages, that will be explained in the applicable subscription consent. Not all phones and/or carriers are supported. We are the sponsor of our text messages and may be contacted regarding them as set forth in the text messaging program.
- Email Messages. You may cancel or modify our email marketing communications you receive from us by following the instructions contained within our promotional emails. This will not affect subsequent subscriptions, and if your opt-out is limited to certain types of emails, the opt-out will be so limited. Please note that we reserve the right to send you certain communications relating to your account or use of our Websites, such as administrative and service announcements, and these transactional account messages may be unaffected if you choose to opt-out from receiving our marketing communications.
5. NOTICE AND TAKE DOWN PROCEDURE FOR CLAIMS OF INFRINGEMENT.
a. DMCA Notification. If you are a copyright owner who would like to send us a notice pursuant to the Digital Millennium Copyright Act (“DMCA”) to identify content or material posted on the Websites that is infringing and that you would like removed from our Websites, or if you are a user whose work has been removed in response to such a notice of infringement and would like to file a DMCA counter-notice, you may submit such notice to us by following the instructions in this Section 5.
b. DMCA Requirements. We are committed to complying with U.S. copyright and related intellectual property laws. Our policy is to respond to notices of alleged infringement that comply with the DMCA. It is our policy to remove and discontinue Website access and use to repeat offenders. If you believe your copyrighted work has been copied and is accessible on the Websites in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in accordance with the requirements of the DMCA:
- The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf.
- A description of the copyrighted work that you claim has been infringed and a description of the infringing activity.
- Identification of the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the website where it is posted or the name of the book in which it has been published).
- Identification of the URL or other specific location on the Websites where the material you claim is infringing is located, providing enough information to allow us to locate the material.
- Your name, address, telephone number, and email address so that we may contact you.
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- Our agent for notice of claims of copyright infringement on the Websites can be reached as follows:
Barnes & Noble Education, Inc.
120 Mountainview Blvd.
Basking Ridge, NJ 07920
Attn: Legal Department – DMCA NoticeBy email: BNEDDMCA@bned.comThe email address above is only for reporting copyright infringement and may not be used for any other purpose.
- If you believe an individual is a repeat infringer, please follow the instructions above to contact our DMCA agent and provide information sufficient for us to verify the individual is a repeat infringer.
- It is often difficult to determine if your copyright has been infringed. BNED may elect to not respond to DMCA notices that do not substantially comply with all of the foregoing requirements, and may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
c. DMCA Counter-Notification. If access on the Websites to a work that you submitted to BNED is disabled or the work is removed as a result of a DMCA copyright infringement notice, and you believe in good faith that the allegedly infringing works have been removed or blocked by mistake or misidentification, then you may send a “Counter-Notification” to the email address listed above. Your DMCA Counter-Notification should contain the following information:
- a legend or subject line that says: “DMCA Counter-Notification;”
- a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled, including the full URL of the page(s) on the Websites from which the material was removed or access to it disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- your full name, address, telephone number, email address, and the username of your account with us, if any;
- a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of New York), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
- your electronic or physical signature.
d. Receipt of DMCA Counter-Notification. If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the address above that the party who sent us the DMCA copyright infringement notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Websites. Upon our receipt of a Counter-Notification that satisfies the requirements of DMCA, we will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA’s procedures regarding counter notification. All Counter-Notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act. In all events, you expressly agree that neither BNED nor any of its affiliates or their employees, officers, directors, or agents will be a party to any disputes or lawsuits regarding alleged copyright infringement. Please note you may be held liable for money damages if you materially misrepresent whether our Intellectual Property Rights infringe your copyrights.
6. PRODUCT SPECIFICATIONS; PRICING; TYPOGRAPHICAL ERRORS.
We strive to accurately describe our products or services offered on the Websites; however, we do not warrant that such specifications, pricing, or other content on the Websites is complete, accurate, reliable, current, or error-free. As permitted by applicable law, BNED shall have the right to refuse or cancel any orders in its sole discretion. Your orders are offers to purchase subject to our acceptance, which we may reject or cancel subject to refund. If we charged your credit or other account prior to rejection or cancellation, we would reissue credit to your account. Additional Terms may apply. If a product you purchased or accepted from BNED is not as described, as permitted by applicable law, your sole remedy is to return it, to cancel the purchase and receive credit for the purchase price.
7. TERMINATION OR SUSPENSION.
a. Termination by Us. We may, upon notice to you, issue a warning, temporarily suspend, indefinitely suspend, or terminate your account or your access to all or any part of the Websites for any reason in our sole discretion. In certain cases, in our sole discretion, we may provide you with a written notice (a “Restriction Notice”) to inform you: (i) your right to use or access any part of the Websites has been terminated, including the right to use, access or create any account thereon; (ii) we refuse to provide any Websites 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. For You to Terminate. You may terminate these Terms by ceasing all use of the Websites and deleting all Licensed Elements from your Device.
c. Effect of Termination or Suspension. Following termination (by us or by you) or suspension, you will not be permitted to use the Websites. Any suspension or termination will not affect your obligations to BNED under these Terms or any applicable Additional Terms. Upon suspension or termination of your access to the Websites, or upon notice from BNED, all rights granted to you under these Terms, or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Websites. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to BNED in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
8. DISCLAIMERS; EXCLUSIONS AND LIMITATIONS OF LIABILITY.
a. DISCLAIMER OF WARRANTIES AND CONDITIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BNED AND ITS SUBSIDIARIES, AFFILIATES, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, “BNED PARTIES”) PROVIDE THE WEBSITES, SOFTWARE, LICENSED ELEMENTS, OR OTHER BNED PRODUCTS OR SERVICES ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE USE OF THE WEBSITES IS AT YOUR SOLE RISK. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BNED PARTIES (AS APPLICABLE) DO NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, THAT THE WEBSITES, CONTENT, LICENSED ELEMENTS, UGC OR OTHER BNED PRODUCTS OR SERVICES 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 LAW, BNED PARTIES 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. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT: (X) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY BNED PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY BNED PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (Y) BNED PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY BNED PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (Z) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST BNED PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
b. EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BNED PARTIES 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 ACCESS TO OR USE OF (OR INABILITY TO USE) THE WEBSITES, CONTENT, LICENSED ELEMENTS, UGC OR OTHER BNED PRODUCTS OR SERVICES 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 OR LOSSES.
c. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY BNED PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, in connection with, or otherwise directly or indirectly related to the Websites, Software. Licensed Elements, or other BNED products or services, including without limitation:
- your access and use of your inability to access and use the Websites, or as to the performance of the Websites;
- any action taken in connection with an investigation by BNED Parties or law enforcement authorities regarding your access to or use of the Websites;
- any action taken in connection with copyright or other intellectual property owners or other rights owners;
- any errors or omissions in the Websites’ technical operation or security or any compromise or loss of your UGC or other data or information; or
- any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction. The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the BNED Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Websites).
EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE BNED PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITES AND YOUR RIGHTS UNDER THESE Terms, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID BNED OVER THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM(S) OR ONE HUNDRED DOLLARS (USD $100), WHICHEVER IS GREATER; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A COURT OR TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY BNED OR A MANUFACTURER OF A PHYSICAL PRODUCT.
The liability limitations in this Section 8 are not intended to limit any express warranties from applicable product manufacturers of physical products sold via the Websites, or any express warranties by BNED that are included in applicable Additional Terms.
d. APPLICABLE JURISDICTIONAL LIMITS. CERTAIN JURISDICTIONS, SUCH AS NEW JERSEY, 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.
e. ESSENTIAL PURPOSE. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. ARBITRATION AND DISPUTE TERMS.
a. Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Websites, the Software, the Licensed Elements, your UGC, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in New York, New York. Each party submits to personal jurisdiction and venue in New York, New York for any and all purposes.
b. Pre-Arbitration Notification. BNED and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that BNED need not do so in circumstances where its claims of Intellectual Property Rights are concerned (“IP Disputes,” with all other disputes referred to as “General Disputes”). The party making a claim, whether you or BNED, shall send a letter to the other side briefly summarizing the claim and the request for relief. If BNED is making a claim, the letter shall be sent, via email, to the email address listed in your BNED account, as applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section 9(b). If you are making a claim, the letter shall be sent to: Barnes & Noble Education, 120 Mountain View Blvd., Basking Ridge, NJ 07920, Attn: Legal Department. If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section 9. Either you or BNED, however, may seek provisional remedies (such as preliminary injunctive relief) subject to Section 9(d) before the expiration of this sixty (60)-day period.
Arbitration of Claims. Unless you give us notice of opt-out within five (5) business days of your first use of the Websites, addressed to: Barnes & Noble Education, 120 Mountain View Blvd., Basking Ridge, NJ 07920, Attn: Legal Department, all actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section 9, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in New York, New York, before a single arbitrator. If the matter in dispute is between BNED and a consumer, the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. We may have the right to pay the JAMS fees if required for arbitration to be enforceable. The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in New York, New York or, if sought by BNED, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section 9; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the Supreme Court, Civil Branch, New York County or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award. To the extent there are any challenges to the arbitrability of a claim, the arbitrator shall determine any and all such challenges. The arbitration will be governed by JAMS’s Streamlined Arbitration Rules & Procedures (the “JAMS Rules”), as modified by these Arbitration Procedures. If there is any inconsistency between the JAMS Rules and these Arbitration Procedures, the Arbitration Procedures will control. However, if the arbitrator determines that strict application of the Arbitration Procedures would not result in a fundamentally fair arbitration, the arbitrator may make any order necessary to provide a fundamentally fair arbitration that is consistent with the JAMS Rules.
To commence an arbitration against BNED, you must complete a short form, submit it to JAMS, and send a copy to Barnes & Noble Education, Inc. Attn: Legal Department, 120 Mountain View Blvd., Basking Ridge, NJ 07920. To learn more about commencing an arbitration and to obtain a form to institute arbitration, please visit the JAMS website and download the form available at: https://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. You may represent yourself in the arbitration or have a lawyer (or some other representative) act on your behalf. Upon receipt of an arbitration claim, BNED may assert any counterclaims it may have against the complaining party.
You are responsible for paying your portion of the fees set forth in the JAMS fee schedule. BNED will pay all remaining fees. If your claim against BNED is for less than $1,000, and you succeed on the merits, we will pay all fees. If you believe you cannot afford the JAMS fee, you may apply to JAMS for a fee waiver.
c. Limitation on Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF THE WEBSITES, CONTENT, UGC, PRODUCT, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY BNED PARTY (INCLUDING YOUR LICENSED UGC) OR A LICENSOR OF ANY BNED PARTY.
d. Governing Law. These Terms and any applicable Additional Terms, General Disputes and IP Disputes, and any other claim brought by you against the BNED Parties or by BNED against you pursuant to this Section 9, or otherwise related to the Websites, Software, Licensed Elements, other BNED products or services, Intellectual Property Rights or UGC, will be governed by, construed, and resolved in accordance with, the laws of the State of New York, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction. This Section 9 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a self-executing basis. You and BNED agree that we intend that this Section 9 satisfies the “writing” requirement of the Federal Arbitration Act. Section 9 can only be amended by mutual agreement. Either party may seek enforcement of this Section 9 in any court of competent jurisdiction.
e. Class Action Waiver. As permitted by applicable law, both you and BNED waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 9 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.
f. Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
g. Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claim for General Dispute (but not IP Disputes) in small claims court, subject to Section 9(f).
h. Survival. The provisions of this Section 9 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 9 shall remain in full force and effect notwithstanding any termination of your use of the Websites or these Terms.
10. GENERAL PROVISIONS.
a. BNED’s Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants BNED a right of consent or approval or permits BNED to exercise a right in its “sole discretion,” BNED may exercise that right in its sole and absolute discretion. No BNED consent or approval may be deemed to have been granted by BNED without being in writing and signed by an officer of BNED.
c. Operation of Websites; Availability of Websites; International Issues. BNED controls and operates the Websites from the U.S., and makes no representation that the Website is appropriate or available for use beyond the U.S. If you use the Websites from other locations, you are doing so on your own initiative and responsible for compliance with applicable laws regarding your online conduct and acceptable content, if and to the extent laws apply.
d. Export Controls. You are responsible for complying with all applicable trade regulations and laws, both foreign and domestic. Except as authorized by U.S. law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
e. Interpretation. Headings used in these Terms 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 Terms, and the applicable Additional Terms, are binding upon each party and its successors and permitted assigns.
f. Entire Agreement. Except for any Additional Terms that apply to your use of the Websites as we may notify or make available to you, this is the entire understanding between you and us regarding the use of the Websites, and supersedes all prior and contemporaneous agreements and understandings between you and us regarding this subject matter.
g. Severability. The provisions of these Terms are intended to be severable. If for any reason any provision of these Terms 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. Our affiliates, suppliers, licensors and other BNED Parties are intended third-party beneficiaries of these Terms.
h. No Waiver. Our failure or delay to exercise or enforce any right, remedy or provision of these Terms or by law will not operate as a waiver of such or any other right, remedy or provision.
i. Notices. Where we need to send you notices under these Terms or in connection with your use of the Websites, you hereby consent to receive electronic notices from us, whether addressed to the email address associated with your account or another email address that you provide to us. To the maximum extent permitted by applicable law, you acknowledge and agree that any communication via email or by postings on the Websites satisfies any legal requirement that such communications be made in writing. All legal notices to us must be sent to: Barnes & Noble Education, Inc., 120 Mountainview Blvd., Basking Ridge, NJ 07920, Attention: Legal Department.
j. Force Majeure. We will not be liable to you for failing to perform our obligations under or arising out of these Terms, or the applicable Additional Terms, or any applicable laws or regulations 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, pandemic, 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, whether in whole or in part).
k. Changes to Websites and Amendments to these Terms. To the maximum extent permitted by applicable law, we may, in our sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the Websites, 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 Terms in our sole discretion. Your use of the Websites after any modification we make constitutes your acceptance of the most recent version of these Terms as modified.
l. Assignment. These Terms 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, transfer, or delegate these Terms or any of our rights and obligations under it.
Contact Information. For help with the Websites or if you have any questions regarding the Websites or these Terms, please contact support at CaliforniaPrivacy@BNED.com. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive these Terms or the applicable Additional Terms.