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Digital Content Terms of Sale

Last Updated: March 3, 2022

This is a legally binding agreement made by and between you and Barnes & Noble Booksellers, Inc., a Delaware corporation (together with its parents, subsidiaries and affiliates (including Nook Digital LLC), “Barnes & Noble”, “we”, “our” or “us”). Please read these Digital Content Terms of Sale, the Barnes & Noble Privacy Policy, the barnesandnoble.com Terms and Conditions of Use, the terms and conditions posted through any Barnes & Noble Application, or any additional terms and conditions, policies and guidelines posted on any other website, application, or services provided by Barnes & Noble (collectively, the “Barnes & Noble Services”) before purchasing any Digital Content or using any aspect of the Barnes & Noble Services. Such terms, conditions and polices collectively with these Digital Content Terms of Sale shall be referred to as the “Agreement”. By visiting and/or using the Barnes & Noble Services, accessing the Digital Content, creating a Barnes & Noble account, using any Barnes & Noble Application, or using any aspect of the Barnes & Noble Services, you agree to be bound by these Digital Content Terms of Sale. If you do not agree to be bound by these Digital Content Terms of Sale, you may not use the Barnes & Noble Services or any Digital Content.

These Digital Content Terms of Sale require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please see Section 10 for details, including instructions to follow in order to opt out of binding arbitration and the class action waiver.

Unless otherwise explicitly permitted herein, you may not use any Digital Content hereunder unless you are at least 13 years of age. If you are at least 13 years of age but under 18 years of age or the age of majority in your jurisdiction, whichever is greater, you represent and warrant that you have obtained the consent of your parent or legal guardian and that you have reviewed the terms of these Digital Content Terms of Sale with your parent or legal guardian before accessing or using any Digital Content to ensure that you understand these Digital Content Terms of Sale. Otherwise, you represent and warrant that you are: (i) at least 18 years of age or the age of majority in your jurisdiction, whichever is greater; and (ii) of legal age to form a binding contract. In all cases, you represent and warrant that you are not a person barred from accessing or using Digital Content under the laws of your country of residence or any other applicable jurisdiction.

1. DEFINITIONS

The following definitions are used throughout these Digital Content Terms of Sale:

“Barnes & Noble Application(s)” means the Barnes & Noble software applications for mobile devices, computers or other electronic devices (including any updates or upgrades to the Applications) that we make available to you, including Barnes & Noble Audiobooks and NOOK software applications.

“Barnes & Noble Audiobooks” means the Barnes & Noble audiobooks subscription service offered through the Barnes & Noble Services.

“Barnes & Noble Content” means the content offered for sale through the Barnes & Noble Services (including all Digital Content).

“Barnes & Noble Services” means the barnesandnoble.com website, the NOOK Services, any Barnes & Noble Application, and any other website, application or Supported Devices where Barnes & Noble sells digital content.

“Digital Content” means digital or electronic content or media which is available to you through the Barnes & Noble Services and which may be viewed on any Barnes & Noble website, Barnes & Noble Application, or Supported Device, including eBooks, audiobooks, eTextbooks, digital magazines, digital newspapers, digital journals and other periodicals, blogs, software applications (including applications developed by Barnes & Noble or third parties) and other digital content as determined by us from time to time.

“Digital 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 Barnes & Noble Services, your Supported Device and the Barnes & Noble Applications.

“NOOK Services” means the digital books, eReaders, tablets, eTextbooks, audiobooks and other Nook products and services made available by Barnes & Noble through the NOOK brand.

“Supported Devices” means a mobile, computer or other supported electronic device on which you are authorized to operate a Barnes & Noble Application or access Digital Content.

“Third-Party Content Providers” means our third-party providers, licensors or suppliers of Digital Content provided through the Barnes & Noble Services.

2. TERMS RELATING TO YOUR USE OF THE BARNES & NOBLE SERVICES

(a) Barnes & Noble Account. You may visit and browse the Barnes & Noble Services without registering or opening a Barnes & Noble account with us. If the Barnes & Noble Services require you to open an account, you must complete the registration process by providing us with current, complete and accurate information required by the applicable registration form. You may also be required to accept separate terms of use as a condition of opening the account. Your use of the account to access the Barnes & Noble Services and Digital Content you have acquired from the Barnes & Noble Services is subject to all of the terms governing your Barnes & Noble account. For more information about your Barnes & Noble account, please see the Barnes & Noble Terms and Conditions of Use. You are responsible for keeping your account information and password confidential and are responsible for all activity that occurs under your account. You may also be able to create a Barnes & Noble account by logging in through a third-party service. By connecting to the Barnes & Noble Services with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.

(b) Privacy. We use certain information that we collect from you to operate and provide the Barnes & Noble Services. Please read our Privacy Policy as it describes the types of data we collect from you and your devices (“Data”) and how we use your Data. It is your responsibility to read the current Privacy Policy, so please check it periodically. By using the Barnes & Noble Services, you expressly consent to our collection, use and disclosure of your Data as described in our Privacy Policy. Please note that any information you provide to a third-party via the Barnes & Noble Services, for example via any services provided in the Barnes & Noble Services through a third-party link, will be subject to the privacy notice or similar terms of that third-party and not our Privacy Policy.

(c) Your Rights to Access/Use the Barnes & Noble Services. You may use the Barnes & Noble Services to browse the Digital Content and download or access Digital Content on Supported Devices solely for your personal, non-commercial use. Barnes & Noble Content is licensed, not sold, to you by us or our Third-Party Content Providers. We (and, where applicable, our Third-Party Content Providers) own all rights, title and interest in and to the Barnes & Noble Services (and all Digital Content) and all enhancements, upgrades, and modifications, customizations, and all intellectual property rights therein. All rights, title and interest in the Barnes & Noble Services and Digital Content not expressly granted to you in these Digital Content Terms of Sale are reserved. Without limiting the foregoing, no Barnes & Noble or NOOK trademark or trade dress may be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits us.

(d) Violation of these Terms. If you violate any of these Digital Content Terms of Sale, your rights under this license will immediately terminate, and we may terminate your access to the Barnes & Noble Services, Digital Content or your Barnes & Noble account without refund to you.

(e) Links to Third-Party Websites. The Barnes & Noble Services may include links to third-party websites that let you leave the Barnes & Noble Services. These linked sites are not under the control of Barnes & Noble and Barnes & Noble is not responsible for the contents of any linked site or any link contained in a linked site. Barnes & Noble is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Barnes & Noble of such site. Your use of the third-party website may be subject to that third-party’s terms and conditions.

3. TERMS RELATED TO DIGITAL CONTENT AND THE BARNES & NOBLE SERVICES

(a) Risk of Loss. Risk of loss for Digital Content transfers when you download or access the Digital Content.

(b) Availability, Quantity and Order Limits. Not all Digital Content may be available to all users. Availability of Digital Content or the Barnes & Noble Services will depend on a number of factors, including where you reside and the Supported Device or Barnes & Noble Application that you are using.

Digital Content prices and availability are subject to change at any time and without notice. Barnes & Noble may place a limit on the quantities that may be purchased per order, per account, per credit card, per person, or per household. If the Digital Content that you ordered is unavailable, we may contact you to offer you an alternative product. If you do not choose to purchase the alternative product, we will cancel your order.

(c) Prices. Prices listed or shown on the Barnes & Noble Services may differ from the price shown in your shopping basket. It is possible that prices may increase or decrease between the times 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 Barnes & Noble Services. If we have made a mistake and the correct price for the item is actually higher than the price listed on the Barnes & Noble Services at the time of purchase, then we may either (at our sole discretion): (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) deliver the item to you at the incorrect lower price to your benefit.

Please note that this Section 3(c) regarding prices applies only to items sold by us.

(d) Updates. The Barnes & Noble Services, related support libraries, or Barnes & Noble Content may need to be updated, for example, for bug fixes, enhanced functions, missing plug-ins and new versions (collectively, “Updates”). Such Updates may be necessary in order for you to use the Barnes & Noble Services or to access, download, or use Digital Content. By agreeing to these Digital Content Terms of Sale and using the Barnes & Noble Services, you agree to receive such Updates automatically. You may be able to manage Updates to certain Barnes & Noble Content via Settings in the applicable Barnes & Noble Application.

(e) Content and Product Descriptions. All information and descriptions provided about Digital Content, Barnes & Noble Applications, or Supported Devices made available through the Barnes & Noble Services 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 Barnes & Noble Services. The items made available through the Barnes & Noble Services 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 LAW, WE ACCEPT NO RESPONSIBILITY FOR ANY DIGITAL CONTENT PROVIDED BY A THIRD-PARTY CONTENT PROVIDER, INCLUDING ANY INACCURATE OR INCOMPLETE INFORMATION ABOUT ANY ITEMS DISPLAYED, ADVERTISED, MADE AVAILABLE AND/OR SOLD IN OR THROUGH THE BARNES & NOBLE SERVICES WHICH HAS BEEN PROVIDED TO US BY SUCH THIRD-PARTY CONTENT PROVIDER. FURTHER, WE DO NOT REPRESENT OR WARRANT THAT THE DESCRIPTIONS OF SUCH ITEMS ARE ACCURATE OR COMPLETE.

(f) Special Terms for Barnes & Noble Audiobooks Subscription Service. Use of the Barnes & Noble Audiobooks subscription service is subject to the terms and conditions of the service set out in these Digital Content Terms of Sale, which we may modify at any time and at our discretion. Each time you access and/or use the Barnes & Noble Audiobooks subscription service, you agree to be bound by these Digital Content Terms of Sale. Your continued use of the Barnes & Noble Audiobooks subscription service after the modified Digital Content Terms of Sale are posted to our website will constitute your affirmative acceptance to the modified Digital Content Terms of Sale. If you do not agree to, or cannot comply with, the Digital Content Terms of Sale as amended, you must stop using the Barnes & Noble Services, including the Barnes & Noble Audiobooks subscription service.

Barnes & Noble Audiobooks subscribers may listen to a choice of audiobooks from a select set of Digital Content for a monthly subscription fee. The audiobooks available to Barnes & Noble Audiobooks subscribers may change from time to time and Barnes & Noble makes no guarantees about the availability of such Digital Content.

You agree to pay the applicable monthly subscription fees for the Barnes & Noble Audiobooks subscription type you select at the time you register for the subscription. Additional payment terms applicable to the monthly subscription fees for the Barnes & Noble Audiobooks subscription will be as set forth in the FAQ pages on the Barnes & Noble Audiobooks website or Barnes & Noble Application for audiobooks. The applicable monthly fees for subscriptions you are required to pay may vary based on the type of Barnes & Noble Audiobooks subscription you elect. Monthly subscription fees may be subject to tax and are non-refundable except in the specific circumstances set forth below.

As part of your Barnes & Noble Audiobooks subscription, we will issue you credits redeemable for content through the Barnes & Noble Audiobooks subscription service (“Credits”). Credits may only be redeemed for audiobooks through the Barnes & Noble Audiobooks subscription service, have no cash value, are non-transferrable and non-refundable. In the event that your Barnes & Noble Audiobooks subscription is terminated or expires, any unused Credits may be redeemed by you during a 30-day grace period after termination. Such credits will expire at the end of the 30-day grace period.

SUBSCRIPTIONS WILL AUTOMATICALLY RENEW FOR ADDITIONAL ONE (1) MONTH PERIODS, UNLESS YOU CANCEL YOUR BARNES & NOBLE AUDIOBOOKS SUBSCRIPTION AT MANAGE SUBSCRIPTIONS, IN WHICH CASE YOUR SUBSCRIPTION WILL NOT RENEW AND WE WILL NOT CHARGE YOU ANY ADDITIONAL SUBSCRIPTION FEES. IF YOU DO NOT CANCEL YOUR SUBSCRIPTION AND YOUR SUBSCRIPTION IS AUTO-RENEWED, YOU WILL BE CHARGED THE THEN-APPLICABLE SUBSCRIPTION FEES AND ANY APPLICABLE TAXES, USING THE PAYMENT METHOD WE HAVE ON FILE FOR YOU. THE PRICING DURING ANY AUTOMATIC RENEWAL TERM WILL BE THE SAME AS THAT DURING THE IMMEDIATELY PRIOR TERM UNLESS WE HAVE GIVEN YOU WRITTEN NOTICE OF A PRICING INCREASE AT LEAST THIRTY (30) DAYS PRIOR TO THE EFFECTIVE DATE OF SUCH INCREASE. YOU MAY VIEW YOUR CURRENT SUBSCRIPTION PLAN, SUBSCRIPTION TERM AND BILLING INFORMATION AT ANY TIME IN YOUR ACCOUNT SETTINGS.

If your Barnes & Noble Audiobooks subscription includes a free trial, you will receive access to the audiobooks made available as part of the Digital Content for the duration of the free trial period. At the end of your free trial period, Barnes & Noble will charge or debit the payment method provided at the time of your registration for the Barnes & Noble Audiobooks subscription, and you will be billed for the subscription term and at the subscription intervals set forth at the time of your subscription to the Barnes & Noble Audiobooks subscription services.

EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, ALL BARNES & NOBLE AUDIOBOOKS SUBSCRIPTION FEES ARE NON-REFUNDABLE.

When you sign up for a subscription, you will be asked to provide your credit card information. You hereby authorize us to bill your credit card in advance for your subscription fees and annually thereafter until your subscription to the Barnes & Noble Audiobooks service terminates, and you further agree to pay any subscription fees so incurred. You agree to promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If we cannot charge your credit card for any fees when due because your payment information is no longer valid and up-to-date, or if we do not receive your payment when due through the alternative payment method you have selected, we may, at our election: (a) suspend your access to the portion of the Barnes & Noble Audiobooks service provided on a subscription basis (including any Credits on your account), in which case you will be responsible for all subscription fees incurred during the period of suspension, or (b) without waiving our rights to suspend or terminate your account, allow you a longer period during which to make payment, in which case you will remain responsible for all subscription fees incurred while we await your payment. Late payments incur interest charges at the rate of 1% per month on any outstanding balance or the maximum amount permitted by applicable law, whichever is less. The fees hereunder do not include any local, state or federal taxes or duties for transactions arising hereunder. If we are responsible for collecting such taxes based on the transactions under these Digital Content Terms of Sale, you will be responsible for payment of all such taxes or duties, excluding taxes based on Barnes & Noble’s net income or property.

(g) Indemnity. You agree to defend, indemnify and hold harmless us and our Affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, demands, damages, costs, liabilities, losses and expenses (including reasonable attorneys’ fees) arising out of your use of the Barnes & Noble Services or Digital Content.

(h) Notice and Take Down Procedure for Claims of Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on or through the Services infringe your rights please see the Barnes & Noble Copyright Policy.

4. YOUR RIGHTS REGARDING DIGITAL CONTENT

(a) Digital Content License. We offer you the ability to purchase or download Digital Content from and through the Barnes & Noble Services for viewing and use on a Supported Device or via a Barnes & Noble Application, using your Digital Library. We grant you a limited, non-exclusive, revocable license to access, store and make personal, non-commercial use of the Digital Content in accordance with these Digital Content Terms of Sale. Your rights to the Digital Content, as set forth herein, will apply even if the amount paid for the Digital Content is zero.

Certain Digital Content, including but not limited to audiobooks or eTextbooks, may be licensed for listening or viewing over a limited period of time. If a limited period license applies to particular content, we will identify the license period in the Barnes & Noble Services. 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 Barnes & Noble account and provide valid credit card information and your billing address to us and either: (i) install the necessary Barnes & Noble Application onto your Supported Device; or (ii) register your Supported Device by logging into your Barnes & Noble account from your Supported Device. If you have difficulty downloading or accessing Digital Content from the Barnes & Noble Services, please contact customer service at help.barnesandnoble.com or 1-800-THE-BOOK (1-800-843-2665) for assistance.

Your purchased Digital Content will be stored in, or accessible from, your Digital Library. You can access your Digital Library by signing into your Barnes & Noble account. You may also transfer most Digital Content from your Digital Library to no more than a total of six (6) Supported Devices or Barnes & Noble Applications at any one time; however, certain Digital Content, including eTextbooks, may be transferred to no more than a total of two (2) Supported Devices or Barnes & Noble Applications at any one time. You may not transfer Digital Content from one Supported Device to another without maintaining the applicable digital rights management 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 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 law. Some Digital Content may not remain available for re-download from your Digital 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 Supported Device or Barnes & Noble Application will generally not be affected.

(b) Digital Content Restrictions. You may not:

upload, post, reproduce, or distribute in any way Digital Content or any Barnes & Noble Application, protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other propriety right except as specifically permitted and only in the exact manner provided.
sell, rent, lease, redistribute, broadcast, transmit, communicate, modify, sublicense, transfer, assign any Digital Content to any third-party including with regard to any downloads of Digital Content that you may obtain through the Barnes & Noble Services except as specifically permitted and only in the exact manner provided.
use Digital Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted and only in the exact manner provided.
attempt to, or assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components that protect, obfuscate or otherwise restrict access to any Digital Content or the Barnes & Noble Services.
remove any watermarks, labels or other legal or proprietary notices included in any Digital Content, or attempt to modify any Digital Content obtained through the Barnes & Noble Services, including any modification for the purpose of disguising or changing any indications of the ownership or source of Digital Content.
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.
Impose an unreasonable or disproportionately large load on Barnes & Noble’s computing, storage or communications infrastructure, or attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or otherwise.
Harvest, scrape or collect any information from the Barnes & Noble Services.
use Digital Content for any commercial or illegal purpose.

(c) No Responsibility for Digital Content. The Barnes & Noble Services permit 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 Digital Content. We provide only the Barnes & Noble Services, which is intended to allow you access to Digital Content. Under no circumstances will we be liable for any loss, damages or harm caused by your access to or reliance on any Digital Content or any instruction, material, or advice contained in any Digital Content. You must determine whether Digital Content you access, purchase, stream or download is appropriate, useful, accurate and complete. Your use of 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. USER GENERATED CONTENT AND OUR INTERACTIVE COMMUNITY

The Barnes & Noble Services offer you numerous opportunities to participate in interactive activities, which enable users to communicate with each other directly, or which enable users to post information and other material that will be visible to other users of that application or services (“Interactive Community”). If you are participating in the Interactive Community services through the Barnes & Noble Services, and post, publish or communicate any information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material on through the Interactive Community services, please choose carefully the information that you post and/or provide to other users (“User Created Content”). Please note that your participation in the Interactive Community and your User Created Content will be governed by the barnesandnoble.com Terms and Conditions of Use.

6. RETURNS AND REFUNDS

Digital Content cannot be returned once purchased.

7. TERMINATION OR SUSPENSION

(a) Termination by Us. We may terminate your account or use of the Barnes & Noble Services at any time for any reason, including, without limitation, if you are in breach of these Digital Content Terms of Sale or any related policies, or if the Barnes & Noble Services are no longer operated by us. By using the Barnes & Noble Services, you agree to be responsible (in accordance with these terms) for any orders you make or charges you incur prior to such termination. We may change, discontinue, or otherwise suspend the Barnes & Noble Services or any Digital Content at any time, for any reason, and without prior notice to you.

(b) By You. You may terminate your use of the Barnes & Noble Services, Digital Content, your Digital Library or your Barnes & Noble account at any time by ceasing all use of the Barnes & Noble Services, Digital Content, your Digital Library or your Barnes & Noble account.

(c) Effect of Termination or Suspension. Following termination (by us or by you) or suspension, you will not be permitted to use the Barnes & Noble Services, Digital Content, or access your Digital Library and/or Barnes & Noble account. In the case of termination by us of your Barnes & Noble account, you will remain liable for all amounts due under your Barnes & Noble account up to and including the date of termination.

Any provision of these Digital Content Terms of Sale that should, by its nature, survive termination of this Agreement will survive its termination. Such provisions include, but are not limited to the following Sections: Section 3(g) (Indemnity); Section 7 (Termination or Suspension); Section 8 (Disclaimer of Warranties); Section 9 (Limitation of Liability); Section 10 (Dispute Resolution, Arbitration and Class Action Waiver); Section 11 (General).

8. DISCLAIMER OF WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS AND LICENSORS PROVIDE THE BARNES & NOBLE SERVICES, BARNES & NOBLE CONTENT INCLUDING DIGITAL CONTENT, ANY BARNES & NOBLE ACCOUNT AND ANY DIGITAL LIBRARY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE USE OF THE BARNES & NOBLE SERVICES, THE BARNES & NOBLE CONTENT INCLUDING DIGITAL CONTENT, ANY BARNES & NOBLE ACCOUNT AND ANY DIGITAL LIBRARY IS AT YOUR SOLE RISK. NEITHER WE NOR OUR SUPPLIERS, AFFILIATES OR LICENSORS (AS APPLICABLE) MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, THAT THE BARNES & NOBLE SERVICES, THE BARNES & NOBLE CONTENT INCLUDING DIGITAL CONTENT, ANY BARNES & NOBLE ACCOUNT AND ANY DIGITAL 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 LAW, 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 NONINFRINGEMENT OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.

WE TAKE NO RESPONSIBILITY FOR THIRD-PARTY ADVERTISEMENTS OR THIRDPARTY APPLICATIONS THAT ARE POSTED ON OR THROUGH OR MADE AVAILABLE ON THE BARNES & NOBLE SERVICES, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DO NOT TAKE ANY RESPONSIBILITY FOR ANY GOODS OR SERVICES PROVIDED BY THIRD-PARTY ADVERTISERS ON THE BARNES & NOBLE SERVICES.

9. LIMITATION OF LIABILITY

(a) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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 BARNES & NOBLE SERVICES AND/OR BARNES & NOBLE CONTENT INCLUDING DIGITAL CONTENT, ANY BARNES & NOBLE ACCOUNT AND/OR ANY DIGITAL 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.

THE ABOVE EXCLUSIONS OF LIABILITY ARE NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, BARNES & NOBLE SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE USE OF THE BARNES & NOBLE SERVICES OR THE MATERIALS ON THE BARNES & NOBLE SERVICES UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT OR RECKLESS ACTS OR OMISSIONS.

(b) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR AGGREGATE LIABILITY RELATED TO THE BARNES & NOBLE SERVICES, THE BARNES & NOBLE CONTENT INCLUDING DIGITAL CONTENT, YOUR BARNES & NOBLE ACCOUNT OR ANY DIGITAL LIBRARY EXCEED US$100 IN TOTAL (OR THE EQUIVALENT IN LOCAL CURRENCY, TO THE EXTENT THAT LOCAL CURRENCY NEEDS TO APPLY).

10. DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND BARNES & NOBLE TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.

Any dispute or claim arising from, relating to, or connected with these Digital Content Terms of Sale, the Barnes & Noble Services, the Barnes & Noble Content including Digital Content, any Barnes & Noble account and/or any Digital Library (each a “Claim”) will be resolved by binding arbitration (rather than in court). All Claims submitted to arbitration under these Digital Content Terms of Sale 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 the State of New York or, where limited by applicable law, the jurisdiction in which you reside or (may be conducted by telephone, online or based solely upon written submissions where no in-person appearance is required). Notwithstanding this Section 10, 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.

WAIVER OF CLASS ACTIONS. We each agree that 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. WE EACH AGREE THAT WE ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING ANY RIGHT WE MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THESE DIGITAL CONTENT TERMS OF SALE.

OPTION TO OPT-OUT. To opt out of the arbitration and class-action waiver terms in this Section 10, you must notify us in writing within 30 days of the date that you first accept these Digital Content Terms of Sale (unless a longer period is required by applicable law). You must mail your written notification to Barnes & Noble Legal Department, 33 East 17th Street, New York, NY, 10003, and your written notification must include your name, address and an unequivocal statement that you want to opt-out of this arbitration agreement.

You acknowledge and agree that, regardless of any statute or law to the contrary, any Claim or cause of action you may have 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 10, we both agree to the governing law and jurisdiction as set out in Section 11(c) below.

11. GENERAL

(a) Changes to these Digital Content Terms of Sale. We may, in our sole discretion, modify these Digital Content Terms of Sale from time to time without notice to you. Each time you access and/or use the Barnes & Noble Services, you agree to be bound by these Digital Content Terms of Sale. We recommend that you periodically review these Digital Content Terms of Sale so that you are aware of the terms and conditions that apply to your use of the Barnes & Noble Services (and any Digital Content, Barnes & Noble account and/or Digital Library). You agree that such modified Digital Content Terms of Sale will be effective immediately and that we may provide notice to you of any modifications to the Digital Content Terms of Sale by posting them on the Barnes & Noble Services. Your continued use of the Barnes & Noble Services after the modified Digital Content Terms of Sale are posted will constitute your affirmative acceptance to the modified Digital Content Terms of Sale. If you do not agree to, or cannot comply with, the Digital Content Terms of Sale as amended, you must stop using the Barnes & Noble Services, including all Digital Content.

(b) Assignment. These Digital Content Terms of Sale 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 these Digital Content Terms of Sale or any of our rights and obligations under it.

(c) Governing Law; Jurisdiction. These Digital Content Terms of Sale will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws principles.

Subject to Section 10 (Dispute Resolution, Arbitration and Class Action Waiver) above and applicable law, you and we both irrevocably 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 Digital Content Terms of Sale or their subject matter.

(d) Contact Information. For help with the Barnes & Noble Services (and any Digital Content, any Barnes & Noble account and/or any Digital Library) or if you have any questions regarding these Digital Content Terms of Sale, please contact customer service at help.barnesandnoble.com or 1-800-THE-BOOK (1-800-843-2665).