Effective Date and Last Updated: December 17, 2019
Welcome to the U.S.
e-commerce shops, digital platforms, websites,
applications ("apps"), widgets, blogs, or other online offerings owned or operated by subsidiaries of Barnes
& Noble Education, Inc., including Barnes & Noble College Booksellers, LLC; MBS Textbook Exchange, LLC;
Student Brands, LLC; or any of their affiliates or subsidiary companies (collectively, "BNED"), including but
not limited to bncollege.com; bartleby.com; mbsbooks.com, studymode.com, cram.com, paperrater.com, and all other
online bookstores operated by BNED on behalf higher education and primary education institutions, as well as
other online Services, resources, forums, contests or sweepstakes offered or operated by BNED.
each user’s ("you" or "your") use of and/or access to the Services.
By using or accessing the Services, you acknowledge and agree that you have
the Services, are legally binding, limit BNED’s liability to you, and require you to indemnify us and to settle
mandatory statutory rights under applicable law, to the extent that such rights apply to you and cannot be limited
(defined below), you should not use or access the Services, and, where applicable, you should uninstall any
Services 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 parts of the Services.
Those Additional Terms will be posted on the Services in connection with the relevant
Terms, the Additional Terms shall control.
you to periodically review all terms and conditions posted on the Services. If we make any material changes to
appear on a non-cached browser.
your access to and/or use of the Services and, where applicable, uninstall any Services downloads and
1. Ownership; Your Rights to Use the Services and Content.
- Ownership. The Services and all of its content (collectively,
"Content"), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual
property rights therein ("Intellectual Property"), are owned or controlled by BNED, our licensors, and certain
other third parties. All right, title, and interest in and to the Content and Intellectual Property available
via the Services is the property of BNED, our licensors or certain other third parties, and is protected by U.S.
and international copyright, trademark, trade dress, patent and/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 Services.
Your Rights to Access and Use the Services and Content. Your right
applicable Additional Terms. Your right to access and use the Services and the Content shall automatically
us at any time in our sole discretion without advanced notice or liability. As your right to access and use the
Services and the Content is personal to you, you may neither assign nor transfer your right; any attempt to do
so is void. You may, for your personal, non-commercial, lawful use only (collectively, the following are the
- Display, view, use, and play the Content on a computer, mobile or other internet enabled or
permitted device ("Device") and/or print one copy of the Content (excluding source and object code in raw form
or otherwise) as it is displayed to you;
- Subject to any applicable Additional Terms, if the Services includes a "Send to Friend,"
social media sharing or similar tool that allows you to initiate and send to one or more of your contacts a
communication that includes Content, or to post our Content to third-party services or your own site or online
service, and the tool is operational, use the tool to do so; provided, however, that you do not do so in any
manner that violates applicable law or third-party rights or reflects negativity on us, and only send to
recipients you have permission to contact;
- If the Services 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), 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 Services ("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
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, obtain a registered personal account (and/or related username and
password) on the Services and interact with the Services in connection therewith;
- Link to the Services from a website or other online service, so long as: (a) the links only
incorporate text, and do not use any BNED names, logos, or images, (b) the links and the content on your website
do not suggest any affiliation with BNED or cause any other confusion, and (c) the links and the content on your
website do not portray BNED or its products or services in a false, misleading, derogatory, or otherwise
offensive manner, and do not contain content that is 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. BNED reserves the right to suspend or prohibit linking to the Services for any reason, in
its sole discretion, without advance notice or any liability of any kind to you or any third-party;
- Stream the Content using any of the widgets and/or other digital streaming internet video
players, if any, provided on the Services; and
- Use any other functionality expressly provided by BNED on or through the Services for use by
User-Generated Content (as defined below)) and any applicable Additional Terms.
- Additional Terms for Usage Subscriptions. Purchases of
usage subscriptions (e.g., credits, points, and/or virtual currency) or any virtual
items made available on the Services are nonrefundable, have no monetary value (i.e.,
are not a cash account or equivalent), and are purchases of only a limited, non-exclusive, revocable,
non-assignable, personal, and non-transferable license to use those items only, even if such came with a
durational term (e.g., a monthly subscription). Any attempt to transfer, assign or
otherwise sell or trade such subscription, regardless of manner or method, is null and void. Suspension or
termination thereof results in the forfeit of the suspended or terminated subscription or items, except as may
be noted in the applicable Additional Terms. As permitted by law, we are not responsible for repairing or
reissuing any credit or refund or any other sum, as a result of our modification of any usage subscriptions or
virtual item, or for loss or damage due to error, or any other reason.
- Additional Terms for Bartleby Tutor. One-time purchases of minutes
to be used for real-time tutoring sessions offered through Bartleby Tutor must be used within ninety (90) days
from the date of purchase. Any unused minutes thereafter are nonrefundable and cannot be redeemed for any credit
or other value. Minutes purchased through subscriptions to Bartleby Tutor expire upon any cancellation of the
Bartleby Tutor subscription; any unused minutes at the time of such cancellation cannot be refunded or otherwise
be credited back to your account.
- Rights of Others. In using the Services, you must respect the
Intellectual Property and rights of others and BNED. Your unauthorized use of Content may violate the rights of
others and applicable laws and may result in your civil and criminal liability. If you believe that your work
has been infringed via the Services, see Section 5 below.
- Reservation of all Rights Not Granted as to Services and Content.
access the Services and Content. No right or license 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 Content or the Services for any purpose is
- Third-Party Services. We are not responsible for third parties or
their content, advertisement(s), apps or sites ("Third-Party Services"). For instance, portions of the Services
may be integrated into or linked to third-party sites, platforms and apps that we do not control. Similarly, we
may make ads and third-party content or services, which we also may not control, available to you on or via our
Services. This may include the ability to register or sign into our Services using third-party tools, and to
post content on third-party sites and services using their plug-ins made available on our Services. Use caution
for Third-party Services and will not be liable for any damages caused by your use or reliance on Third-Party
Services. If you are accessing or using the Services through Apple, Android, or any other mobile operating
system platform, these are Third-Party Services. If you access our apps via Apple, see below for Additional
- Terms applicable for Apple IOS.
- To the extent that you are accessing the Services through an Apple mobile application, you
Rules set forth in the Apple Media Services Terms and Conditions (see:
Services you use.
- You acknowledge that BNED, and not Apple, is responsible for providing the Services and
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any
support services to you with respect to the Services and Content.
- To the maximum extent not prohibited by applicable law, Apple will have no other warranty
obligation whatsoever with respect to the Services and Content.
acknowledge that, solely as between Apple and BNED, BNED and not Apple is responsible for addressing any claims
you may have relating to the Services and Content, or your possession and/or use thereof, including, but not
limited, to: (A) product liability claims; (B) any claim that the Services fails to conform to any applicable
legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation.
- Further, you agree that if the Services, or your access to and use of the Services, 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
2. Content You Submit; Interactive Community Rules.
- User-Generated Content. BNED may now, or in the future, offer
users of the Services the opportunity to create, build, post, upload, display, publish, distribute, transmit,
broadcast, or otherwise make available on or submit through the Services, or on or in response to our pages or
posts on any third-party platforms 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 BNED Licensed
Elements included therein, "User-Generated Content" or "UGC"). You may submit UGC through your profile, forums,
blogs, message boards, social networking environments, content creation and posting tools, subscription
services, gameplay, social communities (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
cognizable right, title, and interest that you have in your UGC.
Terms, you agree:
(A) your UGC will be treated as non-confidential and non-proprietary by us – regardless of whether you
mark them "confidential," "proprietary," or the like – and will not be returned, and (B) to the maximum
extent not prohibited by applicable law, BNED does not assume any obligation of any kind to you or any
third-party with respect to your UGC. Upon request, you will provide documentation necessary to authenticate
You acknowledge that the Internet and mobile communications may be insecure and subject to breaches of
security; accordingly, you acknowledge and agree that your UGC is submitted at your own risk.
- 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 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.
- License to BNED of Your UGC. Except as otherwise described in any
applicable Additional Terms (such as a promotion’s official rules), which specifically govern the submission
hereby grant BNED the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable,
perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell,
re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast,
translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any
portion of your UGC (and derivative works thereof), for any purpose whatsoever in all formats, on or through
any means or medium now known or hereafter developed, and with any technology or devices now known or
hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights
include the right to: (A) configure, host, index, cache, archive, store, digitize, compress, optimize, modify,
reformat, edit, adapt, publish in searchable format, and remove such UGC and combine same with other
materials, and (B) use any ideas, concepts, know-how, or techniques contained in any UGC for any purposes
whatsoever, including developing, producing, and marketing products and/or services. You understand that in
exercising such rights, metadata, notices and content may be removed or altered, including copyright
management information, and you consent thereto and represent and warrant you have all necessary authority to
do so. In order to further effect the rights and license that you grant to BNED to your UGC, you also, as
permitted by applicable law, hereby grant to BNED, and agree to grant to BNED, the unconditional, perpetual,
irrevocable right to use and exploit your name, persona, and likeness in connection with any UGC, without any
obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any
moral rights (including attribution and integrity) that you may have in any UGC, even if it is altered or
changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise
such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that
you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this
- BNED may, but will not have any obligation to, review, monitor,
display, post, store, maintain, accept, or otherwise make use of, any of your UGC, and BNED may, in its sole
discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of UGC without
notice or any liability to you or any third-party in connection with our operation of UGC venues in an
appropriate manner, such as to enhance accessibility of UGC, address copyright infringement, and protect Users
from harmful UGC. Without limitation, we may, but do not commit to, do so to address content that comes to our
attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening,
abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or
maintained on the Services by us for any period of time, and you will not have the right, once submitted, to
access, archive, maintain, change, remove, or otherwise use such UGC on the Services or elsewhere, except that
California minors have certain rights to have certain content about them that they have themselves posted on
- 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: (A) 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
obtain consent of any third-party and without creating any obligation or liability of Bartleby; (B) the UGC is
accurate; (C) the UGC does not and, as to BNED’s permitted uses and exploitation set forth in these Terms of
Use, will not infringe any Intellectual Property or other right of any third-party; and (D) the UGC will not
- Any UGC (including chat messages, links, video, photo, audio or other media content) that you
submit in connection with Bartleby Tutor may be made publicly available through BNED’s library of searchable
content. Such UGC may be accessible by anyone, including BNED. We encourage you to not include any personally
identifiable information in any UGC you submit to BNED, the tutors, or any other third parties in relation to
the Bartleby Tutor, and to exercise caution when making decisions about what you disclose when using our
Services in general.
- Interactive Community Rules. Some aspects of the
Services may enable you to communicate with other users and post information and other material, including your
own UGC, via an interactive community (the "Interactive Community"). You are using Interactive Community
services if, for example, 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
- You may use the Interactive Community only for lawful purposes and in accordance with these
the Interactive Community, please choose carefully the information that you post and/or provide to other users.
- You may not post on or transmit through the Services 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: (A) involves the transmission of "junk mail", "chain letters" or
unsolicited mass mailing, instant messaging, "spimming" or "spamming"; (B) contains restricted or password-only
access pages or hidden pages or images (those not linked to or from another accessible page); (C) solicits
passwords or personal identifying information for commercial or unlawful purposes from other users; (D) involves
commercial activities and/or sales such as contests, sweepstakes, barter, advertising or pyramid schemes; (E)
includes a photograph or video of another person that you have posted without that person's consent; (F)
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 Services; (G) 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; (H) covers or obscures the banner advertisements on your personal
profile page; (I) involves any automated use of the Services, such as using scripts to add friends or send
comments or messages; (J) interferes with, disrupts or creates an undue burden on the Services or the networks
or services connected to the Interactive Community; (K) impersonates or attempts to impersonate another
Interactive Community user, person or entity; (L) 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; (M) sells or otherwise transfers your profile; or (N) uses any information obtained from the
Services or Interactive Community in order to harass, abuse or harm another person or entity, or attempts to do
- We reserve the right, in our sole discretion, to remove your profile and/or deny, restrict,
suspend or terminate your 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, 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 that occur within the
Interactive Community. The Interactive Community is not designed for use by individuals under the age of 18
years ("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 (such as 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 Services: (A) UGC that is not subject to any copyright or other proprietary rights
restrictions; or (B) 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 any
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 Services; Services and Content Use Restrictions.
- 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 Services. 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 here of any unauthorized use of your account, password,
or username, or any other 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.
- Subscriptions; Rentals; Purchases; Taxes. In order to
access certain features of the Services, you may be required to make a purchase or enter into a subscription.
Moreover, some aspects of the Services may allow you to place orders for or rent products.
- Any deal terms presented to you at the time of subscription, rental, purchase, or other
transaction you conduct on or initiate on the Services ("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 or
subscribe to paid Services. You agree to make payment using that selected Payment Method and will only provide
us 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 make changes to 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. If you initiate a chargeback dispute for any payment or
transaction made on our site, BNED reserves the right to terminate the provision of services or delivery or
products to you pending resolution of the chargeback dispute with the credit card issuer.
- Subscription fees may be automatically renewed at the end of the original term selected, for a
similar period of time, unless notice is received from the subscriber seven (7) days before renewal. Unless and
charge your Payment Method to pay for the ongoing cost of membership. Subscription fees are NOT refundable if
you request to cancel or terminate your membership. Should a refund be issued by us, all refunds will be
credited solely to the Payment Method used in the original transaction. You hereby further authorize us to
charge your Payment Method for any and all additional purchases of Services and Content.
- 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 and/or use tax. Tax
rates are different from state to state. You are responsible for paying all such taxes.
- Services Use Restrictions. You agree that you will not:
(i) use the Services 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; (iii) engage in any activities through or in connection
with the Services 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 Services by any means whatsoever or modify any Services source or object code or any
Software or other products, services, or processes accessible through any portion of the Services; (v) engage in
any activity that interferes with a user’s access to the Services or the proper operation of the Services, or
otherwise causes harm to the Services, BNED, or other users of the Services; (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 Services or any feature that restricts or enforces limitations on use of or
access to the Services, the Content, or the UGC; (vii) harvest or otherwise collect or store any information
(including personally identifiable information about other users of the Services, including email addresses,
without the express consent of such users); (viii) attempt to gain unauthorized access to the Services, other
computer systems or networks connected to the Services, through password mining or any other means; or (ix)
- Content Use Restrictions. You also agree that, in using the
Services, you will: (i) not monitor, gather, copy, or distribute the Content (except as may be a result of
standard search engine activity or use of a standard browser) on the Services 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 the Content
(including any images, text, or page layout); (iii) keep intact all trademark, copyright, and other Intellectual
Property and other notices contained in the Content; (iv) not use the 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 Content (other than to the extent of your specifically permitted use of the BNED Licensed
Elements, if 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 Services, or
otherwise use or exploit the Content in any way for any purpose except as specifically permitted by these Terms
of Use or any applicable Additional Terms, or with the prior written consent of an officer of BNED or, in the
case of the 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 Services.
- Availability of Services and Content. BNED, in its sole discretion
without advance notice or liability, may immediately suspend or terminate the availability of the Services
and/or Content (and any elements and features of them), in whole or in part, for any reason, in BNED’s sole
discretion, and without advance notice or liability.
- Age of Users. Unless otherwise specifically noted in the features
made available to you, the Services, Content and any products and services appearing or marketed on the Services
are intended for and directed towards the purchase and use by adults (those aged 18 years or above) or by
individuals 16 or older with the consent of adults. Individuals over the age of 16 and under the age of 18 years
may only use the Services with the supervision of a parent or legal guardian and should review these Terms of
Use with a parent or legal guardian to ensure that they understand them.
- Internet Connectivity Charges. Internet connectivity is required
to access the Services. 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 policies of internet service providers or others with whom you contract for such internet connectivity.
4. Wireless Features; Messages; Location-Based Features.
- Wireless Features. The Services may offer certain features and
services via your wireless Device. Features and services may include the ability to access the Services’
features, upload content to the Services, receive messages from the Services, 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 Services 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
Services to reflect the changes. If the Services 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
Services 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.
- Text and Email Messages.
- You may be given opportunities to subscribe to various text marketing or other 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 subscription is limited, that subscription will be so
limited. Such consent is not required to purchase any product or Services aside from the text subscription
itself. Subsequent or different subscriptions will be unaffected by an opt-out. You consent to receive a text
confirming any opt-out as well as non-marketing administrative or transactional messages.
- 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 Services, 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.
- Location-Based Features. If GPS,
geo-location or other location-based features are enabled on your Device, you acknowledge that your Device
location may be tracked and may be shared with others consistent with the Privacy
Policy. Some Devices and platforms may allow disabling some, but not all,
location-based features or managing such preferences. Typically, your proximity or connection to wi-fi,
Bluetooth and other networks may still be tracked when location services are turned off on Device settings.
You can terminate Device location tracking via a mobile app by us by uninstalling the application. Territory
geo-filtering maybe required in connection with use of some Services features due, for instance, to Content
territory restrictions. The location-based services offered in connection with BNED’s mobile app(s) or
feature(s) are for individual use only and should not be used or relied on in any situation in which the
failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or
physical or property damage. Use location-based services at your own risk as location data may not be
5. Notice and Take Down Procedure for Claims of Infringement.
- 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 Services that is infringing and that you would like removed from our Services, 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.
- 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 service to repeat offenders.
If you believe your copyrighted work has been copied and is accessible on the Services 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
- Identification of the URL or other specific location on the Services 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 Services can be reached as
Barnes & Noble Education, Inc.
120 Mountainview Blvd.
Basking Ridge, NJ 07920
Attn: Legal Department
By email: BNEDDMCA@bned.com
The email address above is only for reporting copyright infringement and may not be used for any
- 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
- 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 Bartleby may elect to remove allegedly infringing material that comes to its attention via notices that do
not substantially comply with the DMCA.
- DMCA Counter-Notification. If access on the Services 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 (please include
the full URL of the page(s) on the Services 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.
- 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 Services. 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 an activity is infringing your copyrights.
6. Product Specifications; Pricing; Typographical Errors.
We strive to accurately describe our products or services offered on the Services; however, we
do not warrant that such specifications, pricing, or other content on the Services 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 will 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 a credit for the purchase price.
7. Termination or Suspension.
- 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
Services 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
Services has been terminated, including the right to use, access or create any account thereon; (ii) we refuse
to provide any Services to you; and (iii) any subsequent orders placed by you will be subject to cancellation.
Other conditions may apply and shall be set forth in the Restriction Notice.
ceasing all use of the Services and deleting all Licensed Elements from your Device.
- Effect of Termination or Suspension. Following termination (by us
or by you) or suspension, you will not be permitted to use the Services. Any suspension or termination will not
termination of your access to the Services, or upon notice from BNED, all rights granted to you under these
by their nature should survive your suspension or termination will survive, including the rights and licenses
liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
8. Disclaimers; Exclusions and Limitations of Liability.
- 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 SERVICE, CONTENT,
BNED 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 SERVICES 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 SERVICES, 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 BARTLEBY PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY BARTLEBY 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.
- EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BNED PARTIES WILL NOT BE
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 SERVICES, 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.
- LIMITATION OF LIABILITY. TO THE EXTENT NOT
PROHIBITED 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 Services
(including the Content and the UGC), including without limitation:
- your use of or inability to use the Services, or the performance of the Services;
- any action taken in connection with an investigation by BNED Parties or law enforcement
authorities regarding your access to or use of the Services;
- any action taken in connection with copyright or other Intellectual Property owners or other
- any errors or omissions in the Services’ 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 Services).
EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT NOT
PROHIBITED 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 SERVICES AND YOUR RIGHTS UNDER THESE
UNDERLIE THE CLAIM(S); 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 Services, or any express warranties by
BNED that are included in applicable Additional Terms.
- 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.
- ESSENTIAL PURPOSE.UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS,
LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. Arbitration and Dispute Terms.
- Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or
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.
- 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 Services, 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
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.
- 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
SERVICES, 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
SERVICES, CONTENT, UGC, PRODUCT, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY BNED
PARTY (INCLUDING YOUR LICENSED UGC) OR A LICENSOR OF ANY BARTLEBY
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 Services, Content, Licensed Elements, UGC, products or BNED
Intellectual Property, 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. This Section 9 can only be amended by mutual agreement. Either party may seek enforcement of this Section
9 in any court of competent jurisdiction.
- 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.
- 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.
- Small Claims Matters. Notwithstanding the
foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims
court, subject to Section 9(f).
- 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
10. General Provisions.
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
- Indemnity. As permitted by applicable law, you agree to, and you hereby, defend (if requested by
BNED), indemnify, and hold the BNED Parties harmless from and against any and all claims, damages, losses,
costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses
(including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action,
demand, or proceeding made or brought against any BNED Party, or on account of the investigation, defense, or
settlement thereof, arising out of or in connection with: (i) your UGC; (ii) your use of the Services and your
applicable Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes,
statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your
use of the Services or your activities in connection with the Services; (v) information or material
transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates
any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person
or entity; (vi) any misrepresentation made by you; and (vii) the BNED Parties’ use of the information that you
Losses"). You will cooperate as fully required by the BNED Parties in the defense of any Claims and Losses.
Notwithstanding the foregoing, the BNED Parties retain the exclusive right to settle, compromise, and pay any
and all Claims and Losses. The BNED Parties reserve the right to assume the exclusive defense and control of
any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written
consent of an officer of BNED. This section is not intended to limit any causes of action against us that you
may have but are not waivable under applicable law.
- Operation of Services; Availability of Products and Services;
International Issues. BNED controls and operates the Services from the U.S., and makes no representation
Services is appropriate or available for use beyond the U.S. If you use the Services 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.
- Export Controls. You are responsible for complying with all applicable trade regulations and laws
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.
meaning of any terms. "Including" means "including, without limitation." The singular includes the plural and
successors and permitted assigns.
- Entire Agreement. Except for any Additional Terms that apply to your use of
the Services as we may notify or make available to you, this is the entire understanding between you and us
regarding the use of the Services, and supersedes all prior and contemporaneous agreements and understandings
between you and us regarding this subject matter.
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 and Licensors. Our affiliates, suppliers, licensors and other BNED
- No Waiver. Our failure or delay to exercise or enforce any right,
remedy or provision.
use of the Services, 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
Services 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.
- Force Majeure. We will not be liable to you for failing to perform our
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, 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).
permitted by applicable law, we may, in our sole discretion, change, modify, suspend, make improvements to or
discontinue any aspect of the Services, 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
transferable by you without our prior written consent. We may freely assign, transfer, or delegate these Terms
of Use or any of our rights and obligations under it.
- Contact Information. For help with the Services or if you have any questions
You acknowledge that we have
no obligation to provide you with customer support of any kind and that customer service personnel cannot