User's Manual

nook User Guide Policies 177
WITHOUT LIMITATION, CLAIMS RELATING TO YOUR NOOK, THE DIGITAL CONTENT, THE
SOFTWARE OR THE SERVICE) EXCEED THE PRICE PAID BY YOU FOR YOUR NOOK.
(d) STATE LAW. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED
WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. AS SUCH,
SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT
APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(e) ESSENTIAL PURPOSE. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE
FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY
FAILS OF ITS ESSENTIAL PURPOSE.
8. Force Majeure. We will not be liable for failing to perform under this Agreement because
of any event beyond our reasonable control, including, without limitation, 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, fire, an act of terrorism, natural disaster or war.
9. Choice of Law. The laws of the State of New York will govern and be used to interpret
this Agreement, without giving eect to any principle that would allow for the application of the law
of any other State. For purposes of any Claim that is not subject to the arbitration procedures in
Section 10 below, we both agree to submit to the nonexclusive personal jurisdiction of the courts
located within New York County, New York and waive any objection to the laying of venue of any
litigation in said courts.
10. Dispute Resolution. Any Claim arising from, relating to, or connected with this Agreement
will be resolved through binding arbitration conducted by telephone, online or based solely upon
written submissions where no in-person appearance is required. In such cases, the arbitration will
be administered by the American Arbitration Association under its Commercial Arbitration Rules
(including, without limitation, 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. 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 aliates, suppliers, or licensors. Any Claim will
be arbitrated or litigated, as the case may be, on an individual basis and shall not be consolidated
with any Claim of any other party whether through class action proceedings, class arbitration
proceedings or otherwise. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS
AGREEMENT. FURTHER, EACH PARTY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY
WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION. Each of the parties acknowledges that this Section is
a material inducement for the other party to enter into this Agreement. You acknowledge and
agree that, regardless of any statute or law to the contrary, any claim or cause of action you may
have arising out of, relating to, or in connection with this Agreement must be filed within one (1)
calendar year after such claim or cause of action arises, or forever be barred.
11. Termination of the Service.