User's Manual

Barnes & Noble NOOKcolor User Guide 87

ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE USE OF YOUR NOOKcolor, THE SERVICE,

DIGITAL CONTENT AND SOFTWARE IS AT YOUR SOLE RISK. WE DO NOT REPRESENT OR WARRANT

THAT YOUR NOOKcolor, THE SOFTWARE, THE SERVICE OR THE DIGITAL CONTENT, OR ITS OR THEIR

USE WILL: (I) BE UNINTERRUPTED OR SECURE; (II) BE FREE OF DEFECTS, INACCURACIES OR ERRORS;

OR (III) MEET YOUR REQUIREMENTS. WE HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR

IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR

PURPOSE, LACK OF HIDDEN OR LATENT DEFECTS, SECURITY, MERCHANTABILITY, QUIET ENJOYMENT

AND NON-INFRINGEMENT.

(b) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS

AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPE-

CIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES ARISING FROM, RELATING TO OR CON-

NECTED WITH YOUR PURCHASE OR USE OF YOUR NOOKcolor, THE SERVICE, THE SOFTWARE, OR THE

DIGITAL CONTENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE OR LOST DATA,

REGARDLESS OF THE CAUSE OF ACTION ON WHICH THE CLAIM IS BASED, INCLUDING, WITHOUT

LIMITATION, NEGLIGENCE, TORT, CONTRACT, STRICT LIABILITY, PRODUCT DEFECT OR MISREPRESENTA-

TION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

OR OUR SUPPLIERS’ OR LICENSORS’ AGGREGATE LIABILITY ARISING FROM, RELATING TO OR IN CON-

NECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, CLAIMS RELATING TO YOUR

NOOKcolor, THE DIGITAL CONTENT, THE SOFTWARE OR THE SERVICE) EXCEED THE PRICE PAID BY YOU

FOR YOUR NOOKcolor.

(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 DIS-

CLAIMERS, 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 DIS-

CLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PUR-

POSE.

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 nonexclu-

sive 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