OR USE OF YOUR NOOK, 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 MISREPRESENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(c)LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL OUR OR OUR SUPPLIERS’ OR LICENSORS’ AGGREGATE LIABILITY ARISING FROM, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, 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 effect 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 affiliates, 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

NOOK User Guide

Policies

189