B&N eReader End User License Agreement

THIS B&N EREADER END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU THE LICENSEE OF THE B&N EREADER SOFTWARE PROVIDED WITH THIS AGREEMENT ("LICENSEE") AND BARNESANDNOBLE.COM LLC. ("BN"). CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT PRIOR TO USING THE SOFTWARE. BY USING THE SOFTWARE, LICENSEE IS CONSENTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE MUST REMOVE THE SOFTWARE FROM LICENSEE'S COMPUTER. YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THE LICENSEE TO THE TERMS OF THIS AGREEMENT.

  1. DEFINITIONS.
    1. "Documentation" shall mean any manuals and/or user documentation provided by BN for use in connection with the Software.
    2. "Software" shall mean the object code version of BN's electronic book reader software.
    3. "Products" shall mean the Software and the Documentation.
  2. LICENSE GRANT.
    1. Subject to the terms and conditions of this Agreement, BN hereby grants to Licensee a limited, non-exclusive, non-transferable license to install and use a single copy of the Software on any computer or handheld device owned by the Licensee, solely internally and solely to view electronic books, digital magazines, digital newspapers, digital journals and other periodicals, blogs and other digital content ("Digital Content") for Licensee's personal or internal business use. Licensee may make one (1) copy of the Products only as necessary for backup or archive purposes in support of Licensee's use of the Products.
    2. Third-Party Software. Certain portions of the Software are subject to separate licensing terms and attributions as set forth in Attachment 1. By using the Software, you agree that you have read, understand and agree to be bound by such terms.
  3. DOCUMENTATION LICENSE. Subject to the terms and conditions of this Agreement, BN hereby grants to Licensee a non-exclusive, non-transferable license to use the Documentation internally in connection with Licensee's authorized use of the Software.
  4. PROHIBITED USES. Licensee will not and will not permit others to: (a) use the Products for any commercial purpose except for the internal business use expressly authorized in Section 2 above, (b) disclose or copy the Products; (c) disassemble, decompile, recast, or reverse engineer the Software or otherwise attempt to access its source code; (d) rent, loan, lease, sublicense, transfer, network, reproduce, display, distribute, or otherwise make any of the Products available to any third party; (e) copy the Products in any form except as expressly authorized by this Agreement; or (f) modify, alter, delete or obscure any proprietary rights notice embedded in or affixed to the Products.
  5. INTELLECTUAL PROPERTY. BN and its licensors shall own all right, title and interest in and to the Products, and all enhancements, bug fixes, upgrades, modifications, customizations, improvements, derivative works, whether or not developed by BN, and copies thereof, and all information, methods and processes and intellectual property rights therein (collectively, the "Intellectual Property"). No rights are granted except those expressly set forth in Section 2 and Section 3 and BN and its licensors expressly reserve all right, title and interest in and to the Products not expressly granted herein. Licensee acknowledges and agrees that the Software has been licensed to Licensee pursuant to the terms and conditions of this Agreement and that the Software has not been sold to Licensee.
  6. USE OF CONTENT. Licensee agrees that the use, reproduction, display and/or distribution of any Digital Content, text, graphics or other materials ("Content") in connection with the use of the Software may be restricted by applicable laws and regulations, including without limitation, copyright laws. Licensee represents and warrants that Licensee has obtained all necessary rights to use, modify, reproduce or distribute any Content in connection with Licensee's use of the Software. Licensee further represents and warrants that Licensee's use, reproduction, display and/or distribution of Content in connection with and the use of the Software shall be in compliance with any applicable laws and regulations, including without limitation, copyright laws, and that BN shall have no duty to and shall not investigate or verify Licensee's use of the Software or right to use any Content. Licensee shall defend, indemnify and hold BN harmless from and against any claims alleging that Licensee's use, reproduction, display and/or distribution of the Content infringes any third party proprietary rights and/or is not in compliance with all applicable laws and regulations, including copyright laws. Licensee shall not settle or compromise any claim subject to this Section without BN's prior written approval.
  7. LIMITED WARRANTY. BN represents and warrants to Licensee that for a period of ninety (90) days following Licensee's download of the Software (the "Warranty Period") the Software shall operate substantially in accordance with the Documentation; provided that: (a) the Software has not been subject to misuse, neglect, alteration, modification, customization, improper use or operation, improper installation or unauthorized repair; (b) BN is notified in writing of any defect during the Warranty Period; (c) all associated equipment, software and environmental conditions have been properly maintained in accordance with applicable specifications and industry standards; and (d) no other equipment, software, or other technology creating an adverse impact on the Software has been introduced.

    BN EXPRESSLY DOES NOT WARRANT THAT THE PRODUCTS WILL OPERATE ERROR FREE. EXCEPT AS SPECIFICALLY CONTAINED IN THIS SECTION, THE PRODUCTS ARE PROVIDED TO LICENSEE WITHOUT, AND BN EXPRESSLY DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. IN ADDITION AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ANY AND ALL THIRD PARTY SOFTWARE INCORPORATED INTO THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.

    LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR FAILURE OF THE PRODUCTS TO MEET THE FOREGOING WARRANTY SHALL BE LIMITED TO HAVING BN, AT BN'S OPTION, UNDERTAKE TO REPAIR DOCUMENTED REPRODUCIBLE DEFECTS WITHIN A REASONABLE PERIOD OF TIME, REPLACE THE PRODUCTS OR TERMINATE THIS AGREEMENT AND REFUND THE FEES PAID BY LICENSEE FOR THE DEFECTIVE PRODUCT, IF ANY.
  8. NO SUPPORT. Except as provided in Section 7, BN does not warrant that it will develop or deliver any updates or future releases of the Products or otherwise support the Products. BN may, in its sole discretion, provide support to its licensees from time to time but in doing so BN undertakes no obligation to provide support thereafter.
  9. LIMITATION OF LIABILITY.
    1. CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT SHALL BN AND/OR ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY), OR FOR LOST DATA OR LOST PROFITS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
    2. LIMITATION OF LIABILITY. BN AND ITS AFFILIATES' AND LICENSORS' TOTAL, AGGREGATE LIABILITY FOR DAMAGES ARISING FROM, RELATING TO, OR CONNECTED WITH LICENSEE'S USE OF THE SOFTWARE OR THIS AGREEMENT SHALL NOT IN ANY EVENT EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS (USD$100).
    3. ALLOCATION OF RISK. LICENSEE AND BN AGREE THAT THE FOREGOING SECTIONS 9(a) AND 9(b) ON LIMITATION OF LIABILITY AND SECTION 7 ABOVE ON WARRANTY AND WARRANTY DISCLAIMER FAIRLY ALLOCATE THE RISKS IN THE AGREEMENT BETWEEN THE PARTIES. LICENSEE AND BN FURTHER AGREE THAT THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 9 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
    4. LICENSEE MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR IN OTHER JURISDICTIONS. BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE DEPENDING ON HER, HIS, OR ITS STATE OF RESIDENCE.
  10. TERM AND TERMINATION. This Agreement shall commence on the date Licensee installs the Software and continue in effect until terminated as set forth in this Section 10. BN may immediately terminate this Agreement without notice upon the failure by Licensee to comply with any term or condition of this Agreement. Licensee may terminate this Agreement at any time by destroying the Products together with all copies and merged portions in any form.
    1. EFFECT OF TERMINATION. In the event of a termination of this Agreement, Licensee shall immediately destroy all copies of the Products. In addition, upon request from BN, Licensee shall promptly provide to BN written certification, signed by an Officer of Licensee, of Licensee's destruction of the Products.
    2. SURVIVAL. The following provisions shall survive termination or expiration of this Agreement: 1 ("Definitions"), 4 ("Prohibited Uses"), 5 ("Intellectual Property"), 9 ("Limitation of Liability"), 10 ("Term and Termination") 11 ("U.S. Government Restricted Rights"), 12 ("Export Control") and 13 ("General").
  11. U.S. GOVERNMENT RESTRICTED RIGHTS. The software licensed under this Agreement is commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors.
  12. EXPORT CONTROL. Licensee shall not export, directly or indirectly, the Products, technical data or software acquired or to be provided under this Agreement, or the direct product of any such technical data or software, to any country for which the United States Government or any agency thereof, at the time of export, requires an export license or other government approval, without first obtaining such license or approval.
  13. GENERAL. Licensee will not assign or transfer any rights or obligations under this Agreement, whether by merger, operation of law or otherwise, without the prior written consent of BN, and any attempted assignment or transfer without such prior written consent shall be null and void. BN may freely transfer its rights or obligations under this Agreement. If any provision of this Agreement is held by a court of law to be illegal, invalid or unenforceable that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of the Agreement will remain in full force and effect. This Agreement will be governed by the laws of the State of New York without reference to conflict of laws principles. Each of the parties irrevocably consents to the exclusive personal jurisdiction of and waive any venue objections against, the United States District Court for the Southern District of New York, in any litigation arising out of or relating to the Agreement. Notwithstanding the foregoing, BN may bring an action in any jurisdiction to obtain an injunction to protect BN's intellectual property rights. The applicability of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (even if adopted in New York) are explicitly excluded. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole. Any terms or conditions of any invoice or invoice acknowledgement form which are in addition to or inconsistent with the terms of this Agreement will be deemed stricken from such invoice or invoice acknowledgement, notwithstanding any acknowledgement or acceptance of such invoice or invoice acknowledgement. This Agreement constitutes the entire agreement with respect to the subject matter hereunder and supersedes any and all prior or contemporaneous oral or written agreemens, negotiations, communications, understandings and terms, whether express or implied regarding the subject matter. No subsequent alteration, waiver, amendment, change or addition to this Agreement ("Amendment") will be binding and valid unless in writing and signed by the parties, and then such Amendment shall be effective only in the specific instance and for the specific purpose stated. The language of this Agreement will be construed not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this Agreement or any specific term or conditions hereof. The English language will be the controlling language of this Agreement. Any suppliers, licensors, and affiliates of B&N, INC. are direct and intended third-party beneficiaries of this Agreement, including without limitation the disclaimers of warranties and limitations on liability set forth herein. All communications and notices giving pursuant to this Agreement will be in the English language.

ATTACHMENT 1


THIRD PARTY SOFTWARE TERMS AND ATTRIBUTIONS

  1. Notwithstanding anything to the contrary in this Agreement, certain components of the Software are licensed subject to the following:

    Copyright © 2009, Oleander Software, Ltd. All rights reserved.

    Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

    Redistributions of source code must retain the above copyright notice, this list of conditions, and the following disclaimer.

    Redistributions in binary form must reproduce the above copyright notice, this list of conditions, and the following disclaimer in the documentation and/or other materials provided with the distribution.

    Neither the name of Oleander Software nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

    THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  2. The Software contains Adobe® Reader® Mobile software under license from Adobe Systems Incorporated, Copyright © 1995-2009 ADOBE SYSTEMS INCORPORATED. ALL RIGHTS RESERVED. Adobe and Reader are trademarks of Adobe Systems Incorporated.