Welcome to the Barnes & Noble.com Marketplace (the Marketplace"), a
website owned and operated by Barnes & Noble Booksellers, Inc.("Barnes
& Noble").
The Marketplace provides a venue for third-party
vendors (each herein either "you" or "Seller") and buyers (each a
"Customer") to negotiate and complete transactions for the sale of
books merchandised and inventoried by the Seller.
BY
REGISTERING FOR AND USING THE MARKETPLACE, YOU AGREE TO BE BOUND BY
ALL TERMS AND CONDITIONS OF THIS AGREEMENT (THIS "AGREEMENT").
Seller acknowledges and agrees that use of the Marketplace is
limited to parties that lawfully can enter into and form contracts
under applicable law. For example, minors are not allowed to use the
Marketplace.
You agree to abide by the Policies & Guidelines located at
Seller Policies
& Guidelines, the terms of which are incorporated by reference into,
and made part of, this Agreement. The Policies & Guidelines explain
the processes and set out acceptable conduct and prohibited practices.
The Marketplace may, in its sole discretion, change the Policies &
Guidelines in the future, and shall notify Seller of such changes.
3.1 You hereby grant to each of The Marketplace, its affiliates
and licensees a nonexclusive, worldwide, transferable, royalty-free
right to display and use the information, graphic, trademark,
copyrighted work and other material and information contained in your
listings in any existing or future media, known or unknown, now or at
any later date (the "Listing"). Such right shall include, without
limitation, (i) the right to provide to prospective and actual
Customers the right to access and use the Listing via any website
owned or operated by Barnesandnoble.com to which THE MARKETPLACE
provides Seller's Listings, including but not limited to BN.COM and
its affiliates and (ii) the right to display and use the Listing and
any portion thereof in the promotion and advertisement of the
Marketplace.
3.2 The Marketplace grants the Seller a
limited, nonexclusive, revocable license to access and use the
Marketplace. The foregoing licenses do not include any rights to:
- modify, download (other than page caching), reproduce, copy,
or resell the Marketplace or any portion or derivative thereof;
- copy or download any Seller's account information for the
benefit of any third party;
- enable high volume, automated, electronic processes that
apply to the Marketplace or its systems;
- use any robot, spider, data miner, scraper or other
automated means to access the Marketplace or its systems for any
purpose;
- interfere or attempt to interfere with the proper working of
the Marketplace;
- bypass any Marketplace measures used to prevent or restrict
access to any portion of the Marketplace;
- frame or utilize framing techniques to enclose any
trademark, logo, or other proprietary information (including images,
text, page layout, or form) of The Marketplace;
- use The Marketplace or its affiliates name, trademarks,
services marks or logos in any meta tags or any other "hidden text";
or
- compile, repackage, disseminate or otherwise use data
extracted from the Marketplace.
The foregoing are expressly prohibited; the right to do any of the
foregoing shall require The Marketplace's express written consent
(which may include a written agreement signed by an authorized
representative of The Marketplace).
Submitting or posting any
of the following content in your Listing may, in the exercise of The
Marketplace's sole and unfettered discretion, result in the removal of
said content and/or termination of your account. Please be advised
that the content listed represent examples only and the following list
of content is non-exhaustive. Such content includes but is not limited
to:
- Obscene or Pornographic material: This may include content
that graphically portrays sexual subject matter for the purposes of
sexual arousal and erotic satisfaction.
- Libelous Material: False defamatory statements that
intentionally harm or have the potential to harm an individual or a
third party.
- Infringing Material: Any content to which you do not own the
copyright or otherwise control the right to distribute.
Additionally, content that may violate any other intellectual
property rights, such as trademark and trade dress, and/or content
that may infringe upon a party's proprietary rights, such as the
right of privacy or the right of publicity.
- Illegal Content or Other Offensive Material: As we may
determine in our sole discretion, content that is illegal, content
that violates the laws of any jurisdiction, whether or not we sell
in such jurisdiction, or other content we deem offensive in the
exercise of our sole discretion including but not limited to works
portraying or encouraging incest, rape, bestiality, necrophilia,
pedophilia or content that encourages hate or violence.
- Material Violating Privacy: Any content that violates an
individual's privacy.
- Advertisements: Content contained within your Listing or
other content that primarily seeks to sell a product other than the
Listing itself.
4.1 In consideration of the services provided by The
Marketplace hereunder, The Marketplace shall be entitled to retain a
transaction fee in the amount set forth in the Policies & Guidelines.
See the Policies & Guidelines for Terms of Sale and other financial
terms and conditions of the Marketplace.You are responsible for all
your expenses in connection with this Agreement. You authorize the
Marketplace (and will provide documentation evidencing your
authorization upon request) to verify information (including any
updated information), to obtain credit reports about you from time to
time, to obtain credit authorizations from the issuer of your credit
card, and to charge your Credit Card or debit your Bank Account for
any sums payable by the Seller to the Marketplace (in reimbursement or
otherwise). All payments to the Seller will be remitted to your bank
account through a banking network or by other means specified by us.
4.2 If the Marketplace determines that your actions or
performance may result in returns, chargebacks, claims, disputes,
violations of our terms or policies, or other risks to the Marketplace
or third parties, then the Marketplace may in its sole discretion
withhold any payments to you for as long as it determines any related
risks persist. For any amounts that the Marketplace determines you owe
the Marketplace, it may (a) charge your credit card or any other
payment instrument you provide to the Marketplace; (b) offset any
amounts that are payable by you to the Marketplace (in reimbursement
or otherwise) against any payments the Marketplace may make to you or
amounts it may owe you; (c) invoice you for amounts due to the
Marketplace, in which case you will pay the invoiced amounts upon
receipt; (d) reverse any credits to your bank account; or (e) collect
payment or reimbursement from you by any other lawful means. If the
Marketplace determines that your account has been used to engage in
deceptive, fraudulent, or illegal activity, or to repeatedly violate
our Policies and Guidelines, then the Marketplace may in its sole
discretion permanently withhold any payments to you.
5.1 The Marketplace retains the right to immediately halt any
sale, prevent or restrict access to the Marketplace, or take any other
action to restrict access to (i) any Listing that contains
objectionable material, as determined by The Marketplace in its sole
discretion, (ii) any inaccurate Listings, (iii) inappropriately
categorized items, (iv) any unlawful items, (v) any items that would
otherwise violate the Policies & Guidelines.
5.2 The
Marketplace retains the right to offset from any amounts payable to a
Seller or to seek and obtain reimbursement from such Seller if, in
accordance with the Policies & Guidelines, The Marketplace provides a
refund or reimbursement to a Customer or if The Marketplace receives a
chargeback from a Customer's credit card issuer in connection with the
purchase of the item described in such Seller's Listing.
Seller is obligated to sell to Customers who meet the Seller's
terms contained in the Listing the listed item at the listed price. By
listing an item for sale, Seller represents and warrants to each
prospective Customer that Seller has the right and ability to sell
such item, and that the information contained in the Listing is
accurate, current, and complete and is not misleading or otherwise
deceptive.
Regarding all taxes, unless otherwise agreed to in writing by
the parties, The Marketplace is only responsible for the following:
a)
determining whether any sales or use tax is payable to any
governmental authority; and
b) collecting, reporting and
remitting to the appropriate governmental authority any sales or use
tax that is payable as a result of a sale on the Marketplace.
8.1 The Marketplace may be used only for lawful purposes and in
a lawful manner. Seller agrees to comply with all applicable laws,
statutes, and regulations. Seller may not register under a false name.
Seller may not impersonate any participant or use another
participant's password.
8.2 The Marketplace reserves the right
to report any activity that it suspects violates any law or regulation
to appropriate law enforcement officials, regulators, or other third
parties. In order to cooperate with governmental requests, to protect
The Marketplace's systems and customers, and/or to ensure the
integrity and operation of The Marketplace's business and systems, The
Marketplace may access and disclose any information it considers
necessary or appropriate, including but not limited to Seller contact
details, IP addressing and traffic information, usage history, and
history of posted Listings.
9.1 Seller represents and warrants to The Marketplace that: (i)
the Listings may be reproduced, used, displayed, and distributed as
contemplated by this Agreement without violating or infringing the
rights of any third party, and without obligating The Marketplace to
pay any additional fees to any party; (ii) Seller will obtain all
rights, permissions and approvals from any third party (including but
not limited to electronic reproduction rights) necessary for use of
Listings in connection with the Marketplace; (iii) the Seller's data
(including without limitation the Listings) provided to the
Marketplace is accurate; (iv) it owns or has the authority to sell all
of the items displayed in its Listings and to convey free and clear
title to such item upon consummation of a transaction with a Customer
(v) it will comply with all applicable laws, rules and regulations
(international, domestic, state, local and regional);and (vi) it has
reviewed and is in compliance with The Marketplace's
Vendor
Product and Compliance Requirements and
Vendor
Code of Conduct.
9.2 Seller further represents and
warrants to The Marketplace that Listing does not contain any item
that: (a) infringes any third-party intellectual property
rights (including copyright, trademark, patent, and trade secrets) or
other proprietary rights (including rights of publicity or privacy);
(b) constitutes libel or defamation; (c) is counterfeited, illegal,
stolen, deceptive or fraudulent; or (d) encourages hate or violence.
Seller shall not use any information received via the
Marketplace, including Customer contact information, for the purposes
of solicitation, advertising, spamming, harassment, invasion of
privacy or otherwise objectionable conduct. Furthermore. Seller shall
not use any information received via the Marketplace, including
Customer contact information, in a manner that would violate, or give
The Marketplace or any of its licensors liability under, any
applicable law including without limitation the Controlling the
Assault of Non-Solicited Pornography and Marketing Act of 2003
("CAN-SPAM Act") and any CAN-SPAM Act regulations.
THE MARKETPLACE AND ACCESS TO ANY MARKETPLACE WEBSITE ARE
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE MARKEPLACE MAKES
NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION: (I) THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT; (II) THAT THE MARKETPLACE OR ANY BARNES AND NOBLE
WEBSITE WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE,
ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR;
(III) THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED VIA
THE MARKETPLACE WILL BE AS REPRESENTED BY SELLERS, AVAILABLE FOR SALE,
LAWFUL TO SELL, OR THAT SELLERS OR CUSTOMERS WILL PERFORM AS PROMISED;
(IV) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF
TRADE; AND (V) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN
TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF THE MARKETPLACE.
TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE MARKEPLACE
DISCLAIMS ANY AND ALL SUCH WARRANTIES.
12.1 Indemnification. Seller hereby agrees to indemnify and
hold harmless The Marketplace and its parent, subsidiaries and
affiliates, and their respective directors, officers, employees,
agents, shareholders, partners, members and other owners
(collectively, "Indemnified Parties"), against any and all claims,
actions, demands, liabilities, losses, damages, judgments,
settlements, costs and expenses (including reasonable attorneys' fees
and expenses) brought about by any person (any or all of the foregoing
hereinafter referred to as "Claims"), insofar as such Claim (or
actions in respect thereof) arise out of or are based on (i) its
breach of this Agreement and, any breach of the representations,
warranties, covenants or agreements it makes herein; (ii) intentional
misconduct; or (iii) gross negligence.
12.2 Procedures. With
respect to any claims falling within the scope of the foregoing
indemnification, Seller agrees to keep the Indemnified Parties fully
advised with respect to such claims and the progress of any suits, and
the Indemnified Parties shall have the right to participate, at
Seller's expense, in any suit instituted against them and to designate
attorneys to defend them. Seller shall not settle, compromise or
otherwise enter into any agreement regarding the disposition of any
claim against the Indemnified Parties without the prior written
consent of The Marketplace.
13.1 EXCEPT FOR ANY BREACH OF SECTION 8.1 OR SECTION 10, OR
AUTHORIZED SELLER'S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER
PARTY THE MARKETPLACE WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY,
TORT, OR OTHERWISE) TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS OR
REVENUES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF
SUCH PARTY HAS BEEN ADISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS
OR DAMAGE..
13.2 EXCEPT FOR ANY BREACH OF SECTION 8 OR
SECTION 10, OR AUTHORIZED SELLER'S INDEMNIFICATION OBLITATIONS
HEREUNDER, NEITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN ANY CIRCUMSTANCE IS
LIMITED TO THE GREATER OF (A) TEN THOUSAND DOLLARS (US $10,000) OR (B)
THE TOTAL DOLLAR AMOUNT OF TRANSACTION FEES PAID TO THE MARKETPLACE BY
SUCH SELLER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
ACTION OR CLAIM GIVING RISE TO SUCH LIABILITY.
14.1 The Marketplace is arranged, sponsored, and managed by The
Marketplace in the State of New York. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
without giving effect to the conflict of law principles thereof.
14.2
Any action or claim (including claims for injunctive or other
equitable relief) shall be exclusively adjudicated by a court of
competent jurisdiction located in New York County, New York.
14.3
Any controversy or claim arising under this Agreement, including any
breach hereof, or the Marketplace shall be litigated on an individual
basis and shall not be consolidated with any claim or controversy of
any other party. The foregoing shall not preclude The Marketplace from
seeking any injunctive relief in state, federal, or foreign courts for
protection of The Marketplace or its licensors' intellectual property
rights.
15.1 The Seller may, in its sole discretion, terminate this
Agreement The Seller is responsible for completing any and all
transactions accepted prior to their termination of the agreement
including shipment, customer service, and refund processing.
15.2
The Marketplace may, in its sole discretion, terminate this Agreement,
limit access to the Marketplace services, discontinue the Marketplace,
or cancel any open orders without notice for any reason.
15.3
The following sections shall survive termination of this Agreement:
Section 2; Section 3.1; Section 5.2; Section 7; Section 8.2; Sections
10 through 16.
15.4 Effect of Termination. In the event
of termination for any reason (i) The Marketplace shall disburse any
funds owed to Seller no later than sixty (60) days following the
effective date of such termination; and (ii) The Marketplace shall use
commercially reasonable efforts to cease using the Listings, but in
any event no later than thirty (30) days following the effective date
of such termination. Furthermore, Seller hereby authorizes The
Marketplace to charge the Seller's credit card for refunds payable to
Customers. The Marketplace shall provide Seller with a written invoice
for any amounts so charged.
16.1 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof,
and supersedes and cancels all prior and contemporaneous agreements,
claims, representations, and understandings of the parties in
connection with the subject matter hereof. If the Seller has entered
into a separate signed written agreement with The Marketplace with
respect to the subject matter hereof and there is a conflict between
any provision of this Agreement and the provision of said other
agreement, the provision of said other agreement shall govern.
16.2 No Agency; Third-Party Beneficiary. The Marketplace is not
the agent, fiduciary, trustee, or other representative of Seller.
Nothing expressed or mentioned in or implied from this Agreement is
intended or shall be construed to give to any person other than the
parties hereto any legal or equitable right, remedy, or claim under or
in respect to this Agreement.
16.3 Severability. In the
event that any provision of this Agreement becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void,
this Agreement shall continue in full force and effect without said
provision; provided, that no such severability shall be effective if
it materially and adversely changes the economic impact of this
Agreement on any party.
16.4 No Waiver. The Marketplace
will not be considered to have waived any of its rights or remedies
described in this Agreement unless the waiver is in writing and signed
by The Marketplace. No delay or omission by The Marketplace in
exercising our rights or remedies will impair or be construed as a
waiver. Any single or partial exercise of a right or remedy will not
preclude further exercise of any other right or remedy. The
Marketplace's failure to enforce the strict performance of any
provision of this Agreement will not constitute a waiver of The
Marketplace's right to subsequently enforce such provision or any
other provisions of this Agreement.
16.5 Intellectual
Property. Seller acknowledges and agrees that (i) The Marketplace's
and its licensors' patents, trademarks, trade names, service marks,
copyrights and other intellectual property (collectively,
"Intellectual Property") is and shall remain the sole property of The
Marketplace or its licensors as the case may be and (ii) nothing in
this Agreement shall confer in Seller any right of ownership or
license rights in the Intellectual Property. Seller shall not now or
in the future contest the validity of the Intellectual Property.
16.6 Publicity. Neither party shall, without the other party's
prior written consent, use the name or any trademark of the other
party in any manner, including, without limitation, in any press
release or other advertising materials.
These terms were last updated July 2019.