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 booksellers (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 AUTHORIZED SELLER AGREEMENT (THIS "AGREEMENT").


Table of Contents

  1. Eligibility
  2. Applicable Policies & Guidelines
  3. Licenses
  4. Transaction Fee and Other Financial Terms
  5. Certain Reservation of Rights
  6. Ability to Sell; Warranties to Customers
  7. Sales/Use Taxes
  8. Lawful Conduct; Disclosure to Third Parties
  9. Representations and Warranties
  10. Privacy
  11. Disclaimers
  12. General Release.
  13. Limitation of Liability.
  14. Applicable Law; Venue; No Class Action.
  15. Termination; Survival.
  16. General Provisions
  17. Changes to this Agreement


1. ELIGIBILITY.


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.

2. APPLICABLE POLICIES & GUIDELINES.


You agree to abide by the Policies & Guidelines located at https://sellers.barnesandnoble.com/SellerPortal/Content/SellerPolicies.pdf, 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. LICENSES.

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 (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: 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).

4. TRANSACTION FEE AND OTHER FINANCIAL TERMS.


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.

5. CERTAIN RESERVATION OF RIGHTS.


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.

6. ABILITY TO SELL; WARRANTIES TO CUSTOMERS.


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.

7. SALES/USE TAXES.


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. LAWFUL CONDUCT; DISCLOSURE TO THIRD PARTIES.


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. REPRESENTATIONS AND WARRANTIES.


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," which are located on http://www.barnesandnobleinc.com/for_publishers/Vendor_Guidelines/vendor_and_product_compliance_requirements.html. Seller has provided The Marketplace with a "Vendor Compliance Certification Form" as provided therein and maintains certifications for all manufactured or supplied children's products and other regulated non-children's products as set forth in the "Product Certification Requirements" as set forth therein.

9.2 Seller further represents and warrants to The Marketplace that Listing contains 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; or (c) is counterfeited, illegal, stolen, deceptive or fraudulent.

10. PRIVACY.


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.

11. DISCLAIMERS.


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. INDEMNIFICATION


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. LIMITATION OF LIABILITY.


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. APPLICABLE LAW; VENUE; NO CLASS ACTION.


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. TERMINATION; SURVIVAL.


15.1 The Seller may, in its sole discretion, terminate this Agreement upon sixty (60) days prior written notice to The Marketplace. 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. GENERAL PROVISIONS.


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.

17. CHANGES TO THIS AGREEMENT.


This Agreement may be amended or modified only by a written instrument signed by a duly authorized agent of each party.