Terms and Conditions
Welcome to the Dawg Post.com website (the “Dawg Post.com Site”), a website owned and operated by Dawg Post Booksellers, Inc.
These Terms of Use constitute a legally binding agreement between you and Dawg Post. Please read these Terms of Use, the terms and conditions posted through any Dawg Post Device or Application, or any additional terms and conditions, policies and guidelines posted on any other website, application, or services provided by Dawg Post (collectively, the “Dawg Post Services”) carefully before using the Dawg Post Services.
The terms and conditions stated below, along with the policies and guidelines located throughout the Dawg Post Services (collectively herein the “Terms of Use”) identify what a user of the Dawg Post Services (“you” or “your” or “User” or “Users”) can expect from Dawg Post Booksellers, Inc., its parent, subsidiaries, and affiliates (together referred to herein as “Dawg Post”, “we”, “us” or “our”), and/or persons who provide products or services to Dawg Post customers either directly or through the Dawg Post Services (“Dawg Post Providers”) and what Dawg Post in turn expects from Users. By visiting any Dawg Post Service, creating an account, making a purchase via the Dawg Post Services, downloading a Dawg Post application, joining any Dawg Post online interactive community, posting a review or creating a profile, or otherwise joining, viewing, visiting or contributing to Dawg Post user forums, blogs, or interactive features, you agree that you have read, understood, and agree to be bound by the Terms of Use. If you do not agree to be bound by these Terms of Use and to follow all applicable laws, you should leave the Dawg Post.com Site or any other Dawg Post Service immediately.
These Terms and Conditions of Use require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please see Section 16 for details, including instructions to follow in order to opt out of binding arbitration and the class action waiver.
Separate terms and conditions apply to the purchase, download and use of digital content such as software applications, books, magazines, newspapers, periodicals, movies and television shows (“Digital Content”). To review the Terms of Service for such Digital Content, click here.
1. LICENSES AND RESTRICTIONS
1.1 Licenses. Dawg Post grants the User a limited, nonexclusive, revocable license to access and make personal, non-commercial use (unless User has a business relationship with Dawg Post documented in a separate agreement) of the Dawg Post Services, its Content (as that term is defined in Section 3 below. Additional terms and conditions apply to User Created Content, as that term is defined in Section 11 below. Dawg Post further grants the User a limited, nonexclusive and revocable right to create a hyperlink to the Dawg Post Services so long as the link does not portray Dawg Post, its subsidiaries, and affiliates, or their respective products or services in a false, misleading, derogatory, or otherwise offensive matter.
1.2 Restrictions. The licenses in Section 1.1 do not include any rights to:
(a) modify, download (other than page caching), reproduce, copy, or resell the Dawg Post Services, the Content or any portion or derivative thereof;
(b) commercially use the Dawg Post Services, the Content or any portion derivative thereof (unless User has a business relationship with Dawg Post, in which case such commercial use will be governed by the terms applicable to such business relationship);
(c) copy or download any User’s account or profile information for the benefit of any third party;
(d) enable high volume, automated, electronic processes that apply to the Dawg Post Services or its systems, the Content or any portion or derivative thereof;
(e) use any robot, spider, data miner, crawler, scraper or other automated means to access or index the Dawg Post Services or its systems, the Content or any portion or derivative thereof for any purpose;
(f) interfere or attempt to interfere with the proper working of the Dawg Post Services;
(g) bypass any measures used by Dawg Post to prevent or restrict access to any portion of the Dawg Post Services, the Content or any portion or derivative thereof;
(h) frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Dawg Post;
(i) use Dawg Post’s name, trademarks, services marks or logos in any meta tags or any other “hidden text”; or
(j) compile, repackage, disseminate or otherwise use data extracted from the Dawg Post Services.
The foregoing are expressly prohibited and the right to do any of the foregoing shall require Dawg Post’s express written consent (which may include a written agreement signed by an authorized representative of Dawg Post). Any unauthorized use of the Dawg Post Services, the Content or any portion or derivative thereof shall terminate any license or permission granted by Dawg Post.
2. TRADEMARKS
Dawg Post, or its parent, subsidiaries, or affiliates, or third parties from whom Dawg Post has permission, own the trademarks or service marks that are used on the Dawg Post Services. All rights are reserved. These and other graphics, logos, service marks, trademarks and trade dress of Dawg Post and its licensors may not be used without prior written consent of Dawg Post or its licensor, as the case may be. Without limiting the foregoing, no Dawg Post trademark or trade dress may be used in connection with any product or service that is not Dawg Post’s, in any manner that is likely to cause confusion among Users, or in any manner that disparages or discredits Dawg Post. To review a list of Dawg Post’s Trademarks, click here.
3. CONTENT
3.1 Proprietary Rights. User acknowledges that the Dawg Post Services contain certain content (such as text, graphics, photographs, video, audio, code, and other data or information relating to any subject) (“Content”), that is protected by copyrights, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Content is or may be copyrighted as a collective work under the U.S. copyright laws, and Dawg Post owns a copyright in the selection, coordination, arrangement, and enhancement of such Content on the Dawg Post Services. User may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any such Content, in whole or in part. If no specific restrictions are displayed, Users may make copies of select portions of the Content, provided that the copies are made only for User’s personal use and that User maintains any notices contained in the Content, such as all copyright notices, trademark legends, or other proprietary rights notices. Except as provided in the preceding sentence or as permitted by the fair use privilege under the U.S. copyright laws (see, e.g., 17 U.S.C. Section 107), User may not upload, post, reproduce, or distribute in any way Content protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other property right. In addition to the foregoing, use of any software Content shall be governed by these terms and any software license agreement accompanying such software.
3.2 Third-Party Content. Dawg Post is a distributor and not a publisher of Content supplied by third parties and Users. Dawg Post has no editorial control over such Content. Dawg Post is not obligated to review Content, including User Created Content, as that term is defined in Section 11 below. Any opinions, advice, statements, services, offers, or other information that constitutes part of Content, including User Created Content, expressed or made available by third parties, including any other User, are those of the respective authors or distributors and not of Dawg Post or any Dawg Post Provider, unless expressly stated otherwise. Neither Dawg Post nor any Dawg Post Provider makes any representation, warranty or guarantee on the accuracy, completeness, or usefulness of any third-party Content unless otherwise expressly stated. In many instances, the Content, including User Created Content, available through the Dawg Post Services represents the opinions and judgments of the third party that provides such Content. Under no circumstance shall either Dawg Post or any Dawg Post.com Provider be liable for any loss, damage or harm caused by a User’s reliance on information obtained through the Dawg Post Services. It is the responsibility of User to evaluate the accuracy, completeness or usefulness of the information, opinion, advice, or Content, including User Created Content, available through the Dawg Post Services.
4. PRICES
4.1 Prices. The price for an item on the Dawg Post Services may differ from the price shown in a User’s shopping cart and it is possible that such price may increase or decrease between the time the item is placed in a shopping cart and the time that the purchase is actually made. On rare occasions, an item may be priced incorrectly on the Dawg Post Services. If the price for the item on the Dawg Post Services is incorrect and is actually higher than the price provided at the time of purchase, then, at the sole discretion of Dawg Post, Dawg Post may either (a) contact the User for instructions before shipping the item or charging the User for such item; (b) cancel the order for such item and notify the User of such cancellation; or (c) ship the item at the incorrect price to the benefit of the User.
4.2 Notice. Please note that this policy regarding prices applies only to items sold and shipped by Dawg Post. Any purchases from any third-party sellers on the Dawg Post Services may be subject to different policies in the event of an incorrectly priced item.
5. RISK OF LOSS
The risk of loss and title for all items purchased via the Dawg Post Services pass to the User upon delivery of the item to the carrier.
6. PRODUCT DESCRIPTION
The items offered for sale on the Dawg Post Services contain descriptions that are provided directly by the publisher, manufacturer, developer or distributor of such item. Dawg Post does not represent or warrant that the descriptions of such items are accurate or complete. IF A USER PURCHASES AN ITEM FROM Dawg Post THAT IS NOT AS DESCRIBED IN THE Dawg Post SERVICES, THE USER’S SOLE AND EXCLUSIVE REMEDY IS TO RETURN SUCH ITEM IN AN UNUSED CONDITION FOR A REFUND OF THE PURCHASE PRICE.
7. AGE OF USERS
Our products and services are marketed for and directed towards purchase by adults or with the consent of adults. Individuals under the age of 18 (“Minors”) are not permitted to use Dawg Post websites without the supervision of a parent or legal guardian. Furthermore, we do not knowingly collect or solicit personal information from children under the age of 13 or knowingly allow such persons to register for an online account or to post personal information on our websites. Should we learn that someone under the age of 13 has provided any personal information to or on any of the Dawg Post websites, we will remove that information as soon as possible.
8. TERMINATION OF USAGE
8.1 Termination Rights. Dawg Post may issue a warning, temporarily suspend, indefinitely suspend or terminate any User’s right to use or access all or any part of the Dawg Post Services including any account thereon, without notice, for any reason in Dawg Post’s sole discretion, including, without limitation, violation of the Terms of Use, Dawg Post’s belief that such access would violate any applicable law or would be harmful to the interests of, or potentially cause financial loss or legal liability to, Dawg Post, any Dawg Post.com Provider or another User.
8.2 Restricted Users. In certain cases, in Dawg Post’s sole discretion, Dawg Post may provide written notice (a “Restriction Notice”) to a User (a “Restricted User”) to inform such Restricted User that (i) his or her right to use or access any part of the Dawg Post Services has been terminated, including the right to use, access or create any account thereon; (ii) that Dawg Post refuses to provide any services to such Restricted User; and (iii) any subsequent orders placed by a Restricted User will be subject to cancellation. Other conditions may apply and shall be set forth in the Restriction Notice.
9. INDEMNITY
User agrees to indemnify, defend and hold Dawg Post (and its affiliates, employees, contractors, agents, suppliers and partners) and each Dawg Post Provider harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including reasonable attorneys' fees, brought by any third party due to or arising out of (i) such User’s use of the Dawg Post Services, (ii) any alleged breach or violation of the Terms of Use or (iii) such User’s violation of any law or the rights of a third party. Dawg Post reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which such User is required to indemnify Dawg Post, and User agrees to cooperate with Dawg Post’s defense of such matter. This defense and indemnification obligation is intended to extend to the fullest extent permitted by law and will survive the Terms of Use and your use of the Dawg Post Services.
10. PASSWORD AND ACCOUNT SECURITY
10.1 Account Password. Every User that has an account for the Dawg Post Services is responsible for (i) keeping his or her account password confidential and secured; (ii) avoiding unauthorized access to such User’s computer or other devices; and (iii) keeping the contact information associated with that account current. User acknowledges that it is necessary to keep the e-mail address associated with his or her account current because although the User may be able to log into his or her Dawg Post account using an old e-mail address, such User will not receive messages from Dawg Post about his or her orders and inquiries or other matters.
10.2 Account Security. User accepts full responsibility for all activities that occur within such User’s Dawg Post account or within the Dawg Post Services interactive community, whether or not authorized by the User.
11. INTERACTIVE COMMUNITY
11.1 Interactive Community Users. The Dawg Post Services offer numerous opportunities for interactive activities, which enable Users to communicate with each other directly, or which enable Users to post information and other material that will be visible to other Users of those services (“Interactive Community”). This Section 11, Interactive Community, applies to the activities of persons who are using the interactive features within the Dawg Post Services (“Interactive Community Users”). The scope of these features may change from time to time, with or without notice. You are using Interactive Community features if you post a review or blog entry, create a list, create a profile, submit any other User Created Content, as defined below, or otherwise participate in any interactive feature.
11.2 Interactive Community Services. Interactive Community features may be used only for lawful purposes in accordance with these Terms of Use. If you are using any Dawg Post Services Interactive Community features, and post, publish or communicate any information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material on or through the Interactive Community features, please choose carefully the information that you post and/or provide to other Users (“User Created Content”). User is prohibited from posting on or transmitting through the Dawg Post Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including, but not limited to, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Dawg Post reserves the right, in its sole discretion, to reject, refuse to post or remove any posting or other User Created Content (including private messages) by you, or to deny, restrict, suspend, or terminate access to all or any part of the Interactive Community features at any time, for any or no reason, with or without prior notice or explanation, and without liability.
11.3 Right to Remove Profile or Terminate Access. Dawg Post reserves the right, in its sole discretion, to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Interactive Community features for any reason.
11.4 Misuse of Interactive Community Services. If you become aware of misuse of the Interactive Community features, including any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violates any applicable law, please activate the “Flag” feature on the page in question.
11.5 User Created Content.
(a) Notwithstanding the foregoing, Dawg Post assumes no responsibility for ongoing monitoring of the Dawg Post Services or for removal or editing of any User Created Content, even after receiving notice. Dawg Post assumes no liability for any action or inaction with respect to conduct, communication, or User Created Content within the Interactive Community. You are responsible for your interactions with other Users.
(b) You may not post User Created Content that: involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”; contains restricted or password only access pages or hidden page or images (those not linked to or not otherwise from another accessible page); solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; involves commercial activities and/or sales such as contests, sweepstakes, barter, advertising, or pyramid schemes; includes a photograph or video of another person that you have posted without that person’s consent; circumvents or modifies, or attempts to circumvent or modify, or encourages or assists any other person in circumventing or modifying, any security technology or software that is part of the Dawg Post Services; involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network; covers or obscures the banner advertisements on your personal profile page; involves any automated use of the Dawg Post Services, such as, but not limited to, using scripts to add friends or send comments or messages; interferes with, disrupts, or creates an undue burden on the Dawg Post Services or the networks or services connected to the Interactive Community services; impersonates or attempts to impersonate another Interactive Community User, person or entity; uses the account, username, or password of another Interactive Community User at any time or discloses your password to any third party or permits any third party to access your account; sells or otherwise transfers your profile; uses any information obtained from the Dawg Post Services in order to harass, abuse, or harm another person or entity, or attempting to do the same.
(c) Interactive Community Users may upload to or otherwise submit to Dawg Post for distribution on the Dawg Post Services only (i) User Created Content that is not subject to any copyright or other proprietary rights restrictions; or (ii) User Created Content in which the owner or licensor has given express authorization for Dawg Post to distribute over the Internet. You may not upload, embed, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Any copyrighted or other proprietary User Created Content distributed with the consent of a copyright owner should contain a phrase such as “Copyright, owned by [name of owner]; used by permission.” Dawg Post is entitled to presume that all User Created Content conforms to the foregoing requirements. The unauthorized submission of copyrighted or other proprietary User Created Content is illegal and could subject the User to personal liability for damages in a civil suit as well as criminal prosecution. Interactive Community Users assume all liability for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from an unauthorized submission or submission of User Created Content. Dawg Post assumes no liability for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from any User Created Content.
(d) By submitting User Created Content within the Interactive Community, Interactive Community Users automatically grant, or represent and warrant that the owner or authorized licensor of such User Created Content has expressly granted, Dawg Post, the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, publish, translate, sublicense, copy, modify, delete, enhance and distribute the User Created Content in whole or in part worldwide and/or to incorporate such User Created Content in other works in any form, media, or technology now known or hereafter developed for the full term of any copyright that may exist in such User Created Content. Subject to this grant, the licensor of User Created Content submitted to Dawg Post retains any and all rights which may exist in such User Created Content.
12. NOTICES
User consents to electronic communications with Dawg Post, whether addressed to the e-mail address associated with such User’s Dawg Post account or posted on the Dawg Post Services. User acknowledges and agrees that any communication via e-mail or by postings on the Dawg Post Services satisfies any legal requirement that such communications be made in writing.
13. DISCLAIMERS AND LIMITATION OF LIABILITY
13.1 DISCLAIMER OF WARRANTIES.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS AND LICENSORS PROVIDE THE Dawg Post SERVICES AND ANY Dawg Post ACCOUNT ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE USE OF THE Dawg Post SERVICES OR ANY Dawg Post ACCOUNT IS AT YOUR SOLE RISK. NEITHER WE NOR OUR SUPPLIERS, AFFILIATES OR LICENSORS (AS APPLICABLE) MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, THAT THE Dawg Post SERVICES, ANY Dawg Post ACCOUNT OR THEIR USE WILL: (I) BE UNINTERRUPTED OR SECURE; (II) BE FREE OF DEFECTS, INACCURACIES OR ERRORS; OR (III) OTHERWISE MEET YOUR REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, LACK OF HIDDEN OR LATENT DEFECTS, SECURITY, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT AND NON-INFRINGEMENT OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.
(b) Dawg Post IS NOT RESPONSIBLE FOR AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY, USER CREATED CONTENT POSTED ON THE Dawg Post SERVICES OR THROUGH THE Dawg Post SERVICES. USER CREATED CONTENT DOES NOT NECESSARILY REFLECT THE OPINIONS OR POLICIES OF Dawg Post. PROFILES AND THIRD PARTY APPLICATIONS CREATED AND POSTED BY USERS ON THE Dawg Post SERVICES MAY CONTAIN LINKS TO OTHER WEBSITES. Dawg Post IS NOT RESPONSIBLE FOR THE CONTENT, ACCURACY OR OPINIONS EXPRESSED ON SUCH WEBSITES, AND SUCH WEBSITES ARE NOT NECESSARILY INVESTIGATED, MONITORED OR CHECKED FOR ACCURACY OR COMPLETENESS BY Dawg Post. INCLUSION OF ANY LINKED WEBSITE ON THE Dawg Post SERVICES DOES NOT IMPLY APPROVAL OR ENDORSEMENT OF THE LINKED WEBSITE BY Dawg Post. WHEN YOU ACCESS THESE THIRD-PARTY SITES, YOU DO SO AT YOUR OWN RISK. Dawg Post IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE Dawg Post SERVICES.
(c) WE TAKE NO RESPONSIBILITY FOR THIRD-PARTY ADVERTISEMENTS OR THIRD-PARTY APPLICATIONS THAT ARE POSTED ON OR THROUGH OR MADE AVAILABLE ON THE Dawg Post SERVICES, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DO NOT TAKE ANY RESPONSIBILITY FOR ANY GOODS OR SERVICES PROVIDED BY THIRD-PARTY ADVERTISERS ON THE Dawg Post SERVICES.
13.2 LIMITATION OF LIABILITY.
(a) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST REVENUE, LOST OR CORRUPTED DATA, OR DAMAGE TO REPUTATION OR GOODWILL OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR LOSSES ARISING FROM, RELATING TO OR CONNECTED WITH YOUR USE OF (OR INABILITY TO USE) THE Dawg Post SERVICES OR ANY Dawg Post ACCOUNT REGARDLESS OF THE CAUSE OF ACTION ON WHICH THE CLAIM IS BASED (INCLUDING NEGLIGENCE, TORT, CONTRACT, STRICT LIABILITY, PRODUCT DEFECT OR MISREPRESENTATION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE ABOVE EXCLUSIONS OF LIABILITY ARE NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, Dawg Post SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE USE OF THE Dawg Post SERVICES OR THE MATERIALS ON THE Dawg Post SERVICES UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT OR RECKLESS ACTS OR OMISSIONS.
(b) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR AGGREGATE LIABILITY RELATED TO THE Dawg Post SERVICES OR YOUR Dawg Post ACCOUNT EXCEED US$100 IN TOTAL (OR THE EQUIVALENT IN LOCAL CURRENCY, TO THE EXTENT THAT LOCAL CURRENCY NEEDS TO APPLY).
14. SEVERABILITY
The provisions of these Terms of Use are intended to be severable. If for any reason any provision of these Terms of Use shall be held invalid or unenforceable in whole or in part in any applicable jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction. The failure of Dawg Post to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision.
15. APPLICABLE LAW; JURISDICTION
15.1 Applicable Law. The Dawg Post Services are created and controlled by Dawg Post in the State of New York. The laws of the State of New York will govern the Terms of Use, without giving effect to any principles of conflicts of laws.
15.2 Jurisdiction. Each of Dawg Post and User agrees to submit to the nonexclusive personal jurisdiction of the courts located within New York County, New York and waives any objection to the laying of venue of any litigation in said courts.
16. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND Dawg Post TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
Any dispute or claim arising from, relating to, or connected with these Terms of Use, the Dawg Post Services, the Dawg Post Content including Digital Content, any Dawg Post account and/or any Digital Library (each a “Claim”) will be resolved by binding arbitration (rather than in court). All Claims submitted to arbitration under these Terms of Use will be administered by the American Arbitration Association under its Commercial Arbitration Rules (including 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. The place of arbitration shall be the State of New York or, where limited by applicable law, the jurisdiction in which you reside or may be conducted by telephone, online or based solely upon written submissions where no in-person appearance is required. Notwithstanding this Section 16, 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.
WAIVER OF CLASS ACTIONS. We each agree that 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. WE EACH AGREE THAT WE ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING ANY RIGHT WE MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THESE DIGITAL CONTENT TERMS OF SALE.
OPTION TO OPT-OUT. To opt out of the arbitration and class-action waiver terms in this Section 16, you must notify us in writing within 30 days of the date that you first accept these Terms and Conditions of Use (unless a longer period is required by applicable law). You must mail your written notification to Dawg Post, Attention: Legal Department to 33 East 17th St., New York, New York 10003 and your written notification must include your name, address and an unequivocal statement that you want to opt-out of this arbitration agreement.
You acknowledge and agree that, regardless of any statute or law to the contrary, any Claim or cause of action you may have must be filed within one (1) calendar year after such Claim or cause of action arises, or forever be barred.
For purposes of any Claim that is not subject to the arbitration procedures in this Section 16, we both agree to the governing law and jurisdiction as set out in Section 15.1 above.
17. EXPORT
Any software distributed by Dawg Post is “commercial computer software” or “commercial computer software documentation.” The U.S. Government’s rights with respect to the Dawg Post Services are limited by these Terms and Conditions of Use, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. User agrees that by installing, copying, or otherwise using the Dawg Post Services that: (i) User does not reside in a country subject to embargo or export controls by the U.S. Government; (ii) User is not on the List of Denied Persons as published by the U.S. government; and (iii) User will not use the Dawg Post Services for any illegal purpose. Because the Dawg Post Services, and related technical data are subject to U.S. export controls, User agrees that User shall not upload, export or “re-export” (transfer) the Dawg Post Services or any Content, including User Created Content, unless User has complied with all applicable U.S. export controls.
18. ADDITIONAL TERMS AND CONDITIONS
In addition to the policies and guidelines located throughout the Dawg Post Services, the following policies are incorporated into the Terms of Use:
Copyright Policy: http://www.barnesandnoble.com/h/copyright-policy (also accessible via a link on the bottom of the Dawg Post.com Site pages)
Privacy Policy: http://www.barnesandnoble.com/h/help/privacy-policy (also accessible via a link on the bottom of the Dawg Post.com Site pages)
19. ACKNOWLEDGMENT
The Terms of Use, including all documents referenced herein, represents the entire understanding between User and Dawg Post regarding User’s relationship with Dawg Post and supersedes any prior or contemporaneous statements or representations. Headings used in the Terms of Use are for reference only and shall not affect the meaning of any terms. As used in these Terms of Use, “including” means “including, without limitation.”
These Terms of Use constitute a legally binding agreement between you and Dawg Post. Please read these Terms of Use, the terms and conditions posted through any Dawg Post Device or Application, or any additional terms and conditions, policies and guidelines posted on any other website, application, or services provided by Dawg Post (collectively, the “Dawg Post Services”) carefully before using the Dawg Post Services.
The terms and conditions stated below, along with the policies and guidelines located throughout the Dawg Post Services (collectively herein the “Terms of Use”) identify what a user of the Dawg Post Services (“you” or “your” or “User” or “Users”) can expect from Dawg Post Booksellers, Inc., its parent, subsidiaries, and affiliates (together referred to herein as “Dawg Post”, “we”, “us” or “our”), and/or persons who provide products or services to Dawg Post customers either directly or through the Dawg Post Services (“Dawg Post Providers”) and what Dawg Post in turn expects from Users. By visiting any Dawg Post Service, creating an account, making a purchase via the Dawg Post Services, downloading a Dawg Post application, joining any Dawg Post online interactive community, posting a review or creating a profile, or otherwise joining, viewing, visiting or contributing to Dawg Post user forums, blogs, or interactive features, you agree that you have read, understood, and agree to be bound by the Terms of Use. If you do not agree to be bound by these Terms of Use and to follow all applicable laws, you should leave the Dawg Post.com Site or any other Dawg Post Service immediately.
These Terms and Conditions of Use require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please see Section 16 for details, including instructions to follow in order to opt out of binding arbitration and the class action waiver.
Separate terms and conditions apply to the purchase, download and use of digital content such as software applications, books, magazines, newspapers, periodicals, movies and television shows (“Digital Content”). To review the Terms of Service for such Digital Content, click here.
1. LICENSES AND RESTRICTIONS
1.1 Licenses. Dawg Post grants the User a limited, nonexclusive, revocable license to access and make personal, non-commercial use (unless User has a business relationship with Dawg Post documented in a separate agreement) of the Dawg Post Services, its Content (as that term is defined in Section 3 below. Additional terms and conditions apply to User Created Content, as that term is defined in Section 11 below. Dawg Post further grants the User a limited, nonexclusive and revocable right to create a hyperlink to the Dawg Post Services so long as the link does not portray Dawg Post, its subsidiaries, and affiliates, or their respective products or services in a false, misleading, derogatory, or otherwise offensive matter.
1.2 Restrictions. The licenses in Section 1.1 do not include any rights to:
(a) modify, download (other than page caching), reproduce, copy, or resell the Dawg Post Services, the Content or any portion or derivative thereof;
(b) commercially use the Dawg Post Services, the Content or any portion derivative thereof (unless User has a business relationship with Dawg Post, in which case such commercial use will be governed by the terms applicable to such business relationship);
(c) copy or download any User’s account or profile information for the benefit of any third party;
(d) enable high volume, automated, electronic processes that apply to the Dawg Post Services or its systems, the Content or any portion or derivative thereof;
(e) use any robot, spider, data miner, crawler, scraper or other automated means to access or index the Dawg Post Services or its systems, the Content or any portion or derivative thereof for any purpose;
(f) interfere or attempt to interfere with the proper working of the Dawg Post Services;
(g) bypass any measures used by Dawg Post to prevent or restrict access to any portion of the Dawg Post Services, the Content or any portion or derivative thereof;
(h) frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Dawg Post;
(i) use Dawg Post’s name, trademarks, services marks or logos in any meta tags or any other “hidden text”; or
(j) compile, repackage, disseminate or otherwise use data extracted from the Dawg Post Services.
The foregoing are expressly prohibited and the right to do any of the foregoing shall require Dawg Post’s express written consent (which may include a written agreement signed by an authorized representative of Dawg Post). Any unauthorized use of the Dawg Post Services, the Content or any portion or derivative thereof shall terminate any license or permission granted by Dawg Post.
2. TRADEMARKS
Dawg Post, or its parent, subsidiaries, or affiliates, or third parties from whom Dawg Post has permission, own the trademarks or service marks that are used on the Dawg Post Services. All rights are reserved. These and other graphics, logos, service marks, trademarks and trade dress of Dawg Post and its licensors may not be used without prior written consent of Dawg Post or its licensor, as the case may be. Without limiting the foregoing, no Dawg Post trademark or trade dress may be used in connection with any product or service that is not Dawg Post’s, in any manner that is likely to cause confusion among Users, or in any manner that disparages or discredits Dawg Post. To review a list of Dawg Post’s Trademarks, click here.
3. CONTENT
3.1 Proprietary Rights. User acknowledges that the Dawg Post Services contain certain content (such as text, graphics, photographs, video, audio, code, and other data or information relating to any subject) (“Content”), that is protected by copyrights, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Content is or may be copyrighted as a collective work under the U.S. copyright laws, and Dawg Post owns a copyright in the selection, coordination, arrangement, and enhancement of such Content on the Dawg Post Services. User may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any such Content, in whole or in part. If no specific restrictions are displayed, Users may make copies of select portions of the Content, provided that the copies are made only for User’s personal use and that User maintains any notices contained in the Content, such as all copyright notices, trademark legends, or other proprietary rights notices. Except as provided in the preceding sentence or as permitted by the fair use privilege under the U.S. copyright laws (see, e.g., 17 U.S.C. Section 107), User may not upload, post, reproduce, or distribute in any way Content protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other property right. In addition to the foregoing, use of any software Content shall be governed by these terms and any software license agreement accompanying such software.
3.2 Third-Party Content. Dawg Post is a distributor and not a publisher of Content supplied by third parties and Users. Dawg Post has no editorial control over such Content. Dawg Post is not obligated to review Content, including User Created Content, as that term is defined in Section 11 below. Any opinions, advice, statements, services, offers, or other information that constitutes part of Content, including User Created Content, expressed or made available by third parties, including any other User, are those of the respective authors or distributors and not of Dawg Post or any Dawg Post Provider, unless expressly stated otherwise. Neither Dawg Post nor any Dawg Post Provider makes any representation, warranty or guarantee on the accuracy, completeness, or usefulness of any third-party Content unless otherwise expressly stated. In many instances, the Content, including User Created Content, available through the Dawg Post Services represents the opinions and judgments of the third party that provides such Content. Under no circumstance shall either Dawg Post or any Dawg Post.com Provider be liable for any loss, damage or harm caused by a User’s reliance on information obtained through the Dawg Post Services. It is the responsibility of User to evaluate the accuracy, completeness or usefulness of the information, opinion, advice, or Content, including User Created Content, available through the Dawg Post Services.
4. PRICES
4.1 Prices. The price for an item on the Dawg Post Services may differ from the price shown in a User’s shopping cart and it is possible that such price may increase or decrease between the time the item is placed in a shopping cart and the time that the purchase is actually made. On rare occasions, an item may be priced incorrectly on the Dawg Post Services. If the price for the item on the Dawg Post Services is incorrect and is actually higher than the price provided at the time of purchase, then, at the sole discretion of Dawg Post, Dawg Post may either (a) contact the User for instructions before shipping the item or charging the User for such item; (b) cancel the order for such item and notify the User of such cancellation; or (c) ship the item at the incorrect price to the benefit of the User.
4.2 Notice. Please note that this policy regarding prices applies only to items sold and shipped by Dawg Post. Any purchases from any third-party sellers on the Dawg Post Services may be subject to different policies in the event of an incorrectly priced item.
5. RISK OF LOSS
The risk of loss and title for all items purchased via the Dawg Post Services pass to the User upon delivery of the item to the carrier.
6. PRODUCT DESCRIPTION
The items offered for sale on the Dawg Post Services contain descriptions that are provided directly by the publisher, manufacturer, developer or distributor of such item. Dawg Post does not represent or warrant that the descriptions of such items are accurate or complete. IF A USER PURCHASES AN ITEM FROM Dawg Post THAT IS NOT AS DESCRIBED IN THE Dawg Post SERVICES, THE USER’S SOLE AND EXCLUSIVE REMEDY IS TO RETURN SUCH ITEM IN AN UNUSED CONDITION FOR A REFUND OF THE PURCHASE PRICE.
7. AGE OF USERS
Our products and services are marketed for and directed towards purchase by adults or with the consent of adults. Individuals under the age of 18 (“Minors”) are not permitted to use Dawg Post websites without the supervision of a parent or legal guardian. Furthermore, we do not knowingly collect or solicit personal information from children under the age of 13 or knowingly allow such persons to register for an online account or to post personal information on our websites. Should we learn that someone under the age of 13 has provided any personal information to or on any of the Dawg Post websites, we will remove that information as soon as possible.
8. TERMINATION OF USAGE
8.1 Termination Rights. Dawg Post may issue a warning, temporarily suspend, indefinitely suspend or terminate any User’s right to use or access all or any part of the Dawg Post Services including any account thereon, without notice, for any reason in Dawg Post’s sole discretion, including, without limitation, violation of the Terms of Use, Dawg Post’s belief that such access would violate any applicable law or would be harmful to the interests of, or potentially cause financial loss or legal liability to, Dawg Post, any Dawg Post.com Provider or another User.
8.2 Restricted Users. In certain cases, in Dawg Post’s sole discretion, Dawg Post may provide written notice (a “Restriction Notice”) to a User (a “Restricted User”) to inform such Restricted User that (i) his or her right to use or access any part of the Dawg Post Services has been terminated, including the right to use, access or create any account thereon; (ii) that Dawg Post refuses to provide any services to such Restricted User; and (iii) any subsequent orders placed by a Restricted User will be subject to cancellation. Other conditions may apply and shall be set forth in the Restriction Notice.
9. INDEMNITY
User agrees to indemnify, defend and hold Dawg Post (and its affiliates, employees, contractors, agents, suppliers and partners) and each Dawg Post Provider harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including reasonable attorneys' fees, brought by any third party due to or arising out of (i) such User’s use of the Dawg Post Services, (ii) any alleged breach or violation of the Terms of Use or (iii) such User’s violation of any law or the rights of a third party. Dawg Post reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which such User is required to indemnify Dawg Post, and User agrees to cooperate with Dawg Post’s defense of such matter. This defense and indemnification obligation is intended to extend to the fullest extent permitted by law and will survive the Terms of Use and your use of the Dawg Post Services.
10. PASSWORD AND ACCOUNT SECURITY
10.1 Account Password. Every User that has an account for the Dawg Post Services is responsible for (i) keeping his or her account password confidential and secured; (ii) avoiding unauthorized access to such User’s computer or other devices; and (iii) keeping the contact information associated with that account current. User acknowledges that it is necessary to keep the e-mail address associated with his or her account current because although the User may be able to log into his or her Dawg Post account using an old e-mail address, such User will not receive messages from Dawg Post about his or her orders and inquiries or other matters.
10.2 Account Security. User accepts full responsibility for all activities that occur within such User’s Dawg Post account or within the Dawg Post Services interactive community, whether or not authorized by the User.
11. INTERACTIVE COMMUNITY
11.1 Interactive Community Users. The Dawg Post Services offer numerous opportunities for interactive activities, which enable Users to communicate with each other directly, or which enable Users to post information and other material that will be visible to other Users of those services (“Interactive Community”). This Section 11, Interactive Community, applies to the activities of persons who are using the interactive features within the Dawg Post Services (“Interactive Community Users”). The scope of these features may change from time to time, with or without notice. You are using Interactive Community features if you post a review or blog entry, create a list, create a profile, submit any other User Created Content, as defined below, or otherwise participate in any interactive feature.
11.2 Interactive Community Services. Interactive Community features may be used only for lawful purposes in accordance with these Terms of Use. If you are using any Dawg Post Services Interactive Community features, and post, publish or communicate any information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material on or through the Interactive Community features, please choose carefully the information that you post and/or provide to other Users (“User Created Content”). User is prohibited from posting on or transmitting through the Dawg Post Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including, but not limited to, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Dawg Post reserves the right, in its sole discretion, to reject, refuse to post or remove any posting or other User Created Content (including private messages) by you, or to deny, restrict, suspend, or terminate access to all or any part of the Interactive Community features at any time, for any or no reason, with or without prior notice or explanation, and without liability.
11.3 Right to Remove Profile or Terminate Access. Dawg Post reserves the right, in its sole discretion, to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Interactive Community features for any reason.
11.4 Misuse of Interactive Community Services. If you become aware of misuse of the Interactive Community features, including any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violates any applicable law, please activate the “Flag” feature on the page in question.
11.5 User Created Content.
(a) Notwithstanding the foregoing, Dawg Post assumes no responsibility for ongoing monitoring of the Dawg Post Services or for removal or editing of any User Created Content, even after receiving notice. Dawg Post assumes no liability for any action or inaction with respect to conduct, communication, or User Created Content within the Interactive Community. You are responsible for your interactions with other Users.
(b) You may not post User Created Content that: involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”; contains restricted or password only access pages or hidden page or images (those not linked to or not otherwise from another accessible page); solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; involves commercial activities and/or sales such as contests, sweepstakes, barter, advertising, or pyramid schemes; includes a photograph or video of another person that you have posted without that person’s consent; circumvents or modifies, or attempts to circumvent or modify, or encourages or assists any other person in circumventing or modifying, any security technology or software that is part of the Dawg Post Services; involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network; covers or obscures the banner advertisements on your personal profile page; involves any automated use of the Dawg Post Services, such as, but not limited to, using scripts to add friends or send comments or messages; interferes with, disrupts, or creates an undue burden on the Dawg Post Services or the networks or services connected to the Interactive Community services; impersonates or attempts to impersonate another Interactive Community User, person or entity; uses the account, username, or password of another Interactive Community User at any time or discloses your password to any third party or permits any third party to access your account; sells or otherwise transfers your profile; uses any information obtained from the Dawg Post Services in order to harass, abuse, or harm another person or entity, or attempting to do the same.
(c) Interactive Community Users may upload to or otherwise submit to Dawg Post for distribution on the Dawg Post Services only (i) User Created Content that is not subject to any copyright or other proprietary rights restrictions; or (ii) User Created Content in which the owner or licensor has given express authorization for Dawg Post to distribute over the Internet. You may not upload, embed, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Any copyrighted or other proprietary User Created Content distributed with the consent of a copyright owner should contain a phrase such as “Copyright, owned by [name of owner]; used by permission.” Dawg Post is entitled to presume that all User Created Content conforms to the foregoing requirements. The unauthorized submission of copyrighted or other proprietary User Created Content is illegal and could subject the User to personal liability for damages in a civil suit as well as criminal prosecution. Interactive Community Users assume all liability for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from an unauthorized submission or submission of User Created Content. Dawg Post assumes no liability for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from any User Created Content.
(d) By submitting User Created Content within the Interactive Community, Interactive Community Users automatically grant, or represent and warrant that the owner or authorized licensor of such User Created Content has expressly granted, Dawg Post, the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, publish, translate, sublicense, copy, modify, delete, enhance and distribute the User Created Content in whole or in part worldwide and/or to incorporate such User Created Content in other works in any form, media, or technology now known or hereafter developed for the full term of any copyright that may exist in such User Created Content. Subject to this grant, the licensor of User Created Content submitted to Dawg Post retains any and all rights which may exist in such User Created Content.
12. NOTICES
User consents to electronic communications with Dawg Post, whether addressed to the e-mail address associated with such User’s Dawg Post account or posted on the Dawg Post Services. User acknowledges and agrees that any communication via e-mail or by postings on the Dawg Post Services satisfies any legal requirement that such communications be made in writing.
13. DISCLAIMERS AND LIMITATION OF LIABILITY
13.1 DISCLAIMER OF WARRANTIES.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS AND LICENSORS PROVIDE THE Dawg Post SERVICES AND ANY Dawg Post ACCOUNT ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. THE USE OF THE Dawg Post SERVICES OR ANY Dawg Post ACCOUNT IS AT YOUR SOLE RISK. NEITHER WE NOR OUR SUPPLIERS, AFFILIATES OR LICENSORS (AS APPLICABLE) MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, THAT THE Dawg Post SERVICES, ANY Dawg Post ACCOUNT OR THEIR USE WILL: (I) BE UNINTERRUPTED OR SECURE; (II) BE FREE OF DEFECTS, INACCURACIES OR ERRORS; OR (III) OTHERWISE MEET YOUR REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, LACK OF HIDDEN OR LATENT DEFECTS, SECURITY, MERCHANTABILITY, SATISFACTORY QUALITY, QUIET ENJOYMENT AND NON-INFRINGEMENT OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.
(b) Dawg Post IS NOT RESPONSIBLE FOR AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY, USER CREATED CONTENT POSTED ON THE Dawg Post SERVICES OR THROUGH THE Dawg Post SERVICES. USER CREATED CONTENT DOES NOT NECESSARILY REFLECT THE OPINIONS OR POLICIES OF Dawg Post. PROFILES AND THIRD PARTY APPLICATIONS CREATED AND POSTED BY USERS ON THE Dawg Post SERVICES MAY CONTAIN LINKS TO OTHER WEBSITES. Dawg Post IS NOT RESPONSIBLE FOR THE CONTENT, ACCURACY OR OPINIONS EXPRESSED ON SUCH WEBSITES, AND SUCH WEBSITES ARE NOT NECESSARILY INVESTIGATED, MONITORED OR CHECKED FOR ACCURACY OR COMPLETENESS BY Dawg Post. INCLUSION OF ANY LINKED WEBSITE ON THE Dawg Post SERVICES DOES NOT IMPLY APPROVAL OR ENDORSEMENT OF THE LINKED WEBSITE BY Dawg Post. WHEN YOU ACCESS THESE THIRD-PARTY SITES, YOU DO SO AT YOUR OWN RISK. Dawg Post IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE Dawg Post SERVICES.
(c) WE TAKE NO RESPONSIBILITY FOR THIRD-PARTY ADVERTISEMENTS OR THIRD-PARTY APPLICATIONS THAT ARE POSTED ON OR THROUGH OR MADE AVAILABLE ON THE Dawg Post SERVICES, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DO NOT TAKE ANY RESPONSIBILITY FOR ANY GOODS OR SERVICES PROVIDED BY THIRD-PARTY ADVERTISERS ON THE Dawg Post SERVICES.
13.2 LIMITATION OF LIABILITY.
(a) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST REVENUE, LOST OR CORRUPTED DATA, OR DAMAGE TO REPUTATION OR GOODWILL OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR LOSSES ARISING FROM, RELATING TO OR CONNECTED WITH YOUR USE OF (OR INABILITY TO USE) THE Dawg Post SERVICES OR ANY Dawg Post ACCOUNT REGARDLESS OF THE CAUSE OF ACTION ON WHICH THE CLAIM IS BASED (INCLUDING NEGLIGENCE, TORT, CONTRACT, STRICT LIABILITY, PRODUCT DEFECT OR MISREPRESENTATION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE ABOVE EXCLUSIONS OF LIABILITY ARE NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, Dawg Post SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE USE OF THE Dawg Post SERVICES OR THE MATERIALS ON THE Dawg Post SERVICES UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT OR RECKLESS ACTS OR OMISSIONS.
(b) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR AGGREGATE LIABILITY RELATED TO THE Dawg Post SERVICES OR YOUR Dawg Post ACCOUNT EXCEED US$100 IN TOTAL (OR THE EQUIVALENT IN LOCAL CURRENCY, TO THE EXTENT THAT LOCAL CURRENCY NEEDS TO APPLY).
14. SEVERABILITY
The provisions of these Terms of Use are intended to be severable. If for any reason any provision of these Terms of Use shall be held invalid or unenforceable in whole or in part in any applicable jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction. The failure of Dawg Post to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision.
15. APPLICABLE LAW; JURISDICTION
15.1 Applicable Law. The Dawg Post Services are created and controlled by Dawg Post in the State of New York. The laws of the State of New York will govern the Terms of Use, without giving effect to any principles of conflicts of laws.
15.2 Jurisdiction. Each of Dawg Post and User agrees to submit to the nonexclusive personal jurisdiction of the courts located within New York County, New York and waives any objection to the laying of venue of any litigation in said courts.
16. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND Dawg Post TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
Any dispute or claim arising from, relating to, or connected with these Terms of Use, the Dawg Post Services, the Dawg Post Content including Digital Content, any Dawg Post account and/or any Digital Library (each a “Claim”) will be resolved by binding arbitration (rather than in court). All Claims submitted to arbitration under these Terms of Use will be administered by the American Arbitration Association under its Commercial Arbitration Rules (including 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. The place of arbitration shall be the State of New York or, where limited by applicable law, the jurisdiction in which you reside or may be conducted by telephone, online or based solely upon written submissions where no in-person appearance is required. Notwithstanding this Section 16, 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.
WAIVER OF CLASS ACTIONS. We each agree that 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. WE EACH AGREE THAT WE ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING ANY RIGHT WE MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THESE DIGITAL CONTENT TERMS OF SALE.
OPTION TO OPT-OUT. To opt out of the arbitration and class-action waiver terms in this Section 16, you must notify us in writing within 30 days of the date that you first accept these Terms and Conditions of Use (unless a longer period is required by applicable law). You must mail your written notification to Dawg Post, Attention: Legal Department to 33 East 17th St., New York, New York 10003 and your written notification must include your name, address and an unequivocal statement that you want to opt-out of this arbitration agreement.
You acknowledge and agree that, regardless of any statute or law to the contrary, any Claim or cause of action you may have must be filed within one (1) calendar year after such Claim or cause of action arises, or forever be barred.
For purposes of any Claim that is not subject to the arbitration procedures in this Section 16, we both agree to the governing law and jurisdiction as set out in Section 15.1 above.
17. EXPORT
Any software distributed by Dawg Post is “commercial computer software” or “commercial computer software documentation.” The U.S. Government’s rights with respect to the Dawg Post Services are limited by these Terms and Conditions of Use, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. User agrees that by installing, copying, or otherwise using the Dawg Post Services that: (i) User does not reside in a country subject to embargo or export controls by the U.S. Government; (ii) User is not on the List of Denied Persons as published by the U.S. government; and (iii) User will not use the Dawg Post Services for any illegal purpose. Because the Dawg Post Services, and related technical data are subject to U.S. export controls, User agrees that User shall not upload, export or “re-export” (transfer) the Dawg Post Services or any Content, including User Created Content, unless User has complied with all applicable U.S. export controls.
18. ADDITIONAL TERMS AND CONDITIONS
In addition to the policies and guidelines located throughout the Dawg Post Services, the following policies are incorporated into the Terms of Use:
Copyright Policy: http://www.barnesandnoble.com/h/copyright-policy (also accessible via a link on the bottom of the Dawg Post.com Site pages)
Privacy Policy: http://www.barnesandnoble.com/h/help/privacy-policy (also accessible via a link on the bottom of the Dawg Post.com Site pages)
19. ACKNOWLEDGMENT
The Terms of Use, including all documents referenced herein, represents the entire understanding between User and Dawg Post regarding User’s relationship with Dawg Post and supersedes any prior or contemporaneous statements or representations. Headings used in the Terms of Use are for reference only and shall not affect the meaning of any terms. As used in these Terms of Use, “including” means “including, without limitation.”