Commission Summary: updated October 17, 2011
All products sold on BN.com receive 6% commission with the exception of customized gift cards.
Barnes & Noble products include: books, college print and digital textbooks, CDs, DVDs, music, used print books, print magazines, toys and games, Gift Cards or eGift Cards, B&N Membership, calendars, video games, electronic products, home & gift products, and NOOK Color™, NOOK™, and NOOK Color™ and NOOK™ related accessories.
Search Policy Summary: Affiliates are not allowed to bid on the Barnes and Noble.com brand, BN, B&N, BN.com, any misspellings of the Barnes and Noble brand, as well as NOOK Color, NOOK or NOOK Color or NOOK misspellings. See LICENSES AND RESTRICTIONS below for additional details.
Please read these additional terms and conditions carefully.
Terms and Conditions: updated 10/17/11
This Web Publisher Addendum (the “Addendum”) contains additional terms and conditions that apply to your participation as an Web Publisher (“Web Publisher”) in the BN.com Affiliate Network of Barnesandnoble.com llc (“BN.com”). To the extent of any conflict between this Addendum and Web Publisher’s agreement with LinkShare Inc. (“LinkShare”), this Addendum shall control. This Addendum supplements the agreement between and Web Publisher relating to LinkShare program. The rights provided to Web Publisher hereunder is expressly contingent upon Web Publisher being in good standing with each of its agreement with LinkShare and this Addendum.
WHEREAS, BN.com, among other things, sells and provides information regarding books, audio books, textbooks, CDs, audio tapes, DVDs, VHS tapes, calendars, prints and posters on the BN.com Site; WHEREAS, the parties hereto desire to engage in a strategic relationship pursuant to which Links will be established between the Web Publisher Site and the BN.com Site and BN.com pays Web Publisher a referral fee for certain Qualified Customers, all on the terms and conditions set forth herein; NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used herein, the following capitalized terms and phrases shall have the following meaning ascribed to them in this Addendum:
a. “BN.com Affiliate Network Application” shall mean the form that the Web Publisher completes and submits to LinkShare to participate in the BN.com Affiliate Network Program.
b. “BN.com Affiliate Network Program” shall mean the program managed by or on behalf of BN.com by which participating entities place Links on their web sites and e-mail communications and software applications that connect to the BN.com Site and BN.com pays each participating entity a referral fee for certain sales generated by the Qualified Customer.
c. “BN.com Content” shall mean proprietary content of BN.com contained on the BN.com Site, or content contained on the BN.com Site which BN.com has the right to sublicense to the Web Publisher as contemplated herein. In no event shall the term “BN.com Content” be deemed to include any copyrighted or otherwise proprietary content which BN.com neither owns nor licenses.
d. “BN.com Mark” shall mean any BN.com owned or licensed trademark, service mark or logo provided to the Web Publisher hereunder.
e. “BN.com Product” shall mean any merchandise offered for sale on the BN.com Site as BN.com shall designate from time to time during the Term. As of the date hereof, such merchandise includes: books, NOOK Color™, NOOK™, NOOK Color™ and NOOK™ related accessories, B&N Membership, print magazines, used print books, college print and digital textbooks, toys and games, electronic products, calendars, video games, CDs, DVDs, Gift cards or eGift Cards, and home & gift products.
f. “BN.com Site” shall mean the world wide web site (including mirror or successor web sites) located at http://www.bn.com.
g. “BookQuest Dealer Direct Program” shall mean the network of third party book dealers that, on their own behalf, offer books for sale on the BN.com Site. (Books available through the BookQuest Dealer Direct Program identify the third party book dealer on the book product description page of the BN.com Site.).
h. “LinkShare Network” shall mean the LinkShare Proprietary Technology.
i. “End User” shall mean Web Publisher End Users.
j. “Link” shall mean a Web Publisher Link.
k. “Net Affiliate Sales” shall be defined as the gross proceeds actually received by BN.com from a Qualified Customer (that connects to the BN.com Site via an Web Publisher Linkor Linkshare Merchandiser Feed) in connection with a Qualifying Purchase during the Term less the following items in accordance with generally accepted accounting principles: (i) applicable sales taxes, duties, gift-wrapping fees, shipping fees, handling fees and other similar charges (provided such charges are itemized in BN.com’s invoice as transactions), (ii) losses due to credit, charge and debit card fraud and bad debt; (iii) credits for returned goods (iv) less gift card value and (v) the face value of any coupon or other discount applied by such Qualified Customer to such Qualifying Purchase. For the avoidance of doubt, with respect to “coupons,” Web Publisher agrees that it shall only post and/or promote on the Web Publisher Site any coupon codes that are supplied by either the BN.com Affiliate Marketing Department and/or the LinkShare advertiser interface.
l. “Net Sales Revenue” shall mean the aggregate of any Net Affiliate Sales and Net DFM Sales for any stated period.
m. “Offer” shall mean each advertising offer provided by BN.com hereunder in the form of banners, textual links, data feeds, transactional ads or other relevant media that contain a LinkShare source identifier (to track related activity) embedded therein.
n. “Qualified Customer” is an End User who last connects to the BN.com Site through an Web Publisher Link or a DFM Link and, prior to terminating an active browsing session with the BN.com Site (e.g., End User closes his browser), purchases a BN.com Product using the check out process located on the BN.com Site.
o. “Qualifying Purchase Referral Fee” shall mean the fee payable by BN.com to Web Publisher as set forth in Section 7(a) hereof for each Qualifying Purchase during the Term.
p. “Qualifying Purchase” shall mean a purchase of a BN.com Product during the Term by a Qualified Customer and will be considered final thirty-one (31) days after the order of the BN.com Product is shipped to the Qualified Customer.
q. “Web Publisher End User” shall mean a user of the Web Publisher Site; a recipient of a Web Publisher’s e-mail; or a recipient of a BN.com e-mail where such email contains a Web Publisher Link.
r. “Web Publisher Link” shall mean the graphic and/or textual hyperlink with a LinkShare source identifier (to track related activity) embedded within the Offer (as defined below) which establishes a direct hyperlink connection to the barnesandnoble.com llc website currently located at www.bn.com (the “BN.com Site”).
s. “Web Publisher Site” shall mean the Web Publisher’s Internet site or sites or any other location or means by which the Web Publisher publishes or displays products, services, and/or promotions provided by BN.com in connection with this Agreement.
t. “Web Publisher” shall mean (i) the person or entity that is a member of the LinkShare network of affiliates and (ii) agrees to terms and conditions presented by BN.com. Such Web Publishers may, in connection with this Agreement, apply to become part of the BN.com BN.com Affiliate Network program administered by LinkShare. Upon becoming part of the BN.com BN.com Affiliate Network, such Web Publisher may publish BN.com’s Offers (as defined below) and, in return, be eligible to earn compensation from BN.com for the traffic, action or sales resulting after an End User has clicked through to the BN.com Site via an Web Publisher Link and purchased BN.com Product(s).
2. LINKS AND CONTENT.
a. As promptly as practicable after the date hereof, BN.com will make available to the Web Publisher Links and certain BN.com Content. Subject to the terms and conditions hereof, the Web Publisher shall display the Links and BN.com Content on the Web Publisher Site. The Web Publisher agrees not to remove or obscure any proprietary rights legends (such as copyright or trademark notices) contained in any Links or BN.com Content. Web Publisher further agrees not to decompile, reverse engineer, disassemble or otherwise reduce the Links or any BN.com Content to a human perceivable form or permit any other party to do so without the express authorization of BN.com.
b. Web Publisher shall cooperate fully with BN.com in order to establish and maintain the Links. Web Publisher shall display on the Web Publisher Site only those BN.com-branded images or BN.com Content (indicating a Link) which are provided by BN.com, and will substitute such images with any new images provided by BN.com from time to time throughout the Term. BN.com will be responsible for providing hyperlink access to the BN.com Site for each Link.
c. Web Publisher may display a “tool bar” or other frame or navigational mechanism (a “Tool Bar”) above the BN.com Site provided that the Tool Bar does not, without the express written consent, of BN.com: (i) promote or describe any third party or the products or services thereon; (ii) link to any third party site or application; or (iii) interfere with the technology, security or usability of the BN.com Site.
3. RESPONSIBILITIES OF BN.com. Order Fulfillment. BN.com will be solely responsible for processing every order placed by a Qualified Customer for the purpose of tracking the volume and amount of BN.com Product sales generated by such Qualified Customer and providing statistical information to the Web Publisher regarding BN.com Product sales to Qualified Customers. BN.com will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service for such BN.com Product sales.
4. BN.com AFFILIATE NETWORK APPLICATION. The Web Publisher shall submit a completed BN.com Affiliate Network Application to LinkShare prior to participation in the BN.com Affiliate Network. The purposes of the BN.com Affiliate Network Application shall be, among other things, (i) to enable the Web Publisher access information from BN.com, obtain Links and obtain BN.com Content, and (ii) to establish an Web Publisher account and unique source identification code to enable BN.com to track purchases made by Qualified Customers. The Web Publisher shall be responsible to maintain the accuracy of the information it has provided to BN.com on the BN.com Affiliate Network Application. BN.com may rely upon the information submitted by Web Publisher on the BN.com Affiliate Network Application, as updated from time to time in writing, as accurate and complete. If any term or condition contained in the BN.com Affiliate Network Application conflicts with the terms of this Addendum, the terms of this Addendum shall govern.
5. SITE REQUIREMENTS.
a. Each party will be solely responsible for the development, operation and maintenance of its site and for all materials that appear on its site. Such responsibilities include, but are not limited to:
(i) ensuring the technical operation of its site and all related equipment;
(ii) ensuring the accuracy and appropriateness of materials posted on its site;
(iii) ensuring that materials posted on its site do not violate any law, rule or regulation, or infringe upon the rights of any third party (including, for example, copyright, trademarks, privacy or other personal or proprietary rights); and
(iv) ensuring that materials posted on its site are not libelous or otherwise illegal.
b. Each party disclaims all liability for all such matters with respect to the other party’s site.
6. LICENSES AND RESTRICTIONS.
a. Subject to the terms and conditions of this Addendum, including, but not limited to, the provisions of Section 12 hereof, BN.com hereby grants to the Web Publisher a non-exclusive, non-transferable, limited license to reproduce and display the BN.com Marks and BN.com Content in connection with the display of the Links and as otherwise contemplated in this Addendum; provided, however, that the Web Publisher shall not make any specific use of any BN.com Marks or BN.com Content without first submitting a sample of such use to BN.com and obtaining BN.com’s prior consent, which consent shall not be unreasonably withheld. Such license shall terminate upon the effective date of the expiration or termination of this Addendum, and the Web Publisher shall immediately cease using and remove or destroy all BN.com Marks and BN.com Content from the Web Publisher Site and any other Web Publisher’s materials.
b. Any and all goodwill associated with uses of the BN.com Marks and BN.com Content shall inure solely and exclusively to the benefit of BN.com and its licensors.
(i) The Web Publisher Site shall not in any way copy or resemble the “look and feel” of the BN.com Site, nor will the Web Publisher create the impression that the Web Publisher Site is the BN.com Site or is a part of the BN.com Site. The Web Publisher Site shall not contain any content of the BN.com Site or any materials which are proprietary to BN.com, except materials which are obtained by the Web Publisher via an express license from BN.com. In the event that BN.com provides an express license for use of the BN.com Content, then Web Publisher agrees to provide a link back to the page on the BN.com Site where the BN.com Content appears using a standard HTML link. An example of a ”standard HTML link” is as follows:
<a href=”http://www.barnesandnoble.com/w/steve-jobs-walter-isaacson/1104099551″> Steve Jobs by Walter Isaacson </a>
Web Publisher agrees that it shall not use a nofollow link or redirect the link in any way that cloaks or obfuscates the URL for search engine crawlers. Web Publisher further agrees that: (a) it shall not use the BN.com Content to harvest or index BN.com Content without BN.com’s express written consent; (b) it shall not store information obtained from BN.com Content for more than twenty (24) hours; and (c) shall not sublicense or redistribute BN.com Content to any third parties.
(ii) Web Publisher shall not use the BN.com Marks or BN.com Content: (1) to disparage BN.com, or its affiliates, products or services: or (2) for promotional goods or for products which, in BN.com’s reasonable judgment, may diminish or otherwise damage BN.com’s or its licensor’s goodwill in the BN.com Marks or the BN.com Content, including but not limited to uses which could be deemed to be in poor taste or unlawful, or which purpose is to encourage unlawful activities.
(iii) The BN.com Marks and BN.com Content must not be used in a manner that implies BN.com’s sponsorship or endorsement of the product, service, or content presented on the Web Publisher Site.
(iv) The uniform resource locators (URLs), domain names or other identifiers of the Web Publisher Site shall not contain any BN.com Mark or any derivative thereof without the express written consent of BN.com. Such BN.com Marks and derivative include without limitation “barnes,” “noble,” “barnesandnoble.com,” “bn,” “NOOK Color,” “NOOK”, and “bn.com.” Furthermore, Web Publisher may not purchase or otherwise contract with third parties to exploit any BN.com Mark or derivative thereof for the purpose of causing the Web Publisher Site to appear as a search result or for any other reason.
(v) Web Publisher acknowledges that the BN.com Marks are valid service marks, trademarks, trade names and logos and the sole property of BN.com and its licensors, and Web Publisher shall not disparage or challenge the validity of the BN.com Marks.
(vi) Without limiting any rights BN.com may have, if Web Publisher breaches any of the restrictions set forth in this Section 6(c), BN.com has the right to: (1) invalidate any amounts attributable to such misuse of the BN.com Mark, BN.com Content or derivatives thereof; (2) seek reimbursement, or exercise set-off from future payments to Web Publisher, of any amounts paid to Web Publisher and attributable to such misuse of the BN.com Marks, BN.com Content or derivatives thereof; and (3) seek injunctive relief or other appropriate relief in any state or federal court in the state of New York or any other court of competent jurisdiction (and Web Publisher hereby consents to the non-exclusive jurisdiction and venue in such courts).
(vii) Web Publisher shall not use any BN.com Mark or BN.com Content in a manner that would violate, or give BN.com or 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.
a. Qualifying Purchase Referral Fee: For each Qualifying Purchase made during the Term, Web Publisher shall be entitled to receive from BN.com a Qualifying Purchase Referral Fee of six percent (6%) of the Net Sales Revenue. Qualifying products include books, NOOK Color, NOOK, NOOK Color and NOOK related accessories, audiobooks, products sold via the BooksQuest Dealer Direct Program, Gift Cards or eGift Cards, B&N Membership, electronic products, CDs, DVDs, calendars, toys and games, home & gift products, print magazines, and video games. b. Right of Setoff: BN.com will be entitled to setoff any amounts payable hereunder against any overpayments to Web Publisher made under this Addendum. Additionally, in the event that BN.com has paid any amount hereunder to Web Publisher in connection with any order later determined to be fraudulent, the Web Publisher shall upon demand immediately repay to BN.com such amount.c. Tracking: BN.com, or its third party designee, shall be solely responsible for tracking Net Sales Revenue. All such accounting shall conform with generally accepted accounting principles. BN.com’s payment obligations hereunder shall be based solely upon the tracking provided and maintained by BN.com or its third party designee.
8. ACCOUNTING; BOOKS & RECORDS; AUDIT RIGHTS.
a. Accounting Information. BN.com will enable the Web Publisher to obtain the Web Publisher’s account information as of a recent date. Such information shall set forth the amount of Net Sales Revenue for related BN.com Products, the basis of the calculation thereof, the amount of Qualifying Purchase Referral Fee and Bonus Referral Fees payable to the Web Publisher, if any, for such period.
b. Books and Records. BN.com has engaged a third party to maintain true and correct books of account containing records of appropriate information necessary to calculate Net Sales Revenue . Such records shall be maintained for at least a period of one (1) year following the date of each Qualifying Purchase.
c. Audit Rights. Web Publisher may request in writing that BN.com provide Web Publisher with a report from an independent auditing firm, selected by BN.com in its sole discretion, that confirms the reasonable accuracy of the calculation and reporting of Net Sales Revenue, Qualifying Purchase Referral Fees and Bonus Referral Fees for any rolling thirty (30) day period reported by BN.com; provided that, Web Publisher shall be entitled to such confirmation: (i) not more than once in any twelve (12) month period; (ii) no later than thirty (30) days following the later of the termination of this Addendum and BN.com’s remittance to Web Publisher of the final payment pursuant to Section 11(b) hereof; and (iii) not during period beginning December 1 and ending January 31. Web Publisher shall bear the reasonable expense of any audit or review conducted pursuant to this Section, unless such audit or review shows an under-payment by BN.com in excess of ten percent (10%) of the amount reported by BN.com for such applicable period, in which event BN.com shall bear the reasonable expenses of the audit or review. BN.com shall pay Web Publisher any shortfall amount within thirty (30) days of such report; and Web Publisher agrees to remit to BN.com any overpayment by BN.com within thirty (30) days of such report. At BN.com’s election, Web Publisher shall pre-pay any estimated expense of such audit or review prior to the auditing firm’s engagement.
9. POLICIES AND CUSTOMER INFORMATION.
a. BN.com considers all users who visit the BN.com Site, including, without limitation, Qualified Customers, to be customers of BN.com. Accordingly, all BN.com rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers. BN.com may change its policies and operating procedures at any time. BN.com shall have no obligation to share with any party any customer information collected by BN.com, including but not limited to the name, address, e-mail address of the customer, or any titles ordered. Furthermore, to the extent BN.com shares with Web Publisher any customer information that is collected by or on behalf BN.com, Web Publisher shall maintain such information in confidence as BN.com confidential and trade secret information in accordance with Section 12 hereof.
b. BN.com will determine the prices to be charged for books and/or other merchandise sold in accordance with its own pricing policies. Prices and availability may vary from time to time. The Web Publisher shall not include price information in any descriptions on the Web Publisher Site. BN.com will use commercially reasonable efforts to present accurate information, but BN.com cannot guarantee the availability or price of any particular item.
c. Web Publisher may not “spider” or “crawl” the BN.com Site – i.e., use a program to recursively or automatically explore the BN.com Site to harvest or retrieve information therefrom. BN.com reserves the right to block any IP address that “spiders” or “crawls” the BN.com Site.
10. REPRESENTATIONS AND WARRANTIES.
a. The Web Publisher hereby represents and warrants to BN.com as follows:
(i) This Addendum has been duly and validly executed and delivered by the Web Publisher and constitutes the legal, valid and binding obligation of the Web Publisher, enforceable against the Web Publisher in accordance with its terms.
(ii) The execution, delivery and performance by the Web Publisher of this Addendum and the consummation by the Web Publisher of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time or both, conflict with or violate (A) any provision of law, rule or regulation to which the Web Publisher is subject, (B) any order, judgment or decree applicable to the Web Publisher or binding upon the Web Publisher’s assets or properties, or (C) any Addendum or other instrument applicable to the Web Publisher or binding upon the Web Publisher’s assets or properties.
b. BN.com hereby represents and warrants to the Web Publisher as follows:
(i) This Addendum has been duly and validly executed and delivered by BN.com and constitutes the legal, valid and binding obligation of BN.com, enforceable against BN.com in accordance with its terms.
(ii) BN.com is the owner or licensee of the BN.com Marks and/or has the right and power to license to the Web Publisher the BN.com Marks and all right, title and interest in all materials created by employees of BN.com for or in connection with the BN.com Site, in the manner contemplated herein, and such license does not and will not breach, conflict with or constitute a default under any agreement or other instrument applicable to BN.com or binding upon its assets or properties.
c. EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, NEITHER PARTY MAKES ANY REPRESENTATION THAT THE OPERATION OF ITS SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND SUCH PARTY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. TERM; TERMINATION.
a. The term of this Addendum will commence upon BN.com’s acceptance of the BN.com Affiliate Network Application and will end when terminated by either party in accordance with the terms hereof (the “Term”). Either party may terminate this Addendum at any time, with or without cause, by giving the other party written notice of termination provided that BN.com may provide written notice to Web Publisher via e-mail or via a notice posted within the Web Publisher’s account.
b. Qualifying Purchase Referral Fees and Bonus Referral Fees accrued through the date of termination will remain payable only if the related merchandise orders are not canceled or returned. BN.com may withhold the Web Publisher’s final payment for a reasonable period of time, not to exceed six (6) months, to ensure that the correct amount is paid. Any amounts payable shall be made by check and forwarded to address of record.
c. If either party terminates this Addendum for any reason, Web Publisher and the Web Publisher Site shall be prohibited from participating in the BN.com Affiliate Network Program without the express written consent of BN.com.
d. Upon the effective date of termination or expiration of this Addendum, (i) each party shall return to the other party any confidential information of the other party, and shall immediately cease to use any of the other party’s trademarks and copyrighted materials, and
(ii) the rights and obligations of each party hereunder shall terminate; provided, however, that all terms of this Addendum which by their nature extend beyond the termination of this Addendum, including, without limitation, the rights and obligations of the parties hereto under Sections 8, 10,11(b), 11(c), 11(d), and Sections 12 through 17 hereof, shall survive and remain in effect, and apply to respective successors and assigns. Furthermore, BN.com may message such termination to any Qualified Customer that enters the BN.com Site after the effective time of such termination.
a. Except as otherwise provided in this Addendum or with the consent of the other party hereto, the Web Publisher and BN.com each agrees that all information including, without limitation, the terms of this Addendum, business and financial information, customer and vendor lists and pricing and sales information, concerning the Web Publisher or BN.com, or any of their respective affiliates, provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by the party receiving such information for its own business purposes or for any other purpose, except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (i) to any person pursuant to a subpoena issued by any court or administrative agency, (ii) to its accountants, attorneys or other agents on a confidential basis and (iii) otherwise as required by applicable law, rule, regulation or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
b. Notwithstanding anything contained herein, BN.com shall be permitted to share with third party publishers aggregate BN.com Product sales with respect to BN.com Products published by such third party publishers.
13. TRADEMARKS; PUBLICITY.
a. Each party hereby covenants and agrees that the trademarks, trade names, service marks, copyrights and other proprietary rights of the other party are and shall remain the sole and exclusive property of that party and neither party shall hold itself out as having any ownership rights with respect thereto or, except as specifically granted hereunder, any other rights therein. In addition, except as expressly permitted hereunder, each party hereby covenants and agrees that it will make no use of the trademarks, trade names, service marks, copyrights and other proprietary rights of the other party.
b. Neither party shall (i) create, publish, distribute or permit any written material which makes reference to the other party hereto without first submitting such material to the other party and receiving the prior written consent of such party, which consent shall not be unreasonably withheld or delayed, nor (ii) disclose to the public or any third party the relationship between them or the transactions contemplated by this Addendum without receiving the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. THE WEB PUBLISHER IS PROHIBITED FROM ISSUING A PRESS RELEASE DESCRIBING THE RELATIONSHIP OR THE TERMS OF THIS ADDENDUM WITHOUT BN.com’S PRIOR APPROVAL.
14. INDEMNIFICATION FROM THIRD PARTY CLAIMS.
a. Each party hereto (“Indemnifying Party”) shall defend, indemnify and hold harmless the other party hereto (“Indemnified Party”) from and against any suit, proceeding, assertion, damage, cost, liability, and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of a claim or claims by a third party against Indemnified Party or its affiliates, licensors, suppliers, officers, directors, employees, members and agents, arising from or in connection with: (i) any representation or warranty made by the Indemnifying Party being untrue, (ii) any breach by the Indemnifying Party of any covenant or agreement made by it herein or (iii) the use by the Indemnified Party of the trademark, trade name, service mark, logo, copyright, proprietary method or technology of the Indemnifying Party in accordance with the terms hereof.
b. Additionally, BN.com agrees to indemnify, defend and hold harmless Web Publisher (and its respective officers, directors, employees, shareholders and agents) from and against any and all third party claims, liabilities, losses, damages, injuries or expenses (including reasonable attorneys’ fees) (each herein a “Claim”) directly, and only to the extent, arising from (i) any breach by BN.com agreement entered into with LinkShare relating to the LinkShare Network program; (ii) the operation or content of the BN.com Site or the Offers; (iii) the violation or infringement of any intellectual property or privacy rights of any third-party as a result of any materials provided by BN.com to Web Publisher; or (iv) the sale or use by BN.com of any information collected by BN.com in connection with this Agreement.
c. The indemnification obligations set forth in Section 14(a) or 14(b) hereof are contingent upon the following conditions: (i) the Indemnified Party must promptly notify the Indemnifying Party in writing of the claim (however, failure of the Indemnified Party to so promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent it has been damaged thereby); (ii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) the Indemnifying Party will have primary control of the defense of the action and negotiations for its settlement and compromise; provided, however, that: (1) the Indemnified Party will have the right to approve any settlement or compromise that will impose any obligation upon it or which may adversely affect its rights under this Addendum or its rights to any materials subject to copyright, patent, trade secret or trademark protection; and (2) the Indemnified Party may, at its own cost, obtain separate counsel to represent its interests.
15. LIMITATION OF LIABILITY.
a. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR LOST PROFITS, ARISING FROM ANY PROVISION OF THIS ADDENDUM, EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. EXCEPT FOR LIABILITIES RESULTING FROM BN.com’S FRAUD OR WILLFUL MISCONDUCT, OR BN.com’S INDEMNIFICATION OBLIGATIONS ARISING SECTION 14 HEREOF, THE AGGREGATE LIABILITY OF BN.com AND ITS AFFILIATES, DIRECTORS AND OFFICERS ARISING WITH RESPECT TO THIS ADDENDUM OR THE BN.com AFFILIATE NETWORK PROGRAM SHALL NOT EXCEED THE AGGREGATE QUALIFYING PURCHASE REFERRAL FEES AND BONUS REFERRAL FEES PAID OR PAYABLE TO WEB PUBLISHER UNDER THIS ADDENDUM. WEB PUBLISHER AGREES THAT ANY PROVISION IN WEB PUBLISHER’S AGREEMENT WITH LINKSHARE THAT PURPORTS TO LIMIT WEB PUBLISHER’S LIABILITY TO BN.com SHALL BE ONLY BE GIVEN EFFECT TO THE EXTENT SPECIFICALLY SET FORTH IN THIS ADDENDUM. WEB PUBLISHER AGREES THAT, IN CONNECTION WITH ITS PARTICIPATION IN THE BN.com PROGRAM, ITS AGREEMENT WITH LINKSHARE IS AMENDED CONSISTENT WITH THE FOREGOING SENTENCE.
16. CLAIMS LIMITATIONS; ARBITRATION.
a. No action shall be commenced by Web Publisher against BN.com for breach of contract, nor shall any counterclaim or set off be interposed by Web Publisher by reason thereof, including without limitation, for monies due or to become due hereunder, or for the amount of any fees, discounts, allowances, or other deductions from remittances made on account of Qualifying Purchases hereunder unless such action is commenced or counterclaim or set off interposed within (1) year after the same accrues.
b. Any controversy or claim arising out of or relating to this Addendum, or the breach thereof, shall be settled by arbitration administered in New York, New York by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated with any claim or controversy of any other party. The foregoing shall not preclude BN.com from seeking any injunctive relief or other appropriate relief in any state or federal court in the state of New York or any other court of competent jurisdiction (and Web Publisher hereby consents to the non-exclusive jurisdiction and venue in such courts) for protection of BN.com’s or BN.com licensor’s intellectual property rights.
a. This Addendum 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.
b. Headings herein are for reference only and shall not affect the meaning of any terms.
c. BN.com may change or modify any of the terms and conditions contained in this Addendum at any time in our sole discretion. Web Publisher will be notified by email. Modifications may include, but are not limited to, changes in the scope of available referral fees, referral fee schedules, payment procedures, and BN.com Affiliate Network rules. If any modification is unacceptable to Web Publisher, Web Publisher’s only recourse is to terminate this Addendum. Web Publisher’s continued participation in the BN.com Affiliate Network following BN.com’s notification to Web Publisher or posting of a new agreement on the BN.com Site will constitute binding acceptance of the change. This Addendum was last modified on June 17 , 2011.
d. All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each herein, a “Notice”) shall be given in writing and delivered to the receiving party to its respective address set forth below (i) by personal delivery to the individual identified below, (ii) by certified or registered mail (return receipt requested), or (iii) by a nationally recognized courier. The effective date of such Notice shall be deemed to be the date upon which any such Notice is personally received by or on behalf of the addressee. Any party hereto may change its address set forth below by written notice to the other party hereto in accordance with the terms of this Section.
(i) If to BN.com: Barnesandnoble.com llc 76 Ninth Avenue 9th Floor New York, New York 10011 Attn: BN.com Affiliate Marketing Department
(ii) If to Web Publisher, to the contact information contained in its account.
e. This Addendum does not constitute either party an agent, legal representative, joint venturer, partner or employee of the other for any purpose whatsoever and neither party is in any way authorized to make any contract, agreement, warranty or representation or to create any obligation, express or implied, on behalf of the other party hereto.
f. This Addendum and the provisions hereof shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their successors and permitted assigns; provided, however, that neither party shall have the right to assign its rights or obligations hereunder to any other person or entity except that BN.com may assign its rights and obligations hereunder to a subsidiary or affiliate of BN.com provided that BN.com remains jointly and severally liable with respect to such obligations.
g. Each provision of this Addendum shall be considered severable and if, for any reason, any provision hereof is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by any court or agency having valid jurisdiction, such provision shall be given the maximum permissible effect, and such invalidity or illegality shall not impair the operation or affect the remaining provisions of this Addendum; and the latter shall continue to be given full force and effect and bind the parties hereto and such invalid provisions shall be deemed not to be a part of this Addendum.
h. Neither party shall be liable to fulfill its obligations hereunder, or for delays in performance, due to causes beyond its reasonable control, including, but not limited to, acts of God, acts or omissions of civil or military authority, fires, strikes, floods, epidemics, riots or acts of war.