Terms and Conditions

Welcome to the Josh & Nelly’s Books.com website (the “Josh & Nelly’s Books.com Site”), a website owned and operated by Josh & Nelly’s, LLC.

These Terms of Use constitute a legally binding agreement between you and Josh & Nelly’s. Please read these Terms of Use, the terms and conditions posted through any Josh & Nelly’s Device or Application, or any additional terms and conditions, policies, and guidelines posted on any other website, application, or services provided by Josh & Nelly’s (collectively, the “Josh & Nelly’s Services”) carefully before using Josh & Nelly’s Services.

The terms and conditions stated below, along with the policies and guidelines located throughout the Josh & Nelly’s Services (collectively herein the “Terms of Use”) identify what a user of the Josh & Nelly’s Services (“you” or “your” or “User” or “Users”) can expect from Josh & Nelly’s, LLC, its parent, subsidiaries, and affiliates (together referred to herein as “Josh & Nelly’s”, “we”, “us” or “our”), and/or persons who provide products or services to Josh & Nelly’s customers either directly or through the Josh & Nelly’s Services (“Josh & Nelly’s Providers”) and what Josh & Nelly’s in turn expects from Users. By visiting any Josh & Nelly’s Service, creating an account, making a purchase via the Josh & Nelly’s Services, downloading a Josh & Nelly’s application, joining any Josh & Nelly’s online interactive community, posting a review or creating a profile, or otherwise joining, viewing, visiting or contributing to Josh & Nelly’s 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 JoshNellysBooks.com Site or any other Josh & Nelly’s 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. 

1. LICENSES AND RESTRICTIONS

1.1 Licenses. Josh & Nelly’s grants the User a limited, nonexclusive, revocable license to access and make personal, non-commercial use (unless User has a business relationship with Josh & Nelly’s documented in a separate agreement) of the Josh & Nelly’s 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. Josh & Nelly’s further grants the User a limited, nonexclusive and revocable right to create a hyperlink to the Josh & Nelly’s Services so long as the link does not portray Josh & Nelly’s, 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 Josh & Nelly’s Services, the Content or any portion or derivative thereof;
• (b) commercially use the Josh & Nelly’s  Services, the Content or any portion derivative thereof (unless User has a business relationship with Josh & Nelly’s, 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 Josh & Nelly’s 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 Josh & Nelly’s 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 Josh & Nelly’s Services;
• (g) bypass any measures used by Josh & Nelly’s to prevent or restrict access to any portion of the Josh & Nelly’s 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 Josh & Nelly’s;
• (i) use Josh & Nelly’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 Josh & Nelly’s Services.
• The foregoing are expressly prohibited and the right to do any of the foregoing shall require Josh & Nelly’s express written consent (which may include a written agreement signed by an authorized representative of Josh & Nelly’s). Any unauthorized use of      the Josh & Nelly’s Services, the Content or any portion or derivative thereof shall terminate any license or permission granted by Josh & Nelly’s.

2. TRADEMARKS

Josh & Nelly’s, or its parent, subsidiaries, or affiliates, or third parties from whom Josh & Nelly’s has permission, own the trademarks or service marks that are used on the Josh & Nelly’s Services. All rights are reserved. These and other graphics, logos, service marks, trademarks and trade dress of Josh & Nelly’s and its licensors may not be used without prior written consent of Josh & Nelly’s or its licensor, as the case may be. Without limiting the foregoing, no Josh & Nelly’s trademark or trade dress may be used in connection with any product or service that is not Josh & Nelly’s, in any manner that is likely to cause confusion among Users, or in any manner that disparages or discredits Josh & Nelly’s. 

3. CONTENT

3.1 Proprietary Rights. User acknowledges that the Josh & Nelly’s 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 Josh & Nelly’s owns a copyright in the selection, coordination, arrangement, and enhancement of such Content on the Josh & Nelly’s 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. Josh & Nelly’s is a distributor and not a publisher of Content supplied by third parties and Users. Barnes & Noble has no editorial control over such Content. Barnes & Noble 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 Barnes & Noble or any Barnes & Noble Provider, unless expressly stated otherwise. Neither Barnes & Noble nor any Barnes & Noble 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 Barnes & Noble Services represents the opinions and judgments of the third party that provides such Content. Under no circumstance shall either Barnes & Noble or any Barnes & Noble.com Provider be liable for any loss, damage or harm caused by a User’s reliance on information obtained through the Barnes & Noble 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 Barnes & Noble Services.

4. PRICES

4.1 Prices. The price for an item on the Josh & Nelly’s 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 Josh & Nelly’s Services. If the price for the item on the Josh & Nelly’s Services is incorrect and is actually higher than the price provided at the time of purchase, then, at the sole discretion of Josh & Nelly’s, Josh & Nelly’s 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 Josh & Nelly’s Books. Any purchases from any third-party sellers on the Josh & Nelly’s 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 Josh & Nelly’s Services pass to the User upon delivery of the item to the carrier. 

6. PRODUCT DESCRIPTION

The items offered for sale on the Josh & Nelly’s Services contain descriptions that are provided directly by Josh & Nelly’s publishing, manufacturing, developing, and distribution of such items. Josh & Nelly’s represents and warrants that the descriptions of such items are accurate and complete. IF A USER PURCHASES AN ITEM FROM JOSH & NELLY’S THAT IS NOT AS DESCRIBED IN THEJOSH & NELLY’S 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 Josh & Nelly’s 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 16 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 16 has provided any personal information to or on any of the Josh & Nelly’s websites, we will remove that information as soon as possible.

8. TERMINATION OF USAGE

8.1 Termination Rights. Josh & Nelly’s may issue a warning, temporarily suspend, indefinitely suspend or terminate any User’s right to use or access all or any part of the Josh & Nelly’s Services including any account thereon, without notice, for any reason in Josh & Nelly’s sole discretion, including, without limitation, violation of the Terms of Use, Josh & Nelly’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, Josh & Nelly’s, any JoshNellysBooks.com Provider or another User.

8.2 Restricted Users. In certain cases, in Josh & Nelly’s sole discretion, Josh & Nelly’s 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 Josh & Nelly’s Services has been terminated, including the right to use, access or create any account thereon; (ii) that Josh & Nelly’s 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 Josh & Nelly’s (and its affiliates, employees, contractors, agents, suppliers and partners) and each Josh & Nelly’s 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 Josh & Nelly’s 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. Josh & Nelly’s 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 Josh & Nelly’s, and User agrees to cooperate with Josh & Nelly’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 Josh & Nelly’s Services.

10. PASSWORD AND ACCOUNT SECURITY

10.1 Account Password. Every User that has an account for the Josh & Nelly’s 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 Josh & Nelly’s account using an old e-mail address, such User will not receive messages from Josh & Nelly’s 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 Josh & Nelly’s account or within the Josh & Nelly’s Services interactive community, whether or not authorized by the User.

11. INTERACTIVE COMMUNITY

11.1 Interactive Community Users. The Josh & Nelly’s 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 Josh & Nelly’s 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 Josh & Nelly’s 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 Josh & Nelly’s 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. Josh & Nelly’s 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. Josh & Nelly’s 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, Josh & Nelly’s assumes no responsibility for ongoing monitoring of the Josh & Nelly’s Services or for removal or editing of any User Created Content, even after receiving notice. Josh & Nelly’s 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 Josh & Nelly’s 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 Josh & Nelly’s 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 Josh & Nelly’s 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 Josh & Nelly’s 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 Josh & Nelly’s for distribution on the Josh & Nelly’s 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 Josh & Nelly’s 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.” Josh & Nelly’s 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. Josh & Nelly’s 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, Josh & Nelly’s, 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 Josh  & Nelly’s retains any and all rights which may exist in such User Created Content.

12. NOTICES

User consents to electronic communications with Josh & Nelly’s, whether addressed to the e-mail address associated with such User’s Josh & Nelly’s account or posted on the Josh & Nelly’s Services. User acknowledges and agrees that any communication via e-mail or by postings on the Josh & Nelly’s 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  JOSH & NELLY’S SERVICES AND ANY JOSH  & NELLY’S ACCOUNT ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY  REPRESENTATION OR WARRANTY WHATSOEVER. THE USE OF THE JOSH & NELLY’S SERVICES OR ANY JOSH & NELLY’S 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 JOSH & NELLY’S SERVICES, ANY JOSH & NELLY’S 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) JOSH & NELLY’S IS NOT RESPONSIBLE FOR AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY, USER CREATED CONTENT POSTED ON THE JOSH & NELLY’S SERVICES OR THROUGH THE JOSH & NELLY’S SERVICES. USER CREATED CONTENT DOES NOT NECESSARILY REFLECT THE OPINIONS OR POLICIES OF JOSH & NELLY’S. PROFILES AND THIRD PARTY APPLICATIONS CREATED AND POSTED BY USERS ON THE JOSH & NELLY’S SERVICES MAY CONTAIN LINKS TO OTHER WEBSITES. JOSH & NELLY’S 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 JOSH & NELLY’S. INCLUSION OF ANY LINKED WEBSITE ON THE JOSH & NELLY’S SERVICES DOES NOT IMPLY APPROVAL OR      ENDORSEMENT OF THE LINKED WEBSITE BY JOSH & NELLY’S. WHEN YOU ACCESS      THESE THIRD-PARTY SITES, YOU DO SO AT YOUR OWN RISK. JOSH & NELLY’S IS      NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF      THE JOSH & NELLY’S 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 JOSH & NELLY’S 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 JOSH & NELLY’S 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 JOSH & NELLY’S SERVICES OR ANY JOSH & NELLY’S 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.
• JOSH & NELLY’S SHALL NOT BE LIABLE FOR ANY  DAMAGES RESULTING FROM THE USE OF THE JOSH & NELLY’S SERVICES OR THE MATERIALS ON THE JOSH & NELLY’S 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 JOSH & NELLY’S SERVICES OR YOUR JOSH & NELLY’S 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 Josh & Nelly’s 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 Josh & Nelly’s Services are created and controlled by Josh & Nelly’s, LLC in the State of Georgia. The laws of the State of Georgia will govern the Terms of Use, without giving effect to any principles of conflicts of laws.

15.2 Jurisdiction. Each of Josh & Nelly’s and User agrees to submit to the nonexclusive personal jurisdiction of the courts located within Paulding County, Georgia 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 JOSH & NELLY’S 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 Josh & Nelly’s Services, the Josh & Nelly’s Content including Digital Content, any Josh & Nelly’s 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 Georgia 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 Josh & Nelly’s, Attention: Legal Department to 225 Main Street #234 Hiram, GA 30141 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 Josh & Nelly’s is “commercial computer software” or “commercial computer software documentation.” The U.S. Government’s rights with respect to the Josh & Nelly’s 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 Josh & Nelly’s 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 Josh & Nelly’s Services for any illegal purpose. Because the Josh & Nelly’s 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 Josh & Nelly’s Services or any Content, including User Created Content, unless User has complied with all applicable U.S. export controls.

18. ACKNOWLEDGMENT

The Terms of Use, including all documents referenced herein, represents the entire understanding between User and Josh & Nelly’s regarding User’s relationship with Josh & Nelly’s 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.”

19. MODIFICATION

These terms were last revised on July 18, 2024.