KIRKUS MEDIA CUSTOMER AGREEMENT

BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE ELECTRONICALLY, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY UTILIZING THE SERVICES (DEFINED BELOW), YOU AGREE TO THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND KIRKUS MEDIA AND SETS FORTH THE TERMS THAT GOVERN THE SERVICES PROVIDED HEREUNDER. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS AGREEMENT WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT USE THE SERVICES. YOU AGREE THAT YOUR ASSENT TO THIS AGREEMENT, GIVEN ELECTRONICALLY, WILL HAVE THE SAME LEGAL EFFECT AS IF IT HAD BEEN PERSONALLY SIGNED BY YOU. TO THE EXTENT PERMITTED BY LAW, THIS AGREEMENT IS INTENDED TO SUPERSEDE ANY PROVISIONS OF APPLICABLE LAW, WHICH MIGHT OTHERWISE LIMIT THEIR ENFORCEABILITY OR EFFECT, BECAUSE THEY WERE ENTERED INTO ELECTRONICALLY. PLEASE PRINT A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT, YOU WILL NOT BE ABLE TO PURCHASE OR ACCESS THE SERVICES.

This Agreement ("Agreement") is made on the date accepted and agreed to by the person or entity whose name and address are set forth on the related order form ("Customer" or "you"), in favor of Kirkus Media, LLC and its affiliates, including but not limited to the Kirkus Media division (collectively, "Kirkus Media"). By agreeing to this agreement and submitting a manuscript (the "Manuscript") for editorial services (“Editorial Services”) and/or cover design, interior design, or manuscript formatting services ("Book Prep Services" and together with the Editorial Services, the “Services”), by Kirkus Media, Customer hereby irrevocably and unconditionally agrees to the following terms and conditions:

1. Submission. If Kirkus Media elects to provide Editorial Services, the editorial process will begin after Kirkus Media receives full payment, confirmation of the acceptance of this Agreement and one digital version of the Manuscript in Microsoft Word format. In the case of Book Prep Services, the process will begin after Kirkus Media receives full payment, confirmation of the acceptance of this Agreement, one digital version of the Manuscript in Microsoft Word, a complete creative brief (the “Creative Brief”) and print-ready images (“Images”) in the case of illustrations, photos, charts, graphs or tables. Kirkus Media makes no guarantee regarding the timing of the completed Services. Kirkus Media shall endeavor to complete the Services by the estimated delivery date stated to Customer upon its acceptance thereof; provided, however, Customer hereby acknowledges and agrees that Kirkus Media may modify the estimated delivery date by notice to Customer within twenty-four (24) hours prior to the estimated delivery date. Submissions are not processed on weekends or U.S. national holidays. The submitted file(s) may be retained byKirkus Media for archival purposes.
2. Cancellation and Refusal. You may not cancel this Agreement. Kirkus Media may refuse your submitted request for the Services for any or no reason at any time in the process, regardless of receipt of payment. If Kirkus Media elects not to provide the Services, Customer will be notified of such decision, the digital copy of any Manuscript, Creative Brief or Images will be deleted, and Customer shall receive a refund for the portion of Customer’s payment which relates to any Services which were not provided by Kirkus Media for Customer as of the date of such refusal. Upon completion of the foregoing, Kirkus Media shall be fully released from all obligations to Customer to provide the Services or otherwise. Kirkus Media reserves the right to refuse to provide any refunds due to Customer's failure to use any or all of the Services provided in Customer's purchased editorial or book prep package.
3. Price and Payment. The prices charged for the Services purchased under this Agreement shall be Kirkus Media's then-current charges and rates for the type of Services and word count of the Manuscript as set forth on the related order form. If the actual word count of the Manuscript submitted does not equal the count used to calculate the amount due at the time of purchase, or if the actual specifications for cover design, interior design or formatting quote do not equal the specifications used to calculate the amount due at the time of purchase, Customer hereby authorizes Kirkus Media or its agent to charge Customer's credit card for the outstanding balance prior to the provision of the Services by Kirkus Media. If Customer fails to pay the outstanding balance to Kirkus Media, the submitted Manuscript, Creative Brief and/or Images will be deleted, and Kirkus Media shall be fully released from all obligations to Customer to provide the Services or otherwise. Payment is due in full upon the submission of the related order form, or, in the case of or any additional outstanding balance required hereunder, on such date indicated by Kirkus Media.
4. Customer Acknowledgements.
   1. Subjectivity; Limits.
      1. Editorial Services. Customers purchasing the Editorial Services hereby acknowledge and accept that: (A) the editorial feedback from the Kirkus Media editors and copywriters (collectively, the "Kirkus Editors") is subjective; (B) the editorial feedback and content may be limited to maintain the integrity of the Manuscript; (C) the Kirkus Editors shall not be required to "ghostwrite" or make significant changes to the dialogue, structure, or plot of the Manuscript; (D) Customer assumes all responsibilities for typographical and other errors present in the Manuscript at the time of submission, and corrections included in Customer’s package will be limited to typesetting issues; and (E) the cost for inputting editorial corrections to the Manuscript for formatting and for interior design are set forth on Kirkus.com.
      2. Book Prep Services. Customers purchasing Book Prep Services hereby acknowledge and accept that: (A) while Kirkus Editors, formatters, and designers (collectively, “Kirkus Contributors”) will endeavor to produce a cover design and/or interior design (collectively, “Design”) according to Customer’s specifications as provided in the Creative Brief; due to the subjectivity of the process, Kirkus Media shall not be responsible if the Design does not satisfy the Customer’s expectations; (B) Customer may request limited revisions to such designs as established on the related order form, however any additional design revisions or concepts will be billed according to the fee structure set forth on Kirkus.com; and (C) the cost for inputting editorial corrections to the Manuscript for formatting and for interior design are set forth on Kirkus.com.
   2. No Guarantee. Customer hereby acknowledges and accepts that Kirkus Media will endeavor to provide the Services in substantial conformity to the order form, but Kirkus Media does not guarantee such Services will be error-free.
5. Ownership; Disclosure of Services.
   1. Editorial Services. In the case of Editorial Services, Kirkus Media retains exclusive ownership of all editorial feedback and content provided by the Kirkus Contributors and owns all intellectual property rights, title and interest in any ideas or concepts related thereto. Customer shall not attribute any editorial feedback or content created by Kirkus Editors, Kikrus Contributors, Kirkus Reviews, Kirkus Media or any of its affiliates. Customer hereby agrees that it will not directly or indirectly utilize any portion of the feedback or communication from the Kirkus Editors or other employees or agents of Kirkus Media in any publication (online or in print) or for any promotional purposes whatsoever.
   2. Book Prep Services. In the case of Book Prep Services, Customer will own the final Design Deliverables (the “Deliverables”), as defined on the order form. Kirkus Media retains exclusive ownership of all draft materials and any and all design templates used to create the Deliverables; all design and editorial feedback and content provided by the Kirkus Editors; and owns all intellectual property rights, title and interest in any ideas or concepts related thereto. While Kirkus Media will customize Customer’s Deliverables to the Customer’s specifications, Customer recognizes that graphic designs generally can have a common structure and basis. Kirkus Media continues to own any and all template designs it may have created or contracted from its independent contractors as work made for hire prior to this Agreement. Kirkus Media will further own any template designs it or its independent contractors may create as a result of this Agreement. Customer acknowledges and agrees that, solely as part of the process of quality assurance and beta testing of Deliverables, Kirkus Media may upload your files to Kirkus Media’s own thirty-party accounts on your publishing platform of choice to confirm their technical integrity. Customer hereby grants Kirkus Media a non-exclusive, royalty-free license to reproduce and publish the Deliverables on the Kirkus Media’s website or in design portfolios for use in connection with the marketing or sales of the Services.
6. Representations and Warranties; Indemnification. You represent and warrant that (i) you areauthorized to submit the Manuscript or Creative Brief, as applicable, for the Services, (ii) you have the full power, authority and capacity to enter into this Agreement and to perform your obligations under this Agreement, and no portion of the Manuscript or Creative Brief, as applicable, infringe, violate or misappropriate any intellectual property rights or copyrights of any other person or entity, and (iii) if you elect to provide Kirkus Media with materials such as but not limited to an image or images, including the Images, (e.g. photographs, illustrations, drawings, artwork) for the purpose of interior or cover design or formatting, you warrant that all proper rights and licenses have been obtained and are currently in full force and effect for their use as part of the Services, and that their use does not and will not infringe, violate or misappropriate any intellectual property rights or copyrights of any other person or entity. Customer further agrees to furnish any and all credit lines required as part of a permissions’ agreement to Kirkus Media at the time of purchase of the Services, and Kirkus Media shall not be responsible Customer’s failure to do so. In the case that Kirkus Media provides author with a cover image from a third- party image bank or other source, Customer further agrees to abide by terms and limitations of the third-party licensing agreement for images, including but not limited to expiration of set-term licenses and print-run limitations. Customer irrevocably releases Kirkus Media, its affiliates, employees and independent contractors, and shall indemnify, defend and hold them harmless from and against any and all liabilities, damages, losses, claims, costs and fees (including attorneys' fees) related to or arising in connection with the Services, the Manuscript, Creative Brief and Images and any breach, alleged breach of any representation or non-performance of any covenant set forth in this Agreement. The representations and covenants set forth in this Agreement shall survive termination of this Agreement and the delivery of the Deliverables or Services.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. Kirkus Media specifically disclaims all warranties, express or implied, including, but not limited to, warranties against non- infringement, RESULTS TO BE OBTAINED FROM THE SERVICES, accuracy and implied warranties of merchantability, title and fitness for a particular purpose OF THE SERVICES PROVIDED HEREUNDER. Customer has no legal recourse, and may not threaten or commence litigation, if it does not agree with the Services, EDITORIAL FEEDBACK, DELIVERABLES OR CONTENT. NEITHER KIRKUS MEDIA NOR ITS INDEPENDENT CONTRACTORS WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KIRKUS MEDIA'S TOTAL LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THE SERVICES PROVIDED HEREUNDER SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICES.
8. Disputes. Customer acknowledges and agrees that the Services shall not be re-performed nor shall refunds be granted, regardless of the content or nature of the editorial feedback of the Manuscript or Design Deliverables. All legal fees incurred by Kirkus Media in response to Customer claims or in obtaining injunctive relief hereunder shall be the responsibility of Customer. Re-performance of the Services shall be considered only if Kirkus Media, in its sole and absolute discretion, determines the quality of the work, editorial feedback, or design feedback of the Kirkus Contributor does not meet Kirkus Media's standard of editing, formatting and/or design guidelines and policies. Kirkus Media reserves the right to sever communications with Customer after a final determination is made by Kirkus Media with respect to any dispute related to the Services. If Customer continues to make or attempts to make contact with Kirkus Media employees, agents, or independent contractors after such final determination, Kirkus Media may pursue all available remedies including, but not limited to, injunctive relief or other legal action.
9. Interpretation of Policy. All matters and questions not specifically covered in this Agreement are subject to the final decision of Kirkus Media.
10. Miscellaneous.
    1. Assignment; Independent Contractors. Customer may not assign this Agreement. Kirkus Media may assign this Agreement and specifically has the right to engage independent contractors to provide the Services.
    2. Entire Agreement; Severability. This Agreement is the entire agreement between Kirkus Media and Customer regarding the subject matter hereof and supersedes all prior oral or written communications, agreements and understandings between Customer and Kirkus Media. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
    3. Force Majeure. Kirkus Media shall not be responsible to Customer for any failure to perform any of its obligations under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control (a "Force Majeure"). In such event, however, Kirkus Media will promptly notify Customer with written notice of the Force Majeure and the time for performance will be excused for the duration of the Force Majeure.
    4. No Third Party Beneficiaries. Except as set forth in Sections 6, 7 and 8, no provision of this Agreement is intended to create in any person other than the parties hereto any rights or remedies hereunder.
    5. No Waiver. Waiver by either party of any provision, default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. The failure of a party to require performance by the other party of this Agreement will not diminish the right of that party later to require performance of that provision.
    6. Governing Law; Venue. This Agreement shall be construed and interpreted according to the laws of the State of Texas without regard to its conflicts of law provisions and shall be binding upon the parties hereto, their heirs, successors, permitted assigns and representatives. Customer hereby submits to the exclusive personal jurisdiction of the federal and state courts located in Austin, Texas, which shall have exclusive jurisdiction to hear and settle any and all matters involving the parties.
    7. Arbitration. Any and all controversies, claims or disputes relating to the provisions, obligations, or services provided under this Agreement shall be submitted to binding arbitration in accordance with the provisions of applicable law of the State of Texas, without regard to its conflicts of law provisions, as from time to time amended. Any arbitration will be held in Austin, Texas in accordance with the then-current Arbitration Procedures of the American Arbitration Association before a single arbitrator. The parties agree that arbitration will be the sole remedy of both parties for resolving any and all disputes related to this Agreement whether based on contract or tort or otherwise. The arbitrator’s award will be in writing and enforceable in a court of competent jurisdiction. Unless otherwise set forth in this Agreement, all expenses in connection with such dispute will be borne by the party incurring such expenses and in accordance with the rules of the American Arbitration Association. Notwithstanding the provision in this Section 10.G to the contrary, Kirkus Media may seek an injunction from a court of competent jurisdiction to enforce the provisions of Sections 5 and 9 of this Agreement. Without limiting the foregoing, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND KIRKUS MEDIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Kirkus Media agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
    8. Injunctive Relief. Customer understands that in the event of a breach or threatened breach of Sections 5 and 8 of this Agreement by Customer, Kirkus Media will suffer immediate and irreparable harm for which money alone cannot fully compensate Kirkus Media; therefore, in such event, Kirkus Media will be entitled to obtain injunctive relief from a court of competent jurisdiction (regardless of Section 10.G) to enforce this Agreement without the necessity of proof of actual damage. This Section shall not be construed as an election of any remedy, or as a waiver of any right available to Kirkus Media under this Agreement or the law, including the right to seek damages from Customer for a breach of any provision of this Agreement, nor shall this paragraph be construed to limit the rights or remedies available under applicable law for any violation of any provision of this Agreement.
    9. Print Agreement. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon, or relating to, this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.