Kirkus Indie 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 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 (this "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"), for the benefit of Kirkus Media, LLC and its affiliates, including but not limited to its Kirkus Indie division (collectively, "Kirkus Indie"). By agreeing to this Agreement and submitting a request for a review (the "Review") of a book (the "Book") by Kirkus Indie, Customer hereby irrevocably and unconditionally agrees to the following terms and conditions:

1. Submission. If Kirkus Indie elects to provide the Review, the Review process will begin after Kirkus Indie receives full payment, confirmation of Customer's acceptance of this Agreement and two printed copies or one digital copy of the Book in its final form. The Book may be in electronic or print format (no audiobooks), preferably in accordance with the formatting requirements set forth at https://www.kirkusreviews.com/indie/faq/. Kirkus Indie makes no guarantee regarding the timing of the completed Review, however, standard reviews are generally completed and returned to Customer within seven to nine weeks, while expedited reviews are generally completed and returned to Customer within four to six weeks. Upon its acceptance of the submission, Kirkus Indie will provide an estimated delivery date of the Review to the email address or mailing address set forth on the related order form. Submissions are not processed on weekends or U.S. national holidays. The submitted copies of the Book shall become the property of Kirkus Indie and will not be returned to Customer. Kirkus Indie will not accept interim revisions of the Book.

2. Cancellation and Refusal. You may not cancel this Agreement. Kirkus Indie may refuse your submitted request for the Review for any or no reason at any time in the process, regardless of receipt of payment. If Kirkus Indie elects not to provide the Review, Customer will be notified of such decision, all copies of the Book will be returned to Customer, and Kirkus Indie shall provide a refund for any payments made by Customer in connection with such request for the Review.Upon the completion of the foregoing, Kirkus Indie shall be fully released from all obligations to Customer to provide the Review or otherwise.

3. Price and Payment. The prices charged for the Review purchased under this Agreement shall be Kirkus Indie's then-current charges for the type review set forth on the related order form. Notwithstanding the foregoing, any Book containing 200,000 words or more are subject to additional fees and may require a reasonable extension of time for the completion of the Review. If Customer submits a Book containing 200,000 words or more and declines or fails to pay the additional fees and/or refuses to grant a reasonable extension of time for completion of the Review upon the request of Kirkus Indie, the submitted copies of the Book will be returned to Customer and Kirkus Indie shall be fully released from all obligations to Customer to provide the Review or otherwise. Payment is due in full upon the submission of the related order form, or, in the case of additional fees required hereunder, on such date indicated by Kirkus Indie.

4. Customer Acknowledgements. Customer hereby acknowledges and accepts that:

A. Review Process. The Review process is anonymous; Customer will not be informed of the individual chosen to write the Review; Customer cannot specifically choose a reviewer, nor make any requirements regarding the reviewer's age, gender, race, religion or professional background; Customer shall not receive the reviewer's personal information under any circumstances; Kirkus Indie shall have full control over the selection of the reviewer; and all placement decisions made by Kirkus Indie shall be final.

B. Review Format and Content. The Review will be approximately 250 to 300 words in length; Kirkus Indie will use its best efforts to provide a Review that is impartial and unbiased but not necessarily favorable; although the Book will be evaluated in its entirety, Kirkus Indie will use its best efforts to provide a Review which will largely contain summary content of a portion of the Book in an amount sufficient to provide context to the critique without revealing the details of the conclusion of the plot; and the Review may refer to Customer's prior work(s).

C. Review Subjectivity. The Review is subjective and shall be based solely upon the reviewer's review of the content of the Book and reading experience; the reviewer may pass on an opinion in the Review based upon such reviewer's subjective interpretation of certain aspects of the Book including, but not limited to, the interpretation of the characters or the construct of the Book; and Customer's intent and the reviewer's experience in reading the Book may not be aligned.

5. Publication of Review.

A. Process. Upon receipt of the Review, Customer may opt to release the Review for Kirkus Indie's publication. Customer must release the Review for Kirkus Indie's publication prior to Customer's publication, reproduction, or direct or indirect reference to the Review in any medium whatsoever.

B. Declination and Revocation. Customer may opt to decline the publication of the Review upon delivery thereof; provided, however, that if Customer declines to publish the Review, Customer shall not have the right to publish or reproduce any part of the Review or directly or indirectly refer to the Review or the services provided hereunder in any medium whatsoever. Except as set forth herein, Kirkus shall not publish the Review if Customer does not opt to do so after the delivery of the Review. If no other publication, reproduction, or reference to the Review has been made, Customer may request that such Review be removed from Kirkusreviews.com. Customer hereby acknowledges that the published Review cannot be removed from the Kirkus Reviews magazine, the electronic newsletter or any licensee's publication or website. Customer further acknowledges that after a review is unpublished or edited on Kirkusreviews.com, the original review may still appear in search results of third party search engines. 

C. Right to Publish and Promote. Kirkus Indie reserves the right to publish and distribute all reviews published on Kirkusreviews.com without limitation. This includes, but is not limited to, publication in Kirkus Reviews magazine, email distribution of the Review to Kirkus newsletter subscribers, and distribution of the Review to the licensees of Kirkus Indie. Upon the publication or reproduction of any portion of the Review by Customer or any direct or indirect reference to the Review or the services provided hereunder in any medium whatsoever, Customer hereby immediately, automatically and irrevocably grants Kirkus Indie the right to publish the Review in its entirety on Kirkusreviews.com.

D. No Guarantee. All reviews which are authorized to be published shall appear on Kirkusreviews.com. Customer acknowledges that there is no guarantee that the Review will be featured in any other Kirkus publication, including but not limited to, the Kirkus Reviews magazine or electronic newsletter.

E. Licensees. Customer acknowledges that Kirkus Indie is not responsible for any licensee's failure to publish the Review in its publication or website. Customer further acknowledges that the licensees of Kirkus Indie may change from time to time and there is no guarantee that any entity or website shall be an active licensee of Kirkus Indie.

6. Reproduction of Review.

A. Ownership of Review; Limited License. Kirkus Indie retains exclusive ownership of the Review and owns all intellectual property rights, title and interest in any ideas or concepts related to the Review. If published, Kirkus Indie grants Customer a non-exclusive, non-transferable, revocable, royalty-free right to reproduce the Review in its entirety or excerpt a portion of it for marketing or promotional purposes only. Kirkus Indie reserves the right to revoke such license for any reason. Other than as set forth hereunder or in the Excerpt Policy (as defined below), Customer shall not make any use of any trademark, service marks, trade names, or trade dress of Kirkus Indie or its affiliates. Customer further agrees that it will not directly or indirectly utilize any portion of the feedback or communication from the reviewer or other employees or agents of Kirkus Media in any publication (online or in print).

B. Excerpt Policy. Any excerpts of the Review shall strictly adhere to the Excerpt Policy set forth at https://www.kirkusreviews.com/indie/about/excerpting-policy/ which may be updated or amended from time to time (the "Excerpt Policy"). Without limiting the foregoing, Customer may not add words to, utilize deceptive editing, or alter the integrity of the Review and shall, in each publication of the Review, include a prominent credit attributing the Review to "Kirkus Reviews" in italics.

7. Representations and Warranties; Indemnification. You represent and warrant that (i) you are authorized to submit the Book for a Review, (ii) you have the full power, authority and capacity to enter into this Agreement and to perform your obligations under this Agreement, and (iii) no portion of the Book infringes, violates or misappropriates any intellectual property rights of any other person. Customer irrevocably releases Kirkus Indie, 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 Review and any breach, alleged breach of a 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 Review.

8. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. Kirkus Indie specifically disclaims all warranties, express or implied, including, but not limited to, warranties against non-infringement, RESULTS TO BE OBTAINED FROM THE REVIEW and implied warranties of merchantability and fitness for a particular purpose OF THE review OR SERVICES PROVIDED HEREUNDER. KIRKUS INDIE PROVIDES ITS WEBSITES ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY. IN THE EVENT OF INTERRUPTION OF DISPLAY, KIRKUS INDIE's SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. Customer has no legal recourse, and may not threaten or commence litigation, if it does not agree with the Review or finds it objectionable. NEITHER KIRKUS INDIE NOR ITS INDEPENDENT CONTRACTORS WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE REVIEW OR THE SERVICES PROVIDED HEREUNDER EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KIRKUS INDIE'S TOTAL LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THE REVIEW OR ANY SERVICES PROVIDED HEREUNDER SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE REVIEW.

9. Disputes. Customer acknowledges and agrees that no second reviews or refunds will be granted, regardless of the content or nature of the Review. Customer further acknowledges that Customer has no legal recourse, and may not threaten or commence litigation, if it does not agree with the Review or finds it objectionable. All legal fees incurred by Kirkus Indie in response to Customer claims or in obtaining injunctive relief hereunder shall be the responsibility of Customer. Revisions of the Review will be considered only if it contains factual errors and shall only be granted in Kirkus Indie's sole and absolute discretion. Kirkus Indie reserves the right to sever communications with Customer after a final determination is made by the the editorial staff of Kirkus Indie with respect to any dispute related to the Review. If Customer continues to make or attempts to make contact with Kirkus Indie employees, agents, or independent contractors after such final determination, Kirkus Indie may pursue all available remedies including, but not limited to, injunctive relief or other legal action.

10. Interpretation of Policy. All matters and questions not specifically covered in this Agreement are subject to the final decision of Kirkus Indie.

11. Miscellaneous.

A. Assignment; Independent Contractors. Customer may not assign this Agreement. Kirkus Indie may assign this Agreement and specifically has the right to engage independent contractors to provide the Review.

B. Entire Agreement; Severability. This Agreement is the entire agreement between Kirkus Indie and Customer regarding the subject matter hereof and supersedes all prior oral or written communications, agreements and understandings between Customer and Kirkus Indie. 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.

C. Force Majeure. Kirkus Indie 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 Indie 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.

D. No Third Party Beneficiaries. Except as set forth in Sections 7, 8 and 9, no provision of this Agreement is intended to create in any person other than the parties hereto any rights or remedies hereunder.

E. 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.

F. Governing Law. 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.

G. 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 11.G to the contrary, Kirkus Indie 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 INDIE 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 Indie 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.

H. Injunctive Relief. Customer understands that in the event of a breach or threatened breach of Sections 5 and 9 of this Agreement by Customer, Kirkus Indie will suffer immediate and irreparable harm for which money alone cannot fully compensate Kirkus Indie; therefore, in such event, Kirkus Indie will be entitled to obtain injunctive relief from a court of competent jurisdiction (regardless of Section 11.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 Indie 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.

I. 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.