Kirkus Editorial Customer Agreement
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 Editorial division (collectively, "Kirkus Editorial"). By agreeing to this agreement and submitting a manuscript (the "Manuscript") for editorial services ("Services") by Kirkus Editorial, Customer hereby irrevocably and unconditionally agrees to the following terms and conditions:
- Submission. If Kirkus Editorial elects to provide the Services, the editorial process will begin after Kirkus Editorial receives full payment, confirmation of the acceptance of this Agreement and one digital version of the Manuscript. Kirkus Editorial makes no guarantee regarding the timing of the completed Services. Kirkus Editorial 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 Editorial may modify the estimated delivery date by notice to Customer delivered within twenty-four (24) hours prior to the estimated delivery date. Submissions are not processed on weekends or U.S. national holidays. The submitted Manuscript shall become the property of Kirkus Editorial and will not be returned to Customer.
- Cancellation and Refusal. You may not cancel this Agreement. Kirkus Editorial 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 Editorial elects not to provide the Services, Customer will be notified of such decision, the digital copy of the Manuscript will be deleted, and Kirkus Editorial shall be fully released from all obligations to Customer to provide the Services or otherwise. Kirkus Editorial 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 package.
- Price and Payment. The prices charged for the Services purchased under this Agreement shall be Kirkus Editorial's then-current charges and rates for the type 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, Customer hereby authorizes Kirkus Editorial or its agent to charge Customer's credit card for the outstanding balance prior to the provision of the Services by Kirkus Editorial. If Customer fails to pay the outstanding balance to Kirkus Editorial, the submitted Manuscript will be deleted and Kirkus Editorial 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 Editorial.
- Customer Acknowledgements. Customer hereby acknowledges and accepts that:
- Subjectivity; Limits. The editorial feedback from the Kirkus Editorial editors and copywriters (collectively, the "Kirkus Editors") is subjective; the editorial feedback and content may be limited to maintain the integrity of the Manuscript; the Kirkus Editors shall not be required to "ghostwrite" or make significant changes to the dialogue, construct or plot of the Manuscript.
- No Guarantee. Customer hereby acknowledges and accepts that Kirkus Editorial will endeavor to provide a professional edit of the Manuscript, but Kirkus Editorial does not guarantee that the edited Manuscript will be error-free.
- Ownership; Disclosure of Services. Kirkus Editorial retains exclusive ownership of all editorial feedback and content provided by the Kirkus Editors and owns all intellectual property rights, title and interest in any ideas or concepts related to the thereto. Customer shall not attribute any editorial feedback or content created by Kirkus Editors to Kirkus Editorial 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 in any publication (online or in print) or for any promotional purposes whatsoever.
- Representations and Warranties; Indemnification. You represent and warrant that (i) you are authorized to submit the Manuscript 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 (iii) no portion of the Manuscript infringes, violates or misappropriates any intellectual property rights of any other person. Customer irrevocably releases Kirkus Editorial, 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 and the Manuscript and any breach, alleged breach or non-performance of any covenant set forth in this Agreement.
- DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. Kirkus Editorial specifically disclaims all warranties, express or implied, including, but not limited to, warranties against non-infringement, RESULTS TO BE OBTAINED FROM THE SERVICES and implied warranties of merchantability 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 OR CONTENT. NEITHER KIRKUS EDITORIAL 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 EDITORIAL'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.
- 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. All legal fees incurred by Kirkus Editorial in response to Customer claims or in obtaining injunctive relief hereunder shall be the responsibility of Customer. Re-performance of the Services shall only be considered if Kirkus Editorial, in its sole and absolute discretion, determines the quality of the work editorial feedback and content of the Kirkus Editor does not meet Kirkus Editorial's standard of editing guidelines and policies. Kirkus Editorial reserves the right to sever communications with Customer after a final determination is made by the Director of Kirkus Editorial with respect to any dispute related to the Services. If Customer continues to make or attempts to make contact with Kirkus Editorial employees, agents, or independent contractors after such final determination, Kirkus Editorial may pursue all available remedies including, but not limited to, injunctive relief or other legal action.
- Interpretation of Policy. All matters and questions not specifically covered in this Agreement are subject to the final decision of Kirkus Editorial.
- Assignment; Independent Contractors. Customer may not assign this Agreement. Kirkus Editorial may assign this Agreement and specifically has the right to engage independent contractors to provide the Services.
- Entire Agreement; Severability. This Agreement is the entire agreement between Kirkus Editorial and Customer regarding the subject matter hereof and supersedes all prior oral or written communications, agreements and understandings between Customer and Kirkus Editorial. 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.
- Force Majeure. Kirkus Editorial 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 Editorial 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.
- 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.
- 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.
- 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.
- 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 Editorial will suffer immediate and irreparable harm for which money alone cannot fully compensate Kirkus Editorial; therefore, in such event, Kirkus Editorial will be entitled to obtain injunctive relief from a court of competent jurisdiction (regardless of Section 10.F) 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 Editorial 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.