PUBLISHER AND LICENSED DISTRIBUTOR AGREEMENT

This Publisher and Licensed Distributor Agreement (‘‘Agreement’’), is made by and between Benchmark Publishing, LLC (“corpPublisher”)oration, and Signatory, the Licensed Distributor, an individual herein referred to as (‘‘Distributor’’).

RECITALS

        WHEREAS Publisher has conceived, developed and is publishing a series of "Inspirational Art Prints" (“Art”) for sale; and

WHEREAS Distributor wishes to obtain a license to sell said Art; and

WHEREAS the parties desire to memorialize their respective rights and obligations in (The Chapter) iin connection with the license and sale of said Art; and

WHEREAS this Agreement shall apply to every means by which the Art is or can be published, reproduced, made available for viewing or sold within the Universe; and

NOW, THEREFORE, in exchange for a license to sell said Art and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

TERMS OF AGREEMENT

In consideration of the mutual promises contained herein, the parties hereby agree:

1.     GENERAL OBLIGATIONS OF WRITEDISTRIBUTOR. WriterAll expenses necessary to fulfill Writer’sDistributor’s obligations under this Agreement are the sole responsibility of WriterDistributor.

2.     GENERAL OBLIGATIONS OF CORPPUBLISHER. CorpPublisher shall use its reasonable efforts to fulfill WriterPublisher’s obligations under the terms and conditions of this agreement.

3.    DISTRIBUTOR.  Distributor expressly agrees that Publisher shall have no liability whatsoever to Distributor or any third party for any of Distributor’s sales, transactions or dealings and Distributor agrees to indemnify Publisher as set forth in this agreement for any and all claims arising therefrom.

4.     DEADLINES. WriterCorpPublisher shall have the sole right to, upon reasonable written notice to WriteDistributorr, to change any deadlines set forth herein.

5.     REVISIONS.  Publisher shall have the absolute right, at any time, with respect to any aspect of the Art, to revise or adapt the Art and publish, without any right of approval from or remuneration to Distributor.,

        Publisher shall have no obligation to permit Distributor to undertake any revisions or adaptations of the Art, or any derivatives thereof, and shall have the sole right, in its discretion, to complete and publish the Art, or any derivatives thereof, without further obligation to Distributor of any manner whatsoever.

6.     WRITER’SDISTRIBUTOR’S FAILURE TO COMPLY. Without limiting any other provision of this Agreement, or any of CorpPublisher’s rights or remedies under this Agreement or otherwise, if WriterDistributor fails to fulfill WriteDistributor’s obligations under this Agreement for any reason (including WriteDistributor’s death or incapacity), CorpPublisher shall have the absolute right to revoke Distributor’s license, without further obligation or refund of monies paid by Distributor or WriterDistributor’s estate.

7.      RIGHTS. Copyright on The Art during its initial, renewal and any extended terms in all forms and languages throughout the world shall be secured and held in the name of Publisher for any and all forms or medias now known or hereafter developed in perpetuity and Distributor shall not have any ownership rights to the Art.

WriterDistributor shall not, nor shall Distributor permit any third party to, publish or otherwise reproduce, any portion of the Art in any media now known or hereafter developed anywhere in the Universe or any version, revision, translation or other derivative Art based thereon without obtaining Publisher’s prior written consent.

Distributor agrees not to compete with or engage in activities that would disparage The Art or Publisher. Distributor shall not exercise those rights reserved to Publisher herein in such a way as to destroy, detract from, or impair the value of, the Art or any rights granted to Publisher herein. 

Distributor shall take such additional steps and execute such further documents as CorpPublisher reasonably requests to confirm, enforce or implement the provisions of this Agreement or to satisfy the requirements of any third party with whom CorpPublisher may deal.

Distributor has no right to any remuneration, in the form of royalties or otherwise, resulting from The Art except for Distributor’s sales of said Art, pursuant to the license granted herein. Distributor has no so-called moral rights (including rights of attribution and integrity), or “droit moral” rights, and any analogous rights with respect to the uses of the Art, or any derivatives thereof, contemplated by this Agreement or any agreement CorpPublisher may make with a third party with respect to exploitation of the Art or any derivatives. Distributor shall have no rights to exploit, or authorize any other person to exploit, The Art, or any derivatives thereof, in any form or media.

8.       LICENSE.   Distributor is limited to reproducing a maximum of 500 copies of the Art for sale or any other use. 

8.1 Distributor is prohibited from selling or otherwise providing more than twenty five (25) copies     of the Art to any one buyer or entity.

8.2  Distributor is prohibited from selling or distributing the digital version of the Art. 

8.3  Distributor is prohibited from selling or distributing the Art in any form or format other than as a physical print or framed physical print.

8.4  Distributor is prohibited from selling or distributing the Art on any Internet auction site. 

8.5  Distributor is prohibited from altering or changing the Art in any manner whatsoever.

9.     PUBLICATION. CorpPublisher, in its sole discretion, shall have the exclusive right to determine if, when, and in which media the Art, or any derivatives thereof, are published. Publisher shall have the right to publish the Art in any and all media forms, including  electronic onr any form now otherwise now  known or developed in the future.  Notwithstanding the foregoing, WriterDistributor expressly acknowledges that CorpPublisher shall have no obligation to publish the Work, nor any derivatives thereof, or to maintain the commercial availability of the Art, or any derivatives thereof, in any media now known or hereafter developed, at any time, and that failure to publish or maintain the commercial availability of the Art shall be in Publisher’s sole discretion, without requiring any notice to Distributor.

10.  PAYMENTS. All currencies are in United States dollars. Art will be delivered digitally. Any and all costs associated with Distributor’s license, sale and/or reproduction of said Art under the Distributor’s license, including but not limited to [$______shipping costs, if applicable, for any Art ordered by Distributor, will be paid by Distributor.  If Distributor or Distributor’s clients are located outside the United States of America, Distributor will pay the taxes, tariffs, duties, customs charges and additional shipping charges required to successfully ship the Art outside the United States to Distributor or Distributor’s clients. Distributor expressly agrees that Publisher is not responsible for any of Distributor’s costs pursuant to Distributor’s license or in any other manner.

11.   ATTRIBUTION OF DISTRIBUTORSHIP. WriterPublisher shall be entitled to no credit, within said Art asin any form, whether as an author,  copyright owner,. or any derivatives thereof, or any advertising or promotion relating thereto. CorpPublisher shall be entitled to determine, in its sole and absolute discretion, all credits that may be afforded to persons in relation to any of the foregoing, at any time. Without limiting any of the foregoing, such credits may be provided only in Corp’s name and/or the name of any other writer engaged by Corp now or in the future.

12.   PROSECUTION OF CLAIMS. CorpPublisher has the sole right to prosecute, or decline to prosecute, any claims, including claims for copyright or trademark infringement, with respect to the Art, or any derivatives thereof. WriterDistributor expressly authorizes and empowers CorpPublisher to prosecute any such claim in herDistributor’s name at CorpPublisher’s expense. CorpPublisher shall be solely responsible for the payment of all legal fees and expenses incurred in connection with the prosecution of any such claims, and shall have complete and exclusive right and title to any award, judgment or settlement resulting there from.

13.   REPRESENTATIONS AND WARRANTIES BY WRITERDISTRIBUTOR; INDEMNITY. WriterDistributor hereby represents and warrants that:

13.1     WriterDistributor has the absolute right and authority to enter into this Agreement, and has no other contractual or other commitment of any kind which will or might conflict or interfere with the performance of Writer’sDistributor’s obligations under this Agreement.

13.2     WriterDistributor shall use best efforts to comply with the terms of this agreement.

13.3     WriterDistributor is not affiliated with or obligated to any agents or other persons to whom WriterDistributor may owe fees arising from this Agreement, or WriterDistributor’s performance there under, including, but not limited to, any agency commissions.

13.4     WriterDistributor shall be responsible for all its own unemployment and disability insurance, social security, income tax and other withholdings, deductions and payments required by Federal or state laws to be paid by Writer.

13.5     WriterDistributor indemnifies and holds CorpPublisher, its successors, permitted assigns and licensees harmless from any and all claims, demands, suits, losses, costs and expenses (including reasonable attorneys’ fees and including any amount paid in settlement, ASK BOB IF THIS NEXT PART IN THE PARATHESIS IS NEEDED but only if consented thereto in writing by Writer) wwhich may be obtained against, imposed upon or suffered by CorpPublisher, its successors, assigns and licensees by reason of any breach of this Agreement, [or any other agreement], or the representations, warranties or covenants made by WriterDistributorzx in this Agreement [or any other agreement].

13.6     Defense of Claims and Proceedings. CorpPublisher shall control the defense of any claims or proceedings against any of the parties to this Agreement (without limitation the representations, warranties or indemnity obligations of WriterDistributor). The parties shall cooperate with each other in connection with all such proceedings and shall notify each other in writing promptly upon the receipt of any claim or other action which relates to their respective representations and warranties or indemnification obligations under this Agreement [or any other agreement].

(a)   Publisher holds copyright to the Art and grants to Distributor the non-exclusive rights for sale of said Art, pursuant to the terms of the license, as set forth herein. 

14.       REPRESENTATIONS AND WARRANTIES BY CORPPUBLISHER; INDEMNITY. CorpPublisher hereby represents and warrants that: 

            Publisher shall not be liable for any loss or damage to documentation, electronic media, pictures or any media in other forms which may be damaged regardless of whether occurring in transit or while in possession of Distributor, Publisher and any third party.  Distributor hereby agrees, in order to assure the safety of the manuscript and related materials, Distributor shall retain and safeguard Distributor’s own private copies thereof, as permitted by the terms of the license herein.

Publisher shall determine in its sole discretion when, how and how frequently to supply The Art and makes no warranties, representations or guarantees concerning the likely volume of sales to be generated or profits to be realized as a result of such efforts.

 Publisher shall retain all rights, title and interest in and to any and all graphics, content or copy supplied by Publisher and included in The Art as published or otherwise reproduced by Publisher or any licensee thereof (collectively “Publisher’s Material”).  Except as authorized herein, Publisher’s Material may not be reproduced, translated or otherwise used by Distributor without Publisher’s prior written consent, and may be reproduced or otherwise used by Publisher in any other Art in Publisher’s sole discretion.

Publisher may, in its sole discretion and without charge: Reproduce or permit licensees, critics, reviewers or other third parties to reproduce excerpts of The Art for promotional purposes.

After Publisher publishes The Art in any form, Publisher, in its sole discretion, shall have the exclusive right to determine if, when, and in which media The Art, or any derivatives thereof, are published. Notwithstanding the foregoing, Distributor expressly acknowledges that Publisher shall have no obligation to publish the Art, nor any derivatives thereof, or to maintain the commercial availability of the Art, or any derivatives thereof, in any media now known or hereafter developed, at any time.

15.   SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION OBLIGATIONS, TERMS OF AGREEMENT. All representations, warranties, and indemnification obligations of Distributor or CorpPublisher hereunder shall survive the termination of this Agreement or any other agreement to which such warranties, representations, or indemnification obligations pertain.  The term of this Agreement shall be co-extensive with the life of The Art’s copyright.

16.   INDEPENDENT CONTRACTORELATIONSHIP. Writer’s relationship to CorpPublisher is that of an independent contractor. In no instance shall the parties’ relationship under this Agreement be interpreted to create or constitute a partnership, joint venture or other relationship, other than licensor and licensee pursuant to the terms of this agreement.  

17. GOVERNING LAW. This Agreement shall be governed and interpreted in accordance with the laws of the State of Arkansas, (irrespective of its choice of law principles) as an agreement made and to be performed wholly within the State of Arkansas of the United States of America (herein USA).  In any instance where the Arbitration clause, set forth herein, is deemed, either by arbitration or a court of competent jurisdiction, not to apply, any disputes which arise under this Agreement, including after termination of this Agreement, will be heard only in the state or federal courts located in Manila, Arkansas, USA. WriteDistributorr and CorpPublisher expressly agree to submit to the jurisdiction of the foregoing courts inWrite Manila, Arkansas, USA Distributorr and CorpPublisher expressly waive any right to contest the jurisdiction, venue or convenience of any court sitting in Manila, Arkansas, USA.

18. DISPUTES; ARBITRATION. Except as otherwise provided in any written agreement with Publisher signed by both parties, any and all disputes arising by and among any or all of the parties to this Agreement shall be settled by arbitration in Manila, Arkansas, USA, under the rules of the American Arbitration Association.  Each Party will pay their own costs and attorney fees.  The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive jurisdiction to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.  Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction, in Manila, Arkansas, USA..

19. PARTIES BOUND; EXECUTION IN COUNTERPARTS; ASSIGNMENT. This Agreement, once executed by the parties (and such execution may be in counterparts), shall immediately become binding on the parties hereto, and shall constitute an enforceable agreement in accordance with its terms. This Agreement shall be binding upon and inure to the parties hereto, their respective heirs, successors, administrators, and permitted assigns. All rights, duties and obligations of writerDistributor hereunder are personal and non-assignable, and any purported assignment (other than an assignment of proceeds payable hereunder) shall be deemed void ab initio. CorpPublisher shall be permitted to assign this Agreement or any of its rights, duties or obligations hereunder.

20.   NOTICES. Notices shall be sent return receipt or signature receipt required, to the parties as follows and shall be deemed given when sent:

If to CorpPublisher for this Agreement:

Benchmark Publishing, LLC
315 South Church
Jonesboro, AR 72401

If to Distributor:

At Distributor’s address provided to publisher in the Clickbank.com payment.

21. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of the parties and may not be changed except by written agreement by both parties.

22. SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Any unenforceable provision will be replaced by a mutually acceptable provision which comes closest to the intention of the Parties at the time the original provision was agreed upon. 

23.  CONTRACT LANGUAGE.  This agreement is being written in English, which is to be the official language of the contract’s text and interpretation. 

24. ORIGINALS. This Agreement may be executed by fax, or electronically signed (eSignature) and Parties herein agree that Ffaxed copies or electronically signed copies of this Agreement, complete with signatures, or digital or electronic signatures, shall serve as an original copy. 

Copyright 2010 Bob Silber InternetMarketingLawProducts.com
For Benchmark Publishing LLC