Exhibit 10.15
DISTRIBUTORSHIP AGREEMENT
TURF AND LAWN CARE
THIS DISTRIBUTORSHIP AGREEMENT is entered into this 11th day of October,
2002 by and between AMERICAN SOIL TECHNOLOGIES, INC. a Nevada Corporation
("Company"), with its principal place of business in Pasadena California and
X-TREME GREEN LANDCARE ("Distributor") with its principal place of business in
Xxxx Xxxxx, XX hereinafter collectively referred to as the "Parties" and
individually as a "Party".
WHEREAS, Company is engaged in the business of manufacturing and selling
soil amendment products which are set forth in the attached Schedule A
("Products") and,
WHEREAS, Company desires to sell the Products to the Distributor according
to the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth in this
Agreement the Parties hereby agree pursuant to the following terms and
conditions:
I. DESIGNATION AS DISTRIBUTOR
1.1 Upon and subject to the terms and conditions contained in this
Agreement, Company hereby designates the Distributor as a non-exclusive
authorized distributor of the Products.
II. PURCHASE AND RESALE OF PRODUCTS
2.1 Company hereby grants to Distributor the right, subject to the terms
and conditions of this Agreement, to purchase the Products from the Company and
resell the Products to its customers.
2.2 Distributor shall submit orders for the Products to Company. Company
shall deliver to Distributor such Products as the Distributor may order. No
order submitted to Company by the Distributor shall become effective unless and
until it is formally accepted in writing by the Company. Company shall fill such
orders and ship the Products to the Distributor at Distributor's principal place
of business or a place designated by the Distributor. All shipments are FOB
Manufactures plant or warehouse.
2.3 Distributor shall use only the name "Nutrimoist L" in reference to the
polymer bio-nutrient formulation supplied by Company and Distributor shall use
only Nutrimoist L for subsurface injection into lawns, provided, however,
Distributor may use the bio-nutrient component of Nutrimoist L for injection
into subsurface areas other than lawns and Distributor is authorized to use any
name for this component Product that is approved in writing by Company.
Distributor agrees to use only turf injection equipment that is recommended by,
or supplied by, Company and will purchase the equipment directly from the
equipment Manufacturer who will be responsible for warranty, training and
service.
2.4 At no time shall the Distributor attempt to disassemble or reverse
engineer the equipment supplied by or recommended by the Company.. The
polymer/nutrient blend and bio-nutrient package is proprietary and any attempt
to duplicate it for sale shall be a breach of this Agreement. Disassembly of the
lawn injection Equipment shall also breach this Agreement.
2.5 It is the responsibility of the Distributor to add the Company as an
additional insured on its general and product liability policies in a full
amount of not less than $1,000,000.00, and providing for thirty (30) day prior
notice of cancellation to the Company. Upon request, Distributor shall provide
the Company with certificates of insurance confirming Distributor's compliance
with the obligations of this Section.
2.6 The Distributor shall also have responsibility and liability for any
action related to the use of the Equipment and shall indemnify the Company as
set forth in Section 8.8 below.
III. PRICES, DISCOUNTS AND TERMS
3.1 All purchases will be at prices set forth in Schedule "A". Distributor
will pay Company for the Products either in cash or by check at the time of
receipt of order by Company unless written payment terms are arranged with
Company. Distributor understands that the prices set forth in Schedule "A" are
subject to change upon thirty (30) days prior written notice by Company. Product
will be delivered at the price in effect on the date ordered by Distributor.
IV. DELIVERY; RISK OF LOSS
4.1 Company shall ship all Products ordered by Distributor hereunder in the
manner and under the terms specified in Schedule "B".
4.2 Upon acceptance of orders received by Company from Distributor, Company
shall deliver or cause to be delivered by a common carrier any Products ordered
by Distributor. Products shall be shipped FOB Company's plant or warehouse.
V. WARRANTIES AND REPRESENTATIONS
5.1 Company warrants that the Products manufactured and sold to Distributor
will be free from defects in material and workmanship at the time of shipment.
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VI. DISTRIBUTOR OPERATIONS
6.1 Distributor agrees to use its best efforts to develop business in, to
promote the use of, and to sell the Products in accordance with good business
practice. Company agrees to reasonably assist Distributor in the sale of the
Products. Company further agrees to provide Distributor with all information,
literature and relevant material regularly available under Company's practices
for use by its distributors.
6.2 Distributor may display Products in shows, wherever located, in which
Distributor's participation is permitted by the show rules.
6.3 Distributor may use Company's trademarks, trade names and symbols that
apply to the Products in advertising signage and other materials designed to
promote and sell the Products under the Agreement. Distributor will not obtain
or attempt to obtain any right, title or interest in or to the trademarks, trade
names and symbols. The Distributor's Advertising signage and other materials
designed to promote and sell the Products under the Agreement utilizing
Company's trademarks, trade names and symbols that apply to the Products shall
be pre-approved by the Company.
6.4 Distributor shall not distribute, offer, sell, or use the Equipment to
install, any products that compete or may compete with Company's Products
including but not limited to products that contain cross-linked "super absorbent
polymers" or linear polymers (XXX).
6.5 Distributor agrees that neither it nor its directors, officers
affiliates, or employees shall at any time, either during or subsequent to the
term of this Agreement, unless expressly consented to in writing by Company,
either directly or indirectly use or disclose to any person or entity any
confidential information of any kind, nature or description concerning any
matters affecting or relating to the business of Company. This shall include,
but not be limited to, information concerning the customers of Company,
Company's marketing methods, compensation paid to employees, independent
contractors or suppliers and other terms of their employment or contractual
relationships, financial and business records, know-how, or any other
information concerning the business of Company, its manner of operations, its
manufacturing methods or product formulations or other data of any kind, nature
or description. Distributor agrees that the above information and items are
important, material and confidential trade secrets and these affect the
successful conduct of Company's business and its goodwill.
VII. TERM AND TERMINATION
7.1 This Agreement shall become effective upon its execution by both
parties hereto by their authorized representatives. Upon execution, this
Agreement shall remain in effect for an initial term of one (1) year ("Initial
Term"). This Agreement shall automatically renew for successive one (1) year
terms unless either party notifies the other in writing at least thirty (30)
days prior to the end of any one (1) year term that they do not wish to renew
this Agreement.
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7.2 This Agreement may be terminated: (1) at any time by the mutual consent
of the parties in writing, effective as provided therein; (2) with cause by
either party at any time by giving the other party thirty (30) days notice, in
writing, by registered or certified mail, of such termination.
This Agreement may be canceled for cause by the non-offending party prior
to the expiration of the contract term on any of the following grounds:
(a) A trustee, receiver, or other similar custodian is appointed for all or
any substantial part of the other party's property:
(b) When the aggregate of one party's property, exclusive of any property
which it may have conveyed, transferred, concealed, removed or permitted to be
concealed or removed, with intent to defraud, hinder, or delay its creditors,
shall not at a fair valuation be sufficient in amount to pay its debts, or the
party is unable, by its available assets or the honest use of credit, to pay its
debts as they become due;
(c) The other party files a petition, or an answer not denying
jurisdiction, in bankruptcy or under Chapter 7 or 11 of the Federal Bankruptcy
Code or any similar law, state or Federal, whether now or hereafter existing, or
such a petition is filed against the other party and not vacated or stayed
within fifteen (15) days
(d) The other party makes an assignment for the benefit of creditors;
(e) An attachment, or any like process, is levied or filed against any
substantial part of the other party's property, and is not discharged within
fifteen (15) days
(f) A judgment is rendered against the other party and remains unsatisfied,
unstayed or otherwise unsuperseded for sixty (60) days and is substantial in
relation to the other party's assets;
(g) The other party ceases to have in effect a valid Federal, state or
local license required for the carrying out of the provisions of this Agreement,
whether through revocation, failure to renew, or suspension for more than thirty
(30) days.
(h) If Distributor sells or transfers control or management of a material
portion of its total physical assets without prior written notification sent to
the non-selling/non-transferring party. A change in ownership or management
includes, but is not limited to, the sale by the owners of a controlling
interest in their respective companies and shall specifically exclude the death
or incapacity or termination of employment of a principal, officer, partner or
manager. Distributor shall give such written notice to the Company of any
contemplated change in ownership at least thirty (30) days prior to the
effective date of such contemplated change:
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(i) A law is enacted making the sale of Products unlawful;
(j) The other party engages in any act with respect to the Products, which
is in violation of any Federal or state law, regardless of whether such
violation is prosecuted by any administrative or judicial body which violation
results in a loss of the licenses necessary to distribute or supply the
Products;
(k) The other party does not comply with credit terms as agreed to between
the parties.
(l) An assignment pledge or any other security interest is created in all,
or a substantial part of the other party's assets without the prior written
consent of the non-assigning party;
(m) The consistent failure by the other party to meet reasonable sales or
distribution or supply objectives, or failure by the other party to meet any
other goals, objectives or conditions agreed to by the parties hereto;
(n) A breach of any provision of this Agreement, other than those set forth
in subparagraphs (a) through (m) above, if said breach remains uncorrected for
thirty-days (30) after written notice thereof.
A termination pursuant to paragraphs 7.2 (a) through 7.2 (n) above shall
take effect commencing with the thirtieth day after written notice is given to
the party whose rights are to be terminated and a termination pursuant to
paragraph 7.2 (n) above shall take effect on the thirtieth day after the notice
provided for in said paragraph 7.2 (n).
7.3 Termination by either party in accordance with the provisions herein
shall not constitute a breach of this Agreement. Neither Company nor Distributor
shall by reason of the exercise of the rights of termination, be liable to the
other for compensation, reimbursement or damages either on account of present or
prospective profits on sales or anticipated sales, or on account of
expenditures, investments or commitments made in connection therewith or in
connection with the establishment, development or maintenance of the business or
good will of Company or Distributor, or on account of any cause or thing
whatsoever; provided, however, that termination of this Agreement shall in no
way affect Company's or Distributor's obligation with respect to Products
ordered prior to the effective date of the termination.
7.4 In the event of termination of this Agreement, Company shall make
delivery on retail orders placed with and accepted by it and Distributor shall
accept shipment and make payment for any such orders, all in accordance with the
provisions of this Agreement even though termination has been effected.
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7.5 For a period of 2 years after the termination of this contract
Distributor shall not enter any turf care business that injects any substance
containing polymers into mature turf.
VIII. GENERAL PROVISIONS
8.1 Company and Distributor are, and shall be deemed to be, independent
contractors with respect to the subject matter of this Agreement, and nothing
contained in this Agreement shall be deemed or construed in any manner
whatsoever as creating any partnership, joint venture, employment, fiduciary or
other similar relationship between the Parties. Each of the Parties shall
conduct its entire business under this Agreement at its own cost and expense and
shall have no authority to make any representation, guarantee or warranty
(except as may be provided in this Agreement), commitment or agreement on behalf
of the other or to assume or incur any liability or indebtedness on the other's
behalf, or to bind the other under any obligation whatsoever. Neither of the
Parties shall be liable for any act or failure to act by the other, their agents
or employees. Each of the Parties agrees to indemnify and hold the other
harmless from any and all claims resulting from violation of this paragraph or
resulting from any activity of the other Party, its agents, officers, directors
or employees, hereunder.
8.2 Neither this Agreement nor any rights hereunder shall be assigned or
transferred by Distributor without the written consent of Company.
8.3 The failure by either Party to enforce or take advantage of any of the
provisions of this Agreement shall not constitute nor be construed as a waiver
of such provisions or of the right subsequently to enforce or take advantage of
each and every such provision. No waiver, deletion, alteration, modification, or
amendment of this Agreement or the rights arising hereunder, shall be valid and
binding unless in writing signed by a duly authorized representative of each
Party.
8.4 Any notice required or contemplated by this Agreement shall be in
writing, delivered by registered or certified mail, addressed to the Parties at
their addresses hereinafter set forth, or at such other addresses as may from
time to time be substituted therefore by notice in writing sent by the party
changing its address.
8.5 This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California without regard to the
conflicts of law principles thereof. The Parties consent to the jurisdiction of
the Superior Court of Los Angeles County, California as the proper forum.
8.6 If any provision of this Agreement shall in any way be or become
violative of or prohibited by or under the applicable laws, judgments, decrees
or public policy of any state or jurisdiction, said provision or part thereof
shall be, as to said jurisdiction, ineffective and void to the extent of such
violation or prohibition without invalidating any of the remaining provisions of
this Agreement.
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8.7 This Agreement and all Schedules and Addenda, if any, attached hereto
set forth the entire understanding between the Parties as to the subject matter
hereof and incorporates herein and supersedes all prior and collateral
representations and agreements by or between the parties. Any and all prior
franchise, dealership, distributorship, or representation agreements,
commitments or understandings that may have been entered into by the Parties are
hereby terminated and superseded hereby and any and all claims for violations or
breach hereunder are hereby disavowed and released.
8.8. Each Party (the Indemnifying Party) agrees to indemnify, defend, and
hold harmless the other Party (the Indemnified Party) from and against any and
all liability for injury to persons or damage to or loss of property to the
extent caused by the negligent act or omission of the Indemnifying Party, its
subcontractors, agents, or employees, including any and all expense and costs,
legal or otherwise, incurred by the Indemnified Party in the investigation and
defense of any claim, demand, or action arising out of the work performed under
this Agreement; provided, however, that the Indemnifying party shall not be
liable for injury to persons or damage to or loss of property caused by the sole
negligence of the Indemnified Party, its subcontractors, agents, or employees.
However, under no circumstances shall Company be held liable or have the duty of
indemnification for damages due to improper installation of the Products.
The Indemnified Party shall promptly notify the Indemnifying Party of the
existence of any claim, demand, or other matter to which the Indemnifying
Party's indemnification obligations would apply, and shall give them a
reasonable opportunity to settle or defend the same at their own expense and
with counsel of their own selection, provided that the Indemnified Party shall
at all times also have the right to fully participate in the defense. If the
Indemnifying Party, within a reasonable time after this notice, fails to take
appropriate steps to settle or defend the claim, demand, or the matter, the
Indemnified Party shall, upon written notice, have the right, but not the
obligation, to undertake such settlement or defense and to compromise or settle
the claim, demand, or other matter on behalf, for the account, and at the risk,
of the Indemnifying Party.
The rights and obligations of the Parties under this section shall be
binding upon and inure to the benefit of any successors, assigns, and heirs of
the Parties.
8.9 The individuals signing on behalf of Company and Distributor have
authority to bind the respective Parties. Execution and delivery of this
Agreement by Company and Distributor to the other constitutes a valid and
binding Agreement.
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IN WITNESS WHEREOF, this Agreement is signed in two or more counterparts as
of the day and year first above written.
"COMPANY" DISTRIBUTOR"
American Soil Technologies, Inc. X-Treme Green Landcare
000 X. Xxxxxxx Xxxxx 000 00000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxx Xxxxx, XX 00000
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------------- -----------------------------
Xxxx X. Xxxxx Xxxxx X. Xxxxxx
Its: President/CEO Its: Owner/President
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SCHEDULE "A"
PRODUCTS AND PRICE
The Products to which the above-mentioned Agreement relates are the
following and are sold for the price indicated (subject to change upon thirty
(30) days prior written notice by Company to Distributor).
NUTRIMOIST(TM) L
275 gallon tote $7.50/gallon plus tote cost if any
BIO NUTRIENTS
Bio Plus Commercial & home lawn $35.00 /gallon
ALL PRICES ARE F.O.B. COMPANY'S PLANT OR WAREHOUSE
USAGE CHARGE EQUIPMENT AND OPERATOR
$265 per day
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SCHEDULE "B"
PAYMENT AND DELIVERY TERMS
Unless Company and Distributor otherwise agree in writing or Company
notifies Distributor of a change in the terms of payment or other terms and
conditions of sale, the terms of payment and delivery for Products purchased
under the Agreement referred above shall be as follows:
1. Cash upon delivery to Distributor's place of business or such credit
terms agreed to by the Parties;
2. Delivery shall be FOB Company's Plant or Warehouse.
3. Any inventory shall be delivered at the price in effect when
Distributor placed the order.
4. Company shall have no liability or indemnification duty for delays due
to causes beyond Company's control.
5. Usage fee for operator and machine shall be remitted at the end of
each work week.
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