LICENSE AGREEMENT
THIS AGREEMENT is entered into this 20th day of April, 1992 by and
between Eco Soil Systems, Inc. a Nebraska corporation, hereinafter referred to
as "SELLER," having its principal place of business at 0000 Xxx Xxxxxx, Xxxxx
000, Xx Xxxxx, Xxxxxxxxxx 00000, and WESTBRIDGE AGRICULTURAL PRODUCTS, a wholly
owned subsidiary of WESTBRIDGE RESEARCH GROUP, having its principal place of
business at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000, referred to as
("WESTBRIDGE").
RECITALS
A. WESTBRIDGE has developed and is engaging in the manufacture
and sale of certain proprietary products for use in agriculture.
B. SELLER has developed considerable expertise in distributing
materials to the turf grass industry.
C. WESTBRIDGE desire to grant and SELLER desire to obtain an
appointment to market, sell and distribute products as hereinafter set
forth.
COVENANTS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties agree as follows:
ARTICLE I: DEFINITIONS
SECTION 1. PRODUCTS. "Products" shall mean all products as jointly
formulated by the parties or for which specific applications are jointly
developed for sale and use within the Territory, as set forth in Appendix A
attached hereto and incorporated herein by this reference, including all
improvements thereto, and manufactured by WESTBRIDGE.
SECTION 2. TERM. "Term" shall mean the period commencing from the date
hereof, and continuing for a period of twenty (20) years and, unless terminated
by either party for breach for cause and failure to cure as set forth in Article
V hereof, shall automatically renew for successive three (3) year periods
thereafter.
SECTION 3. QUOTAS. "Quotas" shall mean the fiscal year minimum annual
purchase required to be made by SELLER from WESTBRIDGE.
SECTION 4. TERRITORY. "Territory" shall mean the golf course, sod farm
and institutional turf grass maintenance industries in the United States. Eco
Soil Systems, Inc. will have the right to distribute the products listed in
Appendix A in any foreign countries in the future in these markets, provided
that it has established legal representation in the foreign country, has
contractual relationships with local representative to market and service the
product and is in full compliance with the terms and conditions of this
contract.
ARTICLE II: EXCLUSIVE APPOINTMENT
SECTION 1. APPOINTMENT. WESTBRIDGE hereby appoints SELLER for the Term
hereof, and SELLER hereby accepts, an exclusive appointment to sell, market and
distribute the Products within the designated Territory. In the furtherance of
such appointment; WESTBRIDGE agrees to sell Products only to SELLER for use in
designated Territory and SELLER agrees to purchase only from WESTBRIDGE to fill
requirements for Products comparable to Products covered herein.
SECTION 2. IMPROVEMENTS. During each annual period in which the
Agreement is in effect, the parties shall disclose anticipated development work
for the next coming term. Both parties shall, without charge, promptly make
available to one another any technical information relating to protocols,
applications or improvements to Products.
SECTION 3. SPECIAL RESERVATION. WESTBRIDGE specifically reserves the
right to sell its product line, in any manner in which it shall deem
appropriate, other than as limited pursuant to the terms of this Agreement, to
any distributors, outlets, or ultimate users.
ARTICLE III. A. WESTBRIDGE PERFORMANCE
SECTION 1. RISK OF LOSS. Delivery shall occur and risk of loss shall
pass to SELLER when the Products are on board common carrier FOB plant, U.S.A.,
packaged for delivery. WESTBRIDGE shall not be responsible for any delays or
damages in shipment.
SECTION 2. MEETS SPECIFICATIONS. WESTBRIDGE warrants that the Products
comply in all respects with the specifications, or amendments thereto, at the
time of each such delivery. WESTBRIDGE shall not be liable for any consequential
damages or for loss, damage or expense directly or indirectly arising form the
use of Product, or from any other cause. ANY WESTBRIDGE LIABILITY IS EXPRESSLY
LIMITED TO THE REPLACEMENT OF DEFECTIVE PRODUCT AND NOT FOR ANY VALUE ADDED TO
THE MATERIAL. Every claim on account of defective Product or workmanship or for
any other cause shall be deemed waived by SELLER unless made in writing within
90 days from the date of SELLER'S receipt of Product to which such claim
relates. THIS SHALL BE SELLER'S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. IN NO
EVENT SHALL WESTBRIDGE BE LIABLE FOR ANY SPECIAL CONSEQUENTIAL, OR CONTINGENT
DAMAGES RESULTING FROM BREACH OF WARRANTY, DELAY OF PERFORMANCE OR ANY OTHER
DEFAULT HEREUNDER. WESTBRIDGE specifically disclaims any liability for Products
altered in any way after leaving its control.
SECTION 3. SALES PROTECTION. WESTBRIDGE agrees that it will not enter
into any arrangements with any other distributor or dealer for the Products
during the Term of this Agreement, provided SELLER is in full compliance with
the terms and obligations herein appertaining.
B. SELLER'S PERFORMANCE
SECTION 1. SALES. In consideration for its appointment herein, SELLER
agrees that it will, at its sole expense, use its best efforts to promote demand
for and sales of Products and establish, train and maintain a sales organization
sufficient to market and sell the Products in its designated Territory, and to
maintain an adequate inventory of Products, advertise as appropriate and in the
amount customary within the Territory, and provide periodic and timely progress
reports.
SECTION 2. COST OF PRODUCT TRIALS. SELLER agrees to pay the cost of
product trails performed by the University of California, Riverside, as detailed
in Appendix B.
SECTION 3. INDEMNIFICATION. SELLER agrees to indemnify WESTBRIDGE for
costs and profits lost on any sales as a result of SELLER'S failure to take
delivery or pay for Products manufactured pursuant to firm orders of SELLER.
SECTION 4. QUOTAS. AS a condition, precedent to all other commitments
of WESTBRIDGE made herein, SELLER must annually purchase from WESTBRIDGE, and
pay for, subject to the terms of this Agreement, the minimum annual U.S. dollar
amount set forth below:
First annual period - U.S. $ 75,000
Second annual period - U.S. $ 225,000
Third annual period - U.S. $ 500,000
Fourth annual period - U.S. $1,000,000
Fifth annual period - U.S. $1,500,000
Successive quotas shall be established a minimum of one hundred twenty
(120) days prior to the end of each year, initialed by all parties and attached
to this Agreement. Should SELLER fail to purchase the minimum requirements in
any annual period, or should the parties fail to make an agreement as to
successive quotas, such failure shall constitute a breach of this Agreement, and
WESTBRIDGE shall have available to it all remedies at law including termination
of this Agreement.
SECTION 5. REGISTRATION. SELLER shall, at its sole expense, register
the Products for sale within the Territory and shall be responsible for all
taxes and fees occurring in connection therewith.
SECTION 6. SALES RESTRICTIONS. SELLER understands and agrees that it is
expressly prohibited from selling to, offering to sell to, or soliciting sales
from anyone outside the Territory.
C. MUTUAL PERFORMANCE
SECTION 1. NON-DISCLOSURE. Each party, recognizing that it or its
agents or employees obtain knowledge of confidential matters, trade secrets, and
techniques or other expertise developed by the other, agrees that it will take
all reasonable steps, at its sole expense, to protect said confidential
information and that no party will divulge said confidential information at any
time, other than disclosures contemplated by the terms of this Agreement,
without prior written consent of the other party.
SECTION 2. RESULTS. Each party agrees to promptly make available to one
another any and all results in development and experimentation with the Products
and further agrees not to publish the other party's results without first having
obtained written approval of the party providing the results which shall not be
unreasonably withheld.
SECTION 3. REPRESENTATIONS OF WARRANTIES. Each of the parties hereto
represents and warrants as follows:
a. it is duly organized and existing and in good standing under
applicable state law and has the requisite authority to own or
operate its properties and assets and to carry out its
business as presently conducted. Further, it is qualified to
do business in California and in each jurisdiction where
failure to be qualified could materially and adversely affect
its business or financial condition.
b. It has all requisite legal and corporate power to execute and
deliver this Agreement and to carry out and perform its
obligations under the terms of this Agreement, including the
appendices hereto.
c. All corporate actions on the part of the party, its directors,
stockholders or partners necessary for performance of its
obligations hereunder, have been duly and validly taken.
d. This Agreement constitutes a valid and binding obligation,
enforceable in accordance with its terms, as to the party.
e. It is not, and will not, by entering into and performing this
Agreement and the obligations contemplated herein, be in
violation of any term of its charter documents, or in any
material respect be in violation of or in default as to any
other agreement, judgment or decree by which it is bound, and
to the best of its knowledge is not, and will not by entering
into and performing this Agreement, be in violation of any
applicable order, statute, rule or regulation.
ARTICLE IV. COST AND PAYMENT TERMS
SECTION 1. PRICES. All prices shall be FOB manufacturing plant, Net 30,
and as set forth in Appendix A which is attached hereto and incorporated herein
by this reference. No prices shall be changed except upon thirty (30) day
written notice and shall be effective only for orders received after said
thirty-day period.
SECTION 2. PAYMENT.
a. All payments to WESTBRIDGE shall be in U.S. dollars payable 30
days from the date of _____ or shipment, whichever occurs
later, or in such other form of payment as may be agreed to
from time to time by the parties.
b. SELLER shall place orders with WESTBRIDGE in writing
(including telex or telefax) with reasonable lead times
necessary to facilitate manufacture and shipping, and no
shipments shall be made except upon specific SELLER purchase
order.
SECTION 3. FORECASTS. To assist WESTBRIDGE in efficiently scheduling it
manufacturing, at least thirty (30) days prior to the start of each calendar
quarter. SELLER shall provide WESTBRIDGE a good faith quarterly forecast of
Products anticipated to be purchased. However, purchases shall only be initiated
by SELLER'S firm purchase order.
SECTION 4. CREDIT. SELLER's credit shall be subject to WESTBRIDGE's
continuing approval. In the event that SELLER should be delinquent in the
payment terms set forth herein or in the event that SELLER's current liabilities
exceed its current assets, WESTBRIDGE may thereupon demand advance payment,
satisfactory security, or in acceptable guarantee of prompt payment from SELLER
or, in addition to all of the above remedies, or elect to unilaterally rescind
this Agreement.
SECTION 5. GENERAL TERMS AND CONDITIONS. Notwithstanding any terms and
conditions that may appear on or be contained in SELLER's purchase orders or
other documents of SELLER, all purchases hereunder shall be governed by the
terms and conditions so contained in contravention hereof, shall not be deemed
applicable.
SECTION 6. RETURNS. Unless WESTBRIDGE shall have authorized or
permitted the return of any Products, WESTBRIDGE shall not be obligated to
accept from SELLER any Products, nor to make any exchange or to credit SELLER
therefore.
ARTICLE V. TERMINATION
SECTION 1. DEFAULT. The parties recognize that prompt and full
compliance with the terms of this Agreement are essential, and the failure to
perform hereunder may be deemed a material breach of this Agreement, creating in
the non-breaching party the right to treat the Agreement in default. Upon such
default and after sixty (60) days notice of default and the failure of the
defaulting party to remedy the default within such period, this Agreement may be
deemed terminated by the non-defaulting party, such party then having the right
to pursue such further remedies as it may deem appropriate, at law or otherwise.
In the event of termination, this Agreement shall remain applicable to
any order for Products which SELLER has previously placed and which have been
accepted by WESTBRIDGE.
In the event of termination of this Agreement, SELLER shall promptly
return to WESTBRIDGE all samples, descriptive literature, or other materials
pertaining to Products, then remaining in its possession
ARTICLE VI. MISCELLANEOUS PROVISIONS
SECTION 1. NOTICES. Any and all notices provided herein shall be in
writing and delivered personally or sent by registered or certified mail with
return receipt requested, and confirmed by telegraph, telex, or telefax to the
other party at the address hereinabove set forth, or at such other address as
shall be designated from time to time by the parties. Notice shall be deemed to
be effective upon personal service or transmittal of telegraph, telex or telefax
or upon the date of receipt indicated on the postage proof of delivery,
whichever date is earlier.
SECTION 2. AMENDMENTS. This instrument contains all of the agreements,
understandings, representations, conditions, warranties, and covenants made
between the parties hereto. Unless set forth herein, neither party shall be
liable for any representations made, and all modifications and amendments hereto
must be in writing and signed by both parties.
SECTION 3. AUTHORITY TO ENTER INTO THE AGREEMENT. Each of the parties
represents that it has full power and authority to enter into this Agreement.
SECTION 4. WAIVER. The failure of either party at any time to require
performance by the other party of any provision hereof shall not affect in any
way the right to require such performance at any time thereafter. Nor shall a
waiver by either party of a breach of any provision hereof be taken or held to
as a waiver of the provision itself.
SECTION 5. SEPARABILITY. Each of the terms of the Agreement is
exclusive and the invalidity of one or more terms shall not void or make
voidable any other terms of the Agreement.
SECTION 6. COSTS OF DEFAULT. The parties agree that in the event of a
default of a term or condition of this Agreement, the defaulting party shall be
liable for reasonable attorneys fees and costs in the even of engagement of
legal counsel to represent the non-defaulting party's interest.
SECTION 7. INTEGRATION. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties and there
are no warranties, representations or agreements among the parties in connection
with the subject matter herefor except as set forth or referred to herein.
SECTION 8. BINDING EFFECT AND ASSIGNMENT. This Agreement shall inure to
the benefit of and bind the parties' successors, assigns, transferees, heirs and
personal representatives.
SECTION 9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same document.
SECTION 10. FORCE MAJEURE. The obligations of either party hereunder
shall be excused by reason of fire, explosion, or flood, or other actions of the
elements, strikes, labor disputes however caused, accident, acts of public
enemies, lawful rules and regulation or orders of any court or any civil or
military authority, loss or shortage of raw materials, supplies or energy
sources or failure of usual means of delivery and any other causes beyond the
reasonable control of any of the parties.
In the event that any of the parties is prevented by any of the
contingencies of the type set forth in this subparagraph, said party shall be
free of all liability as would otherwise be determined by the requirements of
this Agreement, but only for so long as the circumstances of force majeure
exist. For any cause whatsoever, whether or not beyond the control of WESTBRIDGE
or SELLER, liability of either for failure or delay in performance shall not
include consequential damages.
SECTION 11. DISCLAIMER OF AGENCY. This Agreement shall not constitute
either party the legal representative or agent of the other, nor shall either
party have the right or authority to assume, create, or incur any liability or
any obligation of any kind, express or implied, against or in the name of or on
behalf of the other party in any manner.
SECTION 12. INTERPRETATION. The validity, interpretation and
performance of this Agreement has been controlled by and construed under the
laws of the State of California, the state in which this Agreement is accepted.
SECTION 13. ASSIGNMENT. The rights and obligations under this Agreement
may not be assigned by either party to any person, firm or corporation without
the prior written consent of the other party first obtained. Any attempted
assignment without such other party's consent shall be null and void. Except as
limited by the preceding sentence, this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and assigns.
SECTION 14. HEADINGS. Paragraph headings are not to be considered part
of this Agreement and are included solely for convenience and are not intended
to be full or accurate descriptions of the contents thereof.
SECTION 15. TIME OF ESSENCE. Time is of the essence in this Agreement
and the failure of either party to promptly pay when due any and all payments,
or perform any and all obligations required herein, may be treated by the other
party as a material breach of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in San Diego, California, on the date above appearing.
SELLER WESTBRIDGE
ECO SOIL SYSTEMS, INC. WESTBRIDGE AGRICULTURAL PRODUCTS
0000 Xxx Xxxxxx, Xxx 000 0000 Xxxxx Xxxxxx Xxxx
Xx Xxxxx, XX 00000 Xxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, President
APPENDIX "A"
Product Description Price
Suppress Nematode suppressant for the $ /gar
following species of turf grass
nematodes
APPENDIX "B"
Description and Estimated Cost of Product Trials to be performed by
University of California, Riverside.
