Agreement made this 8th day of December, 1992, by and between Eco Soil
Systems, Inc., a Nebraska Corporation whose address is 00000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, 00000 (hereinafter referred to as Eco Soil
Systems) and the Xxxxxx Xxxxx Company whose western region United States
headquarters are located at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx,
00000 (hereinafter referred to as Xxxxxx Xxxxx western region).
Whereas Eco Soil Systems has developed a soil remediation/microbial
inoculation service and related organic granular and liquid nutrient program for
golf courses;
Whereas Xxxxxx Xxxxx western region is a company engaged in the
distribution of fertilizers, seed, chemicals and related products to golf
courses; and
Whereas Eco Soil Systems is interested in distributing its soil
remediation/microbial inoculation and fertilizer programs through Xxxxxx Xxxxx
in the western region, and Xxxxxx Xxxxx western region is interested in
obtaining the rights to sell Eco Soil Systems' products and services; IT IS
THEREFORE AGREED AS FOLLOWS:
1. TERM. The term of this Agreement is from the date above through
December 31, 1993. This Agreement is renewable annually thereafter, provided
that both parties agree on minimum purchases by Xxxxxx Xxxxx western region in
future terms.
2. GENERAL NATURE OF THE AGREEMENT. Eco Soil Systems and Xxxxxx Xxxxx
western region will work together to market Eco Soil Systems' soil
remediation/microbial inoculation service and nutrient program to golf courses
in the western region. Eco Soil Systems agrees to place a mobile laboratory or
provide remote tissue analysis by the following dates in the territories covered
by the following Xxxxxx Xxxxx western region branches:
* Chula Vista, CA October 1, 1992
* Pomona, CA November 30, 1992
* Fresno, CA December 15, 1992
* Phoenix, AZ February 1, 1993
Each mobile laboratory will be equipped with a near infrared spectrometer for
grass tissue analysis and other diagnostic and analytical equipment to perform
water and soil analysis and to maintain a database on the conditions at each
course. Eco Soil Systems will also supply the customer service representative
who is responsible for the operation of the mobile laboratory. In addition, Eco
Soil Systems will supply the soil remediation/microbial inoculation equipment,
liquid nutrient injection systems and aeration equipment that is necessary as
customers subscribe to its soil remediation program and/or nutrient programs.
Eco Soil Systems will be solely responsible for the proper operation and
performance of this equipment. Eco Soil Systems agrees that it will deal
exclusively with Xxxxxx Xxxxx western region in marketing these products and
services during the term of this Agreement and will not market the program
independently of Xxxxxx Xxxxx western region or seek other distributors, sales
agents, etc., in this territory. All products will be private labeled for Xxxxxx
Xxxxx western region with Xxxxxx Xxxxx western region and Eco Soil Systems' name
on all bags and containers.
3. ECO SOIL SYSTEMS' RESPONSIBILITIES:
3a. MARKETING: Eco Soil Systems agrees to take all reasonable actions
to co-market Eco Soil Systems' products and services (hereinafter referred to as
the Eco Soil Systems' "program") with Xxxxxx Xxxxx western region personnel in
the territory shown above. This includes working with Xxxxxx Xxxxx personnel in
identifying prospective accounts, soliciting customers, presenting and
explaining the program, developing formal proposals and cost estimates, and
closing sales.
3b. CUSTOMER SERVICE AND SUPPORT: Eco Soil Systems agrees to take all
reasonable steps to provide the service and support the program requires. In
each sale that includes a soil remediation/microbial-injection system, Eco Soil
Systems will assume complete responsibility and liability for the systems'
performance. The soil remediation/microbial inoculation service includes:
(1) Equipment (the Hydropro 3000) that automatically maintains
a high colony count of beneficial biological products in a closed
container and then injects these products into the irrigation water as
the water is dispersed out onto the course;
(2) Biological products which are dispensed directly into the
irrigation system. These products include, but are not limited to,
various proprietary microbial strains, oxygenators, and food sources
for the microbial strains, and other natural products;
(3) Service and maintenance that is required to install the
system and keep the system functioning in its normal and intended
manner; and
(4) A data base that utilizes regular water, soil, and tissue
samples so that the performance of the system can be monitored. This
data base is updated on a regular basis.
Eco Soil Systems agrees to take all reasonable
measures to insure that the soil remediation/microbial inoculation
system is operating properly.
These measures include:
(a) Initial installation and testing of the equipment to
ensure that it is operating properly;
(b) Regularly scheduled monthly service calls during which a
trained Eco Soil Systems' customer service representative will perform
the following tasks:
(1) inventory product and monitor product use to
ensure that adequate supplies of product are in the holding
and mixing tanks of the equipment until the equipment will be
serviced again;
(2) adjust the rate and mixture of the products that
are dispensed by the equipment so that the system performs at
an acceptable level and adjusts to changing conditions;
(3) perform preventative maintenance on the equipment
so that it continues to function normally; and
(4) construct and regularly update a data base for
the customer based on water, soil, and tissue samples.
(c) Perform any emergency maintenance in the event the
equipment breaks down and is no longer functioning as intended.
All equipment, products, materials, and other supporting items
provided to the golf course for use in the soil remediation/microbial
inoculation system are the property of Eco Soil Systems. The soil
remediation/microbial inoculation contract signed by a golf course is
not a lease of equipment but merely and agreement to provide a
comprehensive service that includes capital equipment, products and
materials. Upon termination of any contract, all such equipment,
products and materials will remain the property of Eco Soil Systems.
3c. NUTRIENT PROGRAM. Eco Soil Systems agrees that its organic granular
fertilizers and liquid nutrients will comply in all respects with their
specifications (or amendments thereto) at the time of each such delivery. Eco
Soil Systems shall not be liable for any consequential damages or for loss,
damage or expense directly or indirectly arising from the use of Product, or
from any other cause. Any Eco Soil Systems' 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 Eco Soil Systems unless made in writing
within 90 days from the date of Xxxxxx Xxxxx western region' receipt of product
to which such claim relates. This shall be Xxxxxx Xxxxx western region'
exclusive remedy for breach of warranty. In no event shall Eco Soil Systems be
liable for any special, consequential or contingent damages resulting from
breach of warranty, delay of performance or any other default hereunder. Eco
Soil Systems specifically disclaims any liability for products altered in any
way after leaving its control.
Delivery shall occur and risk of loss shall pass to Xxxxxx Xxxxx
western region when the products are received at a Xxxxxx Xxxxx western region
facility. Eco Soil Systems shall not be responsible for any delays or damages in
shipment.
Prescriptions of all fertilizer products will be based on grass tissue
samples that are analyzed with a near infrared spectrometer in Eco Soil Systems'
mobile laboratories. It will be Eco Soil Systems responsibility to regularly
collect these tissue samples, analyze them with the near infrared spectrometer
and formulate a prescription of fertilizer products that efficiently supplies
the nutrient combinations that are required. Both Xxxxxx Xxxxx western region
and Eco Soil Systems will work jointly with the superintendent to ensure that
fertilizers prescribed are applied as per instructions. Eco Soil Systems shall
assume full responsibility and liability for the performance of all liquid
nutrient injection systems that are sold or rented by Eco Soil Systems/Xxxxxx
Xxxxx western region during the term of this Agreement, in conjunction with its
nutrient programs. Eco Soil Systems agrees to take all reasonable measures to
ensure that the liquid nutrient injection systems are operating properly. These
measures include:
(A) Initial installation and testing of the equipment to
ensure that it is operating properly; and
(B) Regularly scheduled monthly service calls during which a
trained Eco Soil Systems' customer service representative will perform
the following tasks:
(1) adjust the rate and mixture of products that are
dispensed by the equipment so that the system performs at an
acceptable level and adjusts to changing conditions;
(2) perform preventative maintenance on the equipment
so that it continues to function normally; and
(3) perform any emergency maintenance in the event
the equipment breaks down and is no longer functioning as
intended.
Eco Soil Systems will also be responsible for constructing a
data base that shows the changing conditions in each course's water,
soil and tissue as the program progresses. Copies of this data base
will be sent to Xxxxxx Xxxxx western region personnel.
4. XXXXXX XXXXX WESTERN REGION RESPONSIBILITIES. Xxxxxx Xxxxx western
region agrees to the following:
4a. To purchase certain minimum quantities of product as shown in
Exhibit B. Purchases of a particular product that exceed the minimum shown in
Exhibit B will compensate for shortfalls against the minimum required purchases
of another product.
4b. To take all reasonable actions to co-market the Eco Soil Systems'
program in the territory. This includes:
1. Working with Eco Soil Systems' personnel in
identifying prospective accounts;
2. Soliciting customers;
3. Making presentations;
4. Developing formal proposals and cost estimates; and
5. Closing sales.
4c. To be responsible for billing sales of the Products to the end-user
(the Customer) and collecting any amounts owed from the Customer.
4d. To pay Eco Soil Systems for any product purchased no later than 30
days after delivery of the product.
5. PRICES. Sales prices of Eco Soil Systems products and services to
Xxxxxx Xxxxx western region and suggested retail selling prices are in Exhibit A
attached.
6. SOIL REMEDIATION/WATER TREATMENT COMMISSIONS. Xxxxxx Xxxxx western
region will take the following commissions out of the monthly water treatment
charge:
(1) 10% of the amount billed for the first three months in
which the customer incurs a monthly fee; and
(2) 20% of the monthly amount billed to the customer
thereafter.
The balance of the monthly water treatment charge will be paid to Eco
Soil Systems, Inc. In the event a water treatment customer defaults on their
payment obligations to Xxxxxx Xxxxx western region, and Xxxxxx Xxxxx western
region has already remitted to Eco Soil Systems its portion of these charges,
then Xxxxxx Xxxxx western region reserves the right to offset future payments to
Eco Soil Systems in the amount of the charges defaulted on by the water
treatment customer.
7. FERTIGATION/AERATION SALES. Xxxxxx Xxxxx western region will earn a
commission of 5% on all fertigation and aeration equipment sold by Eco Soil
Systems in the territory during the term of this Agreement.
8. COMPETING PRODUCTS. Xxxxxx Xxxxx western region agrees to
discontinue carrying all products which directly compete against the products
shown in Exhibit A. Directly competing products include, but not limited to, the
following granular organic products:
Ringer Greens Super 10-2-6
Ringer Greens 6-1-3
Ringer Turf Restore 10-2-6
Sustane 5-2-4
Competing products also include any foliar nutrients that are expressly
designed for turf and that reasonably match those being sold under the Eco Soil
program. Xxxxxx Xxxxx agrees not to bring in new products to compete with these
foliar products or to take existing products and redirect them into the turf
market. Existing products that are competitive with Eco Soil products, and that
are manufactured by Xxxxxx Xxxxx, fall outside of this definition of competing
products, providing they are not promoted as substitutes for Eco Soil products.
9. MANUFACTURING. Eco Soil Systems agrees to purchase all liquid
nutrients shown in Appendix A from Xxxxxx Xxxxx western region as soon as Xxxxxx
Xxxxx western region can demonstrate that products manufactured by Xxxxxx Xxxxx
western region are of a similar quality and perform in a similar fashion to the
existing liquids in Eco Soil Systems' product line. Eco Soil Systems will have
no obligation to purchase these liquid nutrients if the cost to Eco Soil Systems
exceeds the cost which Eco Soil Systems presently pays to it suppliers or if
such purchase violates its existing agreements with its suppliers. As of the
date of this Agreement, Eco Soil Systems, to the best of its knowledge, has no
agreements with its suppliers that would preclude it from purchasing liquid
nutrients from Xxxxxx Xxxxx western region. Eco Soil Systems agrees to work with
Xxxxxx Xxxxx western region to assist it in formulating and manufacturing
product to the extent that this does not violate terms of its existing
agreements with suppliers. Eco Soil Systems agrees to sell all products
manufactured by Xxxxxx Xxxxx western region back to Xxxxxx Xxxxx western region
at prices which allow Xxxxxx Xxxxx western region a minimum 33% xxxx-up, which
equates to a 25% gross margin.
10. TERMINATION. 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 Product which Xxxxxx Xxxxx western region has previously placed
and which has been accepted by Eco Soil Systems, Inc.
In the event of termination of this Agreement, Xxxxxx Xxxxx western
region shall promptly return to Eco Soil Systems all samples, descriptive
literature, or other materials pertaining to Products then remaining in its
possession.
11. MUTUAL PERFORMANCE.
11a. Non-disclosure. Each party, recognizing that it or its agents or
employees may 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 for this Agreement,
without prior written consent of the other party.
11b. 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.
11c. Representatives of Warranties. Each of the parties hereto
represents and warrants as follows:
(1) 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 on 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.
(2) 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 all appendices hereto.
(3) 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.
(4) The Agreement constitutes a valid and binding obligation,
enforceable in accordance with its terms, as to the party.
(5) 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, judgement 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.
12. MISCELLANEOUS PROVISIONS.
12a. 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 postal proof of delivery, whichever
date is earlier.
12b. Amendments. This instrument contains all of the agreements,
understanding, 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.
12c. Authority to Enter into the Agreement. Each of the parties
represents that it has full power and authority to enter into this Agreement.
12d. 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
be a waiver of the provision itself.
12e. 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.
12f. 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 event of engagement of legal
counsel to represent the non-defaulting party's interests.
12g. 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, representation or agreements among the parties in connection
with the subject matter hereof except as set forth or referred to herein.
12h. Binding Effect and Assignment. This Agreement shall inure to the
benefit of and bind the parties' successors, assigns, transferee, heirs and
personal representatives.
12i. 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.
12j. 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, accidents, acts of public
enemies, lawful rules and regulations or order 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 supply and 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 is 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 for force majeure
exist. For any causes whatsoever, whether or not beyond the control of Xxxxxx
Xxxxx western region or Eco Soil Systems, liability of either for failure or
delay in performance shall not include consequential damages.
12k. 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 matter.
12l. Interpretation. The validity, interpretation, and performance of
this Agreement shall be controlled by and construed under the laws of the State
of California, the state in which this Agreement is accepted.
12m. 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.
12n. 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 content thereof.
12o. Time of Essence. Time is of the essence in this Agreement an 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.
ECO SOIL SYSTEMS, INC. XXXXXX XXXXX COMPANY - WESTERN REGION
00000 XXXXXXXXX XXXX, XXX. 000 000 XXXXXXXXXX XXXXXX
XXX XXXXX, XX 00000 XXX XXXXXXXXX, XX 00000
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxx
----------------------- ----------------------------
XXXXXXX X. XXXXX XXXXX X. XXXXXX
CHAIRMAN OF THE BOARD AND VICE PRESIDENT
CHIEF EXECUTIVE OFFICER XXXXXX-XXXXX COMPANY
X.X. XXX 0000
XXXXXX, XX 00000
APPENDIX
NORTHERN CALIFORNIA
TOTAL UNITS COST TOTAL $ (IN 000'S)
0-0-34 125 tons $430.00/Ton $54.0
6-2-12 100 tons $550.00/Ton $55.0
10-2-12 100 tons $550.00/Ton $55.0
Fertigation Liquids 5000 gals $7.00/Gallon $35.0
Greens & Tees Liquids 11000 gals $11.00/Gallon $121.0
$320.0
LOS ANGELES
0-0-34 258 tons $430.00/Ton $111.0
6-2-12 188 tons $550.00/Ton $103.0
Fertigation Liquids 16,000 gals $7.00/Gallon $112.0
Greens & Tees Liquids 16,000 gals $11.00/Gallon $176.0
$502.0
SAN DIEGO
0-0-34 230 tons $430.00/Ton $99.0
6-2-12 188 tons $550.00/Ton $103.0
Fertigation Liquids 18,000 gals $7.00/Gallon $126.0
Greens & Tees Liquids 16,000 gals $11.00/Gallon $176.0
$504.0
ARIZONA
0-0-34 88 tons $430.00/Ton $38.0
6-2-12 66 tons $550.00/Ton $36.0
Fertigation Liquids 6000 gals $7.00/Gallon $42.0
Greens & Tees Liquids 10,000 gals $11.00/Gallon $110.0
$226.0
GRAND TOTAL WESTERN REGION $1,552.0
XXXXXX-XXXXX COMPANY/WESTERN DIVISION
0000 X. XXXXX XXXXXX
XXXXXX, XX 00000
X.X. XXX 0000
XXXXXX, XX 00000
PHONE: (000) 000-0000
FAX: (000) 000-0000
July 26, 1995
Xx. Xxxxxxx X. Xxxxx
ECO Soil Systems
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
RE: MARKETING AGREEMENT FOR LINK NUTRIENT LINE
Dear Xxxx:
The future for both Xxxxxx-Xxxxx and ECO Soil Systems lies in our
ability to generate needed revenues required to run our respective businesses.
The following marketing agreement is designed to jointly address the needs of
both companies with regard to the LINK Nutrient Line and a modified Tee to Green
program for northern California. The goal of the agreement set forth below is to
streamline our combined businesses and allow for the strengths of both companies
to grow.
1. Letter Agreement. Upon your execution on the last page, this letter
will constitute a marketing agreement (the "Agreement") between ECO Soil
Systems, Inc. ("Eco") of San Diego and Xxxxxx-Xxxxx Company ("Xxxxxx-Xxxxx")
operating through its Western Division headquartered in Fresno, California. This
Agreement will begin on the date of your signature, subject to the requirement
that you return a fully executed copy of this Agreement to the undersigned
within three (3) days after the date you sign it and subject to the further
requirement that the date of your signature be not more than ten (10) days after
the date it has been signed by Xxxxxx-Xxxxx. This Agreement shall continue until
terminated in accordance with the terms set forth below.
2. Liquid Nutrient Line.
(a) Product. Xxxxxx-Xxxxx will formulate all Eco liquid plant
nutrients which are currently distributed by the retail personnel of
Xxxxxx-Xxxxx. This new Xxxxxx-Xxxxx line of products will be named "LINK." The
LINK line shall initially consist of the products, copies of the labels for
which are attached and collectively marked Addendum 1. At Eco's written request
and written acceptance thereof by Xxxxxx-Xxxxx, Xxxxxx-Xxxxx will also formulate
liquid plant nutrient products for Eco under Eco's current label and brand
identification for sale outside of Xxxxxx-Xxxxx' current sphere of influence.
(b) Formulas. The parties agree that the formulas and
ingredients for the initial line of LINK products shall be those set forth in
the sheets collectively attached hereto as Addendum 2. Xxxxxx-Xxxxx and Eco
shall report, and cause their respective personnel to report, any problems
regarding formulas or formulation to Xxxxxx-Xxxxx in Fresno as soon as possible
for analysis by Xxxxxx-Xxxxx.
(c) Labels. Xxxxxx-Xxxxx shall be responsible for the accuracy
of labels and the registration of all products carrying the LINK name. Eco shall
be responsible for the accuracy of all labels and the registration of all
products carrying the Eco brand. Eco shall also be responsible for the supply of
Eco labels to Xxxxxx-Xxxxx if Xxxxxx-Xxxxx formulates the Eco brand for Eco.
(d) Price. Xxxxxx-Xxxxx will suggest the retail price for all
LINK products. Addendum 3 attached hereto sets forth such initial suggested
retail prices for LINK products initially covered by this Agreement.
Xxxxxx-Xxxxx will pay to Eco a commission on all pull-through sales of LINK
products. The initial amount of such commission on each LINK product initially
covered by this Agreement is set forth on Addendum 4. Xxxxxx-Xxxxx will pay such
commissions to Eco within ten (10) days after the end of each calendar quarter
during the term of this Agreement. If Xxxxxx-Xxxxx manufactures branded nutrient
products for Eco for sales by Eco under Eco's label or under the label of a
third party outside the retail arena of Xxxxxx-Xxxxx, Eco agrees to pay to
Xxxxxx-Xxxxx a price equal to Xxxxxx-Xxxxx' internal transfer price. The
internal transfer price of Xxxxxx-Xxxxx for the initial products within the LINK
line are set forth on Addendum 5 to this Agreement. Addendum 5 also sets forth
certain additional terms with respect to such transactions, which terms are
incorporated into this Agreement. As noted within Addendum 5, Eco shall pay such
internal transfer price to Xxxxxx-Xxxxx within thirty (30) days after billing by
Xxxxxx-Xxxxx.
3. Modified Tee to Green Program.
(a) Description. Commencing with the effective date of this
Agreement, Xxxxxx-Xxxxx will offer a modified Tee to Green program in the State
of California, north of the Tehachapi mountains (the "Modified Tee to Green
Program"). The participation of the parties in the Modified Tee to Green Program
described in this Agreement differs from the participation of the parties in the
previous Tee to Green program.
(b) Xxxxxx-Xxxxx Participation in Modified Tee to Green
Program. Under the Modified Tee to Green Program, Xxxxxx-Xxxxx shall:
(i) Solicit Modified Tee to Green Program customers
within the geographical area of such Program;
(ii) Collect, dry and ship, via overnight mail,
tissue samples with work orders to Eco on a quarterly basis;
(iii) Suggest the retail price and/or nutrient
program and be responsible for the participation levels of retail
customers;
(iv) Make quarterly recommendations to retail
customers;
(v) Feature LINK brand nutrients and Eco brand
organic granules in their quarterly recommendations;
(vi) Supply Eco with a monthly readout of LINK brand
liquid materials pulled through the system; and
(vii) Pay to Eco within ten (10) days after the end
of each calendar quarter covered by the terms of this Agreement a
commission on all LINK brand liquid materials pulled through the system
based initially on Addendum 4 hereto and, thereafter, on such
commission as may be agreed upon between the parties on an annual basis
as set forth below.
(c) Eco's Participation in Modified Tee to Green Program.
Under the Modified Tee to Green Program, Eco shall:
(i) Run all tissue samples received from Xxxxxx-Xxxxx
immediately;
(ii) Fax and/or mail hard copies to Xxxxxx-Xxxxx in
Fresno of the results of such tissue sample runs referred to above
without delay; and
(iii) Xxxx to Xxxxxx-Xxxxx, on a monthly basis,
$10.00 for each tissue sample run, utilizing work orders to detail the
actual branch participating, which amounts Xxxxxx-Xxxxx agrees to pay
to Eco within ten (10) days of receiving the bills therefor.
(d) Potential Addition of Southern California at Later Date.
Provided the parties enter into a written and signed addendum to this Agreement
to do so, the Modified Tee to Green Program may be instituted for the State of
California south of the Tehachapi mountains at a later time.
4. Renewal and Termination of Agreement.
(a) Initial Term and Renewal. This Agreement shall have an
initial term which begins on the date described in Paragraph 1 above, and which
terminates on December 31, 1995. This Agreement shall continue for calendar
year0 1996 if, prior to the end of 1995 the parties agree upon the following
items for such calendar year 1996:
(i) The products constituting the LINK product line,
whether different from or the same as the products described in
Paragraph 2(a) above;
(ii) The formulas for and ingredients within the
products constituting the LINK product line, whether different from or
the same as those described in Paragraph 2(b);
(iii) The commissions and internal transfer prices
for LINK and Eco products, whether the same as or different from those
described in Paragraph 2(d) above;
(iv) The commission on LINK brand liquid materials
pulled through the system under the Modified Tee to Green Program,
whether different from or the same as that described in Paragraph
3(b)(7) above; and
(v) Any new or changed obligations of the parties or
features of the Modified Tee to Green Program described above.
If there are no changes to the terms of this
Agreement for calendar year 1996, this Agreement shall, nonetheless,
not renew unless the parties execute a writing to that effect prior to
the end of 1995. This Agreement may be renewed on a calendar year basis
for calendar years after 1996, provided it is renewed in the same
fashion as required for calendar year 1996.
(b) Modifications Prior to Year End. Modifications of any of
the terms of this Agreement may be made prior to the end of a calendar year, but
shall only be effective if executed in writing by both parties.
(c) Continuing Payment Obligation. The termination of this
Agreement at the end of a calendar year or otherwise shall not, however, relieve
any party of obligations for payment or otherwise which have accrued under this
Agreement prior to its termination.
(d) Breach. This Agreement may be terminated by either party
for the material breach of the terms hereof by the other party, provided the
non-breaching party has given notice to the breaching party of the items
constituting the breach and the breaching party has not cured those items within
thirty (30) days after the notice is given. In the event of such termination,
the non-breaching party must give written notice of termination after the
expiration of the period to cure the items constituting the breach. This
Agreement may also be terminated by either party immediately upon the insolvency
or assignment for the benefit of creditors of the other party.
5. Miscellaneous.
(a) Assignment. This Agreement and the rights and obligations
hereunder may be assigned by either party hereto, and such party may delegate
its duties hereunder, provided that such assignment or delegation shall not
relieve the assigning or delegating party of its obligations hereunder.
(b) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of California.
(c) Notices. All notices hereunder shall be in writing and
shall be deemed given if delivered personally, telecopied (with receipt
confirmed), or mailed by registered or certified mail (return receipt requested)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
If to Xxxxxx-Xxxxx, to:
Xxxxxx-Xxxxx Company/Western Division
0000 X. Xxxxx Xxxxxx
Xxxxxx, XX 9 3725
(P.O. Xxx 0000, Xxxxxx, XX 93715)
FAX: 000-000-0000
If to Eco, to:
Eco Soil Systems
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
FAX: 000-000-0000
Executed by the parties at the places and on the dates set forth below:
"XXXXXX-XXXXX"
Xxxxxx-Xxxxx Company
Fresno, California By /s/ Xxxx Xxxxx
July 26, 1995 Xxxx Xxxxx
Western Division Manager
Accepted and agreed to this 15th day of August, 1995, at San Diego,
California.
"ECO"
Eco Soil Systems, Inc.
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Chief Executive Officer
