Exhibit 10.3
DEALER AGREEMENT
American Soil Technologies, Inc., having its main office at 000 X. Xxxxxxx,
Xxxxx 000, Xxxxxxxx, XX 00000 (hereinafter called "ASTI."), hereby appoints and
authorizes: Xxx XxXxxx of Shawmut Montana, 59078 (hereinafter called "Dealer"),
to act as a dealer to sell on a nonexclusive basis the products listed on
SCHEDULE I hereto (the "Products"). Dealer hereby accepts this appointment and
agrees to purchase and resell the Products under the terms and conditions set
forth below.
1. TERM.
This Agreement shall be effective as of the date it is signed and accepted
by ASTI. and continue for a period of five (5) years unless terminated pursuant
to the provisions set forth in Section 6.. Sections 7(D) and (F) shall survive
termination hereof.
2. PRIMARY TRADE AREA.
The Dealer's Primary Trade Area is the State of Montana. Dealer
acknowledges that it is a non-exclusive dealer of the Products in its primary
trade area and an exclusive dealer as to the accounts established by the Dealer
and made a part of SCHEDULE II. ASTI will not add additional dealers to the
primary trade area for a period of 5 years from the date hereof. Furthermore,
ASTI acknowledge that there are no other dealers in the Primary Trade Area.
3. MINIMUM QUANTITY.
Dealer will not be required to stock a minimum quantity of the Products for
the first two years of this Agreement. ASTI shall ship the Products directly to
Dealer's customers or to Dealer FOB ASTI's warehouse
4. DIRECT PURCHASES.
All purchases and return of Products from ASTI by Dealer shall be made
pursuant to a written purchase order from Dealer and shall be governed by
ASTI.'s price, delivery, payment and other terms then in effect. No inconsistent
terms in any purchase order, acknowledgement or transmittal or confirming
document shall be effective to alter the terms of this Agreement.
5. SALES SUPPORT.
Dealer shall support all sales of the Products in a commercially reasonable
manner as is customary in the industry and appropriate for each sale, including
but not limited to: maintaining a sales force, developing a marketing and sales
plan with ASTI.'s account manager, and post-sale follow up with ASTI.'s account
manager.
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6. TERM AND TERMINATION
This Agreement may be terminated: (1) at any time by the mutual consent of
the parties in writing, effective as provided therein; (2) upon thirty (30) days
written notice by Dealer to ASTI without cause; or (3) 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. The Manufacturer shall
fill all orders for Products placed for Dealer's specific customers prior to
termination of this Agreement.
(a) This Agreement shall expire five (5) years from the date of execution.
This Agreement shall automatically renew under the same terms and conditions in
additional five (5) year increments unless either party is in default of any
material term of this Agreement. If a material default exists hereunder, the
non-defaulting party shall give the defaulting party thirty (30) days written
notice to cure the default or, if the default may not be cured in such time, a
reasonable amount of time to cure the default. If the defaulting party is unable
to cure the within the time frame specified, this Agreement shall be voidable by
the non-defaulting party.
(b) ASTI warrants that it shall conduct the renewal of this Agreement in
good faith. If, after the expiration of the five-year renewal period specified
in 11(a) above without renewal, ASTI elects to appoint a new dealer for an
exclusive customer of Dealer, ASTI shall provide a copy of such agreement to
Dealer. Dealer shall have thirty (30) days to match the terms of such agreement.
If Dealer agrees to the terms of such agreement, ASTI shall renew Dealer as the
exclusive dealer for that customer.
(c) The Parties acknowledge that upon the expiration of this Agreement,
ASTI shall have no right to require Dealer to continue to act as a Dealer of
Products, or of any of them, and Dealer shall have no right to require ASTI to
continue to supply Products, or any of them, to Dealer. In the event of
expiration or termination of this Agreement ASTI shall execute delivery on all
orders placed with and accepted by it and Dealer shall accept shipment and make
payment for any such orders, all in accordance with the provisions of this
Agreement even though termination or expiration has been effected.
This Agreement may be canceled by the non-offending party prior to the
expiration of the contract term on any of the following grounds:
(1) 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;
(2) 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 or renew, or suspension for more than thirty
(30) days;
(3) A law is enacted making the sale of Products unlawful;
(4) 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 of judicial body which violation
results in a loss of the licenses necessary to distribute or supply the
Products;
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(5) The other party does not comply with credit terms as agreed to between
the parties.
(6) An assignment pledge or any other security interest is created in all,
or a substantial part of the non-offending party's assets by the offending party
without the prior written consent of the non-offending party;
(7) Failure by the Dealer to meet the minimum sales required, if any.
A cancellation pursuant to section 6 above shall take effect commencing
with the thirtieth day after written notice is given to the party whose rights
are to be canceled.
7. GENERAL PROVISIONS.
A. The provisions of this Agreement shall apply to all Products
shipped to Dealer's customers or Dealer under any prior agreement with
ASTI. as well as Products shipped to Dealer's customer on or after the date
hereof.
B. Any notice to be given hereunder shall be in writing and delivered
personally, sent by fax, sent by reputable courier service, or sent by
certified or registered mail, postage prepaid, return receipt requested,
addressed to the party concerned at the following address:
If to ASTI.:
American Soil Technologies, Inc.
000 X. Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: President
Telephone No.: (000) 000 0000
Telecopier No.: (000) 000 0000
If to Dealer:
Xxx XxXxxx
Shawmut, MT
Telephone No.: (000) 000 0000
Telecopier No.: (000) 000 0000
Any party may change its address for purposes of this Agreement by notice
given in compliance with this paragraph. All such notices, requests,
demands and communications shall be deemed to have been given on the date
of delivery if personally delivered, sent by fax or sent by reputable
courier service; or on the tenth (10th) business day following the mailing
thereof if sent by mail, postage prepaid.
C. This Agreement shall be governed by and construed in accordance
with the internal substantive laws and judicial decisions of the State of
California without giving effect to its conflict of laws provisions.
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D. Each party hereto consents to the exclusive jurisdiction of either
the Superior Court of Los Angeles County, California or the United States
District Court for the Middle District of California for purposes of any
action brought under or as the result of a breach of this Agreement, and
they each waive any objection thereto. The parties hereto each further
consent and agree that the venue of any action brought under or as a result
of a breach of this Agreement shall be proper in either of the above-named
courts and they each waive any objection thereto.
E. This Agreement shall be binding upon, and shall be for the benefit
of, the parties and their respective successors and permitted assigns;
provided, however, that Dealer may not assign this Agreement without
ASTI.'s prior written consent. Failure of either party to enforce at any
time the provisions of this Agreement shall not be construed to be a waiver
of such provisions or of the right of such party thereafter to enforce such
provisions.
F. This Agreement contains the entire agreement of the parties
relating to the subject matter hereof and replaces all other understandings
and agreements, whether oral or in writing, previously entered into by the
parties with respect to such subject matter. This Agreement will not be
amended or modified in any way except by an agreement in writing signed by
duly authorized representatives of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement.
Xxx XxXxxx American Soil Technologies, Inc.
By: /s/ Xxx XxXxxx By: /s/ Xxxx X. Xxxxx
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Xxx XxXxxx Xxxx X. Xxxxx
Its, President & CEO
Date March 12, 2004 Date March 12, 2004
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SCHEDULE I
PRODUCTS
Agriblend (R), Nutrimoist (R)L, Nutrimoist (R) H-2.5, Extend(TM) (a liquid XXX),
Stockosorb (R) F, Stockosorb (R) C, Stockosorb (R) M, Stockosorb (R) S,
Stockosorb (R), Contain, Baraclear(R), ASTI Gras 120 Flocculant, Anchor MP,
Nutrimoist Hydromulch, Nutrimoist Turf Bio Blend 1 & 2 and other products to be
added from time to time.
It is also understood that the product names may be changed from time to time
with adequate notice to the Dealer.
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Schedule II
Exclusive Customers to be added and made a part of this Schedule.
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