Exhibit 10.2
MARKETING AGREEMENT
American Soil Technologies, Inc., having its main office at 00000 Xxxxxxxx
Xxxxxx, Xxxxxxx, XX 00000 (hereinafter called "ASTI."), hereby appoints and
authorizes: Spectrum Advisors, LLC, a Nevada Limited Liability Company with its
principal place of business located at 0000 Xxxxx Xxxxxxxxx, Xx Xxxxx Xxxxxxxxxx
00000, (hereinafter called "Spectrum"), to sell on a nonexclusive basis the
products listed on SCHEDULE I hereto (the "Products"). Spectrum hereby accepts
this appointment and agrees to sell the Products under the terms and conditions
set forth below.
ENGAGEMENT
ASTI hereby engages Spectrum to act as a non-exclusive sales and marketing
consultant for ASTI to sell the "Products" as described on SCHEDULE I to the
market as described on SCHEDULE II (the "Market") within the territory described
on SCHEDULE III attached hereto (the "Territory") and Spectrum hereby accepts
such engagement, under the terms and conditions hereinafter set forth.
1.1 EXCLUSIVE. Exclusive means that Spectrum shall not attempt to sell or
promote any products that may be or may be perceived to compete with the
products of ASTI.
1. DUTIES; EXTENT OF SERVICES.
1.1. DUTIES. Spectrum will serve as an exclusive sales and marketing
consultant to assist ASTI in the commercial development and sale of
its products as designated by ASTI from time to time (collectively
referred to herein as the "Products") to the Market within the
Territory. Spectrum's sales and market development activities include,
without limitation, the following:
1.1.1. Soliciting retailers and growers in the Territory to purchase
and use the Products;
1.1.2. Meeting with retailers and growers in the Territory to provide
Product support and to educate them regarding uses of the
Products;
1.1.3. Conducting post-sale follow up with retailers and growers who
use the Products and making recommendations to promote future
sales;
1.1.4. Conducting physical inventory inspections of retailers and
monitoring compliance by retailers with contract requirements;
and
1.1.5. Performing such other sales and advisory services as ASTI may
reasonably request from time to time.
1.2. REPORTING. Spectrum shall send progress reports to ASTI on a
bi-monthly basis and/or periodic reports as deemed necessary by
management containing such information as ASTI may request from time
to time. The reports will be due by the fifth (5th) business day of
the following month.
1
1.3. UNAUTHORIZED REPRESENTATIONS. Spectrum shall hold himself out to be a
sales and marketing consultant for ASTI products. Spectrum has no
authority, and shall not represent that Spectrum has authority, to
make any representations, warranties or agreements on behalf of ASTI,
to accept orders for ASTI, to sign ASTI's name, to receive payments
due ASTI from customers, or to bind ASTI in any manner.
1.4. AUTHORIZED REPRESENTATIONS. Spectrum is only authorized to represent
that it is an authorized by ASTI for the solicitation of orders for
the sale of Products to the Market within the Territory. Spectrum
shall not issue any printed or written matter or advertisement without
securing ASTI's approval of the form and text thereof.
1.5. INSURANCE. Spectrum agrees to purchase and maintain such automobile
liability insurance and any other insurance as ASTI may reasonably
request from time to time.
1.6. EXPENSES. ASTI shall be responsible for paying pre-approved business
expenses incurred in connection with the performance of Spectrum's
duties.
1.7. LIMITED TERRITORY. While this Agreement is in effect, Spectrum agrees
that it will not solicit orders for the Products outside the Territory
unless approved by ASTI.
1.8. COLLECTION OF ACCOUNTS. Spectrum shall assist in the collection of
accounts upon request by ASTI.
2. TERM AND TERMINATION. Unless earlier terminated as set forth below, this
Agreement shall continue in effect for a period of six (6) months after the
date it is signed and accepted by ASTI. Upon expiration of the then-current
term, this Agreement shall automatically renew for additional successive
six (6) month periods unless either party notifies the other in writing at
least thirty (30) days prior to the expiration date of the current term
that it does not consent to such renewal. Notwithstanding any other
provision of this Agreement, Spectrum or ASTI may terminate this Agreement
at any time by written notice of termination given at least thirty (30)
days prior to the effective date of termination. Spectrum or ASTI may
exercise this right of termination with or without cause. If this Agreement
is terminated, Spectrum will discontinue all activity on behalf of ASTI.
4. COMPENSATION
4.1 COMMISSIONS. As payment in for Spectrum's services on behalf of ASTI,
ASTI will pay Spectrum commissions in the amount of not less than five
percent 5% nor more than 10% of the invoice price which is FOB ASTI
warehouse price for the Products sold by ASTI to ASTI's retailers or
growers not inclusive of freight (or other transportation charges)
taxes, insurance, or any additional amounts. ASTI shall have no
obligation to pay any commissions, or any other amounts, to anyone
other than Spectrum. Commissions shall be deemed earned as of the date
when ASTI receives the purchase price for a particular sale and will
be paid within fifteen (15) days of such receipt by ASTI.
2
In the event it comes to ASTI's attention that Spectrum has (i)
actively assisted a ASTI Retailer inside Spectrum's Territory to make
sales outside Spectrum's Territory or (ii) solicited orders for sales
outside Spectrum's Territory, ASTI shall deduct the amount of
commission previously paid to Spectrum in connection with such sales
from Spectrum's next commission check and said commission shall be
paid, in ASTI's discretion to the sales Consultant for the territory
into which the sales was made, if any.
4.2 MONTHLY COMPENSATION. In addition, an amount of $7,000.00 shall be
paid to Spectrum on a monthly basis.
4.3 CREDIT OR REFUND. If ASTI issues a credit or refund to a customer
related to a particular sale upon which a commission has been paid,
then at ASTI's election, either (A) Spectrum shall refund to ASTI a
proportional amount of the commission Spectrum received because of
such sale, or (B) ASTI shall deduct the same from future commissions
Spectrum earns. The credit or refund shall be computed from prices
then in effect, unless otherwise approved by ASTI. If a customer fails
for any reason to pay for any Products shipped pursuant to a sale upon
which a commission has been paid, then at ASTI's election, either (A)
Spectrum shall refund a proportional amount of any commission Spectrum
received with respect to such order, or (B) ASTI may deduct the same
from future commissions Spectrum earns.
4.4 ASTI shall not be liable to Spectrum for any commissions on sales that
Spectrum contends were lost because ASTI or a Distributor refused to
accept any purchase order on which Spectrum would have been entitled
to a commission. Spectrum agrees that any dispute as to (A) whether a
commission is due for a particular sale or (B) to whom a commission is
due shall be decided by ASTI in its sole discretion.
5. ADDITIONAL COVENANTS.
5.1 RIGHTS TO MATERIALS. All records, files, memoranda, reports, selling
aids, samples, displays, catalogs, price lists, customer lists,
technical information, plans, documents and the like (together with
all copies thereof) relating to ASTI's business, which Spectrum shall
use, prepare or receive in the course of the performance of Spectrum's
duties hereunder shall remain ASTI's sole property. Following a
termination of this Agreement or at such earlier time as ASTI may
request, Spectrum shall immediately return all such materials to ASTI.
5.2 CONFIDENTIAL INFORMATION. Spectrum agrees that Spectrum will not,
either during the term of this Agreement or afterwards, disclose to
any person or use, for himself or any other person or entity, any
confidential information of ASTI obtained by Spectrum in the course
of, or as a result of, Spectrum's engagement set forth herein
(including, without limitation, information relating to ASTI's
marketing and sales activities and procedures, technical information,
research data, the names of ASTI's customers and the terms and
conditions of its dealings with customers); provided, however, that
this provision shall not preclude Spectrum from disclosure or use of
information (i) known generally to the public (other than information
3
known generally to be public as a result of a violation by Spectrum of
the provisions of this paragraph), (ii) acquired by Spectrum outside
of Spectrum's engagement by ASTI, (iii) required by law or court order
(provided that Spectrum shall notify ASTI immediately of the
possibility that such disclosure may be required and that disclosure
is limited to the extent necessary to comply with law), or (iv) from
disclosure or use appropriate and in the ordinary course of carrying
out Spectrum's duties as set forth herein.
5.3 REMEDIES. Spectrum acknowledges and agrees that ASTI would suffer
irreparable injury in the event of a breach by Spectrum of any of the
provisions of this Paragraph 5 and that ASTI shall be entitled to an
injunction restraining Spectrum from any breach or threatened breach
thereof. Nothing herein shall be construed, however, as prohibiting
ASTI from pursuing any other remedies at law or in equity, which it
may have for any such breach or threatened breach of any provision of
this Paragraph 5, including the recovery of damages from Spectrum.
5.4 EXCLUSIVE ACCOUNTS. The accounts established by Spectrum through the
receipt and fulfillment of an order by ASTI shall become the exclusive
account of Spectrum and will be set forth in SCHEDULE IV.
6. MISCELLANEOUS PROVISIONS.
6.1 RELATIONSHIP BETWEEN THE PARTIES. Spectrum acknowledges that Spectrum
is an independent contractor and is neither an agent nor an employee
of ASTI. Spectrum is free to exercise Spectrum's own judgment
concerning the time, place and manner of performing Spectrum's duties
under this Agreement. Spectrum is not granted any rights in or to
ASTI's trade names or trademarks.
6.2 NOTICES. 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.
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: President
Telephone No.: (000) 000 0000
Telecopier No.: (000) 000 0000
If to Spectrum:
Spectrum Advisors
0000 Xxxxx Xxxxxxxxx,
Xx Xxxxx Xxxxxxxxxx 00000
Telephone No.: (000) 000 0000
Telecopier No.: (000) 000 0000
4
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.
6.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal substantive laws and judicial decisions
of the State of California without regard to conflicts of laws
principles.
6.4 JURISDICTION AND VENUE. 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.
6.5 BINDING AGREEMENT. This Agreement shall be binding upon the parties
and their respective heirs, successors and permitted assigns;
provided, however, that Spectrum may not assign this Agreement without
ASTI's prior written consent.
6.6 ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof and supersedes and
replaces any other understandings and agreements, whether oral or in
writing, previously entered into by the parties.
6.7 AMENDMENTS. This Agreement shall not be amended or modified except by
an agreement in writing signed by Spectrum and a duly authorized
Officer of ASTI that explicitly refers to this Agreement.
6.8 WAIVER. Failure of either party to enforce at any time or for any
period of 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.
6.9 COUNTERPARTS. This Agreement may be executed and delivered in two or
more counterparts, all of which when so executed shall have the full
force and effect of an original. If this Agreement is executed in
counterparts, no signatory hereto shall be bound until both the
parties named below have duly executed a counterpart of this
Agreement.
5
IN WITNESS WHEREOF, the parties have executed this Agreement.
American Soil Technologies, Inc.
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Xxxx X. Xxxxx, President and CEO
Date: October 20, 2004
Spectrum Advisors, LLC
By: /s/ Xxx XxXxxxx
--------------------------------------------
Xxx XxXxxxx, Manager
Date: October 20, 2004
6
SCHEDULE I
PRODUCTS
Nutrimoist(R)L, Nutrimoist(R)System, Nutrimoist Crystals and Bio-Nutrients.
7
SCHEDULE II
MARKET
The "Market" means the retail and turf market including growers who use the
Products in connection with the production of horticultural products.
8
SCHEDULE III
TERRITORY
The following States shall be the territory subject to change as may be
determined by ASTI.
States of Washington, Oregon, and California
9
SCHEDULE IV
Exclusive Customers to be added and made a part of this Schedule.
10
