Exhibit 10.25
REPRESENTATIVE AGREEMENT
This AGREEMENT is made, by and between AMERICAN SOIL TECHNOLOGIES, INC., a
Nevada corporation located at 00000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
("ASTI"), and Pure Chemicals LTD, an Israeli Company located at 00 Xxxxxxx Xx.,
Xxxx Xxxx 00000, Xxxxxx (the " Representative"). ASTI and Representative are
referred to collectively herein as the ("Parties").
In consideration of the premises and the mutual agreements herein contained
and other valuable consideration the receipt and sufficiency of which is
acknowledged, ASTI and the Representative agree as follows:
1. Engagement as Independent Representative.
1.1. ASTI hereby engages the Representative to act on an exclusive basis
as an independent representative for ASTI to sell the "Products" as
described on SCHEDULE A to the market as described on SCHEDULE B
(the "Market") within the territory described on SCHEDULE C attached
hereto (the "Territory") and as the exclusive dealer and
representative as to the accounts established by the Representative
outside the territory as set forth in SCHEDULE D and Representative
hereby accepts such engagement, under the terms and conditions
hereinafter set forth.
ASTI will not sell any of the products, directly or indirectly or by
another representative/ agent/ distributor, to any person or company
or other entity, at the market within the Territory and/or to the
accounts established by the representative outside the Territory .
Furthermore, any inquiry to ASTI from a third party as mentioned
above, concerning the products, will be immediately directed to the
representative.
1.2. Any person/company/other entity outside the territory as set forth
in Schedule D, that ordered and received a sample of the products
due to the activities of the representative according to this
agreement, will be referred to at this agreement as "accounts
established by the representative" and made a part of Schedule D.
2. Representative's Duties ; Extent of Services.
2.1 Duties. The Representative will serve as an independent
representative 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 and to the accounts established by the
distributor outside the territory. The Representative's sales and
market development activities include, without limitation, the
following:
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2.1.1. Soliciting distributors, retailers and growers in the
Territory to purchase and use the Products, by using the
representative's reputation, business standing, connections
and professional knowledge.
2.1.2. Meeting with distributors, retailers and growers in the
Territory to provide Product support and to educate them
regarding uses of the Products;
2.1.3. Encouraging growers to conduct periodic testing of the
efficacy of the Products on crops during the growing season,
and to provide the results to ASTI;
2.1.4. Conducting post-sale follow up with retailers and growers who
use the Products and making recommendations to promote future
sales;
2.1.5. Conducting physical inventory inspections of distributors and
monitoring compliance by distributors with contract
requirements; and
2.1.6. Performing such other sales and advisory services as ASTI may
reasonably request from time to time.
2.2. Reporting. The Representative shall send progress reports to ASTI
once every quarter, containing information as to the progress of its
activities according to this agreement. . The reports will be due by
the fifth (5th) business day of the first month of every quarter.
2.3. Unauthorized Representations. The Representative shall not hold
himself out to be an employee of ASTI, nor shall the Representative
do anything, which might be construed as an act on behalf of ASTI.
The Representative has no authority, and shall not represent that
the Representative 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.
2.4. Authorized Representations. The Representative is only authorized to
represent that the Representative is the exclusive Representative of
ASTI for the solicitation of orders for the sale of Products to the
Market within the Territory and to the accounts outside the
territory, established by the representative. The Representative
shall not issue any printed or written matter or advertisement
representing the Representative to be a Representative of ASTI
without securing ASTI's written approval of the form and text
thereof.
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2.5. Expenses. The Representative shall be responsible for paying his
business expenses incurred in connection with the performance of the
Representative's duties hereunder, other than those expenses
associated with special projects as requested and approved in
writing by ASTI.
2.6. Limited Territory. While this Agreement is in effect, the
Representative agrees that the Representative will not solicit
orders for the Products outside the Territory (apart from accounts
outside the territory, established by the representative as
mentioned within paragraph 1.2), unless approved by ASTI.
2.7. Collection of Accounts. The Representative shall assist in the
collection of past due accounts upon request by ASTI. Representative
will not be liable for past due accounts.
3. ASTI's duties and declarations:
3.1. ASTI shall, at its own expense, provide the representative with
samples in reasonable amounts of the products that will be used by
the customers for testing the products.
3.2. ASTI shall, at its own expense, provide the representative with
technical and marketing information concerning the products,
brochures, electronic information, instructional material and other
product data.
3.3. ASTI shall, at its own expense, assist the representative and the
customers of the products in all ways deemed reasonable by ASTI, in
the solution of problems relating to the products.
3.4. The name and address of the representative will be mentioned at
ASTI's website, as ASTI's exclusive representative in the Teritory.
3.5. ASTI shall indemnify and hold representative free and harmless from
any and all claims, damages or law suit arising out of defects in
the products caused by ASTI, or failure of ASTI to provide any
product to a customer that has properly ordered through
representative.
4.0 Term and Termination. , This Agreement shall continue in effect for a
period of one (1) year 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 one (1) year periods unless
either party notifies the other in writing at least ninety (90) days prior
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to the expiration date of the current term that it does not consent to such
renewal. If this Agreement is terminated, the Representative will
discontinue all activity on behalf of ASTI. Not withstanding the
aforementioned, after termination of this agreement, should the customer no
longer pay the Representative, ASTI will pay the Representative a
percentage of any payment ASTI will receive selling the products, directly
or indirectly, at the market within the territory or to the accounts
established by the Representative as described under paragraph 1.2 to this
agreement, less insurance and freight, as agreed hereinafter:
A. If there is a termination and ASTI is the terminating party the
Representative will become a non-exclusive representative of ASTI
and if not compensated by the customer, will be paid by ASTI a 10%
commission on all sales to the customers, if serviced by the
Representative existing at the time of the termination and 10% on
new accounts if the Representative is not paid by the new customer.
B. If the Representative is told not to service the existing accounts
by ASTI, after a termination, then the Representative shall receive
5% on all sales to the existing accounts for a period of three years
from the day the Representative discontinues servicing the account.
C. If there is a termination and ASTI is not the terminating party and
the Representative agrees to service the existing accounts and the
accounts are not compensating the Representative, the Representative
shall be paid a 10% commission on all sales to the existing
accounts.
D. If there is a termination and ASTI is not the terminating party and
the Representative refuses to service the accounts then and in that
event the Representative shall not receive any compensation from
ASTI other than that which may be due at the time of termination.
4.1 Compensation. It is clearly understood and agreed between the parties the
Representative shall be compensated through an arrangement with its
customers, unless the parties agree differently regarding certain products
and/or certain customers.
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 the
Representative shall use, prepare or receive in the course of the
performance of the Representative's duties hereunder shall remain
ASTI's sole property. Following a termination of this Agreement or
at such earlier time as ASTI may request, the Representative shall
immediately return all such materials to ASTI.
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5.2 Confidential Information. The Representative agrees that the
Representative 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
the Representative in the course of, or as a result of, the
Representative'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 the Representative from disclosure or use of
information (i) known generally to the public (other than
information known generally to be public as a result of a violation
by the Representative of the provisions of this paragraph), (ii)
acquired by the Representative outside of the Representative's
engagement by ASTI, (iii) required by law or court order (provided
that the Representative 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 the Representative's duties as set forth herein.
The provisions under sections 5.1- 5.2 above, shall not prevent the
Representative from carrying out his business activities with any
person or entity that is included in ASTI's customers list, provided
the Representative will not disclose ASTI's customers list to any
third party nor will the representative sell, without ASTI's written
permission, those products that compete with the products and
equipment offered by ASTI as long as this agreement is in effect, or
as long as the representative continues to service the account and
to be paid by the customer or by ASTI, as aforesaid within section 4
to this agreement.
5.3 Remedies. The Representative acknowledges and agrees that ASTI would
suffer irreparable injury in the event of a breach by the
Representative of any of the provisions of this Paragraph 5 and that
ASTI shall be entitled to an injunction restraining the
Representative 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 the
Representative.
6. Miscellaneous Provisions.
a. Relationship Between the Parties. The Representative acknowledges
that the Representative is an independent contractor and is neither
an agent nor an employee of ASTI. The Representative is free to
exercise the Representative's own judgment concerning the time,
place and manner of performing the Representative's duties under
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this Agreement. The Representative is not granted any rights in or
to ASTI's trade names or trademarks.
b. 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 Representative:
Pure Chemicals LTD.
00 Xxxxxxx Xx.
Xxxx Xxxx 00000
Xxxxxx
Attn: President
Telephone No.: 000 00 0000 000
Telecopier No.: 000 00 0000 86
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. Governing Law. If ASTI is the plaintiff under the terms of this
Agreement the matter 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. If the Representative is the plaintiff under the terms
of this Agreement Governing Law will not be pre-decided.
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d. Jurisdiction and Venue. If ASTI is the plaintiff under the terms of
this Agreement 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 by ASTI 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. If the
Representative is the plaintiff under the terms of this Agreement
Jurisdiction and Venue will not be pre-decided.
e. Binding Agreement. This Agreement shall be binding upon the parties
and their respective heirs, successors and permitted assigns;
provided, however, that the Representative may not assign this
Agreement without ASTI's prior written consent. ASTI shall not deny
its consent, provided the assignee will accept the full terms of
this agreement, unless there are reasonable arguments for denying
the consent.
f. 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 with respect to the
Representative's engagement by ASTI.
g. Amendments. This Agreement shall not be amended or modified except
by an agreement in writing signed by the Representative and a duly
authorized representative of ASTI that explicitly refers to this
Agreement.
h. 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.
i. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement.
American Soil Technologies, Inc.
By: /s Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President and CEO
Date: June 27, 2005
Pure Chemicals LTD
By: /s/ Xxxx Xxx-Xxx
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Xxxx Xxx-Xxx, President
Date: June 28, 2005
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SCHEDULE A
PRODUCTS
All ASTI products, including, without limitation, the following Agriblend (R),
Nutrimoist (R)L, Nutrimoist (R) H-2.5, Nutrimoist Crystals, Extend(TM) (a liquid
XXX), Stockosorb (R) F, Stockosorb (R) C, Stockosorb (R) M, Stockosorb (R) S,
Stockopam, Canal Seal, Dust Contain, Baraclear(R), Anchor MP, Nutrimoist
Crystals, Sircle Saver Sack(TM), Hydromulch, Nutrimoist Turf Bio Blend 1 & 2,
M216 Polymer Injector 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 Representative.
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SCHEDULE B
MARKET
The "Market" means the agricultural and Turf markets including farmers and
growers who use the Products in connection with the production of crops and
other agricultural products and applications in the Turf Industry.
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SCHEDULE C
TERRITORY
1. Israel
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SCHEDULE D
Accounts established by the Representative outside the territory, as
described under paragraph 1.2 to this agreement.
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