MARKETING AND TECHNOLOGY LICENSE AGREEMENT (Summit - Asah Terra)
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
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Page
1 of 10 Pages
|
(Summit
- Asah Terra)
This
Agreement “Agreement”) is entered into effective February 25, 2006, by and
between Summit Environmental Corporation, Inc. (“Summit”), a Texas corporation,
and Asah Terra Nigeria Joint Venture #1, Inc. (“Asah Terra”), a Washington
corporation.
In
consideration of the representations, promises and undertakings set forth below,
the parties agree as follows:
1.
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Representations
by Summit.
Summit Represents to Asah Terra as
follows:
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1.1
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Summit
is the exclusive owner of certain Products and Technologies listed
on
Exhibit 1 attached hereto (the “Products and Technologies” or “Products”).
Summit has the exclusive right to manufacture and market each of
the
Products and Technologies in any territory or industry (due to Summit’s
ownership of certain patents, trademarks and intellectual property
and/or
products and technologies licensed to Summit exclusively by Biogenesis
Enterprises, Inc.) listed in Exhibit 2 and not excluded by Exhibit
3
herein.
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1.2
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Summit
enters into marketing and technology agreements with companies to
develop
venues and to market the Products and Technologies in specific areas
of
the world. Based upon the representations and covenants of Asah Terra,
Summit is willing to grant the rights to develop, market, sell, and/or
implement its Products and Technologies and/or its technologies herein
named on the terms set forth below.
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1.3
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Summit
agrees to not unreasonably deny Asah Terra its request to amend Exhibit
2,
with reference to Exhibit 3 herein, enabling Asah Terra to expand
its
exclusive developmental and marketing network into other marketing
areas
as they become known, provided that Summit has not already established
a
distribution network in said specific
market.
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Exhibit
10.17
Page
1 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 2
of 10 Pages
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1.4 |
Summit
shall extent to Asah Terra the rights to include Summit’s Products and
Technologies or products and technologies manufactured by Biogenesis
Enterprises, Inc. exclusively for Summit but with the sole approval
authority remaining with Summit. Summit further warrants to Asah
Terra
that Summit possesses the rights to products and technologies manufactured
by Biogenesis Enterprises, Inc., granted to Asah Terra herein by
virtue of
the license agreement executed by and between Summit and Biogenesis
Enterprises,
Inc.
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2.
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Representations
by Asah Terra.
Asah Terra represents to Summit as
follows:
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2.1
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Asah
Terra is a corporation in good standing in the state of Washington
with a
working knowledge and understanding of developing projects requiring
the
use of Summit’s Products and Technologies and service launches into new
markets specifically in the country of
Nigeria.
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2.2
|
Asah
Terra is an experienced project developer, marketer and Products
and
Technologies supplier to the industry or market herein mentioned.
It has
the contacts and sales representatives needed to identify and develop
projects and develop and market the Products and Technologies in
the
territories or industries described herein. Further, Asah Terra possesses
the technical contacts and representatives to service the accounts
resulting from this agreement.
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3.
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Appointment
of Asah Terra as Project Developer and Marketer and Sales Representative
for Summit.
Summit authorizes Asah Terra to identify and develop projects and
market
the Products and Technologies along with the use of its trademarks
and
trade names so long as Summit is acknowledged in conjunction with
said
usage in specific geographic areas (the “Territories”) or industries (the
“Industries”) described in Exhibit 2 attached hereto. Asah Terra will use
its best efforts to research, develop, test, and evaluate markets
for the
Products and Technologies and their potential in the Territories
and
Industries.
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4.
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Asah
Terra Obligations.
Asah Terra covenants to do the
following:
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4.1
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Identify
the Territory or Industry for which each project will be developed
and the
corresponding sale of Products and Technologies is to be
made.
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Exhibit
10.17
Page
2 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 3
of 10 Pages
|
4.2 |
Exert
its best effort to develop projects and market the Products and
Technologies in the Territories and Industries. Acquire request
for
proposals (RFP) from potential clients in order to sell and contract
for
Summit Products and Technologies. Participate with Summit in
joint
projects. Submit joint project proposals on behalf of Summit
and Asah
Terra for work described by potential clients in their
RFP.
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4.3
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Not
sell or promote competing products and/or technologies in the Territories
and Industries.
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4.4
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Utilize
the Summit website and marketing data currently to reflect the integrity
of the Products and Technologies and their unique certification and
listings.
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4.5
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Asah
Terra acknowledges Summit’s position of final approval for the use of its
Products and Technologies as contained in section 1.4
above.
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5.
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Summit’s
Obligations.
Summit covenants to do the
following:
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5.1
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Deliver
as promptly as practicable all Asah Terra technical support, project
recommendations, equipment and products completing sales orders,
FOB,
point of origin, by shipment to such locations as Asah Terra shall
designate, unless Asah Terra shall accept delivery by use of their
own
vendor.
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5.2
|
With
regard to Asah Terra project development and marketing rights, Summit
agrees not to sell to persons or entities other than Asah Terra within
the
scope of those registered to Exhibit 2 herein and protected by the
Non-Disclosure/Non-Circumvention Bilateral Agreement between the
two
parties herein dated February 5,
2006.
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5.3
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Promptly
refer to Asah Terra all leads, inquiries or prospects regarding potential
projects, venues, or purchasers of the Projects and Technologies
within
any Territory or Industry of the marketing rights, which are not
excluded
by Exhibit 3 examples of which are captioned in 5.2
above.
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5.4
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Provide
Asah Terra with wholesale pricing for other Projects and Technologies
in
their respective Territories or
Industries.
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Exhibit
10.17
Page
3 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 4
of 10 Pages
|
6. |
Summit
and Asah Terra Joint Project.
When Asah Terra successfully identifies and develops a RFP through
its
marketing, contacts and sales representatives, a Joint Project
(JP) shall
be created between Summit and Asah Terra. The JP shall be defined
as work
requiring the joint efforts and resources of Summit and Asah
Terra. The JP
will be formed when Summit receives from Asah Terra the name
of the
project (Project), its Work Order Number, and the Project’s scope of work
(Project Scope). The Project Scope shall define, describe, and
attach any
available information concerning the Project problem definition,
technical
assessment, objectives and goals. Summit and Asah Terra will
then prepare
a Joint Project Proposal to be submitted to the Project’s managing entity
(Client). The work (Work), with recommendation from Biogenesis
Enterprises, Inc. for the successful completion of said JP, shall
be
defined and described in the Joint Project Proposal prepared
and agreed to
by both Summit and Asah Terra. Summit shall be the General Contractor
and
managing entity of all JP’s. Summit shall be responsible for the end
product of all JP’s and therefore shall direct all work described in the
Project Proposal. Asah Terra shall provide contacts with the
Client and
local suppliers and governing entities. Both Summit and Asah
Terra shall
work diligently and cooperatively to successfully achieve the
objectives
and required end product of the
JP.
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6.1
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Joint
Project Proposal (JP Proposal). The JP Proposal shall contain the
Project
Scope, the Work to be done and the objectives and/or required end
product.
The JP Proposal shall include a JP plan describing the Critical Path
and
proposed JP task timeline from start to finish including, but not
limited
to, a schedule of applicable laboratory work, materials, manpower
and
consultants, equipment, and power needed to do the Work. The JP Proposal
shall contain estimated costs of said applicable laboratory work,
materials, equipment, chemicals, manpower and consultants, materials,
power and other costs necessary for the Work. The JP Proposal shall
also
contain Duties and Responsibilities, describing the duties and
responsibilities of Summit, Biogenesis Enterprises, Inc. and Asah
Terra
relating to the project tasks, communications, chemicals and materials
delivery, manpower, and other resources necessary for the successful
completion of the JP.
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6.2
|
Joint
Project Profit. The JP Proposal shall include an amount of profit
which
shall be shared equally at the JP completion by Summit, Biogenesis
Enterprises, Inc. and Asah Terra. Both Summit and Asah Terra shall
make
every effort to complete the JP in a diligent and efficient manner
while
achieving the stated objectives and end product and to provide a
JP
Profit. Profit shall be the balance, if any, derived by calculations
from
Summit’s accounting department. All schedules and final calculations must
be approved by both Summit and Asah Terra in determining the final
JP
profit.
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Exhibit
10.17
Page
4 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 5
of 10 Pages
|
7. |
Prices
and Terms of Payment.
Exhibit 1 lists the prices Summit shall charge for Products and
Technologies. Upon 90 days written notice from Summit to Asah
Terra,
Summit may change these prices, but only to reflect (1) demonstrated
increases in Summit’s direct costs of goods and/or (2) increases in the
consumer price index published by the U.S. Department of Labor.
All
chemical prices are FOB, point of origin. Payment terms are cash,
U.S.A.
dollars, with chemical order (50% down and 50% balance due on
shipping
readiness) or an irrevocable letter of credit on a bank favorable
to
Summit.
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8.
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Delivery.
Each shipment order will have a pre-negotiated delivery date for
delivery
due to the customer, size of order, and the Products and Technologies
with
any specific requirements for said order, if delivered to an entity
other
than Asah Terra.
|
In
General:
8.1
|
Fire
suppression and Remediation Bulk Products and Technologies - 3 weeks.
Summit shall have sufficient inventory to fill order of up to 3 pallets
at
all times.
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8.2
|
Special
Remediation Formulation - 4 weeks.
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8.3
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Custom-made
Equipment, Products and Technologies - 8 weeks or
longer.
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9.
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Use
of Name and Trademarks.
Asah Terra shall prominently display and use Summit’s name, trademarks,
trade names, and logos in the operation of the project development
and
marketing rights granted herein. Asah Terra may indicate in signs,
advertising, and other publicity and marketing materials that Asah
Terra
is authorized as marketing representative of Summit’s Products and
Technologies in accordance with the provisions of Exhibit 2 herein.
Asah
Terra shall not use Summit’s name in Asah Terra’s own corporate name or
any fictitious business name.
|
10.
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Warranties.
Summit shall provide Asah Terra with a standard warranty for all
Products
and Technologies Asah Terra markets on behalf of Summit or Biogenesis
Enterprises, Inc. The warranties shall conform to reasonable commercial
standards when compared to other competitive Products and Technologies.
Asah Terra shall pass through the warranties to all persons who purchase
any Products and/or Technologies from Summit and/or Asah Terra without
varying any of the warranties’ terms or provisions. Summit shall repair or
replace any Products and/or Technologies covered by a warranty that
malfunctions, fails to operate or is otherwise
defective.
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Exhibit
10.17
Page
5 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 6
of 10 Pages
|
11. |
Indemnities.
The parties shall indemnify each other as
follows:
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11.1
|
Asah
Terra shall indemnify Summit and hold Summit harmless against, and
defend
against, each claim and damage of every kind for injury to or death
of any
person or for damage to or loss of property, arising out of or attributed,
directly or indirectly, to the conduct, operations or performance
of Asah
Terra.
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11.2
|
Summit
shall indemnify Asah Terra and hold Asah Terra harmless against,
and
defend against, each claim and damage of every kind arising out of
any
defects, failures or malfunctions of any Products and Technologies,
except
those caused by Asah Terra or otherwise arising out of or attributed,
directly or indirectly, to the conduct, operations or performance
of Asah
Terra. Summit shall at all times maintain Products Completed Liability
Insurance covering all Products and be named and cause Asah Terra
to be
named by Biogenesis Enterprises, Inc. for Technologies sold to or
through
Asah Terra by Summit with a maximum limit of $2 million per occurrence.
Such policies of insurance shall name Asah Terra as an additional
insured
party, and Summit shall provide a copy of such a certificate of insurance
whether from Summit or Biogenesis Enterprises, Inc. to Asah Terra
after
the execution of this agreement when requested for JPs described
herein.
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12.
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Assignment.
This Agreement may not be assigned by either party without the prior
written consent of the other party.
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13.
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Termination
of the Agreement.
Each party to this Agreement, at its option, and without prejudice
to any
other remedy it may have at law or in equity, may terminate the Agreement
on 30 days’ notice to the other party for any of the following causes not
corrected within such 30 days’ notice period: If the other party
-
|
13.1 |
Is
adjudged as voluntarily or involuntarily
bankrupt.
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13.2 |
Allows
a money judgment against it to remain unsettled for 90 days or
longer.
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13.3 |
Becomes
insolvent or has a receiver of its assets or property
appointed.
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13.4 |
Makes
an assignment for the benefit of its
creditors.
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13.5
|
Institutes
or suffers to be instituted a proceeding for the reorganization or
rearrangement of its affairs.
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13.6 |
Defaults
in the performance of any material obligation under this
Agreement.
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Exhibit
10.17
Page
6 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 7
of 10 Pages
|
15.
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Disputes.
All disputes concerning this Agreement’s interpretation or validity, or
the performance by the parties of their obligations under this Agreement,
shall be governed by and resolved in accordance with the laws of
the State
of Texas, county of Xxxxx. In any legal or equitable action or arbitration
between the parties, the prevailing party shall be entitled to recover
its
reasonable attorney’s fees and its other costs of the action or
proceeding. No waiver by a party may constitute a breach of this
Agreement
by the other party, or any delay or failure by a party to exercise
any
right given to it hereunder or to insist upon the strict performance
by
the other party of its obligations hereunder, shall constitute a
waiver by
either party of its right at any time to insist upon the strict compliance
by the other party with the provisions
hereof.
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16.
|
Entire
Agreement.
This Agreement supersedes all earlier agreements between the parties.
It
contains all the terms and conditions agreed upon by the parties
with
reference to its subject matter. It can be changed or modified by
written
instrument only, executed by both
parties.
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17.
|
Notices.
Any Notices a party sends to the other party pursuant to this Agreement
(as distinguished from notices sent pursuant to litigation or dispute
arbitration) shall be deemed delivered, if sent by regular mail,
three
days after deposited in a post office; if sent by fax or electronic
mail,
the day of receipt if received on a regular business day before 5:00
p.m.,
otherwise, the next business day; or if sent by certified mail or
courier
delivery, the day of receipt. The addresses of the parties are as
follows
or as may be changed by written notification by one party to the
other
party:
|
Summit
Environmental Corporation, Inc.
|
Asah
Terra Nigeria Joint Venture #1, Inc.
|
000
Xxxxx Xxxxx Xxxxxx
|
0000
X.X. 000 Xxxxxx
|
Xxxxxxxx,
XX 00000
|
Xxxxxxxx,
XX 00000
|
Fax:
000-000-0000
|
Fax:
000 000-0000
|
Summit
Environmental Corporation, Inc.
|
Asah
Terra Nigeria Joint Venture #1, Inc.
|
|
|
By:
/s/
B. Xxxxx
Xxxxxx
|
By:
/s/
Xxxxxx X.
Xxxxxx
|
B.
Xxxxx Xxxxxx, CEO
|
Xxxxxx
X. Xxxxxx, Director
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Date:
3 March 2006
|
Date:
28 Feb 2006
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Exhibit
10.17
Page
7 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 8
of 10 Pages
|
EXHIBIT
1
Products
and Technologies
|
Base
Summit
|
Selling
Price
|
|
|
|
Project
Equipment
|
Per
Project Quote
|
Specialty
Chemicals
|
Per
Project Quote
|
Exhibit
10.17
Page
8 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 9
of 10 Pages
|
EXHIBIT
2
TERRITORIES
and INDUSTRIES
Products
and Technologies
|
Industry
|
Term
|
Renewal
Date
|
|||
Fire
Suppression
Ultimate
Clean Products
Specialty
Design Project
Formulations
|
Shell
Oil and other oil and gas natural gas industry companies of
Nigeria
|
5
year
|
February
14, 2008
|
|||
Fire
fighting apparatus
|
5
year
|
February
14, 2008
|
||||
Footnotes:
Inventory for Exhibit 2 shall be protected and in accordance with the
Non-Circumvention, Non-Disclosure Agreement executed by the parties herein
on
February 15, 2006.
This
section is to be amended from time to time as territories and industries need
to
be added. Listing or addition of industry expansion should be done by amending
this Exhibit 2 and the Agent Registration Schedule to the Non-Disclosure and
Non-Circumvention Bilateral Agreement should be amended for the addition of
specific entities becoming a part hereto.
Exhibit
10.17
Page
9 of 10
Marketing
and Sales Agreement
|
February
25, 2006
|
Summit
Environmental Corp., Inc. & Asah Terra Nigeria Joint Venture #1,
Inc.
|
Page 10
of 10 Pages
|
EXHIBIT
3
MARKET
EXCLUSIONS
Companies
and Contacts not subject to this agreement:
Taiwan
|
Australia
|
Argentina
|
Poland
|
New
Zealand
|
Canada
|
India
|
|
Mexico
|
USA
|
Companies
and Contacts
Summit
reserves the right unilaterally to amend Exhibit 3 from time to time but without
conflict with Exhibit 2 or the Non-Circumvention/Non Disclosure Agreement
executed between the parties hereto dated February 15, 2006.
Exhibit
10.17
Page
10 of
10