Exhibit 10.5
DEALER AGREEMENT
American Soil Technologies, Inc., having its main office at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxx, XX 00000 (hereinafter called "ASTI."), hereby appoints and
authorizes: Dreamscapes LTD. a South Dakota Limited Liability corporation, with
its principal place of business located at 000xx Xxxxxx, Xxxx xxxxxx Xxxxx
Xxxxxx 00000 (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 three (3) 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 within the State of South Dakota. 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.
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-sales follow up with ASTI's account
manager.
ASTI shall be the technical advisor to the Dealer and installation
directions received from ASTI for the Products shall be mandatory.
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 three (3) years from the date of execution.
This Agreement shall automatically renew under the same terms and conditions in
additional three (3) year increments unless either party advises the other
within sixty 60 days of the expiration date that they will not renew or 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 three-year renewal period specified
in 6(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) A trustee, receiver, or other similar custodian is appointed for all or
any substantial part of the other party's property:
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(2) When the aggregate of one party's property, exclusive of any property
which it may have conveyed, transferred, concealed, removed or permitted to be
concealed or removed, with intent to defraud, hinder, or delay its creditors,
shall not at a fair valuation be sufficient in amount to pay its debts, or the
party is unable, by its available assets or the honest use of credit, to pay its
debts as they become due;
(3) 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;
(4) The other party makes an assignment for the benefit of creditors;
(5) An attachment, or any like process, is levied or filed against any
substantial part of the other party's property, and is not discharged within
fifteen (15) days;
(6) A judgment is rendered against the other party and remains unsatisfied,
unstayed or otherwise unsuperseded for sixty days (60) and is substantial in
relation to other party's assets;
(7) 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;
(8) A law is enacted making the sale of Products unlawful;
(9) 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;
(10) The other party does not comply with credit terms as agreed to between
the parties.
(11) An assignment pledge or any other security interest is created in all,
or a substantial part of the other party's assets without the prior written
consent of the non-assigning party;
(12) A breach of any provision of this Agreement, other than those set
forth in subparagraphs (1) through (11) above, if said breach remains
uncorrected for thirty (30) days after written notice thereof.
(13) Failure by the Dealer to meet the minimum sales required, if any.
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(14) The Dealer sells competitive products that are substantially the same
as those supplied by ASTI without ASTI's written permission.
A cancellation pursuant to paragraphs 6 (1) through 6 (14) 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.
0000 Xxxxxxxx Xxxxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone No.: (000) 000 0000
Telecopier No.: (000) 000 0000
If to Dealer:
Dreamscapes LTD
000xx Xxxxxx,
Xxxx Xxxxxx Xxxxx Xxxxxx 00000
Telephone No.: (000) 000 0000
Telecopier No.: (000) 000 0000
Attn: President
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.
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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.
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.
Dreamscapes LTD American Soil Technologies, Inc.
By By: /s/ Xxxx X. Xxxxx
--------------------- -------------------------
Xxxxxx Heinart Xxxx X. Xxxxx
Its President Its President & CEO
Date____________________ Date May 1, 2006
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Schedule I
Products
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 Hydromulch, Sircle Saver Sacks(TM) Soil Medic(TM), Soil
Therapy(TM) 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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