Exhibit 10.7
DISTRIBUTORSHIP AGREEMENT
THIS DISTRIBUTORSHIP AGREEMENT is entered into on 7/19/01, 2001 by and
between AMERICAN SOIL TECHNOLOGIES' AGRIBLEND DIVISION, having a business
address at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Manufacturer"), and BioPlusNutrients,LLC, having a business address at ▇▇▇▇ ▇.
▇▇▇▇. ▇▇., ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Distributor") with respect to the following:
WHEREAS, Manufacturer is engaged in the business of manufacturing and
selling "Agriblend" and other soil amendment products manufactured under other
trade names with each such product containing super absorbent cross-linked
polymer or linear polymer (▇▇▇) described and as may be amended on EXHIBIT "A"
attached hereto which is incorporated herein for all purposes as if set forth
verbatim (the "Products"); and
WHEREAS, Distributor desires to sell the Products on the basis provided for
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein set forth Manufacturer and Distributor have agreed as follows:
I. DESIGNATION AS DISTRIBUTOR
1.1 Upon and subject to the terms and conditions contained in this
Agreement, Manufacturer hereby designates the Distributor as an authorized
distributor of the Products within the territory described in EXHIBIT "B"
attached hereto which is incorporated herein for all purposes as if set forth
verbatim (the "Territory").
II. PURCHASE AND RESALE OF PRODUCTS
2.1 Manufacturer hereby grants to Distributor the right, subject to the
terms and conditions of this Agreement, to sell the Products for resale only. In
consideration of Distributor's agreement herein, Distributor is granted the
right to purchase and resell Products in the Territory.
2.2 Distributor shall submit orders for the Products to Manufacturer.
Manufacturer shall deliver to Distributor such Products as the Distributor may
order. No order submitted to Manufacturer by the Distributor shall become
effective unless and until it is formally accepted in writing by Manufacturer.
Manufacturer shall fulfill such orders and ship the goods to Distributor at
Distributor's principal place of business. Distributor shall pay for all costs
incurred in the shipment of the Products.
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III. PRICES, DISCOUNTS AND TERMS
3.1 All purchases will be at prices set forth in EXHIBIT "A". Distributor
will pay Manufacturer for the Products either in cash or by check at the time of
receipt of order from Manufacturer unless otherwise arranged with Manufacturer
in writing. Distributor understands that the prices set forth in EXHIBIT "A" are
subject to change upon thirty (30) days prior written notice by Manufacturer.
Any pre-sold inventory will be delivered at the price in effect on the date
ordered by Distributor.
IV. DELIVERY; RISK OF LOSS
4.1 Manufacturer shall ship all Products ordered by Distributor hereunder
in the manner and under the terms specified in EXHIBIT "C".
4.2 Upon acceptance of orders received by Manufacturer from Distributor,
Manufacturer shall deliver or cause to be delivered by a common carrier any
Products ordered by Distributor. Products shall be shipped FOB Distributor's
place of business.
V. WARRANTIES AND REPRESENTATIONS
5.1 Manufacturer warrants that the Products manufactured and sold to
Distributor will be free from defects in material and workmanship at the time of
shipment.
5.2 Distributor will supply a copy of Manufacturer's express written
warranty materials to all buyers of Products.
VI. DISTRIBUTOR OPERATIONS
6.1 Distributor agrees to use its best efforts to develop business in, to
promote the use of, and to sell the Products within the Territory in accordance
with good business practice. Manufacturer agrees to assist Distributor in the
sale of the Products, and that it will provide Distributor with all information,
literature and relevant material regularly available under Manufacturer's
practices for use by its distributors.
6.2 Distributor may display Products in shows, wherever located, in which
Dealer's participation is permitted by the show rules.
6.3 Distributor may use Manufacturer's trademarks, trade names and symbols
which apply to the Products in advertising signage and other materials designed
to promote and sell the Products under the Agreement. Dealer will not obtain or
attempt to obtain any right, title or interest in or to the trademarks.
6.4 Distributor shall not distribute, offer, sell, or purchase any products
that compete or may compete with Manufacturer's Products including but not
limited to products that contain cross-linked "super absorbent polymers" or
linear polymers (▇▇▇). Manufacturer acknowledges that Distributor manufactures
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and sells a fertilizer product sold under the trade name "BioPlusNutrients" and
agrees that the manufacture, sale and distribution of this product is excluded
from the provisions of this paragraph, provided the product is not amended by or
applied to a polymer or a product that contains polymer.
6.5 Distributor agrees that neither it nor its directors, affiliates, or
employees shall at any time, either during or subsequent to the term of this
Agreement, unless expressly consented to in writing by Manufacturer, either
directly or indirectly use or disclose to any person or entity any confidential
information of any kind, nature or description concerning any matters affecting
or relating to the business of Manufacturer. This shall include, but not be
limited to, information concerning the customers of Manufacturer, Manufacturer's
marketing methods, compensation paid to employees, independent contractors or
suppliers and other terms of their employment or contractual relationships,
financial and business records, know-how, or any other information concerning
the business of Manufacturer, its manner of operations, its manufacturing
methods or product formulations or other data of any kind, nature or
description. Distributor agrees that the above information and items are
important, material and confidential trade secrets and these affect the
successful conduct of Manufacturer's business and its goodwill.
VII. TERM AND TERMINATION
7.1 This Agreement shall become effective upon its execution by both
parties hereto by their authorized representatives. Upon execution, this
Agreement shall remain in effect for an initial term of one (1) year ("Initial
Term"). This Agreement shall automatically renew for successive one (1) year
terms unless either party notifies the other in writing at least thirty (30)
days prior to the end of any one (1) year term that they do not wish to renew
this Agreement.
7.2 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 Distributor to Manufacturer 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 international mail, of such
termination. Good cause for termination by either party shall include:
(a) Either party's failure to fulfill its commitments and obligations
under this Agreement that includes minimum product inventory and annual minimum
annual sales per product.
(b) Excessive customer complaints received by either party regarding
sales practices of Distributor, or the quality of the Products; or,
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(c) Either party's violation of any law that impairs its ability to
conduct business or otherwise properly perform the commitments and obligations
under this Agreement.
7.3 Termination by either party in accordance with the provisions herein
shall not constitute a breach of this Agreement. Neither Manufacturer nor
Distributor shall by reason of the exercise of the rights of termination, be
liable to the other for compensation, reimbursement or damages either on account
of present or prospective profits on sales or anticipated sales, or on account
of expenditures, investments or commitments made in connection therewith or in
connection with the establishment, development or maintenance of the business or
good will of Manufacturer or Distributor, or on account of any cause or thing
whatsoever; provided, however, that termination of this Agreement shall in no
way affect Manufacturer's obligation with respect to products previously ordered
hereunder.
7.4 In the event of termination of this Agreement, Manufacturer shall make
delivery on retail orders placed with and accepted by it and Distributor shall
accept shipment and make payment for any such orders, all in accordance with the
provisions of this Agreement even though termination has been effected.
VIII. GENERAL PROVISIONS
8.1 Neither Distributor nor Manufacturer is an employee, agent or
representative of the other and nothing herein or performed hereunder shall be
represented or construed as constituting either party as an agent or
representative of the other. Each party shall conduct its entire business under
this Agreement at its own cost and expense and shall have no authority to make
any representation, guarantee or warranty (except as provided in Article V
hereof), commitment or agreement on behalf of the other or to assume or incur
any liability or indebtedness on the other's behalf, or to bind the other under
any obligation whatsoever. Neither party shall be liable for any act or failure
to act by the other, their agents or employees. Each party agrees to indemnify
and hold the other harmless from any and all claims resulting from violation of
this paragraph or resulting from any activity of the other party, its agents or
employees, hereunder.
8.2 Neither this Agreement nor any rights hereunder shall be assigned or
transferred by Distributor without the written consent of Manufacturer. However,
Distributor is permitted within the scope of this Agreement to select retailers
or sub-distributors in the Territory for the Products.
8.3 The failure by either party to enforce or take advantage of any of the
provisions of this Agreement shall not constitute nor be construed as a waiver
of such provisions or of the right subsequently to enforce or take advantage of
each and every such provision. No waiver, deletion, alteration, modification, or
amendment of this Agreement or the rights arising hereunder, shall be valid and
binding unless in writing signed by a duly authorized representative of each
party.
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8.4 Any notice required or contemplated by this Agreement shall be in
writing, delivered by registered or certified mail, addressed to the parties at
their addresses hereinabove set forth, or at such other addresses as may from
time to time be substituted therefor by notice in writing sent by the party
changing its address.
8.5 If a dispute or claim shall arise with respect to any of the terms or
provisions of this Agreement, or with respect to the performance by either of
the Parties under this Agreement, other than a dispute with respect to Section 3
of this Agreement, then either party may, with notice as herein provided,
require that the dispute be submitted under the Commercial Arbitration Rules of
the American Arbitration Association ("AAA"). Each party shall bear one-half
(1/2) of the cost of appointing the arbitrator and of paying such arbitrator's
fees. The written decision of the arbitrator(s) ultimately appointed by or for
both Parties shall be binding and conclusive on the Parties. Judgment may be
entered on such written decision of the single arbitrator in any court having
jurisdiction and the Parties consent to the jurisdiction of the Municipal and
Superior Court of Orange County, California for this purpose. Any arbitration
undertaken pursuant to the terms of this section shall occur in Orange County,
California.
8.6 If any provision of this Agreement shall in any way be or become
violative of or prohibited by or under the valid applicable laws, judgments,
decrees or public policy of any state or jurisdiction, said provision or part
thereof shall be, as to said jurisdiction, ineffective and void to the extent of
such violation or prohibition without invalidating any of the remaining
provisions of this Agreement.
8.7 This Agreement and all Exhibits and Addenda attached hereto set forth
the entire understanding between the parties as to the subject matter hereof and
incorporates herein and supersedes all prior and collateral representations and
agreements by or between the parties. Any and all prior franchise, dealership,
distributorship, or representation agreements, commitments or understandings
which may have been entered into by the parties are hereby terminated and
superseded hereby and any and all claims for violations or breach thereunder are
hereby disavowed and released.
8.8. Each Party (the Indemnifying Party) agrees to indemnify, defend, and
hold harmless the other Party (the Indemnified party) from and against any and
all liability for injury to persons or damage to or loss of property to the
extent caused by the negligent act or omission of the Indemnifying Party, its
subcontractors, agents, or employees, including any and all expense and costs,
legal or otherwise, incurred by the Indemnified Party in the investigation and
defense of any claim, demand, or action arising out of the work performed under
this Agreement; provided, however, that the Indemnifying party shall not be
liable for injury to persons or damage to or loss of property caused by the sole
negligence of the Indemnified Party, its subcontractors, agents, or employees.
However, under no circumstances shall Manufacturer be held liable or have the
duty of indemnification for damages due to improper installation of the
Products.
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The Indemnified Party shall notify promptly the Indemnifying Party of the
existence of any claim, demand, or other matter to which the Indemnifying
Party's indemnification obligations would apply, and shall give them a
reasonable opportunity to settle or defend the same at their own expense and
with counsel of their own selection, provided that the Indemnified Party shall
at all times also have the right to fully participate in the defense. If the
Indemnifying Party, within a reasonable time after this notice, fails to take
appropriate steps to settle or defend the claim, demand, or the matter, the
Indemnified Party shall, upon written notice, have the right, but not the
obligation, to undertake such settlement or defense and to compromise or settle
the claim, demand, or other matter on behalf, for the account, and at the risk,
of the Indemnifying Party.
The rights and obligations of the Parties under this section shall be
binding upon and inure to the benefit of any successors, assigns, and heirs of
the Parties.
8.9 The individuals signing on behalf of Manufacturer and Distributor have
authority to bind the respective parties. Execution and delivery of this
Agreement by Manufacturer and Distributor to the other constitutes a valid and
binding agreement.
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IN WITNESS WHEREOF, this Agreement is signed in two or more counterparts as
of the day and year first above written.
"MANUFACTURER" "DISTRIBUTOR"
AMERICAN SOIL TECHNOLOGIES, INC. BIOPLUSNUTRIENTS LLC
By: /s/ ▇.▇. ▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Its: Exec. V.P. Part Owner
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EXHIBIT "A"
The Distributorship Agreement between American Soil Technologies Inc.,
AGRIBLEND Division ("Manufacturer") and BioPlusNutrients LLC ("Distributor")
dated 7/19/01, 2001.
PRODUCTS AND PRICE
The Products to which the above-mentioned Agreement relates are the
following and are sold for the price indicated on the Manufacturer confidential
dealer price list attached hereto (subject to change upon thirty (30) days prior
written notice by Manufacturer to Distributor).
The below listed products with required inventory and minimum annual sales
requirements per product are required to maintain exclusive relationship in
designated territory with manufacturer.
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EXHIBIT "B"
The Distributorship Agreement between American Soil Technologies Inc.
Agriblend Division ("Manufacturer"), a Nevada corporation, and BioPlusNutrients
LLC ("Distributor"), dated 7/19/01, 2001.
TERRITORY AND BUSINESS APPLICATIONS
The Territory to which the above-mentioned Agreement relates is described
as follows:
Other than Texas, New Mexico and Oklahoma.
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EXHIBIT "C"
The Distributorship Agreement between American Soil Technologies Inc.,
Agriblend Division, a Nevada corporation ("Manufacturer"), and BioPlusNutrients
LLC, a ("Distributor"), dated 7/19/01, 2001.
PAYMENT AND DELIVERY TERMS
Unless Manufacturer and Distributor otherwise agree in writing or
Manufacturer notifies Distributor of a change in the terms of payment or other
terms and conditions of sale, the terms of payment and delivery for Products
purchased under the Agreement referred above shall be as follows:
1. Cash upon delivery to Distributor's place of business or such credit
terms agreed to by the Parties;
2. Delivery shall be FOB Manufacturer's place of business.
3. Any pre-sold inventory shall be delivered at the price in effect when
Distributor placed the order.
4. Manufacturer shall have no liability or indemnification duty for
delays due to causes beyond Manufacturer's control.
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