Exhibit 10.3
September 29, 2005
This confirms our agreement concerning the advertising and marketing of American
Soil Technologies, Inc. (ASTI) product known as Nutrimoist (NM) in conjunction
with media associated with ▇. ▇▇▇▇▇ ▇▇▇▇▇. Hortus, Ltd. ("Hortus") is the owner
of the intellectual property rights pertaining to ▇. ▇▇▇▇▇ ▇▇▇▇▇, and this
Agreement is therefore entered into between American Soil Technologies and
Hortus.
1. Rights Granted
Hortus will cause ▇. ▇▇▇▇▇ ▇▇▇▇▇ to use NM products in various media to
consumers in which ▇. ▇▇▇▇▇ ▇▇▇▇▇ appears, including, when appropriate
appearances on local and national television programs, magazine articles,
books, and internet related media.
2. Obligations of Hortus. Hortus agrees that:
(a) NM will receive a 30-second commercial each week for 52 consecutive
weeks on ▇. ▇▇▇▇▇ ▇▇▇▇▇'▇ syndicated television series, "▇. ▇▇▇▇▇
▇▇▇▇▇ Gardens," with the first ad appearing as soon as it can be added
into the program (estimated to be one month from the date this
agreement is executed).
(b) Hortus will produce a 30-second commercial, at no additional expense
to ASTI, featuring the NM product in use in various applications for
airing in the "▇. ▇▇▇▇▇ ▇▇▇▇▇ Gardens" television series.
(c) NM will receive a 10-second sponsorship billboard for 13 weeks in
connection with the syndicated television series. NM will work with
Hortus to determine exact dates. Hortus will produce the 10-second
sponsorship tag at no additional expense to ASTI.
(d) Hortus will create gardening content using NM products in "▇. ▇▇▇▇▇
▇▇▇▇▇'▇ Gardens" that will appear a minimum of 12 times in a 12 month
period in the syndicated series.
(e) NM products will appear in various episodes of the public television
series. ▇. ▇▇▇▇▇ ▇▇▇▇▇'▇ Garden Home. The brand name will appear in
the onscreen credits of the episodes in which the product is used.
(f) NM Products will be featured on ▇. ▇▇▇▇▇ ▇▇▇▇▇ segments on The Weather
Channel. It is understood that the goal is to feature the NM products
in at least 4 segments during the Spring and Summer of 2006, with each
segment airing at least five times during that period. Viewers will be
directed to ▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇, where a link will bring viewers
to ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ where the NM Products will be featured.
(g) NM Products will be featured in "Product Picks" or similarly named
section of ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. ASTI can select up to 10 NM products at
one time to be featured in the "Product Picks" section, and change the
product selection each season (at least four times per year). NM will
be responsible for supplying product shots and the descriptive copy
for each variety. NM will also supply "general" copy - 2 to 4
paragraphs describing the NM brand.
(h) NM will receive 52-weeks-per-year presence on ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
beginning 30-60 days after Hortus receives the photos and descriptive
copies.
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(i) NM will receive an ad in the ▇. ▇▇▇▇▇ ▇▇▇▇▇ online newsletter 10 times
per year. The size of the ad will be a standard upper right hand
banner ad (the same as or similar to the ad that currently appears on
online newsletter).
(j) When appropriate, NM Products may be featured in Cottage Living, a
magazine in which ▇. ▇▇▇▇▇ ▇▇▇▇▇ is currently Senior Gardening
Contributing Editor. It is understood that Cottage Living editorial
and photography is already complete for 2006; hence NM editorial and
photography as per this agreement will instead appear in 2007.
Additionally, ▇. ▇▇▇▇▇ ▇▇▇▇▇ will submit NM Products to be listed in
the "Find It Fast" source guide, with use at the discretion of Cottage
Living editors.
(k) When appropriate, NM Products may be featured in the articles that ▇.
▇▇▇▇▇ ▇▇▇▇▇ currently contributes to Woman's Day magazine, and ▇.
▇▇▇▇▇ ▇▇▇▇▇ will make best efforts to mention NM products and will
submit brand name mentions for source listings.
(l) When appropriate, NM Products may be mentioned in Woman's Day Garden
and Deck Design, a quarterly special interest publication about
outdoor living. ▇. ▇▇▇▇▇ ▇▇▇▇▇ will make best efforts to mention NM
products and will submit brand name mentions for source listings.
(m) NM will be included as a sponsor of ▇. ▇▇▇▇▇ ▇▇▇▇▇ "Colors For Your
Garden Home" book tour. The NM Products, if supplied by NM, will be
used in the color demonstrations during the tour's speaking engagement
and media appearances to promote the book.
(n) Hortus will make a best efforts to obtain product placement of NM
products in AOL Living Home. It is understood that AOL editorial is
derived from Cottage Living editorial and because of this may not
appear until 2007.
(o) Record of Brand Mentions/Exposure. Hortus agrees to keep a record of
each time a NM product included in an advertisement or is mentioned in
magazines articles, TV shows, and other product placements. The record
will be supplied to ASTI on a regular basis (once per quarter).
3. Photography and/or Video Taping. NM and Hortus may, by mutual agreement,
choose to go to additional locations than set forth in this contract with
the express purpose of shooting photography and/or videotape of specific,
NM related content. If these specific location shots are desired, NM will
pay Hortus $7,500 per shooting location, to pay crew travel expenses.
4. Product Delivery. NM will be responsible for delivery of product for use in
▇. ▇▇▇▇▇ ▇▇▇▇▇ projects to be taped for television and/or photographed or
use in printed materials and the internet. The product shall arrive in a
timely way per predetermined schedule agreed upon by Hortus and NM. The
product shall arrive in camera-ready form.
5. Rights Retained. All rights not specifically granted herein relating to ▇.
▇▇▇▇▇ ▇▇▇▇▇'▇ name and likeness and media shall be retained by Hortus.
6. Compensation. In consideration of the rights granted herein, ▇▇▇▇ agrees to
pay Hortus a sum of Two Hundred Twenty-Five Thousand Dollars ($225,000).
The sum will be paid in 3 parts. The first payment of Fifty Thousand
Dollars ($50,000) shall be paid within 30 days of this agreement. The
second payment of Eighty Seven Thousand Five Hundred Dollars ($87,500)
shall be made on January 1, 2006; and the third payment of Eighty Seven
Thousand Five Hundred Dollars ($87,500) shall be made on May 1, 2006.
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7. Product Delivery. ASTI will ship NM Products to be featured in ▇. ▇▇▇▇▇
▇▇▇▇▇ media, to Little Rock and/or other shooting locations in good
condition in the form suitable for photography. The cost of product and
shipping will be the responsibility of ASTI.
8. Term. The term of this Agreement shall commence as of the date of last
signature below and shall terminate one year from the date of last
signature below unless terminated earlier as provided herein. ASTI and
Hortus shall have the mutual option to renew the Agreement for each of two
additional years on the same terms stated herein. If ASTI wishes to renew
the Agreement for the first additional year on the same terms stated
herein, ASTI must notify Hortus of its interest to do so by March 31, 2006;
if ASTI wishes to renew the Agreement for the second additional year on the
same terms stated herein, ASTI must notify Hortus of its interest to do so
by March 31, 2007; and similarly by March 31, 2008 for the third year.
9. Termination. Either party shall have the right to terminate this Agreement
upon sixty (60) days written notice following; (i) the material breach of
the provisions hereof by either party or (ii) the institution of
bankruptcy, reorganization, liquidation or receivership proceedings against
the other party, provided that the cure of the breach within the notice or
dismissal of such proceedings within the notice, as applicable shall
constitute a cure.
10. Ownership of Intellectual Property. ASTI acknowledges that Hortus is the
sole owner of the name and likeness of ▇. ▇▇▇▇▇ ▇▇▇▇▇, and all copyright,
trademark or other property rights pertaining thereto.
11. Indemnity. ASTI shall indemnify and hold harmless Hortus, its officers,
employees and agents, and Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇ from any and all claims,
demands, actions, causes, suits, proceedings, damages, liabilities, costs
and expenses of every nature, including attorney's fees, relating to or
arising out of or from (a) the manufacture, distribution, sale or use of
the PAS Products or (b) the use of the NM intellectual property. Hortus
shall indemnify and hold harmless ASTI, its constituent members, and their
officers, employees, and agents from any and all claims, demands, actions
causes, suits, proceedings, damages, liabilities, costs and expenses of
every nature, including attorney's fees, relating to or arising out of
Hortus' breach of any covenant or representation contained in this
agreement, or any third-party claims of infringement or misuse relating to
the ▇. ▇▇▇▇▇ ▇▇▇▇▇ name and likeness.
12. Confidential Information. Each party agrees that in the course of this
agreement it may be exposed to Confidential Information (as hereinafter
defined) of another party. Confidential Information shall be used by the
receiving party only for the purposes of carrying out its obligations under
this agreement, and the receiving party shall protect such information with
at least the same standard of care that it applies to the protection of its
own like information. Confidential Information shall mean information that
is identified as such by the disclosing party, either orally or in writing,
but shall not include such information that (i) is or later becomes
generally known to the public other than by fault of the receiving party;
(ii) is already known to the receiving party as evidenced by written
records; or (iii) is supplied to the receiving party by a third party who
is under no confidentiality obligation with the disclosing party with
respect to such information.
13. Miscellaneous. This agreement does not create a relationship between the
parties other than independent contractor. This agreement shall not be
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assigned by either party, in whole or in part, other than as part of a
total sale of all assets of one of the parties, without the agreement of
the other party. This agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof. No modification or
waiver with respect to this agreement is valid unless it is in writing and
signed by the party against whom such modification or waiver is to be
enforced.
Accepted and Agreed:
AMERICAN SOIL TECHNOLOGIES, INC
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ 3 October 2005
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▇▇▇▇ ▇. ▇▇▇▇▇ Date
President/CEO
HORTUS, LTD.
BY: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇ 30 September 2005
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▇. ▇▇▇▇▇ ▇▇▇▇▇ Date
President
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