Exhibit 10.28
LICENSE AGREEMENT
THIS AGREEMENT by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of
▇▇▇▇▇▇ City and Richland, WA, with their principal place of business located at
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇, hereinafter referred to as "the Inventors", and
American Soil Technologies, Inc., having its main office at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter referred to as "the Licensee".
WHEREAS, Inventors have invented and manufacture unique polyacrylamide polymer
products called "Sircle Saver" and "Soil Saver" for use in the agriculture,
irrigation and water clarifying industries;
WHEREAS, Licensee is in the business of marketing and distributing products
related to those manufactured by Inventors;
WHEREAS, Inventors desire to grant and Licensee desires to acquire, exclusive
rights to market and distribute Inventors' certain polyacrylamide polymer
products for use in the agriculture, irrigation and water clarifying industries
called "Sircle Saver" and "Soil Saver", together with all modifications and
improvements thereto (hereinafter referred to as "the Invented Products,
Products or Invention"); ;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties hereto agree as follows:
1. LICENSE
1.1 Grant
Inventors hereby grant to Licensee, and Licensee hereby accepts from
Inventors, an exclusive license to market and distribute the Invention (the
"License"). The License includes an exclusive license under the Patent
Application and Patents relating to the Invention. The License includes the
right to grant sublicenses without approval of the Inventor, on any terms deemed
necessary or proper by Licensee, subject only the terms of this Agreement. The
scope of the License includes the United States of America and all foreign
countries ("Territory")and is not geographically limited.
The Inventors may continue to directly market and sell Products to persons
and entities for the use and consumption of said customers and not for resale.
Inventors may also distribute Products through distributors identified in
Schedule A
1.2 Term
The term of the License shall commence on the date the License Agreement is
signed by all parties, and will continue for ten years, with one additional five
year extensions option, which may be exercised so long as the Licensee is not in
default hereunder, meets the quotas as set forth below and this Agreement has
not been terminated as herein provided.
1.3 Trademarks and Trade Names
During the term of this Agreement, Inventors grant to Licensee a license to
reproduce trademarks and trade names, if any, of Inventors as necessary for the
sole purpose of allowing Licensee to fully promote and market the Products
pursuant to the terms of this Agreement. Any and all trademarks and trade names
associated with the Products created by the Licensee are and shall remain the
exclusive property of the Licensee. If, during the term of this Agreement, a
trademark registration is to take place in the Territory, all rights shall
belong to the Inventor, although Licensee shall bear the costs for such
registration. Whenever Licensee employs any trademark of Inventors to be used in
any form of printed material, Licensee shall place an asterisk immediately after
and slightly above the first use of the trademark referring to a footnote
reading "Trademark of Inventors." Licensee shall deliver to Inventors all
Licensee's promotion and advertising material for Inventors' review, prior to
such promotion or advertising utilizing any of Inventors' trademarks or trade
names. Licensee agrees not to use any promotion or advertising that Inventors
finds unsuitable in their reasonable discretion. Upon the termination of this
Agreement for any reason, Licensee shall thereupon be deemed to have assigned
all Trademarks associated with the Products to Inventors.
1.4 Authority
Licensee is an independent legal entity, and the relationship between
Licensee and Inventors is entirely based on Licensee's purchasing and selling
Inventors' products for Licensee's own account. Licensee shall have no authority
whatsoever to bind or represent Inventors in any respect. Nothing contained
herein shall be deemed to create a partnership between the parties or the
relationship of principal and agent.
1.5 Manufacturing
The manufacturing rights of Products are not transferred to the Licensee
and shall remain the exclusive right of the Inventors or their assigns. Licensee
may only market and sell Products manufactured by Inventors.
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2. LICENSEE OBLIGATIONS
2.1 Marketing Efforts
Licensee agrees to use its best efforts to promote the sale of the Products
in the Territory on the maximum possible scale by all usual and customary means
and to act loyally to Inventors in all matters involved in this Agreement. In
addition, Licensee agrees to:
(a) provide Inventors with all sales budgets on or before each March 31st
during the term of this Agreement, outlining the quantities of
Products to be sold/purchased during the next calendar year;
(b) Licensee shall control and direct the preparation and prosecution of
all Patent Applications through Licensee's patent counsel and shall
pay for costs and expenses of each Patent Application.
(c) Describe itself as a Licensee for Inventors in the Territory in all
commercial documents relating to the Products;
(d) Inform Inventors immediately of any changes in Licensee's organization
or method of doing business which might affect the performance of
Licensee's duties hereunder; and
(e) Keep Inventors fully informed at all times of the market conditions,
competitive products and prices, and other facts material to the
marketing of the Products in the Territory.
(f) Provide Inventors with a report on a quarterly basis separately
stating the numbers of Products sold.
2.2. Initial Patent Application
Licensee shall promptly cause a patent application relating to the
Invention to be prepared and filed with the United States Patent and Trademark
Office ("Patent Applications"), and shall diligently prosecute the same. The
Patent Application shall be filed in the name of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ as the inventors. Licensee shall control and direct the preparation and
prosecution of all Patent Applications through Licensee's patent counsel and
shall pay for the costs and expenses of each Patent Application. Inventor shall
fully and completely cooperate with Licensee in the preparation, filing and
prosecution of any Patent Application.
Licensee's failure to successfully prosecute the initial patent application
within two years of the execution of this Agreement will be regarded as a
default hereunder, entitling Inventor to terminate this Agreement for default.
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2.3. New Patent Applications
Whenever it deems it necessary or proper to do so, Licensee shall be
entitled to cause a patent application relating to any new aspects or otherwise
unpatented aspects of the Invention to be prepared and filed with the United
States Patent and Trademark Office ("Patent Applications"). Each Patent
Application shall be filed in Inventor's name as the inventor. Licensee shall
control and direct the preparation and prosecution of all Patent Applications
through Licensee's patent counsel and shall pay for the costs and expenses of
each Patent Application. Inventor shall fully and completely cooperate with
Licensee in the preparation, filing and prosecution of any Patent Application.
This Section 2.3 shall also apply to any and all continuation,
continuation-in-part, divisional and reissue patent applications, which in whole
or in part or directly or indirectly, are based upon or claim any priority from
the Licensed Patents or any Patent Application. The decision to file any such
continuation, continuation-in-part, divisional or reissue patent application
shall rest solely with Licensee. If Licensee declines to file a continuation,
continuation-in-part, divisional and reissue patent applications, it shall be
treated as a declined application under Paragraph 2.5.
2.4. Improvements.
Licensee may file with the United States Patent and Trademark Office
additional patent applications claiming any improvement, enhancement or
variation of the Invention. Licensee shall control and direct the preparation
and prosecution of such patent applications through Licensee's patent counsel
and shall pay for the costs and expenses of such patent applications. Inventor
shall cooperate with Licensee in the preparation, filing and prosecution of such
patent applications. Ownership of such patent applications and any patents
issuing therefrom shall be in the name of Inventor.
2.5. Foreign Patent Applications.
Licensee may file in any foreign countries patent applications claiming the
Invention, including any improvements, enhancements or variations thereof.
Licensee shall control and direct the preparation and prosecution of such patent
applications through Licensee's patent counsel and shall pay for the costs and
expenses of such patent applications. Inventors shall cooperate with Licensee in
the preparation, filing and prosecution of such patent applications. Ownership
of such foreign patent applications and any foreign patents issuing therefrom
shall be in the name of Inventors but subject to this Agreement. The provisions
of this Section 2.5 apply to any existing foreign patent applications that may
have been made by Inventors prior to the date of this Agreement.
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2.6. Declined Applications.
If Licensee declines to file a patent application within the scope of
Section 2.3, 2.4, or 2.5 above within three (3) years of the date of this
Agreement, Inventors may do so at their cost and expense. In such event, any
patent issuing from the application declined by Licensee shall not be deemed a
Licensed Patent or included within the License. Licensee shall have no
obligation or responsibility with respect to such declined application or
declined patent.
2.7. Abandonment of Applications.
Licensee may abandon or otherwise cease to prosecute or maintain any patent
application within the scope of Sections 2.3, 2.4, or 2.5. Prior to such
abandonment, Licensee shall give notice of its intent to abandon to Inventors
and Inventors may, at their cost and expense, assume control of and
responsibility for the patent application in question and continue to prosecute
and maintain such application. Any patent issuing from an application abandoned
by Licensee shall not be deemed a Licensed Patent or included within the
License, and Licensee shall have no right to market or sell products described
in said patent applications. Licensee shall have no obligation or responsibility
with respect to any such application abandoned by them.
2.8 Non-Competition
During the term of this Agreement, Licensee shall not, directly or
indirectly, distribute in the Territory, Products purchased from any person or
entity other than Inventors. In addition, the Licensee shall not, directly or
indirectly, market, sell, manufacture or distribute in the Territory, products
which compete with the Products under this Agreement, unless otherwise agreed by
the parties hereto. This provision is not to be interpreted in a way that would
prevent Licensee from distributing in the Territory those polyacrylamide polymer
products applied in granular or liquid form.
2.9 Prohibited Practices
Licensee agrees not to pledge, in any manner, the credit of Inventors nor
to receive any money on behalf of Inventors nor to make any contracts or
commitments on behalf of Inventors nor to make any warranties or other
representations regarding the Products other than those authorized by Inventors
in writing.
2.10 Insurance
Licensee covenants and agrees to provide, at its expense, during the
term of this Agreement a comprehensive general liability insurance policy
("liability policy"), including, without limitation, blanket contractual
liability coverage, broad form property damage, independent contractor's
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coverage, completed operations, products liability and personal injury coverage
of not less than One Million Dollars ($1,000,000.00) per person and One Million
Dollars ($1,000,000.00) per occurrence for bodily or personal injury (including
death) and property damage, protecting Inventor, its agents, and Licensee
against any liability whatsoever occasioned by any occurrence arising from the
marketing, sale and use of the Invention.
Said liability policy shall name Inventor as an additional insured, and
shall provide primary coverage in the event Inventor provides any additional
liability policy of its own. Said liability policy is to be written by a good
and solvent insurance company licensed to do business in the State of Washington
and that is satisfactory to Inventor, and must contain endorsements requiring
written notice to Inventor thirty (30) days prior to any cancellation or
reduction in the amount of coverage. A copy of said liability policy will be
provided to Inventor immediately upon its execution.
The parties each agree that, to the extent of payments made or received
under such or other policies of insurance, they hereby waive claims of
subrogation against the other, if allowable by insurance carrier without voiding
coverage.
Licensee's failure to provide and keep in force the aforementioned
insurance policies will be regarded as a default hereunder, entitling Inventor
to exercise any and all of the remedies provided in this Agreement for default.
3. SALES AND SUPPORT
3.1 Licensee Prices
Inventors shall establish the prices to be charged to Licensee for each
Product (the "Licensee Costs"). The current Licensee Costs are set forth in
Schedule "B" attached hereto. Inventors shall have the right, in their sole
discretion, to increase or decrease the Licensee Costs upon one month's written
notice to Licensee if based upon an increase of fixed or overhead cost as
provided herein. Inventors may increase Licensee Costs in amounts equal to
increases in costs of labor, materials, transportation and insurance. In
addition, Licensee Costs may be increased by the amount of actual increases of
overhead expenses up to a maximum of the CPI Index percentage change for all
costs as published by the United States Department of Labor (CPI-U, US City
Average, All Items) during the period passing since the last overhead cost
increase. All Licensee Cost increases must be supported by the appropriate
documents as requested by the Licensee. Cost increases or decreases will not
affect orders already accepted by Inventors.
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3.2 Licensee Orders
Licensee shall place written orders with Inventors on or before the 15th of
any calendar month, covering quantities to be delivered during the next three
month's period. The quantity ordered for delivery for the first month shall be
firm. The quantity ordered for delivery for the second month shall be firm with
respect to eighty percent (80%). The quantity ordered for delivery for the third
month shall be firm with respect to fifty percent (50%). Payments shall be made
in 30 days from delivery. If Licensee fails to make payment when due, Inventors
may give written notice to Licensee demanding payment and declaring Licensee to
be in default if Licensee fails to pay the amount due within 30 days of the date
of the notice.
3.3 Security Interest
Licensee grants to Inventor a purchase money security interest in all
Products sold to secure Licensee's payment obligations. Such security interest
is retained until Licensee's payment obligations are satisfied in full.
Inventors may file this Agreement or financing statements pursuant to the
Uniform Commercial Code or other applicable law to evidence or perfect
Inventors' security interest. Licensee agrees to execute any additional
documents Inventors deems necessary to perfect any such security interest. Upon
termination of this Agreement, Inventors agrees to release such security
interest for all Products for which payment has been received.
3.4 Sales Quotas
During thefirst year of the initial term of this Agreement, there shall be
no sales quotas. For subsequent years Licensee shall have the following quotas
of units purchased from Inventors: During the second, third, fourth and fifth
years of initial term of this Agreement, the quota shall be twenty percent (20%)
more than the number of units purchased by Licensee during the immediately
preceding year, up to the fixed quota set forth below. Thereafter, there shall
be a fixed quota of 100,000 units per year for the balance of the initial term
and for the renewal term. In the event that Licensee does not meet the quota,
Inventors may terminate the License granted under this Agreement, effective upon
the last day of the annual term for which the quota was not met.
3.6 Financing
Licensee, and not Inventors, shall be solely responsible for all risk of
nonpayment for Products distributed on credit.
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3.7 Taxes and Licensing
Licensee shall:
(a) pay all customs, import, excise, sales, and other similar duties and
taxes payable in respect of the Products shipped to Licensee.
(b) obtain any licenses, authorizations, permissions, and other documents,
and comply with all formalities in a state for the import, export,
distribution, sale and/or other disposal of the Products in and from
each state.
3.8 Technical Support
The Inventors shall, shall provide such technical support to the Licensee
during the term of this Agreement as reasonably requested by the Licensee, and
agreeable to both parties.
3.9 Purchase of polyacrylamide.
The Inventors and/or those designated by them as the manufactures shall
purchase the polyacrylamide needed to manufacture the Invented Products from the
Licensee as long as the licensee sells said product to the Inventors or their
designees at the same wholesale price the Licensee may sell to other dealers in
like quantities. If Licensee charges a greater price, Inventor may thereafter
purchase the polyacrylamide from any source.
4. DELIVERY AND RISK OF LOSS
4.1 Delivery
Inventors shall ship the Products ordered by Licensee within the normal
shipping schedule established by Inventors from time to time, but cannot
guarantee a specific shipment date. Accordingly, Inventors' sole obligation to
Licensee shall be to ship Products as promptly as reasonably practicable.
4.2 Risk of Loss
Delivery shall be made F.O.B. Inventors plant. Possession of and title to
all Products ordered hereunder, excepting Inventors security interest therein,
shall be deemed to pass to Licensee upon delivery to the common carrier at the
point of shipment. Licensee shall thereupon assume all risk of loss or damage,
except for any loss resulting from the negligence of Inventors. Transportation
charges and cost of insurance, which may be incurred, shall be added to the
Licensee Price for each Product and shall be paid by Licensee.
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4.3 Inspection
Licensee shall inspect all Products immediately upon arrival and shall,
within seven calendar days of arrival, give written notice to the common carrier
and Inventors of any claim for damages or shortages. Licensee shall give written
notice to Inventors within ten (10) calendar days of arrival that any Product
does not conform with the terms of this Agreement. If Licensee fails to give any
such notice, the Products shall be deemed accepted for all purposes of this
Agreement.
5. WARRANTY AND LIMITATION OF LIABILITY
5.1 Warranty.
Inventors warrants (i) that Inventors' performance pursuant to this
Agreement does not violate any agreement between Inventors and any third party
and (ii) , with respect to agricultural and irrigation uses only, that to
Inventors' knowledge, without Inventors making any investigation into such
matter, the Products do not infringe any outstanding patent rights of a third
party in the Territory. Inventors' warranty with regard to Section 5.2(ii) below
extends only to the Products themselves, and not to the use of the Products by
the Licensee. To the extent Licensee resells any of the Products in other than
an original unopened container (including without limitation containers opened
solely for purposes of sampling such Products to make sure that they meet the
agreed upon specifications for such Products), Inventors shall not be liable for
claims of patent infringement based upon the sale or use of such Products or the
manufacture, sale or use of any material containing such Products.
Inventor further represents and warrants to Licensee that:
(a) Inventors conceived the Invention;
(b) Inventors are the actual and rightful owners of the Invention and all
patent rights and other intellectual property law rights therein;
(c) no other person or entity has any rights, interest or title in or to
the Invention (including patent rights thereto);
(d) the Invention (including patent rights thereto) is not subject to any
mortgage, lien, encumbrance or defect in title;
(e). Inventors have not entered into any license, obligation, assignment,
contract or understanding in conflict with this Agreement,
(f) the Invention and the rights thereto are not subject to any dispute,
arbitration or litigation.
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5.2.1 Quality; Remedies for Nonconforming Product.
Inventors warrants that the Products sold hereunder shall be in compliance
with the specifications agreed upon from time to time by the parties hereto and
set forth in the certificate of compliance stating that the Products delivered
are consistent with Inventors' formulation and specifications (the "C of C")
accompanying each order of the Products. Inventors makes no other warranty of
any kind, express or implied, and makes NO WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. A C of C shall accompany each shipment of
Products to Licensee. Licensee covenants that it shall fully comply with all
label directions for the handling, storage, possession, resale or use of the
Products sold hereunder and Licensee agrees that it shall indemnify and hold
Inventors harmless from all claims (including, without limitation, attorneys'
fees) of personal injury or property damage resulting from any product liability
claim, whether based upon any theory, including strict liability, negligence,
gross negligence, recklessness or willful misconduct on the part of Licensee or
from any failure of Licensee to comply with the terms of this covenant. Claims
on account of weight, loss of or damage to Product shall be waived unless made
in writing within ten (10) days from the date of delivery to Licensee and prior
to the mixing, blending, converting or other destruction of the identity of the
goods.
Upon written notice of nonconformity of any Product, Inventors shall have
the right to cure said nonconformity within a commercially reasonable time even
though the time for delivery has expired. LICENSEE'S REMEDIES FOR BREACH OF
WARRANTY BY INVENTORS SHALL BE LIMITED TO OBTAINING CONFORMING PRODUCT FROM
INVENTORS OR THE CREDITING OF LICENSEE'S ACCOUNT WITH INVENTORS FOR ANY AMOUNTS
LICENSEE MAY ALREADY HAVE PAID FOR NONCONFORMING PRODUCT. Inventors shall
determine at its sole discretion which remedy it shall provide in a given
situation.
5.3 Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL INVENTORS BE LIABLE TO LICENSEE OR ANY CUSTOMER FOR
ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OPERATION OF THE PRODUCTS, EVEN
IF INVENTORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL INVENTORS HAVE ANY
LIABILITY WHATSOEVER FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR
THEIR PERFORMANCE IN EXCESS OF THE TOTAL LICENSEE PRICES PAID BY LICENSEE
HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH
CLAIM.
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6. TERMINATION
6.1 Termination on Notice
Inventors shall have the right to terminate this Agreement immediately upon
notice to Licensee if: (a) Licensee becomes insolvent or party to any bankruptcy
or receivership proceedings or makes an assignment for the benefit of creditors;
(b) Licensee fails to comply with the confidentiality and ownership provisions
of this Agreement; (c) Licensee fails to procure and maintain insurance as
required under the Agreement, (d) Licensee fails to successfully prosecute the
Initial Patent Application within two years of the execution of this Agreement;
(e) Licensee fails to pay for Products purchased hereunder in a timely manner,
and has failed to cure within 30 days of receipt of notice of default; or (f)
Licensee fails to meet quotas in any geographical area three consecutive years.
Either party shall have the right to terminate this Agreement upon thirty (30)
days prior written notice, if within such thirty (30) day period a default or
material failure of any of the provisions of this Agreement is not cured.
6.2 Obligations Upon Termination or Expiration
Licensee expressly agrees that termination according to this Agreement
shall not cause Inventors to reimburse or pay Licensee in any way for loss of
profits, investments made or for like causes. Upon termination or expiration of
this Agreement for any cause, Licensee shall immediately cease representing
itself as a Licensee of the Products.
7. CONFIDENTIALITY AND PROPRIETARY RIGHTS
7.1 Confidential Information
Licensee acknowledges that in the course of dealings between the parties,
Licensee will acquire information about Inventors, their business activities and
operations, their technical information and trade secrets, all of which are
highly confidential and proprietary to Inventors (the "Confidential
Information"). Confidential Information shall not include information generally
available to or known by the public, or information independently developed
outside the scope of this Agreement. Licensee shall hold all such Confidential
Information in strict confidence and shall not reveal the same except pursuant
to a court order or equivalent arbitration tribunal order. The Confidential
Information shall be safeguarded by Licensee with at least as great a degree of
care as Licensee uses to safeguard its own most confidential materials or data
relating to its own business. The provisions of this paragraph shall survive the
termination of this Agreement.
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7.2 Proprietary Rights
Licensee acknowledges and agrees that the Products, including without
limitation, , the specific design and structure of individual Products and their
interaction, as well as other design rights and know-how related to the Products
are and shall remain the sole and exclusive property of Inventors and shall not
be sold, used, revealed, disclosed or otherwise communicated, directly or
indirectly, by Licensee to any person, company or institution whatsoever other
than for the purposes set forth herein. It is expressly understood that no title
to or ownership of the industrial or intellectual property rights in or to the
Products, or any part thereof, or any aspect related to or trade secret involved
with the Products is hereby transferred to Licensee. In addition, Inventors
retains all rights to modifications and changes made to the product design or
construction. Licensee shall not adapt copyrightable aspects of the Products in
any way or use them to create a derivative work. It is expressly understood that
no title to or ownership of any aspect of the Products, or any part thereof is
hereby transferred to Licensee.
7.3 Specific Remedies
If Licensee commits a breach of any of the provisions of paragraphs 7.1 or
7.2 above, Inventors shall have, in addition to all other rights in law and
equity, (a) the right to have such provision specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed that any such
breach will cause irreparable injury to such party and that money damages will
not provide an adequate remedy and (b) the right to require Licensee to account
for and pay Inventors all compensation, profits, monies, accruals, increments or
other tangible benefits (collectively "Benefits") derived or received as the
result of any transactions constituting a breach of any of the provisions of
this Article 7, and Licensee hereby agrees to account for and pay such Benefits.
8. INDEMNIFICATION
Licensee agrees that it will sell, handle, store, transport and use, or
apply the product in a safe and reasonable manner, and in strict conformance
with due diligence and care, consistent with applicable law, and that Inventors
shall not be liable for any loss, damage or injury to any person or property
occurring after delivery of the product by Inventors to Licensee. Licensee
agrees that it shall indemnify and hold Inventors harmless from and against all
claims, damages, losses, and expenses, including legal fees, arising out of or
resulting from the sale, handling, storage, transport, use or application of the
product by Licenseeby its employees, agents, customers, or anyone for whose
actions any of them may be liable.
Inventors agree that it will manufacture the product(s) in a safe and
reasonable manner, and in strict conformance with their specifications therefor,
and that Licensee shall not be liable for any loss, damage or injury to any
person or property occurring after delivery of the product by Inventors to
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Licensee based upon improper manufacturing. Inventors agree that they shall
indemnify and hold Licensee harmless from and against all claims, damages,
losses, and expenses, including legal fees, arising out of or resulting from the
manufacturing of the product(s), by them or their employees, agents, customers,
or anyone for whose actions any of them may be liable.
9. INVENTORS DECLARATION
Inventors have no actual knowledge of any present claim by any third party
that the import and/or sale of the Products may infringe any patent, registered
designs, trademarks, copyright, or similar rights existing or registered in any
of the countries in the Territory. Inventors declare to the best of their
knowledge that the sale and use of the Products shall not involve infringement
of any third party's intellectual property right. Inventors does not make any
further warranty, either express or implied, under statutes or common law in
respect of any patents, registered designs, trademarks, copyrights, or similar
rights of third parties.
10. GENERAL
10.1 Force Majeure
A party to this Agreement shall not be responsible or liable to the other
party if the first party is prevented, hindered or delayed by reasons of any
force majeure circumstances to perform its contractual obligations according to
this Agreement. In this clause, "force majeure circumstances" shall mean any
war, riot, social disturbance, act of God, strike, lockout, trade dispute or
labor disturbance, accident, breakdown of plant or machinery, fire, flood,
difficulty in obtaining workmen or materials or transportation, or any other
circumstances whatsoever outside the control of the party.
10.2 Governing Law and Arbitration
The construction, validity, and performance of this Agreement shall be
governed in all respects by the laws of the State of Washington. Any dispute
arising out of or in connection with this Agreement shall be settled exclusively
and finally by arbitration conducted in accordance with the laws governing
arbitration by agreement. All limitations of liability set forth in this
Agreement, including but not limited to the limitations set forth in Article 5
hereof, shall be binding and given full force and effect in any such
arbitration. The arbitration shall be conducted by three (3) neutral arbitrators
who are selected by agreement of the parties from the list of qualified
arbitrators in the community. The arbitrators shall be selected within a period
of thirty (30) days after the date either party hereto receives from the other a
written demand for arbitration. Should the parties fail to agree on the choice
of arbitrators within such thirty (30) day period, the arbitrators shall be
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appointed by a judge of a court of competent jurisdiction. Judgment may be
entered upon any award rendered by the majority of the arbitrators in any court
of competent jurisdiction, or application may be made to any such court for a
judicial acceptance of the award and an order of enforcement, as the case may
be. Notwithstanding the agreement of the parties hereunder to submit disputes to
binding arbitration, Inventors shall not be required to resort to arbitration in
the event of a breach by Licensee of the terms in Article 7 hereof, but shall be
entitled to resort to the applicable court for any equitable relief available
for the redress of the breach thereof, including, but not limited to, injunctive
and interlocutory relief.
In the event suit is brought or arbitration initiated for the recovery of
any sums due under this Agreement or for the breach of any covenant or condition
of this Agreement or for a declaration of rights under this Agreement, the
prevailing party shall be entitled to reasonable attorneys fees and all costs
incurred in connection therewith.
10.3 Independent Contractors
Licensee acknowledges that it is not, and shall not hold itself out as, a
joint venturer, franchisee, partner, employee, servant, representative or agent
of Inventors. It is expressly agreed that the parties hereto are acting
hereunder as independent contractors, and under no circumstances shall any of
the employees of one party be deemed the employees of any other party for any
purpose. This Agreement shall not be construed as authority for any party to act
for another party in any agency or other capacity, or to make commitments of any
kind for the account of or on behalf of another party except to the extent and
for the purposes expressly provided for herein.
10.4 Non-Solicitation
Unless otherwise mutually agreed to by the parties in writing, each party
agrees not to hire or to solicit the employment of any personnel of the other
party.
10.5 Notices
Any notice required to be given hereunder shall be deemed given if in
writing and personally delivered or actually deposited in the United States mail
in registered or certified form, return receipt requested, postage pre-paid, and
addressed to the notified party at the address set forth above or as changed by
written notice.
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10.6 Assignment
This Agreement and the rights granted hereunder may not be assigned by
either party without the prior written consent of the other, except that
Inventors may assign this Agreement without the written consent of Licensee to a
parent company, subsidiary, affiliate or a purchaser of all or substantially all
of Inventors' rights in the Products.
10.7 Severability
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall not affect
the validity or enforceability of any other part or provision of this Agreement.
10.8 Waiver
No waiver by any party of any breach of any provision hereof shall
constitute a waiver of any other breach of that or any other provision hereof.
10.9 Entire Agreement
This Agreement, including the Schedules attached hereto, constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all previous proposals, both oral and written, negotiations,
representations, commitments, writings and all other communications between the
parties. This Agreement may not be released, discharged, changed or modified
except by an instrument in writing signed by a duly authorized representative of
each of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a
duly authorized representative as of the date herein set forth.
INVENTORS LICENSEE
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ American Soil Technologies, Inc
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Date By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------- ----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Its President/CEO
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date February 18, 2005
-------------------------- --------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date
----------------------
15
CONSENTED TO BY , THE SPOUSE OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇:
Date:
---------------------- ----------------------------
CONSENTED TO BY , THE SPOUSE OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇:
Date:
---------------------- ----------------------------
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EXHIBIT "A"
DISTRIBUTORS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Bill's area will be Eastern Idaho, Pocatello and north.
▇▇▇▇ ▇▇▇▇▇▇▇
Western Farm Services
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ does business in Washington and NE Oregon.
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EXHIBIT "B"
HRE Enterprises, Inc.
Sircle Saver/Soil Saver - Price List 2005
Price is adjusted based on a monthly order volume of 2,000 units.
5# Unit 2.5# Unit
Price Each Price Each
---------- ----------
Monthly order volume > 2,000 units $18.55 $ 9.80
Monthly order volume < 2,000 units $19.05 $10.30
18