Exhibit 10.2
DISTRIBUTOR AGREEMENT
Between
THE AMBER GROUP, LLC
And
AMERICAN SOIL TECHNOLOGIES, INC.
The Amber Group, LLC, a California Limited Liability Company ("TAG" or
"Supplier") and American Soil Technologies, Inc., a Nevada Corporation ("ASTI"or
"Distributor"), in consideration of the promises made herein and intending to be
legally bound, agree as follows:
ARTICLE 1. RECITALS
SECTION 1.01. LEGAL STATUS OF TAG. TAG is a limited liability company duly
organized, validly existing, and in good standing under the laws of the State of
California, with power to own property and carry on its business as it is now
being conducted. TAG has its principal office and place of business at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECTION 1.02. LEGAL STATUS OF ASTI. The Distributor is a corporation, duly
organized, validly existing, and in good standing under the laws of the State of
Nevada, with corporate power to own property and carry on its business as
contemplated by this Agreement. Distributor has its principal office and place
of business at ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇.
SECTION 1.03. SUPPLIER BUSINESS. The Supplier is engaged in the sale of
specialized chemical products for a variety of applications including industrial
chemicals, GRAS products, and GRAS Affirmed Polymers for Flume Water ("the
Products").
SECTION 1.04. FACILITIES, ABILITY, AND DESIRE TO BE DISTRIBUTOR.
(a) The Distributor represents that it possesses the technical ability and
will provide the facilities necessary to promote the sale and use of the
Products and is desirous of developing demand for and selling the Products as
set forth in Schedule "A" to the Accounts hereinafter identified in Schedule
"B".
(b) Supplier is desirous of having Distributor develop demand for and sell
its Products to the Accounts on the terms and conditions set forth herein.
ARTICLE 2. DISTRIBUTORSHIP
SECTION 2.01. GRAS-FLUME AND FOOD PRODUCTS - NON-EXCLUSIVE APPOINTMENT.
(a) The Supplier appoints the Distributor as a non-exclusive distributor
for the sale of the Products as described in Schedule "A," which products are
affirmed as products that are "Generally Regarded As Safe" or "Generally
Regarded As Safe for Flume Wash Water and Food Contact" ("GRAS - Flume and
Food").
(b) The Distributor is restricted to selling GRAS - Flume and Food Products
to persons, firms, and entities who are end-users of the Products, through the
Distributor's own employees. The Distributor is required to invoice the
end-users of the Products described in this SECTION and is specifically
prohibited from selling GRAS and GRAS - Flume and Food Products to persons,
firms, and entities who not are end-users of the Products. These products are
not to be sold by Distributor for resale.
(c) The Products are to be packaged under a private label as designed and
specified by Distributor. On the label, the following words shall be printed in
a font size and in a color which is clearly legible: "Manufactured by Cytec
Industries."
(d) During the term of this Agreement, the Supplier shall not appoint any
other or different person, firm, or entity to sell the Products in the Accounts.
(e) The Distributor shall not open or repackage any GRAS- Flume and Food
Products.
SECTION 2.02. DISTRIBUTOR'S ACCOUNTS. Distributor's existing Accounts are
set forth in Schedule "B" attached hereto. Distributor may add additional
Accounts to Schedule "B" by obtaining a bona fide purchase order for products
listed in Schedule "A" from the new Account and sending an invoice to such
Account. The Supplier shall not sell Products to Distributor's Accounts.
SECTION 2.03. SUPPLIER'S ACCOUNTS. Distributor shall not sell Products to
any accounts of the Supplier, its dealers or other distributors.
SECTION 2.04. SELLING RIGHTS RESERVED. The Supplier may sell the Products
to any person, firm, or entity outside the Distributor's Accounts, but not under
Distributor's private label, or utilizing Distributor's name "American Soil
Technologies."
SECTION 2.05. ACCEPTANCE. The Distributor accepts the appointment to
develop demand for and to sell the Products within accounts and will make all
sales hereunder in accordance with this Agreement.
SECTION 2.06. TERM. This Agreement shall continue in full force for the
period of three (3) years from the date of this Agreement commencing on the date
of execution. At the expiration of this initial term, this Agreement shall be
automatically renewed for successive one (1) year terms, unless either of the
parties hereto has given to the other party written notice of its election to
terminate this Agreement at least sixty (60) days prior to the end of the
initial three (3) year term or any successive one (1) year term.
ARTICLE 3. OPERATIONS
SECTION 3.01. ACCEPTANCE OF ORDERS; FILLING; SHIPMENT; LETTERS OF
AFFIRMATION.
(a) All orders the Supplier receives for its Products from the Distributor
are subject to acceptance by Supplier.
(b) The Supplier will use its best efforts to fill the accepted orders as
promptly as practicable, subject, however, to delays caused by Government orders
or requirements, transportation conditions, labor or material shortages,
strikes, riots, fires, or any other cause beyond the Supplier's control. In all
cases, the Supplier will use its best efforts to advise the Distributor in
advance of any inability to make full and timely delivery of any Products, which
the Distributor has previously ordered.
(c) All Products shall be shipped directly to Distributor's customers by
the Supplier's manufacturer, Cytec Industries.
(d) The Supplier will prepare letters of affirmation for Products for
Distributor's customers, which shall be provided to Distributor's customers
prior to delivery of Products.
SECTION 3.02. PAYMENT.
(a) The Distributor shall pay the Supplier for its Products the
Distributor's net prices, f.o.b. Bakersfield, California, within thirty (30)
days of invoice, according to the schedule of prices set forth in Schedule "A"
attached hereto, as such Schedule may be modified from time to time by Supplier.
(b) The Supplier may change the schedule of prices from time to time, but
only if it experiences a material change in the cost of raw materials, or other
supply, and then only upon ninety (90) days' prior written notice to
Distributor.
SECTION 3.03. DISTRIBUTOR'S EFFORTS, FACILITIES, AND PERSONNEL. The
Distributor will use its best efforts to promote demand for and sale of the
Supplier's Products in it's Accounts, and will maintain adequate facilities and
sales and field personnel for the purpose.
SECTION 3.04. PLACE OF BUSINESS, AND SERVICE DEPARTMENT. The Distributor
shall maintain a place of business satisfactory to the Supplier at all times,
and the Supplier shall have the right at all reasonable times during business
hours to inspect the place of business.
SECTION 3.05. APPOINTMENT OF DEALERS, SALESMEN, OR OTHER REPRESENTATIVES.
The Distributor shall work and develop the Sales to the satisfaction of the
Supplier, and in doing so shall use sales people employed by ASTI only to
maintain control of product application.
SECTION 3.06. RETURN OF PRODUCTS FOR CREDIT.
(a) Unless the Supplier shall have authorized or permitted the return of
any Products, the Supplier shall not be obligated to accept from the Distributor
any Products returned, nor to make any exchange thereof, nor to credit the
Distributor therefor.
(b) Except in the case of damage or defect attributable to the Supplier,
the Distributor shall not make any claim against the Supplier for any defective
Product.
SECTION 3.07. COMMON CARRIERS AGENTS OF DISTRIBUTOR. Whenever the Supplier
shall deliver or cause to be delivered to a common carrier any goods ordered by
the Distributor, whether the particular carrier shall have been designated in
the shipping or routing instructions of the Distributor or not, the Supplier
shall not be responsible for any delays or damages in shipment and the common
carrier, to which the Supplier shall deliver goods shipped to the Distributor,
is declared to be the agent of the Distributor.
SECTION 3.08. LIABILITY INSURANCE. Supplier shall cause Distributor to
become an additional insured on a certain product liability insurance policy
specifically covering the Products.
ARTICLE 4. TERMINATION
SECTION 4.01. RIGHT OF SUPPLIER TO CANCEL. In the case of a disagreement of
any nature shall arise between the officers or managers of Distributor's
corporation, whereby the Supplier deems its interests may be imperiled, or the
insolvency of the Distributor, or in case an application is made to have the
Distributor declared bankrupt, or in case a receiver or trustee is appointed for
the Distributor, then the Supplier may at its option cancel this Agreement with
60 days notice to the Distributor.
SECTION 4.02. APPLICABILITY OF TERMS AFTER TERMINATION. In the event of
termination, this Agreement shall remain applicable to any orders for Products,
which the Distributor has previously placed and to any other orders, which may
be executed within ninety (90) days subsequent to the effective date of
termination.
ARTICLE 5. CONFIDENTIALITY AND NON-CIRCUMVENTION
SECTION 5.01. DEFINITION OF TAG'S CONFIDENTIAL INFORMATION. All written
material provided by TAG to ASTI shall be considered to be "TAG's Confidential
Information" unless otherwise expressly indicated in writing by TAG. Further,
TAG's Confidential Information, whether provided to ASTI in writing or orally,
includes, but is not limited to, trade secrets, proprietary information of TAG
and information regarding TAG's products, business, marketing plans, sales
strategies, research and development activities, financial affairs, data and
information systems, vendors, customers and employees, or any other information
which: (a) TAG is required to keep confidential as the result of confidentiality
agreements between TAG and third parties; or (b) is treated by TAG as
confidential. All of TAG's Confidential Information is a protectable interest of
TAG. For Confidential Information provided orally, the discloser shall have the
right or, if requested by the recipient, the obligation to confirm in writing
the fact and general nature of each disclosure within a reasonable time after
such disclosure is made. TAG's Confidential Information shall not include
information: (a) which ASTI can demonstrate by documentary evidence was already
known to it prior to the date it was received from TAG; or (b) which, at the
time of disclosure or later is published or becomes otherwise available to the
general public as part of the public domain through no act or failure to act on
the part of ASTI and without breach of this Agreement; or (c) which ASTI can
demonstrate by documentary evidence came into its possession from third parties
who have a BONA FIDE right to make such information available without
restriction.
SECTION 5.02. USE AND DISCLOSURE RESTRICTIONS OF TAG'S CONFIDENTIAL
INFORMATION. Over the course of the business relationship between ASTI and TAG,
ASTI will be exposed to and/or in a position to generate TAG's Confidential
Information. The nature of TAG's business is highly competitive and disclosure
of any of TAG's Confidential Information anywhere in the world would result in
severe damage to TAG. ASTI shall treat as confidential and without the prior
written consent of TAG shall not, at any time, directly or indirectly: (a) copy,
transmit, quote, summarize, reproduce or make any commercial or other use
whatsoever of TAG's Confidential Information; or (b) disclose, publish, or make
TAG's Confidential Information available, directly or indirectly, under any
circumstances or by any means, to any third party, until such time as the
information ceases being TAG's Confidential Information through no act or
failure to act on the part of ASTI and without breach of this Agreement.
5.03. SAFEGUARDING OF TAG'S CONFIDENTIAL INFORMATION.
(a) ASTI shall exercise a reasonable degree of care safeguarding TAG's
Confidential Information and shall strictly limit its disclosure of TAG's
Confidential Information to only its employees who have a need to know such
information ("Employees"). ASTI shall not disclose or make available any of
TAG's Confidential Information to a supplier other than TAG or any subcontractor
retained by ASTI without first obtaining: (1) written authorization from TAG;
and (2) written agreement from the supplier or subcontractor to sign a statement
that such employee shall abide by the provisions of this Confidentiality
Agreement.
(b) ASTI shall: (1) inform all of his Employees coming in contact with
TAG's Confidential Information of the existence and terms of this
Confidentiality Agreement; (2) instruct all such persons that TAG's Confidential
Information is the property of TAG and must be carefully guarded and held in
strict confidence; and (3) require each Employee receiving TAG's Confidential
Information to abide by the terms of this Confidentiality Agreement.
(c) ASTI shall take all necessary precautions to exclude unauthorized
personnel or visitors from areas where TAG's Confidential Information is or may
be available or can be observed.
5.04. INDEMNIFICATION/COMPENSATION. ASTI agrees to fully indemnify and
compensate TAG for any and all claims, liability, damages (including special and
consequential damages), losses, costs and expenses, including actual attorneys'
fees and court costs, of any kind which TAG may suffer or incur as a result of
any breach or threatened breach of this Confidentiality Agreement by ASTI.
5.05. RETURN OF CONFIDENTIAL INFORMATION. Upon request by TAG, ASTI shall
promptly return all Confidential Information of the other, in whatever form,
that may be in, including all originals, copies, translations and reproductions
thereof.
5.06. NON-CIRCUMVENTION. ASTI agrees that it will not, either during the
time that products, services or contractual relationships exist between ASTI and
TAG on the one hand, and TAG's contacts, customers, employees, agents,
independent contractors or distributors on the other hand, and for a five year
period thereafter, either directly or indirectly for itself, circumvent TAG by
going directly to TAG's contacts, customers, employees, agents, independent
contractors or distributors with the Product.
ARTICLE 6. INTERPRETATION AND ENFORCEMENT
SECTION 6.01. NOTICES. Any notice, request, demand, or other communication
required or permitted hereunder shall be deemed to be properly given when
deposited in the United States mail, postage prepaid, or when deposited with a
public telegraph Supplier for transmittal, charges prepaid, addressed:
(a) In the case of the Supplier, to the address listed in SECTION 1.01,
above, or to such other person or address as the Supplier may from time to time
furnish to the Distributor.
(b) In the case of the Distributor, to, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ or to such other person or address as the Distributor may from time to
time furnish to the Supplier.
SECTION 6.02. DISTRIBUTOR NOT AGENT OR LEGAL REPRESENTATIVE. This Agreement
does not constitute the Distributor the agent or legal representative of the
Supplier for any purpose whatsoever. The Distributor is not granted any right or
authority to assume or to create any obligation or responsibility, express or
implied, in behalf of or in the name of the Supplier or to bind the Supplier in
any manner.
SECTION 6.03. INTEGRATION; MERGER. This instrument contains all of the
agreements, understandings, representations, conditions, warranties, and
covenants made between the parties hereto. All prior agreements, understandings,
conditions, and terms not contained in this Agreement are hereby superceded.
Unless set forth herein, neither party shall be liable for any representations
made, and all modifications and amendments hereto must be in writing.
SECTION 6.04. ASSIGNMENT. This Agreement constitutes a personal contract
and the Distributor shall not transfer or assign the Agreement or any part
thereof without the prior written consent of the Supplier.
SECTION 6.05. NO IMPLIED WAIVERS. The failure of either party at any time
to require performance by the other party of any provision hereof shall not
affect in any way the full right to require such performance at any time
thereafter. Nor shall the waiver by either party of a breach of any provision
hereof be taken or held to be a waiver of the provision itself.
SECTION 6.06. CONTROLLING LAW. The validity, interpretation, and
performance of this Agreement shall be controlled by and construed under the
laws of the State of California, the state in which this Agreement is being
executed. It is understood, however, that this is a general form of agreement,
designed for use in the United States wherever the Supplier may desire to sell
its Products and that any provision herein which in any way contravenes the laws
of any state or jurisdiction shall be deemed not to be a part of this Agreement
therein.
SECTION 6.07. ATTORNEYS' FEES. In the event of any dispute, litigation, or
arbitration between the parties, the prevailing party shall be entitled to
recover reasonable attorneys' fees.
The Amber Group, LLC, Supplier
Dated: _____________________ _______________________________________
By ▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
American Soil Technologies, Inc., Distributor
Dated: _____________________ _______________________________________
By ▇▇▇▇ ▇. ▇▇▇▇▇, President/CEO
SCHEDULE A
Products and Prices
GRAS Affirmed Polymers for Flume Water known as:
1. FW -120, FW -121, FW -122, FW -123
2. FW 201
Price of FW-120 through FW-123 to be $1.195 per Lb. FOB Cytec warehouse,
Phoenix, Arizona
Price of FW-201 to be $1.495 per lb. FOB Cytec warehouse, Phoenix, Arizona
SCHEDULE B
Distributor's Accounts
ACCOUNTS
1. ▇▇▇▇▇▇▇▇▇ Farms
2. Grimmway Farms
