Exhibit 10.29
DEALER AGREEMENT
Midwest Industrial Supply, Inc, having its main office in Canton, Ohio
(hereinafter called "MIS."), hereby appoints and authorizes: American Soil
Technologies, Inc. a Nevada corporation, with its principal place of business
located at 00000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 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 MIS 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 will be those areas where MIS does not have
an exclusive Dealer or Distributor. Dealer acknowledges that it is a
non-exclusive dealer of the Products and an exclusive dealer as to the accounts
established by the Dealer and made a part of SCHEDULE II.
3. SHIPPING
MIS shall ship the Products directly to Dealer's customers or to Dealer,
FOB MIS's warehouse
4. DIRECT PURCHASES.
All purchases and return of Products from MIS by Dealer shall be made
pursuant to a written purchase order from Dealer and shall be governed by MIS.'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 MIS.'s account manager, and post-sales follow up with MIS.'s account
manager.
MIS shall be the technical advisor to the Dealer and installation
directions received from MIS 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 MIS 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; (i) either party is in default of
any material term of this Agreement or (ii) either party gives written notice,
at least ninety (90) days prior to the expiration of the original or any renewal
three (3) year period, that this Agreement will not be automatically renewed. If
no such notice has been given and 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 within such time
frame, a reasonable amount of time specified this Agreement may be immediately
terminated by the non-defaulting party.
(b) MIS 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 11(a) above without renewal, MIS elects to appoint a new dealer for an
exclusive customer of Dealer, MIS 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, MIS shall renew Dealer as the
exclusive dealer for that customer.
(c) The Parties acknowledge that upon the expiration of this Agreement, MIS
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 MIS to
continue to supply Products, or any of them, to Dealer. In the event of
expiration or termination of this Agreement MIS 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:
(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
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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.
A cancellation pursuant to paragraphs 6 (1) through 6 (13) above shall take
effect commencing with the thirtieth day after written notice is given to the
party whose rights are to be canceled.
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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 MIS.
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 MIS.:
Midwest Industrial Supply, Inc.
X.X. Xxx 0000
Xxxxxx, Xxxx 00000
Attn: President
Telephone No.: (000) 000 0000
Telecopier No.: (000) 000 0000
AND
Xxxxx Xxxxxxx
Western Regional Manager
Telephone No. (000) 000 0000
Telecopier No.(000) 000 0000
If to Dealer:
American Soil Technologies, Inc.
0000 Xxxxxxxx Xxxxxx,
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone No.: (000) 000 0000
Telecopier No.: (000) 000 0000
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 MIS.'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.
Midwest Industrial Supply, Inc. American Soil Technologies, Inc.
By By:
---------------------------- -----------------------------
Xxxx X. Xxxxx
Its President & CEO
Date Date March 2, 2005
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SCHEDULE I
PRODUCTS
Soil-Sement(R) and Enviro-Kleen(R)
It is also understood that the product may be added 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.
Nalco Chemical
Tons Per Hour
Xxxxxx Resource Management
Vulcan Materials
Xxxxxx Aggregates
Xxxxxxxxx'x Ready Mix
All American Aggregates
Grimmway Farms
Xxxxxxxxx Farms
Cemex Aggregates
United Materials
Xxxxxx Rock
Xxxxx J Sand and Gravel
PW Gillibrand Company, Inc.
Tommie's Water Trucks
Xxxxx Xxxxxx and his company Aquasoil, Inc.
Xxxx Xxxxxx Properties
Union Pacific Railroad
0000 Xxxxx Xx.
Xxxxx, XX. 00000
Burlington Northern and Santa Fe Railway Company
2500 Xxx Xxxx Dr.
Xxxxxxxxx, XX. 00000
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