Exhibit 10.26
MARKETING AND REVENUE SHARING AGREEMENT
THIS AGREEMENT
made this 2nd day of December, 2004 by and between,( West
Coast Fairways), a company to be formed by
Bill Cope and Donald Sternberg, with
its principal place of business located at
5525 Oakdale Ave, Suite 170, Woodland
Hills, California 91364-2651, hereinafter
referred to as "the Marketer", and
American Soil Technologies, Inc., having
its main office at 1224 Montague
Street, Pacoima, CA 91331, hereinafter
referred to as " ASTI" hereinafter
collectively referred to as the
Parties.
WHEREAS, Marketer services, sells and
markets products used in the Turf and
Agriculture Industries;
WHEREAS, ASTI is in the business of
manufacturing, blending and distributing
products and machinery related to those
sold, marketed and serviced by Marketer;
WHEREAS, ASTI desires to grant and Marketer
desires to acquire, certain rights
to service, sell and market products and
machinery used in the Turf and
Agriculture industry manufactured, blended
and distributed by the ASTI;
NOW, THEREFORE, in consideration as set
forth herein as well as the mutual
promises contained herein, the Parties
hereto agree as follows:
1. CONSIDERATION
The
consideration for the acquisition of "distributor rights" shall
be
$50,000.00. The Consideration shall be
paid, in full, at the time of execution
of this Agreement or upon the agreement of
the Parties shall be paid from
revenue subsequently generated from
operations as stated in the following
provision of this Agreement entitled
"Revenue Sharing"
2. REVENUE SHARING
The parties to this Agreement will share
the revenue, from operations, as
follows:
a. Equal
division of net revenues. Net revenues shall be those revenues
remaining after the deductions for costs of
product and operations. Costs of
operations shall include that for the M-216
operator, including commission,
lodging and per diem if required.
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b. If Marketer
does not pay the distributor fee at the time of the
execution of this Agreement, the parties
agree to a revenue sharing of 75/25, 75
going to ASTI. From the 75, 25 shall be
applied to satisfying the distributor
fee until such time as the $50,000.00 is
paid in full after which net revenue
sharing will revert to 50/50.
3. DISTRIBUTION RIGHTS
Subject to the
terms and conditions set forth in this Agreement, ASTI
hereby grants to Marketer the right to
market and distribute, on a non-exclusive
basis, within the Territory as set forth in
Schedule "A" attached hereto (the
"Territory"), certain products manufactured
or formulated by ASTI and listed in
Schedule "B" attached hereto (the
"Products"). ASTI reserves the right to at any
time change, modify or discontinue any of
the Products and to amend Schedule "B"
accordingly. Additionally, ASTI may, but is
not obligated to, add additional
Products to Schedule "B" which may then be
distributed as provided herein.
4. EXCLUSIVITY
The Marketer
shall be the exclusive distributor to those customers that
are, from time to time, added to and set
out in Schedule C and shall continue as
an exclusive customer so long as the
Marketer sells Products to said customer.
The Marketer may have exclusive customers
outside the Territory. While this
agreement remains in effect, ASTI will not,
directly or indirectly, sell the
Products to Marketer's customers and will
not permit anyone, either directly or
indirectly, to sell Products to Marketer's
customers without Marketer's express
permission.
5. EQUIPMENT FOR OPERATIONS
a. In
consideration for the payment of the $50,000.00 distributor fee,
ASTI
will provide Marketer with a M-216 and
trailer;
b. In addition,
because a tractor, specially equipped, is necessary to
operate the M-216, properly, ASTI will make
available, by separate lease or
purchase agreement, such fully equipped
tractor along with the M-216 and
trailer. The title and the responsibility
for the cost of acquisition and
maintenance of such tractor shall be in
addition to the distributor fee and
shall be paid from the 25% additional
revenue sharing as described hereinabove
if said amount is available and, if not
shall be the economic responsibility of
the Marketer.
c. At all times
the title to the M-216 and trailer shall remain with ASTI.
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6. TERM
This Agreement
shall commence as of the date set forth above (the
"Effective Date") and continue for a period
of three (3) years, followed by two
(3) year option periods whereupon the
Agreement shall expire unless both parties
agree to an extension of the term hereof,
which extension may be subject to
additional terms and conditions. This
Agreement may be terminated: (1) at any
time by the mutual consent of the parties
in writing, effective as provided
therein; (2) with cause by either party at
any time by giving the other party
thirty (30) days notice, in writing, by
regular mail facsimile transmission, of
such termination.
7. TRADEMARKS AND TRADENAMES
During the term
of this Agreement, ASTI grants to Marketer a limited
license to reproduce trademarks and trade
names of Marketer as necessary for the
sole purpose of allowing Marketer to fully
promote and market the Products and
Services pursuant to the terms of this
Agreement. Any and all trademarks and
trade names associated with the Products or
Services are and shall remain the
exclusive property of ASTI. If, during the
term of this Agreement, a trademark
registration is to take place in the
Territory, all rights shall belong to ASTI,
who shall also bear the costs for such
registration. Whenever Marketer employs
any trademark of ASTI to be used in any
form of printed material, Marketer shall
place an asterisk immediately after and
slightly above the first use of the
trademark referring to a footnote reading
"Trademark of ASTI." Marketer shall
deliver to ASTI all Marketer's promotion
and advertising material for ASTI's
review, prior to such promotion or
advertising utilizing any of ASTI's
trademarks or trade names. Marketer agrees
not to use any promotion or
advertising that ASTI finds unsuitable in
its reasonable discretion.
8. MARKETER'S OBLIGATION
8.1 Marketing Efforts
Marketer agrees
to use its best endeavors to promote the sale of the
Products and the Services in the Territory
on the maximum possible scale by all
usual means and to act loyally to ASTI in
all matters involved in this
Agreement. In addition, Marketer agrees
to:
(a) provide ASTI
with all sales projections on any annual basis commencing
on the first
aniversity of this Agreement and each year thereafter during
the term of this
Agreement,
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(b) advise ASTI
of any inquiries which it or any of its associated
company(ies),
may receive from any prospective customers for the supply of
Products outside
the Territory;
(c) inform
ASTI immediately of any changes in Marketer's organization or
method of doing
business which might affect the performance of Marketer's
duties
hereunder; and
(d) keep ASTI
fully informed at all times of the market conditions,
competitive
products and prices, and other facts material to the marketing
of the Products
and Service in the Territory.
8.2 Non-Competition
During the term
of this Agreement, Marketer shall not, directly or
indirectly, distribute in the Territory,
ASTI's products purchased from any
person other than ASTI. In addition,
Marketer shall not, directly or indirectly,
manufacture or distribute in the Territory,
products or Services which compete
with the Products or Services under this
Agreement, unless otherwise agreed by
the parties hereto, nor shall Marketer seek
customers for the Products and
Services outside the Territory nor
establish or maintain any branch or
distribution depot outside the Territory
for the sale of the Products or
Services without prior consent from
ASTI
.
9. WARRANTY AND LIMITATION OF LIABILITY
9.1 Warranty Disclaimer
ASTI 's sole
warranty with respect to Products sold is set forth in ASTI 's
Standard Conditions of Sale. ASTI MAKES NO
OTHER WARRANTIES TO MARKETER OR ANY
CUSTOMER OR OTHER THIRD PARTY, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
9.2 Limitation of Liability
UNDER NO
CIRCUMSTANCES SHALL ASTI BE LIABLE
