Marketing Services Agreement
Exhibit
10.6
This
Marketing Services Agreement (the “Agreement”) is entered into and is effective
this 23 day of August 2005 by and between Bio-Matrix Scientific Group, Inc.,
a
Delaware corporation with principal offices at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx
00,
Xxx Xxxxx, Xxxxxxxxxx 00000 (the “Company”), and Cord Blood America, Inc., a
Florida corporation with principal offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxx
000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 (“Marketer”). The term “Parties,” as
used in this Agreement, shall jointly refer to the Company and
Marketer.
WHEREAS:
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A.
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The
Company seeks to retain Marketer to provide certain marketing services
on
a non-exclusive basis and represent the Company and its products
within
the territory described and listed in Section 10.00 of this Agreement
(the
“Territory”) as more particularly set forth in this
Agreement.
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B.
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The
Marketer is willing to provide product marketing services to the
Company
on a non-exclusive basis within the Territory as more particularly
set
forth in this Agreement.
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C.
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The
Company has provided requested access of information of Company’s products
and services such that Marketer warrants and represents that it has
had a
sufficient opportunity to review and evaluate the Company and understand
the Company’s products and
services.
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D.
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The
Marketer acknowledges and agrees that it is in the business of providing
the same or similar services to others who are in the same or a similar
business as the Company and thereby Marketer understands applicable
state
and federal laws in connection with the services rendered to the
Company
under this Agreement.
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E.
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The
Company and Marketer, subject to the terms and conditions of this
Agreement, hereby terminate all obligations that each party has or
may
have under any prior or contemporaneous oral or written understandings
and
each hereby enters into this
Agreement.
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NOW
THEREFORE THE PARTIES AGREE AS FOLLOWS:
1.00 Marketing
Services to the Company. In consideration of the fees earned and
received by Marketer as set forth in Section 2.00 of this Agreement, together
with other good and valuable consideration, the receipt and sufficiency of
which
is hereby acknowledged, Marketer shall provide, at its sole expense, the
following services (the “Marketing Services”) to the Company during the term of
this Agreement:
1.01 Marketing
Services. Marketer shall, on a non-exclusive basis, market
the Company’s services and promote the sale of the Company’s products and
services within the Territory, consistent with accepted industry
practices. The Parties further agree that the Company shall retain
the right, but not the obligation, to employ and direct its own sales and
marketing staff to offer and sell the same or similar products and services
within the Territory except that Marketer shall have an exclusive right, for
a
period not to exceed _six months, to market and sell and the Company’s products
and services to such potential customers within the Territory that
Marketer shall identify by written notice (the “Notice”) to the Company within
fifteen (15) days from the date of notification from Company that they will
be
employing and directing own sales efforts. The Parties agree that the
Notice shall be delivered to the Company, via First Class U.S. Mail, postage
prepaid to the Company’s address shown on the first page of this Agreement.
Exclusivity of contract may be terminated with a 30 day written notice by either
party – fax notice is acceptable.
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1.02 Coordination
of Marketing Efforts. The Marketer agrees that
throughout the term of this Agreement, it shall review with the Company all
current proposed marketing and promotion efforts, sales and marketing
strategies, customer lists (with the names and addresses of each customer,
amount purchased by each customer during each quarterly period, and the specific
amount and identity of products sold to each customer), marketing and sales
trends, and related information that Marketer collects or obtains, from time
to
time, as will allow the Company to reasonably assess and evaluate the efforts
of
Marketer and the efforts of the Company in connection with the sale
of the Company’s products and services. The Marketer shall
provide theCompany, at no cost or expense to the Company, with a written copy
of
all information and documents listed or described in this first sentence of
this
Section 1.03 within ten (10) business days from the date that Marketer receives
a written request from the Company. The Parties agree that the scope
of the obligations imposed on the Marketer under this Section 1.03 shall be
broadly construed to accomplish the purposes of this Agreement. In
the event the Company decides to employ and direct its own sales and marketing
efforts, the Company will provide customer lists to Marketer under the same
timelines and conditions as described in this Section 1.03 for
Marketer.
1.03 Control
of Services by the Company. The Parties agree that the
Company shall, at all times, retain the right to limit or restrict the scope
and
extent of the marketing efforts that may be undertaken by Marketer so as to
ensure that the Company and its products are not cast in an adverse light or
otherwise would result in the Company in incurring injury to its reputation
or
any adverse publicity. The Parties agree that all marketing and
promotional materials and the activities to be employed by Marketer
(collectively, the “Promotional Efforts”) shall be undertaken by Marketer only
upon Marketer’s prior written receipt of the Company’s approval in advance of
all Promotional Efforts described in this Agreement.
1.04
Determination & Selection of Products/Services. The
Parties agree that the Company shall have the sole and exclusive right to select
and determine, in regards to stem cells from fatty tissue the form, nature,
and
extent of all products and services marketed by Marketer.
1.05
Quality. Marketer shall perform all work under this
Agreement in a professional and workmanlike manner and in conformity with the
quality standards mutually established from time to time by the Parties
hereto.
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a.
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2.00
Compensation to Marketer. Invoicing, Payment and
Collection: CBA will invoice and manage all receivables of
Bio-Matrix Services directly with customers procured by CBA. In
turn, CBA will pay Bio-Matrix directly for Services executed in
the
enrollment. Funds collected will be placed in separate account
for mutual
disbursement to Bio-Matrix, Inc. and CBA based on the successful
collections completed each week. Bio-Matrix will invoice and
manage all receivables for the storage of stem cells. In
consideration of the services provided by Marketer as set forth
in Section
1.00 of this Agreement, the Company agrees that it the Marketer
will
retain 40% of the funds collected on the Marketer’s sales revenues (“Sales
Revenues”) generated through the efforts of Marketer within the Territory
during the term of this Agreement provided that, in each instance,
Marketer initiated and completed the sale efforts to any customer
(the
“Customer”) that reasonably resulted in said sales revenues (the “Sales
Commission”). The difference of collected revenues less 40% is to be paid
to the Company within thirty (30) days after the date at which
the
Marketer receives and collects payment due on account of said Sales
Revenues except that, in the event that the Marketer is required
to
deduct, refund, or return any monies previously received from any
customer
on any Sales Revenues (due to claim of defect or other claim made
by any
such Customer) for which a Net Proceed had been previously paid
or due to
Company, the Marketer shall have the right, upon written notice
to Company
(with an explanation and description of the facts and circumstances
relating to the Customer and the claim for refund) to deduct the
amount of
any said refund or return of monies from the amount that may be
due or
payable to Company. In the event that one or more Customers of
Marketer make or assert repeated claims for deductions, refunds,
or return
of monies paid, the Company shall have the right, in its sole discretion
and after reasonable written notice to Marketer, refuse to sell
its
products and services to said
Customer.
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2. Commission.
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a.
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Amount
of Commission. CBA will earn a
commission of 40% of the gross revenue for the collection charges
for
Bio-Matrix Services collected pursuant to each executed enrollment
form
for the Service in the Territory during the term hereof for which
Bio-Matrix determines, in its sole discretion, that CBA was the
procuring
cause.
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b.
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Payment
Procedure. All commissions due under the section
“Amount of Commission” will be paid to CBA from the proceeds collected
from successfully completed collections as outlined in Section
2.0. With
regard to any monies received by either party all taxes, fees or
other
levies that may be levied by any governmental authority shall be
solely
the responsibility of that party. In the event that a
collection is unsuccessful and requires a refund to the client
both
Bio-Matrix and CBA will forego their fees for that collection to
fund the
refund. Commissions will not be earned and due until the client
has
started the stem collection process.
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c.
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Commission
Rate in Accordance with Laws. Notwithstanding any
other provision of this Agreement, Bio-Matrix's obligation to make
payment
is expressly subject to such payment not violating any applicable
law or
public policy of the Territory. Under no circumstances shall
Bio-Matrix have an obligation to pay CBA any amount higher than
the
amount, if any, permitted under such laws, rules, regulations or
public
policies.
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3.00
Marketing Support Efforts. The Company shall have the right
to establish and control the marketing and sales efforts of the Company’s
products and services and Marketer agrees to cooperate with the Company in
all
said efforts.
4.00 Recordkeeping
RE: Net Sales & Inspection Rights. The Parties
hereto further agree that Marketer shall keep and maintain written records
(the
“Records”) related to the calculation and determination of the amount of sales
revenues it generates during the term of this Agreement. All Records
shall be maintained with such detail as the Company deems appropriate so as
to
allow the Company or its authorized representative to confirm the accuracy
of
Marketer’s determination of amounts marketed and sold by Marketer under this
Agreement. All Records shall be maintained for a period of two (2)
calendar years from the calendar year in which said calculations and
determinations were made. At the Company’s request, Marketer shall
permit the Company, or its designated representative, the right to inspect,
examine and photocopy, all Records upon reasonable advance notice and during
the
regular business hours of Marketer. Company shall assume and pay all
costs relating to the photocopying of said Records.
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5.00 Terms and Definitions. For purposes of this Agreement, the Parties agree that the following terms and definitions shall apply:
6.00 Marketer’s
Customer. “Marketer’s Customer” is defined as being any
person or entity for whom sales revenues were initially developed or
initiated by Marketer and for whom Marketer initiated and generated sales
revenues for the Company by the Marketer during the term of this
Agreement.
7.00 Company’s
Customer. “Company’s Customer” is any person or entity for whom sales
revenues were initially developed or initiated by the
Company during the term of this Agreement.
8.00 Documentation
RE: Customer Determination & Matter of Customer
Lists (Most of this is redundant from Section 1.03 The
Parties hereto further agree that each party shall retain full and unrestricted
ownership of all information relating to the customers identified on any list
provided to the other party under this Agreement.
9.00
Term and Termination. The term Agreement commences upon
execution by both Parties and continues for a period of one (1) year thereafter
and the Parties hereto agree that this Agreement shall automatically continue
in
force after the one year period for successive one year renewal terms subject
to
the right of either party to terminate the Agreement upon sixty (60) days
written notice to the other party at the address shown above or at such other
address as either party may later identify in writing to the other party as
the
address for receiving any notice under this Agreement. For purposes
of this Agreement, any notice under this Agreement shall be in writing and
shall
be delivered by Federal Express (or similar express overnight delivery service),
prepaid by the party giving said notice with said notice deemed delivered and
received by the other party three (3) calendar days from the date at which
said
notice is received by Federal Express for delivery to the party to whom it
is
addressed.
10.00
Territory. The territory agreed upon by this Agreement shall be all of
the entire United States of America (including Puerto Rico and the Virgin
Islands) and any other possessions, trust territories, or administrative regions
administered under the exclusive or joint control of the United
States.
11.00
Product Liability Indemnification. Except for claims,
losses, or damages primarily resulting from or arising out of any acts which
result or arise out of Marketer’s active negligence or the negligence of
Marketer’s Customers, the Company agrees to defend, indemnify and hold harmless
Marketer and their affiliates from and against any and all product liability
claims, losses, liabilities, judgments, and all costs and expenses, whether
brought as express or implied warranty, negligence or strict liability actions,
including the cost of defending (which shall include reasonable attorneys’ fees
as reasonably determined by the Company in its sole discretion) any proceedings
resulting in whole or in part from the manufacture, purchase, sale, storage,
transportation, or foreseeable use of the products and services of the Company
up to a maximum of five thousand dollars ($5,000) per
claim.
12.
00 Indemnification for Proprietary Right Infringement. Marketer
specifically agrees to indemnify and hold the Company harmless from and against
any and all claims, actions, demands, damages (whether actual, compensatory,
punitive or statutory), losses, liabilities, judgments, and all costs and
expenses, including reasonable attorneys’ fees, of whatever nature instituted or
brought by or awarded to any person or entity arising in any manner from
Marketer’s infringement or alleged infringement of patent, trademark, copyright,
design, trade dress, trade secret or other proprietary rights of any third
party.
13.00
Insurance. Both Company and Marketer shall obtain and maintain their
own product liability insurance in such amounts as reasonably determined by
the
Company and Marketer, providing protection for the Company and Marketer, with
each naming the other additionally insured in the amounts of coverage specified
below, protecting the Company and Marketer from any claims, demands, causes
of
action, losses or damages, including reasonable attorney’s fees, arising in
whole or in part from any alleged defect in the products or
services of the Company or the manufacture, purchase, sale, storage,
transportation or foreseeable use of the products or services. The
insurance policy for such insurance coverage shall provide that it may not
be
canceled without at least sixty (60) days prior written notice to the
Marketer. Company further agrees to furnish to the
Marketer and reciprocally, Marketer to the Company within sixty (60)
days of the date of this Agreement, or before such other date as may be mutually
agreed upon by the parties, an insurance carrier’s certificate naming the
Marketer as an additional insured and showing that Company obtained or currently
has the requisite insurance coverage, that the policy is in effect, and setting
forth the amount of coverage, number of policy and date of expiration and
reciprocally, Marketer to the Company. The Company further agrees
that such insurance policy shall provide coverage for personal injuries and
property damage arising out of each occurrence in the amount of at least one
million dollars ($1,000,000.00), with a general aggregate amount of two million
dollars ($2,000,000) and an additional umbrella policy with five million dollars
($5,000,000) of coverage and reciprocally, Marketer to the
Company. If Company fails to furnish said certificate within the time
provided by this Section 1300 of this Agreement, The Marketer shall after
written notice to Company, have the right to cancel and terminate this
Agreement, provided that Company is allowed thirty (30) days to cure any breach
of its obligations under this Section 13.00 after receipt of said written notice
and reciprocally, Marketer to the Company.
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13.05 General Indemnification. Both Parties agree to indemnify, defend, and hold harmless each other, their successors, assigns, agents, employees, affiliates and representatives, against any and all claims, actions, causes of action, demands, damages (whether actual, compensatory, punitive or statutory), losses, liabilities, judgments, and all costs and expenses, including reasonable attorneys’ fees, of whatever nature instituted or brought by or awarded to any person or entity as a result of a breach of any term or provision of this agreement on the part of a party against whom indemnification is sought.
14.00
Confidentiality. The Parties each separately acknowledge and
agree that they will develop and be exposed to information that is confidential
and proprietary to the other. Such information includes, without
limitation, the names and product requirements of certain customers, marketing
plans, pricing data, product designs, manufacturing methods and processes,
software, other such intangible information, whether developed by Marketer
or by
the Company with respect to any products discussed by either or both of them
or
acquired and supplied hereunder (collectively, the “Confidential
Information”). All of the Confidential Information shall be
considered “trade secrets” of the originator. The Parties shall
not misappropriate, use, or divulge any of the Confidential Information of
the
other, used or useful in connection with each company’s business. Each party
shall deem the confidential information of the other confidential to the extent
not generally known within the trade, agree to make use of such information
of
the other only in the performance of its respective duties under this Agreement,
to maintain such information in confidence and to disclose the information
only
to persons with a need to know who in turn will be required to sign a
confidentiality agreement with respect to the confidentiality of the other
party.
15.00
Licensing and Use of Names and Logos. The Parties hereto
further agree that each holds and shall continue to hold and own all
intellectual property rights to the marks and logos held or used by them prior
to this Agreement and each hereby fully gives all consents to the
other for the use of said marks (the “Marks”) pursuant to this Agreement, under
the following conditions:
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(i)
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Marketer
shall use the Marks only as expressly provided in this
Agreement.
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(ii)
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Marketer
agrees that the Company controls the nature and quality (“Standards”) of
all the products and services on which the Marks are affixed by the
Company, and Marketer shall not use the Marks in any manner, including
on
any products to which the Company objects as not meeting the standards
established by the Parties hereto by subsequent written
agreement.
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(iii)
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The
Company has reviewed and approved the products and services (as they
currently exist and as they exist, from time to time, in the future)
and
shall not object to the use of the Marks by Marketer as long as the
current standards of the Company are maintained and this Agreement
is in
full force and effect.
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(iv)
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The
Company shall have the right to, from time to time, inspect the products
and services to ensure that the standards established by the Parties
hereto are maintained and promptly notify Marketer in writing if
the
Company determines that said standards are not being
met. Marketer shall thereafter discontinue its use of the Marks
until it demonstrates to the Company’s satisfaction that it is in
compliance with said standards. The parties will thereafter resolve
it for
their mutual benefit.
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(v)
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The
license granted herein will terminate contemporaneously with the
termination of this Agreement. Marketer shall thereafter
forever discontinue its use of the
Marks.
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(vi)
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Marketer
shall not intentionally promote or advertise its relationship with
the
Company or suggest that the Company endorses Marketer’s products or
services without the Company’s written
permission.
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16.00 Assignment. Marketer
shall not assign, delegate or subcontract any of its rights or obligations
under
this Agreement except with the prior written consent of the
Company. Any purported assignment, delegation, or subcontracting
without such consent shall be null and void and a breach of this
Agreement. In the event of any assignment, delegation, or
subcontracting with such consent, Marketer shall remain liable for performance
of all of its obligations under this Agreement.
17.00
Notices. Unless otherwise provided by this Agreement, all
notices permitted or required hereunder shall be in writing and shall be deemed
delivered and received when personally delivered or two (2) business days after
being sent by certified United States mail, with return receipt requested,
or
one (1) day after being sent by Federal Express or equivalent overnight delivery
service, to the parties at the following addresses or to such other address
as
the parties may from time to time designate in writing to the address shown
on
the first page of this Agreement (of the party to whom notice is to be
given).
18.00 Further
Assurance. Each of the parties shall hereafter execute all
documents and do all acts reasonably necessary to effect the provisions of
this
Agreement.
19.00
Successors. The provisions of this Agreement shall be deemed
to obligate, extend to and inure to the benefit of the successors, assigns,
transferees, grantees, and indemnities of each of the parties to this
Agreement.
20.00 Independent
Counsel. Each of the parties to this Agreement acknowledges
and agrees that it has been represented by independent counsel of its own choice
throughout all negotiations which preceded the execution of this Agreement
and
the transactions referred to in this Agreement, and each has executed this
Agreement with the consent and upon the advice of said independent
counsel. Each party represents that he or it fully understands the
provisions of this Agreement, has consulted with counsel concerning its terms
and executes this Agreement of his or its own free choice without reference
to
any representations, promises or expectations not set forth herein.
21.00
Integration. This Agreement, after full execution,
acknowledgment and delivery, memorializes and constitutes the entire agreement
and understanding between the parties and supersedes and replaces all prior
negotiations and agreements of the parties, whether written or
unwritten. Each of the parties to this Agreement acknowledges that no
other party, nor any agent or attorney of any other party has made any promises,
representations, or warranty whatsoever, express or implied, which is not
expressly contained in this Agreement; and each party further acknowledges
that
he or it has not executed this Agreement in reliance upon any belief as to
any
fact not expressly recited hereinabove.
22.00 Attorneys
Fees. In the event of a dispute between the parties
concerning the enforcement or interpretation of this Agreement, the prevailing
party in such dispute, whether by legal proceedings or otherwise, shall be
reimbursed immediately for the reasonably incurred attorneys' fees and other
costs and expenses by the other parties to the dispute.
23.00
Interpretation. Wherever the context so requires: the
singular number shall include the plural; the plural shall include the singular;
and the masculine gender shall include the feminine and neuter
genders.
24.00 Captions. The
captions by which the sections and subsections of this Agreement are identified
are for convenience only, and shall have no effect whatsoever upon its
interpretation.
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25.00 Severance. If any provision of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, such provision shall be deemed to be severed and deleted; and neither such provision, nor its severance and deletion, shall affect the validity of the remaining provisions.
26.00 Counterparts. This
Agreement may be executed in any number of counterparts.
27.00
Expenses Associated With This Agreement. Each of the parties
hereto agrees to bear its own costs, attorneys fees and related expenses
associated with this Agreement.
28.00
Arbitration. Any dispute or claim arising to or in any way
related to this Agreement shall be settled by arbitration in San Diego,
California applying the laws of the State of California as if this Agreement
were fully executed and performed solely within the State of
California. All arbitration shall be conducted in accordance with the
rules and regulations of the American Arbitration Association
("AAA"). AAA shall designate an arbitrator from an approved list of
arbitrators following both parties' review and deletion of those arbitrators
on
the approved list having a conflict of interest with either
party. Each party shall pay its own expenses associated with such
arbitration (except as set forth in Section 22.00 Above). A demand
for arbitration shall be made within a reasonable time after the claim, dispute
or other matter has arisen and in no event shall such demand be made after
the
date when institution of legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred by the applicable statutes
of limitations. The decision of the arbitrators shall be rendered
within 60 days of submission of any claim or dispute, shall be in writing and
mailed to all the parties included in the arbitration. The decision
of the arbitrator shall be binding upon the parties and judgment in accordance
with that decision may be entered in any court having jurisdiction
thereof.
IN
WITNESS WHEREOF, the parties have executed this Agreement at the date
first written above.
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FOR
COMPANY:
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/s/
Xxxxx X. Xxxx
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By:
____________________________
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Xxxxx
X. Xxxx, President & Chief Executive
Officer
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FOR
MARKETER:
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/s/
Xxxxxxx Xxxxxxxxx
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By:__________________________
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Xxxxxxx
Xxxxxxxxx, Chief Executive
Officer
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[Signature
Page to Marketing Services Agreement.]
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