Exhibit 99.1
STEM CELL MICROBANK(TM) SERVICE AGREEMENT
Nouvisage Corp, dba Solana Medspas, a California Corporation,
hereinafter referred to as "Solana", and LifeStem, Inc., a Nevada Corporation,
hereinafter referred to as "LifeStem", hereby agree that Solana will exclusively
carry LifeStem's Stem Cell MicroBank(TM) collection services at Solana
locations, hereinafter the "Agreement". Hereinafter both Solana and LifeStem may
be referred to as the "Parties" and individually as a "Party".
1. DEFINITIONS.
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a. "Services" shall mean the Stem Cell Microbank(TM) Service, which
entails ("redacted"), for autologous use. LifeStem shall be responsible
for all aspects in the collection, processing and storage of stem cells
related to the Services.
b. "Territory" shall mean the following region: United States of America.
c. "Affiliates" shall mean all of the medspas that are affiliated with
Solana. It is understood that Solana is in the business of providing
assistance in the development of medspas and that it is paid for such
services. Any medspa that receives such services from Solana shall be
known under this Agreement as an Affiliate.
d. "Initial Roll-Out Date" shall mean no later than March 31, 2006.
2. AGREEMENT BETWEEN LIFESTEM AND SOLANA.
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a. SERVICES. LifeStem hereby contracts with Solana to endorse the Services
provided by LifeStem such that if Affiliates of Solana collect and/or
store stem cells, the Affiliates will be required to do so using
LifeStem's Services and LifeStem's Services only. A contract will be
executed directly by the Affiliate with LifeStem concurrent with the
initial package of documents provided by Solana to each prospective
Affiliate. It is understood and agreed that no less than six different
Affiliate locations will be under contract with LifeStem for the Term
of this Agreement. It is also understood and agreed that if at any time
one of the original six Affiliates is no longer offering LifeStem's
Services, Solana may select a new Affiliate to offer LifeStem's
Services. Pursuant to this Agreement, Solana will prohibit its
Affiliates from offering any Services that would compete with
LifeStem's Services. Solana will, through its Affiliates, market and
pursue sales of LifeStem's Services. Solana understands that this
retention is exclusive as it relates to the medspa industry and that
LifeStem may retain other sales representatives in the Territory and
may use its own direct sales personnel to seek potential customers in
the Territory. It is understood that LifeStem will, where Solana
Affiliates are proximally located, direct any and all of its Services
to be performed at Solana Affiliates' facilities, hereinafter "LifeStem
Derived Clients".
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b. TERM. The retention of Solana hereunder will commence as of the
Effective Date, and will continue for a period of three years and shall
renew yearly thereafter unless terminated as set forth herein. It is
understood and agreed that this Agreement may be terminated by LifeStem
in the event that the Affiliates have sold less than ("redacted") total
Services at the end of six (6) months from the Initial Roll-Out Date
and/ or have sold less than ("redacted") total Services at the end of
one calendar year from the Initial Roll-Out Date.
c. INDEPENDENT CONTRACTOR STATUS. Solana is being retained by LifeStem as
an independent contractor and, except as expressly provided or
authorized in this Agreement, shall have no authority to act for on
behalf of or represent LifeStem. This Agreement does not create a
partnership or joint venture. Further, as such an independent
contractor, Solana does not have any authority to hold or manage
LifeStem funds or bank accounts; bind LifeStem to any contract or
employment of a third-party; initiate any lawsuits on behalf of
LifeStem; sign any contract or make purchases on behalf of LifeStem
and/or incur any liability on behalf of LifeStem.
3. DUTIES OF SOLANA. Solana hereby undertakes the following:
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a. PROMOTION: Solana will use its best endeavors to market the Services of
LifeStem to and through its Affiliates within the Territory only and to
regularly inform LifeStem of its activities in this respect and of the
progress and development of the market for the Services within the
Territory. Solana and/or its Affiliates will deal only with customers
within the Territory and will not solicit orders for the Services from
customers outside the Territory unless prior written approval is
provided by LifeStem.
b. CUSTOMER SERVICE: Solana, through its Affiliates, currently has a
database of customers and intends to market the Services of LifeStem to
this database. Information on individuals that become customers of
LifeStem Services that were originally Affiliate's clients will be
maintained by the Affiliates with the understanding that LifeStem will
necessarily create new information on the clients once those clients
subscribe to the Services, and thereafter the information collected
thereby will be the confidential property of LifeStem. The information
collected by Solana and/or its Affiliates regarding the customers of
LifeStem Services as described hereinabove is hereby deemed the
confidential property of Solana and/or its Affiliates and LifeStem and
is not to be disclosed or sold to a third party. Further, customers of
the LifeStem Services that have not previously subscribed to services
or products of Solana and/or its Affiliates shall remain the property
of LifeStem and LifeStem shall, during the term herein, provide access
to such customers for the purpose of permitting Solana and/or its
Affiliates to solicit such customers for Solana products and services
only.
c. NON-REPRESENTATION OF COMPETITORS: Solana and its Affiliates will not
represent, market, sell, and/ or collect or otherwise be an agent for
any other Services other than those of LifeStem during the term of this
Agreement or for three (3) years thereafter.
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d. NON-SOLICITATION: Solana and/or its Affiliates will not solicit,
directly or indirectly, any other representative or employee of
LifeStem to leave LifeStem or accept other employment of any kind with
Solana for a period of one year after termination of representative's
contract or employment with LifeStem.
e. INVOICING, PAYMENT AND COLLECTION:
i. It is initially agreed that Solana's Affiliates will collect
payment for LifeStem Services directly from Affiliate Derived
Clients. In turn, Solana Affiliates will forward Affiliate
Derived Client payments to LifeStem or pay LifeStem directly
for Services if payment was made to the Affiliate and do so
prior to an Affiliate Derived Client receiving said Services
at the Affiliate location. Where payment for Services is made
through the use of a credit card, it may become the ordinary
course of business for LifeStem to pay for a separate credit
card machine to be housed within each Affiliate location.
ii. LifeStem will invoice and manage all receivables for the
storage of stem cells.
4. COMMISSION; INITIAL LOCATION SET-UP FEE.
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a. PRICING; AMOUNT OF COMMISSION. LifeStem will be offering its Services
for ("redacted"). LifeStem will pay to the Affiliates a Commission
after the receipt of all funds collected pursuant to Section 3(e),
above. Affiliates will earn a commission of ("redacted") of the gross
revenue for LifeStem Services collected. This shall be for clients who
are "Affiliate Derived Clients". Affiliates will be paid a commission
of ("redacted") of the gross revenue for LifeStem Services collected
for LifeStem Derived Clients. LifeStem shall determine in its sole
discretion, if a client is a LifeStem Derived Client or an Affiliate
Derived Client. Nothing shall prohibit Affiliates from upselling its
own products and services to LifeStem Derived Clients. LifeStem shall
have the authority to change the price for its Services at its own
discretion. LifeStem shall have the right to offer incentives to
employees of individual Affiliates where it deems appropriate. All
commission and incentive payments will be made by LifeStem directly to
the Affiliate no later than 10 days from the end of the month in which
full payment for Services was received.
b. PAYMENT PROCEDURE. All commissions due under the section "Pricing;
Amount of Commission" will be paid to Affiliates from the proceeds
collected from successfully completed collections. 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 LifeStem and the
Affiliates 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.
c. COMMISSION RATE IN ACCORDANCE WITH LAWS. Notwithstanding any other
provision of this Agreement, LifeStem'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 LifeStem
have an obligation to pay the Affiliates any amount higher than the
amount, if any, permitted under such laws, rules, regulations or public
policies.
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d. LOCATION SET-UP FEE. For each Affiliate that Solana is able to
establish as carrying LifeStem's Services, Solana will be paid a fee.
Such fee will be ("redacted") per Affiliate location. Such fee will be
paid from gross sales from Affiliate Derived Clients at a rate of
("redacted") percent of gross revenues until such time as ("redacted")
is reached. This amount can be, at the discretion of Solana, paid in
stock or cash. If in stock, then the ten (10) day average closing price
prior to the end of each month in which a payment is to be made will be
used to determine how many shares to issue in lieu of cash payment.
Further, a stock incentive will be paid amounting to 250,000 shares of
CalbaTech, with the first 125,000 being paid after three Affiliate
locations have begun carrying LifeStem Services and the remainder after
three more Affiliate locations have begun carrying LifeStem Services.
5. DUTIES OF LIFESTEM. LIFESTEM HEREBY UNDERTAKES THE FOLLOWING:
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a. NON-SOLICITATION: LifeStem will not solicit, directly or indirectly,
any representative or employee of Solana and/or its Affiliates to leave
Solana and/or its Affiliates or accept other employment of any kind.
b. EDUCATION AND MATERIALS: LifeStem will provide Solana with education
and/or materials deemed appropriate by both parties to aid Solana
and/or its Affiliates in the marketing of LifeStem Services. Material
changes in LifeStem's Services and the scientific advances behind such
Services shall be made available to Solana and/or its Affiliates
immediately.
6. TERMS AND CONDITIONS OF REPRESENTATION.
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a. REPRESENTATIONS AND WARRANTIES. Solana and/or its Affiliates will not
make any representation or warranty with regard to the Services other
than such representations or warranties as may from time to time be
included in the advertising and promotional literature, specifications
and other material to be supplied to Solana and/or its Affiliates
pursuant to this Agreement.
b. LIFESTEM SOLE AND ABSOLUTE DISCRETION. LifeStem will have the absolute
right in its sole discretion to accept or refuse to accept any order
for the Services transmitted to it by Solana and/or its Affiliates. The
contracts, for all orders obtained by Solana and/or its Affiliates and
accepted by LifeStem for the Services, will be made between the
Affiliates and each customer directly, unless LifeStem otherwise agrees
in writing.
c. STATUS. The Affiliates shall be solely responsible for all tax returns
and payments required to be filed with or made to any federal, state or
local tax authority with respect to the Affiliate's performance of
services and receipt of fees under this Agreement. Because the Parties
are an independent contractor, the Parties shall not withhold or make
payments for social security; make unemployment insurance or disability
insurance contributions; or obtain worker's compensation insurance on
each other's behalf. The Parties agree to accept exclusive liability
for complying with all applicable state and federal laws governing
self-employed individuals, including obligations such as payment of
taxes, social security, disability and other contributions based on
fees paid to the Parties, his or her agents or employees under this
Agreement.
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d. INSURANCE. It is understood that each individual Affiliate location
will carry its own malpractice and/or General Liability insurance for
their general business activities. LifeStem will coordinate with the
insurance agent for each Affiliate and will work to ensure that there
is not any increase in insurance premiums for the Affiliate. LifeStem
will determine, in its own discretion, if any increase in premium
causes the Service at the particular Affiliate location to be
cost-prohibitive and will not force any Affiliate to carry the LifeStem
Service without offsetting the increase in premium through payment of
the increase.
7. GOOD JUDGMENT.
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a. The Parties are expected to use good judgment in performing services.
This includes but is not limited to (a) not engaging in criminal or
inappropriate acts during performance hereunder; (b) not using email,
computer systems or resources for harassing, criminal, defaming,
political, personal, obscene, illegal or sexual activities during
performance hereunder; and (c) not violating the policy below during
performance hereunder.
b. The Parties are expected to avoid any behavior or conduct that could be
interpreted as harassment of a co-worker or persons who do business
with the Parties. Harassment includes unwelcome conduct, whether
verbal, physical or visual that denigrates or shows hostility or
aversion toward an individual because of his or her sex, color,
religion, national origin, age, disability or sexual orientation.
8. CONFIDENTIALITY.
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a. While retained by LifeStem, confidential information and trade secrets
about LifeStem's or third parties' businesses, products and services
("Confidential Information") shall be disclosed to Solana and/or its
Affiliates. Confidential Information includes, without limitation,
LifeStem's or third parties' business plans, partnership/affiliation
arrangements, clients, financing arrangements, technical data,
marketing plans, software, source codes, programming techniques,
ranking techniques, sources of services and goods, costs, profits or
her, methods of obtaining new clients, competitive analyzes, personnel
information, and financial data. Confidential Information does not
include (i) information that the Parties can show is or becomes
generally known by the public other than as a result of a disclosure by
the Parties, or (ii) information that the Parties can show was known by
them prior to this agreement and was not first disclosed to them by
LifeStem. The Parties agree that they shall not disclose in any form,
oral, electronic or paper, Confidential Information by any means to any
third party, and that he or she shall only use Confidential Information
for the purposes of performance of Services, unless otherwise
authorized by the Parties, during performance of services and for a
period of three (3) years thereafter. The Parties agree to immediately
return all Confidential Information to the Parties upon end of
performance of Services. The Parties understand that this means that
they may be in violation of this Agreement by misusing Confidential
Information if they attempt to divert business away from either
LifeStem through contact with LifeStem clients after conclusion of
performance of services with LifeStem. Solana states that they have not
previously signed an agreement which prohibits their performance of
Services hereunder or with a company such as LifeStem and that in
performing services, Solana shall not disclose or utilized any trade
secret or confidential information obtained from previous employment or
job or third parties in confidence.
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9. INTELLECTUAL PROPERTY.
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a. LifeStem grants to Solana and its Affiliates a limited license to use
the trademarks, trade names, and service marks associated with the
Services during the term of this Agreement solely in connection with
its marketing efforts hereunder. Solana agrees not to register, or
cause to be registered, nor assist another in registering or causing to
be registered, in any part of the world, any trademark, trade name, or
service xxxx which is confusingly similar to any trademark, trade name,
or service xxxx used by LifeStem or any company under common control
with LifeStem. Solana also agrees not to file or register, or cause to
be filed or registered, nor assist another in filing or causing to be
filed, in any part of the world, any patent or patent application
claiming substantially similar rights to any patent or patent
application held, as of the Effective Date, by LifeStem or any company
under common control with LifeStem.
10. MODIFICATION OF AGREEMENT.
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a. LifeStem reserves the right to modify this Agreement upon assignment
through merger, asset or equity purchase of LifeStem; upon expansion of
Territory to include foreign countries; in the event of changes in law
which so require for compliance; or upon LifeStem no longer providing
Services. LifeStem may assign or transfer this Agreement, however
Solana may not and any such assignment by them shall be void.
11. TERMINATION.
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a. This Agreement may be terminated at any time by either party, without
cause, upon giving the other party not less than ninety (90) days
written notice of termination, in accordance with the requirements of
the section entitled "Notice".
b. This Agreement may be terminated by either party with immediate effect
and without prior recourse to any judicial authority if the other party
(i) commits a material breach of any obligation imposed upon it under
this Agreement; (ii) becomes insolvent or subject to a petition in
bankruptcy filed by or against it or is placed under the control of a
receiver, liquidator or committee of creditors; (iii) attempts to
assign this Agreement; (iv) ceases to function as a going concern or,
in the case of the Solana, ceases to conduct its operations in the
Territory.
c. Solana and LifeStem have considered the possibility of making
expenditures in the performance of this Agreement and the possibility
of losses and damages resulting to each of them upon expiration or
termination. Each party enters into this Agreement with full knowledge
of these possibilities and agrees as follows:
Neither party shall be liable to the other, by reason of the
expiration of this Agreement or termination, with or without
cause, for compensation, reimbursement or damages on account
of the loss of prospective revenues, profits or anticipated
sales or on account of expenditures, investments, leases or
commitments in connection with the business or goodwill of
Solana or LifeStem, or for any other reason whatsoever.
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12. COMPLIANCE WITH LAWS.
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a. The Parties hereto agree to conduct all activities under this Agreement
in compliance with all applicable laws and regulations.
b. The Parties agree to remain in compliance with all applicable
registration, permit, and license requirements in the Territory that
are necessary in order for them to perform fully and legally their
obligations under this Agreement.
13. REPRESENTATIONS AND WARRANTIES.
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a. The Parties hereby represent and warrant that (a) the Services shall be
performed in a professional, workmanlike manner; (b) no Party conduct
shall violate the rights of any third party or any law while performing
under this Agreement; (c) the Parties shall not grant, directly or
indirectly, any rights or interest whatsoever in the Parties work
product to third parties; (d) the Parties have full right and power to
enter into and perform this Agreement without the consent of any third
party and (e) the Parties shall take all necessary precautions to
prevent injury to any persons or damage to property during the term of
this Agreement.
14. INDEMNIFICATION.
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a. The Parties shall indemnify and hold each Party harmless, his or her
officers, directors, employees, sublicensees, representatives and
agents from any and all claims, losses, liabilities, damages, expenses
and costs (including attorneys' fees and court costs) which result from
a breach or alleged breach of this Agreement (a "Claim") provided that
the Parties give written notice of any such Claim and the Parties have
the right to participate in the defense of any such Claim at its
expense. From the date of written notice from a Party of any such
Claim, a Party shall have the right to withhold from any payments due a
Party under this Agreement the amount of any defense costs, plus
additional reasonable amounts as security for a Party's obligations
under this Section.
15. ARBITRATION, VENUE, GOVERNING LAW.
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a. This agreement shall be deemed to be made, governed by, interpreted
under and construed in all respects in accordance with the commercial
rules of Judicial Arbitration and Mediation Service ("JAMS"). This
chosen jurisdiction is irrespective of the country or place of domicile
or residence of either party. In the event of controversy arising out
of the interpretation, construction, performance or breach of this
agreement, the parties hereby consent to adjudication under the
commercial rules of JAMS. Said venue of the arbitration shall be in
Orange County, California. Judgment on the award rendered by the
arbitrator may be entered in any federal or state court in Orange
County, California. The Laws of the State of California shall govern
all disputes regarding this matter. Any provision herein which is later
determined to be in violation of any such laws shall be eliminated from
the terms of this Agreement, and the remainder of this Agreement shall
continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the Effective Date.
LifeStem, Inc. Nouvisage Corp, dba Solana Medspas
By: By:
Name: Name:
Title: Title:
Date: Date:
