a5465931ex10_6.htm


    Exhibit
      10.6

     

     

    Marketing
      Services Agreement

    


    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 1010 University Avenue, Suite
      40,
      San Diego, California 92108 (the “Company”), and Cord Blood America, Inc., a
      Florida corporation with principal offices at 9000 Sunset Boulevard, Suite
      400,
      Los Angeles, California 90069 (“Marketer”).  The term “Parties,” as
      used in this Agreement, shall jointly refer to the Company and
      Marketer.

    


    WHEREAS:

    


    
      	
               

            	
              A.

            	
              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.

            


    

    


    
      	
               

            	
              B.

            	
              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.

            


    

    


    
      	
               

            	
              C.

            	
              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.

            


    

    


    
      	
               

            	
              D.

            	
              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.

            


    

    


    
      	
               

            	
              E.

            	
              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.

            


    

    


    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.

    


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    


    


    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.

     

    
      
        	
                a.

              	 	
                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.

              


      

    

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    2.           Commission.

     

    
      
        	 	
                a.

              	
                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.  

              
	 	 	 
	 	
                b.

              	
                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. 

              
	 	 	 
	 	
                c.

              	
                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.

              


      

    

     

    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.

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

    
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.

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

    
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:

    


    
      	
               

            	
              (i)

            	
              Marketer
                shall use the Marks only as expressly provided in this
                Agreement.

            


    

    


    
      	
               

            	
              (ii)

            	
              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.

            


    

    


    
      	
               

            	
              (iii)

            	
              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.

            


    

    


    
      	
               

            	
              (iv)

            	
              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.

            


    

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

     

    
      	
               

            	
              (v)

            	
              The
                license granted herein will terminate contemporaneously with the
                termination of this Agreement.  Marketer shall thereafter
                forever discontinue its use of the
                Marks.

            


    

    


    
      	
               

            	
              (vi)

            	
              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.

            


    

    


    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.

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

    
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.

    


    
      
        	
                FOR
                  COMPANY:

              
	 
	
                        /s/
                  David R. Koos

              
	
                By:
                  ____________________________

              
	
                       David
                  R. Koos, President  & Chief Executive
                  Officer

              
	 
	 
	
                FOR
                  MARKETER:

              
	 
	
                      /s/
                  Matthew Schissler

              
	
                By:__________________________

              
	
                     Matthew
                  Schissler, Chief Executive
                  Officer

              


      



    


    [Signature
      Page to Marketing Services Agreement.]

     

    7