EX-10.4



 





Exhibit 10.4




LICENSE & TRANSFER AGREEMENT




     THIS LICENSE AND TRANSFER AGREEMENT (this “Agreement”) is effective as of April 15, 2007, by
and between Caler & Company, Inc., an OHIO corporation (''LICENSOR’’), and Guardian Zone
Technologies, Inc., a Delaware corporation (''LICENSEE’’).



RECITALS



WHEREAS, LICENSOR currently owns the common law and/or registered copyright and service/trade marks
and related marks and intellectual property rights in the brand names and designations
(collectively ''Licensed Property’’) created by LICENSOR specifically for use in LICENSEE’s
wireless location products business (the “Business”);



WHEREAS, the parties desire that LICENSEE have the right to use the Licensed Property in the
Territory (as hereinafter defined) pursuant to the provisions of this Agreement and further, upon
full payment to LICENSOR for creation of the Licensed Property, LICENSEE should be the rightful
owner of all such Licensed Property going forward.



NOW, THEREFORE, in consideration of the mutual provisions herein, the sufficiency of which is
hereby acknowledged, the parties agree as follows:




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AGREEMENT




ARTICLE
1 - GRANT OF LICENSE




1.1.1 Perpetual License to use Licensed Property.



LICENSOR grants to LICENSEE an exclusive, non-transferable, indivisible, perpetual license (the
“License”) to use the Licensed Property in any respect related to the operation, management and
advertisement of LICENSEE’s Business worldwide (the “Territory”), provided LICENSEE properly
complies with all the provisions of this Agreement.




1.1.2 Licensed Property.



The term ''Licensed Property’’ shall mean LICENSOR’s copyrights and service/trade and related marks
and intellectual property rights listed in Exhibit A, attached hereto and fully
incorporated herein.




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ARTILE 2 – CONSIDERATION; TRANSFER OF MARKS




2.1 Consideration for License.



The parties hereby agree that LICENSEE has already provided good and valuable consideration to
LICENSOR for the License granted hereunder.




2.2 Transfer of Licensed Property.



The parties hereby agree that, effective as of the date that full and complete payment is made by
LICENSEE to LICENSOR of $78,759.00 (Seventy Eight Thousand Seven Hundred Fifty Nine Dollars), which
is the balance of the money owed to LICENSOR with respect to the creation of the brands related to
LICENSEE’s Business, LICENSOR shall forever sell, assign, transfer, release and convey to
LICENSEE, and its successors and assigns, LICENSOR’s entire right, title and interest in and to all
copyrights, service and/or trade marks, all rights of authorship and all other intellectual
property rights in the Licensed Property and all physical embodiments and copies thereof. The
foregoing transfer shall take place automatically and, except as otherwise provided in this Section
2.2, without any further action required on the part of either party hereto. LICENSOR further
agrees, promptly upon request of the LICENSEE, or any of its successors or assigns, to execute and
deliver, without further compensation of any kind, any power of attorney, assignment, application
for copyright, service or trademark, patent or other intellectual property right protection, or any
other documents which may be necessary or desirable to fully secure to LICENSEE, its successors and
assigns, all right, title and interest in and to the Licensed Property and all physical embodiments
and copies thereof, and to cooperate and assist in the prosecution of any opposition proceedings
involving said rights and any adjudication of the same. Further, following the transfer of the
Licensed Property to LICENSEE pursuant to this Section 2.2, LICENSOR agrees never to assert any
claims, rights or moral rights in or to the Licensed Property or any physical embodiments or
copies thereof.




ARTICLE 3 – REPRESENTATIONS AND WARRANTIES; INFRINGEMENT




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3.1 Licensor’s Representations and Warranties.



LICENSOR represents and warrants to LICENSEE that: (i) LICENSOR has the right to furnish the
Licensed Property, such Licensed Property does not and will not infringe any third party
intellectual property rights, and LICENSOR will provide the Licensed Property hereunder free of all
liens, claims, encumbrances and other restrictions; and (ii) LICENSEE shall be entitled to use and
enjoy the benefit of the Licensed Property, subject to and in accordance with the terms of this
Agreement.




3.2 Intellectual Property Infringement.




     a. LICENSOR agrees to defend and/or handle, at its own expense, any claim or action against
LICENSEE for actual or alleged infringement of any intellectual or industrial property right,
including, without limitation, trademarks, service marks, patents, copyrights, misappropriation of
trade secrets or any similar proprietary rights on the Licensed Property furnished hereunder by
LICENSOR or based on LICENSEE’s use thereof. LICENSOR further agrees to indemnify and hold
LICENSEE harmless from and against any and all liabilities, losses, costs, damages and expenses
(including reasonable attorneys’ fees) associated with any such claim or action. LICENSOR shall
conduct the defense of any such claim or action, consistent with LICENSEE’s rights hereunder, all
negotiations for its settlement or compromise, unless otherwise mutually agreed to in writing;
provided, however, that LICENSEE may participate in such defense or settlement negotiations and pay
its own costs associated therewith.



     b. If any portion of the Licensed Property becomes, or in LICENSOR’s opinion is likely to
become, the subject of any such claim or action, then LICENSOR, at its expense, may either: (i)
procure for LICENSEE the right to continue using such Licensed Property as contemplated hereunder;
(ii) modify such Licensed Property or portion thereof to render it non-infringing (provided such
modification does not adversely affect LICENSEE’s use as contemplated hereunder); or (iii) replace
such Licensed Property with equally suitable, functionally equivalent, compatible, non-infringing
products (provided that such products do not adversely affect LICENSEE’s use as contemplated
hereunder). If none of the foregoing are commercially practicable after LICENSOR has exhausted all
reasonable efforts, LICENSEE shall be entitled to a pro-rata refund of the payments made by
LICENSEE to LICENSOR in respect of such portion of the Licensed Property.



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     c. Notwithstanding anything to the contrary in this Agreement, LICENSOR shall have no
obligation to LICENSEE with respect to any action based on the combination or use of the Licensed
Property with other products not furnished by LICENSOR where the Licensed Property otherwise would
not itself be infringing.



ARTICLE
4 - OPERATIONS




4.1 Exclusive Use of Licensed Property.



Throughout the term of this Agreement and prior to the transfer provided in Section 2.2, LICENSEE
and its successors, transfers, and assigns, has the exclusive right to use the Licensed Property as
determined by LICENSEE in its good faith business judgment.




4.2 Operational Expenses.



LICENSEE, at its sole expense, shall pay for all operation, management, promotion, marketing and
any other expenses in any way associated with the use of the Licensed Property in the Business.




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ARTICLE
5 - ASSIGMENT



In the event LICENSEE or its agents develop or create logos, designs, or other artwork to be used
in conjunction with the License or the Licensed Property, all such written and graphic materials,
designs, logos, and other items (collectively “Designs”) shall be the exclusive property of
LICENSEE. In the event that LICENSOR or its agents develop or create any additional Designs, such
Designs shall be a “work-for-hire” under the copyright laws of the United States, and LICENSEE
shall be the sole author and owner of all such work. LICENSOR irrevocably assigns and transfers to
LICENSEE all right, title and interest worldwide in and to all such Designs, and to all
modifications and derivative works thereof, and to all worldwide intellectual property rights
related thereto. Upon LICENSEE’s request, LICENSOR shall execute any and all assignments,
applications and other documents, and perform such acts as LICENSEE requests to obtain trademark,
copyright or other proprietary protection in any country in order to protect LICENSEE’s interest in
all such Designs. LICENSOR shall have the right to use the Designs only as approved by LICENSEE.




ARTICLE 6 – TERMINATION




6.1 Grounds for Termination.



Both parties agree that it is an integral part of this Agreement that each party observe certain
high standards of conduct. As a result, each party has the right to terminate this Agreement upon
thirty (30) days prior written notice for any of the following reasons: (i) the other party’s
breach of any material provision of this Agreement, which breach has not been cured during the
thirty (30) day notice period; (ii) the insolvency or bankruptcy of the other party; (iii) a
violation of any applicable rule or law by the other party; (iv) and/or any misrepresentation by
the other party regarding the Licensed Property.




6.2 Cessation of Use.




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Upon termination of this Agreement, the License to use the Licensed Property shall automatically
revert to LICENSOR, and, unless full payment is made pursuant to Section 2.2 of this Agreement,
LICENSEE shall immediately cease using any of the Licensed Property, or any marks confusingly
similar to the Licensed Property.




ARTICLE
7 - CONFIDENTIALITY




7.1 Confidentiality.



Each party hereby acknowledges and agrees that prior to executing this Agreement and/or during the
performance of this Agreement, each party (in this Article 7, a “Disclosing Party”) may disclose to
the other party (in this Article 7, a “Receiving Party”) confidential information regarding the
Disclosing Party’s business, marketing, customers, research and development activities and other
proprietary information (collectively ''Confidential Information’’). The Receiving Party shall not
in any way disclose, copy, modify, distribute, sell, or otherwise use or transfer the Disclosing
Party’s Confidential Information, or any part thereof, to any other person or entity at any time.
The Receiving Party shall not disclose the Confidential Information to any of its employees other
than those who have a specific need to know in order to fulfill the Receiving Party’s obligations
hereunder, and such employees shall be made aware of and shall be bound by all the provisions of
this Agreement. The Receiving Party shall immediately notify the Disclosing Party in writing if
any of its employees fail to comply with any of the provisions of this Agreement, and the Receiving
Party shall be fully responsible for any damages caused by such failure to comply.




7.2 Restrictions.



The Receiving Party shall only use the Disclosing Party’s Confidential Information in order to
properly fulfill its obligations under this Agreement and, if to a party outside of this Agreement,
only upon the prior written consent of the Disclosing Party. The Receiving Party shall not in any
way use any of the Confidential Information in any other business or for any other purpose. Each
party agrees that all the provisions of this Article 7 are necessary to protect the Confidential




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Information of the Disclosing Party and goodwill of each party’s business and its competitive
position in the marketplace. Each party hereby represents that these provisions will not prevent
such party from operating a successful business or earning a sufficient livelihood.




7.3 Exceptions.



Confidential Information shall not include, and these confidentiality obligations shall not operate
as a restriction on the Receiving Party’s right to use, disclose, or otherwise deal with,
information which:





	 	•	 	is or becomes generally available to the public through no wrongful act of the
Receiving Party or its employees or agents;
	 
	 	•	 	was in the Receiving Party’s possession prior to the time it was acquired from the
Disclosing Party and which was not directly or indirectly acquired from the Disclosing
Party or its affiliates;
	 
	 	•	 	is required to be disclosed by court order or operation of law, provided the Disclosing
Party is notified immediately in order to contest such disclosure and the Receiving Party
takes reasonable steps to assist in contesting such request;
	 
	 	•	 	is independently made available as a matter of right to the Receiving Party by a third
party without access to the Disclosing Party’s Confidential Information; or
	 
	 	•	 	is independently developed by or for the Receiving Party by persons not having access
or exposure to the Disclosing Party’s Confidential Information.




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ARTICLE 8 – GENERAL PROVISIONS




8.1 Entire Agreement.



This Agreement constitutes the entire agreement between the parties regarding the subject matter
hereof, and supersedes all prior and contemporaneous discussions and writings between the parties.




8.2 Amendment.



This Agreement can be modified only by a writing signed by both parties.




8.3 Assignment.



Neither party may assign or transfer this Agreement without the other party’s prior written
consent.




8.4 Validity.



If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remaining provisions shall remain in full force and effect.




8.5 Governing Law and Venue.



This Agreement shall be interpreted and enforced according to the substantive laws of the State of
Ohio and not its conflict or choice of law rules. Both parties irrevocably submit to the
jurisdiction of the state and/or federal courts in Cuyahoga County, for any action or proceeding
regarding this Agreement. Each party waives all rights to object to the jurisdiction and venue set
forth above.




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8.6 Counterparts.



This Agreement may be executed in several counterparts, that will all be originals, and together
will constitute one and the same instrument.




8.7 Indemnity.



In addition to the infringement indemnity contained in Article 3 hereof, each party (in this
Section 8.7 the “Indemnifying Party”) shall indemnify, defend and hold the other party harmless
from all damages, liabilities, and other expenses, including attorneys’ fees and costs, that in any
way arise out of or relate to the Indemnifying Party’s breach of any provision of this Agreement,
the Indemnifying Party’s use of the Licensed Property and/or any other obligations or agreements
that the Indemnifying Party enters into with third parties. This Section shall survive any
termination or expiration of this Agreement.




8.8 Waiver.



The waiver by either party of the other party’s breach of any provision of this Agreement shall not
be deemed a waiver unless in writing and/or deemed a continuing waiver, and shall not affect any
subsequent breach of the same or different provisions of this Agreement.




8.9 Relationship of Parties.




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The relationship between the parties is only that of a licensor and licensee and transferor and
transferee. Neither party is the agent or legal representative of the other party and has no right
or authority whatsoever to bind such party in any way.



IN WITNESS WHEREOF, the parties execute this Agreement and agree it shall be effective as of April
15, 2007.




	 	 	 	 	 	 	 	 	 	 	 
	[Caler & Company Inc.]	 	 	 	Guardian Zone Technologies, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Steve Caler
 

	 	 	 	By:
	 	/s/ Thomas J. Radu
 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	Steve Caler
	 	 	 	Name:
	 	Thomas J. Radu	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:

	 	CEO
	 	 	 	Title:
	 	President & CEO	 	 
	 

	 	 
	 	 	 	 	 	 	 	 






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EXHIBIT A



Guardians Zone Technologies, Inc., Lost Prevention, Search and Rescue Systems



Brand: Product line extensions to niche markets



1). Hug Bug



Home unit garden system



Hugs for kids



2). Guardian Tracker



Find kids fast



3). Invisible Guardian



Protecting what you love most



4). HUGS



Home Unit Guardian System



5). Angel Alert



Monitor your babies’ every move



6). Guardian Care



Security for those who need it most




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7). Community Alert



Silent protection for neighborhood children



8). Invisible Tracker



Find lost pets fast



9). Park Sheriff



Keeping family together, away from home.



10). the FOUNDATION



At national organization to prevent the loss of children.



Comprehensive marketing strategy, brand extension, target market product development, public
relations support for patented technology and product introduction into select mass markets.





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