EXHIBIT 10.1
Intellectual Property Transfer Agreement
This Intellectual Property Transfer Agreement("Transfer Agreement") is entered
into as of May 15, 2008, by and between InDis Baltic, a Lithuanian Company, with
its principal offices at Pylimo 11-8, LT-01118 Vilnius, Lithuania ("Developer"),
and Tombstone Cards, Inc., a Colorado Corporation, with its principal offices at
2400 Central Ave, Suite G, Boulder, Colorado ("Client").
a) Developer is in the business of designing and developing computer software
applications including on-line image editing.
b) Client is in the business of sales and marketing of products utilizing
on-line image editing.
c) Developer created an online image editing software (OIE) capable of producing
low resolution images (72 dpi) and has been selling it since 2002.
d) The Developer warrants that it owns all of the rights to the underlying code
encompassing OIE without restriction.
e) Client engaged Developer to design and develop certain intellectual and
proprietary property consisting of computer software called OIEPrint
(Technology) according to the terms, specifications, and conditions set forth in
the Development Agreement mutually signed by the parties dated October 6, 2006.
i) Client and Developer (Parties) agree that the Technology is based in part on
intellectual property, code and know-how created by the developer for OIE.
f) The Client and Developer have previously declared that they jointly and
equally own the Technology created under the Development Agreement and desire to
commercially exploit it worldwide.
Whereas Client now desires to own all rights and intellectual property
associated with the Technology and the Developer wishes to sell its rights, the
Parties agree as follows:
1) Sale and Assignment
a) Transfer of Interests. Developer hereby sells, assigns and transfers to the
Client all of their right, title and interest in and to the Technology and all
rights to its intellectual property and proprietary technology contained in the
Technology including all rights to OIE.
2) Purchase
a) Purchase and Acceptance: For all the rights specified above, Client agrees to
pay Developer the following:
i) $7,500 (USD) immediately upon mutual acceptance of Transfer Agreement.
ii) 140,000 shares of restricted common stock of Client upon final acceptance of
the Technology
iii) $7,500 (USD) upon final acceptance of the Technology by Client.
iv) $10,000 (USD) 90 days from the final acceptance of the Technology by Client.
3) Additional Consideration
i) Client will provide to Developer an exclusive license, Clients use excepted,
for OIE for One U.S. Dollar.
b) Developer will be the programmer for the next two phases of the Technology
development, including OIEPrint Store and OIEPrint VDP.
c) Developer will be the primary outside vendor for providing customization
services to OIEPrint licensees for the next 12 months.
4) Improvements and Patents
a) Developer will change the name and all collateral materials in utilization of
OIE so that it is distinguishable from the Technology and its derivatives.
b) Improvements. Developer agrees that any future development of OIE will be
limited to improving its functionality or user experience and that the final
graphical output of the OIE will not rise above the equivalent of 96 dpi without
the express written permission of the Client.
c) Applications. Upon the request of and at the expense of the Client, the
Developer will cooperate and assist with the filing of such applications for
letters patent or copyrights in the United States, or in foreign countries, on
the Technology and any improvements as the Client deems necessary. Developer
will assign to the Client all right, title and interest in and to these
applications.
5) Developer Covenants
a) As soon as practicable following the execution of this Transfer Agreement,
the Developer will deliver to the Client in written form design documentation
containing all the trade secret information relating to the Technology. The
Developer warrants that it owns all of the rights to the underlying code
encompassing OIE without restriction.
b) Assistance in Utilizing Technology. Developer will assist the Clients
employees in utilizing all existing and future information which the Client or
its employees own or might obtain in order to use fully and efficiently the
Technology or any improvements.
c) Confidentiality. The Developer agrees that they will not disclose any
proprietary information of the Client with respect to the Technology and any
improvements to any other person or entity without the written consent of the
Client, nor will they use the Technology for the benefit of any person or entity
other than the Client without such consent except as expressly permitted by the
License of OIE.
6) Litigation
a) Prosecution by Client. The Client will have the sole right to pursue any
action necessary to prevent the infringement by others of any protectable aspect
of the Technology, will pay all expenses associated with any such action, suit
or proceeding and will retain all sums recovered.
b) Assistance. In connection with any such actions the Developer will assist the
Client and will testify, whenever requested to do so by the Client at the
Clients expense, and will execute all agreements, instruments or other documents
necessary or desirable for such assistance.
7) Miscellaneous
a) Governing Law. This Transfer Agreement will be governed by and construed
under the laws of the State of Colorado, USA, as applied to agreement among
Colorado residents entered into and to be performed entirely within Colorado.
The Federal and State Courts of the State of Colorado will have jurisdiction
over any claim brought under or pertaining to this Transfer Agreement, and
Parties consent to the personal jurisdiction of those Courts.
b) Counterparts. This Transfer Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
8) Notices
a. Except as otherwise provided in this Transfer Agreement, notices required to
be given pursuant to this Transfer Agreement will be effective when received,
and will be sufficient if given in writing, hand delivered, sent by facsimile
with confirmation of receipt, sent by First Class Mail, return receipt requested
(for all types of correspondence), postage prepaid, or sent by overnight courier
service and addressed as follows:
To Client: Tombstone Cards
2400 Central Ave,
Suite G
Boulder, CO 80301
Attn: William Reilly
Fax no.: 303-339-6488
To Developer: InDis, Baltic
Pylimo 11-8
LT-01118 Vilnius
Lithuania
Attn: Peter Quintus
Fax no.: +3705 239 50 23
9) Publicity
The Developer will not disclose the terms and conditions of this Transfer
Agreement without the prior written consent of the Client, except as is
reasonably necessary to the Developers bankers, attorneys, or accountants or may
be required by law.
10) Independent Contractor
Nothing in this Transfer Agreement will be deemed to create an
employer/employee, principal/agent, or joint venture relationship. Neither party
has the authority to enter into any contracts on behalf of the other party or
otherwise act on behalf of the other party unless agreed to in writing.
11) Dispute Resolution
The Parties agree that in the event of any dispute or disagreement between them
in connection with this Transfer Agreement, the Parties will use their best
efforts to resolve any dispute through good- faith negotiation and mutual
agreement. The Parties will meet at a mutually convenient time and place to
attempt to resolve any such dispute. However, in the event that the Parties are
unable to resolve any such dispute, the Parties will first attempt to settle
such dispute through a non-binding mediation proceeding. In no event will the
results of any mediation proceeding be admissible in any arbitration or judicial
proceeding.
12) Severability
In case any provision of this Transfer Agreement is held to be invalid,
unenforceable, or illegal, that provision will be severed and will not affect
any other provisions of this Transfer Agreement.
13) Waiver
The failure of either party to enforce any provisions of this Transfer Agreement
is not a waiver of the provisions or of the right of that party to subsequently
enforce that, or any other, provision of this Transfer Agreement.
14) Attorney Fees
In the event of any dispute between the parties arising out of this Transfer
Agreement, the prevailing party will be entitled to recover its attorney fees
and costs.
15) Effective Date
The effective date of this Transfer Agreement is May 15, 2008.
IN WITNESS WHEREOF, the undersigned have executed and delivered this Marketing
Agreement on the date set forth above.
DEVELOPER: CLIENT:
InDis BALTIC TOMBSTONE CARDS, INC.
By: /s/Peter Qhintas By: /s/ John Harris
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General Manager President & Chief Executive Officer