CODE PURCHASE AND PERPETUAL LICENSE AGREEMENT
THIS CODE PURCHASE AND PERPETUAL LICENSE AGREEMENT (this “Agreement”) is made and entered into this 10th day of October, 2018 (the “Effective Date”) by and between Asure Software, Inc., a Delaware corporation (“Asure”), and FotoPunch, Inc., a Delaware corporation ( “FotoPunch”).
WHEREAS, FotoPunch is the owner and developer of facial and voice recognition software for workforce time, attendance, data collection, scheduling and other applications for use with mobile devices and other devices (the “Software” as further defined in Section 1.6 below);
WHEREAS, Asure desires to purchase a copy of the Code for the Software and all future Modifications thereof and obtain a perpetual right and license to use the Code and Software for commercial exploitation in its industry, and to obtain certain other rights as set forth herein, and FotoPunch is willing to grant to Asure the foregoing rights, in accordance with the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
In this Agreement, the following capitalized terms shall have the following meanings:
1.1 “Code” means all source code for the Licensed Software or any Modification including but not limited to all logic, logic diagrams, flowcharts, algorithms, routines, sub-routines, utilities, modules, file structures, coding sheets, coding, functional specifications, and program specifications comprising or contained in the Licensed Software or any Modification whether in eye readable or machine readable form.
1.2 “End User” means any of Asure’s third party users of the Licensed Software.
1.3 “Industry” means the workforce management hardware, equipment and software solutions industry (howsoever such solutions are provided whether perpetual, SaaS, desktop or remotely via mobile device) including payroll, time and attendance, human resources or scheduling, and any other solution or product that competes or is competitive to a software solution or product that Asure now provides or hereafter may provide.
1.4 “Modification(s)” means any modifications, changes, revisions, enhancements, corrections of defects, fixes, workarounds, improvements, or changes in functionality to the Licensed Software or the Code, whether or not issued in a formal update, upgrade, or release, or any other work of authorship based upon the Licensed Software, the Code, or a Modification provided they relate to time and attendance solutions, scheduling solutions or any software solution Asure now provides or hereafter may provide.
1.5 “Licensed Services” means (a) configuration, integration, and installation services in connection with the licensing and implementation of the Licensed Software to End Users; (b) on-going support services to End Users in connection with the use of the Licensed Software; (c) hosting services to host the Licensed Software to End Users; and (d) professional services or any other services which Asure now provides or hereafter may provide to End Users.
1.6 “Licensed Software” or “Software” means the software products of FotoPunch in machine executable object code format, and any documentation therefore, as set forth on Exhibit A attached hereto, including any Modifications made thereto.
1.7 “Term” has the meaning set forth in Section 9.1.
SECTION 2. CODE PURCHASE AND PERPETUAL LICENSE
2.1 Purchase of Code and Perpetual License Rights. Subject to the terms of this Agreement, FotoPunch hereby (a) sells to Asure a copy of the Code (which includes future Modifications thereto) for the Licensed Software; and (b) grants to Asure, an irrevocable, worldwide, perpetual right and license to forever retain and use the Code and each executable copy of the Licensed Software for commercial exploitation by Asure without restriction in the Industry (such rights to forever retain, use and commercially exploit the Code and Licensed Software shall be referred to as the “Perpetual License
”). The Perpetual License grants Asure the right to commercially exploit the Code and Licensed Software in any manner in the Industry so long as it is an integrated Asure product or to an existing Asure customer or solution including but not limited to the right (a) to use, market, license, distribute, copy, and deliver the Licensed Software for commercial exploitation; (b) to host the Licensed Software and Code; (c) to provide the Licensed Services; (d) to use the Code to assist Asure in connection with licensing and exploitation of the Licensed Software, and providing the Licensed Services; and (e) to make Modifications to the Code as set forth in Section 2.4. In consideration of the Perpetual License and the other rights granted to Asure, Asure shall pay FotoPunch the “Purchase Price” set forth in Section 3.
