Exhibit 10.1



 


Exhibit 10.1


 





 


CUSTOM SOFTWARE DEVELOPMENT CONTRACT 


 


THIS CUSTOM SOFTWARE
DEVELOPMENT CONTRACT (“Contract” or “Agreement”) is made and entered into this 28th
day of June (the “Effective Date”) by and between Voice Assist, Inc.,
a Nevada corporation (“Voice Assist”), whose principal business address is 2 South Pointe Drive, Suite 100, Lake Forest,
California, 92630 and Augme Technologies, Inc., a Delaware corporation (“Customer”),
whose principal business address is 350 7th Avenue, 2nd Floor, New York, NY 10001.


 


WITNESSETH:


 


WHEREAS, Voice Assist
provides voice-activated, enhanced telecommunication services to the public;


 


WHEREAS, Customer
is a provider of mobile marketing technology to leading consumer and healthcare brands;


 


WHEREAS, Customer
would like Voice Assist to develop a customized software platform to facilitate the integration of its marketing and advertising
campaigns within Voice Assist’s services; and


 


WHEREAS, Voice Assist
is willing to develop a customized software platform for Customer, subject to the terms and conditions outlined herein;


 


WHEREAS, Voice Assist
and Customer will enter into an Advertising Agreement, dated of even date herewith, for the purchase of Voice Assist advertising
services;


 


NOW THEREFORE, Voice
Assist and Customer agree as set forth below:


 


1.1Development Plan.
This Contract is to develop a customized platform for Customer as more fully described on Exhibit A entitled “Development
Plan,” attached hereto and incorporated herein (the “Project”). Voice Assist shall furnish and supervise all
the work and schedule, coordinate, contract and administration necessary to complete the development of the Project in an expeditious
manner. The Development Plan shall include:


 


		(a)	Detailed Specifications for the Project and custom software platform;



		(b)	A list of all items to be delivered to Customer (“Deliverables”); and



		(c)	A delivery schedule containing a delivery date for each Deliverable.



 


1.2Payment Schedule.
Customer will pay Voice Assist a one time, flat fee of Two Hundred Thousand Dollars ($200,000), booked, payable and collectable
as of the Effective Date, as compensation for Voice Assist’s Project software development services under this Agreement (the
“Contract Price”).


 



    	1



    	 



    

 


This fee shall be paid to Voice Assist in three
(3) installments as follows: Seventy Five Thousand Dollars ($75,000) within thirty (30) days of the Effective Date of this Agreement;
($75,000 within thirty (60) days of the Effective Date of this Agreement and Fifty Thousand Dollars ($50,000) when the project
as described in Exhibit A of this Agreement is complete. The entire Contract Price will be invoiced by Voice Assist on or before
June 30, 2012.


 


1.3Recoupment
of Contract Price. In the event Voice Assist enters into an agreement with and collects a nonrecurring engineering fee from
an advertising affiliate or other Voice Assist partner other than Customer, for the development of a customized software platform
the same as or similar to the one contemplated herein, Voice Assist shall pay Customer 50% of each such payment collected by Voice
Assist until such time as Customer has recouped the Contract Price. Voice Assist shall be liable under this Section 1.3 only as
to payments actually received by Voice Assist from its partners or affiliates and in no event shall Voice Assist’s total
liability under this Section 1.3 exceed Two Hundred Thousand Dollars ($200,000).


 


1.4Voice Assist
Warrants. As part of the consideration for entering into this Agreement and the related Advertising Agreement, entered into
in conjunction herewith, Voice Assist agrees to grant Customer 100,000 warrants of VSST for fifty cents ($0.50) each under the
same terms as those warrants previously issued.


 


2.1Acceptance Testing of
Software. Immediately upon completion of each development phase set forth in the Development Plan’s delivery schedule,
Voice Assist shall deliver and install the Software and shall deliver all documentation and other materials required to be provided
in accordance with the delivery schedule. Customer shall have ten (10) days from the delivery of the Software to inspect, test
and evaluate it to determine whether the Software satisfies the acceptance criteria in accordance with procedures set forth in
the Development Plan.


 


If the Software does not
satisfy the acceptance criteria, Customer shall give Voice Assist written notice stating why the Software is unacceptable. Voice
Assist shall have ten (10) days from the receipt of such notice to correct the deficiencies. Customer shall then have seven (7)
days to inspect, test and reevaluate the Software. If the Software still does not satisfy the acceptance criteria, Customer shall
have the option of either: (1) repeating the procedure set forth above, or (2) terminating this Agreement pursuant to the section
of this Agreement entitled “Termination.”


 


Upon completion of the
final development phase set out in the Development Plan, acceptance testing shall be performed on the Software in its entirety
to determine whether the Software satisfies the acceptance criteria and operates with internal consistency. Customer shall have
seven (7) days to perform such tests. If the completed Software does not satisfy the acceptance criteria, the parties shall follow
the acceptance procedures described in the preceding paragraph.


 


If and when the acceptance
tests establish the Software delivered upon completion of any phase of development complies with the acceptance criteria, Customer
shall promptly notify Voice Assist that it accepts the delivered Software.


 


3.1Project
Timing. Voice Assist shall devote its best efforts to completion of the Project on time, in accordance with the Development
Plan. Delay in the Project arising from Customer’s failure to comply with the provisions of this Contract shall result in
no revisions to the Contract Price, but shall allow Voice Assist an equitable adjustment to the delivery schedule in the Development
Plan. Delay in the Project arising from Voice Assist’s failures to deliver shall result in Customer’s ability to withhold
payments, until completion of all Deliverables as required under the Development Plan and there shall be a fifteen percent (15%)
decreasing adjustment to the Contract Price to take into consideration additional costs or lost benefits, which Customer may incur
for delays in the implementation of the Project and unanticipated additional administrative expenses.


 



    	2



    	 



    

 


4.1Changes to Project.
The Customer, without invalidating the Contract, may order changes to the Project consisting of additions, deletions, or modifications.
All changes to the Project shall be pursuant to a written change order prepared by Voice Assist and executed by both Customer and
Voice Assist (the “Change Order”), which shall set forth (a) the cost of the change in the Project; (b) the change,
if any, in the Project, (c) the change, if any, in the Contract Price; and (d) the change, if any, to the Development Plan schedules
(both delivery and payment). If Voice Assist anticipates a change in the scope of the Work that shall cause the Contract Price
to be exceeded, Contractor shall notify Owner in writing and only written and executed Change Orders shall become part of the Contract
and cause an increase in the Contract Price equal to that set forth in the Change Order.


 


5.1Customer’s Responsibilities.
Customer shall furnish all Project related documents to Voice Assist and shall forward all instructions to Voice Assist. Customer
shall select in a timely manner all design and related items required during the development process. Customer agrees to cooperate
and make every reasonable effort to assist Voice Assist during the course of development.


 


6.1Ownership of Project.
Voice Assist retains all right, title and interest in anything created or developed by Voice Assist for Customer under this Agreement
(“Work Product”) including all patents, copyrights, trade secrets and other proprietary rights.


 


6.2 Ownership of Technology.
Customer acknowledges that Voice Assist owns or holds a license to use and sublicense various preexisting development tools, routines,
subroutines and other programs, data and materials (specifically including the Voice Assist platform and each of its components)
that Voice Assist may include in the Project developed under this Contract (the “Background Technology”).


 


Voice Assist retains all
right, title and interest, including all copyright, patent rights and trade secret rights in the Background Technology. Subject
to full payment of the Contract Price due under this Contract, Voice Assist grants Customer a nonexclusive, perpetual worldwide
license to use the Background Technology solely in the Project developed for and delivered to Customer under this Contract. However,
Customer shall make no other commercial use of the Background Technology without Voice Assist’s prior express written consent.
Customer expressly acknowledges and agrees that it has no right, title or interest in such Background Technology and further that
Customer will obtain no right, title or interest in the Background Technology.


 


6.3Infringement Indemnity.
Voice Assist will defend and indemnify Customer against a claim that the Work Product infringes a copyright or patent or other
intellectual property right, provided that: (a) Customer notifies Voice Assist in writing within thirty (30) days of the claim;
and (b) Customer provides Voice Assist with the assistance, information and authority necessary to perform Voice Assist’s
obligations under this Section. If the Work Product is held or is believed by Voice Assist to infringe, Voice Assist shall have
the option, at its expense, to (a) modify the Work Product to be non-infringing; or (b) obtain for Customer a license to continue
using the Work Product.


 



    	3



    	 



    

 


7.1Termination by Customer.
Customer may terminate the Contract at any time by providing thirty (30) days advance written notice to Voice Assist; however,
termination shall not relieve Customer’s obligations specified in this Contract. Further, Customer expressly acknowledges
and agrees that in the event the Contract is terminated by Customer, Customer will still be liable for the Contract Price through
the date of termination of this Contract.


 


7.2Termination by Voice Assist.
Voice Assist may terminate this Contract immediately if Customer materially breaches this Contract. Voice Assist may also terminate
this Contract by providing written notice to Customer if Customer permanently discontinues business or is adjudicated a bankrupt
or files a voluntary petition in bankruptcy or reorganization.


 


8.1Confidentiality. During
the term of this Agreement and for four (4) years afterward, the parties will use reasonable care to prevent the unauthorized use
or dissemination of the other’s confidential information, including the terms of this Agreement. Reasonable care means at
least the same degree of care each party uses to protect its own confidential information from unauthorized disclosure.


 


9.1Relationship of Parties.
Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint
enterprise between the parties. Voice Assist is solely an independent contractor, and neither Voice Assist nor Voice Assist’s
staff is, or shall be deemed, Customer’s employees. In its capacity as an independent contractor, Voice Assist agrees and
represents, and Customer agrees, as follows:


 


		(a)	Voice Assist will furnish all equipment and materials used to provide the services required by
this Agreement;



		(b)	The services required by this Agreement shall be performed by Voice Assist’s staff, and Customer
shall not be required to hire, supervise or pay any other individuals or entities to assist Voice Assist;



		(c)	Voice Assist is responsible for paying all expenses of its staff;



		(d)	Voice Assist is responsible for the collection and payment of all taxes associated with this Contract.



 


10.1Dispute
Resolution – Binding Arbitration. The Parties agree that if any dispute arises from or relates to this Contract, that
is not resolved through mediation or other informal settlement negotiations, such dispute shall be determined in a binding arbitration
proceeding conducted in Orange County, California administered by a single neutral arbitrator mutually acceptable to the Parties
or, if the Parties are unable to agree on an arbitrator, by an arbitrator selected through the American Arbitration Association.
The Arbitrator shall have the authority to grant both legal and equitable relief, and judgment upon the decision rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The decision of the arbitrator shall be final and binding upon
the Parties and in the event of any need to clarify or interpret the decision of the arbitrator, the matter shall be resubmitted
to the arbitrator for clarification or interpretation. Neither party shall initiate any litigation or other dispute resolution
procedure (other than mediation or informal settlement negotiations, which are allowed and encouraged) and any attempt to do so
shall be void and of no effect.


 


11.1Governing Law. This
Contract shall be governed by the laws of the State of California without regard to conflicts of law principles.


 



    	4



    	 



    

 


12.1Successors and Assigns.
The parties shall not assign their rights hereunder without the prior express written consent of the other party, provided that
Voice Assist can subcontract any portion of the Project. Subject to the immediately preceding sentence, Customer and Voice Assist,
respectively, bind themselves, their successors, assigns and legal representatives to the other party and to successors, assigns
and legal representatives of such other party with respect to all covenants of this Contract. This section shall survive the termination
of this Agreement.


 


12.2No Third-Party Beneficiaries.
Nothing contained herein shall create a contractual relationship with, or any rights in favor of, any third party.


 


12.3Attorneys’ Fees.
The prevailing party in any arbitration or other dispute (including mediation or informal settlement discussions) arising out of
any interpretation, enforcement, default or failure in performance by the other party hereunder shall be entitled to receive all
of its costs incurred in prosecution or defense thereof, along with enforcement of any judgment, order or other award, including
all attorneys’ fees, incurred therefor.


 


12.4Notices. Any notice
hereunder shall be given in writing to the party for whom it is intended and delivered either in person or by United States Certified
or Registered Mail, postage prepaid, return receipt requested, or by facsimile, at addresses listed on the signature page hereto.


 


12.5No Waiver. If either
Voice Assist or Customer waives the performance of any term, covenant or condition of this Contract, such waiver shall not be deemed
to be a waiver of the term, covenant or condition itself, or a waiver of any subsequent breach of the same or any other term, covenant
or condition. Failure by either to enforce any of the terms, covenants or conditions of this Contract for any length of time shall
not be deemed to waive or decrease the right of such party to insist thereafter upon strict performance by the other party. Nor
shall any customary practice which may occur between the parties in the course of administering this Contract be construed to waive
or lessen any right of a party to insist upon the performance by the other of any term, covenant, or condition herein or to exercise
any rights given a party on account of any default. Waiver by either party of any term, covenant or condition of this Contract
may be made only by written document signed by such party.


 


12.6Severability.
If any provision of this Contract or the application of any provision of this Contract to any person or circumstance shall be found
to be invalid or unenforceable to any extent, the remainder of this Contract and the application of any such provision to other
persons or circumstances shall not be effected, and shall be enforced to the greatest extent permitted by law.


 


12.7Modification.This
Contract may not be modified, extended, canceled or discharged, or any covenant or provision waived, except by an agreement in
writing, signed by the party against whom enforcement of the modification, extension, discharge or waiver is sought.


 


12.8Headings. The headings
and titles of the paragraphs used herein are used for convenience only, and shall have no effect upon the construction or interpretation
of this Contract.


 


12.9Counterparts; Facsimile/Email
Transmission. This Contract may be executed in separate counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement. Each party to this Contract agrees that its own facsimile and/or emailed
signature will bind it and that it accepts the facsimile and/or emailed signature of each other party to this Contract.


 



    	5



    	 



    

 


12.10Entire Contract.
This Contract constitutes the entire Contract of the parties with respect to the subject matter and supersedes all prior negotiations,
understandings, and Contracts between them. Both Voice Assist and Customer acknowledge and agree that neither party has relied
on any representations or promises in connection with this Contract not contained herein. Notwithstanding the foregoing, Voice
Assist and Customer acknowledge that the parties have also entered into a Platform License Agreement for use by Customer of Voice
Assist’s background technology.


 


IN WITNESS
WHEREOF, the Parties have caused this Custom Software Development Contract to be executed as of the date first set forth above.


	VOICE ASSIST:	 	 
	 	 	 
	Dated: June 28, 2012	VOICE ASSIST, INC.
	 	 
	 	By:	/s/ Michael Metcalf
	 	Name: 	Michael Metcalf
	 	Its:	Chief Executive Officer
	 	Mail:	
        2 South Pointe Drive, Suite 100

        Lake Forest, California, 92630



 


	CUSTOMER:	 	 
	 	 	 
	Dated: June 28, 2012	AUGME TECHNOLOGIES, INC.
	 	 
	 	By:	/s/ Paul Arena
	 	Name: 	Paul Arena
	 	Its:	Chief Executive Officer
	 	Mail:	
        350 7th Avenue, 2nd Floor

        New York, NY 10001



 



    	6



    	 



    

 


EXHIBIT A


to


CUSTOM SOFTWARE DEVELOPMENT CONTRACT


 


Development Plan:


 


		1)	In-Message AdvertisingTM



Voice Assist will incorporate Hipcricket
ad banner serving code in Voice Assist Mobile Apps and Voice Assist Emails (sent from free accounts) to allow non-targeted advertisements
to be displayed. Requires Ad Banner integration information from HipCricket.


 


		●	Estimated completion: July 31st 2012



 


		2)	In-Audio AdvertisingTM



Voice Assist will work with Augme
to optimize the effectiveness of audio advertising within the Voice Assist audio experience. This may include a branding attribution
upon log-in to the Voice Assist platform, an audio advertising after x actions (dial, email, text, post) or location based ad opportunities.
Audio ads will be actionable by voice commands; such as love it, like it, hate it, buy it, share it, connect me or text me.


 


		●	Voice Assist will develop a test version of the Voice Assist service that incorporates different
types of audio advertising (branding, direct response, interactive).



 


		●	Voice Assist will conduct research to determine the potential effectiveness of the different forms.



 


		●	Voice Assist will provide hooks for integration into the Hipcricket platform allowing the platform
to serve ads into the Voice Assist service and provide data on usage and actions taken.



 


		●	Estimated completion: September 30th 2012






 


		3)	DriveMode AdvertisingTM



A mobile app will be used to listen
to music or Internet radio and will be location and audio aware. Audio advertisements will be inserted based on location (drive
by), time and user profile. The app will pause music and read data messages upon receipt (text, Facebook, Twitter, email). Drivers
can respond verbally and then continue to listen to the audio content. Advertisements will be actionable with voice commands; such
as love it, like it, hate it, buy it, share it, connect me, text me.


 



    	7



    	 



    

 


		●	Voice Assist will develop a mobile app that works with a 3rd party music or internet
radio service, Voice Assist communication services (Text, Email, Call, Post), interactive audio ad’s and related mobile banner
ads.



		●	The App will capture location information to allow geo-tagged ad serving.



		●	The App will capture spoken audio through the device microphone to enable voice commands for the
interactive ads and the Voice Assist services.



		●	The App and cloud based services will be audio aware ensuring that when one audio based service
is playing it can be interrupted by a higher priority audio service, such as incoming calls or text messages.



		●	Voice Assist will provide hooks for integration into the Hipcricket platform allowing the platform
to serve ads into the Voice Assist service and provide data on usage and actions taken.



		●	Estimated completion: September 30th 2012



 



    	8