EXHIBIT 10.14
[LOGO] nordia
SERVICES AGREEMENT
BETWEEN: NORDIA INC., a corporation incorporated under the laws of Canada,
having a place of business at 3100 Cote-Vertu Blvd., St-Laurent
(Quebec) H4R 2J8;
(the "Contractor")
AND: GOAMERICA COMMUNICATIONS CORP., a corporation incorporated under the
laws of the state of Delaware, having a place of business at 433
Hackensack Avenue, Hackensack, New Jersey, USA 07601
(the "Company")
WHEREAS Company and Contractor desire to enter into this Services Agreement
(this "Agreement") pursuant to which Contractor shall provide the Services
described herein to Company, the whole pursuant to the terms and conditions of
this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1.1 Services. Contractor shall provide Company with Services as defined
in Exhibit A. The Services shall be performed in accordance and
subject to the terms herein.
1.2 Authority. Contractor shall have the sole obligation, supervision
and direction of providing the Services in accordance with this
Agreement and shall be responsible for the manner in which the
Services are provided.
1.3 Cooperation. The parties agree to cooperate with each other with
respect to the terms of the Agreement and the Services, the Company
agreeing without limitation to provide any reasonable information
required by the Contractor to
provide the Services, the Contractor agreeing without limitation to
consider any reasonable requests by the Company as to any of its
employees or representatives, used in providing the Services.
2. TERM
2.1 Term. The term of this Agreement shall commence as of January 1,
2005 (the "Initiation Date") and, unless earlier terminated or
extended in accordance with the provisions hereof, shall continue in
effect for a period of twelve (12) months from that date (the
"Initial Term").
2.2 Renewal. Company shall have an option to renew this Agreement for a
further period of twelve (12) months (each a "Successive Term"),
provided notice is given to Contractor no later than ninety (90)
days prior to the expiration of the Initial Term or any Successive
Term. Consideration is to be renegotiated thirty (30) days prior to
the expiration of the Initial Term (the "Renegotiation Period").
3. CONSIDERATION. In consideration of the Services rendered hereunder by
Contractor, Contractor shall be compensated with the Consideration as
defined and according to the terms outlined in Exhibit B hereto, plus all
applicable goods and services taxes.
4. DEFAULT AND CURE.
4.1 Instances of Default. Company or Contractor will be considered in
default (each instances a "Default") of this Agreement if at any
time during the Term of this Agreement, the defaulting party:
4.1.1 fails to make any payment of any material sum of money herein
specified to be made, which breach is not remedied within five
(5) business days of receipt of written notice from the
non-breaching party, or
4.1.2 fails to correct the breach of any other material obligation
pursuant to this Agreement within five (5) business days of
receipt of written notice from the non-breaching party,
whether such breach is expressly contained herein or
otherwise; provided that if such breach is not reasonably
capable of being remedied by the defaulting party within such
period then, provided the defaulting party has commenced to
remedy such breach within such period and diligently pursued
such remedy thereof, then it may benefit from any such longer
period as the
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non-breaching party shall extend, acting reasonably, for the
correction thereof;
4.1.3 applies for or consents to the appointment of, or the taking
or possession by a receiver, custodian, trustee or liquidator
of it or of all or a substantial portion of its property,
whether or not pursuant to the laws of bankruptcy or
insolvency of any applicable jurisdiction;
4.1.4 makes a general assignment for the benefit of creditors or any
similar assignment; or
4.1.5 commences a voluntary assignment or has an involuntary
assignment or petition commenced against it under any
applicable legislation or statutory relief whether pursuant to
such laws.
4.2 Default for Non-Compliance. Contractor will be considered in Default
of this Agreement if Contractor fails to maintain Compliance as
defined in Exhibit A, Section 1.
5. TERMINATION
5.1 Termination by Notice. Notwithstanding the terms of Section 2
herein, Company shall have the right to terminate this Agreement at
any time subject to a prior thirty (30) days notice being sent to
and received by Contractor (the "Prior Notice").
5.2 Termination by Default. In the event of Default and failure to cure
as provided in Section 4, the non-defaulting party shall have the
right to terminate this Agreement upon notice. Any non-cured
termination under Section 4 shall be effective on the date in the
notice of Default.
5.3 Wind Down. In the event of any termination of this Agreement,
Contractor agrees to continue to provide Services to Company for a
reasonable period of up to ninety (90) days following termination to
accommodate Company's transition of minutes originating at its
Portal to an alternate vendor. Contractor further agrees to take
reasonable steps to ensure such transition minimally impacts any
Relay Users who use Company's Portal(s) in connection with the
Services. If termination is due to Company's Default with respect to
payments due to Contractor hereunder, Contractor's obligations under
this Section 5.3 shall be subject to Company paying all outstanding
undisputed amounts (net of any undisputed payments owed by
Contractor to Company) and pre-paying Contractor on a month-to-month
basis, based on an average of undisputed amounts due for the three
(3) months preceding termination
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5.4 Payment. In the event of any termination of this Agreement in
accordance with the terms hereof, Contractor shall retain
Consideration for Services rendered prior to the effective date of
termination, and Contractor shall remit to Company any Company
Consideration earned prior to the effective date of termination.
5.5 Remedies Not Exhaustive. Termination of this Agreement by a party
shall not deprive such party of any of its rights, remedies or
actions against the other party at law or in equity.
5.6 Return of Confidential Information. Within five (5) days of
termination of this Agreement, each party will return to the other
all confidential information of the other party disclosed for the
purposes of or pursuant to this Agreement.
6. CONFIDENTIAL INFORMATION
6.1 Non-Disclosure. As more specifically provided in that certain
Non-Disclosure Agreement executed by the parties on or about August
12, 2004 (the Non-Disclosure Agreement), each party agrees to
preserve in confidence and secrecy all confidential information of
the other party and will not use same for its own purposes except
for the sole purpose of fulfilling its obligations under this
Agreement and will not reveal the content or existence of such
confidential information to persons not authorized in writing by
such other party to receive the same and will take all reasonable
security precautions necessary to prevent unauthorized parties from
obtaining such confidential information. The recipient of the
confidential information agrees to use the same care and discretion
to avoid disclosure, publication or dissemination of confidential
information as it uses with its own similar information that it does
not wish to disclose, publish or disseminate, and in any event,
shall exercise a reasonable degree of care with respect to
confidential information provided by the other party. Contractor
shall exclusively use confidential information for the purposes of
providing the Services as provided for under this Agreement and
Company and its affiliates shall exclusively use confidential
information for the purposes of receiving the Services as provided
for under this Agreement.
6.2 Agreement. This Agreement shall be considered confidential
information for the purposes of this Section 6, except that this
Agreement can be disclosed i) to each party's bankers, directors,
officers, accountants, lawyers, financial analysts and other
advisors and consultants, subject to the confidentiality obligations
of this Agreement; ii) in confidence to a relevant regulatory agency
pursuant to an order or directive to such effect; and iii) for the
purpose of the Contractor's marketing and proposal efforts with
respect to other business opportunities, but limited only to
describing very generally the
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nature of the Services provided and identity of the Company,
subject to Company's prior written approval with respect to
each written or electronically transmitted or posted version
of such information.
6.3 Return of Confidential Information. The receiving party agrees to
promptly return to the disclosing party, upon its request, or
certify as destroyed all confidential information of the disclosing
party in whatever form, including all electronic and magnetic copies
and notes thereof, regardless of whether such confidential
information was made or compiled by the receiving party or furnished
by the disclosing party.
7. INTELLECTUAL PROPERTY. Except as otherwise provided herein, neither party
shall be deemed to have granted to the other party, expressly or
implicitly, any other license or right under any trademark, patent,
copyright or other intellectual property right owned or controlled by the
other party. It is also further acknowledged that any intellectual
property developed by either party with respect to this agreement and the
services provided shall be the sole and exclusive property of the party
that developed the intellectual property.
8. PUBLICITY. Company and Contractor may publicize aspects of the
relationship established by this Agreement and/or each party's role in the
delivery of the Services. The parties agree to discuss said publicity in
advance and provide appropriate assistance, including an executive quote
and/or company background for a news release. Inclusion of the quote
and/or background in any news release is subject to approval of the
non-issuing party.
9. USE OF CONTRACTOR BRAND. Subject to Contractor's prior written approval,
not to be unreasonably withheld, conditioned or delayed, Company shall
have the right but not the obligation to use the phrase "powered by
Nordia", including their name/logo, in connection with Company's offerings
related to the Services.
10. ASSIGNMENT / SUBCONTRACTING. Neither party shall assign or subcontract any
or all of its material obligations herein, including the provision of the
services, to any third party except with the prior written consent of the
other party, which consent may not be unreasonably withheld. Contractor
shall however be entitled to assign or subcontract this agreement or the
services to a fully qualified party affiliated with Contractor, in which
case, the consent of
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Company will not be required, the Contractor agreeing to provide notice of
such assignment or subcontract.
11. RELATIONSHIP / INDEPENDENT CONTRACTOR. Nothing in this agreement shall be
construed as establishing a partnership, joint venture or
employer-employee or principal and agent relationship between contractor
and company. Each party hereto is independent and may not, at any time or
in any manner whatsoever bind or oblige the other except as may be
expressly provided for in this agreement.
12. FORCE MAJEURE. Contractor shall not be liable or deemed to be in default
for any delay or failure in performance under this agreement or the
exhibits hereto to the extent such delay or failure is directly caused by
fire, flood, explosion, war, embargo, government requirement, civil or
military authority, act of god, labor disruption, regulatory or
legislative intervention or other similar causes beyond its control and
anticipation or foreseeability and without any fault or negligence or the
delayed or non-performing party. In any such event, the contractor will be
excused from the performance of such obligation affected by such event for
so long as such circumstances prevail, provided that the contractor uses
and continues to use best efforts to utilize alternative resources to
recommence and/or maintain performance without further delay.
13. INDEMNITY. Each party (the `indemnifier') shall at all times defend,
indemnify and hold harmless, both before the expiration or termination of
this agreement and thereafter, the other party together with that other
party's respective officers, directors, servants, agents, subcontractors
and employees (together the `indemnified parties') from and against any
allegations, claims, actions, proceedings, judgments and liabilities,
losses, damages, costs and expenses, including reasonable legal fees and
expenses (collectively `claims') incurred by or rendered against any or
all of the indemnified parties by reason of this agreement or any breach
by the indemnifier or its agent(s) and subcontractor(s) of any of their
covenants, representations, warranties or obligations under this agreement
except to the extent of any grossly negligent act or omission or willful
misconduct by any indemnified parties. In additions to the foregoing, the
aforesaid indemnity, as excepted, shall also apply to any claim on account
of damage to property and injuries, including death, to all persons,
arising from any occurrence caused by any negligent act or omission or
willful misconduct of, or breach of any obligation, law or regulation by
the indemnifier, or its agent(s) and subcontractor(s) thereof related to
the performance of this agreement. The aforesaid indemnity, as excepted,
shall also apply to any claim on account of any unauthorized disclosure or
use of confidential information by
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the indemnifier or any agent or subcontractor of either of them or any
employee or other representative of any of them.
14. LIMITATION OF LIABILITY. Both parties agree that their total cumulative
liability, if any, to the other party or any third party for damages
related to this agreement, for any cause whatsoever, including damages
arising directly or indirectly from a breach of this agreement (including
a fundamental breach or otherwise), negligence, any act or omission of
either party or its representatives, or under any other theory of law or
equity will be limited to those damages actually proven as directly
attributable to the other party. Notwithstanding anything to the contrary
in this agreement, under no circumstances shall either party be liable to
the other party or any third party for any indirect, special,
consequential, incidental, economic or punitive damages, including,
without limitation, loss of data, loss of income, loss of profit or
failure to realize expected savings arising directly or indirectly from
breach of contract (including fundamental breach or otherwise),
negligence, any act or omission of either party or its representatives, or
under any other theory of law or equity, even if the aggrieved party had
been advised of, had acknowledge of, or reasonably could have foreseen,
the possibility of such damages.
15. MISCELLANEOUS
15.1 Amendments. This Agreement shall not be amended except by written
instrument signed by the parties hereto.
15.2 Waiver. No indulgence or forbearance by any party hereunder shall be
deemed to constitute a waiver of its right to insist on performance
in full and in a timely manner of all terms, covenants or conditions
of each of the other parties hereunder and any such waiver, in order
to be binding upon a party, must be express and in writing and
signed by such party and then such waiver shall be effective only in
the specific instance and for the purpose for which it was given.
15.3 Severability. If any of the provisions of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall
not invalidate or render unenforceable this entire Agreement, but
rather such provision shall be modified or severed (as the case may
be) so as to maintain to the maximum extent possible the benefits of
the parties hereunder and the remaining provisions of this Agreement
shall be unaffected thereby.
15.4 Choice of Law and Choice of Forum. The construction, interpretation
and performance of this Agreement and all transactions under it
shall be governed by the laws of the Province of Quebec and the laws
of Canada
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applicable therein. For the purposes of this Agreement, Contractor
and Company each submits to the exclusive jurisdiction of the courts
of the Province of Quebec, judicial district of Montreal, in respect
of all matters arising in relation to this Agreement.
15.5 Entire Agreement. This Agreement, including all Exhibits attached
hereto, incorporated in this Agreement by reference and deemed to be
an integral part hereof, as the same are in effect from time to
time, and the Non-Disclosure Agreement, constitute the entire
agreement between Contractor and Company with respect to the subject
matter hereof. Other than as expressly provided herein, both
Contractor and Company agree that no prior or contemporaneous oral
representations form any part of this Agreement. Additional or
different terms inserted in this Agreement by a party, or deletions
thereto, whether by alterations, addenda, or otherwise, shall be of
no force and effect, unless expressly consented to by the other
party in writing.
15.6 Currency. Except as otherwise noted, all references to currency are
deemed to mean US dollars.
15.7 Notices. Any notice, demand or other communication which under the
terms of this Agreement or under any statute must or may be given or
made by Contractor or Company shall be in writing and shall be given
or made, all in readable form to the recipient, by hand delivery,
confirmed facsimile, or by overnight courier addressed to the
respective parties as follows:
If to Contractor, to:
Nordia Inc.
3100, Cote Vertu Blvd.
Suite 510
St-Laurent (Quebec)
H4R 2J8
Attention: President
Phone:
Fax:
If to Company, to:
GoAmerica Communications Corp.
433 Hackensack Avenue
Hackensack, New Jersey USA 07601
Attention: CEO (with a copy to General Counsel
similarly addressed)
Phone:
Fax:
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Such notice, demand or communication shall be deemed to have been
given or made when delivered in person or when received by confirmed
facsimile, or other similar communication, or overnight courier, as
the case may be. Any notice, demand or communication to a person
other than the persons set forth in this Section shall be null and
void and shall not be considered sufficient notice to bind the
receiving party. The above addresses may be changed at any time by
giving prior written notice as above provided. Any attempt to avoid
receipt of notice shall be deemed as proper notice having been
given. Any facsimile or other electronic communication transmitted
other than during the recipient's regular business hours shall be
deemed received on the recipient's first business day thereafter.
15.8 Further Assurances. The parties shall with reasonable diligence hold
all meetings, perform all acts, execute and deliver all documents
and instruments, do all things and provide all such further
reasonable assurance as may be reasonably necessary or desirable to
give effect to the provisions of this Agreement.
15.9 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which
together, shall constitute one and the same Agreement.
15.10 Language. The parties confirm that they have agreed that this
Agreement and all documents relating thereto be drafted in English.
Les parties confirment qu'elles ont accepte que la presente
convention de meme que tous les documents s'y rattachant soient
rediges en anglais.
SIGNED AT MONTREAL, ON JANUARY 26, 2005.
NORDIA INC. GOAMERICA COMMUNICATIONS CORP.
Per: _____________________ Per: _____________
Paulette Beaudry-Klug Dan Luis, CEO
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AMENDMENT TO SERVICES AGREEMENT
This Amendment (this "Amendment") is entered into as of February 1, 2006, (the
"Effective Date") by and between GoAmerica Communications Corp. ("GoAmerica"),
with its principal place of business at 433 Hackensack Avenue, Hackensack, New
Jersey, USA 07601, and Nordia Inc. ("Nordia") with its principal place of
business at 3100 Cote-Vertu Boulevard, Suite 510, St-Laurent (Quebec) Canada H4R
2J8, collectively the "Parties".
DEFINITIONS
All terms capitalized in the Agreement shall retain their same meaning herein.
In the event of a conflict between the Services Agreement between the Parties,
dated January 1, 2005 (the "Services Agreement") and this Amendment, this
Amendment shall govern.
AMENDMENT
Whereas the Parties have chosen to amend certain aspects of the Services
Agreement (as amended, the "Agreement"), the Parties agree as follows:
1. Term and Termination of agreement.
a. Term: The term of the Agreement shall continue through
the second anniversary of the Effective Date. During
2006, Nordia will be the sole supplier of the Services
and GoAmerica will not provide competing service to
Nordia in house unless the Agreement is terminated due
to a Default as provided in Section 5.2 of the Services
Agreement. In the event that the Agreement is not
terminated (by either party in accordance to its terms),
prior to 60 days in advance of the current term, the
Agreement will automatically renew for an additional
year.
b. Termination: Any termination of the Agreement should be
as in Section 5 of the Services Agreement except either
party may terminate upon thirty (30) days notice to the
other in the event that the service is not financially
viable to the terminating party. Except as outlined in
sections 5.1 and 5.2 of the Services Agreement and this
Section 1 and providing that the SLA (Service Level
Agreement) contemplated in Section 8 below is reasonably
met,. GoAmerica agrees that it will not terminate the
Agreement prior to the first (1st) of February 2007.
2. Submission of Conversation Minutes to NECA. Exhibit A, Section 2.5
of the Services Agreement is hereby replaced entirely with Section 2
of this Amendment.
a. Conversation Minutes. Conversation Minutes shall be
defined as minutes
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originating at GoAmerica's Portal and processed through
the IRP, exclusive of time spent: (i) in queue (call is
ringing, waiting for a live answer); (ii) by Nordia
setting up inbound or outbound calls, (iii) by Nordia
wrapping up calls, (iv) by Nordia explaining relay or
relay procedures, or (v) on calls that reach numbers
that are busy, receive no answer, or receive intercept
messages for the called number.
b. GoAmerica Submission. Upon GoAmerica attaining requisite
certification, GoAmerica will submit Conversation
Minutes to the National Exchange Carrier Association
("NECA") each month (each a "GoAmerica Submission") with
a copy to Nordia.
c. Nordia Submission. Until GoAmerica attains this
certification, Nordia will submit Conversation Minutes
to NECA on GoAmerica's behalf each month (each a "Nordia
Submission"), with a copy to GoAmerica.
3. Wind Down. The wind down period in Section 5.3 of the Services
Agreement shall be revised to be up to one hundred twenty (120) days
and shall be in addition to any notice period immediately preceding
termination.
4. Development Costs. The Parties understand that certain costs are
associated with the development of Other Relay Types as defined in
Exhibit A, Section 3 in the Services Agreement (as agreed pursuant
to Section 7 of this Amendment, the "Development Costs"). Subject to
the Service Credits and Compliance Penalties to be agreed to in the
Service Level Agreement contemplated in Section 8 of this Amendment,
Development Costs incurred after the Effective Date shall be divided
and paid for by the Parties proportionally, according to each
Party's share of the NECA reimbursement, as outlined in Section 5 of
this Amendment Costs associated with modifying and/or expanding the
content or frequency of management and call traffic reports, as
discussed in Exhibit A, Section 4 of the Services Agreement, shall
not be considered Development Costs and shall be borne entirely by
Nordia.
5. Consideration and Payment Terms. Exhibit B, Sections 1 and 2 of the
Services Agreement is hereby replaced with the following terms:
a. Consideration. Subject to Section 5.d of this Amendment,
in consideration of the Services provided by Nordia,
Nordia shall be compensated monthly from reimbursements
received for the Conversation Minutes submitted to NECA,
whether a GoAmerica Submission or a Nordia Submission as
defined above. This compensation will adjust monthly,
relative to the total number of Conversation Minutes
submitted in any given month, in the amounts outlined in
the consideration table in Section 5.b of this
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Amendment (the "Consideration"),(1) which shall be
reviewed and adjusted each time there is a change in
NECA reimbursement rates. Any adjustment is to be
mutually agreed upon by the Parties. The Parties
acknowledge that, based on prior years, NECA
reimbursement rates are likely to decrease as of July 1,
2006 and July 1, 2007.
b. Consideration Table.
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Total Conversation Minutes Total Consideration
Submitted in a Month (U. S. Dollars per
Conversation Minute)
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c. Payment Terms.
i. In the event of a GoAmerica Submission, Nordia
will invoice GoAmerica for the Consideration each
month. The Consideration is to be paid to Nordia
by GoAmerica no more than five (5) days after the
date GoAmerica receives the reimbursement from
NECA.
ii. In the event of a Nordia Submission, GoAmerica
will invoice Nordia each month for the difference
between the NECA reimbursement it receives and the
Consideration. This amount is to be paid to
GoAmerica by Nordia no more than five (5) days
after the date Nordia receives the reimbursement
from NECA.
d. Consideration Adjustments.
i. Foreign Exchange Rate. The Consideration assumes
the Foreign Exchange rate between the U.S. dollar
and the Canadian Dollar remains within a range of
CDN$ to CDN$. In the event the average Foreign
Exchange rate of any given month falls outside of
this range, the Consideration will be prorated
based on an exchange rate of CDN$ for that same
month.
e. Performance Discounts. Notwithstanding any other
change(s) to the Consideration during the term of the
Agreement, the Parties agree to negotiate discounts that
shall reduce the Consideration based on the number of
Conversation Minutes generated by GoAmerica's Portal
(each a "Performance Discount"). Negotiations shall
begin at and be effective as of the first point
GoAmerica generates one million (1,000,000) Conversation
Minutes in any given month through its Portal.
Regardless, starting with the sixtieth (60th) day before
the first (1st) anniversary of the
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(1) For example, if 405,000 minutes were submitted to NECA in a given month,
the total Consideration to be paid to Nordia that month would be equal to
405,000 X US$0.9725, or US$393,862.50. Likewise, if the total number of
minutes submitted to NECA in a given month was 695,000, the total
Consideration to be paid to Nordia that month would be equal to 695,000 X
US$0.8775, or US$609,862.50.
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Effective Date, the parties agree to review pricing for
2007. Pricing, up or down, will not change without
agreement by both parties.
6. Marketing Development Funds. Nordia will help Go America defray a
portion of the costs associated with increasing the number of
Conversation Minutes through GoAmerica's Portal by providing
GoAmerica with certain marketing development funds throughout the
term of the Agreement unless and until a party provides proper
notice of termination pursuant to the Agreement. Nordia will pay Go
America US Dollars, not to exceed a certain Canadian to US Dollar
exchange rate, for each three month period starting with the
Effective Date. Payments will be made on a monthly basis for every
three month term where each payment will be of US Dollars and will
be paid every 15Th day of the month. In order to trigger these
payments, GoAmerica must supply Nordia with the Marketing
Development Plan that shows a minimum of US Dollars will be spent
for that same three month period. Marketing Development Plan will be
supplied to Nordia by Go America no later than five (5) days after
the 1st day of each three month period. In the event that the
Marketing Development Plan is received by Nordia later than the
fifth day of any three month period, payment will be made 30 days
following receipt of the plan.
7. Product Development Requirements. Nordia acknowledges that
GoAmerica's reputation and its Portal brand are adversely impacted
by delays in the availability of agreed upon enhancements to the
Portal ("Product Development Delays"). Therefore, for each product
development project initiated by GoAmerica, Nordia and GoAmerica
will execute a Product Development Agreement (a "PDA") in advance of
beginning a project and within a time period mutually agreed upon by
the Parties. Each PDA will outline: (i) product specifications; (ii)
project milestones; (iii) project timelines and deliverables; (iv)
intellectual property arrangements; (v) total costs associated in
completing the project; and (vi) penalties associated with missing
milestones and/or timelines and/or other Product Development Delays.
8. Service Level Agreement and Forecasts. The Parties agree to
establish a Service Level Agreement and forecast provisions no later
than April 14, 2006, which shall also be deemed effective as of the
Effective Date.
Nordia Inc. GoAmerica Communications Corp.
________________________ ______________________________
Bernard Durocher, EVP Joe Karp, VP Marketing
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