Exhibit 10.2
EXECUTION COPY
TABLE OF CONTENTS
Page
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1. DEFINITIONS..............................................................1
2. DESCRIPTION OF SERVICES..................................................6
3. OTHER STELLAR OBLIGATIONS................................................7
4. GOAMERICA OBLIGATIONS....................................................9
5. FORECASTING.............................................................11
6. REPRESENTATIONS AND WARRANTIES..........................................12
7. COMPENSATION TO STELLAR.................................................13
8. RELATIONSHIP OF PARTIES.................................................15
9. TERM AND TERMINATION....................................................16
10. EFFECTIVE DATE; CONDITIONS TO EFFECTIVE DATE.........................18
11. INTELLECTUAL PROPERTY................................................19
12. CONFIDENTIALITY/PROPRIETARY INFORMATION..............................20
13. INSURANCE............................................................21
14. INDEMNITY/LIMITATION OF LIABILITY....................................22
15. INTELLECTUAL PROPERTY/USE OF MARKS...................................23
16. PUBLICITY............................................................23
17. DISPUTE RESOLUTION...................................................23
18. ATTORNEYS FEES.......................................................24
19. FORCE MAJEURE........................................................24
20. ASSIGNMENT...........................................................25
21. SEVERABILITY.........................................................25
22. NO CONSEQUENTIAL OR SPECIAL DAMAGES..................................25
23. WAIVER...............................................................26
24. NO THIRD PARTY BENEFICIARIES.........................................26
25. SPECIFIC PERFORMANCE.................................................26
26. AUTHORIZED REPRESENTATIVES...........................................26
27. NOTICES..............................................................26
28. COMPLIANCE WITH LAWS.................................................27
29. GOVERNING LAW........................................................27
30. ENTIRE AGREEMENT.....................................................27
31. CAPTIONS.............................................................27
32. GENERAL SURVIVAL PROVISION...........................................27
MANAGED SERVICES AGREEMENT
THIS AGREEMENT is entered into on August 1, 2007 by and between:
Acquisition 1 Corp. ("GoAmerica"), a wholly-owned subsidiary of GoAmerica,
Inc. and a Delaware corporation, with offices located at 433 Hackensack Avenue,
Hackensack, New Jersey 07601, and
STELLAR NORDIA SERVICES LLC ("Stellar"), a Nevada corporation, with its
principal office located at 130 East John Carpenter Freeway, Irving, TX 75062;
collectively referred to as the "Parties" individually, a "Party."
WHEREAS, Stellar is a multi-contact customer relationship management
solutions company;
WHEREAS, GoAmerica is a telecommunications company and offers its
customers a variety of telecommunications relay services;
WHEREAS, GoAmerica desires to have Stellar act, and Stellar desires to
act, at and after the Effective Date as an independent contractor, to provide
certain telecommunication relay services (TRS) as more particularly described
herein;
WHEREAS, as a condition to Stellar's execution of this Agreement,
GoAmerica, Inc., the parent corporation of Acquisition 1 Corp., is executing a
guarantee in favor of Stellar in the form attached hereto as Exhibit E to this
Agreement (the "GoAmerica Guarantee"); and
WHEREAS, an affiliate of Stellar ("Nordia Inc.") currently provides
certain similar TRS to GoAmerica pursuant to that certain Services Agreement
between such parties, commencing January 1, 2005 (as amended, the "Predecessor
Agreement").
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, GoAmerica and Stellar intending to
be legally bound agree as follows:
1. DEFINITIONS.
All defined terms shall have the meanings as set forth in Section 1 below:
"Agreement" means this Managed Services Agreement between GoAmerica and
Stellar, together with all exhibits, schedules, statements of work and other
attachments hereto, all as such may be amended, restated or supplemented from
time to time as stated herein.
"Acquisition" shall refer to the acquisition of the Relay Services
business of MCI pursuant to, and the closing of the other transactions
contemplated in, the Acquisition Agreement.
"Acquisition Agreement" means the Asset Purchase Agreement entered into on
even date herewith, by and between MCI COMMUNICATIONS SERVICES INC. ("MCI") and
GoAmerica (or its affiliate), including all related schedules, exhibits and side
letters relating thereto, as any of them may be amended from time to time.
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"Authorized Representative" means a representative to facilitate
communications and performance, and to execute Change Control Procedures under
this Agreement, selected by each Party.
"Base Volume" has the meaning given to such term in Section 4.6.
"Business Day" means any day in which banks in both New York, New York and
Quebec, Canada are open for business.
"CRS" means California Relay Service, as provided for in the California
Public Utilities Code ss.2881 and administered by the California Public
Utilities Commission (PUC), with the advice of the Telecommunications for the
Deaf and Disabled Administrative Committee (TADDAC).
"Call Center" means Stellar Locations where Stellar Services are provided
to or on behalf of GoAmerica.
"CAs" or Communication Assistants, means Stellar Personnel tasked with
providing that portion of the Stellar Services relating to answering and
facilitating relay calls presented to the Stellar Platform.
"Change" means any non-material variation or modification to the GoAmerica
Service requirements (or any part thereof) or as otherwise expressly provided in
this Agreement that is subject to the Change Control Process.
"Change Control Process" means the procedures referred to in Section 2.3
and as set forth in Exhibit D, as they may be amended, modified or supplemented
from time to time hereunder.
"Community Intellectual Property" has the meaning given to such term in
Section 11.3 hereof.
"Conversation Minutes" mean TRS minutes which are eligible for
reimbursement pursuant to the policies and rules of either (a) the FCC and
National Exchange Carrier Administration (NECA); or (b) a state.
"Customer Complaints" means complaints received by either Party from Relay
Users.
"DC" means the District of Columbia.
"Documentation" means (unless otherwise specified), when relating to
Source Code, without limitation, annotations, flow charts, schematics,
statements of principles of operations, software summaries, software design,
program logic, program listings, functional specifications, logical models and
architecture standards, describing the data flows, data structures, and control
logic of the software, irrespective of the form in which the foregoing exists.
"Downtime" is the time in which a Relay User is unable to reach a CA or
obtain functional TRS due to an outage or fault at the Stellar or GoAmerica
Platform.
"Downtime Notification" is the notification of designated GoAmerica or
Stellar personnel of any Situation, according to the applicable Escalation
Procedure defined in Exhibit C and/or the applicable Statement of Work.
"Effective Date" has the meaning given to such term in Section 10.1
hereof.
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"FCC" means the Federal Communications Commission.
"GoAmerica Affiliate" means a wholly owned subsidiary of GoAmerica or its
immediate parent company.
"GoAmerica Competitor" means any communications provider that, directly or
indirectly, offers text or video -based forms of telecommunications relay
services to current or potential users of Relay Services within the U.S.
"GoAmerica Licensed Software" means any and all software owned by or
licensed to GoAmerica by a party other than Stellar, and to which GoAmerica may
provide Stellar access in accordance with this Agreement.
"GoAmerica Platform" means GoAmerica's technology platform which processes
relay calls initiated by a Relay Users utilizing any of the features provided by
the Stellar Platform pursuant to this Agreement.
"GoAmerica Proprietary Software" means any and all Software, whether
operating systems software or application software, owned by GoAmerica, and to
which GoAmerica may provide Stellar access in accordance with this Agreement.
"GoAmerica Proprietary Software Enhancements" means any enhancements,
improvements, modifications, and/or derivative works of the GoAmerica
Proprietary Software. For clarification purposes, the Stellar Platform, and
enhancements, improvements, modifications, and/or derivative works of the
Stellar Platform or the Stellar Proprietary Software, including any interfaces
developed under this Agreement, shall not be considered GoAmerica Proprietary
Software Enhancements.
"GoAmerica Services" mean all forms of Relay Services offered by GoAmerica
to any Relay User and directed to Stellar for servicing hereunder, including,
but not limited to TRS, State TRS, Internet-based services, voice-initiated
calling services, as well as any other such telecommunications-related services
to Relay Users that the Parties may mutually agree upon in writing, including
but not limited to Other Relay Types.
"Initial Term" has the meaning given to such term in Section 9.1.
"Intellectual Property" means all intellectual, moral, industrial or
proprietary rights recognized under applicable Laws anywhere in the world,
whether issued or pending, registered or unregistered, including all forms of
copyrights or other rights in computer programs, documentation and databases,
whether published or unpublished; patents (including any continuations,
divisionals, continuations-in-part, renewals, reissues, and applications for any
of the foregoing); trademarks and service marks; rights in trade secrets,
know-how or other Confidential Information, and all embodiments thereof,
including any applications for registration therefore.
"Laws" mean all laws, statutes, codes, rules, regulations and ordinances,
including but not limited to, local license or permit requirements and all
foreign, federal, state, county and local government agencies and authorities
that are applicable to the GoAmerica Services or the Stellar Services.
"Losses" means revenues attributable to the Stellar Services less the
following costs directly attributable to or appropriately assigned to the
Stellar Services: costs related to agents and supervision costs; operating costs
including, but not limited to, administrative salaries, occupancy costs and
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telecommunication costs; corporate, general and administrative expenses;
amortization and depreciation of assets and/ or start up fees.
"NECA" means the National Exchange Carrier Administration.
"Object Code" shall mean software assembled or compiled in magnetic or
electronic binary form on software media which is readable and usable by
machines but not generally readable by humans without reverse assembly, reverse
compiling, or reverse engineering.
"Other Party" means a GoAmerica Competitor or another entity or person
with materially adverse interests to GoAmerica.
"Other Relay Types" means a future Relay Service not currently provided by
the Parties.
"PDA" means a Product Development Agreement.
"Performance Standards" means the standards as described in Exhibit C
and/or any other applicable Statement of Work..
"Predecessor Agreement" means the Services Agreement, as amended, between
GoAmerica and, Nordia Inc. an affiliate of Stellar, commencing January 2, 2005.
"Pre-Existing Intellectual Property" means all Intellectual Property (A)
owned or licensed by a Party, the rights to, or ownership of which either (i)
pre-dates the Effective Date, or (ii) arises exclusively as a result of, or is
derived from, independent development by such Party and not as a result of the
performance of this Agreement or of such Party's exposure to any Confidential
Information or other Intellectual Property of the other Party; or (B) is
expressly classified as "Pre-Existing Intellectual Property" under the terms of
this Agreement.
"Product Development Agreement" means any new GoAmerica Service that
requires technology development by Stellar as described in Exhibit C.
"Queue" means a holding place for calls until a CA becomes available to
handle a new call.
"Relay Service" means the service of relaying information via any
telecommunications medium, including without limitation automated and/or human
involvement, to assist hearing impaired persons to communicate with hearing
persons.
"Relay User" means an end user or customer of the GoAmerica Services.
"Resolution" means a corrected Situation resulting in fully restored
Service.
"Scheduled Maintenance" means any planned activity for system maintenance
that results in a short period of Downtime agreed to in advance by both Parties,
and which shall not occur more frequently than reasonably necessary.
"Service Credit" means credit issued by either Party if it fails to meet,
at a minimum, any of the Support Level Metrics, according to the Service Credit
Schedule in Exhibit C and/or an applicable Statement of Work.
"Services" mean the Stellar Services and the GoAmerica Services.
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"Session Minutes" means Conversation Minutes plus the additional Queue
and/or Call Set Up minutes for TRS, all as defined by the policies and rules of
(a) the FCC and the NECA; or (b) a state.
"Situation" means equipment, personnel, software or service connection
failure, whether by Stellar, its contractor and/or supplier, which results in
Downtime.
"Software" means instructions for a computer or other equipment, whether
in the form of Source Code, Object Code, executable code, firmware or otherwise
and whether tangible or intangible and includes any updates or modifications
made by or at the instruction of the owner thereof. Unless otherwise specified
in this Agreement, access to Software refers to the Object Code version only.
"Source Code" means the underlying instructions for a computer written in
programming languages, including all embedded comments, as well as procedural
code such as job control language statements, in a form readable by human beings
when displayed on a monitor or printed on paper, etc. and that shall be
translated (using off-the-shelf commercially available software compilers,
linkers and assemblers or other items delivered to or reasonably available to
Licensee, including documentation) into a form that is directly executable by a
computer by a process generally known as compiling or assembly, along with any
related Documentation. "Status Update" is a summary of steps taken and to be
taken to resolve a Situation and an estimate of remaining time to Resolution
when such an estimate can be reasonably given.
"State TRS" refers to individual state (including District of Columbia)
sponsored telecommunication relay services.
"Stellar Affiliate" means an entity owned by or under common control with
Stellar or Stellar's immediate parent company.
"Stellar Competitor" means "Stellar Licensed Software" means any and all
software owned by or licensed to Stellar by a party other than Go America, and
to which Stellar may provide GoAmerica access in accordance with this Agreement.
"Stellar Locations" means the locations identified in Exhibit A where
Stellar Services are provided by Stellar in conjunction with GoAmerica Services
after the Effective Date, including any location where Stellar may assume a
lease of MCI upon the closing of the Acquisition Agreement.
"Stellar Personnel" means any and all employees, agents, and independent
contractors, and any other person directly or indirectly retained by Stellar to
perform under this Agreement.
"Stellar Platform" means the proprietary Stellar Relay Service platform,
also known as the Multimedia Relay Communications Center (MMRC), which enables
people to communicate with each other in a real time in a text-based
environment.
"Stellar Proprietary Software" means any and all Software and any and all
enhancements improvements, modifications, and/or derivative works thereto,
whether operating systems software or application software, owned by Stellar,
and to which Stellar may provide GoAmerica certain access in accordance with
this Agreement including the Stellar Platform, and any and all enhancements,
improvements, modifications, and/or derivative works thereto.
"Stellar Services" mean the Relay Services provided by Stellar under this
Agreement, to support the Relay Services offered by GoAmerica and routed to
Stellar via the GoAmerica Platform.
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"Subject State TRS" refers to the state TRS contracts for California, DC
and Tennessee, collectively.
"Support Contact" means contact person to interface with for support
issues brought directly to the attention of GoAmerica by Relay Users and/or
issues which GoAmerica or Stellar becomes aware of directly or indirectly
through monitoring the Portal, traffic, usage or other aspects of the Services.
"Support Level Metrics" mean obligations by both Parties to meet certain
Performance Standards as Specified in Exhibit C and/or applicable Statement(s)
of Work.
"Telecommunications Relay Services" (TRS) or "Relay Services" mean
services provided by specially-trained persons to relay telephone conversations
between people who are deaf, hard of hearing, or speech-disabled and all those
they wish to communicate with by telephone including, but not by way of
limitation, Internet Protocol (IP) based relay services and all relay services
covered by the Subject State TRS contracts.
"Tennessee Relay Service" or "Tennessee TRS" means Tennessee State TRS
relay services, as provided in the Rules of Tennessee Regulatory Authority,
Chapter 1220-4-8 (Regulations for Local Telecommunications Providers).
"Transition Fee" has the meaning given to such term in Section 7.7.1.
"Transition Services Agreement" means the Transition Services Agreement
entered into on even date herewith, by and between MCI (d/b/a Verizon Business
Services) and GoAmerica (or its affiliates), including all related schedules,
exhibits and side letters relating thereto, as any of them may be amended from
time to time.
"TRS Rules" means TRS policies and rules adopted by the FCC and the
states, including, but not by way of limitation, the rules encoded at Title 47,
Code of Federal Regulations, ss.64.601 - 64.605.
"VIC Numbers" mean phone numbers acquired by Stellar on GoAmerica's behalf
for GoAmerica Services that enable voice-initiated telephone calls to be handled
through the GoAmerica Platform.
2. DESCRIPTION OF SERVICES.
2.1 General
2.1.1 During the term of this Agreement, Stellar shall provide the
Stellar Services to GoAmerica and/or Relay Users in performance and support of
the GoAmerica Services, pursuant to and in compliance with all FCC, NECA and
state rules, regulations, policies and other mandates relating to TRS as well as
in conformity with the express provisions of this Agreement.
2.1.2 Pursuant to the Change Control Procedures (Exhibit D)
additional GoAmerica Services may be added to this Agreement from time to time.
2.2 Stellar Platform
2.2.1 Stellar Platform Usage - Stellar shall supply GoAmerica with
access to the Stellar Platform, initially on a basis substantially consistent
with that provided under the Predecessor
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Agreement. The GoAmerica Platform shall interface with the Stellar Platform for
the purpose of the seamless relay communication for Relay Users.
2.2.2 Stellar Platform Hosting - Stellar shall be responsible for
operating, maintaining and upgrading regularly, as appropriate, the Stellar
Platform at its own expense. Stellar shall manage its TRS capacity and the
Stellar Platform to take into account the forecasts provided by GoAmerica
pursuant to Article 5.
2.2.3 Stellar Services Staffing - Portions of the Stellar Services
shall be performed by CAs who will facilitate relay conversations among Relay
Users consistent with Exhibit C. CAs shall provide branded handling of the
GoAmerica Services, using brands and messaging to be defined by GoAmerica in its
sole discretion. The initial training of Stellar Personnel (i.e., before the
Effective Date) and training of Stellar Personnel required in the ordinary
course of business shall be at Stellar's sole expense and shall be considered a
vital component of the Stellar Services. Any additional training requested by
GoAmerica or reasonably required, in Stellar's opinion, to support TRS provided
by Stellar due to any change in State TRS regulations, shall be subject to the
Change Control Process.
2.2.4 Customer Support - For the GoAmerica Services that are not
part of State TRS, Stellar shall provide second-level customer support to
GoAmerica, as promptly as practicable if there are no express service level
standards provided in the applicable provision(s) of this Agreement. For State
TRS, Stellar will provide first level (direct contact with the Relay Users)
Customer Support. Such customer support shall consist of expedient resolution of
Relay User questions and/or complaints, and proper documentation thereof
according to FCC requirements. Customer support shall be provided to Relay Users
24 hours-per-day, seven days-per-week or such lesser periods that an applicable
State TRS Contract expressly permits.
2.2.5 Submission of Conversation Minutes to GoAmerica - By the 10th
business day of each month, Stellar shall deliver to GoAmerica accurate reports
of daily Conversation and Session Minutes, broken out for each Stellar Location,
for the prior month in the format used under the Predecessor Agreement unless
the Parties agree otherwise. Said reports shall provide the basis for the
monthly payment reimbursement reports submitted by GoAmerica to NECA and/or
state TRS administrators for non-video relay services. Pursuant to Article 7,
GoAmerica shall provide Stellar with a copy of the relevant portions of any such
payment reimbursement reports that are based on the monthly reports delivered to
GoAmerica under this Article promptly after GoAmerica's submission thereof.
2.3 Change Control Process
In order to optimize the communication and implementation of non-ordinary
course changes and/or new service obligations, the Parties will use commercially
reasonable efforts to abide in good faith with the administrative procedures set
forth on Exhibit D hereto.
3. OTHER STELLAR OBLIGATIONS.
3.1 Quality Assurance Management.
To ensure quality control of the GoAmerica Services provided to Relay
Users, and to ensure that Stellar is meeting the Performance Standards,
GoAmerica reserves the right (either itself or through a contractor which shall
be identified to Stellar sufficiently in advance to allow Stellar to advise
GoAmerica of Stellar's reasonable objection to the use of such contractor, which
objection GoAmerica agrees to abide by), to remotely monitor, or monitor
on-site, the traffic of Relay users and other activities performed on
GoAmerica's behalf pursuant to this Agreement without prior notice to
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either Stellar or CAs or other Stellar Personnel. On-site monitoring by or on
behalf of GoAmerica is subject to no less than two business days advance written
notice. Any monitoring of TRS also is subject to prior notification to Relay
Users and/or the approval of all parties to the TRS session; monitoring shall
also be subject to compliance with applicable Laws.
3.2 Workforce and Product Reporting.
Stellar shall provide GoAmerica with daily, weekly and monthly performance
reports, covering the same metrics and in the same format as provided to
GoAmerica under Exhibit A, Paragraph 4 of the Predecessor Agreement except that
the reports shall also cover all the Subject State TRS programs. Reporting shall
be both on an aggregate basis and broken out by Stellar Location and subtotal by
GoAmerica Service entry point modality. For the avoidance of doubt regarding the
metrics covered by the Predecessor Agreement the reports shall be electronically
transmitted to GoAmerica and shall cover the following: (a) Session Minutes; (b)
Conversation Minutes; (c) customer complaints: total number and content of
complaints received by Stellar from Relay Users, and summarized handling and
resolution of customer complaints according to FCC and state regulations; (d)
call statistics: a summary of all call-related statistics and call handling
detail, including, but not limited to, total number of inbound and outbound
relay calls placed, call set up and wrap-up times, average length of call, calls
and minutes generated by time of day and date in fifteen- (15-) minute
increments; (e) compliance summary: a summary of Stellar's performance in
relation to the requirements established by the FCC and Subject State TRS
programs, as defined in Exhibit C, Section 1. Notwithstanding and in addition to
the foregoing, for each day that Stellar fails to meet any Service Level Metric
specified in Exhibit C, Section 2, Stellar shall provide GoAmerica with a
written detailed summary of all such failures within three (3) business days of
occurrence so that GoAmerica can maintain a contemporaneous log from which to
prepare its FCC compliance filings and so that GoAmerica is better prepared to
assist in timely mitigating any future failures.
3.3 Audits and Record Retention.
3.3.1 General Audit Rights. Stellar shall permit GoAmerica and/or
its agents or independent auditors, upon no less than ten (10) business days
prior written notice, to audit Stellar's books and records (including but not
limited to payroll tax records) pertaining to the Services provided in
connection with this Agreement (including all staffing records for the Stellar
Locations) and Stellar agrees to cooperate fully in the performance of each such
audit, provided that GoAmerica shall not conduct or cause to be conducted more
than two such audits during any twelve consecutive month period. Stellar shall
maintain its records in good condition and readily accessible for a minimum of
two (2) years after the date the records were created or last edited, whichever
is longer, and shall comply with all reasonable requests by GoAmerica to make
available books and records necessary or prudent for such audit.
3.3.2 Accounting Audit Requirements. In the event that GoAmerica's
independent auditor reasonably believes it necessary or prudent in order to
facilitate preparation of GoAmerica's annual and/or quarterly financial
statements, Stellar agrees to provide to GoAmerica on a regular basis, based on
the timing of preparation of Stellar's annual and quarterly financial
statements, a SAS 70 review under United States Generally Accepted Accounting
Principles (and, to the extent applicable and practicable, the relevant Canadian
equivalent) for the Services provided hereunder; provided that, GoAmerica may,
in its sole discretion, waive any such audit request or requirement. For any
such audit, GoAmerica agrees to reimburse Stellar the lesser of (i)
fifty-percent (50%) of any costs incurred by Stellar, including reasonable
management costs, in compliance with the provision of an SAS 70 (or the Canadian
equivalent) or (ii) seventy-five thousand dollars ($75,000).
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3.4 Monthly Performance Review.
Stellar shall meet with GoAmerica no less than on a monthly basis to
review operations performance. Such meetings shall be held at a time and
location to be determined by the Parties.
3.5 Communication.
Stellar Management shall maintain performance review communication, no
less than on a weekly basis, with GoAmerica management, and Stellar shall act
promptly to resolve contract performance issues upon specification by GoAmerica.
3.6 Ethics Obligations.
Stellar acknowledges that it has received and reviewed a copy of (1) the
GoAmerica Code of Business Ethics and Conduct, a copy of which is located at;
http://www.goamerica.com/company/ ethics_emp.php, (2) The National Association
of the Deaf and the Registry of Interpreters for the Deaf, Inc. Code of Ethics
(http://www.rid.org/ethics/code/index.cfm/AID/66); and (3) the FCC and State TRS
compliance requirements referred to in Exhibit C, Section 1.1., and Stellar
agrees to perform the Services in accordance with the principles set out
therein.
3.7 Permits, Fees and Notices.
Stellar shall, at its sole expense and obligation, obtain and pay for all
permits and approvals necessary or appropriate to perform all of its obligations
under this Agreement, including performance of the Services, in compliance with
applicable Laws, provided, however, that GoAmerica is solely responsible for
obtaining any federal or state authorizations, permits or approvals, required to
provide the TRS which is the subject of this Agreement.
3.8 Stellar's Legal Compliance.
Stellar shall comply with all applicable Laws, rules, regulations and
ordinances applicable to the Services provided to the Relay Users. Upon
execution of this Agreement GoAmerica shall supply Stellar with a copy of all
the Subject State TRS contracts and Stellar shall provide services to GoAmerica
in compliance with said contracts unless, it is commercially impractical to do
so in which case Stellar shall otherwise advise GoAmerica in writing at least
thirty (30) days before the Effective Date. Upon receipt of any such
notification, the Parties shall use best efforts promptly to resolve any
concerns which Stellar may have and, failing that, may invoke the Dispute
Resolution Provisions in Article 17 of this Agreement.
4. GOAMERICA OBLIGATIONS.
4.1 GOAMERICA PLATFORM.
GoAmerica shall be responsible to, provide, maintain and operate, directly
or indirectly, at its own expense, the GoAmerica Platform needed to develop and
manage the GoAmerica Services that shall interface with the Stellar Platform.
GoAmerica shall use its commercially reasonable best efforts to maintain all
aspects of the GoAmerica Platform within its control so that Stellar is able to
meet the performance standards set forth in Exhibit C.
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4.2 LEGAL COMPLIANCE.
GoAmerica shall comply with all applicable Laws, rules, regulations and
ordinances applicable to the GoAmerica Services and agrees to promptly deliver
to Stellar a copy of all governmental notices received by or on behalf of
GoAmerica in connection with the Services.
4.3 PERFORMANCE REVIEW AND MONITORING.
In connection with remote or on-site monitoring or audit by or on behalf
of GoAmerica, GoAmerica agrees to abide by Stellar's reasonable access,
identification, security, safety, conduct or similar policies that are not be
employed in bad faith to deny or delay access. During any meetings with Stellar
personnel, a Stellar management representative may be in attendance. GoAmerica
agrees to meet with Stellar as contemplated in Article 3.
4.4 COMPENSATION OF STELLAR.
GoAmerica shall compensate Stellar for its performance under this
Agreement in accordance with the provisions of Articles 4, 5, 7, 9 and Exhibit B
hereof, and any other applicable express provisions contained in any Statement
of Work. In addition, GoAmerica shall promptly provide Stellar electronic
notification of all reimbursement payments received from NECA or a Subject State
TRS program for said TRS, including the amount of the reimbursement.
4.5 FORECASTS AND PERFORMANCE STANDARDS.
GoAmerica, shall satisfy the forecasting obligation for the Stellar
Services as stated in Article 5. In addition, where applicable, GoAmerica shall
be held to the Performance Standards listed in Exhibit C or other express
provisions hereof.
4.6 MINIMUM ANNUAL TRAFFIC VOLUME.
4.6.1 In each full year (or portion thereof), starting on the first
day of the month that falls at least one hundred eighty (180) days after the
Effective Date, GoAmerica shall deliver to Stellar at least thirty-four (34)
million IP Relay Session Minutes, referred to herein as the "Base Volume." If
the actual volume of IP Relay Session Minutes is less than the Base Volume in a
given year then, in addition to any payment for Conversation or Session Minutes
otherwise due Stellar, GoAmerica shall pay Stellar a fee equal to $0.10
multiplied by the difference between the Base Volume and the actual volume of IP
Relay Session Minutes.
4.6.2 At the end of each year (or portion thereof), if GoAmerica has
delivered to Stellar less than thirty-four million (34,000,000) IP Relay Session
Minutes (or such other number as pro-rated for such portion of such year),
GoAmerica shall pay to Stellar the fee determined as set forth in Section 4.6.1
hereof; provided, however, that any payments owed by GoAmerica to Stellar under
Section 4.6.1 shall be decreased by any amounts paid by GoAmerica to Stellar
pursuant to Section 5.6 for such year (or portion thereof).
4.6.3 The provisions of Sections 4.6.1 and 4.6.2 shall only apply
during any year in which Stellar provides services to support GoAmerica
offerings under one or more Subject State TRS contracts for at least two hundred
and forty (240) days. If Service under the last Subject State TRS Contract is
ended before a full year has run, then the Base Volume shall be pro rated based
on the percentage of the full year during which service is provided by Stellar.
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4.7 OTHER GOAMERICA OBLIGATIONS
As promptly as practicable upon the closing of the Acquisition, GoAmerica
shall communicate the post-closing plans of GoAmerica to any existing employees
of the counterparty to the Acquisition Agreement to whom Stellar shall offer
employment under said Acquisition Agreement. Such communication shall be
provided to each such employee in writing and a draft of said writing shall be
delivered to Stellar at least ten (10) days in advance of the closing of the
Acquisition so that Stellar can provide GoAmerica with its written comments on
the draft. The communication shall, among other things, advise any such employee
that (1) GoAmerica and/or its contractors may outsource the support for all TRS
offerings currently provided by the counterparty and/or terminate the employment
of all existing employees; and (2) inform said employees of the employment
options being offered by GoAmerica and Stellar to said employees.
5. FORECASTING.
5.1 GoAmerica acknowledges that Stellar requires accurate forecasts from
GoAmerica to be able to meet the Performance Standards in Exhibit C. GoAmerica,
accordingly, shall provide Stellar with forecasts as set forth herein.
5.2 GoAmerica will provide Stellar with a 12-month forecast of the Session
Minutes expected in the forthcoming calendar year that is (January 1st to
December 31st) by October 1 of each year (the "12 Month Forecast"). For example,
for the avoidance of doubt, on the 1st October 2008 a 12-month forecast
commencing on January 1st 2009 will be received by Stellar. Each month of the
12-month forecast is the Monthly Session Minute Forecast.
5.3 On the first business day of each month, GoAmerica will provide
Stellar with a "Rolling Three Month Forecast" based on the Monthly Session
Minute Forecast. For the avoidance of doubt, on the 1st January 2009 a Rolling
Three Month Forecast will be received for the calendar months of February, March
and April 2009. Stellar will confirm receipt of this forecast within one (1)
business day. If Stellar is close to capacity (taking into account Section 5.5)
and, therefore, may not be able to meet the Three Month Rolling Forecast,
Stellar shall provide GoAmerica with written notice in connection with the
forecast confirmation process and the parties shall agree on a new Three Month
Rolling Forecast.
5.4 The first month of the Rolling Three Month Forecast is the "Locked
Session Minute Forecast" and upon submitting each Rolling Three Month Forecast,
GoAmerica shall confirm, in writing to Stellar, that the first month of said
forecast shall be treated as "locked" by Stellar. A "Locked Session Minute
Forecast" shall not be revised unless expressly agreed by the Parties. Stellar
will create "Daily Forecasts" (a breakdown of the Locked Session Minute Forecast
into the days of the month) and provide these forecasts to GoAmerica six (6)
business days after receipt of the Rolling Three Month Forecast from GoAmerica.
5.5 The Stellar Services will be planned to accommodate 110% of the daily
Locked Session Minute Forecast while still meeting the Performance Standards.
Stellar shall use reasonable commercial efforts to accommodate Session Minutes
in excess of 110% of the Locked Session Minutes, but shall not be subject to any
Service Credit for such days unless the Performance Standards in Exhibit C are
not met.
5.6 If the total actual Session Minutes received from GoAmerica during a
month are 15% or more below the Locked Session Minute Forecast, and Stellar has
met the Grade of Service requirements, Stellar has not experienced any
Stellar-controlled outages, and neither Stellar nor GoAmerica has experienced a
force majeure event (of the type described in Section 19.1), GoAmerica will pay
Stellar for 85% of the Conversion Minutes based on the Locked Session Minute
Forecast
11
using a conversation ratio of Conversation Minutes to Session Minutes derived
from the average ratio of Conversation to Session Minutes during the previous
three months.
5.7 The unlocked period (the last two (2) months of the Rolling Three
Month Forecast) is subject to change when the next Rolling Three Month Forecast
is sent. That is, GoAmerica may increase or decrease the previous 3-month
Forecast (now 2 months) by 10% and the previous 2-month Forecast (now the locked
month) by 5%. For the avoidance of doubt, the agreed increase or decrease in
forecast Session Minutes in the previous sentence is illustrated in Schedule 5.7
hereto.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Stellar and GoAmerica, each as to themselves, warrant that they are
corporations duly incorporated, validly existing and in good standing under the
Laws of their respective state of incorporation, duly qualified and in good
standing in all states and jurisdictions where the failure to be so qualified
and in good standing would have a material adverse affect on said corporation,
and have all requisite corporate power and authority to control, license, lease
and/or use all of their respective assets and properties and to conduct their
respective businesses as currently conducted and to enter into and perform fully
this Agreement.
6.2 Stellar represents and warrants that the Services it provides or
causes to be provided hereunder shall be performed in a professional manner in
accordance with applicable industry standards and shall comply in all material
respects with the Stellar warranties, specifications and other requirements set
forth in this Agreement. Further, Stellar represents and warrants that the
Services to be delivered or rendered by or on its behalf pursuant to this
Agreement shall be of the kind and quality necessary to perform fully the terms
and spirit of this Agreement, and all such Services shall be performed by
qualified persons.
6.3 Stellar warrants and represents that it is not currently bound by any
other agreements, restrictions or obligations, and Stellar agrees not to assume
any such obligations or restrictions that do or would in any way interfere with
the Services to be furnished by Stellar to GoAmerica under this Agreement.
6.4 GoAmerica warrants and represents that it is not currently bound by
any other agreements, restrictions or obligations, and GoAmerica agrees not to
assume any such obligations or restrictions, which do or would in any way
interfere with GoAmerica's obligations to Stellar under this Agreement.
6.5 The execution, delivery and performance by each Party of this
Agreement and the consummation of the transaction contemplated hereby have been
duly and validly authorized by all necessary corporate action, as applicable, on
the part of each of the Parties. This Agreement has been, when executed and
delivered as contemplated by this Agreement, will be duly and validly executed
and delivered by each Party, and when delivered, will constitute legal, valid
and binding obligation of each Party.
6.6 GoAmerica warrants and represents that the GoAmerica Proprietary
Software used in the GoAmerica Services does not infringe upon the proprietary
rights of any third party. Stellar warrants and represents that the Services or
other materials provided by Stellar in the Stellar Services or Stellar Platform
does not infringe upon the proprietary rights of any third party.
6.7 As of the date of this Agreement, there are no suits, actions,
proceedings and litigation pending, and, to the knowledge of each party, as of
the date of this agreement, there are no investigations pending or threatened
against any of the Parties, which question the legality or propriety of this
Agreement, or any of the transactions contemplated thereby.
12
6.8 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE NO
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, TO THE OTHER PARTY OR ITS
AFFILIATES AS TO EITHER PARTY'S PROPRIETARY SOFTWARE OR ANY OTHER SOFTWARE USED
IN SUCH PARTY'S PERFORMANCE OF THIS AGREEMENT AND ALL OTHER WARRANTIES WITH
RESPECT TO ANY SUCH SOFTWARE, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED AND
EXCLUDED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
6.9 THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE THE ONLY WARRANTIES
MADE BY THE PARTIES.
6.10 Each of the Parties represent and warrant that no Law prohibits the
Parties from entering into this Agreement and performing the covenants of such
Parties.
7. COMPENSATION TO STELLAR.
7.1 GoAmerica shall compensate Stellar for its performance under this
Agreement as set forth in Articles 4, 5, 7, 9, Exhibit B and any agreed
applicable Statement of Work.
7.2 GoAmerica shall provide Stellar with a copy of the relevant portions
of any payment reimbursement reports made to NECA or a Subject State TRS program
that are based on the monthly reports delivered to GoAmerica under this Article
promptly after GoAmerica's submission thereof. Stellar shall invoice GoAmerica
monthly for the prior Monthly Activity within fifteen (15) calendar days after
the close of such prior month. GoAmerica shall process and pay the invoiced
amount, except to the extent of any good faith dispute, service credits (as
defined in Exhibit C) or missing or insufficient supporting documentation,
through GoAmerica's normal payment channels, by wire transfer, not to exceed
five (5) business days following GoAmerica's receipt of payment from the NECA or
Subject State TRS program administrator for the period to which each Stellar
invoice relates. In addition, GoAmerica shall promptly provide Stellar
electronic notification of all reimbursement payments received from NECA or a
Subject State TRS program for said Stellar Services, including the amount of the
payment.
7.3 If GoAmerica, in good faith, disputes any portion of the invoice or
has an issue regarding any supporting documentation related thereto, it shall
endeavor to notify Stellar as to the particulars of such dispute or issue within
ten (10) business days of the receipt of the disputed invoice and accompanying
detail or promptly thereafter upon any subsequent discovery. Both Parties shall
make a good faith effort to resolve any disputes within fifteen (15) business
days after such notification. GoAmerica shall have the right to withhold funds
equal to the amount of the dispute or issue, provided that GoAmerica shall
process and pay any undisputed amounts pursuant to the terms of this Agreement.
Receipt or payment of any invoice by GoAmerica, or GoAmerica's failure to
dispute or take issue with any aspect of any such invoice, shall not be
construed as a waiver of, or otherwise prejudice in any way, any of GoAmerica's
rights, remedies or claims with respect to audit and/or recovery and/or offset
and/or indemnification under this Agreement, at law or in equity.
7.4 All dollar amounts set forth in this Agreement are in U.S. dollars and
all payments from or on behalf of GoAmerica to or on behalf of Stellar shall be
remitted only within the United States of America.
7.5 The following exchange rate adjustment provisions shall only apply to
Stellar Services provided at a Stellar Location in Canada through February 2008
and used to support IP Relay. The compensation stated by Stellar for offerings
provided at a Stellar Location in Canada through February 2008 assumes that the
exchange rate between the U.S. dollar and the Canadian
13
dollar remains within a band of CDN$1.15-CDN$1.25/U.S.$1. If the average
exchange rate for any given month falls outside this band, then Stellar will
invoice GoAmerica based on the maximum or minimum exchange rate for the above
band, as applicable, that is closest to the average monthly exchange rate for
that month.
For example: if the foreign exchange rate is at CDN$1.30/U.S.$1, the applicable
exchange rate will be CDN$1.25/U.S.$1. Similarly, if the foreign exchange rate
is at CDN$1.10/U.S.$1 the applicable exchange rate will be CDN$1.15/U.S.$1.
In any month where Stellar seeks an exchange rate adjustment, Stellar shall
provide GoAmerica appropriate supporting documentation regarding the volume of
Conversation or Session Minutes originated in Canada and the applicable exchange
rates, and show the difference between the invoiced amount under the monthly
prevailing and adjusted exchange rate.
7.6 If any change to a FCC and/or applicable Subject State TRS service
requirement directly results in Stellar needing to provide more than fifteen
(15) hours of related per-agent training, in excess of regularly scheduled
training for such agent, during any three (3) month period during the first six
(6) months immediately following commencement of such government mandated
service requirement(s), such changes will be managed through the Change Control
Process and GoAmerica shall reimburse Stellar its reasonable direct costs of
necessary training that exceeds such training threshold.
7.7 Transition Fee.
7.7.1 Subject to the terms and conditions of this Agreement,
GoAmerica agrees to pay to Stellar a Transition Fee equal to the lesser of (i)
$5,500,000 payable in sixteen (16) equal and consecutive quarterly installments
commencing on the first business day falling thirty (30) days after the
Effective Date or (ii) fifty-percent (50%) of Stellar's actual, direct and
documented Losses incurred in connection with Services relating to the Subject
State TRS business (the "Transition Fee").
7.7.2 Subject to Section 7.7.4 below, if GoAmerica terminates
Services relating to the Subject State TRS business in full prior to the
Effective Date, then GoAmerica shall promptly reimburse to Stellar the actual,
documented, direct expenses or costs incurred by Stellar in the ordinary course
of business prior to the date of such notice of termination that were incurred
solely in connection with its preparation for servicing the Subject State TRS
business. In such case, GoAmerica shall not be obligated to pay the Transition
Fee to Stellar. GoAmerica may audit and review any such expenses or costs and if
GoAmerica disagrees with such amounts, the Parties agree to work in good faith
to resolve such disputed amount in a commercially reasonable manner.
7.7.3 If GoAmerica terminates Services relating to the Subject State
TRS business in full after the Effective Date pursuant to Section 9.5.1, then
GoAmerica shall promptly pay to Stellar the Transition Fee as set forth in
Section 7.7.1 hereof. GoAmerica may audit and review any such expenses or costs,
and if GoAmerica disagrees with such amounts, the Parties agree to work in good
faith to resolve such disputed amount in a commercially reasonable manner.
7.7.4 Notwithstanding the foregoing, GoAmerica shall not be
responsible for and shall not have any obligation to reimburse Stellar for any
costs and expenses over $50,000 incurred by Stellar prior to the Effective Date
unless Stellar has received GoAmerica's prior written consent to incur such cost
or expense, which shall not be unreasonably withheld or delayed so long as it is
reasonably related, in Stellar's good faith judgment, to the timely fulfillment
of its obligations under this Agreement.
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7.8 At any time or from time to time, at GoAmerica's option, GoAmerica may
(i) request from Stellar evidence of all actual, direct and documented expenses
incurred by Stellar for which Stellar would be entitled to reimbursement under
this Section 7 and (ii) upon receipt of such evidence, promptly reimburse
Stellar for GoAmerica's portion of all such expenses.
7.9 Stellar agrees to honor accrued employee vacation time set forth on
Schedule 7.9 for employees of MCI to be hired by Stellar after the Acquisition
pursuant to that certain Assignment and Assumption Agreement to be entered into
between the Parties in connection with the Acquisition to the extent that any
such employee does not receive cash payment for such accrued vacation time on or
about the Effective Date from MCI or GoAmerica. GoAmerica shall reimburse
Stellar for any such accrued vacation by paying to Stellar the aggregate accrued
vacation for such MCI employees as set forth in the Acquisition Agreement on or
at the consummation of the Acquisition. Such payments shall be made in two equal
installments on the last day of the second and third quarters following the
Effective Date.
8. RELATIONSHIP OF PARTIES.
8.1 INDEPENDENT CONTRACTOR STATUS.
Stellar shall at all times be an independent contractor for GoAmerica
Services performed under this Agreement. Accordingly, nothing in this Agreement
shall be construed as creating the relationship of employer and employee between
the Parties, or between GoAmerica and the employees of Stellar. Stellar and its
employees and/or agents shall in no way be, or be deemed to be, employees of
GoAmerica. Stellar shall be responsible for all staffing and selection, hiring,
firing, disciplinary procedures and all other employee relations matters for
Stellar Personnel performing Services under this Agreement. Stellar shall be
responsible for all wages, salaries, benefits, workplace safety and insurance
act compensation, unemployment compensation and other amounts due Stellar
Personnel, as well as the withholding of taxes, social security including FUTA.
GoAmerica shall not have any responsibility for any Stellar employee-related
wage or benefit items. Nordia is responsible for all taxes, licenses, permits
and other requirements that may be imposed by applicable Law on its business
(including provision of the Stellar Services hereunder).
8.2 EXCLUSIVITY.
Notwithstanding anything to the contrary in this Agreement, Stellar agrees
that during any term of this Agreement, neither Stellar nor any Stellar
Affiliate shall provide Relay Services for Internet Protocol or Video Relay
Service call types originating in the United States of America, to any relay
service provider other than GoAmerica. In the event that Stellar or any Stellar
Affiliate intends to seek a state TRS contract, Stellar shall notify GoAmerica
in writing promptly of such intention and offer GoAmerica the opportunity to
jointly pursue such state TRS contract with Stellar. Any and each such offer by
Stellar shall remain open for up to thirty (30) days (unless Stellar shall have
notified GoAmerica in writing sooner that Stellar will no longer seek such
contract), by which time GoAmerica must either accept in writing Stellar's offer
or waive its right to join with Stellar in pursuit of such contract and the
related exclusivity protection provided in the first sentence of this Section
8.2 with respect to such contract. If Stellar or any Stellar Affiliate intends
to seek a service contract or similar right to provide Relay Services
originating outside of the United States of America, Stellar agrees to inform
GoAmerica promptly of each such opportunity in order that the Parties may
consider working together on such opportunity.
15
9. TERM AND TERMINATION.
9.1 TERM.
This Agreement shall have an Initial Term of sixty (60) months from the
Effective Date. GoAmerica shall have the right to renew this Agreement for up to
three additional two-year terms upon such conditions, including compensation, as
the Parties may mutually agree, by providing written notice to Stellar no less
than one hundred twenty (120) calendar days prior to the expiration of the then
current term provided, however, that the Agreement shall expire after the
Initial Term (or a renewal term) if the Parties are unable to agree upon the
conditions for any further term prior to the start of such further term.
9.2 TERMINATION - GENERAL.
Upon the termination of any of the Services, the Parties agree to
cooperate in good faith, and to use commercially reasonable efforts, to minimize
and mitigate any expenses or cost incurred by either Party in connection with
such termination.
9.3 TERMINATION FOR CAUSE.
Other than as specifically provided to the contrary herein, either Party
may terminate this Agreement in whole or in part for material breach by the
other Party, without liability, and without prejudice to any other remedy the
non-breaching Party may have if the other Party materially breaches this
Agreement and fails to cure such breach within thirty (30) calendar days after
receipt of written notice specifying such breach. If GoAmerica terminates this
Agreement due to Stellar's material breach of this Agreement, Stellar hereby
grants to GoAmerica a non-exclusive, non-terminable, fully-paid up,
royalty-free, transferable, worldwide license to use or otherwise exploit any
Stellar Propriety Software or the Stellar Platform necessary for the provision
of the Services hereunder for one hundred eighty (180) days to allow GoAmerica
to transition to another provider of such Services; provided, however, that any
such license shall only be used in connection with Stellar's continued provision
of Services at the Stellar Locations.
9.4 TERMINATION WITHOUT CAUSE.
GoAmerica may terminate this Agreement without cause; provided that
GoAmerica: (a) shall provide Stellar with ninety (90) days prior written notice
and (b) shall pay Stellar within ninety (90) days of such date of termination of
this Agreement the lesser of (i) the direct, actual and documented expenses or
Losses incurred by Stellar in association with the Services relating to the
Subject State TRS call centers (i.e., Memphis, TN and Riverbank, CA) in excess
of the Transition Fee paid by GoAmerica to Stellar pursuant to Section 7.7 or
(ii) the following:
Period following Effective Date Amount Payable
- ------------------------------- --------------
0-6 months $8 million
> 6 months $12 million
> 12 months $13 million
> 24 months $10 million
> 36 months $7 million
> 48 months $2 million
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9.5 SPECIAL GOAMERICA TERMINATION RIGHTS.
9.5.1 Disposition of State TRS Contracts. Consistent with Section
7.7, GoAmerica may terminate one or more of the Subject State TRS contracts or
transfer said contract(s) to a third party provided, however, that GoAmerica
shall provide Stellar ninety days (90) prior written notice, and shall continue
to pay Stellar the Transition Fee.
9.5.2 Business Consolidation. GoAmerica also may direct Stellar to
close one or more of the Subject State TRS call centers (i.e., Memphis, TN and
Riverbank, CA) that supply Stellar Services to the Subject TRS contracts and
consolidate the Stellar Services at such other locations as Stellar, at its sole
discretion may choose, provided, however, that GoAmerica (a) shall provide
Stellar with ninety (90) days prior written notice; and (b) shall simultaneously
provide Stellar with a legal opinion, reasonably satisfactory to Stellar's
counsel, opining that the requested closure of the State TRS call center is
lawful together with appropriate supporting documentation; and (c) shall
continue to pay Stellar the Transition Fee.
9.5.3 Consistent with Section 7.7, in calculating the Transition Fee
due to Stellar under Sections 9.5.1 and 9.5.2, the Transition Fee shall be
reduced to the extent that upon disposition of any Subject State TRS contract or
closure of a Subject State TRS facility, Stellar is relieved from any cost or
liability (e.g., facilities leases) that it has or would have incurred absent a
contract cancellation and/or a facilities closure. The parties shall confer in
good faith to quantify the reduction, if any, in the Transition Fee due to
Stellar.
9.5.4 Interpretations of Section 9.5. The provisions of this
Sections 9.5 shall apply notwithstanding any other provision of this Agreement
and in the event of any inconsistency therewith, the terms of Sections 9.5 shall
prevail and take precedence, provided, however, that nothing in Section 9.5
shall be construed as or have the effect of, altering Stellar's status as an
independent contractor pursuant to Article 8.
9.6 LIQUIDITY AND CASH.
GoAmerica shall maintain not less than seventy-five percent (75%) of the
unpaid portion of the Transition Fee from time to time as cash-on-hand
(represented by cash, cash equivalents or additional borrowings available upon
request of GoAmerica on any line of credit), as reported in any Form 10-Q filed
by GoAmerica with the Security Exchange Commission; provided that if GoAmerica
shall fail to meet such requirement (as reported in any such Form 10-Q),
GoAmerica shall have ninety (90) days to cure any such deficiency. In the event
that GoAmerica does not cure any such deficiency within such ninety (90) day
period, Stellar may exercise any remedies available to Stellar under the
Agreement, including those remedies set forth in Section 9.3.
9.7 BANKRUPTCY.
9.7.1 GoAmerica may terminate this Agreement immediately upon
written notice, and without liability, if (a) Stellar makes an assignment for
the benefit of creditors other than assignments made in the conduct of its
day-to-day business or admits its inability to pay its debts as they come due;
or (b) proceedings under any bankruptcy or insolvency laws are instituted
against the Stellar or a receiver is appointed or any of its assets or
properties and such proceedings are not dismissed, discharged, or stayed within
sixty (60) calendar day.
9.7.2 Stellar may terminate this Agreement immediately upon written
notice, and without liability, if GoAmerica undergoes a change of control
following any bankruptcy or insolvency proceeding of GoAmerica.
17
9.8 TERMINATION FOR LEGAL/REGULATORY DEVELOPMENTS.
With prior written notice of not less than thirty (30) days, unless
shorter prior notice is require by the circumstances, either Party may terminate
any Service provided under this Agreement, in the event of judicial, regulatory
or legislative change rendering performance of such Service under this Agreement
impossible or illegal. Any Party that contemplates giving notice of termination
under this Article 9.6 shall in addition to the aforementioned prior notice,
inform the other Party in writing as soon as becomes aware of any judicial,
legislative or regulatory development that may make the performance of this
Agreement impossible or illegal. Upon issuance of such an advance notice, the
Parties shall confer and take such action as they may mutually agree is
reasonable, including intervening in any regulatory proceeding that may impair
the provisions of Services under this Agreement. Notwithstanding anything to the
contrary in this Agreement, in the event that Stellar elects to terminate this
Agreement pursuant to this Section 9.8, GoAmerica shall have no further
liability to Stellar under this Agreement.
9.9 [INTENTIONALLY OMITTED].
9.10 NUMBER USE AND TRANSFER.
In the event this Agreement is terminated, Stellar agrees to transfer to
GoAmerica ownership of all VIC Numbers (the "Number Transfer"). The Number
Transfer shall commence upon delivery of a valid termination notice and shall be
completed not later than the date on which the Agreement is terminated. Upon
completion of the Number Transfer, which shall be reasonably satisfactory to
GoAmerica, GoAmerica shall promptly reimburse Stellar for reasonable transfer
fees charged by the telecommunications carrier for such Number Transfer as well
as any reasonable Stellar administrative costs associated with the Number
Transfer.
9.11 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.
9.12 ORDERLY TRANSITION.
Upon the termination or expiration of this Agreement, except where Stellar
terminates the Agreement for cause, Stellar agrees to exercise commercially
reasonable efforts to assist GoAmerica in transitioning the Stellar Services
then provided to GoAmerica to a successor provider of such TRS Services. In
addition, the provisions of Articles 3.3, 8.1, 9, 11, 12, 14, 17, 18, 22, 24,
27, 29, 30, 31 and 32 shall survive termination of this Agreement.
10. EFFECTIVE DATE; CONDITIONS TO EFFECTIVE DATE.
10.1 EFFECTIVE DATE. This Agreement and the relevant terms stated herein
shall bind each Party upon execution, provided, however, that for certain
purposes there shall be an "Effective Date" which shall be at 12:01 a.m. on the
day after the day on which the Acquisition closes. Upon the Effective Date,
among other things, the Predecessor Agreement shall automatically terminate
(with no further action required by the parties hereto) and be replaced in full
by this Agreement.
10.2 PRE-CLOSING NOTICE OF ACQUISITION. GoAmerica will provide signed,
written notice to Stellar in accordance with the notice provisions of this
Agreement not less than two (2) calendar days, but not more than fourteen (14)
calendar days, prior to the expected closing of the Acquisition. To the extent
that the closing of the Acquisition Agreement is delayed for any reason
18
beyond such notice period requirement, GoAmerica will provide a new notice of
closing to Stellar, setting forth the revised expected closing date of the
Acquisition Agreement again within the time period specified above.
10.3 ACQUISITION CLOSING NOTIFICATION. Promptly following the closing of
the Acquisition, GoAmerica will provide signed, written notice via fax or email
transmission to Stellar otherwise in accordance with the notice provisions of
this Agreement confirming that the closing of the Acquisition has occurred.
11. INTELLECTUAL PROPERTY.
11.1 GoAmerica Proprietary Software together with all associated
documentation, is Pre-Existing Intellectual Property and Confidential
Information (as defined in Article 12.2) of GoAmerica and/or GoAmerica
Affiliates, and GoAmerica retains all Intellectual Property ownership rights
therein. Unless the Parties otherwise agree in writing, any other property
including, but not limited to, documentation, reports, data or other proprietary
information, furnished to Stellar by GoAmerica is, and shall remain, the
property of GoAmerica. Stellar Proprietary Software together with Stellar's
proprietary training techniques and materials (including without limitation,
training systems and software) and all associated documentation, is Pre-Existing
Intellectual Property and Confidential Information of Stellar and/or Stellar
Affiliates and Stellar retains all ownership rights therein. Unless the Parties
otherwise agree in writing, any other property including, but not limited to,
documentation, reports, data, business processes, trade secrets, training
materials or other proprietary information, furnished to GoAmerica by Stellar
is, and shall remain, the property of Stellar.
11.2 Stellar agrees that it shall have no rights to and covenants that it
shall not, except as expressly set out in this Agreement or otherwise agreed to
in writing by GoAmerica, use, reproduce, distribute, translate, or make
derivative works of, any written, photographic, audio and/or video, Software or
other materials (including, but not limited to, documentation, reports, data and
training materials) furnished to Stellar by GoAmerica. GoAmerica agrees that it
shall have no rights to and covenants that it shall not, except as expressly set
out in this Agreement or otherwise agreed to in writing by Stellar, use,
reproduce, distribute, translate, or make derivative works of, any written,
photographic, audio and/or video, Software or other materials (including, but
not limited to, documentation, reports, data, training) furnished to GoAmerica
by Stellar.
11.3 COMMUNITY INTELLECTUAL PROPERTY. Software or other materials
(including, but not limited to, documentation, reports, data and training
materials, but excluding each Parties' respective Pre-Existing Intellectual
Property and Proprietary Software) that is developed, innovated or invented by
Stellar and GoAmerica jointly for or during each Parties' performance of this
Agreement shall be deemed to be jointly owned, developed and invented by both
Parties (any such developments, innovations or inventions, the "Community
Intellectual Property"). Both Parties agree that each Party shall have a
royalty-free, perpetual, irrevocable license (including the right to sublicense)
to use, make, exploit or sell the Community Intellectual Property. Any royalties
or other income derived by either Party from the Community Intellectual Property
shall be, with no right of accounting, the property of the Party so using,
making, exploiting or selling products or services from which such royalties or
other income are derived. Any improvements or enhancements ("Improvements") on
any such Community Intellectual Property, and any Improvements by each Party to
its own Pre-Existing Intellectual Property and Proprietary Software shall be the
sole property of the Party making such Improvements. To the extent that title to
any such Improvements does not vest in the Party making such Improvements, the
other Party hereby irrevocably assigns all right, title and interest in and to
such Improvements to the Party making such Improvements.
Software or other materials (including, but not limited to, documentation,
reports, data and training materials, but excluding each Parties' respective
Pre-Existing Intellectual Property and
19
Proprietary Software) that is developed, enhanced, improved, innovated or
invented by Stellar or GoAmerica individually for, during, or after the Parties'
performance of this Agreement shall be deemed to be the Intellectual Property of
such developing or inventing Party with all rights in such Intellectual Property
reserved in such developing or inventing Party.
11.4 GOAMERICA PROPRIETARY SOFTWARE.
GoAmerica shall implement periodic updates to Object Code versions of (i)
GoAmerica Proprietary Software accessed by Stellar to provide Services, and (ii)
all associated user documentation which GoAmerica deems necessary to the
provision of Call Center Support Contact.
11.5 RETURN OF GOAMERICA AND STELLAR PROPERTY.
All copies of any Software, databases or documentation owned exclusively
by each Party, or containing such Party's Confidential Information, shall be
returned to such Party promptly upon the termination of this Agreement, it being
acknowledged that the other Party may retain any software, databases or
documentation exclusively owned by such Party, or licensed to such Party by an
entity other than the other Party. If the return of such Confidential
Information to the other Party is not possible, then any such Confidential
Information which is not returnable shall be destroyed, the destruction of which
shall be confirmed and verified in writing to the other Party.
12. CONFIDENTIALITY/PROPRIETARY INFORMATION.
12.1 "Confidential Information" (as used herein) means information, in
whatever form disclosed, provided by or on behalf of either Party or any of its
affiliates ("Discloser") to the other Party or any of its affiliates
("Recipient"), or to which a Recipient otherwise gains access, in the course of
or incidental to the performance of this Agreement, and that should reasonably
have been understood by the Recipient because of legends or other markings, the
circumstances of disclosure or the nature of the information itself, to be
proprietary and confidential to the Discloser, an affiliate of the Discloser or
a third party. Confidential Information shall be and remain GoAmerica or Stellar
property, as the case may be.
12.1.1 For the avoidance of doubt, Stellar's Confidential
Information includes Stellar Proprietary Software, Stellar Licensed Software
(other than from GoAmerica) any information or materials related thereto and,
all documentation, designs, methodologies, techniques, prices, contract terms,
business activities, data, product research and development, product designs,
performance specifications, schematics, client lists, the identities of and
information relating to past, present and prospective customers and information
relating to Stellar's global network infrastructure, capabilities and business
plans, whether or not marked as confidential or proprietary, as well as other
material specifically designated by Stellar in writing as confidential or
proprietary.
12.1.2 For the avoidance of doubt, GoAmerica Confidential
Information includes but is not limited to GoAmerica customer lists, GoAmerica
customer names, addresses and billing data, call detail and/or financial
information, information relating to GoAmerica customers or GoAmerica customer
account information, and/or databases, GoAmerica Proprietary Software, GoAmerica
Licenses Software and GoAmerica Documentation, whether or not marked as
confidential or proprietary, as well as other material specifically designated
by GoAmerica in writing as confidential or proprietary.
12.2 Confidentiality Obligation. Each Party will use at least the same
degree of care to prevent disclosing to third parties the other Party's
Confidential Information as it employs to avoid unauthorized disclosure,
publication or dissemination of its own information of a similar nature. Neither
Party may make any use or copies of the other's Confidential Information except
in
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connection with this Agreement. Upon termination of this Agreement for any
reason, each Party shall return or destroy, as the other may direct, all
documentation in any medium that contains, refers to, or relates to the other's
Confidential Information. In the event of any unauthorized disclosure or loss
of, or inability to account for, any of the other's Confidential Information,
each Party will promptly notify the other.
12.3 Confidentiality Exceptions. Sections 12.1 and 12.2 will not apply to
any particular information which a Party can demonstrate (a) was, at the time of
disclosure to it, in the public domain, (b) after disclosure to it, is made
publicly available or otherwise becomes part of the public domain through no
fault of the Party receiving the same, (c) was in the possession of a Party at
the time of disclosure to it, (d) was received after disclosure to it from a
third party who had a lawful right to disclose such information to it, or (e)
was independently developed by it without reference to Confidential Information
of the other. Neither Party shall be considered to have breached its obligations
under this Article for disclosing Confidential Information as required to
satisfy any legal requirement of a competent government body provided that,
immediately upon receiving any such request and, to the extent that it may
legally do so, the Party subject to such legal requirement advises the other
Party promptly and tenders to it the defense of such requirement. Unless the
requirement shall have been timely limited, quashed or extended, the Party who
originally received the legal requirement shall thereafter be entitled to comply
with such demand to the extent permitted by law. If requested by the Party to
whom the defense has been tendered, the Party who originally received the legal
requirement shall cooperate (at the expense of the requesting Party) in the
defense of the requirement.
12.4 Injunctive Relief. In addition to such remedies either Party may have
at law and in equity, each Party may enforce the provisions of this Article by
injunctive relief including, without limitation, by obtaining specific
performance of the obligations set forth herein. The provisions of this Section
12 shall survive termination or expiration of this Agreement.
13. INSURANCE.
13.1 Stellar shall maintain, during the term and any renewal terms hereof,
all insurance and/or bonds required by Law and as set forth herein, including
but not limited to: (a) Workmen's Compensation Insurance or Workplace Safety and
Insurance Act Compensation as prescribed by the law of the state, province or
country in which the work is performed; (b) Employer's Liability Insurance with
limits of at least two million dollars ($2,000,000) for each occurrence; (c)
Comprehensive General Liability Insurance and, if the use of automobiles is
required, comprehensive automobile liability insurance for owned, hired and
non-owned automobiles, with coverage as required by Law in each applicable
state, province or country or limits of at least Two Million Dollars
($2,000,000) combined single limit for bodily injury, death, and property
damage; (d) Professional Liability and Error and Omission Insurance covering
Stellar and GoAmerica against damages caused by Stellar of at least Two Million
Dollars ($2,000,000) per occurrence, and (e) such other "umbrella" and "excess"
policy coverage which Stellar or its parent corporation may reasonably require.
GoAmerica is to be named additional insured for the purposes of this Agreement
as its interests may appear for Comprehensive General Liability coverage.
Stellar shall, prior to the start of work, furnish, if requested by GoAmerica,
certificates or adequate proof of the foregoing insurance. Further, Stellar
shall endeavor to provide that each such certificate shall state that the
insurance shall not be canceled or modified unless GoAmerica is given thirty
(30) days prior notice of such modification or cancellation. Stellar shall
provide insurance policy coverage with at least the limits stated above for all
Call Center operations and employees located in the country where GoAmerica
Services are performed.
13.2 Stellar shall be responsible for any loss of or damage to property
owned by GoAmerica in Stellar's possession or control, where such property has
been lost or damaged due to
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the negligent acts or omissions of Stellar or Stellar's agents or employees,
save ordinary wear and tear.
13.3 GoAmerica shall be responsible for any loss of or damage to property
owned by Stellar in GoAmerica's possession or control, where such property has
been lost or damaged due to the negligent acts or omissions of GoAmerica or
GoAmerica's agents or employees, save ordinary wear and tear.
14. INDEMNITY/LIMITATION OF LIABILITY.
14.1 Stellar agrees to indemnify, defend and hold harmless GoAmerica, its
parent company, subsidiaries, affiliates, employees, agents and assigns from and
against all claims, complaints, causes of action, liabilities, judgments,
losses, penalties, costs and expenses ("Actions") (including reasonable
attorneys' fees) brought by third parties, and that arise out of or in
connection with (a) a breach or default by Stellar of any covenant,
representation or other provision of this Agreement; and (b) the gross
negligence or willful misconduct of Stellar. Notwithstanding the foregoing,
Stellar shall have no liability for any claim of infringement based on, or
arising from (a) the use of a superseded or altered release of the Stellar
Proprietary Software if the infringement would have been avoided by the use of a
current unaltered release of the Stellar Proprietary Software, which Stellar
provided to GoAmerica indicating the necessity of use of the upgrade to avoid
any such claim, (b) the modification of the Stellar Proprietary Software (other
than by Stellar or its agents), (c) the use of the Stellar Proprietary Software
other than in accordance with the Documentation and this Agreement, or (d)
combination of the Stellar Proprietary Software with data, materials or
technology not provided by Stellar (other than by Stellar or its agents).
14.2 GoAmerica agrees to indemnify, defend and hold harmless Stellar, its
parent company, subsidiaries, affiliates, employees, agents and assigns, from
and against all Actions, (including reasonable attorneys' fees) brought by third
parties, and that arise out of or in connection with (a) a breach or default by
GoAmerica of any covenant, representation or other provision of this Agreement;
and (b) the gross negligence or willful misconduct of GoAmerica. Notwithstanding
the foregoing, GoAmerica shall have no liability for any claim of infringement
based on, or arising from (a) the use of a superseded or altered release of
GoAmerica Proprietary Software if the infringement would have been avoided by
the use of a current unaltered release of the GoAmerica Proprietary Software,
which GoAmerica provided to Stellar indicating the necessity of use of the
upgrade to avoid any such claim, (b) the modification of the GoAmerica
Proprietary Software (other than by GoAmerica or its agents), (c) the use of the
GoAmerica Proprietary Software other than in accordance with this Agreement, or
(d) combination of the GoAmerica Proprietary Software with data, materials or
technology not provided by GoAmerica (other than by GoAmerica or its agents).
14.3 SETTLEMENT OF ACTIONS.
A Party obligated to provide indemnification pursuant to this Section 14
(the "Indemnitor") shall have control of the defense and negotiations for
settlement of Actions under this Section 14; provided, however, that the
Indemnitor shall consult with the other party (the "Indemnitee") prior to
settling any such Action, and the Indemnitor cannot bind the Indemnitee or
materially prejudice the Indemnitee without the Indemnitee's prior written
consent. The Indemnitee shall also have the right to participate in the
investigation, defense and settlement negotiations of any such Action with
separate counsel chosen and paid for by the Indemnitee. In addition, the
Indemnitee shall have the right, but not the obligation, to retain counsel of
its choice (at the Indemnitor's expense) and to assume the defense of any
indemnified Action (including settling or compromising any such Action) if: (i)
the Indemnitor fails to acknowledge, in writing, its responsibility to assume
the defense of such Action; (ii) the Indemnitor fails to diligently, competently
and in good faith control and conduct the defense of such Action; (iii) there is
an apparent conflict of interest between the Indemnitor and the
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Indemnitee with respect to such Action; or (iv) such Indemnitee shall have
reasonably concluded that there are legal defenses available to it that are
different from, additional to or inconsistent with those available to the
Indemnitor. Moreover, at any time, Indemnitee may at its own cost and expense
(which cost and expense shall not be subject to indemnification under this
Section) settle any Actions against it so long as such settlement is expressly
without prejudice to the interest or position of the Indemnitor.
14.4 Except as explicitly provided in Sections 7.7.1 and 9, neither Party
shall be liable to the other for any special, incidental, exemplary, punitive or
consequential damages that such Party, its employees, agents or assigns, may
suffer which are caused by or result from the performance or nonperformance of
this Agreement. Nothing in this Section 14.4 limits either Party's
indemnification obligations with respect to third party claims under Sections
14.1 and 14.2 above.
15. INTELLECTUAL PROPERTY/USE OF MARKS.
15.1 Except as expressly provided in this Agreement, nothing in this
Agreement shall be deemed to grant a Party any license, sublicense right or
other claim against or interest in the Pre-existing Intellectual Property or
other Intellectual Property of the other Party.
15.2 Neither Party shall, without the prior written consent of the other
Party, use, or permit their respective employees, agents and subcontractors to
use, the trademarks, service marks, logos, trade names or other proprietary
designations of the other Party, or the other Party's affiliates, whether
registered or unregistered.
16. PUBLICITY.
16.1 The Parties agree that they shall not make, and they shall prevent
any of their subcontractors from making, without the prior written consent of
the other Party and an opportunity to review and make written comment thereon,
any news release or public announcements which would confirm or deny the
existence or the terms and conditions of all or any part of this Agreement or
any discussions or negotiations culminating herein, or the fact or nature of
their participation hereunder, or any phase of any Services provided or activity
conducted hereunder including, but not limited to, information regarding the
location of Stellar Locations, number and responsibilities of Stellar CAs, and
other Stellar Personnel, whether or not Confidential Information, which would
relate to or reflect on the nature or quality of the GoAmerica Services or
obligations provided pursuant to this Agreement. Stellar represents that it
shall not make a public filing mentioning this Agreement unless such filing is
mandatory under the Philippine or United States Securities and Exchange
Commission Rules and Regulations. In the event Stellar is required under
Philippine or United States Securities and Exchange Commission Rules and
Regulations to make a mandatory public filing that mentions GoAmerica or this
Agreement, Stellar shall immediately notify GoAmerica, and Stellar shall seek
confidential treatment from the Philippine or United States Securities and
Exchange Commission for any attachment to such mandatory filing. Violation of
this Section shall be considered a material breach and cause for termination
under Article 9 hereof. Notwithstanding anything to the contrary in this
Agreement, GoAmerica shall have the right, in its sole discretion, to disclose
any Confidential Information deemed necessary or prudent by its counsel to
disclose in order to comply with United States Securities and Exchange
Commission and/or NASDAQ Stock Market rules, regulations, policies or
guidelines.
17. DISPUTE RESOLUTION.
17.1 If an unresolvable dispute arises out of, or relates to, this
Agreement, or its breach, or GoAmerica Services rendered pursuant to this
Agreement, upon receipt of written notice outlining such dispute or breach, the
respective Authorized Representative designated below shall be provided written
notice requesting immediate resolution to such dispute prior to such dispute
being submitted to
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binding arbitration. The length of time to resolve such dispute by the
Authorized Representative shall be as defined in the written notice, but unless
waived by the Party receiving the notice, shall not be less than ten (10) nor
more than thirty (30) days from the date of the notice. Authorized
Representatives shall then meet at a mutually acceptable time, to exchange
relevant information and to attempt to resolve the dispute.
Stellar Authorized Representative GoAmerica Authorized Representative
Anne Rousseau Cary Solomon, Director of Operations
17.2 If the Authorized Representatives are unable to resolve the dispute
in the time specified in the notice, either Party then may, upon notice, and
within five (5) days of receipt of a notice from the other party, submit the
dispute to binding arbitration either in the Los Angeles County, California or
New York County, New York and such arbitration shall be governed by the rules of
the American Arbitration Association (AAA). If the executives can not agree on a
mutually acceptable arbitrator, GoAmerica and Stellar shall each select one
arbitrator from the list of arbitrators made available by the AAA in the
relevant County. Such two chosen arbitrators shall then select a third
arbitrator (again from the list of arbitrators made available by the AAA) to
preside over the arbitration. If a Party elects to use the procedure set forth
in this clause, the other party shall participate. An initial hearing shall
occur no more than ten (10) days after the selection of the arbitrator in
accordance with the foregoing. The Parties shall each bear their respective
costs incurred in connection with the procedure set forth in this clause, except
that they shall share equally the fees and expenses of any arbitrator(s), and
the cost of the facility for the hearing. The outcome of the arbitration shall
be binding on both parties. The procedures for the resolution of disputes set
forth herein shall be the sole and exclusive procedures for the resolution of
disputes. Stellar shall continue to provide non-disputed Services pending final
determination of the dispute and GoAmerica shall continue to make payments to
Stellar for Services not the subject of dispute, in accordance with this
Agreement. Any arbitration award may be enforced by appropriate judicial
authorities and both parties hereby expressly consent to the jurisdiction of the
federal and state courts of New York County, New York and Los Angeles County,
California.
18. ATTORNEYS FEES.
18.1 Notwithstanding the terms of Section 17.2, if either Party seeks to
enforce or preserve any of its rights hereunder in a court of law, the
non-prevailing Party shall pay all of the prevailing Party's reasonable
attorneys fees and costs, incurred in connection with any such action.
19. FORCE MAJEURE.
19.1 Neither Party shall be liable for a failure, omission or delay in
performance of its obligations hereunder by reason of any circumstance which is
caused by an act of God, or other factors beyond its reasonable control,
including impending threats of terrorism, terrorism and labor disputes, where
such delay or failure could not have been prevented by reasonable precautions
and cannot reasonably be circumvented by the Party through the use of alternate
sources, work-around plans, or other means. During a force majeure occurrence,
the non-performing Party shall be excused from any further performance or
observance of the obligation(s) so affected for as long as such circumstances
prevail and such Party continues to use its best efforts to recommence
performance or observance whenever and to whatever extent possible without
delay. The failure or a delay of an equipment vendor shall not be considered
beyond the control of a Party unless such failure or delay was caused by a force
majeure occurrence. If either Party becomes aware of any such factor that would
cause a delay or failure in performance, it shall immediately notify the other
Party of the existence of such factor and probable length of continuation
thereof, and no Party's failure or delay in performance shall be excused under
this Section before such notice is provided.
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19.2 If a force majeure occurrence prevents a Party from rendering
Services pursuant to this Agreement, and such Party, with the good faith
cooperation and assistance of the other Party (but without any obligation to
incur costs), is unable to resume Services for seven (7) or more consecutive
days, each Party's obligations shall be suspended until Services are resumed.
After an additional seven (7) days (i.e., after fourteen (14) days in total) of
non-performance due to force majeure, each Party shall have the right, but not
the obligation, to immediately terminate this Agreement without any further
contractual liability, with the exception of any contractual liability
pertaining to those contractual provisions which survive termination pursuant to
the terms of this Agreement. Both Parties further agree to work together in good
faith to mitigate the effects and consequences of any force majeure occurrence.
If either Party implements a mutually agreed work-around plan, the other Party
shall use reasonable efforts to support it, including without limitation,
arranging for and installing equipment and software at agreed locations to
resume performance, and assigning personnel to such location(s) to perform
agreed functions.
19.3 Stellar shall use the current disaster recover plan under the
Predecessor Agreement as a preliminary disaster recovery plan on the date of
execution of this Agreement. Within sixty (60) days of execution of this
Agreement, the parties shall have completed final disaster recovery plan that is
mutually acceptable to both parties, which, upon execution by both Parties,
shall supersede the terms of the initial disaster recovery plan. The Parties
acknowledge and agree that such plan shall outline Stellar's responsibilities in
the case of a force majeure occurrence.
20. ASSIGNMENT.
20.1 This Agreement is personal to the Parties and may not be assigned or
transferred by either Party by operation of Law, or otherwise without the other
Party's consent. Such consent may not be unreasonably withheld, except that the
Parties agree that, without the prior written consent of the other Party, (a)
either Party may assign this Agreement, in whole or in part, to a parent,
controlling company or affiliate of such Party (with adequate capital and other
resources to perform fully under this Agreement), provided the assigning Party
provides written notice to the other Party within thirty (30) days of such
assignment, and provided further that no such assignment by GoAmerica shall be
effective unless, prior to the assignment, GoAmerica, Inc. has provided Stellar
with a guarantee of the assignee's performance on terms that are substantially
equivalent to the terms of the GoAmerica Guarantee, and (b) GoAmerica, with
sixty (60) days prior written notice, which contains appropriate documentation
regarding the acquiring party, may assign this Agreement in whole or in part,
without the consent of Stellar (or its assignee, if any) to any company into
which GoAmerica may merge or consolidate or which acquires substantially all of
its assets or stock, or a wholly-owned affiliate or the parent corporation which
is of financial standing equal or greater than that of GoAmerica, Inc. on a
consolidated basis with its subsidiaries. To the extent of any conflict between
this provision and Sections 9.6, 9.7 or 9.8 hereof, Sections 9.6, 9.7 and 9.8
shall prevail.
21. SEVERABILITY.
21.1 If any part of this Agreement proves to be invalid or unenforceable
for any reason, such invalidity shall affect only the portion of the Agreement
which is invalid. In all other respects this Agreement shall stand as if such
invalid or unenforceable provision had not been a part thereof and the remainder
of the Agreement shall remain in full force and effect.
22. NO CONSEQUENTIAL OR SPECIAL DAMAGES.
22.1 No party to this Agreement is entitled to seek or recover
consequential, incidental, indirect, punitive, special or exemplary damages
relating to or connected with this Agreement, or the performance of Services or
the failure to perform Services hereunder.
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23. WAIVER.
23.1 The failure of either Party to insist on the strict performance of
any terms, covenants and conditions of this Agreement at any time or in any one
or more instances, or its failure to take advantage of any of its rights, shall
not be construed as a waiver or relinquishment of any such rights or conditions
at any future time and shall in no way affect the continuance in full force and
effect of all the provisions of this Agreement.
24. NO THIRD PARTY BENEFICIARIES.
24.1 Except as specifically provided herein, no provision of this
Agreement shall be construed to be for the benefit of any person or entity not a
Party to this Agreement to provide any such third party with any remedy, claim,
liability, reimbursement, cause of action or other right in addition to those
existing without reference to this Agreement.
25. SPECIFIC PERFORMANCE.
25.1 The Parties acknowledge that irreparable damages may occur if the
provisions of the Agreement were not performed in accordance with their terms or
were otherwise breached. Accordingly, the Parties are entitled to seek
injunctive or equitable relief to prevent breaches of this Agreement and to
specifically enforce the terms and provisions hereof in any court of the United
States or any state having jurisdiction, in addition to any other remedies
available under law or at equity to the extent permitted hereby.
26. AUTHORIZED REPRESENTATIVES.
26.1 Each of GoAmerica and Stellar shall appoint an Authorized
Representative to facilitate communications and performance under this
Agreement. The initial Authorized Representative of each party is set forth in
Section 17.1 hereof. Each Party shall treat, and shall be entitled to treat, an
act of an Authorized Representative of a Party as being authorized by such other
Party without inquiring further into such act or ascertaining whether such
representative had authority to so act. Each Party shall have the right at any
time and from time to time to replace its Authorized Representatives by giving
notice to the other party setting forth the name and contact information of the
replacement.
27. NOTICES.
27.1 All notice or other communications to be given by the Parties shall
be in writing, and shall be deemed to have been given if delivered (a)
personally, as evidenced by written receipt or other written proof of delivery;
(b) sent by reputable overnight courier service (charges prepaid), or sent via
facsimile (with confirmation of transmission by receipt of reply facsimile
confirming receipt of the notice) to the Parties at the following addresses or
such other address designated by notice. Any notice or other communication shall
be deemed to have been given on the day it is received.
27.2 Notices to GoAmerica shall be addressed to:
GoAmerica Communications Corp.
ATTN: Daniel R. Luis, CEO
433 Hackensack Avenue
3rd Floor
Hackensack, New Jersey 07601
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27.3 Notices to Stellar shall be addressed to:
Stellar Nordia Services LLC
ATTN: Bernard Durocher, President
3100 Cote-Vertu Boulevard
Suite 510,
St-Laurent, Quebec
Canada H4R2J8
with separate copies to
Cindy Pagel and
Anne Rousseau
c/o 130 East John Carpenter Freeway
Irving, TX 75062
28. COMPLIANCE WITH LAWS.
28.1 At all times during the term of this Agreement, each Party shall
comply, and be and remain in compliance, with all applicable Laws and the terms
of this Agreement that materially relate to or affect the performance of its
obligations hereunder.
28.2 Each Party shall immediately notify the other Party in writing of the
commencement or, to its actual knowledge, threatened commencement of any action,
suit or proceeding, and the issuance or threatened issuance of any order, writ,
injunction or decree, involving its activities under this Agreement.
29. GOVERNING LAW.
29.1 This Agreement shall be governed by and construed in accordance with
the Laws of the State of New York applicable to agreements made within such
state, without regard to its conflict of law provisions.
30. ENTIRE AGREEMENT.
30.1 This Agreement and all Exhibits hereto represent the entire
understanding between the Parties in relation to the matters herein and
supersedes all previous agreements and representations made between the Parties,
including the Predecessor Agreement, whether written or oral, which are merged
herein and shall be of no further force or effect. This Agreement can only be
changed or modified by a writing signed by both Parties.
31. CAPTIONS.
31.1 The section numbers and captions appearing in this Agreement and in
the attached Exhibits are inserted only for the convenience of the Parties and
shall not be construed to define or limit any of the terms herein or affect the
meaning or interpretation of this Agreement.
32. GENERAL SURVIVAL PROVISION.
32.1 To the extent not already provided herein, those provisions of this
Agreement that require performance or impose obligations that extend beyond the
terms of this Agreement shall survive any termination or expiration of the
Agreement.
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IN WITNESS WHEREOF, the Parties have entered into this Managed Services
Agreement as of the date first written above.
Acquisition 1 Corp. Stellar Nordia Services LLC
/s/ Daniel R. Luis /s/ Jeffrey Jensen
------------------------ ------------------------
Authorized Signature Authorized Signature
Name: Daniel R. Luis Name: Jeffrey Jensen
------------------ ------------------
Title: President Title: Manager