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EXHIBIT 10.30
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SERVICE AGREEMENT
This agreement (the "Agreement") is made as of October 1, 2000 ("Effective
Date"), by and between GOAMERICA COMMUNICATIONS CORPORATION, a Delaware
corporation ("GoAmerica"), and the Personal Network Solutions Company division
of SONY ELECTRONICS INC., a Delaware corporation ("Sony").
RECITALS
WHEREAS, Sony and GoAmerica desire to enter, into business relationship in which
GoAmerica will support the creation, marketing and operation of a Sony-branded
wireless service for use with handheld and notebook computer mobile devices in
the United States, as well as provisioning and distribution of related wireless
modem hardware;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and obligations hereinafter set forth, the parties hereto agree as
follows:
1. DEFINITIONS
In addition to the terms defined in the introductory paragraphs and elsewhere in
this Agreement, as used herein, the following terms (and their respective
plurals) shall have the meanings given to them:
1.1 "Affiliate" when used in reference to any person or entity, shall mean any
person or entity that, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with
the entity in question. For purposes of this definition, "control"
(including with correlative meaning, the terms "controlled by" and "under
common control with"), as used with respect to an entity, means the
possession, directly or indirectly, of the power to direct or cause the
direction of management policies of such entity, such power to be evidenced
by either ownership of the majority of the outstanding securities (on a
fully-diluted basis) of the entity in question or possession of a majority
of the voting rights with respect to the outstanding securities of such
entity.
1.2 "Application Programming Interface" or "API" means a programming interface
containing the ability to access and utilize specific API enabled functions
of a given software program.
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1.3 "Beta Launch Date" means the date prior to the Launch Date on which
elements of the Sony Service sufficient for Sony to practically test all
material functionality of the Sony Service will be first available for Sony
access and testing.
1.4 "Client Device" means the combination of a Wireless Modem and the personal
computer, digital camera or other device to which it may be connected or of
which it is a part (including any Handheld as defined in Section 1.14
below, or any Sony Notebook as defined in Section 1.19), which combination
may be used for authorized access to the Sony Service.
1.5 "Connectivity Service" means those wireless network services listed in
Exhibit A (as updated from time to time by mutual agreement of the parties)
that are provided by GoAmerica as part of the Sony Service, including any
land line usage incidental thereto that is provided by GoAmerica at no
separate charge as a part of such wireless network services.
1.6 "Content" means any work of authorship within the scope of Section 102 of
the United States Copyright Act (or similar successor provision) in a
digital format that can be accessed, used by or provided to a User through
use of the Sony Service.
1.7 "Feature" means a particular service or application provided by a GoAmerica
Provider or a Sony Provider that may be accessed or used through the Sony
Service, such as a stock trading or wireless banking application.
1.8 "Function" means an operation or capability of the Sony Service defined in
software which resides on Client Devices or the GoAmerica Facilities.
1.9 "GoAmerica Content" means Content or Features supplied by GoAmerica that
Users may receive, access or use as part of the Sony Service.
1.10 "GoAmerica Provider" means a third-party publisher, distributor or
application service provider who has entered into a written agreement with
GoAmerica that authorizes GoAmerica to enable such third party's Content or
Features to be accessed or used by Users through the Sony Service.
1.11 "GoAmerica Facilities" means the servers operated by or for GoAmerica to
provide the Sony Service.
1.12 "GoAmerica Service" means GoAmerica's own basic branded wireless and
internet access, personalization and portal service, excluding services or
features for which there is a separate additional charge to end users. The
current base feature set of the GoAmerica Service is set forth on Exhibit D
attached hereto.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
1.13 "GoAmerica Technology" means technology used or provided by GoAmerica to
support the Sony Service, including all software tools, hardware designs,
algorithms, software (in source and object forms), architecture, and
documentation (both printed and electronic), network designs, know-how,
trade secrets and any related Intellectual Property Rights throughout the
world (whether owned by GoAmerica or licensed to GoAmerica from a third
party) and also including any derivatives, inventions, improvements,
discoveries, enhancements or extensions of GoAmerica Technology made,
conceived, reduced to practice, or developed during the term of this
Agreement by GoAmerica.
1.14 "Handheld" means handheld personal digital assistant products marketed by
Sony in the Territory during the Term.
1.15 "Integration Technologies" means the GoAmerica integration technologies
provided by GoAmerica for Sony and Sony Group entities to link and
integrate Sony and Sony Group hardware and online properties to the Sony
Service including all API technologies and smart agent technologies, as
further described in Exhibit B attached hereto.
1.16 "Intellectual Property" or "IP" means any patents, patent rights,
trademarks, service marks, registered designs, applications for any of the
foregoing, copyright, know-how, trade secrets, unregistered design rights,
confidential information, moral rights and any other similar protected
rights in any country and "Intellectual Property Right" has a corresponding
meaning.
1.17 "Jointly Developed Technology" means any technology that (i) is developed
jointly by both parties during the Term; and (ii) is based on or derived
from the collaboration that occurs in furtherance of this Agreement;
provided, however, that such Jointly Developed Technology remains subject
to the rights of either party and any third party in any underlying
Intellectual Property.
1.18 "Launch Date" means the date on which the Sony Service is publicly
announced and first becomes fully operational for public use and a minimum
of 100 Wireless Modems are available for end-user distribution, presently
anticipated to be [**].
1.19 "Sony Notebook" means any model of Sony branded laptop computers which
Sony, after reasonable technical investigation with the cooperation and
support of GoAmerica, advises GoAmerica in writing are compatible with the
Wireless Modems and the Sony Service.
1.20 "Portal Service" means the server-based content and functionality portal
operated by GoAmerica to perform certain addressing, switching and routing
functions of the Sony Service, including personalization features.
1.21 "Sony Content" means Content or Features supplied by Sony that may be
accessed or used as part of the Sony Service.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
1.22 "Sony Provider" means a member of the Sony Group or third-party application
service provider or publisher or distributor of Content contracted by Sony
who has authorized GoAmerica or Sony to enable such third party's Content
or Features to be accessed, used by or provided to Users through the Sony
Service.
1.23 "Sony Functionality" means wireless Internet service Features or Functions
licensed to or developed by or for the Sony Group and provided to GoAmerica
solely for GoAmerica implementation or integration with the GoAmerica
Technology to constitute the Sony Service.
1.24 "Sony Group" means Sony Electronics Inc. and all of its Affiliates
world-wide.
1.25 "Sony Home Deck" means the first screen of the Sony User Interface that
appears to a User on a Client Device upon connection to the Sony Service.
1.26 "Sony Service" means the wireless internet access, personalization page and
content portal service provided by GoAmerica to Users as an integrated
service offering on behalf of Sony as provided in the Service Description
(defined in Section 2.1 below) which incorporates the Sony Functionality
and Sony Content and the GoAmerica Technology and GoAmerica Content,
Connectivity Service (as defined in Section 1.5) and Portal Service (as
defined in Section 1.20).
1.27 "Sony Service Website" means one or more sites on the World Wide Web
identified by the Universal Resource Locator ("URL") as Sony may from time
to time determine) that are hosted and operated by GoAmerica as part of the
Sony Service to provide a site through which Users may activate or
personalize service, order Wireless Modems, make service inquiries and
perform similar tasks.
1.28 "Sony User Interface" shall have the meaning stated in Section 2.6.
1.29 "Subscription" means the activation on the GoAmerica Facilities, pursuant
to a service agreement between GoAmerica and a User, of an individual
Client Device to enable use of the Sony Service, provided that (i) such
Client Device remains activated for three (3) consecutive months after
initial activation ("Start Up Period") and (ii) that GoAmerica is not
making such activation to enable use of the Sony Service [**]. If a Client
Device is activated as a replacement for a previously activated Client
Device, then the initial activation and the replacement shall be counted as
a single Subscription and the duration of each activation shall be added
together to determine when the Start Up Period has been met.
1.30 "Term" shall have the meaning stated in Section 12.1.
1.31 "Territory" means the United States and all territories and possessions,
and any additional countries or geographic areas that the parties may from
time to time agree in writing to include in such defined term.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
1.32 "User Content" means all Content provided to the Sony Service by Users, or
used or accessed by Users through the Sony Service, other than Sony Content
and GoAmerica Content.
1.33 "User Data" means the compilation of data collected by the parties from
Users or prospective Users of the Sony Service. Such data may include,
without limitation, the names, addresses, telephone and fax numbers, e-mail
addresses and credit information and impression/use/commerce data related
to the extent related to specific a User or prospective User. "User Data"
does not include general statistical information collected by either party
concerning the use of the Sony Service, provided such general statistical
information cannot be searched or analyzed to identify particular
information concerning a specific User or prospective User.
1.34 "User" means a person or entity who uses the Sony Service.
1.35 "Wireless Modem" means the wireless modems to be developed, provisioned,
distributed and supported by GoAmerica pursuant to this Agreement.
2. DEVELOPMENT/OPERATION OF THE SONY SERVICE
2.1 Service Description. GoAmerica and Sony shall cooperate to develop, market
and provide the Sony Service in the Territory. Exhibit C attached hereto
("Service Description") describes the Features, Content and Functions that
will initially be included in the Sony Service. Sony, at any time in its
sole discretion, may propose modifications to the Sony Service to add,
delete or modify Features, Functions, Content and supported products. Sony
shall propose such modifications by providing GoAmerica a revised Service
Description. Subject to GoAmerica's obligations under Section 2.10 below,
GoAmerica may reject such proposed revision in whole or in part by giving
Sony written notice within [**] days, provided that GoAmerica may not
reject Sony proposed deletions unless Sony has earlier contractually agreed
to support the Feature, Function or Content proposed by Sony to be deleted.
GoAmerica shall provide the Sony Service with the same degree of quality
and care and to the same performance levels as GoAmerica provides the
GoAmerica Service generally to GoAmerica's own users. GoAmerica's
implementation of modifications to the Sony Service shall have the same
priority as GoAmerica modification of the GoAmerica Service, provided that
for quality assurance and technical implementation staging reasons
GoAmerica may delay Sony implementation for up to [**] days on a
nondiscriminatory basis, so long as there is no competitive impact to the
Sony Service. Sony shall not be required to implement or approve any
modifications to the Sony Service proposed by GoAmerica. While the Sony
Service is initially intended to be marketed to users of Handhelds and Sony
Notebooks, if Sony elects to expand the scope of the Sony Service to target
users of other Sony and third-party equipment, then Sony and GoAmerica
shall mutually agree in writing upon any technical implementation and
support issues that either party, in its reasonable judgment, determines
must be considered and resolved in order for the Sony Services to
accommodate such expansion of the target market.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
2.2 Management Team. The parties shall establish a team (the "Management Team")
comprised of one (1) individual from each of Sony and GoAmerica. The
members of the Management Team will serve as the parties' principal point
of contact for matters relating to the performance of this Agreement. All
of the members of the Management Team shall participate at least once each
month (once each week prior to the Launch Date) in a telephone conference
to review the development, implementation and ongoing performance of the
Sony Service.
2.3 Pricing. The Sony Service shall be made available for offer by GoAmerica at
a price no higher than $[**] for unlimited wireless data access using CDPD
Connectivity Services in connection with a Handheld, $[**] using CDPD
Connectivity Services in connection with a Sony Notebook, $[**] using CDPD
Connectivity Services in connection with a Handheld/Sony Notebook
combination, $[**] using Ricochet Connectivity Services in connection with
a Handheld or Sony Notebook and $[**] using Ricochet Connectivity Services
in connection with a Handheld/Sony Notebook combination in those GoAmerica
CDPD and Ricochet coverage areas as detailed on the general GoAmerica
web-site.
2.4 Provisioning, Fulfillment and Support. GoAmerica will be responsible for
providing Connectivity Services on the networks listed in the Service
Description, implementing, hosting, operating and maintaining the Portal
Service, providing fulfillment services for Wireless Modems, provisioning
of new Users to the Sony Service, and providing customer support. Specific
program details are set forth in Exhibit C attached hereto (the "Service
Description"). Revisions and updates to the Program Description shall be
made in writing as mutually agreed by the parties.
2.5 Manuals and Documentation. At its expense, GoAmerica will develop, author,
and maintain user manuals and documentation for the Sony Service including
guides, wizards, online and offline documentation and related support
scripting (collectively, "Documentation"). The Documentation shall be
comparable in scope and content to the user manuals and documentation
GoAmerica provides to users of the GoAmerica Service. Each party shall have
the right of approval of the Documentation. Sony shall have the right to
determine and/or approve the graphic design thereof, including branding and
the use of Sony trademarks, as provided in Section 3 of this Agreement.
2.6 Content Development, Sourcing and Integration. Sony will develop and
specify to GoAmerica a technically practicable Sony "look and feel" for the
Sony Service, including content GUI, menu hierarchy, fonts and logos ("Sony
User Interface"). [**], GoAmerica will incorporate the Sony User Interface
into the Sony Service. Sony shall have the right, without obligation, to
provide its own Features, Functions and Content and to develop content
arrangements with Sony Providers, either for access to content, placement
agreements, use of logos, advertising agreements and other arrangements
which GoAmerica will, [**] incorporate into the Sony Service. Unless
otherwise agreed, Sony Content, the Sony User Interface and any Features or
Function provided by Sony shall be used exclusively for the Sony Service.
The appropriate Sony Group member retains all rights to such features and
may at its option elect to allow GoAmerica to offer it throughout
GoAmerica's network.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
2.7 Connectivity Service. Unless otherwise agreed by Sony in circumstances
where Sony procures Connectivity Service directly from wireless carriers,
GoAmerica shall be responsible for procuring Connectivity Services from the
appropriate wireless carriers in order to provide the Sony Service in those
areas of the Territory where such carriers provide coverage. Except with
respect to Connectivity Services that Sony procures directly from wireless
carriers, GoAmerica shall be solely responsible for all payments to such
carriers for access time or other carrier products or services included
within the Sony Service. Sony shall cooperate with GoAmerica to ensure that
the Sony Service meets any technical requirements or usage policies of such
carriers. To the extent its carriers enable GoAmerica to do so, GoAmerica
shall manage Connectivity Service provisioning so that GoAmerica will be
the only interface to and from a customer and a customer will not need to
interact directly with GoAmerica's wireless carriers to provision service;
provided, however, that even in instances where interaction with
GoAmerica's wireless carriers to provision service is necessary, GoAmerica
shall facilitate coordination with such carriers and assist customers in
any issues with such carriers.
2.8 Launch Schedule. The Beta Launch Date is scheduled for [**] and the Launch
Date (including supply of at least [**] devices) for [**]. Changes to such
schedule shall be made only with Sony's written approval.
2.9 Customer, Sales and Technical Support. Upon the Launch Date, GoAmerica
shall provide customer, sales and technical support ("Support Service") for
the Sony Service twenty-four (24) hours daily and seven (7) days per week.
Support Service shall be accessible to Users via toll-free telephone, and
all incoming support requests shall generally be received by a live
operator and not by an automated answering service. In order to remain
consistent with the terms of Section 3.1 regarding branding of the Sony
Service, Support Service operators shall identify the Support Service to
all callers as determined by Sony, using support service scripts similar to
those used by Sony itself or otherwise approved by Sony. In addition, all
written or electronic communications with Users concerning the Support
Service shall be branded or identified as determined by Sony pursuant to
Section 3.1. Sony will provide to GoAmerica information required for
GoAmerica to effect the "soft hand-off" to Sony, Sony Affiliates or third
parties designated by Sony of inquiries made to the Support Service that
relate to issues other than the Sony Service and the Wireless Modems,
including but not limited to hardware and software issues concerning Sony
products such as Handhelds or Sony Notebooks and third-party software not
supplied by GoAmerica. GoAmerica will provide to Sony information required
for Sony, Sony Affiliates or third-party suppliers to Sony to effect the
"soft hand-off"of inquiries received that relate to the Sony Service or the
Wireless Modems. Sony shall have the right to approve all GoAmerica call
scripts and establish reasonable minimum standards for GoAmerica's
representative training. GoAmerica shall provide a special toll-free number
for Sony's immediate around the clock access to GoAmerica technical support
for use in escalation situations and other situations requiring immediate
GoAmerica support of Sony. Minimum guidelines for service
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Confidential Materials omitted and field separately with the Securities and
Exchange Commission. Asterisks denote omissions.
metrics are set forth on Exhibit E attached hereto. GoAmerica shall provide
reporting to Sony of service metrics in the form provided in Exhibit E
attached hereto on a monthly basis. GoAmerica shall provide training to
Sony customer service and sales/marketing personnel at GoAmerica's cost,
including required travel to Sony facilities in the Continental United
States, sufficient for such personnel to properly represent the Sony
Service to Sony's reasonable satisfaction.
2.10 Service Enhancements. GoAmerica shall use commercially reasonable efforts
to maintain and enhance the Features, Functions, Content quality, and value
of the Sony Service to compete effectively with other similar commercially
available wireless services targeted to handheld and notebook category
devices. GoAmerica and Sony shall meet regularly to review GoAmerica's
product and service development plans and schedules. GoAmerica shall give
all commercially reasonable consideration to including GoAmerica's plans
for product and service development as a high priority in all enhancements
that Sony proposes that would benefit both parties and merit such priority.
At Sony's option, subject to the terms, conditions, license restrictions or
limitations of any applicable agreements GoAmerica may have with any third
party, all of which shall be nondiscriminatory as to Sony, GoAmerica shall
include in the Sony Service any additional features and functions of the
GoAmerica Service that GoAmerica makes available to users of the GoAmerica
Service during the Term. Notwithstanding the above, at Sony's option,[**],
GoAmerica shall include in the Sony Service any additional features and
functions of the GoAmerica Service marketed by GoAmerica as part of its
"basic" or "standard" service.
2.11 Territory. The Sony Service shall be made available only in the Territory,
provided, however, that Sony may (i) from time to time conduct
demonstrations of the Sony Service outside the Territory at trade shows or
other similar events, (ii) make incidental distribution of materials
promoting the Sony Service, so long as Sony clearly indicates that the Sony
Service is not available outside the Territory. Sony acknowledges that
Connectivity Services provided by GoAmerica as part of the Sony Service may
not be available for any demonstration Sony desires to conduct outside the
Territory and that GoAmerica shall have no obligation to provide or procure
Connectivity Services outside the Territory for any purpose.
3. BRANDING AND TRADEMARKS
3.1 Sony Branding. Sony shall determine, in its sole discretion, the Sony
Service's branding, logo, trademark and domain name address.
3.2 GoAmerica and Other Branding. GoAmerica's brand, trademark or logo will be
presented on the Sony Service as "Towered by GoAmerica" below the fold.
Branding on collateral marketing and advertising will be consistent with
such presentation. Branding of other third-party technology, content or
connectivity providers shall be exclusively controlled by Sony.
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3.3 Control of Branding. All uses of trademarks, logos or other branding on the
Sony Service is subject to the direction and control of the Sony Design
Center and Sony's Trademark & Brand Identity Committee.
3.4 Sony Trademarks. Sony shall have and retain sole ownership of any and all
Sony trademarks, trade names, logos, and service marks used in connection
with the Sony Service including the goodwill pertaining thereto. Use by
GoAmerica of any Sony trademarks or service marks must specifically be
approved by Sony in writing prior to use by GoAmerica. GoAmerica shall not
use any trademark or trade name of Sony or any word, symbol or design
confusingly similar thereto, as part of its corporate name, or as part of
the name of any product of GoAmerica. GoAmerica shall not remove or alter
any of the Sony trademarks or service marks, including proprietary or
copyright notices, on the Sony GUI, the Sony Services, or related materials
without Sony's prior written consent. To protect and preserve the goodwill
and image of Sony, GoAmerica shall (1) conduct business in a manner that
reflects favorably at all times on the products, services, and reputation
of Sony; (2) avoid deceptive, misleading, or unethical practices that are
or might be detrimental to Sony or the products for the public, including
any disparagement of Sony or the Sony Services; (3) make no false or
misleading representations with regard to Sony; (4) refrain from publishing
or employing any misleading or deceptive advertising materials; and (5)
refrain, unless permitted by Sony, from making any representations,
warranties or guarantees to third parties or to the trade with respect to
the specifications, features or capabilities of the Sony Services.
3.5 GoAmerica Trademarks. GoAmerica shall have and retain sole ownership of any
and all GoAmerica trademarks, trade names, logos, and service marks used in
connection with the Sony Service including the goodwill pertaining thereto.
Use by Sony of any GoAmerica trademarks or service marks must be
specifically approved by GoAmerica in writing prior to use by Sony provided
that any use example once approved may be deemed approval for similar uses
until such approval is withdrawn. Sony and its Affiliates shall not use any
trademark or trade name of GoAmerica or any word, symbol or design
confusingly similar thereto, as part of the corporate name of any member of
the Sony Group, or as part of the name of any product of Sony. Sony shall
not remove or alter any trademark or service marks of GoAmerica, including
proprietary or copyright notices, on products or services provided by
GoAmerica without GoAmerica's prior written consent, except to the extent
that this Agreement provides that such GoAmerica product or service shall
be branded by Sony. To protect and preserve the goodwill and image of
GoAmerica, Sony shall (1) conduct business in a manner that reflects
favorably at all times on the products, services, and reputation of
GoAmerica; (2) avoid deceptive, misleading, or unethical practices that are
or might be detrimental to GoAmerica, the GoAmerica Services or products,
including any disparagement of GoAmerica or the GoAmerica Services; (3)
make no false or misleading representations with regard to GoAmerica; and
(4) refrain from publishing or employing any misleading or deceptive
advertising materials.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
4. EXCLUSIVITY; TERRITORIAL EXPANSION
4.1 Exclusivity. During the Term, Sony will not co-brand, co-market or
otherwise actively promote any other third party CDPD or Ricochet wireless
service intended for primary use with the Handheld other than through
engineering support, such as provisioning of electrical or mechanical
specifications or verification of compatibility. The parties agree to
discuss other network technologies and may choose to expand or amend the
Agreement in writing to include such technologies. While this Agreement is
in effect, the Sony Service shall be GoAmerica's only service offering
targeted to the Handheld, provided that GoAmerica may market the GoAmerica
Service to Handheld customers in vertical market segments not served by
Sony and in circumstances where GoAmerica has significant inventories only
useable with Handhelds after Sony has provided its standard end of life
notification to its dealers for Handhelds requiring custom modem/sled
designs.
4.2 Territorial Expansion. During the Term, if a Sony Affiliate elects to offer
a service similar to the Sony Service in another geographic area outside
the United States in which GoAmerica provides a service similar to the
GoAmerica Service, then, subject to any terms, conditions, or covenants in
any agreement predating the Effective Date GoAmerica may have with a third
party that restrict, limit or otherwise affect GoAmerica's right to do so,
GoAmerica [**] in such area [**] the terms and conditions of an agreement
to provide services similar to the services GoAmerica is providing under
this Agreement. In conducting such negotiations, the parties, or their
Affiliates, shall, to the extent reasonably possible, make a good faith
effort to agree upon terms [**], taking into account all local factors
reasonably relevant to such negotiations, including differences in the cost
or availability of goods, services and labor and the rules, regulations and
laws (including but not limited to telecommunications regulations) in
effect in such geographic area that may affect the terms on which such
service can be offered.
5. WIRELESS MODEMS
5.1 Development. GoAmerica will manage the development of Wireless Modems for
all Handhelds and Sony Notebooks by contracting with third parties for the
design and manufacture of Wireless Modems, on such terms and conditions
with such third parties as GoAmerica determines in its sole discretion are
appropriate for such purpose, provided such terms are consistent with the
terms of this Agreement. Sony shall have the right to approve or reject
GoAmerica's choice of Wireless Modem manufacturer. Sony shall have the
final right, prior to initial production, to approve the technical
specifications for each model of Wireless Modem. Sony shall also have the
right, prior to initial production, to approve any retail packaging for
each model of Wireless Modem. In exercising such rights of approval, Sony
shall abide by the reasonable scheduling requirements of GoAmerica and the
Wireless Modem manufacturer in order to avoid delay in the procurement of
components or production of Wireless Modems. GoAmerica shall be responsible
that the manufacturer comply with all applicable laws, rules and
regulations
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
concerning the safety of such devices and the licensing, testing, or type
acceptance thereof, including all related record keeping and reporting
obligations, and shall fully indemnify Sony with respect to such compliance
and claims related thereto. GoAmerica shall provide Sony with all
documentation and records reasonably related to such compliance and
reporting, if reasonably requested by Sony. The industrial design of
Wireless Modems shall be exclusive to Sony if such design is based upon
drawings and specifications provided by Sony. Notwithstanding the above,
Sony shall [**] with or [**] support the Sony Service, in which case
GoAmerica shall [**] by Sony, subject to Sony's [**] arrangements.
5.2 Sale. GoAmerica will sell such Wireless Modems under the GoAmerica brand
bundled with the Sony Service through GoAmerica's direct sales channels,
such as its website and toll-free telephone number. GoAmerica shall also
use commercially reasonable efforts to distribute and sell Wireless Modems
through GoAmerica's indirect sales channels, subject to the terms,
conditions and limitations of any applicable agreements with third parties.
Upon Sony's request, Sony may sell the Wireless Modems directly via Sony
websites or other Sony distribution channels, in which case GoAmerica shall
provide the Sony reseller on a non-discriminatory basis any incentives
provided to other similar distribution channels, appropriately taking into
account any subsidies/payments GoAmerica is already paying Sony so as to
allow Sony to offer a competitive end user value taking into consideration
prevailing industry margins.
5.3 Costs and Subsidy. Sony agrees to consult and cooperate with GoAmerica at
Sony's. own expense in the integration of the Wireless Modems with the
Handhelds and Sony Notebooks by providing relevant and reasonably necessary
and/or useful technical information including but not limited to mechanical
CAD reference resources, i/o interface descriptions and direction regarding
product cosmetic appearance and physical fit with the Handheld and the Sony
Notebooks. GoAmerica will bear all costs associated with the design,
development, production and sale (other than Sony's costs for such
consultation and cooperation and Sony's costs for sales by Sony) of the
Wireless Modems. GoAmerica shall offer prospective users a rebate against
the retail price of each Wireless Modem to reduce the retail cost of each
CDPD Wireless Modem to not more than $[**] and each Ricochet Wireless Modem
to not more than $[**] with a twelve (12) month service contract; provided
that the total end user cost for each Wireless Modem shall be [**] marketed
[**] by GoAmerica in connection with the GoAmerica Service, taking into
account any subsidies/payments GoAmerica is already paying Sony so as to
allow Sony to offer a competitive end user value taking into consideration
prevailing industry margins.
5.4 Warranty and Service of Modems. As between the parties, GoAmerica shall be
responsible for the warranty and service of the Wireless Modems. Each
Wireless Modem shall be offered for sale with a limited warranty on
commercially reasonable terms valid for not less than one (1) year from the
date of purchase ("Limited Warranty"). The
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specific terms of the Limited Warranty shall be generally consistent with
prevailing practice for similar products in the wireless data services
industry, but in no event less favorable to the purchaser than the limited
warranty terms GoAmerica offers its own subscribers for similar products.
GoAmerica shall itself or through third parties that it has made
arrangements with provide all in warranty and out of warranty
repair/replace service for the Wireless Modems at a standard of performance
at least equal to GoAmerica's own arrangements for wireless modems provided
in conjunction with the GoAmerica Service. GoAmerica shall indemnify Sony
against any and all claims arising from the failure to provide a Limited
Warranty as required by this Section 5.4, and for all claims for the breach
thereof.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
6. MARKETING OF SERVICE
6.1 General. The parties agree to cooperate in the marketing of the Sony
Service. Without limiting the generality of the forgoing, (a) Sony agrees
to advertise sales promotions relating to the Sony Service to Sony VAI0
customers via email consistent with general Sony email policies, (b) Sony
may, subject to production schedules, place marketing literature designed
and produced by GoAmerica and approved by Sony in Handheld boxes and (c)
Sony agrees to place advertising banners designed by GoAmerica and approved
by Sony on a special Sony "microsite" promoting the Sony Service and
directing customers to a GoAmerica operated website where the Sony Service
may be ordered. After consulting in good faith with GoAmerica, Sony shall
approve and control all marketing communications including billing
communications.
6.2 GoAmerica Provision of Marketing Funds. GoAmerica shall provide up to [**]
dollars ($[**]) of cooperative marketing funds during the Term towards the
marketing of the Handheld with the Sony Service. Sony must expend [**]
dollars ($[**]) on advertising or support of dealer advertising mentioning
the Sony Service to accrue [**] dollar ($[**]) of funds from GoAmerica,
subject to the [**] dollar ($[**]) GoAmerica cap. GoAmerica shall pay Sony
within [**] days of Sony's submission of evidence of advertising spend.
Sony shall follow written guidelines set forth in Exhibit G attached hereto
in such GoAmerica funded advertisements and obtain GoAmerica's specific
written approval, which shall not be unreasonably withheld. Failure by
GoAmerica to disapprove an advertisement within [**] business days of its
written receipt shall be deemed approval.
6.3 Marketing Compliance/End User Terms. GoAmerica shall be responsible for all
legally required consumer disclosure compliance regarding Sony Service
functionality, business terms, limitations of coverage and features. Unless
otherwise agreed in writing by GoAmerica, the Sony Service shall be
offered, sold and provided to Users subject to GoAmerica's then current
standard terms and conditions of service ("User Agreement"). GoAmerica
shall have no obligation to provision the Sony Service for any prospective
User who has not accepted such terms and conditions by written or
electronic signature or such other form of agreement as GoAmerica in its
sole discretion may deem appropriate. Not less than [**]) days before
making any material revisions to the User Agreement applicable to the Sony
Service, GoAmerica shall notify Sony of its intention to do so and the date
such revisions will be adopted ("Adoption Date") and shall provide Sony
with a copy of the proposed revisions. If Sony determines that the proposed
revisions are substantially inconsistent with the terms and conditions on
which other similar wireless data services are offered, and that the
adoption of the proposed revisions would have a material adverse affect on
the marketability of the Sony Service, then Sony shall notify GoAmerica in
writing of such determination prior to the Adoption Date. Upon receipt of
such notification, (i) representatives of Sony and GoAmerica, together with
legal counsel for each party, shall promptly confer to discuss whether the
proposed revisions or mutual alternative revisions, should be adopted, and
(ii) GoAmerica shall not adopt the proposed revisions. Sony shall have no
right to object to any proposed revisions to the User
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Agreement for any reason other than as stated above or unless GoAmerica's
legal counsel confirms in writing to Sony that the proposed revisions are
required to comply with regulatory or carrier requirements or the
unambiguous terms of any agreement with a GoAmerica Provider. Sony's
obligation to such proposed revisions shall not affect GoAmerica's right to
adopt such proposed revisions for terms and conditions of the GoAmerica
Service or any other GoAmerica co-branded service.
6.4 Demonstration Accounts. GoAmerica shall provide to Sony [**] service
accounts to be used in the marketing and promotion of the Sony Service as
Sony sees fit. Sony is responsible for purchasing the Wireless Modems for
these service accounts. Additionally, GoAmerica will provide "demonstration
accounts" for authorized Sony retailers of the Handheld [**] to Sony and at
GoAmerica's cost to the retailer. Such accounts shall not be deemed
"Subscriptions" for purposes of either Sections 7 or 8.
6.5 Letter Agreement Promotion. The parties agree to carry out the promotion
that was begun pursuant to the letter agreement between the parties dated
December 11, 2000, a copy of which is annexed hereto as Exhibit J (the
"Letter Ageement"). Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 14
of the Letter Agreement are hereby incorporated into and made a part of
this Agreement.
7. COMPENSATION AND REVENUE SHARING
7.1 GoAmerica to Retain Revenues. GoAmerica shall have the right to receive and
retain all Sony Service revenues from the base Sony Service as described in
Exhibit C attached hereto. The parties specifically agree that there is no
guarantee that Sony Service revenues will exceed GoAmerica's cost in
performing its obligations, or that Sony will continue marketing any
particular hardware product mix or any particular quantity of hardware
products. Sony shall provide GoAmerica with non-binding forecast numbers as
they relate to the said product mix. If Sony knows it will be canceling or
changing the Handhelds so as to be incompatible with the Sony Service, it
shall inform GoAmerica in writing within [**] days. At a minimum, Sony must
offer for sale at least [**]particular model of Handheld that is physically
compatible with the Wireless Modems during the Initial Term (as defined in
Section 12.1) of the contract.
7.2 One Time Payments to Sony. GoAmerica will pay Sony a one-time sales
commission payment ("Activation Fee") for each new Subscription to the Sony
Service in the amount provided in Exhibit F attached hereto.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
7.3 Ongoing Payments to Sony. GoAmerica will pay Sony a percentage (the
"Residual Rate") of the Base Recurring Revenue (as defined immediately
below) each month for each Subscription ("Residual Fee"), for as long as
that Subscription remains activated on the Sony Service. "Base Recurring
Revenue" shall mean all recurring monthly fees actually paid to GoAmerica
for use of the Sony Service as described in the Service Description
(Exhibit C) and shall not include Additional Revenues as defined in Section
7.4 below. GoAmerica shall only incur the Residual Fee payment obligation
after the first [**] of service (the "Start Up Period"), but such payment
obligation shall include the [**] retroactive Base Recurring Revenue for
such Start Up Period once the Start Up Period requirement has been
satisfied.
7.4 Additional Revenues. The parties shall share, on terms set forth in this
Section, additional gross revenues received by either party for any changes
to the Sony Service made beyond the base service set forth in the Service
Description (Exhibit C) , as such Service Description is amended from time
to time, including improvements, additional Content, content partners,
content revenue sharing arrangements, content placement revenue, banner
advertising or other additional services, but excluding GoAmerica
non-network professional services revenues from services targeted to
business users that are approved by Sony ("Additional Revenue"). GoAmerica
shall retain [**] percent ([**]%) of all Additional Revenues derived by
GoAmerica from a GoAmerica Provider (other than a GoAmerica Provider whose
Content or Features were included in the Sony Service as initially provided
on the Effective Date), and shall pay the remaining [**] percent ([**]%) to
Sony. Sony shall retain [**] percent ([**]%) of all Additional Revenues
derived by Sony from a Sony Provider (other than a Sony Provider whose
Content or Features were included in the Sony Service as initially provided
on the Effective Date), and shall pay the remaining [**] percent ([**]%) to
GoAmerica. Notwithstanding the above, Sony shall retain any revenues
obtained from Sony Affiliates.
7.5 Timing of Payments; Report of Payment Calculation. Payments shall be made
monthly no later than [**] from the end of each calendar month. For each
month, GoAmerica shall pay Sony (i) Residual Fees with respect to all Base
Recurring Revenues actually paid to GoAmerica during such month for
Subscriptions whose Start Up Period has expired and any Residual Fees
retroactively due for Subscriptions whose Start Up Period expired during
such month and (ii) Activation Fees with respect to all new Subscriptions
whose Start Up Period expires during such month. Additionally, each party
shall pay the other any Additional Revenues due, owing and payable. Each
party shall provide the other, together with each payment, a report in
sufficient detail for the receiving party to confirm satisfaction of
payment requirements.
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8. WARRANTS
8.1 In further consideration of Sony's undertakings pursuant to this Agreement,
GoAmerica and Sony shall enter into a warrant agreement to be effective
January 1 2001, whereby GoAmerica shall grant Sony a warrant to acquire
Five Hundred Thousand (500,000) shares of the common stock of GoAmerica at
an exercise price of $16.00 per share. Such warrant agreement shall be in
the form annexed hereto as Exhibit G.
8.2 In the event Sony elects to exercise its right pursuant to Section 12.1 of
this Agreement to extend this Agreement for the First Renewal Term, then
promptly after Sony gives notice of such election, in consideration of such
election GoAmerica and Sony shall enter into a second warrant agreement to
be effective on the first anniversary of the Launch Date whereby GoAmerica
shall grant Sony a warrant to acquire Two Hundred Fifty Thousand (250,000)
shares of the common stock of GoAmerica at an exercise price equal to the
average closing price of such shares for the ten (10) trading day period
ending three (3) trading days prior to the date such second warrant
agreement becomes effective. In the event that, as of the date such second
warrant agreement becomes effective, the total number of Subscriptions is
equal to or greater than thirty thousand (30,000), then the number of
shares that Sony will have the right to purchase pursuant to such second
warrant agreement shall be increased by two hundred fifty thousand
(250,000), to a total of five hundred thousand shares (500,000). The second
warrant agreement shall be in substantially the same form as Exhibit G
attached hereto except for the number of shares that Sony shall have the
right to acquire, and the price per share.
8.3 In the event Sony elects to exercise its right pursuant to Section 12.1 of
this Agreement to extend this Agreement for the Second Renewal Term, then
promptly after Sony gives notice of such election, in consideration of such
election GoAmerica and Sony shall enter into a third warrant agreement to
be effective on the second anniversary of the Launch Date whereby GoAmerica
shall grant Sony a warrant to acquire Two Hundred Fifty Thousand (250,000)
shares of the common stock of GoAmerica at an exercise price equal to the
average closing price of such shares for the ten (10) trading day period
ending three (3) trading days prior to the date such third warrant
agreement becomes effective. In the event that, as of the date such third
warrant agreement becomes effective, the total number Subscriptions is
equal to or greater than one hundred thousand (100,000), then the number of
shares that Sony will have the right to purchase pursuant to such third
warrant agreement shall be increased by two hundred fifty thousand
(250,000), to a total of five hundred thousand shares (500,000). The third
warrant agreement shall be in substantially the same form as Exhibit I
attached hereto except for the number of shares that Sony shall have the
right to acquire, and the price per share.
8.4 Sony shall have standard piggyback registration rights with respect to all
shares of common stock of GoAmerica issued upon the exercise of any
warrants that are granted pursuant to this Section 8 pursuant to a
registration rights agreement in the form of Exhibit J attached hereto.
8.5 For purposes of Sections 8.2 and 8.3 above, the term "Subscription"
includes all subscriptions to the GoAmerica Service for which a bounty is
or was payable to Sony
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pursuant to the terms of the Letter Agreement between the parties dated
December 11, 2000, a copy of which is annexed hereto as Exhibit J.
9. INTELLECTUAL PROPERTY
9.1 License to Sony by GoAmerica. GoAmerica hereby grants to Sony, with a right
to sublicense to any and all members of the Sony Group, for use in
connection with Sony/Sony Group websites, devices and online services
targeted to the Territory, a worldwide non-exclusive, royalty-free license
during the Term, and as reasonably needed for customer support thereafter,
to the Integration Technologies.
9.2 License to GoAmerica by Sony. Sony hereby grants GoAmerica a worldwide,
non-exclusive, royalty-free license during the Term to use, perform,
display and copy the Sony Technology, including the Sony User Interface, as
reasonably necessary or useful to perform GoAmerica's obligations under
this Agreement. Sony hereby grants GoAmerica the worldwide, non-exclusive
right and license during the Term to use and copy User Data (1) as
reasonably necessary or useful for the purpose of performing GoAmerica's
obligations under this Agreement and (2) as GoAmerica deems useful for the
purpose of promoting and marketing to Users of the Sony Service other
GoAmerica products and services that Sony has specifically approved in
writing for GoAmerica's promotion and marketing activities. GoAmerica's use
of User Data shall be subject to Sony's privacy policies in effect from
time to time and applicable law.
9.3 Ownership of Intellectual Property. All Jointly Developed Technology shall
be owned jointly by GoAmerica and Sony with full mutual joint and several
rights of exploitation with no duty to account one to the other. Each party
will continue to exclusively own any IP owned by such party and
incorporated into the Sony Service.
9.4 User Data. As between the parties Sony shall own all rights to User Data,
subject to the license rights granted above. Sony shall have access to the
User Data in standard electronic format through quarterly electronic media
transmittals from GoAmerica as well as up to three additional times a
quarter upon request.
9.5 Protection of Jointly Developed Technology. Sony and GoAmerica agree to
take action necessary to protect Intellectual Property Rights in any
Jointly Developed Technology ("Jointly Owned IP"), including but not
limited to deciding who should write and file patent applications and
cooperating as necessary in filing appropriate applications. In general,
the parties anticipate that if the Jointly Developed Technology primarily
relates to Sony technology, Sony will file and that if the Jointly
Developed Technology relates to GoAmerica technology, GoAmerica will file.
Each party will cooperate in good faith to achieve the purpose of this
Section. The parties agree to use their best efforts to determine the
countries in which to file, prosecute and maintain Jointly Owned IP rights,
giving highest priority to the United States, Europe and Japan. If a party
does not want to pay for or participate in the filing, prosecution or
maintenance of any such patent for Jointly Owned IP right in any country it
will have the right to notify the other party to that effect, whereupon the
notifying's party's obligation to pay for or participate in the filing,
prosecution or maintenance of any such patent will cease and the other
party shall
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have the right to procure such patent right at its own cost and
shall own such patent in such country.
10. RESPONSIBILITY FOR CONTENT AND ACTIVITY FACILITATION
10.1 Illegal Content/Activity. Each party shall be responsible for preventing
when practical and otherwise minimizing illegal content of any kind, or
facilitation of illegal activity, from that portion of the Sony Service
provided by that party and will be responsible to remove same or prevent
further access to such content or facilitation once aware of its presence.
10.2 Access to Adult Content. Access security designed to limit access to
persons 18 years of age or older who request access after disclosure of the
adult nature of content shall be required for any adult-oriented content
provided by a party.
10.3 Cooperation with Law Enforcement. Each party shall, to the extent permitted
by law, coordinate with the other so as fully cooperate with law
enforcement authorities in the Territory, provided that nothing in this
Section shall be deemed to restrict a party from requiring a subpoena or
judicial writ before making information available, or from withholding
information from the other party if directed to do so by law enforcement
authorities or judicial order.
10.4 Removal of Content and Disablement of Features. Each party shall remove any
Content or disable any Features or Functions that a court of competent
jurisdiction has ordered removed or disabled on the basis of copyright or
other infringement or violation of rights of publicity/privacy or that the
other party reasonably requests to have removed or disabled.
10.5 Joint Defense and Claim Resolution. In the event either party is made party
to a claim regarding User Content or a User's illegal use of the Sony
Service, the parties shall jointly defend such claim, pursue any remedies
reasonably available against such User and shall share equally in the cost
of such defense, pursuit of such remedies and any judicial awards or
settlements (both positive and negative), provided that to the extent any
claim results from the breach of a duty by one party to the other pursuant
to this Agreement, the breaching party shall bear all defense and claim
resolution obligations.
11. CONFIDENTIALITY
11.1 Each party possesses certain valuable confidential and/or proprietary
information (the "Confidential Information"), including documents and
materials, whether printed or in machine-readable form or otherwise, which
they will disclose to the other for purposes of implementation of this
Agreement.
11.2 Each party agrees to safeguard and hold in confidence and to neither
directly nor indirectly disclose nor use same, other than for purpose for
which such disclosure is being made, any of the Confidential Information:
(i) disclosed by the disclosing party, its agents or employees hereunder;
or, (ii) obtained from the disclosing party as a result of the activities
contemplated by this Agreement; provided, however, that Sony may
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disclose the Confidential Information to Sony Group members with a need to
know hereunder, as long as they agree to be bound by this Agreement to the
same extent as Sony is bound. The parties' obligations under this Section
11.2 shall continue while this Agreement is in effect and for three (3)
years thereafter; provided, however, that with respect to software provided
by either party to the other, the receiving party's obligation shall
continue until such time, if ever, as one of the conditions set forth in
Section 11.6 below applies.
11.3 The parties represent and warrant to each other that the disclosure of
their respective Confidential Information under this Agreement or the
disclosure of any other information in connection therewith will not
violate any proprietary rights of third parties, including, without
limitation, confidential relationships, patent and copyrights, or trade
secrets, and that such disclosures will not violate any contractual
obligations that Sony or GoAmerica may have to any third party.
11.4 GoAmerica acknowledges that the Sony Group does not need or desire to
receive either: (1) U.S government classified information; or (2) any
otherwise restricted information, the receipt, disclosure, use or retention
of which causes a violation under any provision of the United States Code
or any other trade secret laws within the Territory. GoAmerica accordingly
agrees that such information will not be provided, either orally or in
writing, to Sony.
11.5 Sony acknowledges that the GoAmerica does not need or desire to receive
either: (1) U.S. government classified information; or (2) any otherwise
restricted information, the receipt, disclosure, use or retention of which
causes a violation under any provision of the United States Code or any
other trade secret laws within the Territory. Sony accordingly agrees that
such information will not be provided, either orally or in writing, to
GoAmerica.
11.6 The parties understand that their obligations of non-disclosure and non-use
under this Agreement shall not apply to any portion of a disclosing party's
Confidential Information that a receiving party can demonstrate falls
within any of the following categories:
11.6.1 That, as of the Effective Date, was already known by the receiving
party or its Affiliates without obligation of confidentiality, as
demonstrated by appropriate evidence antedating the relationship
between Sony and GoAmerica; or,
11.6.2 That, after the Effective Date, is obtained by the receiving party
or its Affiliates from a third party which is lawfully in possession
thereof and is not in violation of any contractual or legal
obligation to the disclosing party with respect thereto; or,
11.6.3 That, as of the Effective Date, is, or after the Effective Date,
becomes part of the public domain through no fault of the receiving
party or any of its Affiliates; or,
11.6.4 That, after the Effective Date, is independently ascertained by the
receiving party or its Affiliates or is developed for the receiving
party or for its Affiliates by their employees or any third party,
any of which have not had access either directly or indirectly to
the Confidential Information; or,
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11.6.5 That, after the Effective Date, is required to be disclosed by any
administrative or judicial action, provided, however, that the
receiving party attempts to maintain the confidentiality of the
Confidential Information by asserting in such action any applicable
privileges and, immediately after receiving notice of such action,
notifies the disclosing party of such action to give the disclosing
party the opportunity to seek legal remedies to maintain the
confidentiality of same; or,
11.6.6 That must be disclosed under the rules and regulations of the
Securities and Exchange Commission or similar foreign securities
regulators.
11.7 Each receiving party agrees to restrict access to all of the Confidential
Information of the disclosing party to only such of their employees and
contractors who: (i) require the Confidential Information for the purpose
for which such disclosure is being made under this Agreement; and, (ii)
have agreed in writing with the receiving party to maintain the
confidential nature of all information (including that of third parties)
disclosed to or received by them in the course of their employment or
retention.
11.8 Each receiving party agrees to use the same degree of care and scrutiny to
avoid disclosure, publication or dissemination of the Confidential
Information of the disclosing party as they would use with respect to
their own Confidential Information, but the use of such efforts shall not
constitute a defense in the event that the Confidential Information of the
disclosing party is not kept confidential in accordance with the
provisions of this Agreement. Each receiving party, at its own expense,
shall take all reasonable measures including, but not limited to, court
proceedings to restrain their employees and contractors or former
employees and contractors from unauthorized disclosure or use of the
Confidential Information of the disclosing party.
11.9 Each party agrees to return all Confidential Information of the other so
disclosed and any copies of same upon the termination of this Agreement or
at such other time as the other may request, provided, however, that the
receiving party may retain one copy thereof in the confidential,
restricted access files of its legal department/legal counsel for use only
in the event a dispute arises between the parties hereunder and only in
connection with that dispute and sufficient copies to permit such party to
fulfill its obligations to third parties.
11.10 Confidential Information to which the parties' obligations of
non-disclosure and non-use under this Agreement extend, shall be limited
to that which is disclosed to the receiving party in writing and marked
"Confidential" by the disclosing party or which is disclosed orally but
identified by the disclosing party at that time as being Confidential and,
within thirty (30) days thereafter, is reduced to writing and marked
"Confidential" by the disclosing party and re-disclosed to the receiving
party. This Agreement and its exhibits shall be deemed Confidential
Information.
11.11 Either party's disclosure of the Confidential Information or other
information to the other under this Agreement shall not constitute an
option, grant or license to the receiving party under any patent or other
rights now or hereinafter held by the disclosing party.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
12. TERM, TERMINATION & TRANSITION PROCESS
12.1 Term. The term of this Agreement shall be one year from the Launch Date.
("Initial Term") Sony, at its sole option may elect to renew this Agreement
after the Initial Term as follows: (a) for one (1) year beginning on the
first anniversary of the Launch Date ("First Renewal Term"), by giving
written notice of such election to GoAmerica not less then sixty (60) days
prior to such anniversary; and thereafter (b) for an additional one (1)
year period beginning on the second anniversary of the Launch Date ("Second
Renewal Term"), by giving written notice of such election to GoAmerica not
less than sixty (60) days prior to such second anniversary. As used in this
Agreement, "Term" means the Initial Term and, if applicable, the First
Renewal Term, the Second Renewal Term and the Transition Process (as
defined below).
12.2 Transition Process. If the Initial Term or First Renewal Term is not
extended or this Agreement reaches the end of the three (3) year maximum,
the following procedure shall occur during up to the first four (4) months
after the end of the Initial Term or Second Renewal Term, as applicable: at
Sony's election, GoAmerica shall continue to operate the Sony Service on
its servers and through its contracted carriers for a maximum of [**]
months during which time the Sony Service shall be transitioned by
GoAmerica to Sony's designated carriers and servers (the "Transition
Process"); provided, however, that if the Initial Term or First Renewal
Term is not extended or this Agreement reaches the end of the three (3)
year maximum, Sony shall amortize actual GoAmerica wireless modem costs
paid to third-party suppliers for recently acquired Users by compensating
GoAmerica in an amount equal to [**] percent ([**]%) of the actual
incremental GoAmerica Wireless Modem subscriber hardware cost of individual
Users transitioned to a replacement Sony Service for each month less than
[**] months such transitioned individual User had been a Sony Service
subscriber at the time of such transition; provided, however, that Sony
shall only compensate GoAmerica for subscribers successfully transitioned
to the replacement service for a period of [**] months. An example of such
calculation is provided in Exhibit K attached hereto.
12.3 Compensation and Revenue Sharing During Transition Process. All
compensation and revenue sharing between the parties shall continue through
the Transition Process until the Sony Service is transferred from GoAmerica
as provided herein.
12.4 Sony Right of Termination on GoAmerica Breach. Sony may at its election
terminate this Agreement in the event that GoAmerica materially breaches
this Agreement and fails to cure said breach within thirty (30) days of
written notice from Sony. In the event of such termination:
12.4.1 Upon Sony's request, GoAmerica shall immediately deliver copies of
User Data to Sony's control except such User Data as Sony requests
GoAmerica temporarily retain for transitional purposes;
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
12.4.2 Sony may transition the Sony Service to a third-party service
provider or providers, in which case GoAmerica shall facilitate such
transition at GoAmerica's expense, including the cost of developing
and distributing software updates to enable Wireless Modems already
in use to communicate via such third-party service provider, but
excluding the cost of providing equipment to replace such Wireless
Modems. GoAmerica's software development and distribution obligation
shall only extend to like wireless networks (for example, transition
from CDPD to CDPD, but not transition from CDPD to another format
such as Ricochet or GPRS).
12.4.3 Sony may require, at its sole option, GoAmerica to continue to
operate the Sony Service for the lesser of [**] or the time
remaining until the end of the Transition Process that would have
occurred under Section 12.2 had said breach not occurred; and
12.4.4 All Activation Fees and revenue sharing shall continue until the end
of the above applicable periods, plus any direct damages suffered by
Sony.
12.4.5 GoAmerica shall not solicit transitioned Users either directly or in
connection with GoAmerica's service partners for a period of one (1)
year from the end of the Transition Process.
12.5 GoAmerica Right of Termination on Sony Breach. GoAmerica may terminate this
Agreement in the event Sony materially breaches this Agreement and fails to
cure said breach within [**] days of written notice from GoAmerica. In the
event of such termination:
12.5.1 Unless Sony elects not to continue the Sony Service, all User Data
will be immediately delivered to Sony except such User Data as Sony
requests GoAmerica temporarily retain for transitional purposes;
12.5.2 If Sony elects not to continue the Sony Service then GoAmerica shall
migrate Users to the GoAmerica Service for the remainder of any
legal commitment to such customers and service such customers; and
12.5.3 GoAmerica shall have no obligation to pay Activation Fees, Residual
Fees or other compensation to Sony as of the date of termination.
13. INDEMNIFICATION/INSURANCE
13.1 Indemnification by GoAmerica. Subject to the limitations set forth below,
GoAmerica, at its own expense, shall:
13.1.1 defend, or at its option settle, and pay any final judgment entered
or settlement made in any claim, suit or proceeding against Sony or
any of its Affiliates or such
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entities' officers, directors, employees and/or consultants (each
such entity or individual a "Sony Indemnified Party") by a third
party on the basis and to the extent that (i) any Wireless Modem,
GoAmerica Technology, GoAmerica Content, Connectivity Services
provided by GoAmerica, or Features or Functions provided by
GoAmerica or a GoAmerica Provider (collectively, "GoAmerica
Deliverables") is alleged to infringe any U.S. Intellectual Property
Right, (ii) any GoAmerica Deliverable is alleged to have caused
death personal injury or damage to property (other than data or
other intangibles) due to the negligence or intentional misconduct
of GoAmerica (iii) any GoAmerica Content or any Feature or Function
provided by GoAmerica or a GoAmerica Provider is alleged to violate
rights of privacy or publicity, or to be libelous, defamatory, or
otherwise tortious or illegal.
13.1.2 Notwithstanding the foregoing, GoAmerica shall have no obligation to
a Sony Indemnified Party pursuant to this Section 13.1.2 unless: (i)
Sony gives GoAmerica prompt written notice of the claim, suit or
proceeding; (ii) GoAmerica is given the right to control and direct
the investigation, preparation, defense and settlement of the claim,
suit or proceeding; and (iii) Sony provides GoAmerica with
reasonable assistance in the defense or settlement thereof at
GoAmerica's expense. In connection with the defense of any such
claim, suit or proceeding, Sony may have its own counsel in
attendance at all public interactions and substantive negotiations
at Sony's own cost and expense and GoAmerica shall provide Sony with
reasonable advance notice of all such interactions and/or
negotiations.
13.1.3 If the claim, suit or proceeding against a Sony Indemnified Party
involves alleged infringement of any third-party IP rights,
GoAmerica, at its option and expense, shall use all reasonable
efforts to: (i) obtain a license at no cost to Sony permitting
continued use of the rights in contention; (ii) modify the
applicable GoAmerica Technology, Connectivity Services and/or
Wireless Modem so that it can perform its intended function without
infringing; (iii) modify the applicable GoAmerica Content without
infringing any third-party IP rights; or (iv) substitute technology
or content, as the case may be, of comparable functionality and
performance/scope, that does not infringe third-party IP rights. In
the event of any third-party claim of infringement, upon written
notification and request from GoAmerica, Sony shall cease using the
intellectual property in dispute pursuant to a commercially
reasonable schedule.
13.1.4 In the event GoAmerica does not use reasonable efforts as required
in Section 13.1.3, Sony may, after written notice to GoAmerica,
itself take such steps and be fully indemnified therefore by
GoAmerica.
13.2 Indemnification by Sony.
13.2.1 Subject to the limitations set forth below, Sony, at its own
expense, shall defend, or at its option settle, and pay any final
judgment entered or settlement made, in any claim, suit or
proceeding against GoAmerica or any of its Affiliates and such
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entities' officers, directors, employees and consultants (each such
entity or individual a "GoAmerica Indemnified Party") by a third
party on the basis and to the extent that (i) any Sony Content, the
Sony User Interface, any Sony Functionality provided by Sony or any
other Sony deliverable (together "Sony Deliverables") hereunder is
alleged to infringe any U.S. Intellectual Property Right or (ii) any
Sony Deliverable, Handheld or Sony Notebook is alleged to have
caused death, personal injury or damage to property (other than data
or other intangibles) due to the negligence or intentional
misconduct of Sony (iii) any Sony Content or any Feature or Function
provided by Sony or a Sony Provider is alleged to violate rights of
privacy or publicity, or to be libelous, defamatory, or otherwise
tortious or illegal.
13.2.2 Notwithstanding the foregoing, Sony shall have no obligation to a
GoAmerica Indemnified Party pursuant to this Section 13.2.2 unless:
(i) GoAmerica gives Sony prompt written notice of the claim, suit or
proceeding; (ii) Sony is given the right to control and direct the
investigation, preparation, defense and settlement of the claim,
suit or proceeding; and (iii) GoAmerica provides Sony with
reasonable assistance in the defense or settlement thereof at Sony's
expense. In connection with the defense of any such claim, suit or
proceeding, GoAmerica may have its own counsel in attendance at all
public interactions in substantive negotiations at its own cost and
expense and Sony shall provide GoAmerica with reasonable advance
notice of all such interactions and/or negotiations.
13.2.3 If the claim, suit or proceeding against a GoAmerica Indemnified
Party involves alleged infringement of any third-party IP rights,
Sony, at its option and expense, shall use all reasonable efforts
to: (i) obtain a license at no cost to GoAmerica permitting
continued use of the rights in contention; (ii) modify the
applicable Sony Deliverables so that it can perform its intended
function without infringing; (iii) modify the applicable Sony
Content without infringing any third-party IP rights; or (iv)
substitute technology or content, as the case may be, of comparable
functionality and performance/scope, that does not infringe
third-party IP rights. In the event of any third-party claim of
infringement, upon written notification and request from Sony,
GoAmerica shall curtail using the IP in dispute pursuant to a
commercially reasonable schedule.
13.2.4 In the event Sony does not take any of the foregoing required
remedial steps, GoAmerica may itself take such steps and be fully
indemnified therefore by Sony.
13.3 Insurance. Promptly after the execution of this Agreement, GoAmerica shall
furnish to Sony a copy of an insurance certificate evidencing the
effectiveness of a general and comprehensive business insurance policy
which GoAmerica maintains, with an insurance company with a Best's rating
of B+ or above, containing at least the following coverages: (i) Worker's
Compensation and Employer's Liability, minimum statutory limits; (ii)
General Liability, with minimum limits of $1,000,000.00 per occurrence for
bodily injury death, or property damage; and (iii) Automobile Liability,
with minimum limits of $1,000,000.00 per each occurrence of bodily injury,
death or property damage.
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13.4 Cooperation. Each party will provide reasonable cooperation to the other in
the event of any claim or litigation brought by any third party against the
other party or both parties in respect of any aspect of the Sony Service.
14. GENERAL AND MISCELLANEOUS
14.1 Survival. Upon termination or expiration of this Agreement for any reason,
the following provisions shall survive and remain effective: 3.4, 3.5,
7.3,7.4, 8.4, 9.3, 9.4, 9.5, 10.3, 10.5, 11.1 TO 11.11, 12.2, 12.3, 12.5,
13.1 TO 13.4, 14.1 TO 14.20, 15.1 TO 15.3, 16 AND 17.
14.2 Notices. Unless otherwise provided in this Agreement, all notices required
under this Agreement shall be in writing and shall be effective for all
purposes upon receipt when addressed as follows:
If to GoAmerica:
GoAmerica Communications Corporation
401 Hackensack Avenue
Hackensack, New Jersey 07601
Attn: Chief Financial Officer
With a copy to:
Hale and Dorr LLP
650 College Road East
Princeton, New Jersey 08540
Attn: David J. Sorin, Esq.
If to Sony: Personal Network Solutions Company
Sony Electronics Inc.
16765 W. Bernardo Dr.
San Diego, California 92127
Attn: President
With a copy to:
Sony Electronics Inc.
1 Sony Drive
Park Ridge, New Jersey 07656
Attention: General Counsel
Either party may change its address by written notice to the other party in
the manner set forth above. Receipt of communications by United States
first class certified or registered mail will be sufficiently evidenced by
return receipt, and receipt of communications transmitted by telecopier or
facsimile, shall be deemed to have been received upon transmission,
provided that such notice is also sent by overnight express courier for
delivery on the following day. To the extent feasible, in the case of
illegible or otherwise unreadable facsimile transmissions, the receiving
party shall promptly notify
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the transmitting party of any transmission problem and the transmitting
party shall promptly resend any affected pages.
14.3 Force Majeure. A party will not be deemed to have materially breached this
Agreement to the extent that performance of its obligations or attempts to
cure any breach are delayed or prevented by reason of any act of God, fire,
natural disaster, accident, act of government, strike, labor dispute or
Internet backbone outage, provided that the party whose performance is
delayed or prevented promptly notifies the other party of the nature and
duration of such event and uses commercially reasonable efforts to
circumvent such event of force majeure. Notwithstanding anything herein to
the contrary, in the event that a force majeure event lasts longer than ten
(10) days, the party ready to perform can terminate this Agreement. If the
event of force majeure lasts greater than ten (10) days and, as a result,
GoAmerica is not able to host the Sony Service during the Term, Sony shall
have an interim right and license to host or have hosted and operate or
have operated the Sony Service to the extent necessary to keep the Sony
Service running during the Term but only for so long as the event of force
majeure continues.
14.4 Independent Contractors. In the course of performing under this Agreement,
each of the parties will operate as, and have the status of, an independent
contractor and will not act as or be an agent, partner, co-venturer,
employee or fiduciary of the other party. Neither party will have the right
or authority to assume or create any obligations or to make any
representations or warranties on behalf of any other party, whether express
or implied, or to bind the other party in any respect whatsoever.
14.5 Assignment. Neither party shall be entitled to assign all or any portion of
its rights or delegate its obligations under this Agreement without the
prior written consent of the other party, provided that for purposes of
this Agreement any transfer of rights or responsibilities by either party
to any Affiliate of such party shall not be deemed an Assignment, provided
that the assignment shall be subject to a writing in which the Affiliate
agrees to the terms and conditions of this Agreement and provided the
assignor remains hereunder for (i) any breaches or failures of the assignor
prior to such assignment, (ii) any failure of such assignee to fulfill its
obligations and indemnifications hereunder, and (iii) for any liability
arising from or damages from breaches caused by such assignee. Any
attempted or purported assignment or delegation without such required
consent will be void and deemed a material breach of this Agreement.
14.6 Severability. If any provision of this Agreement or portion thereof is
determined by a court of competent jurisdiction to be invalid, illegal or
otherwise unenforceable, then such provision will, to the extent permitted
by the court not be voided but will instead be construed to give effect to
its intent to the maximum extent permissible under applicable law and the
remainder of this Agreement will remain in full force and effect according
to its terms.
14.7 GoAmerica Bankruptcy. GoAmerica acknowledges that all rights and licenses
to any GoAmerica owned or sublicensed intellectual property granted under
or pursuant to this Agreement are, and shall be deemed to be, for purposes
of Section 365(n) of the United States Bankruptcy Code (the "Bankruptcy
Code"), licenses of rights to "intellectual
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property" as defined under Section 101 (56) of the Bankruptcy Code. The
parties agree that Sony, as licensee of such rights under this Agreement,
shall retain and may fully exercise all of its rights and elections under
Bankruptcy Code for the period licensed hereunder. GoAmerica acknowledges
that if GoAmerica, as debtor in possession or a trustee-in-bankruptcy
(collectively, "Trustee") in a case under the Bankruptcy Code, rejects
this Agreement, Sony may elect to retain its licensed rights under this
Agreement as provided in Section 365(n) of the Bankruptcy Code. After the
commencement of a case under the Bankruptcy Code by or against GoAmerica
and unless and until this Agreement is rejected, upon written request of
Sony to the Trustee, the Trustee shall, unless GoAmerica agrees to perform
its obligations hereunder, (a) provide Sony with then current copies of
any intellectual property licensed hereunder and (b) not interfere with
the rights of Sony under this Agreement, including Sony's right to use and
obtain such copies of such intellectual property. If the Trustee rejects
this Agreement and Sony elects to retain its rights under such agreements
to the extent permitted by law, then upon Sony's written request to the
Trustee, the Trustee shall provide copies of any intellectual property to
Sony as required by law, subject to the parties' mutual obligations under
this Agreement (including revenue sharing obligations).
14.8 Export Control Matters. Each party shall be responsible for insuring that
it complies with all laws and regulations of the United States government
relating to the export from the United States of technical information or
technical data or products or services using technical information or
technical data or products received from the other party under this
Agreement.
14.9 Choice of Law/Jurisdiction and Venue. This Agreement shall be governed by
and construed under, and the legal relations between the parties hereto
shall be determined in accordance with, the laws of the State of New
Jersey, without giving effect to such state's conflict of law principles.
The United Nations Convention on the International Sale of Goods shall not
be applicable to this Agreement. The parties hereby submit to the personal
jurisdiction of, and agree that, subject to Section 14.16 (Equitable
Relief) and Section 14.11 (Dispute Resolution), any legal proceeding with
respect to or arising under this Agreement shall be brought in any United
States District Court in New Jersey or the state courts of the State of
New Jersey.
14.10 Generally Accepted Accounting Principles and Rights of Audit. Except as
otherwise provided in this Agreement, financial calculations required by
this Agreement shall be done in accordance with generally accepted
accounting principles. Each party shall have the right for representatives
of a firm of independent "Big Six" certified public accountants to which
the other party shall not unreasonably object ("Auditors") to make an
examination and audit, by prior appointment during normal business hours,
not more frequently than once annually, of all records and accounts as may
contain information bearing upon either party's financial, performance or
milestone obligations hereunder to the other. Each party shall be supplied
a copy of such auditor's preliminary report, which shall not be final
until the Auditors have taken account of any representations reasonably
made by either party within fourteen (14) days of receipt of the report by
both parties. In the absence or dismissal of any representations from
either party, the Auditors report shall be (in the absence of clerical or
manifest error, or issues of contractual
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interpretation, or issues of fact as to completion of required conduct by
a party as a condition precedent to obligations) final and binding on the
parties. Such audit shall be at the expense of the requesting party,
unless it reveals an underpayment of five percent (50%) or more, in which
case the underpaying party shall reimburse the requesting party for the
reasonable costs of such audit in addition to any underpaid amount due.
14.11 Dispute Resolution. The parties shall attempt in good faith to resolve any
controversy or claim arising out of or relating to this Agreement promptly
by negotiations between senior executives of the parties who have
authority to settle the controversy. The disputing party will give the
other party written notice of the dispute and its desire to initiate the
process provided for in this Section. Within twenty (20) days after
receipt of such notice, the receiving party shall submit to the other a
written response. Such disputing party notice and receiving party response
will include (i) a statement of position and arguments supporting such
position, and (ii) the name and title of the executive who will represent
it in the negotiations. Such executives will meet at a mutually acceptable
time and place within thirty (30) days of the date of the disputing
party's notice and thereafter as soon as they reasonably deem necessary to
exchange information and to attempt to resolve the dispute. If the dispute
has not been resolved within sixty (60) days of the disputing party's
notice, or if either party will not meet within thirty (30) days, either
party may initiate mediation of the dispute under the mediation rules of
the Center for Public Resources in Santa Clara County, California. If the
dispute is not resolved pursuant to such mediation procedure within sixty
(60) days of the initiation thereof, or if either party will not
participate in such mediation, then either party may initiate litigation
by giving thirty (30) days prior notice to the other party.
14.12 Limitation of Rights. The use of any these procedures or any other
alternative dispute resolution procedures will not be construed under the
doctrine of laches, waiver or estoppel to affect adversely the rights of
either party. Nothing will prevent either party from resorting to the
judicial proceedings mentioned in Section 14.9 if (a) good faith efforts
to attempt resolution of the dispute under these procedures have been
unsuccessful or (b) interim relief " Section 14.16 is necessary to prevent
serious and irreparable injury to one of the parties or to others.
14.13 Entire Agreement; Modification; Waiver. This Agreement (together with all
Exhibits attached hereto) constitutes the entire agreement of the parties
concerning its subject matter and supersedes any and all prior or
contemporaneous, written or oral negotiations, correspondence,
understandings and agreements between the parties respecting the subject
matter of this Agreement, including but not limited to any letters of
intent between the parties. No agreement by a party to delete or
substitute proposed terms or provisions (including all Exhibits attached
hereto) during the negotiation of this Agreement shall in any way be used
or held against that party. No supplement, modification or amendment to
this Agreement shall be binding unless evidenced by a writing signed by
the party against whom it is sought to be enforced. No waiver of any of
the provisions of this Agreement shall be deemed, or shall constitute, a
waiver of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. In the event of a
conflict between the main body of this Agreement and any
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exhibit hereto the main body of this Agreement shall prevail to the extent
of such conflict.
14.14 Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective successors and permitted
assigns.
14.15 Authority, Corporate Action and No Breach. Each party to this Agreement
represents and warrants to, and agrees with the other, that it has the
right, power and authority to enter into, and perform all its obligations
under, and has taken all the requisite corporate action to approve the
execution, delivery and performance of this Agreement and that the
execution, delivery and performance of this Agreement shall not result in
the breach or non-performance of any agreements it has with third parties.
14.16 Equitable Relief. Each party agrees that the other party shall be entitled
to equitable relief, including such injunction or injunctions as may be
required to prevent any breach of this Agreement or the infringement or
further infringement of any Intellectual Property Right by the other, and
may specifically enforce such provisions or protect such rights by an
action instituted in any court having jurisdiction. Each party
acknowledges that damages may be an inadequate remedy for such a breach or
infringement. Each party covenants and agrees not to contest the
availability to the other party of such injunctive relief on any grounds
to prevent such a breach or infringement, provided however that nothing
herein shall prevent or prohibit the impugned party from disputing the
occurrence of such a breach or infringement, including the occurrence of
the default giving rise to the application for such injunctive relief, or
from making submissions with respect to the amount and type of security to
be posted by a party in connection with the grant of such injunctive
relief. This Section 14.16 shall survive the termination or expiration of
this Agreement.
14.17 Supplemental Escrow Agreement. Unless GoAmerica provides Sony the software
tools described in Exhibit B within the time provided in Exhibit B, the
parties shall enter into an Escrow Agreement with DSI Technology Escrow
Services, Inc. ("DSI") to provide for escrow deposit with respect to such
software tools. Such Escrow Agreement shall be in substantially the form
attached as Exhibit L and shall be mutually agreed within the time
provided in Exhibit B.
14.18 Expenses. Each party shall bear its own costs and expenses in connection
with the performance of its obligations under this Agreement.
14.19 Interpretation. In this Agreement (i) all capitalized derivative forms of
defined terms and phrases have meanings that correspond to the defined
terms and phrases, (ii) the words "include", "includes" or "including"
mean "include without limitation", "includes without limitation"; and
"including without limitation" respectively, (iii) the division of this
Agreement into separate sections, subsections and schedules, the
Agreement's title and the insertion of headings is for convenience of
reference only and shall not affect the construction or interpretation of
this Agreement, (iv) words or abbreviations which have well known or trade
meanings are used herein in accordance with their recognized
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
meanings, and (y) references to currency herein are references to United
States dollars unless otherwise explicitly stated.
14.20 Publicity. Neither party shall issue a press release or other publicity
mentioning the other without the prior written approval of the other.
15. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
15.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
THE PARTIES MAKE NO WARRANTIES, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO
ANY PRODUCT, SERVICE, DELIVERABLE OR THING TO BE PROVIDED HEREUNDER BY A
PARTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY
RIGHTS.
15.2 Limitation of Liability. EXCEPT (I) FOR LIABILITIES ARISING UNDER SECTION
13.1 AND 13.2, AND (II) FOR BREACH OF CONFIDENTIALITY OBLIGATIONS ARISING
UNDER SECTION 11, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY
KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT (INCLUDING,
WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF
THIS AGREEMENT), TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR
OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF
ANY SUCH LOSS OR DAMAGE IN ADVANCE. EXCEPT FOR (I) LIABILITIES OF
GOAMERICA ARISING UNDER SECTION 13.1, BREACH BY GOAMERICA OF ITS
CONFIDENTIALITY OBLIGATIONS UNDER SECTION 11, AND USE BY GOAMERICA OF USER
DATA OTHER THAN AS AUTHORIZED IN THIS AGREEMENT OR OTHERWISE APPROVED BY
SONY AND (II) LIABILITIES OF SONY ARISING UNDER SECTION 13.2 AND BREACH BY
SONY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 11 EACH PARTY'S
COLLECTIVE DIRECT DAMAGES SHALL BE LIMITED TO $[**] ("Initial
Limitation").
15.3 Renegotiation of Limitation of Liability. In the event Sony elects to
renew this Agreement for the First Renewal Term as provided in Section
12.1, then, upon receipt by GoAmerica of Sony's written notice of such
election, the parties shall negotiate in good faith to increase the
limitation of liability from the amount of the Initial Limitation to such
greater amount as the parties may mutually agree. The Initial Limitation
shall remain in effect until the parties agree in writing to such greater
amount.
16. NO THIRD-PARTY BENEFICIARIES
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The parties specifically disavow any desire or intention to create a "third
party" beneficiary contract, and specifically declare that no person, except for
the parties and their permitted assigns, shall have any rights hereunder nor any
right of enforcement hereof.
17. COUNTERPARTS
This Agreement and any amendment, supplement, restatement or termination of any
provision hereof, may be executed and delivered in counterparts by facsimile,
each of which so executed and delivered counterpart is an original, and such
counterparts, together, shall constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS - REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have signed and delivered this Agreement as of
the date first above written.
GoAmerica Communications Corp.
By: /s/ Joseph Korb
--------------------------------
Name: Joseph Korb
------------------------------
Title: President
-----------------------------
Personal Network Solutions Company,
A division of Sony Electronics Inc.
By: /s/ Mark T. Viken
--------------------------------
Name: Mark T. Viken
------------------------------
Title: Sr. GM/President
-----------------------------
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT A
Connectivity Services
The Sony Service shall include the following Connectivity Services to be
provided by GoAmerica, pursuant to GoAmerica's agreements with the appropriate
carriers:
CDPD - Nationwide coverage to the extent of available combined carrier coverage
(at least equal to [**] as of the Effective Date).
[**] - Coverage dependant upon [**] rollout schedule and implementation
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT B
Transition Assistance
At Sony's request, GoAmerica shall provide Sony with the following [**] in
standard computer format to migrate Users and the Sony Service to a new
provider:
ALL CUSTOMER CONTENT/USER INFORMATION INCLUDING:
o Email addresses
o Name, Device, Service Agreement, Address, etc.
o Sony Provisioned IP Addresses
o Device ID's of Sony Customers (JP Address, ESN)
o Carrier network(s) customer's service is provisioned on
SONY PROVISIONED IP ADDRESSES
o Oracle Database (Database to be sent in both of the following outputs)
o Hardcopy
o Binary output
DEVICE ID'S FOR THE USERS
o Oracle Database (Database to be sent in both of the following outputs)
o Hardcopy
o Binary output
SONY SERVICE
o All files and images in appropriate format related to the Sony
Service in order for Sony to recreate the Handheld Deck, Notebook
Deck and associated Sony Service web site pages. File types may
include but are not limited to HTML, XML and WML formats.
Additionally, [**], GoAmerica shall provide to Sony a software tool that will
remotely or through user-implemented CD-ROM disable any modem locks or other
software, firmware or hardware impediment to transition of customers from the
GoAmerica service to a competitive service of the same class (e.g., CDPD to
CDPD, but not CDPD to Ricochet). This tool shall be
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
made available to Sony or escrowed by GoAmerica for Sony pursuant to the terms
of the Escrow Agreement set forth on Exhibit L within [**] of the first customer
ship of Wireless Modems.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT C
Service Description
GoAmerica shall implement the Sony Service in a modular manner so that the Sony
Service is comprised of several components, which shall include, but may not be
limited to:
A. Network Operations Center: [**]Service Platform: See Exhibit D
B. Enabling Technologies: [**] as required.
C. Personalization Engine: Personalization [**] personalization [**].
D. Content: [**]User Data: Information [**] and other information.
E. Provisioning Systems: Provisioning of [**] and any other provisioning
necessary.
F. Billing Systems: Billing system capable of [**] billing.
G. Customer Support Systems: Customer service systems capable of
supporting[**] of customer service [**].
H. Hosting Services: Hosting of [**] service [**].
I. Other Systems/Platforms required for service offering.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT D
Base Service
1. [**].
2. [**]).
Access up to [**]
3. The GoAmerica [**]The GoAmerica [**]
[**]
Features as described in 1.7 and Exhibit C
Functions as described under 1.8 and Exhibit C
Content as described under 1.6 and Exhibit C
4. Base Content:
GoAmerica Content Providers
- ----------------------------------------------------------------------------------------------------------------------
CONTENT PROVIDER DEAL STATUS EXPIRATION
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Business & Finance
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 08/09/01
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 09/05/01
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 02/01/01
- ----------------------------------------------------------------------------------------------------------------------
Living
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal
- ----------------------------------------------------------------------------------------------------------------------
Shopping
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 08/12/01
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 09/17/01
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 05/10/01
- ----------------------------------------------------------------------------------------------------------------------
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Exchange Commission. Asterisks denote omissions.
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 09/01/01
- ----------------------------------------------------------------------------------------------------------------------
News
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 08/08/01
- ---------------------------------------------------- --------------------------------- -------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 10/23/01
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
Search
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 09/02/01
- ----------------------------------------------------------------------------------------------------------------------
Sports
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
Travel
- ----------------------------------------------------------------------------------------------------------------------
[**]
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 12/26/00
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Pending
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Link
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 07/10/01
- ----------------------------------------------------------------------------------------------------------------------
Weather
- ----------------------------------------------------------------------------------------------------------------------
[**] pending
- ----------------------------------------------------------------------------------------------------------------------
Reference and General Content
- ----------------------------------------------------------------------------------------------------------------------
[**]
- ----------------------------------------------------------------------------------------------------------------------
[**]
- ----------------------------------------------------------------------------------------------------------------------
[**] no $ 08/22/01
- ----------------------------------------------------------------------------------------------------------------------
[**] ? N/A
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal N/A
- ----------------------------------------------------------------------------------------------------------------------
[**] no $
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 07/18/01
- ----------------------------------------------------------------------------------------------------------------------
[**] Deal 05/18/01
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
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5. Connectivity service as described under 2.7 and Exhibit A
6. Customer Support, Sales and Technical Support as described under 2.9
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT E
Service Level
Support Level Service Requirements:
Hours of Support:
GoAmerica will provide the seven (7) days a week, twenty-four
(24) hours a day, fifty-two (52) weeks a year, inclusive of
all federal holidays observed in the United States.
Service Levels:
GoAmerica will be required to meet the following Service Level
measurements for the Hosting service.
- -------------------------------------------------------------------------------
AVAILABILITY
- -------------------------------------------------------------------------------
Hosting Services [**]%
- -------------------------------------------------------------------------------
Back up:
GoAmerica provides [**], and [**]Redundancy:
GoAmerica redundancy procedures vary within network. Servers,
network equipment and storage systems have their individual
redundancy. Environmental systems are fully redundant (e.g.,
A/C, power).
Hot Swappable:
Hot Swappable depends on the particular system. Most GoAmerica
systems do have hot swappable components.
Disaster Recovery Process:
to be provided by GoAmerica within [**] of the Effective Date.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SONY
Service Level:
GoAmerica shall use commercially reasonable efforts to ensure that the
Service is stable, reliable and dependable. GoAmerica agrees that it
shall use commercially reasonable efforts to:
1. Manage all of the GoAmerica network infrastructure and related
maintenance such that existing Sony Service Users have Sony Service
availability [**]% of the time with a maximum of [**] hour maintenance
sessions per month. GoAmerica shall take reasonable steps to schedule
maintenance sessions in off-peak hours so as to minimum network
infrastructure and related negative impacts to users.
2. Establish a plan for disaster recovery such that resumption of
Service can be restored within [**].
3. Continue establishing coverage so the Service is available to
[**]%+ of the US population using a local access number that does not
incur a toll charge.
Corrective Action Plan:
In the event that Sony Service falls below the above Service Levels,
the parties shall meet to review the performance of the Sony Service.
If the Sony Service is found to be performing below the Service
Levels, GoAmerica shall provide a Corrective Action Plan (CAP) to Sony
within [**] business days of a written finding. The CAP shall outline
step's to bring the Sony Service performance back with the Service
Levels and will be mutually agreed to by both Parties. GoAmerica shall
then have [**] days to bring the Sony Service within Service Levels.
DESCRIPTION & SPECIFICATIONS OF CUSTOMER SUPPORT
CUSTOMER AND TECHNICAL SUPPORT:
Under the terms of this Agreement, GoAmerica (or its designated
third-party provider) shall provide customer and technical support to
Users. Sony and GoAmerica will together determine the way metrics are
calculated. GoAmerica shall use commercially reasonable efforts to
provide customer support that conforms to the following requirements:
1. Email and toll-free telephone support;
2. Availability: 24 hours a day, 7 days per week;
3. Service Level: [**]% of the calls shall be answered within [**]
minutes;
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
4. Call Resolution: [**]% of calls resolved [**] and [**]% of calls
resolved within [**];
5. All non-information request e-mails shall be responded to within
[**] of their receipt.
6. Average Time to Answer: [**] minutes
GoAmerica shall provide:
1. Notification and timely updates of significant network outages
and service problems on a proactive basis to Sony's designated
customer support organization.
2. Proactive updates of any client software issues and make
available the updated client software solution [**]it makes
available [**].
3. A toll-free access number to allow Sony's designated customer
support organization to hot transfer calls regarding the
GoAmerica Service.
General Support:
GoAmerica shall provide support for their GoAmerica Service in a
timely and knowledgeable fashion. Such support shall include, but not
be limited to:
1. Providing a knowledgeable contact for technical support, in
addition to GoAmerica's Account Manager, and maintaining an
e-mail address or phone number for Sony to contact during
GoAmerica's normal business hours (Monday through Friday, 8:00am
to 5:00pm PST), to report problems and receive assistance.
2. Providing prompt communication and assistance.
If either Sony or Go America finds a qualified defect due to the other
party's ("Responsible Party") product, they will route it to the
Responsible Party's technical contact with the following details
a) Defect ID f) Software and hardware used in testing
b) Defect state g) Failure symptom vs expected result
c) Defect severity h) Steps required to reproduce defect
d) Frequency of occurrence i) Defect root cause and resolution
e) Functional area j) Version fixed
Both parties will log and track all defects until they are resolved
and closed; Cost of defect resolution will be borne by the Responsible
Party.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Defect Severity Definition:
Both parties will use the following criteria to classify defects:
- ---------------------------------------------------------------------------------------------------------------------
SEVERITY DEFINITION
- ---------------------------------------------------------------------------------------------------------------------
Critical Feature did not work and there was no workaround.
System crashed or hung.
Data corrupted or lost.
- ---------------------------------------------------------------------------------------------------------------------
Serious Incorrect output functionally or logically.
Did not meet Software Specifications.
- ---------------------------------------------------------------------------------------------------------------------
Moderate Cosmetic flaw.
Usability (Aesthetic, Consistency, Syntactic,
Misleading).
Annoying behavior.
- ---------------------------------------------------------------------------------------------------------------------
Enhancement Request for a design enhancement.
- ---------------------------------------------------------------------------------------------------------------------
Unclear Specification Software specifications not clearly defined.
- ---------------------------------------------------------------------------------------------------------------------
Management Of Defects:
All defects found in Sony Service will be tracked until they are
closed. Unless deferred defects will be handled according to the
following timelines:
1. All Critical and Serious defects must be fixed within [**] working
days;
2. All moderate defects must be fixed within [**] weeks unless they
meet deferment criteria set out below;
3. All unclear specifications must be clarified and specifications
updated at the next opportunity; and
4. Deferred defects will be addressed at the next opportunity. For
this purpose, "deferred defects" criteria shall mean that such defects
do not result in loss or corruption or data, have low probability of
occurring, are risky to fix', have no impact on usage of the software
or are irreproducible.
Management of Fixes:
Either party shall notify the other party of the resolution of each
defect, and shall provide a fix in an acceptable format, depending on
the method selected for distribution of the fix to its customers. For
example, if the fix is distributed off a web site, the Responsible
Party shall provide an installation wizard or cab file which enables
the fix to be easily installed on the Sony Product.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT F
Activation Fees and Residual Rates
- ----------------------------------------------------------------------------------------------------------------------
CONNECTIVITY SERVICE USED ACTIVATION FEE RESIDUAL RATE
- ----------------------------------------------------------------------------------------------------------------------
CDPD
- ----------------------------------------------------------------------------------------------------------------------
All Client Devices and all Service $ [**] [**]%
Rates
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Ricochet:
- ----------------------------------------------------------------------------------------------------------------------
If Service Rate for a Subscription is:
- ----------------------------------------------------------------------------------------------------------------------
$[**] or more $ [**] [**]%
- ----------------------------------------------------------------------------------------------------------------------
$[**] $ [**] [**]%
- ----------------------------------------------------------------------------------------------------------------------
$[**] or less $ [**] [**]%
- ----------------------------------------------------------------------------------------------------------------------
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT G
GoAmerica Marketing Guidelines
I. GoAmerica marketing funds are designed to generate demand for the Sony
Service. These funds will be made available for demand generating advertising
based on the following guidelines:
Guidelines:
The Sony Service must be one of the prominent focuses of the
advertisement. The advertisement may include one or more of the
following products:
1) Sony products
2) Service and Service content
3) Wireless Modem
4) Place of purchase for Service/Modem which could include
Web-Site, 1-800#, Retail Dealer or other place where purchase
could occur.
Sony (inclusive of service and any featured content from service),
GoAmerica logos, and point of purchase logos shall be the only
prominently placed logos unless otherwise specifically approved by
GoAmerica, unless otherwise provided for in Sony arrangements with
platform, technology, content or service licensors such as Intel, Palm
or Microsoft.
Approvals:
Sony must give GoAmerica [**] business days for approval. Qualifying
approved ads must be approved in writing. Ad with GoAmerica signature
shall serve as documentation for eligibility in this marketing funds
program. Payment will be remitted upon receipt of invoices and
accompanying audited numbers for said advertisement.
Payment/Disbursement of Funds:
All payments/disbursements made only to Sony PNSC.
II. Retail dealer funds:
An amount up to $[**] of the marketing funds can be used for retail
dealer end-user demand advertising and promotions. These funds will be
used for retail dealer promotions and or advertising.
With regards to promotions other than advertising, Sony and GoAmerica
will jointly approve the use of these funds on an individual retail
dealer basis.
With regards to print advertising, the guidelines are:
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
1. The Sony Service must be one of the prominent focuses of the
advertisement.
2. The advertisement will include the following products elements:
a. Sony products
b. Service and Service content
c. Wireless Modem
Sony (inclusive of service and any featured content from service),
GoAmerica logos shall be the only prominently placed logos in the
retail dealer's ad space dedicated to the Sony/Go America modem
product/service unless otherwise specifically approved by GoAmerica,
unless otherwise provided for in Sony arrangements with platform,
technology, content or service licensors [**]Eligible funding amount
will be determined based on the total amount of space in the retail
dealer's ad dedicated to the Sony/GoAmerica wireless modem
products/services. For example, if 25% of the available advertising
space in a retail dealers ad is dedicated to the Sony/GoAmerica
wireless modem products/services then the 25% of the total ad
placement cost will be eligible for reimbursement under Retail Dealer
Funds.
Approvals:
GoAmerica will pay for printed advertising submitted by Sony which
meet the above guidelines. Sony and GoAmerica will develop a
submission process for this.
For approved promotions other than printed advertising, GoAmerica
signature shall serve as documentation for eligibility in this
marketing funds program. Payment will be remitted upon receipt of
invoices and accompanying audited numbers for said promotion.
Payment/Disbursement of Funds:
All payments/disbursements made only to Sony PNSC.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT J
Letter Agreement dated December 11, 2000
[GOAMERICA LETTERHEAD]
December 11, 2000
Mr. Mark Hanson
Vice President, Personal Network Solutions Company
Sony Electronics Inc.
16765 West Bernardo Road
San Diego, CA 92127
Re: GoAmerica and Sony's VaioWireless Modem Promotion
Dear Mr. Hanson:
GoAmerica Communications Corporation ("GoAmerica") and the Personal Network
Solutions Company division of Sony Electronics Inc. ("Sony") are currently
engaged in negotiations of a business relationship as provided in a letter of
intent previously signed by the parties dated [INSERT DATE OF SONY GOAMERICA
LOI]. The parties expect to enter into an agreement before December 31, 2000
setting forth the definitive terms and conditions governing such relationship
(the "Definitive Agreement"). Pending the execution of the Definitive Agreement,
Sony and GoAmerica desire to begin certain efforts to cooperate in a marketing
program as further described in this letter (the "Program"). The Program is
intended to promote the sale of wireless services currently offered by GoAmerica
and wireless services to be offered as a co-branded Sony/GoAmerica service
(collectively referred to as "GoAmerica Service") and Sony VAIO notebook
computers in the United States. This letter is intended to serve as an interim
agreement between the parties concerning the terms of the Program.
Pending the execution of the Definitive Agreement, Sony and GoAmerica agree as
follows:
1. Program Period. The Program will begin on December 11, 2000 and
continue until August 31, 2001 (the "Program Period").
2. Promotion Offer. At its expense, GoAmerica will provide each Eligible
Customer a GoAmerica Wireless Modem on the following terms:
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
a. [**] Eligible Customers who sign a Qualified Agreement for [**]
Month Plan.
b. At a price of $[**] for Eligible Customers who sign a Qualified
Agreement for a [**] Month Plan.
GoAmerica shall be responsible for fulfillment, activation of service, and
customer support in accordance with its usual policies and practices
3. Qualified Agreement. A "Qualified Agreement" means an agreement, on
GoAmerica's standard terms and conditions of service, which obligates
the customer to purchase the GoAmerica Services for a minimum term of
either twelve (12) months ("12 Month Plan") or twenty-four (24) months
("24 Month Plan") at a price of $[**]("Monthly Service Fee") or more
for unlimited use of the GoAmerica Services.
4. Eligible Customers. An Eligible Customer means a person who purchases
a Compatible Sony Notebook at retail, on-line via Sony's website at
www.sony.com/goamerica, directly through Sony or from a Sony reseller
prior to or during the Program Period and who provides GoAmerica with
proof of purchase reasonably acceptable to GoAmerica.
5. Compatible Sony Notebooks. A "Compatible Sony Notebook" means models
of Sony branded laptop computers which Sony, after reasonable
technical investigation, advises GoAmerica in writing are compatible
with the GoAmerica Wireless Modems.
6. GoAmerica Wireless Modems. The "GoAmerica Wireless Modems" means
wireless modem devices that enable a Compatible Sony Notebook to send
and receive data via the GoAmerica Services. GoAmerica will have the
right to choose, subject to Sony's approval, which shall not be
unreasonably withheld, the particular manufacturers and models of
wireless modems to make available through the Program, provided the
models chosen have a manufacturer's suggested retail price of not less
than $[**] and not more than $[**]. The following models are deemed
approved by Sony: Sierra Wireless AirCard 300 or Novatel Wireless
Merlin, Nextcell Spider II. GoAmerica shall be responsible for first
tier customer support and satisfaction of warranty repair and service
obligations related to the GoAmerica Wireless Modems.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
7. Advertising and Promotion. At its expense, Sony will promote and
market the Program online, in advertising, at retail and through other
sales and marketing avenues. Sony will determine the specific scope
and extent of such marketing and promotion in its reasonable
discretion, but will consult regularly with GoAmerica to obtain
GoAmerica's recommendations and advice and to inform GoAmerica
regarding the promotion and marketing efforts undertaken. The value of
Sony's marketing and promotional efforts incorporating the Program as
an element will be not less than $[**] million. All advertising and
promotional literature concerning the Program (whether in tangible or
electronic form) must be approved in writing by GoAmerica before
publication, provided that materials and guidelines once approved
shall be deemed approval of substantially similar materials and
guidelines.
8. Trademarks. Trademark usage must conform to the policies and practices
of the trademark owner. Neither party will make use of the other's
trademarks, service marks, trade names or logos without the prior
written approval of the other party.
9. One-time Payments to Sony. GoAmerica will pay Sony a one-time
commission of [**] dollars ($[**]) ("Bounty") for each subscription to
the GoAmerica Services activated through the Program by a Qualified
Customer. GoAmerica will remit each Bounty payment [**] days after
activation and receipt of initial payment by the Subscriber.
10. On-going Payments to Sony. GoAmerica will pay Sony [**]% of the
Monthly Service Fees paid by Qualified Customers for subscriptions to
the GoAmerica Services activated through the Program, for as long as
that subscription remains activated on the GoAmerica Services.
11. Exclusivity. During the Program Period, GoAmerica will [**] to third
party consumer retailers. During the Program Period, Sony will [**].
12. Disclaimer of Warranty. NEITHER PARTY MAKES ANY WARRANTY OR
REPRESENTATION TO THE OTHER CONCERNING THE PROGRAM, THE COMPATIBLE
SONY NOTEBOOKS, THE WIRELESS SERVICES OR THE GOAMERICA SERVICES. EACH
PARTY ACKNOWLEDGES THAT IT IS UNDERTAKING ITS PARTICIPATION IN THE
PROGRAM AT ITS OWN RISK AND NOT IN RELIANCE UPON ANY PROMISE OR
REPRESENTATION OF ANY KIND BY THE OTHER CONCERNING THE LIKELY SUCCESS
OR FAILURE OF THE PROGRAM. THE GOAMERICA SERVICES AND THE WIRELESS
MODEMS ARE PROVIDED TO USERS SUBJECT TO GOAMERICA'S STANDARD TERMS AND
CONDITIONS OF SERVICE AND GOAMERICA'S LIABILITY TO ANY USER OF THE
GOAMERICA SERVICES, SHALL BE DELETED AS PROVIDED THEREIN
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13. Confidentiality. Confidential Information provided by either party to
the other in connection with the Program shall be subject to the
Confidentiality Agreement between the parties dated [insert date].
14. Expenses. Except as stated in this letter, each party agrees to bear
its own costs and expenses in connection with its performance of
Program.
15. Governing Law. New Jersey Law with shall govern this Letter of Intent
and the Definitive Agreement without reference to its conflicts of law
principles.
16. Indemnification. GoAmerica shall defend and indemnify Sony with
respect to third party claim and suits relating to the GoAmerica
Service and the GoAmerica Wireless Modems. Sony shall defend and
indemnify GoAmerica with respect to third party claims and suits
relating to Sony notebook computers. A party's indemnification
obligation hereunder shall be subject to prompt notice, tender of
defense and cooperation of such party by the party seeking
indemnification.
17. Legal Effect. This letter shall constitute a legal and binding
agreement. Upon execution, the Definitive Agreement shall supersede
this Letter of Intent.
Please acknowledge your acceptance of the foregoing by signing in the space
provided below and returning a signed copy to us.
Very truly yours,
GoAmerica Communications Corp
By:
/s/ Joseph Korb
- --------------------------------
Signature
Joseph Korb
- --------------------------------
Name
President
- --------------------------------
Title
Accepted and agreed
SONY ELECTRONICS, INC.
By:
/s/ Mark T. Viken
- ---------------------------------
Signature
Mark T. Viken
- ---------------------------------
Name
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- ---------------------------------
Title
- ---------------------------------
Date
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT K
Modem Payment Subsidy Schedule Example
Example actual Wireless Modem cost to GoAmerica net of all supplier subsidies
and rebates $[**]
Example Wireless Modem provided to Customer = $[**]Example Wireless Modem
subsidy = $200
Modem subsidized over [**] month period = [**]th of modem cost subsidized each
month.
Customer transitioned to new Sony Service after [**] months = [**] months
remaining to subsidize modem.
Sony shall pay GoAmerica $100 ($[**]) in order to transition customer.
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EXHIBIT L
FORM OF ESCROW AGREEMENT
ACCOUNT NUMBER
-----------------------
This Agreement is effective , 20 among DS1 Technology
------------------ ----
Escrow Services, Inc. ("DSI"),
--------------------------------------
("Depositor") and ("Preferred
------------------------------------
Beneficiary"), who collectively may be referred to in this Agreement as "the
parties."
A. Depositor and Preferred Beneficiary have entered or will enter into a license
agreement, development agreement, and/or other agreement regarding certain
proprietary technology of Depositor (referred to in this Agreement as "the
License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology except
under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical to
Preferred Beneficiary in the conduct of its business and, therefore, Preferred
Beneficiary needs access to the proprietary technology under certain limited
circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with DSI to
provide for the retention, administration and controlled access of the
proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to 11 United States [Bankruptcy] Code, Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, Depositor shall deliver to DSI the proprietary technology and other
materials ("Deposit Materials") required to be deposited by the License
Agreement or, if the License Agreement does not identify the materials to be
deposited with DSI, then such materials will be identified on an Exhibit A. If
Exhibit A is applicable, it is to be prepared and signed by Depositor and
Preferred Beneficiary. DSI shall have no obligation with respect to the
preparation, signing or delivery of Exhibit A.
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
Materials to DSI Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. The Exhibit B must be signed by
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no obligation with
respect to this Agreement, except the obligation to notify the parties regarding
the status of the deposit account as required in Section 2.2 below.
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1.3 Deposit Inspection. When DSI receives the Deposit Materials and the Exhibit
B, DSI will conduct a deposit inspection by visually matching the labeling of
the tangible media containing the Deposit Materials to the item descriptions and
quantity listed on the Exhibit B. In addition to the deposit inspection,
Preferred Beneficiary may elect to cause a verification of the Deposit Materials
in accordance with Section 1.6 below.
1.4 Acceptance of Deposit. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign the Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on the Exhibit B, DSI
will (a) note the discrepancies in writing on the Exhibit B; (b) date and sign
the Exhibit B with the exceptions noted; and (c) mail a copy of the Exhibit B to
Depositor and Preferred Beneficiary. DSI's acceptance of the deposit occurs upon
the signing of the Exhibit B by DSI. Delivery of the signed Exhibit B to
Preferred Beneficiary is Preferred Beneficiary's notice that the Deposit
Materials have been received and accepted by DSI.
1.5 Depositor's Representations. Depositor represents as follows:
a. Depositor lawfully possesses all of the Deposit Materials deposited
with DSI;
b. With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to DSI and Preferred Beneficiary the rights as
provided in this Agreement;
c. The Deposit Materials are not subject to any lien or other
encumbrance;
d. The Deposit Materials consist of the proprietary technology and other
materials identified either in the License Agreement or Exhibit A, as
the case may be; and
e. The Deposit Materials are readable and useable in their current form
or, if any portion of the Deposit Materials are encrypted, the
decryption tools and decryption keys have also been deposited.
1.6 Verification. Preferred Beneficiary shall have the right, at Preferred
Beneficiary's expense, to cause a verification of any Deposit Materials.
Preferred Beneficiary shall notify Depositor and DSI of Preferred Beneficiary's
request for verification. Depositor shall have the right to be present at the
verification. A verification determines, in different levels of detail, the
accuracy, completeness, sufficiency and quality of the Deposit Materials. If a
verification is elected after the Deposit Materials have been delivered to DSI,
then only DSI, or at DSI's election an independent person or company selected
and supervised by DSI, may perform the verification.
1.7 Deposit Updates. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within 60 days of each release of a
new version of the product which is subject to the License Agreement. Such
updates will be added to the existing deposit. All deposit updates shall be
listed on a new Exhibit B and the new Exhibit B shall be signed by Depositor.
Each Exhibit B will be held and maintained separately within the escrow account.
An independent record will be created which will document the activity for each
Exhibit B. The
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processing of all deposit updates shall be in accordance with Sections 1.2
through 1.6 above. All references in this Agreement to the Deposit Materials
shall include the initial Deposit Materials and any updates.
1.8 Removal of Deposit Materials. The Deposit Materials may be removed and/or
exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall maintain the Deposit Materials in a secure,
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Deposit Materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or other order of a court or other judicial tribunal
pertaining to the disclosure or release of the Deposit Materials, DSI will
immediately notify the parties to this Agreement unless prohibited by law. It
shall be the responsibility of Depositor and/or Preferred Beneficiary to
challenge any such order; provided, however, that DSI does not waive its rights
to present its position with respect to any such order. DSI will not be required
to disobey any court or other judicial tribunal order. (See Section 7.5 below
for notices of requested orders.)
2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor and Preferred
Beneficiary shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 Title to Media. Depositor hereby transfers to DSI the title to the media
upon which the proprietary technology and materials are written or stored.
However, this transfer does not include the ownership of the proprietary
technology and materials contained on the media such as any copyright, trade
secret, patent or other intellectual property rights.
3.2 Right to Make Copies. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, nondisclosure, and other proprietary notices and titles
contained on the Deposit Materials onto any copies made by DSI. With all Deposit
Materials submitted to DSI, Depositor shall provide any and all instructions as
may be necessary to duplicate the Deposit Materials including but not limited to
the hardware and/or software needed.
3.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the right to
transfer the Deposit Materials to Preferred Beneficiary upon any release of the
Deposit Materials for use by Preferred Beneficiary in accordance with Section
4.5. Except upon such a release or as otherwise provided in this Agreement, DSI
shall not transfer the Deposit Materials.
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ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Condition" shall
mean the following:
a. Preferred Beneficiary elects not to renew the License Agreement at the
expiration of the Initial Term or First Renewal Term as provided in Section
12.1 the License Agreement, and Depositor becomes obligated to transition
the Sony Service (as defined in the License Agreement) to Preferred
Beneficiary's designated carriers and servers as provided in Section 12.2
thereof;
b. The Term of the License Agreement reaches the end of the three (3) year
maximum as provided in Section 12.1 of the License Agreement, and Depositor
becomes obligated to transition the Sony Service to Preferred Beneficiary's
designated carriers and servers as provided in Section 12.2 thereof;
provided however, that this condition (b) shall not apply in the event the
parties have agreed in writing to extend the License Agreement beyond the
three (3) year maximum as provided in Section 12.1 thereof or have executed
a written agreement that otherwise provides for Depositor to continue to
provide the Sony Service.
c. Preferred Beneficiary terminates the License Agreement pursuant to Section
12.4 thereof due to Depositors material breach, and elects pursuant to
Section 12.4.2 to transition the Sony Service to a third-party service
provider or providers.
4.2 Filing For Release. If Preferred Beneficiary believes in good faith that a
Release Condition has occurred, Preferred Beneficiary may provide to DSI written
notice of the occurrence of the Release Condition and a request for the release
of the Deposit Materials. Upon receipt of such notice, DSI shall provide a copy
of the notice to Depositor by commercial express mail.
4.3 Contrary Instructions. From the date DSI mails the notice requesting
release of the Deposit Materials, Depositor shall have ten business days to
deliver to DSI contrary instructions. "Contrary Instructions" shall mean the
written representation by Depositor that a Release Condition has not occurred or
has been cured. Upon receipt of Contrary Instructions, DSI shall send a copy to
Preferred Beneficiary by commercial express mail. Additionally, DSI shall notify
both Depositor and Preferred Beneficiary that there is a dispute to be resolved
pursuant to the Dispute Resolution section (Section 7.3) of this Agreement.
Subject to Section 5.2, DSI will continue to store the Deposit Materials without
release pending (a) joint instructions from Depositor and Preferred Beneficiary;
(b) resolution pursuant to the Dispute Resolution provisions; or (c) order of a
court.
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from the
Depositor, DSI is authorized to release the Deposit Materials to the Preferred
Beneficiary or, if more than one beneficiary is registered to the deposit, to
release a copy of the Deposit Materials to the Preferred Beneficiary. However,
DSI is entitled to receive any fees due DSI before making the release. Any
copying expense in excess of $300 will be chargeable to Preferred Beneficiary.
This Agreement will terminate upon the release of the Deposit Materials held by
DSI.
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4.5 Right to Use Following Release. Unless otherwise provided in the License
Agreement, upon release of the Deposit Materials in accordance with this Article
4, Preferred Beneficiary shall have the right to use the Deposit Materials for
the sole purpose of continuing the benefits afforded to Preferred Beneficiary by
the License Agreement. Preferred Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit Materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period of
one year. Thereafter, this Agreement shall automatically renew from year-to-year
unless (a) Depositor and Preferred Beneficiary jointly instruct DSI in writing
that the Agreement is terminated; or (b) the Agreement is terminated by DSI for
nonpayment in accordance with Section 5.2. If the Deposit Materials are subject
to another escrow agreement with DSI, DSI reserves the right, after the initial
one year term, to adjust the anniversary date of this Agreement to match the
then prevailing anniversary date of such other escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to
DSI, DSI shall provide written notice of delinquency to all parties to this
Agreement. Any party to this Agreement shall have the right to make the payment
to DSI to cure the default. If the past due payment is not received in full by
DSI within one month of the date of such notice, then DSI shall have the right
to terminate this Agreement at any time thereafter by sending written notice of
termination to all parties. DSI shall have no obligation to take any action
under this Agreement so long as any payment due to DSI remains unpaid.
5.3 Disposition of Deposit Materials Upon Termination. Upon termination of this
Agreement, DSI shall destroy, return, or otherwise deliver the Deposit Materials
in accordance with Depositor's instructions. If there are no instructions, DSI
may, at its sole discretion, destroy the Deposit Materials or return them to
Depositor. DSI shall have no obligation to return or destroy the Deposit
Materials if the Deposit Materials are subject to another escrow agreement with
DSI
5.4 Survival of Terms Following Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials;
c. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.3) and Right to Use Following Release (Section
4.5), if a release of the Deposit Materials has occurred prior to
termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically state they survive
the termination or expiration of this Agreement.
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ARTICLE 6 -- DSI'S FEES
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. DSI shall notify the party responsible for
payment of DSI's fees at least 60 days prior to any increase in fees. For any
service not listed on DSI's standard fee schedule, DSI will provide a quote
prior to rendering the service, if requested.
6.2 Payment Terms. DSI shall not be required to perform any service unless the
payment for such service and any outstanding balances owed to DSI are paid in
full. Fees are due upon receipt of a signed contract or receipt of the Deposit
Materials whichever is earliest. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2. Late fees on past due
amounts shall accrue interest at the rate of one and one-half percent per month
(18% per annum) from the date of the invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI will not
be required to inquire into the truth or evaluate the merit of any statement or
representation contained in any notice or document. DSI shall not be responsible
for failure to act as a result of causes beyond the reasonable control of DSI.
7.2 Indemnification. Depositor and Preferred Beneficiary each agree to
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorneys' fees and other
liabilities ("Liabilities") incurred by DSI relating in any way to this escrow
arrangement unless such Liabilities were caused solely by the negligence or
willful misconduct of DSI.
7.3 Dispute Resolution. Any dispute relating to or arising from this Agreement
shall be resolved by arbitration under the Commercial Rules of the American
Arbitration Association. Three arbitrators shall be selected. The Depositor and
Preferred Beneficiary shall each select one arbitrator and the two chosen
arbitrators shall select the third arbitrator, or failing agreement on the
selection of the third arbitrator, the American Arbitration Association shall
select the third arbitrator. However, if DSI is a party to the arbitration, DSI
shall select the third arbitrator. Unless otherwise agreed by Depositor and
Preferred Beneficiary, arbitration will take place in San Diego, California,
U.S.A. Any court having jurisdiction over the matter may enter judgment on the
award of the arbitrator(s). Service of a petition to confirm the arbitration
award may be made by First Class mail or by commercial express mail, to the
attorney for the party or, if unrepresented, to the party at the last known
business address. [THE PARTIES WILL DISCUSS TERMS FOR EXPEDITED DISPUTE
RESOLUTION]
7.4 Controlling Law. This Agreement is to be governed and construed in
accordance with the laws of the State of California, without regard to its
conflict of law provisions.
7.5 Notice of Requested Order. If any party intends to obtain an order from the
arbitrator or any court of competent jurisdiction which may direct DSI to take,
or refrain from taking any action, that party shall:
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a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the
reasonable value of the services to be rendered pursuant to such
order; and
c. Ensure that DSI not be required to deliver the original (as opposed to
a copy) of the Deposit Materials if DSI may need to retain the
original in its possession to fulfill any of its other duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Exhibits described
herein, embodies the entire understanding among the parties with respect to its
subject matter and supersedes all previous communications, representations or
understandings, either oral or written. DSI is not a party to the License
Agreement between Depositor and Preferred Beneficiary and has no knowledge of
any of the terms or provisions of any such License Agreement. DSI's only
obligations to Depositor or Preferred Beneficiary are as set forth in this
Agreement. No amendment or modification of this Agreement shall be valid or
binding unless signed by all the parties hereto, except that Exhibit A need not
be signed by DSI, Exhibit B need not be signed by Preferred Beneficiary and
Exhibit C need not be signed.
8.2 Notices. All notices, invoices, payments, deposits and other documents and
communications shall be given to the parties at the addresses specified in the
attached Exhibit C. It shall be the responsibility of the parties to notify each
other as provided in this Section in the event of a change of address. The
parties shall have the right to rely on the last known address of the other
parties. Unless otherwise provided in this Agreement, all documents and
communications may be delivered by First Class mail.
8.3 Severability. In the event any provision of this Agreement is found to be
invalid, voidable or unenforceable, the parties agree that unless it materially
affects the entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question
shall be deemed to be replaced with a valid and enforceable provision most
closely reflecting the intent and purpose of the original provision.
8.4 Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI shall have no
obligation in performing this Agreement to recognize any successor or assign of
Depositor or Preferred Beneficiary unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
8.5 Regulations. Depositor and Preferred Beneficiary are responsible for and
warrant compliance with all applicable laws, rules and regulations, including
but not limited to customs laws, import, export, and re-export laws and
government regulations of any country from or to which the Deposit Materials may
be delivered in accordance with the provisions of this Agreement.
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- --------------------------------------- ------------------------------------
Depositor Preferred Beneficiary
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Title:
--------------------------------- ------------------------------
Date: Date:
---------------------------------- -------------------------------
DSI Technology Escrow Services, Inc.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
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EXHIBIT A
MATERIAL TO BE DEPOSITED
Account Number
-------------------------
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of the following:
- --------------------------------------- ------------------------------------
Depositor Preferred Beneficiary
By: By:
------------------------------------ ---------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Title:
--------------------------------- ------------------------------
Date: Date:
---------------------------------- -------------------------------
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EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name
----------------------------------------------------------
Account Number
------------------------------------------------------------------
Product Name Version
------------------------------------------ -----------------
(Product Name will appear as the Exhibit B Name on Account History report)
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item
Disk 3.5" or
- ------ ---
DAT tape mm
- ------ --
CD-ROM
- ------
Data cartridge tape
- ------ ---
TK 70 or tape
- ------ ---
Magnetic tape
- ------ ---
Documentation
- ------
Other
- ------ --------------------------
PRODUCT DESCRIPTION:
Environment
----------------------------------------------------------------
DEPOSIT MATERIAL INFORMATION:
Is the media encrypted? Yes/No If yes, please include any passwords and the
decryption tools.
Encryption tool name Version
-------------------------------------- ---------------
Hardware required
---------------------------------------------------------------
Software required
---------------------------------------------------------------
Other required information
------------------------------------------------------
I certify for DEPOSITOR that the above DSI has inspected and accepted the
described Deposit Materials have been above materials (any exceptions are
transmitted to DSI: noted above):
Signature Signature
---------------------------- ---------------------------
Print Name Print Name
---------------------------- --------------------------
Date Dated Accepted
---------------------------------- ----------------------
Exhibit B #
-------------------------
Send materials to: DSI, 9265 Sky Park Ct., Suite 202, San Diego, CA 92123
(858) 499-1600
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EXHIBIT C
DESIGNATED CONTACT
Account Number
-----------------------
Notices, deposit material returns and Invoices to Depositor should be
communications to Depositor should be addressed to:
addressed to:
Company Name:
------------------------ -------------------------------------
Address:
----------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
Designated Contact: Contact:
------------------ -----------------------------
Telephone:
--------------------------- -------------------------------------
Facsimile: P.O.#, IF REQUIRED:
--------------------------- ------------------
Notices and communications to Invoices to Preferred Beneficiary
Preferred Beneficiary should be should be addressed to:
addressed to:
Company Name:
------------------------ -------------------------------------
Address:
----------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
Designated Contact: Contact:
------------------ -----------------------------
Telephone:
--------------------------- -------------------------------------
Facsimile: P.O.#, IF REQUIRED:
--------------------------- ------------------
Requests from Depositor or Preferred Beneficiary to change the designated
contact should be given in writing by the designated contact or an authorized
employee of Depositor or Preferred Beneficiary.
Contracts, Deposit Materials and Invoice inquiries and fee remittances
notices to DSI should be addressed to: to DSI should be addressed to:
DSI Technology Escrow Services, Inc. DSI Technology Escrow Services, Inc.
Contract Administration Accounts Receivable
9265 Sky Park Court, Suite 202 P.O. Box 45156
San Diego, CA 92123 San Francisco, CA 94145-0156
Telephone: (858) 499-1600 (858) 499-1636
Facsimile: (858) 694-1919 (858) 499-1637
Date:
--------------------------------
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