1
EXHIBIT 10.24
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
STRATEGIC ALLIANCE AGREEMENT
BETWEEN
GOAMERICA INC.
AND
RESEARCH IN MOTION LIMITED
THIS STRATEGIC ALLIANCE AGREEMENT (the "Agreement") is entered into as of the
1st day of July, 2000, by and among GOAMERICA INC. ON BEHALF OF ITSELF AND OTHER
AFFILIATED CORPORATIONS (hereinafter referred to as "GoAmerica"), a corporation
organized under the laws of Delaware, United States of America, with its
principal office at 401 Hackensack Avenue, Hackensack, NJ 07601, and RESEARCH IN
MOTION LIMITED (hereinafter referred to as "RIM"), a corporation organized under
the laws of Ontario, Canada, having principal offices at 295 Phillip Street,
Waterloo, Ontario, Canada, N2L 3W8; the above parties are individually and/or
collectively referred to herein as the "Party" or "Parties".
WITNESSETH:
WHEREAS, the Parties have determined that they would benefit from a joint
arrangement among their respective organizations to market the RIM BlackBerry
Solution and certain RIM Wireless Handheld Devices for Mobitex and Datatac
Networks (the "Handheld" or "Handhelds") with GoAmerica's "Go.Web" software
application which allows Internet access via wireless handheld devices (the
"Application") [the RIM BlackBerry Solution, Handhelds and the Application are
individually and/or collectively referred to herein as the "Product" or
"Products"]; and
WHEREAS, the Parties desire to enter into this Agreement in order to define a
business relationship to support and accomplish the above business objective
through coordinated marketing arrangements; and
WHEREAS, the Parties have entered into a Preliminary Marketing Agreement (the
"PMA") dated May 3, 2000 wherein the Parties agreed to enter into a Strategic
Alliance Agreement;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
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1 SCOPE
1.1 During the Term of this Agreement as hereinafter defined, the Parties
will work together to offer and market the BlackBerry Solution with the
Application to end-user customers buying directly from RIM.
2 TERM
2.1 The term of this Agreement ("Term") shall be for a period of one (1)
year from July 31, 2000 (the "Effective Date"). This Agreement shall be
automatically renewed for additional one-year periods unless terminated
by either Party with thirty (30) days written notice to the other Party
prior to the end of the Term or any renewal Term.
3 REPRESENTATIONS AND WARRANTIES
3.1 GoAmerica represents and warrants that it either owns or is authorized
to sublicense a software application, "Go.Web" (the "Application"),
described in Schedule A attached hereto, which allows Internet access
via wireless handheld devices. GoAmerica hereby grants RIM the right to
use the Application in conjunction with the Handhelds and the RIM
BlackBerry Solution.
3.2 GoAmerica warrants to RIM that the Application hereunder will be free
from significant programming errors, will be delivered on media that
are free from defects in workmanship and materials, will operate in
conformity with the performance capabilities, specifications and
functions of such Application, and will conform to the standards
generally observed in the industry for similar software applications.
GoAmerica shall be solely responsible for providing any and all
End-User Warranties relating to the Application. Except as expressly
provided in this Agreement, no other warranties, express or implied,
are made by GoAmerica.
3.3 GoAmerica warrants that none of: (a) the Application, (b) any upgrades,
enhancements or other modifications to the Application developed by or
on behalf of GoAmerica and incorporated into the Application or
otherwise provided to RIM, or (c) any documentation provided by
GoAmerica to RIM along with the Application will infringe or violate,
as the case may be, any patents or trademarks registered or enforceable
in the United States or Canada, trade names, and copyrights, trade
secrets or other intellectual property or proprietary rights.
3.4 GoAmerica warrants that to the best of its knowledge the Application,
when integrated with the Handhelds and/or the BlackBerry Solution, will
not infringe or violate, as the case may be, any patents or trademarks
registered or enforceable in the United States or Canada, trade names,
and copyrights, trade secrets or other intellectual property or
proprietary rights.
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
3.5 GoAmerica warrants that it has included sufficient procedures and
check-points in designing and providing software for the Application to
RIM to provide against viruses, Trojan horses or other code that
manifest contaminating or destructive properties (collectively called
the "viruses").
4 ALLIANCE ACTIVITIES
4.1 During the Term of this Agreement, GoAmerica shall grant to RIM a
royalty free, non-exclusive right and license in the Territory to:
a) use, execute, copy, distribute by way of sublicense, and
maintain the Application in object code form (including,
without limitation, all revised or upgraded versions of the
Application, if any) for the purpose of including the
Application on Handhelds in conjunction with the BlackBerry
Wireless Email Solution pursuant to marketing GoAmerica's
wireless portal service; and
b) make, have made, sell, offer for sale, export from the United
States and Canada and import into the United States and Canada
(the "Territory") products containing the Application in
object code form.
4.2 Without limiting the foregoing, GoAmerica shall grant a, perpetual,
royalty free, non-exclusive right and license to the end-users of RIM's
Handhelds to use the Application in conjunction with the Handhelds.
4.3 [Note to draft: this issue is dealt with in 4.6 below.]
4.4 GoAmerica shall provide the Application to RIM in a complete and
functioning form, acceptable to RIM and on a media acceptable to both
Parties. GoAmerica shall also deliver to RIM such documentation as may
accompany and/or is related to the Application. In addition, GoAmerica
shall provide to RIM, at GoAmerica's expense, all applicable
documentation, and all future upgrades, new releases, improvements and
enhancements within [**] of such documentation, upgrades, new releases
and improvements becoming generally commercially available. GoAmerica
agrees to give RIM reasonable notice prior to upgrading the
Application, and such notice shall be given no later than notice is
given to any other third party. GoAmerica acknowledges that RIM's
timely inclusion of upgrades, new releases, improvements and
enhancements pertaining to the Application on or with RIM Handhelds is
dependent upon GoAmerica's timely provision of such upgrades, new
releases, improvements and enhancements to RIM.
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
4.5 GoAmerica agrees to test the Application (as reasonably required by
RIM) to ensure quality and show proof of such testing to RIM prior to
the inclusion of the Application on or with RIM Handhelds. GoAmerica
also agrees to maintain support and operations of the Application
during the term of this Agreement in a commercially reasonable manner,
and shall provide such support and operations in accordance with any
maintenance and support agreements or guidelines in effect between the
Parties at the time of this Agreement and as may be mutually modified
in writing by the Parties from time to time.
4.6 RIM agrees to include the Application and such of the documentation as
RIM determines, in its reasonable discretion, is appropriate on or with
any Handheld sold by RIM to end-users or distributed by RIM through any
of RIM's distribution channels in the Territory for resale in the
Territory, for a period of [**] from the Effective Date. At RIM's sole
discretion, inclusion of the Application with the Handheld may consist
of, but is not limited to, the following: the [**] with the Handheld;
the [**] of [**] Handhelds; and [**] through [**] web sites. RIM shall
have the right to [**] the Application [**], if such [**] through any
of [**] in the [**] in the [**]. Notwithstanding the above, [**] the
Application [**] shall be subject to engineering and manufacturing
validation of feasibility, and further RIM shall [**] include the
Application [**] if (i) [**] device memory availability or other
relevant technical considerations, (ii) [**] by any other agreements
with [**] customers, including, without limitation, [**] of RIM's offer
to include the [**] to be used with the [**], or (iii) a [**] in
writing that [**] that will be shipped to such party.
4.7 GoAmerica shall assist RIM with the inclusion of the Application and
any upgrades, new releases, improvements and enhancements on RIM
Handhelds, including without limitation, training of RIM personnel on
the use and maintenance of the Application, in order to successfully
complete the integration of the Application with the Handhelds.
Training shall take place at RIM's headquarters in Waterloo, Ontario,
Canada and shall be without compensation unless the Parties agree
otherwise in writing.
4.8 The Application will require RIM's end-users to separately activate the
Go.Web Service ("Service") by contacting GoAmerica directly. GoAmerica
shall pay to RIM a one-time fee of $[**] US per RIM end-user, for each
RIM end-user that uses the Service for a minimum period of [**].
4.9 GoAmerica shall be responsible for contracting with wireless carriers
for airtime and shall compensate the applicable wireless carrier
directly for airtime and applicable interconnect charges. RIM shall
have no obligation relating to airtime or interconnect charges, and
shall not be liable for any damages of any kind arising out of issues
relating to airtime, interconnect charges or GoAmerica's relationship
with any wireless carriers. Furthermore, GoAmerica agrees to indemnify
and hold RIM harmless against any third party claims related to airtime
availability provided by GoAmerica or its suppliers.
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
4.10 During the Support Term (as hereinafter defined) RIM will provide Level
1 Support for the Application ("Application Level 1 Support").
Application Level 1 Support shall mean direct technical support of the
Application, consisting of: (a) a direct response to End-User inquiries
concerning the performance of the Application, functionality or
operation of the Application; (b) a direct response to reported
problems or performance deficiencies with the Application; (c) a
diagnosis of problems or performance deficiencies with the Application;
and (d) the use of commercially reasonable efforts to resolve problems
or performance deficiencies in the Application, to the extent that such
resolution is possible over the telephone. Application Level I Support
shall be made available by telephone (with call logging and validation)
so that End-Users may contact RIM's help desk regarding technical and
support questions and other problems regarding use of the Application.
RIM shall inform End-Users that if, after using its reasonable
commercial efforts, RIM is unable to answer a support question or to
correct a reported problem in the Application, the End-User may contact
GoAmerica's help desk for second level support. Such arrangement for
Application Level 1 Support may be altered by the mutual agreement of
the Parties in writing.
Application Level 1 Support shall be available during the period of
thirty (30) days from September 18, 2000, or such other period of time
as mutually agreed upon (the "Support Term"), and during such Support
Term, RIM shall provide Application Level 1 Support on a 7 days per
week, 24 hours per day basis at the following prices:
a) $[**] as a flat fee during each month of the Support Term; and
b) $[**] for each call for Application Level I Support.
4.11 GoAmerica agrees that RIM has no responsibility or liability for the
billing, invoicing, collection or sales of the Application and related
services.
4.12 In consideration of the obligations assumed by RIM, GoAmerica shall:
a) have paid to RIM [**] Dollars ($[**]) as of the Effective
Date, such sum representing a nonrecurring implementation
expense to defray RIM's engineering and marketing costs
associated with fulfilling its obligations under the PMA and
this SAA, in particular, without limitation, those obligations
whereby RIM will be facilitating access to the Go.Web service
by its customers in conjunction with RIM's BlackBerry
Solution;
b) pay RIM the sum of [**] Dollars ($[**]), representing a
product placement fee ("PPF") in recognition of the improved
positioning of the Go.Web Service in the market place as a
result of RIM's undertakings in accordance with this SAA; and
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
c) enter into a warrant agreement to be effective at the same
time as this SAA whereby RIM shall be granted a warrant to
acquire Three Hundred Thirty-Three Thousand shares of the
common stock of GoAmerica at a strike price of $16.00 US per
share in further consideration of RIM's undertakings pursuant
to this SAA.
The PPF shall be paid in two equal installments of [**] Dollars ($[**])
the first installment being payable upon the first anniversary of the
effective date of the PMA and the second installment being payable upon
the second anniversary of the effective date of the PMA. The obligation
to make the first and second installment payments shall survive
termination or expiration of this SAA.
5 CONFIDENTIALITY AND CONFIDENTIAL INFORMATION
5.1 "Confidential Information" means information belonging to or in the
possession or control of a Party which is of a confidential,
proprietary or trade secret nature that is finished or disclosed to the
other Party under this Agreement: (i) in tangible form and marked or
designated in writing in a manner to indicate its confidential,
proprietary or trade secret nature, or (ii) in intangible form and
concurrently identified as confidential, proprietary or trade secret.
Each Party's business plans, strategy, and prospect and/or customer
information are hereby designated by each Party as Confidential
Information of that Party.
5.2 Confidential, Information shall be deemed to exclude any particular
information that (i) is already known to the receiving Party without
restrictions at the time of its disclosure by the disclosing Party, as
evidenced by the written records of the receiving Party; (ii) after its
disclosure by the disclosing Party, is made known to the receiving
Party without restrictions by a third Party having the right to do so;
(iii) is or becomes publicly known without violation of this Agreement;
or (iv) is independently developed by the receiving Party without
reference to the disclosing Party's Confidential Information, as
evidenced by the written records of the receiving Party.
5.3 Confidential Information will remain the property of the disclosing
Party, and the receiving Party will not be deemed by virtue of this
Agreement or any access to the disclosing Party's Confidential
Information to have acquired any right or interest in or to any such
Confidential Information. The receiving Party agrees: (i) to hold the
disclosing Party's Confidential Information in strict confidence; (ii)
to limit disclosure of the disclosing Party's Confidential Information
to personnel having a need to know the information for the purposes of
this Agreement; (iii) not to disclose any such Confidential Information
to any third party; (iv) to use the disclosing Party's Confidential
Information solely and exclusively in accordance with the terms of this
Agreement in order to carry out its obligations and exercise its rights
under this Agreement; (v) to afford the disclosing Party's Confidential
Information at least the same level of protection against unauthorized
disclosure or use as the receiving Party normally uses to protect its
own information of a similar character, but in no event less than
reasonable care; and (vi) to
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notify the disclosing Party promptly of any unauthorized use or
disclosure of the disclosing Party's Confidential Information. Neither
this Agreement nor the exchange of Confidential Information hereunder
shall be construed as granting any right or license under any
copyrights, inventions, or patents now or hereafter owned or controlled
by any Party.
5.4 If the receiving Party receives a subpoena or other validly issued
administrative or judicial notice requesting the disclosure of the
disclosing Party's Confidential Information, or if the receiving Party
is otherwise obliged by law to disclose the disclosing Party's
Confidential Information, the receiving Party will promptly notify the
disclosing Party and, if so requested, will provide reasonable
cooperation to the disclosing Party in resisting the disclosure.
Subject to its obligations stated in the preceding sentence, the
receiving Party will be entitled to comply with any binding subpoena or
other process to the extent required by law, but will in doing so make
every effort to secure confidential treatment of any materials it is
compelled to disclose.
5.5 Within 14 days after the written request of the disclosing Party, the
receiving Party, at the disclosing Party's option, will return or
destroy, and give written confirmation thereof, all Confidential
Information of the disclosing Party that the receiving Party does not
possess under a valid license.
5.6 Each Party agrees that if a court of competent jurisdiction determines
that the receiving Party has breached, or attempted or threatened to
breach, any of its confidentiality obligations to the disclosing Party
or the disclosing Party's proprietary rights, the disclosing Party will
be entitled to obtain appropriate injunctive relief and other measures
restraining further, attempted or threatened breaches of such
obligations.
5.7 Except as otherwise explicitly provided herein, nothing herein shall
require a Party to disclose any information whatsoever to the other
Party, and each Party, in its sole and absolute discretion, may deem
any information confidential and decide not to disclose such
information to the other Party.
5.8 Notwithstanding any other provision to the contrary herein, either
Party may disclose Confidential Information of the other as required by
the listing rules of any stock exchange where either parties stocks are
listed or quoted.
6 RELATIONSHIP AND CONDUCT OF THE PARTIES
6.1 This Agreement shall not constitute, create, give effect to or
otherwise recognize a joint venture, partnership or formal business
organization of any kind, and the rights and obligations of the Parties
shall be only those expressly set forth herein. No Party shall have
authority to bind the other Party except to the extent as expressed
herein. The Parties shall be independent entities with each other for
all purposes at all times; no Party shall act as agent for or
representative of the other Party, and the employees of one Party shall
not be deemed to be employees of the other Party. Nothing in this
Agreement shall be construed as providing for the sharing of profits or
losses arising out of the efforts of
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any Party, except as such profit or loss sharing may mutually be agreed
upon in writing by the Parties.
6.2 In all of its activities under this Agreement, each Party shall act
consistently with its status as an independent contractor. When any
Party's employees are on the premises of the other Party, the visiting
employees shall obey all rules and regulations established by the owner
of the premises regarding employee conduct of which the visiting Party
is made aware.
6.3 No Party shall, in its performance hereunder, take any action that
would be illegal under any applicable rules, regulations and laws.
6.4 Each Party shall furnish to the other Party such cooperation and
assistance as may be reasonably required hereunder,
6.5 Each Party represents and warrants that, to the best of its knowledge,
it has the legal right to perform all of its obligations under this
Agreement.
6.6 In pursuing the joint activities under this Agreement, the Parties
agree, as far as practicable, to make a clear distinction between each
Party's products in order to avoid any confusion of third parties as to
the ownership of, and rights to, the Products.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 RIM grants to GoAmerica a non-exclusive license to use trademarks
associated with the RIM BlackBerry Solution and the Handhelds pursuant
to this Agreement in a commercially reasonable manner in its marketing
efforts related hereto, while adhering to a high standard of excellence
in all related packaging, advertising and marketing efforts. GoAmerica
will supply RIM with specimens of its use of such trademarks upon
request, The use of any trademark in connection herewith creates no
further right, title, or interest in or to the trademark and all such
use and associated goodwill inure to the benefit of RIM. To the extent
deemed otherwise, GoAmerica hereby assigns the same to RIM, when and as
they shall arise, for the full term of protection available therefore
worldwide. GoAmerica shall not register or attempt to register any
trademarks of RIM or its suppliers. GoAmerica shall not remove, alter,
deface, or otherwise impair the recognition of any trademark of RIM or
RIM's suppliers, including, but not limited to, any marks or brands on
any product, software, label, documentation or packaging, or in
marketing materials. GoAmerica's only rights with respect to any RIM
Software included with the products shall be as provided under the
terms of RIM's Software License Agreement. GoAmerica agrees that RIM
retains ownership of all right, title and interest in all intellectual
property, works of authorship, trade secrets and the like in all
aspects of the RIM BlackBerry Solution and the Handhelds as well as in
all Products and Software supplied by RIM. GoAmerica and its affiliates
and sub-contractors agree not to reverse engineer any aspect of the RIM
Software and/or Products supplied under this Agreement and further
agree to pay assessed damages should such action take place.
7.2 GoAmerica grants to RIM a non-exclusive license to use trademarks
associated with the Application pursuant to this Agreement in a
commercially reasonable manner in its
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marketing efforts related hereto, while adhering to a high standard of
excellence in all related packaging, advertising and marketing efforts.
RIM will supply GoAmerica with specimens of its use of such trademarks
upon request. The use of any trademark in connection herewith creates
no further right, title, or interest in or to the trademark and all
such use and associated goodwill inure to the benefit of GoAmerica. To
the extent deemed otherwise, RIM hereby assigns the same to GoAmerica,
when and as they shall arise, for the full term of protection available
therefore worldwide. RIM shall not register or attempt to register any
trademarks of GoAmerica or its suppliers. RIM shall not remove, alter,
deface, or otherwise impair the recognition of any trademark of
GoAmerica or GoAmerica's suppliers, including, but not limited to, any
marks or brands on any Product, Software, label, documentation or
packaging, or in marketing materials. RIM agrees that GoAmerica retains
ownership of all right, title and interest in all intellectual
property, works of authorship, trade secrets and the like in all
aspects of the Application. RIM and its affiliates and sub-contractors
agree not to reverse engineer any aspect of the Application supplied
under this Agreement and further agree to pay assessed damages should
such action take place. Notwithstanding the above, nothing in this
Agreement shall prevent RIM from developing technology that would
enable RIM's end-users to access the Internet using RIM's, or any other
third party's, products, including without limitation, RIM's Handhelds.
7.3 Without limiting the foregoing, GoAmerica agrees that where GoAmerica
uses the RIM brand or trademarks to follow the then applicable RIM
branding and logo usage guidelines as may be provided by RIM from time
to time. RIM agrees that where RIM, uses the GoAmerica brand or
trademarks to follow the then applicable GoAmerica branding and logo
usage guidelines as may be provided by GoAmerica from time to time.
7.4 Except as set forth in Articles 4.1 and 4.2 and this Article 7, this
Agreement does not grant to any Party any rights in, or license to, any
present or future Intellectual Property Rights.
8 TERMINATION
8.1 Except for the rights and obligations of the Parties set forth in
Articles 3, 4, 5, 7, 10, 11, 16, 17, 23, 24 and 25, and in this Article
8, which shall continue in full force and effect until they have been
completely exercised or fulfilled as the case may be, this Agreement
shall terminate pursuant to any one of the following events:
a) Upon default by a Party which continues unremedied for a
period of thirty (30) days after written notice from the
aggrieved Party specifying the nature of such breach;
b) Upon acquisition of a Party by a competitor (determination of
whether or not the acquiring party is a competitor shall be
based on reasonable and objective criteria) of the
non-acquired Party;
c) Upon expiration of the Term of this Agreement where such Term
is not renewed;
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d) Upon a Party's insolvency or initiation of bankruptcy or
receivership proceedings by or against a Party or the
execution of an assignment for the benefit of creditors; or
e) Upon mutual written consent of the Parties; whichever shall
first occur.
8.2 Termination of this Agreement shall have the effect of terminating the
Parties' obligations to continue any joint marketing or sales
activities hereunder, but shall not serve to terminate existing
contracts the Parties have entered into pursuant to the terms of this
Agreement. Prior to the effective date of termination, the Parties will
attempt to negotiate in good faith an orderly transition for any joint
marketing or sales activities in progress. Without limiting the
foregoing, each Party shall have the right to sell any Handhelds
integrated with the Application (the "Integrated Product") after the
expiration or termination of this Agreement where such Integrated
Products were manufactured prior to such expiration or termination date
and in such Party's inventory.
8.3 Upon termination of this Agreement:
a) No Party will be liable to the other Party for damages,
expenditures, or loss of profits or prospective profits of any
kind or nature sustained by, arising out of, or alleged to
have arisen out of such termination;
b) Each Party shall comply with the provisions of Section 5.5
herein regarding the destruction of and/or return to the other
Party of any and all Confidential Information and other items
furnished to it by the other Party.
8.4 Any termination of this Agreement for cause shall not affect any right
or obligation of a Party which arose prior to such termination.
9 COSTS AND EXPENSES
9.1 Any and all costs and expenses incurred by a Party and arising out of
its obligations and efforts under this Agreement shall be borne by that
Party. No Party shall charge the other Party for any services provided
to the other Party unless specifically agreed to in writing by the
Parties.
10 INDEMNIFICATION
10.1 Each Party ("Indemnifying Party") shall indemnify and hold harmless the
other Party ("Indemnified Party") from and against any loss, cost,
claim, liability, damage and expense (including reasonable attorney's
fees) to third parties relating to or arising out of the Indemnifying
Party's performance of its obligations in this Agreement, insofar as
such claims stem from the Indemnifying Party's gross negligence or
willful misconduct which results in death or bodily injury to any
person or damage to any real or tangible personal Property.
10.2 The Indemnified Party will notify the Indemnifying Party promptly in
writing of any written claims, lawsuits or demands by third parties for
which one or more of the
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Indemnified Party allege that the Indemnifying Party is responsible
under this Article 10, and if requested by the Indemnifying Party, will
tender the settlement or defense of such claim, lawsuit or demand. The
Parties will cooperate in every reasonable manner with the defense or
settlement of such claim, lawsuit or demand. The Indemnifying Party
will not be liable under this Article 10 for settlements by the
Indemnified Party of any claim, lawsuit or demand, unless the
Indemnifying Party has approved the settlement in advance or unless the
defense of the claim, lawsuit or demand has been tendered to the
Indemnifying Party in writing and the Indemnifying Party has failed
promptly to undertake the settlement or defense.
10.3 GoAmerica shall defend, indemnify, and hold harmless RIM, RIM's
suppliers, successors, affiliates, agents and assigns from any claims,
damages, losses, or expenses (including, without limitation, attorney
fees and costs) incurred by RIM, RIM's suppliers, successors,
affiliates, agents and assigns in connection with all claims, suits,
judgments and causes of action for libel, slander, defamation or
infringement of copyright or other proprietary right with respect to
material transmitted by GoAmerica or GoAmerica's End-User using the
Handheld or the Application. No remedy herein conferred upon RIM is
intended to be, nor shall it be construed to be, exclusive of any other
remedy provided herein or as allowed by law or in equity, but all such
remedies shall be cumulative.
10.4 RIM and GoAmerica shall each, as applicable and to the fullest extent
permitted by law, indemnify, defend and hold the other harmless, its
affiliates, officers, agents and employees from all third party claims,
suits or proceedings of any kind for all damages, costs, penalties,
fees or expenses (including attorneys' fees) arising out of or related
to the following:
a) Subject to the limitation of liability set forth in Article
11, RIM will indemnify GoAmerica for any third party claims
brought against GoAmerica for infringement of any trademark or
patent enforceable in Canada or the United States, copyright
or other proprietary right arising out of the Handheld or the
Services provided by RIM, where the Handheld has been used in
accordance with this Agreement by GoAmerica provided, however,
that RIM shall have no indemnification obligation if (i) the
Handheld and/or Services are used in combination with any
hardware and/or software and/or services not supplied or
recommended by RIM or (ii) the Handheld and/or Services are
modified without RIM's written consent and the infringement or
violation of such proprietary right would not have occurred
but for such combination or modification; and further provided
that (a) GoAmerica notifies RIM in writing within seven (7)
days of the claim; (b) RIM has sole control of the defense and
all related settlement negotiations and RIM has, without
limitation, the sole, unfettered discretion to compromise and
settle such claim; and (c) GoAmerica provides RIM with the
assistance, information and authority necessary to perform
RIM's obligations under this paragraph. Reasonable
out-of-pocket expenses incurred by GoAmerica in providing such
assistance will be reimbursed by RIM.
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
b) Subject to the limitation of liability set forth in Article
11, GoAmerica will indemnify RIM for claim brought against RIM
for infringement of any trademark or patent enforceable in
Canada or the United States, copyright or other proprietary
right arising out of the Application, where the Application
has been used in accordance with this Agreement by RIM
provided, however, that GoAmerica shall have no
indemnification obligation if (i) the Application is used in
combination with any hardware and/or software and/or services
not contemplated under this Agreement or (ii) the Application
is modified without GoAmerica's written consent and the
infringement or violation of such proprietary right would not
have occurred but for such combination or modification; and
further provided that (a) RIM notifies GoAmerica in writing
within seven (7) days of the claim; (b) GoAmerica has sole
control of the defense and all related settlement negotiations
and GoAmerica has, without limitation, the sole, unfettered
discretion to compromise and settle such claim; and (c) RIM
provides GoAmerica with the assistance, information and
authority necessary to perform GoAmerica's obligations under
this paragraph. Reasonable out-of-pocket expenses incurred by
RIM in providing such assistance will be reimbursed by
GoAmerica.
These indemnity obligations will survive the termination of this
Agreement. This indemnity will apply even if liability for which the
indemnified party is entitled is the result of joint negligence, joint
misconduct or joint fault of RIM and GoAmerica, but in such case,
liability will be apportioned by the percentage of liability
attributable to the negligence, misconduct or fault of the Parties.
11 LIMITATION OF LIABILITY
11.1 Except as set forth in Article 10 herein, or a breach of Article 5
herein, neither Party shall be liable to any other Party for loss, cost
claim, injury, liability or expense, including reasonable attorney's
fees, relating to or arising out of any ordinary negligent act or
omission by a Party. If either Parry should become entitled to claim
damages from the other Party (including without limitation, for breach
of contract, breach of warranty, gross negligence or other tort claim),
the Party against whom damages are sought will be liable only for the
amount of the other Party's actual direct damages up to the amount of
[**] dollars US ($[**]). NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY FOR LOST REVENUES, LOST PROFITS, OR SPECIAL, INCIDENTAL, INDIRECT
OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED BY
THE OTHER PARTY OF THE PROBABILITY OF SUCH DAMAGE OR LOSS, WHETHER SUCH
DAMAGE OR LOSS ARISES IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT
LIABILITY OR OTHERWISE. THE FOREGOING LIMITATION ON RECOVERY SHALL NOT
BE CONSTRUED AS PRECLUDING RIM FROM RECOVERING ITS PROFIT IN ANY ACTION
FOR PAYMENT UNDER THIS AGREEMENT.
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11.2 Each Party shall mitigate its damages in a commercially reasonable
fashion in the event of the other Party's default under this Agreement.
The Parties shall exercise reasonable efforts to cooperate with each
other so as to avoid having any internal dispute between or among them
affect the Service Provider or disrupt service to the Service Provider.
12 FORCE MAJEURE
12.1 Neither Party shall be liable to the other for any delay or failure to
perform, which is due to causes beyond the control of said Party,
including but not limited to, force majeure, acts of the public enemy,
acts of any governmental authority in its sovereign capacity, fires,
floods, hurricanes, earthquakes, epidemics, quarantine restrictions,
strikes or other labor disputes and freight embargoes; provided
however, that failure to make any payment provided for herein, shall
not be excused for any of the foregoing reasons.
13 ASSIGNMENT
13.1 Neither this Agreement nor any of the rights or obligations under this
Agreement may be assigned delegated, sublicensed or otherwise
transferred by any Party in whole or in part without the prior written
consent of the other Party.
14 SUBCONTRACTING
14.1 Upon prior written notice to, and the consent (not to be unreasonably
withheld) of, the other Party, either Party may subcontract any of its
obligations under this Agreement, but no such subcontract shall relieve
the subcontracting Party of primary responsibility for performance of
its obligations.
15 NON-EXCLUSIVITY
15.1 Except as otherwise provided herein, this Agreement is non-exclusive.
Any Party may enter into similar agreements with third parties;
provided, however, that consistent with observing the requirements of
Article 5 herein, neither Party shall disclose the terms of any
agreement concerning the subject matter of this Agreement to any third
party without the prior written consent of the other Parties.
16 AUDIT
16.1 To permit RIM to confirm GoAmerica's compliance with this Agreement and
applicable intellectual property laws, GoAmerica shall keep detailed
records and provide monthly summary reports to RIM of the numbers of
RIM end users activating the Service, such reports to be provided
within 15 business days after each month end. To assure such
compliance, auditors reasonably acceptable to GoAmerica may inspect
such records of GoAmerica from time to time on behalf of RIM, but no
more frequently than once per year. Any such audits shall be conducted
during regular business hours at the GoAmerica's offices and shall not
interfere unreasonably with the GoAmerica's business activities. If an
audit reveals that GoAmerica has underpaid fees to RIM, GoAmerica shall
be invoiced for such underpaid fees based on the price list in effect
at the time the underpaid fees were originally due, plus interest on
such underpaid fees at the lesser of
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eighteen (18%) percent per annum, or the maximum rate allowed under
applicable law, calculated from the time the underpaid fees were
originally due until the time they are paid, with such payment due
immediately upon receipt of invoice. If an audit reveals a 5% or
greater non-compliance for any particular quarter by GoAmerica, then
GoAmerica shall pay RIM's reasonable costs of conducting the audit.
17 PUBLICITY
17.1 The Parties shall cooperate in jointly drafting and approving press
releases announcing their marketing alliance.
17.2 No Party shall use the name of the Other Party in any news release,
public announcement, advertisement, sales promotion material or other
form of publicity without the prior written consent of the other Party,
except that the Parties may mutually agree upon the form of standard
press releases or other documentation that each Party will be permitted
to use on an ongoing basis without seeking permission from the other
Party. No Party shall disclose the existence or the contents of any of
the terms and conditions of this Agreement without prior written
consent of the other Party.
18 NOTICES
18.1 All notices, including notices of address change, required to be sent
hereunder shall be in writing and when sent in writing shall be deemed
to have been given when delivered by courier service or mailed by first
class mail to the applicable address listed at the beginning of this
Agreement. To expedite order processing, either Party may treat
documents faxed by the other Party as original documents; nevertheless,
either Party may require the other to exchange original signed
documents.
18.2 Any notice given pursuant to this Article 18 shall be effective five
(5) days after the day it is mailed or upon receipt whichever is
earlier.
19 AMENDMENTS AND WAIVERS
19.1 This Agreement may be amended only by written agreement of the Parties.
No amendment or waiver of any provisions of this Agreement, and of
consent to any default under this Agreement, shall be effective unless
the same shall be in writing and signed by a duly authorized
representative on behalf of the Party against whom such amendment,
waiver or consent is claimed. In addition, no course of dealing or
failure of any Party to enforce strictly any term, right, or condition
of this Agreement shall be construed as a waiver of such term, right or
condition.
20 ORIGINALS
20.1 This Agreement may be executed in multiple counterparts, in which case
each such counterpart shall be an original and together each shall
constitute one and the same document.
21 SECTION HEADINGS
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21.1 Section headings are inserted for convenience only and shall not be
used in any way to construe the terms of this Agreement.
22 SEVERABILITY
22.1 If any provision hereof is declared or determined to be invalid or
unenforceable under applicable law, the remaining provisions hereof
shall continue in full force and effect and the Parties shall
substitute for the invalid provision a valid provision which most
closely approximates the economic effect and intent of the invalid
provision.
22.2 The invalidity, in whole or in part, of any section or paragraph of
this Agreement shall not affect the validity of the remainder of this
Agreement.
23 EXPORT CONTROL
23.1 Both RIM and GoAmerica agree to comply fully with all relevant export
laws and regulations of the United States and Canada to assure that
neither the Products, nor any direct Product thereof, nor information
or technical data provided pursuant to this Agreement, are exported,
directly or indirectly, in violation of United States and/or Canadian
law. The Parties acknowledge that the Application and certain versions
of the BlackBerry Software may operate with a level of data encryption
that, as of the Effective Date, may not be exported outside of the
United States and Canada without obtaining applicable permits, if at
all. Accordingly, without limiting the generality of this Article, the
Parties agree that it shall not export, nor encourage or induce any
party, customer or potential customer, to export such Products from the
Territory. Each Party agrees, at its own expense, to comply with all
foreign exchange and other laws and regulations applicable to such
Party, and each Party agrees to obtain any licenses or approvals
necessary for such Party to perform this Agreement.
24 INFORMAL DISPUTE RESOLUTION
24.1 At the written request of either Party, the Parties will attempt to
resolve any dispute arising under or relating to this Agreement through
the informal means described in this Article. Each Party will appoint a
senior management representative who does not devote substantially all
of his or her time to performance under this Agreement (the
"Arbitration Representative"). Each Arbitration Representative will
furnish to the other all non-privileged information with respect to the
dispute that the Parties believe to be appropriate and germane. The
Arbitration Representatives will negotiate in an effort to resolve the
dispute without the necessity of any formal proceeding. Formal
proceedings for the resolution of the dispute may not be commenced
until: (i) the designated representatives conclude that resolution
through continued negotiation does not appear likely; or (ii) thirty
(30) calendar days have passed since the initial request to negotiate
the dispute was made; provided, however, that a Party may file earlier
to avoid the expiration of any applicable limitations period, to
preserve a superior position with respect to other creditors, or to
apply for interim or equitable relief.
24.2 Any question or dispute arising out of or relating to this Agreement
not resolved pursuant to Article 24.1 will be settled by arbitration
administered by the American Arbitration
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Association ("AAA") in accordance with its Commercial Arbitration Rules
and the Supplementary Procedures for Large, Complex Disputes, and
judgment on the award may be entered in any court having jurisdiction
thereof or over the applicable Party or its assets. There will be three
(3) arbitrators; one (1) selected by each Party from a list of
qualified arbitrators provided by the AAA and the two so selected will
select a third arbitrator. The third arbitrator will meet the
qualification criteria to serve as an arbitrator in the Large, Complex
Case Dispute Resolution Program and will serve as chairman of the
arbitration. The Expedited Procedures will apply. The arbitrators will
have no authority to award any damages that are excluded by the terms
and conditions of this Agreement. The arbitrators shall issue an
opinion in writing setting out the panel's findings of fact and
conclusions of law in support of any award, unless the Parties agree
otherwise. Either Party will have the right to apply at any time to a
judicial authority for appropriate injunctive or other interim or
provisional relief, and will not by doing so be deemed to have breached
its agreement to arbitrate or to have affected the powers reserved to
the arbitrators.
25 LIMITATION OF ACTIONS
25.1 No proceeding, regardless of form, arising out of or related to this
Agreement may be brought by either Party more than two (2) years after
the accrual of the cause of action, except that (i) proceedings for
indemnification or related to violation of a Party's proprietary rights
or any duty to protect Confidential Information may be brought at any
time within the applicable statute of limitations, and (ii) proceedings
for non-payment may be brought up to two (2) years after the date the
last payment was due.
26 ENTIRE AGREEMENT; GOVERNING LAW
26.1 This Agreement constitutes the entire understanding and agreement of
and among the Parties with respect to the subject matter hereof, and
supersedes and merges any prior or contemporaneous representations and
agreements, verbal or written. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, U.S.A.,
except with respect to its conflict of laws rules.
IN WITNESS HEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the dates set forth below.
RESEARCH IN MOTION LIMITED GOAMERICA INC.
By: /s/ Jim Balsillie By: /s/ Joe Korb
Name: Jim Balsillie Name: Joe Korb
Title: Chairman and Co-CEO Title: President
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