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EXHIBIT 10.28
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SUPPLY AGREEMENT
This Supply Agreement (the "AGREEMENT") is made as of November 28, 2000, by
and between Sierra Wireless Data, Inc. ("SWD"), a Delaware corporation, having
an office at Park 80, Plaza West, Suite 200, Saddle Brook, New Jersey, U.S.A.,
07663, and GoAmerica Inc., a Delaware corporation having an office at 401
Hackensack Ave., Hackensack, NJ 07601 ("GOA").
WHEREAS the parties desire to enter into a commercial arrangement under which
SWD will design, develop, manufacture and sell to GOA an agreed-upon number of
data subscriber devices for the Network, as set out in this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth herein and for
other good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged) the parties hereby agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS. Whenever used in this Agreement, the following words and terms
shall have the respective meanings ascribed to them:
(a) "BUSINESS DAY" means any day other than Saturday, Sunday or any
statutory holiday in the United States;
(b) "CONFIDENTIAL INFORMATION" means all Information disclosed, to a
receiving party by a disclosing party, in writing or by way of any
other media and marked as proprietary and/or confidential or that by
the nature of the circumstances surrounding the disclosure or receipt
ought to be treated as proprietary and confidential, except any
portion thereof that a receiving party can demonstrate by written
records prepared and maintained in the ordinary course of its business
or other reasonably sufficient evidence: (a) was known to the
receiving party before receipt thereof under this Agreement; (b) is
disclosed to the receiving party by a third party who has a right to
make such disclosure without any obligation of confidentiality to the
other party; (c) is or becomes generally known in the trade without
violation of either this Agreement by the receiving party or any
confidentiality obligation owed to the disclosing party by any third
party; (d) is furnished by the disclosing party to a third party
without restriction on subsequent disclosure; or (e) is independently
developed by the receiving party or its employees or contractors
without reference to the disclosing party's information; provided,
that only the particular Information that is specifically excluded, as
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forth above, shall be excluded from treatment as Confidential
Information hereunder, and not any other Information that happens to
appear in proximity to such excluded portion. (For example, a portion
of a document may be excluded without affecting the confidential
nature of those portions that do not themselves qualify for
exclusion). Confidential Information shall also include all notes,
copies, summaries and derivative materials, in any media. Confidential
Information shall also include, without limitation, any and all
information of third parties that is disclosed or obtained pursuant to
this Agreement and that would otherwise qualify as Confidential
Information as defined herein if disclosed by GOA or SWD. Confidential
Information shall also include the specific terms and conditions of
this Agreement, but shall not include the general nature of this
Agreement;
(c) "DELIVERY SCHEDULE" means the schedule for delivery by SWD to GOA of
the Springboard Products, a copy of which is attached hereto as
Schedule 1;
(d) "EFFECTIVE DATE" means the date of execution of this Agreement;
(e) "FORCE MAJEURE" has the meaning set out in section 15.1;
(f) "INFORMATION" means all forms and types of financial, business,
marketing, operations, scientific, technical, economic and engineering
information, whether tangible or intangible, including without
limitation, patterns, plans, compilations, program devices, formulas,
designs, prototypes, methods, techniques, processes, procedures,
programs, codes, know-how, computer software, databases, product names
or marks, marketing materials or programs, specifications,
shop-practices, customer lists, supplier lists, engineering and
manufacturing information, price lists, costing information, employee
and consulting relationship information, accounting and financial
data, profit margin, marketing and sales data, strategic plans,
information concerning new products, trade secrets and all other
proprietary information of a disclosing party (including all
originals, copies, digests and summaries, in any form, and whether
prepared by the disclosing party or a third party);
(g) "INTELLECTUAL PROPERTY RIGHTS" has the meaning set forth in section
12.1;
(h) "NETWORK" means the AT&T and Verizon Wireless CDPD communications
network on which the P1-CDPD Module will operate and all other
networks on which the P2-CDMA Ix Module will operate, as advised to
SWD by GOA in accordance with section 2.2 hereof,
(i) "P1-CDPD MODULE(s)" means the SWD/GOA co-branded Phase One CDPD
Springboard module, based on current SWD (or its affiliates) CDPD
technology, supporting Network functionality and built to the P1-CDPD
Module Specifications and includes, without limitation, all Software
and documentation related thereto, all Upgrades that are available
during the currency of this
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Agreement and the version of GOA's web software provided to SWD prior
to manufacture of the module(s);
(j) "P2-CDMA 1X MODULE(s)" means the SWD/GOA co-branded CDMA 1xRTT
Springboard module, supporting voice and data, supporting Network
functionality and built to the P2-CDMA Ix Module Specifications and
includes, without limitation, all Software and documentation related
thereto, all Upgrades that are available during the currency of this
Agreement and the version of GOA's web software provided to SWD prior
to manufacture of the module(s);
(k) "P1-CDPD MODULE SPECIFICATIONS" means the design and performance
requirements for the P1-CDPD Module, a copy of which shall be given to
GOA by SWD once finalized;
(l) "P2-CDMA IX MODULE SPECIFICATIONS" means the design and performance
requirements for the P2-CDMA Ix Module, a copy of which shall be given
to GOA by SWD once finalized;
(m) "PC CARD(s)" means any SWD branded Type H PCMCIA modem card, or
co-branded under prior agreement, which is commercially available at
the time GOA places a-Purchase Order under section 3.5 and includes,
without limitation, all Software and documentation related thereto and
any and all Upgrades that are available during the currency of this
Agreement;
(n) "PRODUCTS" means the Springboard Products and the PC Cards;
(o) "PURCHASE ORDERS" means purchase orders issued, from time to time, by
GOA to SWD pursuant to which GOA shall purchase Products in accordance
with the terms of this Agreement, as such purchase orders may be
modified in accordance with the terms of this Agreement;
(p) "REJECTION" means GOA's written notification to SWD that any Product:
(i) has not complied with, or performed in accordance with, its
Specifications; and/or (ii) has not complied with its part number or
revision as set out in the applicable Purchase Order;
(q) "SHIPPING POINT" means the designated depot in the continental US
selected by SWD) as its shipping point for Products;
(r) "SOFTWARE" has the meaning set out in section 13.2;
(s) "SPECIFICATIONS" means the design and performance requirements for
each Product, as such may be amended from time to time in accordance
with this Agreement;
(t) "SPRINGBOARD PRODUCTS" means, collectively, the P1-CDPD Module and the
P2-CDMA 1x Module; and
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(u) "UPGRADES" shall mean any and all improvements, corrections,
modifications, alterations, revisions, extensions and/or enhancements
to a Product, which do not change in any significant way the form, fit
and functionality defined in the applicable Product Specifications,
made or acquired by SWD during the currency of this Agreement.
1.2 HEADINGS. The section and paragraph headings contained herein are included
solely for convenience, are not intended to be full or accurate descriptions of
the context hereof, and shall not be considered part of this Agreement.
1.3 EXTENDED MEANINGS. Words importing the singular include the plural and vice
versa and words importing gender include all genders, unless the context
otherwise requires.
1.4 CURRENCY. Unless otherwise indicated, all dollar amounts contained in this
Agreement are stated and shall be paid in lawful currency of the United States
of America.
1.5 AMENDMENTS. This Agreement may not be amended or modified in any respect
except by written instrument signed by duly authorized officers of SWD and GOA.
1.6 WAIVER. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provisions (whether or not
similar) nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
1.7 SEVERABILITY. In the event that any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement and such invalid or
unenforceable provision shall be construed so as to best accomplish the
objectives of such provision within the limits of applicable law.
1.8 SCHEDULES. The following are the schedules attached to this Agreement, each
of which forms an integral part of this Agreement:
Schedule No. Scheduled Information
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1 Delivery Schedules
1.9 METRICOM PURCHASE AGREEMENT. If GOA is approved by Metricom, Inc. as a
"designee" under the Purchase Agreement (the "Metricom Agreement") dated
November 9, 1999 between SWD and Metricom., Inc., then to the extent that there
is any conflict or inconsistency between the terms and provisions of this
Agreement and the terms and provisions of the Metricom Agreement, the terms and
provisions of this Agreement will prevail and govern.
2. DEVELOPMENT
2.1 DEVELOPMENT OF THE SPRINGBOARD PRODUCTS. Upon reasonable request of GOA,
during the development of the Springboard Products, SWD shall advise GOA of the
status of development and the status of Network and carrier, to the extent
applicable, acceptance testing of the Springboard Products.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
2.2 NOTIFICATION BY GOA OF CARRIER. In order to enable SWD to arrange for
acceptance testing of the P2-CDMA 1x Module, GOA shall advise SWD in writing,
not less than 180 days prior to the first shipping month for P2-CDMA Ix Modules
as described in Schedule 1, of the name of the carrier(s) on whose Network it
will sell P2-CDMA Ix Modules and such other details as SWD may require in
connection therewith.
2.3 CO-BRANDING. The Springboard Products provided under this Agreement (other
than those described in section 3.5) shall carry the GoAmerica trademarked name
and may carry such other GOA logo as is expressly agreed to by SWD, in its sole
discretion. Such use of the GoAmerica trademark is hereby authorized by GOA and
GOA agrees to indemnify and hold SWD harmless for any losses, damages or other
liabilities resulting from the use of the GoAmerica trademark. All use will
inure to the benefit of GOA and will not vest in SWD any rights in or to such
trademark.
2.4 MONTHLY MEETING. In order to best coordinate the sales of the Products, the
parties have designated certain product managers to act as liaison between the
parties. The designated product managers shall hold meetings, on a monthly
basis, by teleconference call or at a mutually agreed location, to review the
progress being made in the sales of the Products.
3. PURCHASES
3.1 SCOPE OF AGREEMENT. The terms and conditions set forth in this Agreement
shall govern the supply by SWD of Products to GOA during the currency of this
Agreement. All Products shall conform to and be in compliance with the
requirements of this Agreement.
3.2 PI-CDIPD MODULE PURCHASES. GOA hereby agrees to purchase and has issued to
SWD, and SWD has accepted, a Purchase Order for [**] P1-CDPD Modules at a per
unit price of US$[**], on a firm and non-cancelable basis. The [**] PI-CDPD
Modules will be delivered to GOA in accordance with Schedule 1, subject only to
rescheduling as described in Schedule 1.
3.3 P2-CDMA 1X MODULE PURCHASES. GOA hereby agrees to purchase, and will issue
a Purchase Order for [**] P2-CDMA Ix Modules at a per unit price of US$[**], on
a firm and non-cancelable basis. The [**] P2-CDMA Ix Modules will be delivered
to GOA in accordance with Schedule 1, subject only to rescheduling as described
in Schedule I and such other reasonable delay as may be advised by SWD due to
unexpected delay of the network certification of the P2-CDMA Ix Module resulting
from delayed network deployment by a network carrier designated under section
2.2.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
3.4 ADDITIONAL PURCHASES. GOA hereby agrees to purchase, and will issue
Purchase Orders for [**] Springboard Modules and/or PC Cards, on a firm and
non-cancelable basis; provided however that GOA shall not purchase (nor submit a
Purchase Order for) more than [**] PC Cards which are intended for use on the
Ricochet network. The [**] Springboard Modules and/or PC Cards will be delivered
to GOA in accordance with the ordering and forecasting provisions of Article 6
hereto. The price for the Springboard Modules shall be as described in sections
3.2 and 3.3, depending on the particular module ordered. The price for the PC
Cards shall be as advised by SWD at * the time of order. GOA shall order all
such [**] units in accordance with the provisions of Article 6, in such a manner
so that SWD is able to deliver to GOA all [**] units by no later than June 30,
2002. SWD confirms that it received from GOA (and accepted) on September 22,
2000, Purchase Order No. 200526 for [**] AirCard [**] PC Cards, which quantity
of PC Cards reduces GOA's commitment to purchase [**] Springboard Modules and/or
PC Cards to [**] Springboard Modules and/or PC Cards.
3.5 SUCCESSOR PRODUCT PURCHASES. In addition to the purchases of the
Springboard Modules and PC Cards, GOA may from time to time (but is not
obligated to):
a. during the first 12 months following the Effective Date, issue Purchase
Orders for other Springboard data modules which SWD is, as of the date of
the Purchase Order, commercially shipping, under substantially the same
terms and conditions described in this Agreement other than price which
shall be as advised by SWD at the time of order;
b. issue Purchase Orders for additional Products;
in accordance with the ordering and forecasting provisions of Article 6 hereof.
None of the purchases under this section will reduce GOA's obligations under
sections 3.2 and 3.3, inclusive.
3.6 PURCHASE ORDER TERMS NOT TO APPLY. All Purchase Orders shall comply with
the terms of this Agreement. In the event of any inconsistency or conflict
between any pre-printed terms on a Purchase Order, order confirmation, invoice
or any other commercial forms used by the parties relating to the Products, the
terms of this Agreement shall govern.
4. PRICING AND PAYMENT
4.1 TERMS OF PAYMENT. All prices for Springboard Modules and PC Cards shall be
FOB Shipping Point. SWD will invoice GOA for Products purchased upon delivery of
such Products to GOA at the Shipping Point and GOA will pay all such invoices
within [**] after the invoice date. If deliveries of Product are made in
installments, each installment shall be separately invoiced and payment due and
payable therefor shall be made accordingly. Prices are exclusive of all federal,
provincial, state, municipal or other government, excise, use, sales,
occupational or like taxes, tariffs, duties, surcharges, now in force or enacted
in the future. Any taxes related to this Agreement shall be paid by GOA, except
in those circumstances where SWD is required by law to collect such taxes, and
excluding taxes based upon SWD's net income and excluding all import and export
duties to the Shipping Point. If, during the first [**] after GOA's receipt of
Product, all or a portion of such Product is Rejected, SWD will issue credit for
such Product and will re-invoice GOA for such rejected Product once it is
repaired or replaced.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
4.2 [**]GOA. With respect to all Springboard Products purchased by GOA under
the terms of this Agreement, [**]in North America (excluding Affiliates of SWD)
and: (a) will [**] in terms of [**] in North America (excluding Affiliates of
SWD) [**] in the [**] of the [**] on the [**]; and (b) will [**] (as determined
at the date of the applicable [**] to any [**]in North America (excluding
Affiliates of SWD) [**], in the aggregate, the same or lesser quantity of the
[**] on the [**]
4.3 INTEREST. SWD shall be entitled to charge GOA, and GOA shall pay to SWD,
interest at the rate of 1.5% per month on all amounts not paid within [**]
after date of invoice.
5. DELIVERY
5.1 SHIPPING POINT. All deliveries of Product will be made to the Shipping
Point at SWD's sole cost and expense. Title to the Product and entire risk of
loss and damage shall pass to GOA upon its receipt of Products at the Shipping
Point.
5.2 ACCEPTANCE OR REJECTION OF PRODUCTS. GOA will inspect and either accept or
Reject Products within [**] following its receipt at the Shipping Point. All
Products which are not Rejected within such [**] period shall be deemed accepted
by GOA. In the case of any Rejection, GOA shall advise SWD with specificity the
reasons for such Rejection and any Rejected Products shall be returned promptly
to SWD's facilities at SWD's expense. Such Rejected Products shall be replaced
by SWD within [**] of receipt by SWD of such Rejected Projects. GOA's right to
inspect and test Products shall not relieve SWD from its testing inspection,
warranty and quality control obligations.
5.3 DELIVERY CHANGE REQUEST. Changes to Product delivery dates which are not
contemplated in section 6.4 may only be made by GOA's authorized purchasing
representatives and must be agreed to by SWD. If accepted, written confirmation
of such changes will be sent by SWD to GOA within [**] of receiving a change
request.
5.4 LATE DELIVERY. Subject to section 6.4, SWD shall deliver the quantity of
Product identified in each Purchase Order by the delivery date specified in the
Purchase Order, or as agreed by the parties. SWD shall use all reasonable
commercial efforts to provide GOA at least [**] notice if any delivery will not
arrive by the specified delivery date. Whether or not GOA has been notified of
SWD's inability to meet a specified delivery date, should SWD fail to deliver
Products within [**] of the specified delivery date, including any rescheduled
date accepted by GOA as provided above, except to the extent such failure is due
to GOA's breach of this Agreement or a Force Majeure event, GOA may, in addition
to any other remedies available to it under this Agreement or by law, rescind
the portion of the Purchase Order relating to such delayed Products, upon
written notice to SWD.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
5.5 SHIPPING INSTRUCTIONS. SWD shall properly pack the Products for protection
against damage or deterioration that may occur during normal and proper
shipment, handling or storage. In the event that GOA specifies that SWD use a
method of shipping other than its regular method, SWD will comply with the
request and GOA will reimburse SWD for any costs incurred above the costs for
the normal method of shipping,
6. FORECASTS AND ORDERING
6.1 ROLLING FORECASTS. Except to the extent provided in Schedule 1, GOA shall
provide to SWD, on a monthly basis, a rolling, good-faith, [**] written sales
forecast of expected purchases of all types of Products, in order to assist SWD
in production planning. Each forecast shall be updated and delivered to SWD, in
writing, on the first day of each month (a "Forecast Date"). In the event GOA
fails to furnish a forecast within[**] after any Forecast Date, the then current
forecast shall apply until changed at a subsequent Forecast Date. The first [**]
of each forecast shall be binding on GOA, subject only to permitted rescheduling
of delivery dates and/or increases or decreases in scheduled order quantity
under section 6.4, and GOA shall submit (and failing which it shall be deemed to
have submitted) a Purchase Order for all Products covered by such [**] period.
6.2 ORDERING. SWD shall confirm receipt of each Purchase Order in writing
within [**]of receipt thereof. Such confirmation shall not be deemed acceptance
of the Purchase Order (acceptance is governed by section 6.3 hereof). Each
Purchase Order shall reference this Agreement and state the part number, Product
description, quantity of Products ordered, GOA's desired delivery date, method
of shipment, unit price for each Product ordered and total purchase price for
the Purchase Order.
6.3 ACCEPTANCE OF PURCHASE ORDER. When a Purchase Order issued by GOA is in
accordance with this Agreement placed at the appropriate lead time of [**] and
for a quantity of Products ordered for delivery during that [**] period which is
the same as the number of units of Products forecasted for that [**] period, SWD
shall be obligated to accept (and shall be deemed to have accepted) each such
Purchase Order. For Purchase Orders placed at a lead time of between [**] and
for a quantity of Products ordered for delivery: (i) during such [**] period
which is plus or minus [**]% of the number of units forecasted for delivery
during that period; and (ii) during the first [**] thereof which is the same as
the number of units of Products forecasted for delivery during that period, SWD
shall be obligated to accept (and shall be deemed to have accepted) each such
Purchase Order. For Purchase Orders placed at a time other than as previously
described and/or for quantities of Products which are outside the previously
described forecasted quantities, SWD may either accept or reject such Purchase
Orders within five Business Days following receipt of such a Purchase Order. If,
within five Business Days after SWD fails to respond to a such a Purchase Order
and GOA notifies SWD of such failure, SWD shall be deemed to have accepted the
Purchase Order and shall deliver Products in the time and to the extent that
would have been required had SWD responded to this Purchase Order in a timely
fashion. A Purchase Order may not vary the terms of this Agreement unless an
authorized officer of SWD expressly consents in writing.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
6.4 CHANGES ORDERS AND RESCHEDULING. In the event GOA intends to increase or
decrease the quantity of Products scheduled for delivery and/or reschedule
delivery dates therefore under any Purchase Order, GOA shall deliver a written
change order to SWD identifying the type and quantity of Products to be
increased or decreased and/or the rescheduled delivery date. GOA shall be
entitled to increase or decrease the quantity of Products scheduled for delivery
and/or reschedule delivery dates based upon the number of days advance notice
given by GOA to SWD as indicated in Schedule I with respect to the Purchase
Orders placed under sections 3.2, 3.3 and 3.4 and otherwise as follows:
UNITS SCHEDULED FOR DELIVERY WITHIN CHANGE ALLOWED*
[**] days [**]
[**] days [**]%
[**] days [**]%
*excludes rescheduled delivery quantities
7. CHANGES TO PRODUCT
7.1 SUBSTITUTIONS. SWD may, from time to time and without notice to GOA, make
substitutions and modifications to the Products, provided such substitutions and
modifications will not materially affect the form, fit, functions, features or
performance of the Products.
7.2 UPGRADES TO PRODUCT. To the extent practicable, SWD will notify GOA in
advance of any Upgrades. SWD will provide to GOA, at no charge, all Upgrades as
soon as they become available. GOA may require SWD to provide Upgrades to any of
its existing inventory at GOA's expense. Notwithstanding the foregoing, if SWD
adds new features, characteristics or functions to the Product which are not
Upgrades, SWD shall offer the changes to GOA on such terms as the parties may
agree.
7.3 GOA INITIATED NEW FEATURES. If GOA determines that a new feature or
modification to a Product would be desirable, SVID will use reasonable
commercial efforts to incorporate the change. If SWD indicates that it may
incorporate the change, SWD and GOA will negotiate in good faith to determine
the pricing adjustment and completion and delivery schedule relating to the new
feature and modification. SVM will incorporate any changes agreed upon between
SWD and GOA as soon as is reasonably practicable.
7.4 CHANGES TO PRODUCT. SWD will notify GOA of any modifications or additions
it intends to make to the Products that will materially affect the form,
functions, features or performance of the Products, not less then [**] in
advance of such implementation. If GOA accepts such changes then it shall, after
the implementation by SWD of such changes, purchase Products so revised. If GOA
declines to accept such changes, SWD shall, to the extent reasonably
commercially practicable, provide GOA with a last chance buy of the old Product.
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8. CONFIDENTIAL INFORMATION
8.1 PERMITTED USE. Confidential Information of each party will be used by the
other party solely for the purposes permitted by this Agreement. All
Confidential Information will be received and held in confidence by the
receiving party, subject to the provisions of this Agreement. Each party
acknowledges that it will not obtain any rights of any sort in or to the
Confidential Information of the other party as a result of such disclosure and
that any such rights must be the subject of separate written agreement(s).
Either party may disclose the general nature, but not the specified financial
terms, of this Agreement only with the prior written consent of the other party.
8.2 NON-DISCLOSURE. Each party shall use efforts fully commensurate with those
employed by the party for the protection of its own Confidential Information of
a similar nature, but in any event no less than a reasonable degree of care, to
protect the Confidential Information of the other party. The parties will not
disclose Confidential Information to anyone except employees and those agents,
professional advisors, contractors and Affiliates with a need to know in
connection with the purposes under section 8.1 and who are under confidentiality
obligations with respect to such Confidential Information.
8.3 REQUIRED DISCLOSURE. Nothing herein shall prevent a receiving party from
disclosing all or part of the Confidential Information as necessary pursuant to
the lawful requirement of a governmental agency or when disclosure is required
by operation of law; provided that prior to any such disclosure, the receiving
party shall use reasonable efforts to: (a) promptly notify the disclosing party
in writing of such requirement to disclose; and (b) cooperate fully with the
disclosing party in protecting against any such disclosure or obtaining a
protective order.
9. OTHER PROVISIONS
9.1 APPOINTMENT AS RESELLER. SWD hereby appoints GOA as a non-exclusive
reseller of the Springboard Products for the purpose of resale to the general
public in the United States. The aforementioned territory may be expanded upon
mutual agreement of the parties.
9.2 NON-EXCLUSIVE ARRANGEMENT. Neither party shall be precluded from
discussing, negotiating and/or entering into arrangements with third parties
regarding developing, manufacturing and/or selling products which are similar to
or competitive with the Products provided under this Agreement.
9.3 SCOPE AND LIMITATION OF AUTHORITY. Each party shall act solely as an
independent organization and shall have no power or authority to act for, bind,
or commit the other party.
9.4 QUALITY ASSURANCE. During the currency of this Agreement, at any time upon
reasonable notice and during normal business hours, SWD agrees to permit GOA to
review and examine any of SWD's design, development and production processes
relating to the Products provided under this Agreement.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
9.5 [**] PRODUCTS. The parties to this Agreement wish to record their intention
to work together and cooperate in good faith [**] with the GOA product line.
9.6 TECHNICAL SUPPORT. Technical Support for the Products purchased by GOA
under this Agreement will be managed via a three-tier Technical Support
infrastructure and process as follows:
LEVEL I TECHNICAL SUPPORT
GOA will provide Level I Technical Support to their direct and indirect
customers for all operating systems and environments supported by SWD's
products. Level I Support is defined as calls* originating from GOA's
customers, resellers or distributors regarding the Products, GOA Service,
Wireless Service Providers, and GOA Products including, but not limited to,
pre and post-sale inquiries concerning the basic operation of the hardware
and software, functionality, interoperability and capabilities of those
products and services. For calls regarding the Products, GOA will make
every attempt to answer customer questions and resolve issues using
available tools, documentation, test equipment and other materials used to
support the Products. If the customer question I issue regarding the
products cannot be resolved by GOA Level I support personnel to the
customers' satisfaction, the issue will be forwarded to GOA Level II
Technical Support for further investigation and resolution.
*Calls include phone calls, e-mail, web-based inquiries, faxes and letters.
LEVEL II TECHNICAL SUPPORT
Level II Technical Support will be provided by GOA support staff directly
to GOA Level I Support personnel to assist in the resolution of open
customer issues that have not been resolved to the satisfaction of GOA
customers during a Level I Support call. GOA Level II issues that are
unresolved may be escalated to SWD Technical Support through designated GOA
Level II support personnel. SWD will be available to handle GOA escalation
requests during normal hours of operation (Weekdays 6:00 AM to 5.00 PM
PST). SWD Technical Support will work directly with GOA Level II support
staff to resolve issues and answer questions; this may require GOA support
staff to gather additional information and provide system information or
test results back to SWD support staff to aid in the definition and
resolution of the problem. It will be GOA support staff's responsibility to
communicate directly with the end-user customer.
LEVEL III TECHNICAL SUPPORT (ESCALATION)
Level III Technical Support will be provided by SWD support and system
engineering staff to resolve issues that cannot be satisfactorily resolved
by Level I and Level II Support personnel.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
TECHNICAL SUPPORT TRAINING
Technical Support training and documentation for the Products will be
initially provided to GOA Level I and Level II Support staff by SWD. GOA
support staff will receive training on the general use, functionality,
operation and compatibility of the Products. It will be the duty of the
GOA to provide Level I staff with ongoing training. SWD will provide
ongoing Level II training. In addition, all support related documentation,
training materials, notes, FAQ`s, and web based support materials will be
made available to GOA for their use in supporting these Products. The GOA
will join TSANET to assist in resolving multivendor issues.
9.7 FREEDOM OF ACTION. This Agreement shall not be construed to prohibit or
restrict either party from, without breach of the party's obligations hereunder,
developing, making, having made, using, leasing, licensing, buying, selling or
otherwise disposing of or dealing with any products or services whatsoever, now
or in the future.
10. PRODUCT WARRANTY
10.1 WARRANTY. For a period of one year from the date of delivery of Products
by GOA to an end user customer, but in any event for no longer than [**] from
the date of delivery of Products to GOA, SWD warrants that:
(a) title to all Product shall be free and clear of all liens,
encumbrances, security interests or other claims;
(b) each Product shall be of good quality and be free from defects in
materials, workmanship and manufacture under normal use and service;
(c) all materials, parts, components and other items incorporated in
each Product will be new; and
(d) each Product shall be compliant with, and perform in accordance
with, its Specifications.
All Products sold to GOA under this Agreement shall be FCC certified as
described in each Product's Specifications.
10.2 WARRANTY RETURNS. GOA shall return defective Product, transportation
charges prepaid by GOA, to SWD at its designated depot in the continental United
States with SWD's Return Material Authorization Number (RMA) and completed
problem sheet. SWD will, at its option, repair, replace or otherwise correct any
defective Product at SWD's sole expense, provided however, that in no event
shall SWD take longer than [**] from its receipt of such defective Product to
perform such repair or replacement. SWD will pay all shipping and other costs
incidental to the return of repaired or replacement Product to GOA or GOA's
customer. To the extent SWD determines the Product is not defective, GOA or
GOA's customer will pay to return
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13
the Product to GOA or GOA's customer as applicable. Any Product which is
replaced or repaired by SWD shall be warranted as provided in section 10.1 for
the remainder of the original warranty period.
10.3 NO WARRANTY. SWD's express warranty shall not apply to any Product damaged
as a result of any accident, negligence, use in any application for which the
Product is not designed or intended under the terms of this Agreement,
modifications after the fact including combination with products not
specifically authorized by SWD, or by any other causes unrelated to defective
workmanship, materials or manufacture.
10.4 OUT OF WARRANTY REPAIRS. SWD agrees to make available to GOA out of
warranty repairs in accordance with its programs in effect at the time of
purchase of Products. Such services for non-warranty repairs will be provided at
SWD's then current time and materials rates and fees.
11. DISCLAIMER OF WARRANTY; LIMITATION
11.1 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 10.1,
NEITHER SWD NOR ANY OF ITS AFFILIATES MAKES ANY OTHER WARRANTIES, WHETHER
EXPRESSED OR IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT
TO ANY PRODUCT.
11.2 LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS RELATING TO SECTION 13.2,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS AND BUSINESS INTERRUPTION), INCIDENTAL,
INDIRECT, SPECIAL, ECONOMIC, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO
THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, WHETHER FOR BREACH OR
REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF
THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR
AN INTELLECTUAL PROPERTY INDEMNITY OBLIGATION WHICH IS COVERED BY SECTION 12.1,
OR A BREACH OF WARRANTY CLAIM WHICH IS COVERED BY SECTION 10.1, THE LIABILITY OF
SWD AND ITS AFFILIATES UNDER OR FOR BREACH OF THIS AGREEMENT AND/OR THE SALE OF
PRODUCT IS LIMITED TO THE PURCHASE PRICE OF SUCH PRODUCT.
12. INTELLECTUAL PROPERTY INDEMNITY
12.1 INDEMNITY. Except as specifically provided in section 12.2 below, SWD
shall, at all times during the currency of this Agreement and thereafter,
defend, indemnify and hold harmless GOA, its shareholders, officers, employees,
agents, affiliates and customers, from and against any damages, liabilities,
costs and expenses (including reasonable attorneys' fees) arising out of any
claim, suit or proceeding brought by a third party asserting that the Products,
or any part thereof, infringes or misappropriates any third party US patent,
trade secret, copyright, trademark or other proprietary right (collectively,
"Intellectual Property Rights"). In the event that such a claim is made, or in
SWD's opinion is likely to be made, or the use of the Products is enjoined or,
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14
in SWD's opinion is likely to become the subject of an injunction preventing its
re-sale or use as contemplated herein, SWD will, at SWD's expense and sole
election either: (a) procure for GOA and its customers the right to use such
Products; (b) modify such Product so that it becomes non-infringing while giving
equivalent functionality and performance such that its use is not enjoined; or
(c) if neither of the foregoing options is reasonably available, refund to GOA
all amounts paid for the infringing Products, depreciated on a straight-line
basis over a three (3) year period. THE FOREGOING STATES THE SOLE AND EXCLUSIVE
LIABILITY OF SWD AND ITS AFFILIATES FOR INFRINGEMENT AND IS IN LIEU OF ANY AND
ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, IN REGARD THERETO.
12.2 EXCLUSIONS. SWD shall have no liability or obligation to GOA or its
customers with respect to any patent, trade secret, copyright, trademark or
other proprietary right infringement claim to the extent based upon: (a) use of
the Products in an application or environment or on a platform or with devices
for which the Product was not designed or contemplated to the extent that such
use caused the infringement; (b) modifications, alterations, combinations or
enhancements of the Product not created by SWD or with SWD's consent, solely to
the extent that such modification, alteration, combination or enhancement caused
the infringement; (c) any patent, copyright or trade secret which GOA or any of
its Affiliates owns or has elusive interest; (d) any GOA defined feature that
SWD incorporates into a Product at GOA's request or (e) failure of GOA or its
customer to install any corrections or enhancements made available by SWD at no
charge that maintain equivalent or better functionality and performance, solely
to the extent that such correction or enhancement would have avoided the
infringement claim, SWD's obligations hereunder do not apply to any alleged
infringement occurring after GOA has received written notice of such alleged
infringement.
13. LICENSE GRANT
13.1 LICENSE GRANT.
(a) The Products and their software and related documentation may bear
certain tradenames, trademarks, trade devices, logos, codes or other
symbols of SWD (the "INDICIA"). GOA will be allowed to use, and is
encouraged to use, the Indicia in GOA's publicity related to the
Products, provided that: (i) all uses of Indicia by GOA shall be
subject to pro-publication or pre-use review and approval by SWD,
and (ii) if, in SWD's judgment and prior to any use thereof by GOA,
any use of Indicia by GOA is deemed detrimental to the Indicia or
SWD's reputation, or is deemed otherwise undesirable, SWD may
withdraw such permission without liability as a result thereof. Such
use will inure to the benefit of SWD and will not vest in GOA any
rights in or to the Indicia.
(b) GOA will not conduct business under any of the Indicia or
derivatives or variations thereof, and GOA will not directly or
indirectly hold itself out as having any relations to SWD or its
Affiliates other than as set forth herein. Indicia may be used by
GOA only to advertise and promote the Products themselves, and may
not be used to identify GOA. Indicia will not be used in GOA's
advertising, promotion, or catalogues in a manner that implies SWD's
endorsement of products, software (including related documentation),
or services
-14-
15
not purchased from SWD. GOA will not remove or alter any Indicia
applied to the Products or software (including related
documentation) without the prior written approval of SWD.
13.2 SOFTWARE LICENSE. Certain items of Products sold to GOA hereunder may
contain or be accompanied by Software in executable code form (the "Software")
and, except as otherwise expressly provided herein, all references to "Products"
in this Agreement shall be deemed to include the accompanying Software, provided
that nothing herein shall be construed as the sale of any Software to GOA.
Pursuant to a separate license agreement provided by SWD to GOA and attached as
an Appendix hereto, SWD will grant to GOA a non-exclusive license to use, in
object form only, and sublicense to its end-user customers, the Software solely
in the Products for the duration of the useful life of such Products and subject
to the terms and conditions of this Agreement. GOA shall not, without the prior
written consent of SWD: (a) alter, modify, translate or adapt any Software or
create any derivative works based thereon; (b) copy any Software; (c) assign,
sublicense or otherwise transfer the Software in whole or in pan, except as
permitted herein; (d) use the Software except as specifically contemplated in
this Agreement; or (e) disclose the Software to any third party. The entire
right, title and interest in the Software shall remain with SWD and GOA shall
remove any copyright notices or other legends from the Software or any
accompanying documentation.
14. OWNERSHIP OF INTELLECTUAL PROPERTY
14.1 OWNERSHIP BY SWD. Except for licenses otherwise expressly granted under
this Agreement, the sale of Products hereunder does not convey to GOA any
Intellectual Property Rights in the Products and GOA acknowledges SWD's
exclusive rights thereto. Neither the sale of Products or any provision of this
Agreement will be construed to grant to GOA, either expressly, by implication or
by way of estoppel, any license under any other Intellectual Property Rights of
SVM covering or relating to any other product or invention of SWD, or any
combination of the Product with any other product of SWD.
15. FORCE MAJEURE
15.1 FORCE MAJEURE. Neither party shall be liable in any respect for its
failure to perform any of its obligations hereunder (other than failure to make
any payments when due hereunder and other than failure to perform all
obligations under Article 2 hereof) during any period in which performance is
prevented, interrupted or delayed by fire, flood, war, embargo, riot or the
intervention of any government authority, strikes, walkouts or other labor
disturbances, an industry-wide lack of components or materials or a shortage or
lack of components or materials from a single source supplier to SWD that has
claimed an event of force majeure, or delay in transportation beyond the
reasonable control of the party experiencing same (each a "Force Majeure"),
except that lack of funds or credit shall not constitute a Force Majeure. The
party so affected shall, upon giving prompt written notice to the other party of
the delay and the cause- therefor, be excused from performance to the extent of
the Force Majeure; provided however, that the party so affected shall use
reasonable efforts to avoid or remove such causes of non-performance and shall
continue performance hereunder with the utmost dispatch whenever such causes are
removed.
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16. TERMINATION
16.1 TERMINATION. Either party may terminate this Agreement and/or any order
issued hereunder at any time by providing written notice to the other party in
the event that the other party:
(a) fails to comply in any substantial way with any material provision
of this Agreement or any order issued hereunder and in the case of a
breach of which is capable of remedy, fails to remedy same within
thirty (30) days of notification of said breach, or
(b) becomes insolvent or makes an assignment for the benefit of
creditors, or a receiver or similar officer is appointed to take
charge of all or a part of a party's assets or institutes any
proceedings for liquidation or the winding up of its business, and
such condition is not cured within thirty (30) days.
There shall be no termination for cause because of a Force Majeure. Termination
under this section 16 shall not limit a non-breaching party's additional rights
and remedies available to it at law or equity
17. GENERAL
17.1 NOTICES. Any notice given under this Agreement must be in writing and will
be effective when delivered personally or deposited in the mail, postage prepaid
and addressed to the parties at their respective addresses set forth below, or
at any new address subsequently designated in writing by either party to the
other and will be deemed received on the third business day after mailing:
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If to Sierra Wireless Data, Inc. With a copy to:
Park 80, Plaza West Sierra Wireless, Inc.
Suite 200 13575 Commerce Parkway, Suite 150
Saddle Brook, NJ 07663 USA Richmond, BC, Canada V6V 2LI
Attention: President Attention: President
If to GOA
401 Hackensack Ave.
Hackensack, NJ 07601
Attention: Management,
Procurement Department
17.2 PUBLICITY.
(a) Upon the later of (i) the execution of this Agreement; or (ii) the
receipt by SWD of the Purchase Order for P1-CDPD Modules, the
parties will jointly announce their arrangements under this
Agreement.
(b) Neither party shall originate any publicity, news release or other
public announcement relating to this Agreement, its terms or the
existence of an arrangement between the parties without the prior
written approval of the other party, except as otherwise required by
law or as permitted pursuant to this Agreement
17.3 ORGANIZATION, AUTHORIZATION, ETC. Each of SWD and GOA represents and
warrants to the other that: (a) it is a corporation duly organized, validly
existing and in good standing under the laws of its incorporating jurisdiction
and has all requisite corporate power and authority to enter into this
Agreement; (b) it is duly authorized by all requisite action to execute, deliver
and perform this Agreement and to consummate the transactions contemplated
hereby, and that the same do not and will not conflict or cause a default with
respect to such party's obligations under any other agreement; (c) it has duly
executed and delivered this Agreement; and (d) (i) it is authorized to disclose
any and all Confidential Information made available by it to the other party
pursuant to this Agreement; and (ii) it shall not disclose to the other party
any Information that is confidential or proprietary to itself or to a third
party unless such information is identified as Confidential Information.
17.4 RELATIONSHIP OF THE PARTIES. Neither party is, and nothing herein or
performed hereunder shall be represented or construed as constituting either
party as, an agent or representative of the other. Neither party has authority
to make any representation, guarantee, warranty commitment or agreement on
behalf of the other, to incur any liability or indebtedness on behalf of the
other or otherwise to bind the other.
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17.5 ASSIGNMENT. Neither this Agreement nor any rights or obligations hereunder
shall be assigned by SWD or GOA without the prior written consent of the other
party hereto, except that either party may assign this Agreement in whole or in
part to a successor company in the event of a reorganization or acquisition of
all or substantially all of the assets or shares of the party.
17.6 ENUREMENT. This Agreement shall enure to the benefit of and be binding
upon each of SWD and GOA and their respective successors (including any
successor by reason of amalgamation, merger or other corporate reorganization of
either party) and permitted assigns.
17.7 EXPORT. Both parties agree to comply with all export laws and restrictions
and regulations of Canada and the United States Department of Commerce or other
sovereign agency or authority, and not to export, or allow the export or
re-export of any technical data or any direct product thereof in violation of
any such restrictions, laws or regulations, or unless and until all required
licenses and authorizations are obtained. During the currency of this Agreement,
each party agrees to reasonably cooperate with the other party and to otherwise
provide reasonable assistance to the other party in exporting the Products as
may be requested by the other party from time to time.
17.8 COMPLIANCE WITH LAWS. Each party shall comply with all laws, legislation,
rules, regulations, and governmental requirements with respect to the Products,
and the performance by the party of its obligations hereunder, of any and all
applicable jurisdictions, including without limitation obtaining and maintaining
any and all consents, licenses, approvals, registrations, certifications and
authorizations required for the installation and use of the Products hereunder
and necessary for the performance under this Agreement in such jurisdictions. In
the event that this Agreement is required to be registered with any governmental
authority, the parties shall mutually cooperate to cause such registration to be
made and shall share any expense or tax payable in respect thereof.
17.9 INFORMAL DISPUTE RESOLUTION. Prior to the initiation of litigation, the
parties shall first attempt to resolve their dispute on an informal basis in
accordance with this section. The party believing itself aggrieved (the
"Invoking Party") shall call for management involvement in the dispute
negotiation by written notice to the other party. The parties shall use their
best efforts to arrange personal meetings and/or telephone conferences as needed
between the negotiators for the parties, who shall be senior management
executives for each party. If a resolution is not achieved within ninety (90)
days, then either party shall have the right to commence litigation proceedings
in a trial to the court. Each party agrees to continue performing its
obligations under this Agreement while any dispute is being resolved unless and
until such obligations are terminated by the termination or expiration of this
Agreement.
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17.10 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Delaware, without regard
for any choice or conflict of laws rule or provision that would result in the
application of the substantive law of any other jurisdiction. The United Nations
Convention on Contracts for the International Sale of Goods shall not apply to
this Agreement.
SIERRA WIRELESS DATA, INC. GOAMERICA INC.
/s/ Jason Cohenour /s/ Joseph Korb
- ----------------------------------- ------------------------------------
Signature Signature
Jason Cohenour Joseph Korb
- ----------------------------------- ------------------------------------
Name: Name:
President
- ----------------------------------- ------------------------------------
Title: Title:
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SCHEDULE 1
DELIVERY SCHEDULES
P1-CDPD MODULE PURCHASES
- --------------------------------------------------------------------------------
Shipping Month Number of PC Cards
- --------------------------------------------------------------------------------
1 [**]
- --------------------------------------------------------------------------------
2 [**]
- --------------------------------------------------------------------------------
3 [**]
- --------------------------------------------------------------------------------
4 [**]
- --------------------------------------------------------------------------------
5 [**]
- --------------------------------------------------------------------------------
6 [**]
- --------------------------------------------------------------------------------
Total: [**]
- --------------------------------------------------------------------------------
* Month 1 is [**]. The particular delivery date within each month shall be
as advised by SWD to GOA.
Rescheduling - with reference to section 6.4, units scheduled for delivery in
months 1, 2 and 3 may not be rescheduled. Units scheduled for delivery in months
4, 5 and 6 may be rescheduled plus or minus [**]% of the original amount (i.e.
excludes any deferred amount) by a maximum of [**] from its originally scheduled
date, on at least [**]prior notice.
P2-CDMA 1X MODULE PURCHASES
- --------------------------------------------------------------------------------
Shipping Month Number of PC Cards
- --------------------------------------------------------------------------------
1* [**]
- --------------------------------------------------------------------------------
2 [**]
- --------------------------------------------------------------------------------
3 [**]
- --------------------------------------------------------------------------------
4 [**]
- --------------------------------------------------------------------------------
5 [**]
- --------------------------------------------------------------------------------
6 [**]
- --------------------------------------------------------------------------------
7 [**]
- --------------------------------------------------------------------------------
Total: [**]
- --------------------------------------------------------------------------------
* Month 1 is [**]. If GOA notifies SWD under section 2.2 with a shorter lead
time than that contemplated therein, this delivery schedule shall delay,
day-for-day. The particular delivery date within each such month shall be
as advised by SWD to GOA.
Rescheduling - same as above for PI-CDPD Module, with month 7 being treated the
same as months 4, 5 and 6 therein.