Exhibit 10.2
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote omissions.
Research In Motion Limited
295 Phillip Street, Waterloo, Ontario Canada, N2L 3W8
tel: (519) 888-7465 Fax: (519) 888-1975 web: www.rim.net
August 31, 2000
GoAmerica Inc.
401 Hackensack Avenue
Hackensack, NJ 07601
U.S.A.
Dear Sirs:
Re: Letter of Agreement ("LOA") between Research In Motion Limited
("RIM") and GoAmerica Inc. ("BSP") (individually, a "Party" and
collectively, the "Parties")
A. Whereas the Parties have entered into a BSP Agreement dated
August 1, 2000 for the purposes of allowing BSP to acquire
Products to be used with the BlackBerry Internet Edition Service
("BBIE");
B. Whereas the Parties wish to extend the terms of the BSP
Agreement to allow BSP to acquire Products to be used with the
BlackBerry Exchange Edition ("BBEE");
C. Whereas the Parties wish to amend the terms of the BSP Agreement
as it relates to both tie BBIE services and BBEE services in
relation to Tier I and Tier II support;
D. Now therefore, the terms of this LOA confirm the agreement
between the Parties allowing BSP to acquire the BBEE Services in
accordance with the terms of the BSP Agreement as incorporated
herein and the additional terms and conditions set out herein;
Now Therefore, the Parties agree as follows:
1) For the purposes of allowing RIM to offer BBEE Services to BSP:
a) all of the terms of the BSP Agreement are incorporated by
reference herein to the extent that they do not conflict with
the terms of this LOA except as follows:
i) Section 7.05 of the BSP Agreement is hereby deleted
and the following substituted:
7.05 Effect of Termination. Upon expiration or
termination of this Agreement the BSP rights granted
pursuant to this Agreement shall cease except the BSP
rights granted pursuant to Section 2.01 shall
continue until such time as the BSP has depleted the
BSP inventory or eighteen (18) months from the last
date Product is delivered to the BSP pursuant to an
order accepted by RIM and not yet fulfilled,
whichever occurs first. In addition, the BSP shall
return to RIM any and all marketing materials
supplied to BSP by RIM in support of this Agreement
and, if applicable, shall certify in writing that all
archival or backup copies of the applicable
BlackBerry Software have been deleted from any
computer system and destroyed. Service for any
Product delivered on or before the expiration of the
Term, for which Service has been activated, shall be
continued through the end of the 18th month from the
date of the last delivery of Products under this
Agreement, subject to the Service Fees pursuant to
this Agreement and subject to the provisions in
Schedule A concerning increases in service fees, and
providing BSP is not in default of any Fees due to
RIM (the "Post-Termination Service Term"). The BSP
shall provide notice to RIM at least three (3) months
prior to the expiration of the Post-Termination
Service Term as to whether the BSP desires to
continue to purchase Service after the
Post-Termination Service Term. Should the BSP wish to
continue such Service, the Parties will make
commercially reasonable efforts to negotiate an
appropriate Service Agreement prior to the expiration
of the Post-Termination Service Term. In the event
that such negotiations are unsuccessful, and/or the
BSP does not wish to continue Service, SSP agrees
that it shall, assign all of its End-Users using the
Services to RIM (to the extent that such End-User
agreements can be assigned to RIM using commercially
reasonable efforts) and shall provide a full list of
such End-Users to RIM so that BSP may continue to
provide Services directly to such End-Users, should
RIM be prepared to assume responsibility for
providing continued Service for such End-Users. BSP
further agrees, that during the term of this
Agreement and for a period of four (4) months after
the termination of this Agreement, it will not
directly or indirectly solicit such End-Users who are
using the Services at the expiration of the
Post-Termination Service Term to discontinue the use
of such Services in favor of other competing
services, whether provided by the BSP or a third
Party.
Upon termination of this Agreement by RIM under
Section 6.01 or this Section 7, the rights granted
pursuant to this Agreement shall cease and the BSP
shall return to RIM any and all marketing materials
supplied to BSP by RIM in support of this
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Agreement and, if applicable, shall certify in
writing that all archival or backup copies of the
applicable BlackBerry Software has been deleted from
any computer system and destroyed. In addition, RIM
reserves the right to de-activate any activated
Service pursuant to this Agreement, if BSP is in
default of payment of Fees due to RIM and such
default is not cured in accordance with Section 7.03
above.
Upon termination of this Agreement for any reason,
the BSP shall immediately pay to RIM any outstanding
Fees due to RIM and any subsequent Fees due for
Services and/or Products scheduled to be provided or
delivered, as applicable, as such become due, upon
receipt of an invoice from RIM. The termination of
this Agreement shall not limit either Party from
pursuing any other remedies available to it,
including injunctive relief, nor shall such
termination relieve the BSP from its obligation to
pay monthly Service Fees pursuant to this Agreement
until such time as all such Service has been
de-activated and/or any amounts due to RIM that the
BSP is required to pay under any Initial Order and/or
BSP Purchase Order or other similar ordering document
under this Agreement. The Parties' rights and
obligations under Sections 2.05, 3.08, 3.09, 6.01,
7.02, 7.05, and Articles 1, 5, 8, and 9 and such
sections and articles which by their nature are
intended to survive this Agreement shall survive
termination of this Agreement.
ii) Schedule A is hereby amended to include the Products
listed in Attachment A hereto;
iii) Schedule A is hereby further amended to change the
heading "BlackBerry Intemet Edition Handhelds" and
change it to "BlackBerry Internet Edition and
BlackBerry Exchange Edition Handhelds";
b) The following additional terms apply for the purposes of
allowing RIM to offer BBEE Services to BSP:
i) The following definitions apply to the provision of
BBEE Services;
(1) BSP's Service means any service marketed or
otherwise distributed by BSP in Canada or
the United States that includes a service to
subscribed End-Users to permit each such
End-User to send and receive email
wirelessly using a BlackBerry Handheld in
conjunction with the BlackBerry Wireless MS
Exchange Email Service (as defined below).
(2) Reseller's Service means any service
marketed or otherwise distributed by a
customer of BSP in Canada or the United
States that includes a service to subscribed
End-Users to permit each such End-User to
send and receive email wirelessly using a
BlackBerry Handheld in conjunction with the
BlackBerry Wireless MS Exchange Email
Service.
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(3) BlackBerry Wireless MS Exchange Email
Service means a single mailbox service for
email accounts provided by RIM that permits
BSP's End-Users to send and receive MS
Exchange email using the BlackBerry
Handheld.
ii) BSP shall have the non-exclusive right to access the
BlackBerry Wireless MS Exchange Email Service and to
provide, to BSP's End-Users, the BlackBerry Wireless
MS Exchange Email Service in conjunction with BSP's
Service.
iii) BSP shall have the non-exclusive right to sell the
BlackBerry Wireless MS Exchange Email Service to
customers that purchase the BlackBerry Wireless MS
Exchange Email Service for resale in Canada and/or
the United States (each, a Reseller) and to provide,
to a Reseller's End-Users in Canada and/or the United
States, the BlackBerry Wireless MS Exchange Email
Service in conjunction with such Reseller's Service.
iv) BSP shall have the non-exclusive right to sell the
BlackBerry Enterprise Server Software (Exchange
Edition) under the terms of Schedule A herein to
End-User customers that purchase the BlackBerry
Wireless MS Exchange Email Service provided BSP
maintains such competencies and qualifications as may
be reasonable required by RIM by any partner selling
the product.
v) RIM agrees to make the BlackBerry Wireless MS
Exchange Email Service available to BSP's End-Users
in Canada and while such End-Users are roaming in the
United States, and to make the BlackBerry Wireless MS
Exchange E-mail Service available to BSP's End-Users
in United States and while such End-Users are roaming
in Canada. Any cost associated with enabling
End-Users to roam into the United States or Canada
shall be borne by the BSP.
vi) RIM agrees to provide BSP all new minor releases,
minor improvements or minor upgrades to the
BlackBerry Wireless MS Exchange Email Service to BSP
during the term of this LOA at no additional cost.
Releases, improvement or upgrades that add
significant enhanced or new functionality or features
or that include third Party royalties, payments or
additional service access fees for which RIM is
normally charging or required to charge other Parties
for such releases, improvements or upgrades are not
included in this provision.
vii) In consideration of the rights granted in this LOA,
BSP agrees to pay a Service Access Fee as specified
in Schedule A as amended by this Agreement. Such
Access Fee shall be payable 30 days after the end of
the calendar month for all customers who were
activated for any part or all of that calendar month.
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viii) In consideration of the rights granted in this LOA,
BSP agrees that it will not offer a Competitive
Corporate Email Service for use on the Mobitex
network for use with RIM Products (except those Bell
South Wireless Data email solutions that are
commercially available and which have been adopted by
BSP as of the effective date of this LOA). For
purposes hereof, "Competitive Corporate Email
Service" shall not include the use of a browser that
can be accessed from a wireless device that permits
users to a e-mail on corporate mail servers.
ix) In consideration of the rights granted in this LOA,
BSP further agrees that it will not run BlackBerry
Software other than on RIM Hardware; provided
however, that should RIM allow a third Party to run
BlackBerry Software on other than RIM Hardware, then
(a) provided that RIM is not precluded by such third
Party from making the combined hardware and
BlackBerry Software solution (the "Combined
Solution") available to BSP, RIM shall make such
Combined Solution available to BSP on no less
favourable terms than it makes such Combined Solution
available to third Parties; or (b) BSP shall be
entitled to acquire such Combined Solution from the
third Party, provided that BSP shall first seek RIM's
consent, such consent not to be unreasonably
withheld, delayed or conditioned.
x) BSP acknowledges RIM has filed patent applications
that are associated with RIM products and/or services
such as redirection of datagrams including email. As
such, BSP acknowledges that RIM has pending and/or
granted patent rights associated therewith.
2) In relation, to both BBEE and BBIE Services, the BSP Agreement is
hereby amended to provide that notwithstanding the provisions of
Sections 1.14, 3.04 and 3.13:
a) RIM will provide Level 1 Support during the Support Term (as
hereinafter defined). Level 1 Support shall mean direct
technical support of RIM Products, consisting of: (a) a direct
response to Customer and user inquiries concerning the
performance of RIM Products, functionality or operation of RIM
Products; (b) a direct response to reported problems or
performance deficiencies with RIM Products; (c) a diagnosis of
problems or performance deficiencies of RIM Products; and (d)
the use of commercially reasonable efforts to resolve problems
or performance deficiencies in RIM Products, to the extent
that such resolution is possible over the telephone. Level 1
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 RIM Products. If, after using its
reasonable commercial efforts, RIM is unable to answer a
support question or to correct a reported problem in RIM
Products, RIM will escalate the call to RIM's second level
support in accordance with RIM internal procedures.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote omissions.
Such Level 1 Support shall be provided for the period of
thirty (30) days from September 18, 2000 of this LOA or such
other period of time as agreed upon between the Parties in
writing (the"Support Term") on a 7 days a week, 24 hours per
day basis and RIM will be entitled to payment for such Level 1
Support as follows:
i) $[**] as a flat fee during each month of the Support
Term; and
ii) $[**] per each call for Level 1 Support.
b) At the end of the Support Term the provisions of Sections
1.14, 3.04 and 3.13d will be reinstated and the Parties will
comply with the obligations set out in those Sections
including those requiring BSP to provide Level 1 Support on a
7 days a week, 24 hours per day basis.
3) Section 2.01 of the BSP Agreement is amended to include the following
additional paragraph:
"BSP shall have no right to appoint, and shall not appoint,
additional service providers, distributors or resellers for
the Products except as expressly approved in writing by RIM,
such approval not to be unreasonably withheld, delayed, or
conditioned. Notwithstanding the forgoing, BSP shall not (a)
be precluded from accepting any referrals from third Parties
for sales to End-Users (b) be in breach of its contractual
obligations to the extent that it has appointed additional
service providers, distributors or resellers for Products in
relation to BBIE prior to September 18, 2000 of this LOA."
Please indicate GoAmerica's agreement with the terms and conditions set out in
this letter agreement by signing and dating this letter where indicated below.
Yours truly,
/s/ Jim Balsillie
Jim Balsillie
Chairman & Co-CEO
The undersigned, Joseph Korb, being a duly authorized signatory of GoAmerica and
on behalf of GoAmerica, hereby accepts the terms and conditions contained in
this LOA.
/s/ Joseph Korb
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Signature
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Confidential Materials omitted and
filed separately with the Securities and Exchange Commission.
Asterisks denote omissions.
SCHEDULE A
PRODUCTS, SERVICE AND DOCUMENTATION
See Exhibit A-1 for the BlackBerry Enterprise Server Software (Exchange Edition)
specifications
Service and Service Fee:
BlackBerry Exchange Edition (includes $[**] per month per End-User
flat rate Mobitex service):
BlackBerry Exchange Edition Service Access: $[**] per month per End-User
(applicable to 857 and 850-4, or in accordance with
section 9.15 herein)
For use with BSP-procured DataTac airtime service
BlackBerry Enterprise Server Software (Exchange $[**] per copy (MSRP $[**])
Edition):
(includes [**] Client Access Licenses)
BlackBerry Client Access Licenses: $[**] per 10 licenses (MSRP $[**])
All BES sold by BSP to end-users must be accompanied by a sufficient number of
Client Access Licenses.
Upon expiration of this LOA or at the end of any twelve (12) month Service
period activated prior to the expiration of this LOA, whichever occurs first,
should RIM experience an increase in wireless airtime fees from BellSouth or
Rogers AT&T, applicable, RIM reserves the right to pass on such increase to the
BSP to any End-User whose initial twelve (12) month Service period has expired.
The Fees and charges listed in this Agreement do not include taxes and/or fees.
If RIM is required to pay, without limitation, sales, use, property,
value-added, or other federal, state, provincial or local taxes, duties,
brokerage fees and/or freight charges based on the Product or Services provided
under this Agreement, then such taxes, duties, brokerage fees and/or freight
charges shall be billed to and paid by the BSP. This shall not apply to taxes
based on RIM's income. Any amounts payable by the BSP hereunder which remain
unpaid after the due date shall be subject to late penalty fees equal to 1.5%
per month from the due date until such amount is paid.
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Exhibit A-1
Key Features and Benefits
BlackBerry Enterprise
Server Software
(Exchange Edition)
The BlackBerry Enterprise Server (BES) Software consolidates the operation of
individual BlackBerry Desktop email redirectors into a server that the IT
department can monitor and control. With the BES, users don't have to leave
their computers running and laptop users can be supported. IT Departments handle
the centralized administration and control of mobile email and users can
continue to configure email redirection options using the BlackBerry Desktop
Software on their PCs.
BES for Microsoft Exchange
Functionality
Email Redirection
o Monitors the user's Microsoft Exhange inbox for new mail
o Applies user-definable filters to new messages to determine if and how the
message will be relayed to the user's BlackBerry handheld
o Compresses and encrypts these new messages and delivers them to the
BlackBerry handheld via the Internet
o Receives, via the Internet, messages composed on the BlackBerry handheld,
then decompresses and decrypts the messages and places them in the user's
Outbox for the corporate Exchange server to deliver
Management
o Administration of the BES is accomplished through user-interface
extensions to the Exchange Administrator
o The BES logs to the NT event log so administrators can perform
server-level monitoring using the standard event log monitoring tools
o Operating statistics can be monitored via SNMP
o User level monitoring is also available through the Exchange Administrator
o New users can be batch imported and existing user stats can be exported
for analysis
Feature Benefit to Customer
------- -------------------
Server-based Operation Corporate servers are
more reliable platforms than desktop
computers. Also offers IT more
control over deployment.
No redirection software Permits laptop users to
required on desktop. take their laptop with them and still
receive email on their handheld.
Outbound originated Connection provides
TCP/IP Connection to RIM's faster communication
BlackBerry Service between the server redirection
software and the handheld.
Outbound originated connection does
not pose an IT security risk.
Management done through No new admin
Exchange Administrator package to learn. Takes
extensions. advantage of remote admin
capabilities of Exchange
Messages are automatically View and reply to
"pushed" to the handheld as messages when it is convenient.
they arrive at the Exchange Handheld is always
mailbox. up to date - no time wasted
dialing in to find no new messages.
Mirrors your existing Same e-mail address as always.
Exchange mailbox. Messages appear sent from your desktop
Messages sent from the Desktop has complete
handheld are stored in the record of all e-mail sent
'Sent Items' folder
of your Exchange account
Fully secure and encrypted Messages sent to and from
message transmission the handheld are kept private