Exhibit 10.2
EXECUTION COPY
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote such omissions.
SALES AGENT AGREEMENT
THIS SALES AGENT AGREEMENT ("Agreement") is effective as of September 25,
2002 ("Effective Date") between EarthLink, Inc., a Delaware corporation
("EarthLink"), and GoAmerica, Inc., a Delaware corporation ("Parent"), and
GoAmerica Communications Corporation, a Delaware corporation and wholly-owned
subsidiary of Parent ("Sub", and together with Parent, "GoAmerica"). EarthLink
and GoAmerica are individually and collectively referred to herein as "Party" or
"Parties."
RECITALS
In connection with this Agreement and as elements of an overall strategic
relationship, the parties will simultaneously enter into (i) an Acquisition
Agreement, pursuant to which EarthLink will purchase certain assets of GoAmerica
(ii) a Technology Development Agreement, pursuant to which the parties will
develop certain technologies for use in the wireless data services business,
(iii) a License Agreement, pursuant to which the GoAmerica will license to
EarthLink certain software and other technologies required by EarthLink to
service the Transferred Assets, and (iv) an Escrow Agreement, which defines
EarthLink's rights to access the source code for certain of the licensed
software. This Agreement, together with the Acquisition Agreement, the
Technology Development Agreement, the License Agreement, and the Escrow
Agreement are referred to collectively as the "Related Agreements." The Parties
agree that the Related Agreements collectively represent an integrated
transaction and that none of the Related Agreements would have been executed but
for the execution of the others. Thus, the Parties agree that the consideration
provided for each of the Related Agreements is consideration provided in
exchange for the Parties' duties and obligations under all of the Related
Agreements and that such consideration is full and fair consideration for each
of the Parties' duties and obligations under all of the Related Agreements.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Related Agreements and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS.
"Bounty" means the amount that EarthLink will pay GoAmerica for each
Qualified Subscriber provided by GoAmerica as specifically set forth in Exhibit
A.
"Browser Only Subscribers" means any Go.Web browser only users for whom
EarthLink is providing wireless access, billing, customer support and certain
technical support,
specifically excluding any Rogers AT&T Go.Web browser only users which will not
be transferred to or supported by EarthLink under this Agreement.
"Confidential Information" means any and all information related to the
services and/or business of a Party that is treated as confidential or secret by
the Party (that is, it is the subject of efforts by the disclosing Party that
are reasonable under the circumstances to maintain its secrecy) including, but
not limited to, the terms and conditions of this Agreement. Confidential
Information will not include information (a) already lawfully known to or
independently developed without reference to any Confidential Information by the
receiving Party as evidenced by its written records, (b) disclosed in published
materials, (c) generally known to the public, or (d) lawfully obtained from any
third party without any obligation of confidentiality. Confidential Information
for the purposes of this agreement also includes Trade Secrets (as defined
below) and information which has been disclosed to the disclosing Party by a
third party and which the disclosing Party is obligated to treat as confidential
or secret.
"EarthLink Service" means EarthLink's mobile wireless Internet access
service.
"EarthLink Site" means, collectively, EarthLink's proprietary Web site
accessible through the EarthLink Service located at www.earthlink.net and any
other proprietary pages owned or controlled by EarthLink available through
www.earthlink.net.
"EarthLink Standard Access Fee" means the standard retail rates for
EarthLink's mobile wireless Internet access service.
"EarthLink Subscriber" means any authorized user of the EarthLink Service
who as a result of this Agreement has contracted with EarthLink for the use of
the EarthLink Service.
"GoAmerica Services" means those products and services that EarthLink will
be selling as an agent for GoAmerica as set forth on Exhibit B.
"Marks" means all domain names, trademarks, trade names, service marks,
logos and slogans associated with a Party's products or services.
"Promotional Material" means advertising and other promotional
communications, in any media which describes the EarthLink Service.
"Promotional Period" means any period of time when new EarthLink
Subscribers are offered EarthLink Services for less than EarthLink's Standard
Access Fee.
"Qualified Subscriber" means an EarthLink Subscriber who pays EarthLink the
full and recurring EarthLink Standard Access Fee for at least two (2)
consecutive months following any Promotional Period.
"Setup Software" means EarthLink's copyrighted and branded suite of
software that enables end-users to establish an account and access and use
EarthLink Service.
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"Subscriber Information" means information about EarthLink's Subscribers,
such as the names, addresses, usernames, passwords, e-mail addresses of and
financial information related to any EarthLink Subscribers, including but not
limited to, mailing lists. Subscriber Information constitutes Confidential
Information and will be used only for the promotional purposes set forth in this
Agreement such as the mailing of Promotional Material.
"Territory" means the United States, Canada, and as mutually agreed, in
writing, by the Parties to this Agreement, other geographic areas.
"Trade Secrets" means all non-public information whether tangible or
intangible related to the services or business of the disclosing Party that: (a)
derives economic value, actual or potential, from not being generally known to
or readily ascertainable by other persons who can obtain economic value from its
disclosure or use; and (b) is the subject of efforts by the disclosing Party
that are reasonable under the circumstances to maintain its secrecy, including,
without limitation, (i) marking any information reduced to tangible form clearly
and conspicuously with a legend identifying its confidential or trade secret
nature; (ii) identifying any oral communication as confidential or secret
immediately before, during, or after such oral communication; or (iii) otherwise
treating such information as confidential or secret. Assuming the criteria in
clauses (a) and (b) above are met, Trade Secrets further includes, without
limitation, technical and non-technical data, formulas, patterns, designs,
compilations, computer programs and software, devices, inventions, methods,
techniques, drawings, processes, financial data, financial plans, product plans,
lists of actual or potential customers and suppliers which are not commonly
known by or available to the public, research, development, and existing and
future products.
2. DUTIES AND OBLIGATIONS OF THE PARTIES.
2.1 Duties and Obligations of GoAmerica. GoAmerica will have the following
duties and obligations:
a. Market EarthLink Service. GoAmerica will make reasonable best
efforts to market and promote certain EarthLink Services, as determined by
EarthLink and set forth on Exhibit B, via its direct and indirect channels of
distribution, including but not limited to, promotional opportunities such as
trade shows, web site, print campaigns, public relations or other such
activities as may be agreed upon by the parties.
b. Reports. GoAmerica shall (i) provide EarthLink with written
detailed report(s) setting forth the number of new GoAmerica customers for the
preceding calendar month and (ii) sales forecasts for the next [**] ([**])
months on a rolling basis within forty-five (45) days following the end of such
calendar month.
c. Taxes. GoAmerica is solely responsible for all taxes on bounties
and other fees paid by EarthLink to GoAmerica under this Agreement, including
all state and local use, sales, property (ad valorem) and similar taxes.
d. Payment. GoAmerica shall pay the one time fees set forth in Exhibit
F to EarthLink for any hardware provided to GoAmerica by EarthLink.
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e. Payment Date. GoAmerica will pay any amounts owed to EarthLink
hereunder, for an applicable calendar month within forty five (45) days
following the end of such calendar month.
f. Additional Terms.
(i) GoAmerica agrees to pay all costs for any hardware and
services for any non-standard SKU's when samples are offered to customers. In
addition, GoAmerica acknowledges and agrees that certain fulfillment/shipping
charges, as set forth on Exhibit E, will be applied to sample accounts, as well
as, to customer shipments.
(ii) EarthLink shall procure inventory on GoAmerica's behalf for
any inventory hardware outside of existing EarthLink SKUs requested by
GoAmerica. GoAmerica agrees that it carries inventory write-down risk associated
with specific SKUs. In the event SKUs can be reasonably integrated (i.e. Go.Web
installed on a standard EarthLink email device), EarthLink will adjust/modify
the inventory to limit write-down exposure or out-of-stock scenarios.
(iii) GoAmerica agrees to offer and include EarthLink's email,
content and location based products and services, except to the extent EarthLink
does not support a particular platform or network, as part of any platform,
product bundle or other suite of services that GoAmerica offers or provides to
carriers; provided however, the rejection of any EarthLink services or products
as part of a bundled solution by a carrier will not be considered a breach by
GoAmerica under this Agreement. Additionally, GoAmerica agrees that, subject to
the immediately following subsection (iv) below, the EarthLink Services shall be
the only services for which GoAmerica acts as an agent for each the following
networks offered by EarthLink:
(a) [**];
(b) [**];
(c) [**];
(d) [**] (except where [**] service is not offered); and
(e) [**] (when available).
(iv) EarthLink and GoAmerica agree that, as to each
network/platform, the EarthLink Services will be the exclusive services offered
and sold by GoAmerica provided the bounty paid (such bounty amount determined
based on bounties proposed or offered by the carrier to GoAmerica in writing) by
EarthLink is within [**] percent ([**]%) of the bounties paid by competitive
carriers (whether a carrier is competitive shall be determined by EarthLink in
its reasonable discretion) for substantially the same services (based on
technical megabyte capabilities). EarthLink will have a right of first refusal
to have GoAmerica act as its agent, on an exclusive basis (i.e., EarthLink
Services will be the only services for which GoAmerica acts as a sales agent),
for any new products and services not currently offered by EarthLink and for any
products and services for which the bounty offered by EarthLink is outside of
the foregoing [**] percent ([**]%) threshold. In the event EarthLink intends to
cease offering or supporting
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any network/platform for which GoAmerica is EarthLink's exclusive agent, then
EarthLink shall give GoAmerica no less than one hundred twenty (120) days notice
in order for GoAmerica to negotiate an appropriate arrangement with a third
party.
(v) EarthLink and GoAmerica agree that [**] and [**] platforms
shall be considered to be interchangeable, except when specific products or
coverage are not available or the specific platform is requested by a customer;
provided GoAmerica may not directly or indirectly solicit or encourage, in any
manner, a customer to request an alternate platform.
2.2 Duties and Obligations of EarthLink. EarthLink will have the following
duties and obligations:
a. Market GoAmerica Service. EarthLink will market and promote certain
GoAmerica Services, as determined by GoAmerica and set forth on Exhibit G, via
its direct and indirect channels of distribution, including but not limited to,
promotional opportunities such as trade shows, web site, print campaigns, public
relations or other such activities as may be agreed upon by the parties.
b. Payment. EarthLink will pay GoAmerica the bounties set forth in
Exhibit A for each EarthLink Subscriber that becomes a Qualified Subscriber as a
result of GoAmerica's sales and marketing efforts under this Agreement.
c. Taxes. EarthLink is solely responsible for all taxes on bounties
and other fees paid by GoAmerica to EarthLink under this Agreement, including
all state and local use, sales, property (ad valorem) and similar taxes.
d. Reports. EarthLink shall provide GoAmerica with written detailed
report(s) setting forth the number of new EarthLink Subscribers and Qualified
Subscribers for the preceding calendar month within forty five (45) days
following the end of such calendar month. Notwithstanding the foregoing, if
there are no Qualified Subscribers for any month, no written report will be
issued to GoAmerica and no Bounty will be paid.
e. Pricing Terms. GoAmerica acknowledges and agrees that the EarthLink
Standard Access Fees for EarthLink are subject to change at any time. EarthLink
will provide GoAmerica with [**] days prior written notice regarding any change
in the EarthLink Standard Access Fees. The current EarthLink Standard Access
Fees are set forth in Exhibit B.
f. Go.Web Browser. EarthLink shall pay GoAmerica a monthly service fee
for each end user of the EarthLink Branded Go.Web browser (as contemplated by
one or more of the Related Agreements) as set forth in Section II on Exhibit C.
EarthLink shall pay GoAmerica a monthly service fee for paying Go.Web
subscribers sold by GoAmerica in conjunction with the EarthLink Services as set
forth in Section I on Exhibit C.
g. Payment Date. EarthLink will pay any amounts owed to GoAmerica
hereunder, including bounties, service fees and any other fees, for an
applicable calendar month within forty five (45) days following the end of such
calendar month.
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2.3 Customer/Subscriber Information. GoAmerica agrees that any personally
identifying information of any EarthLink Subscriber, including but not limited
to name, address, email address or billing information will be used only for the
purposes set forth in this Agreement. In no event shall either Party disclose,
transfer, duplicate, reproduce, retain or use in any form all or any part of the
other Party's customer information. Notwithstanding the foregoing, either Party,
by mutual agreement, may use the other Party's mailing list to conduct a mail
purge for the purpose of eliminating duplicate mailing names, provided this is
done by an independent bonded service bureau.
2.4 Maintenance of Records; Audit. Each Party will maintain proper books
and records so as to allow for the verification of amounts paid or owed to the
other Party. During the term of this Agreement and for a period of One Hundred
Thirty Five (135) days thereafter, upon at least thirty (30) days prior written
notice, either Party will have the right to audit and analyze the other Party's
records as they relate to payments due to the Party hereunder and to ensure
compliance with all payment terms of this Agreement for twelve (12) months prior
to the date of the audit. Unless agreed to otherwise in writing by the Parties,
such audit will be conducted during the usual business hours and at the place of
business of the Party being audited. Each Party will have the right to audit the
other Party's applicable and relevant records no more than once every twelve
(12) months. The audited books and records as well as the results of any such
audit will be considered Confidential Information as set forth in this
Agreement. The Party conducting the audit will bear the costs and expenses of
the audit. In the event such an examination discloses that either party owes the
other party an amount that is five percent (5%) or more than the fees actually
paid for any six (6) month period, in addition to paying any additional amount
which such audit may show is owed, the party that underpaid shall pay all costs
reasonably incurred by the party conducting the audit in connection with the
audit.
2.5 Billing Options. Subscribers who sign-up for the EarthLink Service
through GoAmerica's promotional efforts will be asked to pay for the EarthLink
Service with a major credit card or by customer invoice. EarthLink will bill
EarthLink Subscribers the EarthLink Standard Access Fee on a monthly basis in
accordance with Exhibit B.
2.6 No License Granted. Except as expressly granted herein, nothing in this
Agreement shall be construed to constitute a grant by either Party of a license
to any of the other Party's intellectual property rights, technical know-how,
patent rights, copyrights, trademarks, tradenames, logos, product and
proprietary identifiers or trade secrets, which are and shall remain the
exclusive property of the respective Parties.
2.7 EarthLink Service. EarthLink, in its sole discretion, reserves the
right to accept, or reject, any potential EarthLink Subscriber. EarthLink shall
notify GoAmerica before any rejection or termination of an EarthLink Subscriber
who is a Go.Web subscriber and shall discuss alternate pricing and credit
arrangements as reasonably requested by GoAmerica. Additionally, EarthLink and
each EarthLink Subscriber shall have the right, at any time, to terminate the
EarthLink Service provided to an EarthLink Subscriber in accordance with the
terms and conditions of EarthLink's Internet Service Agreement and related
policies.
2.8 Right to Setoff. Either party (the "Offsetting Party") shall have the
right to set off against payment due to the other party hereunder any amounts
that the other party then owes
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to the Offsetting Party, including, without limitation, any amounts subject to
an indemnifiable claim, whether arising out of this Agreement or any of the
Related Agreements. Prior to exercising this right, the Offsetting Party,
through a vice president or higher officer, shall first attempt, in good faith,
to resolve the matter giving rise to setoff to the satisfaction of both parties
with a vice president or higher officer of the other party, but is not obligated
to do so for more than [**] business days after the offsetting Party notifies
the other Party of its offset right.
3. COORDINATION AND TRANSITION.
3.1 Upon the execution of this Agreement, GoAmerica and EarthLink shall
respectively designate an employee of each of them to be responsible for
communication and liaison with respect to this Agreement and concerning
performance thereof.
3.2 EarthLink shall, in its discretion, provide to GoAmerica information
concerning the marketing, sale and delivery of EarthLink Services and sales
materials employed by EarthLink with respect thereto. GoAmerica shall, in its
discretion, provide EarthLink information concerning the marketing, sale and
delivery of GoAmerica Services and such sales materials employed by GoAmerica
with respect thereto.
3.3 Upon [**] days prior written notice to GoAmerica, EarthLink may amend
Exhibit A hereto for the purpose of adding or deleting products or services;
provided however, EarthLink may delete products and services from Exhibit A upon
no less than [**] days notice but as soon as practicable in the event EarthLink
no longer has the right to sell such products and services. EarthLink also may
delete from Exhibit A any product or service with respect to which EarthLink
determines, in the reasonable discretion of EarthLink, that GoAmerica personnel
are not sufficiently trained or otherwise qualified to properly market and sell
such product or service. Notwithstanding anything herein to the contrary,
EarthLink may at any time elect in its sole discretion to cease offering any
product or service listed at any time in Exhibit A and the same shall be deemed
deleted therefrom upon notice to GoAmerica hereunder of such discontinuance.
Upon [**] days prior written notice to EarthLink, GoAmerica may amend Exhibit G
hereto for the purpose of adding or deleting products or services; provided
however, GoAmerica may delete products and services from Exhibit G upon no less
than [**] days notice, but as soon as practicable, in the event GoAmerica no
longer has the right to sell such products and services. GoAmerica also may
delete from Exhibit G any product or service with respect to which GoAmerica
determines, in the sole discretion of GoAmerica, that EarthLink personnel are
not sufficiently trained or otherwise qualified to properly market and sell such
product or service. Notwithstanding anything herein to the contrary, GoAmerica
may at any time elect in its sole discretion to cease offering any product or
service listed at any time in Exhibit G and the same shall be deemed deleted
therefrom upon notice to EarthLink hereunder of such discontinuance.
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4. RELATIONSHIP.
4.1 All sales of EarthLink Services hereunder shall be made pursuant to
agreements for service between EarthLink and EarthLink Subscribers. All
EarthLink Subscribers are deemed to be customers of EarthLink only. All sales of
GoAmerica Services hereunder shall be made pursuant to agreements between
GoAmerica and its customers.
4.2 GoAmerica shall act to secure sales by EarthLink hereunder and shall
not be a customer of EarthLink nor purchase EarthLink Services for resale. All
billings for purchases of EarthLink Services, Go.Web and other mutually agreed
upon GoAmerica Services by EarthLink Subscribers hereunder will be made by
EarthLink. EarthLink Subscribers and the users of the GoAmerica Services shall
remit payment to EarthLink. Unless explicitly set forth as part of a payment or
invoice, EarthLink shall apply all amounts received by EarthLink to amounts owed
for EarthLink Services provided hereunder before applying to any amounts owed to
GoAmerica prior to the Effective Date. EarthLink shall remit any amounts
received by EarthLink that were paid or owed for GoAmerica Services to
GoAmerica. GoAmerica shall remit any amounts received by GoAmerica that were
paid or owed for EarthLink Services to EarthLink. All accounts receivables for
EarthLink Services provided to EarthLink Subscribers are owned solely by
EarthLink, specifically excluding any accounts owned by GoAmerica received by
EarthLink. Nothing in this Agreement shall create any right or interest of
GoAmerica in such accounts receivables.
4.3 EarthLink shall act to secure sales by GoAmerica hereunder and shall
not be a customer of GoAmerica nor purchase GoAmerica Services for resale. All
accounts receivables for GoAmerica Services to GoAmerica Subscribers are owned
solely by GoAmerica, specifically excluding any accounts owned by EarthLink
received by GoAmerica. Notwithstanding the foregoing, in the event of a
conversion of Browser Only Subscribers from GoAmerica to EarthLink upon a
termination of this Agreement in accordance with Section 9.3 herein, all
accounts receivable for services provided to such Browser Only Subscribers after
the effective date of termination of this Agreement shall be owned by EarthLink.
5. LICENSES AND STANDARDS.
5.1 Content License. To the extent a Party is providing the other Party
with any of the providing Party's online content, the providing Party hereby
grants to the other Party a non-exclusive license to use, reproduce, distribute,
publicly perform, publicly display and digitally perform such providing Party's
content on or in conjunction with the Setup Software and/or any other related
promotional material provided such use is reasonably necessary to perform as
contemplated by this Agreement.
5.2 Content Ownership. Each Party retains all right, title and interest in
and to all intellectual property rights embodied in or associated with its own
content.
5.3 Trademark License. (a) GoAmerica hereby grants to EarthLink, subject to
the terms of this Agreement, a non-exclusive, nontransferable, non-sublicensable
license to use the GoAmerica's Marks, throughout the Territory: (i) in links to
or from the EarthLink Site, (ii) in conjunction with the Setup Software, and
(iii) in or on promotional material, provided such uses
8
are reasonably necessary to perform as contemplated by this Agreement. (b)
EarthLink hereby grants to GoAmerica, subject to the terms of this Agreement, a
non-exclusive, non-transferable non-sublicensable, license to display and
distribute the EarthLink Marks, throughout the Territory, in or on promotional
material, provided such use is reasonably necessary to perform as contemplated
by this Agreement. Each Party requires that each use of its Marks or the Marks
of its licensors be in accordance with the identifiers listed in Exhibit D.
Title to and ownership of the respective owner's Marks will remain with the
owner. The license granted by the Mark holder does not include any ownership
interest in its Mark or intellectual property and does not include the right to
modify or alter in any way such Mark.
5.4 Trademark Restrictions. The licensee of any Marks hereunder will not
take any action inconsistent with the owner's ownership of the Marks and any
benefits accruing from use of such Marks will automatically vest in the owner.
Neither Party will create any combination Marks with the other Party's Marks. If
a Party's use of the licensed Marks does not conform to licensing Party's
quality standards in the licensing Party's commercially reasonable opinion, the
licensing Party will, in writing, notify the other Party of such nonconformance.
If the other Party does not cure such nonconformance within ten (10) days of
such notice, the licensing Party may terminate the license granted to the other
Party hereunder. If the other Party does not cure such nonconformance within
thirty (30) days of such notice, the licensing Party may immediately terminate
this Agreement upon written notice to the other Party.
5.5 Promotional Material. Prior to the initial launch of any web pages or
other Internet locations branded with the other Party's Marks including, but not
limited to, the release of any marketing, advertising, press releases, or other
Promotional Materials that references the other Party and/or the other Party's
Marks, the releasing Party will submit a written request for approval to the
other Party together with a copy of the Promotional Material to be released,
which request will be made no less than ten (10) business days prior to the
requested release date (the other Party will not unreasonably withhold or delay
the granting of its approval thereof). Other than those representations
contained in the Promotional Material, the releasing Party will make no
representations regarding the other Party or the other Party Services. Neither
releasing Party will not in any way modify the representations made by the other
Party in the Promotional Materials.
5.6 Setup Software. In the event that Parties agree that GoAmerica will be
distributing Setup Software, EarthLink grants GoAmerica a non-exclusive license
to distribute the Setup Software in accordance with the terms of this Agreement.
All rights, title, and interest in or to, and ownership of, the Setup Software
will remain at all times exclusively with EarthLink. GoAmerica will not, nor
will it permit others to: (i) reproduce or otherwise make copies of any portion
of the Setup Software, (ii) modify, reverse engineer, decompile, disassemble, or
otherwise attempt to determine or attempt to obtain access to the source code or
the internal design of the Setup Software, or (iii) create any derivative works
based on the Setup Software. In the event that EarthLink creates customized
disks, jackets, welcome kits, and envelopes as described herein, EarthLink will
retain ownership of all of the intellectual property rights contained therein,
specifically excluding GoAmerica's Marks, including without limitation the
design and look and feel of such disks, jackets, welcome kits and envelopes.
Each disk will have a unique registration number to track EarthLink Subscribers.
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5.7 Authorization to Act on Behalf of EarthLink. Other than those
representations contained in Promotional Materials, GoAmerica shall make no
representations regarding EarthLink or the EarthLink Service and shall not
modify in any way the representations made by EarthLink in Promotional
Materials. EarthLink alone shall have the right to approve and accept all orders
for EarthLink Service solicited by GoAmerica, which approval and acceptance
shall be at EarthLink's sole discretion. GoAmerica is expressly prohibited from
binding EarthLink in any way.
5.8 Limits. There are no implied licenses under this Agreement, and any
rights not expressly granted to a licensee hereunder are reserved by the
licensor or its suppliers. Neither Party will exceed the scope of the licenses
granted hereunder.
6. REPRESENTATIONS AND WARRANTIES.
6.1 EarthLink. EarthLink represents and warrants to GoAmerica that: (1)
EarthLink has the power and authority to enter into and perform its obligations
under this Agreement and (2) EarthLink has the full and exclusive right to grant
or otherwise permit GoAmerica to use EarthLink's Marks and to distribute the
Setup Software in accordance with the terms of this Agreement. If EarthLink's
intellectual property rights included in the Setup Software are alleged or held
to infringe the intellectual property rights of a third party, EarthLink will,
at its own expense, and in its sole discretion, (i) procure for GoAmerica the
right to continue to use the allegedly infringing intellectual property or (ii)
replace or modify the intellectual property to make it non-infringing; provided,
however, if neither option is possible or economically feasible and if the
inability to use such intellectual property would cause a material breach of
this Agreement (as determined by GoAmerica), GoAmerica will immediately stop
distributing the Setup Software and may immediately terminate this Agreement
upon written notice to EarthLink.
6.2 GoAmerica. GoAmerica represents and warrants to EarthLink that: (1)
GoAmerica has the power and authority to enter into and perform its obligations
under this Agreement; (2) GoAmerica has the full and exclusive right to grant or
otherwise permit EarthLink to use GoAmerica's Marks; and (3) that this Agreement
does not conflict with any other agreements to which GoAmerica was, is now, or
will become, obligated. If GoAmerica's intellectual property rights are alleged
or held to infringe the intellectual property rights of a third party, GoAmerica
will, at its own expense, and in its sole discretion, (i) procure for EarthLink
the right to continue to use the allegedly infringing intellectual property, or
(ii) replace or modify the intellectual property to make it non-infringing;
provided, however, if neither option is possible or economically feasible and if
the inability to use such intellectual property would cause a material breach of
this Agreement (as determined by EarthLink), EarthLink may immediately terminate
this Agreement upon written notice to GoAmerica.
7. CONFIDENTIALITY. Each Party acknowledges that Confidential Information may be
disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, which will include, at a minimum, the
steps it takes to protect its own Confidential Information, to prevent the
duplication or disclosure of Confidential Information, other than by or to its
employees or agents who must have access to the Confidential Information to
perform such Party's obligations hereunder, who will each agree to comply with
the terms of this
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Section. Each Party agrees that if it is required by law to disclose the other
Party's Confidential Information, such disclosing Party must first give written
notice of such required disclosure to the other Party and such other Party will
have a reasonable opportunity to prevent or limit the third party disclosure.
Each Party will protect the other Party's Confidential Information during the
Term of this Agreement and for two (2) years after the termination or expiration
of this Agreement.
8. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
8.1 Limitation of Liability. In no event will either Party be liable to the
other Party for any loss of profits, loss of business, loss of use or data,
interruption of business, or for indirect, special, incidental, exemplary,
multiple, punitive or consequential damages of any kind, whether based on
contract, tort (including without limitation, negligence), warranty, guarantee
or any other legal or equitable grounds, even if such Party has been advised of
the possibility of such damages. In no event will either Party be liable to the
other Party for any representation or warranty made to any end user or third
party by the other Party. These limitations will survive and apply
notwithstanding the validity of the limited remedies provided for in the
agreement. The limitations set forth in this Section will not apply to the
Parties' indemnification obligations set forth below and will not affect either
Party's right to seek injunctive relief.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER
PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS
OR WARRANTIES REGARDING THE EARTHLINK SERVICE OR OTHERWISE RELATING TO THIS
AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
8.3 Indemnity. Each Party agrees to indemnify, and hold harmless the other
Party and its officers, directors, employees, agents, successors and assigns
from and against any and all losses, liabilities, damages, penalties and claims
and all related costs and expenses (including, but not limited to, reasonable
attorneys' fees) related to: (a) claims made by third parties against the
indemnified Party alleging that the indemnifying Party's Marks or other
intellectual property infringes the patents, copyrights, trademarks or service
marks or other intellectual property rights of such third parties or (b) any
misrepresentation, breach or default by of, or under, any of the
representations, covenants, agreements or other provisions of this Agreement or
any Related Agreement or document executed in connection herewith. Each Party
agrees to promptly notify the indemnifying Party in writing of any indemnifiable
claim. The indemnified Party will cooperate in all reasonable respects with the
indemnifying Party and its attorneys in the investigation, trial, defense and
settlement of such claim and any appeal arising there from. The indemnified
Party may participate in such investigation, trial, defense and settlement of
such claim and any appeal arising there from, through its attorneys or
otherwise, at its own cost and expense. No settlement of a claim will be entered
into without the consent of the indemnified Party, which consent will not be
unreasonably withheld, unless the settlement includes an unconditional general
release of the indemnified Party.
11
8.4 Limitations on Indemnity. EarthLink will have no obligation hereunder
for any claims, actions or demands that result from: (a) use of Setup Software
in a combination that violates the rights of third parties or in a combination
with materials or products not supplied by EarthLink; or (b) the modification of
Setup Software by parties other than EarthLink.
9. TERM, RENEWAL AND TERMINATION.
9.1 Term. The initial term of this Agreement will be two (2) years from the
Effective Date of this Agreement ("Initial Term"). After the Initial Term, this
Agreement will automatically renew (any such renewal date referred to herein as
a "Renewal Date") for separate, consecutive one (1) year terms ("Renewal
Term(s)") unless written notice of termination is given by EarthLink one hundred
and eighty (180) days prior to the expiration of the Initial Term or any Renewal
Term(s). The Initial Term and any Renewal Term(s), if any, will be referred to
herein as the "Term".
9.2 Termination. This Agreement shall terminate automatically and
immediately upon the termination of the Acquisition Agreement. Except as may be
contained otherwise herein, this Agreement may be terminated by the Parties as
follows: (a) either Party may terminate this Agreement at any time in the event
of a material breach by the other Party of this Agreement that remains uncured
thirty (30) days after the breaching Party's receipt of written notice of the
breach; (b) either Party may terminate this Agreement immediately if the other
Party is unable to pay its debts as due, or enters into or files (or has filed
or commenced against it) a petition, arrangement, action or other proceeding
seeking relief or protection under the bankruptcy laws of the United States or
similar laws of the United States or any state of the United States; (c) either
Party may terminate this Agreement, at its option for convenience, upon one
hundred and eighty (180) days written notice; and (d) EarthLink may terminate
this Agreement immediately upon written notice upon the termination of any of
the Related Agreements for an uncured material breach, including without
limitation, any termination of any Related Agreements due to the occurrence of a
Release Condition.
9.3 Effects of Expiration or Termination.
a. Upon expiration or termination of the Agreement, GoAmerica's
license to use EarthLink's Marks will terminate and GoAmerica will cease
distributing the Setup Software. Within a reasonable period after the expiration
or termination of this Agreement for any reason, each Party will return to the
other Party any and all documents or other media, excluding any Deliverables of
Licensed Software, embodying any use of the other Party's Marks (including
specifically, but not limited to, any copies of the Setup Software that have not
been distributed at the time of expiration or termination). Upon the expiration
or termination of this Agreement, all rights and obligations of the Parties
under this Agreement will terminate, except the rights and obligations under
Sections 2.1(c), 2.1(d), 2.1(e), 2.2(c), 2.2(g), 2.3, 2.4, 2.6, 2.7, 2.8, 4, 5,
7, 8, 9 and 10 herein will survive expiration or termination of the Agreement.
b. In addition, upon any termination of this Agreement, EarthLink will
continue to have bounty payment obligations under Section 2.2(b) with respect to
EarthLink Subscribers who became EarthLink Subscribers before the effective date
of termination but who become Qualified Subscribers after the effective date of
termination (as evidenced by
12
EarthLink's records), but shall have no other payment obligations of any kind to
GoAmerica arising after the effective date of termination.
c. In the event of (i) a non-renewal of this Agreement by EarthLink
under Section 9.1, (ii) termination of this Agreement by EarthLink for
convenience under Section 9.2(c), (iii) termination of this Agreement by
GoAmerica for uncured material breach under Section 9.2(a) or (iv) termination
of this Agreement by GoAmerica for convenience under Section 9.2(c) at any time
following the initial two (2) year term of this Agreement, EarthLink will work
with GoAmerica for a period of one hundred eighty (180) days from the effective
date of termination or expiration date of this Agreement, to provide for the
transfer to GoAmerica (or its designee) any Browser Only Subscribers for which
EarthLink has not paid a bounty. Notwithstanding the foregoing, Browser Only
Subscribers for which EarthLink has paid a bounty shall be the exclusive
customers of EarthLink for all purposes, including without limitation, the
Go.Web browser services in accordance with EarthLink's license rights under the
License Agreement, without any further payment obligations of any kind from
EarthLink to GoAmerica.
d. The Parties agree that upon any termination of this Agreement (i)
by GoAmerica for convenience under Section 9.2(c) at any time prior to the
expiration of the initial two (2) year term of this Agreement or (ii) by
EarthLink in accordance with Section 9.2(a), 9.2(b) or 9.2(d), all of the
Browser Only Subscribers for which EarthLink has not paid a bounty shall become
exclusive customers of EarthLink for purposes of the Go.Web browser services in,
without any further payment obligations of any kind from EarthLink to GoAmerica.
e. In the event any Browser Only Subscribers become customers of
EarthLink under this Section 9.3, GoAmerica agrees to work with EarthLink to
support and to take any steps necessary to effectuate any necessary conversion
of the customer relationship from GoAmerica to EarthLink, including without
limitation, assigning any customer agreements to EarthLink.
10. GENERAL PROVISIONS.
10.1 Entire Agreement. This Agreement, any exhibits attached hereto and
each of the other Related Agreements, constitute the entire understanding and
agreement with respect to the subject matter hereof and thereof, and supersede
any and all prior understandings and agreements, whether oral or written,
between the parties relating to the subject matter hereof and thereof, all of
which are merged in this Agreement and the other Related Agreements. The
Agreement shall not be revised, amended, or in any way modified except in
writing executed by both parties.
10.2 Waivers. The waiver by any party of any of its rights or breaches of
the other party under this Agreement in a particular instance shall not be
construed as a waiver of the same or different rights or breaches in subsequent
instances. All remedies, rights, undertakings and obligations hereunder shall be
cumulative and none shall operate as a limitation of any other remedy, right,
undertaking or obligation thereof. No failure or delay by any party in
exercising any right, power or privilege hereunder (and no course of dealing
between or among any of the parties) shall operate as a waiver of any such
right, power or privilege.
13
10.3 Expenses. Each of the parties shall bear all costs, charges and
expenses incurred by such party in connection with this Agreement and the
consummation of the transactions contemplated herein, except as expressly
provided for in this Agreement.
10.4 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of GoAmerica and EarthLink and each of their respective
heirs, representatives, successors, and permitted assigns, in accordance with
the terms hereof. This Agreement shall not be assignable by GoAmerica without
the prior written consent of EarthLink. This Agreement shall be assignable by
EarthLink to any of its affiliates without the prior written consent of
GoAmerica.
10.5 Governing Law. The laws of Delaware shall govern this Agreement
without giving effect to applicable conflict of laws provisions. The federal and
state courts located in Atlanta, Georgia alone have jurisdiction over all
disputes brought by GoAmerica arising out of or related to this Agreement.
GoAmerica consents to the personal jurisdiction of such courts sitting in
Georgia with respect to such matters, and waives GoAmerica's rights to removal
or consent to removal. The federal and state courts located in Newark, New
Jersey alone have jurisdiction over all disputes brought by EarthLink arising
out of or related to this Agreement. EarthLink consents to the personal
jurisdiction of such courts sitting in New Jersey with respect to such matters,
and waives EarthLink's rights to removal or consent to removal. In the event any
litigation or other proceeding is brought by either party in connection with
this Agreement, the prevailing party in such litigation or other proceeding
shall be entitled to recover from the other party all costs, reasonable
attorneys' fees and other reasonable expenses incurred by such prevailing party
in such litigation.
10.6 Severability of Provisions. In the event that any provision of this
Agreement is found to be invalid or unenforceable pursuant to judicial decree or
decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms.
10.7 Notices. All notices or other communications hereunder shall be in
writing and shall be delivered by hand, facsimile or sent, postage prepaid, by
registered or certified mail or reputable overnight courier service and shall be
deemed given when so delivered by hand or facsimile, or, if mailed, five days
after mailing (one business day in the case of overnight courier) addressed to
the intended recipient as set forth below:
If to GoAmerica: Aaron Dobrinsky
Chairman and CEO
GoAmerica, Inc.
433 Hackensack Avenue
Hackensack, NJ 07601
Fax: 201-527-1772
with a copy to: GoAmerica, Inc.
ATTN: General Counsel
433 Hackensack Avenue
Hackensack, NJ 07601
Fax: 201-527-1081
14
If to EarthLink: Brent Cobb
Vice President
EarthLink, Inc.
1375 Peachtree Street
Atlanta, GA 30309
Fax: 404-287-4905
with copies to: EarthLink, Inc.
1375 Peachtree Street
Atlanta, GA 30309
Attn: Legal Department
Fax: 404-287-4905
Hunton & Williams
600 Peachtree Street, NE
Suite 4100
Atlanta, GA 30308
Attn: W. Tinley Anderson, III
Fax: 404-888-4190
10.8 No Third Party Benefits. EarthLink and GoAmerica acknowledge, agree
and intend that this Agreement was entered into solely for the respective
benefit of each of them and their respective successors and assigns and nothing
herein shall be construed as giving any person, firm, corporation or other
entity (including, without limitation on the foregoing, any customer), other
than the parties hereto and their respective successors and assigns, any right,
remedy or claim under or in respect of this Agreement or any provision hereof.
15
The Parties hereto have executed this Agreement as of the Effective Date.
EARTHLINK, INC. GOAMERICA, INC.
By: /s/Brent Cobb By: /s/Aaron Dobrinsky
------------------------------ ---------------------------
Print: Brent Cobb Print: Aaron Dobrinsky
le: Vice President Title: CEO
Date: September 25, 2002 Date: September 25, 2002
GOAMERICA COMMUNICATIONS CORP.
By: /s/Aaron Dobrinsky
---------------------------
Print: Aaron Dobrinsky
Title: CEO
Date: September 25, 2002
[Signature Page to EarthLink-GoAmerica Sales Agent Agreement]
16
EXHIBIT A
Payment Terms
I. Qualified Subscriber Bounty. EarthLink will pay GoAmerica the following
one-time bounty for each Qualified Subscriber (as defined in the Agreement):
- -----------------------------------------------------------------------------------------------
Device Network ARPU Bounty
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**} [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
[**] [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Note: Voice products will be addressed in an addendum.
II. Software Bounty. EarthLink will pay GoAmerica the following one-time
bounty for any software GoAmerica sells on behalf of EarthLink:
- -----------------------------------------------------------------------------
Software Bounty
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]/yr/server
- -----------------------------------------------------------------------------
[**] $[**]/10 pack
- -----------------------------------------------------------------------------
[**] $[**]/yr/10 pack
- -----------------------------------------------------------------------------
17
III. Non-Wireless Services Bounty. EarthLink will pay GoAmerica the following
one-time bounty for each Qualified Subscriber (as defined in the Agreement):
- ----------------------------------------------------------------------------------------------------------------------
EARTHLINK SERVICE PLAN MONTHLY FEE BOUNTY
- ----------------------------------------------------------------------------------------------------------------------
Dial-up Unlimited Dial-up Monthly $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
DSL EarthLink DSL $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz DSL 144 Kbps $[**] $[**]
IDSL
- ----------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz DSL 192 Kbps $[**] $[**]
SDSL
- ----------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz DSL 384 Kbps $[**] $[**]
SDSL
- ----------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz DSL 768 Kbps $[**] $[**]
SDSL
- ----------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz DSL 1.1 Mbps $[**] $[**]
SDSL
- ----------------------------------------------------------------------------------------------------------------------
DSL EarthLink $[**] $[**]
Biz DSL 1.5
Mbps SDSL
- ----------------------------------------------------------------------------------------------------------------------
Satellite Direcway Dish $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
Satellite DirecDuo Dish $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
Cable Time Warner $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
Web Hosting Startersite $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
Web Hosting Prosite $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
Web Hosting Premiumsite $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
Web Hosting Store $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
Web Hosting SuperStore $[**] $[**]
- ----------------------------------------------------------------------------------------------------------------------
Web Hosting SuperStore $[**] $[**]
Unlimited
- ----------------------------------------------------------------------------------------------------------------------
18
EXHIBIT B
EarthLink Services; EarthLink Standard Access Fees
I. EarthLink Services. The products and services of EarthLink for which
GoAmerica may market, promote and solicit sales are:
EarthLink Standard Access Fees(1)
- ---------------------------------------------------------------------------------------------------------------------------
EARTHLINK SERVICE PLAN MONTHLY FEE PROMOTIONAL INSTALLATION EQUIPMENT FEE TERMINATION FEE
PERIOD FEE
- ---------------------------------------------------------------------------------------------------------------------------
Dial-up Unlimited $[**] [**] [**] [**] [**]
Dial-up
Monthly
- ---------------------------------------------------------------------------------------------------------------------------
DSL EarthLink DSL $[**] [**] [**] [**] $[**]
- ---------------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz $[**] [**] $[**] $[**] $[**]
DSL 144 Kbps
IDSL
- ---------------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz $[**] [**] $[**] $[**] $[**]
DSL 192 Kbps
SDSL
- ---------------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz $[**] [**] $[**] $[**] $[**]
DSL 384 Kbps
SDSL
- ---------------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz $[**] [**] $[**] $[**] $[**]
DSL 768 Kbps
SDSL
- ---------------------------------------------------------------------------------------------------------------------------
DSL EarthLink Biz $[**] [**] $[**] $[**] $[**]
DSL 1.1 Mbps
SDSL
- ---------------------------------------------------------------------------------------------------------------------------
DSL EarthLink $[**] [**] $[**] $[**] $[**]
Biz DSL 1.5
Mbps SDSL
- ---------------------------------------------------------------------------------------------------------------------------
Satellite Direcway Dish $[**] [**] $[**] $[**] $[**]
- ---------------------------------------------------------------------------------------------------------------------------
Satellite DirecDuo Dish $[**] [**] $[**] $[**] $[**]
- ---------------------------------------------------------------------------------------------------------------------------
Cable Time Warner $[**] [**] [**] [**] [**]
- ---------------------------------------------------------------------------------------------------------------------------
- --------
(1) Prices and fees [**] listed above.
19
EarthLink Standard Web Hosting Fees(2)
- ----------------------------------------------------------------------------------------------------------------------------
EARTHLINK SERVICE PLAN MONTHLY FEE PROMOTIONAL SETUP EQUIPMENT FEE TERMINATION FEE
PERIOD FEE
- ----------------------------------------------------------------------------------------------------------------------------
Web Hosting Startersite $[**] [**] $[**] [**] [**]
- ----------------------------------------------------------------------------------------------------------------------------
Web Hosting Prosite $[**] [**] $[**] [**] [**]
- ----------------------------------------------------------------------------------------------------------------------------
Web Hosting Premiumsite $[**] [**] $[**] [**] [**]
- ----------------------------------------------------------------------------------------------------------------------------
Web Hosting Store(3) $[**] [**] $[**] [**] [**]
- ----------------------------------------------------------------------------------------------------------------------------
Web Hosting SuperStore $[**] [**] $[**] [**] [**]
- ----------------------------------------------------------------------------------------------------------------------------
Web Hosting SuperStore $[**] [**] $[**] [**] [**]
Unlimited
- ----------------------------------------------------------------------------------------------------------------------------
II. EarthLink Standard Access Fees. EarthLink's Standard Access Fees as of the
Effective Date are set forth in the following chart:
- --------------------------------------------------------------------------
Device Service Recurring Maintenance
fee
- --------------------------------------------------------------------------
[**] [**] $[**]
- --------------------------------------------------------------------------
[**] [**] $[**]
- --------------------------------------------------------------------------
[**] [**] $[**]
- --------------------------------------------------------------------------
[**] [**] $[**]
- --------------------------------------------------------------------------
[**] [**] $[**]
- --------------------------------------------------------------------------
[**] [**] $[**]
- --------------------------------------------------------------------------
[**] [**] $[**]
- --------------------------------------------------------------------------
Note: Voice pricing will be addressed in an addendum.
- --------
(2) Prices and fees [**] listed above.
(3) [**].
20
EXHIBIT C
EarthLink Payment Terms
I. Service Fees. EarthLink shall pay GoAmerica a monthly service fee for each
Qualified Subscriber according to the schedule below.
a. In accordance with Section 2.2.3 of the Acquisition Agreement, GoAmerica
shall transfer all current Browser Only Subscribers to EarthLink for purposes of
EarthLink providing wireless access, billing, customer support and certain
technical support. During the term of this Agreement, EarthLink shall pay the
monthly service fee set forth in the following schedule for any Browser Only
Subscribers who are transferred to EarthLink:
- -----------------------------------------------------------------------------------------------
Version Network ARPU Service Fee
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
b. During the term of this Agreement, EarthLink shall pay the monthly
service fee set forth in the following schedule applies for all Browser Only
Subscribers that GoAmerica acquires through its sales and marketing efforts with
EarthLink as the billing party:
- -----------------------------------------------------------------------------------------------
Version Network ARPU Service Fee
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
Go.Web [**] $[**] $[**]
- -----------------------------------------------------------------------------------------------
II. EarthLink Branded Browser. During the term of this Agreement EarthLink shall
pay GoAmerica a monthly service fee of [**]$[**] per user per month for an
EarthLink Branded Go.Web browser sold by EarthLink on all platforms irrespective
of EarthLink's charges to Subscribers. EarthLink will use commercially
reasonable efforts to work with GoAmerica regarding bundling of each Party's
products to maximize the value of each party's products in the marketplace.
21
EXHIBIT D
Marks
I. EarthLink Marks.
NOTE: THIS SECTION I OF EXHIBIT D MAY BE AMENDED FROM TIME TO TIME AS
REQUIRED BY EARTHLINK AND ALL SUCH AMENDMENTS WILL BE INCORPORATED HEREIN.
Trademarks, trade names, logos and other product and proprietary
identifiers.
EarthLink(R)
EarthLink 5.0(TM)
EarthLink DSL(TM)
EarthLink Biz DSL(TM)
EarthLink Personal Start Page (SM)
EarthLink TotalAccess2003 (TM)
EarthLink(R) is a registered trademark of EarthLink, Inc. EarthLink
5.0(TM) is a trademark of EarthLink, Inc.
EarthLink DSL(TM) is a trademark of EarthLink, Inc.
EarthLink Biz DSL(TM) is a trademark of EarthLink, Inc. EarthLink
Personal Start Page (SM) is a service mark of EarthLink, Inc.
EarthLink TotalAccess2003 (TM) is a trademark of EarthLink, Inc.
II. GoAmerica Marks.
NOTE: THIS SECTION II OF EXHIBIT D MAY BE AMENDED FROM TIME TO TIME AS
REQUIRED BY GOAMERICA AND ALL SUCH AMENDMENTS WILL BE INCORPORATED HEREIN.
GoAmerica(R) is a registered trademark of GoAmerica, Inc.
Go.Web(R) is a registered trademark of GoAmerica, Inc. Go.Web
OnPrem (SM) is a registered service mark of GoAmerica, Inc. Mobile
Office(R) is a registered trademark of GoAmerica, Inc.
Unregistered marks of GoAmerica, Inc. used in the U.S.:
MobileClips(TM)
QueueManager(TM)
Document Manager(TM)
Document Manager OnPrem(TM)
22
EXHIBIT E
EarthLink Fulfillment Services
GoAmerica shall pay the following fulfillment/shipping charges for sample
accounts and customer shipments requested by GoAmerica:
IT development services-one time fee
Open Orders systems setup....................................... $[**]
- ------------------------------------------------------------------------------------------------------------
Web based reporting setup ...................................... [**]
- ------------------------------------------------------------------------------------------------------------
Data transmission (Push / Pull /Activation File Development).... $[**]- $[**] est.
============================================================================================================
Project management/Implementation services- one time fee
Project design and management................................... $[**]
- ------------------------------------------------------------------------------------------------------------
Inventory receipt, storage and management - For Unique Go America units
Receipt of material into CNX, including standard inspection, entry into Open Orders and prepare for
stocking (single SKU's per skid only) ......................... $[**] per skid
- ------------------------------------------------------------------------------------------------------------
Receipt of material shipped with multiple SKU's ............... $[**] per box
- ------------------------------------------------------------------------------------------------------------
Scanning of barcode............................................. $[**] per unit
- ------------------------------------------------------------------------------------------------------------
Per receipt session ............................................ $**] minimum charge
- ------------------------------------------------------------------------------------------------------------
Once a year physical count...................................... $[**] per hour
- ------------------------------------------------------------------------------------------------------------
Storage of items in bulk skid positions ........................ $[**] per skid position
- ------------------------------------------------------------------------------------------------------------
Storage of items in caged storage .............................. $[**] per skid position
- ------------------------------------------------------------------------------------------------------------
Prepare and return to suppler, ORM., vendor..................... $[**] per hour
- ------------------------------------------------------------------------------------------------------------
Stock destruction............................................... $[**] per hour
- ------------------------------------------------------------------------------------------------------------
Miscellaneous standard warehouse labor charge................... $[**] per hour
============================================================================================================
"Flashing" of memory for modems
- ------------------------------------------------------------------------------------------------------------
Flashing of memory for Handspring modems (Unpack unit, place in cradle, install s/w (? min), pack unit,
apply new labels if needed). ................................... $[**] per hour
============================================================================================================
Note: Any additional kitting and assembly will be charged at the standard kitting and assembly fee noted
below.
============================================================================================================
Order fulfillment- Direct to Consumer
Order processing generate pick list and related label, assemble order,
and ship, excluding freight .................................... $[**] per order
- ------------------------------------------------------------------------------------------------------------
Pick, pack, and single outbound scan of serialized items ....... $[**] per unit
- ------------------------------------------------------------------------------------------------------------
23
Order fulfillment- Misc.
Authorize and process credit card payments ..................... $[**] per transaction
- ------------------------------------------------------------------------------------------------------------
Expedite order processing....................................... $[**] per order
- ------------------------------------------------------------------------------------------------------------
Return processing............................................... $[**] per return
- ------------------------------------------------------------------------------------------------------------
Additional item return processing............................... $[**] per item
- ------------------------------------------------------------------------------------------------------------
Exchange orders processed from returns not sent by CNX.......... $[**] per order
- ------------------------------------------------------------------------------------------------------------
Manual order entry.............................................. $[**] per order
- ------------------------------------------------------------------------------------------------------------
Creation of call tag............................................ $[**] per order
- ------------------------------------------------------------------------------------------------------------
Kitting and assembly............................................ $[**] per kit component
- ------------------------------------------------------------------------------------------------------------
Minimum charge per kitting/assembly session .................... $[**] per session
- ------------------------------------------------------------------------------------------------------------
Packing materials and supplies ................................. [**]%
- ------------------------------------------------------------------------------------------------------------
*Freight costs.................................................. [**]% Vendor Management Fee
- ------------------------------------------------------------------------------------------------------------
Fax handling (Inbound/outbound)................................. $[**] per page
============================================================================================================
Email notifications $[**] up to [**] per month
$[**] between [**] and [**] per month
$[**] over [**] per month
============================================================================================================
*Freight Cost will vary on fuel surcharges per UPS.
24
EXHIBIT F
One-Time Fees
One Time Fees. GoAmerica will pay EarthLink the following One Time Fees for any
hardware provided to GoAmerica by EarthLink.
- -----------------------------------------------------------------------------
Hardware GOAM Price
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]/yr/server
- -----------------------------------------------------------------------------
[**] $[**]/10 pack
- -----------------------------------------------------------------------------
[**] $[**]/yr/10 pack
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
[**] $[**]
- -----------------------------------------------------------------------------
25
EXHIBIT G
GoAmerica Services
I. GoAmerica Services/Bounties. The products and services of GoAmerica for which
EarthLink will market, promote and solicit sales and the bounties that GoAmerica
will pay EarthLink are set forth in the following chart:
------------------------------------------------------------------------------------------------------------
Product Retail Price Bounty
------------------------------------------------------------------------------------------------------------
|-
| Document Manager OnPrem
| Initial 20 User Pack License: $[**] $[**]
| - Consists of File Manager
| and Attachment ----------------------------------------------------------------
| Companion individual Additional Seats $[**] per seat
| components [**]: $[**] per seat
| [**]: $[**] per seat
| [**]: $[**] per seat
============================================================================================================
S
O Initial 20 User Pack License: $[**] $[**]
F Attachment Companion
T ----------------------------------------------------------------
W - Individual component of Additional Seats $[**] per seat
A Document Manager OnPrem [**]: $[**] per seat
R that can be sold separately [**]: $[**] per seat
E [**]: $[**] per seat
[**]+: $[**] per seat
| ============================================================================================================
|
| Initial 20 User Pack License: $[**] $[**]
| File Companion
| ----------------------------------------------------------------
| - Individual component of Additional Seats $[**] per seat
| Document Manager OnPrem that [**]: $[**] per seat
| can be sold separately [**]: $[**] per seat
| [**]: $[**] per seat
| [**]+: $[**] per seat
|- ============================================================================================================
A |-
S Attachment Reader Basic $[**] per user per month [**]
P S (Monthly hosted service)
E ------------------------------------------------------------------------------------------------------------
H R
O V Document Manager, a.k.a Mobile
S I Office Package A $[**] per user per month [**]
T |C
E |E (Monthly hosted service - includes
D | Attachment Reader Basic)
| ------------------------------------------------------------------------------------------------------------
|
| Mobile Office Package B $[**] per user per month [**]
|-
(Monthly hosted service)
------------------------------------------------------------------------------------------------------------
Mobile Office Package C $[**] per user per month [**]
(Monthly hosted service)
============================================================================================================
26