EXECUTION COPY
Exhibit 10.3
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
TECHNOLOGY DEVELOPMENT AGREEMENT
THIS TECHNOLOGY DEVELOPMENT AGREEMENT ("Agreement") is made and entered
into as of the 25th day of September, 2002 (the "Effective Date") by and between
EarthLink, Inc., a Delaware corporation ("EarthLink"), 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 may be referred to herein as
"Party" and together, the "Parties").
RECITALS
In connection with this Agreement and as elements of an overall strategic
relationship, the parties and GoAmerica's wholly-owned subsidiary GoAmerica
Communications Corp. will simultaneously enter into (i) a bilateral Sales Agent
Agreement, pursuant to which each party will serve as a sales agent for certain
of the products and services of the other party, (ii) an Acquisition Agreement,
pursuant to which EarthLink will purchase certain of GoAmerica's assets, (iii) a
License Agreement, pursuant to which GoAmerica will license to EarthLink certain
software and other technologies, 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 Sales Agent Agreement, the
Acquisition 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. SERVICES AND ACCEPTANCE
1.1 Services. GoAmerica shall perform various types of technical and
professional services ("Services") in accordance with the relevant Statement of
Work attached hereto, which is incorporated by reference. Each subsequent
Statement of Work will be sequentially numbered for ease of reference and is
hereby incorporated by reference. The Statements of Works will describe the
Services to be performed by GoAmerica, the dates for the performance of the
Services (as defined in the applicable Statement of Work), GoAmerica's
obligations and other mutually agreed upon requirements necessary for completion
of the Services, the work product to be delivered by GoAmerica, including but
not limited to, all software (including the Source
Code, object code and reasonable Documentation relating thereto), content,
designs, design documents and all other material and information, whether or not
copyrightable ("Deliverables"), and any other terms that apply to that specific
Statement of Work. In the event of a conflict between any Statement of Work and
this Agreement, the terms and conditions of this Agreement shall supersede the
terms and conditions of the Statement of Work.
1.2 Acceptance. Each Deliverable provided to EarthLink under this Agreement
shall be subject to Acceptance (as defined in the applicable Statement of Work)
by EarthLink. The parties shall label any Deliverables that EarthLink deems
material as a Critical Deliverable ("Critical Deliverable") in the applicable
Statement of Work. If EarthLink determines in its reasonable judgment that any
Deliverable is not Acceptable, then EarthLink shall issue a written report to
GoAmerica specifying the failure to perform or comply with the specifications or
requirements for the Deliverable set forth in the applicable Statement of Work.
If EarthLink chooses not to accept a Critical Deliverable, GoAmerica will supply
a corrected version of the Critical Deliverable to EarthLink within [**]
business days, or such other time as agreed by the Parties in writing if the
parties reasonably determine that the Critical Deliverable cannot be corrected
within such [**] business day period, after receipt from EarthLink of its report
of problems, non-compliance or deficiencies. If a Critical Deliverable shall
fail to achieve Acceptance within [**] business days, or such other period
agreed to by the parties in writing, after the date set for the initial delivery
thereof to EarthLink for Acceptance ("Acceptance Period") through no fault of
EarthLink, and EarthLink in the exercise of its reasonable judgment determines
that (a) such failure will have a material adverse impact on the performance of
the Critical Deliverable and performance of the Services, or (b) such failure
will have a material adverse impact on the value of the Critical Deliverable or
Services to EarthLink, EarthLink may declare any such failure to be a sufficient
basis for termination of this Agreement or the specific Statement of Work based
on performance pursuant to Section 11.2. Such termination shall be effective
immediately upon notice to GoAmerica, without the notices and cure periods
described in Section 11.2. The parties shall agree upon appropriate Acceptance
procedures for non-Critical Deliverable, in the applicable Statements of Work.
2. DEVELOPMENTS
2.1 Existing Materials.
The Parties shall retain ownership of their respective inventions,
patents, copyrights, trade secrets and other intellectual property rights that
were in existence prior to the Effective Date.
2.2 Deliverables.
a. Subject to any third party's rights and upon full payment for the
Services, Deliverables that are conceived, invented, developed, created or
reduced to practice as a part of the performance and delivery of the Services
pursuant to this Agreement by (a) GoAmerica, its consultants or the
subcontractors engaged by GoAmerica to provide the Services; or (b) by EarthLink
or its affiliates and contractors (whether conceived, invented, developed,
created or reduced to practice jointly or separately by the persons and entities
described in subsections (a) and (b) above), are and will be the sole and
exclusive property of EarthLink, unless otherwise
- 2 -
expressly specified in an applicable Statement of Work. Any Deliverables created
by GoAmerica, its consultants or the subcontractors engaged by GoAmerica to
provide Services are subject to the "Work for Hire" provisions contained in
Sections 101 and 201 of the United States Copyright Law, Title 17 of the United
States Code.
b. In consideration of EarthLink's payment to GoAmerica of amounts
specified in Statements of Work under this Agreement, and to the extent that
title to any such Deliverable may not, by operation of law, vest in EarthLink,
or such Deliverable may not be considered to be work made for hire, GoAmerica
hereby (i) irrevocably transfers and assigns to EarthLink in perpetuity all
worldwide right, title and interest in and to the patent rights, copyrights,
trade secrets and other proprietary rights (including, without limitation,
applications for registration thereof, and all priority rights therein under
applicable international conventions for the protection of such rights) in, and
ownership of, the Deliverables that GoAmerica may have, as and when such rights
arise. GoAmerica shall cooperate fully in (i) vesting in EarthLink the ownership
of the proprietary rights to the Deliverables, and (ii) assisting EarthLink in
obtaining patent, copyright or any other intellectual property rights in the
Deliverables and in maintaining and protecting EarthLink's proprietary rights,
including, without limitation, executing any documents which EarthLink
reasonably deems necessary for such purpose.
c. Notwithstanding the foregoing, the Deliverables may include data,
modules, components, designs, utilities, subsets, objects, program listings,
tools, models, methodologies, programs, extensions, systems, analysis
frameworks, leading or best practices and specifications owned or developed by
or licensed to GoAmerica prior to, or independently from, its engagement
hereunder ("GoAmerica Technical Elements") and GoAmerica retains all rights
thereto. Accordingly, to the extent that any GoAmerica Technical Elements are
integrated into any Deliverable, GoAmerica grants to EarthLink, an irrevocable,
perpetual, nonexclusive, worldwide, fully paid-up license for the business and
operations of EarthLink and its affiliates (i) to use, practice, execute,
reproduce, display, perform, operate and distribute the works, inventions,
Confidential Information, and other intellectual property owned by and licensed
to GoAmerica included as a part of the Deliverables and Services, and (ii) to
sublicense third parties to do any of the foregoing for EarthLink and its
affiliates. Additionally, GoAmerica shall grant to EarthLink a nonexclusive,
worldwide, royalty free, irrevocable, perpetual license to use, execute,
reproduce, display, perform, operate and distribute any invention, work,
process, method or work product that is not a Deliverable, or a portion thereof,
but that was either used by GoAmerica in the performance of the Services or in
the preparation of the Deliverables and that is necessary for EarthLink and its
affiliates to fully receive, use and derive the full benefit of the Services and
the Deliverables provided by GoAmerica hereunder.
d. Subject at all times to the restrictions contained herein and
excluding any EarthLink Technical Elements (as defined in Section 3.1 below),
EarthLink hereby grants to GoAmerica a perpetual, worldwide, nonexclusive, fully
paid-up, royalty free license to use, practice, execute, reproduce, display,
perform, operate, distribute, modify, develop, personalize and create Derivative
Works from the Deliverables for the business and operations of GoAmerica and its
affiliates. Except as expressly set forth in Section 3.1 of this Agreement or an
applicable Statement of Work, GoAmerica shall not receive any rights, title or
interest of any kind in and to any EarthLink Technical Elements. In the event
that GoAmerica fails to pay agreed upon license fees or breaches any license
rights to the EarthLink Technical Elements
- 3 -
granted in any Statement of Work, EarthLink may immediately terminate the
license to the EarthLink Technical Elements granted to GoAmerica in such
Statement of Work and GoAmerica shall immediately cease using, in any manner,
the applicable EarthLink Technical Elements.
e. Notwithstanding the foregoing, GoAmerica shall retain all
intellectual property rights in all ideas, concepts, know-how, and techniques
that are inherent in the Deliverables, are not fixed in any tangible medium of
expression, and remain as the residuum of experience in the minds of the
GoAmerica employees to whom they are exposed.
2.3 Joint Developments.
a. Notwithstanding the foregoing, EarthLink and GoAmerica may agree in
an applicable Statement of Work to create jointly owned developments.
Deliverables shall not be considered joint developments unless the parties
expressly agree in writing in an applicable Statement of Work. Deliverables
arising out of such joint efforts shall be referred to as "Joint Developments",
provided, however, that any EarthLink Technical Elements or GoAmerica Technical
Elements incorporated into any Joint Developments shall remain the property of
the respective original owner and shall not be subsumed into the Joint
Developments without express Documentation to that effect signed by the Party of
original ownership. Subject to the immediately preceding sentence, EarthLink and
GoAmerica will jointly own an undivided one-half interest in the whole of all
intellectual property in the Joint Developments; as to all Joint Developments,
the Parties shall meet and discuss matters relating to obtaining legal
protection for such Joint Developments.
b. If the Parties determine to file for patent protection in any
country, such application shall be made on behalf of both Parties and name each
Party as joint and equal owner of the Joint Developments and any patent issuing
therefrom. All expenses incurred pursuant to the filing, prosecution, issuance
and maintenance of such applications shall be borne by the Parties equally.
c. With respect to patent applications on the Joint Developments,
neither Party shall permit any such application to become abandoned without
giving the other Party the opportunity to assume the prosecution of such patent
application as soon as possible, which shall not be less than sixty (60) days
prior to the date on which it will become abandoned. Each Party agrees to
provide the other with timely copies of all official papers and correspondence
related to the prosecution of any such jointly owned patent application.
d. If, after the Parties meet and discuss matters relating to
obtaining legal protection for Joint Developments, either Party does not want to
pursue filing a patent application on the Joint Developments in any country, the
Party desiring to pursue patent filing (the "Filing Party") may independently
pursue patent protection of the Joint Developments in such country on behalf of
the Filing Party only, at such Filing Party's sole expense. In any such case,
the Party not pursuing the patent filing agrees to execute all such documents as
may be necessary or reasonably requested to enable the Filing Party to take such
action. The Filing Party shall be the sole owner of any and all resulting
patents with respect to such country(ies) and shall be entitled to all revenues
derived by the Filing Party relating to the issued patent; provided however, the
Filing Party shall in each instance grant, subject to the terms of this
- 4 -
Agreement, an irrevocable, perpetual, nonexclusive, worldwide, fully paid-up
license to use, practice, execute, reproduce, display, perform, operate,
distribute, modify, adapt and create Derivative Works from, such patent.
3. LICENSES DURING THE TERM
3.1 Licenses.
Notwithstanding the foregoing, the Deliverables may include data,
modules, components, designs, utilities, subsets, objects, program listings,
tools, models, methodologies, programs, extensions, systems, analysis
frameworks, leading or best practices and specifications owned or developed by
or licensed to EarthLink prior to, or independently from, GoAmerica's engagement
hereunder ("EarthLink Technical Elements") and EarthLink retains all rights
thereto. During the term hereof, EarthLink grants to GoAmerica a personal,
nonexclusive worldwide nontransferable right and license to use the EarthLink
Technical Elements for the sole purpose of performing its Services under this
Agreement.
3.2 Restrictions.
a. Except in the event of termination of this Agreement due to an
uncured material breach by EarthLink, for a period of [**] years after the
effective date of termination of this Agreement, GoAmerica shall not directly or
indirectly use, distribute, sell, license or otherwise transfer the Deliverables
to [**], which are not in substantially the same or a similar business as [**],
shall not be considered affiliates or subsidiaries of [**] for purposes of this
Section 3.2).
b. Except in the event (i) of any termination of this Agreement by
EarthLink (provided such termination may not be caused by the termination of any
of the Related Agreements by EarthLink for convenience), (ii) termination of any
of the Related Agreements by EarthLink due to an uncured material breach of
GoAmerica, or (iii) in the event GoAmerica terminates the Sales Agent Agreement
for convenience, for a period of [**] years after the effective date of
termination of this Agreement, EarthLink shall not directly or indirectly use,
distribute, sell, license or otherwise transfer the Deliverables to [**] Neither
Party shall, and each Party shall not permit or cause any third party to, alter,
modify, reverse engineer, disassemble, decompile or otherwise decode by any
method any of the other Party's Technical Elements, if any, in whole or in part
for any purpose whatsoever.
4. TRAINING AND SUPPORT
4.1 GoAmerica will be responsible for providing maintenance and will
endeavor to correct Errors reported in writing by EarthLink to GoAmerica within
a timely fashion relative to the severity of the impact of the Errors reported
upon the functionality of the Deliverables as provided in Section 4.2 below. For
purposes of this Agreement, "Error" means a programming error, logic error, or
"bug" within a Deliverable, or other defect in a Deliverable that causes it to
operate incorrectly or otherwise not in conformity with the associated
Documentation and the Statement of Work respectively. GoAmerica will be
responsible for correcting such Errors by
- 5 -
issuing either: (a) correction information, such as a correction or corrected
Documentation, if the Error is reasonably classified as an Error in the
Documentation; (b) Maintenance Modifications, if the Error resides in the
operation of the code of the Deliverable itself; or (c) if Maintenance
Modifications are to be provided but are not readily available or will not be
issued within a timely fashion after receipt of the Error report, a temporary
fix or work around, until appropriate Maintenance Modifications can be provided.
For purposes of this Agreement, "Maintenance Modification" means a revision or
modification to a Deliverable which provides Error correction or which otherwise
remedies nonconformity of the Deliverable from its associated Documentation and
the Statement of Work, together with the Documentation related thereto. When
reporting Errors and requesting Error correction, EarthLink shall specify the
severity of impact of the reported Errors upon the functionality of the
Deliverable and shall in each such case provide Documentation of a sufficient
technical level so that the Error can be reproduced and verified by GoAmerica,
and so that GoAmerica can estimate the time and resources required to resolve
the Error. If GoAmerica releases to EarthLink a new version of a Deliverable,
Maintenance Modification or an enhancement thereto, GoAmerica agrees that such
release, Maintenance Modification or enhancement will not (i) require EarthLink
to materially alter its operating systems software or hardware platform without
prior written approval from EarthLink or (ii) break former versions of client
software and/or other dependent systems.
4.2 GoAmerica shall be obligated to perform the maintenance and Error
correction functions for a period of [**] days from the date of Acceptance [**]
to **] EarthLink. Thereafter, GoAmerica agrees to provide support and
maintenance and Error correction as requested by EarthLink at the rates set
forth on Exhibit D.
4.3 At a mutually agreed upon time and location, GoAmerica shall provide
EarthLink's staff with one technical training session no more often than every
six (6) months with respect to a particular Statement of Work with respect to
the Deliverables at no charge other than EarthLink's payment of or reimbursement
for all reasonable travel and out-of-pocket expenses incurred by GoAmerica's
staff in connection with the provision of such session. Thereafter, from time to
time during the Term, at EarthLink's request, GoAmerica shall provide additional
technical training with respect to the Deliverables at the fees identified in
the relevant Statement of Work.
4.4 Correction of errors shall be furnished by GoAmerica in the form and
media reasonably selected by EarthLink including corrections in the form of
Documentation and/or such correction as shall remedy such errors so that the
Deliverable is functional substantially in accordance with its Specifications.
5. ESCROW
a. EarthLink is hereby granted a present right of access to and
possession of the Source Code for the GoAmerica Technical Elements subject to
and under the terms and conditions set forth in this Section 5. On the Effective
Date, GoAmerica will enter into an escrow agreement with DSI Technology Escrow
Services (the "Escrow Agreement") in the form attached hereto as Exhibit B. The
terms and conditions of such escrow agreement shall be consistent with the terms
and conditions of this Agreement. Within one (1) business day following the
Effective Date, GoAmerica shall deposit the Escrow Materials (as defined below)
- 6 -
with the escrow agent. Upon subsequent Acceptance of the Deliverables to
EarthLink, in each instance, GoAmerica will immediately deposit with such escrow
agent, the Escrow Materials. The parties shall share the escrow costs equally.
For purposes herein, the "Escrow Materials" mean the entire computer source
code, in human readable format, corresponding to the Deliverables (including any
GoAmerica Technical Elements incorporated therein), including all updates and
enhancements thereto, Documentation and all instructions sufficient to allow a
skilled programmer to modify, maintain and compile the Source Code in order to
allow EarthLink to use the Escrow Material for its use and enjoyment of the
Deliverables. EarthLink shall be a beneficiary under the escrow agreement. In
the event of any Release Conditions set forth in the Escrow Agreement, the
Escrow Materials shall be released to EarthLink in accordance with the terms of
the Escrow Agreement and any Source Code to the Deliverables or GoAmerica
Technical Elements not in escrow shall be immediately delivered to EarthLink by
GoAmerica.
b. In addition to its other license rights hereunder, EarthLink also
has a present irrevocable, perpetual, nonexclusive, worldwide, fully paid-up
license to practice, operate, use, modify and create Derivative Works (as
defined below) from the Source Code to the GoAmerica Technical Elements, which
license may be enjoyed solely upon the occurrence of a Release Condition (as
defined in the Escrow Agreement), for the sole purpose of creating, developing
and maintaining the Deliverables (whether delivered by GoAmerica or not) and
supporting its use of the Deliverables solely for and in the operations of
EarthLink and for use by EarthLink's end users, in accordance with this
Agreement; provided however, EarthLink may not use the Source Code to the
GoAmerica Technical Elements for purposes of creating or offering (i) server
software products that need to be installed at a customer's location, or (ii)
hosted services that provide encryption, corporate email or documentation
services for handheld wireless devices. "Derivative Work" has the meaning
ascribed to it under the United States Copyright Law, Title 17 U.S.C. Sec. 101
et. seq., as the same may be amended from time to time. In the event of a
Release Condition the escrow agent shall deliver the Escrow Materials to
EarthLink upon notification by EarthLink of a Release Condition and escrow
agent's confirmation thereof with GoAmerica. In addition, for the purpose of
exercising the rights granted to EarthLink in this Agreement, and subject to the
limitations and restrictions set forth herein EarthLink shall have the right to
(i) authorize its affiliates or (ii) retain third parties to perform any
service, function, responsibility or task necessary for EarthLink or the
EarthLink end users to have the benefit of the Deliverables in accordance with
the terms of this Agreement.
c. EarthLink agrees to restrict access to the Source Code to the
GoAmerica Technical Elements to those employees of EarthLink, its affiliates and
third parties acting on their behalf who are directly involved, subject to the
restrictions set forth herein, with development, maintenance, operation or
support of the Source Code for the GoAmerica Technical Elements and who are
legally bound to maintain the proprietary and confidential nature of such
materials under a written agreement.
6. PAYMENT
6.1 Fees and Expenses. EarthLink shall pre-pay a payment of [**] Dollars
($[**]) (the "First Payment") to GoAmerica, on the date that GoAmerica delivers
the Escrow Materials to the escrow agent in accordance with the Escrow
Agreement, in consideration of the work to be
- 7 -
performed by GoAmerica pursuant to applicable Statements of Work. Upon the
completion of the Services or Deliverable to be performed in consideration for
the First Payment, EarthLink agrees to purchase at least [**] Dollars ($[**]) of
additional Services from GoAmerica payable upon Acceptance of the Deliverables
or completion of Services in accordance with the applicable Statements of Work.
Thereafter, EarthLink shall pay GoAmerica on a monthly basis, any other amounts
due pursuant to the applicable Statement(s) of Work.
6.2 Payment.
a. EarthLink shall pay the Fees as described in each Statement of
Work.
b. Following GoAmerica's provision of all of the Services related to
the prepayment described in Section 6.1, GoAmerica shall have the right to
increase reasonably the fees specified in any Statement of Work at any time
during the Term upon [**] days prior written notice to EarthLink if any
Statement of Work extends substantially beyond the originally scheduled end date
other than due to GoAmerica's failure to perform diligently.
c. Except as otherwise provided herein, EarthLink shall pay to
GoAmerica fees for any services ordered by EarthLink at the then-current rates.
EarthLink shall also reimburse GoAmerica for reasonable out-of-pocket expenses
incurred by GoAmerica in connection with providing such services provided such
expenses have been pre-approved by EarthLink in writing. Except as provided
otherwise in this Agreement, each party shall bear its own expenses and costs of
performing under this Agreement.
d. Amounts to be paid by EarthLink to GoAmerica shall be payable on
the date or event specified in this Agreement or any Statement of Work, or if
not specified, [**] days after date of invoice from GoAmerica.
e. The fees listed in this Agreement do not include taxes. GoAmerica
is responsible to any pay sales, use, property, value-added, or other federal,
state or local taxes based on the licenses granted under this Agreement.
EarthLink is responsible to pay sales, use, property, value-added or other
federal, state or local taxes on the sublicenses permitted to be granted by
EarthLink hereunder. This section shall not apply to taxes based on either
Party's income.
6.3 Right to Offset. 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 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.
7. THIRD PARTY MATERIALS/MARKS
a. Neither Party shall incorporate any third party products,
materials, or intellectual property into the Deliverables without first
obtaining the other Party's prior written
- 8 -
consent. If any such third party products, materials, or intellectual property
are incorporated into the Deliverables, the responsible Party shall procure a
license and the legal right to such third party products, materials, or
intellectual property, as set forth in this Agreement.
b. All GoAmerica Technical Elements and EarthLink Technical Elements
incorporated into Deliverables shall be marked with GoAmerica's and EarthLink's
respective copyright, trademark and confidentiality notice(s) as originally
included therein, and any such additional other notices, proprietary legends or
restrictions as GoAmerica or EarthLink may require. GoAmerica acknowledges
EarthLink's full and exclusive ownership, right, title and interest in and to,
EarthLink's trademarks, and GoAmerica agrees that it will not do anything
inconsistent with such ownership. EarthLink acknowledges GoAmerica's full and
exclusive ownership, right, title and interest in and to, GoAmerica's
trademarks, and EarthLink agrees that it will not do anything inconsistent with
such ownership.
c. EarthLink will prepare its own sales materials. Except as allowed
hereunder, the use of each Party's marks is subject to prior review and written
approval by the owner of such marks.
8. CONFIDENTIALITY
8.1 Definition. The term "Confidential Information" shall mean any and all
information or proprietary materials (in every form and media) not generally
known in the relevant trade or industry and which has been or is hereafter
disclosed, or information designated as confidential at the time of disclosure,
or summarized in writing as confidential promptly after disclosure or made
available by either Party (the "disclosing Party") to the other (the "receiving
Party") in connection with the efforts contemplated hereunder and which may
reasonably be understood as confidential, including (i) all trade secrets, (ii)
existing or contemplated products, services, designs, technology, processes,
technical data, engineering, techniques, methodologies and concepts and any
information related thereto, and (iii) information relating to business plans,
sales or marketing methods and customer lists or requirements.
8.2 Confidential Information. The receiving Party shall disclose the
Disclosing Party's Confidential Information only to persons within the receiving
Party (including its attorneys and auditors) having the need to know the
Confidential Information for the purposes of this Agreement. The receiving Party
shall treat Confidential Information as it does its own proprietary and
confidential information of a similar nature, and, in any event, with not less
than reasonable care. Upon the disclosing Party's written request, the receiving
Party shall return or certify the destruction of all Confidential Information,
and shall continue for three (3) years from the date of return or destruction of
such information to hold such Confidential Information secret, provided that
Confidential Information related to trade secrets shall remain confidential
indefinitely.
8.3 Exceptions. The obligations of either Party under this Section 8 will
not apply to information that the receiving Party can demonstrate (i) was in its
possession at the time of disclosure and without restriction as to
confidentiality, (ii) at the time of disclosure is generally available to the
public or after disclosure becomes generally available to the public through no
- 9 -
breach of this Agreement or other wrongful act by the receiving Party, (iii) has
been received from a third party without restriction on disclosure and without
breach of this Agreement or other wrongful act by the receiving Party, (iv) is
independently developed by the receiving Party without any reference to the
Confidential Information of the Disclosing Party, or (v) is required to be
disclosed by order of a court of competent jurisdiction or regulatory authority,
provided that the receiving Party shall furnish prompt written notice of such
required disclosure and reasonably cooperate with the disclosing Party, at the
disclosing Party's cost and expense, in any effort made by the disclosing Party
to seek a protective order or other appropriate protection of its Confidential
Information.
8.4 Injunctive Relief. Failure on the part of receiving Party to abide by
this Section 8 shall cause disclosing Party irreparable harm for which damages,
although available, will not be an adequate remedy at law. Accordingly,
disclosing Party has the right to seek an injunction to prevent any further
violations of this Section 8 and recover court costs and reasonable attorney
fees incurred in its enforcement of this Section 8.
9. REPRESENTATIONS AND WARRANTIES
9.1 Warranties For The Services. GoAmerica makes the following
representations, warranties and covenants to EarthLink regarding the Services:
a. Performance. GoAmerica shall perform Services in accordance with
this Agreement and applicable Statement of Work in a timely and good and
workmanlike manner using a level of care and skill that is consistent with
customary industry standards.
b. Non-Infringement. GoAmerica's performance of Services hereunder,
nor any Deliverables, GoAmerica Technical Elements or third party materials
provided by GoAmerica, nor either Party's authorized use thereof, shall violate
or infringe upon any third party's intellectual property.
c. Defects. For a period of ninety (90) days after the earlier of (i)
delivery by GoAmerica or (ii) acceptance by EarthLink pursuant to Section 1.2
above, the Deliverables shall be free from defects in design, material and
workmanship and from programming and other errors and shall substantially
conform to the Specifications. GoAmerica shall repair the Deliverables in
accordance with the Error Correction procedures set forth in Exhibit D.
10. INDEMNIFICATION
10.1 Non Infringement. Each Party (the "Indemnifying Party") shall
indemnify, defend and hold harmless the other Party (the "Indemnified Party")
and its officers, directors, employees, affiliates and agents from and against
all liability, damages, loss, costs and expenses (including but not limited to
reasonable attorneys' fees and expenses) arising out of or in connection with
any act or omission of the Indemnifying Party as to any claim, suit, action or
proceeding based upon or arising out of the alleged or actual infringement or
misappropriation of the EarthLink Technical Elements or GoAmerica Technical
Elements, Deliverables, or any other intellectual property provided by such
Party hereunder; provided the Indemnifying Party shall not be liable under this
provision to the extent such claim of infringement or misappropriation was
caused by the unauthorized use of the Indemnifying Party's intellectual property
and would
- 10 -
not have occurred without such unauthorized use. Each Indemnifying Party shall
further indemnify, defend and hold harmless the Indemnified Party and its
officers, directors, employees and agents from and against all liability,
damages, loss, costs and expenses (including but not limited to reasonable
attorneys' fees and expenses) arising out of or in connection with any claim,
suit, action or proceeding based upon or arising out of the alleged or actual
infringement or misappropriation with respect to its contribution to the
Deliverables.
10.2 Procedures. The Indemnified Party shall (i) notify the Indemnifying
Party of any matters in respect of which the indemnity may apply and of which
the Indemnified Party has knowledge; (ii) give the Indemnifying Party full
opportunity to control the response thereto and the defense thereof, including
any agreement relating to the settlement thereof, provided that the Indemnified
Party shall not settle any such claim or action without the prior written
consent of the Indemnified Party; and (iii) reasonably cooperate with the
Indemnified Party, at its cost and expense in the defense or settlement thereof.
The Indemnified Party may participate, at its own expense, in such defense and
in any settlement discussions directly or through counsel of its choice.
11. TERM AND TERMINATION
11.1 Term. This Agreement shall commence on the Effective Date and shall
continue in effect unless earlier terminated as described herein. Upon
termination of this Agreement, GoAmerica shall immediately deliver to EarthLink
any Deliverables, whether complete or not, and any related Documentation and
EarthLink shall immediately remit payment for any fees owed to GoAmerica. Upon
any termination of any Statement of Work GoAmerica shall immediately deliver to
EarthLink any Deliverables covered by such Statement of Work, whether complete
or not, and any related Documentation and EarthLink shall immediately remit
payment for any fees owed to GoAmerica under such Statement of Work.
11.2 Termination. Either Party shall have the right to terminate this
Agreement, immediately in the event of (i) a material breach or default of any
provision of this Agreement or any Statement of Work that provides for Critical
Deliverables and the failure by the breaching Party to cure such breach within
ten (10) days, or such other mutually agreed upon period, of receipt of written
notice of same from the aggrieved Party; (ii) a Party files in any court
pursuant to any statute, a petition in bankruptcy or insolvency and such
petition is not dismissed within thirty (30) days after the filing thereof, or
for reorganization in bankruptcy or for an arrangement for the appointment of a
receiver or trustee of that Party or of its assets; (iii) a Party is served with
an involuntary petition against it, filed in any insolvency proceeding, and such
petition is not dismissed within thirty (30) days after the filing thereof; (iv)
a Party proposes to be a Party to any dissolution; or (v) a Party makes an
assignment for the benefit of creditors. In the event of an uncured material
breach related to a Non-Critical Deliverable or payments related thereto and the
failure by the breaching Party to cure such breach within thirty (30) days of
receipt of written notice of same from the aggrieved Party, the non-breaching
Party may terminate the applicable Statement of Work only. In addition,
EarthLink shall have the right to terminate this Agreement (i) without cause for
convenience upon one hundred eighty (180) days written notice and (ii)
immediately upon written notice upon the termination of any of the Related
Agreements. This Agreement shall terminate automatically and immediately upon
(i) the termination of the Acquisition Agreement or (ii) the occurrence of a
Release Condition.
- 11 -
11.3 Effects of Expiration or Termination. Upon the termination of this
Agreement, all rights and obligations of the parties under this Agreement shall
terminate, except the rights and obligations under Sections 2, 3, 5, 6, 8, 10,
11.3 and 12 herein shall survive expiration or termination of the Agreement.
Upon the termination of this Agreement, EarthLink shall pay any outstanding
amounts owed to GoAmerica, subject to any offset as applicable, and GoAmerica
shall (i) deliver all Deliverables to EarthLink, whether completed or not and
(ii) refund any amounts that were prepaid by EarthLink but not earned by
GoAmerica hereunder. The termination of this Agreement by EarthLink without
cause for convenience shall not give EarthLink the right to terminate the other
Related Agreements or give rise to a Release Condition. The Parties agree that
any termination of this Agreement due to (i) an uncured material breach of this
Agreement or (ii) the termination of a Related Agreement due to an uncured
material breach of such Related Agreement, shall be treated as a failure of
GoAmerica's obligations under this Agreement for purposes of the Escrow
Agreement.
12. GENERAL PROVISIONS
12.1 Force Majeure. In the event that either Party is unable to perform any
of its obligations under this Agreement or any applicable Statement of Work
because of any event beyond the control of such Party including, but not limited
to, natural disaster, acts of God, wars or acts of terrorism, actions or decrees
of governmental bodies or failure of communications lines or networks (a "Force
Majeure Event"), the Party who cannot perform its obligations shall promptly
give written notice to the other Party and shall use its best commercially
reasonable efforts to resume performance. Upon receipt of such notice, all
obligations under this Agreement and any applicable Statement of Work shall be
immediately suspended for the duration of such Force Majeure Event.
12.2 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
- 12 -
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
12.3 Waiver. 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.
12.4 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.
12.5 Governing Law and Forum. 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.
- 13 -
12.6 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.
12.7 Entire Agreement. This Agreement, the Exhibits, any Statement of Works
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.
12.8 Bankruptcy. All rights and licenses granted hereunder or pursuant
hereto are, and shall be deemed to be, for purposes of Section 365(n) of the
United States Bankruptcy Code, licenses to rights of "intellectual property," as
defined thereunder. Notwithstanding any provision contained herein to the
contrary, if the licensor of such rights is under any proceeding under the
United States Bankruptcy Code and the trustee in bankruptcy of such party, or
such party, as a debtor in possession, rightfully elects to reject this
Agreement, the licensed party may, pursuant to Sections 365(n)(1) and 365(n)(2)
of the United States Bankruptcy Code, retain any and all of the rights licensed
to it hereunder, to the maximum extent permitted by law.
12.9 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each Party.
12.10 Headings. Section headings contained in this Agreement and any
attachments are inserted for convenience or reference only, shall not be deemed
to be a part of this Agreement or any Statement of Work for any other purpose,
and shall not in any way define or affect the meaning, construction or scope of
any of the provisions herein.
12.11 Counterparts. This Agreement and any attachment may be executed in
two counterparts, each of which shall be deemed to be an original, and both of
which, when taken together, shall constitute one and the same instrument.
12.12 Independent Contractors. The relationship of the Parties hereunder
shall be that of independent contractors. Nothing herein shall be construed to
constitute a partnership between or joint venture of the Parties, nor shall
either Party be deemed the agent of the other or have the right to bind the
other in any way without the prior written consent of the other.
12.13 Construction. The Parties have jointly participated in the
negotiating and drafting of this Agreement. In the event of an ambiguity or
question of intent or interpretation with respect to any provision hereof, this
Agreement (and any applicable or relevant provision(s)) shall be construed as if
drafted jointly by the Parties, and no presumption or burden of proof shall
arise favoring or disfavoring any one Party by virtue of the authorship of any
of the provisions of this Agreement.
- 14 -
12.14 Marks. Neither party shall use the other Party's trademarks, trade
names, or trade dress (including in advertising) other than for purposes
specifically authorized in writing by the other Party. Neither Party will
represent directly or indirectly that any of their products, services or
organizations are products, services, or organizations of the other Party or any
of the other Party's affiliates, nor that any of their services are made in
accordance with or utilize any information of the other Party or any of its
affiliates. Neither Party shall claim any ownership interest or any other rights
in any of the other Party's marks or logos and all benefits of use shall be for
the benefit of the Party owning such marks or logos. Upon termination of this
Agreement, any and all rights or privileges granted by one Party to the other
Party to use any of its marks or logos shall immediately expire, and each Party
shall immediately discontinue the use of the other Party's marks and logos
except as may otherwise be agreed.
12.15 Publicity. Neither party may issue a press release of any kind
regarding the Parties relationship established hereunder with out the prior
written approval of the other party. Notwithstanding the foregoing, each Party
agrees to work with the other Party to prepare press releases to ensure that
each Party is able meet any reporting requirements required by law.
IN WITNESS WHEREOF, authorized officers of the Parties hereto have executed
this Agreement as of the Effective Date.
EarthLink, Inc.
By: /s/Brent Cobb
------------------------------------
Brent Cobb, Vice President
GoAmerica, Inc.
By: /s/Aaron Dobrinsky
-------------------------------------
Name: Aaron Dobrinsky
-----------------------------------
Title: CEO
----------------------------------
GoAmerica Communications Corporation
By: /s/Aaron Dobrinsky
-------------------------------------
Name: Aaron Dobrinsky
----------------------------------
Title: CEO
----------------------------------
- 15 -
EXECUTION COPY
Exhibit A
Form Statement of Work
STATEMENT OF WORK NO. ___TO THE TECHNOLOGY DEVELOPMENT AGREEMENT
------------------------------------------------------------------
This Statement of Work ___, dated as of __________ __, 2002 ("Statement of
Work"), is issued pursuant to, and incorporates herein by reference, the
Technology Development Agreement, dated as of September 25, 2002 ("Agreement"),
by and between EarthLink and GoAmerica. Any term not otherwise defined herein
shall have the meaning ascribed to it in the Agreement.
Deliverables:
Critical/Non-Critical: The Deliverables provided under this Statement of Work
shall be considered [Critical/Non-Critical] under the Agreement.
GoAmerica Technical Elements:
EarthLink Technical Elements:
Subject at all times to the restrictions contained herein and in the Agreement,
EarthLink hereby grants to GoAmerica a perpetual, worldwide, nonexclusive, fully
paid-up, royalty free license to use, modify, and create derivative works from
the following EarthLink Technical Elements solely as necessary for GoAmerica to
support the Deliverables licensed to GoAmerica under the Agreement:
[List the EarthLink Technical Elements for which GoAmerica is receiving a
license.]
GoAmerica shall not receive any rights to the following EarthLink Technical
Elements:
[List the EarthLink Technical Elements for which GoAmerica is not receiving
license rights.]
Description of Services:
Delivery Schedule:
Acceptance Procedures for Non-Critical Deliverables:
Commencement Date:
B-1
Anticipated Completion Date for Deliverables:
Fees:
Third Party Materials To Be Incorporated Into the Deliverables:
Specifications:
EARTHLINK, INC. GOAMERICA, INC.
By: By:
------------------------------ ---------------------------------
Name: Brent Cobb Name:
----------------------------------
Title: Vice President Title:
-----------------------------
Date:_____________________________ Date:_____________________________
- 2 -
Exhibit B
Escrow Agreement
[Filed as Exhibit C to Exhibit 10.4]
- 3 -
Exhibit C
Definitions
Documentation. "Documentation" means the functional and design specifications,
the programmer and user manuals, programmer and user guides, instructions and
other such programmer and end user operating Documentation (including on-line
help files), each for a specified software program and in electronic/diskette
and human readable/hard copy formats.
Enhancement. "Enhancement" to any GoAmerica Technical Element means a revision
or modification thereto which is intended to improve such GoAmerica Technical
Element's efficiency or to incorporate significant additional or alternative
functionality. Enhancements are evidenced by a version number (e.g. "X.O")
versus a point release (e.g. "O.X") in accordance with industry practices.
Enhancement Release. "Enhancement Release" means, with respect to any GoAmerica
Technical Elements, a new version or release thereof in object code and Source
Code versions which incorporates Enhancements not found in such GoAmerica
Technical Elements' then-current version, together with any Maintenance
Modifications associated therewith, with the Documentation related thereto (all
in electronic/diskette and human readable/hard copy formats).
Error. "Error" means a programming error, logic error or "bug" within a
Deliverable, GoAmerica Technical Element or Enhancement Release, or other defect
in a Deliverable or GoAmerica Technical Element or Enhancement Release that
causes it to operate incorrectly or otherwise not in conformity with the
associated Documentation.
Error Correction. "Error Correction" with respect to a Deliverable, GoAmerica
Technical Element or Enhancement Release means that it is made to conform to its
Documentation, respectively, and that any reported Error is properly remedied.
Maintenance Services. "Maintenance Services" means those support and maintenance
services described in Exhibit D.
Maintenance Modification. "Maintenance Modification" to an Enhancement Release
means a revision or modification thereto which provides Error Correction or
which otherwise remedies nonconformities of the Enhancement Releases from its
associated Documentation, together with the Documentation related thereto.
Source Code. "Source Code" means the representation of a Deliverable (including,
without limitation, any GoAmerica Technical Elements actually or contemplated to
be incorporated therein or otherwise necessary for the creation or full use of
the Deliverable) and an Enhancement Release in the form amenable to human
understanding, as written in a higher level computer programming language,
together with all comments included therein and other programmer documentation
(including and such as flow charts, pseudocode or logic diagrams) therefor.
- 4 -
Updates. "Updates" means all general release bug fixes, updates, Maintenance
Modifications, Enhancements and upgrades to the GoAmerica Technical Elements and
Documentation however described or denominated, including compliance updates.
- 5 -
EXECUTION COPY
Exhibit D
Description of Maintenance Services
A. Software Maintenance, Severity and Error Correction. GoAmerica shall provide
support and maintenance and correct Errors reported in writing by EarthLink
within the Correction Period applicable to each severity level set forth below.
GoAmerica shall be responsible for correcting such Errors by issuing either: (a)
correction information, such as correction or corrected Documentation, if the
Error is reasonably classified as an Error in the Documentation; (b) Maintenance
Modifications, if the Error resides in the operation of the code of the
Enhancement Release itself; or (c) if Maintenance Modifications are to be
provided but are not readily available or will not be issued within ten (10)
business days after receipt of the Error report, a temporary fix or work around,
until appropriate Maintenance Modifications can be provided. GoAmerica shall
prioritize its overall efforts according to the severity level of the Error
stipulated by EarthLink. When reporting Errors and requesting Error Correction
under this Section, EarthLink shall stipulate the severity level it has
associated with the Error, using the following severity level guidelines, and
shall in such case provide Documentation of a sufficient technical level so that
the Error can be reproduced and verified by GoAmerica, and so that GoAmerica can
estimate the time and resources required to resolve the Error. The response
periods set forth in Severity Levels A through D below shall not be deemed to
commence until GoAmerica is in receipt of the report of the Error from EarthLink
and EarthLink demonstrates that the Error can be replicated by GoAmerica. The
severity levels are:
Severity Level A: Critical. The Error prevents or seriously impairs
the performance of substantially all major functions of a Deliverable,
GoAmerica Technical Element or Enhancement Release. "Correction Period"
means a response to EarthLink acknowledging the Error and reporting the
projected time of Error Correction within one (1) business day of receipt
of the report from EarthLink and provide Error Correction within six (6)
business days.
Severity Level B: Severe Impact. The Error prevents or seriously
impairs the performance of a major function of a Deliverable, GoAmerica
Technical Element or Enhancement Release. "Correction Period" means a
response to EarthLink acknowledging the Error and reporting the projected
time of Error Correction within two (2) business days of receipt of the
report from EarthLink and provide Error Correction within seven (7)
business days.
Severity Level C: Degraded Operation. The Error impairs the
performance of a minor function of a Deliverable, GoAmerica Technical
Element or Enhancement Release. "Correction Period" means a response to
EarthLink acknowledging its Error and reporting the projected time of Error
Correction within five (5) business days of receipt of the report from
EarthLink and provide Error Correction within ten (10) business days.
Severity Level D: Minor Impact. The Error is a minor problem such as a
problem in a rarely used function, or a problem with an easy and effective
workaround, or a cosmetic problem. "Correction Period" means a response to
EarthLink acknowledging the Error and reporting the projected time of Error
Correction within ten (10) business days of receipt of
B-1
the report from EarthLink and provide a work around within thirty (30)
business days and Error Correction in the next scheduled release.
B. Response Exceptions. In the event that any performance obligation of
GoAmerica of an Enhancement Release set forth above is dependent upon an action,
consent or approval of EarthLink and the performance of such obligation is
delayed by such dependency, GoAmerica shall use and exert its commercially
reasonable best efforts to remove such dependency or overcome such delay in
order to meet such performance obligation within the time frames provided but in
any event as soon as practical after such dependency is removed or delay is
overcome. GoAmerica shall not be held liable under this Agreement or be
considered in default under this Agreement for failure to comply with its
performance obligations hereof if the condition described above occurs and
GoAmerica complies with its obligations hereof.
C. Maintenance Fees. GoAmerica shall provide the Maintenance Services described
herein free of charge for the first one (1) year period following the Effective
Date. For the first year thereafter, GoAmerica shall provide the Maintenance
Services in exchange for an annual maintenance fee of [**] Dollars ($[**]) (the
"Maintenance Fee") Thereafter, the Parties shall mutually agree upon the annual
Maintenance Fees provider however, annual Maintenance Fees described herein may
increase by no more than [**] Percent ([**]%) annually.
D. Service Level Agreements. GoAmerica agrees to provide its products and
services in accordance with mutually agreed upon Service Level Agreements which
shall be attached hereto as Schedule I to Exhibit D.
E. As part of the Maintenance Services, GoAmerica shall provide to EarthLink, at
a minimum, annual Updates to the Deliverables and GoAmerica Technical Elements,
Error Corrections, Maintenance Modifications, improvements to existing features
and the like. Updates shall include appropriate changes to the Documentation for
the Deliverables and GoAmerica Technical Elements. Updates shall be governed by
the licenses granted in this Agreement. As part of the Maintenance Fee,
GoAmerica will provide to Earthlink all Updates at no additional charge.
GoAmerica agrees that all Updates, specifically general release bug fixes,
updates, Maintenance Modifications, Enhancements and upgrades to the
Deliverables and GoAmerica Technical Elements, are included in the annual
Maintenance Fee at no additional cost to Earthlink.
F. At a mutually agreed upon time and location, GoAmerica shall provide
Earthlink's staff with one technical training session no more often than every
six (6) months with respect to the Licensed Software at no charge other than
Earthlink's payment of or reimbursement for all reasonable travel and
out-of-pocket expenses incurred by GoAmerica's staff in connection with the
provision of such session. Thereafter, from time to time during the Term, at
Earthlink's request, GoAmerica shall provide additional technical training with
respect to the Deliverables and GoAmerica Technical Elements as mutually agreed
upon by the Parties. EarthLink shall pay GoAmerica [**] Dollars ($[**]) per day
for any additional training requested by EarthLink.
G. Earthlink will provide certain support directly to end users that use the
Deliverables and GoAmerica Technical Elements.. Earthlink will instruct End
Users to contact Earthlink for all
- 2 -
support matters. Earthlink will perform problem determination procedures, report
the problem to GoAmerica and be responsible for providing remedies to end users.
GoAmerica shall have no obligation to provide support directly to Earthlink's
end users that utilize the Deliverables and GoAmerica Technical Elements.
H. In performing the Maintenance Services, GoAmerica will assign personnel with
the required skills, training and experience to perform the duties,
responsibilities and functions assigned to such personnel.
I. Correction of Errors shall be furnished by GoAmerica in the form and media
reasonably selected by Earthlink including corrections in the form of
Documentation and/or such correction as shall remedy such errors so that the
Deliverables and GoAmerica Technical Elements are functional substantially in
accordance with its Documentation.
- 3 -