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EXHIBIT 10.25
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
SERVICE AGREEMENT
This agreement (the "Agreement") dated as of July 26, 2000 describes the terms
and conditions pursuant to which GoAmerica Communications Corp., a Delaware
corporation having offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx XX 00000
("GOAMERICA") authorizes Xxxxxx Wireless Inc. a corporation incorporated under
the laws of Canada, having offices at Xxx Xxxxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx,
X0X 0X0 ("ROGERS") to purchase and resell specified services (including related
software) provided by GoAmerica from time to time and the terms upon which
GoAmerica agrees to provide such services (and related software) to Rogers.
NOW THEREFORE in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged), the parties hereto agree as follows:
1. DEFINITIONS. In this agreement the following terms will have the
meaning set forth below unless the context requires otherwise:
"ADDITIONAL CUSTOMIZATIONS" will have the meaning set out in Subsection
9(a);
"AFFILIATE" will have the meaning set out in the Canada Business
Corporations Act;
"BUSINESS DAY" means each day of the week other than Saturday, Sunday
and statutory or civic holidays observed in the Province of Ontario;
"BROWSER MENU LINK" means a URL hidden behind a combination of text,
information and/or content included on a page of a Wireless Browser
which, when selected, allows the user to automatically and directly
transfer to a specific location on the Internet;
"CONFIDENTIAL INFORMATION" of a party means any and all material and
information of the party or any of its Affiliates (the "DISCLOSING
PARTY") which has or will come into the possession or knowledge of the
other party or any of its Affiliates (the "RECIPIENT PARTY") in
connection with or as a result of entering into this Agreement
including, without limitation, User Information and information
concerning the Disclosing Party's past, present and future customers,
suppliers, technology and business. Notwithstanding the foregoing,
"CONFIDENTIAL INFORMATION" does not include the following information:
(i) information which is in the public domain when it is received by or
becomes known to the Recipient Party or which subsequently enters the
public domain through no fault of the Recipient Party (but only after
it enters the public domain); (ii) information which is already known
to the Recipient Party at the time of its disclosure to the Recipient
Party by the Disclosing Party and is not the subject of an obligation
of confidence of any kind; (iii) information which is independently
developed by the Recipient Party without any use of or reference to the
Confidential Information of the Disclosing Party where such independent
development can be established by evidence that would be acceptable to
a
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court of competent jurisdiction; and (iv) information which is received
by the Recipient Party in good faith without an obligation of
confidence of any kind from a third party who the Recipient Party had
no reason to believe was not lawfully in possession of such information
free of any obligation of confidence of any kind, but only until the
Recipient Party subsequently comes to have reason to believe that such
information was subject to an obligation of confidence of any kind when
originally received;
"CUSTOMIZATION ASSESSMENT" will have the meaning set out in Subsection
9(a);
"CUSTOMIZATIONS" means a modification, new feature and/or addition to
the Wireless Browser made by Go America to create the Customized
Browser as further described in Subsection 2(a);
"CUSTOMIZED BROWSER" will have the meaning set out in Subsection 2(a);
"EFFECTIVE DATE" means July 26, 2000;
"ENABLED DEVICE" means a wireless handheld device distributed directly
or indirectly by Rogers for use in connection with the Mobitex Network
which is branded with the "Blackberry" Xxxx and which includes a
Customized Browser;
"END USER DOCUMENTATION" means the end user manuals and other
documentation or materials generally made available by GoAmerica to
users of the Wireless Browser related to the use, operation,
functionality and performance of the Wireless Browser;
"ENHANCEMENT" means a change, correction, modification, new feature,
new technology and/or other addition and/or improvement, including
those resulting in new versions or upgrades;
"GOAMERICA INTELLECTUAL PROPERTY" will have the meaning set out in
Section 18;
"HOME DECK" means the first screen of the user interface for the
Customized Browser which appears to a Rogers Customer upon the
activation of the Customized Browser by the Rogers Customer;
"HOST" or "HOSTING" means to provide and manage servers, facilities,
telecommunications, maintenance and operations related to the delivery
of Internet based services and content;
"INTELLECTUAL PROPERTY RIGHTS" means: (i) any and all proprietary
rights provided under: (1) patent law; (2) copyright law; (3)
trade-xxxx law; (4) design patent or industrial design law; (5)
semi-conductor chip or mask work law; or (6) any other statutory
provision or common law principal applicable to this Agreement
including trade secret law, which may provide a right in either ideas,
formulae, algorithms, concepts, systems, methods, improvements,
inventions or know-how generally, or the expression or use of such
ideas, formulae, algorithms, concepts, systems, methods, improvements,
inventions or know-how; and (ii) any and all applications,
registrations, licences, sub-licences, agreements or any other evidence
of a right in any of the foregoing;
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"LOOK AND FEEL" means graphical elements, aesthetic look and feel and
other navigation or design features including, without limitation,
Marks, Browser Menu Links; meta tags, password set-up and other
graphics forming part of the user interface on an Enabled Device;
"MARKS" means trade-marks, trade names, design marks, service marks,
logos, brand names or other distinguishing features;
"MAN" means a Mobitex access number and refers to the unique network
address of an Enabled Device pursuant to the Mobitex Protocol;
"MOBITEX" means the two way wireless data communications network based
upon the Mobitex Data Communications Network based upon the Mobitex
Protocol as operated in Canada by Rogers and, where applicable, any
other similar network located in the United States or elsewhere that is
operated by a third party and that may be accessed by Rogers Customers
pursuant to a roaming agreement or otherwise permitted by such third
party.
"MOBITEX NETWORK" will have the same meaning as "MOBITEX";
"MOBITEX PROTOCOL" means the standard international communications
protocol for a two-way wireless data network as promulgated from time
to time by the Mobitex Operators Association;
"ROGERS CUSTOMER" means a user of an Enabled Device and "ROGERS
CUSTOMERS" means all of such users;
"ROGERS INTELLECTUAL PROPERTY" will have the meaning set out in Section
16;
"ROGERS SERVICE" will have the meaning set out in Section 2;
"SERVER SOFTWARE" means GoAmerica's server based software that resides
on the Go America facilities and interacts with and supports Enabled
Devices. For greater certainty, "SERVER SOFTWARE" includes any and all
Enhancements made to such software in accordance with this Agreement;
"SERVICE" means the Hosting, operation, support and maintenance at
GoAmerica's facilities of the Wireless Browser, equipment and Server
Software in order to receive, route, interpret and process queries
received from the Wireless Browser and data in response to such
queries;
"SUPPORT SERVICE LEVELS" will have the meaning set out in Section 10;
"SUPPORT SERVICES" will have the meaning set out in Section 10;
"SPECIFICATIONS" means the detailed design, functional, technical,
branding, user interface, customizations and other specifications for
the Rogers Service and the Customized Browser set out in the End User
Documentation or attached hereto as Schedule 2;
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"TECHNICAL CONTACT" will have the meaning set out in Section 12;
"TERM" will have the meaning set out in Section 29;
"TRANSITION COSTS" will have the meaning set out in Subsection 31;
"TRANSITION PERIOD" will have the meaning set out in Section 32;
"USER INFORMATION" means all data and information pertaining to or
identifiable to a Rogers Customer including without limitation: (i)
name, address, e-mail address, MAN, IP address, telephone number
password, personal financial information, personal preferences,
demographic data, marketing data, data about securities transactions,
credit data, or any other identification data; (ii) any information
that reflects use of or interactions with the Rogers Service, the
Server Software and/or the Customized Browser including browsing
websites, including but not limited to, information concerning computer
search paths, any profiles created or general usage data (other than
aggregate statistical information that is not specific to and does not
reference Rogers or any of the Rogers Customers); (iii) any data
otherwise submitted in the process of registering for the Rogers
Service and any data submitted during the course of using the Rogers
Service, the Server Software and/or the Customized Browser, including
browsing websites; (iv) all information and data relating to the use by
a Rogers Customer of the Rogers Service, the Server Software and/or the
Customized Browser; and (v) any other information relating to the
behaviour of a Rogers Customer collected while such Rogers Customer is
using the Rogers Service, the Server Software and/or the Customized
Browser;
"URL" means universal resource locator, which designates a unique
Internet protocol address for locating and accessing an Internet
site(s), a page or a location within a page; and
"WIRELESS BROWSER" means software, currently commercially known as the
Go.Web Browser, which when loaded on a wireless device capable of
supporting such software: (i) interprets instructions received by such
wireless device from a server; (ii) transmits instructions to a server;
(iii) interfaces with such wireless device to perform functions such as
write output to a screen and receive input from a key pad; (iv)
interfaces with the URL requested by a Rogers Customer, collects data
through interaction with the Server Software from sites and/or pages
written in HTML, HDML and WML (hypertext markup language, handheld
device markup language and wireless markup language, respectively,) and
reformats such data in a format which can be displayed on an Enabled
Device; and (v) otherwise performs any such other functions necessary
to enable the user of such wireless device to access and browse the
Internet through interaction with the Server Software. For greater
certainty, "WIRELESS BROWSER" includes any and all Enhancements made to
the such software in accordance with this Agreement.
2. THE ROGERS SERVICE AND CUSTOMIZED BROWSER
(a) Creation and Operation of Rogers Service and the Customized
Browser. GoAmerica agrees to develop and deliver to Rogers a
customized version of the Wireless Browser (the "CUSTOMIZED
BROWSER") and to Host at GoAmerica's
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premises a Rogers branded version of the Service which
conforms to and performs in accordance with the Specifications
(the "ROGERS SERVICE") and hereby grants to Rogers the right
to offer the Rogers Service to Rogers Customers through the
Mobitex Network, subject to the terms and conditions set out
in this Agreement. For greater certainty, "CUSTOMIZED BROWSER"
also includes any and all Enhancements and Additional
Customizations made to such software in accordance with this
Agreement.
(b) Co-operation With Third Parties. GoAmerica acknowledges and
agrees that Rogers is currently working with third parties to
develop and offer customizations, improvements, enhancements,
new features and other functionality to Rogers Customers
(including, without limitation, a customized website which
will enable Rogers Customers to personalize their Home Deck),
and GoAmerica agrees that it will, at its expense, co-operate
in good faith with Rogers and with such third parties. Without
limiting the generality of the foregoing and subject to
Xxxxxxx 0, XxXxxxxxx acknowledges and agrees that Rogers may
from time to time work with third parties to develop a
wireless portal for use in connection with the Customized
Browser. Upon Rogers request, GoAmerica will reasonably
cooperate and facilitate a seamless transition of the
management and Hosting of the Home Deck to the applicable
third party specified by Rogers.
(c) Standard Development Kits. GoAmerica will provide to Rogers,
on terms and conditions, including price, to be mutually
agreed upon by the parties for use by Rogers' content
providers , the tools, including without limitation, standard
development kits (SDKs), required to make content on the
Customized Browser accessible to, and in a format which can be
read by, the Rogers Customers as well as all reasonable
support in relation to the use by Rogers or its content
providers of all such tools.
3. ACTIVATION. GoAmerica will by the end of the next Business Day
following receipt from Rogers of each MAN, activate on GoAmerica's
servers each Wireless Browser located on the Enabled Device to which
such MAN relates.
4. BRANDING. The Rogers Service and the Customized Browser will be branded
with the Marks of Rogers and GoAmerica in the manner specified in the
Specifications or in such other manner as may be determined by Rogers,
in its sole discretion; provided, however, that Rogers may not alter
the form or manner in which any GoAmerica Marks are included as part of
the Rogers Service in any material respect without the prior consent of
GoAmerica, which consent will not be unreasonably withheld or delayed.
5. BROWSER MENU LINKS. Unless otherwise specified by Rogers in writing,
GoAmerica will integrate and include as part of the Rogers Service and
the Customized Browser all Browser Menu Links provided by Rogers within
twenty-four (24) hours following receipt of a request from Rogers.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
6. LOOK AND FEEL. Subject to Section 4 Rogers will have sole control over
the Look and Feel of the Rogers Service and Customized Browser,
including without limitation, the placement, addition and deletion of
the Browser Menu Links.
7. ENHANCEMENTS. GoAmerica will notify Rogers in writing [**]prior to
making any Enhancement to the Service and/or the Wireless Browser and
Rogers will have[**] to notify GoAmerica whether it wishes GoAmerica to
incorporate such Enhancement into the Rogers Service and/or the
Customized Browser. In the event that: (i) Rogers notifies GoAmerica
that it wishes to incorporate an Enhancement into the Rogers Service
and/or the Customized Browser; or (ii) Rogers is deemed to have
accepted an Enhancement in accordance with the following sentence,
GoAmerica will at GoAmerica's expense, incorporate such Enhancement
into the Rogers Service and/or Customized Browser concurrently with the
date that GoAmerica makes such Enhancement to the Service and/or the
Wireless Browser. Should Rogers fail to notify GoAmerica that it
rejects any such Enhancement within such [**], Rogers will be deemed to
have accepted such Enhancement.
8. RIGHT TO REJECT. Rogers may, at any time within [**] following receipt
from GoAmerica of the Rogers Service and/or the Customized Browser or
any part thereof, notify GoAmerica in writing whether Rogers accepts or
rejects the Rogers Service and/or the Customized Browser or the
applicable part thereof. Rogers may reject the Rogers Service and/or
the Customized Browser if it does not conform to or perform in
accordance with the Specifications in Schedule 2 (or in any separate
quote and purchase order). If Rogers does not deliver a notice of
acceptance or rejection within such time period, the Rogers Service
and/or the Customized Browser will be deemed to have been rejected. If:
(i) Rogers delivers to GoAmerica a notice that Rogers rejects the
Rogers Service and/or the Customized Browser; or (ii) the Rogers
Service and/or the Customized Browser are deemed to have been rejected
in accordance with the preceding sentence, provided Rogers has informed
GoAmerica in reasonable detail as to the manner in which the Rogers
Service and/or the Customized Browser do not conform to or perform in
accordance with the Specifications in Schedule 2 (or in any separate
purchase order), then GoAmerica will use reasonable commercial efforts
to remedy any deficiency as quickly as possible and GoAmerica will
redeliver the remedied Rogers Service and/or the Customized Browser to
Rogers for its approval, the whole of which will be at GoAmerica's
expense. The procedure for acceptance set out in this Section 8 will
continue until Rogers has notified GoAmerica in writing that it accepts
the Rogers Service and Customized Browser or until Rogers exercises its
right to terminate this Agreement in accordance with Subsection 30(b),
whichever is earlier.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
9. PROCEDURE FOR ADDITIONAL CUSTOMIZATIONS.
(a) At any time during the Term, Rogers may request in writing
that GoAmerica make additional customizations to the Rogers
Service, the Server Software and/or Customized Browser,
including without limitation additional Enhancements, which
GoAmerica is not otherwise required to make at its expense in
accordance with Sections 7 and/or 8 (the "ADDITIONAL
CUSTOMIZATIONS"). Within [**]or such longer time requested by
GoAmerica and approved by Rogers in writing following receipt
by GoAmerica of such written request from Rogers, Go America
will, at its expense, provide a written response to Rogers
(the "CUSTOMIZATION ASSESSMENT") specifying:
(i) the time frame for the development and implementation
of the Additional Customizations;
(ii) the impact, if any, that the implementation of the
Additional Customizations will have on the
functionality, usability, performance or other
components of the Rogers Service, including the
Server Software and the Wireless Browser;
(iii) the proposed schedule for the implementation of the
Additional Customizations;
(iv) the fees and expenses Rogers must pay GoAmerica to
develop and implement the Additional Customizations;
and
(v) any other information reasonably requested by Rogers
in order to enable it to assess the impact that the
development and implementation of the Additional
Customizations will have on the Rogers Service, the
Wireless Browser and/or the Server Software.
(b) Within [**] of the receipt by Rogers of the Customization
Assessment or such longer time requested by Rogers and
approved by GoAmerica in writing, Rogers will notify GoAmerica
in writing whether it wishes GoAmerica to develop and
implement the Additional Customizations in accordance with the
Customization Assessment.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
(c) Rogers will have the right to notify GoAmerica that it rejects
a Customization Assessment or that it requires specified
clarifications, additions or modifications to such
Customization Assessment and GoAmerica will have [**] or such
other time as the parties may agree, from the date of receipt
of such written notice from Rogers, to deliver to Rogers an
amended Customization Assessment and Rogers will have [**]
following the receipt of such amended Customization Assessment
to notify GoAmerica in writing whether it wishes GoAmerica to
develop and implement the Additional Customizations in
accordance with the amended Customization Assessment.
(d) Upon receipt by GoAmerica of written notice from Rogers
indicating that Rogers wishes GoAmerica to develop and
implement the Additional Customizations and shall pay
GoAmerica the fees and expenses quoted by GoAmerica or
otherwise agreed to by the parties in writing, GoAmerica will
do so in accordance with the Customization Assessment. If
Rogers does not indicate in writing within the required time
frame that it wishes GoAmerica to develop and implement the
Additional Customizations, GoAmerica will not develop or
implement any such Additional Customizations.
(e) All Additional Customizations developed and implemented by
GoAmerica in accordance with this Section 9 will form part of
the Rogers Service, the Server Software and/or the Customized
Browser and all approved Customization Assessments will be
incorporated into and form part of the Specifications.
10. SUPPORT AND MAINTENANCE. GoAmerica will provide the support services
set out in Schedule 4 (the "SUPPORT SERVICES") in accordance with the
support service levels set out in Schedule 4 (the "SUPPORT SERVICE
LEVELS").
11. MARKETING. Each party will use reasonable commercial efforts,
consistent with good business practises and marketing standards, to
advertise, market and promote the Rogers Service and/or the Customized
Browser. Without limiting the generality of the foregoing, GoAmerica
agrees to pay [**]% of all of the costs incurred by Rogers or any of
its Affiliates in relation to the advertising, marketing and promotion
of the Rogers Service and/or the Customized Browser where Rogers uses,
displays or otherwise refers to the GoAmerica Xxxx "Go.Web", up to a
contribution by GoAmerica of $[**] US. Rogers will be entitled to
submit invoices from time to time containing the information concerning
the amount spent by or on behalf of Rogers or any of its Affiliates on
advertising marketing and/or promotion wherein the Xxxx "Go.Web" was
used, displayed or otherwise referred to and GoAmerica will pay [**]%
of such amount within [**] following receipt of the applicable invoice.
12. TECHNICAL CONTACTS. Each party has designated the technical contact
(the "TECHNICAL CONTACT") set out in Schedule 1 to act as a liaison for
all communications between Rogers and GoAmerica pertaining to this
Agreement. Communication between the
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Rogers Technical Contact and the GoAmerica Technical Contact does not
replace the obligation to give notices required by this Agreement.
13. TRADEMARK USE. Each party may use the other party's Marks (either alone
or in conjunction with such first party's Marks) during the Term in
connection with the Rogers Service and/or the Customized Browser and in
connection with the marketing, advertising and promotion of the Rogers
Service and/or the Customized Browser subject to the other party's
prior written consent. Without limiting the generality of the
foregoing, neither party will remove, obliterate or modify any of the
other party's Marks or notices on the Rogers Service and/or the
Customized Browser without such party's consent in writing.
14. LICENSES AND RESTRICTIONS.
(a) License Terms.
(i) GoAmerica hereby grants to Rogers and its Affiliates
a non-exclusive, royalty-free, non-transferable
(except as provided in Section 38) license during the
Term and, where applicable, the Transition Period,
to: (i) install (directly or through a third party)
on any number of Enabled Devices; (ii) use; (iii)
reproduce; (iv) distribute; (v) store; (vi) xxxxx
Xxxxxx Customers the right to download from a Rogers
website free of charge; and (vii) sublicense the
Wireless Browser in object code format for the
purpose of providing Rogers Customers with the Rogers
Service and/or the Customized Browser and for no
other purpose.
(ii) GoAmerica hereby grants to Rogers and its Affiliates
a non-exclusive, royalty-free, non-transferable
(except as provided in section 38) license during the
Term and, where applicable, the Transition Period,
to: (i) use; (ii) access; and (iii) permit Rogers
Customers to use and access the Server Software for
the purpose of providing Rogers Customers with the
Rogers Service and/or the Customized Browser and for
no other purpose.
(iii) GoAmerica hereby grants to Rogers and its Affiliates
a non-exclusive, royalty-free, non-transferable
(except as provided in Section 38), license during
the Term to: (i) use; (ii) reproduce; (iii)
distribute; and (iv) sublicense the End User
Documentation to the Rogers Customers.
(iv) Rogers will not: (i) exceed the licensed use of the
Wireless Browser set out in this Agreement; or (ii)
translate, decompile or reverse engineer the whole or
any part of the Wireless Browser.
(b) Source Code Escrow.
(i) Immediately following the execution of this
Agreement, GoAmerica and Rogers will negotiate in
good faith in order to execute the Escrow Agreement
(as defined below) no later than two (2) weeks
following the Effective Date which will be attached
to and form part of this Agreement
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as Schedule 5. Within the time specified below,
GoAmerica shall place and shall thereafter maintain,
at its expense: (1) an updated copy of the source
code for the Customized Browser and the Server
Software including Enhancements, if any; and (2) any
available commentary, instructions, programmer
specifications, notes (technical or otherwise),
manuals, tutorial literature, explanations,
annotations and other documentation necessary to
enable a reasonably skilled programmer to read,
understand, operate and maintain the source code for
the Customized Browser and the Server Software
including Enhancements (collectively, the "Escrow
Materials"), in escrow with Data Security
International, Inc. ("Escrow Agent") pursuant to the
terms of an escrow agreement to be mutually agreed
upon by the parties ("Escrow Agreement"). GoAmerica
shall deliver the Escrow Materials to the Escrow
Agent promptly after execution of the Escrow
Agreement by the parties and the Escrow Agent.
(ii) Among other terms, the Escrow Agreement will provide
for the release of the Escrow Materials to Rogers in
the event that (x) GoAmerica is unable to provide
Support Services because GoAmerica has become
insolvent or unable to pay its debts as they mature
in the ordinary course of business; has filed a
petition for bankruptcy or has been adjudicated a
bankrupt, has made an assignment for the benefit of
its creditors or an arrangement for its creditors
pursuant to any bankruptcy law; has had proceedings
instituted by or against it in bankruptcy or under
insolvency laws or for reorganization, receivership
or dissolution, or (y) breaches its obligations to
provide Support Services as set out in Schedule 4 and
fails, after notice in writing by Xxxxxx, to cure
such breach within the time provided in this
Agreement.
(iii) The Escrow Agreement shall also provide, among other
mutually agreed terms, that in the event Xxxxxx
obtains the Escrow Materials pursuant to the release
conditions and procedures set forth in the Escrow
Agreement, Xxxxxx shall have the right to use and
modify the Escrow Materials solely for the purposes
of providing (directly or through third parties) the
Support Services that GoAmerica has failed to provide
or is unable to provide, for as long such failure or
inability continues. At such time as GoAmerica, in
good faith, notifies Xxxxxx that it has recovered its
ability to provide Support Services, or cured the
cause of its breach, Xxxxxx shall promptly return all
copies of the Escrow Materials to the Escrow Agent
and allow GoAmerica to resume providing Support
Services; provided, however that GoAmerica reasonably
cooperates and assists Xxxxxx in effecting such
transition at GoAmerica's expense. Xxxxxx'x rights to
use the Escrow Materials shall be limited to the
provision of such Support Services. Release of the
Escrow Materials shall not be deemed to vest in
Xxxxxx any rights to use or modify the Escrow
Materials or the Wireless Browser to extend or
enhance its functionality or to enable the use of the
Wireless Browser in any manner other than as provided
in this Agreement.
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15. ASSIGNMENT. GoAmerica hereby assigns to Xxxxxx and its Affiliates all
Intellectual Property Rights in and to the Customizations (other than
the Intellectual Property Rights forming part of the Wireless Browser
prior to the Effective Date) and the Additional Customizations
developed and implemented in accordance with Section 9. Except as
expressly permitted herein, Go America will not have the right to use,
reproduce or otherwise exploit any Intellectual Property Rights in the
Customizations and the Additional Customizations without the prior
written consent of Xxxxxx.
16. XXXXXX INTELLECTUAL PROPERTY. As between the parties, Xxxxxx owns and
retains all right, title and interest in and to the following, which
will be collectively referred to herein as the "XXXXXX INTELLECTUAL
PROPERTY":
(a) the Customizations and the Additional Customizations;
(b) all of the Xxxxxx domain names, Marks and URLs; and
(c) all information relating to the Xxxxxx Customers, including
without limitation, all information and data about Xxxxxx
Customers, including without limitation all User Information.
17. LICENSE OF XXXXXX INTELLECTUAL PROPERTY. Subject to Section 43, Xxxxxx
grants a non-exclusive, royalty-free, revocable, non-transferable
license during the Term to GoAmerica to use the Xxxxxx Intellectual
Property, excluding the User Information, subject to the following
restrictions:
(a) GoAmerica will use the Xxxxxx Intellectual Property, excluding
the User Information, in accordance with this Agreement and
only for the purpose of fulfilling its obligations hereunder;
(b) GoAmerica will not contact, communicate with or distribute
information to any Xxxxxx Customer without Xxxxxx' prior
written consent;
(c) GoAmerica will not disclose, sell, license, rent or otherwise
exploit any Xxxxxx Intellectual Property to a third party
without the written consent of Xxxxxx; and
(d) GoAmerica will use the Xxxxxx Intellectual Property only in
accordance with all applicable restrictions imposed by law or
regulation.
18. GOAMERICA OWNERSHIP. Subject to Sections 15 and 16, GoAmerica retains
all right, title and interest in and to the Service, the Wireless
Browser, the Enhancements (other than Enhancements which constitute
Additional Customizations), the GoAmerica Marks and all development
tools, routines, subroutines, applications, software and other
materials that GoAmerica may use in conjunction with providing the
Service (collectively, the "GOAMERICA INTELLECTUAL PROPERTY").
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19. CONFIDENTIALITY.
(a) Each party will at all times, both during the Term and
thereafter, hold all Confidential Information of the other
party in the strictest confidence, and will not use such
Confidential Information for any purpose, other than as may be
reasonably necessary for the performance of its duties
pursuant to this Agreement, without the other party's prior
written consent. Without limiting the generality of the
foregoing, each party agrees: (i) that it will not disclose to
any third party or use any Confidential Information disclosed
to it by the other except as expressly permitted in this
Agreement; and (ii) that it will take all reasonable measures
to maintain the confidentiality of all Confidential
Information of the other party in its possession or control,
which will in no event be less than the measures it uses to
maintain the confidentiality of its own information of similar
importance.
(b) Notwithstanding the foregoing, each party may disclose
Confidential Information: (i) to the extent required by a
court of competent jurisdiction or other governmental
authority or otherwise as required by law; or (ii) on a
"need-to-know" basis under an obligation of confidentiality to
its Affiliates and to its and its Affiliates' authorized
agents, contractors, legal counsel, accountants, banks and
other financing sources and their advisors.
(c) The terms and conditions of this Agreement will be deemed to
be the Confidential Information of each party and will not be
disclosed without the other party's written consent.
(d) Each party acknowledges that its failure to comply with the
provisions of this Section 19 will cause irreparable harm to
the other party which cannot be adequately compensated for in
damages, and accordingly acknowledges that the other party
will be entitled to obtain, in addition to any other remedies
available to it, interlocutory and permanent injunctive relief
to restrain any anticipated, present or continuing breach of
this Section 19.
20. FEES AND REPORTING.
(a) Payment of Fees. In consideration for the provision by
GoAmerica of the Xxxxxx Service, the Customized Browser and
the Server Software in accordance with the terms of this
Agreement, including the license to Xxxxxx of the GoAmerica
Intellectual Property, Xxxxxx will pay GoAmerica the fees set
out in Schedule 3 to this Agreement in accordance with the
payment procedure set out therein. Notwithstanding the
foregoing, Xxxxxx agrees to pay, in addition to the fees
payable under this Agreement, the applicable withholding taxes
in relation to such fees; provided, however, that GoAmerica
agrees to use reasonable commercial efforts at GoAmerica's
expense to reclaim all such amounts paid by Xxxxxx, including
the filing of all applicable tax returns, and GoAmerica will
promptly pay Xxxxxx all of the amounts reclaimed.
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
(b) Failure to Meet Support Service Levels. If, during any
Reporting Period (as defined in Schedule 4) during the Term or
any renewal or extension thereto, GoAmerica fails to provide
the Support Services in accordance with all applicable Support
Service Levels, then, in addition to all other remedies
available to Xxxxxx under this Agreement or otherwise at law,
Xxxxxx will have no obligation to pay to GoAmerica the
"GoAmerica Monthly Access Fee" set out in Section 5 of
Schedule 3 relating to such Reporting Period.
(c) Reporting Requirements. In addition to GoAmerica's obligations
to provide Reports (as defined in Schedule 4 hereof) to Xxxxxx
in accordance with Schedule 4, GoAmerica will provide to
Xxxxxx, in a form and format mutually agreed upon by the
parties, a report in respect of each calendar month during the
Term or any renewal or extension thereto which contains
statistical information which sets out the frequency of use of
the Xxxxxx Service and/or the Customized Browser by each
Xxxxxx Customer based on the MAN of each Xxxxxx Customer and
any other information reasonably requested by Xxxxxx from time
to time, provided that the provision of such information does
not violate any Federal Communications Commission or other
applicable federal or state regulations. GoAmerica will
provide such Reports to Xxxxxx in accordance with GoAmerica's
normal billing cycle and each such Report will relate to the
period ending on the Business Day on which such Report is
delivered.
21. [**] TERMS. GoAmerica represents, warrants and covenants that the terms
and conditions set out in this Agreement, including without limitation,
the fees payable in relation to the Xxxxxx Service, the Customized
Browser and any Additional Customizations,[**] during the Term, [**] by
GoAmerica [**] and/or [**] under this Agreement. Without limiting the
generality of the foregoing, in the event that GoAmerica [**] and/or
[**] under this Agreement, [**] the terms and conditions [**] under
this Agreement, [**] to GoAmerica under this Agreement [**] which
GoAmerica [**] and the [**] GoAmerica [**] and (ii) thereafter, [**] of
the Term.
22. AUDITS. GoAmerica will maintain complete and accurate records
containing information in sufficient detail to permit an accurate
determination of the fees payable hereunder, and will retain all
records and supporting information in accordance with generally
accepted accounting principles (GAAP) in a form and format reasonably
requested by Xxxxxx. Without limiting the generality of the preceding
sentence, GoAmerica will maintain data records relating to all Xxxxxx
Customers so that such information is sorted and accessible by Xxxxxx
according to the MAN for each Xxxxxx Customer. Such records and
supporting information will be made available for inspection on behalf
of Xxxxxx by a firm of certified public accountants (or the Canadian
equivalent thereof) chosen by Xxxxxx at any time not more than once
during any six (6) month period upon ten (10) calendar days prior
notice to GoAmerica. Such inspection will take place during Business
Day(s) at GoAmerica's offices in Hackensack, New Jersey or at such
other
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place as such records may reasonably be regularly stored. In the event
that any such audit reveals either: (i) an overpayment by Xxxxxx of
greater than or equal to give percent (5%); or (ii) breach by GoAmerica
of its representation, warranty and covenant in Section 21, then
GoAmerica will forthwith reimburse Xxxxxx an amount equal to the excess
payment and the entire cost of the audit (and all related expenses)
will be borne by GoAmerica. Xxxxxx will ensure that any person
performing such audit on Xxxxxx' behalf signs a non-disclosure
agreement with Xxxxxx and any breach by such person of such
non-disclosure agreement will constitute breach by Xxxxxx of its
confidentiality obligations set out in Section 19 of this Agreement and
Xxxxxx will indemnify GoAmerica for the damages related to any such
breach.
23. REPRESENTATIONS AND WARRANTIES OF GOAMERICA. GoAmerica represents,
warrants and covenants to Xxxxxx as follows and acknowledges that
Xxxxxx has relied upon such representations, warranties and covenants:
(a) GoAmerica has the corporate power and the capacity to enter
into, and to perform its obligations under, this Agreement and
has the right to grant to Xxxxxx all rights granted in this
Agreement;
(b) GoAmerica is the owner or authorized licensor of the
Customized Browser, (other than the Customizations and
Additional Customizations), and the Server Software and has
the right to assign to Xxxxxx all right, title and interest in
and to the Customizations and Additional Customizations
without violating any third party Intellectual Property
Rights;
(c) the Customized Browser (including the Customizations and
Additional Customizations) will be developed and delivered by
qualified GoAmerica personnel in a professional and
workmanlike manner in accordance with the highest industry
customs and practise;
(d) the Xxxxxx Service and the Customized Browser each will
conform to and perform in accordance with the Specifications
therefor;
(e) GoAmerica will perform the Support Services in accordance with
the Support Service Levels and in a professional and
workmanlike manner in accordance with the highest industry
customs and practise;
(f) the exercise by Xxxxxx of its rights under this Agreement
including without limitation, the provision and distribution
of the Xxxxxx Service (including the sublicensing of the
Customized Browser and Additional Customizations, if any) to
the Xxxxxx Customers will not violate any Intellectual
Property Right of any third party and there are no third party
claims or allegations that the installation, use, distribution
or sublicensing of the Wireless Browser and/or the Customized
Browser or the use and other exploitation of the Service or
the Xxxxxx Service violates any Intellectual Property Right of
a third party;
(g) no portion of the Xxxxxx Service, Server Software and/or the
Customized Browser will violate any rights of privacy of any
third party;
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(h) at the time of delivery to Xxxxxx, the master copy or copies
of the Customized Browser and any Additional Customizations
will not contain any clock, timer, counter, computer virus,
worm, software lock, drop dead device, Trojan-horse routine,
trap door, time bomb or any other codes or instructions that
directly or indirectly modifies, replicates, distorts,
deletes, damages or otherwise disables software, hardware,
equipment, files, data or services, or any disabling mechanism
or protection feature designed to prevent the use of or access
to hardware, equipment, files, data or services;
(i) at all times during the Term and any applicable Transition
Period, no portion of the Server Software will contain, and
GoAmerica will use reasonable commercial efforts to maintain
the Server Software in accordance with industry customs and
practice in order ensure that no information and/or content
accessed through the Server Software will contain, any clock,
timer, counter, computer virus, worm, software lock, drop dead
device, Trojan-horse routine, trap door, time bomb or any
other codes or instructions that directly or indirectly
modifies, replicates, distorts, deletes, damages or otherwise
disables software, hardware, equipment, files, data or
services, or any disabling mechanism or protection features
designed to prevent the use of or access to hardware,
equipment, files, data or services;
(j) GoAmerica's performance of the obligations in this Agreement
including the provision and delivery of the Xxxxxx Service and
the licensing of the Customized Browser and Server Software
will comply with and will neither contravene, breach nor
infringe any applicable laws or regulations; and
(k) the Xxxxxx Service will be provided by GoAmerica error-free,
in an uninterrupted manner.
24. INDEMNIFICATION.
(a) GoAmerica will, at its expense, defend, indemnify and hold
Xxxxxx and its Affiliates and their respective officers,
employees, representatives and agents harmless from and
against any claim, suit, action or other proceeding which is
based on or arises from a claim that the Xxxxxx Service, the
Server Software, Customized Browser and/or Additional
Customizations (or the use thereof by a Xxxxxx Customer)
infringes the Intellectual Property Rights of a third party
(excluding any claims relating to intellectual property
including Marks, or text supplied to GoAmerica by Xxxxxx) or
any breach by GoAmerica of Section 19. GoAmerica will pay all
costs, damages and expenses (including but not limited to
reasonable legal fees) in connection with any such claim,
suit, action or proceeding; provided, however, that: (i)
Xxxxxx notifies GoAmerica in writing within a commercially
reasonable time after Xxxxxx becomes aware of a claim; (ii)
GoAmerica has sole control of the defence of any such action;
and (iii) Xxxxxx reasonably cooperates, in good faith at
GoAmerica's expense, in the defence of any such legal action.
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(b) Notwithstanding the foregoing, GoAmerica will have no
liability for any claim of infringement based on (i) any
modification of the Customized Browser or Xxxxxx Service other
than as authorized by GoAmerica where such modification gave
rise to the infringement claim; (ii) use (other than use by
GoAmerica or its agents) of the Customized Browser or Xxxxxx
Service in conjunction with content where use with such
content gave rise to the infringement claim; or (iii) use
(other than use by GoAmerica or its agents) of the Customized
Browser or Xxxxxx Service with software or hardware which is
not owned, licensed or authorized by GoAmerica, where use with
such other software or hardware gave rise to the infringement
claim.
25. CONTINUED USE. Should the Server Software, Customized Browser,
(including the Additional Customizations) and/or the Xxxxxx Service
become, or in GoAmerica's opinion be likely to become, the subject of a
claim of infringement, GoAmerica will, at its option and expense: (i)
obtain the right for Xxxxxx to continue using the Server Software,
Customized Browser, (including the Additional Customizations) and/or
the Xxxxxx Service (ii) modify the Server Software, Customized Browser
(including the Additional Customizations) and/or the Xxxxxx Service so
it is no longer infringing; provided, however, that any such
modification does not impair the ability of the Server Software,
Customized Browser (including the Additional Customizations) and/or the
Xxxxxx Service or the relevant portion thereof to conform to and
perform in accordance with the Specifications therefor or the intended
use thereof; or (iii) replace the infringing portion of such GoAmerica
Intellectual Property with compatible, equivalent and non-infringing
software or technology. If, after reasonable commercial efforts by
GoAmerica, GoAmerica is not able to perform any of the foregoing
alternatives, then either party will have the right to terminate this
Agreement.
26. REPRESENTATIONS AND WARRANTIES OF XXXXXX. Xxxxxx represents, warrants
and covenants to GoAmerica as follows and acknowledges that GoAmerica
has relied upon such representation, warranty and covenant: has the
corporate power and the capacity to enter into, and to perform its
obligations under, this Agreement and has the right to grant to
GoAmerica all rights granted in this Agreement.
27. LIMITATION OF WARRANTY. Except as expressly provided in this Agreement,
neither party makes any representations or warranties of any nature
whatsoever, either express or implied, with respect to the Xxxxxx
Service, the Customized Browser or the Additional Customizations.
Except as expressly provided herein, each party hereby disclaims all
implied warranties, including without limitation, all warranties of
merchantable quality, non-infringement of third party rights and
fitness for a particular purpose.
28. LIMITATION OF LIABILITY. Except for GoAmerica's indemnification
obligations in Section 24 and Xxxxxx' indemnification obligations under
the last sentence of Section 22 which will include, without limitation,
special, consequential, indirect, incidental, exemplary and punitive
damages and loss of profit, and notwithstanding any other provision in
this Agreement, neither party nor their Affiliates or their respective
directors, officers, and employees will be liable for any special,
consequential, indirect, incidental, exemplary or punitive damages or
loss of profit, whether in contract, tort or otherwise resulting from
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any cause of action whatsoever, including negligence, gross negligence,
negligent misrepresentation and/or fundamental breach or other theory
of law. Except for GoAmerica's indemnification obligations in Section
24 and Xxxxxx' indemnification obligations under the last sentence of
Section 22, which will be unlimited as to dollar amount, either party's
liability for claims arising from or relating to this Agreement will be
limited to the amount paid by Xxxxxx to GoAmerica in relation to this
Agreement. The foregoing limitation of liability is an agreed
allocation of risk between the parties and the Service Fees agreed to
by the parties and set out in Schedule 3 are based upon such
allocation.
29. TERM. This Agreement will be effective as the date first written above
and will continue for a period expiring one year from the Effective
Date (such period and any renewal thereof or extension thereto is
herein called the "TERM"), and for the Transition Period where
applicable, unless terminated earlier pursuant to Section 30. Xxxxxx
may elect to extend this Agreement on the same terms and conditions as
those set out herein for not more than twenty-four (24) additional
periods of one (1) month by providing written notice of its intention
to renew not less than one (1) week prior to the expiration of the
initial Term or the then-current monthly extension period.
30. TERMINATION. This Agreement may be terminated:
(a) by either party upon a breach or default of any of the terms
and conditions of this Agreement by the other party that is
not cured within thirty (30) calendar days after receipt by
the breaching party of written notice thereof from the
non-breaching party;
(b) by Xxxxxx forthwith upon written notice, in the event that
Xxxxxx rejects the Xxxxxx Service or the Customized Browser
pursuant to Section 8 hereof, provided that: (i) GoAmerica has
not been able to remedy the failure of the Xxxxxx Service
and/or the Customized Browser to conform to or perform in
accordance with the Specifications within five (5) Business
Days of receipt of the written notice of rejection; and (ii)
Xxxxxx and GoAmerica have not been able to reach agreement on
a resolution of the issues within five (5) Business Days of
the receipt of the written notice of rejection, acting
reasonably and in good faith;
(c) by either party forthwith upon written notice in the event
that the other party: (i) is insolvent or unable to pay its
debts as they mature in the ordinary course of business; or
(ii) files a petition for bankruptcy or is adjudicated a
bankrupt; (iii) makes an assignment for the benefit of its
creditors or an arrangement for its creditors pursuant to any
bankruptcy law; (iv) has proceedings instituted by or against
it in bankruptcy or under insolvency laws or for
reorganization, receivership or dissolution; and
(d) by either party in accordance with Section 25 upon ten (10)
calendar days written notice.
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
31. EFFECT OF TERMINATION. Upon the termination or expiration of this
Agreement (following the Transition Period, where applicable):
(a) each party will cease using the other party's Marks; provided,
however, that neither party will be required to remove from
circulation marketing, promotional or other material already
created, or marketing, promotional or other material in
respect of which it has placed an order which cannot be
cancelled without payment of any fee or penalty;
(b) GoAmerica will co-operate with and provide reasonable
assistance to Xxxxxx in transferring the Xxxxxx Service and
the Customized Browser to a different service provider. Upon
Xxxxxx' request, GoAmerica will provide Xxxxxx with reports
which contain statistical information which sets out the
frequency of use of the Xxxxxx Service, the Server Software
and the Customized Browser by each Xxxxxx Customer based on
the MAN number of each Xxxxxx Customer, and any other
information requested by Xxxxxx from time to time in order to
facilitate the transfer of the Xxxxxx Service and the
Customized Browser. Xxxxxx agrees to pay for all services
rendered and costs, including, without limitation, costs
relating to replacing and transferring hardware, software,
services, employees, and overhead costs, (the "TRANSITION
COSTS") incurred by GoAmerica in assisting in such transfer
unless the Agreement is terminated by Xxxxxx pursuant to
Subsections 30(a), (b), (c) or (d) in which event GoAmerica
will pay the Transition Costs. The Transition Costs will be
payable thirty (30) days following receipt by the relevant
party of an undisputed invoice, which invoice may be delivered
on a monthly basis following the end of each month to which
such invoice relates. Termination of this Agreement will not
act as a waiver of any prior breach of this Agreement or as a
release of either party from any liability for breach of such
party's obligations under this Agreement; and
(c) On termination of this Agreement, each party will forthwith
return all the other party's intellectual property and
Confidential Information which is then in its possession or
control, and will remove and/or destroy all digital
representations thereof in any form from all electronic
storage media in its possession or under its control and
provide the other party with a certificate signed by one of
its officers certifying this has been done.
32. TRANSITION PERIOD. During the period beginning on the first day
following the day that this Agreement or any renewal or extension
thereto expires or is terminated for any reason whatsoever and
continuing for a period of [**] thereafter (the "TRANSITION PERIOD"),
this Agreement will remain in effect as to Rogers Customers activated
before the end of the Term, and GoAmerica will continue to provide the
Rogers Service, the Customized Browser and the Server Software and
Rogers will continue to pay for the Rogers Service; provided, however,
that Rogers will not have any obligation to pay to GoAmerica the
"GoAmerica Monthly Access Fee" set out in Section 5 of Schedule 3
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during the Transition Period. However, Rogers will not have the right
to activate any additional Rogers Customers during the Transition
Period.
33. DISPUTE RESOLUTION. If any dispute or question (in this Section called
a "DISPUTE") arises during the term of this Agreement between the
parties concerning the interpretation of this Agreement or any part
hereof (other than the interpretation of any of Section 19 or
Subsections 23(b), (f) and (g), the parties will in good faith attempt
to resolve such Dispute promptly and in an amicable manner under the
following informal dispute resolution procedure. If a Dispute arises
which is not resolved by the operational personnel involved,
GoAmerica's Director of Carrier Relations and Rogers' Director of
Product Development or such other senior operations manager of Rogers
designated by Rogers from time to time to serve in such capacity (in
this Section collectively called the "DISPUTE RESOLUTION COMMITTEE")
will be notified. The Dispute Resolution Committee, made up of equal
representation, will meet within fifteen (15) calendar days of being
notified of a Dispute. If the Dispute Resolution Committee cannot
resolve the Dispute within fifteen (15) calendar days after being
notified of the Dispute, they will notify GoAmerica's Executive
Vice-President and Rogers' Vice-President of New Product Development
(in this Section collectively called the "PRESIDENTS"). The Presidents
will meet as promptly as possible. If the Presidents cannot resolve the
Dispute within fifteen (15) calendar days after being notified of the
Dispute, each party may take whatever steps are necessary to protect
its interests. However, no Dispute (other than a Dispute concerning the
interpretation of any of Section 19 or Subsections 23(b), (f) and (g)
will be the subject of litigation or other formal proceeding between
the parties before being considered by the Dispute Resolution
Committee, the Executive Managers and the Presidents, as set forth in
this Section; provided, however, that either party may seek injunctive
or equitable relief as otherwise provided for in this Agreement without
complying with the above described procedure.
34. SURVIVAL. The provisions of Sections 14, 15, 16, 18, 19, 21, 22, 24,
28, 31, 32, 33, 34, 37, 38 and 43 will survive any termination or
expiration of this Agreement. For the purposes of the preceding
sentence, this Agreement will be deemed not to have terminated or
expired until the last day of the Transition Period, if applicable.
35. FORCE MAJEURE. Neither party is liable for any delay, interruption or
failure in the performance of its obligations if caused by acts of God,
declared or undeclared war, fire, flood, storm, slide, earthquake,
power failure, inability to obtain equipment, supplies or other
facilities not caused by a failure to pay, labour disputes, or other
similar event beyond the control of the party affected which may
prevent or delay such performance ("FORCE MAJEURE"). In the event that
a Force Majeure occurs or is likely to occur, the party affected will
promptly notify the other, giving particulars of the event. The party
so affected will use reasonable efforts to eliminate or remedy the
event.
36. CURRENCY. All reference to currency are to currency of Canada, and all
payments to be made hereunder will be in Canadian dollars.
37. NOTICES. Any notice required to be given under this Agreement will be
duly and properly given if faxed or actually delivered (a) to
GoAmerica, Attention: X. Xxxx, Executive Vice
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President, at its head office address set out below its signature on
this Agreement and (b) to Rogers, Attention: Chief Technology Officer,
at its address set out below its signature on this Agreement, with a
copy to: Rogers Legal Department or at such other address or addresses
as the parties from time to time designate by notice in writing to each
other. Any given notice given pursuant to this Section will be deemed
to be received on the day of faxing or upon actual delivery.
38. OTHER PROVISIONS. This Agreement is governed by the laws of the state
of New York and the parties agree to submit any and all disputes to a
court of competent jurisdiction in New York. This Agreement contains
the whole Agreement between the parties and there are no terms,
conditions or collateral agreements expressed, implied, or statutory,
other than those expressly set forth in this Agreement. No amendment of
this Agreement will be binding unless executed in writing by authorized
signing officers of both parties hereto. No waiver of any of the
provisions of this Agreement will be deemed to constitute a waiver of
any other provision nor will such a waiver constitute a continuing
waiver unless otherwise expressly provided in writing executed by the
party to be bound. No failure of either party to insist upon strict
compliance with any obligation or provision hereunder, and no custom or
practice of the parties at variance with the terms hereof, will
constitute a waiver of any right to demand exact compliance with the
terms of this Agreement. Neither party's delay or omission in
exercising any right, power or remedy upon a breach or default by the
other party will impair any such right, power or remedy. Neither this
Agreement nor any rights under it may be assigned, transferred, shared
or delegated by either party without the prior written consent of the
other party, such consent not to be unreasonably withheld or delayed.
Notwithstanding the foregoing, Rogers may assign all of its rights and
responsibilities under this Agreement to an Affiliate or a party
acquiring all or substantially all of its assets whether by purchase,
merger, acquisition or any other means without consent. This Agreement
may be signed in counterparts including counterparts by fax. If any
provision of this Agreement is found to be invalid, illegal or
unenforceable by a court of competent jurisdiction, then such provision
will be deemed to be severed from this Agreement and the remainder of
this Agreement will not be affected and will remain in full force to
the extent permitted by law. In the event that any portion of this
Agreement will have been so determined to be or become invalid, illegal
or unenforceable (the "OFFENDING PORTION"), the parties will negotiate
in good faith such changes to this Agreement as will best preserve for
the parties the benefits and obligations of such Offending Portion. All
headings and captions contained in this Agreement are for convenience
only and do not constitute a part of this Agreement. Whenever required,
the singular will be deemed to include the plural and vice versa.
Whenever required, the masculine gender will include the feminine, and
vice versa. This Agreement is binding upon the successors to and
permitted assigns of each party.
39. PUBLICITY. All public notices to third parties and all other publicity
concerning this Agreement will be jointly planned and co-ordinated by
GoAmerica and Rogers and no party will act unilaterally in this regard
without first submitting such publicity to the other party for review
for a period equal to no less than two (2) Business Days and receiving
the prior approval of the other party except where required to do so by
applicable law or by the applicable regulations or policies of any
governmental authority or any stock
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exchange in circumstances where prior consultation with the other party
is not practicable. Without limiting the generality of the foregoing,
it is understood and agreed that GoAmerica and Rogers will each be
entitled to issue a press release or public statement concerning the
entering into of this Agreement, such press release or public statement
to be approved by the other, such approval not to be unreasonably
withheld or delayed.
40. RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement will
be construed as creating any agency, partnership or other form of joint
enterprise between the parties. The relationship between the parties
will at all times be that of independent contractors. Neither party
will have the authority to contract for or bind the other in any manner
whatsoever.
41. NEGOTIATION OF TERMS RELATING TO RESALE OF THE SERVICE. GoAmerica
acknowledges that Rogers distributes wireless services through
resellers and that Rogers may, in its discretion, elect to offer its
resellers the opportunity to distribute a version of the Service
(including, without limitation, a customized version of the Service) to
the reseller's customers. GoAmerica agrees that, at Xxxxxx'x request,
GoAmerica will negotiate in good faith the terms and conditions
pursuant to which Rogers and GoAmerica will develop, operate and
distribute such versions of the Service to Xxxxxx'x resellers for
distribution by such resellers to their respective customers, which
terms and conditions will be at least as favourable as the terms and
conditions made available by GoAmerica to any third party for the same
or substantially similar commercial arrangements as those entered into
between Rogers and GoAmerica in accordance with this Section 41.
42. SECURITY AUDITS. GoAmerica acknowledges and agrees that certain persons
with whom Rogers is in discussions and/or negotiations or with whom
Rogers has entered into an agreement in relation to the Rogers Service
and/or the Customized Browser may require that certain security
standards be met by GoAmerica in the provision of the Rogers Service
and license of the Customized Browser and the Server Software ("ROGERS
SERVICE PROVIDERS"). GoAmerica and Rogers agree to negotiate in good
faith a procedure for security audits by Rogers Suppliers and to
execute a corresponding mutually agreed upon amendment to this
Agreement by no later than twenty-one (21) calendar days following the
Effective Date. Such amendment will include, without limitation, the
parameters surrounding the Rogers Service Providers' right to inspect
the environment, facilities and security procedures surrounding the
servers and equipment on which the Server Software is installed or
which are used in the transmission or receipt of information through
the Server Software and to perform tests in order to identify potential
security risks. Such amendment will also include a mutually agreed upon
level of security which GoAmerica will maintain during the Term as well
as a procedure for increasing such security level and for determining
the corresponding fees payable by Rogers, if applicable.
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43. USER INFORMATION. GoAmerica may receive or use User Information for the
purposes contemplated by this Agreement, and if GoAmerica learns or
obtains any User Information, such User Information will constitute
Confidential Information and will be subject to Section 19 of this
Agreement.
GOAMERICA COMMUNICATIONS CORP.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
(authorized signatory)
Xxxxxx X. Xxxx
------------------------------------
(print name)
Company Information: GoAmerica Communications Corp.
000 Xxxxxxxxxx Xxx
Xxxxxxxxxx XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
XXXXXX WIRELESS INC.
By: /s/ Xxxxx Xxxxx
------------------------------------
(authorized signatory)
Xxxxx Xxxxx
------------------------------------
(print name)
By: /s/ X.X. Xxxxx
(authorized signatory)
X.X. Xxxxx
------------------------------------
(print name)
Rogers Information: 0 Xx. Xxxxxxxx Xx.
Xxxxxxx, XX
X0X 0X0
Phone: (000) 000-0000
Fax: (000) 000-0000
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SCHEDULES TO SERVICE AGREEMENT
1) Technical Contacts
2) Specifications for Rogers Service
3) Service Fees
4) Support and Support Levels
5) Escrow Agreement
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SCHEDULE 1
TECHNICAL CONTACTS
Pursuant to Section 12 of the Agreement, each party designates the following
persons as the Technical Contacts to act as a liaison for all communications
between Rogers and GoAmerica pertaining to this Agreement.
Rogers Technical Contact: GoAmerica Technical Contact:
Xxx Xxxxx Xxxxxx Xxxx
Director of Network Operations GoAmerica Communications Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx@xxxxxxxxx.xxx
Date of Designation Date of Designation
/s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxx
Authorized Signatory Authorized Signatory
Each party may replace its Technical Contact at any time by notifying the other
party in writing.
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
SCHEDULE 2
SPECIFICATIONS FOR ROGERS SERVICE AND THE CUSTOMIZED BROWSER
The Rogers Service and Customized Browser are provided to Rogers Customers
through Enabled Devices on which the Wireless Browser has been installed (such
as the RIM 950 or RIM 957). The Wireless Browser will interface with the
standard GoAmerica server, commonly known as "GoAmerica's "Go.Web" Services
Gateway", including the Server Software. To effect a connection between Rogers'
network and GoAmerica's server, GoAmerica will procure from a carrier of its
choice an X.25 leased data line between its premises and GoAmerica's point of
interconnection in Hackensack, NJ. GoAmerica will determine the capacity
required based upon traffic usage, in its reasonable judgment. Rogers will
reimburse GoAmerica for [**] per cent ([**]%) of the actual charges (including
[**]) payable by GoAmerica to procure and maintain such leased line connection.]
Customizations
The following customizations will be developed and implemented by
GoAmerica as part of the Rogers Service and/or the Customized Browser:
- The "GoAmerica" icon [**];
- The text under the [**]";
- The pull down menu [**];
- The Home Deck page header [**];
- The Rogers Service will be [**];
- The default error page will be bilingual such that the messages "URL
down" and "not able to access" will be in both French and English
(wording to be provided by Rogers);
- The default setting for [**] and/or [**] rather than [**];
- The default setting on the [**];
- the "splash" page which [**] from time to time; and
- Rogers will provide GoAmerica with information [**] and GoAmerica will
provide [**] in writing.
- The Customized Browser will [**].
- The Customized Browser will [**].
- [**], will be part of the [**].
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
SCHEDULE 3
SERVICE FEES
PURSUANT TO SECTION 20, THE ROGERS WILL PAY THE FEES SET OUT BELOW ON THE TERMS
AND CONDITIONS CONTAINED IN THIS SCHEDULE 3.
TERMS AND CONDITIONS OF PAYMENT
1. The fees specified below are net of applicable taxes, which will be
added to amounts payable by Rogers.
2. Within [**] days of the end of each calendar month, GoAmerica will
submit to Rogers, a hard copy invoice for the fees payable under
Sections 5 and 6 of this Schedule 3 for the Rogers Service and
Customized Browser during the previous calendar month (the "BILLING
PERIOD").
3. Rogers will pay each monthly invoice submitted by GoAmerica in
accordance with Section 2 of this Schedule 3 within [**] of receipt by
Rogers thereof unless Rogers disputes the amount set out in the invoice
in accordance with Section 4 of this Schedule 3.
In the event that Rogers disputes all or any part of an amount invoiced by
GoAmerica:
Rogers will pay all undisputed amounts on such disputed invoice in accordance
with Section 3 of this Schedule 3; and Rogers will submit the dispute relating
to the disputed amounts to dispute resolution in accordance with the provisions
of Section 33 of this Agreement hereof; and
Rogers will have no obligation to pay such disputed amount until such dispute is
resolved or otherwise determined in accordance with Section 33 of this
Agreement.
27
2
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
5. GOAMERICA MONTHLY ACCESS FEE
Subject to Subsection 20(b) and Section 32 of this Agreement, in consideration
of the pre-provisioning by GoAmerica of Rogers Customers on the GoAmerica
gateway and the maintenance by GoAmerica of the GoAmerica gateway, Rogers will
pay to GoAmerica $[**](CDN) payable in arrears on a monthly basis [**] and/or
[**]during the month [**]
6. GOAMERICA MONTHLY SERVICE FEES (PER ROGERS CUSTOMER) (CANADIAN DOLLARS)
[**]KB [**]KB - [**]KB [**]KB TO [**]KB TO MORE THAN
[**] KB [**]KB [**]KB
[**] $[**] $[**] $[**] $[**]
The Monthly Service Fee will be determined for each Rogers Customer based upon
the amount of that Rogers Customer's data usage (in kilobytes) during the
relevant Billing Period. GoAmerica will submit detailed reports with sufficient
information to confirm amounts owed for each month.
7. AIR TIME CHARGES
As between GoAmerica and Rogers, Rogers will be responsible for, and will pay
directly to the appropriate carrier, any carrier charges incurred by Rogers
Customers for wireless or landline network usage to access the Rogers Service
and/or Customized Browser, including all wireless carrier charges for usage
while roaming in the United States; provided, however, that Rogers will not be
responsible for, and will have no obligation to pay any carrier, for any carrier
charges incurred by Rogers Customers for wireless or landline network usage to
access the Rogers Service and/or Customized Browser unless such Rogers Customers
have a MAN number which is within the range in respect of which Rogers has
entered into a roaming agreement with the applicable carrier.
28
SCHEDULE 4
1.1 INTRODUCTION
1.1.1 OBJECTIVES
This Schedule 4:
(a) defines the Support Services which will be provided by
GoAmerica for the Rogers Service, the Customized Browser and
the Server Software;
(b) establishes the Service Levels with which GoAmerica shall
comply in providing Support Services to Rogers as required
pursuant to Section 10 of the Agreement;
(c) describes the respective roles and responsibilities of Rogers
and GoAmerica for Maintenance Services; and
(d) describes the process by which the parties will report to the
other with respect to the matters described in this Schedule 4
and review the performance of GoAmerica under this Schedule 4.
1.1.2 DEFINITIONS
All capitalized terms not defined in this Schedule 4 shall have the meaning
ascribed thereto in Section 1 of the main terms and conditions of the Agreement.
For the purposes of this Schedule 4, the following terms will have the following
meanings:
(a) "ACTION" means the specific tasks to be performed and/or
results which must be achieved by the applicable party in
response to a Situation or for performing Maintenance
Services, as set out in Tables 1.3.3 and 1.4.4, respectively.
(b) "AVAILABILITY" means (Total Available Minutes - Total Customer
Outage Minutes)/ Total Available Minutes x 100%).
(c) "CUSTOMER OUTAGE MINUTES" means, for each occurrence of a
Failure or a Degradation in connection with the Rogers
Service, the Customized Browser and/or the Server Software
(the total number of minutes, rounded to the nearest minute,
in such Failure or Degradation) x (the number of Rogers
Customers affected by such Failure or Degradation).
29
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
(d) "CRITICAL FAULT" means any Failure in the operation of any
Non-Redundant Component which affects [**] or more Rogers
Customers within [**] of one Business Day.
(e) "DEGRADATION" means any problem which does not constitute a
Failure.
(f) "DEMARCATION POINT" means the xxxxx xxxx connection between
the GoAmerica Facilities and communication lines connecting
the Mobitex Network to the GoAmerica Facilities.
(g) "ERROR" means any verifiable and reproducible failure of the
Rogers Service, the Customized Browser or the Server Software
to conform to or perform in accordance with the
Specifications in a material respect. The term "ERROR" shall
not include any failure of the Rogers Service to conform to
or perform with accordance with the Specifications in a
material respect that results from:
(ii) Rogers misuse or improper use of the Customized Browser;
(iii) the unauthorized modification by Rogers of the Customized
Browser;
(iii) the failure or malfunction of any equipment, software or
service not provided or operated by GoAmerica, including but
not limited to the Enabled Device, the Mobitex Network or
communications lines or services connecting the Mobitex
Network to the Demarcation Point.
(h) "ERROR CORRECTION" means a permanent modification of,
addition to or deletion from the Customized Browser, the
Server Software or the Rogers Service that causes the Rogers
Service, the Customized Browser and/or the Server Software to
conform to and perform in accordance with the Specifications
in all material respects.
(i) "ESCALATION" means the level or levels of management to which
a Situation or Maintenance Services, as applicable, shall be
escalated in the event that GoAmerica has missed either a
Response Time or a Time to Cure deadline by the length of
time indicated in the Escalation column for such escalation
level. Either party may request Escalation to the next level
at any time via verbal request to the indicated Escalation
contact.
(j) "ESCALATION LEVEL 1" OR "OE1" means, for each of Rogers and
GoAmerica, the person identified in Appendix A to Schedule 4
as the person to whom matters identified in this Schedule 4
to be reported to "ESCALATION LEVEL 1" or "OE1" shall be
reported.
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30
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
(k) "ESCALATION LEVEL 2" OR "OE2" means, for each of Rogers and
GoAmerica, the person identified in Appendix A to Schedule 4
as the person to whom matters identified in this Schedule 4
to be reported to "ESCALATION LEVEL 2" or "OE2" shall be
reported.
(l) "ESCALATION XXXXX 0" XX "XX0" means, for each of Rogers and
GoAmerica, the person identified in Appendix A to Schedule 4
as the person to whom matters identified in this Schedule 4
to be reported to "ESCALATION LEVEL 3" or "OE3" shall be
reported.
(m) "FAILURE" means any Error that renders Rogers unable to
provide all or any part of the Rogers Service, the Customized
Browser and/or Server Software to the Rogers Customers
(including, without limitation, provisioning, billing, and
all other components of the Rogers Service, Customized
Browser and/or Server Software).
(n) "GOAMERICA FACILITIES" means equipment, software and
communication facilities that are on GoAmerica's side of the
Demarcation Point operated by GoAmerica.
(o) "IDENTIFICATION" means the party responsible for identifying
the Situation or initiate the Maintenance Services, as
applicable, and notifying the person identified in the
Notification column of the applicable Table.
(p) "MAINTENANCE SERVICES" shall have the meaning ascribed
thereto in Section 1.4.4 of this Schedule 4.
(q) "MAINTENANCE WINDOW" shall have the meaning ascribed thereto
in Section 1.4.1 of this Schedule 4.
(r) "MAJOR FAULT" means:
(i) any Failure of a component of the GoAmerica Facilities for
which there is a back-up component which can be used to
continue operation of such component functionality in an
uninterrupted and non-degraded manner; or
(ii) any Degradation of a Non-Redundant Component, that affects
[**]or more Rogers Customers within [**] of 1 Business Day.
(s) "MEAN TIME TO CURE PERCENTAGE" means (the total number of
times during a Reporting Period in which GoAmerica completed
an Action on or prior to the Time to Cure requirement
specified for such Action) / (the total number of times
during such Reporting Period in which GoAmerica was required
to complete an Action) x 100%.
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31
(t) "MINOR FAULT" means any Error or other service problem which
is not a Critical Fault or a Major Fault.
(u) "NON-REDUNDANT COMPONENTS" include any component of the
GoAmerica Facilities for which there is no back-up component
which can be used to continue operation of such component
functionality in an uninterrupted and non-degraded manner.
(v) "NOTIFICATION" means the designated contact point for
receiving notice from the person identified in the
Identification column, and the person responsible for
reporting and acting to correct the Situation or perform the
Maintenance Services, as applicable, in accordance with this
Schedule 4;
(w) "PERMITTED SCHEDULED MAINTENANCE" means maintenance provided
during a Maintenance Window and in accordance with the
requirements of Section 1.4 of this Schedule 4.
(x) "REPORT" shall have the meaning ascribed thereto in Section
1.5.1 of this Schedule 4.
(y) "REPORTING PERIOD" means a calendar month.
(z) "RESPONSE TIME" means the time period within which the party
who receives notice, as identified in the Notification
column, must deliver a response to the party identified in
the Identification column confirming receipt of such notice
and that it will complete the required Actions.
(aa) "SERVICE LEVEL" means (the total time, measured to the
nearest minute, during each Reporting Period during which
GoAmerica has provided Support Services in accordance with
the all of the requirements of this Schedule 4) / (the total
number of minutes in such Reporting Period) x 100%.
(bb) "SITUATION" means either a Critical Fault, Major Fault or a
Minor Fault. The classification of a Situation will be the
one as defined in section 1.1.2 of Schedule 4 of this
agreement.
(cc) "SUBMISSION ACKNOWLEDGMENT TIME AVERAGE" means (the sum of
the amount of time elapsed between the time that Rogers
notifies GoAmerica of a problem which requires Support
Services and the time that GoAmerica acknowledges receipt of
such problem, for all such problems relating to Support
Services sent to GoAmerica during a Reporting Period) / (the
total number of requests for Support Services sent to
GoAmerica during such Reporting Period).
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32
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
(dd) "TIER I CUSTOMER SUPPORT" means first level customer service
to Rogers Customers, including installation, field service,
sales, billing, general information, browser configuration,
basic troubleshooting and all other customer calls. Tier I
Customer Support includes all customer contact via telephone
and electronic mail for all issues.
(ee) "TIER II TECHNICAL SUPPORT" means second level technical
support to the Rogers Customers, including advanced
troubleshooting and support of Wireless Browser. Tier II
Technical Support includes problems that cannot be resolved
immediately on the telephone. Tier II Technical Support is
performed through the tools and procedures developed by
GoAmerica.
(ff) "TIER III GOAMERICA NETWORK SUPPORT" means the third level
support to the respective Tier II Technical Support staff to
be provided by GoAmerica in accordance with the provisions of
this Schedule 4.
(gg) "TIME TO CURE" means the amount of time following the date
and time on which the party identified in the Notification
column of Table 1.3.3 is notified of a problem within which
such party is required to complete the Action.
(hh) "TOTAL AVAILABLE MINUTES" means ((the total number of
minutes, rounded to the nearest minute, in a Reporting
Period) (the number of Rogers Customers on the last day of
such Reporting Period))
(ii) "TOTAL CUSTOMER OUTAGE MINUTES" means the sum of all Customer
Outage Minutes in a Reporting Period.
1.2 PROVISION OF SUPPORT SERVICES
Rogers and GoAmerica hereby agree that:
(a) Rogers shall be solely responsible for providing Tier I
Customer Support and Tier II Technical Support;
(b) GoAmerica shall provide to Rogers Tier III GoAmerica Network
Support. Tier III Network Support shall include, without
limitation, the following obligations:
(i) GoAmerica shall provide support in respect of any
service problems relating to the following components
of the Rogers Service, the Customized Browser and/or
the Server Software which affect [**]or more Rogers
Customers within [**] of 1 Business Day:
1. connectivity to the Internet via major
interconnects; and
2. the GoAmerica Facilities;
- 7 -
33
(ii) GoAmerica shall provide Rogers with the most current version
of the Wireless Browser as soon as such version is made
available to any of GoAmerica's customers or to any third
party for distribution. GoAmerica shall provide to Rogers all
reasonable support and maintenance required to operate the
Wireless Browser. During any time when Rogers is unable to
use or operate the Wireless Browser, GoAmerica shall provide
any services reasonably required by Rogers to enable Rogers
to verify the correct configuration of the Rogers Service,
the Customized Browser and/or the Server Software.
(i) GoAmerica shall provide the Support Services to Rogers
primarily via telephone and email. All communication between
Rogers and GoAmerica, will reference trouble ticket numbers
from Rogers' trouble ticketing system.
(ii) GoAmerica shall provide the Support Services via both remote
and on-site staff or authorized agents, working at the
location of the GoAmerica Facilities or accessing it remotely
at the sole expense of GoAmerica.
(iii) the Support Services shall be delivered by qualified
GoAmerica personnel in a professional manner. If Rogers
determines that GoAmerica has not performed the Support
Services in accordance with the requirements set out in this
Schedule 4, then, in addition to all other remedies available
to Xxxxxx, XxXxxxxxx shall, at its expense, immediately
implement corrective action to remedy such failure to
perform.
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
1.3 TIER III GOAMERICA NETWORK SUPPORT SERVICE LEVEL REQUIREMENTS
1.3.1 HOURS OF THE TIER III GOAMERICA NETWORK SUPPORT SERVICES
GoAmerica shall provide the Support Services in accordance with the terms of
this Schedule 4 seven (7) days a week, twenty-four (24) hour a day, fifty-two
(52) weeks a year, inclusive of all federal, state, provincial, municipal and
other statutory holidays observed in either Canada or the United States.
1.3.2 SERVICE LEVELS
GoAmerica shall be required to meet the Service Level measurements for the
Rogers Service, the Customized Browser and the Server Software set out in the
table immediately below during each and every Reporting Period. The failure of
GoAmerica to meet any one of the Service Level requirements set out below during
any single Reporting Period shall constitute a material breach of a material
term of this Agreement Notwithstanding the foregoing, GoAmerica shall not be
liable for a failure to meet the Service Level requirements set out below to the
extent that any such failure is directly and solely attributable to a failure
within the Rogers Facilities.
Availability
------------
Rogers Service [**]
TABLE 1.3.2
1.3.3 SITUATION REPORTING AND ESCALATION PROCESS AND RESPONSE AND REPAIR
REQUIREMENTS
For each category of Situation set out in the table below for which the
Support Services are required, Rogers and GoAmerica agree to the
following Identification, Notification and Escalation procedures, the
following Response Times, Escalation times Time to Cure times and Mean
Time to Cure Percentage requirements and the following Actions. The
failure of GoAmerica during any three (3) consecutive Reporting Periods
to meet the Mean Time to Cure percentages as any set out below shall
constitute a material breach of a material term of this Agreement.
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
MEAN TIME
RESPONSE TIME TO CURE
SITUATION IDENTIFICATION NOTIFICATION TIME ESCALATION ACTION TO CURE PERCENTAGE
--------- -------------- ------------ ---- ---------- ------ ------- ----------
Critical Fault Xxxxxx XX0 XxXxxxxxx XX0 [**] XX0 after Restoration [**] [**] %
[**]OE3 after of service in
[**]OE4 after accordance
[**] with all
Specifications
Major Fault Rogers OE1 GoAmerica OE1 [**] OE2 after Restoration [**] [**] %
[**]OE3 after of service in
[**]OE4 after accordance
[**] with all
Specifications
Minor Fault Xxxxxx XX0 XxXxxxxxx XX0 [**] XX0 after Restoration [**] [**] %
[**]OE3 after of service in
[**]OE4 after accordance
[**] with all
Specifications
TABLE 1.3.3
1.4 MAINTENANCE ROLES AND RESPONSIBILITIES
1.4.1 MAINTENANCE WINDOW DEFINITION
GoAmerica agrees that it shall perform any Maintenance Services which may have
an impact on the Rogers Service or on Xxxxxx'x business operations only during
the hours of 12:00 Midnight to 4:00 A.M. Eastern Time (the "MAINTENANCE WINDOW")
and only in accordance with the process set out in this Section 1.4.
1.4.2 GOAMERICA MAINTENANCE REQUEST
If GoAmerica wishes to perform Maintenance Services which may have an impact on
the Rogers Service, the Customized Browser, the Server Software or on Xxxxxx'x
business operations during any Maintenance Window, GoAmerica shall provide
Rogers with a minimum of [**] prior written notice of its intention to perform
such Maintenance Services. Such notice shall include a callback telephone
number, a start time and estimated time for work completion for all such
Maintenance Services. Rogers reserves the right, in its sole discretion, to
request alternate work plans consistent with its obligations to provide
satisfactory Rogers Service to the Rogers Customers.
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
1.4.3 EQUIPMENT SPARES RESPONSIBILITIES
GoAmerica and Rogers agree that they will each be responsible for the
maintenance and deployment of the following equipment spares:
(a) GoAmerica shall have sole responsibility for the maintenance
and deployment of equipment spares for the GoAmerica
Facilities.
(b) Rogers shall have sole responsibility for the maintenance and
deployment of equipment spares for the Enabled Devices, the
Mobitex Network, the Communications lines connecting the
Mobitex Network to the Demarcation Point.
1.4.4. MAINTENANCE SERVICES REPORTING AND ESCALATION PROCESS AND
RESPONSE AND REPAIR REQUIREMENTS
For each category of maintenance services set out in the table below (the
"MAINTENANCE SERVICES"), Rogers and GoAmerica agree to the following
Identification, Notification and Escalation procedures, the following Response
Times and Escalation times, and the following ACTIONS. The failure of GoAmerica
to meet any one of the requirements set out below shall constitute a material
breach of a material term of this Agreement.
RESPONSE
MAINTENANCE SERVICES IDENTIFICATION NOTIFICATION TIME ESCALATION ACTION
-------------------- -------------- ------------ ---- ---------- ------
GoAmerica GoAmerica OE1 Rogers OE1 [**] OE2 @ [**]OE3 @ [**] Approval of GoAmerica
Maintenance Request OE4 @ [**] Maintenance Request.
Rogers Maintenance Xxxxxx XX0 XxXxxxxxx XX0 [**] XX0 after[**] Approval of Rogers
Request OE3 after [**] Maintenance Request.
OE4 after [**]
Client Software XxXxxxxxx XX0 Xxxxxx XX0 [**] XX0 after [**] Approval of release date.
Release Request
Implementation XxXxxxxxx XX0 Xxxxxx XX0 [**] XX0 after [**]OE3 Approval of technical
Resource Request (Eng.) after [**]OE4 after resources for any
[**] assistance of any
facilities changes.
TABLE 1.4.4
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
1.5 REPORTING AND REVIEW
1.5.1 SERVICE LEVEL REPORTING
GoAmerica will provide written reports to Rogers specifying the actual achieved
results in respect of each performance requirement set out in Sections 1.3.2,
1.3.4 and 1.4.4 of this Schedule 4 during each Reporting Period (each, a
"Report"). All performance requirements will be summarized on the basis of each
Reporting Period. Each Report will be delivered by the [**] following the
Reporting Period to which the Report relates. The form and format of the Report
shall be mutually agreed to by the parties.
1.5.2 QUALITY IMPROVEMENT REVIEW PROCESS
GoAmerica and Rogers will jointly review the performance of GoAmerica and the
Rogers Service, the Customized Browser and the Server Software against the
performance requirements set out in this Schedule 4 (including, without
limitation, all Critical Faults, Major Faults, Degradation and new Reports) on a
regular basis with the objective of identifying root causes and recommending
changes to correct:
- all changes in reported performance levels;
- all incidences of Critical Faults and Major Faults.
Rogers will set the agenda for all such meetings, which will be scheduled as
follows:
Frequency of Reviews Weekly
-------------------- ------
Participants As agreed by the parties
Method of Communicating Conference call or on site
meeting as agreed by the
parties
Time As mutually agreed
Length 2 hours
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38
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
APPENDIX I TO SCHEDULE 4
Escalation Levels and Contacts
ESCALATION LEVEL 1 (OE1)
XXXXXXXXX XXXXXX
Organization Name Network Operations Rogers Network Operations
----------------- ------------------ -------------------------
Team Name Network Operations CTAC
Primary Contact [**] [**]
Hours of Operation
Normal 9-5 P.M. E 830-1700 EST, (Mon.-Fri.)
Emergency On-Call Schedule On-Call Schedule
Method of Escalation
Normal Email [EMAIL MIGRATING TO REMEDY]
Emergency Pager [PAGER]
Phone (Voice Mailbox) [**] [**]
Email [**] [**]
Email to Pager [**] [**]
Pager [**]
Fax [**]
Emergency Phone [**] [**]
Mailing Address 00 Xxxxx Xx. 0 Xxxxx Xxxxxxxx Road
Lower Level 10th Floor
New York, NY 1004 Xxxxxxx, Xxxxxxx
Xxxxxx
X0X 0X0
Manager's Name [**] [**]Manager Network Support
Group/CTAC
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
ESCALATION LEVEL 2 (OE2)
XXXXXXXXX XXXXXX
Organization Name Network Operations Rogers Network Operations
----------------- ------------------ -------------------------
Team Name
Primary Contact [**] [**]
Hours of Operation
Normal M-F, 1000-1800 EST M-F, 0900-1700 EST
Emergency Pager Pager
Method of Escalation
Normal Telephone Telephone
Emergency [24 HOUR BEEPER COVERAGE] Pager
Phone (Voice Mailbox) [**] [**]
Email [**] [**]
Email to Pager [**] [**]
Pager [**] [**]
Fax
Emergency Phone [**]
Mailing Address 1 Mount Pleasant Road
10th Floor
Toronto, Ontario
Canada
X0X 0X0
Manager's Name [**]
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
ESCALATION LEVEL 3 (OE3)
GOAMERICA
Organization Name Network Operations [ROGERS NETWORK OPERATIONS]
----------------- ------------------ ---------------------------
Team Name
Primary Contact [**] [**]
Hours of Operation
Normal 1000-1800 EST [M-F, 0830-1700 EST]
Emergency Pager [PAGER]
Method of Escalation
Normal Telephone [TELEPHONE]
Emergency 24 Hour beeper coverage [PAGER]
Phone (Voice Mailbox) [**] [**]
Email [**] [**]
Email to Pager [**]
Pager [**] [**]
Fax [**]
Emergency Phone
Mailing Address 1 Mount Pleasant Road
3rd Floor
Toronto, Ontario
Canada
X0X 0X0
Manager's Name
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Confidential Materials omitted and filed separately with
the Securities and Exchange Commission.
Asterisks denote omissions.
ESCALATION LEVEL 4 (OE4)
GOAMERICA
Organization Name Network Operations
----------------- ------------------ --------------------
Team Name
Primary Contact [**]
Hours of Operation
Normal 1000-1800 EST [M-F, 0900-1800 EST]
Emergency [PAGER] [PAGER]
Method of Escalation
Normal [TELEPHONE] [TELEPHONE]
Emergency 24 Hour beeper coverage [PAGER]
Phone (Voice Mailbox) [**]
Email [**]
Email to Pager [**]
Pager [**] [**]
Fax [**]
Emergency Phone
Mailing Address
Manager's Name
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42
SCHEDULE 5
ESCROW AGREEMENT
[TO BE NEGOTIATED AND ATTACHED IN ACCORDANCE WITH SUBSECTION 14(b)]
