EXHIBIT 10.4
XXXXX
RESELLER AGREEMENT FOR MESSAGING SERVICES
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AGREEMENT dated as of August 25, 1999, between GoAmerica Communications
Corporation, a Delaware corporation, ("GoAmerica") with offices at 000
Xxxxxxxxxx Xxx. Xxxxxxxxxx, XX 00000 and XXXXX Company, a New York general
partnership ("XXXXX"), with offices at 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, XXXXX is engaged in providing shared data radio-based communications
network services as authorized by the Federal Communications Commission; and
WHEREAS, GoAmerica currently provides certain software and other value added
services in the marketplace; and
WHEREAS, XXXXX and GoAmerica desire a non-exclusive relationship to pursue
opportunities within the marketplace; and
WHEREAS, XXXXX desires to provide, and GoAmerica desires to remarket XXXXX'
services subject to the terms and conditions hereof.
GOAMERICA AND XXXXX AGREE AS FOLLOWS:
1. DEFINITIONS - For purposes of this Agreement:
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(a) "Market" shall mean all commercial users of the XXXXX XxXxxxxxx
Services.
(b) "FCC" shall mean the Federal Communications Commission.
(c) "Initial Term" shall mean the period commencing on the date hereof and
ending ***** thereafter.
(d) "Prices" shall mean XXXXX prices, as set forth in Attachment A.
(e) "Services" shall mean XXXXX' shared data radio-based communications
network services which enables a user to access and communicate
wirelessly with various third party supplied information sources, or
with certain subscribers using the XXXXX radio data network. This
Service includes the use of the XXXXX Message Switches and related
network software when accessed by user procured terminals and compatible
software, and the eLink(TM) wireless email services.
(f) "Territory" shall mean the United States and any other countries or
jurisdictions where the Services are provided by XXXXX in accordance
with applicable legal and regulatory requirements.
***** Confidential Portion omitted and filed separately with the Securities and
Exchange Commission.
(g) "Additional Services" shall mean the GoAmerica webhand(TM) suite of
services running over the XXXXX radio data network.
2. SCOPE OF AGREEMENT
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XXXXX hereby agrees to establish a non-exclusive marketing relationship with
GoAmerica as follows:
(a) XXXXX hereby licenses GoAmerica to be a non-exclusive remarketer of
XXXXX Services within the Market and Territory. GoAmerica acknowledges
that XXXXX reserves the right to market directly to end users and to
license other resellers within the Market and Territory.
(b) GoAmerica shall develop and implement a non-exclusive marketing plan to
facilitate the remarketing of the Services by GoAmerica. Such marketing
plan may include, without limitation:
(i) joint development of product literature describing the Services
and their capabilities;
(ii) joint attendance at trade shows, conferences and related events
within the marketplace;
(iii) joint presentations to prospective clients of the Services;
(iv) joint press releases, advertising and participation at the XXXXX
xxxxx at certain trade shows;
(v) joint marketing projections for the Services;
(vi) joint development activities with terminal hardware vendors; and
(vii) previews of XXXXX' future technology and business plan.
(d) GoAmerica may use the XXXXX trademarks and XXXXX trade name within the
Market and Territory in sales literature, press releases and other
promotional media subject to the prior written consent of XXXXX as
provided in Section 2(e) below.
(e) GoAmerica and XXXXX agree not to publish or use advertising, sales
promotions or any publicity matters, including the mention of the
existence of this Agreement without prior written consent, which consent
will not be unreasonably withheld.
3. GOAMERICA MARKETING AND DEVELOPMENT OBLIGATIONS
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(a) GoAmerica shall be responsible for insuring that all users to whom it
remarkets XXXXX' Services are, if required by applicable law or
regulation, licensed by the FCC prior to use of XXXXX' Services. XXXXX
shall, however, provide administrative and consultative support to
GoAmerica to facilitate the licensing process.
(b) During the term of this Agreement, GoAmerica will use commercially
reasonable efforts to meet the following performance milestones within
the timeframes indicated below:
================================================================================
TIME ***** ***** *****
----
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Number of GoAmerica
Subscriber Units Using XXXXX ***** ***** *****
Services *****
================================================================================
(c) In addition to the reseller responsibilities indicated in Attachment B,
GoAmerica agrees:
(a) To provide E-mail connectivity via a GoAmerica Internet domain
name.
(b) To be responsible for end-users registration and for providing
XXXXX with the following information, including but not limited to Pin
number, and LI number.
4. PRICING
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GoAmerica will pay XXXXX the Prices as discounted and set forth in
Attachment A.
5. BILLING AND PAYMENTS
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(a) GoAmerica will be responsible for billing to GoAmerica's end user
customers for the Services and Additional Services.
(b) XXXXX will provide GoAmerica with the information to xxxx
GoAmerica's end user customers via a monthly invoice that shows
individual unit usage in bytes to GoAmerica within ten (10) days'
after the end of the monthly billing period.
(c) Payment to XXXXX will be due within thirty (30) days of the receipt
of the invoice by GoAmerica.
(d) TAXES: In addition to the charges due under this Agreement,
GoAmerica agrees to pay amounts equal to any taxes resulting from
this Agreement, exclusive of taxes based on XXXXX' net income and
subject to applicable legal exemptions.
6. ORDERING
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(a) GoAmerica shall order data terminals for its end user customers
directly from ***** and may have the benefit of the terms and
conditions of the ***** Supply Agreement. ***** shall work with
***** to supply the relevant sections of the ***** Supply Agreement
to GoAmerica, redacted if necessary.
***** Confidential Portion omitted and filed separately with the Securities and
Exchange Commission.
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(b) GoAmerica shall order the Services for each new end user customer
electronically as mutually agreed. XXXXX shall process all such
orders no later than one day after receipt of order.
7. SUPPORT FOR ADDITIONAL UNITS: Service for additional terminals, if
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available, will be provided under these same terms and conditions. Service for
such additional end user terminal registrations shall be authorized by GoAmerica
through the issuance of a purchase order which references this Agreement, the
number of terminals to be activated or registered, the selected Service Plan and
selected additional Services, if any. It is specifically agreed between
GoAmerica and XXXXX that no such purchase order shall be effective to modify,
substitute or supplement the terms of this Agreement.
8. DENIAL OF SERVICE: GoAmerica agrees that its end user customers will
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(a) observe and abide by all applicable statutes, laws, ordinances, rules and
regulations including, but not limited to, those of the FCC, and (b) use the
XXXXX Network or Systems on a shared basis with other companies so as not to
cause undue interference with any other companies using such systems. GoAmerica
acknowledges that XXXXX reserves the right to deny service to any GoAmerica end
user should the Service be used other than as intended [e.g. for data streaming
or for non HTTP file transfer]
9. TERM / TERMINATION
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(a) This Agreement shall have an Initial Term of ***** and shall
automatically continue after the Initial Term until terminated by
either GoAmerica or XXXXX upon ***** written notice.
(b) XXXXX may modify the GoAmerica discount specified in Attachment "A"
of this Agreement upon ***** written notice for GoAmerica's failure
to meet the applicable performance levels set forth in Paragraph
3(b). Should this contract be modified pursuant to this Paragraph,
XXXXX shall continue to provide XXXXX communication services to
GoAmerica's then current users of the Services at the revised
discount
(c) Notwithstanding anything to the contrary contained herein, either
GoAmerica or XXXXX may terminate this Agreement (i) upon the
expiration of ***** from the receipt by the other party of written
notice of material breach by such other of its obligations under
this Agreement if such breach is not cured within such *****
period, or (ii) if the other party shall dissolve or commit an act
of bankruptcy or become insolvent, by sending such party written
notice of termination which shall state the nature of the breach.
Notwithstanding the foregoing, this Agreement shall terminate
immediately if the authorization held by XXXXX is revoked by the
FCC.
10. COMPANY RESPONSIBILITIES:
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***** Confidential Portion omitted and filed separately with the Securities and
Exchange Commission.
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GoAmerica acknowledges that it will inform its end user customers that:
. 100% radio coverage for any on-street or in-building area at all
times is improbable;
. radio frequency coverage maps, if provided, are intended to
indicate expected coverage and are not binding as an exact
representation of coverage;
. uninterrupted or error-free operation is unobtainable; and
. occasionally network availability will be lost, and that XXXXX
cannot be responsible for transmission errors, for corruption of
data, or for the security of data during transmission via public
telecommunications facilities.
Consequently, the end user customers of GoAmerica should asses the
effect such problems will have on their operation and develop, implement
and maintain procedures, external to the XXXXX Network, to safeguard
their programs and data and to establish procedures for the backup and
reconstruction of lost data and programs adequate for their protection.
11. COMPANY PROGRAM AND DATA SECURITY: GoAmerica programs and data which is
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not end user customer data and which come into XXXXX' custody under this
Agreement shall be deemed to be the confidential information (as defined
in Section 16(a)) of GoAmerica.
12. DEFAULT AND REMEDIES
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If GoAmerica fails to make any payment of any sum due after thirty (30)
days, XXXXX may add a service charge at the maximum rate permitted by
applicable law. Such additional charge shall be due and payable upon
receipt of invoice.
If GoAmerica fails to make any payment of any sum due or fails to
perform as required by any other provision hereunder, and continues in
such failure for fifteen (15) days' after written notice has been sent
by XXXXX and received by GoAmerica, GoAmerica shall be deemed in default
under this Agreement.
In the event of default, XXXXX has the right to immediately terminate
this Agreement retain all payments made hereunder, and deny GoAmerica
and its customers any service provided under this Agreement by or
through the XXXXX Network or Systems. Each and all of the rights and
remedies of XXXXX hereunder are cumulative to and not in lieu of each
and every other such right and remedy.
There will be a ***** reactivation fee for customers who wish to re-
establish service once XXXXX has suspended or terminated service.
13. FORCE MAJEURE
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***** Confidential Portion omitted and filed separately with the Securities and
Exchange Commission.
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Neither party hereto shall have any liability under this Agreement for
failure to perform, or delay in providing services due directly or
indirectly to causes beyond the reasonable control of such party
including, but not restricted to, acts of God, or governmental entities,
or of the public enemy, strikes, or unusually severe weather conditions.
14. TRAINING AND TECHNICAL SUPPORT
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(a) XXXXX shall make available to GoAmerica, at no charge, reasonable
initial training on the use of XXXXX Services.
(b) XXXXX shall continue to provide GoAmerica, at no charge, with
technical assistance performed by competent XXXXX employees in
connection with ongoing use of the Services by GoAmerica and its
customers. Such assistance shall include, without limitation,
telephone consultation, updates relating to changes and
enhancements to the Services and diagnostic services.
15. THIRD PARTY LIABILITY
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GoAmerica warrants that it will inform its clients and others to whom it
remarkets XXXXX' services, of the applicable terms and conditions of
this Agreement, as expressed in Attachment C hereof, and warrants that
it will indemnify XXXXX Company against any liability from GoAmerica's
end user customers resulting from their use of the XXXXX service.
16. CONFIDENTIAL INFORMATION
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(a) GoAmerica and XXXXX shall not disclose each other's confidential
information and trade secrets including, without limitation data,
software, documentation, client names and addresses, and all other
proprietary information of such party to persons other than
employees of each other who are required to have such information
for the furtherance of the purposes of this Agreement. Each of
GoAmerica and XXXXX shall take all steps reasonably calculated to
protect such information from unauthorized disclosure. This
obligation shall survive the termination of this Agreement.
(b) Nothing in this Agreement shall cause either party to have any
rights or licenses in any inventions, patents, trade secrets,
trademarks and/or copyrights of the other relating to the subject
matter of this Agreement.
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17. INDEPENDENT RELATIONSHIP
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GoAmerica and XXXXX specifically disclaim any partnership relationship,
and this Agreement shall in no way be construed to make GoAmerica and
XXXXX partners or joint venturers. For the purposes of this Agreement,
GoAmerica and XXXXX shall be deemed to be independent contractors.
Furthermore, in the event GoAmerica elects to sell XXXXX services to
the U.S. Government, U.S. State or Local or any foreign Government, or
to a prime contractor selling to a Government customer, GoAmerica does
so at their own option and risk and agrees not to obligate XXXXX as a
subcontractor or otherwise to such customers. GoAmerica remains solely
and exclusively responsible for compliance with all statutes,
regulations, and clauses governing sales to the U.S. Government State or
Local or any foreign Government or to a prime contractor selling to a
Government customer. XXXXX makes no representations, certifications, or
warranties whatsoever with respect to the ability of its goods, or
services, or prices to satisfy any such statutes, regulations, or
clauses.
18. WARRANTIES:
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XXXXX warrants that its Network is in good working order on the date of
the Agreement and conforms to XXXXX'x officially published performance
information. XXXXX will provide preventative and remedial service to
keep its Network in, or to restore it to, good working order. XXXXX does
not warrant uninterrupted service or error-free operation.
19. DISCLAIMER: THE FOREGOING WARRANTIES ARE IN PLACE FOR ALL OTHER
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WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
20. EXCLUSIVE REMEDY:
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In the event of any failure or delay attributable to the fault of XXXXX
or its subcontractors, or for breach of warranty, GoAmerica's sole
remedy shall be limited to a refund of GoAmerica's charges for the
affected services during the time of such failure or delay. GoAmerica
agrees, however, that no refund shall be made for the losses resulting
from a single failure or delay which do not exceed one hundred ($
100.00) dollars.
21. LIMITATION OF LIABILITY:
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(a) Neither party shall be liable for special, incidental, indirect or
consequential damages under this Agreement, even if such party has
been advised of the possibility of such damages.
(b) Except for GoAmerica's obligation to pay amounts owing under
Section 5 of this Agreement and GoAmerica's indeminity obligation
pursuant to paragraph 15, GoAmerica's and XXXXX' total liability
for any other claim arising out of or in any way connected with
this Agreement and the sole remedy regardless of the form of
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action (whether in contract, tort or otherwise) shall be actual
damages not to exceed fifty thousand ($50,000) dollars.
22. NOTICES
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All notices, demands, offers, elections, requests or other
communications required or permitted by this Agreement shall be in
writing and shall be sent by prepaid registered or certified mail,
return receipt requested, and addressed to the parties at the addresses
set forth below or to such other address as shall, from time to time, be
supplied by any party to the other party by like notice, and shall be
deemed given on the date mailed. All such notices shall be addressed to
persons listed below:
If to XXXXX: If to GoAmerica
Vice President Attn: Xx. Xxxxxx X. Xxxx
Messaging Services Executive Vice President & Director
XXXXX Company GoAmerica Communications Corp
000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000 000 Xxxxxxxxxx Xxx.
Xxxxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxxx, XX 00000
Copy: Copy: Chief Financial Officer
Xxxxxxx X. Xxxxxxxxx, XX GoAmerica Communications Corp
Vice President and Executive Counsel 000 Xxxxxxxxxx Xxx.
XXXXX Company Xxxxxxxxxx, XX 00000
000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
23. GENERAL
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This Agreement shall be binding on the successors and permitted assigns
of the parties hereto. Neither party shall assign this Agreement without
the other's prior written consent except in connection of a sale of
substantially all of the assets of the business to which this agreement
pertains.
If any provision of this Agreement or the application thereof to any
party or circumstance shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such
person or circumstance, other than those as to which it is so determined
invalid or unenforceable, shall not be affected thereby. and each
provision hereof shall be valid and shall be enforced to the fullest
extent permitted by law.
Neither party may bring an action, regardless of form, arising out of
this Agreement more than one year after the cause of action has arisen.
XXXXX may not bring an action for nonpayment more than 2 years after the
date the last payment was due.
Failure or delay on the part of XXXXX or GoAmerica to exercise any
right, remedy, power or privilege hereunder shall not operate as a
waiver thereof. A waiver, to be effective,
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must be in writing and signed by the party making the waiver. A written
waiver of a default shall not operate as a waiver of any other default
or of the same type default on a future occasion.
The headings in this Agreement are solely for convenience of reference
and shall not affect its interpretation.
This Agreement shall be constructed and enforced in accordance with the
laws of the State of Illinois.
This Agreement is the entire agreement between the parties with respect
to the subject matter hereof, and no alteration, modification or
interpretation hereof shall be binding unless in writing signed by both
parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first written.
XXXXXXXXX XXXXX COMPANY
By: /s/ Xxxxxx Xxxx /s/ Xxx Xxxxx
---------------------- ----------------------
(AUTHORIZED SIGNATURE) (AUTHORIZED SIGNATURE)
Xxxxxx Xxxx Xxx Xxxxx
---------------------- ----------------------
(TYPE OR PRINT NAME) (TYPE OR PRINT NAME)
Executive Vice President VP
---------------------- ----------------------
(TITLE) (TITLE)
8/25/99 8/24/99
---------------------- ----------------------
(DATE) (DATE)
0
XXXXXXXXXX "X"
XXXXXXXXX PRICING FOR PROVIDING THE SERVICES AND THE ADDITIONAL SERVICES
Network Registration Fee: $***** per unit
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Volume Commitments:
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Qty. Base Wholesale Price
***** devices $*****
***** devices $*****
***** devices $*****
Unlimited Plan
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Wholesale base price $***** (****% margin) $***** (****%) $***** (****%)
Options:
Lower the wholesale price by doing the following:
. Xxxx customer/collections -$***** -$***** -$*****
. Hardware fulfillment
. End-user fulfillment -$***** -$***** -$*****
. Private labeling -$***** -$***** -$*****
. Customer Care 1/st/ level -$***** -$***** -$*****
. Operator Assisted Messaging -$***** -$***** -$*****
. Branding, dominant position in
marketing to customer base -$***** -$***** -$*****
------- ------- -------
Wholesale airtime price = $***** $***** $*****
Faxing $*****/page
Limited Usage Plan
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$***** plus $**** per kilobyte per subscriber.
***** Confidential Portion omitted and filed separately with the Securities and
Exchange Commission.
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ATTACHMENT B
RESELLER
RESPONSIBILITIES
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SALES RESPONSIBILITY
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Lead Generation GoAmerica shall be the primary sales lead
provider. XXXXX may provide leads to
GoAmerica as XXXXX uncovers such
opportunities as part of its normal course
of business.
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Proposal Support GoAmerica will be responsible for
developing any and all proposal materials.
XXXXX will support with XXXXX background,
network coverage, cost justification model
development and any other boiler plate
requirements.
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PROJECT IMPLEMENTATION
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Implementation Training GoAmerica will be responsible for all
training to include ultimate customer,
help desk system administrator. XXXXX will
support such training with telephone and
documentation support.
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Hardware/Software Install GoAmerica will be responsible for
installation and testing of all hardware
and software components.
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POST INSTALL SUPPORT
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Customer Billing - XXXXX Airtime GoAmerica will remit payment for the
timely payment of fees and charges for
XXXXX Airtime as invoiced.
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Help Desk (Ultimate Customer) GoAmerica will provide the ultimate
customer with help desk training as
required and will act as the ultimate
customer's first line trouble interface.
XXXXX will provide second level help desk
support to GoAmerica; not to GoAmerica's
customers.
================================================================================
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ATTACHMENT C
1. Nature and Control of XXXXX Network: GoAmerica is remarketing XXXXX'
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Services to its clients in conjunction with database information services
and/or other value-added services. XXXXX controls the radio network which
enables communication and provides access in accordance with FCC rules and
regulations to and through GoAmerica on a shared basis. All clients of
GoAmerica shall use the XXXXX Network so as not to cause undue interference
with any other users of the XXXXX Network.
2. Security: Clients of GoAmerica are responsible for developing and/or
--------
maintaining procedures, external to the XXXXX Network, to safeguard
programs and data, and for the backup and reconstruction of lost data,
programs or procedures. Consequently, Clients of GoAmerica release XXXXX
from all liability for the loss or alteration of programs or data or their
acquisition by another party, except for XXXXX' failure to implement those
aspects of security procedures which are under XXXXX' control. XXXXX will
not be responsible for transmission errors, corruption of data or for the
security of data during transmission via public telecommunications
facilities
3. Confidentiality: Any and all programs and other materials provided by XXXXX
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to GoAmerica for distribution or use by its clients in connection with the
use of the XXXXX Services, shall remain the exclusive and confidential
property of XXXXX, are licensed solely for use in conjunction with the
XXXXX Services, shall not be reproduced or copied except as required for
the authorized use of the Services, and shall be returned to XXXXX upon
request.
4. Limitation of Liability: Clients of GoAmerica hereby agree that the
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following provisions govern their rights against XXXXX in the event that
they experience a partial or total failure, malfunction or defect in any of
the Services provided by XXXXX under the above-referenced Agreement. In no
event shall XXXXX be liable for incidental or consequential damages
(including without limitation, lost profits, lost savings, incidental
damages or other economic consequential damages, even if XXXXX has been
advised of the possibility of such damages) to the full extent such may be
disclaimed by law. Further, Xxxxx Company shall not be liable for any
damages based on any third party claim.
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