EXHIBIT 10.3
VALUE ADDED RESELLER AGREEMENT
THIS AGREEMENT, is made and entered into as of the 31 day of August, 1999
(the "Effective Date"), by and between BellSouth Wireless Data L.P.
("BellSouth") having an address at 00 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx Xxx
Xxxxxx 00000, and GoAmerica Communications Corporation ("GoAmerica") having an
address at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
WHEREAS, BellSouth provides certain intra-LATA two-way wireless data
communications services (the "BellSouth Services") using radio base stations and
switching facilities implemented and operated by BellSouth, from time to time
(the "BellSouth Facilities");
WHEREAS, GoAmerica owns and operates a data processing center located at
000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx Xxx Xxxxxx (the "GoAmerica Facilities") which
provides, or will provide to third parties, the use of certain electronic
messaging and communications gateways including computer servers and software
which are used to provide GoAmerica's GoWeb and GoMail services referred to
herein as the "GoAmerica Services";
WHEREAS, GoAmerica desires to sell and distribute the BellSouth Services in
connection with the GoAmerica Services (the combination of the BellSouth
Services and the GoAmerica Services being hereinafter referred to as the
"GoAmerica/BellSouth Services"), develop applications software appropriate to
the GoAmerica/BellSouth Services, and effect the interconnection between the
BellSouth Facilities and the GoAmerica Facilities in connection therewith on the
terms and conditions hereinafter set forth, and
WHEREAS, BellSouth desires to permit GoAmerica's above described activities
upon the terms and conditions set forth herein
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, BellSouth and GoAmerica hereby agree as follows:
I. Solicitation of Subscribers and Value Added Requirement.
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a. GoAmerica shall use all reasonable efforts, consistent with good
business judgment, to solicit subscribers to the BellSouth Services to
be received in connection with the GoAmerica/BellSouth Services.
b. GoAmerica's resale of the BellSouth Services shall only be in
connection with the sale of the GoAmerica/BellSouth Services and
incidental to the GoAmerica Services, which shall constitute
significant, value to subscribers of the GoAmerica/BellSouth Services.
The BellSouth Services shall be integrated with the GoAmerica Services
and GoAmerica shall not have the right to offer, resell or otherwise
make available the BellSouth Services, including, but not limited to,
the transmission of packets included therein, as a separate service or
product.
c. GoAmerica may, at its own expense and solely in connection with the
GoAmerica/BellSouth Services, market, promote, and advertise the
BellSouth Services. GoAmerica will not in any manner use, display,
broadcast, or disseminate any advertising or promotional material
which contains any (i) material misrepresentations, or omits to state
a material fact, with regard to BellSouth and/or the BellSouth
Services, or (ii) statement in derogation of BellSouth, and/or the
BellSouth Services. Notwithstanding anything to the contrary herein,
GoAmerica shall, prior to its proposed use of any advertising or
promotional material referring to the BellSouth Services, submit a
copy of such material to BellSouth for BellSouth's prior written
approval which approval shall not be unreasonably withheld.
d. The rights granted to GoAmerica hereunder are not exclusive. Subject
to Section 6 below, BellSouth is free (i) to increase or decrease the
number of parties it authorizes to solicit subscribers to the
BellSouth Services and (ii) to solicit subscribers to the BellSouth
Services in its own behalf at any time without notice to GoAmerica.
2. The BellSouth Services.
-----------------------
a. BellSouth shall provide the BellSouth Services to subscribers to the
GoAmerica/BellSouth Services as GoAmerica shall notify BellSouth
during the term of this Agreement. BellSouth agrees to register on
the BellSouth Facilities subscribers to the GoAmerica/BellSouth
Services and the equipment utilized by such subscribers (each, a
"Subscriber Unit") and to provide the BellSouth Services to such
Subscriber Units thereafter, unless notified by GoAmerica to cease the
provision of the BellSouth Services to such Subscriber Units as
specified in such notice. The date on which the first Subscriber Unit
is registered on the BellSouth Facilities is hereinafter referred to
as the "Initial Service Date."
b. GoAmerica shall pay BellSouth for the provision of the BellSouth
Services to Subscriber Units in accordance with the Schedule of
Charges annexed hereto as Schedule 2.b. Notwithstanding anything to
the contrary contained in this Agreement GoAmerica shall bear full
responsibility for, and shall pay BellSouth in accordance with the
Schedule of Charges for the provision of all BellSouth Services used
by Subscriber Units activated by BellSouth pursuant to Section 2.a.
including, but not limited to, use of the BellSouth Services in
connection with Mobile-to-Mobile message transmissions by a Subscriber
Unit.
c. On approximately the fifteenth (15th) day of each month following the
Initial Service Date, BellSouth shall invoice GoAmerica for the
aggregate amount of BellSouth Services used in connection with
Subscriber Units calculated in accordance with the applicable rates
specified in the Schedule of Charges.
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d. GoAmerica shall make payment in full, by Federal wire transfer or by
good check for immediately available funds, of each of BellSouth's
invoices not later than thirty (30) days after each invoice is
rendered. BellSouth shall provide such wire transfer instructions to
GoAmerica with BellSouth's first invoice due pursuant to Section 2.c.
above.
e. GoAmerica will receive all payments from subscribers to the
GoAmerica/BellSouth Services and shall be responsible for all billing,
collection, and bad debt recovery with respect to subscribers to the
GoAmerica/BellSouth Services.
f. GoAmerica shall be responsible for assuring that the use of the
BellSouth Services by subscribers to the GoAmerica/BellSouth Services,
and the computer application software and all Subscriber Units in
connection therewith, comply with and have been approved by BellSouth
for use on the BellSouth Facilities in accordance with procedures and
technical specifications established by BellSouth, during the term of
this Agreement and comply with all applicable laws, rules, and
regulations, including without limitation the rules and regulations of
the Federal Communications Commission ("FCC") concerning the licensing
of end users of Specialized Mobile Radio Service facilities and the
type approval of end user equipment.
3. Application Software Development and Connectivity.
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a. GoAmerica shall undertake and be responsible for, at its own expense,
the development and implementation of any and all new, modified, or
enhanced application, interface, middleware, or communications
software necessary to enable present and future subscribers to the
GoAmerica Services to receive the GoAmerica/BellSouth Services and to
achieve connectivity between and among Subscriber Units, the BellSouth
Facilities, and the GoAmerica Facilities. GoAmerica shall be
responsible for assuring that the GoAmerica Services, the GoAmerica
Facilities, and the use of the BellSouth Services by subscribers to
the GoAmerica/BellSouth Services do not cause traffic congestion,
degradation, disruption, abnormal and burdensome operating expense or
other detrimental effects, as reasonably determined by BellSouth, to
the BellSouth Facilities (or any portion thereof), the BellSouth
Services, or the use of the BellSouth Services or the BellSouth
Facilities by users other than subscribers to the GoAmerica/BellSouth
Services. BellSouth shall have the right to take such steps, including
but not limited to requiring GoAmerica to modify, at GoAmerica's
expense, the Go America Facilities or features or functions of the
GoAmerica Services (including, for example, the retry algorithm used
by the GoAmerica Services in circumstances where transmission of a
message has been aborted by application or middleware software) as
reasonably necessary to eliminate traffic congestion, degradation,
disruption, abnormal and burdensome operating expense or other
detrimental effects caused by the GoAmerica Services, the GoAmerica
Facilities, or Subscriber Units activated hereunder for GoAmerica. In
accordance with its usual Customer Service and network management
practices, BellSouth shall notify GoAmerica when the BellSouth
Facilities experience any such congestion, degradation, disruption,
abnormal and burdensome operating expense or other detrimental effect
caused by the GoAmerica Services, the GoAmerica
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Facilities, or Subscriber Units activated hereunder for GoAmerica.
In accordance with its usual Customer Service and network management
practices, BellSouth shall notify GoAmerica when the BellSouth
Facilities experience any such congestion, degradation, disruption,
abnormal and burdensome operating expense or other detrimental effect
caused by the GoAmerica Services, the GoAmerica Facilities, or
Subscriber Units activated hereunder for GoAmerica and GoAmerica shall
thereafter cooperate with BellSouth to resolve such problem. Each
party shall be responsible at its own expense for its own facilities.
If any such congestion, degradation, or disruption of the BellSouth
Facilities occurs in a manner which has a significant impact on the
BellSouth Facilities discernible to users of the BellSouth Services
other than subscribers to the GoAmerica/BellSouth Services, BellSouth
shall have the right to modify, curtail or terminate use of the
BellSouth Services by GoAmerica and its Subscribers as reasonably
necessary to prevent such impact until such congestion, degradation or
disruption is remedied.
b. GoAmerica shall not modify the GoAmerica Services or introduce new
software or equipment to be used in connection with the BellSouth
Facilities or Service without the prior written approval of BellSouth.
c. GoAmerica shall bear the cost of procuring, implementing, operating,
and maintaining the facilities necessary to interconnect the BellSouth
Facilities and the GoAmerica Facilities, except for such digital
service units ("DSUs") as may be located on BellSouth's premises.
d. GoAmerica shall be the sole owner of any and a intellectual property
rights in any software developed by GoAmerica or on GoAmerica's behalf
pursuant to this Agreement. This Agreement does not convey to
BellSouth any license, by implication, estoppel or otherwise, to any
proprietary copyright or patent right which GoAmerica has or may have
in any software developed by GoAmerica or on GoAmerica's behalf
pursuant to this Agreement, nor does this Agreement grant any rights
to BellSouth to use or modify such software or any part thereof or to
combine such software or any part thereof with any other software,
product or parts, except as may be expressly provided herein or in any
subsequent agreement between GoAmerica and BellSouth.
4. Marketing Activities.
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Neither party shall distribute to any third parties any materials,
information or writings describing the products or services of the other
party, or use any logos, trademarks, service marks, trade names, or the
corporate names of the other party without the prior written consent of
such party, which consent shall not be unreasonably withheld or delayed.
5. Non-Exclusivity
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a. Nothing herein shall be construed so as to restrict the activities of
BellSouth or GoAmerica, acting alone or in concert with others, in
connection with the development, implementation, operation, or
provision of any services or facilities whatsoever, whether similar to
or competitive with the GoAmerica Services, the GoAmerica Facilities,
the BellSouth Services, the BellSouth Facilities, or the
GoAmerica/BellSouth Services.
b. Notwithstanding anything to the contrary in this Agreement, the
GoAmerica/BellSouth Services shall not include and GoAmerica shall
have no right whatsoever to offer the BellSouth Services in connection
with any software applications, products or services providing outdoor
billboards (including, but not limited to, structures that remotely
convey advertising, changeable traffic or other Intelligent Traffic
System Information) with fixed data application software or services
for remote illumination control and/or data collection
6. Confidentiality and Non-Disclosure.
-----------------------------------
a. BellSouth and GoAmerica each acknowledge that, as parties to this
Agreement and in connection with the activities contemplated hereby,
they may have access to Confidential Information of each other and of
their respective affiliates. As used herein, the term "Confidential
Information" shall include, without limitation: technical, financial
and commercial data; forms of provision and computation; names,
addresses, telephone and telefax numbers, contact persons and other
identifying or valuable information relating to actual or potential
customers, shareholders, partners, independent contractors and
suppliers; reports; market studies; design, price and cost information
with respect to the BellSouth Facilities, the GoAmerica Facilities,
the BellSouth Services, the GoAmerica Services, and the
GoAmerica/BellSouth Services; and lists, compilations and archives of
any and all of the foregoing. Notwithstanding the foregoing, the term
"Confidential Information" shall not include any information that:
(a) the receiving party can demonstrate, by prior existing records,
was within its legitimate possession prior to the time of disclosure
by the furnishing party, (b) was within the public domain prior to
such disclosure; or (c) after disclosure, comes into the public
domain, as evidenced by documents that are generally published,
through no fault of the receiving party. Information that is specific
to certain data shall not be deemed to be in the public domain merely
because such information is embraced by more general disclosures in
the public domain.
b. BellSouth and GoAmerica each will afford confidential treatment to the
Confidential. Information it receives in connection with this
Agreement and the activities contemplated hereby and shall not use
such information or any other Confidential Information in any way that
is detrimental to the party furnishing the Confidential Information or
for any purpose other than those legitimate purposes contemplated in
this Agreement, nor shall the receiving party disclose any or all
Confidential Information to anyone other than its affiliates, partners
or potential
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partners, advisors, agents, and employees who need to know such
Confidential Information in connection with the legitimate purposes
contemplated by this Agreement. The receiving party shall maintain
adequate procedures to ensure that all of the persons to whom it
discloses or provides access to Confidential Information comply with
the restrictions set forth herein.
c. Neither party to this Agreement shall without the written consent of
the other party (i) make any news releases, public announcements, or
denials or confirmations of the same, concerning all or any part of
the discussions or negotiations between the parties, (ii) in any
manner advertise or publish the fact that the parties have entered
into discussions or negotiations, or (iii) disclose any details of
such discussions or negotiations (whether or not Confidential
Information) to any third parties.
d. BellSouth and GoAmerica acknowledge and agree that each of them
reserves the right to take any legal action to which it may be
entitled in the event of breach, in full or in part, of the
confidentiality and non-disclosure provisions of this Agreement.
7. Term.
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a. The initial term of this Agreement shall commence as of the date
hereof and shall continue, unless sooner terminated pursuant to the
provisions hereof, until the date which shall be three (3) years after
the Initial Service Date (the "Initial Term").
b. Upon expiration of the Initial Term, this Agreement shall be
automatically renewed for additional periods of three (3) years (each
a "Renewal Term") unless either party gives written notice to the
other party that such renewal shall not occur, such notice to be given
not less than sixty days prior to the end of the Initial Term or the
then current Renewal Term. During any Renewal Term BellSouth shall
have the right to change the prices as provided in this Agreement
after 120 days notice to GoAmerica. ***** per calendar year.
c. Nothing in this Agreement will be deemed to create any express or
implied obligation on either party to renew or extend this Agreement
or to create any right to continue this Agreement on the same terms
and conditions contained herein. GoAmerica understands that BellSouth
intends to review its Value Added Reseller strategy and the terms and
conditions of this Agreement on an ongoing basis and may require
execution of an amended form of this Agreement as a condition of
renewal.
_____________________
***** Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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8. Termination.
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a. This Agreement shall terminate automatically, and without liability or
further obligation of either party to the other in the event
termination is required by:
1. the FCC or in the event BellSouth loses its authority to operate
the BellSouth Facilities or if such authority is suspended or if
required licenses are not renewed, provided, however, that in the
event BellSouth loses its authority to operate fewer than all of
the BellSouth Facilities or if the suspension of any authority or
non-renewal of any license relates to fewer than all of the
BellSouth Facilities, then this Agreement shall terminate only as
to the BellSouth Facilities affected by such loss of authority,
suspension, or non renewal (but nothing herein shall be construed
so as to diminish BellSouth's responsibility to use all
reasonable efforts to maintain all required authority and
licenses in full force and effect for the duration of this
Agreement); or
2. any law, rule, regulation, or valid order of a court of competent
jurisdiction (including, without limitation, the application of
any restrictions which may be applicable to BellSouth or its
affiliates pursuant to the Telecommunications Act of 1996 and the
rules and regulations of the FCC promulgated, from time to time,
in connection therewith, as subsequently modified and interpreted
from time to time) (and nothing herein shall be construed to
require BellSouth to seek waiver of any law, rule, regulation, or
restriction, or seek judicial review or appeal of any court
order).
b. Upon any Event of Default (as hereinafter defined), either party may,
upon written notice to the defaulting party (the "Defaulting Party"),
terminate this Agreement without liability to the Defaulting Party.
Each of the following constitutes an Event of Default:
1. an admission by the Defaulting Party of an inability to pay its
debts, the entering into by the Defaulting Party of a composition
or arrangement with its creditors, the appointment of a trustee
or receiver, with or without consent, for the Defaulting Party or
all or any substantial part of its property, or the filing of a
petition for relief by or against the Defaulting Party under the
Bankruptcy Code or any similar federal or state statute now or
hereafter in effect; and
2. failure by the Defaulting Party to perform any material
obligation imposed upon it by or pursuant to this Agreement, or
any other material breach of this Agreement, provided that such
breach is not corrected within thirty (30) days after written
notice to the Defaulting Party specifying the nature of such
breach (or such longer period as may be required to correct such
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breach, if within said thirty (30) days, the Defaulting Party
shall commence the correction of such breach and thereafter
diligently pursue the correction thereof).
c. 1. in the event that this Agreement should not be renewed for any
Renewal Term as the result of written notice by BellSouth to
GoAmerica pursuant to the provisions of Section 7.b. herein, then
in such event BellSouth shall for a period in no event to exceed
*****, at GoAmerica's option, continue to provide the BellSouth
Services to subscribers secured by GoAmerica to the
GoAmerica/BellSouth Services up to the date of termination for so
long as GoAmerica continues to make timely payment of fees due to
BellSouth pursuant to Section 2.b. herein. If GoAmerica fails to
continue to make such timely payments of fees to BellSouth,
BellSouth shall have the right, at its sole option, to terminate
the BellSouth Services to subscribers secured by GoAmerica to the
GoAmerica/BellSouth Services.
2. In the event that this Agreement should not be renewed for any
Renewal Term as the result of written notice by GoAmerica to
BellSouth pursuant to the provisions of Section 7.b. herein, then
in such event BellSouth may, at its option, continue to provide
the BellSouth Services to subscribers secured by GoAmerica to the
GoAmerica/BellSouth Services up to the date of termination for so
long as GoAmerica continues to make timely payment of fees due to
BellSouth pursuant to Section 2.b. herein. If GoAmerica fails to
continue to make such timely payments of fees to BellSouth, then,
in order to assure continuity of service to all subscribers,
GoAmerica shall, within five days demand therefor by BellSouth,
provide BellSouth with a complete list of subscribers, utilizing
the BellSouth Services which have been obtained by GoAmerica to
the GoAmerica/BellSouth Services, including the name, address,
and telephone number thereof. The possession of that list shall
not relieve GoAmerica of the obligation to pay all sums to
BellSouth and shall not obligate BellSouth to make any payments
therefor to GoAmerica.
9. Independent Contractors.
------------------------
a. GoAmerica and BellSouth shall at all times be, and represent
themselves to be, solely independent contractors each acting on their
own account in all transactions involving the BellSouth Services, the
GoAmerica Services, and the GoAmerica/BellSouth Services. Nothing in
this Agreement shall be construed to make either party (or any person
employed by either party) an employee of the other party. Neither
party shall have any authority to bind or commit the other
_________________________
***** Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
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party in any respect or to accept legal process on behalf of the other
party. Without limiting the generality of the foregoing neither party
shall be liable to any agent reseller, subcontractor, supplier,
employee, or customer of the other party for any commission,
compensation, remuneration, benefit, damage, or claim of any nature
whatsoever.
b. GoAmerica shall not, in any manner whatsoever, represent itself as the
operator of the BellSouth Facilities or the provider of the BellSouth
Services, but shall identify BellSouth as the entity authorized to
operate the BellSouth Facilities and provide the BellSouth Services
and represent itself only as an authorized reseller of the BellSouth
Services.
10. Patent, Copyright, Trademark and Trade Secret Indemnification
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a. BellSouth, at its own expense, will defend and indemnify GoAmerica
against claims that the BellSouth Services, in and of themselves,
infringe a United States patent or copyright or misappropriate trade
secrets protected under United States law, provided GoAmerica (a)
gives BellSouth prompt written notice of such claims pursuant to
Section 14, (b) permits BellSouth to defend or settle the claims, and
(c) provides reasonable assistance to BellSouth at BellSouth's expense
in defending or settling the claims.
b. As to any claim of infringement or misappropriation arising as
provided in 10.a above, BellSouth may elect to (a) obtain the right of
continued use of the BellSouth Services for GoAmerica, or (b) modify
the BellSouth Services to avoid such claim. If neither alternative is
available on commercially reasonable terms, then BellSouth shall have
the right to terminate this Agreement and no further charges will
accrue hereunder.
c. BellSouth will not defend or indemnify GoAmerica if any claim of
infringement or misappropriation (a) is asserted by a parent,
subsidiary or affiliate of GoAmerica, (b) results from use of the
BellSouth Services in combination with any product or services not
provided by BellSouth, including but not limited to the GoAmerica
Services and the GoAmerica Facilities.
d. This Section 10 states the entire liability of BellSouth and
GoAmerica's sole and exclusive remedies for patent or copyright
infringement and trade secret misappropriation.
11. Remedies: Limitation of Remedies.
---------------------------------
a. GoAmerica's sole remedies for loss or damage caused by partial or
total failure of the BellSouth Facilities or for delay or
nonperformance of any of the BellSouth Services under this Agreement,
regardless of the form of action, whether in contract, tort (including
negligence), strict liability or otherwise, shall be, where
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applicable, GoAmerica's actual damages, if any, resulting from such
failure, delay, or nonperformance. Except with respect to BellSouth's
liability to indemnify GoAmerica pursuant to Section 10 above,
BellSouth's liability hereunder shall be limited solely to the amount
paid by GoAmerica to BellSouth for the BellSouth Services under this
Agreement during such period of failure, delay, or nonperformance.
b. AS A MATERIAL PART OF THE CONSIDERATION PAID BY GOAMERICA FOR THE
BELLSOUTH SERVICES PROVIDED BY BELLSOUTH UNDER THIS AGREEMENT, THE
PARTIES AGREE THAT BELLSOUTH SHALL IN NO EVENT BE LIABLE FOR, AND
GOAMERICA, FOR ITSELF AND THE SUBSCRIBERS TO THE GOAMERICA/BELLSOUTH
SERVICES, HEREBY WAIVES THE RIGHT TO CLAIM ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) DIRECTLY
OR INDIRECTLY RELATING TO OR ARISING OUT OF GOAMERICA'S OR ITS
SUBSCRIBERS' INABILITY TO USE THE BELLSOUTH FACILITIES OR ANY PART
THEREOF, EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER FACILITIES
OR SERVICES, PERFORMED OR NOT PERFORMED BY BELLSOUTH UNDER TIES
AGREEMENT, OR FOR ANY OR ALL LOSS OR DAMAGE DIRECTLY OR INDIRECTLY
RELATING TO OR ARISING OUT OF A THIRD PARTY'S UNAUTHORIZED ACCESS TO
GOAMERICA'S OR ITS SUBSCRIBERS' DATA TRANSMITTED OVER THE BELLSOUTH
FACILITIES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND
WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN.
c. GoAmerica shall use a form of agreement with subscribers to the
GoAmerica/BellSouth Services that contains a provision substantially
consistent with the following language and no language inconsistent
therewith: "Neither GoAmerica, as reseller of wireless data
communications services provided through the facilities of BellSouth
Wireless Data L.P. ("BellSouth"), nor BellSouth, as the provider of
such services, shall have any liability of any kind, direct or
indirect, to [subscriber of GoAmerica] for any damages other than
actual damages directly and proximately resulting from the failure,
delay, or nonperformance of the services and the maximum collective
liability of GoAmerica and BellSouth for such damages shall be limited
solely to the amount paid by [subscriber] to GoAmerica for the
services during such period of failure, delay, or nonperformance.
Neither GoAmerica nor BellSouth shall have any liability, direct or
indirect, whatsoever for any damages other than for such directly and
proximately caused damage, and, in particular, without limitation,
neither GoAmerica nor BellSouth shall have any liability, direct or
indirect, for any special, incidental, or consequential damages
(including lost profits) directly or indirectly relating to or arising
out of [subscriber's] inability to use the services
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or related facilities, equipment or software, either separately or in
combination with any other services, facilities, equipment or
software, whether or not performed or provided under this Agreement,
or for any loss or damage directly or indirectly relating to or
arising out of any third party's unauthorized access to [subscriber's]
data transmitted over the BellSouth Facilities, regardless of the form
of action, whether in contract, tort (including negligence), strict
liability, or otherwise, and whether or not such damages were foreseen
or unforeseen."
12. Representations and Warranties.
-------------------------------
a. GoAmerica represents and warrants to BellSouth as follows:
1. it is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware, and has all
requisite corporate power and authority to own, operate, and
lease its properties and carry on its business as now being
conducted, and to enter into this Agreement and perform its
obligations hereunder;
2. the execution and delivery of this Agreement has been duly and
validly authorized and approved by all necessary GoAmerica
corporate action and this Agreement is valid and binding upon it
in accordance with its terms;
3. the execution and carrying out of this Agreement and compliance
with the provisions hereof by it will not violate any provision
of law, will not, with or without the giving of notice and/or the
passage of time, conflict with or result in the breach of any of
the terms or conditions of or constitute a default under, any
indenture, mortgage, agreement, or other instrument to which it
is a party or by which it is bound;
4. the resale of the BellSouth Services shall only be in connection
with the sale of the GoAmerica/BellSouth Services and incidental
to the GoAmerica Services, which shall constitute the principal
value to subscribers of the GoAmerica/BellSouth Services.
b. BellSouth represents and warrants to GoAmerica as follows:
1. it is a limited partnership duly organized, validly existing, and
in good standing under the laws of the State of Delaware, and has
all requisite power and authority to own, operate, and lease its
properties and carry on its business as now being conducted, and
to enter into this Agreement and perform its obligations
hereunder
2. the execution and delivery of this Agreement has been duly and
validly authorized and approved by all necessary BellSouth
partnership action and this Agreement is valid and binding upon
it in accordance with its terms;
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3. the execution and carrying out of this Agreement and compliance
with the provisions hereof by it will not violate any provision
of law, will not with or without the giving of notice and/or the
passage of time, conflict with or result in the breach of any of
the terms or conditions of or constitute a default under, any
indenture, mortgage, agreement, or other instrument to which it
is a party or by which it is bound.
13. Force Majeure
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In no event shall either party have any liability for failure to comply
with this Agreement, if such failure results from the occurrence of any
contingency beyond the reasonable control of the party, including, without
limitation, strike or other labor disturbance, riot, theft, flood,
lightning, storm, any act of God, power failure, war, national emergency,
interference by any government or governmental agency, embargo, seizure, or
enactment of any law, statute, ordinance, rule, or regulation.
14. Notices.
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a. All notices and other communications provided for herein shall be in
writing and sent by certified or registered mail, postage prepaid,
return receipt requested, or delivered personally to the intended
recipient, at the street address set forth below:
1. if to BellSouth:
BellSouth Mobile Data USA Limited Partnership
00 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx
Executive Vice President-Operations
with a copy (which shall not constitute notice) to:
BellSouth Mobile Data USA Limited Partnership
00 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Senior Vice President and General Counsel
2. if to GoAmerica:
GoAmerica Communications Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
President
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or, as to either party, at such other address as shall have been
designated by such party in a notice to the other party delivered in
accordance with the provisions hereof.
b. Except as may otherwise be provided in this Agreement, all notices and
other communications hereunder shall be deemed to have been given when
actually received by the intended recipient.
c. Notices may be given by telephone, provided that such notices are
promptly confirmed by the sender in writing and delivered as provided
herein.
15. Waivers.
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a. The parties may at any time waive any of the provisions of this
Agreement, but any such waivers shall be reduced to writing and duly
executed and delivered by duly authorized representatives of the
parties hereto.
b. The failure of either party to enforce at any time any of the
provisions of this Agreement shall not constitute or be construed to
be a waiver of such provisions or of the right of such party
thereafter to enforce any such provisions.
16. Entire Agreement: Severability.
------------------------------
a. This instrument contains the entire agreement between the parties and
there are merged hereinto all prior and collateral representations,
promises, and conditions in connection with the subject matter hereof
any representation, promise, or condition not incorporated herein
shall not be binding upon either party and this Agreement supersedes
and is in lieu of all existing agreements or arrangements between the
parties with respect to the subject matter hereof ANY MODIFICATION OF
ANY PROVISION OF THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY
AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
b. if any provision of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render
unenforceable the entirety of this Agreement, but rather (unless a
failure of consideration would result therefrom), the entirety of this
Agreement shall be construed as if not containing the particular
invalid or unenforceable provision, and the rights and obligations of
the parties shall be construed and enforced accordingly.
17. Assignments and Delegation of Rights and Duties.
-----------------------------------------------
Neither party may assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the other party,
which consent shall not be unreasonably withheld or delayed; provided,
however, that either party may assign any
13
or all of its rights or delegate any or all of its duties under this
Agreement without the prior written consent of the other party if and to
the extent such assignment or delegation is to (i) an entity which
controls, is controlled by, or is under common control with such party or
(ii) an entity that has acquired all or substantially all of such party's
assets as a successor to the business of the assigning party (whether by
way of merger, reverse merger, consolidation, sale and purchase of assets
or otherwise) and such entity agrees in writing within thirty (30) days of
the date of such assignment or delegation to be bound by and perform in
accordance with this Agreement as if it were a party hereto. As used
herein, "control" means the ownership of fifty percent (50%) or more of the
outstanding voting stock or other equity interest in the relevant entity.
Any attempted assignment or delegation in violation of this Agreement shall
be void and of no force and effect.
18. Miscellaneous.
-------------
a. Except as may be otherwise specifically provided in this Agreement,
this Agreement is not intended to and shall not confer upon any other
person or business entity, other than the parties hereto, any rights
or remedies with respect to the subject matter hereof.
b. This Agreement may be executed in any number of counterpart copies,
each of which shall be deemed an original, but which taken together
shall constitute a single instrument.
c. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York pertaining to contracts entered into
and to be performed entirely within the State of New York, regardless
of the place of making or performance.
d. All paragraph headings and captions used herein and in the schedules
hereto are for the convenience of the parties only and shall not be
part of the text hereof or affect the meaning of this Agreement.
IN WITNESS WHEREOF, GoAmerica and BellSouth have caused this Agreement to
be duly executed by their respective duly authorized representatives as of the
day and year first above written.
BELLSOUTH WIRELESS DATA L.P. GOAMERICA COMMUNICATIONS
CORPORATION
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxxx
----------------------------- ---------------------------------
Signature Signature
_____________________________ _________________________________
Name (Print) Name (Print)
14
VP Sales President
----------------------------- ---------------------------------
Title Title
SCHEDULE 2.2
SCHEDULE OF CHARGES
I. One Time Charges
----------------
*****................................ $*****
Per Fixed Terminal connection to the BellSouth Facilities
II. Recurring Charges for Host Connection
-------------------------------------
*****................................ $*****
In addition to BellSouth's Fixed Terminal charges, GoAmerica shall procure
from a carrier of its choice the necessary leased line(s) between the
GoAmerica Facilities and a point of presence of the BellSouth Facilities
specified by BellSouth as the point of interconnection. GoAmerica shall pay
directly to such carrier all initial and recurring charges for such leased
lines. BellSouth's fixed terminal connection charges include the use
maintenance and administration of two (2) digital service units provided by
BellSouth. Higher speed fixed terminal connections are available at higher
rates.
III. Recurring Charges for Subscriber Units
--------------------------------------
Whenever GoAmerica requests that BellSouth activate a Subscriber Unit under
this Agreement, GoAmerica shall designate to BellSouth in writing by MAN
Number which one of the following Price Plans shall apply to such
Subscriber Unit. The Regular Price Plan shall apply to any Subscriber Unit
for which GoAmerica fails to make such a designation at the time of
activation.
Regular Price Plan
------------------
Any Subscriber unit billable under this Agreement shall be billed each
month at the rate of i) $***** for the first ***** or part thereof plus ii)
$***** for each ***** or part thereof in excess of the ***** limit.
_________________________
***** Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
15
Special Price Plans
-------------------
For each Subscriber Unit activated under a Special Price Plan, GoAmerica
shall pay BellSouth at the following rates, and no discount shall be
applied:
*****................................ $*****
For ***** use of the BellSouth Services in connection with use of the
GoAmerica/BellSouth Services by GoAmerica *****. GoAmerica shall not
activate more than ***** such subscriptions for any single such GoAmerica
*****. Subscriptions at this price may not be activated for or used by any
end user who is not an authorized GoAmerica *****) A "GoAmerica *****"
means a business that has entered into a written agreement with GoAmerica
which agreement authorizes such business to market, promote and sell the
GoAmerica/BellSouth Services. Subscriptions at this price may not be
activated for or used for any purpose other than as provided above.
*****................................ $*****
For ***** use of the BellSouth Services in connection with the
GoAmerica/BellSouth Services for ***** activities of ***** to demonstrate,
test or promote the use of the GoAmerica/BellSouth Services in connection
with products or services offered by such *****. *****. GoAmerica shall
not activate more than ***** such subscriptions for any single such *****.
Subscriptions at this price may not be activated for or used by any end
user who is not a ***** as defined above.
*****................................ $*****
For ***** use of the BellSouth Services in connection with the
GoAmerica/BellSouth Services for ***** activities of GoAmerica and ***** to
test demonstrate, market or promote the use of the GoAmerica/BellSouth
Services in connection with products or services offered by ***** such as
the *****. GoAmerica shall not activate more than ***** such
subscriptions. Subscriptions at this price may not be activated for or
used for any purpose other than as provided above, and each *****
Subscription shall be identified and designated as such by MAN number in
writing by GoAmerica at the time of activation.
*****................................ $*****
For ***** use of the BellSouth Services in connection with evaluation of
the GoAmerica/BellSouth Services for not more than ***** days
_________________________
***** Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
16
(the "*****"). For each Subscriber Unit activated under the *****, before
expiration of the ***** with respect to such Subscriber Unit, GoAmerica,
shall designate in writing to BellSouth a Regular Price Plan (as set forth
above) which shall apply to such Subscriber Unit after the *****. If
GoAmerica fails to make such designation, BellSouth shall deactivate such
Subscriber Unit upon expiration of the *****.
*****................................ $*****
Under this Plan a subscriber may send an ***** number of kilobytes of data
using the BellSouth Services in connection with the GoAmerica/BellSouth
Services for ***** activities of ***** to demonstrate, test or promote the
use of the GoAmerica/BellSouth Services in connection with products or
services offered by *****. GoAmerica shall not activate more than *****
such subscriptions for *****.
*****................................ $*****
Under this Plan a subscriber may send an ***** number of kilobytes of data
using the BellSouth Services subject to the following:
i) GoAmerica shall make this Plan available only to consumers who
purchase a ***** on or after the date of this Amendment. The only units
activated under this Plan shall be ***** used in connection with the
GoAmerica/BellSouth Services.
ii) At any time or times hereafter as elected by BellSouth in its sole
discretion, BellSouth shall have the continuing right, after ***** days
notice to GoAmerica, to amend or discontinue this Plan. It is provided,
however, that BellSouth shall not change the price and allowed kilobyte
usage for any units activated under the plan until such time as the unit
has been activated for a period of at *****.
iii) BellSouth shall not be obligated to make an activation under this
Plan unless the serial number of the ***** which the subscriber will use to
access the BellSouth Services is first provided to BellSouth by GoAmerica.
GoAmerica shall not request or permit an activation under this Plan unless
it has obtained from each subscriber a certification from the subscriber
certifying that the subscriber has purchased a *****, the serial number of
that computer, and that the subscriber shall access the BellSouth Service
under this Plan only through the use of a *****.
iv) GoAmerica shall for a period of at least ***** after this Agreement is
terminated, maintain the original certification described
_________________________
***** Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
17
in paragraph iii above and other records sufficient to
establish that all activations under this Plan meet the
requirements of item "i" of this Plan, above. BellSouth
shall have the right, no more often than *****, during *****
business hours, to have these records audited by an
independent third party to assure compliance with item "i"
above. The independent third party shall first sign a non-
disclosure agreement reasonably satisfactory to GoAmerica
and BellSouth which protects the identities of the
subscribers from disclosure to BellSouth and third parties.
Circumstances of disclosure and use for purposes of any
litigation shall be controlled by a protective order granted
pursuant to the rules of the court before which any such
litigation is pending.
IV. Mobile-to-Mobile Charges
------------------------
Data transmitted between two mobile units requires two transmissions and
the number of bytes contained in each of the two transmissions will be
billed to each Subscriber Unit. The number of bytes contained in Mobile-
to-Mobile transmissions shall be billed at BellSouth's then current
standard per kilobyte rates, and no discount shall be applied.
V. Other Charges
-------------
*****................................ *****
Applies to any amount not paid by its due date as Provided in this
Agreement.
Prorated for each day past due.
*****................................ *****
Applies when GoAmerica requests a monthly Reseller Traffic Detail Report or Host
Detail Report in either BellSouth's standard electronic format or hard copy
VI. Troubleshooting Services
------------------------
Hourly (minimum charge - 2 hours).............. $***** per hour*
Daily............................ $***** per day (***** hours)*
These rates apply only to requests that BellSouth Customer Service resolve
problems which are not caused by problems occurring in the BellSouth
Facilities. Rates do not include expenses incurred for travel, lodging,
meals and cost of materials and equipment, which will be billed separately
and reimbursed by GoAmerica.
_________________________
***** Confidential portion omitted and filed separately with the Securities and
Exchange Commission.
18
